BVZ21 v Minister for Home Affairs [2022] FCA 1344

BVZ21 v Minister for Home Affairs [2022] FCA 1344

The application was dismissed because the Federal Court lacked jurisdiction to grant the only relief sought, namely mandamus to enforce the s 198 removal duty; in any event, such relief would at most require removal as soon as reasonably practicable and not removal to Greece by a specified date or in a specified manner, the applicant had not shown that officers had been dilatory or had failed to take reasonable steps, it was not clear that removal to Greece was reasonably practicable merely because a tourist visa might be available on arrival, and the Minister had not had a reasonable opportunity to consider the very recent request for removal to Greece.

Jurisdiction
Australia
Judgment Date
15 November 2022
Procedural Posture
Migration Application Seeking Writ of Mandamus Requiring Removal Under S 198 of the Migration Act 1958 (cth) / Final Determination of Urgent Originating Application
Outcome
Application dismissed with costs.
Legal Topics
['immigration Detention' 'removal of Unlawful Non Citizens' 'writ of Mandamus' 'non Refoulement and Protection Findings' 'federal Court Jurisdiction Under S 476 A(1) of the Migration Act 1958 (cth)']
['migration' 'administrative Law' 'federal Jurisdiction'] ['immigration Detention' 'removal of Unlawful Non Citizens' 'writ of Mandamus' 'non Refoulement and Protection Findings' 'federal Court Jurisdiction Under S 476 A(1) of the Migration Act 1958 (cth)']

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Procedural Posture

Migration Application Seeking Writ of Mandamus Requiring Removal Under S 198 of the Migration Act 1958 (cth) / Final Determination of Urgent Originating Application

Legal Issues

  1. 1 ['Whether the Federal Court had jurisdiction to grant relief in the nature of mandamus in respect of the duty under s 198 of the Migration Act 1958 (Cth), where that was the only relief sought.' 'Whether officers could be compelled to transport the applicant to Sydney Airport for a flight to Greece on 17 November 2022.' 'Whether it was reasonably practicable to remove the applicant to Greece in the circumstances relied on by the applicant.' 'Whether the applicant had demonstrated that the Executive had been dilatory or had failed to take reasonable steps to perform the duty to remove her under s 198 of the Migration Act 1958 (Cth).']

Ratio Decidendi

The application was dismissed because the Federal Court lacked jurisdiction to grant the only relief sought, namely mandamus to enforce the s 198 removal duty; in any event, such relief would at most require removal as soon as reasonably practicable and not removal to Greece by a specified date or in a specified manner, the applicant had not shown that officers had been dilatory or had failed to take reasonable steps, it was not clear that removal to Greece was reasonably practicable merely because a tourist visa might be available on arrival, and the Minister had not had a reasonable opportunity to consider the very recent request for removal to Greece.

Court Disposition

Application dismissed with costs.

Orders

  • ["The applicant's originating application dated 4 November 2022 be dismissed." "The applicant pay the respondent's costs."]