Federal Court. Did cl 9.2 of Direction 90 assume removal from Australia? Was cl 9.4.1 capable of requiring consideration of removal or indefinite detention? Was it "illogical, irrational or otherwise legally unreasonable for the Tribunal to reduce the weight which it would otherwise have given to the other considerations in cll 9.2 and 9.4.1 because, in the applicant’s current circumstances, the Tribunal found that the only way in which he could be removed to South Sudan was at his own request"?
Direction 90 included the following clauses:
9.2 Extent of impediments if removed
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
9.4.1 The strength, nature and duration of ties to Australia
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Does cl 9.2 "seem to assume that the legal consequence of a visa refusal and cancellation under s 501 will be removal of the non-citizen to their home country"?
Question 2: Is cl 9.4.1 not limited in its terms to consideration of the impact of removal, with the result that it is capable of requiring consideration of the impact of the decision "if the non-citizen is either removed or indefinitely detained, although the latter consequence (indefinite detention) was not expressly contemplated by that clause"?
Question 3: Before s 197C of the Migration Act 1958 (Cth) was amended by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) with effect from 25 May 2021, Kiefel CJ, Gageler, Keane and Steward JJ held in Commonwealth v AJL20 [2021] HCA 21; (2021) 273 CLR 43 at [8] and [67] for the purpose of s 198(6) of the Act, which required removal of a unlawful non-citizen from Australia "as soon as reasonably practicable", that a breach of Australia's international non‑refoulement obligations was irrelevant to determination of whether removal was reasonably practicable. At the time that Direction 90 came into effect (before 25 May 2021), was a breach of Australia's international non‑refoulement obligations irrelevant to cl 9.2 of Direction 90, by analogy with AJL20?
Question 4: If the new version of ss 197C(1) and (2) applied, with the result that the obligation to remove "did not extend to non-citizens in respect of whom an assessment has been made that they engage Australia’s non-refoulement (i.e. protection) obligations", can it be said that, "unless an unlawful non-citizen could be removed to a safe third country, requested removal, or was granted a visa, she or he faced the prospect of indefinite immigration detention"?
Question 5: Was Direction 90 "amended to reflect the fundamental change which s 197C(3) effected to the circumstances in which a non-citizen might be removed to their country of origin, where a protection finding has been made with respect to that person"?
Question 6: Were the considerations specified by cll 9.2 and 9.4.1 of Direction 90 irrelevant, "whether by reason of the fact that the applicant could not be forcibly removed to South Sudan by virtue of s 197C(3) or for some other reason"?
Question 7: Was it "illogical, irrational or otherwise legally unreasonable for the Tribunal to reduce the weight which it would otherwise have given to the other considerations in cll 9.2 and 9.4.1 because, in the applicant’s current circumstances, the Tribunal found that the only way in which he could be removed to South Sudan was at his own request"?
Question 8: Does the High Court's decision in Plaintiff M1 stand as authority for the proposition that, even though the Tribunal is not obliged to make findings of fact on whether a decision under s 501CA(4) would breach Australia's non-refoulement obligations, it is required to consider whether to make such findings if representations on such obligations are made?
The FCA answered those questions as follows: