CMA19 v Minister for Home Affairs - [2020] FCA 736

FEDERAL COURT OF AUSTRALIA
CMA19 v Minister for Home Affairs [2020] FCA 736

File number: VID 888 of 2019

Judge: MURPHY J

Date of judgment: 29 May 2020

Catchwords:
MIGRATION – application for judicial review of a decision to refuse to grant the applicant a protection visa pursuant to s 501(1) of the Migration Act 1958 (Cth) – where a delegate of the Minister had found that the applicant was a refugee and entitled to complementary protection – where the Minister found the applicant failed the character test because he reasonably suspected that the applicant had knowingly and voluntarily contributed to conduct constituting war crimes and/or crimes against humanity

MIGRATION – whether the Minister failed to afford the applicant procedural fairness – whether the Minister took into account an irrelevant consideration or acted for an improper purpose – whether the Minister’s decision was legally unreasonable, irrational or illogical– whether the Minister failed to give proper consideration to the applicant’s representations on harm – whether the Minister failed to engage in an active intellectual process with submissions advanced by the applicant

MIGRATION – where the applicant has been in immigration detention for over a decade – whether the Minister failed to grant or refuse a protection visa to the applicant under s 65 of the Migration Act as soon as reasonably practicable – whether the applicants continuing detention is unlawful – whether it is appropriate to order the applicant’s immediate release from detention

Legislation: Migration Act 1958 (Cth)

Cases cited:
Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562
ASP15 and Another v Commonwealth and Another [2016] FCAFC 145; (2016) 248 FCR 372
Attorney-General (Minister of Immigration) v Tamil X and Anor [2010] NZSC 107
Australian Competition and Consumer Commission v Chen [2003] FCA 897; (2003) 132 FCR 309
Australian Competition and Consumer Commission v Eurong Beach Resort Ltd and Ors [2005] FCA 1134
Australian Competition and Consumer Commission v Knight [2007] FCA 1011; (2007) ATPR 42-165
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513
AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2016) 248 FCR 456
BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131
BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352
Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576
Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1
DHW17 v Minister for Home Affairs [2019] FCA 985
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151; (2004) 139 FCR 292
Durani v Minister for Immigration and Border Protection [2013] FCA 1264; (2013) 223 FCR 391
Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421
FPU18 v Minister for Immigration and Border Protection [2018] FCA 1606
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 374 ALR 601
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; (2016) 160 ALD 123
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; (2013) 85 NSWLR 86
M238 of 2002 v The Honourable Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260
Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; (2016) 249 FCR 275
Minister for Foreign Affairs v Lee [2014] FCA 927; (2014) 227 FCR 279
Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569
Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54
Misiura v Minister for Immigration and Multicultural Affairs [2001] FCA 133
MZYVM v Minister for Immigration and Citizenship [2013] FCA 79; (2013) 139 ALD 497
NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2
Navoto v Minister for Home Affairs [2019] FCAFC 135
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
Oluwafemi v Minister for Home Affairs [2018] FCA 1389
Picard v Minister for Immigration and Border Protection [2015] FCA 1430
Plaintiff M76/2013 v Minister for Immigration and Border Protection [2013] HCA 53; (2013) 251 CLR 322
Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219
Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; (2004) 225 CLR 1
Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200
Snedden v Minister for Justice [2014] FCAFC 156; (2014) 230 FCR 82
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Thompson v Randwick Corporation [1950] HCA 33; (1950) 81 CLR 87
Thornton v Repatriation Commission [1981] FCA 71; (1981) 35 ALR 485
Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc [1993] FCA 105; (1993) 41 FCR 89
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296
WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625
WASB v Minister for Immigration and Citizenship [2013] FCA 1016; (2013) 217 FCR 292

Date of hearing: 3 December 2019

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 244

Counsel for the Applicant: Ms C Symons and Mr S McDonald

Solicitor for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Mr C Tran

Solicitor for the Respondents: Australian Government Solicitor

ORDERS

VID 888 of 2019

BETWEEN:
CMA19

Applicant

AND:
MINISTER FOR HOME AFFAIRS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

JUDGE:

MURPHY J

DATE OF ORDER:

29 MAY 2020

THE COURT ORDERS THAT:
1.Pursuant to rule 30.11 of the Federal Court Rules 2011 (Cth) this proceeding be consolidated with proceeding VID 351/2020, and the consolidated proceeding be known as CMA19 v Minister for Home Affairs and Anor and identified with proceeding number VID 888/2019.
2.A writ of certiorari issue to quash the decision of the First Respondent made on 24 July 2019 to refuse to grant the Applicant a protection visa.
3.A writ of mandamus issue to require the First Respondent (whether personally or by his delegate) to determine the Applicant’s application for a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act) as soon as reasonably practicable, and within a period to be fixed following further submissions.
4.The First Respondent pay the Applicant’s costs of the application.

THE COURT DECLARES THAT:
5.The First Respondent failed (whether personally or by his delegate) to make a decision to grant or refuse to grant the Applicant a Safe Haven Enterprise visa (protection visa) under s 65 of the Act as soon as reasonably practicable.
6.The First Respondent has failed (whether personally or by his delegate) to make a decision whether to exercise the discretion under s 501 of the Act to refuse to grant the Applicant a protection visa as soon as reasonably practicable.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
MURPHY J:

The applicant is a young Sri Lankan man, of Tamil ethnicity and Y faith. He spent from the age of 15 until he was 20 years old as a member of the Liberation Tigers of Tamil Eelam (LTTE), actively engaged in the civil war in Sri Lanka. He fled that country in May 2007 to Country A, and arrived in Australia by boat, without a visa, in December 2009. He has been held in immigration detention ever since.
The tragedy of this case is that the applicant has lost the prime of his life; having been recruited as a child to fight in a brutal civil war from ages 15 to 20, and having then been confined to immigration detention in Australia from ages 24 to 34, with no end in sight.
The applicant applied for a Safe Haven Enterprise (subclass 790) visa (protection visa) on 30 March 2016, doing so promptly once the Minister lifted the bar which prohibited him from making a valid visa application. On 24 July 2019 the first respondent, the Minister for Home Affairs (the Minister), personally decided to refuse to grant the applicant the visa on character grounds pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act). By this proceeding, the applicant seeks judicial review of that decision, declarations that his detention has been and continues to be unlawful and an order that he be released from detention.
The Minister’s decision to refuse to grant the applicant the visa was made against the backdrop that:
(a)from the ages of 15 to 20 the applicant was an active member of the LTTE and a combatant in the civil war. That included about a year working as an intelligence officer at around age 19 when his activities included surveillance and reporting on civilians who were thought to be cooperating with or affiliated to the Sri Lankan Army and authorities. The applicant accepted that people who he reported on may subsequently have been killed on the orders of his superiors in the LTTE. The applicant’s representative submitted that those activities were undertaken under duress or involuntarily; but the Minister found that the applicant acted voluntarily;
(b)regardless of whether or not the applicant acted under duress, he has now been detained for more than a decade, and the Minister accepts that there is currently no known prospect of removing the applicant to any other country. He therefore faces indefinite ongoing detention;
(c)the Minister has positively concluded that the applicant poses no risk of harm to the Australian community;
(d)the applicant’s mental health has suffered badly from his ongoing detention. He attempted self-harm in March 2011 and again in September 2012, and he has twice required inpatient treatment at a mental health hospital, first in July 2015 for a period of six weeks, and then in December 2016 for three weeks;
(e)a strikingly large number of people of apparently good repute have provided character references attesting to the applicant’s good character, including a former Centre Manager and former Serco officers at MITA Detention Centre where the applicant has been detained, and a diverse range of other people of apparently good repute who have met or visited the applicant over his years in detention. The number and quality of the character references strongly support the Minister’s conclusion that the applicant does not present a risk to the Australian community; and
(f)the Commonwealth Ombudsman has repeatedly recommended that having regard to the applicant’s mental health and the length of his detention he should be granted a bridging visa and be released into community detention.
For the reasons I explain, I am satisfied that the Minister fell into jurisdictional error in deciding to refuse to grant the applicant a protection visa under s 501(1) of the Act. It is appropriate to order that the Minister’s decision be quashed, and that the applicant’s application for the visa under s 65 of the Act be re-determined in accordance with law. Further, given the serious and unacceptable delay in determining the applicant’s protection visa application it is appropriate to make declarations to record that fact, and to order the Minister to re-determine the application as soon as reasonably practicable, and within a time frame to be fixed. I will hear submissions from the parties as to a reasonable period to fix within which the application must be re-determined.
