Clause 9.1(2) of Direction 90 interpreted

Federal Court. Did para 9.1(2) of Direction 90 "require the legal and practical consequences of prolonged detention with no fixed chronological end point to be weighed against the seriousness of the applicant's criminal offending and other serious conduct"?

Para 9.1(2) and (3) of Direction 90 provided as follows:

In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.

Some of the questions to the Federal Court (FCA) were as follows:

Question 2: Did para 9.1(2) of Direction 90 "require the legal and practical consequences of prolonged detention with no fixed chronological end point to be weighed against the seriousness of the applicant's criminal offending and other serious conduct"?

Question 3: If the answer to Question 1 is 'no', was it "irrational or illogical for the Tribunal to reason that para 9.1(2) of the Direction required the Tribunal to weigh the prospect of the applicant facing indefinite detention against the seriousness of his criminal offending and other serious conduct where the Direction imposed no such requirement"?

The FCA answered those questions as follows:

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