AFY18 v Minister for Home Affairs

In the case of AFY18 v Minister for Home Affairs, the applicant, AFY18, sought judicial review of a decision of the Migration Review Tribunal (the Tribunal) that affirmed the decision of the Minister for Home Affairs not to revoke the cancellation of AFY18's visa on character grounds. The primary issue before the court was whether the Tribunal erred in failing to assess the prospect that AFY18 would face indefinite detention if his visa cancellation was not revoked. The applicant argued that the Tribunal had deferred its task of determining whether indefinite detention was a legal or practical consequence of its own decision to the decision-maker responsible for determining AFY18’s pending application for a protection visa.

The court found that the Tribunal had assessed the prospect of indefinite detention and had proceeded on the assumption that Australia would comply with its non-refoulement obligations. The Tribunal found that AFY18 was a person to whom Australia owed non-refoulement obligations and that the prospect of indefinite detention was not inevitable. The court held that the Tribunal was not required to make a finding as to definite detention on the balance of probabilities, and there was no jurisdictional error affecting the weight of the decision. The court found that the Tribunal had correctly assessed the evidence and had not erroneously deferred any part of its task to another decision-maker.

The application for judicial review was dismissed. The court held that the Tribunal's decision was not affected by any jurisdictional error, and the decision of the Tribunal was affirmed. The prospect of indefinite detention was assessed and found not to be inevitable, and the Tribunal had correctly exercised its discretion in affirming the decision of the Minister not to revoke the visa cancellation.