An alternative argument about the Tribunal's reasoning
154 There remains a question whether the Tribunal really grappled with the prospect that the appellant could be detained for an indefinite period. That was the most probable consequence of its own findings, especially the impugned finding that there was only a "low risk" that Australia would breach its non-refoulement obligations, together with the Tribunal's view that the appellant would not be granted any other visa. The appellant's detention for a "prolonged" period was actively considered by the Tribunal at [296], but in our respectful opinion the Tribunal there only contemplated a protection visa application and the consideration and exercise of any personal Ministerial discretions. The Tribunal had already found, for itself, the appellant was unlikely to be granted a protection visa. A finding well open to it, in accordance with Rares J's reasoning in FRH18. The subsequent exercise of any personal discretion to grant the appellant another kind of visa suffered from the same improbabilities and incompatibilities.
155 Nevertheless, what the Tribunal did not really engage with was - what then? If Australia was to adhere to its executive policy as pronounced, and seek to avoid the consequence otherwise imposed by s 197C, there was no evidence before the Tribunal about what might then happen to the appellant. These were not matters for inference from the statutory scheme of the Act. These were all matters extraneous to the Act - such as third country resettlement, or even whether the appellant would be accepted by South Sudan. The Tribunal could not speculate on these matters without evidence. It was these matters which might well consign the appellant to indefinite detention. They were matters the Tribunal did not grapple with.
156 Counsel for the appellant resisted this as an arguable error when it was put to him:
KENNY J: In due course, are you going to also take into account the detention provisions, section 189 and section 190? My reason for saying that is that it seems to me one of the more likely outcomes for the appellant was that, if he were to fail in his protection visa applications and other favourable exercises of discretion, he would be held in detention perhaps for a very long time. And it might be said in your favour that what the tribunal should have considered was the effect of indefinite detention on him and whether it wished to make a decision which had that possibly probable consequence.
MR GUO: Yes. I can see why your Honours suggest that to me, and to be candid, it was not how the case was put below. But perhaps the more significant difficulty with that argument with me or with the appellant ever putting that argument, is that we know that indefinite detention is not permissible. And indeed, the direction at paragraph 14.16, which is not so much the focus of this appeal but 14.16 - in fact, can I take your Honour to that just to be clear on that point. So this is item 14 and your Honour will see in subparagraph 6,
In these circumstances,
That is in circumstances where there's going to be consideration of non-revocation where protection claims or non-refoulement claims rest,
The decision-maker should seek an assessment of treaty obligations
And then there's the next sentence, the final sentence is the important one,
Given that Australia will not return a person to the country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operations of sections 189
Being one of the two your Honour put to me
Means that if the protection visa remains cancelled, they will face the prospect of indefinite detention.
Now, the - in BDQ19, Justice Kerr said that that statement is wrong as a matter of law, because indefinite detention is not permissible. I think it was also in DMH16 that Justice North said something similar. We also know that from first principles, following on from ... and so forth
157 And a little later, when developing why, in the context of the findings in AJL20, the "removal purpose" had been exhausted and s 197C was to be given its operation:
And the closest of the three potential reasons that could have been applicable is holding me for the purposes of removal. Now, the removal duty has to be carried out as soon as reasonably practicable. We know that from the terms of 198. But in circumstances where you, the Commonwealth, are not returning me and not returning me because you say you owe me non-refoulement obligations, you can't square that with section 197C, you are not carrying out for removal as soon as reasonably practicable, because section 197C says it is irrelevant to the removal purpose that you owe non-refoulement obligations, therefore you are holding me unlawfully. And Justice Bromberg accepted that and found that there was liability for false imprisonment.
158 Counsel repeated this position when pressed again about it a little later in the hearing:
KENNY J: I understand what you're saying, but it does trouble me, though, because on one view, particularly having regard to clause 14.6 - 14.16, one may well say that the more likely outcome in real terms - practical terms - whether or not it turns out to be lawful, but from the Commonwealth's point of view, at the time of the tribunal decision, the more likely outcome for this appellant, if he failed in his protection visa application and if he failed to persuade the Minister to exercise his discretion favourably to him from one of the nominated provisions was that he would be held in protection until the Commonwealth formed the view that it was reasonably practicable to remove him, either to his country of origin or to some unnamed third country who might agree to receive him, and that, it would appear, could take a very long time to settle.
You might well say that a tribunal faced with that practical reality should have faced it, and said, well, notwithstanding all that might be said because of the view I take about the Australian community's expectation and protection and the like, I'm - as part of my decision, I face up to the fact that this particular person will be held in immigration detention for an indefinite period.
MR GUO: Yes. Can I say two things about that, your Honour. One really is to repeat the point I've already made, which is I say DMH16 suggests that claim could not be made. The second empirical - well, I shouldn't describe it as empirical. The second point is this, and with respect it is extraordinary. AQM18 v Minister for Immigration, medium neutral (2019) FCAFC 27 - that's a case which concerns a Minister - the Minister's personal decision to set aside a favourable tribunal's decision and use his personal power in section 501A to refuse the grant of a protection visa. So, yes, that's a difference, but if your Honour would bear with me. What happened in that case was that the - was that AQM18 said that the Minister misunderstood the effect of section 197C and section when he said in his reasons for his decision that Australia - well, that there was the potential for using section 195A to avoid breaching non-refoulement obligations. That was the argument run at first instance.
Moshinsky J upheld that argument. The Minister cross-appealed and succeeded on the cross-appeal, and Besanko and Thawley JJ said, in short, no, the Minister did not misunderstand: he was well aware that despite the reference to section 195A - he was well aware that 197C meant that removal was to occur and that refoulement was to occur. What I - - -
MORTIMER J: Yes. I was going to ask you about this case. So do you say that that's what their Honours upheld as the correct construction of the relationship between those provisions?
MR GUO: Yes. And why I say it's extraordinary is - and I can't do this in any other way - why I say that is extraordinary is that is the holding, I say, of Besanko and Thawley JJ, and yet - and we know this because proceedings have been instituted late last year. Some 18 months on, the Minister - the Commonwealth still has not removed AQM18, citing the existence of non-refoulement obligations, even though a majority of the Full Court said the Minister was well aware that non-refoulement obligations could not stand in the way of removal.
So the court has said one thing. The Minister, with respect, continues to implement something the opposite of what the court has said, and so we're in this truly remarkable position where the issue still remains to be resolved once and for all. What that all means, if I could bring it back to your Honour, Justice Kenny's question, is there were multiple minefields for a submission to have been raised in the way your Honour suggests - suggested to me. The legal correctness of that submission - me having heard everything that your Honour has put to me, the legal correctness of that submission, in my submission, is still doubtful.
159 In this passage, we understood counsel to be relating from his own experience the fact that the individual who is called AQM18 remains in Australia 18 months after the Full Court's decision, despite the majority in that case finding no error in the Minister's approach, which in substance reasoned that the individual would be removed from Australia because of s 197C. That is why, as we understand it, counsel described the position as "remarkable".
160 As we have sought to explain, if ss 198 and 197C are read together, the point at which the duty imposed on an individual officer by s 198(2A) arises may be postponed (expressly or implicitly) for a considerable time if the executive seeks to adhere to its policy of non-refoulement. The deprivation of liberty may then well become "indefinite". Whether it becomes unlawful is a matter before the High Court in AJL20, and need not be addressed on this appeal.
161 The Tribunal in this case did not consider what is in substance the mirror proposition to its finding that there was a low risk the appellant would be removed in contravention of Australia's international obligations. The mirror was indefinite detention.
162 The appellant's counsel expressly disclaimed reliance on any such argument, noting it had not been put to the primary judge. No leave was sought to amend the grounds of appeal. Therefore there is no occasion to consider the potential consequences of the Tribunal's failure to grapple with the prospect of indefinite detention for the appellant. The Minister contended the Tribunal was not required to consider this as a prospect, because it is not a legal consequence of the exercise of power under s 501CA(4). We have rejected that submission at a general level for reasons explained above, but the fact remains this argument is not pressed by the appellant on the appeal.