SZHUJ v Minister for Immigration (No.2)

In the case of SZHUJ v Minister for Immigration (No.2), the Federal Court of Australia was tasked with examining the jurisdiction of the court in relation to migration matters. The applicant, SZHUJ, sought judicial review of decisions made by the Minister for Immigration under the Migration Act, specifically concerning the removal of the applicant from Australia. The central legal issue was whether the administrative decisions made in anticipation of the applicant's removal constituted a 'migration decision' within the meaning of s.474(2) and (3) of the Migration Act. Counsel for the applicant argued that such decisions, although preparatory to the act of removal, constituted a 'migration decision' that could be reviewed before the removal was effectuated.

The Court held that the definition of a'migration decision' must be interpreted to encompass actions that are preparatory to the act of removal, as mandated by s.198(6) of the Act. It was held that the decisions assessing the reasonable practicality of removal, which occur prior to the actual removal, are integral to the process and therefore constitute a 'migration decision'. However, the Court concluded that the applicant's application was not the appropriate means to review these decisions before the removal has been carried out. The Court reasoned that such decisions are not final or conclusive until the act of removal is actually performed. The Court emphasised that the officer responsible for removal retains a continuing obligation to assess the reasonable practicality of removal in light of circumstances as they arise, right up until the moment of removal.

The Court dismissed the application, holding that the applicant's challenge to the administrative decisions was premature and that the proper avenue for review was after the removal had occurred. The Court further ordered that the applicant pay the respondent's costs, as agreed or taxed in accordance with Federal Court Rules O.62. This ruling underscores the Court's limited jurisdiction in relation to migration matters and the need for applicants to follow the prescribed processes for review.