Spurr v Minister for Immigration

In *Spurr v Minister for Immigration*, Judge Kendall of the Federal Court considered whether the Minister's decision to remove Mr Spurr from Australia constituted a "primary decision" for the purposes of the *Migration Act 1958* (Cth). The Minister argued that the decision to remove Mr Spurr was not a "privative clause decision" because it was a consequence of the operation of law under section 198(5) of the Act, rather than a decision of an administrative character. Mr Spurr contended that the decision was reviewable.

The central legal issue before the Court was whether the Minister's decision that it was reasonably practicable to remove Mr Spurr from Australia, made pursuant to section 198(5) of the Act, was a "privative clause decision" as defined by section 476(4) of the Act. This determination was crucial for establishing the Court's jurisdiction to hear Mr Spurr's application.

The Court rejected the Minister's submission, finding that the decision to remove Mr Spurr was indeed a decision of an administrative character. The Court relied on a line of authority, including *M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs* and *Li v Minister for Immigration & Multicultural Affairs*, which held that decisions to remove or refuse to remove unlawful non-citizens under section 198 of the Act constitute "privative clause decisions". The Court noted that the definition of "decision" in section 474(3) of the Act includes the doing or refusing to do an act, and that case law has consistently treated decisions under section 198, including those under section 198(5), as administrative in character and therefore capable of being privative clause decisions. The Court concluded that it had jurisdiction to hear Mr Spurr's application.