BMH20 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 652

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BMH20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 652

File number(s):

MLG 1265 of 2021

Judgment of:

JUDGE A KELLY

Date of judgment:

15 August 2022

Catchwords:

MIGRATION – Application for judicial review of decision of a delegate of the Minister – Bridging Visa E (subclass 050) – where applicant Sri Lankan citizen – where applicant applied for protection visa – where protection visa application is pending determination – where, between April 2017 and December 2020, applicant applied for and was refused a bridging visa on several occasions – where applicant was refused by delegate because he did not meet requirement in cl 051.211(2) of Sch 2 of the Migration Regulations 1994 (Cth) – where applicant is an unlawful non-citizen – whether delegate misinterpreted or misapplied sub-reg 2.20(17) of the Migration Regulations 1994 – applicable principles – reasonably practicable – application dismissed.   

Legislation:

Legislation Act 2003 (Cth), s 13

Migration Act 1958 (Cth), ss 5H, 5J, 26, 29, 30, 31, 35A, 36, 104, 134C, 134E, 181, 194, 198, 198AI, 199, 253, 261AD, 268BH, 268BN, 352, 418, 473CA, 474, 476, 477, 486N

Migration Regulations 1994 (Cth), reg 2.20, Sch 2 cl 051.211,

1951 Convention and 1967 Protocol Relating to the Status of Refugees, art 1A

Justices Act 1890 (Vic), s 59

Cases cited:

Ballina Shire Council v Joblin [2022] NSWLEC 990

Block v Powercor Australia Ltd (2019) 57 VR 459

Clyne v Deputy Federal Commissioner of Taxation (1981) 150 CLR 1

CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146

Craig v South Australia (1995) 184 CLR 163

Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450

Gardiner v Laing O’Rouke Australia Construction Pty Ltd (2020) 102 NSWLR 599

Hatcher v Cohn [2004] FCA 1548

M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 146

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Museums Victoria v Susnjara [2021] VSCA 166

MZYPW v Minister for Immigration and Citizenship (2012) 289 ALR 541

NATB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 506

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Playgro Pty Ltd v Playgo Art & Craft Manufactory Limited (2016) 335 ALR 144

Snedden v Minister for Justice (2014) 230 FCR 82

SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463

Dennis Pearce, Statutory Interpretation in Australia (LexisNexis, 9th ed, 2019)

Federal Court of Australia, Migration Practice Note – Removal from Australia of Immigration Detainees who have Proceedings before the Court (MIG-2), 7 March 2022

Perry Herzfeld and Thomas Prince, Interpretation (Thomas Reuters, 2nd ed, 2020)

Division:

Division 2 General Federal Law

Number of paragraphs:

54

Date of hearing:

8 October 2021

Counsel for the Applicant:

Ms Zhou

Solicitor for the Applicant:

Asylum Seeker Resource Centre

Counsel for the Respondent:

Mr M Hosking

Solicitor for the Respondent:

Clayton Utz

ORDERS

MLG 1265 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BMH20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

ORDER MADE BY:	JUDGE A KELLY
DATE OF ORDER:	15 AUGUST 2022

THE COURT ORDERS THAT:

1.Pursuant to ss 202-203 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.

2.The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship and Multicultural Affairs.

3.Pursuant to s 477(2) of the Migration Act 1958 (Cth) the applicant have leave now for then extending time within which to apply for judicial review of the decision of the respondent refusing his application for a Bridging E (Subclass WE) visa.

4.The application dated 15 June 2021 be dismissed.

5.The applicant pay the costs of the respondent fixed in the sum of $7,853.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE A KELLY

Introduction

1. By originating application dated 15 June 2022, the applicant seeks judicial review of a decision of a delegate of the respondent (Minister) made on 14 December 2020 refusing to grant a Bridging E (Subclass WE) visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).

2. The applicant also sought an extension of time pursuant to s 477 of the Act within which to seek judicial review of that decision. That extension is granted.

