Federal Court: The FCA summarised previous FCA and FCAFC decisions dealing with the question of whether it is an error for a decision-maker to defer consideration of non-refoulement obligations in the context of s 501CA(4) to a point in time in the future when a non-citizen might apply to a protection visa. Further, could it be said that "the argument that the applicant could face indefinite detention is flawed because, now, s 197C operates to require an unlawful non-citizen to be removed from Australia, subject only to the Minister considering 'alternative management options'"?
The Federal Court (FCA) summarised the Minister's reasons as follows:
70 As part of his representations seeking revocation of the original decision to cancel his visa, the applicant raised his fear of harm should he be returned to Sudan. The Minister considered this claim in two broad ways.
71 The first way in which he considered the claim was with respect to the concept of non-refoulement and Australia’s international protection obligations. The Minister considered it unnecessary to determine whether the applicant was owed non-refoulement obligations. This was because the applicant was able to apply for a protection visa. The Minister considered that, if the applicant were to make such an application, it would be highly likely that the application would be determined by one of his delegates. If so, the delegate would be obliged to follow Direction 75 issued under s 499 of the Act. The Minister was satisfied that, in these circumstances, the question of whether Australia owed the applicant non-refoulement obligations would be considered in the course of processing any such application.
72 The Minister also recognised that he might personally consider such an application, in which event he would not be bound by Direction 75 and might not necessarily determine whether Australia owed non-refoulement obligations to the applicant. However, he said:
… such a situation would only arise in the unlikely event that the Minister determines to depart from the usual practice regarding the processing of Protection visa applications and determines further to depart from the policy approach set out in Direction 75. I have nevertheless taken into account the fact that that is a possible consequence of my decision, albeit an unlikely one.
73 The second broad way in which the Minister considered the applicant’s claim was “outside the framework of Australia’s international protection obligations”. So considered, the Minister accepted that, if returned to Sudan, the applicant would “face hardship arising from war and instability”.
The questions to the FCA were as follows:
Question 1: What are the principles used to determine whether it is an error for a decision-maker to defer consideration of non-refoulement obligations in the context of s 501CA(4) of the Migration Act 1958 (Cth) to a point in time in the future when a non-citizen might apply to a protection visa?
Question 2: Could it be said that "the argument that the applicant could face indefinite detention is flawed because, now, s 197C operates to require an unlawful non-citizen to be removed from Australia, subject only to the Minister considering 'alternative management options'"?
Question 3: Did the Minister make a jurisdictional error by considering it "unnecessary to determine whether the applicant was owed non-refoulement obligations"?
The FCA answered those questions as follows: