BHL19 v Commonwealth of Australia (No 2)

File numbers:

VID 178 of 2021VID 502 of 2021

Judgment of:

WIGNEY J

Date of judgment:

31 March 2022

Catchwords:

MIGRATION – where applicant is a refugee from Syria – where Australia found to owe applicant protection obligations due to well-founded fear of persecution and risk of serious harm if returned to country of citizenship – where applicant was refused a protection visa on character grounds under s 501(1) of Migration Act 1958 (Cth) – where applicant is currently detained as an unlawful non-citizen by the respondent, the Commonwealth of Australia, pursuant to s 189 of Migration Act 1958 (Cth) – consideration of statutory scheme regarding the detention and removal of unlawful non-citizens in Australia – whether applicant has been unlawfully detained as a result of the Commonwealth having failed to effect the applicant’s removal as soon as reasonably practicable – detention of the applicant found to be lawful – applicant’s claims for damages dismissed – whether the Commonwealth or its officers have failed to discharge the duty under s 198 of Migration Act 1958 (Cth) to remove applicant from Australia as soon as reasonably practicable – where Commonwealth officers found to have failed to discharge their statutory duty – appropriate relief for failure to discharge the duty under s 198 of Migration Act 1958 (Cth)

ADMINISTRATIVE LAW – application seeking relief in the form of a writ of habeas corpus, or alternatively, a mandatory injunction directing the Commonwealth to release applicant from detention forthwith – application seeking a mandatory injunction requiring the Commonwealth to discharge its duty in s 198 of Migration Act 1958 (Cth) in relation to applicant – application seeking a declaration that the Commonwealth has failed to discharge its duty in s 198 of Migration Act 1958 (Cth) in relation to applicant – whether s 476A of Migration Act 1958 (Cth) operates to remove the jurisdiction of the Federal Court of Australia to consider claims for injunctive and declaratory relief in respect of the Commonwealth’s alleged failure to discharge its duty under s 198 of Migration Act 1958 (Cth) – whether applicant’s claims involve direct judicial review of a migration decision – consideration of the appropriate relief where Commonwealth found to have failed to discharge its duty under s 198 of Migration Act 1958 (Cth) to remove applicant from Australia as soon as reasonably practicable – where writ of mandamus found to be the appropriate form of relief – whether circumstances of applicant’s case warrants the making of a declaration that officers of the Commonwealth failed to discharge their duty under s 198 of Migration Act 1958 (Cth)

Legislation:

Constitution s 75(v)

Administrative Appeals Tribunal Act 1975 (Cth) ss 44(3), 45(2)

Australian Passports Act 2005 (Cth) s 9(1A)(b)(i)

Federal Court of Australia Act 1976 (Cth) ss, 21, 22, 23, 32, 32AD, 38(2)

Federal Court Rules 2011 (Cth)

High Court Rules 2004 (Cth) rr 25.13, 25.13.1, 25.13.2, 25.13.4, 25.13.5, 25.13.6

Judiciary Act 1903 (Cth) ss 39B, 39B(1), 39B(1A)(c)

Migration Act 1958 (Cth) ss 5, 5(1), 5AA(1), 13, 14, 46A(1), 46A(2), 189, 189(1), 195A, 196, 196(1), 196(3), 196(6), 197C, 197C(1), 197C(2), 197C(3), 197C(4), 197C(5), 197C(6), 197C(7), 197C(8), 197C(9), 198, 198(2), 198(6), 198AD, 198AD(3), 199, 200, 474(2), 474(3), 474(3)(g), 474(3)(j), 476A, 476A(1), 476A(1)(a), 476A(1)(c), 500, 501, 501A, 501B, 501BA, 501C, 501CA

Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)

Cases cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10

AJL20 v Commonwealth of Australia [2020] FCA 1305

Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37

Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 313

Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561; [2002] NSWSC 310

Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union (2007) ATPR 42–140; [2006] FCA 1730

Australian Securities and Investments Commission v Monarch FX Group Pty Ltd (2014) 103 ACSR 453; [2014] FCA 1387

Australian Securities and Investments Commission v Stone Assets Management Pty Ltd (2012) 205 FCR 120; [2012] FCA 630

Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 3) (2012) 213 FCR 380; [2012] FCA 43

AZC20 v Minister for Home Affairs [2021] FCA 1234

Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1988] HCA 49

Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465; [2006] FCA 1368

BHL19 v Commonwealth of Australia [2021] FCA 462

BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 929

BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420; [2020] FCAFC 94

Chamoun v Commonwealth of Australia [2021] FCA 740

Commonwealth of Australia v AJL20 (2021) ALJR 567; [2021] HCA 21

Commonwealth of Australia v MZZHL [2021] FCAFC 191

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5

DBE17 v The Commonwealth of Australia (2019) 266 CLR 156; [2019] HCA 47

EVX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1079

Fernando v Minister for Immigration and Citizenship (2007) 165 FCR 471; [2007] FCA 1203

Forster v Jododex Australia Pty Limited (1972) 127 CLR 421; [1972] HCA 61

Gardner v Dairy Industry Authority of New South Wales (1977) 52 ALJR 180

Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41

Lewis v Australian Capital Territory (2020) 381 ALR 375; [2020] HCA 26

M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; [2003] FCAFC 131

M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; [2003] FCAFC 171

McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602; [2020] FCAFC 223

Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1

Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54; [2003] FCAFC 70

MNLR v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (2021) 283 FCR 525; [2021] FCAFC 35

Mokhlis v Minister for Home Affairs (2020) 382 ALR; [2020] HCA 30

MZZHL v Commonwealth of Australia [2021] FCA 600

NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506; [2003] FCAFC 292

Okwume v Commonwealth of Australia [2016] FCA 1252

Plaintiff M168/10 v The Commonwealth of Australia (2011) 279 ALR 1; [2011] HCA 25

Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2

Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231; [2015] HCA 3

Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 43

Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438

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