The applicant also seeks a declaration that his continuing detention is unlawful and not authorised by Division 7 of Part 2 of the Act because its duration exceeded that which was reasonably necessary to consider and determine his application, and orders for his release forthwith. For the reasons I explain, in my view the authorities provide that the applicant’s past and continuing detention is lawful.
Having regard to the order requiring the re-determination of the application for a protection visa, the next step in the proceeding will be either an appeal or that re-determination. But further hearings and more litigation while the applicant remains in detention is not the best way forward. This case starkly reveals the stalemate that has arisen. The Minister has decided that the applicant should not be granted a visa principally because, in the Minister’s view, the Australian community would expect that a person who engaged in intelligence activities for the LTTE, which the Minister reasonably suspected constituted war crimes or crimes against humanity, should be denied a visa. But the applicant cannot be returned to Sri Lanka because to do so would be in breach of Australia’s international non-refoulement obligations and there is no known prospect of him being removed to any other country.
There is a real risk that if the applicant is required to remain in detention for a further indefinite period his mental health will continue to deteriorate and his life will be at risk. In circumstances where the Minister accepts that the applicant poses no risk to the Australian community, in my respectful view the Minister should give urgent consideration to the special circumstances of the applicant’s case, including considering community detention. It is a matter for the Minister to decide, but this young man has already spent more than a decade in immigration detention, his life is passing fast, and it does not serve anyone for him to be stuck there indefinitely.
THE FACTUAL AND PROCEDURAL HISTORY
I have drawn the following from the materials before the Court.
The applicant is 34 year old Tamil man from Area C District in Sri Lanka. He is married and has a young daughter but because of his circumstances he has been separated from his wife and child since November 2009.
In May 2007, while the civil war in Sri Lanka raged, the applicant fled to Country A. He was followed not long afterwards by his wife, daughter and mother. While in Country A the applicant registered with the UNHCR and he was interviewed for a Refugee Status Determination on 18 February 2009. His status as a refugee was not however determined by November 2009 when he left Country A to travel to Australia, via Country B.
The applicant arrived in Australia by boat in December 2009, without a visa. He was therefore an ‘unauthorised maritime arrival’ as then defined under the Act. He was detained in immigration detention where he has remained ever since.
The Refugee Status Assessment
As an ‘unauthorised maritime arrival’, the appellant was not permitted to apply for a visa. Instead, his claim for protection as a refugee was assessed by a process of an initial Refugee Status Assessment (RSA) conducted by an officer of the Department of Immigration and Citizenship (Department).
It should be noted that over the period the applicant has been in detention, the name and responsibilities of the relevant Department and Minister have changed and relevant decisions have been made by different Ministers. For example, it was the Minister for Immigration and Border Protection who lifted the s 46A(1) bar on lodgement of a valid visa application, and it was the Minister for Home Affairs who made the decision which is the subject of judicial review. The proceeding was commenced against the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs but the first respondent was later amended to the Minister for Home Affairs. For convenience, I use the terms “Department” and “Minister” uniformly for the different names of the respective Ministers and their Departments.
On 19 December 2009 the applicant was interviewed for the purpose of initial entry processing. On 30 January 2010 he applied for a RSA and in support of that application he provided a statutory declaration dated 30 January 2010 to the Department. He claimed to fear that if he returned to Sri Lanka he will be forced to join the Karuna or Pillayan groups, both Tamil-based paramilitary organisations, or that he would be killed, and that the Sri Lankan authorities would not protect him. He made no mention of having had any involvement in the LTTE. The applicant was interviewed for the RSA by a delegate of the Minister on 4 February 2010 and he again said nothing about any LTTE involvement.
On 17 March 2010, a Departmental officer concluded that the applicant was not a refugee and refused the request for an RSA because he did not hold a profile of concern to the Sri Lankan government based on his lawful exit from that country in possession of a genuine passport issued in his name and due to improvements in the security situation in eastern Sri Lanka.
Then, on 23 March 2010 the Department received a Refugee Status Assessment Form dated 18 February 2009 from the UNHCR in Country A, which purported to record the claims the applicant made to that organisation. In summary, it recorded the applicant as having made the following claims:
(a)he joined the LTTE in 2000, when he was only 15 years old. He did so of “his own free will” because he was angry that his father had been killed and burnt by the Sinhalese on account of being a Tamil;
(b)he undertook military training for six months and was then placed in a “battle team” under the leadership of Colonel P, based in Area C. He took part in 15-20 battles against the SLA and organisations affiliated to the SLA during which he shot at people. He was however unsure whether he had killed anyone because, as he later explained, the shooting was mostly at a distance, at night and in jungle;
(c)after about one year in the battle team, in about 2002/2003, he was selected to join the LTTE Intelligence Unit under Colonel M. He held that role for approximately one year and was assigned to collect information and conduct surveillance in Town C. This was a very dangerous job because of Sri Lankan police activity and he was in constant danger of being discovered;
(d)there were two types of intelligence information to be obtained, “military” and “normal”. His task was to obtain military information, being information on organisations affiliated to the SLA. Another aspect of his job was to get information from the public and provide that back to the Intelligence office during weekly meetings with Colonel M. During those meetings Colonel M would make decisions and delegate further work. For instance, if a particular group or person affiliated with the SLA made frequent visits to the SLA in his area he would inform Colonel M of that. The Colonel would then decide the course of action to be taken. If Colonel M deemed the person to be “problematic” he would order the person to be shot. He did not however personally harm any civilian in the course of his duty;
(e)in about 2004/2005 the applicant was assigned to the Politics Unit. Before starting work with that unit he was sent for six months intensive training including in heavy weapons. He was then sent to work as a political leader in Town C where he met with the founder and leader of the LTTE, Mr Prabakharan. In this role he had 35 subordinates and his duties included meeting with government servants in the area, handling corruption issues, managing funds and food supplies for the LTTE and handling complaints. In this period he did not engage in any battles and neither he nor his subordinates harmed any civilians in the course of their duty;
(f)his ageing mother pleaded with him to leave the LTTE so he could care for her and she wrote a letter to Mr Prabakharan, seeking the applicant’s release from the LTTE. There existed a ruling within the LTTE that those who had served more than five years could apply to leave provided there was a good reason for doing so. He was permitted to leave but his punishment for doing so was that he was required to work as a cook for the LTTE for about six months. He was ultimately released in May 2006 after some LTTE leaders in the area spoke up on his behalf;
(g)following release from the LTTE he could not live in Area C because he feared for his life there, and he moved to Town D where his fiancée lived. He was not though safe in Town D because of the poor security situation and the ongoing battles in Town D. The SLA regularly conducted checks, and he was rounded up twice. On one occasion he was detained and not permitted to leave for a period. There was also racial conflict and tension between the Tamils and Muslims in the area;
(h)because of the deteriorating security situation in Town D the applicant followed Mr X and moved to Town E, to live in a building there. While living in Town E he married his fiancée. It was not safe for him to stay in Town E because the Karuna and Pillayan groups had offices there and they were looking for new faces in the area and would round them up. To avoid them he hid and stayed indoors in the church or in a neighbour’s house;
(i)in August 2006 he and his wife moved to Town F to live with his Mr Z. In Town F he faced problems because it was a Sinhalese area with very few Tamil people. The Sri Lankan authorities came to know of his presence in the area and questioned him on several occasions. They threatened him that if there were any bombings in the area he would be held responsible. As a result he was unable to remain in Town F;
(j)he and his wife returned to Town D but they could not live there because his house, along with others, had been destroyed in the war. Apart from that, he also feared the Karuna and Pillayan groups who had set up offices in many areas and were moving towards Town D. There were also frequent inspections and roundups by the SLA;
(k)he believed that if returned to Sri Lanka he would be abducted or killed by the Karuna and Pillayan groups. He had worked with the leaders of both groups when they were still LTTE members and they knew of his LTTE involvement and activities. At that time those leaders were members of Parliament or held positions in the Area C government and worked with the government in killing many LTTE members and supporters. He also feared the Sri Lankan authorities as a former LTTE member; and
(l)he regretted joining the LTTE. The only reason he did so was because he was angry over the murder of his father and his joining was at a time when he was young and impressionable. He wanted nothing more to do with the LTTE.

