Indefinite detention “in the meantime”?

Federal Court: The AAT's decision record included: "If his application before the Tribunal is unsuccessful, [the Applicant] would be liable for return to Afghanistan as soon as is reasonably practicable, and in the meantime he would be subject to indefinite detention". As the Applicant was actually not subject to indefinite detention (see s 197C), did the use of the term "indefinite detention" in the decision record mean that the AAT made a decision on an incorrect understanding of the law?

Summary

The Applicant's visa was mandatorily canceled under s 501(3A) of the Migration Act 1958 (Cth). The Applicant sought revocation of the cancellation pursuant to s 501CA(4), which read as follows:

(4)  The Minister may revoke the original decision if:

(a)  the person makes representations in accordance with the invitation; and

(b)  the Minister is satisfied:

(i)  that the person passes the character test (as defined by section 501); or

(ii)  that there is another reason why the original decision should be revoked.

The Minister decided not to revoke the cancellation and the Applicant then applied to the AAT for review of the Minister's non-revocation decision.

The AAT affirmed the non-revocation decision. Paragraph [98] of the AAT's decision record read as follows:

In late 2017 DGBK was found to be a person in respect of whom Australia has protection obligations. He cannot currently be returned to Afghanistan without Australia breaching those obligations. If his application before the Tribunal is unsuccessful, DGBK would be liable for return to Afghanistan as soon as is reasonably practicable, and in the meantime he would be subject to indefinite detention. The Tribunal accepts that prolonged immigration detention has the potential to adversely affect DGBK’s health and welfare.

The Applicant eventually applied to the Federal Court (FCA) for judicial review of the Tribunal's decision.

It was common ground that the requisite state of satisfaction for the purposes of s 501CA(4) must be formed on a correct understanding of the law.

The Applicant argued to the FCA that, given the operation of s 197C, the AAT had made its decision on an incorrect understanding of the law. That provision read 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.

The error, the Applicant claimed, was that the above passage from the AAT's decision record indicated an understanding on the part of the AAT that the Applicant would be indefinitely detained if the non-revocation decision were affirmed, contrary to what is actually provided under s 197C.

The FCA answered as follows:

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