Federal Court. Is it reasonably arguable that the question of whether it is ‘reasonably practicable’ to remove a person from Australia is an objective ‘jurisdictional fact’, that is a fact which a court can and should determine for itself?
The Minister made a decision by which he agreed ‘to consider individual detainees in … cohorts through streamlined group first stage Ministerial intervention submissions under … section 195A and section 197AB powers’ that included ‘Detainees in Tier 4 health related specialised held detention placement and/or with complex care needs’.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is it "reasonably arguable that the effect of the decision of the Minister agreeing to the recommendation and submission was that the Minister made a procedural decision to consider the exercise of the powers of intervention for individuals falling within the cohorts described in the recommendation and submission"?
Question 2: Is it reasonably arguable that, if the Secretary of the Department receives a request for the exercise of the power under s 195A of the Migration Act 1958 (Cth), in the absence of any procedural decision of the Minister giving the Secretary a lawful basis not to do so, the Secretary is under a duty to refer the request to the Minister?
Question 3: If the answer to Question 2 is 'yes', must that duty be performed bona fide for a proper purpose?
Question 4: If the answer to Question 2 is 'yes', is it reasonably arguable that concepts of procedural fairness or legal reasonableness have any role to play in the discharge of that duty?
Question 5: In the performance of non-statutory duties or functions (including the above duty), may the Secretary or Departmental officers "undertake an administrative inquiry and provide a submission or advice to the Minister for the purposes of the exercise of a statutory power"?
Question 6: If the Minister relies entirely upon a departmental submission or advice to make a statutory decision, may the Minister’s decision be infected by jurisdictional error if the submission or advice was proffered in disregard of any requirements that constrain the exercise of the applicable statutory power of the Minister?
Question 7: If that duty has not been performed, is removal of a non-citizen not ‘reasonably practicable’ within the meaning of s 198 while the duty remains unperformed?
Question 8: Is it "reasonably arguable that it would be legally unreasonable to make a decision not to consider the exercise of the power under s 195A in respect of a non-citizen based, in part, on accepting as true allegations of sexual and criminal conduct without giving notice of the allegations and an opportunity to provide information, explanation or submission about them"?
Question 9: Is it reasonably arguable that the question of whether it is ‘reasonably practicable’ to remove a person from Australia is an objective ‘jurisdictional fact’, that is a fact which a court can and should determine for itself?
Question 10: If the question of reasonable practicability of removal involves a subjective jurisdictional fact, is it reasonably arguable that it would be legally unreasonable for a case officer to "prefer the opinions of a registered nurse who had not examined the applicant over the opinion of an orthopaedic surgeon who had examined him and prepared a medico-legal report"?
Question 11: Can it be said that "restraining an officer from performing the obligation or duty under s 198 exposes the executive to the risk of unlawfully detaining a non-citizen beyond the period that is reasonably capable of being seen as necessary for the legitimate and non-punitive purpose of the Act"?
The FCA answered those questions as follows: