37.
persecution as determined by a protection finding made under the Migration Act scheme.[1] Section 197C is complemented by s 198(5A), which prevents the removal of an alien pending the final determination of their valid application for a protection visa. The consequence of these provisions is that a person who obtains (or might obtain) a protection finding under the Migration Act scheme cannot be removed without their written consent[2] to the country to which the protection finding applies (or would apply).
111 Under the Migration Act scheme, ss 189(1) and 196(1) provide for potentially indefinite detention in circumstances where: (i) in the reasonably foreseeable future the only country that would accept the removal from Australia of a person who is an alien in Australia is a country the subject of a protection finding; and (ii) the alien steadfastly refuses to consent to be returned to that country. As explained at the outset of these reasons,[3] the requirement in ss 189(1) and 196(1) for the detention of such aliens is not reasonably capable of being seen as necessary for the purpose of their removal from Australia. There is nothing proportionate about a legal scheme that provides for the detention of aliens until they consent to be removed to a place in circumstances where it has been determined that they require protection in that place. Sections 189(1) and 196(1) would need to be disapplied from such circumstances.
112 There are gaps in the Migration Act scheme by which a person with a need for protection, including based upon a well-founded fear of persecution, might not obtain a protection finding. For instance, the circumstances in another country that give rise to a well-founded fear of persecution might arise after the protection visa application has been finally determined. Or, as in this case, in the administrative process for considering a protection visa application an applicant might not raise the issue upon which they might arguably have a well-founded fear of persecution. Another gap, also evident in this case, is where the administrative decision concerning a protection finding is found to have been flawed in one respect but the decision to refuse a protection visa is not quashed because refusal of the protection visa was required for other reasons (here, the provision of a bogus document).
113 Sections 48B, 195A and 197AB of the Migration Act provide a safety valve for cases that fall within these gaps. Section 48B confers, broadly, a power on the Minister, in the public interest, to permit a subsequent protection visa application to be made even if an earlier protection visa application had been made and refused (which would otherwise be barred under s 48A). Section 195A permits the Minister to grant a visa to a person in detention even without an application.
