BBY21 v Minister for Immigration, Citizenship and Multicultural Affairs - [2023] FedCFamC2G 31

Federal Circuit and Family Court of Australia
(DIVISION 2)
BBY21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 31

File number(s): SYG 1633 of 2022

Judgment of: JUDGE MANSINI

Date of judgment: 24 January 2023

Catchwords: MIGRATION – urgent application by unlawful non-citizen seeking removal from Australia to a third country of his choice – where applicant is a citizen of Singapore who came to Australia where he was convicted of crimes and is a non-citizen who has been refused protection from Australia and exhausted rights of review – where department officers have refused and refuse to remove to Republic of Kenya – whether the responsible officers of the Commonwealth have taken and are taking all reasonable steps to discharge the duty to remove the applicant from Australia as soon as reasonably practicable under s.198(6) – consideration of departmental policy of removal to place of citizenship or right to enter and long term stay – valid citizenship and right to enter Singapore - whether third country is willing to receive - cooperation of the applicant - remedies of mandamus and declarations – no basis for relief sought – application dismissed with costs.

Legislation:
Migration Act 1958 (Cth) ss.13, 14, 189, 196, 197C, 198, 218, 474, 476

Kenya Citizenship and Immigration Act 2011 ss. 33, 35

Kenya Citizenship and Immigration Act Regulations 2012

Cases cited:
Al-Kateb v Godwin [2004] HCA 37

AOU21 v Minister for Home Affairs [2021] FCAFC 60

ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98; 360 ALR 64

BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313

Commonwealth v AJL20 (2021) 391 ALR 562

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) ALD 634

DXN21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] FedCFamC2G 589

Forster v Jododex Australia Pty Limited (1972) 127 CLR 421; [1972] HCA 61

Green v Daniels (1977) 51 AJLR 463

M38/2002 v Minister for Immigration and Indigenous Affairs [2003] FCAFC 131

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50

Plaintiff M70/2011 v Minister for Immigration and Citizenship & Anor [2011] HCA 32

Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438

SZSZM v Secretary, Department of Immigration and Border Protection [2016] FCA 1477

Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89

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

Division: Division 2 General Federal Law

Number of paragraphs: 131

Date of last submission/s: 22 December 2022

Date of hearing: 13 December 2022

Place: Melbourne (by Microsoft Teams)

Solicitor for the Applicant: Lucky Exchange Lawyers

Counsel for the Respondent: Mr B Kaplan

Solicitor for the Respondent: HWL Ebsworth
ORDERS

SYG 1633 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
BBY21

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

DEPARTMENT OF HOME AFFAIRS

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

order made by:

JUDGE MANSINI

DATE OF ORDER:

24 January 2023

THE COURT ORDERS THAT:
1.The application as amended on 2 December 2022 be dismissed.
2.The Applicant pay the Respondents’ costs of the proceeding as agreed and there be liberty to apply in relation to costs.

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

The Applicant is a citizen of Singapore who came to Australia in 2006 on a Visitor subclass 976 visa, where he was convicted of drug-related crimes with prison sentences totalling 22 years. He was granted a subclass 050 Bridging E (Criminal Detention) visa on 3 June 2019 which expired on 19 August 2020. The Applicant has been detained as an “unlawful non-citizen” since 17 October 2020.
On 22 October 2020, the Applicant sought protection from Australia essentially on grounds of his criminal history and connections in Singapore which caused him to fear for his safety if returned to Singapore. The Applicant was denied a protection visa on 17 December 2020 - a decision which was reviewed and appealed in various jurisdictions to no success. A request for Ministerial intervention made in February 2022 was refused on 7 April 2022.
The present matter concerns the Applicant’s ongoing detention and the discharge of the Commonwealth’s statutory duty to remove him from Australia “as soon as reasonably practicable” since the final dismissal of the legal proceedings in June 2022.
The Applicant wants to be removed to a third country - Kenya. He is not resident of Kenya and whether entry can be gained via a Kenyan e-pass due to expire on 31 January 2023 is disputed. The Respondents have refused and refuse to facilitate his removal to Kenya for reasons which include departmental policy to remove only for “long-term stays” and information that the Republic of Kenya considered the Applicant a prohibited immigrant.
The Applicant asked this Court for various forms of relief which were in essence directed at compelling the Applicant’s removal from Australia to Kenya and declaring the policy invalid.
For the reasons that follow, I have determined that the Court is not empowered to make an order for mandamus in the form sought. And, in any event, that neither the Commonwealth nor its officers have failed to discharge their statutory duty to remove the Applicant from Australia as soon as reasonably practicable and the application for relief be dismissed.
procedural context
The original application was filed on 9 November 2022. It named the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) as First Respondent; the Secretary of the Department of Home Affairs (the Department) as Second Respondent; and the Commonwealth of Australia as Third Respondent.
Following two recusal decisions, the matter came before the Court as presently constituted for initial mention on 1 December 2022 following which programming orders were made.
In accordance with those programming orders, an amended application was lodged on 2 December 2022. By the amended application, the Applicant sought a remedy(ies) be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (Act) in respect of a future decision or other action by the Minister or an officer under the Act. The amended nature of the relief sought was in the following terms (struck out paragraphs and tracked changes omitted here):
2. A declaration that the policy of the first respondent that the removal of the applicant as an unlawful non-citizen under s 198 of the Migration Act 1958 to a country that is not his country of nationality may only occur if the applicant have the right of entry to and long term stay in the third country is not supported by the Migration Act 1958 (Cth) and is invalid.
4. A writ of mandamus directing the second respondent or an authorised delegate of the second respondent to issue a written notice pursuant to s 218 of the Migration Act 1958 (Cth) requiring the controller to transport the applicant from Australia to a destination of the vessel as specified in the purchased flight ticket of the applicant.
7. An order that the first respondent pay the applicant’s costs.
8. A declaration that from at least 28 August 2022, officers of the Commonwealth have failed to discharge their statutory duty under s 198(6) of the Migration Act 1958 (Cth) to remove the applicant as soon as reasonably practicable.
9. A writ of mandamus directing the first respondent or an authorised officer, or the second respondent or an authorised officer to perform the duty in s 198(6) of the Migration Act 1958 (Cth) and in doing so must remove the applicant from Australia to a place outside Australia, Kenya on 20 December 2022 by applying his current Qatar airways ticket PHV3DN for the conveyance of the applicant outside Australia or show cause why it has not been done.
10.Alternatively, to order sought in paragraph [2], if the policy of the first respondent that the applicant a detainee as an unlawful non-citizen will only be removed under s 198 of the Migration Act 1958 (Cth) to a country that is not his country of nationality may only occur if the applicant have the right of entry to and long term stay is valid;
The Court declares that the applicant right of entry into Kenya and to stay in Kenya for 90 days as evidenced in the applicant’s Kenya E PASS – M8SDBWAR satisfies the requirement of the policy.
11. Any such other order as the Court thinks fit.
At the final hearing on 13 December 2022:
(a)the Applicant was legally represented and sought to rely on his amended application (lodged 2 December 2022); two sworn affidavits of his own evidence, an affidavit of his legal representative and written submissions of 12 December 2022;
(b)the Respondents together were legally represented and sought to rely on five affidavits and submissions of 12 December 2022; and
(c)a jointly prepared Court Book was tendered.
Closing submissions were made, in writing, on 14 and 22 December 2022. The Applicant pressed for urgent reasons given the impending expiry of the Applicant’s Kenyan E-Pass on 31 January 2023 and the fact of his ongoing detention.
factual context
For present purposes, the relevant facts are summarised below. Unless indicated otherwise, recitation of facts in this summary were not disputed and constitute findings I have made.
Brief chronology of the Applicant’s immigration status and attempts at gaining protection from Australia
On 11 December 2006 the Applicant, a male citizen of Singapore, arrived in Australia on an Electronic Travel Authority (subclass 976) visa which ceased on 12 March 2007.
On 12 November 2007 and 10 June 2011, the Applicant was convicted of drug-related offences and received prison sentences of 6 years (with a non-parole period of 4 years) and 16 years and 6 months (with a non-parole period of 11 years and 10 months), respectively.
On 3 June 2019, the Applicant was granted a subclass 050 Bridging E (Criminal Detention) (BVE) visa which ceased on 19 August 2020.
On 7 August 2020, the Applicant signed a request for voluntary removal to Singapore which he subsequently withdrew on 20 August 2020. On 10 August 2020, the Applicant completed an application for identity document and, on 11 August 2020, a detention client interview.
On 17 October 2020, the Applicant was detained pursuant to s.189(1) of the Act.
On 22 October 2020, the Applicant applied for a Protection Visa (subclass 866) for reasons (subsequently revised) which included claims that, if he returned to Singapore: he would be charged, lashed and sentenced to imprisonment because in January 2006 he had assaulted someone who had molested his wife; and he would be killed because he had provided information to Australian authorities about his prior involvement in a crime syndicate during his criminal trial in Australia. He also claimed that the Singaporean authorities have a warrant out for his arrest over the January 2006 incident.
On 17 December 2020, the delegate made a decision to refuse the Applicant’s application for a protection visa. Also on 17 December 2020, the Applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision. On 24 March 2021, the Tribunal affirmed the decision of the delegate of the Minister to refuse his protection visa application.
On 4 August 2021, another Judge of this Court dismissed the Applicant’s application for judicial review of the Tribunal’s decision.
On 4 February 2022, the Federal Court of Australia dismissed the Applicant’s appeal.
On 24 February 2022, the Applicant sought Ministerial intervention.
On 17 March 2022, the Applicant sought an extension of time to seek special leave to appeal the decision of the Federal Court of Australia.
On 18 March 2022, the Applicant was referred for removal from Australia.
On 1 April 2022, the Applicant’s referral was effectively paused on account of the pending proceeding before the High Court of Australia.
On 7 April 2022, the request for Ministerial intervention was said not to meet the Minister’s guidelines.
On 16 June 2022, the High Court of Australia refused to grant an extension of time and dismissed the Applicant’s application for special leave to appeal the decision of the Federal Court of Australia.
The Applicant has not made another valid application for a substantive visa that can be granted in Australia.
About the process for removal of an “unlawful non-citizen” from Australia
The various witnesses for the Respondents gave evidence about the general or typical process of removal from Australia of detainees.
It may be accepted that a “voluntary removal” occurs where an unlawful non-citizen has requested in writing to be removed from Australia (which may also be withdrawn, in writing). An “involuntary” removal is where a detainee has not signed a request for removal from Australia (they may have refused to sign at interview or did not attend the interview at all) or withdrawn a removal request.
Removal planning checklist
A “removal planning checklist” was in evidence which is to be used by removals officers for unlawful non-citizens on a “removals pathway”, a term which may be understood to refer to the processing of detainees who are required to be removed from Australia under the Act because they no longer have a visa application or other immigration process on foot, whether their removal is voluntary or involuntary.
A Ms Martha Eid gave evidence in her capacity as Removals Officer, Senior Border Force Officer (Enforcement Operations East) with the Australian Border Force (ABF) which is part of the Second Respondent’s Department. She said that a removals officer would take certain steps to progress removal from Australia as follows:
7.1      checking whether the detainee has completed a request for removal form;
7.2      checking whether a Part B form has been completed in respect of the detainee;
7.3 checking whether a travel document is available and applying for a travel document if required;
7.4 checking whether any Pre-Removal Clearance (PRC) or Informed Request for Removal Statement (IRSS) assessment is required;
7.5      assessing the viability of proposed travel pathways;
7.6      confirming whether a health discharge summary has been completed;
7.7      seeking expenditure approval as necessary;
7.8      requesting escorts;
7.9 requesting removal liaison officers from Australian Border Force to accompany detainees if required;
7.10     completing travel bookings for detainees and escorts;
7.11     applying for airline uplift approval; and
7.12     completing Removal Availability Assessments.
Departmental policy and practice– removal to a third country
The Second Respondent’s Department has documented its policy and instructions on removal of detainees titled “Removal from Australia”, a copy of which was in evidence and comprised 141 pages. Under the section “Operational planning and logistics” and sub-section “Removal destination and route”, that policy provides:
The removal provisions of the Act do not specify the destination for removals.
Departmental policy is that a person may be removed only to a country of citizenship or a country where they have the right of entry and long term stay.
A Mr Jason Gillard, Acting Director in the Status Resolution, Returns and Removals Policy Section of the Immigration Group gave evidence that this aspect of the policy had been in place since at least 2014 and remained current as at the time of the hearing. In cross-examination, his evidence was that a removal officer would not be able to “ignore” this policy and remove someone to a country where they do not have a right to enter for a long-term stay.
Mr Gillard also gave evidence that the reason for this aspect of the policy is that, unless a person has a right of long-term stay in a third country, the Department cannot be confident that the country will permit the person to reside in that country on a long-term basis. In Mr Gillard’s experience, it would create diplomatic tension and potential international controversies for the Australian Government if it removed unlawful non-citizens to countries that have not agreed to accept them or where the people removed do not have the right to stay.
At the hearing, various witnesses were cross-examined about their understanding of “long-term stay”:
(a)Mr Gillard’s evidence was that the Department looks for a country of sustainable return, having regard to things like support services, relevant employment and education opportunities. Under cross-examination, he ultimately accepted that permanent residency is a benchmark that the Department uses (although he said it is a little more complicated than that) and that means a permanent right to live in the country. He elaborated by saying the reason for such a benchmark is to ensure the success of a removal and the ability to successfully conduct a removal as to not cause any diplomatic tensions. When asked to compare to Australia’s partner or working visas, his evidence was less certain but ultimately he said it would depend on the issuing authority and whether it would be an equivalent. Mr Gillard said that the “commonly accepted minimum length of time” that is acceptable under the long-term stay policy is 12 months. He also accepted that a person would remain in detention if they were not being removed, but added:
.. But we also are dutybound to remove somebody when it’s reasonably practicable and so if the destination cannot be solidified, then – then at that point we – we don’t meet reasonably practicable under the law.
(b)Ms Eid, who had communicated with the Applicant’s representative about the policy and was plainly aware of it, was asked whether she was aware that the Department considers 12 months as a long-term stay and her evidence was that “It depends - it depends on - on the visa”. She was also asked whether she is not allowed to tell people that 12 months can be accepted a long-term stay – in response to which Ms Eid said she had not been advised not to say anything in this respect.
(c)A Ms Amanda Turner, Removals and Consular Liaison Officer in the ABF’s Consular Engagement and Liaison (CEL) Team, gave evidence of her belief that the Department has a policy that detainees can be removed to a country of their nationality or to another location or another country where they have a right of entry and a long-term stay but was not asked to elaborate on the meaning of this phrase or application of the policy.
The Respondents witnesses also gave evidence about the usual practice of regular engagement with unlawful non-citizens, whether their removal pathway is voluntary or involuntary.
According to Ms Eid and Mr Gillard, status resolution officers and removals officers regularly ask unlawful non-citizens questions about their links to other countries, including whether they have family in countries other than their country of origin or citizenship.

