High Court. Is the power in s 198AHB of the Migration Act 1958 (Cth) conditioned on a requirement to afford the affected person procedural fairness? Does the question of whether to remove a non-citizen is reasonably practicable encompass "an assessment of what will or might be expected to happen to the non-citizen once received into the country to which the non-citizen is removed"? Do ss 198AHB, 76AAA and 198(2B) contravene Ch III of the Constitution in their application to the appellant?
GAGELER CJ, GLEESON, JAGOT AND BEECH-JONES JJ said:
- This appeal concerns the lawfulness of the Commonwealth of Australia entering into an Interim Third Country Reception Arrangement with the Republic of Nauru ("the Interim Arrangement") for the purpose of s 198AHB of the Migration Act 1958 (Cth). Other issues are the statutory permissibility and constitutional validity of the proposed removal of the appellant from Australia to Nauru in accordance with the Interim Arrangement and pursuant to ss 76AAA and 198(2B) of the Migration Act having regard to the appellant's severe asthma and the inadequacy of medical services available in Nauru to manage his condition on an ongoing basis.
- Sections 76AAA and 198AHB were inserted into the Migration Act by the Migration Amendment Act 2024 (Cth) ("the 2024 Amendment Act") as part of the legislative response by the Commonwealth Parliament to the holding in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs that, in authorising and requiring the immigration detention of an unlawful non-citizen until the non-citizen is removed from Australia under s 198, ss 189 and 196 of the Migration Act contravene Ch III of the Constitution in their application to a non-citizen whose removal from Australia has no real prospect of becoming practicable in the reasonably foreseeable future. The sections so inserted were designed to operate against the background of amendments made as part of the same legislative response contained in Div 3 of Pt 2 of the Migration Act, and in the Migration Regulations 1994 (Cth), under which an unlawful non-citizen whose removal from Australia has no real prospect of becoming practicable in the reasonably foreseeable future is to be granted a Bridging R (Class WR) Subclass 070 (Bridging (Removal Pending)) visa ("BVR").
Some of the questions to the High Court (HCA) were as follows:
Question 1: Does an appeal by way of rehearing involve "the application to the facts found by the primary judge of the law as it exists at the time of this Court giving judgment on the appeal"?
Question 2: Is the power to enter into a third country reception arrangement with a foreign country for the purposes of s 198AHB of the Migration Act 1958 (Cth) conditioned on a requirement to afford the affected person procedural fairness, in the absence of which the Interim Arrangement would have been unlawful?
Question 3: Can it be said that "the power and duty connoted by the words "must remove" in s 198 is a power and duty to remove an unlawful non-citizen "from Australia" without specification or limitation as to the place outside Australia to which the non-citizen might be removed"?
Question 4: If the answer to Question 3 is 'yes', is the exercise of that power and performance of that duty nevertheless "confined by the practical necessity to find a state that will receive the [non-citizen] who is to be removed"?
Question 5: Can it be said that "whether removal to that country is "reasonably practicable" turns on an objective assessment of the steps legally and practically available to be taken by an officer to result in the non-citizen being transported to and received into that country"?
Question 6: If the answer to Question 5 is 'yes', does it follow that "a medical condition which renders a non-citizen unfit to travel to a country can result in removal of the non-citizen to that country being objectively assessed to be not reasonably practicable"?
Question 7: If the answer to Question 6 is 'yes', does it follow that the question of whether to "remove" a non-citizen is "reasonably practicable" encompass "an assessment of what will or might be expected to happen to the non-citizen once received into the country to which the non-citizen is removed"?
Question 8: Can it be said that "ss 198AHB, 76AAA and 198(2B) of the Migration Act, in their application to authorise and require the removal of the appellant to Nauru where he would face an imminent risk of premature death from a fatal asthma attack, are properly characterised as penal or punitive in character and therefore to repose exclusively judicial power in an officer in contravention of Ch III of the Constitution"?
The HCA answered those questions as follows: