1809235 (Migration)

The applicant, an unlawful non-citizen, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a Bridging E (Class WE) visa (subclass 050). The applicant had applied for a protection visa, which had been finally determined, and all legal processes had been exhausted. The Minister's decision was based on the applicant not meeting the 'not an eligible non-citizen' requirement, which necessitates that removal from Australia must not be reasonably practicable.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the Minister's decision that removal of the applicant from Australia was reasonably practicable was affected by an error of law. This involved considering whether the Minister had properly applied the relevant legislative provisions and whether the factual basis for the practicability of removal had been adequately assessed.

The Court found that the Minister's assessment of practicability had failed to properly consider the evidence regarding the applicant's removal. Specifically, the Court noted that the Bangladeshi border remained open, and there was no indication that the applicant would be refused entry into Bangladesh. Consequently, the Minister's conclusion that removal was reasonably practicable was found to be based on an erroneous application of the law. The Court therefore remitted the decision to the Minister for redetermination according to law.