Interpreting ss 5AA, 197C, 198(5) and 198AD

Federal Court (Full Court): Could it be said that there is no temporal element to the definition of "unauthorised maritime arrival", with the result that persons who entered Australia by boat fall under that definition, whether or not they entered before 13 August 2012? As per s 197C, the duty to remove a non-citizen under s 198(5) as soon as reasonably practicable arises irrespective of whether Australia has non-refoulement obligations. Could it thus be said that a person captured by s 198(5) is necessarily not liable to indefinite detention?

The Appellant arrived in Australia by boat without a visa in 2010 and was granted a protection visa in 2011.

The Department then cancelled that visa under s 109 (incorrect information) of the Migration Act 1958 (Cth) and the Appellant subsequently applied to the Tribunal for review of the cancellation.

The Tribunal found that the Appellant had provided incorrect information as part of his protection visa application and proceeded to assess whether it should exercise its discretion to affirm the decision to cancel the visa.

In exercising that discretion, the Tribunal considered that cancellation of the visa could lead to "indefinite detention".

The Appellant applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision, but the FCCA dismissed that application. The Appellant eventually appealed the FCCA's decision to the Federal Court (FCA) and the Federal Court (FCAFC) heard the appeal.

Ground 1 - Issue 1

On appeal, the Appellant argued that:

  • he was an "unauthorised maritime arrival", as defined under s 5AA;
  • as he was an "unauthorised maritime arrival", s 198D applied to him;
  • section 198D(2) required that an "unauthorised maritime arrival" be taken to a regional processing country (as opposed to being indefinitely detained);
  • the Tribunal was required, in exercising its discretion, to accurately understand the legal consequences of its decision. To do otherwise would amount to jurisdictional error;
  • the Tribunal misinterpreted the legal consequences of its decision by having found that the Appellant could be subject to indefinite detention (in circumstances where he could not, so the Appellant argued), which amounted to jurisdictional error.

The matter to be decided by the FCAFC was whether or not s 198D applied to the Appellant.

Section 198AD was added to the Migration Act in 2012 by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (the 2012 Amending Act). That provision read as follows when it was added:

198AD  Taking offshore entry persons to a regional processing country

(1)  Subject to sections 198AE, 198AF and 198AG, this section applies to an offshore entry person who is detained under section 189.

Note:          For when this section applies to a transitory person, see section 198AH.

(2)  An officer must, as soon as reasonably practicable, take an offshore entry person to whom this section applies from Australia to a regional processing country.

...

Item 36 to the 2012 Amending Act read as follows:

Section 198AD of the Migration Act 1958, as inserted by this Schedule, applies in relation to an offshore entry person who enters Australia on or after 13 August 2012.

In 2013, the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (the 2013 Amending Act):

  • in item 8, added s 5AA to the Migration Act, creating and defining the term "unauthorised maritime arrival";
  • in items 18 to 47, made amendments to the Migration Act, replacing references to "offshore entry person" with "unauthorised maritime arrival". Item 20 amended s 198AD by substituting the term “offshore entry person” with “unauthorised maritime arrival”;
  • in item 60, provided as follows:

60  Application provision—subparagraph 5AA(1)(a)(i) of the Migration Act

(1)       This item applies to an unauthorised maritime arrival who entered Australia by sea as mentioned in subparagraph 5AA(1)(a)(i) of the Migration Act, as inserted by this Schedule.

(2)       The amendments made by items 18 to 47 of this Schedule apply in relation to the unauthorised maritime arrival only if he or she entered Australia by sea as mentioned in that subparagraph on or after 13 August 2012.

As a result of the above amendments, s 198D read as follows at the time of the Tribunal's decision:

(1)Subject to sections 198AE, 198AF and 198AG, this section applies to an unauthorised maritime arrival who is detained under section 189.

Note:For when this section applies to a transitory person, see section 198AH.

(2)An officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country.

(2A)However, subsection (2) does not apply in relation to a person who is an unauthorised maritime arrival only because of subsection 5AA(1A) or (1AA) if the person’s parent mentioned in the relevant subsection entered Australia before 13 August 2012.

Note 1:Under subsection 5AA(1A) or (1AA) a person born in Australia or in a regional processing country may be an unauthorised maritime arrival in some circumstances.

Note 2:This section does not apply in relation to a person who entered Australia by sea before 13 August 2012: see the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012.

...

The Appellant argued that he was an "unauthorised maritime arrival" and that thus s 198D applied to him, despite Note 2 above. More precisely, the Appellant argued that Note 2 was "misleading and erroneous".

The Appellant argued that the only provision limiting in a temporal sense the application of 198AD was item 36 to the 2012 Amending Act. He argued that that temporal limitation concerned "offshore entry persons" and that the Appellant was no longer an "offshore entry person" at the time of the Tribunal's decision, as that term had been repealed by then.

The Appellant argued that there was no temporal limitation to the definition of "unauthorised maritime arrival" under s 5AA. The temporal limitation created by item 60 to the 2013 Amending Act only applied to items 18 to 47 of that Act. As the definition of "unauthorised maritime arrival" was contained in item 8 to the 2013 Amending Act, that temporal limitation did not apply to that definition.

As a result, the fact that the Appellant arrived in Australia before 13 August 2012 had no bearing on whether or not he was an "unauthorised maritime arrival" at the time of the Tribunal's decision.

Ground 1 - Issue 2

The Appellant's argument was summarised by the FCAFC as follows:

40    The appellant submitted that the only consequence of affirmation, assuming that s 198AD did not apply, was removal to Iran and not indefinite detention. He submitted that Australia’s non-refoulement obligations are no barrier to the statutory obligation imposed by s 198(5) to remove him. He cited for that purpose ss 197C and 198(11) of the Migration Act...

In other terms, the Appellant argued that, by operation of s 197C, he would necessarily be removed to Iran, with the result that the Tribunal's finding that he could be indefinitely detained was wrong and amounted to a jurisdictional error.

The FCAFC answered as follows:

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