TCWY v Minister for Immigration and Border Protection

The decision of the AAT 17 The AAT found as follows. I reproduce its language. 18 It was satisfied that the applicant was born in Iraq, that he and his family fled when he was a toddler to Iran, and that he knew no country other than Iran and Australia. The AAT found the applicant came to Australia in 1999 as "an unlawful boat person" with his father. After a short time in Australia his father decided to return to Iran. 19 In terms of whether the applicant was a citizen of Iran or not, the AAT accepted that his mother is Iranian, his younger sister is Iranian, and the rest of the family are Iraqis. The AAT said that it would seem that the applicant's father is certainly a citizen of Iraq. The applicant's evidence indicated "the family is well; there is evidence that they are surviving; there is evidence that his father has been back there for about 16 years and has managed to buy and sell a property, regardless of whether he was entitled to or not…". It also appeared that they were settled and that all of the family remained in Iran. 20 The AAT said that it appeared from the evidence that it was possible to get by in Iran and live a reasonable life, albeit not to the same standard as in Australia. 21 The AAT said that were some issues in relation to whether in fact the applicant would be able to go back to Iran and whether indeed he was quite correct in saying he would end up stateless. The AAT also accepted that the Department indicated that the applicant was, in their view, an Iranian citizen. The AAT said the Department indicated that they would do their best to have him go back to Iran, but accepted the possibility that this may not happen because the Iranian government simply may not play ball. 22 At [115] and following of its reasons for decision, the AAT considered the international non-refoulement obligations. 23 The AAT said it was certainly not necessarily the case that if the applicant went back to Iran he would be tortured or shot or anything like that, although it may not be a terribly easy life. The AAT said that the applicant had family in Iran, but still it would expect that if he were to be sent back to Iran - if the Iranians were to take him - that would not be an ideal outcome for him, although the AAT accepted the respondent's views in relation to the international non-refoulement obligations. 24 At the end of the day, the AAT said, it suspected the applicant may well be able to go back to Iran, should the Department of Immigration and Border Protection make the arrangements. The AAT said it was quite clear that he would be able to go back to Iraq, but that seemed to be the least preferred option than going back to his family in Iran. 25 The AAT said it would appear that some weight needed to be given to the applicant's submission that he may well be stateless. This was because despite the respondent's cautious optimism that the Iranians may well take him, that may not be the case. That was something outside the AAT's control, it said, and that was something for the Department to work out. 26 The AAT said that if 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 the AAT noted the applicant's status now appeared to be, as far as the Department was concerned, that of an Iranian. 27 The AAT said it was quite unlikely that the applicant would remain in detention indefinitely. It would not be a life sentence; some arrangements would be made. What they were was 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. 28 At the end of the day, the AAT said, whilst these were serious offences, they were not at the highest end of the scale for similar types of crimes, and that would weigh heavily, no doubt, on the Department, were the applicant not to be able to be repatriated.

The statutory provisions 29 The provisions on which the applicant relied were as follows: 197C Australia's non‑refoulement obligations irrelevant to removal of unlawful non‑citizens under section 198 (1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen. (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. 30 So far as relevant, s 198 was as follows: 198 Removal from Australia of unlawful non‑citizens … (2A) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if: (a) the non‑citizen is covered by subparagraph 193(1)(a)(iv); and (b) since the Minister's decision (the original decision) referred to in subparagraph 193(1)(a)(iv), the non‑citizen has not made a valid application for a substantive visa that can be granted when the non‑citizen is in the migration zone; and (c) in a case where the non‑citizen has been invited, in accordance with section 501C or 501CA, to make representations to the Minister about revocation of the original decision - either: (i) the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or (ii) the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the original decision. Note: The only visa that the non‑citizen could apply for is a protection visa or a visa specified in regulations under section 501E. …

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.

Consideration 55 Turning first to ground 2, I do not regard the contention that Direction No. 65 is invalid as well-founded since the contention depends on a conclusion that the Direction is exhaustive, which it is not. The relevant provision of Direction No. 65 is para 14 which expressly states that "other considerations must be taken into account where relevant. These considerations include (but are not limited to): a) International non-refoulement obligations". 56 It follows, in my view, that para 14 of Direction No. 65 does not purport to prevent the decision-maker from taking into account, where relevant, s 197C and s 198. I do not concern myself presently with cases where a non-refoulement obligation exists. 57 It is also to be recalled that s 499(2) of the Migration Act provides that s 499(1), the power to give written directions, does not empower the Minister to give directions that would be inconsistent with the Act or the regulations. 58 I accept the submission on behalf of the Minister that, 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. 59 In my opinion, the appeal turns on what the AAT decided in this case, against the factual background relevant to the applicant before the AAT. 60 It was common ground that the ITOA dated 23 November 2016 determined that Australia's non-refoulement obligations were not engaged. 61 At [89], the AAT set out the relevant parts of para 14 of the Direction, see [55] above. 62 Then at [90], the AAT referred to one of the considerations relevant to the applicant's case as being the international non-refoulement obligations. 63 At [115], the AAT turned to consider the international non-refoulement obligations. 64 At [116], the AAT accepted the respondent's views in relation to the international non-refoulement obligations. 65 In my view therefore the Direction in this instance operated to direct the AAT's attention to non-refoulement obligations, but the AAT accepted that there were none. Paragraph 14.1 of Direction No. 65 was not applicable. 66 Thus the obligation in s 197C operated, together with s 198, to remove the applicant as soon as practicable. In my opinion, the AAT's considerations of how that might work out were relevant to the question of practicability, as referred to in s 197C(2). There would be no issue of indefinite detention. I return below to what the AAT said at [120]. 67 As to DMH16, in that case the Minister found that Australia did have non-refoulement obligations in respect of the applicant. The Minister's essential reasoning under consideration in that case was as follows: 42. I accept that the department has found that Australia has non-refoulement obligations towards [the applicant]. 43. The existence of a non-refoulement obligation does not preclude refusal of a non-citizen's visa application because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists. . . . 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 s 196 of the Migration Act. I acknowledge that this is likely to have adverse impacts on his psychological and physical health. 45. I accept that indefinite detention is likely to have an ongoing adverse effect on [the applicant]. 46. I am aware of and have had regard to the existence of a non-refoulement obligation in this case and I have carefully weighed this factor against the seriousness of [the applicant's] criminal offending in the making of my decision whether to refuse [the applicant's] visa application. (Emphasis added.) 68 It was in that context that North ACJ said, at [26], that the Minister's reasons disclosed that he understood that if the protection visa application was refused, the applicant could be detained in Australia for an indefinite period. In fact, North ACJ said, by the operation of s 197C, if the protection visa was refused the applicant would either be removed to Syria immediately, or, if the Minister decided to consider alternative management options, be detained for a definite period, namely, until the Minster considered whether to exercise the power under s 195A. Then if the Minister refused to exercise the power, the applicant would be removed to Syria. 69 Thereafter, at [30], North ACJ said that, at the time of the refusal decision, the consequence of the decision was not a short period of detention, but rather the removal of the applicant to Syria. Had the Minister properly understood the consequence of the refusal of the protection visa at the time he made the decision 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. 70 This reasoning does not apply in the present case where it has been found that Australia does not have non-refoulement obligations in respect of the applicant. Thus the possibility that the AAT would have acted to avoid the consequence that the applicant would be returned to Iran in contravention of Australia's non-refoulement obligations in respect of the applicant does not arise. 71 The applicant's criticism of the AAT's reasons at [120] takes that reasoning out of context: the AAT was there considering the hypothesis which it had framed at [119], that is the possibility that Iran may not take the applicant and he may, in the future, turn out to be stateless. In my opinion s 197C is not directed at possibilities of that nature. 72 The AAT did not proceed on the basis that the applicant would not be removed from Australia. I do not accept the submissions on behalf of the applicant that the AAT was required explicitly to state that its decision to affirm the decision under review would have the consequence that the applicant would be removed from Australia or that the AAT was required specifically to refer to s 197C. 73 In my opinion, the applicant's grounds of appeal fail.

Conclusion and orders 74 The application is dismissed, with costs. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.