Following receipt of the Refugee Status Assessment Form from the UNHCR, the delegate held a second interview with the applicant on 20 April 2010. During this interview the applicant said that the claims he made to the UNHCR were fabricated and that he was never a member of the LTTE. However, on 29 May 2010 the applicant’s migration agent informed the Department that during an interview with the Australian Security Intelligence Organisation the applicant had made admissions that he had been a member of the LTTE.
On 16 August 2010 the applicant’s migration agent submitted a further statutory declaration, incorrectly dated 5 January 2010 (the August 2010 Declaration). The applicant said that he had lied about his LTTE involvement in his January 2010 Declaration because he heard that Australia was refusing asylum to Tamils who had been LTTE members, and he could not return to Sri Lanka where his life was in danger. He said that the statement he provided to the UNHCR was “true and correct in every respect”.
On 2 September 2010 the applicant was again interviewed by a delegate of the Minister, including so as to afford him an opportunity to provide information as to why he should not be excluded from protection under the provisions of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention) by operation of Article IF. That Article, now reflected in s 5H(2)(a) of the Act, relevantly provides:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a)he has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
….
In the third interview the applicant reiterated what he had said to the UNHCR, including the following:
(a)he was approached by the LTTE when he was only 15 years old. He was reluctant to join and they threatened that if he did not join they would kill him, harm his mother and force his younger brother to join;
(b)when he attended the initial LTTE training camp he and some other boys tried to escape. They were caught and punished by having their head shaved and beaten in front of others in the camp;
(c)when he was assigned to the Intelligence Unit he was required to meet daily with and take direction from Colonel M. His role was to identify civilians suspected of working with the SLA or passing through LTTE controlled areas. Once a person was identified they were detained and transported back to base in a van. Those people were then handed over to the Central Intelligence unit (CI) who undertook their own questioning. He was aware that CI would imprison people of concern to the LTTE and kill them if they were of major concern, but he was not aware of any cases of people he had detained and handed over subsequently being killed;
(d)in 2004 he was deployed to Town C and he was given a more responsible role; to meet with people who were of adverse interest to the LTTE, such as those people who may have been involved in abducting young boys. He would warn them if they continued their activities they would be kidnapped or shot by the Intelligence Unit and if his warnings were ignored he would inform Colonel M. He came to realise that he was the cause of other people suffering, but he was being monitored and he feared he would be killed if he did not fulfil his duties; and
(e)accordingly, in early 2005 at the age of 19, he sought transfer to the Politics Unit. In this role he worked closely with the LTTE ‘government’ and investigated allegations of corruption against LTTE government officials. After the representations by his mother he was released from the LTTE in May 2006.
On 1 October 2010 the applicant’s migration agent provided a further submission to the RSA addressing concerns as to the operation of Article 1F in relation to the applicant’s claim. The submission reiterated that the applicant had been recruited into the LTTE by threats to kill him or to forcibly recruit his younger brother. It said that the applicant never personally harmed anyone and he was sorry for any harsh interrogation which may have followed the arrest of SLA spies that he had reported on. The submission included a copy of the New Zealand Supreme Court judgment in the Attorney-General (Minister of Immigration) v Tamil X and Anor [2010] NZSC 107 in which the Court rejected a government appeal against a finding that the LTTE involvement of an asylum seeker did not fall within Article 1F of the Convention.
On 11 May 2011 the RSA was completed. The delegate found that while the applicant’s fear of persecution, as defined under the Refugees Convention, was well-founded, he was excluded from protection under Article 1F(a) on the basis that there were “serious reasons for considering” that, in his role as an intelligence officer for the LTTE in Area C between 2003 and 2004, the applicant had participated either directly or as an accessory in the abduction, detention, interrogation, execution and disappearance of members of the Tamil civilian population who were suspected of having links to the SLA, which in some cases would have amounted to a war crime or a crime against humanity.
The Independent Merits Review
The applicant sought Independent Merits Review (IMR) of the RSA decision and he was interviewed by another delegate of the Minister on 9 August 2011.
On 20 January 2012 the delegate affirmed the primary finding of the RSA that, while the applicant had a well-founded fear of persecution in Sri Lanka which may result in his meeting the definition of a refugee under Article 1A of the Refugees Convention, there were serious reasons for considering that he was actively involved in the commission of war crimes or crimes against humanity and was therefore excluded from protection pursuant to Article 1F(a) and therefore does not meet the criterion for a protection visa set out in s 36(2) of the Act.
Judicial Review
On 24 February 2012 the applicant sought judicial review of the IMR assessment in the Federal Magistrates Court, doing so on the basis that he had been denied procedural fairness because certain country information reports relied on by the IMR were not put him to comment. On 5 September 2012 that application was dismissed. On 25 September 2012 the applicant appealed to the Federal Court. The appeal was dismissed on 13 February 2013: MZYVM v Minister for Immigration and Citizenship [2013] FCA 79; (2013) 139 ALD 497.
The International Treaties Obligations Assessment
An International Treaties Obligations Assessment (ITOA) was subsequently undertaken by a delegate of the Minister, for the purpose of assessing whether Australia had non-refoulement obligations in relation to the applicant. On 16 June 2014 the delegate concluded that:
(a)the applicant had a well-founded fear of persecution in Sri Lanka for a Refugees Convention reason but was not entitled to protection by Australia as there were serious reasons for considering that he had committed crimes against humanity in Sri Lanka; and
(b)the applicant faced a real risk of being subject to significant harm as a necessary and foreseeable consequence of being returned to Sri Lanka, which would breach the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights, but did not satisfy the complementary protection criteria in s 36(2)(aa) by operation of s 36(2C).
The protection visa application
On 2 December 2015 the Minister exercised the power under s 46A(2) of the Act to allow the applicant to make, for the first time, a valid application for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (SHEV). By that point the applicant had been in detention for six years.
On 30 March 2016 the applicant lodged an application for a protection visa. The applicant’s representative, Victoria Legal Aid, made four separate written submissions in support of the application, dated 30 March 2016, 23 August 2016, 26 August 2016 and 22 January 2017, and the applicant was interviewed by a delegate of the Minister (the PVA delegate) on 6 December 2016.
On 7 March 2017 the PVA delegate completed the Protection Visa Assessment (the PVA decision). The PVA delegate found that the applicant is a refugee as defined in s 5H(1) of the Act because he has a well-founded fear of persecution in Sri Lanka for a Refugees Convention reason, and was also satisfied that the applicant is owed complementary protection as provided for in s 36(2)(aa) of the Act. The PVA delegate was satisfied that there were not serious reasons for considering the applicant had committed a war crime or a crime against humanity because, as a result of duress, the applicant did not possess the necessary mental elements of intent and knowledge in respect of the relevant conduct. In making that finding, the PVA delegate undertook a thorough review of the evidence, took into account the contrary findings of the RSA, IMR and ITOA, and made detailed factual findings.
The PVA delegate’s findings include the following:
125.…I am satisfied the applicant was forcibly recruited, as he claims. His explanation regarding the information he supplied to the UNHCR in [Country A] is plausible, and his claim is entirely consistent with independent information about the practices of the LTTE. While I accept the applicant may have harboured anger about the death of his father, I reject that such a ‘decision’ of a 15 year old child, accompanied by threats of harm against him and his family, could realistically be characterised as voluntary.
…
129.There are strong reasons for considering the applicant joined the LTTE due to fear of imminent death or of continuing or imminent serious bodily harm against him or his family and in circumstances where he felt he had no choice but to comply with their demands. This amounts to a circumstance of duress.
130.The applicant described at the SHEV interview on 9 December 2016 the fear he felt after being taken to a training camp in the jungle. He described attempting to escape from the LTTE a short time later and the punishment he received as a result: he was beaten, had his head shaved in front of other recruits and was placed in an underground bunker. He later witnessed other recruits similarly punished. This experience is also consistent with information reported by the [Office of the High Commissioner for Human Rights]…
131.The conditions in which the applicant was forcibly recruited and held against his will during his initial training were sufficiently violent and threatening to constitute a subjective (if not objective) fear of a continuing threat of serious bodily harm.
132.After completing his military service in an LTTE jungle battalion under the leadership of Karuna, the applicant, through no choice of his own, was transferred to the intelligence wing in late 2002 where the particular criminal conduct relevant to this assessment occurred. This was around the time of his 17th birthday. The applicant had by then spent two years under the exclusive control of the LTTE and had been denied any contact with his family and friends. I conclude that the applicant’s military service and his transfer to the intelligence wing occurred under a circumstance of duress.
133.According to his evidence given over several interviews with the Department, the applicant served the LTTE for around a year each in both internal and external intelligence roles while he was 17 and 18 years old. He operated in an undercover intelligence capacity in a government-controlled area in which any slippage of his persona would have exposed him as an LTTE spy and resulted in his serious bodily harm or death at the hands of paramilitaries or government forces. Consistent with country information referenced above, in the event he had abandoned his role, he would almost certainly have been captured by these groups and subjected to serious bodily harm or death. Within the LTTE, any expression of wavering or reticence in relation to his duties would raise fears that he could compromise their mission or suspicion of treason.
134.The applicant has stated that he was aware that ‘traitors’ or others of concern to the LTTE were dealt with harshly through imprisonment, disappearance or summary execution. The applicant’s account of his circumstances is consistent with numerous reports about military and political developments at the time. …
135.The applicant claims that as he started to become aware of the consequences of his work, he sought to transfer to the political wing. This was agreed in late 2004, around the time of the applicant’s 19th birthday.
136.It is my view that these circumstances constitute duress. The applicant had no option but to carry out his duties as directed: failure to do so would have likely resulted in the serious bodily harm or death of the applicant or of his mother or brother, who, like the applicant, had no option to relocate or to seek out protection from any other source. There is no available evidence that suggests the government of Sri Lanka offered sanctuary or protection to people such as the applicant and his family, fleeing harm from the LTTE and a range of paramilitary groups operating in [Area C]. On the contrary, there is extensive evidence that escaped LTTE operatives were either imprisoned as terrorists or killed in summary executions, generally after being tortured to extract information. The final stages of the conflict in 2009 offer a compelling record of the lack of internal flight options available to Tamils generally, and to LTTE operatives in particular.
The PVA delegate summarised the factors considered in relation to duress, as follows:
139.I have also considered the requirement at Article 31(1)(d) of the Rome Statute that, for duress to be established, ‘the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided.’ In assessing this, I take into account a range of mitigating factors discussed throughout this assessment:
Ÿthe applicant’s forcible recruitment into the LTTE,
Ÿthe fact that the applicant was just 15 when he was separated from his family and placed into a jungle camp and subject to training and indoctrination as an LTTE operative,
Ÿthe fact that the applicant attempted to escape from the LTTE training camp and was severely punished,
Ÿthe fact that the applicant witnessed and was aware of other conscripts seeking to escape from the LTTE training camp who were similarly severely punished,
Ÿthe fact that the applicant did not voluntarily seek to transfer to the Intelligence division,
Ÿthe fact that the applicant was just 17 at the time of his transfer to the Intelligence division, and so below the age of criminal responsibility according to Article 26 of the Rome Statute,
Ÿthe fact that the conduct which gives rise to exclusion considerations occurred for a period not exceeding one year once the applicant had reached the age of 18,
Ÿthe fact that the applicant actively sought and eventually did obtain a transfer from the Intelligence Division as he became more aware of its operations and the consequences of his work there,
Ÿthat the applicant described his time in the LTTE, including while in the intelligence division as being in fear of serious harm from the LTTE, the SLA or pro-government militia if he deserted.
Ÿthat the applicant (and his family) had no option to escape and relocate to another part of Sri Lanka, and that no state protection was available to them.
On 14 March 2017, the Department informed Victoria Legal Aid that the applicant had been found to be a refugee and that he was not excluded from refugee status under Article 1F of the Refugees Convention.
For reasons which are not clear on the materials the applicant was not provided with a copy of the PVA decision at that time.
The Notice of Intention to Consider Refusal
On 17 May 2017, only two months after the PVA delegate found that the applicant was entitled to protection under the Act, the Department sent the applicant a “Notice of intention to consider refusal of your visa application under s 501(1) of the Migration Act 1958” (the NOICR). The notice informed the applicant that consideration was to be given as to whether to refuse his visa application on the basis that the nature and extent of his involvement in the activities of the LTTE was such that he may not meet the ‘character test’ by virtue of s 501(6)(ba)(iii) of the Act.
Section 501(6)(ba)(iii) provides:
(6) For the purposes of this section, a person does not pass the character test if:
…
(ba)the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:
…
(iii)the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;
whether or not the person, or another person, has been convicted of an offence constituted by the conduct;
…
The NOICR did not state whether the Minister personally or a delegate would be the decision-maker, and said:
If the decision-maker is a delegate of the Minister, they must follow Ministerial Direction 65 - Visa Refusal and Cancellation under s 501. Direction 65 is enclosed for your information. If the Minister makes a decision personally, he or she is not required to give consideration to Direction 65, though it provides a broad indication of the types of issues that he or she may take into account.
Read Direction 65 carefully. As you are a visa applicant you should address each paragraph in Part B that is relevant to your circumstances. Annex A of Direction 65 includes information for decision-makers on how to apply the character test provisions.
On 18 May 2017 Victoria Legal Aid requested, and was subsequently provided, a copy of the PVA decision.
On 20 June 2017 Victoria Legal Aid made submissions in response to the NOICR which in broad summary contended that the applicant passed the character test, was a person of good character, posed no risk to the Australian community and should be granted a visa. The submissions expressly relied upon the earlier submissions provided to the Department in relation to the applicant’s visa application.
The attachments to the submissions included numerous character references attesting to the applicant’s good character, including from:
(a)Mr Garry Simpson, the Centre Manager at the Melbourne Immigration Transit Accommodation (MITA) detention centre between November 2014 and August 2015;
(b)Mr Chris Papas, a Serco officer at MITA who had known the applicant since his arrival there in 2012;
(c)Ms Shona Amos, a Serco officer at MITA between 2012 and 2015;
(d)Ms Kristal Hrysicos, an ESL teacher who had visited the applicant approximately weekly at MITA since early 2013;
(e)Mr Patrick Walsh, who had visited the applicant at MITA and became his friend;
(f)Ms Dori Ellington, a chef who had organised a cooking class at MITA that the applicant had participated in and subsequently became his friend;
(g)Sister Elizabeth Young, who first met with the applicant when she was a pastoral worker at the Curtin Detention Centre in 2012 and became a regular weekly visitor for the nine months in which he lived in Port Augusta Immigration Residential Housing in that year. She stayed in contact with the applicant when he moved to MITA and when she moved to Melbourne in 2017, she recommenced visiting him;
(h)Dr Eva Saar, a pharmacist working in the Victorian Department of Justice & Regulation, who had visited the applicant approximately weekly since May 2015;
(i)Ms Denise Becker, a bio-statistician with the Murdoch Children’s Research Institute at the Royal Children’s Hospital, who first met the applicant at MITA in early 2013 and who has written multiple letters in support of the applicant’s release from immigration detention;
(j)Ms Caroline McLennan, who had visited the applicant at MITA since 2012;
(k)Ms Stephanie Flynn, who had visited the applicant at MITA since 2013;
(l)Ms Eliza Leverett, a high school teacher who had visited the applicant at MITA since 2014;
(m)Mr Yusuke Akai, who had been the applicant’s guitar teacher;
(n)Dr Mark Chu, a senior forensic toxicologist, who had visited the applicant at MITA since 2016 after meeting him in 2015;
(o)Mr Brad Coath, who had visited the applicant at MITA since 2012 and who organised a group of men, including the applicant, from MITA to cook lunches at churches around Melbourne in 2014 and 2015;
(p)Father Peter Carrucan of the Catholic Archdiocese of Melbourne, who first met the applicant as a volunteer Pastoral Care worker in 2009, and had regularly visited the applicant at MITA;
(q)Ms Donna Lynch, a Youth residential care worker with Berry Street Victoria, who met the applicant in 2014 and who had visited him regularly since then; and
(r)Dr Colleen Jackson, a catholic nun who had known the applicant since 2011.

