Federal Court. Was it permissible for the delegate to consider, for the purpose of r 2.20(17)(c) of the Migration Regulations 1994 (Cth), that the Appellant had not signed a request for removal, was not in immigration detention and had a pending application for judicial review?
Clause 050.211 of Schedule 2 to the Migration Regulations 1994 (Cth) provided that the following primary criteria must be satisfied at the time of the application (emphasis added):
(1) The applicant is:
(a) an unlawful non-citizen; or
(b) the holder of a Bridging E (Class WE) visa; or
(c) the holder of a Subclass 041 (Bridging (Non-applicant)) visa.
(2) The applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17).
Clause 050.221 provided that those same criteria had to be satisfied also at the time of decision.
Regulation 2.20(17) prescribed the class of person who would fall within the definition of “eligible non-citizen” in s 72, as provided by sub-reg 2.20(1), to include circumstances where:
(a) the non-citizen is an unlawful non-citizen; and
(b) section 195A of the Act is not available to the Minister in relation to the grant of a visa to the non-citizen; and
(c) the Minister is satisfied that the non-citizen’s removal from Australia is not reasonably practicable at the time.
A delegate found that r 2.20(17)(c) was not satisfied because the Appellant: had not signed a request for removal; was not in immigration detention; and had a pending application for judicial review before the Federal Court (FCA).
At the relevant time, s 198 of the Migration Act 1958 (Cth) obliged officers to remove unlawful non-citizens "as soon as reasonably practicable".
Some of the questions to the FCA were as follows:
Question 1: Is the context for determining reasonable practicability under s 198 the proposed physical removal of the person from Australia?
Question 2: Should the expression "reasonably practicable" be interpreted differently as between r 2.20(17)(c) and s 198?
Question 3: Are the range of factors relevant to "reasonable practicability" of removal that are required under r 2.20(17)(c) broader than those required in relation to s 198?
Question 4: Was it permissible for the delegate to take into account the Appellant’s then pending application for judicial review?
Question 5: Was it permissible for the delegate to take into account the fact that the Appellant was not in immigration detention?
Question 6: Was it permissible for the delegate to take into account the fact that the Appellant had not signed a removal form?
The FCA answered those questions as follows: