BMH20 v Minister for Immigration, Citizenship and Multicultural Affairs

The case of BMH20 v Minister for Immigration, Citizenship and Multicultural Affairs concerned an appeal against a decision of the Minister not to grant a bridging visa E (subclass 050) to the appellant, who was an unlawful non-citizen not in detention. The central issue was whether the appellant qualified as an "eligible non-citizen" within the meaning of sub-reg 2.20(17)(c) of the Migration Regulations 1994 (Cth), and whether the Minister had erred in considering the absence of a signed removal form, the appellant's non-detention status, and pending judicial review proceedings in his decision-making process. The appeal was heard in the Federal Circuit and Family Court of Australia.

The court had to determine whether the Minister's consideration of the factors surrounding the appellant's removal, including the absence of a signed removal form, the appellant's non-detention status, and pending judicial review proceedings, was permissible under the regulations. The appellant argued that the Minister's focus on these factors demonstrated an error in the decision-making process, particularly because the appellant was not in detention, and the overall operation of sub-reg 2.20(17)(c) assumes the person is not in detention. However, the court found that the Minister was not misdirected in considering these factors as they were relevant to the practicalities of removal. The court held that the Minister was entitled to take into account a range of considerations in all the circumstances of the case that might render removal not reasonably practicable at the time, including the absence of a signed removal form and the fact that the appellant was not in detention.

The court further explained that the context in which sub-reg 2.20(17) is found did not lead to the conclusion that the Delegate’s consideration of the appellant’s pending judicial review proceedings was impermissible. The court noted that the duty of removal is qualified by considerations of practicality, which must be determined on a case-by-case basis, including whether the unlawful non-citizen had regularly commenced proceedings of substance in a court challenging the validity of the Tribunal decision which had not been determined. The court found that the Minister's decision was not erroneous, and therefore dismissed the appeal.

The final orders of the court were that the appeal be dismissed and that the appellant pay the respondent's costs to be assessed if not agreed, in accordance with Rule 39.32 of the Federal Court Rules 2011.