Federal Court (Full Court). Do ss 197C and 198 "preclude detention for a period of time so that the executive can genuinely consider alternative possibilities for a person to remain in Australia"? Can a delegate or the Minister rationally and reasonably "decide to grant a visa to a person who a) has had a different visa cancelled and b) has applied for the cancellation to be revoked but has been unsuccessful"? Is there an inconsistency between the terms of para 14.1(6) and s 197C? Is the prospect of indefinite detention a mandatory consideration?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: In order to comply with the 84-day deadline imposed by s 500(6L)(c) of the Migration Act 1958 (Cth), can the Tribunal make a decision within that deadline and provide reasons after the deadline?
Question 2: Can it be said that, "by reason of the terms of s 499(2A) of the Act, and subject to questions of materiality, failure to understand what para 14.1 requires is likely to give rise to a decision maker exceeding her or his jurisdiction"?
Question 3: Can it be said that, although the Minister is not bound by Direction 79 when exercising personal powers, "it would be surprising, to say the least, for the Minister to be departing from what is recognised as Australia’s position in promulgated executive policy"?
Question 4: Do ss 197C and 198 "preclude detention for a period of time so that the executive can genuinely consider alternative possibilities for a person to remain in Australia"?
Question 5: Can a delegate or the Minister rationally and reasonably "decide to grant a visa to a person who a) has had a different visa cancelled and b) has applied for the cancellation to be revoked but has been unsuccessful"?
Question 6: Cl 14.1(6) of Direction No 79 included the following passage: "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". Subsection 197C(1) provided: "For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen". Is there an inconsistency between the terms of para 14.1(6) and s 197C?
Question 7: Should a decision maker in any revocation decision under Part C of Direction 79 consider indefinite detention as a prospect, whether or not the visa under consideration is a protection visa?
Question 8: Does the term "danger to the security of the country" within art 33(2) of the Refugees Convention have the same meaning as the term "danger to the Australian community" in s 36(1C) of the Migration Act 1958 (Cth)?
Question 9: Was it inappropriate for the Tribunal to take at face value the executive's statement in Direction 79 that it will "not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations", in circumstances where "the appellant took no additional forensic or procedural steps in the Tribunal to obtain any further evidence to put before the Tribunal about how his particular case was being approached at executive level, or whether there was evidence that in other cases Australia was not adhering to that executive policy"?
The FCAFC answered those questions as follows: