Aqo21 v Minister for Home Affairs
[2021] FCCA 1906
•17 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
AQO21 v Minister for Home Affairs [2021] FCCA 1906
File number(s): SYG 397 of 2021 Judgment of: JUDGE DRIVER Date of judgment: 17 August 2021 Catchwords: MIGRATION – applicant claiming to be stateless and seeking declaratory relief to secure release from detention – applicant previously found to be a citizen of Sri Lanka – refusal of leave to amend the judicial review application and dismissal of the application as filed Legislation: Migration Act 1958 (Cth), s 189
Federal Court Rules 2011 (Cth)
Cases cited: Al-Kateb v Godwin (2004) 219 CLR 562
Commonwealth of Australia v AJL20 [2021] HCA 21
MZZTC v Minister for Immigration and Border Protection & Anor [2015] FCA 1209
MZZTC v Minister for Immigration and Border Protection & Anor [2015] FCCA 2321
Number of paragraphs: 25 Date of hearing: 17 August 2021 Place: Sydney Solicitors for the Applicant: Mr D Taylor of Sydney West Legal and Migration Counsel for the Respondents: Mr P Knowles Solicitors for the Respondents: Australian Government Solicitor ORDERS
SYG 397 of 2021 BETWEEN: AQO21
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
17 AUGUST 2021
THE COURT ORDERS THAT:
1.Leave to amend the application filed on 16 March 2021 is refused.
2.The application filed on 16 March 2021 is dismissed.
3.The applicant is to pay the respondents’ costs and disbursements of and incidental to the application which, if not agreed, are to be assessed and, if necessary, taxed in accordance with the Federal Court Rules 2011 (Cth).
REASONS FOR JUDGMENT
(revised from transcript)JUDGE DRIVER:
The applicant seeks declaratory and other relief in order to bring an end to his lengthy immigration detention. The proceedings began with an application filed on 16 March 2021. The applicant concedes that that application cannot succeed in the face of the recent decision of the High Court in Commonwealth of Australia v AJL20.[1] The applicant seeks to avoid that adverse outcome through a proposed amended application provided to my chambers on 11 August 2021. The matter had been listed today for a final hearing. However, the applicant requires leave to file and rely upon the proposed amended application because it has not been filed in accordance with procedural orders timetabling the preparation for this hearing.
[1] [2021] HCA 21
The relief sought and the grounds sought to be advanced in the proposed amended application are as follows:
Final orders sought
1.Declarations that the detention of the Applicant is not authorized by the Migration Act 1958 or any other power and is therefore unlawful
2. Orders that the Defendants release the Applicant from detention forthwith.
3. Declaration that the applicant's detention is indefinite/indeterminate
4. Declaration that the applicant is dejure or defacto, stateless.
5.Declaration that it is not reasonably practicable to effect removal of the applicant to Sri Lanka or India
6. Mandamus for removal to India[2]
[2] Prayer 6 was not pressed and prayer 4 was only pressed as to de facto statelessness
7. Costs
Grounds
1.The detention of the applicant is unlawful as the Respondent is not taking steps towards removing the applicant from Australia.
i.The Respondents have not taken steps to carry into effect their obligation to remove the applicant to India pursuant to the applicant’s written request under s.198(1) of the Migration Act 1958.
ii.The Respondents have not taken steps to carry into effect their obligation to remove the applicant pursuant to s.198(6) of the Migration Act 1958.
iii.The Minister’s refusal of the s.195A intervention or s.197AB intervention in circumstances where there is no prospect of removal in the reasonably foreseeable future is punitive, or otherwise arbitrary, and not authorised by the Migration Act and the Constitution.
iv.This case challenges the “constitutional holding in Al‑Kateb, that ss 189, 196 and 198 are valid insofar as they authorise and require detention of an unlawful non-citizen even where removal is not reasonably practicable in the foreseeable future,
v.This circumstance was left open by the High Court majority judgement in AJL20 at 26. [Commonwealth of Australia v AJL20 [2021] HCA 21
2. The Applicant is entitled to declaratory relief because:
i.The Respondent has been unable to secure recognition and acceptance of the applicant as a citizen of Sri Lanka.
ii.The Respondent has been unable to secure a right of return of the applicant to either Sri Lanka or India.
iii.The refusal of the Sri Lankan authorities to issue a travel document is indicative that the applicant is defacto stateless or dejure stateless.
iv.The declaration that it is not reasonably practicable to remove the applicant to Sri Lanka or India, and that the applicant is defacto or dejure stateless, will be relevant to the re-referral by the Department and consideration of Ministerial Intervention powers including but not limited to s.48A bar through the exercise of s.48B powers, reconsideration of s.195A powers, and the consideration of exercise of s.197AB residence determination powers.
(errors in original)
Relevant facts can be found in the affidavit of Stephen John Kelly made on 10 June 2021. Mr Kelly is an employee of the Australian Border Force and his affidavit had been prepared in support of the respondents’ case. However, his affidavit was not read by counsel for the respondents. It was tendered on behalf of the applicant by his solicitor over the objections of the Minister’s counsel. I adopt part of the affidavit as relevant background for the purposes of this judgment.
The applicant arrived in Australia on 11 May 2012. He applied for a protection visa which was refused on 19 September 2012 on the basis that he did not engage Australia’s protection obligations. He sought judicial review of that decision and this application was dismissed by this Court on 12 August 2015.[3]
[3] Mr Kelly’s affidavit purports to attach Annexure SJK-3, a copy of the judgment in MZZTC v Minister for Immigration and Border Protection & Anor [2015] FCCA 2321, but the annexure appears to have been omitted
The applicant appealed that judgment and the appeal was dismissed on 5 November 2015.[4]
[4] Annexure SJK-4 to the affidavit of Mr Kelly is a copy of the judgment of the Federal Court in MZZTC v Minister for Immigration and Border Protection & Anor [2015] FCA 1209
The applicant had been granted a bridging visa on 30 August 2012 which expired on 26 September 2013. After that date he remained unlawfully in the community.[5]
[5] Annexure SJK-5 to the affidavit of Mr Kelly purports to be a copy of a screen shot from the Minister’s Department’s data base of the visa grant made in relation to the applicant but partially duplicates Annexure SJK-6
The Department of Home Affairs initiated a request for a travel document from the Sri Lankan authorities in relation to the applicant on 29 April 2016.[6]
[6] Annexure SJK-6 to the affidavit of Mr Kelly is a copy of an email from a departmental officer to the High Commission of Sri Lanka dated 29 April 2016 and attachments
The applicant was detained under s 189 of the Migration Act 1958 (Cth) (Migration Act) on 30 September 2017 after he had been located by the NSW Police following a traffic stop. A Compliance Client Interview was undertaken for the purposes of determining whether the applicant was liable to be detained under s 189(1) of the Migration Act.[7]
[7] Annexure SJK-7 to the affidavit of Mr Kelly is a copy of the Compliance Client Interview record dated 30 September 2017. He remains in immigration detention to date
On 1 October 2017, the applicant was interviewed and indicated that he wished to return to India and could not return to Sri Lanka. He advised of a home address in India and that his wife and immediate family were in India, and that he had a brother and mother in Sri Lanka. He claimed that he was born in Sri Lanka, attended school in Sri Lanka, that he was an Indian Tamil, that his family had fled Sri Lanka during the conflict and he had spent his life in a refugee camp in India. The applicant advised that he had no current travel document.[8]
[8] Annexure SJK-8 to the affidavit of Mr Kelly is a copy of the interview record dated 1 October 2017
On 1 October 2017, the applicant signed a request for removal form which indicated that his preference was to be removed to India.[9]
[9] Annexure SJK-9 to the affidavit of Mr Kelly is a copy of the request for removal form dated 1 October 2017 in relation to the applicant
The applicant was referred for removal action on 8 October 2017.
On 9 November 2017, the Australian Border Force wrote to the High Commission of Sri Lanka seeking assistance in obtaining a travel document for the applicant.[10]
[10] Annexure SJK-10 to the affidavit of Mr Kelly is a copy of a letter from the Australian Border Force to the High Commission of Sri Lanka dated 9 November 2017
On 15 December 2017, the applicant was interviewed by representatives of the High Commission of Sri Lanka. There is no outcome noted in the Departmental files in relation to this meeting.
On 15 February 2019, Australian Border Force sent a letter to the High Commission of Sri Lanka seeking further advice in relation to the issuing of emergency travel documents to Sri Lankan nationals who have previously resided in India. This was in the context of a number of cases, including the applicant’s case, where there had been outstanding requests for such travel documents.[11]
[11] Annexure “SJK-11” to the affidavit of Mr Kelly is a copy of a letter from the Australian Border Force to the High Commission of Sri Lanka dated 15 February 2019
On 13 March 2019, there was a meeting between officers of Australian Border Force, including Mr Kelly, and the High Commission of Sri Lanka regarding this caseload. Mr Kelly recalls being advised by the Sri Lankan authorities that they could not progress any requests for emergency travel documents without necessary identity documents being provided to prove Sri Lankan citizenship.
The applicant’s case manager spoke to the applicant on 14 March 2019 to see if the applicant could provide any further identity documents. The applicant advised that he could not.
Mr Kelly was aware that the Sri Lankan authorities advised the Department of Home Affairs that a birth certificate would not be sufficient to verify that a person is a Sri Lankan citizen and that they preferred to have a copy of a Sri Lankan passport or National Identity Card. Due to this advice, Mr Kelly initiated enquiries on 15 March 2019, via the Australian High Commission in Sri Lanka, to verify if the applicant, along with a number of other similar cases, had held either a Sri Lankan passport or Sri Lankan National Identity Card.
The Department of Home Affairs received a report dated 15 March 2019 on 29 March 2019 from the Sri Lankan Department of Immigration and Emigration sent to the Australian High Commission confirming there were no passport details for the applicant.[12]
[12] Annexure SJK-12 to the affidavit of Mr Kelly with redactions made to protect the identity of other persons
By letter dated 29 March 2019,[13] the Australian High Commission in Sri Lanka received confirmation from the Commissioner General of Registration of Persons, Sri Lanka, that the applicant had never been issued with a Sri Lankan National Identity Card.
[13] Annexure SJK-13 to the affidavit of Mr Kelly with redactions made to protect the identity of other persons
I note in passing that there are issues with some of the annexures to Mr Kelly’s affidavit. Relevantly, two annexures referred to in the affidavit are not attached to the affidavit, they being SJK-2A and SJK-3. The latter is a decision of this Court, which is a matter of public record, which I have read. The former is a recent communication from the Sri Lankan High Commission concerning the applicant, the contents of which I am unaware.
The applicant also relies upon his short affidavit filed with his application. The respondents rely upon the affidavit of Gurinder Singh made on 26 May 2021 to support the contention of the lawfulness of the applicant’s detention, were that to be necessary. The result is it is not necessary as the applicant does not dispute the lawfulness of that detention under general principles. Rather, the essence of the applicant’s case as set out in the proposed amended application, augmented by oral submissions, is that his detention should be brought to an end because it is indefinite and he cannot be returned to Sri Lanka or India. Further, he claims to be a de facto stateless person having regard to the failure of the respondents to arrange his removal either to Sri Lanka or to India. Although the proposed amended application took issue with the lawfulness or adequacy of the respondents’ steps to attempt to remove the applicant from Australia, that assertion was withdrawn. Rather, the applicant contends that the decision of the High Court in Al-Kateb v Godwin[14] should be revisited having regard to his asserted de facto statelessness. That of course is not a contention that could succeed either in this Court or in the Federal Court given that the High Court’s decision binds both Courts.
[14] (2004) 219 CLR 562
Having regard to the oral submissions of the parties, I have come to the view that leave to amend should be refused. First, although the applicant in the proposed amended application contended that he was de jure as well as de facto stateless, as I pointed out to the representatives, the applicant has been found to be a Sri Lankan citizen both by the Refugee Review Tribunal (Tribunal) and this Court in MZZTC at [1]. The applicant has not before now put in issue those findings. As to his asserted de facto statelessness, it depends upon the inability of the Australian authorities at this point to arrange for his return to Sri Lanka. In short, the Sri Lankan authorities, as well as having objections to the applicant’s return during the currency of the COVID-19 pandemic, are not satisfied with the documentation that has been able to be provided. That documentation comprises a birth certificate in Sri Lanka which in itself has not proved sufficient. The Sri Lankan authorities have pointed to the absence of a passport or passport record or a National Identity Card. It appears that the applicant left Sri Lanka at a young age and did not at that time hold a National Identity Card. I am unaware of the specific facts relating to any passport. It may be that he has not held one. The applicant has spent time in India as an asylum seeker before travelling to Australia.
I have decided that leave should be refused, taking into account not only the fact that this Court is bound by Al-Kateb but also that as the vehicle to seek a revisitation of that decision, this case does not present itself as a strong vehicle. The applicant’s family have not been cooperative with the Australian authorities in securing further documentation. That is apparent from [24] of Mr Kelly’s affidavit. I have no reason to believe that the applicant cannot apply for a National Identity Card now, although it may take some time. While one can be sympathetic with the passage of time which has passed since the applicant was taken into immigration detention most recently, the lawfulness of that detention is no longer disputed and the factual basis for a challenge to the High Court’s decision in Al-Kateb is dubious.
I conclude therefore that the appropriate orders are to refuse leave for the applicant to file and rely upon the proposed amended application and to order that the application filed on 16 March 2021 be dismissed.
In consequence of the refusal of leave for the amended application and the dismissal of the application, the Minister seeks an order for costs. The Minister’s solicitor and own client costs appear to be in the region of $10,000 and in those circumstances, the Minister seeks a simple costs order. The applicant submitted that costs should be in accordance with the Court scale. Having regard to the unusual features of this case, I accept that costs in excess of the Court’s scale are justified, but the Court is not in a position to make a reliable assessment of those costs. I will in the circumstances order that the applicant is to pay the costs and disbursements of and incidental to the application which, if not agreed, are to be assessed and, if necessary, taxed in accordance with the Federal Court Rules 2011 (Cth).
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 26 August 2021
SCHEDULE OF PARTIES
SYG 397 of 2021 Respondents
Fourth Respondent:
SECRETARY, DEPARTMENT OF HOME AFFAIRS
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