Adam v Secretary of Department of Home Affairs

[2024] FedCFamC2G 179

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Adam v Secretary of Department of Home Affairs [2024] FedCFamC2G 179

File number(s):

MLG 2249 of 2023

Judgment of:

JUDGE MANSINI

Date of judgment:

28 February 2024

Catchwords:

 MIGRATION – Application for writ of habeas corpus – where applicant has spent 2.5 years in immigration detention and not yet been removed to his country of origin, Iran – whether the constitutional limit on the power of executive detention under ss. 189 and 196 of the Migration Act 1958 (Cth) has been transgressed – where evidentiary burden rests with the respondents to justify a real prospect of applicant’s removal from Australia becoming practicable in the reasonably foreseeable future –application granted.

Legislation:

Australian Constitution ss.75

Australian Passports Act 2005 (Cth) ss.9

Australian Passports Determination 2015 (Cth) ss.6

Judiciary Act 1903 (Cth) ss.78B

Migration Act 1958 (Cth) ss.5, 14, 29, 189, 196, 197, 198, 476, 501

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021(Cth) rr.15.19

Cases cited:

ASF17 v Commonwealth of Australia [2024] FCA 7

Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794

AZC20 v Secretary, Department of Home Affairs (No 2) [2023] FCA 1497

Gramophone Co Ltd v Magazine Holder Co (1911) 28 RPC 221

McHugh v Minister for Immigration [2020] FCAFC 223

McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416

Mokhlis v Minister for Home Affairs (2020) 94 ALJR 843

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625

Division:

Division 2 General Federal Law

Number of paragraphs:

138

Date of last submission/s:

22 February 2024

Date of hearing:

30 January, 6, 8 and 20 February 2024

Place:

Melbourne

Counsel for the Applicant:

Mr Albert with Dr Murphy

Solicitor for the Applicant:

Asylum Seeker Resource Centre

Counsel for the Respondents:

Mr Johnson with Mr Barrington

Solicitor for the Respondents:

Australian Government Solicitor

Table of Corrections

5 March 2024

In the Appearances on the cover page in the field Counsel for the Applicant the words "with Dr Murphy" after "Mr Albert" have been added.

ORDERS

MLG 2249 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ADAM

Applicant

AND:

SECRETARY OF DEPARTMENT OF HOME AFFAIRS

First Respondent

MINISTER FOR HOME AFFAIRS

Second Respondent

ORDER MADE BY:	JUDGE MANSINI
DATE OF ORDER:	28 FEBRUARY 2024

THE COURT ORDERS THAT:

1.A writ of habeas corpus issue requiring the respondents to release the applicant forthwith.

2.The application for mandatory injunctive relief be dismissed.

3.The matter be listed for case management on a date to be advised.   

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE MANSINI

IN SUMMARY

1. This is an application by an unlawful non-citizen who came to Australia from Iran as a refugee and has now been held in immigration detention for some 2.5 years. The application is for immediate release of the applicant, who will be called “Adam” (not his real name).

2. Adam was convicted of people smuggling (bringing a group of illegal immigrants to Australia), for which he was sentenced to 7 years’ imprisonment. While serving that sentence he was convicted of one charge of assault in company, for which he was sentenced to a further 1 months’ imprisonment.

3. On account of his criminal behaviour, Adam’s refugee visa was cancelled. With no visa, Adam was not permitted to reside in the Australian community. After serving his criminal sentences he was housed in immigration detention, where he has remained whilst attempting to have his visa cancellation revoked.

4. On 27 February 2020, the Minister personally decided not to revoke the cancellation of Adam’s refugee visa.

5. Under Australian migration laws, Adam is to be removed from the country as soon as reasonably practicable.

6. Adam has not sought that the relevant officers be compelled to attend to their duty to remove him with more haste. He relies on the recent High Court of Australia decision in NZYQ (overruling an established constitutional principle as to the limits of executive power to detain) to ask this Court to require his immediate release into the Australian community.

7. The Minister for Home Affairs and Secretary of the Department say that the reason Adam can not be removed is because he has not cooperated with the removals process.

8. Adam’s case is that, with his cooperation or not, he has no real prospect of being removed from Australia anytime soon or as far into the future as this Court can reasonably foresee. Among other things he says that, as a recognised refugee, he cannot be forced to return to Iran by operation of Australian and international laws.

9. This Court is bound to follow the High Court in NZYQ.

10. Applying that standard, there is insufficient evidence that Adam has a real prospect of being removed from Australia in the reasonably foreseeable future and Adam is required to be released immediately.

11. The outcome of this decision entitles Adam to live in the Australian community but not to indefinite freedom. At any point, if the prospect of his removal from Australia becomes real in the reasonably foreseeable future, he can be re-detained.

12. An application of this kind does not empower the Court to consider the nature of Adam’s prior offending or risk to the Australian community. He has served his punishment for those offences. No question of ancillary orders or referrals arose in this case. 

13. The reasons for this decision follow.

IN SUMMARY	[1]
PRELIMINARY MATTERS	[14]
Jurisdiction of this Court	[15]
Notice to Attorneys-General	[20]
LEGAL FRAMEWORK	[23]
ISSUES FOR DETERMINATION	[36]
THE FACTS	[38]
Notice to admit certain facts	[38]
Adam’s background	[45]
Adam’s time and attempts to stay in Australia	[51]
Adam’s removal from Australia	[62]
Adam is involuntary and has no travel document	[67]
Adam fears harm on return to Iran	[74]
The significance of and process for obtaining a travel document	[77]
Adam’s application for review of non-revocation decision is ongoing	[86]
No third country options	[89]
Adam is a refugee	[92]
DETERMINATION OF THE MATTERS IN ISSUE	[97]
Where does the onus lie?	[98]
What (if any) of the following matters are preventing Adam’s removal from Australia in the reasonably foreseeable future?	[101]
Is the existence of a non-refoulement obligation a matter preventing Adam’s removal from Australia in the reasonably foreseeable future?	[111]
Is the fact of not holding a travel document a matter preventing Adam’s removal from Australia in the reasonably foreseeable future?	[119]
Resolution	[131]
Other matters said to be preventing Adam’s removal from Australia to Iran	[132]
If the fact that Adam will not return voluntarily to Iran is the only matter preventing his removal from Australia becoming practicable in the reasonably foreseeable future, what is the effect of the Court’s reasoning in AZC20 and, as a separate question, in ASF17?	[134]
DISPOSITION	[135]

PRELIMINARY MATTERS

1. This application was heard concurrently with another application for a writ of habeas corpus at the request of the applicants, which was not opposed. As the cases are factually distinct the reasons stand alone yet bear similarities to the extent of common issues of law and procedure.

   Jurisdiction of this Court

2. The Minister for Home Affairs and Secretary of the Department (together “the Respondents”) initially contended that there was no jurisdiction to hear the original application by which the only relief sought was a writ of habeas corpus primarily because it is ancillary to but not of itself a remedy at s.75(v) of the Australian Constitution (Constitution): citing, for example, Mokhlis v Minister for Home Affairs (2020) 94 ALJR 843 at [14].

3. During the course of hearing the application, Adam’s counsel sought amendment of application to incorporate a prayer for relief in the form of a mandatory injunction.

4. The Respondents did not oppose the amendment or the propriety of the approach and, on the basis of the amended application, did not oppose the jurisdiction of this Court.

5. A decision to detain a person under s.189(1) of the Migration Act 1958 (Cth) (Act) is a “migration decision” for the purposes of s.476 of the Act. The authorities make clear that a writ of habeas corpus is no more than a form of order which could be granted in an appropriate case as an incident of the exercise of the original jurisdiction of this Court under the statutory provisions: McHugh v Minister for Immigration [2020] FCAFC 223; 283 FCR 602 (McHugh Full Court) at [211]-[222].

6. On the basis of the amended application which strictly sought a mandatory injunction, it may be accepted that the jurisdiction of the Court is enlivened.

   Notice to Attorneys-General

7. Adam’s lawyer gave notice to the Attorneys-General of the Commonwealth and the States that the proceeding may involve a matter arising under the Constitution or involving its interpretation within the meaning of s.78B of the Judiciary Act 1903 (Cth).

8. To the extent that such notice was necessary, I formed the view and the parties agreed that the time elapsed since the notice was given (in this case, 9 clear days) constituted a reasonable time for the purposes of s.78B, having regard to the apparent purpose of the provision, the urgent nature of the relief claimed and the precedent to which this Court was taken in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 at [56]-[57].

9. The Attorney-General of the Commonwealth reserved the right to intervene in any appeal but not in the present proceedings. There were other responses but no attempt to intervene or request for an adjournment from the other notified parties or any non-party in the present case.

   LEGAL FRAMEWORK

10. A person who is not an Australian citizen and does not hold a valid visa permitting them to travel to and enter Australia or to remain in Australia (known as an “unlawful non-citizen”) may be mandatorily detained and removed pursuant to Divisions 7 and 8 of Part 2 of the Act: ss.14(1), 29(1) and see also s.189 of the Act.

11. An “officer” (including an officer of the Department) is duty bound to detain a person who is in the “migration zone” and the officer knows or reasonably suspects is an unlawful non-citizen: ss.5 and 189(1) of the Act.

12. The duration of the detention authorised by s.189(1) is expressed in terms that the person must be kept in immigration detention until the occurrence of a specified event including the grant of a visa to the person or their removal from Australia under s.198: s.196(1) of the Act.

13. By s.198(1), an officer is obliged to remove an unlawful non-citizen as soon as reasonably practicable where the person asks the Minister in writing to be so removed. This is referred to as a “voluntary removal”.

14. By s.198(2B), an officer is obliged to remove an unlawful non-citizen as soon as reasonably practicable where a delegate of the Minister has cancelled their visa under s.501(3A) and, since the cancellation, the person has not made a valid application for a substantive visa that can be granted while they are in the “migration zone” (such as a protection visa). This is referred to as an “involuntary removal”.

15. In NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (NZYQ), the High Court of Australia considered the constitutional limits of these legislative provisions which otherwise authorise the executive detention of unlawful non-citizens who do not have permission to remain in Australia. The constitutionally permissible period of execution detention was therein expressed as coming to an end when there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future: at [55].

16. In setting out its guidance as to the application of the constitutional limitation, the High Court of Australia said the following in relation to the standard of proof in NZYQ at [60]:

    To establish that ss 189(1) and 196(1) of the Migration Act validly applied to authorise continuation of the plaintiff's detention, the defendants were accordingly required to prove that there existed a real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future. Whilst the proof was required to be to a standard sufficient to support the making of a finding of fact to the level of satisfaction appropriate in a civil proceeding where individual liberty is in issue, the prospective and probabilistic nature of the fact in issue (that is, the fact of a real prospect of the plaintiff's removal from Australia becoming practicable in the reasonably foreseeable future) would have the potential to be confused were the standard of proof to be "on the balance of probabilities",

    (there citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [282]-[283]. Contra Sami v Minister for Home Affairs [2022] FCA 1513 at [157]).

17. Also in NZYQ, the High Court of Australia said that the notions of “practicability” and of the “reasonably foreseeable future” are essential to anchoring the expression of the constitutional limitation in factual reality. In doing so, the real world difficulties attached to removal were acknowledged, the real world context requiring that proof of a real prospect must involve more than demonstration of a mere un-foreclosed possibility: NZYQ at [61], citing WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625 at [59].

18. There have been 2 relevant applications of the principle derived from NZYQ since it was handed down. The following paragraphs are instructive in the context of the task before the Court.

19. In AZC20 v Secretary, Department of Home Affairs (No 2) [2023] FCA 1497 (AZC20) at [27]-[29] it was considered that:

    “Real prospect” and “reasonably foreseeable future” express evaluative notions (although they are components of a legal test for validity and thus raise questions which have a single correct answer: cf Minister for Immigration v SZVFW [2018] HCA 30; 264 CLR 541 at [43]-[49] (Gageler J)). Where the relevant lines are to be drawn in future cases may be fact-sensitive and may depend on experience drawn from earlier cases.

    In NZYQ at [62]-[70] the Court reasoned to its own conclusion, by reference to evidence, on this point. This appears to have been necessary because, although the parties had agreed as to the state of affairs as at 30 May 2023, they did not agree as to what was to be made of certain inquiries undertaken by the Department after that time. Approaches had been made to United States authorities, who (to put it shortly) had not given a definitive negative answer to the question whether the plaintiff might be received in that country. The conclusion of the Court was that the evidence did not allow any meaningful assessment of either the likelihood of this inquiry being fruitful or the timeframe in which that might occur (at [68]-[69]).

    The conclusion that there was no real prospect of removal in the reasonably foreseeable future was described by the Court at [70] as “the necessary conclusion of fact”. However, at [61] reference had been made to the “notions of the practicability and the foreseeability of removal embedded in the expression of the constitutional limitation”. These concepts are (as noted above) to some extent evaluative, and the evaluation takes place in the context of the constitutional principle identified in NZYQ.

20. In ASF17 v Commonwealth of Australia [2024] FCA 7 (ASF17) at [73] it was held that:

    The prospect to be proven is one that would be recognised as a prospect in the real world and, consequently, must be more than a possibility that has not been foreclosed but need not be shown to be a prospect that, on the balance of probabilities, will occur.

21. The decisions in AZC20 and ASF17 respectively consider the relevance of non-cooperation of a detainee where such non-cooperation was said by the respondents in each case to have frustrated the detainee’s removal from Australia. In this respect, the judgement in ASF17 is subject of appeal and before the High Court of Australia but presently binding on this Court. Notwithstanding the Respondents’ strong reliance on those aspects of the reasons in ASF17, the parties mutually submitted that Adam’s case ought proceed in parallel and not be delayed pending the outcome.

22. The Court was also taken to numerous authorities said to provide context to the reasoning in NZYQ which passages are not repeated here.

    ISSUES FOR DETERMINATION

23. The primary question for the Court to determine in the present case was agreed:

    Is there a real prospect that Adam’s removal from Australia will become practicable in the reasonably foreseeable future?

24. As a subset of this, the following issues were also agreed as being for determination:

    (a)What, if any, of the following matters are preventing Adam’s removal from Australia in the reasonably foreseeable future?

    (i)Adam’s recognised status as a refugee at international and domestic law?

    (ii)The fact that Adam does not hold a travel document?

    (iii)The fact that Adam will not voluntarily return to Iran?

    (b)If the fact that Adam will not voluntarily return to Iran is the only matter preventing his removal from Australia becoming practicable in the reasonably foreseeable future:

    (i)What is the effect of the Federal Court of Australia’s reasoning in AZC20 v Secretary, Department of Home Affairs (No 2) [2023] FCA 1497?

    (ii)What is the effect of the Federal Court of Australia’s decision in ASF17 v Commonwealth of Australia [2024] FCA 7?

    THE FACTS

    Notice to admit certain facts

25. Before the Court was a notice to admit dated 22 December 2023.

26. The Respondents prepared a notice to dispute certain of those facts, which was not filed within 14 days as required by the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021(Cth): r.15.19(1). By operation of r.15.19(2), the facts contained in the notice to admit were taken to be admitted for the purposes of these proceedings.

27. The Respondents were invited to address the Court about any application for leave to withdraw their deemed admissions of facts. Adam indicated he would oppose. The Respondents did not ultimately seek such leave but rather confirmed their withdrawal of any dispute as to the facts in the notice to admit.

28. Especially in a case of this nature, the parties are entitled to rely on admissions of fact via a notice to admit procedure. It is a process provided in the Court’s Rules to contribute to the orderly and efficient conduct of proceedings. In light of the opportunity to apply for withdrawal of the deemed admissions, which was not sought, the admitted facts ought be taken on their face. That is, other than to the extent that judgement ought not proceed on the basis of a factual contention that is plainly untrue on the evidence before the Court: Gramophone Co Ltd v Magazine Holder Co (1911) 28 RPC 221 at [225] as cited in Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794 at [43].

1. To the extent that the Respondents’ deemed admission that there is no real prospect of removal of Adam from Australia in the reasonably foreseeable future involves a contention of fact, it would appear to offer a complete answer to the case. That admission is reinforced by another admitted fact – that, as of 13 December 2023, there was no prospect that Adam could be removed to Iran and that nothing has changed since then to affect the prospect of Adam’s removal to Iran.

2. By their engagement with the proceedings the Respondents were understood to contend that these admissions do not offer a complete answer to the case. They sought to place caveats on them – namely, that the admitted state of affairs is because of Adam’s non-cooperation about which there is evidence before the Court.

3. The following is a summary of the admitted facts and the evidence before the Court relevant to the issues for determination, and unless otherwise indicated was uncontentious.

   Adam’s background

4. Adam is a national of Iran and only that country. Adam was born in Iran.

5. Adam is not a citizen of Australia and is not an Aboriginal or Torres Strait Islander.

6. There is a question as to whether Adam is a citizen of Iran, or any country at all.

7. In February 2006, Adam arrived in Australia (via Indonesia, with his mother) as the holder of a visa granted in 2005 because of his then recognised refugee status.

8. Adam has family in Australia, Dubai and China. As recently as 13 December 2023, Adam was recorded as having said at interview with the Australian Border Force that his whole family was in Sydney (his mother, father, uncle and brothers) and he also had a Chinese national wife residing in China and a child of a prior marriage who lived in Dubai and was then 21 years old.

9. Adam’s “Status Resolution Officer” since 9 February 2023 gave evidence as at 16 January 2024 of her state of satisfaction that Adam is a citizen of Iran based on her review of Departmental records. The basis for this conclusion was not otherwise explained and the truth of the matter was not necessarily accepted by Adam.

   Adam’s time and attempts to stay in Australia

10. After some 8 years in Australia, on 25 October 2014, Adam was taken into remand for being charged with “organise to bring group to Australia knowing unlawful citizens” (people smuggling). On 20 February 2015, he was sentenced to serve 7 years’ imprisonment.

11. On 20 June 2017, Adam’s refugee visa was cancelled on account of his crime.

12. On 28 August 2020, Adam was convicted of “one charge of assault in company” and was convicted of 1 months’ imprisonment to be served concurrently with the sentence that he was serving for his earlier offence.

13. On 27 February 2020, the Second Respondent Minister personally decided not to revoke the otherwise mandatory cancellation of Adam’s refugee visa. Adam has since brought numerous legal proceedings to challenge this decision, which efforts are not recited in full here.

14. On 7 September 2021, Adam was transferred from prison to immigration detention where he has remained to this day.

15. At the time of hearing, Adam had on 3 occasions obtained orders from the Federal Court of Australia which respectively quashed decisions of the Second Respondent Minister and the Administrative Appeals Tribunal and remitted his case for redetermination according to the law (most recently, on 17 November 2023 in FJXD v Minister for Immigration, Citizenship and Multicultural Affairs, VID570/2023 per O’Bryan J).

16. On 27 November 2023, Adam’s lawyer wrote to the First Respondent’s Department and requested Adam’s release from immigration detention in light of the reasoning in NZYQ.

17. On 30 November 2023, the Australian Government Solicitor’s office responded to the effect that a response would be provided as soon as possible.

18. On 1 and 11 December 2023, Adam’s lawyer followed up on the correspondence and requested information as to steps taken to effect Adam’s release.

19. On 13 December 2023, the Australian Government Solicitor’s office responded. By that response, it was stated that Adam was not agreeable to removal and, because of Iran’s long-standing policy on involuntary removals, Adam could not be removed to Iran at that time.

20. Also as of 13 December 2023, in an interview with the Australian Border Force, Adam was recorded as having described his reasons for wanting to get out of detention to include so that he could continue to sponsor his wife, as she is a Chinese national whom he had been sponsoring to stay in Australia but no longer had an Australian visa.

    Adam’s removal from Australia

21. Adam is currently in the Australian “migration zone” and does not hold a visa that is in effect. Adam’s Status Resolution Officer gave evidence of her state of satisfaction, since 9 February 2023 and ongoing as at 16 January 2024, that Adam is a person who (based on her understanding of the operation of s.189 of the Act) she must continue to detain.

22. From 27 February 2020, there has been a continuous statutory duty to remove Adam from Australia (admitted to the extent that it were a contention of fact and not law).

23. It was also admitted that:

    There is no real prospect of removal of [Adam] from Australia in the reasonably foreseeable future.

24. Another admitted fact before the Court was that, as of 13 December 2023, there was no prospect that Adam could be removed to Iran and nothing has changed since then to affect the prospect of Adam’s removal. The evidence in support was said to be the letter of the Respondents’ lawyer to Adam’s lawyer dated 13 December 2023 referenced above (and, otherwise, that there was no evidence to contradict this admission).

25. The materials before the Court included the following evidence said to be relevant to the issues for determination in these proceedings as to the reasons why Adam has no real prospect of removal from Australia in the reasonably foreseeable future.

    Adam is involuntary and has no travel document

26. As at 16 January 2024, Adam’s Status Resolution Officer gave evidence of the most recent case review which she had conducted of Adam’s case having occurred on 8 January 2024. She annexed a record which, on its face, was dated 15 January 2024. Assuming her evidence was intended to relate to the record of a case review as at 15 January 2024, the Status Resolution Officer affirmed that this case review was completed in reliance on the information contained in the departmental records and having made contact with Adam. The record itself contained the following assessment of barriers to removal in Adam’s case:

    Barriers to case resolution and actions taken or being taken to resolve those barriers.

    Barrier Indicator: 4.2 AAT – Character Refusal/Cancellation

    Outcome of TD discussion

    No TD – application to be lodged when appropriate

    Statutory Bars:

    s501E, s195

    Obstacles:

    -ongoing JR

27. An Acting Inspector of the Victoria/Tasmania Field and Removal Operations Team within the Australian Border Force prepared an affidavit affirmed 16 January 2024. As of 16 January 2024, this officer’s evidence was that she understood the primary barrier to Adam’s removal from Australia was Adam’s status as an involuntary returnee. The officer deposed to have formed this view based on her knowledge that Adam has a right of entry to Iran and no other country, Adam has refused to return to Iran voluntarily, and Iran will not issue a travel document to involuntary returnees.

28. As will be apparent, the lawyers’ letter of 13 December 2023 (from the Respondents’ lawyer to Adam’s lawyer) also described Adam’s involuntary removal status together with Iran’s long-standing policy to refuse entry to involuntary removals as the reason that Adam could not be removed to Iran at that time.

29. Iran’s long-standing policy not to accept involuntary removals from Australia was not in issue in these proceedings.

30. There were admitted facts in terms that:

    It has been the position of the Iranian Government for over 20 years not to accept involuntary returnees from Iran to Australia.

    It continues to be the position of the Iranian Government not to accept involuntary returnees from Iran to Australia.

31. To the extent that Adam’s argument was that the Iranian Government will not accept involuntary returnees to Iran coming from Australia, then the notice to admit would appear to contain a typographical error but the reverse formulation was not in issue when regard is had to the evidence as at 16 and 17 January 2024, for example:

    (a)An Acting Inspector of the Removal Operations Team gave evidence that Iranian authorities will not issue a travel document to involuntary returnees; and

    (b)A Supervisor in the Detention and National Removals, Consular Engagement and Liaison Team within the Australian Border Force gave evidence that the First Respondent’s Department understands that Iran will not issue a necessary Laissez Passer to an involuntary removal, as recorded in the Department’s Travel Document Reference Guide – Iran (an internal document which records the institutional understanding within the Department about how Iran operates in terms of receiving removals from Australia).

32. Adam’s unwillingness to be removed from Australia to Iran was also not disputed and consistent with his position taken in these proceedings. The most recent evidence of this was annexed to the Acting Inspector of the Removal Operations Team’s affidavit in the form of a file note of an interview conducted by Acting Border Force Supervisor of 13 December 2023. By that file note, Adam was recorded as having stated that: he does not want to return to Iran because he cannot live in a Muslim country as a Christian and his whole family live in Sydney; that he did not wish to have the relevant department apply for an Iranian passport for him; and in response to a question about whether he is resident of any other country, that he cannot live in Dubai and does not want to live in China. Further, there was a record of a request for removal form in evidence which was marked by an officer that Adam had “refused to sign” and was also dated 13 December 2023.

    Adam fears harm on return to Iran

33. As to the explanation for his unwillingness, Adam has always maintained that he cannot return to Iran because he fears harm on return there.

34. There were materials before the Court which confirmed that Adam has in the past claimed to have fears and to be owed protection on account of his religious beliefs. Adam’s lawyer gave evidence that, before his arrival in Australia, Adam was considered by the United Nations High Commissioner for Refugees to be a refugee on the basis of his well-founded fear of persecution on account of his Mandean religion. This evidence was consistent with accounts given in various other documents before the Court (such as a delegate’s decision of 31 May 2022 wherein this finding of the United Nations High Commissioner for Refugees was reflected).

35. Other documents before the Court also reflected that which was not in dispute - that, in the course of Adam’s challenges to the mandatory cancellation of his visa, on 31 May 2022, a decision of a delegate of the Second Respondent Minister found that Adam’s physical and mental health conditions would expose him to a risk of harm and societal discriminations if returned to Iran. That Tribunal Member concluded that such harm could include arbitrary arrest, imprisonment, torture and possibly even death (but was not necessarily limited to those risks).

    The significance of and process for obtaining a travel document

36. As at the time of application and at the hearing, Adam did and does not have any valid travel document.

37. The Acting Inspector of the Removal Operations Team’s evidence was that the absence of a travel document was critical because without such document Adam would have no authority to enter Iran.

38. The Supervisor in the Detention and National Removals, Consular Engagement and Liaison Team had not been involved in Adam’s case but gave evidence about her experience of the process for obtaining an Iranian travel document since commencing her role in July 2023. This witness is responsible for updating the document known as the Travel Document Reference Guide – Iran with information relating to the requirements of the Iranian officials. Her evidence of the process drew on that contained in this guide and annexed the most recent version of it (which included her input) dated 8 January 2024.

39. More specifically, in terms of voluntary removal to Iran, the Supervisor deposed:

    (a)That an individual seeking voluntary removal to Iran requires a Laissez Passer to be issued which in turn requires approval from the Ministry of Foreign Affairs in Iran and without which entry to Iran would be denied. To obtain a Laissez Passer an applicant is required to provide documentation to the Iranian Embassy including: an application form (completed and signed); original Iranian identity documents (or, if originals can not be provided, then copies must be submitted for approval of the Ministry of Foreign Affairs in Iran before the application is submitted to the Iranian Embassy); a hand written letter of the applicant in their native language (Farsi); a current passport photo; and a flight itinerary to Iran. Additionally, there is a fee payable to the Iranian Embassy of $34.00 Australian dollars and the person is required to participate in an interview by telephone with the Embassy before the Laissez Passer will issue. According to the experience of this witness, the process to obtain a Laissez Passer from application can take up to 12 weeks - or longer if there are delays in arranging interviews with the Iranian authorities. Where the identity documents are provided this witness was not aware of any case that was refused where the departee was to be removed voluntarily.

    (b)To have had carriage of a number of cases involving the voluntary removal of Iranian nationals all of which have been successful. When asked to expand on this evidence at hearing, this witness said that she had been involved in 27 cases of successful voluntary removal to Iran. That evidence was at odds with the response of the First Respondent’s Department to interrogatories which disclosed that there were a total of 4 successful voluntary removals to Iran in the period June 2023 to January 2024 (inclusive).

40. In terms of involuntary removal to Iran, the Supervisor deposed to her understanding (having regard to her own experience and the contents of the Travel Document Reference Guide - Iran) that a non-cooperative removee would not be issued with a Laissez Passer by the Iranian authorities. This witness could not recall ever having to obtain a Laissez Passer for an involuntary removal to Iran because of her understanding that Iran will not issue one to such individuals.

41. The Supervisor also gave evidence of having reviewed Adam’s records and formed the view that the First Respondent’s Department does not possess any original Iranian documents for Adam or copies of such documents. This witness was also of the view that, if Adam were to become voluntary, then he may be able to obtain a Laissez Passer through the Iranian Embassy but would also need to obtain a confirmation of his nationality by the Ministry of Foreign Affairs in Iran or otherwise satisfy the Iranian authorities of his identity via attendance at an interview and cooperate with the requirements of the process.

42. As of 17 January 2024, the Supervisor’s evidence was that, in her role, she has responsibility for all cases where arrangements are being made for the removal of Iranian nationals and is responsible for liaising with consulates, high commissions and embassies to investigate removal options and obtain necessary travel documents. This witness attends the Iranian Embassy usually once a week to discuss removal arrangements with Embassy officials. Those discussions are not always about specific individuals, more for the purpose of exchanging information about processes, but sometimes she will communicate more regularly with the Iranian Embassy if particular enquiries need to be made. This witness also said that responsibility for progressing each removals case sits with a State-based removals team and her team will provide assistance as required.

43. No witness gave any evidence of specific exchanges with Iranian officials or authorities in relation to attempted removal of Adam from Australia to Iran.

44. The Acting Inspector of the Removal Operations Team deposed of her intention to continue to engage with Adam to encourage him to agree to voluntarily return to Iran and, if that were to occur and a travel document were obtained, of her view that removal arrangements could then be made swiftly. Further, that attempts to remove Adam to Iran had not (as at 16 January 2024) been exhausted - for example, because there was a prospect that Adam would become willing to be voluntarily removed or to meet with the Iranian authorities. 

    Adam’s application for review of non-revocation decision is ongoing

45. As earlier referenced, as at 16 January 2024, Adam’s Status Resolution Officer annexed a record of a case review as at 15 January 2024 which contained an assessment of obstacles to removal in Adam’s case as “ongoing JR” (understood to be a reference to ongoing judicial review).

46. The Acting Inspector of the Removal Operations Team gave evidence that, generally speaking, a Status Resolution Officer will refer a detainee to the relevant Removals Operations team in the State or Territory where a detainee is based when either:

    (a)The detainee’s prospects of detaining a visa have apparently ceased, for example if the detainee is unsuccessful in obtaining a visa and has exhausted all merits/judicial review processes; or

    (b)The detainee makes a voluntary request to be removed.

47. As described above, Adam’s application for review of the decision to revoke the otherwise mandatory cancellation of his visa had been subject of various tribunal and court proceedings and remained unresolved at the time of the hearing of this matter. Specifically, the most recent remittal by the Federal Court of Australia in November 2023 was pending determination and there was no evidence before the Court as to the programming or status of those extant proceedings.

    No third country options

48. By the 13 December 2023 lawyers’ letter, the Respondents’ lawyer also verified that as at that time no attempts had been made to remove Adam to any third party country.

49. As described above, Adam was interviewed by an Acting Border Force officer on 13 December 2023 and did not identify any third party country of which he was resident (or, indeed, any third party country where he would want to be removed).

50. The Acting Inspector of the Removal Operations Team’s evidence was that the First Respondent’s Department has a policy of not removing unlawful non-citizens to countries for which they do not have a right of residency or long-term stay. Her evidence described that the reasons for this policy are generally that the Department has no basis for thinking a third country will accept a removee without a right of residency or to long-term stay there, diplomatic tensions may otherwise arise and in the interests of the welfare of the removee.

    Adam is a refugee

51. The evidence of the Acting Inspector of the Removal Operations Team was that, at 16 January 2024, Adam had not been subject of a “protection finding” within the meaning of s.197C of the Act.

52. However, whether non-refoulement obligations are owed to Adam was not resolved at the time of hearing. The most recent evidence specific to Adam’s case was that, as at 16 January 2024, an assessment as to whether Adam may be owed international non-refoulement obligations was being conducted by the Department’s International Obligations and Complex Cases Section as part of the “Pre-Removal Clearance” process and the result was pending. An email and attachments to it confirmed that such request had been made on 15 January 2024.

53. The evidence of the historical context to Adam’s claim to be owed non-refoulement obligations included that of Adam’s lawyer who deposed on affidavit that, after arriving in Indonesia and registering with the United Nations in or around 2001 and before arriving in Australia, the United Nations High Commissioner for Refugees found Adam to be a refugee on the basis of a well-founded fear of persecution on account of his Mandean religion. It was on this basis that, in December 2005, Adam was granted a refugee visa by Australia.

1. The materials before the Court also included numerous examples of observations by Australian tribunals and administrative decision-makers to the effect that non-refoulement obligations or protection may be owed to Adam. For example, a decision of the Administrative Appeals Tribunal dated 23 August 2022 made in the course of Adam’s challenge to his visa refusal. In those reasons, the Tribunal Member concluded a risk of harm which established a non-refoulement obligation was owed to Adam which, together with Australia’s obligations in this respect, was found in that context to weigh heavily in favour of revocation of the decision to cancel Adam’s visa.

2. It was also not contentious that the First Respondent’s Department had and has a policy (procedural instruction) which the Respondents accepted as current, titled Removal from Australia – Impediments to removal. On its face, this procedural instruction contains operational policy instruction to the First Respondent’s Department and the Australian Border Force officers engaged in removal of unlawful non-citizens from Australia. Specifically, at paragraph 4.2, it provides that:

   4.2.   Non-refoulement obligations and removal processes

   Section 197C of the Act clarifies that the availability of the removal powers in s198 of the Act is independent of assessments of Australia’s non-refoulement obligations. The section stipulates that an officer’s duty to remove a person from Australia under s198 of the Act arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of that UNC.

   Section 197C of the Act is intended to assist interpretation of the Act by clarifying that the exercise of the removal power is not impacted by Australia’s non-refoulement obligations. It remains critical to continue to follow pre-removal clearance processes to ensure non-refoulement issues are identified and appropriately managed prior to removal, including through consideration of visa pathways and ministerial intervention. This means that Australia will continue to meet its non-refoulement obligations through alternate management options, that is, before a person becomes available for removal.

   DETERMINATION OF THE MATTERS IN ISSUE

3. The parties confined the issues for determination of the Court in these proceedings. There was no other question in these proceedings as to the lawfulness of Adam’s ongoing detention or that a statutory obligation exists that he be involuntarily removed as soon as reasonably practicable pursuant to s.198 of the Act.

   Where does the onus lie?

4. It may be accepted that, by his originating application with supporting affidavit filed 14 December 2023 and amended application filed 30 January 2024, Adam has done no more than establish the mere fact of his ongoing detention. Beyond this, the originating materials and amended application did not pose any particular reasons to suppose that the ongoing detention is unlawful.

5. At the initial case management proceeding on 21 December 2023, the Respondents did not contend that Adam had not adequately discharged his initial evidential burden of establishing that there was reason to suppose that his detention had ceased to be lawful by reason that it transgressed the constitutional limitation. On that occasion, the Respondents reserved their right to object on jurisdictional grounds and consented to a program which saw their evidence filed first.

6. By their materials filed 16 January 2024, the Respondents put on 2 affidavits and an outline of submissions which articulated acceptance that the evidentiary burden had shifted to them only in circumstances where:

   (a)Adam cannot presently be removed to his country of nationality because he refuses to cooperate with procuring a travel document to facilitate his removal; and

   (b)The High Court of Australia in NZYQ having determined that the authority to detain under ss.189 and 196 of the Act does not extend to a situation where there is no real prospect of the removal from Australia becoming reasonably practicable in the reasonably foreseeable future.

7. By this the Respondents were understood to have sought to limit the basis on which it were accepted that the evidentiary onus had shifted to them in the present case (as in ASF17).

8. A further affidavit was filed on behalf of the Respondents the following day (17 January 2024).

9. Adam then engaged with the Respondents’ evidence and sought to rely on it by outline of submissions on his behalf accepted for filing on 23 January 2024, to articulate the bases on which he says the Court should find that his ongoing detention has exceeded the constitutional limits outlined in NZYQ.

10. In advance of the first day of hearing: an additional affidavit was filed on behalf of the Respondents on 24 January 2024; and an additional 3 affidavits were filed on behalf of Adam on 19 and 29 January and 5 February 2024.

11. In a number of respects, Adam contended that the Respondents had and have not discharged their onus as at the time of the final hearing including by reference to the absence of relevant evidence of sufficient currency or proximity to the hearing.

12. The established authorities place high regard on the right to and preservation of personal liberty as a profound and most important of all common law rights and emphasise the unique position of a detainer to demonstrate the lawfulness of ongoing detention: for example, see McHugh Full Court at [83] and wherein it was reasoned, at [295]:

    The necessity not to define precisely or overly finely in the abstract what has to be proved by the applicant can be appreciated if one recognises that in respect of some detentions (such as in Al Masri which concerned the possible exhaustion of the Constitutional purpose of the power to detain or, as here, where the detention is based on a mental state of the detainer required to be reasonably founded) the incidents or aspects of the lawfulness of the detention are within the knowledge and power of proof of the detainer: cf Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970 to the effect that evidence is to be weighed according to the proof which it was in the power of one side to produce and the other to contradict.

13. The Court is to determine the application on what is before it at the time of the hearing.

14. I am satisfied that Adam has sufficiently called into question the lawfulness of his ongoing detention and that the burden of proof has shifted to the Respondents to prove the lawfulness of Adam’s ongoing detention to the standard outlined in NZYQ as at the time of the hearing. As indicated below in relation to each issue that the parties sought the Court to consider, there are certain matters which the Respondents were and are uniquely placed to discharge in an evidentiary sense. In those respects, I do not accept that the burden properly shifted three times. 

15. In case there were any doubt, regardless of whether it was Adam that needed to adduce evidence that put the lawfulness of his executive detention in issue, to the extent that the Respondents introduced evidence in these proceedings relevant to factual findings the Court is required to make in determining the agreed issues, then it may properly be relied upon for that purpose.

    What (if any) of the following matters are preventing Adam’s removal from Australia in the reasonably foreseeable future?

16. Each issue that the parties asked the Court to answer is addressed in turn below.

    Is the existence of a non-refoulement obligation a matter preventing Adam’s removal from Australia in the reasonably foreseeable future?

17. “Non-refoulement obligations” is a phrase defined by the Act to include non-refoulement obligations that may arise because Australia is a party to the Refugees Convention and any obligations accorded by customary international law that are of a similar kind: s.5 of the Act. Essentially, the Refugee Convention provides that a refugee can not be sent to a place where they may be persecuted.

18. The Respondents properly conceded in the present case that, because they bear the onus, the Court should not assume that non-refoulement obligations are not or might not be owed to Adam. Further, that there is no basis on the evidence to find that there has been a positive assessment that such obligations are not presently recognised. I agree.

19. The most recent evidence established that a request for an assessment of whether non-refoulement obligations are owed to Adam, by Australia, was made to the relevant section of the First Respondent’s Department on 15 January 2024 and the result was pending.

20. Prior consideration by decision-makers in other contexts, regarding whether non-refoulement or protection obligations were at those times owed to Adam, are not determinative of the result but are indicative. The evidence of this historical context establishes more than 20 years of findings in favour of Adam’s recognised status as a refugee at both international and local Australian law.

21. On the evidence before the Court, it is a likely possibility that Adam will be found to be owed non-refoulement obligations by Australia, the timing of which assessment outcome is not known. There is no basis to find on the evidence that there is any prospect of Adam’s removal to a third country or of changed circumstances in his country of origin. Accordingly, it falls to consider what the possibility of a positive finding in this respect really means in terms of the reasonable foreseeability and practicability of Adam’s removal from Australia.

22. It may be accepted that at least so long as there is no “protection finding” in respect of Adam, then the statute itself does not preclude Adam’s removal from Australia even if non-refoulement obligations are owed. Adam has not applied for a protection visa and the other statutory carve outs at s.197C do not apply.

23. However, in my view, the accepted currency and validity of the Respondents’ Removal from Australia – Impediments to removal procedural instruction which was in evidence before the Court is sufficient to find it most likely that the Respondents would not, as a matter of policy and practice, actually remove Adam from Australia in circumstances where non-refoulement obligations are assessed by Australia as owed to him. The contents of that procedural instruction are in clear enough terms to strongly indicate that identification and appropriate management of non-refoulement issues is considered critical and that Australia will continue to meet its non-refoulement obligations through alternate management options before a person becomes available for removal. There was no evidence as to the application or operation of this procedural instruction or how it would be applied to or operate in Adam’s case. That was an evidentiary burden that the Respondents were required and uniquely placed to discharge. In my view, the evidence does not enable a conclusion that this is not a matter which is presently preventing Adam’s removal from Australia in the reasonably foreseeable future.

24. For completeness, the intention behind s.197C and its interaction with Australia’s Convention obligations raise interesting and complex questions. In the present case, the outcome turns on the facts and the evidence relevant to the constitutional limit on the executive power of detention, having regard to the test set out by the High Court of Australia in NZYQ. It is not necessary or appropriate to make findings in respect of those matters that are not determinative of the issue before the Court and I decline to do so.  

    Is the fact of not holding a travel document a matter preventing Adam’s removal from Australia in the reasonably foreseeable future?

25. Adam’s most recent case review as at 15 January 2024 recorded that the barriers to his removal and necessary actions to resolve them were the absence of a travel document (which, it said, would be lodged when appropriate) as well as there being an obstacle of ongoing judicial review. There was other evidence (an affidavit of an officer and of the lawyers’ letters) that it is Adam’s involuntary removal status together with Iran’s known refusal to accept involuntary removees that is the primary reason why there is no real prospect of his removal in the reasonably foreseeable future.

26. In any event, it is accepted that without a valid travel document to permit his travel, Adam can not (or will not) be removed from Australia.

27. Adam was born in Iran but came to Australia as a refugee. It is perhaps unsurprising that he does not have any original or copies of Iranian identity documents.

28. The Respondents’ evidence was that Iranian identity documents are essential to obtain a Laissez Passer document which in turn is essential to gain entry to Iran. Adam does not have any original or copies of Iranian identity documents.

29. There was general evidence given by an officer of the process by which Adam may be able to obtain these essential documents which in each case requires approval of the Ministry of Foreign Affairs in Iran.

30. There was no evidence specific to Adam in terms of inquiries made about his identity documents or whether Iran would recognise Adam as an Iranian national or citizen or otherwise for the purposes of re-entry. In the context of the present application and on the generic state of the evidence, it is not appropriate to infer that Iran would supply Adam with a Laissez Passer even if he were to voluntarily apply.

31. The evidence did not address what other steps (if any) are required for Adam to gain entry to Iran.

32. Further, the evidence of the general process for obtaining a travel document was vague in terms of the length of time it would take to obtain such documents even if Adam were to voluntarily apply.

33. By way of legal argument, some doubt was also cast over whether it is possible for Australia to nonetheless issue a travel document even to a stateless person for the purpose of removal or deportation: s.9 Australian Passports Act 2005 (Cth) and s.6 Australian Passports Determination 2015 (Cth). The evidence did not resolve whether this provision of the legislation could or would be applied to Adam in his particular case.

34. As of the hearing, there was no updated evidence as to any progress on these matters or endeavours being made as at the time of the hearing.

35. As to the evidence about whether any voluntary removals have recently occurred from Australia to Iran - it may be accepted that some removals have occurred on a voluntary basis in relatively recent months but this was not determinative of the matter in light of the above findings. For completeness, the Supervisor’s credibility was said to be challenged when she told the Court of her direct involvement in 27 successful voluntary removals to Iran since July 2023, which evidence contradicted the Respondents’ response to interrogatories (by which the Court was informed there had been 4 successful voluntary removals from Australia to Iran in the period June 2023 to January 2024). In fairness to the witness, it was not put to her in cross-examination that she had lied or deliberately mislead the Court. Whatever is the true number of voluntary removals, the evidence is unclear. However it remains possible to conclude that there have been at least some voluntary removals from Australia to Iran in the recent period June 2023 to January 2024 and I do not otherwise find the Supervisor’s evidence to be lacking in credit.

36. On the evidence before the Court, the only available conclusion it that there is no real prospect of Adam being removed from Australia unless a travel document is issued. On the basis that the only country to which Adam could be removed is Iran, the state of the evidence is such that the Court is not able to reach the requisite state of satisfaction that Iran would recognise or allow Adam to gain entry to Iran by issuing a travel document to him in the reasonably foreseeable future.

    Resolution

37. Having regard to the above findings, and adopting the approach outlined by the High Court of Australia in NZYQ, the evidence does not enable a conclusion to be reached as to the real prospect or likelihood of Adam’s removal from Australia or the timeframe in which such removal could be achieved.

    Other matters said to be preventing Adam’s removal from Australia to Iran

38. Having regard to the above findings, it is strictly unnecessary to consider whether Adam’s removal is presently prevented by other matters such as Adam’s physical and mental condition and whether there is any policy position of the Iranian Government would not permit his involuntary return.

39. It is also not necessary to determine whether other matters which emerged from the materials and at hearing – the matter remitted to the Administrative Appeals Tribunal (an ongoing immigration matter), any mental and physical incapacity or question of his statelessness - are preventing his removal from Australia to Iran.

    If the fact that Adam will not return voluntarily to Iran is the only matter preventing his removal from Australia becoming practicable in the reasonably foreseeable future, what is the effect of the Court’s reasoning in AZC20 and, as a separate question, in ASF17?

40. Having regard to the above findings, the Court can not be satisfied that Adam’s present refusal to return voluntarily is the only matter preventing his removal from Australia and these questions are unnecessary to resolve.

    DISPOSITION

41. For the above reasons, the conclusion necessarily is that Adam is not lawfully detained and is entitled to be released immediately. I will make orders accordingly. This form of relief is not final in that it does not entitle Adam to indefinite freedom to live in the Australian community. At any point, if the prospect of his removal becomes real in the reasonably foreseeable future, he can be re-detained.

42. The substantive claim for mandatory injunction requiring Adam’s immediate release from immigration detention is rendered nugatory in circumstances where Adam is not detained and for that reason is no longer pressed and will be dismissed.

43. The parties sought to address the matter of costs as a separate question. I will therefore list the matter for case management.

44. The parties were invited to apply for but did not seek any ancillary orders. An application of this kind does not empower the Court to consider the nature of Adam’s offending or risk to the Australian community. There was no particular reason to make such ancillary order or an administrative referral in the present case.

I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.

Associate:

Dated:       28 February 2024