Indefinite detention & s 501CA(4)

Federal Court. In the context of s 501CA(4), was the Tribunal required to genuinely consider representations made by an applicant with respect to the issue of indefinite detention "arising in addition to, and separately of, the fact that indefinite detention needs to be considered as a standalone legal consequence of the decision"? Can it be said that "a logical conclusion to a finding of non-refoulement obligations being owed would be a consideration of whether indefinite detention would be a risk imposed on the applicant", despite s 197C?

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

Question 1: In the context of s 501CA(4) of the Migration Act 1958 (Cth), is the decision-maker required to genuinely consider representations made by an applicant with respect to the issue of indefinite detention "arising in addition to, and separately of, the fact that indefinite detention needs to be considered as a standalone legal consequence of the decision"?

Question 2: Can it be said that "a logical conclusion to a finding of non-refoulement obligations being owed would be a consideration of whether indefinite detention would be a risk imposed on the applicant"?

Question 3: Was the Tribunal required to "consider representations made by the applicant that there would be a negative impact on Australia’s international reputation in the event that non-refoulement was found and the applicant was refouled"?

Question 4: The Tribunal found as follows: "The Respondent noted that PKZM has had opportunities to apply for a protection visa, which he has not taken up. He still has such an opportunity and, by consistent submissions on government policy, that the Respondent has made in successive similar matters before the Tribunal, while such an application is properly considered [sic]. The proper consideration of such an application would allow expansion of any claims that PKZM might have which could invoke Australia’s treaty obligations, and for those claims to be properly considered". Did that finding involve a "conflation between the expansive process available in considering “another reason” under s 501CA(4) and the more limited and narrow process that occurs under s 36 of the Act with respect to a protection visa application"?

Question 5: If the answer to Question 4 is "yes", does that mean that "the Tribunal failed to give proper weight to the consideration of non-refoulement under paragraph 14.1 of Direction 79 in that, "because the Tribunal took the view that non-refoulement would only need to be properly considered at a later point in time, the Tribunal has applied this consideration under a false premise which had the effect of the Tribunal not according proper weight to it"?

The FCA answered those questions as follows:

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