THE GROUND OF REVIEW
22 The single ground alleges that the Tribunal misunderstood the legal consequences of its decision, thereby failing to complete its statutory task and falling into jurisdictional error.
23 The legal consequence of the Tribunal's decision is that the applicant is to be removed from Australia as soon as reasonably practicable. While the Tribunal acknowledges this (at [98]), it then states that the applicant will be subject to 'indefinite' detention in the meantime. In light of this description of the outcome, the applicant submits that the Tribunal misunderstood the legal consequence of its decision. Had it correctly understood the consequence of its decision, it might have made a different decision, basically to conclude there was 'another reason' warranting revocation of the mandatory cancellation.
24 The phrase 'as soon as reasonably practicable' was considered by Gummow J in Al-Kateb v Godwin (2004) 219 CLR 562. His Honour stated (at [121]):
… What then is the significance for a removal under s 198 of a failure to do so "as soon as reasonably practicable"? (Emphasis added.) Here, too, there is a temporal element, supplied by the phrase "as soon as". The term "practicable" identifies that which is able to be put into practice and which can be effected or accomplished. The qualification "reasonably" introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme. The term "purpose" identifies "the object for the advancement or attainment of which [the] law was enacted". This involves the detention of the appellant to facilitate his availability to removal from Australia but not with such delay that his detention has the appearance of being for an unlimited time.
(Citations omitted, emphasis added.)
25 The phrase was also the subject of consideration by the Full Court (Wilcox, Lindgren and Bennett JJ) in NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506 (at [41]-[59]). The Court stated that it was undesirable to attempt a definition of 'reasonably practicable' given that it is impossible to foresee all circumstances that may arise: NATB (at [51]). However, the Court did state that the relevant considerations for reasonable practicability are practical considerations which arise in the context of the proposed physical removal of a person from Australia: NATB (at [52]).
26 In DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 (at [26] and [30]), North ACJ noted that, due to the operation of s 197C, the legal consequence of the refusal of a protection visa was the removal of the applicant to Syria and not indefinite detention. His Honour stated (at [26]) that the phrase 'indefinite detention' 'must be read in a very different way to the words used in order to have them mean that the detention would be limited to the time taken for the Minister to consider the alternative management options'. The 'alternative management options' is a reference to certain powers conferred on the Minister in respect of the detention of unlawful non-citizens. Section 195A of the Act allows the Minister to grant a visa to a person who is in detention, whether or not the person has applied for the visa, if the Minister thinks it is in the public interest to do so. The power must be exercised by the Minister personally: s 195A(5). The Minister is not obliged to consider whether to exercise the power: s 195A(4). Section 197AB allows the Minister, if the Minister thinks it is in the public interest to do so, to make a residence determination to the effect that a person reside at a specified place instead of being held in immigration detention as defined by the Act. Again, the Minister is under no duty to consider making such a determination: s 197AE. The Minister is, however, obliged to exercise the power personally: s 197AF.
27 The applicant submits, in light of the abovementioned authorities, to remove 'as soon as is reasonably practicable' is not consistent with the Tribunal's comments (at [98]) of 'indefinite detention' or a 'prolonged' period in detention.
28 The Tribunal's reasons must be read as a whole, however in considering the applicant's contentions it is appropriate to set out three additional paragraphs central to this application. The first two of these paragraphs come earlier in the Tribunal's reasons under the heading 'Statutory Framework' and prior to the impugned paragraph containing the reference to 'indefinite detention'. There the Tribunal sets out the key provision in s 197C(2) and the extracts from the explanatory memorandum (at [47]-[48]):
47. Section 197C(1) of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. Section 197C(2) provides that:
(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.
48. The purpose of introducing s 197C into the Act is contained in the Explanatory Memorandum (EM) to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. Clauses 1132 to 1146 of the EM relate to the application of s 197C to Australia's non-refoulement obligations:
1132. The effect of new section 197C is to make it clear that in order to exercise the removal powers under section 198 of the Migration Act an officer is not bound to consider whether or not a person who is subject to removal engages Australia's non-refoulement obligations before removing that person.
1133. In recent years judicial review of protection visa refusal decisions has led to a number of broad and unintended interpretations of Australia's protection obligations under the Refugees Convention and other international treaties. There has been a trend of jurisprudence favouring an approach whereby the provisions of the Migration Act are construed in light of presumed legislative intention for the Migration Act as a whole to facilitate Australia's compliance with its obligations under the Refugees Convention.
