Was the Tribunal obliged to consider whether the grant of a protection visa or visa under s 195A was a realistic possibility?
53 It is clear that the Tribunal did not give any meaningful consideration to the question whether there was any realistic possibility, in all the circumstances, that if the cancellation of the appellant's existing visa was not revoked, he might nevertheless be granted a protection visa, assuming that he applied for one. Had the Tribunal done so, it is difficult to see how it could have concluded that there was, in all the circumstances, any realistic prospect of the appellant being granted such a visa.
54 Had the Tribunal given any meaningful consideration to this issue, it would no doubt have noted that the Minister had a discretion to refuse to grant any visa to the appellant, including a protection visa, if the appellant did not satisfy the Minister that he passed the character test in s 501 of the Act. Since it was clear that the appellant did not pass the character test, he obviously would not be able to satisfy the Minister that he did and the discretion to refuse the visa would therefore be enlivened. The Tribunal would also no doubt have noted that an applicant for a protection visa must also satisfy Public Interest Criterion 4001 (PIC 4001): see r 866.225 in Sch 2 to the Migration Regulations 1994 (Cth). That criterion again effectively requires an applicant to satisfy the Minister that he or she passes the character test, though the Minister has a discretion to decide not to refuse to grant a visa despite not being satisfied that the applicant passes the character test.
55 Having regard to those provisions of the Act and Regulations, had the Tribunal given consideration to whether there was a realistic possibility that the appellant would be granted a protection visa, it would no doubt have been noted that it would be rather incongruous, if not somewhat bizarre, to think that there was a realistic possibility that the Minister would, on the one hand, vigorously oppose the revocation of the cancellation of the appellant's visa on character grounds, as he did before the Tribunal, and yet on the other, decide not to exercise his discretion to refuse to grant the appellant another visa on character grounds, either under s 501 or in the context of PIC 4001. It would scarcely matter that the refusal of the other visa on character grounds could be made by a delegate of the Minister, which was subject to review by the Tribunal, particularly given the Minister's power to set aside any favourable decision by his delegate or the Tribunal in that regard: see s 501A of the Act.
56 It is equally clear that the Tribunal did not give any meaningful consideration to the question whether the Minister was likely to grant the appellant a visa in the exercise of his power or discretion under s 195A of the Act. Had the Tribunal done so, it is again difficult to see how it could have found that there was any realistic possibility, in all the circumstances, that the Minister would exercise that power. The Minister had forcefully submitted to the Tribunal that it should not revoke the cancellation of the appellant's visa. He contended in that context, amongst other things, that the appellant's continued presence in Australia presented an unacceptable risk to the Australian community. It would, in those circumstances, be extremely incongruous, if not bizarre, that the Minister would again do an about-face and find that it was somehow in the public interest for the appellant to be granted a visa so he could be released from detention. It is also worth noting, in this context, that the Minister does not have any duty to consider whether to exercise his power to grant a visa under s 195A of the Act, whether he (or she) is requested to do so, or in any other circumstances.
57 The critical question, however, is whether the Tribunal was obliged, in the circumstances, to consider whether the grant of a protection visa, or a visa under s 195A of the Act, was a realistic possibility?
58 As the primary judge noted, the decisions in FBW18 and Ali tended to suggest that the Tribunal was not obliged to consider that matter. In Ali, which involved a challenge to the Minister's decision not to revoke a visa cancellation on character grounds, Flick J (at [31]) referred to the difficulties that the Minister would have to confront if a person whose humanitarian visa had been cancelled on character grounds subsequently applied for a protection visa. His Honour noted that the Minister would then have to consider whether the application should be refused on character grounds under s 501 of the Act, in which case the Minister would have to confront the prospect that the applicant would have to be returned to the country where he was at risk of persecution or serious harm (Afghanistan) in breach of Australia's international non-refoulement obligations. His Honour then said (at [33]):
But these are all decision[s] to be made and - if necessary - reviewed at some point of time in the future. The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised - and was in fact exercised - by reference to the facts and circumstances then prevailing.
59 This reasoning was referred to with approval by Yates J in FBW18 at [77]. Yates J also referred (at [78]) to a number of other single judge decisions of this Court which had approved the reasoning in Ali.
60 It is important to emphasise, however, that the main argument that was being addressed in both Ali and FBW18 was quite different to the argument being advanced in this case. The Minister or Assistant Minister in both of those cases had declined to directly address representations that had been made in relation to Australia's international non-refoulement obligations on the basis that those obligations would be considered if, and when, the applicant applied for a protection visa. The argument was that, in declining to address the representations concerning Australia's non-refoulement obligations on that basis, the Minister or Assistant Minister had constructively failed to exercise his jurisdiction and had proceeded on the basis of an incorrect understanding of the law. The relevant observations by Flick J in Ali, which were approved by Yates J in FBW18, must be considered in that context. They were not made in the context of an argument, like the one mounted by the appellant in this case, that the applicant faced a risk of indefinite detention. The applicant in FBW18 also contended that the Minister erred by failing to consider that he could face indefinite detention, though Yates J dealt with that contention separately and by reference to the operation of s 197C and s 198 of the Act.
61 It is also worth noting that the position adopted by the Minister in Ali in respect of Australia's compliance with its international non-refoulement obligations was starkly inconsistent with the approach taken by the Minister in this case. In Ali, Flick J said (at [31]) that one "possibility to be raised only to be rejected" was that the applicant would be returned to Afghanistan in breach of Australia's international obligations. It is perhaps not difficult to appreciate why Flick J was quick to dismiss the possibility that Australia would breach its international obligations. His Honour noted, in that context, that "[t]hat, at least to the knowledge of Senior Counsel for the Respondent Minister, has never happened in the past" and "[n]or would such a possibility be lightly entertained": Ali at [31]. In this case, however, counsel for the Minister suggested that much had changed since Ali and that the Minister was now more than prepared to proceed on the basis that Australia would breach its non-refoulement obligations and return the appellant to Iraq, even though it had been accepted that he was likely to be harmed or killed there.
62 In DQM18, another case involving the Assistant Minister's refusal to revoke a visa cancellation on character grounds, the Full Court considered an argument not entirely dissimilar to the argument raised by the appellant in this case. The appellant in DQM18 had represented that the likely consequence of a refusal to revoke the cancellation of his visa would be indefinite detention. The Assistant Minister did not directly address that representation in refusing to revoke the cancellation decision, though he did note that the appellant was legally entitled to apply for a protection visa and that would require the consideration of any non-refoulement obligations. The appellant argued that the Assistant Minister erred jurisdictionally by failing to address the representation concerning indefinite detention.
63 In the Full Court, the Minister acknowledged that the representation concerning indefinite detention had been made, but submitted that it was "legally incorrect" because, by reason of s 197C, the existence of non-refoulement obligations would not be relevant to the appellant's removal from Australia and that indefinite detention would not be a consequence of the non-revocation decision given that the appellant could still apply for a protection visa: DQM18 at [102]. The Full Court rejected that argument and found that the Assistant Minister had made a jurisdictional error in not addressing the representation concerning indefinite detention. As for the submission that the appellant could still apply for a protection visa, Bromberg and Mortimer JJ noted (at [107]) that "it is only a successful visa application which is capable of avoiding removal or indefinite detention" (emphasis in original).
64 Perhaps more significantly, their Honours held (at [108]), in effect, that the appellant's prospects of being granted a protection visa were "infinitesimal" given the Assistant Minister's decision and the appellant's criminal record. That was, their Honour's reasoned, "to use the High Court's phrases cited above in a different context, a 'logical deduction grounded in the seeming improbability' of the appellant, having had his visa cancelled twice on the principal basis that the protection of the Australian community requires that he not be permitted to remain, being granted a different visa so he can remain in the Australian community" (emphasis in original). Their Honours also noted that "[a]bsent such an improbability, that would leave either removal to Sudan or South Sudan, or indefinite detention".
65 In those circumstances, Bromberg and Mortimer JJ concluded (at [109]) that the Assistant Minister was not "entitled to ignore the realities of the appellant's circumstances" by ignoring the representation concerning indefinite detention. That was because "the prospect of indefinite detention was real". As for the fact that the Assistant Minister had addressed the appellant's legal entitlement to apply for a protection visa, their Honours stated (at [109]):
However, this did not grapple with the realities of the appellant's situation. The appellant had a visa cancelled because he did not pass the character test and there had twice been no discretionary revocation of that cancellation. He had twice been found to pose such a danger to the Australian community that all other factors which might have tended in favour of him being allowed to remain in Australia were outweighed. The appellant's indefinite detention representation to the Assistant Minister was, rationally, based on an assumption that he was unlikely to be granted a protection visa, which would release him into the Australian community, being the very outcome that the Assistant Minister had decided should not occur. If the situation in whichever of Sudan or South Sudan the appellant could be returned to was such that Australia's international obligations might preclude removal, albeit that the appellant has no visa, then the reality for him would be indefinite detention. The Assistant Minister was required to confront this and deal with it in his reasons.
66 There is an obvious tension, if not an inconsistency, between the reasoning of Flick J in Ali and the reasoning of the Full Court in DQM18. There is no indication that the judgment of Flick J in Ali was drawn to the attention of the Full Court in DQM18. It should be reiterated, in this context, that the relevant observations by Flick J in Ali were not made in the context of an argument or issue about whether the relevant decision-maker had considered representations concerning the possibility of indefinite detention. The same can be said of Yates J's approval of those observations in FBW18. The same cannot be said of the reasoning of Bromberg and Mortimer JJ in DQM18, which directly addressed that very issue.
67 There is also an apparent tension between the reasoning of Bromberg and Mortimer JJ in DQM18 and other authorities in relation to the operation of s 197C and s 198 of the Act. Those authorities will be discussed later. It suffices, at this point, to note that some of those authorities indicate that indefinite detention of an unlawful non-citizen who is owed non-refoulement obligations is "not a possibility", or "no longer arises", given the terms of s 197C of the Act. If that is correct, it is somewhat difficult to see why, in considering a representation concerning the prospect of indefinite detention, it would be necessary to consider whether there was a realistic possibility of the unlawful non-citizen being granted a protection visa, or visa under s 195A of the Act.
68 It is, in this context, important to note a potentially significant distinguishing feature of DQM18 which might explain this apparent tension. It would appear that there was an issue in DQM18 concerning the appellant's nationality and whether Sudan or South Sudan would accept him. That may have resulted in practical difficulties in removing the appellant pursuant to s 198 of the Act. The appellant in this case did not represent to the Minister that there were, or were likely to be, any significant practical difficulties in returning him to Iraq, or that Iraq may not accept him.
69 This distinguishing feature is potentially significant because it would follow that if there was no realistic possibility of the appellant in DQM18 being granted a protection visa, or visa under s 195A of the Act, there was a prospect that he would continue to be detained, perhaps indefinitely, not necessarily because Australia owed him non-refoulement obligations, but because it was not reasonably practicable to return him to Sudan, South Sudan, or any other country. That was not a feature of this case. The appellant's arguments in this case, at least on appeal, were based entirely on the proposition that, if he was refused a protection visa, or a visa under s 195A of the Act, he faced indefinite detention because Australia owed him non-refoulement obligations.
70 There is also another distinguishing feature of the decision in DQM18 which is of some relevance. In DQM18, the Assistant Minister did not address the appellant's submission concerning indefinite detention at all. That was the decisive consideration for Snaden J, who reasoned as follows (at [166]):
In answer to that submission [that the Assistant Minister failed to consider the submission concerning indefinite detention], the Assistant Minister invested some time in explaining why, in truth, indefinite detention was not in prospect. Respectfully, it wouldn't matter if it wasn't. At issue presently is whether the Assistant Minister considered what the appellant advanced. Had he done so by correctly dismissing the prospect of indefinite detention (if, indeed, that be the correct analysis), then he would have discharged his obligation to consider the submissions upon which the appellant relied. But he was not relieved of that obligation merely because the circumstance to which the appellant adverted was, in truth, not one that was in prospect: DOB18 v Minister for Home Affairs (2019) 269 FCR 636, 681 [184], 681-682 [188]-[189] (Robertson J, with whom Logan J agreed; Rares J dissenting but not on that point).
71 In this case, the Tribunal considered, but rejected, the possibility of indefinite detention, primarily on the basis of the operation of s 198 of the Act.
72 Despite the distinguishing features in DQM18, the reasoning of Bromberg and Mortimer JJ provides significant support for the appellant's contention that the Tribunal erred in the way it considered his representation concerning the possibility of indefinite detention. In considering the legal consequences of a decision not to revoke the cancellation of the appellant's visa, the Tribunal simply adverted to the fact that the appellant could apply for a protection visa and that the Minister could grant a visa under s 195A of the Act. The Tribunal did not, however, "grapple with the realities of the appellant's situation": cf DQM18 at [109]. Had it done so, it would most likely have concluded that the prospects of the appellant being granted either a protection visa or a visa under s 195A of the Act was "infinitesimal", essentially for reasons that mirror those referred to by Bromberg and Mortimer JJ in DQM18. In short, having urged upon the Tribunal that the cancellation of the appellant's visa on character grounds should not be revoked, including because he presented an unacceptable risk to the Australian community, it is hardly likely that the Minister would do a complete about-face and grant the appellant another visa, be it a protection visa or a visa under s 195A of the Act.
