Federal Court. Should there be an implication in s 198(6) of the Migration Act 1958 (Cth) that "the duty imposed on an officer to remove him as soon as reasonably practicable had to be postponed while there was a realistic possibility that the Minister would consider exercising his discretion to lift the bar under s 48B(1), until after the Minister made a procedural decision, through the Department following his instructions in the Guidelines, that the request was in a class of case that he either would or would not consider"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: The purpose of “The Ministerial Intervention Power under Section 48B of the Migration Act 1958” that described itself as “Refugee and humanitarian instructions” (the Guidelines) was to explain the administration process for Departmental officers after the receipt of a request for consideration of the Ministerial intervention power. Do the Guidelines appear to have been made in an exercise of the Minister’s statutory powers under s 499 of the Act?
Answer: No.
Question 2: Should there be an "implication in s 198(6) that the duty imposed on an officer to remove him as soon as reasonably practicable had to be postponed while there was a realistic possibility that the Minister would consider exercising his discretion to lift the bar under s 48B(1), until after the Minister made a procedural decision, through the Department following his instructions in the Guidelines, that the request was in a class of case that he either would or would not consider"?
Answer: No.
The FCA answered those questions as follows: