CYY21 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1672
•15 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CYY21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1672
File number(s): SYG 1647 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 15 October 2025 Catchwords: MIGRATION – decision of Administrative Appeals Tribunal cancelling resident return visa – exercise of discretionary power to cancel visa after Tribunal found applicant provided incorrect information in visa application – Tribunal accepted applicant may face real chance of serious harm if required to return to Pakistan but found cancellation would not lead to applicant’s removal in breach of Australia’s non-refoulement obligations – whether error by Tribunal in finding that Australia’s non-refoulement obligations would not be breached Legislation: Migration Act 1958 (Cth) ss 36, 101, 107, 108, 109, 140, 197C, 198, 476, 499, 501CA
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth) reg 2.41
Cases cited: WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463 Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submission/s: 20 August 2025 Date of hearing: 16 July 2025 Place: Parramatta Counsel for the Applicant: Michelle Yu Solicitor for the Applicant: South West Migration and Legal Services Counsel for the Respondents: Nicholas Swan Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 1647 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CYY21
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
15 OCTOBER 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to "Minister for Immigration and Citizenship".
2.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 31 August 2021, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 5 August 2021. The Tribunal affirmed the decision of a delegate of the first respondent cancelling the applicant’s subclass 155 resident return visa under s 109 of the Act.
For the reasons that follow, the application is dismissed.
LEGISLATION AND POLICY
Sections 101, 107, 108 and 109 of the Act relevantly provided at the time of the Tribunal’s decision:
101 Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
…
107 Notice of incorrect applications
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that …
108 Decision about non-compliance
The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non‑compliance by the visa holder in the way described in the notice.
109 Cancellation of visa if information incorrect
The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa
The “prescribed circumstances” referred to in s 109(1)(c) are contained in reg 2.41 of the Migration Regulations 1994 (Cth) (Regulations). Reg 2.41 provided at the time of the Tribunal’s decision:
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d) the circumstances in which the non‑compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non‑compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non‑compliance;
(j) any breaches of the law since the non‑compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
In addition to the circumstances prescribed by reg 2.41 of the Regulations, policy in the Department’s Procedures Advice Manual, commonly referred to as PAM3, lists additional matters to which decision-makers should have regard. The parties provided the Court with a version of PAM3, with an approval date of 24 April 2017 and a review date of 24 April 2018, which the parties stated was current at the time of the Tribunal’s decision (PAM3 Policy). The PAM3 Policy relevantly stated:
It is policy that delegates also consider the following four matters, even if not specifically raised by the visa holder in response to the s 107 notice:
•Whether there are persons in Australia whose visas would, or may, be cancelled under s 140 …
•Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, for example: …
· Australia’s international obligations …
· whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations …
•Whether there are mandatory legal consequences to a cancellation decision …
•Any other relevant matters …
As explained below, the applicant’s argument in this Court turned in part on an amendment to s 197C of the Act which commenced in May 2021. Prior to the amendment, ss 197C and 198 relevantly provided:
197C Australia’s non‑refoulement obligations irrelevant to removal of unlawful non‑citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
198 Removal from Australia of unlawful non-citizens
…
(5)An officer must remove as soon as reasonably practicable an unlawful non- citizen if the non‑citizen:
(a) is a detainee; and
(b) neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa;
regardless of whether the non‑citizen has made a valid application for a bridging visa.
(5A) Despite subsection (5), an officer must not remove an unlawful non‑citizen if:
(a) the non‑citizen has made a valid application for a protection visa (even if the application was made outside the time allowed by subsection 195(1)); and
(b) either:
(i) the grant of the visa has not been refused; or
(ii) the application has not been finally determined.
…
Following the amendment, s 197C (s 198 was not amended) partly provided:
197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
Subsections 197C (4)-(7) set out various circumstances in which a “protection finding” (see s 197C(3)(b)) may be made for a non-citizen with respect to a country, including that the Minister was satisfied that the non-citizen met the criterion in s 36(2)(a) or 36(2)(aa) with respect to the country.
FACTUAL BACKGROUND
In December 2011, the applicant, a citizen of Pakistan, arrived in Australia as an unauthorised maritime arrival.
In May 2012, the applicant lodged an application for a protection visa. Although the applicant is a citizen of Pakistan with a particular name, upon his arrival in Australia he told the Department of Home Affairs (Department) that he was a citizen of Afghanistan with a different name (IM). The applicant, in his protection visa application in the name of IM, claimed to fear harm on return to Afghanistan.
In June 2012, the applicant was granted a protection visa based on the information in his application.
On 12 August 2017, the applicant was granted a subclass 155 resident return visa.
On 17 October 2019, the Department sent the applicant a Notice of Intention to Consider Cancellation of the resident return visa under s 109 of the Act (NOICC). By this time, the Department had obtained evidence that the applicant provided false information about his identity and country of origin in his protection visa application.
On 29 October 2019, the applicant responded to the NOICC. The applicant accepted that:
(a)he was a citizen of Pakistan and not Afghanistan;
(b)his name was not IM; and
(c)therefore, he had provided false information about his identity and country of origin in his protection visa application.
The applicant made submissions to the Department as to why, despite the false information he provided in his protection visa application, his visa should not be cancelled.
On 12 June 2020, a delegate of the first respondent made a decision cancelling the applicant’s visa.
On 18 June 2020, the applicant applied to the Tribunal for review of the delegate’s decision.
On 16 July 2021, the Tribunal invited the applicant to attend a hearing on 4 August 2021.
On 4 August 2021, the applicant attended a hearing before the Tribunal.
On 5 August 2021, the Tribunal made a decision affirming the delegate’s decision to cancel the applicant’s visa.
TRIBUNAL’S DECISION
The power to cancel a visa is not engaged unless the visa holder has not complied with a section of the Act listed in the chapeau of s 107(1) in a manner particularised in a notice given under s 107. The Tribunal at [8] noted “the non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 of the Act”. The Tribunal at [8]-[20] considered whether the applicant had not complied with s 101 of the Act in the manner particularised in the NOICC. The Tribunal noted the applicant had conceded that he had provided incorrect information in his protection visa application concerning his identity and country of origin. The Tribunal at [20] concluded “the applicant had not complied with s 101 of the Act” and found “that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice”.
The Tribunal at [21]-[69] considered whether or not to exercise the discretionary power in s 109 to cancel the applicant’s resident return visa. In relation to the circumstances prescribed by reg 2.41 of the Regulations to which the Tribunal must have regard:
(a)The Tribunal at [23] considered the correct information (reg 2.41(a)). The Tribunal noted the correct information concerning the applicant’s identity and country of origin.
(b)The Tribunal at [25]-[28] considered whether the decision to grant a visa was based on incorrect information (reg 2.41(c)). The Tribunal found at [28] “the incorrect information was highly significant to the assessment of whether the applicant met the visa criteria” and “this weighs heavily in favour of cancellation”.
(c)The Tribunal at [29]-[33] considered the circumstances in which the non-compliance occurred (reg 2.41(d)). The Tribunal found at [33] that “the applicant made a deliberate choice to falsify information because he believed that doing so would improve his chances of obtaining the visa”, he “also deliberately falsified his date of birth so as to appear to be a minor because he believed it would improve his chances of obtaining the visa”, “the provision of incorrect answers was intentional and deliberate”, and “the circumstances in which the non-compliance occurred weigh heavily in favour of the cancellation”.
(d)The Tribunal at [34]-[37] considered the present circumstances of the applicant (reg 2.41(e)). The Tribunal found at [37] that “the applicant’s present circumstances, including his integration into the community, weigh against cancellation”.
(e)The Tribunal at [38] considered the subsequent behaviour of the applicant (reg 2.41(f)). The Tribunal noted that the applicant had provided truthful information in response to the NOICC and “this aspect of the applicant’s conduct weighs against the cancellation”.
(f)The Tribunal at [39] considered other instances of non-compliance by the applicant (reg 2.41(g)). The Tribunal noted the applicant provided the same incorrect information in his application for the resident return visa and “this constitutes another instance of non-compliance which favours cancellation”.
(g)The Tribunal at [40] considered the time that has elapsed since the non-compliance (reg 2.41(h)). The Tribunal found that “the length of time that elapsed since the non-compliance weighs against the cancellation”.
(h)The Tribunal at [42] considered any contribution made by the applicant to the community and noted that the applicant did not claim to have made any contribution to the community other than paying taxes while employed.
The Tribunal at [43] stated it “may also have regard to lawful government policy … set out in … PAM3”. As explained in paragraphs 5 above and 32 below, the parties provided the Court with a copy of the PAM3 Policy. The Tribunal at [44]-[64] considered the following matters in the PAM3 Policy:
(a)The Tribunal at [44] considered whether there would be consequential cancellations under s 140. The Tribunal noted there would be no consequential cancellations.
(b)The Tribunal at [45] considered whether the interests of any children would be affected by the cancellation of the applicant’s visa. The Tribunal noted that no children would be affected by the cancellation of the applicant’s visa.
(c)The Tribunal at [46]-[54] considered whether the cancellation would lead to the applicant’s removal from Australia in breach of Australia’s non-refoulement or family unity obligations. The Tribunal at [52] found that “Australia’s non-refoulement obligations would not be breached as a result of the cancellation”. The Tribunal at [54] found that family unity principles would not be breached as a result of the cancellation.
(d)The Tribunal at [55] considered whether the cancellation involved mandatory legal consequences for the applicant, such as lengthy detention or bars from making visa applications without the Minister personally intervening. The Tribunal found that “the applicant can make applications for certain visas in Australia without Ministerial intervention but he would have very limited opportunities to do so” and, although the applicant can make visa applications offshore, he “may be subject to an exclusion period in relation to some such applications”. The Tribunal found that “these considerations weigh against the cancellation”.
(e)The Tribunal at [56]-[64] considered other relevant matters. The Tribunal at [56] “accept[ed] that significant hardship would be caused to the applicant by the cancellation of the visa” and “this weighs heavily against the cancellation”. The Tribunal at [58] “discussed with the applicant the possibility of making another application for a protection visa onshore”. The Tribunal at [61] repeated an earlier finding “that the applicant may face harm if returned to Pakistan due to being a Shia Hazara”, but added that “an assessment of these circumstances would be made before the applicant would be required to leave Australia and therefore … there is little chance of the applicant being returned to Pakistan if it is determined that he would face harm in that country”.
The Tribunal at [65]-[69] considered the totality of the applicant’s circumstances. The Tribunal at [67] explained that although a number of factors weighed against cancellation, the Tribunal placed greater weight on the fact that “the applicant had deliberately falsified the information concerning central aspects of his claims … and that he did so with the aim of improving his chances of obtaining the visa”, and the incorrect information deliberately provided by the applicant “was central to the assessment of the applicant’s eligibility for the visa”. The Tribunal at [69] concluded that “having regard to all the relevant circumstances … the visa should be cancelled”.
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to hearing on 16 July 2025
On 31 August 2021, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Following a period of inactivity, on 29 April 2025 the parties were notified by the registry of the Court that the matter was listed for hearing on 16 July 2025.
On 16 June 2025, an amended application was accepted for filing on behalf of the applicant (Amended Application) which contained one ground as follows (as written):
1.The Second Respondent (the Tribunal) misunderstood and/or misapplied the law in conducting a review of the decision to cancel the Applicant’s Subclass 155 visa under s.109 of the Migration Act 1958 (Cth) (the Act).
Particulars
a. At [27] of its decision, the Tribunal records that the Applicant claimed that the situation the Hazara Shia such as himself was unsafe in Pakistan. In dealing with this claim, the Tribunal stated that among other things “it is not for this Tribunal to determine if the applicant would have been granted the visa if he had declared his correct nationality and personal information”.
b. At [51]-[52] of its decision, the Tribunal relied on the reasoning in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [151] (WKMZ) in finding that Australia’s nonrefoulement obligations would not be breached as a result of the cancellation.
c. The reasoning in WKMZ at [151] was misstated by the Tribunal.
d. The reasoning in WKMZ at [151] was not applicable to the Applicant’s circumstances as the reasons of the Full Court in WKMZ were directed to considering s.197C in a previous form, which no longer applied at the time of the Tribunal’s decision.
e. At the time of the Tribunal’s decision, the Applicant was not the subject of a protection finding made in relation to Pakistan, as defined in s.197C(4)-(7) of the Act. Consequently s.197C(2) of the Act would still operate to require the Applicant to be removed to Pakistan in accordance with s.198 of the Act at the time of the Tribunal’s decision.
f. The matters referred to above in (a)-(e) were relevant to the Tribunal’s exercise of discretion to cancel the Applicant’s visa under s.109(1) of the Act. Consequently, the Tribunal’s decision was affected by jurisdictional error.
On 16 June 2025, the applicant’s written submission (AS) was also accepted for filing.
On 9 July 2025, the first respondent filed a written submission (RS).
Hearing on 16 July 2025
At the hearing in this Court on 16 July 2025, Michelle Yu of counsel appeared for the applicant, and Nicholas Swan of counsel appeared for the first respondent.
A Court Book was tendered (CB) which contained the Tribunal’s decision and documents before the Tribunal.
Counsel made oral submissions which supplemented their written submissions. The submissions are addressed below.
During the hearing, I asked the parties to provide to my Chambers after the hearing a copy of the Departmental policy in PAM3 referred to by the Tribunal at [43]. The parties provided the PAM3 Policy referred to in paragraph 5 above.
The last sentence in the Tribunal’s decision at [61] refers to an assessment process which is known as the “International Treaties Obligations Assessments”. During the hearing, it appeared this process may be relevant to an assessment of ground 1 in the Amended Application. I asked the parties to provide to my Chambers after the hearing the Department’s policy concerning this process.
I also gave the parties an opportunity to file and serve a supplementary submission after the hearing, which addressed the additional material. The applicant filed a supplementary submission on 11 August 2025 and the first respondent filed a supplementary submission on 20 August 2025.
CONSIDERATION
Amended Application
One of the four matters the PAM3 Policy stated decision-makers should consider (see paragraph 5 above) was “whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations” (Non-Refoulement Breach Issue) The Tribunal considered this matter at [46]-[54]. The Tribunal at [50] “accept[ed] that there is a risk of harm that the applicant may experience in Pakistan, being a Hazara and Shia”. The applicant’s complaint to this Court concerns the process by which the Tribunal reached a decision concerning the Non-Refoulement Breach Issue after accepting that the applicant faced a risk of harm on return to Pakistan.
The Tribunal stated at [51]-[52]:
[51]The Tribunal has considered the reasoning of the Full Federal Court in WKMZ v MICMSMA [2021] FCAFC 55, at [151] which confirms that it is open for a decision maker to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so, in the absence of evidence to the contrary. In this case, there is no evidence to indicate that Australia’s usual policy of not returning people to a country where they may face harm would not be followed.
[52]For this reason, the Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.
The applicant made three complaints to the Court about the Tribunal’s reliance on WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463 (WKMZ). The complaints are addressed in the following paragraphs.
The first complaint, in particular (c) of ground 1 of the Amended Application, is that “the reasoning in WKMZ at [151] was misstated by the Tribunal”. The applicant’s written submission at AS [12] re-asserts that “the Tribunal misstated the reasoning in WKMZ at [151]” but does not explain how the Tribunal misstated the reasoning. For the following reasons, I reject the applicant’s contention that the Tribunal misstated the reasoning in WKMZ. In WKMZ the Full Court considered a matter where:
(a)The executive policy at the time of the Tribunal’s decision in 2019 (WKMZ Tribunal), recorded in paragraph 14 of Direction 79 issued under s 499 of the Act, was that “Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to a country in respect of which the non-refoulement obligation exists”, and “Australia will not return a person to their country of origin if to do so would be inconsistent with its international obligations”: WKMZ at [49].
(b)The applicant did not put before the WKMZ Tribunal “evidence that in other cases Australia was not adhering to that executive policy”: WKMZ at [149].
(c)The WKMZ Tribunal found there was a real chance the applicant would face serious harm because of his ethnicity if required to return to South Sudan: WKMZ at [138].
(d)The WKMZ Tribunal, upon considering the executive policy, found “that there is only a low risk that Australia will breach its non-refoulement obligations in respect of the” applicant (Low Risk Finding): WKMZ at [142].
(e)The applicant contended before the Full Court that the WKMZ Tribunal’s Low Risk Finding was affected by jurisdictional error: WKMZ at [15].
The Full Court at [147]-[152] rejected the applicant’s challenge to the Low Risk Finding. Thus, as correctly and eloquently stated by the Tribunal in the present matter at [51], the reasoning in WKMZ indicated that, in the context of the executive policy before the WKMZ Tribunal, “it was open for a decision-maker to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so, in the absence of evidence to the contrary”.
The second complaint, in particular (d) of ground 1 of the Amended Application, is that “the reasoning in WKMZ at [151] was not applicable to the applicant’s circumstances”. There are two limbs of this complaint as follows.
The first limb of the complaint, asserted in the balance of particular (d), is that “the reasons of the Full Court in WKMZ were directed to considering s 197C in a previous form, which no longer applied at the time of the Tribunal’s decision”. It is stated at AS [13]:
Second, the reasoning in WKMZ at [151] would not be applicable to the Applicant’s circumstances at the time of the Tribunal’s decision as reasoning in that judgment dealt with an older version of s.197C of the Act prior to the introduction of the amendment to s.197C by way of the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth).Prior to this amendment, s.197C required the removal of an unlawful non-citizen under s.198 of the Act irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.
I agree that, at the time the WKMZ Tribunal made its decision and at the time of the Full Court’s decision in April 2021, the version of s 197C in paragraph 6 above was in force. In May 2021, s 197C was amended by adding subparagraphs (3)-(9). Some of the additional subparagraphs are set out or summarised in paragraph 7 above. However, as correctly stated by the first respondent at RS [21]-[22], the amendments to s 197C “enhances the Tribunal’s point at [51] rather than diminish[es] it” and “the amendment to s 197C assists the respondent’s case, not the applicant’s case”. This is clear from both the text of the additional subparagraphs and the Explanatory Memorandum to the amending Act, the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) which stated in part:
Section 197C was therefore not intended to operate to require the removal of a person who had been found to engage non-refoulement obligations … The purpose of the Bill is to clarify that the duty to remove under the Migration Act should not be enlivened where to do so would breach non-refoulement obligations …
The second limb of the applicant’s complaint, explained at AS [12], is:
The reasons of the Full Court in WKMZ at [151] were directed to dealing with reasons given by a Tribunal in the context of dealing with particular claims raised in the context of a decision of a Tribunal to affirm a decision not to revoke the cancellation of a visa under s.501CA(4) of the Act. The nature of a review of s.501CA(4) entails a different exercise of statutory power under the Act and is not analogous to the exercise of discretion to cancel a visa under s.109(1) of the Act.
I agree that:
(a)the WKMZ Tribunal was reviewing a decision of a delegate of the Minister under s 501CA of the Act not to revoke the mandatory cancellation of an applicant’s visa under s 501(3A); and
(b)as stated at AS [12], “the nature of a review [under] s 501CA(4) entails a different exercise of statutory power under the Act and is not analogous to the exercise of discretion to cancel a visa under s 109(1) of the Act”.
But these propositions do not affect the correctness or applicability of the Tribunal’s analysis at [51], including its reference to WKMZ at [151]. As correctly stated by the first respondent at RS [20], “what was stated in [151] of WKMZ is dealing with ss 197C and 198 generally, and is not stated by their Honours to only be relevant to s 501CA(4) of the Act”.
The third complaint, in particular (e) in ground 1 of the Amended Application, is explained at AS [14]-[15] as follows:
[14]Third, the post-amendment version of s.197C of the Act which applied at the time of the Tribunal’s decision still did not operate to prevent the Applicant’s removal from Australia to Pakistan. The finding as expressed in [50] of the Tribunal’s decision would not have amounted to a protection finding made in respect of the Applicant in relation to Pakistan as defined in s.197C(4)-(7) of the Act as there was no finding made as to the Applicant’s satisfaction of the criteria for the grant of a protection visa in s.36 of the Act so as to bring this finding within definition of a protection finding as set out in subsections (4)-(7).
[15]As the only operative protection finding had been made by a delegate of the Minister in respect of the Applicant in relation to Afghanistan as part of the grant of his previous protection visa on 1 June 2012, contrary to the Tribunal’s findings at [51]-[52] and [68], s.197C(2) of the Act continued to operate to require the Applicant to be removed in accordance with s.198 of the Act, if his Subclass 155 visa were to remain cancelled. To the extent that the Tribunal’s exercise of the discretion to cancel the Applicant’s visa was predicated on an assumption that the law would not require him to be removed to Pakistan, this was incorrect and amounted to jurisdictional error.
The third complaint appears to be founded on the duty of officers of the Department in s 198(5) of the Act to “remove as soon as reasonably practicable an unlawful non-citizen” who is, among other conditions, “a detainee”.
However, this third complaint overlooks the combination of the reasoning in WKMZ and the Tribunal’s reference at [51] to “Australia’s usual policy of not returning people to a country where they may face harm”.
In relation to the reasoning in WKMZ, the Full Court stated at [107], [113] and [115]:
[107] The approach adopted in decisions to date is that after the final conclusion of any visa refusal or cancellation process, ss 197C and 198 do not preclude detention for a period of time so that the executive can genuinely consider alternative possibilities for a person to remain in Australia (or other options such as admission to a safe third country).
[113]… ss 197CC and 198 do not preclude the continued detention of a person while the Minister considers the exercise of the personal powers conferred by ss 48B, 195A or 417 of the Act …
[115] … The use of the statutory phrase “as soon as reasonably practicable” in s 198 is to be understood as allowing for the duties in s 198 to remove a person to be performed in a way which accommodates other aspects of the statutory scheme of the Migration Act, and – for that matter – other relevant and non-statutory exercises of executive power, such as inquiries about whether there is a third country which may be willing to accept a person removed from Australia, or negotiations about an assertion of statelessness, or a denial of nationality by a putative receiving state.
The applicant’s reasoning at AS [14]-[15] assumes that, following the Tribunal’s decision, no time would be permitted for:
(a)the applicant to make any further visa applications, including requests for the Minister to lift a bar; or
(b)the Department, independently of any request by the applicant, to consider whether the forcible return of the applicant to Pakistan would breach one of Australia’s international treaty obligations, in particular a non-refoulement obligation.
However, first, the applicant’s assumptions are inconsistent with the reasoning in WKMZ. Second, the Tribunal expressly made findings about options for the applicant to obtain other visas to remain in Australia. Specifically, see:
(a)at [55] – The Tribunal found that “the applicant can make applications for certain visas in Australia without the Ministerial intervention [although] he would have very limited opportunities to do so”.
(b)at [58] – The Tribunal recorded its discussion with the applicant’s representative about “the possibility of making another application for a protection visa onshore”. The representative accepted that the applicant might, by the Minister lifting a bar, be “eligible to make another application onshore” and added that the applicant then “has a strong chance of being granted the visa”.
(c)at [61] – The Tribunal considered that, in circumstances where the applicant may face harm if returned to Pakistan due to being a Shia Hazara, “an assessment of these circumstances would be made before the applicant would be required to leave Australia and therefore … there is little chance of the applicant being returned to Pakistan if it is determined that he would face harm in that country”.
(d)at [64] – The Tribunal recorded the representative’s submission “that there [is] likely to be a long delay before the applicant’s status is resolved, where the bar is lifted to enable him to apply for another visa onshore or for [a] Ministerial intervention request to be determined”. This submission by the representative to the Tribunal appears to be inconsistent with this aspect of the applicant’s complaint to the Court.
The applicant did not challenge these findings of the Tribunal in the proceeding before this Court. These unchallenged findings are inconsistent with the applicant’s third complaint to the Court.
Further, according to the Amended Application accepted for filing on 16 June 2025, the applicant was not in immigration detention. The duty to remove an applicant under s 198(5) of the Act only arises if the applicant “is a detainee”.
For the above reasons, the Amended Application does not identify a jurisdictional error in the Tribunal’s decision.
During the hearing on 16 July 2025, there was discussion about the Tribunal’s reference at [51] to “Australia’s usual policy of not returning people to a country where they may face harm”. Based on documents in the Court Book, there was no direct evidence of this “usual policy” before the Tribunal. However:
(a)There is evidence of this policy in WKMZ, and on which the WKMZ Tribunal relied in 2019. The Tribunal considered WKMZ, and therefore considered the policy discussed in WKMZ.
(b)The applicant’s representative did not provide evidence or make a submission to the Tribunal contrary to this policy.
(c)The applicant did not contend before this Court that the statement of “usual policy” by the Tribunal at [51] was wrong, or that the Tribunal did not have a basis for referring to or relying on the “usual policy” at [51].
Post-hearing submissions
As stated in paragraphs 32 to 34 above, during the hearing on 16 July 2025 I requested copies of two policy documents expressly or implicitly referred to in the Tribunal’s decision and permitted the parties to file and serve post-hearing submissions.
It is stated in paragraph 4 of the applicant’s post-hearing submission that “to the extent there is an implicit assumption in [64] of the Tribunal’s decision … that an ITOA would be conducted in respect of the applicant prior to being detained and removed in accordance with ss 189, 197C and 198 of the Migration Act, this is not supported by the wording of the ITOA policy”. The Tribunal found at [61], rather than implicitly assumed at [64], that an ITOA would be conducted in respect of the applicant. If the applicant is attempting to challenge this finding by the Tribunal at [61] (set out in paragraph 48(c) above) for the first time in the proceeding before this Court in a post-hearing submission:
(a)This is not appropriate, since the applicant has not sought leave to raise a new ground.
(b)In any event, based on my brief consideration of the submission and the detailed response by the first respondent in its post-hearing written submission (with which I agree), it was open to the Tribunal at [61] to make the finding it made. Since the applicant has not sought leave to raise the new ground, it is not necessary to explain this point further.
COSTS
I will hear submissions on costs at the delivery of judgment.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 15 October 2025
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