ASF17 v Commonwealth of Australia
[2024] HCATrans 26
[2024] HCATrans 026
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P7 of 2024
B e t w e e n -
ASF17
Appellant
and
COMMONWEALTH OF AUSTRALIA
Respondent
GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 17 APRIL 2024, AT 10.03 AM
Copyright in the High Court of Australia
MS L.G. DE FERRARI, SC: May it please the Court, I appear with MR M.W. GUO and MR C.J. FITZGERALD for the appellant. (instructed by Zarifi Lawyers)
MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia: May it please your Honours, I appear with MR B.D. KAPLAN and MS N.A. WOOTTON for the respondent. (instructed by Australian Government Solicitor)
MR C.L. LENEHAN, SC: May it please the Court, I appear with MR T.M. WOOD and MR J.R. MURPHY for AZC20, seeking leave to intervene or appear as amicus curiae. (instructed by Human Rights Law Centre)
GAGELER CJ: Mr Lenehan, the Court has considered your written submissions for intervention together with those of the parties. Leave to intervene is granted. We will receive your written submissions. You also have leave to make oral submissions. The time for your oral submissions will be limited to 20 minutes plus any further time that Ms De Ferrari may choose to concede to you from her own allocation of two hours.
MR LENEHAN: If it please the Court.
GAGELER CJ: Ms De Ferrari.
MS DE FERRARI: Your Honours, I think I need to lower the lectern. Your Honours, may I commence by indicating that in our view the answers in this case are provided by this Court’s consideration of the issues in NZYQ, AJL20 and Lim, and is a matter of the applications of principles from those decisions to the particular facts of this case. We also refer to this Court’s recent decision in Jones for elucidation of the same principles that we say are to be applied. They were exposed in a different set of circumstances, but they are the same principles.
I will need to say something about two other decisions, that is, Plaintiff M47 and Re Woolley, but can I say now that the basic point we made about each of those two cases is that first, they were decided on their facts; two, they were decided in light of Al‑Kateb being a statement of the law; and, certainly in the case of Re Woolley, they were decided on the Act as it then stood and it has changed in important respects. We refer in particular to the insertions of provisions such as 48B, which allows the making of another application for a protection visa at any time – non‑compellable, but it can happen at any time; section 195A, which allows for the grant of any visa on any conditions at any time by a non‑compellable power of the Minister; and section 197AB, which allows for the individual without a visa to actually be in the community under a residence determination.
Now, that is considered “immigration detention” for the purposes of either application, the application of other provisions of the law, but he or she is in the community. In respect of those two cases, we say your Honours will not derive much assistance from them. As regards to the principal cases – that is, NZYQ, AJL20, and Lim – we have addressed them in detail in our written submissions and also in our outline. I do not really propose to go to them in great detail unless specific questions arise. What we do say is that, certainly by the time that the application for habeas corpus was heard in the Federal Court, the constitutional limitation on the power to detain – which is found in sections 189 and 196 of the Act – had been breached.
What I do wish to spend some time on, your Honours, is taking the Court to some of the evidence in this case. Your Honours know that this case has come without the benefit of a decision of an intermediate court, so there has no been that first analysis and succinct distillation of the evidence and what we and the Commonwealth say about it that your Honours would otherwise have from a Full Federal Court decision.
GAGELER CJ: Do you have a clear written statement of the facts as you would have them found?
MS DE FERRARI: The facts as I would have them found – does your Honour – shall I elucidate them now?
GAGELER CJ: You want to take us to the evidence – the evidence is the basis for finding of facts.
MS DE FERRARI: Yes.
GAGELER CJ: The primary judge has found facts. You have other facts that are set out in your written submissions. Is that the compass that we are concerned with here?
MS DE FERRARI: Yes, your Honour. Can I put it this way. There is an obvious discord, and there has always been, between the parties. The Commonwealth was propounding: we want to remove you to Iran; we understand our duty to remove you to Iran. I want to take your Honours to the evidence about that, because it was just the evidence of the person responsible in the WA Removals section, and he just said, I always follow this policy, it has never been escalated, that is the policy – that is policy, so I never looked anywhere else but Iran. That is the evidence.
The Commonwealth says, well, we want to remove you to Iran. He says, I do not want to go to Iran because I have a problem there. So, the first divergence is the Commonwealth effectively interprets the duty to remove as removing to Iran, because as a matter of policy that is all they ever looked at. We say, no, you have a duty to remove me from Australia and, (a), I am not required to assist you in removal from Australia, but, (b), if you really want to remove me to anywhere else but Iran and you need assistance, I will give it to you. So, there is that distinction.
I think his Honour below fully accepted the way the Commonwealth both framed the case and argued the case, and so they sort of framed it by saying, well, the only place where this person can be removed is Iran. But, your Honours, the point that we wish to make, and I want to elaborate in some detail, is we got to this point – and it is in our written submissions, so I am going a bit out of order – we got to this point because the Commonwealth had conceded that we had shown probable cause. So, the onus was on them to show that the constitutional limitation had been reached, and the only way they sought to do it is, as a matter of policy, all we ever do is look at Iran and all we ever do is, every three or six months, come and ask you if you have changed your mind. We say that does not discharge the burden – legal or evidentiary.
Can I develop that in a little more detail as I go along. Insofar as the statements by your Honours sort of saying the only country that he can be moved to is Iran, that is only because the Commonwealth straitjacketed itself and said, we only ever looked at Iran. So, that is the main, fundamental point I wish to make. If I can restate it, the way the Commonwealth framed the argument before the judge was really to almost frame it as a pure legal question. So, in the view of the Commonwealth – and as I say, they bore the legal and evidentiary onus – the only relevant facts were: he is Iranian, Iran does not accept “involuntary returnees”, he has consistently stated he is not going to assist us by interacting with the Iranian authorities in Australia, and – although it was never quite put this way – in his interactions he would have had to lie and say, yes, I am a voluntary returnee, because he does not want to return because of his fear, and I will come to that.
Those were the facts. Those were the universal facts, so far as the Commonwealth was concerned, and against those facts, they effectively ran an almost pure legal proposition, a categorical one that they say is capable of applying to everyone who “does not assist” – and I think there is a bit of a shift now in the written outline, but below, they put it as a categorical proposition capable of applying to anyone who, as I said, “does not assist” that the constitutional limitation is not reached. It is never reached.
If we put you in detention on 1 January 2015 and on 1 February 2015, it became clear to us that you are not going to assist us with going to country X, and country X is the only country that, by policy, we are going to look at, then that is it. The constitutional limitation is not reached, and it is never going to be reached, because we know that you are not going to change your mind. That has to be the logical conclusion of the argument that was put below, and that is why in the submissions in reply we tried to frame it by saying exactly what is the categorical proposition, and what facts is it looking at, and from what point in time. I will take your Honours to those facts in some detail.
