Federal Court. Can it be said that indefinite detention may need to be considered as a legal consequence of a non-revocation decision under s 501CA(4) of the Migration Act 1958 (Cth) even where Australia’s non-refoulement obligations are not enlivened? Is the finding in NBMZ that decision-makers should consider the legal consequences of a decision limited to the consequence of indefinite detention arising from non-refoulement obligations?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that indefinite detention may need to be considered as a legal consequence of a non-revocation decision under s 501CA(4) of the Migration Act 1958 (Cth) even where Australia’s non-refoulement obligations are not enlivened?
Question 2: Is the finding in NBMZ that decision-makers should consider the legal consequences of a decision limited to the consequence of indefinite detention arising from non-refoulement obligations?
Question 3: Is non-refoulement but a circumstance which contributes to the possibility of indefinite detention?
Question 4: Can it be said that, "because the applicant may, for instance, be a dual citizen of two countries or there may be another country which has either offered, or is generally offering, to accept persons who cannot be returned to the applicant’s country of origin"?
Question 5: In order for the Minister to be required to consider the legal consequence of his decision in the form of indefinite detention, must there be both uncertainty as to the duration of the detention and an unlikelihood of its end point occurring in the foreseeable future by reason of circumstances other than the detained person’s pursuit of legal rights in respect of a visa application?
Question 6: If the answer to Question 5 is 'yes', does the phrase “foreseeable future” connote “for as far in the future as can be determined, based on what is known now”?
Question 7: Can it be said that, "whatever the source, a complicated removal characterised by an unpredictability as to when (or if) an arrangement or other circumstances necessary to effectuate removal will occur is likely to mean that the time for the future removal of the detained person is not reasonably determinative"?
Question 8: Can it be said that, regardless of whether a non-citizen makes a clearly articulated claim of indefinite detention or whether such a claim clearly arises from the materials, "it is the circumstances relevant to whether a detainee’s detention is likely to be indefinite, at hand at the time of the making of the Minister’s decision, which need to be considered in determining whether the Minister’s obligation to consider indefinite detention was engaged", as the Minister is obliged to consider the legal consequences of a non-revocation decision in any event?
Question 9: Did the applicant bear the onus of demonstrating the existence of the circumstances which engaged the Minister’s obligation to consider indefinite detention?
Question 10: Can it be said that, "as at September 2020, the unavailability of international travel for an uncertain duration may well have been regarded as a circumstance which demonstrated the likelihood of the applicant’s indefinite detention"?
Question 11: Was the Minister required under s 501CA(4) to consider the Applicant's personal circumstances in weighing the deemed expectations of the Australia community set out in Direction 90, given that the Applicant had raised this issue?
Question 12: Can it be said that "a reasonable Minister responding to the applicant’s representations urging the Minister to have regard to all the evidence in assessing the 'expectations of the Australian community' would not respond simply by saying that the Direction 'is not about what the community may expect in relation to the particular noncitizen having regard to their specific circumstances'"?
The FCA answered those questions as follows: