Case: M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131 ; (2003) 131 FCR 146
Outcome: referred to
Full Court of this Court in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131 ; (2003) 131 FCR 146 ('M38/2002') made, with respect, some pertinent observations as to the nature of the obligation imposed on an officer by s 198(6), the meaning of the words 'reasonably practicable' and the question of whether removing an unlawful non-citizen from Australia is a privative clause decision within s 474. The Court noted that s 198(6) imposes a duty, but it is a duty which only arises upon the occurrence of certain events or the satisfaction of certain conditions. The matters in paragraphs (a)-(d) inclusive must occur or arise before the duty arises. Furthermore, the duty is not absolute in the sense that thereafter it only arises as soon as it is reasonably practicable to remove the unlawful non-citizen. The Court noted that in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70 ; (2003) 126 FCR 54 the Full Court of this Court said that there was no duty to remove an unlawful non-citizen when removal was not reasonably practicable. The Court in M38/2002 considered the meaning of the words 'reasonably practicable' and noted various dictionary definitions and statements made in the authorities. The Court expressed the view that whether the removal of an unlawful non-citizen is practicable 'seems to be largely, if not entirely, concerned with whether the removal is possible from the officer's viewpoint' (at 165[65]). The Court expressed the view that the removal of a non-citizen may be practicable in the sense of feasible, but not 'reasonably practicable' as required by s 198(6) of the Act. The Court expressed the view that practicability and reasonableness may, on occasions, operate in opposing senses. The Court identified as matters an officer may taken into account in determining whether it is reasonably practicable to remove an unlawful non-citizen matters such as whether another country will admit the person, whether it can admit the person and the physical condition of a person facing removal (at 166[69]). There is no reason not to include in this list of matters, the mental condition of a person facing removal. In M38/2002 the Court said that in determining when it was reasonably practicable to remove an unlawful non-citizen it is not open to an officer to consider whether an unlawful non-citizen is a 'refugee' within the meaning of Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol ('the Convention'): s 5 of the Migration Act . Nor is it open to an officer to consider whether the unlawful non-citizen's removal and return to a particular country is conformable with the obligation against refoulment is Art 33(1) of the Convention. In the context of considering the Court's supervisory jurisdiction, the Court addressed the question of whether removing or refusing to remove an unlawful non-citizen under s 198(6) was a privative clause decision within s 474 of the Migration Act . The Court said (at 171-172 [88]): 'Removing or refusing to remove an unlawful non-citizen under s 198(6) of the Act does, however, constitute a "privative clause decision" for the purposes of the Act. Section 474(2) provides that, in s 474: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act ... (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). There is no reference to s 198 in s 474(4) or (5). Section 474(3)(g) provides that a reference in s 474 to a "decision" includes a reference to "doing or refusing to do any ... act or thing". Removing or refusing to remove an unlawful non-citizen under s 198(6) is, by virtue of s 474(3)(g), a "decision" and, as such, a "privative clause decision" within the meaning of s 474(2). According to s 474(1), a privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.' Some of the issues considered by the Full Court in M38/2002 were considered again by the Full Court in the subsequent decision in NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506 (' NATB '). The Court qualified the statement of the Full Court in M38/2002 that in the context of the Act, practicability and reasonableness may, on occasion, operate in opposing senses. The Court said that an element of reasonableness was inherent in practicability and the use of the word 'reasonably' may operate to extend the reasonableness notion, 'further along what may be described as "the continuum of reasonableness"' (at 516 [50]). The Court said that it would not attempt a definition of all the circumstances relevant to the concept of what was 'reasonably practicable'. It was impossible to foresee all the circumstances which may arise and the question involved a process of evaluation of the facts of each case. The Court said that physical considerations such as the health of the person to be removed and the availability of an operating airport in the place of destination were not the only relevant considerations. The willingness of a country to allow a person to enter its territory is at least one non-physical factor relevant to reasonable practicability. On the other hand, the limits on the matters relevant to reasonable practicability arise from the words themselves and the relevant considerations are practical considerations in the context of the proposed physical removal of a person from Australia. Subject to the one qualification which I have mentioned, nothing was said by the Full Court in NATB to suggest that the Court's observations and conclusions in M38/2002 were wrong and in particular the conclusion that to remove or to refuse to remove was a privative clause decision. The applicant referred to the decision of the High Court in Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562 (' Al-Kateb ') a case I will need to refer to again in another context. There is nothing in that case that suggests that the decisions in M38/2002 and NATB are not correct.