The comments made about the applicant in these letters of support describe the applicant in glowing terms. Despite the applicant’s limited capacity to be involved in the community he was variously described as being a close friend and, in one case, “a very important part of my family” in the letters. One of the letters described the applicant as “one of the most gentle and engaging people I have ever met” and another said that the applicant was “one of the most sincere and respectful students I have ever had in my teaching career that spans over 15 years”. Mr Simpson, the former Centre Manager at MITA said “I welcome [the applicant] into Australian society as [a] refugee and can truly identify and justify the benefits he can make to our country and our culture.” Ms Amos, a former Serco Officer, said “I am continually moved by his gentle nature, his generous heart, his hard work ethic, his sense of compassion, his commitment to seeing the best in people and his desire to make a positive and heart-felt difference in the lives of those around him.”
The applicant’s submissions of 20 June 2017 concluded as follows:
It can be safely concluded that [the applicant] passes the character test. He is manifestly of good character. There is no evidence he is of any risk whatsoever to the Australian community. None of these contentions encounter any serious counterargument. He has endured an extraordinarily long period of immigration detention. I respectfully request that the resolution of his visa application be expedited consistent with fair consideration of the question regarding his character, and that while the final steps in the processing of his application are completed, that he be granted a bridging visa.
On 29 August 2017 the Department informed Victoria Legal Aid that due to a pending court appearance by the applicant scheduled for 14 September 2017, the Department would await the outcome of that court matter before progressing consideration of the applicant’s case. The pending court appearance concerned an application for a provisional apprehended domestic violence order, in relation to telephone communications between the applicant and a woman with whom he had previously been detained.
On 20 October 2017 Victoria Legal Aid sent an email to the Department stating that, while the applicant strenuously denied the allegations, in order not to further delay consideration of his visa application, he had consented without admissions to the provisional order sought and that he had not been found guilty of an offence. The court matter having been resolved, Victoria Legal Aid requested that the applicant’s visa application be expeditiously finalised. On 24 October 2017 Victoria Legal Aid informed the Department that it did not wish to add anything further beyond what was contained in the email of 20 October 2017.
It is worth noting that in later submissions dated 15 April 2019 the applicant said that he had been friends with the woman while in detention but they had never had a romantic relationship. He said that was a disappointment to the complainant and her conduct became obsessive. When she learned that he was in a relationship with another woman, she lodged the complaint. The applicant’s girlfriend provided a statement essentially reiterating those matters and detailing her harassment by the complainant by telephone and social media. The submissions noted that the applicant consented to the provisional apprehended domestic violence order without admissions, it was not a criminal sentence, he had not breached the provisional order which expired in August 2018, and he was not charged with any offence in connection with the allegations. The Minister ultimately accepted the applicant’s submissions in this regard.
The next procedural occurrence disclosed in the Court Book did not occur until 18 January 2019, approximately 3 years after the applicant had lodged his visa application, 15 months after he was issued with the NOICR, and some 451 days after the last submissions by the applicant in late October 2017. On 18 January 2019 the Department wrote to Victoria Legal Aid stating that “new information” had been identified which the decision-maker may take into account. The so-called “new information” was the ITOA assessment dated 16 June 2014 which had been known to the parties since that date and had been the subject of extensive submissions. That appears to have further delayed consideration of the applicant’s visa application.
The applicant relies upon the unexplained delay of 451 days between 24 October 2017 and 18 January 2019, during which time it was not apparent that any action was taken in relation to the applicant’s visa application, as demonstrating a failure by the Minister or his delegate to make a decision in relation to the applicant’s visa application within a reasonable time.
On 28 February 2019, Ministerial Direction No. 65 (Direction 65) was replaced by the new Ministerial Direction No. 79 (Direction 79), which was only different in ways which are not material for the purposes of this application. On 1 March 2019 the Department wrote to Victoria Legal Aid stating that Direction 79 would be used in place of Direction 65. The letter substantially reproduced the paragraphs of the NOICR but with reference to Direction 79 rather than Direction 65. The letter invited further submission from the applicant, in response to which the applicant’s representatives lodged the 15 April 2019 submissions referred to above.
By that time the applicant had been detained for more than nine years and the submissions again urged prompt consideration of his visa application.
THE MINISTER’S DECISION
On 24 July 2019, the Minister, acting personally, decided to refuse to grant the applicant a protection visa, doing so on the basis that the applicant did not pass the character test under s 501(1) of the Act.
The Minister said (at [97]-[98]) that he reasonably suspected that the applicant “joined the LTTE in 2000 at the age of 15 years of his own free will and performed his duties voluntarily during his service in the LTTE.” He said (at [96]):
On balance, and contrary to the PVA findings, I have not accepted [the applicant’s] claims that his activities with the LTTE were not voluntary.
On the basis of the applicant’s activities as an intelligence officer with the LTTE the Minister concluded (at [98]) that he reasonably suspected that the applicant “knowingly and voluntarily contributed to war crimes and/or crimes against humanity, and thus actively participated in, or ha[d] at least been concerned are implicated in such conduct”, and thus had been “involved in” such conduct. The Minister’s factual findings in this respect directly contradicted the findings of the PVA delegate. On that basis the Minister found that the applicant had failed to satisfy the Minister that he passed the character test by virtue of s 501(6)(ba)(ii) of the Act.
The Minister then turned to consider whether to exercise the discretion under s 501(1) of the Act to refuse to grant the applicant a protection visa, doing so under the various headings in Direction 79.
Under the heading “Protection of the Australian community” the Minister addressed two considerations: the nature and seriousness of conduct; and the risk to the Australian community.
Under the subheading “Nature and seriousness of conduct” the Minister said that war crimes and crimes against humanity are viewed seriously by the Australian community, and in that regard the Minister considered the applicant’s conduct to be serious in nature (at [104]-[105]).
Under the subheading “Risk to the Australian community” the Minister concluded that:
(a)given that the applicant left the LTTE three years before its defeat, the likelihood of the applicant participating in conduct of a similar nature was low (at [109]);
(b)the applicant is not a security risk (at [110]); and
(c)the applicant has not been recorded as having any major adverse behavioural incidents during more than nine years in immigration detention, and many people including Departmental and detention centre staff had written letters of support speaking favourably in relation to his character and demeanour (at [112]).
Taking into account those factors, the Minister concluded (at [113]) that the applicant would not present a risk to the Australian community.
Under the heading “Expectations of the Australian community” the Minister said the following (at [115]-[119]):
115.I have considered that Australia has a low tolerance of any serious conduct by visa applicants.
116.I have noted that [the applicant] has no recorded criminal history or reported major behavioural incidents in immigration detention. Further, I have considered the submission provided by [the applicant’s] legal representative that contends [the applicant] is of good character, on the basis of ‘voluminous reporting materials provided by members of the Australian community, including departmental and security staff who have interacted with [the applicant] over many years while he has been detained’. The legal representative submits that ‘this evidence reflects the expectations of the Australian community’.
117.However, as noted earlier, I reasonably suspect that [the applicant] has been involved in conduct constituting crimes against humanity and/or war crimes. I have considered that the broader Australian community would expect that non-citizens who are reasonably suspected of having been involved in conduct constituting these types of crimes should not be granted a protection visa including a SHEV.
118.In particular, I considered that there should be no expectation that people who have been involved with an organisation such as the LTTE, which has reportedly committed serious violations of human rights including widespread unlawful killings of civilians, should be allowed to remain in Australia on a protection visa. I considered this to be the case despite [the applicant] not presenting a risk to individuals in the Australian community.
119.I have placed significant weight on the expectations of the Australian community in this regard.
(Emphasis added.)
Under the heading “Other considerations” the Minister addressed the following matters:
(a)International non-refoulement obligations;
(b)Impact on victims;
(c)Impact on Australian business interests;
(d)Health concerns; and
(e)Other submissions.
Under the subheading “International non-refoulement obligations” the Minister accepted that the applicant had been assessed in the RSA in 2011, the IMR in 2012, the ITOA in 2014 and the PVA in 2017 as having a genuine fear of serious harm and a real chance of persecution if returned to Sri Lanka on the basis of his being a former intelligence operative of the LTTE (at [121]). The Minister accepted the PVA delegate’s finding that the applicant is a person in respect of whom Australia has international non-refoulement obligations, and that removing him to Sri Lanka would breach these obligations. The Minister also accepted that there is currently no known prospect of removing the applicant to any other country (at [123]).
The Minister said he was aware that the statutory consequence of a decision to refuse the applicant a visa was that, as an unlawful non-citizen, he would become liable to removal from Australia under s 198 as soon as reasonably practicable, and in the meantime detention under s 189. He also said he was aware that s 197C of the Act provides that, for the purposes of s 198, it is irrelevant whether Australia has international non-refoulement obligations in respect of an unlawful non-citizen (at [124]).
The Minister said that he was mindful of the fact that he had a “personal non-compellable power” under s 195A of the Act to grant the applicant a visa if he considered it to be in the public interest to do so, but that if he did not consider exercising that power or did not exercise it in the applicant’s favour, the applicant will be liable to removal in accordance with s 198, including to Sri Lanka having regard to s 197C (at [126]).
The Minister found that these considerations weighed in favour of not refusing the applicant a visa (at [127]).
Under the subheadings “Impact on victims” and “Impact on Australian business interests” the Minister stated that there was no information which indicates that refusing the applicant a visa would have any impact on victims or on Australian business interests (at [128]-[129]).
Under the subheading “Health concerns” the Minister said (at [130]-[133]) that he had considered information that the applicant has a history of suffering torture and trauma and a documented history of mental health issues for which he had been treated since his arrival in Australia in 2009. The Minister noted submissions that the applicant had attempted self-harm in 2011 and 2012, and that he twice required inpatient hospital treatment at a mental health facility, for six weeks in July 2015 and for three weeks in December 2016. The Minister also noted that:
…the Commonwealth Ombudsman, in light of the impact of prolonged detention on [the applicant’s] health, has repeatedly recommended [the applicant] be granted a bridging visa, released into community detention and that the consideration of his visa be expedited.
The Minister accepted that refusing to grant the applicant a visa would result in his continuing detention which would have a detrimental impact on his mental health, which weighed in favour of not refusing the applicant a visa.
The Minister concluded (at [136]) that:
In considering whether to exercise my discretion to refuse [the applicant’s] visa, I have given significant weight to the expectations of the Australian community in light of the nature and seriousness of the conduct that I reasonably suspect [the applicant] to have been involved in during his service in the LTTE. I considered that the Australian community would expect that non-citizens who are reasonably suspected of having been involved in conduct constituting crimes against humanity and/or war crimes should not be granted a protection visa including a SHEV, even if the non-citizen will not present a risk to the Australian community. I have found that this consideration in favour of refusal outweighs the countervailing considerations in [the applicant’s] case.
(Emphasis added.)
On that basis the Minister exercised the discretion to refuse to grant the applicant a protection visa.
THE APPLICATION TO THIS COURT
On 20 August 2019 the applicant filed an application for judicial review of the Minister’s decision. By an amended originating application dated 21 November 2019 the applicant seeks the following relief:
1.A writ of certiorari, directed to the First Respondent, quashing the decision of the First Respondent to refuse to grant the Applicant a safe haven enterprise (SHEV) visa (protection visa) made on 24 July 2019.
2.A writ of mandamus, directed to the [First] Respondent, compelling the [First] Respondent (whether personally or by his delegate), pursuant to s 65 of the Migration Act, to:
(a)grant the Applicant the protection visa for which the Applicant applied in his application dated 30 March 2016; or
(b)in the alternative, determine forthwith the Applicant’s application for a protection visa dated 30 March 2016 on the basis that s 501 of the Migration Act does not prevent the grant of the visa; or
(c)in the further alternative, determine forthwith the Applicant’s application for a protection visa dated 30 March 2016 according to law.
3.A declaration that the First Respondent has failed (whether personally or by his delegate) to make a decision to grant or refuse to grant the Applicant the protection visa under s 65 of the Migration Act as soon as reasonably practicable.
4.A declaration that the [First] Respondent has failed (whether personally or by his delegate) to make a decision whether to exercise a discretion under s 501 of the Migration Act to refuse to grant the Applicant a protection visa as soon as reasonably practicable.
5.A declaration that the Applicant’s continuing detention is not authorised by Part 2 Division 7 of the Migration Act, because the duration of the detention has already exceeded that which is reasonably necessary to consider and determine the Applicant’s application for a protection visa according to law.
6.A writ of habeas corpus directed to the [First] Respondent, or alternatively an order requiring that the [First] Respondent procure the release of the Applicant from detention forthwith.
The application also seeks the following interlocutory relief:
1.An interlocutory order releasing the Applicant from immigration [detention] pending determination of the application.
2. In the alternative, interlocutory injunctions:
(a)requiring the First Respondent, whether personally or by [his] agents, officers or employees, to procure the release of the Applicant from detention forthwith; and/or
(b)restraining the First Respondent and the Second Respondent, whether personally or by their agents, officers or employees, from detaining or re-detaining the Applicant in immigration detention until the final determination of this action.
3.An interlocutory injunction restraining the First Respondent or his agents from removing the Applicant from Australia.
I now turn to consider the six grounds of the application.
GROUND 1 – DENIAL OF PROCEDURAL FAIRNESS
Ground one of the application alleges as follows:
The decision of the First Respondent to refuse to grant the Applicant a protection visa under s 501(1) of the Migration Act was made in denial of procedural fairness to the Applicant and, consequently, was affected by jurisdictional error and invalid, in that:
a.the Department of Home Affairs led the Applicant to believe that the First Respondent would make his decision in accordance with the principles contained in Direction 79;
b.the First Respondent did not exercise the discretion in the applicant’s case for the purpose identified in Direction 79 as the purpose for which the discretion was to be exercised, namely the protection of the Australian community from harm;
c.the First Respondent took into account a finding that the Australian community had an expectation “that non-citizens who are reasonably suspected of having been involved in conduct constituting crimes against humanity and/or war crimes should not be granted a protection visa including a SHEV, even if the non-citizen will not present a risk to the Australian community”, and in so doing the Minister treated “community expectations” as a subjective concept, different from the concept of community expectations identified in Direction 79;
d.the Applicant was not put on notice of, and was given no opportunity to make submissions in relation to:
i.the First Respondent’s exercise of the discretion in s 501(1) for purposes unrelated to the protection of the Australian community from harm;
ii.the First Respondent’s finding that the Australian community would have an expectation that the Applicant would not be granted a protection visa on the basis that he is (merely) reasonably suspected of having been involved in crimes against humanity and/or war crimes; and
iii.the First Respondent’s reliance upon a concept of the expectations of the Australia community that differed from the concept used in Direction 79.
Under this ground the applicant contends that the Minister failed to accord him procedural fairness in two ways:
(a)first, that the Department represented that the Minister’s decision-making would proceed on the basis that the delegate’s findings in the PVA decision were conclusive of the question as to whether the applicant acted under duress, and that the relevant remaining issue was the difference between the threshold applicable to the criterion in s 5H compared with s 501(6)(ba) of the Act (the PVA findings representation); and
(b)second, the Minister failed to give consideration to the matters identified by Direction 79 in circumstances where the applicant was led to believe that the Minister would have regard to the matters identified in that Direction (the Direction 79 representation).
The PVA findings representation
The applicant’s submissions

