Page:NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/9

 GAGELER CJ, GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH-JONES JJ. The plaintiff is a stateless Rohingya Muslim. He was born in Myanmar between 1995 and 1997. He arrived in Australia by boat in 2012 and was taken into immigration detention on arrival under s 189 of the Migration Act 1958 (Cth) ("the Migration Act"). He was granted a bridging visa in 2014.

In 2016, the plaintiff pleaded guilty in the District Court of New South Wales to a sexual offence against a child. He was sentenced to imprisonment for five years with a non-parole period of three years and four months. Upon his release from criminal custody on parole in 2018, he was taken again into immigration detention under s 189(1) of the Migration Act.

Whilst still in criminal custody, the plaintiff had applied for a protection visa. His application was considered by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs ("the Minister") in 2020. The delegate found him to have a well-founded fear of persecution in Myanmar. On that basis, the delegate found him to be a refugee in respect of whom Australia had protection obligations. Having regard to his conviction, however, the delegate found there to have been reasonable grounds for considering him a danger to the Australian community. On the basis of that finding, the delegate found that the plaintiff failed to satisfy the criterion for a protection visa set out in s 36(1C)(b) of the Migration Act and for that reason refused to grant him a protection visa.

The Administrative Appeals Tribunal affirmed the decision of the delegate following which the Federal Court of Australia dismissed an application for judicial review of the decision of the Tribunal in 2022. That final determination of his visa application engaged the duty imposed on officers of the Department of Immigration, Citizenship and Multicultural Affairs ("the Department") by s 198(6) of the Migration Act to remove the plaintiff from Australia as soon as reasonably practicable. Also in 2022, the plaintiff wrote to the Minister requesting his removal. That request engaged another duty imposed on officers of the Department by s 198(1) of the Migration Act to remove the plaintiff from Australia as soon as reasonably practicable.

By reason of the finding that the plaintiff had a well-founded fear of persecution, and in the absence of any relevant change of circumstances, the operation of s 197C(3) of the Migration Act was such that s 198(1) and (6) did not require or authorise an officer to remove him to Myanmar. In any event, he does not have any right of entry to or residence in Myanmar. The plaintiff had relatives in Saudi Arabia and in Bangladesh. But there was no real prospect of him being