In Mr Gillard’s experience, if an unlawful non-citizen identifies a link to a third country then the Department’s “policy and practice” is to investigate whether they could be removed to that country. Such investigation involves whether the person has a right of entry and long-term stay in that country and, where possible, the Department will engage with the specified third country to obtain its consent to remove the person there. Mr Gillard described the investigation process for where an unlawful non-citizen nominates a specific country to which they want to be removed in the same way. Similarly, where an unlawful non-citizen provides evidence of their entitlement to enter and stay in a specific country (such as a visa or entry permit) the Department’s policy and practice is to investigate whether that visa or entry permit provides a right for that person to reside on a long-term basis in that country.
Mr Gillard also gave evidence of the importance of investigating the disclosure of criminal convictions because to his knowledge good character is a critical criterion for visa applications globally.
The Department has a “Third Country Options Taskforce” created to assist removals officers to comply with their removal duty under the Act. It was put in place since the Federal Court’s judgment in March 2022 (in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 (BHL19 (No 2))). A copy of the information sheet was in evidence.
Departmental process – obtaining travel documents
Ms Turner and Ms Eid gave evidence that the Department requires production of a physical travel document (ie. a passport) in order to remove a detainee from Australia because otherwise they would not be allowed to board a plane.
Ms Eid also said that the Department requires the physical passport before that person boards a plane as necessary to ensure the person is the actual passport holder. She was unwavering in her evidence that the physical passport is necessary to remove a person from Australia and, whilst accepting some communication can occur without the physical document in their possession (for example, via the Department’s Travel Document and Request and Consular Enquiries team (TRACE)), the removals process will be delayed or not able to progress until that physical passport is in their possession because removal can not take place without it.
Ms Turner’s evidence was that the process for obtaining travel documents for a detainee generally involves the following steps:
4.1 When detainees are put on a removal pathway, they are allocated a “Removals Officer”, who is responsible for liaising with the detainee to get information from them that is required to obtain the travel documents, and generally progressing the detainee’s case to removal.
4.2 Generally, the Removals Officer sends an email request to the Removals Helpdesk, which is a group email address to which all Removals and Consular Liaison Officers have access. These requests will generally include a completed application for the relevant travel document. My role is to check that all the required information and supporting documents are included with the application. If something is missing, I go back to the Removals Officer and ask them for missing information or document. If the information or document is unavailable I would then request an explanation for why that particular document or information is missing so I can explain the absence when the application is lodged.
4.3 Once all the necessary supporting documents are pulled together, our team will lodge the application with the relevant authorities for the specific country.
4.4 If the information or documents required to obtain a detainee’s travel documents are incomplete, I contact the relevant authority to see what the options are for the detainee (for example, if there is another way to prove citizenship or verify the detainee’s identity). In some cases, I will liaise with Post, which is what the Department calls the Departmental officer who is located in the Australian embassy in the foreign country. My role is to liaise with the relevant authority (and Post when required) and the Removals Officer, who then deals with the detainee directly. I do not engage directly with the detainee, but I sometimes make suggestions to the Removals Officer of avenues they might pursue if they are having trouble locating the required information or documents.
In cross-examination, Ms Turner accepted that a flight can be booked and communications with embassies can occur without the physical passport.
About the process to remove the Applicant since the conclusion of legal proceedings challenging the visa refusal
The following summarises the evidence of the process specific to the Applicant following the dismissal of the application to the High Court of Australia on 16 June 2022.
On 20 June 2022, Ms Eid was assigned to progress the Applicant’s removal from Australia.
On 28 June 2022, Ms Eid sought confirmation as to whether a Pre-Removal Clearance Assessment or Informed Request for Removal Statement were required for the Applicant given he had a criminal history.
On 5 August 2022, Ms Eid conducted an interview with the Applicant at the detention centre which she gave evidence was to progress the Applicant’s removal. Ms Eid took a file note of that meeting, which was in evidence and recorded that, during the interview, the Applicant: said he had a lawyer working on his application; told Ms Eid that he had family in Singapore with whom he is in regular contact; mentioned his recent marriage to another detainee; queried whether he could go to Thailand or Cambodia; and said that he did not want to go back to Singapore because he saw his godfather being shot by “the CNB”. Ms Eid said that she advised the Applicant to speak to his lawyer otherwise the involuntary removal process would start.
On 9 August 2022, the International Obligations and Complex Cases Section of the Department conducted a Pre Removal Clearance Assessment. By that assessment, it was determined that removal of the Applicant to Singapore would not be in breach of Australia's international non-refoulement obligations and his case did not warrant referral for any departmental protection assessment.
On 24 August 2022, Ms Eid was copied on an email from a Hala Masri, A/g Inspector – Removal Operations. It was part of an exchange which commenced with a Welfare & Engagement report that the Applicant believed he was going to Kenya, had purchased flight tickets and his lawyer was liaising with ABF about this. In the email of Hala Masri it was stated:
I have organised for a removal officer (Suresh) to have a discussion with him to let him know we will not be facilitating his request to go to Kenya on 28/08/22.
Subsequently on 24 August 2022, Ms Eid was copied into an email from Mr Suresh Teckchandani, Leading Border Force Officer – NSW Removals. By that email, Mr Teckchandani reported that he had a telephone conversation with the Applicant that same day, for the purpose of informing the Applicant that he could not travel to Kenya on 28 August 2022 with an airticket he had purchased on his own accord on the grounds that he was in detention and there are certain procedures and clearances required before his removal could be affected. Among other things, Mr Teckchandani claimed to have informed the Applicant that it was procedure to send a person back to the country where he came from or to another country to which he has citizenship and to have been told by the Applicant that his lawyer had organised both his Kenyan EPASS and a new Singaporean passport which was with his lawyer. Mr Teckchandani was not called to give evidence.
Also on 24 August 2022, the Applicant's legal representative sent an email to various email addresses of the Second Respondent’s ABF officers which said it attached “a signed 956 Form” (appointment of migration agent or legal practitioner) and a copy of the Applicant’s identification. By that email, the Applicant’s legal representative stated that the Applicant had “made arrangements to voluntarily depart Australia submitting a request for removal” and had a “valid” electronic visa/permit which was obtained with the representative’s assistance and had purchased a plane ticket to travel (said to be attached). That email also said the Applicant had a new Singaporean passport (copy also said to be attached). Whether or not they were in fact attached to that email (there being no evidence incorporating the attachments with the email), the following documents were expressed as attachments to that email and were ultimately put into evidence before the Court as annexures to the Applicant’s affidavit of 9 November 2022:
(a)A copy of a document marked “E-Pass” (EPASS-BVSJD7YM) on letterhead of The Republic of Kenya, Ministry of Interior and Coordination of National Government, Directorate of Immigration and Citizen Services, with the Applicant’s photograph, name and identifying information and with the words:
Date of issue 20 August 2022
Proposed date of arrival 29 August 2022
The holder of this E-Pass desires to travel to the Republic of Kenya for the purpose of .
Notes
1. The possession of a pass is not the final authority to enter the Republic of Kenya.
2. Engaging in any form of business or employment without a requisite permit or pass is an offense.
This document is issued under the authority of the Directorate of Immigration and Citizen Services.
(Applicant’s affidavit of 9 November 2022, Annexure G).
(b)A screenshot of a travel itinerary bearing the logo of Qatar Airways, with “passenger details” including the Applicant’s name, passport number and date of birth and which showed: an outbound flight departing Sydney, Australia on 28 August 2022 and arriving in Nairobi, Kenya on 29 August 2022 and an inbound flight departing Nairobi, Kenya on 8 September 2022 and arriving in Sydney, Australia on 8 September 2022. (Applicant’s affidavit of 9 November 2022, Annexure J).
(c)A copy of a document marked “Passport” on letterhead of Republic of Singapore, with the Applicant’s photograph, name and identifying information and a date of issue of 26 July 2022 and expiry of 26 July 2032. (Applicant’s affidavit of 9 November 2022, Annexure A).
The 24 August 2022 email from the Applicant’s legal representative also raised an allegation that an officer of the Department had accused the Applicant of having false travel documents and strongly denied this and foreshadowed a complaint.
On 25 August 2022, Mr Teckchandani responded by email to the Applicant's legal representative in the following terms:
I refer to your email dated 24/08/2022 below and wish to advise you that [the Applicant] has no matters ongoing with the Department, Minister or the courts.
[The Applicant] does not have a lawful right to remain in Australia and by law he must be removed from Australia as soon as reasonably practicable pursuant to s198 of the Migration Act 1958. The ABF will progress [the Applicant]’s removal as soon as reasonably practicable, noting he will not be removed to Kenya on 28 August 2022 as the required processes and approvals have not been completed to enable his removal with the ticket purchased. Although a person may be returned to a country that is not their country of nationality, this may only occur if they have the right of entry to and long term stay in the third country. The attached Kenyan EPASS does not fulfil the requirements of this criteria.
To continue removal progression and obtain the required permissions from the airline/s we will require [the Applicant]’s valid Singaporean passport. The passport may be dropped off or posted to the following address:
[omitted from publication]
Thank you for your cooperation.
Also on 25 August 2022, the Applicant’s legal representative replied by email to Mr Teckchandani. By that reply, the representative noted the “criteria stated in your email that is if [the Applicant] ‘have the right of entry to and long term stay in the country’” and then asserted that the Kenyan E-Pass allowed for the Applicant to reside in Kenya for 90 days and is evidence issued by the Kenyan Government to confirm the permission of entry by the Applicant and is no different from an Australian Electronic Travel Authority (subclass 601) which was said to allow 3 months’ stay for citizens of the specified country. Among other things, the email also enquired as to what time length is considered “long term stay” in a third country by the Second Respondent (days, months or years?) – so that the Applicant could comply with this criteria. It was also stated that the Applicant would cancel and re-book the air ticket scheduled for 27 August 2022 and that the representative was instructed to work with the ABF to facilitate the voluntary departure of the Applicant from Australia. That response did not respond to the request for the Singaporean passport.
On 12 October 2022, Ms Eid sent an email to the Applicant's legal representative in which she requested the Applicant's Singaporean passport be sent to the Department at the detention centre within 7 days of receipt of the email (physical address was provided in that email).
On 17 October 2022, Ms Eid conducted a further interview with the Applicant of which she kept a file note which was in evidence. Ms Eid’s evidence was that, during this interview:
(a)the Applicant verbally stated that he wanted to stay in Australia because he believed he will be killed if he goes to Singapore, and then when asked where else he would like to go if not Singapore, said he would like to go to Kenya because he has friends and can do business there; and
(b)she telephoned and had a discussion with the Applicant's legal representative who confirmed he had the Applicant’s Singaporean passport and, in response to Ms Eid’s request, the Applicant’s lawyer said he would drop the passport off to the detention centre the next week – and Ms Eid said that if the Second Respondent’s Department did not have the passport then they would apply for a new one and the current passport would then cease.
Also on 17 October 2022, at that further interview with Ms Eid, the Applicant withdrew his request for removal from Australia. On its face, that document appears to have been signed by the Applicant and Ms Eid.
On 1 November 2022, Ms Eid emailed the Applicant’s legal representative in which she stated:
Detainees are usually returned to their country of nationality. A person may be returned to a country that is not their country of nationality (ie.a third country) if they have the right of entry to and long term stay in the third country.
Factors to consider before returning a person to a third country include:
•right of long term entry to and stay in the country
•availability of travel documents
•nationalities of immediate family members also being removed
The department has no obligation to return a detainee to a specific city or town within the destination country.
In addition, the 3 month visitor visa [the Applicant] has provided is considered short term stay for the purposes of being removed to a third country.
On 2 November 2022, the Applicant was issued with another “E-Pass”. In evidence was a copy of a document marked “E-Pass” dated 2 November 2022 (EPASS- M8SDBWAR) on letterhead of The Republic of Kenya, Ministry of Interior and Coordination of National Government, Directorate of Immigration and Citizen Services, with the Applicant’s photograph, name and identifying information and with the words:
Date of issue 2 November 2022
Expiry date 31 January 2023
The holder of this E-Pass desires to travel to the Republic of Kenya for the purpose of.
Notes
The possession of a pass is not the final authority to enter the Republic of Kenya.
Engaging in any form of business or employment without a requisite permit or pass is an offense.
This document is issued under the authority of the Directorate of Immigration and Citizen Services.
(Applicant’s affidavit of 9 November 2022, Annexure I)
On 2 November 2022, a document was completed titled “application for identity”. The document included the notations “The passport is currently with Migration agent who will not provide to NSW Removals” and “Refuses to sign 2/11/2022” in the space provided for the Applicant to sign. At the hearing, the Applicant was questioned about the allegation that he had refused to sign the application for identity document and his evidence in this respect was:
(a)He was aware that, in the 4 months prior, officers of the Department had asked him or his solicitor to provide the original of his Singaporean passport so that he could be removed from Australia;
(b)He could remember signing a withdrawal form;
(c)He could not remember being asked to sign an application for a document of identity to be given to Singaporean authorities so his removal from Australia could be progressed, because he hadn’t provided the original of his passport;
(d)He could remember that he did refuse to sign that he wanted to go back to Singapore. He didn’t want to sign anything before speaking to his lawyer and that is what he told Ms Martha [Eid]; and
(e)When shown the travel document application that counsel was alleging he refused to sign, the Applicant said that he had not seen this document before, he couldn’t remember. And then said “Ms Eid asked me if I wanted to go back to Singapore. I said, “No, I don’t want to sign to go back, because I want to stay in jail”. That is all I remember.”
On 3 November 2022, a Removal Operations Officer by email from a TRACE email address requested the CEL Team (on which Ms Eid was copied) to commence a travel document application for the Applicant. That email noted the Applicant’s nationality as Singaporean and his removal as involuntary. Ms Turner of the CEL Team gave evidence of having received this email and its attachments, which were:
(a)Passport photo;
(b)Fingerprint form dated 17 October 2020;
(c)Copy of Singaporean passport with date of issue of 26 July 2022 and expiry 26 July 2032; and
(d)Application for a document of identity with the notations “The passport is currently with Migration agent who will not provide to NSW Removals” and “Refuses to sign 2/11/2022”.
On 7 November 2022, Ms Turner emailed TRACE and TRACE in turn asked Ms Eid for a removal date or itinerary for the Applicant and Ms Eid sent an email the New South Wales Travel Unit in which she requested a date for the Applicant’s removal to Singapore. That same day, Ms Eid sent an email in response to TRACE regarding the date of the Applicant’s proposed removal to Singapore in which she stated that she had requested a proposed date of 15 December 2022.
On 8 November 2022, Ms Turner sent an email request to the Singapore High Commission in Australia seeking the issuance of an emergency travel document for the Applicant in which she stated that removal was “currently” being arranged for 15 December (2022). Ms Turner attached to that email request the travel application and related attachments (the documents at 63(a) to (d) above) along with an ABF cover letter that alleged that the Applicant was not cooperating with the ABF in making arrangements for his return to Singapore, his passport was not “currently” in possession of the ABF and could not be used to facilitate his removal to Australia (the copy of the cover letter in evidence was dated 5 December 2022 but the evidence was that it was sent on 8 November 2022). When questioned in cross-examination, Ms Turner said the reference to not cooperating in her letter was intended to mean that he was involuntary to return to Singapore which was the only information she was provided. Also that she was informed that the Applicant was not cooperating with the ABF and that he had refused to sign the travel application form. She also accepted the proposition that it was possible that the Applicant had not in fact refused to sign the form but she did not believe her colleagues would have written that on the form if it was not true.

