TCWY v Minister for Immigration and Border Protection

In the case of TCWY v Minister for Immigration and Border Protection, the applicant, an Iranian citizen who had lived in Australia since 1999, sought to appeal a decision of the Administrative Appeals Tribunal (AAT) that had cancelled his protection visa and directed his removal to Iran. The applicant argued that the Tribunal had failed to consider certain provisions of the Migration Act, including section 197C, which imposes a duty on the Minister to remove an unlawful non-citizen as soon as reasonably practicable. The applicant contended that the Tribunal's failure to consider section 197C constituted a legal error.

The court considered whether the AAT had failed to take into account the statutory duty to remove the applicant as soon as reasonably practicable. The court found that Direction No. 65, issued by the Minister under the Migration Act, did not prevent the AAT from considering section 197C where relevant. The court noted that the AAT had indeed considered the international non-refoulement obligations, which were not engaged in this case, and had determined that there were no such obligations preventing the applicant's removal to Iran. Consequently, the court concluded that the AAT had appropriately considered the relevant provisions of the Migration Act and the Direction. The court held that the AAT had correctly found that the applicant could be removed to Iran and that the appeal against the AAT's decision was accordingly dismissed.

The court further found that the applicant's application to amend his notice of appeal to include additional grounds was not in the interests of justice. The court granted leave to amend the notice of appeal to include certain specified grounds but denied leave to include the additional ground concerning the consideration of section 197C. The appeal was dismissed, and the applicant was ordered to pay the costs of the first respondent, as agreed or taxed.