DMH20 v Minister for Home Affairs [2022] FCA 1054

Federal Court of Australia

DMH20 v Minister for Home Affairs [2022] FCA 1054 File number: VID 84 of 2019

Judgment of: ABRAHAM J

Date of judgment: 8 September 2022

Catchwords: MIGRATION – application for declaration that not reasonably practicable to remove unlawful non-citizen from Australia in reasonably foreseeable future – where evidence establishes reluctance of home country rather than refusal to accept applicant – where Department's efforts to remove applicant not exhausted – where applicant has nothing legitimate to lose by non-cooperation with removal and steps within power to facilitate own removal even if not preference – where on current state of law, consequence of non-cooperation is indefinite detention – no factual basis for declaration

Legislation: Migration Act 1958 (Cth) ss 189(1), 195A, 196, 197AB, 198, 486N, 501(1), 501A(2) Migration Reform (Transitional Provisions) Regulations 1994 (Cth)

Cases cited: Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 ATZ15 v Minister for Immigration and Border Protection [2017] FCA 191 ATZ15 v Minister for Immigration and Border Protection [2017] FCA 1811 Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1525; (2003) 137 FCR 317 B v The Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] FCA 699 Gore v Australian Securities and Investments Commission [2017] FCAFC 13; (2017) 249 FCR 167 Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 54; (2003) 126 FCR 54 Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285