We accept that by the time the matter was before his Honour, the question was: should the habeas go because of what the situation is today? We accept that. Because his Honour found against us, his Honour did not have to do more about the historical work of seeing when it was that the constitutional limitation had ceased to apply, but that is what we were urging to his Honour. What we were urging is this – and I know the intervener makes that point, and says they make it more expressly than us – but what we always urged before his Honour, and are urging here, is that following NZYQ, the question in each case must be – can be nothing other than a question of mixed fact and constitutional law to determine at what point, historically, the constitutional limitation has been reached.
EDELMAN J: Which aspect of the constitutional limitation do you rely upon? As you are aware, there was a difference in approach within NZYQ. On one approach, the purpose of detention was itself illegitimate, where the detention did not have real prospect of removing a person from Australia. On my approach, that purpose was legitimate, but provided it was reasonably capable of being seen as appropriate and adapted to the circumstances. Do you rely upon one or both approaches, and how does that adapt to your facts?
MS DE FERRARI: Yes. Thank you, your Honour. Can I say this. For the purpose of this case, we do not think it matters, because we are going to be saying why it was never necessary in the approach that your Honour took – it never reached the status of being necessary to keep our client in detention. So, we do not think it matters, and I do not think it needs to be resolved by this Court, but I will be confining, really, the bulk of my submissions to the way in which a majority of the Court expressed the test, which we say is nothing other than Lim. But we do say that Lim is a form of ‑ ‑ ‑
EDELMAN J: So, it is an illegitimate purpose submission?
MS DE FERRARI: Yes. But we do say Lim is a form of proportionality. Now, it becomes a question of, really, using words – and perhaps slightly semantic, but both – we focus on two things. One is the reasonableness aspect, and we say that must mean it is an objective test. We use that – and I will come to it – by saying, if it is an objective test and the statute talks about removal from Australia, it cannot be at the subjective choice of the Commonwealth to only look at one country. That cannot be right. We also focus on necessity, and we say, just looking at the Act, and given that the facts – and I will come to that – were fixed from about November 2018 – never changed – it was never necessary to keep our client in detention for the purpose of going to ask him every six months whether he changed his mind.
GLEESON J: Ms De Ferrari, does not the Commonwealth’s approach narrow the issue for you? We can proceed on the basis that there is no reasonable prospect of returning your client to a country other than Iran.
MS DE FERRARI: The answer to that is yes, but only because the Commonwealth straitjacketed itself. The reason why I am hesitating is because they use the way in which the Commonwealth straitjacketed itself by only looking at Iran and then turning the table on my client so to say, you are being very unreasonable by not helping us to go to Iran. That is the problem.
They have made a choice and they say – for the purpose of habeas, of course it had to count against them – that must mean you never tried anywhere else since November 2018; it must mean there is nowhere else possible. But they turn around and sort of say, because of that, it is completely irrelevant for you to say, if we try to explore Five Eyes possibilities for example – and your Honours know in NZYQ, last minute attempt, let us go to our four partners in the Five Eyes coalition and see what they say. Had they tried that exceptional approach, the evidence is my client has said, sure, take me there. The problem I have with the way the Commonwealth tried to run the case and the problem with accepting, fully, that is entirely on our side, is that they have used it against my client to say, we only look at that, and you are not helping us with that.
BEECH-JONES J: Sorry, is your point: by focusing only one country, then the focus of the inquiry about cooperation became that one country, which meant that my client was then to be characterised as “uncooperative” because we were only looking at Iran, whereas if we were looking at a broader range of countries, a different characterisation might have been open in the sense that he might have been willing to go to Canada, or somewhere else? Is that right?
MS DE FERRARI: Precisely.
BEECH-JONES J: I understand.
MS DE FERRARI: Your Honour, that was his evidence, and as we say in our written submissions, there was minimal cross‑examination on it. It is in the transcript – and I can find it – but the cross‑examination was two‑fold, really, because it said, really, even take me back to where you picked me up in the high seas. The cross‑examination was, you do not even know what the high seas are, and he gave an answer explaining that he did know. Then he said, even take me to Gaza. The cross‑examination is, you cannot possibly want to go to Gaza, and he said, yes, I would have a better chance there of not being killed than if you returned me to Iran. So, that was the extent of the cross‑examination. He was willing to go anywhere else. Does that answer your Honour’s question?
GORDON J: Can I ask you about paragraph 131 of Justice Colvin’s judgment on that question?
MS DE FERRARI: Yes, your Honour. That is the finding about:
there is no country other than Iran to which it might be possible to –
remove the applicant. Is that it?
GORDON J: Yes.
MS DE FERRARI: Yes. It is the same debate. That is because his Honour understood it in the way the Commonwealth was saying – that is, as a matter of policy, we only looked at that country and, therefore, that is the only country. I need to take your Honours to how, really ‑ ‑ ‑
GAGELER CJ: Do you challenge that finding?
MS DE FERRARI: There was no other country that was ever explored, because that is the way in which the Commonwealth sought to straitjacket its case. In a real‑world sense – and knowing what your Honours know about a number of cases that came to this case, including M47, including NZYQ – that cannot be right, because the Commonwealth continuously makes approaches to all sorts of other countries.
GLEESON J: But, Ms De Ferrari, the effect of that finding is that there is no justification for detaining your client for the possibility of removal to any country other than Iran.
MS DE FERRARI: Correct. On that finding, and subject to putting fault on my client because he was not cooperating, he should have been released. That is what I was trying to say. The judge accepted the way the Commonwealth framed it. The Commonwealth said, there is only one country. And so, for him to say, I would be willing to go to anywhere else, does not actually disprove his singular focus on wanting to remain in Australia to make money – we say, why not – and does not really assist in any way, because, as the principal case of the Commonwealth – and your Honours will see the principal case of the Commonwealth set out in paragraphs 8 and 10 of the judgment below, and I think it is maintained here – the principal case is, if we only identify a country and you do not help us with that country, that is the end of the matter. The time for completion of the duty never arrives.
GORDON J: So, you have two arguments. You have the argument you have just put about the failure to consider another country, and then, if you are wrong about that, the second argument is that the Commonwealth’s propounded proposition is too encompassing – or, to adopt the language of the intervener, too “amorphous”.
MS DE FERRARI: Correct.
GORDON J: And in relation to that second argument, what is the better question that should be asked?
MS DE FERRARI: Assume that the Commonwealth had really looked at 197 other United Nations countries – I am not sure that there are 198 in total – everything else but Iran, and it was clear there was nowhere else he could go. Then you sort of say, well, you are only going to Iran. Then he is saying, there is a reason why I am not going to help you take me to Iran. I am not going to the Iranian authorities in Canberra and say I am a voluntary returnee. I am not going to do that. So, the question then becomes, was that a good reason or not? Is the applicant somehow, under the Act, obliged to assist the Commonwealth? And we say, where does that come from?
GORDON J: To put that to one side for the moment, let us just take the question you propound: is there a good reason? That is an objective inquiry?
MS DE FERRARI: Sorry, I did not understand your Honour’s question.
GORDON J: You propounded the test, the question which then should be asked is: does the person who is refusing to consent – which is the case we have here – have a good reason for refusing to consent?
MS DE FERRARI: Yes. Your Honour understands, our principal proposition is that our applicant does not have to assist in any way.
GORDON J: I do, I know.
MS DE FERRARI: But the second proposition is, yes, is there a good reason? And that is not answered ‑ ‑ ‑
GORDON J: The question I then asked – just taking this slowly, sorry Ms De Ferrari – is that an objective inquiry? That is, the person who is refusing consent must put forward material ‑ ‑ ‑
MS DE FERRARI: That has to be tested in a court, about the validity of that, of course. It is not an objective inquiry in the sense of you only look at factors extraneous to the person, because – we gave a bundle of cases to your Honours that deal with the proposition whether there is such a thing as a three‑walled detention, either under habeas or under the tort of wrongful imprisonment, and the cases make clear – I do not think I need to take that – it is very much a factual analysis.
You have to look at, if the defendant – and the onus is always on the defendant, the gaoler – says that that was not detention, it was just three walls, there is a way of egress – and the onus is on them to show that – then the question becomes: (a), is it really a way of egressing, and (b), even if there is, was it reasonable or unreasonable for the person not to avail themselves of that way of egress?
That is perhaps made clearest in the judgment of the Court of Appeal in McFadzean, where there is a long analysis about – your Honour, I was not proposing to do that, but may I perhaps do that?
GAGELER CJ: What are we doing, Ms De Ferrari?
MS DE FERRARI: This is a case that we have sent to the Court, and it is not in the joint bundle of authorities – and I understand that we are to hand it up, and we have copies – and the case is McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250. It is a decision of the Victorian Court of Appeal, and the bench was constituted by her Honour Chief Justice Warren, and Justices of Appeal Nettle and Redlich. It is the joint reasons of the court.
GAGELER CJ: Why are we looking at it?
MS DE FERRARI: Just for the proposition that if what the defendant puts forward is, that is not detention, that is three‑walled – which is effectively what the Commonwealth is saying here – the inquiry becomes, in a sense, objective, but founded on the circumstances of the individual about, (a), is it really three‑walled, is there really a way of egress, and (b), was it unreasonable for the individual in those particular circumstances of the individual not to use that way of egress? That is the point ‑ ‑ ‑
BEECH-JONES J: Ms De Ferrari, I understand this case to be to the effect of, even if there is a theoretical means of escaping detention, that you are still being detained – the effect of it, so that you could get habeas corpus or sue for wrongful imprisonment. I understand the Commonwealth’s point to be not that it is not detention, but it is not punitive detention. That is what I understand their point – I may be wrong about that.
MS DE FERRARI: Yes, there is a confusing reference to be being three‑walled, and they do say it is not punitive, but the argument why it is not punitive appears to be because they say the only roadblock is you being unwilling to cooperate, and we do not care why you are unwilling to cooperate. There is a way out, you should take it. Because there is a way out, the duty to remove you has never – well, I do not know how they put it. I think they say, well, we are never going to run short of time in respect of the duty to remove you.
STEWARD J: Ms De Ferrari, are we going to get copies of McFadzean? Mr Guo has them ready, I think.
MS DE FERRARI: Yes, I apologise, your Honour. It is true what your Honour Justice Beech‑Jones had put to me about this case, and all the other cases as well, about whether it is reasonable for you to have to jump from the 10th floor of an apartment block, but if your Honours go, in particular, to paragraph 43, that is the more precise point I was trying to make, and that is going, I think, to your Honour Justice Gordon’s questions about objective and subjective. Their Honours say effectively there is a reasonable means of egress, but, conversely, if adjudged objectively that means of egress is not reasonable, then it is false imprisonment.
EDELMAN J: This is a completely different point. This is to say you are not detaining someone if they can walk away. No one is suggesting, as I understand it, that the appellant is not being detained.
MS DE FERRARI: Well, the point is this, your Honour. The facts show that the situation has been fixed since November 2018 that – it is one of three things, and that was put to him repeatedly by his case worker. The Commonwealth changes its mind. Presumably that means give you a visa under 195A or something else, or could have been by looking at some other country. The Commonwealth changes its mind, Iran changes its policy, so the Commonwealth changes its policy, Iran changes its policy, or you change your mind. That was always all that was put to him.
That was that, from November 2018. So, they are saying the detention is not punitive, and the question is, well, why not, on either your Honour’s approach in NZYQ or on the plurality’s approach. Because, there is clearly nothing but the merest fanciful prospect of any of those three things happening. There has never been anything but that. How can that not be punitive when it does not have any end point at all? Because, it has to be one of those three things, and they never changed, and there has never been any prospect that any of those three things will change.
GAGELER CJ: Ms De Ferrari, where are we up to in your outline?
MS DE FERRARI: Yes. I think I am up to paragraph 2, and I am jumping around, but I have said what I wanted to say about that. If I can move to paragraph 3, and, again, I have touched upon it in a sense, but it is this: it is a historical inquiry. Yes, you can just look at whether you grant habeas on that point in time, but it always must be an historical inquiry about what has happened, and here it would be about what has happened because, putting it in terms of other cases, the past is the surer prediction about what the future is going to be, as well. So, looking at what has happened, that is what has happened.
It has only been one of those three things, and there has never been any suggestion that any of those three things would shift. We say that the fact that it has to be a factual inquiry in a mixed question of fact and constitutional law, it is what comes out by NZYQ because your Honours did not just grant habeas on the day. I mean, that would have been sufficient to dispose of the case in one sense – I appreciate it was a special case that had questions – but your Honours looked in the past as well. Had the constitutional limitation – had the detention become punitive as of 30 May? It had, and nothing had changed since then. The same thing is here. One looks back to November 2018 and nothing has changed since then, and nothing will change.
Can I, perhaps, move to paragraph 4, which is also about the fact that nothing has ever changed. I do want to say that it is inherent in the submission that I have already made, and this question of mixed fact and law, and the fact that the Minister has certain powers to grant visas. The delegate has a power to grant a bridging visa under section 93 without any application, and the reason – your Honours will hear from my learned friends – such a visa called a bridging visa pending return, but it is inherent in that that there can be an ebb and flow about the analysis. It might be that someone, like my client, was in fact unlawfully detained between November 2018 and, say, January 2022, and then the Minister lifts the bar in section 48B, he is allowed to make another application, and then the purpose of detention, if the Minister still detains him, shifts. It shifts to assessing that application.
So, it might be that there has been a period of unlawful detention, but at that point in time habeus would no longer go. But that is inherent. That must always be the case. There has to be this detailed factual analysis, and I think that was really the spectre that my learned friend the Solicitor‑General raised before your Honours in NZYQ; we were going to have to be doing this kind of detailed historical analysis in every case.
Now, can I say how we put it in that context. The facts have never changed. I wanted to do it by applying – your Honour Justice Edelman, I will not for the present purposes go to your Honour’s test – what the rest of the Court said at NZYQ [55]. Now, that is NZYQ (2023) 97 ALJR 1005, and it is also tab 22 in volume 5 of the joint bundle of authorities. I am looking at paragraph [55], and we say this. We worded it this way. The question must, as a matter of logic, be this: had the “constitutionally permissible period of executive detention” of the appellant who had by then failed in his application for a protection visa come to an end, because there was then as of, let us say 1 January 2019, no real prospect of his removal from Australia “becoming practicable in the reasonably foreseeable future”? And we say the answer must be yes. Your Honours, after January 2019 there was no removal for four years.
STEWARD J: Ms De Ferrari, you mentioned earlier you were going to take us to some evidence. I wondered ‑ ‑ ‑
MS DE FERRARI: Yes, your Honour. I am moving to that right now. Can I start with the affidavit of Mr Jones.
GAGELER CJ: Ms De Ferrari, as you do this, can you please be very specific about the purpose of going to the evidence?
MS DE FERRARI: Yes, your Honour. What I establish from that evidence is that what transpired in this case is that decision‑making in terms of effecting his removal from Australia – we say removal from Australia, never went anywhere outside of the unit referred to as Western Australia Removals Operations. It never escalated anywhere else. And Mr Jones said when I put to him, what about other countries? People have gone to the United States, why could he have not been removed to the United States? He said, I have no idea, I only follow policy, and policy tells me to only go to Iran. Your Honours will see that policy document ‑ ‑ ‑
JAGOT J: Sorry, how is that relevant to your ultimate case, though? I do not follow. You have already said that there were only three possibilities: your client changes his mind, Iran changes its policy, or the Commonwealth changes its policy. I thought you were relying on those not happening.
MS DE FERRARI: Yes, only because it is then put against us that in the circumstances where an individual at the level of director of Western Australian removals only ever follows policy. And I stress, that is just subjective choice of the Executive as to how that detention is going to be able to end.
JAGOT J: I am still not following how it is relevant, because you are actually relying on that as part ‑ ‑ ‑
MS DE FERRARI: The point I am going to make is that you cannot then turn that choice against us in saying, therefore you have a duty to help us go to Iran. That is the only point I am making.
JAGOT J: Okay.
MS DE FERRARI: You cannot possibly say, you have a duty, this is the only reasonable way of egress, and you are impeding us carrying out the duty, and the fault is only on you, and therefore detention is not punitive. That cannot be right.
GORDON J: Let us assume that those three possibilities that you identify remain the position which you rely upon, as you have said in answer to Justice Jagot, and we understand that in your proposition you cannot turn a third of those choices – the Commonwealth policy – against your client. Do we need anything more than that?
MS DE FERRARI: No, your Honours. There is also – your Honours will find there the acknowledgement that, yes, things have never changed. This is from the person who was either in charge or had looked at all the records. All the records were always only within Western Australian removals. It was never escalated. Things never changed since October 2018. He knew that there was nothing at all that suggested that the appellant might change his view, but he then qualified that by saying, human beings change their minds. Because I put to him, this has been the situation since August 2018, what is the possible purpose of you going every six months and asking whether he has changed his mind? And the answer he gave is, that is because we are told by the Ombudsman that we have to do that.
The other point that we do want to make is that there is a finding by his Honour also used against us – and I deal with this later on in the final paragraphs about why he has not been removed – at paragraphs 116 and 117 of his Honour’s reasons. What his Honour did there, on the basis of all the evidence which are referred to in our submissions – it is largely in the affidavit and the exhibits to Mr Jones’ document – we have given all the reference – but also on the basis of an aide‑memoire that we prepared which summarised the effect of the evidence that was produced on a notice to produce – these were all the records kept by Ms Bland.
Your Honours have the affidavit of Ms Bland. Ms Bland was the status person – the person, effectively, that had to do the job every three or six months to satisfy herself that, yes, he continued to remain not caught by Love and Thoms; yes, he continued not to have a visa, and so on. But part of his job was – and he said that at great length in evidence – in a sense, to look after the welfare of the applicant by pursuing possibilities for ministerial intervention. The point we make is that where his Honour says:
Plainly the pursuit of those requests shows that the applicant –
was trying to remain in Australia, that is completely wrong. There is no evidence at all that he had ever made any request for ministerial intervention. They had all been made on his behalf by officers of the Commonwealth. Why? They had been made on his behalf because since at least 2021, his case was recognised by everybody as being intractable. Your Honours, that reference – and I will just give that reference on the evidence – is part of the affidavit of Mr Jones ‑ ‑ ‑
EDELMAN J: So, you are challenging this finding of fact as well?
MS DE FERRARI: Yes. And we do that as part of it being glaringly improbable that he had any other reason, because it is wrapped up in that. It is wrapped up in that. It is glaringly improbable that you have this fear of returning to Iran – I will come to that – yes, you are bisexual; yes, you have sex with men, but that is glaringly improbable. Why? Because it is all also consistent with your singular purpose always having been to just make money here in Australia – and he uses, as part of that, the finding that he was pursuing ministerial intervention, but he never was. They were all done on his behalf.
The fact of being intractable, your Honours would see it in the appellant’s book of further materials at page 54. That is an exhibit to Mr Jones’ affidavit. If your Honours have that, and your Honours look from the entry at about 30 December 201 and then ‑ ‑ ‑
BEECH-JONES J: I am sorry, what page, 54?
MS DE FERRARI: Page 54 of the appellant’s book of further materials, your Honour.
BEECH-JONES J: Yes, thank you.
MS DE FERRARI: It should be exhibit EJ‑6. Mr Jones explained that this actually was a document that was manually produced by someone in the Department putting in a Word document the things that they have extracted from other electronic records of the Department. That was because there was some limitation in printing or the number of characters that could be displayed. Your Honours will see, it starts from December 2019, there is “no update”. He is an:
INVOL IRANIAN –
Then, six months later, they find again, and so on. Your Honours will see that on 31 August 2021, it said – I withdraw that. I should note the entry on 2 March 2021. It said:
Detainee stated that he doesnt wish to return to Iran. He would like to lodge a visa app or MI –
that is a ministerial intervention:
but stated I cant find a lawyer –
So, he would have liked to do it, but he did not have a lawyer. He did not know how to do it. They were all done for him. Then, your Honours, it says the MI did not go any further. Then, on 31 August 2021, the:
case escalated to National Removals Canberra as intractable –
All that meant is to – I ask Mr Jones, does that mean that National Removals started to have an involvement, and his answer was, no, we just signalled it to them, that is all. Then, because we had signalled it to them, it got caught up – your Honour will see that at 24 June 2022 – in this Operation ZUFOLO, which was basically an inquiry to again go to every intractable case and ask them, do you have relatives anywhere, in any third country that you can go to? Your Honours would see that exercise – and Mr Jones said, we did it, we did the exercise. The exercise is at pages 68 ‑ ‑ ‑
GAGELER CJ: What is all this going to, Ms De Ferrari? I am just not understanding.
MS DE FERRARI: He never made any applications for ministerial consideration to be allowed to be in the Australian community. To the extent that his Honour used that against him, that finding is wrong.
GAGELER CJ: So, you are really challenging the primary judge’s credit finding that follows from the passage in paragraph 117.
MS DE FERRARI: That is eventually what I am getting to. But I am saying that the factual finding, partly upon which it was made, is wrong, because he never actually did. It was always someone in the position of Ms Bland.
Finally, the last introductory paragraph – and I know I am using a lot of time, but we do make the point that there is nothing in the statute, ever. There has never been anything in the statute that put an obligation on my client to assist the Commonwealth in removal from Australia to anywhere.
GAGELER CJ: That is common ground.
MS DE FERRARI: Yes. That is the question, then. If that being so, and that being the factual circumstances that I have described – including the straitjacketed position I said the Commonwealth has put themselves in – on what basis in the statute, or as a constitutional principle, does the Commonwealth make the submission that his detention was never punitive since October 2018, and never will be punitive? There has to be something in the Act, or there has to be something that is derivable from the principles which – for present purpose, it is either Lim or it is the more proportionality analysis that your Honour Justice Edelman embraced in NZYQ. We say that it just is not there.
I can skip on paragraphs 7 and 8 of our outline, save to stress again – I have touched upon proportionality – that your Honours, apart from Justice Edelman, in NZYQ at [61], have made it clear that a “mere un‑foreclosed possibility” is insufficient.
EDELMAN J: I was party to all of those paragraphs.
MS DE FERRARI: Yes. I was thinking about that when I said that, and that was wrong. I withdraw that, your Honour. We say, look at all the facts and find where, at any point in time since November 2018, there has ever been anything more than the hope that he would change his mind. Anything more than a “mere un‑foreclosed possibility” – Mr Jones put it that, yes, I know nothing in the evidence shows that he is not going to change his mind, but human beings are capable of changing their minds. That is the test.
That test is not to start from the assertion – which is what the Commonwealth does say – he is not cooperating, therefore, it is not punitive. The test is to go through the tests, and sort of say, there has to more than this mere un‑foreclosed possibility, otherwise it is punitive. We do say – and again, it is the same point, to some extent – yes, we all agree it is an issue of characterisation in the context of this mixed question of fact and law, but it is clear that what is meant by characterisation is a means‑and‑ends analysis.
That is another way of putting it, but detaining on the possibility – detaining on the mere hope – that you are going to change your mind and become, or at least present yourself to the Iranian authorities and pretend that you are now a “voluntary returnee”, even though you are not, that is not a means and ends analysis as to why you are keeping him in detention since October 2018. There are other ways in which you can try and make him change his mind, because of that hope. For example, give him a bridging visa pending return. Who knows? Things are moving very fast in the Middle East; the Iranian regime might topple in six months. Who knows?
We say if you do the means and ends analysis and you apply the test from Lim, and in the two aspects, in particular on the necessity aspect – that is really the same as a proportionality – it cannot possibly be necessary where the Act allows for this sideways in which you are not going to be having a fully permanent visa, but you are not going to be deprived of your liberty. For example, you are going to be under a residency determination while we explore other options or while we wait for you to change your mind. When the Act allows that, it cannot possibly be necessary to keep him in detention for six years and ask him every six months whether he is going to change his mind.
So, I said that, yes, I understand they are saying it is not punitive, but we say that is conclusory, and how do they get to “it is not punitive”? We say that the only way we see that they can do that is, as we have set out in our paragraph 10 of the outline – that is the argument that was made before his Honour. That is the argument, with slight modifications, that we understand they are making there, and that must mean, as we say in paragraph 11, that you have to read some words into the Act, and the only place you can read some words into it is section 198(6). How else do you suspend things for six years?
GAGELER CJ: Ms De Ferrari, on one view, the key to Justice Colvin’s reasoning lies in paragraph 64 of his judgment. What is wrong with that?
MS DE FERRARI: Well, where does his Honour get it from? That is the question. The duty is solely imposed on the Commonwealth. There is nothing at all in the Act that imposes any obligation at all on the detainee. So, where in the statute does his Honour get that? Your Honours could not have failed to be aware that there is a proposal to put that obligation into the Act. There is not.
EDELMAN J: It is not about the Act. It is about a constitutional limitation on the Act.
MS DE FERRARI: I understand that, but if it is not in the Act, if it is not about trying to – if it is not in the Act, then it has to be in the constitutional limitation, and we go back to the test. It has to be reasonably capable of being seen as necessary for the purpose of removal, and that ceased months, if not years, ago. We just ask that this Court applies what this Court has said in NZYQ. We ask no more.
BEECH-JONES J: Part of what Justice Colvin was to interpret was NZYQ’s reference to “practicable”, as I understand it, to capacity rather than willingness. He said that is what is bound up in the notion of what is practicable. What do you say about that?
MS DE FERRARI: But, your Honour, again that really turns the attention, I suspect, more on the statute, but that goes back to the point of the argument that – the submission I made on a number of points. Is that really how you analyse “practicable”, because the Commonwealth has straitjacketed itself in saying as a matter of policy we are only going to look at this country? That cannot be right.
GORDON J: I had thought that your answer to that question was the answer you gave me earlier, which is what is set out in your outline at paragraph 13. But if you take 64, one has to then ask the question: do you have a good reason for not consenting?
MS DE FERRARI: We maintain the two arguments. One is ‑ ‑ ‑
GORDON J: I am moving to the second argument now.
MS DE FERRARI: Yes.
GORDON J: So, I am asking you, in relation to the second argument, in response to the question you just asked of Justice Beech‑Jones, I had thought that that is what the argument ‑ ‑ ‑
MS DE FERRARI: Yes, absolutely. I was still on the first argument, but if we are moving to the second argument that is absolutely right. You have to look at – well, on the one hand the Commonwealth says we are going to look at this country, on the other hand you are saying I am not going to help you with that country because I have a good reason, then we will look at it. Is it a good reason? If so, then “practicable” is resolved in your favour because we are not going to force you to go to Iran if it is going to mean your death. That is the value judgment, ultimately, your Honours.
EDELMAN J: Your first argument is that anyone can for any reason refused to be removed anywhere and there is nothing in the Act that prevents that, and so therefore if someone for whatever reason they want refuses to be removed anywhere then they would have to be released. Your second argument is that it has to be for good reasons.
MS DE FERRARI: Correct. That is the two ways we put it.
GLEESON J: So, your first argument is that any detainee could manipulate the system by objecting to a removal, and that would lead to the result that their detention is punitive.
MS DE FERRARI: Your Honour, I do not accept that it is manipulating the system. Your Honours made the point in NZYQ that if the limit is reached and habeas goes, it does not mean that you have manipulated the situation so that somehow you are a free person in the community with all the rights and entitlement of an alien with a visa or anything such as that, that is paragraph [61].
GLEESON J: But you are saying that a detainee can make a choice to place the – to affect the characterisation of the detention to render it punitive.
MS DE FERRARI: No, I do not accept that, again, your Honour, because – I mean, that is really putting a question of value and – this comes down to the distinctions that his Honour Justice Kennett to some extent grappled with, and my learned friend the intervener might go into it. We say that is not the correct analysis under either the statute or the constitutional principle.
Take the case – and I know my learned friend has the case of someone who has been rendered incapable of, you know, giving sensible instructions and consenting to go back, but say the person has had complete memory loss, just came here with destroyed documents but then had an accident, a bullet through his brain while he was shopping at Westfield, he survived but he has no memory. Now, how does one look at that? He is not an unmeritorious person that has manipulated the system because he has no memory.
BEECH‑JONES J: I think Justice Colvin would say they do not have a capacity, and so they will be assessed ‑ ‑ ‑
MS DE FERRARI: But the capacity to do what exactly?
BEECH‑JONES J: To take any step that might be required for their removal.
MS DE FERRARI: That sort of jumps into the second question, but why does it require, as a matter of constitutional principle, statutory interpretation? That is what we say. We say nothing in Lim suggests that that is part of the test and there is nothing in NZYQ to suggest that is part of the test. Everybody knows that, of course, the test is going to have to be developed, taking into account more difficult cases that represent themselves to this Court, and that this is one of them, but our point is simply this: nothing in the Act, nothing in the principle.
GAGELER CJ: All right, so where are we now?
MS DE FERRARI: I have dealt with paragraphs 10 and 11. We say that the argument that we understand the Commonwealth must ultimately be making is also inconsistent with what this Court has said – what the plurality has said – in Commonwealth v AJL20 (2021) 273 CLR 43. It is also at tab 9 of volume 3 of the joint folders of authority. If your Honours go to paragraphs 44 and 45. Again, I know that your Honours have spent considerable time on those paragraphs and on this decision very recently, whilst hearing and deciding NZYQ, but what is clear, and as the plank upon which NZYQ did depend, is that the length of the detention must be able to be determined by this Court. That is part of the principle. That was a departure from Al‑Kateb, in particular the approach of Justice Hayne and Justice McHugh.
Yes, that was a case of depending on not being unconstrained depending on the opinion on the Executive. In a sense, this is the case here, as well. It is still their choice – their subjective choice – about how they approach this question. Let me put it another way: assume that, on these facts, my client came to court and said, I am seeking mandamus to be removed from Australia, and the return of the Commonwealth was, well, we only have ever explored Iran as a possible country, and you are not helping us. In my respectful submission, that would simply not be a good return to the mandamus. It just would not. I think it is probably convenient if I addressed the decision of Re Woolley at this point. I can probably do that before it is time for the short adjournment, if that is convenient.
GAGELER CJ: What are you getting out of Woolley?
MS DE FERRARI: Why this case does not assist. I started my submissions by saying the three cases that your Honours are going to have to be considering are Lim, NZYQ and AJL20; I will have to say something about Re Woolley, I have to say something about Plaintiff M47, because they do not assist you. But Re Woolley is very heavily relied upon by the respondent. The full citation is Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1. It is also at tab 15, volume 4 of the joint bundle of authorities.
What we say about this case is, first of all, it was plainly determined in light of Al‑Kateb being the law, and your Honours will see that clearly in paragraphs 71 to 80 of Justice McHugh’s reasons. His Honour there engages in a lot of analysis about whether proportionality ever has any role to play in this field. It is clear that that analysis depended on Al‑Kateb being the law. Similarly, Justice Gummow at paragraph 134, Justice Hayne at 220, Justice Callinan at 261 to 262 and Justice Heydon at 270 agreeing with Justice Hayne. So, they all looked at it in the context of Al‑Kateb being the law.
BEECH‑JONES J: Is that true of Justice Gummow at paragraph 134? Justice Gummow’s view in Al‑Kateb, if I remember rightly, was consistent with what this Court found in NZYQ.
MS DE FERRARI: I know, but he did not – that was not brought to bear in Re Woolley.
BEECH‑JONES J: I interrupted you.
MS DE FERRARI: The second point is, this case was about section 198(1), and not 198(6). The third point is, there were still applications for visas on foot, and the simple factual situation that the applicants proposed, as children by their guardians, was simply this: yes, our parents still have applications for visas on foot, and yes, we are nominated as secondary applicants in those visas, but our detention is punitive because, although our parents could invoke 198(1) and bring that detention to an end at any time – say, remove me – we cannot do it, because we are children. That was the basic proposition.
It was really the applicants that were saying, in a sense – and this is where the three‑walled reference comes from – well, yes, for our parents, this form of detention might be three‑walled and therefore not punitive, but for us it is not; it is four walls, because we have no means of egress whatsoever. The Commonwealth and the Court rejected that. That is it. There is nothing in terms of the principle, let alone the facts, that would assist in this case. Your Honours, I probably need to spend a bit more time on Plaintiff M47, which is my next case.
GAGELER CJ: You may as well start.
MS DE FERRARI: Yes, your Honour. The same proposition we make about Plaintiff M47 is that your Honours are, ultimately, not going to derive anything from it. That case is Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285, and it is included at tab 13 in volume 4 of the joint bundle of authorities.
We said in our written submissions that, really, this case stands for nothing more than what it decided within the procedural manner in which the issues were presented to this Court. Your Honours know that was where the plaintiff was seeking a vehicle to reopen Al‑Kateb, and the case was presented by way of a special case. The fundamental problem why that application to consider granting leave to reopen never went anywhere is because the Court determined that this was not a suitable factual case for it to happen. There was no proper factual foundation presented.
Why? Because, unlike in NZYQ where the parties had agreed that, at least on 30 March, there was no reasonable prospect of removal in the foreseeable future, here there was no agreement. There was no agreement, and because there was no agreement, then this Court put to the plaintiff, well, the onus is on you to tell us what inferences you say we can and should draw within the four corners of the special case. The plaintiff put forward four inferences that he said could be drawn, and the Court said, no. But an important part of why this Court said “no” is at paragraphs 15 and 16 of the reasons of her Honour Chief Justice Kiefel, and their Honours Justices Keane, Nettle, and Edelman.
If your Honours would go to those paragraphs, your Honours will see that, at the bottom of paragraph 15, there was, on the evidence of that case, at least some reason to think that he was “most likely Algerian”, and something might happen with Algeria. That is part of it. But even more critically, if your Honours turn to paragraph 16, their Honours there said:
In addition, the defendants argued that the Department, while continuing its attempts to establish the plaintiff’s identity and nationality, has approached various countries to ascertain whether they might be prepared to accept the plaintiff for resettlement.
That is, they were doing inquiries with other countries whether or not he was ever going to tell them what his identity was. It is unsurprising, in our submission, that the courts have said, well, we are not going to draw any of the four inferences as to facts that the plaintiff is asking, and therefore we are not going to have a suitable case for considering reopening Al Kateb.
GORDON J: Is your proposition any more than that the real‑world context in M47 is different from the context here?
MS DE FERRARI: Well, could not be more different, yes. That is also for NZYQ. Another way of putting it, as I said repeatedly, every case is not going to be able to be decided by categories, whether the category is that the person is Iranian or whatever the category might be. Every case is going to require detailed attention to the particular facts of that case.
GORDON J: In AZC20, Justice Kennett described it as standing for a proposition at paragraph 64, which I think is something to the effect that:
an alien who has no legal right to remain in Australia is not to be permitted to engineer their own release into the community by frustrating –
MS DE FERRARI: Yes. What we say about that is that we read his Honour’s reasons as saying that he was prepared to accept that that was a principle that could be derived because the Commonwealth lost anyway, even if that was a principle that could be derived. But we do make the proposition that there is no such principle, really, because of the way I have explained what happened. It is simply decided on the facts of that case that the inferences would not be drawn, and that was the end of the matter. It requires a leap of reasoning – multiple leaps of reasoning to say it stands for a proposition that imbues the constitutional principle that frustration is somehow part of that constitutional principle. We say it does not say that. It cannot say that.
Your Honours, the Court in that case was being so careful to say we are not going to embark upon constitutional questions at all unless we have a suitable vehicle. It would be extraordinary if somehow, by a sidewind, there had been a statement of principle that affects the constitutional questions to be decided in this case.
GAGELER CJ: Was there something ‑ ‑ ‑
MS DE FERRARI: Your Honours, I was able to do M47.
GAGELER CJ: M47 is finished now?
MS DE FERRARI: Yes, your Honour.
GAGELER CJ: And was there anything more you wanted to say about your paragraph 12?
MS DE FERRARI: No, that is it.
GAGELER CJ: Very well. We will take the morning adjournment, then.
AT 11.18 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.31 AM:
MS DE FERRARI: Your Honours, with the benefit of very good counsel by my juniors, can I try and answer again the proposition about – I am still staying on our first argument, Justice Gordon, but I am about to move to the second argument. Can I try and give another answer about, is the conduct of the detainee relevant, what do we say about whether or not the person is trying to engineer some outcome.
We do maintain on our first argument that no, as the Act presently stands, there is nothing that makes it relevant; and as to the constitutional principle, one just goes back to Lim, and the Lim test at page 73 of the reasons of their Honours Justices Brennan, Deane and Dawson is clear that it says nothing about what the detainee does, either under reasonableness or under necessity. We do stress “necessity”. As I said, the many ways in which necessity is falsified just by the way in which the Act currently stands.
If you apply Lim – and I know that this Court in Al‑Kateb did not apply Lim, and that led to problems – and you look at the powers in section 188 and 196, and you are looking at deportation, that save, perhaps, in the extreme case where there is a basis to consider that the person would otherwise abscond – and we are not there – it is just simply irrelevant to look at whether the person is cooperating, not cooperating, has a mental illness, has forgotten everything – irrelevant. That, we say, just follows from Lim.
I am now moving to the alternative argument, and I am addressing paragraphs 13, 14 and 15 of the outline. Now, we start with the prospective and probabilistic assessments of the facts in the real world, taking account of the real‑world difficulties. That is why you have to really drill down into the facts as they really were in this case, which, we said and I repeat, have been unchanged, and no prospect of ever changing since November 2018.
If, somehow, in the formulation of how sections 189 and 196 come to be disapplied, relying upon section 3A of the Migration Act, in the particular circumstances of an individual because of a constitutional principle, if one is looking at that disapplication and it is somehow relevant – contrary to our primary submission – to look at why the person is not assisting in the way that the Commonwealth wants them to assist them – assuming capacity – then you look at whether that is a good reason or not.
The good reason must ultimately be adjudged by the court if there is a dispute about it in a habeas application, but it does take account of the particular characteristics of the individual. It does take account of why he says it, and if it is personal characteristics that give rise to a fear, you do look at whether the person has the fear. It is a different inquiry – a completely different inquiry – from the administrative inquiry that has been done under the Act about whether you might get a visa because of a well‑founded fear of persecution.
You may have failed on that. But the inquiry simply is, looking at the disapplication of the power in the constitutional principle, what is the reason why you are not assisting? If the person says, I am not assisting because me assisting you would be the equivalent of me having to jump from a boat – as in the Tampa Case – in the middle of the high seas, and swim with the sharks, I am not going to do that; if it requires me to jump from the 10th floor of the apartment block where you are keeping me otherwise unable to egress, and there is a raging fire as well, then I am not going to do that. We say: what is his reason?
The way the argument was put against us below and the way the cross‑examination was run was, partly, the case was put: this has never been said before in the context of your application for a protection visa. Your Honours will understand, from what I have just said, that that is completely irrelevant.
Then, there was a large attack on him about the veracity of his account as to what had happened – he had never disclosed that before, he makes that clear in his affidavit – in Iran that made him flee, and that was that because he is bisexual, and because he does not just have thoughts, he actually has sex with men, he had sex with a man in Iran in the privacy of his home, and although he did not think that his wife was going to come home, she did, and she found him.
EDELMAN J: Ms De Ferrari, at paragraph 131 of Justice Colvin’s reasons, he describes the issue of cooperation as:
writing a letter to the Iranian authorities and by providing such other information as may be requested by Iranian authorities –
Was there any cross‑examination or any evidence as to what evidence was required by the Iranian authorities, including any of the matters to which you have just referred?
MS DE FERRARI: No. There was general evidence by another witness – the name escapes me, but my learned junior will find it, there is nothing in the materials, who is a person somewhere else in the Department – that once the person has been flagged a voluntary returnee, she takes certain steps to facilitate communications with the Iranian authorities. That is all that I recall. If there was anything else, I will be corrected, either by my junior or by my learned friends.
Can I turn then to the important and substantive issue in the way the Commonwealth articulated – and it was this: does Chapter III prevent section 189 and 196 from validly operating – by which he must mean now, at the point of time when the habeas is being heard – if, (a) it would be practicable to remove an individual if that individual did cooperate – that leaves out of that test any questions about reasonably foreseeable future; any time horizon on that – (b), he said, that individual could cooperate, at the particular time. But the Commonwealth must mean by that – this ability to cooperate must mean the absolute opposite of someone not being so mentally incapacitated as to be able to make a decision. It rules out everything else.
It rules out fear, whether ultimately found to be a good fear, a good reason – fear for oneself; it rules out fear for someone else. What if the situation is, I am not going to go to Iran and sign the documents, because Iran is going to use that information and go and kill my sister. And may I say, in respect of that, that is absolutely impossible to accommodate that scenario in any of the statutory schemes that deals with protection visas. Impossible.
Nor does it deal with any scenario where the request that is made by the country, by the Commonwealth – or just even by the Commonwealth – is completely unreasonable. On any view, the request is completely unreasonable – we are going to be able to remove you if you agree to donate a kidney, otherwise we cannot – but on the Commonwealth’s view, they are capable of giving consent to that medical procedure. So that is it, that is the end of the question.
We say, ultimately, when you look at the way they are propounding the test – which they say, if you satisfy that test, it is simply not punitive – you do not have to ask any other question, it is simply not punitive. When you look at that test, and you go back to NZYQ, it must mean that forevermore you are just assessing in the context of the test in NZYQ that there is a hope that the person is going to change their mind. Whatever their reason is for not having changed their mind so far – you just do not get into punitive or characterisation at all if there is a hope, no matter how remote. That must be wrong, in our respectful submission.
Another part of the argument was that the answer to all of these scenarios was section 48B. I have already given your Honours one partial answer to that: no, it is not. What about fear for what will happen to my sister? Entirely unrelated to any Convention matter. And in that respect, fear in respect of others is actually something that is considered by the Court of Appeal in that Victorian decision I referred to – McFadzean – I referred to paragraphs 36 and 37. There is reference there to a decision about whether a fear that kept the person imprisoned is what someone would do to someone else.
The second point is that it is obviously a non‑compellable power, and the Full Federal Court in SPKB (2003) 133 FCR 532 – which is a case that my learned friend took you to – at paragraph 19 did put it simply on the basis that they hoped that the Minister would read it and consider 48B. The other point is that, notwithstanding 197C(3) and following, there are a number of carve‑outs of situations where Parliament has just limited the implementation of the various conventions – the Refugees Convention, CAT, ICCPR – they have been statutorily limited. So, if you are not within one of those, then that is it.
Against that, your Honours, it is relevant to why the two matters are distinct – the statutory scheme and the constitutional principle – and the constitutional principle does not result in a substantive right to be in the community like the visa system – it is relevant that when your Honours look at 197C(1) and (2), your Honours will see that that strengthening of the force of 198(6) is made by reference to what are defined as non‑refoulement obligations. That is, Parliament is saying, forget about how we have implemented the visa system, 198 bites in respect of all non‑refoulement obligations. If your Honours go to the definition in section 5, your Honours will see that is defined inclusively and solely in terms of what is spelled out by reference to obligations as a matter of international law. It has nothing to do with the statute. So, the statute itself has this divergence.
A final point about non‑compellability is that it was used against us: well, you did not make that application. Similarly, the Commonwealth has never sought to put any evidence anywhere that it has commenced to consider whether to exercise a non‑compellable power in section 48B. If it had, we would have been here with an application about why this case has been rendered moot, because your Honours have heard from my learned friend, correctly, that if it had exercised a power and if my client had made a visa, we would be talking about detention for another purpose. So, non‑compellability in 48B gives no more than a faint hope that someone within the Department will bring something to the attention of the Minister, and the Minister then might think something.
Mr Donaghue said that you cannot approach the constitutional principle, because otherwise you get a right to release in the community even after you have been rejected on your protection visa claim. I have already addressed that by reference to paragraph 72. That is not the case. Moreover – and this goes to necessity of detention – that you have had your protection visa claim rejected – I should note here that 48B is only limited to protection visa individuals. That you had your claim rejected is absolutely not inconsistent under this statutory scheme with not being deprived of liberty while the Commonwealth pursues actions to remove you. The clearest example is actually section 73 of the Act, which allows a delegate of the Minister to grant a visa and, in particular, what has existed at all times during my client’s detention, namely, a bridging visa pending removal.
Your Honours, I started to address Justice Edelman’s question about the relevance of the reasonableness to refuse to cooperate, and we do say that that is accommodated both in paragraph [55] of NZYQ, but it is also accommodated in Lim and the test there expressed, including necessity. It must be. All of that means that, as I said before, yes, you have your subjective reason, but that has to be assessed objectively, by an objective test.
In terms of Lim, my learned friend took you to paragraphs 33 and 34, and it is reliant upon section 154P(1), which is now equivalent to 198(1), which is the capacity of someone to request removal from Australia at any point. But this is the point that I have made, perhaps too much earlier in the day: that deals with capacity to request removal from Australia. Your Honours, on the evidence, he has requested removal from Australia. What he has said is, I am not willing to assist with being removed to Iran. But he has requested removal from Australia, so that really is not an answer in this case.
It is only an answer in this case because, as I submitted before, the Commonwealth sought to straitjacket this case by saying, I am sorry, but the only country that we will ever present to you, and with which you must cooperate, is Iran, and turn it – turned that test, however it is expressed in the Act and as a principle of constitutional law, from removal from Australia to removal to a specific country that we say you must cooperate with. We say that cannot be right.
Your Honours, in terms of paragraphs 39 and 40 of M47, as your Honour the Chief Justice has noted, one issue is, of course, here a probable cause has been admitted, and your Honour has my learned friend’s answers. As to paragraph 40, we really say that goes to a Blatch v Archer‑type point, which was raised earlier, I think, by Justice Edelman this
morning. It really just becomes a question of: how do you deal with admissible evidence in a court? That is what it comes down to.
The final point, your Honours, is that if your Honours look at paragraph 64 of his Honour Justice Colvin’s reasons – which ultimately, my learned friend the Solicitor‑General adopted as equivalent to the test that he propounded which I went through earlier – your Honours, we do stress that these words – first of all, there is a proposition:
there is to be regard to all voluntary actions that may be undertaken by the detained person to assist in their removal –
And that must be statutory removal from Australia. But then it slides into:
irrespective of whether the detainee is refusing to undertake those actions in respect of removal to a particular place because of a genuine subjective fear –
We say, if you do properly consider all of the evidence on behalf of my client and as it came out at trial about voluntary actions that may reasonably be undertaken by him to assist with his removal to Australia, including asking for it, then it cannot be right that the reasonableness of that aspect of the case, that part of the ledger of the justice of law, is completely overrun by the fact that he is refusing to assist the Commonwealth in being removed to just one particular place that the Commonwealth has selected. And he does that because he does not want to be killed.
Unless there are any questions, your Honours, those are the appellant’s submissions in reply.
GAGELER CJ: Thank you. The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.
AT 3.52 PM THE MATTER WAS ADJOURNED
6
0