Direction 79: para 14.1 interpreted

Federal Court (Full Court). Does para 14.1(2) of Direction 79 require decision-makers to take account of non-refoulement obligations? If not, might those obligations be required to be considered nevertheless for other reasons, such as because an applicant has raised those obligations? Since the introduction of s 197C, is indefinitely holding a person in detention for no lawful purpose and not refouling the person a possible legal outcome? If so, is the last sentence of para 14.1(6) incorrect to the extent it suggests otherwise? Was AAT obliged by paragraph 14.1(2) to proceed on the basis that refoulement was not a possible outcome?

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

Question 1: Para 14.1(2) of Direction 79 read: "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". Does para 14.1(2) require decision-makers to take account of those obligations?

Question 2: If the answer to Question 1 is "no", might those obligations be required to be considered nevertheless for other reasons, such as because an applicant has raised those obligations? 

Question 3: Since the introduction of s 197C into the Migration Act 1958 (Cth), is indefinitely holding a person in detention for no lawful purpose and not refouling the person a possible legal outcome?

Question 4: The last sentence of para 14.1(6) read: "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". If the answer to Question 3 is "no", is the last sentence of para 14.1(6) incorrect to the extent it suggests otherwise?

Question 5: Was the Tribunal obliged by paragraph 14.1(2) to proceed on the basis that refoulement was not a possible outcome?

The FCAFC answered those questions as follows:

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