AZC21 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1328
•19 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AZC21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1328
File number(s): SYG 643 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 19 August 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal cancelling temporary protection visa – clarification or change in understanding of law by High Court concerning constitutional validity of indefinite detention between date of Tribunal’s decision and date of hearing of judicial review application – whether Tribunal failed to consider or deal with submission or contention concerning indefinite detention based on understanding of law at time of Tribunal’s decision – whether Tribunal failed to consider or deal with submission or contention concerning indefinite detention based on understanding of law at time of hearing of judicial review application – whether error of Tribunal was material – whether assessment of materiality affected by clarification or change in understanding of the law Legislation: Migration Act 1958 (Cth) ss 46A, 48A, 48B, 116, 189, 195A, 476
Migration Regulations 1994 (Cth) cls 785.511(a)(ii) of Sch 2, 4013 of Sch 4
Cases cited: AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; 304 FCR 586
DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 38; 296 FCR 204
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321
NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; 144 FCR 1
NZYQ v Minister for Immigration and Border Protection [2023] HCA 37; 280 CLR 137
Singh v Minister for Home Affairs [2019] FCAFC 3
STZS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1140
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of hearing: 18 July 2025 Place: Parramatta Counsel for the Applicant: Mr S Kikkert Solicitor for the Respondents: Mr T Young (Mills Oakley) ORDERS
SYG 643 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AZC21
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
19 AUGUST 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 16 April 2021, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 24 March 2021. The Tribunal affirmed the decision of a delegate of the first respondent cancelling the applicant’s temporary protection (subclass 785) visa (TPV) under s 116 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
In August 2011, the applicant, a citizen of Iran, arrived in Australia as an unauthorised maritime arrival.
In October 2015, the applicant lodged an application for a TPV. He claimed to fear harm if returned to Iran, resulting from his alleged involvement with the wife of a highly ranked politician while installing a satellite dish in their place.
In September 2016, the applicant was granted a TPV with a duration of three years (2016 TPV).
On 26 August 2019, the applicant lodged an application for a further TPV, as a result of which, pursuant to cl 785.511(a)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), the 2016 TPV remained in effect until “35 days after the day the application [for the further TPV] is finally determined”.
On 9 November 2019, the applicant was charged with two criminal offences relating to an incident in the early hours of 9 November 2019 when he was alleged to have made threats against, and broken into the house of, a person with whom the applicant had been in a relationship.
On 5 December 2019, the Department of Home Affairs (Department) sent the applicant a Notice of Intention to Consider Cancellation of the TPV under s 116 of the Act (NOICC) on the basis of the alleged facts relating to the criminal charge. The NOICC relied on s 116(1)(e) which is set out in paragraph 34 below.
On 24 January 2020, the applicant, by his representative (Representative), provided a written response to the NOICC. The Representative wrote that, since the charges were based on unproven allegations, the decision-maker should not be satisfied that the presence of the applicant in Australia was or may be a risk to the health or safety of an individual. The Representative added that, even if the power to cancel the visa was enlivened, the best course of action was not to cancel the applicant’s visa.
On 3 February 2020, a delegate of the first respondent made a decision to cancel the 2016 TPV under s 116(1) of the Act.
On 3 February 2020, the applicant applied to the Tribunal for review of the delegate’s decision.
On 2 March 2021, the Tribunal invited the applicant to attend a hearing on 17 March 2021.
Prior to the hearing, the applicant was convicted of the two criminal offences. The court imposed an Intensive Correction Order for an aggregate of 18 months and issued an Apprehended Violence Order for five years.
On 17 March 2021, the applicant appeared before the Tribunal to give evidence and present arguments.
On 24 March 2021, the Tribunal made a decision affirming the delegate’s decision to cancel the 2016 TPV.
TRIBUNAL’S DECISION
The Tribunal at [2] and [7] recorded that the issues before it were whether the ground for cancelling the 2016 TPV in s 116(1)(e) was made out and, if so, whether the 2016 TPV should be cancelled having regard to all relevant considerations.
The Tribunal at [12]-[13] summarised the written evidence and submissions provided by the applicant to the Department and the Tribunal.
The Tribunal at [14]-[18] summarised the evidence given by the applicant and three character witnesses at the hearing before the Tribunal.
