Challenge to refusal to grant travel ban exemption

Federal Court. Delegates refused 2 requests made under s 7 of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth). Section 7 provided that an exemption to the travel ban may be granted to an AU citizen or PR in exceptional circumstances, which are demonstrated by providing a compelling reason for needing to leave Australia. Does s 7(2) exhaust the concept of exceptional circumstances? Does the delegate's use of the language of “critical” reason rather than “compelling” reason indicate error? Do the situations which indicate a need for compassion to be exercised fall within the concept of “exceptional circumstances"? Does s 7 call for a balancing exercise of the reason for travel against the risk it might pose to the AU community? Were the circumstances described in Department of Home Affairs' website a policy? Must content of procedural fairness obligations conform to the circumstances of an emergency situation? Was denial of procedural fairness cured by fact that first refusal put Applicants on notice of factors considered by delegate?

The questions to the Federal Court (FCA) were as follows:

Question 1: Does s 7(2) of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth) exhaust the concept of exceptional circumstances?

Question 2: Does the fact the delegate used the language of “critical” reason rather than “compelling” reason indicate error?

Question 3: Do the situations which indicate a need for compassion to be exercised fall within the concept of “exceptional circumstances"?

Question 4: Does s 7 call for a balancing exercise of the reason for travel against the risk it might pose to the Australian community?

Question 5: Were the circumstances described in Department of Home Affairs website a policy?

Question 6: Must the content of procedural fairness obligations conform to the circumstances of an emergency situation?

Question 7: If there was a denial of procedural fairness, was the denial cured by the fact that the delegate had put the Applicants on notice of the factors considered by the delegate in the first refusal?

The FCA answered those questions as follows:

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