Federal Court. Was Australia's agreement with Nauru for the removal of 3 individuals invalid, with the result that s 76AAA(4) of the Migration Act 1958 (Cth) was not enlivened?
The Federal Court (FCA) said as follows:
3 On 5 December 2024, the Migration Amendment Act 2024 (Cth) came into force. This introduced ss 76AAA and 198AHB into the Migration Act (set out later in these reasons). In broad terms, s 198AHB operates if the Commonwealth of Australia enters into an arrangement (referred to as a “third country reception arrangement”) with a foreign country in relation to the removal of non-citizens from Australia and their acceptance, receipt or ongoing presence in the foreign country, and confers a power to take or cause to be taken any action in relation to the arrangement. Section 76AAA(1) provides that the section applies in relation to a non-citizen if:
(a) the non-citizen holds a BVR;
(b) the non-citizen has “permission (however described)”, granted by a foreign country, to enter and remain in that country;
(c) the foreign country is party to a third country reception arrangement within the meaning of s 198AHB; and
(d) none of certain exceptions apply.
4 Section 76AAA(2) provides that the Minister “must” give the non-citizen notice that the section applies in relation to the non-citizen. The effect of the non-citizen receiving the notice is that the BVR ceases to be in effect: s 76AAA(4). The rules of natural justice do not apply to the giving of such a notice: s 76AAA(5).
5 Between 31 January 2025 and 12 February 2025, the Minister for Home Affairs of the Commonwealth of Australia (who also held the office of Minister for Immigration and Multicultural Affairs) and the President of the Republic of Nauru exchanged letters in relation to an interim third country reception arrangement. The respondents’ case is that the exchange of letters constituted an agreement or arrangement between Australia and Nauru, albeit an interim agreement or arrangement that applied to only three individuals (one of whom was the applicant). One aspect of the applicant’s case (proposed new ground 2A) appears to put in issue whether an agreement or arrangement [REDACTED]. Notwithstanding that aspect of the applicant’s case, as a matter of convenience, I will refer to the agreement or arrangement said to be constituted by those letters as the Interim Arrangement.
Some of the questions to the FCA were as follows:
Question 1: Was the authority to make the decision to enter into the Interim Arrangement (referred to in the Originating Application as the “Arrangement Decision”), and to enter into the Interim Arrangement (referred to in the Originating Application as the “Arrangement”), impliedly conditioned on a requirement to afford the applicant procedural fairness, non-compliance resulting in the Interim Arrangement lacking legal effect under s 76AAA(1)(c) of the Migration Act 1958 (Cth)?
Question 2: Was the authority to make the decision (referred to in the Originating Application as the “Permission Decision”) to produce the “permission” for the applicant under the Interim Arrangement impliedly conditioned on a requirement to afford the applicant procedural fairness, non-compliance resulting in any visa in fact granted by Nauru not being a “permission” having legal effect under s 76AAA(1)(b)?
Question 3: Does the visa granted by Nauru to the Applicant have legal effect under s 76AAA?
Question 4: Was there a real risk of indirect refoulement were the Applicant removed to Nauru, with the result that the exception in s 76AAA(1)(d)(ii) was engaged?
Question 5: Section 198(2B) provided that an officer must remove as soon as “reasonably practicable” an unlawful non-citizen if certain criteria are satisfied. Does the reference to reasonable practicability in s 198(2B) require an officer to take into account what is likely, or virtually certain, to befall the unlawful non-citizen after removal is complete?
Question 6: Insofar as the applicant contends that he is not capable of undertaking the journey from Australia to Nauru due to his medical conditions, may his conditions be relevant to whether it is “reasonably practicable” under s for him to undertake the journey?
The FCA answered those questions as follows: