Direction 65: interpreting cll 13.1.1(1)(b) and 14.1(2)

Federal Court: AAT affirmed non-revocation of visa cancelled under s 501(3A) of the Migration Act 1958. AAT was bound by Direction 65, cl 14.1(2) of which was identical to cl 14.1(2) of Direction 79. Was it necessary for AAT to sever the following part of cl 14.1(2) in order to align that paragraph with s 197: "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"? Did AAT misinterpret cl 13.1.1(1)(b), which is identical to cl 9.1.1(1)(c) of Direction 79?

The Applicant's visa was mandatorily cancelled on character grounds under s 501(3A) of the Migration Act 1958 (Cth).

The Applicant sought revocation of the cancellation, but a delegate of the Minister decide not to revoke cancellation pursuant to s 501CA(4). The Applicant then applied to the Tribunal (AAT) for merits review of the non-revocation decision.

As the Applicant did not satisfy the character test, the only question to the Tribunal was whether there was another reason to revoke the cancellation, pursuant to s 501CA(4).

In answering that question, the Tribunal was bound by Direction No 65, which required decision-makers to take into consideration various factors. One of those factors was Australia's international non-refoulment obligations, as follows (emphasis added):

14.1 International non-refoulement obligations

...

(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.

...

(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.

Those paragraphs were identical to the same paragraphs contained in the current direction, namely Direction No 79.

Another consideration that the Tribunal was bound to take into account was contained in cl 13.1.1(1)(b), which read as follows:

13.1.1 The nature and seriousness of the conduct

(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

...

b) The principle that crimes committed against ... government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

Para 13.1.1(1)(b) was identical to cl 9.1.1(1)(c) of Direction No 79.

Subsection 198(6), which applied to the Applicant, provided as follows:

An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a) the non-citizen is a detainee; and

(b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c) one of the following applies
 
(i) the grant of the visa has been refused and the application has been finally determined;
(ii) the visa cannot be granted; an
 
(d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

Somewhat at odds with cll 14.1(2) and (6), s 197C of the Act provided as follows:

(1)  For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)  An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.

In order to reconcile s 197C with cll 14.1(2) and (6), the Tribunal followed a previous decision of the AAT's Deputy President and severed the last sentences of those clauses, which were emphasised above in bold letters.

In addition, the Tribunal found that "the Applicant’s convictions for the offences of resisting arrest and failing to comply with a request to give police personal details were convictions for crimes committed against government officials in the performance of their duties, within the meaning of cl 13.1.1(1)(b)".

The Tribunal affirmed the delegate's non-revocation decision and the Applicant eventually applied to the Federal Court (FCA) for judicial review of the Tribunal's decision.

Some of the questions to the FCA were as follows:

Question 1: Is it necessary to sever the last sentence of cl 14.1(6), in order to  reconcile that paragraph with s 197C?

Question 2: Is it necessary to sever the last sentence of cl 14.1(2), in order to  reconcile that paragraph with s 197C?

Question 3: Were "the Applicant’s convictions for the offences of resisting arrest and failing to comply with a request to give police personal details ... convictions for crimes committed against government officials in the performance of their duties, within the meaning of cl 13.1.1(1)(b)"?

The FCA answered those questions as follows:

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