Federal Court of Australia

BBY21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1567

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed under r 40.12 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

RAPER J:

1    The appellant is a citizen of Singapore, who came to Australia in 2006. The appellant has since been convicted of drug-related crimes and sentenced to terms of imprisonment totalling 22 years. The appellant has been detained as an “unlawful non-citizen” since 17 October 2020. On 22 October 2020, the appellant applied for a protection visa on the basis of his criminal history and connections in Singapore which caused him to fear for his safety should he return to Singapore. Following merits and judicial review proceedings, coupled with a request for Ministerial intervention, the appellant’s protection visa application was finally refused on 7 April 2022.

2    Section 198(6) of the Migration Act 1958 (Cth) compels the third respondent to remove a visa applicant from Australia “as soon as reasonably practicable” if certain criteria are met.

3    Before the primary judge in the Federal Circuit and Family Court of Australia, the appellant sought (but no longer seeks) to be removed to a third-country, the Republic of Kenya, despite not being a resident of Kenya: BBY21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 31. The respondents had refused to facilitate the appellant’s removal to Kenya for reasons including Departmental policy, and evidence that Kenyan authorities consider the appellant to be a prohibited immigrant. This refusal was the subject of the judicial review before the primary judge.

4    Prior to the hearing of this appeal today, the appellant sent to the Court additional evidence that he wanted to be before the Court for the purpose of the appeal, which was marked Exhibit A1.

5    In that communication to the Court, the appellant referred to the fact that he is representing himself and made the request that he wants to go to Thailand. The appellant noted that he does not need a visa to travel to Thailand and that his wife is a citizen and resident of Thailand. The appellant provided to the Court screenshots of various documents, which included what is required for the purpose of an online visa application in Thailand, the kind of visa application for Thailand required a Singaporean citizen (of which the appellant is one) and supporting documents from the appellant’s wife to the Thai authorities concerning his intention to go and visit her in Thailand.

6    At hearing today, the appellant confirmed (as he had stated in his correspondence on 24 November 2023) that he no longer seeks to be returned to Kenya but rather to Thailand.

7    It is apparent from the nature of the appeal and the reasons given by the primary judge below that the contest concerned whether the Minister had breached his obligations under s 198(6) by not removing the appellant as soon as reasonably practicable, in the appellant’s case, at that time, to Kenya.

8    As part of the relief sought on judicial review, but also as sought on appeal, the appellant sought orders in the form of mandamus, compelling the Minister to return the appellant to Kenya.

9    By reason of the above, in the circumstances, there does not appear to be any utility remaining with respect to the appeal as currently framed given the appellant’s change in wishes and circumstances.

10    At hearing, the appellant confirmed that he no longer wishes to proceed with the appeal.

11    For these reasons, it is appropriate that the appeal be dismissed.

12    In addition, the Minister sought his costs, consistent with the usual orders, where costs follow the event.

13    The appellant did not oppose an order for costs, but did ask for some time before a costs order was to be made. The Minister indicated, as to the time period in which a costs order would be required to be paid, would be dependent on whether there was agreement between the parties or whether the costs themselves would be taxed. In the circumstances, it is my view that it is appropriate that costs follow the event and that a costs order be made.

14    For this reason, I order that the Minister’s costs be paid by the appellant.

Associate:

Dated:    11 December 2023