The Tribunal at [19]-[26] considered whether the ground for cancelling the 2016 TPV in s 116(1)(e) of the Act was made out. The Tribunal at [25] was “satisfied that the presence of the applicant in Australia is or may be, or would or might be, a risk to the safety of an individual or individuals, namely his former partner and/or her family”. It followed that, as stated by the Tribunal at [26], it was satisfied that the ground for cancellation in s 116(1)(e) existed.
In circumstances where the power to cancel the 2016 TPV was enlivened, the Tribunal at [28]-[64] considered whether to exercise the discretionary power to cancel the 2016 TPV. The Tribunal had regard to the matters in the Department’s Procedures Advice Manual (PAM3) as follows:
(a)purpose of visa holder’s travel and stay in Australia and whether visa holder has a compelling need to travel to or remain in Australia - [29]–[31];
(b)extent of compliance with visa conditions - [32]–[33];
(c)degree of hardship that may be caused - [34]–[38];
(d)circumstances in which ground for cancellation arose - [39]–[43];
(e)past and present behaviour towards the Department - [44]–[45];
(f)whether there would be consequential cancellations - [46]–[47];
(g)mandatory legal consequences - [48]–[49];
(h)non-refoulement obligations and best interests of any children - [50]–[59].
The Tribunal at [63], on weighing the competing considerations, concluded that the 2016 TPV should be cancelled. The Tribunal stated:
On balance, the Tribunal is satisfied that the international obligations, the hardship [to] the applicant, and other matters as discussed above do not outweigh the matters in favour of cancellation. The applicant has been convicted of serious offences during a time of being a temporary resident of Australia.
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to hearing on 18 July 2025
On 16 April 2021, the applicant lodged an application in this Court seeking judicial review of the Tribunal’s decision.
Following a period of inactivity, on 3 April 2025 the registry of the Court notified the parties that the matter was listed for hearing on 20 May 2025. At the request of one party, not opposed by the other, the hearing date was adjourned to 18 July 2025.
On 20 June 2025, the applicant took steps to file an amended application (Amended Application) which contained two grounds. The applicant subsequently abandoned ground 2, leaving ground 1 as follows (as written):
1. The Tribunal fell into jurisdictional error by failing to address a substantial, clearly articulated claim, namely that the Applicant would be in detention indefinitely as a consequence of the cancellation of his visa. This amounted to a denial of procedural fairness.
1.1. Alternatively, the Tribunal failed to give proper, genuine and/or realistic consideration to matters before it by not genuinely engaging with the Applicant’s evidence.
1.2. Alternatively, the Tribunal failed to take into account relevant consideration or failed to consider the legal consequences faced by the Applicant.
1.3. Alternatively, the Tribunal fell into jurisdictional error by failing to act on a correct understanding of the law, particularly regarding indefinite detention, as clarified in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37.
Particulars
1.1. The Applicant claimed that, as a consequence of the cancellation of his visa, he would be held in immigration detention indefinitely.
1.2. Iran does not accept involuntary returnees.
1.3. At CB, p 36, the Applicant expressly submitted that “[Applicant] is a citizen of Iran and it is not practicable in a foreseeable future to remove him back to Iran.”
1.4. At CB, p 36, the Applicant expressly submitted that “Given the status of [Applicant] impracticality of his removal, even under s197C of the Act, the only feasible legal consequence of cancellation of his visa is for him be detained in immigration detention indefinitely.”
1.5. The delegate noted the following: “I am also mindful that if the Minister does not consider exercising that power, or does not exercise it in the visa holder’s favour, the visa holder would be liable to removal as soon as reasonably practicable in accordance with s198 of the Act, including to Iran, having regard to section 197C.” (CB, p 49).
1.6. The delegate acknowledged the following submission:
“It was submitted that given the status of the visa holder and the impracticality of his removal from Australia, even under section 197C of the Act, the only feasible legal consequence of a decision to cancel his visa would be for him to be detained indefinitely in immigration detention. That is after considering the Minister’s non-compellable powers under section 195A and section 48B of the Act. The agent has questioned whether it is logical for the Minister to cancel the visa holder’s Protection visa, causing him to be detained and then exercise his other non-compellable powers to release him from detention.”
1.7. The delegate further noted:
“I have also considered whether as a consequence of a cancellation decision, the visa holder may be subject to indefinite detention. As he is an unauthorised maritime arrival, I note that this is a possibility.”
1.8. The Tribunal acknowledged the Applicant’s claim regarding indefinite detention (CB p 127. Para [12]), however it did not engage with this claim.
1.9. The Tribunal acknowledged the Applicant’s claim as follows:
“He cannot return to his Iran because his life would be in danger. He could not say goodbye to his mother when she was sick. He cannot survive in detention and would rather die than return to Iran or stay in detention. He will never commit any further offences and he asks to be given another chance.” (CB, p 128, para [13])
The Tribunal did not address the aspect of the Applicant’s claim regarding him being detained indefinitely.
1.10. While the Tribunal considered the consequence of detention (CB, p 132-133, para [48]-[49]), the Tribunal did not consider his claim regarding him being indefinitely detained
1.11. HSCK v Minister for Immigration and Multicultural Affairs [2025] FCAFC 17 and RJFB v Minister for Immigration and Multicultural Affairs [2025] FCA 229 are authorities that the Minister needs to act on an incorrect understanding of the law regarding indefinite detention, as clarified in NZYQ.
On 26 June 2025, the applicant filed a written submission.
On 17 July 2025, the first respondent filed a written submission (RS).
Hearing on 18 July 2025 and post-hearing submissions
At the hearing in this Court on 18 July 2025, Mr Sean Kikkert of counsel appeared for the applicant on a pro bono basis.
Mr Kikkert, who prepared the Amended Application and the applicant’s written submission, identified a potential jurisdictional error in the Tribunal’s decision which, but for his assistance, may not have been identified. I appreciate the assistance provided by Mr Kikkert on a pro bono basis on behalf of an applicant for whom the Tribunal’s decision has serious consequences.
Mr Taylor Young from Mills Oakley appeared for the first respondent.
A Court Book was tendered (CB) which contained the Tribunal’s decision and documents before the Tribunal.
Mr Kikkert and Mr Young made oral submissions which supplemented their written submissions.
Following the hearing, with leave of the Court, each party filed a short supplementary submission to further address issues raised and discussed at the hearing.
The parties’ submissions are discussed below.
LEGISLATION AND POLICY
Legislation
At the time of the Tribunal’s decision in March 2021, ss 46A, 48A, 48B, 116, 189 and 195A of the Act relevantly provided:
46A Visa applications by unauthorised maritime arrivals
(1) An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:
(a) is in Australia; and
(b) either:
(i) is an unlawful non‑citizen; or
(ii)holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.
Note: Temporary protection visas are provided for by subsection 35A(3).
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.
…
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (2C) in respect of any unauthorised maritime arrival whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.
48A No further applications for protection visa after refusal or cancellation
…
(1B) Subject to section 48B, a non‑citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone.
48B Minister may determine that section 48A does not apply to non-citizen
(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.
…
(6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.
116 Power to cancel
(1) … the Minister may cancel a visa if he or she is satisfied that:
…
(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:
(i)the health, safety or good order of the Australian community or a segment of the Australian community; or
(ii) the health or safety of an individual or individuals; …
189 Detention of unlawful non-citizen
(1)If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen, the officer must detain the person.
195A Minister may grant detainee visa (whether or not on application)
(1) This section applies to a person who is in detention under section 189.
(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
197C Relevance of Australia’s non-refoulment obligations to removal of unlawful non-citizens under s 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
198 Removal from Australia of unlawful non-citizens
…
(6) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:
(a) the non‑citizen is a detainee; and
(b) the non‑citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c) one of the following applies:
(i) the grant of the visa has been refused and the application has been finally determined;
(ii) the visa cannot be granted; and
(d) the non‑citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
Public Interest Criterion 4013 in Schedule 4 to the Regulations provided:
(1) If the applicant is affected by a risk factor mentioned in subclause (1A), (2), (2A) or (3):
(a) the application is made more than 3 years after the cancellation of the visa or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or
(b) the Minister is satisfied that, in the particular case:
(i) compelling circumstances that affect the interests of Australia; or
(ii) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa within 3 years after the cancellation or determination.
(2) …
(3) A person is affected by a risk factor if a visa previously held by the person was cancelled because the Minister was satisfied that a ground mentioned in paragraph 116(1)(e) of the Act applied to the person.
Policy in PAM3
Where the power to cancel a visa under s 116(1) of the Act is enlivened, as stated by the Tribunal at [28], “there are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion”. However, PAM3 lists a set of matters that decision-makers should take into account or consider when deciding whether to cancel a visa. The parties did not provide the Court with a copy of the relevant part of PAM3. It was common ground at the hearing in this Court that the list of matters in the sub-headings in the Tribunal’s decision at [28]-[62] was accurate. According to the Tribunal’s decision, two matters were:
·“whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention” (see sub-heading above [48]) (Mandatory Legal Consequences Matter); and
·“whether any international obligations, including non-refoulement … would be breached as a result of the cancellation” (see sub-heading above [50]).
CONSIDERATION
Background
On 24 January 2020, the Representative sent a letter to the Department in response to the NOICC. The letter contained the following submission concerning the possibility of indefinite detention (with footnotes recorded in square brackets): (CB 36)
[The applicant] is a refugee in Australia … [The applicant] is a citizen of Iran.
Given the status of [the applicant] and impracticability of his removal, even under s 197C of the Act [3], the only feasible legal consequence of cancellation of his visa is for him to be detained in immigration detention indefinitely. That is also with taking into consideration the Minister’s non-compelling powers under s 195A, 48B of the Act. For that would be strange for the Minister to cancel [the applicant’s] protection visa resulting in him being detained [4], and then exercise his other non-compelling powers to release him from detention.
Footnote 3 stated:
Section 197C allows the removal of [the applicant] in spite of his status. However, [the applicant] is a citizen of Iran and it is not practicable in a foreseeable future to remove him back to Iran.
Footnote 4 stated:
s 189 of the Migration Act 1958
The first respondent’s delegate, in a decision dated 3 February 2020, recorded the submission as follows: (CB 52)
It was submitted that given the status of the visa holder and the impracticality of his removal from Australia, even under section 197C of the Act, the only feasible legal consequence of a decision to cancel his visa would be for him to be detained indefinitely in immigration detention. That is after considering the Minister’s non-compellable powers under section 195A and section 48B of the Act. The agent has questioned whether it is logical for the Minister to cancel the visa holder’s Protection visa, causing him to be detained and then exercise his other non-compellable powers to release him from detention.
The first respondent’s delegate addressed the submission as follows: (CB 54)
On 28 September 2016, the visa holder was granted a Temporary Protection (subclass 785) visa and I accept that he must be treated as a person in respect of whom Australia has non-refoulement obligations, subject to any reassessment of his protection status.
I understand that because he is an unauthorised maritime arrival, should the visa holder’s visa be cancelled, he would be subject to sections 46A and 48A of the Migration Act which means that he would not be able to apply for another visa whilst in Australia, including a Protection visa, unless the Minister lifts the relevant bars using his personal non-compellable powers under subsection 46A(2) and subsection 48B(1), respectively.
Additionally, if the visa holder’s Temporary Protection visa were cancelled, he would become an unlawful non-citizen and would be liable for immigration detention under section 189 and removal under section 198 of the Act. I am also aware that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
I have also considered whether as a consequence of a cancellation decision, the visa holder may be subject to indefinite detention. As he is an unauthorised maritime arrival, I note that this is a possibility.
I am mindful that even if I cancel the visa holder’s Temporary Protection visa, the Minister has a personal non-compellable power in section 195A of the Act to grant a visa to him if he thinks it is in the public interest to do so. I am also mindful that if the Minister does not consider exercising that power, or does not exercise it in the visa holder’s favour, the visa holder would be liable to removal as soon as reasonably practicable in accordance with s198 of the Act, including to Iran, having regard to section 197C. While I note the visa holder’s migration agent has raised whether cancelling the visa and then the Minister intervening to release the visa holder from detention is a viable course of action, nonetheless it is an available course of action which addresses concerns of indefinite detention.
The visa holder would also be subject to Public Interest Criterion 4013 for three years, if his Temporary Protection visa were cancelled.
I give this consideration some weight against cancelling the visa.
As stated above, on 3 February 2020 the applicant applied to the Tribunal for review of the delegate’s decision. The application recorded that the Representative continued to be the applicant’s representative.
On 2 March 2021, the Tribunal sent a letter to the Representative which stated in part: (CB 84)
You should provide a written submission setting out all claims made and maintained by the applicant by 10 March 2021.
On 2 March 2021, the Tribunal also sent a letter inviting the applicant to attend a hearing on 17 March 2021. (CB 86)
By 2 March 2021, the Representative had informally informed the Tribunal that he was no longer representing the applicant. (CB 73) On 2 March 2021, the Tribunal also sent a letter to the applicant attempting to formalise the change of contact details. (CB 97)
On 4 March 2021, the applicant, in response to the three letters from the Tribunal dated 2 March 2021, emailed some documents to the Tribunal, including a statement dated 4 March 2021. (CB 102-104) The applicant stated in paragraph 14 of the statement:
I cannot return to my country because my life would be in danger. I could not even say goodbye to my mother when she was sick in Iran. I cannot survive in detention. I rather die than going to Iran or detention.
The statement did not otherwise address the question of whether it was impractical for the applicant to be returned to Iran and, if the applicant could not be returned to Iran, whether he might be detained in immigration detention in Australia indefinitely.
The applicant added in a covering email: (CB 101)
I request the Member to be more understanding towards me as I am attending this hearing without any legal representation.
As stated above, the Tribunal at [12]-[13] summarised the written evidence and submissions provided by the applicant to the Department and the Tribunal. The Tribunal wrote in part:
[12] On 24 January 2020, the applicant responded to the NOITCC as follows:
•…
•The applicant has been found to be a refugee and he holds a temporary protection visa. As such, there are non-refoulement obligations. Cancellation would result in indefinite detention.
[13] The applicant provided to the Tribunal the following:
I. Statutory declaration of the applicant dated 4 March 2021. The applicant stated that:
•…
•He cannot return to his Iran because his life would be in danger. He could not say goodbye to his mother when she was sick. He cannot survive in detention and would rather die than return to Iran or stay in detention. He will never commit any further offences and he asks to be given another chance.
In relation to the applicant’s concern about refoulement and indefinite detention, the Tribunal stated under subheadings addressing the two matters in paragraph 36 above:
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
[48] The cancellation of the applicant's visa could result in the applicant's detention and potential removal from Australia. The applicant would also be impacted by s.46A and s.48A of the Act which means that he could face difficulties in applying for any further visas in Australia and in being granted an Australian visa, unless the Minister intervenes. He will also be subject to Public Interest Criterion (PIC) 4013.
[49]The Tribunal considers potential detention, removal from Australia, the impacts of ss.46A and 48A and PIC 4013 bar to be intended legislative consequences. However, in the applicant's case particularly because he has been granted the temporary visa based on protection claims, as well as his mental health issues, those consequences mean that this aspect weighs in the applicant's favour.
Whether any international obligations, including non-refoulement … would be breached as a result of the cancellation
[50]The applicant was granted the subclass 785 visa based on findings relating to protection claims. He gave evidence that he wished to remain in Australia.
…
[57]The applicant has been determined to be a person to whom Australia has protection obligations. Although the Tribunal has some doubts, on the evidence and for the purpose of this decision, the Tribunal accepts that the applicant currently attends Church and that he has a level of support from the Church. The Christianity claim is relevant to any further assessment of the protection claims.
[58]On the evidence the Tribunal is satisfied that in case of cancellation, there would be breach of Australia's non-refoulment obligations.
[59] The Tribunal gives this aspect weight in the applicant's favour.
The applicant’s complaint to the Court, stated in particulars 1.8 and 1.10 of ground 1 of the Amended Application, is that the Tribunal “did not engage with [the] claim” regarding indefinite detention and “did not consider” this claim.
Three questions arise in considering the applicant’s complaint to the Court as follows:
(a)whether the Tribunal, on application of the law in March 2021, made an error in the manner pleaded;
(b)if so, whether the error was material; and
(c)despite the conclusions in (a) and (b), whether this Court, in considering whether there was a jurisdictional in the Tribunal’s decision, must apply the law stated by the High Court in NZYQ v Minister for Immigration and Border Protection [2023] HCA 37; 280 CLR 137 (NZYQ) and, if so, whether there is a jurisdictional error in the Tribunal’s decision.
Whether error by Tribunal on application of law in March 2021
It is clear the Tribunal was aware of the applicant’s contentions and concerns relating to indefinite detention, since the Tribunal referred to the contentions and concerns at [12] (second dot point) and [13] (last dot point in section I).
It is also clear the Tribunal accepted the applicant may be detained for a period of time and found that “this aspect weighs in the applicant’s favour” – see the Tribunal’s reasons at [48]-[49] set out in paragraph 50 above.
Despite the above, aided by the discussion in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463 (WKMZ) and STZS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1140 (STZS), which decisions were referred to in the parties’ helpful post-hearing submissions, if I reviewed the Tribunal’s decision with reference to the law as understood in March 2021, I would conclude that the Tribunal misunderstood or overlooked an aspect of the applicant’s contention or concern relating to indefinite detention and thereby failed to properly consider the contention or issue in the manner required by cases such as NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; 144 FCR 1 (NABE), and Singh v Minister for Home Affairs [2019] FCAFC 3 (Singh) at [30]-[37]. My reasons for this conclusion follow.
As the references to multiple sections of the Act in the delegate’s decision at CB 54 foreshadow and the discussion in WKMZ and STZS indicate, prior to the High Court’s decision in NZYQ, complexities could arise in visa cancellation cases in considering claims or contentions about prolonged immigration detention where, in respect of the visa holder, Australia owed or might owe non-refoulement obligations to the person, the person was stateless, or the government of the country of nationality of the person refused to accept involuntary returnees.
In the present matter, the Representative stated in a submission dated 24 January 2020 that the applicant “is a citizen of Iran and it is not practicable in a foreseeable future to remove him back to Iran”, and thus “the only feasible legal consequence of the cancellation of his visa is for him to be detained in immigration detention indefinitely” (Impractical Removal Contention). Although the Representative did not provide or identify country information on which the Impractical Removal Contention was based, the first respondent’s delegate, in a decision dated 3 February 2020, appears to have accepted an aspect of the contention. This appears in the delegate’s acceptance that “indefinite detention … is a possibility”.
The Tribunal did not expressly deal with the Impractical Removal Contention in its reasons for decision. For example, there is no express consideration of whether, because the applicant was from Iran, it was impractical to return him to Iran on an involuntary basis.
A question is whether the Tribunal implicitly dealt with the Impractical Removal Contention. In relation to this question:
(a)On a fair reading of the Tribunal’s decision, the Tribunal proceeded on the basis that, if it cancelled the applicant’s visa and he was unable to obtain another visa because of “the impacts of ss 46A and 48A and PIC 4013 bar” (Tribunal at [49]), the applicant would be returned to Iran. I draw this conclusion because of the Tribunal’s finding at [58] that “in case of cancellation, there would be a breach of Australia’s non-refoulment obligations”. This finding assumes the applicant would be returned to Iran.
(b)However, the Tribunal does not directly or indirectly address the Impractical Removal Contention in reaching its conclusion concerning the applicant’s return to Iran.
(c)If no country information existed to support the Impractical Removal Contention, this may support an inference that the Tribunal considered and rejected the Impractical Removal Contention. However, as recorded in various sources, country information existed which provided some support for the Impractical Removal Contention. For example, in DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 38; 296 FCR 204 at [80], the Full Court noted that “the Tribunal took into account the long history of the Iranian government not accepting involuntary returnees”.
(d)The Mandatory Legal Consequences Matter required decision-makers to take into account “whether detention is a possible consequence of cancellation and, if so, for how long”. The Tribunal expressly accepted at [48] and [49] that detention was a possible consequence of cancellation, but did not address “for how long”.
(e)I consider that the Impractical Removal Contention had a degree of “prominence” (Singh at [37(1)]) in the applicant’s contentions and in a consideration of the Mandatory Legal Consequences Matter. Among other reasons, “the continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law”: WKMZ at [123].
I consider that, if the Tribunal had given the Impractical Removal Contention proper, genuine and realistic consideration, there would have been a discussion of the issue in its statement of reasons. The absence of a discussion causes me to infer that the Tribunal failed to “deal with” (NABE at [58]), or “grapple with” or “engage with” (WKMZ at [154]) the Impractical Removal Contention, or “give that matter proper, genuine and realistic consideration” (Singh at [30]).
Whether error material
The Tribunal, in considering the Mandatory Legal Consequences Matter, recorded at [49] that “potential detention” and “removal from Australia” were legal consequences and “this aspect weighs in the applicant’s favour”. Both of these consequences had a negative impact on the applicant and weighed in favour of not cancelling the applicant’s visa. Even if the Tribunal had properly understood and considered the Impractical Removal Contention and perhaps reached the same conclusion as the delegate that the indefinite detention was “a possibility”, there is a fair chance the Tribunal would have given the same weight to the Mandatory Legal Consequences Matter in favour of not cancelling the applicant’s visa and thus it could be said that the Tribunal’s ultimate decision to cancel the applicant’s visa would probably have been the same. However, first, it is not for the Court to second-guess how the Tribunal might have weighed matters if it had properly considered the Impractical Removal Contention. Second, the Tribunal at [43] gave “significant weight” to another of the matters listed in PAM3 set out in paragraph 20 above. Thus, it is possible that, if the Tribunal had properly considered the Impractical Removal Contention;
(a)it may have found that the applicant possibly or probably faced indefinite detention in Australia and given this matter “significant weight” in favour of not cancelling the applicant’s visa; and
(b)this, in turn, may have caused the Tribunal in weighing the competing considerations at [63] to decide not to cancel the applicant’s visa.
For the reasons in the above paragraph, if I reviewed the Tribunal’s decision with reference to the law as understood in March 2021, I would conclude that, with reference to LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 (LDPT) at [7] and [14], “there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred”, noting that “’realistic’ is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable” and “meeting that threshold is not onerous”.
Whether Court must apply law post-NZYQ and, if so, whether jurisdictional error in Tribunal’s decision
In NZYQ, which was delivered on 28 November 2023, the High Court stated at [55]:
For the reasons already given, expressing the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia as coming to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future follows directly from the principle in Lim. This is the appropriate expression of the applicable constitutional limitation under a statutory scheme where there is an enforceable duty to remove an alien from Australia as soon as reasonably practicable.
The High Court concluded at [70]:
The necessary conclusion of fact is that by the end of the hearing there was, and had been since 30 May 2023, no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future. It followed from that conclusion of fact that ss 189(1) and 196(1) of the Migration Act did not validly apply to authorise the continuation of the plaintiff's detention then and had not validly applied to authorise the plaintiff's detention since 30 May 2023.
In AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; 304 FCR 586 (AJN23) at [30], the Full Court summarised the ratio in NZYQ as follows:
Detention of a non-citizen by the executive in circumstances where no visa application was on foot, and there was no real prospect of removing the non-citizen in the reasonably foreseeable future, was held to be inconsistent with Ch III of the Constitution and s 196 was to be read down accordingly.
In AJN23 at [32] and [34] the Full Court continued that, in respect of a decision made by the Minister in October 2023 (which was one month before NZYQ was handed down), “the constitutional principles elaborated in NZYQ must therefore be understood to have applied at the time of the Minister’s decision” and, in relation to the obligation on the Minister in October 2023 to take into account the legal consequences of his decision, “such a consideration inevitably required the Minister to act on a correct understanding of the Act, including its constitutional limitations”.
I agree with the first respondent’s written submission at RS [32] that “the overwhelming weight of authority, which binds this Court, confirms that the Tribunal should have proceeded on an understanding of the law as was clarified in NZYQ, regardless of the fact that the Tribunal’s decision was made prior to the clarification in NZYQ”.
Applying the reasoning in AJN23 at [32] and [34] to the present matter, in considering whether there is a jurisdictional error in the Tribunal’s decision, the Court must proceed on the basis that “the constitutional principles elaborated in NZYQ must … be understood to have applied at the time of the [Tribunal’s] decision” in March 2021.
If this Court assumes, or proceeds on the basis, that the law as explained in NZYQ applied at the time of the Tribunal’s decision, the analysis of whether there is a jurisdictional error in the Tribunal’s decision differs from the analysis in paragraphs 53 to 62 above in two ways as follows.
First, applying the reasoning in AJN23, it appears that I must assess whether the Tribunal, on application of the law as explained in NZYQ, made an error in the manner pleaded in ground 1 of the Amended Application. The question is whether the Tribunal adequately considered and dealt with the applicant’s contention concerning indefinite detention in a context where detention was not constitutionally permissible beyond a point “when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future”: NZYQ at [55]. Although the Court’s task involves a hypothetical exercise, for the reasons explained in the following paragraphs, I would infer that the Tribunal at [48] and [49] adequately considered and dealt with the applicant’s contention concerning indefinite detention.
As stated in Singh at [37] (citations omitted):
In determining whether the decision-maker had an active intellectual engagement [with the matter], the following matters are relevant:
(1) First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.
