The submissions of the applicant and of the first respondent
31 The applicant submitted that an ITOA was carried out to determine whether Australia had non-refoulement obligations to the applicant. On 23 November 2016 the applicant was found not to engage Australia's non-refoulement obligations. The applicant was assessed against Iran as his country of nationality and not Iraq, which was identified as his country of birth.
32 The relevant authority relied upon by the applicant in support of the ground in his notice of appeal was DMH16 v Minister for Immigration and Border Protection [2017] FCA 448. In that decision, North ACJ observed that the Minister held an incorrect understanding of the operation of s 197C of the Migration Act in conjunction with an officer's duty to remove as soon as reasonably practicable an unlawful citizen under s 198 of the Migration Act. His Honour was of the view that the Minister based his decision not to grant a protection visa on an erroneous understanding that the person the subject of the decision would consequently remain in detention for an indefinite period (at [26]).
33 The applicant submitted that in refusing to revoke the cancellation, the AAT (and the delegate) relied on Direction No. 65, issued by the Minister under s 499 of the Migration Act.
34 Direction No. 65 set out relevant considerations to be taken into account as well as primary considerations. Paragraph 10.1(1)-(6) of Direction No. 65 dealt with "International non-refoulement obligations". The same paragraphs appeared again at 12.1 and 14.1. Relevantly, Direction No. 65 stated at paras 10.1(2) and 10.1(6) as follows:
10.1(2) The existence of a non-refoulement obligation does not preclude 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.
10.1(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 noncitizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should continue to hold a visa. 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 were cancelled, they would face the prospect of indefinite immigration detention.
35 The applicant submitted that nowhere in Direction No. 65 was there any reference to s 198 and s 197C of the Migration Act and their operation once the revocation of the mandatory cancellation of the protection visa had occurred. Section 198 required removal from Australia of an unlawful non-citizen and s 197C stated that, for the purposes of s 198, it was "irrelevant whether Australia has non-refoulement obligations in respect of the non-citizen". The operation of these two provisions was not consistent with Direction No. 65 and the statements therein at paragraphs 10.1, 12.1 and 14.1. Direction No. 65, with which the decision-maker was required to comply, did not reflect the applicable law and was therefore an unlawful Direction.
36 Even though Direction No. 65 commenced on 23 December 2014, which was after the commencement of s 197C on 16 December 2014, Direction No. 65 did not provide any direction to give consideration to the legal consequences of s 197C. Indeed, the applicant submitted, the statements contained therein at 10.1, 12.1 and 14.1 were inconsistent with the applicable law.
37 The applicant submitted that the jurisdictional error was contained in [119]-[120] of the AAT decision where the decision-maker stated:
It appears to me from discussions with the respondent during the course of the hearing that if that were to be the case and the applicant were to be stateless and could not be sent back to Iran, then the Department would have to look at other options, and those other options might well include not keeping him in detention indefinitely. Another option may well be Iraq but I note his status now appears to be, as far as the Department is concerned, that of an Iranian.
It is quite unlikely, from what the Department's representative said, that the applicant would remain in detention indefinitely. It would not be a life sentence; some arrangements would be made. What they are is a bit unclear, but it would appear not inconceivable that if he were not to go back to Iran, he would be allowed out into the community at some stage.
38 The applicant submitted that these statements by the AAT reflected the contents of Direction No. 65 and amounted to an erroneous understanding of the applicable law and the consequences of the exercise of the AAT's power. No consideration was given by the AAT to the application of, and legal consequences of, s 197C.
39 This failure by the AAT could be characterised as a failure to take into account a consideration, which the decision-maker was bound to take into account in making the decision in respect of the application for revocation, because it was a direct legal consequence of the cancellation of the protection visa. Although the factors to be taken into account were not expressly stated by the legislation, they must be determined by implication from the subject matter, scope and purpose of the Act (Minister for Aboriginal Affairs v PekoWallsend Ltd [1986] HCA 40; 162 CLR 24 per Mason J at [15]).
40 Direction No. 65 purported to set out all of the relevant considerations that a decision-maker must take into account in determining whether to revoke a cancellation of a visa. Direction No. 65 misstated the applicable law in relation to the non-refoulement of a non-citizen and misdirected the AAT in the exercise of its task. Failure by the AAT to take into account a relevant consideration of this kind was a jurisdictional error.
41 The applicant submitted that the AAT also fell into jurisdictional error because it misunderstood the legal consequences of the exercise of its power, and misapplied the law. "Indefinite detention" was an erroneous reference to the situation as it would have existed before the introduction of s 197C on 16 December 2014 and a failure to consider the operation of s 197C in conjunction with an officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under s 198.
42 The ITOA dated 23 November 2016 determined that Australia's non-refoulement obligations were not engaged and as a result the applicant would not be referred to the Minister for consideration under the Minister's discretionary powers. From 23 November 2016 the applicant no longer had anything before the Department.
43 The only legal consequence of the AAT's decision to affirm the delegate's decision on 9 June 2017 was the applicant's immediate return to Iraq or Iran. Therefore, on 9 June 2017, the consequence of the decision to affirm the delegate's decision to cancel the applicant's protection visa was not as stated by the AAT at [120] that "It is quite unlikely, from what the Department's representative said, that the applicant would remain in detention indefinitely. It would not be a life sentence; some arrangements would be made", but rather the immediate removal of the applicant to Iran. Had the AAT properly understood the consequence of affirming the decision to cancel the protection visa at the time it made the decision there was a possibility, as North ACJ observed in DMH16 that it would have not cancelled the protection visa in order to avoid the consequence that the applicant would be removed to Iran.
44 The first respondent, the Minister, submitted that, at [89], the AAT set out the text of para 14 of the Direction - which referred to "Other considerations - revocation requests" (by contrast to those described as "primary considerations"). Paragraph 14(1)(a) was "international non-refoulement obligations", which was elaborated upon in para 14(1) generally.
45 The Minister submitted that the AAT accepted at [101] that the Department indicated that "the applicant is, in their view an Iranian citizen" and the Department "will do their best to have him go back to Iran but accepts the possibility that this may not happen …".
46 In the context of dealing with international non-refoulement obligations, the AAT referred to it not being a "terribly easy life" for the applicant if he were to go back to Iran at [115], but concluded, at [116] that it "accept[s] the respondent's views in relation to the international non-refoulement obligations".
47 The Minister submitted that after making its findings, the AAT commented on the possibility that the applicant may not be able to be returned to Iran and noted that "that is something outside the Tribunal's control, and that is something for the Department to work out", and at [120] it also opined that "it is quite unlikely … that the applicant would remain in detention indefinitely".
48 As to the contention, in ground 2, that by not referring to ss 198 and 197C as matters to which a decision-maker is to have regard, Ministerial Direction No. 65 "does not reflect the applicable law and is therefore an unlawful direction", the Minister submitted that the considerations to be taken into account by a decision-maker and the Tribunal on review were not exhausted by the terms of the Direction. A fortiori, this must be the case where the impugned "consideration" said to have been overlooked was not a statement of policy directed at guiding the exercise of a statutory discretion, but a provision of the Migration Act itself - here, s 197C. Thus the Direction could not be said to be invalid by virtue of not expressly referring to a particular provision of the Act. Independently of the Direction, if the legislative scheme required a decision-maker to have regard to s 197C, then a failure to consider that provision would constitute a relevant legal error.
49 As to the applicant's primary contention, that a failure by the AAT to take into consideration s 197C of the Act was a failure to take account of a mandatory relevant consideration, the Minister submitted as follows.
50 First, the relevant part of the Direction in this case, Part C, which applied to revocation requests, contained, in paragraph 14(1), a requirement that an "other consideration" that must be taken into account, where relevant, is non-refoulement obligations.
51 There appeared to be no dispute that the AAT took into account, as it was required to do, the existence or otherwise of non-refoulement obligations: see [89]-[90], [115]-[116]. At [116], the AAT affirmed the respondent's decision to the effect that no non-refoulement obligations were owed to the applicant, which in turn was a finding made by the ITOA.
52 Secondly, the Minister submitted, the purport of s 197C was that the removal power contained in s 198 was to be carried out "irrespective of whether there has been an assessment of non-refoulement obligations" and it was "irrelevant whether Australia has non-refoulement obligations". It followed that the section became relevant in cases where it had been found that there were non-refoulement obligations owed to the applicant. In those circumstances, absent s 197C, such obligations would otherwise be considered relevant in a case where removal was being considered. Here, the AAT held there were no non-refoulement obligations owed to the applicant.
53 Thirdly, the Minister submitted the applicant's reliance on the decision in DMH16 was misconceived because that case was entirely distinguishable from the one before the Court. The critical factual distinction was that in DMH16, the applicant was found to have been owed non-refoulement obligations: see DMH16 at [8] and see also [12], where the Tribunal's findings on that issue were set out. Thus the Court's consideration in that case was premised on a factual substratum that such obligations were owed to the applicant. By contrast in the present case, the Tribunal accepted and affirmed (at [116]) the delegate's finding (based in turn on the ITOA) that no such obligations were owed to the applicant.
54 As to the applicant's submission that, had the Tribunal understood the effect of s 197C, "there is a possibility that it would not have cancelled the protection visa in order to avoid the consequences that the applicant would be removed to Iran", the Minister submitted that what was said in DMH16 at [30] was that had the Minister in that case "properly understood the consequence of the refusal of the protection visa … there is a possibility that he would have granted the protection visa in order to avoid the consequence that the applicant would be returned to Syria in contravention of Australia's non-refoulement obligations in respect of the applicant" (emphasis added). In the present case, the Minister submitted, there were no such obligations to be considered.