…
… These decisions have had significant impact on the Government's ability to remove unlawful non-citizens from Australia under section 198 of the Migration Act.
1136. Prior to this recent jurisprudence, section 198 of the Migration Act created an obligation to remove unlawful non-citizens in the circumstances prescribed in section 198 and this duty was not constrained by reference to Australia's international obligations…. This was because it was understood that Australia's international obligations had already been considered during separate processes prior to removal, for example when considering the person's application for a protection visa or when the Minister was considering the use of his or her personal powers.
1137. In general terms, the amendments in this item are intended to restore the situation to that arising prior to the jurisprudence noted above by making it clear that the removal powers are separate from, unrelated and completely independent of, any provisions in the Migration Act which might be interpreted as implementing Australia's non-refoulement obligations.
…
1140. The amendments are intended to put it beyond doubt that the purpose of section 198 is not to respond to international protection obligations, but to provide officers with the duty to remove unlawful non-citizens from Australia in the circumstances set out in section 198 of the Migration Act.
1141. This means that the duty to remove in section 198 of the Migration Act arises irrespective of whether or not there has been an assessment, according to law or procedural fairness, of Australia's non-refoulement obligations in respect of the non-citizen.
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.
…
1146. The above mechanisms enable non-refoulement obligations to be addressed before a person becomes ready for removal. At the removal stage, an officer will not be bound to check whether or not the Minister has considered exercising his or her personal powers when assessing if a person is subject to removal under section 198 of the Migration Act. If an unlawful non-citizen satisfies one of the conditions specified in section 198, the officer must remove the unlawful non-citizen as soon as reasonably practicable and it is not open to the non-citizen to challenge their removal on the basis that there has been no assessment of protection obligations according to law or procedural fairness.
(Citations omitted, emphasis added.)
29 The other relevant paragraph is that preceding the impugned paragraph and follows from the headings 'Other Considerations' and 'Tribunal consideration: International non-refoulment obligations' (at [97]):
97. Paragraph 14.1 of 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. Paragraph 14.1 further provides:
(1) …
(2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, 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 a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, 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 have their visa reinstated. 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.
(Citations omitted, emphasis added.)
30 The applicant submits that the Court can draw either one of two inferences from the Tribunal's adoption of 'indefinite detention' in its reasons (at [98]). The first inference would be that the Tribunal accepted as accurate that indefinite detention was the legal consequence of its decision in accordance with what is written in the Direction No. 65. The second, alternative inference would be that the Tribunal engaged in confused thinking and misconstrued the various statutory provisions relating to the removal of the applicant from Australia in its reasons. Either way, the applicant therefore contends that the Tribunal failed to complete its statutory task due to failing to comply with the implied condition that it form a state of satisfaction for the purposes of s 501CA(4) on the basis of a correct understanding of the law. If the Tribunal had not misunderstood the legal consequences of its decision, it may have decided to give more weight to the international non-refoulement considerations. This, the applicant contends, could have changed the outcome of the applicant's application before the Tribunal and, therefore is said to constitute jurisdictional error.
31 It was correctly conceded by the applicant's counsel at the commencement of the oral submissions that the Tribunal's reasons are very detailed in this instance and they should not be read with an eye attuned to finding error. When viewed in their totality, the Tribunal's reasons make clear that the Tribunal did understand that a consequence of its decision was that the applicant would be returned to Afghanistan when it was reasonably practicable to do so, consistent with s 197C and s 198 of the Act. The following features of the Tribunal's reasons support this conclusion:
The Tribunal acknowledged that in August 2017 (which was after the visa had been cancelled), an International Treaties Obligation Assessment (ITOA) had found that the applicant was a person whose circumstances engage Australia's non-refoulement obligations: (at [10]).
The Tribunal correctly stated the effect of s 197C of the Act was that Australia's non-refoulement obligations were irrelevant for the purposes of s 198: (at [47]-[48]).
The Tribunal's reasons are a (correct) explanation of the effect of s 197C(1) of the Act: (at [47]). That explanation is not merely a recitation of the provision. Rather, the Tribunal has engaged with and explained in its own terms the meaning and effect of the provision.
The Tribunal referred to the applicant's evidence that he would 'probably be killed as a Hazara Muslim and if anyone finds out about my bisexuality, which is a death sentence' (at [34]) and submission that the applicant faced either 'indefinite detention or removal to Afghanistan where he will be killed': (at [91]).
The Tribunal concluded that given the applicant is a person to whom Australia owes protection obligations, the impediments which the applicant would face if returned to Afghanistan 'are clearly apparent from the findings of his ITOA' and further that the applicant had fears over and above a fear of 'convention-related harm' if returned to Afghanistan: (at [112]).
32 The reference (in [112]) to 'impediments' to returning to a foreign country arises from para 14.5(1) of Direction No. 65. It requires a decision maker to consider the effect on an unlawful non-citizen if they were returned to his or her home country.
33 The ITOA found, inter alia:
…there is a real chance that [the applicant] would be kidnapped, tortured or killed by AGEs [anti-government elements] were he to return to his home area of Afghanistan.
…
… it would not be reasonable in the sense of practicable, for [the applicant] to relocate within Afghanistan, to avoid a real risk of significant harm.
34 Read in the context of the entirety of the Tribunal's reasons, what is being expressed by the Tribunal is that the consequence of non-revocation would be, pursuant to s 198 of the Act, that the applicant would be removed to Afghanistan as soon as is reasonably practicable and, 'in the meantime', the applicant would remain in detention. Counsel for both the applicant and the Minister, in response to my inquiry, agreed that the alleged error would fall away were the reference to 'indefinite' to not appear in the Tribunal's reasons. But I do not consider that with the key words 'in the meantime' there was any error.
35 Ultimately, the contention advanced by the applicant is contingent on several steps. It requires the conclusion that 'indefinite' is capable of an interpretation in the Tribunal's reasons as having no definite event on the horizon such that it can be concluded that the Tribunal did not appreciate that the legal consequence of its decision was that the applicant would be removed from Australia to Afghanistan as soon as reasonably practicable, and that had the Tribunal correctly appreciated this consequence its ultimate conclusion may have changed as to whether to revoke the mandatory cancellation.
36 I do not consider, on a fair reading of the Tribunal's reasons, particularly in light of the use of the term in that paragraph 'in the meantime', that the Tribunal proceeded on a misapprehension as to the consequences of non-revocation of the applicant's visa.
37 Although the Tribunal's reasons refer to 'indefinite detention', a contextual and complete reading of that paragraph (and the reasons) reveals that the Tribunal understood the applicant would be 'liable' for return to Afghanistan as soon as reasonably practicable and, until that time (i.e. 'in the meantime'), the applicant would remain in detention.
38 The Tribunal understood there was a crystallising event, 'the reasonably practicable' assessment or state of affairs, which would bring the detention to an end and result in return to Afghanistan.
39 Put simply, in context, while the use of 'indefinite' has perhaps complicated the debate, in this instance the Tribunal understood that as there was no other management option contemplated, the applicant would be returned as soon as reasonably practicable consistently with the statutory obligations and regardless of the non-refoulement obligation. This is a fair reading of the entirety of the reasons given the earlier discussion (particularly (at [47]-[48]). The passing reference to the consequences of prolonged immigration detention (in [98]) was consistent with an understanding that the consequences of prolonged immigration detention would not be a factor requiring further consideration. So also, more importantly is the evaluation (at [112]) as to what would happen on his return.
40 The distinction between this case and DMH16 is that in this instance the Tribunal expressly acknowledged (in [98]) that the applicant 'would be liable for return to Afghanistan as soon as is reasonably practicable and in the meantime …'. In DMH16, however, the Minister had noted (at [44]) of his reasons:
44. The statutory effect of a decision to refuse the visa application is also removal of [the applicant] from Australia as soon as practicable, and in the meantime, detention. In making my decision I am aware that while [the applicant] will not be removed from Australia if his visa application is refused (notwithstanding s197C of the Act), he may face the prospect of indefinite immigration detention because of the operation of s189 and s196 of the Migration Act. I acknowledge that this is likely to have adverse impacts on his psychological and physical health.
41 Certainly there are similarities, but I consider that it is clear in this instance, for reasons I have given, that 'indefinite' simply meant until it is reasonably practicable.
42 The Tribunal's reference to 'indefinite' in this case is in contrast to the description given by Gummow J in Al-Kateb (in the last sentence cited above at [24]) in a decision which predated the introduction of s 197C(2).