BVZ21 v Minister for Home Affairs

ORDERS

THE COURT ORDERS THAT:

1. The applicant’s originating application dated 4 November 2022 be dismissed.

2. The applicant pay the respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1. The applicant, who has been given the pseudonym ‘BVZ21’, is a New Zealand citizen. She has been held in immigration detention as an unlawful non-citizen for over seven years. For reasons that will be explained, relevant officers of the Commonwealth are obliged by law to remove her from Australia as soon as reasonably practicable, however she cannot be returned to New Zealand and is unwilling to return there voluntarily. Nothing much seems to have occurred in the last two years in terms of finding a third country which may be willing to receive the applicant. In this application, which came before me urgently as duty judge, the applicant seeks to end the apparent stalemate which is perpetuating her detention by seeking a writ of mandamus which would compel the Minister for Home Affairs to transport her to Sydney Airport so that she can catch a flight to Greece on 17 November 2022. The applicant maintains that she will be entitled to enter Greece, apparently because she will be granted a tourist visa upon arrival.

2. As desirable as it may be to bring the applicant’s prolonged detention to an end as soon as possible, the Court cannot grant the urgent relief sought by the applicant. Her application must be dismissed.

3. The applicant’s engagement with the responsible Minister and his Department concerning her visa status has been long, tortuous and lamentable. It was most recently summarised by the Full Court in BVZ21 v Commonwealth [2022] FCAFC 122 at [14]-[38]. In short summary, the applicant applied for a protection visa as long ago as September 2015. That visa application was the subject of an extraordinary series of mostly adverse ministerial and departmental decisions, but for the most part successful administrative and judicial review challenges. In July 2020, the Minister exercised his personal power pursuant to s 501A(3) of the Migration Act 1958 (Cth) to set aside a decision of the Administrative Appeals Tribunal, and refused the applicant’s visa application on character grounds. That decision was made despite a previous finding that Australia owed the applicant protection obligations based on the real risk that she would be seriously harmed if returned to New Zealand. The applicant’s subsequent judicial review challenge to that decision failed. Her appeal rights in respect of the judicial review application were exhausted in August 2021.

4. The applicant has made a number of failed attempts to secure an order from this Court for her release from immigration detention. Her most recent attempt was brought to an end by the judgment of the Full Court in BVZ21. This would appear to be her first attempt to secure her removal from Australia by means of a writ of mandamus.

5. Section 198 of the Act provides for the removal of unlawful non-citizens from Australia in certain specified circumstances.

6. Section 198(1) provides as follows:

198 Removal from Australia of unlawful non-citizens

(1) An officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed.

7. Section 198(6), which is in the following terms, specifies one of those circumstances:

(6) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:

(a) the non‑citizen is a detainee; and

(b) the non‑citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c) one of the following applies:

(i) the grant of the visa has been refused and the application has been finally determined;

(ii) the visa cannot be granted; and

(d) the non‑citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

8. I have referred to both s 198(1) and s 198(6) of the Act because the Minister, who appeared in opposition to the relief sought by the applicant, seemed to suggest that the duty to remove the applicant from Australia only arose in recent times when she asked the Minister, in writing, to remove her to Greece, thus engaging s 198(1). It would appear to me, however, that the duty to remove the applicant from Australia as soon as reasonably practicable arose, by reason of s 198(6) of the Act, in August 2021 when her appeal rights in respect of the refusal of her protection visa application were exhausted. It is unclear what, if any, steps have been taken to remove the applicant since August 2021. The fact that the Minister appears to have been acting under a misconception in respect of the operation of s 198 of the Act is somewhat concerning, to say the least.

9. As noted earlier, while there is a duty under s 198 of the Act to remove the applicant from Australia as soon as reasonably practicable, that duty does not extend to removing the applicant to New Zealand. That is a result of the operation of s 197C(1), (2) and (3), which provide as follows:

197C Relevance of Australia’s non-refoulement obligations to removal of unlawful non-citizens under section 198

(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.

(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.

(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:

(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and

(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

(c) none of the following apply:

(i) the decision in which...