On 9 November 2022, the application in this matter was lodged with the Court. Attached to the application was an affidavit of the Applicant which annexed the second E-Pass issued on 2 November 2022 and a statement that the Applicant is married to a citizen of New Zealand, who cannot live in Singapore as “it is very difficult to live and establish a life there for us and to obtain her a visa” and, further, “My wife and I have decided to live together as Husband and Wife in Kenya when I depart Australia”.
On 11 November 2022, in conversation with Ms Turner an attaché of the Singapore High Commission informed Ms Turner that the Singaporean authorities would not issue a document of identity to the Applicant because he was recently issued a Singaporean passport. The attaché requested Ms Turner obtain the passport from the Applicant’s lawyer, which she said they would do.
On 14 November 2022, there was an email from the attaché to Ms Turner confirming their prior discussion which provided that the ABF was informed by the Applicant that his passport was in possession of his lawyer and that the ABF would check with the lawyer if it could be returned to the ABF. Also that day, Ms Turner notified the TRACE team of the Singapore High Commission’s advice that they would not issue a temporary travel document to the Applicant because his passport was valid. On 16 November 2022, Ms Turner asked the CEL Team to request that the Applicant’s lawyer or migration agent who was holding the passport to provide it to the ABF as soon as possible and advised them that if there was any refusal then to seek justification for the refusal and explain that this was preventing the Applicant’s lawful removal. Ms Turner asked the CEL Team to be advised of the result of this request as soon as possible.
On 22 November 2022, another officer of the Second Respondent’s CEL Team, a Ms Ashleigh Hibbert, sent an email to the Kenyan High Commission in which she requested information from the Kenyan High Commission about the requirements to apply for and be granted a Kenyan e-visa, and specifically referenced that the ABF had a Singaporean national in detention that had advised he had been granted a Kenyan e-visa and sought to be removed to Kenya, about whom she could provide more specific details if required. Ms Hibbert’s email was in evidence with the specific questions she had asked - regarding the length of stay and any work rights associated with the e-visa, and whether there are any questions on the application form relating to criminal convictions. In cross-examination, Ms Hibbert said she only became aware of these legal proceedings on that day when she was asked by her supervisor to contact the Kenyan High Commission.
Also on 22 November 2022, Ms Hibbert received an email in response from the Kenyan High Commission wherein they requested the visa number which Ms Hibbert in turn provided that same day.
On 29 November 2022, Ms Hibbert had not received a response from the Kenyan High Commission and she sent a follow up email in which she requested a response to her 22 November 2022 request.
On 1 December 2022, a procedural hearing was conducted providing for the matter to be listed for final hearing on 13 December 2022. Programming orders were made which included for the filing of materials prior to the hearing.
On 2 December 2022, an amended application was filed on behalf of the Applicant.
Also on 2 December 2022, the Applicant’s legal representative deposed to an affidavit which annexed a document described as a copy of issued flight booking for travel to Kenya on 20 December 2022. On its face, the attached document was an “e-ticket receipt” for a flight departing Sydney, Australia on 20 December 2022 and arriving in Nairobi, Kenya on 22 December 2022. By the record in evidence, there is no apparent return flight reflected in that e-ticket receipt.
On 5 December 2022, Ms Hibbert attended the premises of the Kenyan High Commission to lodge an application for travel document. Ms Hibbert’s evidence was that the attaché there apologised for being busy and undertook to get back to her that afternoon.
On 6 December 2022, Ms Hibbert received a response from an attaché of the Kenya High Commission in which it is relevantly stated that the Applicant “has been declared a prohibited Immigrant in Kenya”. The email was relied on and received only for the purpose of establishing the fact of the record (the communication and statements in it having been made) and not the truth of its contents. In that email, the attaché stated:
Dear Sarah,
[…]
My appreciation to Ashleigh for bringing to our attention about the EPASS for [the Applicant].
Persons over eighteen years old and wanting to visit Kenya, and whose Countries require visa to enter Kenya, are issued with visa upon application and payment of the prescribed fee for each category of visa as reflected on the official visa portal: The EPASS is applied for, and issued to children under 18 years old who are accompanying their parents/guardians to Kenya on Tourism. It is also issued to Nationals from Countries who do not need visa to enter Kenya.
For [the Applicant], his Kenya EPASS is treated as a very serious cybercrime offence. Even if he would have acquired a single entry visa for visitation under the manipulation of the system, it is, too, a serious offence of giving false information as there is a question on the visa application relating to criminal conviction, plus having aa return ticket.
This is, therefore, to inform that [the Applicant] has been declared a prohibited Immigrant in Kenya due to his on-line fraud of trying to acquire an evisa to enter Kenya though meant for other categories of applicants as given above.
Once again, thank you for provision of information.
Kind Regards,
[deleted]
Immigration Attaché
Kenya High Commission
[…]
[sic.]
On 12 December 2022, the Applicant filed a responsive affidavit in these proceedings in which he deposed, among other things, but relevantly:
(a)He was assisted by his lawyer, Mr Iyare Lucky Ehimudiamen, to complete and lodge the online application forms for the two Kenyan E-Pass visas in evidence dated 20 August and 2 November 2022 respectively;
(b)The application was completed on the Kenya Government website;
(c)There was no question asked on the online form relating to his criminal conviction;
(d)There was no question or requirement in the online application form requesting or asking about a return ticket.
The Applicant attached a document to his reply affidavit which he described in his affidavit as “a draft example copy of an E visa application similar to that submitted by me it was drafted on 7 December 2022 from In cross-examination, the Applicant was shown a document which he identified as a visa application to apply for an e-visa and, when pressed about whether this document was completed with the help of his solicitor to show the Court in this matter, his evidence was: it “is the visa that I applied for- a part of my eVisa. It’s not to show the court or whatever” and later “I can’t remember.”
Also in that responsive affidavit of 12 December 2022, the Applicant:
(a)Denied being untruthful as to his criminal conviction and gave evidence that, if he had been asked a question about his criminal conviction in applying for the E-Pass, he would have provided accurate information;
(b)Denied being untruthful as to his airfares and ticket purchase arrangements and gave evidence that, if he was required to purchase a return ticket for the online application process then he would have done so with a return destination not Australia - he said the flight tickets were purchased after the visa permit dates and not before; and
(c)Denied engaging in any criminal activity or serious cybercrime offence or manipulation of the system; and
(d)Gave evidence that he had not received any correspondence from the Kenyan Government cancelling his E-Pass or notifying him that he would not be allowed entry to Kenya.
As of at least the time of Ms Turner having sworn her affidavit on 8 December 2022, to Ms Turner’s knowledge, the Singapore High Commission had not issued the Department with a travel document for the Applicant to enable his removal.
As at least the time of the hearing, on 13 December 2022, the Second Respondent was yet to obtain possession of the Applicant’s Singaporean passport.
Also as of the time of the hearing, on 13 December 2022, Ms Eid was asked why she as the Applicant’s removal officer did not personally do anything with respect to his removal to Kenya in the period from August until November 2022. In response, Ms Eid’s evidence was “first of all, I did not have a passport and I requested for you [the Applicant’s representative] to send the passport to me and I did not have the passport” and “..we need to actually have passports so we can actually activate and – and start progression of removals”. Ms Eid did not accept the proposition put to her (a number of times in cross-examination) that the reason she did not consider the Applicant with respect to Kenya was because a 3-month visa was considered to be a short-term stay. Rather, she said, once she had the Applicant’s passport she would have reassessed and they would have had discussions. In the context of this questioning, Ms Eid also accepted that the physical passport is only required at the time of boarding the plane and that there is no information on the passport that she did not have access to by having the electronic copy of the passport. She also did not accept the final proposition that she was not going to consider the Applicant’s removal to Kenya because it was a short-term stay and rather said she would have to consider all options.
Kenyan legislation
The Respondents filed an affidavit of a partner of law firm HWL Ebsworth Lawyers, a Ms Sophie Verity Lloyd, which deposed to legal research she had conducted and attached copies of what the witness believed to be a copy of the Kenya Citizenship and Immigration Act 2011 and the Kenya Citizenship and Immigration Act Regulations 2012. By this evidence, ss.33, 34 and 35 of that Act relevantly provide:
33 Prohibited Immigrants and inadmissible persons
(1)For purposes of this Act, a prohibited immigrant is a person who is a not a citizen of Kenya and who –
(a) not having received a pardon -
(i) has been convicted in Kenya or any country of an offence created under a statute for which a sentence of imprisonment is for a minimum term of three years;
[…]
(5) Subject to section 34 the entry into and residence in Kenya of a Prohibited Immigrant or an inadmissible person shall be unlawful, and a person seeking to enter Kenya shall, if he or she is a prohibited immigrant or inadmissible person, be refused permission to enter or transit through Kenya, whether or not he or she is in possession of any document which, were it not for this section, would entitled him or her to enter or transit through Kenya.