(2)Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a)the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: …
(b)it is necessary to read the reasons in light of the whole case as it was before the Tribunal, … The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
(c)a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: …
The Tribunal accepted at [48] and [49] that the applicant may be detained in immigration detention and “this aspect weighs in the applicant’s favour” against cancellation. While the Tribunal did not expressly refer to the applicant’s contention concerning indefinite detention, a distinction between an analysis of the Tribunal’s decision pre-NZYQ and post-NZYQ is that:
(a)Pre-NZYQ, indefinite detention was not inconsistent with the Constitution and was a real possibility for unlawful non-citizens who could not practically be returned to their country of nationality. In this context, the applicant’s contention concerning indefinite detention was an issue of “prominence” and, in considering the Mandatory Legal Consequences Matter, a matter of “centrality”: Singh at [37(1)].
(b)Post-NZYQ, indefinite detention was inconsistent with Ch III of the Constitution. In this context, the applicant’s contention concerning indefinite detention was no longer an issue of prominence or centrality in considering the Mandatory Legal Consequences Matter.
Further:
(a)Neither the applicant nor Representative provided evidence to the Department or Tribunal which supported the applicant’s contention concerning indefinite detention.
(b)As stated in Singh at [37(2)], “the [decision-maker’s] reasons should not be scrutinised minutely and finely with an eye keenly attuned to the perception of error” and “a conclusion that the decision-maker has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence”.
(c)As stated above, the Tribunal at [48] accepted that “the cancellation of the applicant’s visa could result in the applicant’s detention” and the Tribunal at [49] expressly took into account “potential detention” as an “intended legislative consequence”.
For the above reasons, if I must assume that the law as explained in NZYQ applied at the time of the Tribunal’s decision, I would not infer that the Tribunal did not properly consider the applicant’s contention concerning indefinite detention.
Second, even if I am wrong and the Tribunal erred in not properly considering the applicant’s contention concerning indefinite detention, “the applicant for judicial review bears the onus of proof on the balance of probabilities” on the question of materiality, and the question is “to be answered by reference to the decision that was made”: LPDT at [10].
For the following reasons, I am not persuaded that the Tribunal’s error was material, in the sense of there being “a realistic possibility that the decision that was made in fact could have been different if the error had not occurred”. First, even if the Tribunal had expressly addressed the Impractical Removal Contention, the Tribunal would probably have found, contrary to the finding of the delegate, that indefinite detention in Australia was not a possibility. Second, a consequence of NZYQ has been that persons who might otherwise have been held in immigration detention have been released into the Australian community. The Tribunal at [49] “weigh[ed] in the applicant’s favour”, against the cancellation of his visa, the mandatory legal consequences associated with a cancellation of the applicant’s visa. The consequence of NZYQ could only reduce the weight the Tribunal placed on the mandatory legal consequences in the applicant’s favour. Third, the applicant has not identified a matter which suggests that the Tribunal’s conclusions:
(a)concerning the Mandatory Legal Consequences Matter (that “this aspect weighs in the applicant’s favour” against cancellation); or
(b)concerning the discretionary decision to cancel the applicant’s visa,
could have been any more favourable to the applicant if the Tribunal had properly considered his contention concerning indefinite detention.
In AJN23 at [46]-[57] the Full Court considered, post-NZYQ, whether an error in a decision made by the Minister pre-NZYQ involving the issue of indefinite detention, was material. The Full Court concluded that the error was material. However, that was in a context where “the identified error, namely that on refusal of his visa application the appellant would remain in immigration detention until removed to another country, was centrally relevant to several aspects of the Minister’s reasoning” (at [49]) and “once an important underpinning of the decision in relation to several elements is fundamentally altered, it is simply not possible to have confidence in what the outcome would have been” (at [51]). In contrast, in the present matter, the Tribunal’s error, and the consequence of NZYQ, was relevant to only one aspect of the Tribunal’s decision at [48]-[49].
For the above reasons, ground 1 in the Amended Application does not identify a jurisdictional error in the Tribunal’s decision.
COSTS
Both parties, in their post-hearing submissions, sought an order for costs in the scale amount of $8,371.30 if they succeeded. Neither party opposes an order for costs in the scale amount in favour of the successful party against the unsuccessful party. Since the application is to be dismissed, I will order that the applicant pay the first respondent’s costs in the amount of $8,371.30.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 19 August 2025
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