The applicant submits that the Department’s letter of 1 March 2019 conveyed the representation that if, as was ultimately the case, the Minister personally made the decision under s 501(1) as to whether to refuse the applicant’s application for a protection visa, the matters to be taken into account would be the matters referred to in Ministerial Direction 79, as well as any additional matters advanced as relevant by the applicant. He argues that his written submissions dated 20 June 2017 addressed the matters identified in Direction 65 and his written submissions dated 15 April 2019 addressed the matters identified in Direction 79, noting that the differences between the two Directions are not material for the purposes of this case.
On the applicant’s argument, if the Minister was proposing to consider matters that were not apparent from Direction 79, then natural justice required that those matters be drawn to the applicant’s attention and he be invited to comment on them, citing Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [40]-[42] (Tracey J); and FPU18 v Minister for Immigration and Border Protection [2018] FCA 1606 at [56] (Moshinsky J). He further argues that, the PVA delegate having made the positive finding that because the applicant acted under duress when he was involved with the LTTE there were not serious reasons for considering that he had committed a war crime or a crime against humanity, he was reasonably entitled to expect that the Minister’s decision-making would proceed on that basis, unless he was informed otherwise. At no point did the Department or the Minister inform him that the Minister might make factual findings directly contradicting the findings made in the PVA decision.
This asserted lack of procedural fairness was compounded by the Department’s response to a direct enquiry by the applicant’s representative regarding the scope of the decision-maker’s consideration. On 17 May 2017 the Department provided the NOICR to the applicant’s representative, which said that the Department held information suggesting that the applicant may not pass the character test pursuant to s 501(6)(ba) of the Act. It informed the applicant that the Department held information suggesting that the decision-maker may “reasonably suspect” that the applicant had been involved in a war crime or a crime against humanity.
On 2 June 2017 Mr Guy Coffey, the solicitor at Victoria Legal Aid with the conduct of the application, sent an email to the Department in which he referred to the PVA decision and made the following enquiry:
…I would like however to raise a question having now looked at the PV assessment and the advice in the notice that the element of the character test [to be] considered is s 501(6)(ba). The PV assessment found that my client acted under duress in relation to alleged actions that might form the basis to consider character under this subsection. As you are aware duress is an absolute defence and that aspect of his alleged conduct has therefore been conclusively dealt with. My question therefore is why he has been referred for character consideration in light of the PV assessment finding and in view of the fact that no other matters going to character are being raised?
(Emphasis added.)
A Departmental officer responded by email on 6 June 2017 as follows:
Although the Protection Visa Assessment found that [the applicant] is not a person excluded from being a refugee under Section 5H(2)(a) of the Migration Act 1958 (the Act), this provision is based on there being ‘serious reasons for considering’ that the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by regulations. Section 501(6)(ba) of the Act requires that the Minister ‘reasonably suspects’ that the person has been involved in conduct constituting the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery, or a crime that is otherwise of serious international concern; whether or not the person, or another person has been convicted of an offence constituted by the conduct. As such, the threshold for consideration under Section 501(6)(ba) of the Act is different to that already assessed under Section 5H(2)(a).
(Emphasis added.)
The applicant submits that the Department’s response did not disabuse Mr Coffey of the notion, expressly stated in his email of 2 June 2017, that the issue of duress had been “conclusively dealt with” in the PVA decision. He contends that the only reasonable meaning of the Department’s response was that the decision-maker’s consideration would proceed on the basis that:
(a)the PVA delegate had already decided that because the applicant acted under duress there were not “serious reasons for considering” that the applicant had committed a war crime or a crime against humanity under s 5H(2)(a) of the Act; but
(b)that it remained open to the decision-maker to find that the applicant nevertheless failed the character test because the threshold of “reasonably suspects” under s 501(6)(ba) was different from the threshold of “serious reasons for considering” under s 5H(2)(a).
The applicant argues that there was nothing in the Department’s response to inform him that it was open to the decision-maker to make findings in relation to duress which directly contradicted the factual findings in the PVA decision, and he was not on notice in that regard. He further argues that the Department was on notice that the applicant’s submissions were made on the basis that he regarded the PVA delegate’s factual findings as conclusive for the purposes of the visa refusal decision, and the Department perpetuated that misunderstanding by suggesting that the reason why visa refusal under s 501(6)(ba) of the Act was under consideration was because of the different thresholds that applied under that provision compared to s 5H.
The understanding of the applicant’s representative regarding the matters to be addressed was reflected in the submissions advanced, which took the factual findings on duress by the PVA delegate as settled, and instead addressed whether the applicant passes the character test by reference to the Department’s proposition that different thresholds applied under the different provisions of the Act.
The applicant contends that he was thereby denied procedural fairness.
The Minister’s submissions
The Minister submits that the NOICR was broad in scope and stated that in deciding whether the decision-maker reasonably suspects that the applicant has been involved in a war crime or a crime against humanity and thus fails the character test, the decision-maker “will consider the nature and extent of your involvement in the activities of the Liberation Tigers of Tamil Eelam”. He contends that the NOICR invited the applicant to address the full gamut of his involvement with the LTTE, and thus there was no denial of procedural fairness.
He further argues that the alleged representation – that the Minister would not depart from the PVA delegate’s factual findings – was not made with the requisite clarity for the Court to find that it was made, citing in that regard Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1 (Crown) at [35].
Consideration
In my view the applicant was denied procedural fairness.
In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 (Alphaone) at 590-591 the Full Court (Northrop, Miles and French JJ) said:
It is a fundamental principle that where the rules of procedural fairness apply to a decision‑making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
(Emphasis added.)
The Full Court further explained (at [591]-[592]) that:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision‑maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision‑maker. It also extends to require the decision‑maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made.The decision‑maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision‑maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
(Emphasis added.)
One of the central issues in the Minister’s decision was whether the applicant acted under duress when he was involved in the LTTE. It can be accepted, as the Minister contends, that the NOICR was broad in scope, but it did not put the applicant on notice that duress would be central, and there were good reasons for the applicant to understand that it would not be central. The NOICR said only that the decision-maker would consider “the nature and extent of his involvement” in the LTTE. That duress would be central was not apparent from the terms of Direction 79 or the relevant provisions of the Act.
The requirement to put the applicant on notice that duress was a central issue was heightened because the PVA delegate had made detailed factual findings, following a thorough review of the evidence and despite earlier contrary findings, just three months before the NOICR. The PVA decision found that the applicant had acted under duress and therefore that there were not serious reasons for considering that he had committed a war crime or a crime against humanity. Having regard to the PVA decision the applicant was entitled to expect that the Minister’s decision would proceed on that basis, unless he was informed otherwise.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (SZBEL) the High Court considered the obligations of a tribunal reviewing a delegate’s decision. Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ explained as follows (at [35]):
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.
Thus, where a delegate makes a finding in favour of the applicant, it is likely to constitute a denial of procedural fairness if a reviewing tribunal departs from that finding without informing the applicant that it might consider doing so: AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317 at [10] (Tracey, Mortimer and Charlesworth JJ).
In the present case the Minister was not undertaking a review of the PVA delegate’s decision, and so the decision in SZBEL is not on all fours. But it supports my view that, in circumstances where only a few months before the NOICR was issued the PVA delegate had found that the applicant had been acting under duress, the applicant was entitled to expect that if the decision-maker was considering departing from that finding, he would be given notice.
The failure to accord the applicant procedural fairness was compounded by the Department’s response to Mr Coffey’s email of 2 June 2017. Mr Coffey’s enquiry was a pointed and nuanced attempt to understand precisely what would be in issue before the decision-maker. He asserted that the PVA decision “conclusively” dealt with the issue of duress and enquired why in that circumstance the applicant’s visa application had been referred for decision as to whether the applicant passes the character test. The Department’s response was also pointed and nuanced, and contained no information which put the applicant on notice that the decision-maker’s consideration might include making factual findings in direct contradiction to those made by the PVA delegate. Instead the response indicated that the decision-maker’s consideration in relation to duress would be based in the asserted difference between the relative “thresholds” in the meaning of “reasonably suspects” in s 501(6)(ba) and “serious reasons for considering” under s 5H(2)(a) of the Act.
That Victoria Legal Aid had such an understanding is clear from the applicant’s submissions dated 20 June 2017. Those submissions focused on the thresholds of “reasonably suspects” and “serious reasons for considering” rather than arguing what factual findings were appropriate in relation to duress.
There is no force in the Minister’s submission that the Court should not be satisfied that the Department represented that the Minister would not depart from the PVA delegate’s factual findings. The decision in Crown relevantly concerned whether a statement the appellant made to tenants in the course of negotiations for a commercial lease, to the effect that the tenants would be “looked after at renewal time”, was sufficiently certain to found an action in promissory estoppel. The plurality held that the statement was insufficiently clear to be capable of conveying to a reasonable person that the tenants would be offered a further lease.
Crown is of little assistance in deciding whether in the present context the applicant was accorded procedural fairness. It provides no answer to the applicant’s contention that, by combination of the NOICR, the 1 March 2019 letter, the PVA decision, and the Department’s 6 June 2017 response to Mr Coffey’s enquiry, the applicant was not informed that a critical issue for determination by the decision-maker was whether the applicant had in fact acted under duress when he was involved with the LTTE.
I consider the Minister failed to accord the applicant procedural fairness.
Materiality
The Minister’s alternative submission was that the applicant failed to demonstrate that any failure of procedural fairness was material in the sense that it deprived him of a realistic possibility of a different outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25] and [30] (Kiefel CJ, Gageler and Keane JJ). He contends that any such error did not give rise to any practical injustice and was therefore not material, essentially because the applicant’s representatives said everything that they wanted to say about the voluntariness of the applicant’s conduct.
The Minister contends that the applicant’s submissions dated 20 June 2017, made in response to the NOICR, expressly relied on his earlier submissions dated 30 March 2016, 23 and 26 August 2016 and 22 January 2017 regarding the possibility that the applicant might be excluded from protection under Article 1F of the Refugees Convention. The Minister submits that in doing so the applicant expressly reasserted the various submissions made about duress, pointing to pages 642-643 and 657-658 of the Court Book.
The Minister also argues that the applicant’s representative accepted or endorsed the thrust of the PVA delegate’s findings by stating in the 20 June 2017 submissions that “we accept in broad terms the reasoning with regard to the finding that my client acted under duress”, and by describing the PVA delegate’s duress finding as “sound”. He contends that in doing so the applicant also picked up and reasserted the PVA delegate’s findings as submissions in relation to the NOICR.
On the Minister’s submissions, the applicant’s representative had a sufficient opportunity to “unpack and interrogate” the PVA delegate’s findings on duress, noting that the 20 June 2017 submissions argued that the PVA decision gave insufficient weight to the subjective element of the defence of duress. He argues that there was nothing further that Victoria Legal Aid could have submitted that could realistically have made a difference to the outcome.
I do not accept the Minister’s contentions. It is correct that some of the applicant’s submissions made prior to his receipt of the NOICR addressed the question of duress, and that the applicant’s submissions of 20 June 2017 in response to the NOICR expressly relied upon those earlier submissions. But the decision-making process in the applicant’s application for a protection visa has been exceedingly long. Different decisions were made by different delegates across the years, which decisions reflected different evidence, submissions and views, and there is a very large volume of relevant material. The RSA was completed in 2011, the IMR in 2012, the ITOA in 2014 and the PVA in 2017.
Counsel for the applicant contends, and I accept, that had the applicant been put on notice that the Minister’s deliberations in relation to whether to refuse him a visa would include considering whether it was appropriate to reach findings in direct contradiction to the detailed factual findings on duress made by the PVA delegate. The submissions advanced would have reviewed and revisited the factual findings on duress in the RSA, IMR, ITOA and PVA decisions and argued why the PVA delegate’s findings should be preferred over the earlier findings.
Contrary to the Minister’s argument, the applicant’s submissions in response to the NOICR did not advance any contentions as to why the PVA delegate’s findings were to be preferred to those of the earlier delegates. That was because: (a) the pre-NOICR submissions pre-dated the PVA decision and thus could not argue why the factual findings and reasoning in that decision should be preferred to that in the RSA, IMR and ITOA; and (b) the post-NOICR submissions did not focus on the issue of duress because the applicant did not understand that to be in contest, except in relation to the appropriate threshold.
I am satisfied that as a result of the failure to accord him procedural fairness the applicant lost the opportunity to present that argument, and he was therefore deprived of a realistic possibility of a different outcome. The Minister’s denial of procedural fairness is therefore jurisdictional.
The Direction 79 representation
Direction 79 provides a framework within which decision-makers are required to approach the task of deciding whether to exercise the discretion to refuse a non-citizen’s visa. However, where, as in the present case, the Minister makes the decision personally, it is not binding upon that exercise of discretion.
The applicant’s submissions
The applicant accepts that the Minister was not bound as a matter of law to comply with Direction 79 but relies on the fact that the NOICR informed the applicant that if the decision-maker was the Minister, as proved to be the case, Direction 79 “provides a broad indication of the types of issues that he or she may take into account.” He contends that he was led to believe that the Minister’s decision would be made in a manner broadly consistent with Direction 79, and procedural fairness required that if the Minister proposed to depart from the terms of Direction 79, he was required to inform the applicant of that fact and give him an opportunity to make submissions in relation to the proposed departure. The applicant submits that the Minister departed from the principles in Direction 79 without notification of his intention to do so.

In Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 (Al-Kateb) at [121] Gummow J said in relation to the word “reasonably” in the command for a duty be performed “as soon as reasonably practicable” in s 198 of the Act that “[t]he qualification “reasonably” introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme.” In Snedden v Minister for Justice [2014] FCAFC 156; (2014) 230 FCR 82 at [116] Middleton and Wigney JJ (with whom Pagone J agreed in this respect) adopted that passage. Whether there was any unreasonable delay in determining the applicant’s visa application is a question of fact. What is a reasonable time will depend upon all the facts (Koon Wing Lauv Calwell [1949] HCA 65; (1949) 80 CLR 533 at 574 (Dixon J)) and whether a delay is unreasonable will depend on all of the circumstances: Thornton v Repatriation Commission [1981] FCA 71; (1981) 35 ALR 485 at 489–490 (Fisher J).
The applicant relies upon the fact that he applied for the protection visa in March 2016 and that the Minister’s decision to refuse to grant him the visa was not made until more than three years later, in July 2019. In particular, the applicant points to the period after the PVA decision in March 2017 when, having regard to that decision, the Minister or his delegate should have been sufficiently acquainted with the circumstances of the applicant’s case to make a decision within a reasonable time thereafter.
I accept the applicant’s contention that the evidence shows an extraordinary delay of some 451 days (14 months and 25 days) between 24 October 2017 (when Victoria Legal Aid said the applicant had no further submissions to make) and 18 January 2019 (when the Department wrote to Victoria Legal Aid stating that “new information” had been identified which the decision-maker may take into account). The so-called “new information” was the ITOA assessment dated 16 June 2014 which had been in the possession of the parties since that time and had already been the subject of extensive submissions. It was not new, it did not justify the preceding delay, and the Minister put forward nothing to explain the delay that occurred other than to say the applicant’s case is complex. I accept that the applicant’s case is complex but that does not justify the extraordinary delay that occurred.
I find that the Minister, whether personally or by his delegate, failed to make a decision on the applicant’s visa application under s 65, and as to whether to exercise the discretion under s 501 to refuse to grant the applicant of the visa, as soon as reasonably practicable or within the time which it was reasonably necessary to do so.
Although, for the reasons I explain below, I have not concluded that the applicant’s continuing detention is unlawful, I consider it appropriate to make declarations in regard to such serious and unacceptable delay. Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) (the FCA) the Court has a wide discretion to make declarations of right whether or not any consequential relief is or could be claimed: Australian Competition and Consumer Commission v Knight [2007] FCA 1011; (2007) ATPR 42-165 at [65] (Mansfield J). In Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 437 to 438 the High Court held that three threshold requirements should be satisfied before a declaration will ordinarily be made: (a) there must be a real and not theoretical question; (b) the applicant must have a real interest in seeking such a declaration; and (c) there must be a proper contradictor. Each of those requirements is satisfied in the present case.
The declarations are appropriate because there is a public interest in timely administrative decision-making, they have utility (BMF16 at [239]), and they record the Court’s disapproval of the serious delay in the present case: Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc [1993] FCA 105; (1993) 41 FCR 89 at 100 (Sheppard J); Australian Competition and Consumer Commission v Chen [2003] FCA 897; (2003) 132 FCR 309 at [36] (Sackville J); Australian Competition and Consumer Commission v Eurong Beach Resort Ltd and Ors [2005] FCA 1134 at [5]-[6] (Kiefel J, as her Honour then was).
Whether the applicants continuing detention is unlawful
As I have said, the applicant’s position is tragic and an outcome that sees him remaining in detention indefinitely may have seriously adverse consequences in terms of his mental health, and his life. But the authorities are in my view clear that the applicant’s continuing detention was and remains lawful.
In ASP15 and Another v Commonwealth and Another [2016] FCAFC 145; (2016) 248 FCR 372 (ASP15) (Robertson, Griffiths and Bromwich JJ) the appellants were unlawful non-citizens detained in immigration detention under s 189 of the Act. The appellants’ case was that the Minister’s delegate failed to determine their visa applications “as soon as reasonably practicable”, which period they claimed was the then applicable statutory 90-day time limit for determination of a visa application. The appellants were ultimately granted visas but well past the statutory time limit. In reliance upon the reasoning in Plaintiff S4 and Plaintiff M76 they argued that the delay in making the visa decisions meant they were detained beyond the point which their detention was authorised by the Act. They asserted that their detention was unlawful and constituted the tort of false imprisonment, and they sought damages from the Commonwealth and the Minister. The Full Court dismissed their application.
Their Honours said (at [30]-[31]):
In Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, the majority at 581 [33]-[35] and 638-640 [225]-[233] specifically rejected the contention that where detention was for the purpose of removal, in order to be constitutionally valid s 196(1) was to be construed as implicitly subject to a requirement that the purpose of removal be capable of fulfilment within a reasonably practicable time. That conclusion is binding on this Court.
The majority in Al-Kateb further held that detention for the purpose of removal would cease to be validly authorised by s 196(1) if and only if removal was required by s 198, but not effected. That is, detention for the purpose of removal would cease to be validly authorised by s 196(1) if and only if each of the criteria in s 198 was satisfied and removal was reasonably practicable. If a person continued to be detained after this, it would inevitably follow that the detention was for some purpose other than removal as authorised and required by s 198(2).
(Emphasis in original.)
The Full Court said (at [32]-[33]) that Plaintiff M76 was not a case in which resolving any residual differences between Al-Kateb and the remarks of Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 (Lim) arose, because the Al-Kateb point had not been reached in Plaintiff M76. That is, the point had not been reached where there was an impasse in which removal could not be affected and nothing more could be done administratively, but a future resolution of the impasse could not be excluded as a possibility. Thus their Honours said:
Al-Kateb therefore remains good law, and allows for the possibility of prolonged detention due to such an impasse, indicating that duration of detention alone, and the lack of any immediate prospect of it ending, is not enough to make that detention unlawful. That is of significance in a case such as the present appeals in which the complaint is not that nothing more could have been done, but rather that it was not done quickly enough.
(Emphasis added.)
The Full Court went on to observe (at [33]) that the passages from Plaintiff S4 that were relied upon to build upon Lim and “to develop a case of unlawful detention by the asserted undue effluxion of time in making a visa decision, require close and careful consideration as to text and as to context.” Their Honours noted that Al-Kateb was not discussed in Plaintiff S4, nor was any doubt cast on its correctness. Nor was Al-Kateb substantially addressed by counsel for the appellants in ASP15 (and the same is true in the present case).
The Full Court distinguished the facts in Plaintiff S4 from those in ASP15 (at [34]-[39]), noting that in Plaintiff S4 the appellant was an unauthorised maritime arrival in immigration detention and prevented by s 46A(1) of the Act from making a valid protection visa application. Their Honours explained that the appellant therefore met each of the criteria in s 198(2) and the obligation to remove him had been triggered. Because the removal obligation had been enlivened it applied to all pending steps, including the obligation to consider whether or not to lift the bar under s 46A(2). It was in that context that the High Court made the observations that it did about the duration of the detention being bounded by the requirement in s 198(2) to remove the appellant “as soon as reasonably practicable”.
The Full Court contrasted the facts in Plaintiff S4 to those in ASP15, noting that in the latter case the power under s 46A had been exercised and the appellants had been able to make and had made valid protection visa applications. Their Honours said therefore (at [39]):
The obligation under s 198(2) was never triggered. It follows that there was no occasion for the terms of s 198(2) to have any effect on s 196(1), let alone dominant effect. The reasoning in Plaintiff S4 does not assist in this case, and does not overcome the reasoning of the majority in Al-Kateb.
The Full Court concluded (at [40]):
It follows that once a valid visa application has been made, unless and until a decision is made either to grant or refuse a visa, detention is authorised and required by s 196(1). This conclusion is consistent with the binding authority of Al-Kateb as to the nature of lawful detention and the meaning of s 196(1). None of the authorities relied upon by the appellants compels a different conclusion. Such detention does not cease to be for the purpose of considering and determining an application for a visa because the necessary process has not been completed within the time required by the Migration Act, be that time period express or implied. If in fact a court determines that the process to make a visa decision has gone on for too long, it nonetheless remains detention for that purpose and is both validly authorised and required by s 196(1) of the Migration Act. The normal remedy is court action to compel a visa decision to be made, one way or the other.
(Emphasis added.)
Their Honours also said (at [42]):
Such reasoning as submitted by the appellants also inverts principle. The regime for immigration detention is valid for the purposes of making a visa decision precisely because it imposes an obligation on the Minister to make that decision within whatever time limit applies; detention only remains valid so long as such a purpose under the Migration Act continues to exist. In the case of detention pending a visa decision, failure to do so within the required time renders the Minister liable to the issue of a writ of mandamus to compel him or her to perform their statutory duty. However it does not render invalid the provision which authorises detention in the first place. So long as the Migration Act validly continues to authorise detention, there can be no claim for false imprisonment or habeas corpus.
(Emphasis added.)
The applicant notes that ASP15 distinguished Plaintiff S4 and submits that the Full Court should not be understood as doubting the propositions advanced based on Plaintiff S4 and Plaintiff M76. I do not accept that submission. It is correct that the facts in the two cases can be distinguished, but the position in the present case is more akin to ASP15 than Plaintiff S4. In ASP15 and in the present case the detainees had made valid protection visa applications, and thus the obligation to remove them as soon as practicable was never triggered (at least up to the visa refusal decision on 24 July 2019 in the present case).
More fundamentally, the majority in Al-Kateb rejected a construction of ss 189, 196 and 198 which depends upon “taking the temporal element of the legislative command in s 198 (to remove as soon as reasonably practicable) and converting that into a different temporal limitation on the operation of s 196 and, by inference, on the operation of s 189”: at [237] per Hayne J, with whom McHugh and Heydon JJ agreed at [33]-[34] and [303] respectively, and at [290]-[298] per Callinan J.
Further, the Full Court in ASP15 unequivocally held (at [40]) that once a valid visa application has been made, unless and until a decision is made either to grant or refuse a visa, detention is authorised and required by s 196(1), which it held was consistent with the binding authority of Al-Kateb as to the nature of lawful detention and the meaning of s 196(1). The Full Court in ASP15 also held (at [42]) that where the process to make a visa decision has gone on for longer than reasonably practicable, such detention nonetheless remains validly authorised and required by s 196(1) of the Act. That is, the Full Court explicitly rejected the argument the applicant mounts in the present case and I am bound to follow ASP15.
Considered dicta in the Full Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54 (Al Masri) (Black CJ, Sundberg and Weinberg JJ) points the same way. The majority in Al-Kateb overturned the ratio in Al Masri but the High Court was not called on to deal with another part of the decision where the Full Court rejected the trial judge’s reasoning that the power to detain under s 196 was limited in operation to such time as the Minister was taking all reasonable steps to remove a detainee from Australia as soon as reasonably practicable, which limitation emerged from reading s 196(1) as subject to the duty imposed upon the Minister by s 198(1), to remove a detainee as soon as reasonably practicable. The Full Court rejected that limitation (at [134]) and said:
Although the two provisions are part of the same scheme, we would not read them together in this way. If the Minister were not fulfilling his duty under s 198(1) to remove as soon as reasonably practicable the detention would, in our view, still be lawful and the appropriate remedy would be an order in the nature of mandamus to compel the Minister to take the steps required for the performance of his duty.
The applicant did not address this finding.
Finally, the applicant’s argument is contrary to a number of decisions of single judges of this Court. They are however of limited assistance as they predate the Full Court decision in Al Masri, and predate the decisions of Al-Kateb, Plaintiff M76, Plaintiff S4, and ASP15. It suffices to go to two of them: WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 (WAIS) at [47], [49] and [56] (French J) and NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2 (NAES) at [6] and [11] (Beaumont J).
In WAIS, the applicant was an unlawful non-citizen held in immigration detention. He made a valid application for a protection visa and was refused, and his efforts at administrative and judicial review of that decision were unsuccessful. He then sought removal from Australia to a place where he would be safe. He was not removed and, having regard to the time that had expired and the lack of any reasonable likelihood that he would be able to be removed in the foreseeable future, he argued that the power to detain him was exhausted and his continuing detention was unlawful. Justice French, as his Honour then was, said (at [49]):
Section 198 appears in a separate division dealing with the removal of detainees. It sets out the circumstances in which the obligation to remove persons from Australia arises. That removal necessarily terminates the continuing detention under s 196. That the removal must take place “as soon as reasonably practicable” after a written request or final refusal of a visa (ss 198(1) and (6)) does not, on the face of it, import any express or implied limitation upon the obligation to detain the unlawful non-citizen under s 196. That obligation or liability is terminated by the event of removal. There are no words in the section which condition it upon the expiry of a time which is “reasonably practicable” to effect the removal after the satisfaction of one of the conditions in s 198. The uncertainty of determining when the detention would cease to be lawful if it were to be based upon the expiry of a period of time qualified by the term “reasonably practicable”[sic].
(Emphasis added.)
To similar effect his Honour said (at [56]) that the language of s 196 is “intractable” and that detention under that provision is ended only by one of the specified terminating events. His Honour considered the appropriate remedy for a failure to discharge the duty under s 198 was a writ of mandamus rather than a finding that detention was unlawful because of excessive time in detention.
In NAES the applicant was an unlawful non-citizen in a similar position to the applicant in WAIS. Beaumont J (at [6]) agreed with the reasoning in WAIS and said (at [11]):
Even if inexcusable delay on the part of the Department had been demonstrated (a question upon which I need not, and do not, express an opinion), the only appropriate remedy, in my view, would have been an application for mandamus compelling “the officer” upon whom is placed the statutory duty prescribed by s 198 to remove the applicant “as soon as [is] reasonably practicable” in the circumstances of the applicant’s case.
In the present case, until the Minister’s decision on 24 July 2019, the purpose of the applicant’s detention (at least after March 2016 when he lodged the visa application) was to determine his visa application. I have found there was unreasonable delay by the Minister or his delegate in deciding that application, but the authorities indicate that notwithstanding such delay the applicant’s detention under ss 189 and 196 remained lawful. The appropriate remedy to address such delay would have been an order for mandamus to compel determination of the visa application.
The applicant also contends that since the Minister’s visa refusal decision of 24 July 2019, the evidence does not show that any steps have been taken to arrange for his removal to Sri Lanka, the Minister has no intention of removing him to Sri Lanka because to do so would breach Australia’s non-refoulement obligations, and he has not been removed from Australia as soon as reasonably practicable. He contends that his continuing detention is therefore unlawful.
In this regard the applicant relies on the Minister’s response to a Notice to Admit, in which the Minister admitted that:
(a)Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to a country in respect of which a non-refoulement obligation exists; and
(b)neither the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, nor the Minister for Home Affairs is currently considering exercising the discretion to intervene under section 195A of the Act to grant the applicant a visa, releasing him from detention.
The applicant also relies on a Community Protection Assessment Tool prepared by the Department on 26 February 2019 which records that the applicant “was indicatively found to be a refugee on 07/03/2017, thus is not available for removal from Australia.”
I do not accept the applicant’s contention. First, as at 24 July 2019 there was nothing to suggest that the time for the applicant’s removal had arrived because it was reasonably practicable to do so. Until that date he was held in detention because he is an unlawful non–citizen whose visa application was being considered. Once the visa refusal decision was made the applicant sought judicial review of the Minister’s decision within the applicable time limit. It would have been inappropriate for the Minister to remove the applicant from Australia while that application was on foot. Indeed, counsel for the applicant conceded that had the Minister sought to remove the applicant from Australia pending determination of the judicial review application, the applicant would have sought an injunction against his removal, and he accepted that such an application was likely to be successful. I do not accept that it was reasonably practicable for the Minister to remove the applicant from Australia at any point between 24 July 2019 and the delivery of judgment in this proceeding.

Upon judgment in this proceeding and orders to quash the Minister’s decision and to re-determine the applicant’s visa application in accordance with law, unfortunately for the applicant, the clock starts running again. It is however appropriate to ensure that there is no unnecessary delay in the re-determination of the applicant’s visa application and upon hearing submissions from the parties as to a reasonable timeframe I will order that the re-determination occur by a fixed date.
RELIEF
For the reasons I have explained, it is appropriate to make declarations as follows:
(1)The Minister failed (whether personally or by his delegate) to make a decision to grant or refuse to grant the applicant a protection visa under s 65 of the Act as soon as reasonably practicable.
(2)The Minister failed (whether personally or by his delegate) to make a decision whether to exercise the discretion under s 501 of the Act to refuse to grant the applicant a protection visa as soon as reasonably practicable.
It is also appropriate to make the following orders:
(1)A writ of certiorari issue to quash the decision of the Minister made on 24 July 2019 to refuse to grant the applicant a protection visa.
(2)A writ of mandamus issue to require the Minister (whether personally or by his delegate) to determine the applicant’s application for a protection visa under s 65 of the Act as soon as reasonably practicable, and within a period to be fixed following further submissions.
(3)The First Respondent pay the applicant’s costs of the application.
I refuse the application for a writ of mandamus to compel the Minister (whether personally or by his delegate) pursuant to s 65 of the Act to grant the applicant the protection visa for which he applied on 30 March 2016. I can see no proper basis for such an order, and counsel for the applicant could not point to any case where such an order had ever been made.
I also refuse the application, in the alternative, for a writ of mandamus to compel the Minister (whether personally or by his delegate) to determine the applicant’s application for a protection visa on the basis that s 501 of the Act does not prevent the grant of the visa. In support of this relief the applicant submits that:
(a)section 501 only prevents the grant of a visa to the applicant pursuant to s 65 of the Act if a valid decision to refuse the grant of the visa on character grounds has been made;
(b)it may be assumed that a delegate exercising the duty under s 65 is entitled to wait while a further decision-making process is conducted in order to determine whether the visa should be refused under s 501;
(c)while there is no duty to consider s 501 of the Act in any particular case, if it is to be considered then such consideration must be engaged in and completed as soon as reasonably practicable;
(d)the duty under s 65 must be undertaken and completed as soon as reasonably practicable. Thus, if no decision to refuse to grant a visa under s 501 is made as soon as reasonably practicable, the decision-maker under s 65 cannot reasonably be satisfied that s 501 prevents the grant of the visa and the duty imposed by s 65 will require the decision-maker to grant the visa;
(e)so much time has elapsed since the PVA decision in March 2017 was made that it is plain that the Minister or his delegate have taken longer than is reasonably practicable to make a decision under s 501(1). The time that has elapsed includes an extraordinary delay of some 451 days (14 months and 25 days) between 24 October 2017 and 18 January 2019 for which there was no explanation;
(f)in circumstances where no valid decision under s 501 has been made, and where the time has elapsed since the PVA decision significantly exceeds any period that could be regarded as reasonably necessary for a decision to be made, the delegate is obliged to comply with the duty to make a decision under s 65(1) as soon as reasonably practicable, and the only conclusion lawfully open is that s 501 does not prevent a grant of the visa; and
(g)the time within which the delegate’s duty is lawfully to be performed having expired, compliance with the duty forthwith is compellable by mandamus.
I am not persuaded that it is appropriate to make such an order. This aspect of the application is based in a contention of unreasonable delay by the Minister or his delegate. While I accept that up to 24 July 2019 the Minister or his delegate failed to decide the applicant’s visa application as soon as it was reasonably practicable to do so, the Minister or his delegate has not as yet had any opportunity to re-determine the applicant’s visa application. Unreasonable delay cannot sensibly be asserted with regards to such re-determination. The earlier delay is relevant to the appropriate time to allow the Minister and his delegates in the re-determination process, but it does not automatically mean that any time taken for the re-determination decision is automatically longer than reasonably practicable.
It is unnecessary to decide, but even if unreasonable delay could be established at some point in the future, it is not clear to me that the relief sought would be appropriate. The Minister accepts that the power under s 501 must be exercised as soon as reasonably practicable but that does not mean that the Court has power to deny the Minister his statutory discretion under s 501, or if it has such power that it would be appropriate to so exercise. The applicant’s argument assumes that the consequence of any unreasonable delay is a loss of the Minister’s power to exercise his discretion to refuse or grant a visa. Whether that is so is a question of statutory interpretation which is presently unnecessary to decide, but the authorities indicate that a writ of mandamus is the usual remedy when unreasonable delay in the performance of the statutory duty can be established.
Finally, the applicant sought an interlocutory order that he be released from immigration detention pending the decision at that hearing. I decline to order such relief because, in my view, there is no power to do so. Section 189 requires the mandatory detention of a person who has the status of an unlawful non-citizen or is reasonably suspected of being an unlawful non-citizen, and s 196 requires that such detention only comes to an end upon the occurrence of one of four specified terminating events, none of which has occurred in the applicant’s case. Further, s 196(3) of the Act states in unequivocal terms:
To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph 1(a), (aa) or (b)) unless the non-citizen has been granted a visa.
This view is consistent with authority: see for example, Al-Kateb at [35] (McHugh J); Re Woolley at [193] (Kirby J); and Durani v Minister for Immigration and Border Protection [2013] FCA 1264; (2013) 223 FCR 391 at [38] (McKerracher J).
POST-HEARING CONSOLIDATION
Upon notifying the parties that judgment would be delivered on 29 May 2020 the Minister sought to be heard on the form of the orders, and the proceeding was listed for a telephone case management hearing at 4:30 pm on 28 May 2020. At the hearing I informed the parties of the orders and declarations that I proposed to make. Counsel for the Minister sought to make, but did not develop, a submission that pursuant to s 476A of the Act the Court did not have jurisdiction to make the proposed declaration as to the Minister’s failure to make a decision under s 65 of the Act as soon as reasonably practicable, or to order that the Minister make a decision to grant or refuse to grant the applicant a visa under s 65 as soon as reasonably practicable.
As counsel for the Minister properly conceded, that was not a contention the Minister advanced in the hearing. The Minister did not submit in the hearing that the Court could not make a declaration as to any unreasonable delay in determining the applicant’s visa application under s 65, or to order a writ of mandamus to require the Minister to determine the Applicant’s application for a protection visa under s 65 as soon as reasonably practicable. Indeed, the Minister’s belated contention ran directly counter to the Minister’s submissions in the hearing - that mandamus was the appropriate remedy where there is unreasonable delay in the determination of a visa application.
Counsel for the applicant was taken by surprise by the Minister’s change of position. While counsel rejected the contention that the Court did not have jurisdiction he was not in a position to provide a detailed response. Allowing the Minister to alter his position in the way counsel proposed would require the delivery of judgment to be postponed to allow sufficient time for the Minister to put on properly developed submissions, for the applicant to put on submissions in response, and for the Court to consider the issue. In my view, permitting the Minister to alter course at that late stage would be inconsistent with the overarching purpose in s 37M of the FCA, and unfair to the applicant who is in detention and awaiting judgment.
The applicant does not concede that there is any want of jurisdiction or power. However, in a welcome display of cooperation, the parties agreed that the jurisdiction of this Court to make orders and declarations in respect of an exercise of power under s 65 will be put beyond doubt if: (a) the applicant files an application in the Federal Circuit Court which mirrors the amended application in the present case; (b) the Federal Circuit Court makes an order pursuant to s 39 of the Federal Circuit Court of Australia Act 1999 (Cth) transferring that application to the Federal Court; and (c) this Court orders that the two proceedings be consolidated. The parties consented to those steps being taken.
Those steps were urgently taken and I made orders to consolidate the two proceedings. I am satisfied that the Court has jurisdiction to make the attached declaration in relation to the Minister’s failure to exercise power under s 65 and to make the attached order in respect of the Minister’s future exercise of power under s 65.

