Federal Court. In the context of s 501CA(4), was the AAT bound by the sentencing remarks of the District Court? Does the decision of the Full Court in WKMZ remain authoritative despite the High Court decision in AJL20?
Cll 14.1(2) and (6) of Direction 79 read as follows (emphasis added):
(2) The existence of a non-refoulement obligation does not preclude non revocation of the mandatory 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.
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(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 non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. 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 remains cancelled, they would face the prospect of indefinite immigration detention.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: In the context of making a decision under s 501CA(4) of the Migration Act 1958 (Cth), can it be said that "It was not irrelevant for the Tribunal to take into account the assessment of the applicant made by the District Court when sentencing or re-sentencing the applicant. But that assessment did not bind the Tribunal. The Tribunal was obliged to reach its own conclusions about the applicant on the material before it and, in so doing, to address the subjects specified by the Minister in the Direction (or at least those raised on the material before the Tribunal). That might permissibly involve an assessment of the applicant’s involvement in the offending conduct and, related to that, the nature and extent of the risk of re-offending which he presented to the Australian community"?
Question 2: In WKMZ, Kenny and Mortimer JJ held that cl 14.1 of Direction 79 was not inconsistent with s 197C of the Migration Act 1958 (Cth), as the “executive policy and s 197C operate on different repositories of power, with different functions within the legislative scheme, and outside it”. Later, Kiefel CJ, Gageler, Keane and Steward JJ, stated, at [8] in AJL20: “By reason of s 197C of the Act, [placing Australia in breach of its international non-refoulement obligations by removing the respondent from Australia] was irrelevant to whether it was reasonably practicable that the respondent be removed from Australia”. Does WKMZ remains authoritative despite AJL20?
The FCA answered those questions as follows: