DGBK v Minister for Home Affairs

In the matter of DGBK v Minister for Home Affairs, the Federal Court was called upon to review a decision of the Administrative Appeals Tribunal which had upheld the decision of a delegate of the Minister for Home Affairs not to revoke the mandatory cancellation of the applicant's visa under s 501CA(4) of the Migration Act. The applicant, an Afghan national, had been granted a protection visa in 2012, but this was cancelled in 2016 following a conviction for sexual offences against children. The Tribunal had found that the applicant, if unsuccessful in his application for review, would be liable for return to Afghanistan as soon as reasonably practicable, and in the meantime would be subject to indefinite detention. The applicant sought judicial review of the Tribunal’s decision on the basis that it had misunderstood the consequences of its decision by failing to take into account that he could not be returned to Afghanistan without Australia breaching its non-refoulement obligations.

The central legal issue before the court was whether the Tribunal had misunderstood the consequences of its decision, as contended by the applicant. The court was required to determine whether the Tribunal’s reference to ‘indefinite detention’ in its reasons demonstrated a misapprehension of the legal framework governing the applicant's circumstances. This included understanding the non-refoulement obligations under international law and the operation of s 197C(2) of the Migration Act, which clarifies that the duty to remove an unlawful non-citizen arises irrespective of Australia's non-refoulement obligations.

The court found that the Tribunal’s reference to ‘indefinite detention’ did not indicate a misapprehension of the legal framework. The court noted that the Tribunal’s reasons, read as a whole, appropriately considered the statutory provisions and the applicant's non-refoulement obligations. The court was satisfied that the Tribunal had correctly understood that the applicant could not be returned to Afghanistan without breaching Australia’s non-refoulement obligations, but this did not alter the fact that the duty to remove him as soon as reasonably practicable remained under s 197C(2) of the Migration Act. The court concluded that the Tribunal’s reasons did not disclose a misapprehension of the consequences of its decision.

Accordingly, the court dismissed the application for judicial review. The applicant was ordered to pay the costs of the first respondent, to be assessed if not agreed.