Federal Court. Minister: cancelled Applicant's child visa under s 501; detained him under s 189; refused to grant him a protection visa, despite finding he was owed protection; declined to consider granting him a visa under s 195A. Minister accepted that, from 26 July 2019, he was required to remove Applicant from Australia as soon as reasonably possible, due to s 198(6). Until the FCA decision on 11 Sep 2020, Minister had not removed him, but kept him detained. FCA held that, although s 196(1)(a) says an unlawful non-citizen (UNC) must be kept in detention "until" he/she is removed under s 198, detention is unlawful after the first point at which point removal becomes reasonably possible. Minister said that removal was not reasonably practicable, as that would breach international non-refoulement obligations. FCA held that that breach was a moral, but not a legal, justification, given s 197C. As a result, FCA ordered Applicant's release, despite the fact he still was a UNC.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that, "on the proper construction of the scheme of the [Migration Act 1958 (Cth)] providing for administrative detention [of an unlawful non-citizen] detention by or on behalf of the Commonwealth would only be lawful if it were for one of the following three or possibly four purposes: (a) removing the applicant from Australia; (b) receiving, investigating and determining an application for a visa by the applicant to enter and remain in Australia; (c) determining whether to permit the applicant to make a valid application for a visa; or (d) possibly, determining whether to grant the applicant a visa without an application by him"?
Question 2: Can it be said that the Constitution imposes constraints, reflected in the Migration Act, "upon both the purpose and the duration of detention, the two being connected because the duration of detention must be fixed by what is necessary and incidental to the execution of the power to detain and the fulfilment of its purpose"?
Question 3: Does s 196(1)(a) allow the Commonwealth to keep a person in immigration detention until that person is removed under s 198(6), even while detention is not necessary or incidental to the execution of the power to remove that person from Australia? In other words, can it be said that "the requirement imposed by s 198(6) that an unlawful non-citizen be removed as soon as reasonably practicable is not a necessary condition of the lawfulness of the detention of the unlawful non-citizen"?
Question 4: Can it be said that, in cases of where s 198 has not yet been engaged and therefore detention under 196 is still lawful, the appropriate remedy for a failure to make a decision within a reasonable period of time is Mandamus compelling the Minister to make a decision whereas, in cases where s 198 has been engaged (i.e. where the time at which it is reasonably practicable to remove a person has already passed), the most appropriate remedy is relief in the nature of habeas corpus?
Question 5: If the answer to Question 3 is "no", at what point in time does detention become unlawful?
Question 6: In answering Question 5, is removal from Australia country-specific?
Question 7: Did the Commonwealth bear the onus of proof as to whether the earliest time for the removal of the Applicant from Australia as soon as reasonably practicable had not been reached?
Question 8: Will the "absence of any or sufficient steps being taken to progress removal over a period of detention ... necessarily demonstrate that removal of the detainee from Australia was not undertaken or carried into effect as soon as reasonably practicable"?
Question 9: May it be "accepted that the requirement to undertake or carry into effect a removal as soon as reasonably practicable includes some allowance for error to be made in the pursuance of the removal"?
Question 10: If the answer to Question 9 is "yes", can it be said that it should not be accepted that "such an allowance would extend to unreasonable error and that an error about the operation of the law made by officers within the government department responsible for that law would likely constitute reasonable error, particularly where the law in question is clear and its effect was spelt out in litigation (DMH16) involving the very person who is the subject of the law’s requirement that he be removed from Australia as soon as reasonably practicable and without regard to any non-refoulement obligations that may exist in respect of that person"?
Question 11: Can it be said that the "Commonwealth is itself ignorant of the power given and the obligation imposed by the Act on its officers to remove an unlawful non-citizen despite the fact that Australia has non-refoulement obligations in respect of that person"?
Question 12: If the answer to Question 11 is "no", which means that the Commonwealth was aware of the fact that ss 198(6) and 197C required the removal of the Applicant from Australia despite Australia's international non-refoulement obligations, can reliance on those obligations (legally, as opposed to morally) justify the continued detention of the Applicant under 196 after it became reasonably practicable to remove him from Australia?
Question 13: Can it be said that, in the period between 26 July 2019 and 27 November 2019 (referred to in the decision as the "first period" of detention), the Commonwealth took no reasonable and practicable steps for effectuating the Applicant's removal from Australia, with the result that his detention during that period was unlawful?
Question 14: From the period of 28 November 2019 until the date of the FCA's decision on 11 September 2020 (referred to in the decision as the "second period" of detention), the Commonwealth took steps to attempt to remove the Applicant to Lebanon, where the Applicant claimed he was born, but not to Syria, from which he fled persecution. Lebanon did not accept the Applicant. Were the Commonwealth's attempts to remove the Applicant to Lebanon sufficient to discharge the obligation under s 198(6) to remove the Applicant as soon as reasonably practicable, as he faced persecution in Syria?
Question 15: Can it be said that, if habeas corpus is a discretionary remedy, "the area in which discretion can be exercised must be very small", as it is "almost unthinkable that a court would sanction the continued unlawful detention of a person"?
Question 16: Should an order releasing the Applicant not be made because s 189 would require an officer of the Commonwealth to immediately re‑detain the Applicant?
Question 17: Does the FCA have "the capacity to make a supplementary order imposing conditions upon the applicant, such as a condition requiring the applicant to inform the Commonwealth of where he resides"?
The FCA answered those questions as follows:
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