Federal Court. In the context of s 501CA(4), there is a tension between ss 197C and 198 (which require removal even if it would breach international non-refoulement obligations) on the one hand and cl 10.1 of Direction No 79 (which says Australia will not breach those obligations) on the other hand. In XFKR, applicant submitted that AAT had erred by failing to recognise that he would have to be removed from Australia immediately under ss 197C and 198 if the mandatory cancellation of the visa were not revoked. FCA found in XFKR: AAT cited explanatory memorandum, which referred to the Minister’s non-compellable personal power under s 195A; AAT found "that any concern that the applicant might be deported was minimised by the commitment by the Australian government not to refoule"; AAT did not make error. Should XFKR be distinguished?
The questions to the Federal Court (FCA) were as follows:
Question 1: Should XFKR be distinguished on the basis that in this case, unlike XFKR, counsel for the Minister did not tell the Tribunal during oral submissions that the Minister did not intend to breach Australia’s non-refoulement obligations?
Question 2: Should XFKR be distinguished on the basis that in this case the Tribunal found that it was unlikely that a protection visa would be granted, whereas in XFKR the Tribunal only acknowledged the possibility that a protection visa would not be granted?
Question 3: If the Tribunal had found that the risk of refoulement was non-existent, as opposed to low, would it have made an error?
Question 4: Should XFKR be distinguished on the basis that "the applicant’s argument in this case, that the Direction cannot supplant “what the law says must happen” (the requirement under ss 197C and 198 of the Act that the applicant be removed from Australia), was not made in XFKR"?
Question 5: Was the Applicant's argument in this case that the "Direction cannot supplant “what the law says must happen” (the requirement under ss 197C and 198 of the Act that the applicant be removed from Australia)... adequately met in this case by the Tribunal’s finding that ss 197C and 198 would not prevent detention of the applicant pending consideration by the Minister of his discretionary powers"?
Question 6: "The applicant also seeks to impugn the Tribunal’s reliance on s 195A of the Act as a basis for its conclusion that his risk of refoulement was low. That provision would allow the Minister to prevent the applicant’s refoulement by granting him a visa, provideddoing so is in the public interest. But the applicant submits that there was no evidence that the Minister was actually considerings 195A or any other “backup plan to ensure that non-refoulement obligations would be adhered to”. In those circumstances, he submits that the Tribunal’s reliance upon a possible future exercise of s 195A or another similar power was impermissible speculation (citing NBMZ...)". Can it be said that, "once it is accepted that in this case, as in XFKR, the Tribunal based its assessment of what the Minister would do in future on evidence of the Minister’s policy, as it was entitled to do, the question of impermissible speculation does not arise"?
Question 7: Can it be said that "the observations made by the High Court of Australia in Wu Shan Liang’s Case [that the reasons given by an administrative decision-maker should not be scrutinised with an eye keenly attuned to the perception of error] may not be of great significance in relation to reasons that have been formulated carefully and deliberately with the possibility of judicial review clearly in mind"?
The FCA answered those questions as follows:
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