FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FCZ20 v Minister for Home Affairs [2022] FedCFamC2G 15
ORDERS
SYG 2826 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FCZ20
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
Third Respondent
SYG 2938 of 2020 FEDERAL CIRCUIT AND FAMILY…
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- Case
- [2022] FedCFamC2G 15
- Decision Date
CaseChat Overview and Summary
The court examined the respondents' post-hearing submissions and recent authorities to understand the obligations of the Minister in conducting a non-refoulement assessment. The court accepted that section 198AD applied to the detainees, regardless of whether they had been assessed as persons for whom Australia owed non-refoulement obligations. The court also noted that the decision in MB v Minister for Immigration did not alter this interpretation. Furthermore, the court considered previous cases such as M38/2002 and NATB, which provided guidance on determining when a removal is reasonably practicable, emphasizing that this determination is largely concerned with physical considerations rather than the potential consequences of removal.
The court found that the issue had become moot following the intervention by the Minister. Nevertheless, the court made observations on the potential relief available in a suitable case. It highlighted that the determination of reasonable practicability was not limited to physical factors and included the willingness of the destination country to accept the person. The court also noted that the determination of reasonable practicability was contextualised by the proposed physical removal of the person from Australia, meaning it did not consider what might happen after the person had been admitted into the receiving country. Consequently, the court dismissed the applications.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
I understand the ground relied on in each of the applications to be that set out in the latest ABG21 Application, ie: The Respondent is in breach of the mandatory obligation to assess according to law the applicant’s claim against refoulement to the regional processing countries.CONSIDERATIONObligation to conduct a non-refoulement assessment The respondents’ post hearing submissions expand upon the submissions filed on 16 November 2021 (including by addressing some recent authorities). The respondents’ 16 November 2021 written submissions briefly addressed a ground that appeared to be relied on in two cases to the effect that there had been a “historical” failure to conduct a non-refoulement assessment (at or around the time those applicants had first been sent to Papua New Guinea). At the hearing on 16 and 17 November 2021, the applicants’ representatives appeared to accept that this ground did not give rise to a ground distinct from their primary ground (about an alleged obligation to conduct such an assessment now). Accordingly, this topic was not addressed any further in the respondents’ written submissions and I have not considered it. In short, whatever the previous position applying at the time of the initial transfer of those applicants to Papua New Guinea, any relief now sought relates to the applicants’ current situation. I accept that s 198AD applies to the applicants irrespective of whether they have been assessed to be persons in respect of whom Australia owes “non-refoulement obligations” within the meaning of s 5 of the Migration Act. The decision of Kerr J in MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[19] does not hold otherwise. [19] [2021] FCA 442 Both M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs[20] and NATB v Minister for Immigration and Multicultural and Indigenous Affairs[21] contain useful guidance on when a removal will be “reasonably practicable”: for example, this “seems to be largely, if not entirely, concerned with whether the removal is possible from the officer’s viewpoint”,[22] and even matters including “whether death, torture, persecution or other mistreatment of an unlawful non-citizen which is likely, or even almost certain, to occur after he or she is removed from Australia” are not to be taken into account in the enquiry.[23] That may seem extraordinary, because it is.[20] (2003) 131 FCR 146[21] (2003) 133 FCR 506[22] M38/2002 at 165 [65][23] NATB at 510 [13] In NATB at 516-517 [52]-[53], the Federal Court indicated that: However, some observations may be made. First, it is possible to say that determination about reasonable practicability is not necessarily limited to physical considerations, such as the health of the person to be removed, or the availability of an operating airport in the country of destination. The willingness of another country to allow the person to enter its territorial boundaries is at least one non-physical factor relevant to reasonable practicability. Second, without attempting an exhaustive statement, it is possible to identify some limitations on the matters relevant to determination of reasonable practicability. They arise out of the words themselves. The relevant considerations are practical considerations, as is indicated by the dictionary definitions of `practicable' set out at [47] above, Moreover, the context for determining reasonable practicability is the proposed physical removal of the person from Australia.This second limitation is of critical importance to the resolution of the appellants' principal argument. In our opinion, the reference to reasonable practicability in the subsection does not require an officer to take into account what is likely, or even virtually certain, to befall the unlawful non-citizen after removal is complete; and removal is complete, at the latest, once the person has been admitted by, and into, the receiving country. Even if it is virtually certain that he or she will be killed, tortured or persecuted in that country, whether on a Refugees Convention ground or not, that is not a practical consideration going to the ability to remove from Australia. Rather, it is a consideration about a likely course of events following removal from Australia.