Federal Court of Australia

BMH20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 301

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

Introduction

1    The matter for determination in this appeal is the proper construction of sub-reg 2.20(17)(c) of the Migration Regulations 1994 (Cth). Its construction is relevant to the question of whether a person, in this case the appellant, is an “eligible non-citizen” within the meaning of s 72 of the Migration Act 1958 (Cth) so as to enable the Minister for Immigration, Citizenship and Multicultural Affairs to determine, under s 73, whether a person satisfies the criteria for a bridging visa as prescribed in s 31(3).

2    In particular, the question to be determined is what is the correct interpretation of “not reasonably practicable at that time” as used in sub-reg 2.20(17)(c).

3    When the appellant applied for a bridging visa E (subclass 050) (Bridging E visa), cl 050.211 of Sch 2 to the Regulations provided that the following primary criteria must be satisfied at the time of the application:

(1)    The applicant is:

(a)     an unlawful non-citizen; or

(b)     the holder of a Bridging E (Class WE) visa; or

(c)     the holder of a Subclass 041 (Bridging (Non-applicant)) visa.

(2)    The applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17).

(Emphasis added.)

4    Those same criteria were required to be satisfied also at the time of decision: reg 050.221.

5    Regulation 2.20(17), in turn, prescribed the class of person who would fall within the definition of “eligible non-citizen” in s 72, as provided by sub-reg 2.20(1), to include the circumstances where:

(a)     the non-citizen is an unlawful non-citizen; and

(b)     section 195A of the Act is not available to the Minister in relation to the grant of a visa to the non-citizen; and

(c)     the Minister is satisfied that the non-citizen’s removal from Australia is not reasonably practicable at the time.

6    On 14 December 2020, a Delegate of the Minister refused the appellant’s application for a Bridging E visa. The Delegate was satisfied that the appellant met all criteria provided for in sub-reg 2.20(17) and was therefore an eligible non-citizen. That being the case, the appellant could not satisfy the primary criteria in cl 050.211 of Sch 2 to the Regulations.

7    The parties are agreed that the appellant is an unlawful non-citizen and the fact that he is not in detention means that s 195A of the Migration Act is not available to the Minister. The dispute centres on whether the appellant’s removal from Australia is “reasonably practicable”.

The sole appeal ground

8    By Notice of Appeal filed on 8 September 2022, the appellant contended the Federal Circuit and Family Court erred in failing to find that the Minister’s decision was affected by reason of jurisdictional error on the ground that the Delegate misinterpreted and/or misapplied sub-reg 2.20(17) of the Regulations with the result that the appellant was wrongly found to be an eligible non-citizen and therefore ineligible for a Bridging E visa.

9    The appellant contended the Delegate took into account impermissible considerations: that he had not signed a request for removal; that he was not in immigration detention; and he had a pending application for judicial review before this Court.

10    The appellant contended those three matters demonstrate the Delegate’s (erroneous) understanding of “reasonable practicability” as used in sub-reg 2.20(17)(c) as concerning the practicality of the Department of Home Affairs or the Australian Border Force locating the applicant and removing him forcibly, rather than its concerning the practical ability to take the appellant out of Australia and to some other place, as is the evident concern of s 198 of the Migration Act.

11    On 15 August 2022, the primary judge dismissed the appellant’s application for judicial review. The primary judge held, at J[52]:

[T]hat having regard to the evident breadth of the term, reasonably practicable, it cannot be said that any of the considerations that the delegate took into account were matters that he was not permitted to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J). Upon that basis, it cannot be said that, by considering those matters, the delegate misunderstood reg 2.20(17).

Construction of sub-reg 2.20(17)

12    The appellant contended that, as a matter of orthodox statutory construction, where an expression is used in multiple places in the same or related legislation, it should be given the same meaning unless the context otherwise demands: Parmar v Minister for Immigration and Citizenship [2011] FCA 760; 195 FCR 186 at [18] per Perram J; Huynh v Minister for Immigration and Border Protection [2015] FCA 701; 232 FCR 497 at [62] per Griffiths J. Consequently, unless a contrary intention is shown, the expression “reasonably practicable” in sub-reg 2.20(17)(c) is to be given the same meaning as in s 198 of the Migration Act.

13    This contention proceeds on the basis that there is a settled meaning of the expression as used in s 198 of the Migration Act. That is not so.

14    The Full Court has made clear in respect of cases concerned with s 198 of the Migration Act that “it [is] undesirable to attempt a definition of the expression ‘reasonably practicable’ in the present context”: NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 292; 133 FCR 506 at [51]. The Court explained that this was because, “it is impossible to foresee all circumstances which may arise. The expression requires a process of evaluation of the facts in each case”.

15    In M38/2002 v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2003] FCAFC 131; 131 FCR 146 at [65], the Full Court said:

The use in legislation of the expression “reasonably practicable” is not novel, and the authorities that discuss its use are numerous.  In the authorities and in the Shorter Oxford English Dictionary, the word “practicable” has the meaning “capable of being carried out in action; feasible”: [citations omitted].  Whether or not 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.  The word “reasonably” in the expression “reasonably practicable” limits or qualifies what would otherwise be an almost absolute obligation:  [citations omitted].  The removal of a non-citizen may be practicable in the sense that it is feasible, but not “reasonably practicable” as required by s 198(6) of the Act. 

16    Courts have been equally reluctant to attempt to prescribe the content of what may or may not be particular circumstances that would necessarily lead to reasonable impracticability.

17    After referring to the remarks of the High Court in R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128 at 136 that, “[r]easonableness is relative, and must be proportioned to the circumstances of the case considered as whole”, the Full Court in M38/2002 observed at [67] that, “[w]hether the removal of an unlawful citizen will be ‘reasonably practicable’ in a particular case will depend upon all the circumstances, considered by reference to the statutory duty in s 198(6)”. Some factors relevant to whether removal is “reasonably practicable” were identified by the Full Court, at [69] to include: whether there is another country that will admit the unlawful citizen; whether the cooperation of other countries is required, either in respect of the particular applicant or the class of applicants of which he is part; whether the country willing to receive the applicant is suffering from severe natural disaster or was in a state of utter civil anarchy; and whether the physical condition of the applicant would make the removal reasonably practicable.

18    In NATB, the Full Court said at [52]:

However, some observations may be made. First, it is possible to say that determination about reasonable practicability is not necessarily limited to physical considerations, such as the health of the person to be removed, or the availability of an operating airport in the country of destination. The willingness of another country to allow the person to enter its territorial boundaries is at least one non-physical factor relevant to reasonable practicability. Second, without attempting an exhaustive statement, it is possible to identify some limitations on the matters relevant to determination of reasonable practicability. They arise out of the words themselves. The relevant considerations are practical considerations, as is indicated by the dictionary definitions of ‘practicable’ set out at [47] above, Moreover, the context for determining reasonable practicability is the proposed physical removal of the person from Australia.

(Emphasis added.)

19    The primary judge accepted that the expression was used in different contexts – in s 198, to impose an imperative obligation upon an officer, and in sub-reg 2.20(17)(c), to create a criterion by reference to which the decision-maker is to reach a state of satisfaction: J[49]. The primary judge also observed that the term is engaged from two different perspectives – in s 198, it is forward-looking. It imposes a qualified obligation on an officer to effect removal as soon as reasonably practicable only after certain conditions have be satisfied. By contrast, sub- reg 2.20(17)(c) requires attention to be directed at whether the requirement that it is not reasonably practicable to remove exists at the time of application and decision. Nevertheless, the primary judge held at J[46]:

In the present context, I conclude there is good reason to do otherwise than construe the term reasonably practicable differently as employed in s 198 of the Act and reg 2.20(17) of the Regulations respectively. I prefer the analysis of Herzfield and Prince, the learned authors of Interpretation, 2nd (2020) [5.170] s (sic) that the rule is rather a presumption of consistency and may be of the mildest form which readily yields to the context including where it is employed in different parts of an Act and in larger pieces of legislation that have been the subject of amendment [citations omitted].

(Emphasis in the original.)

20    To the extent the primary judge seems to suggest in the first sentence of this paragraph that one should not construe the expression itself differently in the respective provisions, I agree. I also agree that the consequences of that construction in different provisions of the statutory framework will be affected by the context of those provisions. To the extent the primary judge considered it was necessary to discern a contrary intention as to the use of the expression in sub-reg 2.20(17)(c) as compared with s 198, at J[45], I respectfully disagree. The “orthodox” approach to construction does not, in this case, require a search for a contrary intention. The authorities referred to by the primary judge do not lead to a “definition” of “reasonably practicable” that would constrain the conclusion reached by the primary judge as to the breadth of the expression, at J[52], with which I respectfully agree.

Context

21    Section 198 imposes a duty on an officer to remove an unlawful non-citizen “as soon as reasonably practicable” after certain conditions are satisfied: when the non-citizen asks to be removed (s 198(1)); when a non-citizen who has been brought to Australia for a temporary purpose no longer needs to be in Australia (s 198(1A); in various circumstances when a non-citizen is otherwise detained as specified in s 193 (ss 198(2)-(2A)); when a non-citizen’s visa has been cancelled under s 501(3A), because the person is serving a term of imprisonment, and the Minister has decided not to revoke the cancellation (s 198(2)(B)); and in various other circumstances in which a non-citizen has been detained (ss 198(5), (6)-(9)).

22    Consequently, the authorities that have considered the expression in the context of s 198 have necessarily been focussed on the reasonable practicability of removal to another country in the context of an unlawful non-citizen either (a) asking to be removed; or (b) being already detained. It is therefore unsurprising that those authorities have focussed attention on the “feasibility” or “practicalities” of landing the unlawful non-citizen in another country.

23    What is clear from these authorities is the necessary breadth that must be given to the expression “by reference to the statutory duty”. At the time when an officer is required to consider whether it is reasonably practicable to remove a non-citizen under s 198, such a person has either requested to be removed or is already detained. As observed by the Full Court in NATB, the context is limited to the reasonable practicability of the proposed physical removal of the person (in most circumstances) from their current position of detention. By contrast, at the time when the requisite state of satisfaction is to be reached under sub-reg 2.20(17)(c), the non-citizen will, by definition, not be detained (reg 2.20(17)(b)), nor is it a requirement that the non-citizen has asked, or consented, to be removed.

24    Consequently, and self-evidently, the range of factors relevant to “reasonable practicability” of removal that are required to be considered to reach the necessary state of satisfaction under sub-reg 2.20(17)(c) are broader than those that have hereto now been considered in relation to s 198. Those factors may well include factors antecedent to a person’s request for removal and/or their detention pending removal in the process “of evaluation of the facts of each case”: NATB at [51].

25    Such an approach is not inconsistent with the orthodox approach to statutory construction; indeed, it is entirely consistent.

26    The real issue between the parties is whether it was impermissible for the delegate to take into account the appellant’s then pending application for judicial review. As a matter of context, the appellant argued that sub-reg 2.20(17)(c) should be understood as an extension of the policy of sub-reg 2.20(12) to a scenario where the person is not in detention, but where detention would not lead to removal because removal was not reasonably practicable (whatever the person’s attitude to their own removal). Consequently, it was argued, sub-reg 2.20(17)(c) requires the decision-maker to disregard whether a person has outstanding judicial review proceedings, or does not wish to be removed. On that basis, the appellant contended the Delegate’s considerations were prohibited irrelevant considerations.

27    Subregulation 2.20(12) is relevant to bridging visa R (subclass 070) – Bridging (Removal Pending) (Bridging R visa). This is not the class of visa for which the appellant applied. It is relevant only where an applicant is in immigration detention when the visa is granted (cll 070.411, Schedule 2) and an applicant must be an eligible non-citizen referred to in sub-reg 2.20(12) both at the time of application and at the time of decision (cll 070.21, 070.22, Schedule 2). Subregulations 2.20(12) and (13) provide:

(12)     This subregulation applies to a non-citizen if:

(a)    the non-citizen is in immigration detention; and

(b)    the Minister is satisfied that the non-citizen’s removal from Australia is not reasonably practicable at that time; and

(c)    the Minister is satisfied that the non-citizen will do everything possible to facilitate the non-citizen’s removal from Australia; and

(e)    any visa applications made by the non-citizen, other than an application made following the exercise of the Minister’s power under section 48B of the Act [Minister’s power to intervene personally after refusal or cancellation of protection visa], have been finally determined.

(13)    For paragraph (12)(b), a non-citizen’s removal from Australia is not to be taken to be not reasonably practicable only because the non-citizen is a party to proceedings in a court or tribunal related to an issue in connection with a visa.

28    Subregulation 2.20(12) was added to the Regulations on 11 May 2005 by the Migration Amendment Regulations 2005 (No 2) (Cth). On 16 June 2005, the Migration Amendment Regulations 2005 (No 5) (Cth) added sub-reg 2.20(13) and repealed sub- reg 2.20(12)(f), which had provided that a person could not be an eligible non-citizen under sub-reg 2.20(12) if the person was a party to any current proceedings in a court or tribunal raising an issue in connection with visas, deportation or removal of unlawful citizens. On its terms, sub-reg 2.20(13) contemplates that pending proceedings are a matter that could be taken into account by the decision-maker in reaching the relevant state of satisfaction. Subregulation 2.20(13) does no more than prevent a decision-maker from concluding solely on that basis that removal is not reasonably practicable. This in a context where the person is detained, the person is fully cooperative, and all visa applications have been finally determined.

29    By contrast, the criteria to be satisfied by an applicant for a Bridging E visa is necessarily different. Such an applicant must not be an eligible non-citizen as defined in sub-regs 2.20(7)-(11) or (17). The common feature of all these categories of eligible non-citizen is that the applicant is not in detention. Consequently, the context in which the Minister must form a state of satisfaction that a non-citizen’s removal from Australia is not reasonably practicable is different as between those persons who fall within sub-regs 2.20(7)-(11) or (17), and those who fall within sub-reg 2.20(12).

30    The context in which sub-reg 2.20(17) is found does not lead to the conclusion that the Delegate’s consideration of the appellant’s pending judicial review proceedings was impermissible.

Were the Delegate’s considerations impermissible?

31    To the extent that the appellant draws assistance from sub-reg 2.20(13) for his preferred construction of sub-reg 2.20(17), I do not accept the submission. Even if there were an equivalent of sub-reg 2.20(13) referrable to sub-reg 2.20(17), that would not assist the appellant. The Delegate was not satisfied the appellant’s removal from Australia was not reasonably practicable only because the appellant had pending judicial review proceedings. The Delegate also took into account that the appellant had not signed a request for removal and that he was not in immigration detention.

32    The appellant criticises the latter factor in particular as demonstrating the Delegate’s attention was misdirected because the overall operation of sub-reg 2.20(17)(c) assumes the person is not in detention. It is clear, however, when the Delegate’s reasons are read as a whole that such criticism is unfounded. The Delegate acknowledged expressly that the appellant was not in immigration detention when addressing himself to the requirements of sub-reg 2.20(17)(a) and (b). It was quite clear that it was only in the context of sub-reg 2.20(17)(c) that the Delegate turns his attention to the three factors on which he based his decision.

33    In so doing, the Delegate cannot be criticised for taken into account “a range of considerations” in “all the circumstances” of the case that might render removal not reasonably practicable at the time. The absence of a signed request for removal was one “practicality” that could hinder removal. The appellant submitted that nothing could turn on this because he had given his address to the Department. That was a matter within the Delegate’s scope of decisional freedom when assessing the relative practicalities of removal with or without the signed request. No error is demonstrated. Similarly, necessarily conscious that the appellant was not in immigration detention, the practicalities of removal will necessarily be different from those that arise when a person is already detained. No error is demonstrated.

34    As to the Delegate’s consideration of the pending judicial review proceedings, as this Court has said, in the context of s 198 of the Migration Act: SZKUO v Minister for Immigration and Citizenship [2009] FCAFC 167; 180 FCR 438 at [32]:

… The duty [of removal] is thus qualified by considerations of practicality which would have to be determined on a case-by-case basis. This would include consideration of whether the unlawful non-citizen had regularly commenced proceedings of substance in a court challenging the validity of the Tribunal decision which had not been determined: see Tchoylak v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 302 at [50]-[53] and Bolea v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 387.

35    In reaching the relevant state of satisfaction as to whether the appellant’s removal from Australia was reasonably practicable at that time, the Delegate cannot be criticised for considering a factor specifically identified by the Full Court of the Federal Court as one relevant to the practicalities of removal.

Disposition

36    No error on the part of the primary judge having been demonstrated, the appeal must be dismissed with costs.

Associate:

Dated:    4 April 2023