BHL19 v Commonwealth of Australia (No 2)

In BHL19 v Commonwealth of Australia (No 2), the applicant, a Syrian national who had been detained in Australian immigration detention since 2012, sought relief in the Federal Court of Australia. The central issues were whether the Commonwealth or its officers had failed to discharge their statutory duty to remove the applicant from Australia as soon as reasonably practicable, and if so, what relief the applicant might be entitled to. The applicant, who had been found to be a refugee, had been refused a protection visa on character grounds. Despite the dismissal of his application for special leave to appeal, the applicant remained in detention for over eight years.

The court considered the statutory scheme regarding the detention and removal of unlawful non-citizens in Australia. It was established that under section 198 of the Migration Act 1958 (Cth), an officer must remove an unlawful non-citizen from Australia as soon as reasonably practicable if certain conditions are met, including that the non-citizen has made a valid application for a substantive visa that can be granted when the applicant is in the migration zone. The court found that officers of the Commonwealth had indeed failed to discharge their statutory duty under section 198(2) or (6) of the Migration Act to remove the applicant from Australia as soon as reasonably practicable from at least 22 February 2021.

The court ruled that a writ of mandamus was the appropriate form of relief, directing the Commonwealth to remove the applicant from Australia. The court also declared that the Commonwealth had failed to discharge its duty under section 198 of the Migration Act. The parties were directed to confer to agree on the terms of the writ of mandamus and the associated orders, including costs. If the parties could not agree, they were to file written submissions and liaise with the court to schedule a further hearing to determine the orders.