Federal Court. Was the FCA decision in AJL20 plainly wrong? Was it reasonable for the Department to enable the Applicant's Tribunal review application to be determined before he was in fact removed to Vietnam? Does the phrase “as soon as reasonably practicable” in s 198 of the Migration Act 1958 (Cth) "require the Commonwealth to take any and all steps reasonably practicable for it to take towards the applicant’s removal"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: For the purpose of a single judge of the FCA considering whether a decision of another single judge of the FCA is plainly wrong, is it material that a third single judge of the FCA considered, on an interlocutory basis, it not to be plainly wrong?
Question 2: In AJL20, Bromberg J held as follows: "For administrative detention under the Act to be lawful it must be detention for a purpose which the Act provides for, removal from Australia being one such permissible purpose. Where there is a departure from the permissible purpose for the detention, the detention will no longer be lawful irrespective of whether one or other of the events specified in s 196(1) has in fact occurred. That is so because it is a condition of the lawfulness of a detention that the detention be for a permissible purpose". Was AJL20 plainly wrong?
Question 3: "[The Applicant] was detained as required by s 189(1) of the Act and made a written request for removal to Vietnam on 19 September 2018. He had also lodged an application for review of the refusal to revoke the cancellation of his visa with the Administrative Appeals Tribunal (the AAT). [Was it reasonable] for the Department to enable [the Applicant's] review application to be determined before he was in fact removed to Vietnam"?
Question 4: The Applicant complained that the Department did not ensure that the form to be lodged with the Vietnamese Embassy for the purpose of his removal to that country had as much information as possible. Was it "unreasonable for the Department to have relied on [the Applicant] to ensure the travel document form was completed with as much information as possible" in the Vietnamese language?
Question 5: Does the phrase “as soon as reasonably practicable” in s 198 of the Migration Act 1958 (Cth) "require the Commonwealth to take any and all steps reasonably practicable for it to take towards the applicant’s removal, and to take those steps at the time each step becomes reasonably practicable"?
Question 6: Does the onus imposed upon to the Commonwealth to prove that immigration detention is effected for a permissible purpose require it to "show that there were no (or no other) reasonably practicable steps it could have taken"?
The FCA answered those questions as follows: