Federal Court (Full Court). Did cl 14.1(2) and (6) of Direction 79, which conflicted with ss 197C and 198 of the Migration Act 1958 (Cth), effectively preclude the Tribunal from finding that, if the cancellation of the Appellant’s visa was not revoked and he was not granted another visa, he would be removed from Australia? Is the damage to Australia's reputation if it refoules a person a mandatory consideration for the purposes of s 501CA(4)?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: In circumstances where the Minister vigorously opposed the Tribunal setting aside the delegate's decision to refuse to revoke under s 501CA(4) of the Migration Act 1958 (Cth) the mandatory cancellation of the Appellant's visa, would it be incongruous for the Tribunal to find that there was a a realistic prospect of the Minister exercising his discretion under PIC 4001 or s 501 to grant the Appellant a protection visa or exercising his discretion under s 195A to grant him a visa?
Question 2: Should the Tribunal have considered the possibility of the Minister granting the Appellant a protection visa or a visa under s 195A, even if the answer to Question 1 is "yes"?
Question 3: If the answer to Question 2 is "yes", could it nevertheless be said that the error made by the Tribunal in not considering the possibility of the Minister granting the Appellant a protection visa or a visa under s 195A was not jurisdictional in that the Tribunal found that the Appellant would not face indefinite detention on the basis that he would be removed from Australia as soon as reasonably practicable by reason of s 198?
Question 4: Can it be said that, because of the effect of s 197 of the Act, the existence of non-refoulement obligations alone cannot give rise to indefinite detention?
Question 5: In contrast with s 197C of the Act, cl 14.1(2) and (6) of Direction 79 provided that, given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention. Did cl 14.1(2) and (6) effectively preclude the Tribunal from finding that, if the cancellation of the Appellant’s visa was not revoked and he was not granted another visa, he would be refouled to Iraq?
Question 6: Did the relevant statements in cl 14.1(2) and (6) constitute "conclusive evidence" that the Appellant would on no account be removed to Iraq as a result of a decision to not revoke the cancellation of his visa?
Question 7:Can it be said that, "while it may have been open to the Tribunal to find that the damage to Australia’s reputation that may have resulted from the breach of its international obligations constituted, or may have constituted, another reason to revoke the cancellation of the appellant’s visa, it was not required to consider that issue, particularly in the absence of any apparent representation to that effect"?
The FCAFC answered those questions as follows:
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