Does s 198AD apply to a ‘fast track applicant’?

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

Question 1: Is the Secretary of the Department of Home Affairs an 'officer' upon whom any duty under s 198AD(2) of the Migration Act 1958 (Cth) is imposed?

Question 2: Is it an unstated requirement of s 198AD that the provision must not be excluded from application to a person by some other provision of the Act?

Question 3: Section 198AD(1) expressly makes the application of s 198AD subject to ss 198AE, 198AF and 198AG. In an application for mandamus compelling the Secretary to perform the duty under s 198AD(2), does the applicant bear the onus of establishing "the non-existence of those circumstances described in ss 198AE, 198AF and 198AG which make s 198AD inapplicable"?

Question 4: If the answer to Question 3 is 'yes', does the legal onus remain upon the applicant?

Question 5: If the answer to Question 4 is 'yes', can it nevertheless be inferred, by reference to the principles in Blatch v Archer, that there was no determination by the Minister under s 198AE, given the Minister's admission "that the only matter stopping the taking of steps for removal of the applicant to Nauru is the Secretary’s belief that s 198AD does not apply, and the absence of any evidence from the Minister that a determination has been made under s 198AE"?

Question 6: Does s 198AD apply to an unauthorised maritime arrival who is a “fast track applicant” as defined under s 5?

Question 7: Must the question of whether it is reasonably practicable to take the applicant to a regional processing country pursuant to s 198AD(2) be determined objectively?

Question 8: Can it be said that "the notion of reasonable practicability cannot require that every possible impediment have been cleared, particularly when no attempt has been made to clear any impediments"?

Question 9: Could a speech by a Minister in a press conference stating that people who arrive illegally by boat in Australia would be sent to a regional processing country within 48 hours support a finding that the applicant was capable of being taken to a regional processing country within a fairly short time after his arrival?

Question 10: In AJL20, "the High Court held that where the Executive has failed to perform the duty under s 198(6) to remove an unlawful non-citizen from Australia as soon as reasonably practicable, mandamus is available to compel the proper performance of that duty, but habeas corpus may not be granted to effect the release of the person into the Australian community". Does the reasoning in AJL20 equally apply to a "failure or refusal of an officer to perform the duty imposed under s 198AD(2) to take an unauthorised maritime arrival from Australia to a regional processing country as soon as reasonably practicable"?

Question 11: Can the FCA order not only mandamus for the performance of the duty under s 198AD(2), but also impose "conditions of detention calculated to minimise the harm suffered by the detainee pending performance of the duty"?

Question 12: Can the FCA order not only mandamus for the performance of the duty under s 198AD(2), but also impose "conditions of detention calculated to minimise the harm suffered by the detainee pending performance of the duty"?

Question 13: If the answer to Question 12 is 'yes', will the FCA's power to impose such conditions arise under s 23 of the Federal Court of Australia Act 1976 (Cth)?

Answer: Yes.

If the answer to Question 13 is 'yes', can it nevertheless be said that:

Question 14: "The relief which the Court is authorized to give does not extend beyond the grant of remedies appropriate to the protection and enforcement of the right or subject-matter in issue"?

Question 15: "When a specific statute which invests the Court with jurisdiction in matters of a particular class does so in such a way as to limit the power of the Court to grant relief of a particular kind, there is no basis for transcending that limitation by recourse to the general provisions of the Federal Court of Australia Act"?

Question 16: If unlawful non-citizen is “held” in a detention centre, does he/she remain in immigration detention while “in the company of, and restrained by” an officer when taken to a hospital?

Question 17: Can it be said that the word "restrained" in the definition of "immigration detention" under s 5(1) "includes direct physical restraint, but also encompasses directing restrictions or limits upon the physical space in which an unlawful non-citizen has liberty"?

Question 18: If the answer to Question 17 is 'yes', does the Migration Act "require the place of such confinement to be specified by a direction or determination of the Minister"?

Question 19: Can it be said that the terms “in the company of” an officer in the definition of "immigration detention" under s 5(1) do necessarily mean that detention requires constant, direct physical surveillance, with the result that, "for example, an unlawful non-citizen undergoing surgery does not cease to be in “immigration detention” simply because an accompanying officer waits outside the closed door of the operating theatre"?

Question 20: If the answer to Question 19 is 'yes', is physical proximity nevertheless required?

Question 21: Can it be said that the word "held" in the definition of "immigration detention" under s 5(1) "does not refer to direct physical restraint, but connotes restriction of movement within an enclosed or limited physical space, such as a detention centre, prison, vessel or other place"?

Question 22: Does the word "held" in the definition of "immigration detention" under s 5(1) require the unlawful non-citizen to be in the company of an officer?

Question 23: Under s 197AB(1) of the Migration Act, where the Minister makes a determination to the effect that a person is to "reside at a specified place, instead of being detained at a place covered by the definition of ‘immigration detention'", is the person not prevented, subject to any conditions imposed, from leaving that place from time to time?

Question 24: Under s 197AB(1) of the Migration Act, where the Minister makes a determination to the effect that a person is to "reside at a specified place, instead of being detained at a place covered by the definition of ‘immigration detention'", is the unlawful non-citizen required to be in the company of and restrained by an officer?

Question 25: In the definition of "immigration detention" under s 5(1)(b)(5), according to which an unlawful non-citizen can be held by, or on behalf of, an officer "in another place approved by the Minister in writing", can the Court "compel the Minister to exercise the power to approve another place"?

Question 26: "In a matter where the Court has jurisdiction, it is within the power of the Court to achieve particular conditions of detention by ordering that an unlawful non-citizen be detained at a particular detention centre", using the second form of immigration detention, namely the definition of "immigration detention" under s 5(1)(b) (i.e. "being held by, or on behalf of, an officer")?

Question 27: Can the FCA, under the power conferred by s 23 of the FCA Act to make orders that are appropriate, direct that officers are to detain an unlawful non-citizen at a particular place using the first form of immigration detention, namely the definition of "immigration detention" under s 5(1)(a) (i.e. "being in the company of, and restrained by")?

Question 28: If the answer to Question 27 is 'yes', is it so "even if that place is not a detention centre, prison, watch house, or other place of detention approved by the Minister"?

Question 29: Should the FCA's discretion be exercised in favour of ordering the detention of the applicant at the home of one of his supporters?

The FCA answered those questions as follows: