Federal Court. Can it be said in the context of s 501CA(4) of the Migration Act 1958 (Cth) that, "in any particular case, the practical reality of a person’s situation may be such that although there are theoretical avenues by which their immigration detention might be brought to an end, no such avenue presently has any realistic possibility of materialising"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said in the context of s 501CA(4) of the Migration Act 1958 (Cth) that, "in any particular case, the practical reality of a person’s situation may be such that although there are theoretical avenues by which their immigration detention might be brought to an end, no such avenue presently has any realistic possibility of materialising"?
Question 2: The Tribunal recognised that a possible outcome for the applicant if the Tribunal affirmed the non-revocation decision was that he would be detained “for a period with no chronologically fixed endpoint” and that that prospect of prolonged or indefinite detention “may weigh in favour of revocation”. Fairly read, must the Tribunal be understood to have said that those considerations do weigh in favour of revocation rather than that they may so weigh?
Question 3: Did it makes sense for the Tribunal to say that the fact that the applicant could be removed to Afghanistan could temper the weight of the indefinite detention consideration?
Question 4: Did it makes sense for the Tribunal to say that the protection findings made in the applicant’s favour meant that he could apply for a protection visa ?
Question 5: Can it be said that, "in circumstances where his visa was cancelled for failure to pass the character test and that cancellation was not revoked by the Tribunal, which is the premise upon which the indefinite detention consideration was being addressed, there was no realistic possibility that he would be granted a protection visa"?
Question 6: Can it be said that the fact that the applicant could apply for a protection visa could not rationally temper the weight to be attached to the indefinite detention consideration, as it was only a successful application that could bring an end to the applicant’s detention?
Question 7: Could the Tribunal "have properly confronted the devastating consequences visited upon the applicant by its decision without dealing substantively with the submission about the reality of indefinite detention"?
Question 8: Can it be said that "it is difficult to see how any delegate (or the Minister) acting rationally and reasonably could decide to grant a visa to the person who has had a different visa cancelled and has unsuccessfully applied for the cancellation to be revoked"?
The FCA answered those questions as follows: