Federal Court. Was the prospect of indefinite detention a necessary and foreseeable consequence of the Tribunal’s decision which should have been considered, as the the obligation to consider it was not limited to "circumstances where the Tribunal was satisfied that Australia would be in breach of its international non-refoulement obligations should the applicant be returned" to their home country? In other words, does the Full Court decision in DQM18 prevail over AZAFQ to the extent of any inconsistency?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: In the context of the assessment under s 501CA(4) of the Migration Act 1958 (Cth), if the issue of non-refoulement obligations "was not expressed as a stand-alone consideration and was instead referred to in the context of other considerations (such as the exercise of the Minister’s power under s 195A and Australia’s non-refoulement obligations)", does it necessarily follow that that matter was not significant and that the representations going to that matter in the Applicant’s statement were not clearly articulated?
Question 2: Can it be said that "the fact that the applicant could still apply for a protection visa was sufficient to resolve the issue of indefinite detention as a possible legal consequence of non-revocation"?
Question 3: If the answer to Question 1 is 'yes', should the same conclusion be reached "on the basis that this prospect was a necessary and foreseeable consequence of the Tribunal’s decision, and should have been considered", as the the obligation to consider the issue of indefinite detention was not limited to "circumstances where the Tribunal was satisfied that Australia would be in breach of its international non-refoulement obligations should the applicant be returned" to their home country? In other words, does the Full Court decision in DQM18 prevail over AZAFQ to the extent of any inconsistency?
Question 4: Can it be said that "the possibility of applying for a protection visa is a matter that will be relevant to considering the prospect of prolonged or indefinite detention"?
Question 5: If the answer to Question 4 is 'yes', is the existence of such a possibility "so determinative that the prospect of prolonged or indefinite detention is no longer a legal or factual consequence of a non-revocation decision"?
Question 6: Can it be said that "the obligation to consider non-refoulement obligations does not compel the Tribunal to make a determination on whether non-refoulement obligations are owed"?
The FCA answered those questions as follows:
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