The proceeding in the Tribunal
23 The deputy president heard the review of the delegate's decision in the Tribunal over six days. The Minister was represented by counsel and the applicant represented herself.
24 In his decision, the deputy president stated that the delegate's task had been to consider s 501(6) of the Act and to decide which part of it he would examine factually in order to determine whether or not the applicant passed the character test and to exercise any discretion under s 501(1), in accordance with Direction No 65. He summarised the delegate's statement of reasons and noted that the applicant's first attempt to challenge that decision had been heard by a differently constituted Tribunal in December 2018, but that a judge of this Court had set that Tribunal's decision aside and remitted it to the Tribunal for hearing and determination according to law.
25 The deputy president found that there was no issue that Australia owed non-refoulement (or protection) obligations in respect of the applicant. He found that she had been in immigration detention for the previous four years and, on several occasions in that period, had been attacked by persons in detention. He found that she believed that those persons were in touch with a New Zealand gang and that its members had attacked her to pursue the gang's objectives and to gain a bounty offered through her death. The attacks started in 2016, as had been found by another administrative decision-maker, and had occurred again recently. He found that those circumstances had caused the applicant to be terrified of remaining in detention and very anxious to leave it. He noted that while she had a criminal record, the courts had dealt with her offending without imposing a custodial sentence, except on one occasion in 2010, in Australia, when she was sentenced to 28 days imprisonment.
26 The Tribunal referred to the delegate's consideration of Direction No 65. By the time of its decision, that direction was replaced by Ministerial Direction No 79 made under s 499. The Tribunal had regard to the analogous part of Direction No 65 that had applied to the delegate's decision (that became par 12.1(6) of Direction No 79), which stated:
…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.
27 The Tribunal had regard to that consideration, as is evident from its reasons. The Tribunal stated that each officer of the executive government, including a delegate, and the Tribunal itself, were subject to the dictates of good government. It stated that, for a member of the executive government, or the Tribunal standing in that person's shoes, to make a decision that had the effect that a person be subjected to indefinite or prolonged detention, without an order of a Court, would be inconsistent with the dictates of good government and could only be authorised by the judicial branch of government. He referred to what Smithers J had raised in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 334-335, about the purpose of the Administrative Appeals Tribunal Act being to promote good government by those carrying out the practical task of administering Acts of the Parliament and making decisions incidental to that task.
28 The deputy president referred to the decision North ACJ in DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 at 581 [27], that s 197C of the Act operated to require that a person had to be returned to his or her country of origin if they were not otherwise entitled to a visa and that, accordingly, there was no statutory authority to hold such a person in indefinite detention in order to see if circumstances might change.
29 The deputy president reasoned that returning a person to their country of origin where his or her life might be at risk raised humanitarian considerations, and that good government, ordinarily, would require those considerations to be taken into account in relation to addressing the exercise of a statutory discretion. He noted that Direction No 79 provided that considerations that it made mandatory did not limit a decision-maker so as to preclude his or her ability to take other relevant considerations into account. He stated as follows (at [20]):
It therefore seems to me that there are at least three reasons why good government required that the discretion conferred by s 501 of the Migration Act should have been exercised by the delegate in favour of the present applicant, assuming that the delegate was right that the applicant failed the character test:
(a) Sending her back to New Zealand would put this country into breach of its international obligations;
(b) The alternative of indefinite or prolonged detention would be open only to the criminal courts, not a member of the executive branch of government;
(c) Strong humanitarian reasons would indicate another reason why the discretion should be exercised in the applicant's favour.
30 The Tribunal identified that its task of reviewing the delegate's decision was to address whether the applicant had satisfied it that she passed the character test under s 501(6)(d)(i) and, if not, whether the discretion under s 501(1) ought be exercised by refusing to grant her the visa. He referred, in terms that the Minister did not complain of, to the test that Mortimer J had set out Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at 450-451 [122]-[130] as to whether the criteria in s 501(6) had been met. The deputy president then identified that the purpose of the inquiry in exercising the discretion in s 501(1) is to guard against harm to the Australian community. He said that it was relevant to consider the applicant's history and to take into account all of the circumstances of the applicant in evidence on the review, including facts unfavourable to her that related to the risk that she would engage in criminal conduct in the community.
31 The deputy president found that the applicant had a seven year old son living in the community, the father of that child visited the detention centre with their son once every fortnight and he remained there with the applicant and the boy for about two hours each time. The Tribunal found that the applicant desired to be reunited with her son to participate in his upbringing, and that the son often spoke of his mother whom he missed. It found that the applicant's conduct towards her eldest son in New Zealand prior to her arriving in Australia could be explained by her then immaturity and that her drug-taking appeared to have completely stopped.
32 The Tribunal found that the applicant had married, that her husband (about whom there was no adverse suggestion) was gainfully employed, and that she desired to live with him in the community and would do so as soon as she was released. It found that her husband's support would be valuable to her. It concluded that the applicant's son and her husband gave her a strong motive never to be detained again.
33 The deputy president found that she both feared and detested detention. The Tribunal accepted that her fears arose because of both the attacks upon her by other New Zealand nationals in her four years of immigration detention, and the risk to her life that she feared prior to that period. The Tribunal found that she had only once been incarcerated for four weeks and that, since being detained in August 2015, she had taken every possible legal step to obtain her release. The Tribunal also found that the applicant feared that the Minster would return her to detention if she committed any criminal offence, as had occurred twice in the past (in 2010 and 2015). It found that her experiences with the immigration system and other areas of the law had suggested to her that "if she ever has another brush with the law, she will again face detention".
34 The Tribunal found that while the applicant was at liberty in the community for five years, she had not committed any offence. It said that it had made this finding after having had regard to, but rejecting, the Minister's submission to the contrary. The Tribunal's reference to that submission appears to have been directed to her acquittal of charges arising from her unlawful arrest in 2015 that had led to her current immigration detention. It considered her history of offending in New Zealand over the period from 1994 to 1997 and, again, from 2000 to 2008, many of which were for driving offences, some for dishonesty, and some others for drug-related offences. But, importantly, it found that none of that offending had resulted in a sentence of full-time imprisonment, but some had resulted in a fine, community work or, what seemed to be, a suspended sentence. The Tribunal found that the applicant had accepted responsibility for her prior offences and was ashamed of them. It found that much of the applicant's previous offending had been affected by her then immaturity. It concluded that she had every incentive to avoid any future brush with the law.
35 It found that she had fled to Australia from New Zealand because she believed that a gang was pursuing and trying to kill her and, for that purpose, she had purchased a false passport and used it to enter Australia. It found that she had committed a drug-related offence in Australia in 2010 leading to her being sentenced to 28 days imprisonment.
36 The Tribunal found that, in 2010, the applicant was being held in a motel prior to her being transferred to a detention centre but that she had left the motel and then lived in the community for five years during which time, it found, she had committed no offences and her son was born. It found that she had tried to obtain qualifications to work and had gained some qualifications in photography which she wished to use if released.
37 The deputy president found that the applicant came again to the Department's notice in 2015 as a result of an incident with the police. However, she had been acquitted of the charges that the police had brought against her because the magistrate had found that the police had had no basis to arrest her and that she had resisted an unlawful arrest. The deputy president rejected the Minister's submission that, in some way, the applicant had attempted to pervert the course of justice in the proceeding before the magistrate because she had used a supposedly false name, which was actually her birth name, and that she had not revealed that she was in detention. The Tribunal found that the applicant had come to court from the detention centre and, therefore, could not conceal the fact that she was then in detention, and that the use of her birth name could not have been in any way designed to deceive the Minister (scil: magistrate) or to pervert the course of justice.
38 The Tribunal then considered the likelihood of any risk that the applicant would, in the future, engage in criminal conduct for the purpose of s 501(6)(d)(i). The deputy president identified that the question for decision of this issue was whether he was satisfied that there was a risk that the applicant would offend in the future. He said that he would concentrate upon that risk of future offending.
39 The Tribunal then found (at [52]) that it was not satisfied that there was a risk that, if the applicant were allowed to remain in Australia and released into the community, she would engage in criminal conduct. It found that, first, she hated immigration detention, would do anything to get out of it and, thus, would not do anything which might cause herself to be detained again and, secondly, she was frightened of remaining in (and the prospect that, if released, she could be returned to) detention for the, or similar, reasons to those that had led to the independent earlier finding that Australia owed her non-refoulement obligations. Thirdly, it found that she believed that the immigration authorities would seek to put her into detention if there were any ground to cancel a future visa, and that if she committed a criminal offence, that circumstance would be likely to give those authorities such a ground. Fourthly, the deputy president found that the applicant had a seven year old child living in the community for whom she understandably desired to participate in caring with the support of his father. Fifthly, he found that while in detention, she had married an Australian citizen in good standing and desired to take up married life with him in the community, enabling her to obtain gainful employment or engage in business, as she had in the past, and that her husband was likely to provide her with support as she lived in the community. Sixthly, the Tribunal found that although she had offended in the past and had once, in 2010, been imprisoned for 28 days, she had committed no offences over the five years before August 2015, nor had she subsequently in the four years while in immigration detention. Seventhly, the deputy president found that the applicant was intelligent, more mature than she was at the time of her previous offending, and had strong incentives not to offend.
40 Importantly, the Tribunal then considered whether the Minister could broaden the scope of the review before it to include consideration of whether the applicant failed the character test in respect of s 501(6)(c), even though the criteria in that provision had formed no part of the delegate's decision. The deputy president concluded that the function of the Tribunal on review was to decide the same questions in issue under s 501(6) (viz: under s 501(6)(d)(i)) as were before the original decision-maker, and no more. He referred to the reasoning in Frugtniet v Australian Securities and Investments Commission (2019) 93 ALJR 629 at 633 [15] per Kiefel CJ, Keane and Nettle JJ, and at 641 [51] per Bell, Gageler, Gordon and Edelman JJ.
41 The deputy president found that the delegate was required to address no more than he decided to address, namely whether the applicant had satisfied him that she passed the character test in respect of s 501(6)(d)(i) and ought be granted a protection visa under s 501(1). The Tribunal found that the delegate's reasons dealt with, and only with, the issue of whether the applicant passed the character test under s 501(6)(d)(i). He noted, correctly, that, the delegate, in his reasons, had made no reference to any other provision of s 501(6).
42 The Tribunal considered that one aspect of the statutory context governing the consideration of an application for a visa or the refusal or cancellation of a visa under s 501 was that the visa applicant had two chances to have his or her application assessed on its merits. The Tribunal observed that the Minister's delegate might decide, on any ground, that the applicant did not pass the character test, and that if such a decision were made, the visa applicant could seek merits review of that decision in the Tribunal. He reasoned that, however, if, in its review, the Tribunal elected to proceed on a new and different ground (not before the delegate) to determine whether the character test was passed and decided that question adversely to an applicant, there could be no merits review of the Tribunal's decision. The deputy president observed that that possibility raised the question whether the Parliament's intention to provide merits review of adverse administrative decisions would be frustrated if new grounds, adverse to an applicant for review, could be relied on in the review that were not before, or considered by, the original decision-maker. He noted, particularly, that different factual questions arose under s 501(6)(c) from those in s 501(6)(d)(i), notwithstanding that the same ultimate question for the decision-maker was whether to refuse to grant the visa under s 501(1) for failure to satisfy the decision-maker that the applicant passed the character test.
43 The Tribunal concluded that it should refuse the Minister's application to include in the review the issue whether the applicant did not pass the character test in respect of s 501(6)(c). He found that such an expansion of the review would not be consistent with Frugtniet 93 ALJR 629.
44 The Tribunal then considered the Minister's reliance on the April 2019 decision of a senior member, who had affirmed a delegate's refusal of an earlier bridging visa application, on the basis that the applicant did not pass the character test in s 501(6)(c) and 501(6)(d)(i). The Tribunal said that it was not apparent from the decision record that the senior member had given consideration to Frugtniet 93 ALJR 629 or that he had taken into account matters that the deputy president had considered as critical to the current decision. He noted that the senior member's review had been on the papers and had not involved an assessment of the applicant in the witness box, the benefit of which the deputy president had had together with the other evidence before him of the applicant's good character and credit. Accordingly, the deputy president did not consider that the senior member's decision was normative in relation to the issue of the risk that the applicant posed were she to be released.
45 The deputy president found that the correct or preferable decision was that the applicant did not fail the character test under s 501(6)(d)(i) and that there was no other question properly before him on the review. He then stated (at [67]):
I have decided to make a decision in substitution for the decision, for several reasons:
(a) The applicant is at risk in detention of injury as a result of the very circumstances which led to the finding that non-refoulement obligations are owed in respect of her, and remission of the matter would keep her in a dangerous environment.
(b) If the matter (assumed to mean the application for a protection visa) were remitted for reconsideration, and even if the delegate found the question arising under s 501(6)(c) adversely to the applicant, that would have the effect of enlivening [the] discretion. The delegate, acting property, would follow normative decisions of this Tribunal, in accordance with authorities referred to in Azizi and Minister for Home Affairs (Migration) [2018] AATA 2561. That should lead him or her not to refuse the protection visa on discretionary grounds. I would have done so for reasons indicated in [20] above. Direction 79 makes a non-exhaustive number of considerations mandatory for a decision-maker and some of those also favour the grant of the visa. However, the considerations I have mentioned in [20] above are all relevant and would outweigh any consideration tending the other way.
(c) The decision which I have decided will be set aside was, as I have found, one which is incorrect and no occasion arises to refer it for reconsideration.
46 The Tribunal noted that the application for the protection visa had to be returned to the Minister for finalisation of the consideration process but with a direction that it not be refused under s 501(1).
47 During the course of the present proceedings, the Minister's solicitors confirmed to the applicant's lawyers that no criteria remained to be determined for the grant of the applicant's remitted protection visa application under s 65(1)(a), subject, however, to the Minister's consideration of whether he will exercise his powers under s 501A(2).