3. In summary, the decision to refuse the application was not tainted by error. There was no error by the delegate in concluding that the criteria for the visa could not be met in the circumstance that the applicant was an eligible non-citizen within the meaning of reg 2.20(17) of the Migration Regulations 1994 (Cth) (Regulations). Under cl 050.211(2) of Sch 2 of the Regulations, a primary criterion at the time of application for this class of visa was that the applicant was not an eligible non-citizen.  Since the applicant was an eligible non-citizen he could not satisfy that criterion.  This conclusion entailed no error.  In particular, the matters considered by the delegate were not irrelevant considerations for that purpose.

   Background

4. The applicant, a Sri Lankan citizen was born on 22 July 1987. He is of Tamil ethnicity and Hindu faith.  On 12 August 2012, he arrived on Christmas Island.

5. On 18 December 2012, the applicant applied for a protection visa. A delegate of the Minister refused that application on 6 May 2014. On 30 September 2015, the then Refugee Review Tribunal affirmed the delegate’s decision (CB 181).  On 8 August 2017, an order was made by the Federal Circuit Court, by consent, setting aside the decision of the then Refugee Review Tribunal, and remitting the matter for reconsideration to the Administrative Appeals Tribunal (Tribunal): CGQ15 v Minister for Immigration and Border Protection (MLG 2444 of 2015).  The parties consented to that order in the circumstance that it was agreed the applicant had not been afforded procedural fairness. 

6. During the pendency of his protection visa application, on several occasions in the period between April 2017 and December 2020, the applicant applied for and was refused the visa.

7. As concerns this application in particular, after the applicant had applied for the visa on

   
   

   9 November 2020, a delegate of the Minister refused that application on 14 December 2020. 

8. Some months beforehand, on 6 March 2020, a Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa.  On 6 April 2020, the applicant applied to the Federal Circuit Court for review of that decision (CB 237).  A court book has been filed but the application for judicial review is yet to be determined.  The two unparticularised grounds of review relied upon in that application merely state that the Tribunal’s decision is affected by jurisdictional error and that the applicant was denied procedural fairness.

   Decision

9. As stated, on 14 December 2020 the delegate provided a statement of reasons (Reasons) for refusing the application. In the accompanying letter, the delegate noted that there was no right of merits review from the delegate’s decision. That was because the decision was not reviewable under Pt 5 of the Act by reason that the applicant was not in immigration detention as a result of the decision and in circumstances where the decision was made when the applicant was refused immigration clearance but had not been subsequently immigration cleared.

10. The delegate found that, as the applicant was an unlawful non-citizen at the time of making the application, he met this criterion for the visa. However, the delegate found that the applicant did not meet the requirements in sub-cl 050.211(2) of Sch 2 of the Regulations.

11. The stated reason for refusal of the application was that the applicant did not meet a criterion in cl 051.211(2) of Sch 2 of the Regulations, which required that at the time of the application, the applicant was not “an eligible non-citizen of the kind set out in sub-regulation 2.20(7), (8), (9), (10), (11) or (17)”.  The delegate found that the applicant was an eligible non-citizen of the kind set out in sub-reg 2.20(17) and consequently not eligible for the visa because:

    (a)the applicant was an unlawful non-citizen (CB 69); and

    (b)s 195A of the Act was not available to the Minister in relation to the grant of a visa to the applicant on the basis that, at the time of the applicant’s visa application, the applicant was not in immigration detention (CB 70); and

    (c)the delegate was satisfied that the applicant’s removal from Australia was not reasonably practicable at the time the application was made (CB 70)

12. Sub-regulation 2.20(17) is the substantive focus of the present application.

13. As each of those three matters in reg 2.20(17) applied to the applicant, the delegate found that the applicant was an eligible non-citizen of the kind set out in reg 2.20(17), and therefore did not satisfy the criterion for the grant of a visa in cl 050.211(2) of Sch 2 (CB 70).

14. Notably, the delegate was not satisfied that the applicant’s removal from Australia was reasonably practicable because, at the time the visa application was made, he had not signed a request for removal, was not in immigration detention and had pending before the Federal Court an application for judicial review of the decision refusing him a protection visa.

    Procedural history

15. On 15 June 2021, the applicant filed an application for judicial review together with an affidavit to which his solicitor annexed 14 exhibits running to 354 pages including a copy of the delegate’s decision and reasons.  A feature of the application was a request that the application be heard out of time due to the far-reaching impact on people seeking asylum in similar circumstances to the applicant.  The applicant deposed to the chronology of events concerning his bridging visa applications (having been sought in the period 4 April 2017 and 8 December 2020), the refusal of those applications on four occasions and the subsequent hardship being encountered by not having a valid visa while awaiting judicial review.  

16. This application concerned the decision made on 14 December 2020 by a delegate of the Minister refusing a visa due to a finding under cl. 2.20(17) of the requirements in Sch 2 of the Regulations that, at the time of the application, the applicant was an eligible non-citizen.

17. On 6 July 2021, the respondent filed a response to the application, contending that the decision was not affected by jurisdictional error.

18. On 22 July 2021, another member of this Court vacated a trial date and relisted the matter for hearing. After submissions were filed a judge heard the case on 8 October 2021.  I have considered the transcript of that hearing.

19. On 24 May 2022, the matter was listed for directions before the Chief Justice who made orders, by consent, that the matter would be considered by another judge of this Court and decided on the papers.  Each party was supplied a copy of the transcript of the hearing that had been held 8 October 2021 and granted liberty to file a further submission.

20. In the event, the parties did not file further submissions.

    Ground of review – misconstruing reg 2.20(17)?

21. The applicant advanced a single ground of review contending that the delegate had misinterpreted or misapplied sub-reg 2.20(17) of the Regulations. The ground of review reads:

    The delegate misinterpreted or misapplied subregulation 2.20(17) of the Migration Regulations 1994 (Cth), or took into account an irrelevant consideration, with the result that the Applicant was wrongly found to be an eligible non-citizen and therefore ineligible for a Bridging E Visa.

    Particulars

    a.The Applicant is an unlawful non-citizen as defined in section 14 of the [Act].

    b.Subregulation 2.20(17)(c) applies where the Minister is satisfied that an unlawful non-citizen’s removal from Australia is not reasonably practicable at that time.

    c.The delegate considered that the Applicant’s removal from Australia was “not reasonably practicable” because at the time of application, the Applicant had not signed a request for removal, was not in immigration detention and had a pending judicial review matter regarding his protection visa application before the Federal Circuit Court.

    d.The notion of removal being reasonably practicable as used in r 2.20(17) should be construed in the same way as that notion is used in s 198 of the Migration Act, which requires attention only to the practical reality of sending a person to the place of return and does not permit attention to what might happen once there, nor to the practical matters associated with taking the person into detention in Australia before they are removed.

    e.The delegate should have considered only whether the applicant could practically be taken to their place of return, once taken into detention and assuming that they have been taken into detention and are otherwise readied for removal.

    Submissions

22. The applicant’s substantive ground for review was that the delegate had misinterpreted or misapplied sub regulation 2.20(17)(c) of the Regulations, or taken into account an irrelevant consideration, in finding, for the purposes of reg 2.20(17)(c), that he was “satisfied that the [applicant’s] removal from Australia [was] not reasonably practicable” at the time of the application.  The applicant correctly described this as the central issue in the application.

23. The applicant contended that the three reasons given by the delegate as to why it was not reasonably practicable to remove the applicant were irrelevant considerations as none of them could have a logical bearing on the practical reality or feasibility of physically removing the applicant to Sri Lanka. It was said that all three reasons concerned matters antecedent or extraneous to the physical removal of the applicant from Australia. Contextually, the applicant noted that the Department was under a statutory obligation to detain the applicant and that for it to then proffer as a reason for refusal that the applicant was not in detention was illogical and presumed the continued failure of departmental personnel performing their duty to detain.

24. The Minister submitted that the delegate’s decision was not affected by jurisdictional error because each of the three matters referred to by the delegate was relevant to the question whether it was reasonably practicable to remove the applicant at the time of the application.  The respondent’s submissions examined the meaning of the term ‘reasonably practicable’.

    Resolution

25. I have examined the parties’ court documents, evidence, submissions and transcript.

26. In practical effect, the applicant seeks a bridging visa while his application for judicial review is pending, doing so in circumstances where he is presently unable to work or to obtain a Medicare card.  He is dependent upon friends for financial support and accommodation.

27. By her affidavit made on 10 June 2021, the applicant’s solicitor deposed at [9]:

    It is in the interests of justice that this application be heard out of time due to the far-reaching impact on people seeking asylum in similar circumstances to the Applicant. There are a large number of people seeking asylum residing in the community who have been refused Bridging E Visas under subregulation 2.20(17)(c) of the Migration Regulations 1994 (Cth) (Migration Regulations) whilst awaiting the outcome of their judicial review proceedings or ministerial intervention requests. Consequently, many people seeking asylum, including children, have been unable to secure work rights or access to Medicare for several years and are facing homelessness and destitution.

    In the determination of this application, I have been conscious of those matters.

28. The Minister did not oppose the grant of an extension of time.  It should be granted.

29. Where an administrative decision-maker has misinterpreted or misapplied the applicable law in a way which has a material bearing on the decision, this will entail jurisdictional error: Craig v South Australia (1995) 184 CLR 163, 175. So much may be accepted.

30. Criteria for the grant of the visa are set out in cl 050 of Sch 2 to the Regulations. Primary criteria applicable at the time of application for this class of visa under cl 050.211(1) are that:

    The applicant is:

    (a)      an unlawful non-citizen; or

    (b)      the holder of a Bridging E (Class WE) visa; or

    (c)       the holder of a Subclass 041 (Bridging (Non-applicant)) visa.

    It is self-evident that those criterion are not cumulative, but alternative.

31. As noted, the delegate found that the applicant satisfied that criterion in cl 050.211(1)(a) on the basis that he was an unlawful non-citizen; this was not in contest.

32. Further primary criteria applicable at the time of application for this class of visa are prescribed by cl 050.211(2) of the Regulations. In particular, those criteria are framed in negative terms; that is, the visa applicant was not an eligible non-citizen at the time of application. It reads:

    The applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17).

33. Stated in other terms, a visa applicant does not satisfy one criterion for this visa if he or she is an eligible non-citizen of the kind, relevantly, in sub-reg 2.20(17) of the Regulations.

34. At the time material to the present application, sub-cl 050.211(2) read:

    Sub-regulation 2.20(17) applies to a non-citizen if:

    (a)      the non-citizen is an unlawful non-citizen; and

    (b)section 195A of the Act is not available to the Minister in relation to the grant of a visa to the non-citizen; and

    (c)the Minister is satisfied that the non-citizen's removal from Australia is not reasonably practicable at that time.

35. In contrast with the alternative requirements of cl 050.211(1) of the Regulations, cl 050.211(2) is framed in cumulative terms. As applied here, the delegate did find that: (1) the applicant was an unlawful non-citizen; (2) s 195A of the Act was not available to the Minister in relation to the grant of a visa to the applicant; that was because, at the time of the applicant made his visa application, he was not in immigration detention, and; (3) the applicant’s removal from Australia was not reasonably practicable at the time of the application.  As to the third criteria, the delegate was not satisfied that removal from Australia was reasonably practicable because, when the visa application was made, the applicant had not signed a request for removal, was not in immigration detention and he had a pending judicial review before the Federal Court.

36. As counsel for the applicant submitted, “Being an eligible non-citizen of the kind set out in sub-regulation 2.20 makes you ineligible for the relevant visa.” In this case, as each of the matters identified in reg 2.20(17) applied to the applicant, the delegate concluded that the applicant was an eligible non-citizen of the kind set out in reg 2.20(17). Accordingly, the applicant therefore did not satisfy the criterion in cl 050.211(2) of Sch 2.

1. I agree the delegate’s formation of that state of satisfaction was not affected by jurisdictional error as each of the three matters he referred to were relevant to the question whether it was reasonably practicable to remove the applicant at the time of the application.

2. The applicant submitted it to be a well-established rule of statutory construction that – subject to parliamentary intent to the contrary – where a word is used consistently in legislation it should be given the same meaning consistently, and especially so if the word is used in an enabling Act, and again in regulations.  I consider this states the position somewhat broadly.

3. Reliance was placed upon Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452. There, Hodges J considered it to be a fundamental rule of construction “that any document should be construed so far as possible so as to give the same meaning to the same word wherever those words occur in that document, and that that applies especially to an Act of Parliament, …”: see also, Pearce, Statutory Interpretation in Australia, 9^th ed (2019), [4.6]-[4.7.

4. The applicant also relied upon s 13(1) of the Legislation Act 2003 (Cth). Section 13(1) of this Act lies within Part 2 of Chapter 1 that is entitled Key concepts for legislative instruments and notifiable instruments, and comprises ss 7-14.  In particular, par 13(1)(b) of this Act provides, relevantly, that, unless a contrary intention appears, “expressions used in any instrument so made have the same meaning as in the enabling legislation as in force from time to time.”

5. It may be accepted that the Regulations are a legislative instrument for the purposes of s 13(1).

6. It may also be accepted that the term “reasonably practicable” is not defined by the Act or Regulations. In other contexts, including for removal under the Act, it has been considered in a number of Full Court decisions. For example, in M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 146 at [64], Goldberg, Weinberg and Kenny JJ accepted that “no duty to remove a non-citizen arose when removal was not reasonably practicable”. In the context of the obligation of removal, much consideration has been given to the content in s 198 of that phrase. In M38/2002, the Full Court observed at [65]:

   Whether or not the removal of an unlawful non-citizen is practicable seems to be largely, if not entirely, concerned with whether the removal is possible from the officer’s viewpoint. The word “reasonably” in the expression “reasonably practicable” limits or qualifies what would otherwise be an almost absolute obligation: The removal of a non-citizen may be practicable in the sense that it is feasible, but not “reasonably practicable” as required by s 198(6) of the Act. (Citation omitted)

7. Although this reasoning was approved generally in NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 292, 133 FCR 506 at [48], I note, however, that Wilcox, Lindgren and Bennett JJ at [50]-[53] examined the bounds of the concept of ‘practicable’ as employed in s 198(1) in some further detail.

8. In Snedden v Minister for Justice [2014] FCAFC 156, 230 FCR 82, [116], Middleton, Pagone and Wigney JJ said with reference to M38/2002 and other authorities:

   There are essentially three elements to the composite expression “as soon as is reasonably practicable”.  First, the word “practicable” has the meaning of “capable of being carried out in action; feasible”: M38/2002 v Minister Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 (M38/2002) at 165 [65]. It identifies that which is able to put into practice and which can be effected or accomplished: Al-Kateb v Godwin (2004) 219 CLR 562 (Al-Kateb) at 608 [121]. Second, the qualification “reasonably” limits or qualifies what would otherwise be an absolute obligation: M38/2002 at 165 [65]. It introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme: Al-Kateb at 608 [121]. Third, the phrase “as soon as” supplies a temporal element: Al-Kateb at 608 [121]. It directs the decision-maker to make the determination without delay once it is reasonably practicable to do so: Santhirarajah, [74]; Judgment, [24].

   See also WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55, 285 FCR 463, [115], [122] (Kenny and Mortimer JJ), at [165] (Abraham J agreeing on this issue).

9. While the principle respecting the use of consistency in the interpretation of the same word or phrase is of long-standing, it is not stated in unqualified terms and will not apply where a contrary intention is apparent from the text and context in which the term is employed having regard to the objects and purpose of the particular legislation: see, e.g., Hatcher v Cohn [2004] FCA 1548, [51] (Kiefel J); Playgro Pty Ltd v Playgo Art & Craft Manufactory Limited [2016] FCA 280; (2016) 335 ALR 144, [139] (Moshinsky J).

10. In the present context, I conclude there is good reason to do otherwise than construe the term “reasonably practicable” differently as employed in s 198 of the Act and reg 2.20(17) of the Regulations respectively. I prefer the analysis of Herzfeld and Prince, the learned authors of Interpretation, 2^nd (2020) [5.170]’s that the ‘rule’ is rather a ‘presumption’ of consistency and may be of the mildest form which “readily yields to the context” including where it is employed in different parts of an Act and in larger pieces of legislation that have been the subject of amendment: citing, e.g., Clyne v Deputy Federal Commissioner of Taxation (1981) 150 CLR 1, 15 (Mason J, Aiken and Wilson JJ agreeing); see also Ballina Shire Council v Joblin [2022] NSWLEC 990, [61] (Robson J); Block v Powercor Australia Ltd [2019] VSC 15, 57 VR 459, [166] (Dixon J) , Pearce, Statutory Interpretation in Australia, [4.4].

11. It may be accepted that the principle will more usually apply where the same term is used in successive parts of the same section of an Act: see, e.g., Museums Victoria v Susnjara [2021] VSCA 166, [65], [76] (Beach, Kaye and Osborn JJA); Gardiner v Laing O’Rouke Australia Construction Pty Ltd [2020] NSWCA 151, 102 NSWLR 599, [23] (Basten JA, Leeeming JA and Emmett AJA agreeing). But a distinction may be drawn where the term is used, as here, in a large piece of legislation or across legislation and subordinate legislation. Contrastingly in Barrowcliff, Hodges J was concerned to consider the meaning of the term as used in one section of the Justices Act 1890 (Vic).  The meaning of the term “goods” was under consideration in s 59, sub-s 59(3)-(4)).  The Justices Act 1890 (Vic) was no more than 68 pages and 206 sections, four schedules and a set of rules (12 pages) in length.

12. In this case, it is readily apparent that the Act and indeed, the Regulations, are large pieces of legislation and subordinate legislation respectively. The terms “reasonably practicable” and  “practicable” are used frequently in the Act, see, e.g. ss 26, 104, 134C, 134E, 181, 194, 198, 198AI, 199, 253, 261AD, 268BH, 268BN, 352, 418, 473CA, 486N. The only point to be drawn from the identification of those many provisions is to recognise that they employ one or other of those terms in a very large piece of legislation in quite different Divisions and contexts.

13. I agree in the Minister’s submissions that the applicant’s submission which is grounded upon the term “reasonably practicable” bearing a consistent meaning in both s 198 of the Act and reg 2.20 (17) of the Regulations fails to take into account the quite different context of those provisions.  At the most basic level, the term “reasonably practicable” as employed in s 198(1) of the Act is concerned to impose an imperative obligation upon an officer (as defined by s 5) to effect removal “as soon as reasonably practicable”. By contrast, in reg 2.20(17)(c) the same term is employed to create a criterion by reference to which the Minister or a delegate is conferred a discretion turning upon the well-settled notion of “satisfaction.” 

14. Further, in the regulation, the term is engaged from a quite different perspective from that arising in s 198(1). In that provision of the Act, the term has a forward-looking perspective and imposes a qualified obligation on an officer to effect removal as soon as reasonably practicable. In s 198, the obligation of removal as soon as “reasonably practicable” is only engaged after certain conditions have been satisfied; namely, the making of a request in writing by the applicant; the final determination of a non-citizen’s visa application, and; the unlawful non-citizen being in immigration detention. By contrast, in reg 2.20(17)(c), the term is deployed from a negative perspective; that is, the sub-regulation applies to a non-citizen if (i.e., only if), the Minister is satisfied that the non-citizen’s removal from Australia is not reasonably practicable at that time.

15. In contrast with the requirement in s 198(2) that an unlawful non-citizen’s visa application has been finally determined, here, it is of no little importance that the applicant’s proceeding for judicial review is pending. The importance of that consideration is itself recognised in the Federal Court Migration Practice Note respecting Removal from Australia of Immigration Detainees who have Proceedings before the Court (MIG-2).  The evident purpose of that Practice Note is to underscore the importance of respecting whether an applicant wishes to remain in Australia until their application for judicial review has been finally determined.

16. Equally, I agree that having regard to the evident breadth of the term, ‘reasonably practicable”, it cannot be said that any of the considerations that the delegate took into account were matters that he was not permitted to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J). Upon that basis, it cannot be said that, by considering those matters, the delegate misunderstood reg 2.20(17).

17. The matters considered by the delegate were matters relevant to the question whether, in all of the circumstances, he was satisfied the applicant’s removal from Australia was not reasonably practicable at the time of the application.  Not being so satisfied, the criteria was not met.

    Conclusion

18. For the foregoing reasons, the application should be dismissed.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly.

Associate:

Dated:       15 August 2022