73 The Minister's submission that the Tribunal was not required to consider and assess whether there was any prospect of the appellant being granted a protection visa, or a visa under s 195A of the Act, because that would amount to speculation about the future course of decision-making, was supported, to an extent, by the reasoning of Flick J in Ali. It should nonetheless be rejected. The reasoning of Bromberg and Mortimer JJ in DQM18 is, with respect, compelling and is to be preferred. The assessment of whether there was any realistic prospect of the appellant being granted such a visa in the future does not involve speculation. Rather, it involves a deduction or inference having regard to the undisputed or ineluctable circumstances; the reality of the position that the appellant was in. In contrast, the Minister's submission in this case that a different decision-maker may take a different approach to any future protection visa application made by the appellant appeared to involve mere speculation or conjecture. It was not based on any undisputed or ineluctable facts.
74 It does not follow, however, that the appellant has made out ground 1 of his appeal. The finding that the Tribunal should have, but had not, considered and assessed whether there was, in all the circumstances, any realistic prospect that the appellant would or might be granted a protection visa, or a visa under s 195A of the Act, at some point in the future, does not necessarily constitute or amount to a jurisdictional error. Nor does it mean that the appeal should be resolved in the appellant's favour. That is so for at least two reasons.
75 First, as has already been noted, the judgment in DQM18 was handed down after the primary judge heard this matter. That perhaps explains why, as noted earlier in these reasons, the appellant conceded before the primary judge that the Tribunal was not required to speculate about whether the appellant might be granted a protection visa: Judgment at [48] and [66]. Having made that concession, the argument the appellant appears to have put to the primary judge was not so much that he would be subject to indefinite detention, but rather that he would most likely be detained for a lengthy period of time while his protection visa application was decided. That perhaps explains why the primary judge's crucial finding was couched in terms of whether the Tribunal was "required to consider the consequences or effect on the [appellant] of the period for which he would remain detained or the length of his detention": Judgment at [71]. It should also be noted that it does not appear that the parties drew the primary judge's attention to the Full Court's judgment in DQM18 prior to her Honour handing down her judgment.
76 To succeed in respect of this aspect of his appeal, the appellant would effectively have to be permitted to resile from or withdraw the concession that he made before the primary judge, the effect of which was that the Minister was not obliged to consider whether he might be granted a protection visa if he applied for one in the future. The argument advanced by the appellant based on the decision in DQM18 was essentially a new argument.
77 Second, and more fundamentally, the Tribunal's main reason for rejecting the appellant's representation that he might face indefinite detention was that, subject to him being granted a protection visa, or perhaps a visa under s 195A of the Act, the appellant would be removed from Australia as soon as reasonably practicable by reason of s 198 of the Act. Therefore, the Tribunal concluded, "his detention would not be indefinite": Reasons at [70]. That was said to be the case even though the Tribunal had found that Australia owed the appellant non-refoulement obligations: Reasons at [69].
78 If the Tribunal's conclusion concerning the application of s 198 of the Act to the circumstances of the appellant's case is right, the question whether there was any realistic prospect of the appellant being granted a protection visa, or a visa under s 195A of the Act, was arguably immaterial to the question whether he faced the prospect of indefinite detention. That is so particularly in the circumstances of this case where, unlike the situation in DQM18, no meaningful or cogent representations had been made as to why it would not be "reasonably practicable" to return the appellant to Iraq. Even if the Tribunal had considered the prospects of the appellant being granted a protection visa, or a visa under s 195A of the Act, and found that the prospects were infinitesimal, it is highly unlikely that that would have altered the Tribunal's finding that the appellant's detention would not be indefinite. That is because the Tribunal would more than likely have found, in any event, that the appellant would be released from detention when he was removed from Australia and returned to Iraq.
79 It would also follow that, in the particular circumstances of this case, any error by the Tribunal in failing to consider whether there was any realistic prospect of the appellant being granted a protection visa could not be said to constitute a jurisdictional error. That is because any such error could not be said to be material; the Tribunal's consideration of that issue could not "realistically have resulted in a different decision": Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45].
80 It is therefore necessary to consider the operation of s 198 of the Act and the appellant's arguments for why, in the particular circumstances of this case, the Tribunal erred in concluding that, despite being owed non-refoulement obligations, he would be removed from Australia as soon as reasonably practicable and therefore did not face the prospect of indefinite detention. That involves the consideration of cl 14.1(2) and (6) of Direction No. 79.