The particular (c) ground
68 It is convenient to start with the ground raised under particular (c).
69 In deciding whether to revoke the cancellation of a person's visa under s 501CA(4) of the Act an administrative decision-maker is obliged to consider the legal and practical consequences for the person of a decision not to revoke the visa cancellation: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [8]-[10], [17] (Allsop CJ, Buchanan and Katzman JJ); Taulahi v Minister for Immigration & Border Protection [2016] FCAFC 177; 246 FCR 146 at [84]-[88]. Separately, the decision-maker is obliged to consider any clearly expressed and significant representation made by the affected person as to the harm that he or she may suffer if the visa cancellation decision is not revoked: Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589, 602-604 at [34] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ). In these contexts, the obligation of a decision-maker to "consider" a matter is an obligation to engage in an active intellectual process in relation to the legal and practical consequences of a decision: Tickner v Chapman [1995] FCA 1726; 57 FCR 451 at 476-477 per Burchett J and 495 per Kiefel J (as her Honour then was): Omar at [35]-[36]. ,
70 Before me, the Minister's arguments proceeded on the basis of an acceptance that the applicant's representations included the claim that, if the Tribunal decided not to revoke his visa cancellation, he faced the prospect of indefinite detention. There was no suggestion that was not a clearly expressed and significant representation.
71 On the applicant's argument, if the Tribunal decided not to revoke his visa cancellation, the likely consequences for him were binary. He either faced the prospect of being returned to Afghanistan (where the Tribunal accepted that he faced a risk of irreparable harm) or he faced the prospect of indefinite detention. The applicant does not, however, confine the meaning of "indefinite detention" to "detention with no end" (as the Tribunal did); rather he says the meaning of the phrase includes a prolonged period of detention with no chronologically fixed end point, such that its duration is uncertain.
72 The applicant argues that the Tribunal erred because it only gave consideration to the prospect that he would be detained for a "temporary" period, while consideration was given to any application for a protection visa he made and/or while the Minister gave consideration to the exercise of his discretionary powers (including to grant the applicant a visa under s 195A of the Act or to make a residence determination under ss 197AC and 197AE). He says the Tribunal erred because it failed to give proper (indeed any) consideration to the prospect that he would continue to be detained beyond that period and the effect of such indefinite detention upon him.
73 On the Minister's argument, the impugned reasoning of the Tribunal involved two steps: first, that, if the Tribunal decided not to revoke the visa cancellation decision, it was unlikely that the consequences for the applicant would include his removal to Afghanistan; and second that it was unlikely that the consequences for the applicant would include his indefinite detention. The Minister contends that in deciding that it was unlikely that the consequences for the applicant would include the prospect of his indefinite detention, the Tribunal did not limit its consideration only to the risk of his detention for a period while consideration was given to any application for a protection visa by the applicant and/or while the Minister gave consideration to the exercise of his non-compellable powers. The Minister submits that the Tribunal gave consideration to both ways that one can describe "indefinite detention", being:
(a) detention with no end, which the Minister called "true or prolonged detention" or "unending detention"; and
(b) detention that has no chronologically fixed end point and is of uncertain duration.
74 The Minister submits that the Tribunal decided that neither type of indefinite detention was a likely consequence of a decision not to revoke the cancellation of the applicant's visa, and that the Tribunal did not make the asserted error.
75 I do not accept the Minister's argument.
76 It is common ground between the parties that (at [224]-[226]) the Tribunal gave consideration to whether the consequences for the applicant of a decision not to revoke the visa cancellation decision included the prospect of the applicant's "indefinite detention" in the sense of "unending detention" or "detention with no end".
77 The Tribunal said (at [224]) that, to its mind, indefinite detention meant "detention with no end" as opposed to "detention of uncertain duration". Having so confined the meaning of indefinite detention, the Tribunal said that indefinite detention would not be a consequence of a decision not to revoke the visa cancellation decision, and gave the following four reasons for that (at [225]-[226]):
(a) First, as a "legal matter", indefinite detention was not a possibility because the effect of s 197C of the Act was that the applicant would be returned to Afghanistan notwithstanding that Australia owed non-refoulement obligations in respect of him (citing AQM18 v Minister for Immigration and Border Protection [2019] FCAF 27; 268 FCR 424 at [25] per Besanko, White and Thawley JJ and MNLR at [158] per SC Derrington J with Perram J agreeing) (at [225]);
(b) Second, the applicant had the capacity to apply for a protection visa and the grant of such would mean the applicant would be permitted to live in the community (at [226] referring back to [214]);
(c) Third, the Minister had and could choose to exercise his personal non-compellable powers, including to grant the applicant visa or to make a residence determination in the applicant's favour, which powers might well be exercised in implementation of the government policy against returning non-citizens to a country where doing so would be a breach of Australia's non-refoulement obligations (at [226]); and
(d) Fourth, that in AJL20 v Commonwealth of Australia [2020] FCA 1305 (AJL20 FC) Bromberg J held that it was unlawful to continue to detain a person where there had been a failure to remove the person from Australia as soon as reasonably practicable due to non-refoulement obligations being engaged (at [226]).
78 It is also common ground that (at [227]-[228]) the Tribunal gave consideration to whether the consequences for the applicant of a decision not to revoke the cancellation of his visa included the prospect of his being detained for the period taken while consideration was given to any protection visa application he made, and/or while the Minister considered the exercise of his non-compellable powers. That can be seen:
(a) at [227], where the Tribunal said that, if it did not revoke the visa cancellation decision, and if a protection visa application by the applicant was refused, then pending any decision by the Minister concerning the exercise of his non-compellable powers (should the Minister decide to consider their exercise) the applicant would be detained. The Tribunal further said that if the Minister was to refuse to exercise his non-compellable powers, or consider their exercise, the applicant would either be removed from Australia (which was unlikely because of the Australian government policy against the return of persons to a country in breach of Australia's international non-refoulement obligations) or released into the community, "potentially" in reliance on the approach adopted in AJL20 FC; and
(b) (at [228]), where the Tribunal said that while such detention would not be indefinite, the applicant "might well remain in detention for some time" which would have "adverse consequences" for the applicant. It described those adverse consequences as denying the applicant's freedom of movement; constraining his capacity to liaise with family and friends and his capacity to implement any plans he might have had for his future; and "adverse effect on his mental health due to the pressures associated with detention and to a limited "capacity to engage in mental health treatment due to reduced availability in custody and detention"" (citing the March 2021 report of Ms Ferrari).
79 The Minister's argument is that the Tribunal's statement that the applicant "might well remain in detention for some time" and its consideration of the adverse consequences for the applicant show that it gave meaningful consideration to whether the consequences for the applicant of a decision not to revoke the cancellation of his visa included the prospect that he would remain in detention beyond the period taken while any protection visa application he made is considered and/or while the Minister gave consideration to the exercise of his non-compellable powers. The Minister contends that the Tribunal accepted that the consequences for the applicant of a decision not to revoke the visa cancellation decision included the prospect of his remaining in detention for such a period, while rejecting the risk that he would face "detention with no end" for the reasons explained at [225]-[226].
80 I do not accept the Minister's argument. I accept the applicant's central contention that the Tribunal erred by failing to give meaningful consideration to whether, if it decided not to revoke the visa cancellation decision, the consequences for him included the prospect of his remaining in detention for an indefinite duration beyond the period taken while any protection visa application he made is considered and/or while the Minister gave consideration to the exercise of his non-compellable powers.
81 I commence by noting that, having regard to decision in AJL20 HC, it is plain that the Tribunal erred in its findings (at [226] and [227]) in reliance on the reasoning in AJL20 FC. By majority, the High Court overturned the decision in AJL20 FC and rejected the proposition that where an unlawful non-citizen in Australia has been lawfully detained under s 189 of the Act, the continued detention of the person in pursuit of a government policy not to return people to a country where doing so would be a breach of Australia's non-refoulement obligations does not render that continued detention unlawful. Relatedly, the majority (at [71]) rejected the proposition that a person whose continued detention is in pursuit of such a policy could be released into the community, stating that "[b]ecause the evident intention of the Act is that an unlawful non-citizen may not, in any circumstances, be at liberty in the Australian community, no question of release on habeas can arise." This error was, however, given little emphasis by the applicant.
82 In my view, the Tribunal's error began with it confining the meaning of "indefinite detention" to "detention with no end" and excluding from the meaning "detention of uncertain duration". I consider the Tribunal's meaning gave an artificially narrow meaning to the expression which led the Tribunal into error.
83 In MNLR (at [93]-[94]) Wigney J said, and I agree:
It has also been said, in this context, that the effect of s 197C is that indefinite detention is "not a possibility" (AQM18 at [25]) or "no longer arises": Uolilo [v Minister for Home Affairs [2020] FCA 1135] at [91]. Those statements are undoubtedly correct if "indefinite" in this context is taken to mean that the period of detention may not, or will not, ever come to an end. That is because the detention will come to an end when the unlawful non-citizen is either granted a visa (in which case they are no longer an unlawful non-citizen) or they are removed from Australia pursuant to s 198 of the Act. Those statements are, however, somewhat questionable if "indefinite" is taken to mean that the actual period in which the non-citizen may or will remain in detention is unable to be defined or determined with any precision.
There could be little doubt that the length of time that an unlawful non-citizen may spend in immigration detention may in some circumstances be very uncertain and very lengthy….
84 Those remarks were cited with approval by the Full Court in WKMZ (at [104]). In that case Kenny and Mortimer JJ undertook a comprehensive review of the authorities in relation to the interaction between s 197C and Executive policy as reflected in Direction 79 in the context of the refusal or cancellation of visas.
85 I agree with their Honours' conclusion (at [107]), that following the final conclusion of any visa refusal or cancellation process, ss 197C and 198 of the Act do not preclude detention of a person for a period of time so that the Executive can genuinely consider alternative possibilities for a person to remain in Australia (or other options such as admission to a safe third country). As their Honours said, that is so notwithstanding that the Court has consistently held that the insertion of s 197C into the Act clarified Parliament's intention that a person should not be detained beyond the time required for any such genuine consideration, and should instead be removed from Australia, even if removal is to a country where the person faces a serious risk of harm in breach of Australia's non-refoulement obligations.
86 Their Honours said (at [108]) that this appeared to be why some of the authorities went as far as to contend that there is no longer any basis in the legislative scheme of the Act for the "indefinite detention" of an individual. Their Honours disagreed with that conclusion, as follows:
As we explain, if that is the logical consequence of some of the reasoning, in our respectful opinion the situation may not be quite as clear-cut as might be thought, and indeed this approach is not consistent with the authorities set out at [94] above. Rather, much may depend on the particular difficulties in removing a particular individual, as well as what is meant by "indefinite" detention. Apart from Wigney J's discussion in MNLR… some of the discussion in the other authorities may indicate that the term "indefinite" was there understood as something akin to "permanent". As we explain below, we do not see the concept as that absolute.
87 I also agree with following remarks of Kenny and Mortimer JJ (at [122]-[123], [132]-[133], [136]):
[122] After the introduction of s 197C (which occurred after Al Kateb, Plaintiff M47/2012 and Plaintiff M76), whether indefinite detention remains a possible legal consequence of a non-revocation decision may also depend on what precisely is meant by the term "indefinite detention". In our respectful opinion, while on one reading the presence of s 197C in the statutory scheme suggests a prolonged period of detention should not occur after all challenges to visa decision making have been exhausted, much depends on the interaction between executive policy as evidenced by Direction 79 (and perhaps by other policies as well), and the operation of the Migration Act in the case of a particular individual, as well as the factual circumstances of the individual concerned. That includes factual matters such as the attitude of what is said to be the receiving country for a person. These matters may or may not concern questions of non-refoulement. They may concern other matters such as acceptance of a person's asserted nationality. There may be a myriad of factual reasons why it is not objectively "reasonably practicable" to remove a person at a particular point in time. All these are matters in the first instance for executive policy, although there may come a time where they become matters for a Court, as Al Kateb and like cases, and AJL20 demonstrate.
[123] If the interaction between executive policy and the giving of a direction to an officer for the purposes of s 198 of the Act in fact results in an individual being held in immigration detention for a period where the end point of the detention cannot be reasonably predicted or ascertained, then by reason of the combined effect of ss 189 and 196 (and subject to the arguments in AJL20) this extended period of detention remains a legal consequence of the cancellation or refusal decision, whether or not the label "indefinite" is attached to it, as Wigney J also recognised in MNLR at [93]-[94]. The continued deprivation of a person's liberty by reason of the operation of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our own part we see no difficulty in attaching the adjective "indefinite" to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.
…
[132]…whether the reference to such a person facing "indefinite detention" is legally problematic depends on what is meant by the adjective "indefinite". If, when applied to executive detention, the adjective means detention without a chronologically fixed endpoint, the existence of the executive policy set out in para 14.1(2) makes this a correct statement. Having failed in all challenges to a protection visa refusal or cancellation, to avoid refoulement affected individuals will then depend on the implementation of the executive policy set out in para 14.1(2) through the favourable exercise of one of the non-compellable discretions in the Act, or other avenues such as a successful third country resettlement process. Otherwise, their detention may continue, unless and until the executive abandons its policy of adherence to Australia's international obligations in respect of that particular individual, or is compelled by a Court to remove a person (one of the options canvassed in AJL20). The period of a person's loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end. It may be inferred that any decision by the executive to abandon its adherence to Australia's international obligations would, as White J said in AQM18 [at [129]], be a serious step and not a decision taken quickly….
[133] As the facts of AJL20 demonstrate, in reality these administrative steps and inquiries may take a very long time, and not have any clear outcome, despite the presence of s 197C. In the case of the individual who is AJL20, his detention continued notwithstanding an express judicial determination in 2017 about the effect of s 197C. In our opinion such circumstances fit comfortably within a general concept of executive detention that can be characterised as "indefinite"
…
[136] No party has suggested that it is unlawful per se for the executive to develop and implement an executive policy concerning non-refoulement that reflects Australia's international obligations, indeed it would be remarkable if that were to be suggested. As all the authorities have recognised, there are a number of executive options available for genuine consideration after a person has exhausted her or his options to challenge a visa refusal or cancellation, although there are some that could not rationally be said to be likely to result in a favourable outcome, as Rares J pointed out in FRH18. While those options are being genuinely, promptly and reasonably considered and pursued, a person may nevertheless suffer continued loss of liberty with no chronologically fixed endpoint, and no endpoint ascertainable by the individual concerned, so that her or his detention is properly described as "indefinite". A decision maker in any revocation decision under Part C of Direction 79 should consider this as a prospect, whether or not the visa under consideration is a protection visa. To the extent the Minister contended otherwise, his submissions should be rejected. If a decision maker such as the Tribunal decides to revoke a visa cancellation, it is the Tribunal's decision which restores a person's freedom. Likewise, if a Tribunal decides not to revoke a visa cancellation, it is that decision which perpetuates the person's detention. Decision makers in the position of the Tribunal are not entitled to ignore the continued deprivation of liberty of a person in the position of the appellant, while the executive pursues its policies to avoid refoulement. Further (and separately), if these matters are put to the decision maker as a representation, the decision maker is obliged to consider them because of the terms of s 501CA(3): Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [38]-[41], followed in GBV18 v Minister for Home Affairs [2020] FCAFC 17; 274 FCR 202 at [30].
(Emphasis added.)
88 Their Honours held that the legal and practical consequences of the decision not to revoke the visa cancellation decision in that case included the prospect that the appellant would remain in detention while the Executive pursued the government policy against returning him to a country in breach of Australia's non-refoulement obligations. And as their Honours noted (at [132]) it is appropriate to infer that any decision by the Executive to abandon its adherence to Australia's non-refoulement obligations under international treaties would "be a serious step and not a decision taken quickly" (citing White J in AQM18 at [129]).
89 The same can be said in the present case. In my view, if the Tribunal decided not to revoke the cancellation of the applicant's visa, the legal and practical consequences for him included the prospect that he would remain in detention beyond the period taken while consideration is given to any protection visa application he made and/or while the Minister considered the exercise of his non-compellable powers.
90 I say that, first, because if the applicant is not granted a protection visa and/or the Minister does not exercise his non-compellable powers in the applicant's favour, the Australian government policy against returning persons to a country in breach of Australia's non-refoulement obligations means that the Executive would be on the horns of a dilemma. The Tribunal decided that the applicant's offending conduct fell at the "upper end of the spectrum of very serious offending" (at [59] and [260(e)]); his offending was "very serious, frequent, repetitive and sustained" (at [121]); it was "not unlikely" that if he were released into the community he would commit further offences or engage in other serious conduct (at [79]); and the protection of the Australian community from criminal or other serious conduct "weighs heavily" against being satisfied that it is appropriate to reinstate his visa (at [124]). The Tribunal also decided that returning the applicant to Afghanistan would mean he faced a risk of significant and irreparable harm, and that doing so would be contrary to Australia's non-refoulement obligations. In such circumstances, what is the Executive to do?
91 Experience shows that before embracing either the (apparently unpalatable) course of releasing the applicant into the community or the alternative unpalatable course of returning him to Afghanistan, the Executive would turn to consider other options to deal with the applicant, including by considering having him resettled in a safe third country. It also shows that investigating and procuring such outcomes often takes significant time. If the various administrative inquiries and steps do not produce an outcome which the Executive considers acceptable, the applicant will face the prospect of continued detention unless and until the Executive abandons its policy of adherence to Australia's international non-refoulement obligations. As I have said, it is appropriate to infer that any decision to abandon such a long-standing policy would not be quickly taken, and there is no evidence to show that the Executive is considering doing so. As the Tribunal found (at [222]), abandoning its adherence to those obligations would reflect a failure by Australia to respect obligations it owes to other nations, which could adversely affect Australia's "reputation and standing in the global community" or its "reputational interest", citing Ali v Minister for Home Affairs [2020] FCAFC 109 at [91] and Hernandez v Minister for Home Affairs [2020] FCA 415 at [63].
92 The reality is that the consequences for the applicant of a decision not to revoke the cancellation of his visa included the prospect of his prolonged detention beyond the period taken while consideration is given to any protection visa application he may make and/or while the Minister considers the exercise of his non-compellable powers. It is appropriate to describe such detention as "indefinite detention" because its duration is uncertain and depends upon the completion of a set of administrative and Executive steps and inquiries, and because the applicant would have no way of ascertaining when his detention might end. On a fair reading of the Tribunal's reasons, without an eye keenly attuned to error, the Tribunal did not consider the prospect that he would remain in detention for such a period, nor the effect of such indefinite detention on the applicant.
93 Second, and relatedly, the Tribunal's consideration failed to confront and engage with the human consequences for the applicant if it decided not to revoke the visa cancellation decision.
94 In Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at [3], Allsop CJ (with Markovic and Steward JJ agreeing), explained, and I respectfully agree:
…it can be said cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
(Citations omitted, emphasis added.)
95 In my view, on a fair reading of the Tribunal's reasons, the Tribunal did not confront or engage with the effect on the applicant of prolonged further detention beyond the period taken up by consideration of any protection visa application he made and/or for the Ministers consideration of the exercise of his non-compellable powers. The Tribunal said only that the applicant "might well remain in detention for some time" and that such detention would have adverse consequences including "an adverse effect on the applicant's mental health due to the pressures associated with detention and to a limited "capacity to engage in mental health treatment due to reduced availability in custody and detention". It must be kept in mind that the Tribunal accepted that the applicant suffers from PTSD, depression, anxiety, stress and a persistent depressive disorder and from daily suicidal ideation. The Tribunal's reference to the possible adverse effect on the applicant's mental health did not come near to recognising and engaging with the prospect that such prolonged further detention might cause him extreme hardship, have devastating consequences, or perhaps even prove fatal if his daily suicidal ideation worsened as a result. In my view, the Tribunal failed to honestly confront the prospect that the applicant would face such consequences.
96 Turning then to the issue of materiality, in my view, the gravity of the impact of detention on the applicant for the period taken while consideration is given to any protection visa application he makes and/or while the Minister considers the exercise of his non-compellable powers, is plainly very different to the impact of detention for a prolonged further time beyond that period, with no fixed end point, and where the applicant would have no way of ascertaining when it might end. Had the Tribunal considered the prospect that such indefinite detention might cause the applicant extreme hardship or have devastating consequences, including the risk that he might commit suicide, which is likely to have weighed more heavily in favour of revocation of the visa cancellation decision. I am persuaded that there is a realistic possibility that it could have resulted in a different outcome. The Tribunal's error was 'material', and therefore jurisdictional: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]-[46] (Bell, Gageler and Keane JJ) and in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [29]-[31] (Kiefel CJ, Gageler and Keane JJ).
97 Accordingly, I have made orders to allow the application on the basis of the ground under particular (c).