BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313

Federal Court of Australia BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 File numbers: VID 178 of 2021 VID 502 of 2021

Judgment of: WIGNEY J

Date of judgment: 31 March 2022

Catchwords: MIGRATION – where applicant is a refugee from Syria – where Australia found to owe applicant protection obligations due to well-founded fear of persecution and risk of serious harm if returned to country of citizenship – where applicant was refused a protection visa on character grounds under s 501(1) of Migration Act 1958 (Cth) – where applicant is currently detained as an unlawful non-citizen by the respondent, the Commonwealth of Australia, pursuant to s 189 of Migration Act 1958 (Cth) – consideration of statutory scheme regarding the detention and removal of unlawful non-citizens in Australia – whether applicant has been unlawfully detained as a result of the Commonwealth having failed to effect the applicant's removal as soon as reasonably practicable – detention of the applicant found to be lawful – applicant's claims for damages dismissed – whether the Commonwealth or its officers have failed to discharge the duty under s 198 of Migration Act 1958 (Cth) to remove applicant from Australia as soon as reasonably practicable – where Commonwealth officers found to have failed to discharge their statutory duty – appropriate relief for failure to discharge the duty under s 198 of Migration Act 1958 (Cth) ADMINISTRATIVE LAW – application seeking relief in the form of a writ of habeas corpus, or alternatively, a mandatory injunction directing the Commonwealth to release applicant from detention forthwith – application seeking a mandatory injunction requiring the Commonwealth to discharge its duty in s 198 of Migration Act 1958 (Cth) in relation to applicant – application seeking a declaration that the Commonwealth has failed to discharge its duty in s 198 of Migration Act 1958 (Cth) in relation to applicant – whether s 476A of Migration Act 1958 (Cth) operates to remove the jurisdiction of the Federal Court of Australia to consider claims for injunctive and declaratory relief in respect of the Commonwealth's alleged failure to discharge its duty under s 198 of Migration Act 1958 (Cth) – whether applicant's claims involve direct judicial review of a migration decision – consideration of the appropriate relief where Commonwealth found to have failed to discharge its duty under s 198 of Migration Act 1958 (Cth) to remove applicant from Australia as soon as reasonably practicable – where writ of mandamus found to be the appropriate form of relief – whether circumstances of applicant's case warrants the making of a declaration that officers of the Commonwealth failed to discharge their duty under s 198 of Migration Act 1958 (Cth)