I certify that the preceding two hundred and forty four (244) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.
Associate:
Dated: 29 May 2020

File number:	VID 888 of 2019
Judge:	MURPHY J
Date of judgment:	29 May 2020
Catchwords:	MIGRATION – application for judicial review of a decision to refuse to grant the applicant a protection visa pursuant to s 501(1) of the Migration Act 1958 (Cth) – where a delegate of the Minister had found that the applicant was a refugee and entitled to complementary protection – where the Minister found the applicant failed the character test because he reasonably suspected that the applicant had knowingly and voluntarily contributed to conduct constituting war crimes and/or crimes against humanity MIGRATION – whether the Minister failed to afford the applicant procedural fairness – whether the Minister took into account an irrelevant consideration or acted for an improper purpose – whether the Minister’s decision was legally unreasonable, irrational or illogical– whether the Minister failed to give proper consideration to the applicant’s representations on harm – whether the Minister failed to engage in an active intellectual process with submissions advanced by the applicant MIGRATION – where the applicant has been in immigration detention for over a decade – whether the Minister failed to grant or refuse a protection visa to the applicant under s 65 of the Migration Act as soon as reasonably practicable – whether the applicants continuing detention is unlawful – whether it is appropriate to order the applicant’s immediate release from detention
Legislation:	Migration Act 1958 (Cth)
Cases cited:	Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 ASP15 and Another v Commonwealth and Another [2016] FCAFC 145; (2016) 248 FCR 372 Attorney-General (Minister of Immigration) v Tamil X and Anor [2010] NZSC 107 Australian Competition and Consumer Commission v Chen [2003] FCA 897; (2003) 132 FCR 309 Australian Competition and Consumer Commission v Eurong Beach Resort Ltd and Ors [2005] FCA 1134 Australian Competition and Consumer Commission v Knight [2007] FCA 1011; (2007) ATPR 42-165 Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317 BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2016) 248 FCR 456 BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131 BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576 Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1 DHW17 v Minister for Home Affairs [2019] FCA 985 Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151; (2004) 139 FCR 292 Durani v Minister for Immigration and Border Protection [2013] FCA 1264; (2013) 223 FCR 391 Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 FPU18 v Minister for Immigration and Border Protection [2018] FCA 1606 FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 374 ALR 601 Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; (2016) 160 ALD 123 Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533 Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; (2013) 85 NSWLR 86 M238 of 2002 v The Honourable Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; (2016) 249 FCR 275 Minister for Foreign Affairs v Lee [2014] FCA 927; (2014) 227 FCR 279 Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54 Misiura v Minister for Immigration and Multicultural Affairs [2001] FCA 133 MZYVM v Minister for Immigration and Citizenship [2013] FCA 79; (2013) 139 ALD 497 NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2 Navoto v Minister for Home Affairs [2019] FCAFC 135 NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 Oluwafemi v Minister for Home Affairs [2018] FCA 1389 Picard v Minister for Immigration and Border Protection [2015] FCA 1430 Plaintiff M76/2013 v Minister for Immigration and Border Protection [2013] HCA 53; (2013) 251 CLR 322 Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219 Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; (2004) 225 CLR 1 Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 Snedden v Minister for Justice [2014] FCAFC 156; (2014) 230 FCR 82 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Thompson v Randwick Corporation [1950] HCA 33; (1950) 81 CLR 87 Thornton v Repatriation Commission [1981] FCA 71; (1981) 35 ALR 485 Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc [1993] FCA 105; (1993) 41 FCR 89 Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296 WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 WASB v Minister for Immigration and Citizenship [2013] FCA 1016; (2013) 217 FCR 292
Date of hearing:	3 December 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	244
Counsel for the Applicant:	Ms C Symons and Mr S McDonald
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the Respondents:	Mr C Tran
Solicitor for the Respondents:	Australian Government Solicitor