BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 995

BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 995

Section 198(6), read with s 197C and s 48B(6), does not contain an implication that removal must be postponed merely because an unlawful non-citizen has made a request for the Minister to exercise the personal, non-compellable power under s 48B. The Guidelines did not displace the statutory duty of officers to remove the appellant as soon as reasonably practicable, and performance of that duty would not be unlawful despite the undetermined s 48B request.

Jurisdiction
Australia
Judgment Date
15 August 2023
Procedural Posture
Migration Appeal / Appeal From Refusal to Grant Interlocutory Injunction Restraining Removal From Australia; Appeal Determined Finally
Outcome
Appeal dismissed with costs; short interlocutory restraint granted to allow possible special leave application.
Legal Topics
['removal of Unlawful Non Citizen Under S 198(6) of the Migration Act 1958 (cth)' 'ministerial Intervention Under S 48 B of the Migration Act 1958 (cth)' 'non Refoulement Obligations Under S 197 C of the Migration Act 1958 (cth)' 'interlocutory Injunction' 'personal and Non Compellable Ministerial Powers']
['migration' 'administrative Law' 'constitutional Law' 'human Rights'] ['removal of Unlawful Non Citizen Under S 198(6) of the Migration Act 1958 (cth)' 'ministerial Intervention Under S 48 B of the Migration Act 1958 (cth)' 'non Refoulement Obligations Under S 197 C of the Migration Act 1958 (cth)' 'interlocutory Injunction' 'personal and Non Compellable Ministerial Powers']

Case Brief

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Procedural Posture

Migration Appeal / Appeal From Refusal to Grant Interlocutory Injunction Restraining Removal From Australia; Appeal Determined Finally

Legal Issues

  1. 1 ['Whether s 198(6) of the Migration Act 1958 (Cth) impliedly prevents an officer from removing an unlawful non-citizen while there is a realistic possibility that the Minister will consider a request under s 48B to lift the s 48A bar.' "Whether the Ministerial Guidelines concerning s 48B requests affected the officer's duty to remove the appellant as soon as reasonably practicable under s 198(6)." "Whether an injunction should issue to restrain removal pending consideration of the appellant's s 48B request."]

Ratio Decidendi

Section 198(6), read with s 197C and s 48B(6), does not contain an implication that removal must be postponed merely because an unlawful non-citizen has made a request for the Minister to exercise the personal, non-compellable power under s 48B. The Guidelines did not displace the statutory duty of officers to remove the appellant as soon as reasonably practicable, and performance of that duty would not be unlawful despite the undetermined s 48B request.

Court Disposition

Appeal dismissed with costs; short interlocutory restraint granted to allow possible special leave application.

Orders

  • ['Order 1 made on 8 August 2023 be varied by deleting order 2 therein and substituting "The appeal be listed for hearing on 15 August 2023".' "Until the Court otherwise orders, the appellant's name as disclosed in the affidavit of David Burke affirmed 3 August 2023 and in the affidavit of Matthew Burnham affirmed 14...