Federal Court. Does the Federal Court have jurisdiction to hear the application for judicial review insofar as it seeks: declarations that the Minister's decision that the United Nations Committee Against Torture's Interim Measures Request was 'unwarranted' is affected by jurisdictional error; a declaration that Australia owes non-refoulement obligations in relation to the Applicant?
The Federal Court (FCA) described the background as follows:
1 The applicant in this proceeding is a citizen of Sri Lanka who arrived in Australia by boat, without a visa, in [redacted] 2012. He applied for a protection visa in [redacted] 2012 which was refused by a delegate of the Minister for Immigration and Citizenship on [redacted] 2013. He sought merits review of that decision by the Refugee Review Tribunal, which affirmed the decision on [redacted] 2015. The applicant then made two series of applications for judicial review and appeals to the Federal Circuit Court, this Court and to the High Court, all of which were unsuccessful. The applicant also made four applications to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs seeking ministerial intervention pursuant to ss 417 and 48B of the Migration Act 1958 (Cth) (the Act), which were also unsuccessful.
2 On [redacted] the Department of Home Affairs scheduled the applicant to be removed from Australia. The applicant obtained an urgent interim injunction to prevent his removal. On [redacted] he lodged a petition with the United Nations Office of the High Commissioner for Human Rights (OHCHR) and the Committee Against Torture (UNCAT) for consideration under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Amongst other things, the petition sought a ruling from the UNCAT that the applicant’s removal to Sri Lanka would infringe Australia’s non-refoulement obligations under the CAT.
3 Upon receipt of the applicant’s petition, the Rapporteur on New Complaints and Interim Measures of the UNCAT (the Rapporteur) issued an Interim Measures Request (IMR) to the Australian Government requesting that it not remove the applicant to Sri Lanka while the UNCAT considered the petition. The Department suspended the applicant’s removal from Australia while it assessed the IMR. On [redacted] 2020, the Department’s Assistant Director, International Obligations and SHP Section (the Assistant Director), prepared a recommendation to the Minister (the IMR Recommendation) in which she advised that the IMR was “unwarranted” and that the applicant’s removal to Sri Lanka does not engage Australia’s non-refoulement obligation under Article 3 of the CAT or its implied non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR).
4 On [redacted] 2020, based on the IMR Recommendation, the Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Acting Minister) declared the IMR to be “unwarranted” (the Unwarranted IMR Decision).
5 On [redacted] 2021, the respondents informed the applicant that it was the respondents’ intention to remove the applicant to Sri Lanka on [redacted] 2021 (the removal decision)...
Some of the questions to the FCA were as follows:
Question 1: Does the FCA have "jurisdiction to hear the application for judicial review insofar as it seeks declarations that the Unwarranted IMR Decision (and the IMR Recommendation) are affected by jurisdictional error", in that, although the Unwarranted IMR Decision was not made pursuant to a power under the Migration Act 1958 (Cth), "it relates to matters which concern the exercise of power under ss 197C and 198, and the controversy between the parties is thus a matter arising under the laws made by Federal Parliament and within the original jurisdiction of the Court under s 39B(1A)(c) of the Judiciary Act 1903 (Cth)"?
Question 2: Does the FCA have jurisdiction to hear the application for judicial review insofar as it seeks a declaration that Australia owes non-refoulement obligations in relation to the Applicant?
Question 3: Can it be said that "the power of the Acting Minister to make the Unwarranted IMR Decision is subject to an implied condition that the duty will be performed within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li [2013] HCA 18"?
The FCA answered those questions as follows: