Federal Court of Australia
Federal Court of Australia
BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 995 Appeal from: BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 690
File number(s): VID 603 of 2023
Judgment of: RARES J
Date of judgment: 15 August 2023
Catchwords: MIGRATION – appeal from refusal to grant injunction restraining removal of unlawful non-citizen from Australia pursuant to s 198(6) Migration Act 1958 (Cth) – where officer issued notice of intention to remove unlawful non-citizen under s 198(6) – where non-citizen subsequently made request to Minister under s 48B to consider lifting bar to further application for a protection visa – where Minister's power under s 48B personal and non-compellable - where officers had duty under s 198(6) to remove unlawful non-citizen as soon as reasonably practicable and s 197C makes Australia's non-refoulement obligations irrelevant to performance of duty – whether s 198(6) contains implication that, if realistic possibility that Minister will consider whether to exercise his power under s 48B, no officer can remove an unlawful non-citizen under s 198(6) until the Minister makes decision – held: appeal dismissed.
Legislation: Constitution ss 64 and 75(v) Migration Act 1958 (Cth) ss 48A, 48B, 197, 198, 499
Cases cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 214 Marya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 433 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877 Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177
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