34 Residence
(1)A person who is not a citizen of Kenya or an asylum seeker shall not enter or remain in Kenya unless she or he has a valid permit or pass.
(2)Subject to the provisions of this section, the presence in Kenya of any person who is not a citizen of Kenya shall, unless otherwise authorized under this Act, be unlawful, unless that person is in possession of a valid work permit or a valid residence permit or valid pass.
(3)This section shall not apply to –
[…]
(g) any person, or class or description of persons, exempted by the Cabinet Secretary from the provisions of this section by notice in the Gazette.
[…]
35 Issuance of visas
(1)The Cabinet Secretary shall from time to time, make regulations, prescribing the types of visas and specifying person or persons or groups of persons and countries whose citizens shall be required to obtain or exempted from obtaining visas before entering Kenya.
(2)A person who wishes to obtain a visa shall apply to the Director in the prescribed form.
(3)A visa shall be issued by the Director or such officers as may act under powers delegated by the Director.
(4)Notwithstanding subsection (3), possession of a visa under this section shall not exempt any person entering Kenya from complying with any legislation in relation to immigration.
It is relevant to note at this point that the evidence of Ms Lloyd was opposed by the Applicant, on the basis of being filed one day outside of the program and the resultant unfair prejudice said to have been occasioned on the Applicant who did not call expert evidence in response. The Applicant was invited to have a one or two day adjournment in order to do so, which opportunity was declined, and the affidavit of Ms Lloyd and its annexures were received.
THE DUTY TO REMOVE THE APPLICANT FROM AUSTRALIA
Statutory and legal framework
Section 476 of the Act confers on this Court the same original jurisdiction in relation to migration decisions as that of the High Court of Australia under paragraph 75(v) of the Constitution.
A “migration decision” is defined at s.5 of the Act to mean a “privative clause decision”. Section 474 relevantly provides:
(2)       In this section:
“privative clause decision” means a decision of an administrative character made, proposed to be made or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)
(3)       A reference in this section to a decision includes a reference to the following:
[…]
(g)       doing or refusing to do any other act or thing;
[…]
The Act provides for an “officer” who knows or reasonably suspects that an “unlawful non-citizen” is in the migration zone to detain the person: s.189(1). And, in turn:
(a) An “officer” is defined by the legislature to include officers of the Department, members of certain police forces and persons or classes of persons authorised as such by the relevant Minister: s.5 of the Act; and(b) The term “unlawful non-citizen” is defined to include a non-citizen who does not hold a visa: ss.13 and 14 of the Act.
The duration of detention of an unlawful non-citizen is proscribed to include, among other things, until he or she is removed from Australia under ss.198 or 199: s.196(1)(a) of the Act.
The authority and duty to detain an unlawful non-citizen pursuant to s.189(1) for the period specified in s.196(1) is attended by an obligation on the executive to effect the removal of an unlawful non-citizen “as soon as reasonably practicable”: Commonwealth v AJL20 (2021) 391 ALR 562 (AJL20). This obligation is contained in s.198, which relevantly provides:
198 Removal from Australia of unlawful non-citizens
(1)An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.
[…]
Removal of unlawful non-citizens in other circumstances
[…]
(6)An officer must remove as soon as reasonably practicable unlawful non-citizen if:
(a) the non-citizen is a detainee; and
(b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c)one of the following applies:
(i)the grant of the visa has been refused and the application has been finally determined;
(ii)the visa cannot be granted; and
(d)the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
These obligations at s.198 (as with the other sub-paragraphs of s.198) are expressed as on an officer; to remove an unlawful non-citizen from Australia; at the time that is as soon as reasonably practicable to do so. The legislature has incorporated the qualifying phrase “as soon as reasonably practicable” as distinct from reasonable and practicable. In M38/2002 v Minister for Immigration and Indigenous Affairs [2003] FCAFC 131 (M38/2022), the Full Court observed at [65]:
Whether or not the removal of an unlawful non-citizen is practicable seems to be largely, if not entirely, concerned with whether the removal is possible from the officer’s viewpoint. The word “reasonably” in the expression “reasonably practicable” limits or qualifies what would otherwise be an almost absolute obligation. The removal of a non-citizen may be practicable in the sense that it is feasible, but not “reasonably practicable” as required by s 198(6) of the Act.
(Citation omitted)
The applicant in such a case as this bears the onus of proving that the Commonwealth has failed to discharge, or has been dilatory in the discharge of, its duty at s.198(6) of the Act by failing to take any steps, or any meaningful or reasonable steps, to remove them: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 as cited in BHL19 (No 2) at [163]; BHL19 (No 2) at [193]; AOU21 v Minister for Home Affairs [2021] FCAFC 60 at [195].
The duty of removal is not absolute in that it does not arise as soon as the conditions expressed in ss.198(1) and 198(6) have been satisfied: M38/2002 at [59]-[64]. Indeed there is not yet an unperformed duty that may be subject of mandamus until it has become reasonably practicable to remove an unlawful non-citizen from Australia – therein an application of this nature will attract focus on the activity (or lack thereof) in consideration, identification and pursuit of options to remove: M38/2002 cited in DXN21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] FedCFamC2G 589 (DXN21) at [72]-[73].
Such consideration of the discharge of the duty at s.198(6) will turn on the particular circumstances of the case and involves a range of considerations (or limitations on what can be considered) in a reasonable practicability assessment. Those considerations include, but are not limited to, factors relating to the detainee facing removal, what will happen to a person after they are removed and the interests of third party states: M38/2002 at [66], [69]; BHL19 (No 2) at [166]- [170]; NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506; DXN21 at [82]; WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 (WAIS) at [58]. In the oft-cited passage from WAIS, French J (as he then was) explained at [58]:
The term “as soon as reasonably practicable” in s 198 is an evaluative term which is to be assessed by reference to all the circumstances of the case. What is reasonable is to be determined, inter alia, by reference to the practical difficulties that may lie in the way of making arrangements for removal which involve the cooperation of other countries whether in respect of the particular applicant or generally in relation to the class of applicants of which he is part. Provided arrangements are being sought generically or specifically by reference to the applicant with reasonable expedition it is difficult to see how delays beyond the control of the Minister and his officers can be taken into account in determining what period for removal falls outside the scope of the terms “as soon as reasonably practicable” in s 198.
The statute neither proscribes nor limits the place or destination of removal for an unlawful non-citizen under s.198. In Plaintiff M70/2011 v Minister for Immigration and Citizenship & Anor [2011] HCA 32 (Plaintiff M70), a majority of the High Court of Australia considered that the Act does not specify “to where” a person may be removed: at [89]. Further, the “general expectation that Australia can and should look to the country of a person’s nationality to receive that person on removal from Australia is necessarily subject to some qualifications”: Plaintiff M70 at [93]. In Al-Kateb v Godwin [2004] HCA 37 (Al-Kateb), a case involving a stateless person who had requested removal but was not being removed as a foreseeable possibility, Hayne J at [226]-[227] (in the majority) considered that:
The period of detention is fixed by reference to the occurrence of any of three specified events. Detention must continue "until" one of those events occurs. The event described as being "removed from Australia under section 198" is an event the occurrence of which is affected by the imposition of a duty, by s 198, to bring about that event "as soon as reasonably practicable". That compound temporal expression recognises that the time by which the event is to occur is affected by considerations of what is "[c]apable of being put into practice, carried out in action, effected, accomplished, or done". In particular, the expression recognises that the co‑operation of persons, other than the non‑citizen and the officer, will often (indeed usually) be necessary before the removal can occur. The duty to remove must be performed within that time. And so long as the time for performance of that duty has not expired, s 196 in terms provides that the non‑citizen must be detained.
It may be accepted that “as soon as reasonably practicable” assumes that the event concerned can happen, and that, if there is any uncertainty, it is about when the event will happen, not whether it will. Where, as here, the person to be removed is stateless, there is no state to which Australia can look as the first and most likely receiving country. But whether the non-citizen is stateless or has a nationality, Robtelmes v Brenan reveals that the removal provisions of the Act are concerned with what was there identified (338) as the corollary to, or complement of, the power of exclusion. Removal is the purpose of the provisions, not repatriation or removal to a place. It follows, therefore, that stateless or not, absent some other restriction on the power to remove, a non-citizen may be removed to any place willing to receive that person. It follows that, unless some other provision of the Act restricts the places to which a non-citizen may be removed (and none was said to be relevant here), the duty imposed by s 198 requires an officer to seek to remove the non-citizen to any place that will receive the non-citizen. And the time for performance of the duty does not pass until it is reasonably practicable to remove the non-citizen in question.
(emphasis in original).

There is vast support in the authorities for the proposition that whether removal is reasonably practicable in a particular case will depend upon whether there is another country that will facilitate entry. The authorities acknowledge the limited ability of Australia to influence receipt by another country and that cooperation of both the detainee and third country will be necessary before the removal can occur: for example, Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17 at 36, 41, 49; SZSZM v Secretary, Department of Immigration and Border Protection [2016] FCA 1477, [9]-[10]. In BHL19 (No 2), a case involving a non-citizen who was found to be owed protection and could not be returned to their country of origin or citizenship, Wigney J summarised those authorities at [169]-[171]:
The circumstances in some cases may undoubtedly be such that it could not be said to be reasonably practicable to remove an unlawful non-citizen to a country if that country was unwilling to permit the person to enter the country, or unwilling to otherwise cooperate with Australia, in relation to the removal of the person to that country: see NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506; [2003] FCAFC 292 at [48], [53] (Wilcox, Lindgren and Bennett JJ); Al-Kateb at [218], [226] (Hayne J); WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 at [58] (French J); M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; [2003] FCAFC 171 at [65]-[66] and [68] (Goldberg, Weinberg and Kenny JJ); WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 84 ALD 655; [2004] FCA 1332 at [75] (French J); Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465; [2006] FCA 1368 at [36] (Besanko J).
It does not follow, however, that it was somehow incumbent on the applicant in this case to identify countries that might be willing to receive him or otherwise cooperate with Australia in relation to his removal. […]
[…] It could scarcely be accepted that it would be reasonable for the Commonwealth to remove an unlawful non-citizen to a country, other than their country of nationality or ordinary residence, whether voluntarily or involuntarily, simply on the basis that, in the ordinary course, a traveller might be able to arrive and remain in that country for a period of time, either without a visa, or with a visa obtained upon arrival. It could not seriously be suggested that it would have been reasonable for the Commonwealth to simply put the applicant on an aeroplane bound for one of those countries on the basis that he could enter the country without a visa, or could apply for a visa at the airport upon arrival.
The conduct of the detainee may legitimately bear some relevance, as highlighted by the observation of French J in WAIS at [61] that:
A detainee cannot, in effect, create a circumstance which negatives any reasonable likelihood that he can be removed in the foreseeable future by withholding his consent or cooperation to a particular avenue for removal and specifically to removal to the country from which he came.
Where the duty vested in an authorised officer is found to suffer from interference in the form of a policy, the Court may find the policy to be invalid: ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98; 360 ALR 64 at [131]-[133].
It is common ground that policies of the executive in respect of the exercise of powers and performance of duties under the Act may promote rationality in decision-making and will be valid so long as they are consistent with, and do not impinge upon, the relevant statute: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 at [54. [62]; Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) ALD 634 at 641. Invalidity may be found in circumstances of “an attempted substitution of inconsistent departmental criteria for those which the Parliament has enacted”: Green v Daniels (1977) 51 AJLR 463 at [26].
Where the executive has failed to carry out its duty under s.198 of the Act (remove a non-citizen from detention as soon as reasonably practicable), the appropriate remedy is a writ of mandamus: AJL20.
Here, the forms of relief sought by this application also include mandamus to direct exercise of the power at s.218 of the Act. That section provides:
218 Vessels required to convey deportees or other removees
(1) Subject to section 217, if a person is to be removed or deported, the Secretary or Australian Border Force Commissioner may give the controller of a vessel or vessels a written notice requiring the controller to transport the person from Australia to a destination of the vessel or one of the vessels specified in the notice.
(2) Subject to sections 219 and 220, the controller must comply with the notice within 72 hours of the giving of the notice or such further time as the Secretary or Australian Border Force Commissioner allows.
Consideration
Jurisdiction
At the heart of the amended application in this matter is the contention that the Applicant is owed a duty to be removed from Australia as soon as reasonably practicable pursuant to s.198(6) of the Act.
There is no doubt that the Applicant in the present case meets the definition of unlawful non-citizen. Further, the grant of his protection visa was refused, the application was pursued to finality and the Applicant has not made another valid application for a substantive visa that can be granted in Australia. Accordingly, the officer’s obligation at s.198(6) is and was engaged following the final determination by the High Court of Australia on 16 June 2022.
None of the grounds or forms of pleaded relief in the amended application contended for an obligation that the Applicant be removed as soon as reasonably practicable under s.198(1). In any event, whilst the evidence established that a request for removal was made by the Applicant’s legal representative, of the Second Respondent and in writing (after the duty under s.198(6) had otherwise been engaged) on 24 August 2022, that request was expressly conditional on removal to Kenya. Such conditional request was considered in WAIS as not contemplated by s.198(1). This judgment therefore proceeds in consideration of the obligation that arises under s.198(6) of the Act.
The forms of relief sought by the amended application may be summarised as:
(a)At 8, a declaration that from at least 28 August 2022, officers of the Commonwealth have failed to discharge their duty under s.198(6) to remove the Applicant as soon as reasonably practicable;
(b)At 9 and 4, writs of mandamus in a form which would direct a respondent or authorised officer: to perform the duty under s.198(6) by removing the Applicant from Australia to Kenya applying his Qatar Airways ticket; and to issue a notice under s.218 that would require the controller to transport the applicant to the relevant vessel for that purchased flight.
(c)At 2 and 10, a declaration that the policy of the First Respondent that removal of the Applicant as an unlawful non-citizen under s.198 to a country that is not his country of nationality may only occur with a right of entry to and long term stay in the country is not supported by the Act and is invalid or in the alternative that the Applicant’s right of entry into Kenya and to stay in Kenya for 90 days as evidenced in the Applicant’s Kenya E-Pass M8SDBWAR satisfies the requirement of the policy.
The Applicant sought to position the case as about the refusal of the Second Respondent’s officer(s) to facilitate the Applicant’s removal from Australia to Kenya because of the First Respondent’s “long-term stay” policy. By the representative’s email of 24 August 2022, a request (which could be characterised as a demand) was conveyed to the Department. By the Department’s email responses of Mr Teckchandani on 25 August 2022 and of Ms Eid (the Applicant’s removals officer) on 1 November 2022, that request was unequivocally refused in writing. The Respondents specifically accepted that the Applicant’s application could be characterised as seeking review of a refusal by an officer to remove him from Australia as required under s.198(6) of the Act which is a migration decision in respect of which the Court has jurisdiction under s.476 of the Act.
On the materials before the Court and in the particular circumstances of this case, I am satisfied that at least the emails of Mr Teckchandani of 25 August 2022 and Ms Eid of 1 November 2022 constitute records of a decision of administrative character (doing or refusing to do any other act or thing) that is proposed to be made or required to be made in the exercise of a statutory function conferred by the Act. Accordingly, the application relates to a privative clause decision which is a migration decision and the jurisdiction to determine the application as amended is enlivened.
As earlier referenced, for a writ of mandamus to issue, the Applicant bears the onus to prove that the relevant officers failed to discharge (or were dilatory in the discharge of) the duty at s.198(6) of the Act by failing to take any steps, or any meaningful or reasonable steps, to remove them. The Court’s power to make declarations is a wide discretionary power which may, among other factors, involve considerations of whether the declaration would produce a foreseeable consequence, utility, public interest, any need for clarification of the law, any purpose to operate as a warning: BHL19 (No 2) at [214]; Forster v Jododex Australia Pty Limited (1972) 127 CLR 421; [1972] HCA 61 at 437-438 (Gibbs J), citing Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438 at 448 (Lord Dunedin); Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89; [1993] FCA 105 at [38] (Sheppard J).
Performance of the s.198(6) duty in the Applicant’s case
The Applicant does not have a lawful right to remain in Australia and, by s.198(6) of the Act, he must be removed from Australia as soon as reasonably practicable. There is no question that the duty was engaged following the High Court’s decision on 16 June 2022 – but it falls to determine whether the occasion for performance of the duty has yet arisen in the sense that removal of the Applicant has become reasonably practicable.
As will be apparent from the evidence before the Court, this is not a case of complete inaction or abject delay on the part of the responsible officer(s) who bear the duty under s.198(6). Some preparatory steps were taken in 2020 as required by the Department’s removal planning procedure and remain necessary to facilitate the Applicant’s removal from Australia. Then, since the duty was engaged on 16 June 2022, there is evidence before the Court to establish allocation to a removals officer on 20 June 2022 and reasonably regular activity of certain officers of the Second Respondent. Those steps are detailed above and, for present purposes, include the following directed at advancing the Applicant’s removal from Australia to Singapore: internal pre-removal clearance assessment request on 28 June 2022; interview of the Applicant on 5 August 2022; pre-removal clearance assessment on 9 August 2022; requests made for the Applicant’s Singaporean passport to be posted or delivered to the Department on 25 August, 12 and 17 October 2022; on 2, 3, 7, 8, 11, 14 and 16 November 2022, communications with the Applicant, internally and with the Singaporean High Commission regarding the issue of a document of identity or emergency travel document; and, on 7 November 2022, an internal request for a travel itinerary or date of removal to Singapore.
The Applicant contended that the inaction or delay was and is occasioned by the officer(s’) refusal to take steps to remove the Applicant from Australia to Kenya. On the evidence before the Court, it was not until the email of 24 August 2022 that the responsible officers of the Second Respondent were notified in writing of the Applicant’s desire to be removed from Australia to Kenya which is understood to have attached the first E-Pass with a proposed arrival date of 29 August 2022 and evidence of a return flight to Australia (arriving in Kenya on 28 August and returning to Sydney on 8 September 2022). Since that request, there is evidence before the Court to establish that certain officers of the Second Respondent have taken steps to investigate removal of the Applicant from Australia to Kenya as a pre-cursor to the possibility of his removal there. First, at least some consideration was given to the Applicant’s request (or demand) to be removed to Kenya – as much is apparent from the initial response of the Department on 25 August 2022, the interview of the Applicant on 17 October 2022 in which his intentions regarding Kenya were discussed with Ms Eid and the further response of Ms Eid on 1 November 2022. There is no evidence that the second, latest E-Pass issued on 2 November 2022 with an expiry of 31 January 2023 was provided to the Department other than via the application commencing these proceedings on 9 November 2022. Since then, the following steps were taken which were plainly directed at investigating the Applicant’s removal to Kenya: communications from the Department to the Kenyan High Commission on 22 and 29 November 2022; and a visit to the Kenyan High Commission office on 5 December 2022 to follow up. There is no evidence of the one-way flight ticket to Kenya departing 20 December 2022 being provided to the Second Respondent until it was filed by affidavit of 2 December 2022. There is no evidence of any further action by the Department in respect of the Applicant’s removal to Kenya after a response was received from the Kenyan High Commission on 6 December 2022. On the evidence before the Court, at least the actions of Ms Hibbert to proactively advance the possibility of removal to Kenya were taken after the proceedings in this matter were commenced and apparently responsive to these legal proceedings (which might warrant some criticism of the Department’s approach especially when regard is had to Mr Gillard’s evidence of its own “policy and practice”, noting however the mere possibility that the latest E-Pass bearing such an expiry date was first tabled on commencement of these proceedings and may have legitimately prompted such activity). In any event, these steps are nonetheless established facts that remain relevant to the remedy of mandamus which requires consideration of whether the duty was unperformed both before and following the commencement of the proceeding and up to the date of judgment: DXN21 at [99]-[101].
This is also not a case where the only way the Applicant could be removed from Australia is removal to a third country – which plainly distinguishes the circumstances from that of BHL19 (No 2) (on which the Applicant here placed much reliance) and other cases involving third country removals. The Applicant is a citizen and resident of Singapore and holds a valid travel document (passport) to enter Singapore. On the evidence as before this Court in the present context, the Applicant exercised all options but did not secure a finding of protection within the meaning of s.197C(4)-(7) which could tell against removal to Singapore.
In this case the Applicant, who does not necessarily bear the burden of establishing the third country to which he can be removed, sought to persuade the Court that his removal to Kenya is reasonably practicable by pointing to his possession of the latest Kenyan E-Pass (issued on 2 November 2022 with an “expiry date” of 31 January 2023) and evidence of a pre-paid flight ticket from Australia to Kenya (with a travel departure of 20 December 2022, understood to presently be converted to a flight credit or voucher as before). He said this was evidence of his right to enter the Republic of Kenya.
The Respondents sought to contradict this evidence by challenging the alleged right to enter Kenya.
In this respect, an inspection of the E-Pass documents on which the Applicant relied reveals the plain words that the possession of a pass is not the final authority to enter the Republic of Kenya. Neither E-Pass nor any other evidence before the Court probatively established the character or terms of the E-Pass including the actual duration of stay that would be permitted. In this respect, the 90-day duration did not appear to be disputed (see, for example, Ms Eid’s email of 1 November 2022) but on the face of the documents in evidence the first E-Pass was issued with a proposed arrival but no expiry date and the second, latest E-Pass with an expiry date some 90 days after the date of issue. Depending on the time of arrival, but at least in the present circumstance, the latest E-Pass would expire well short of a 90-day stay.
The evidence of the correspondence that the Second Respondent ultimately received from the attaché of the Kenyan High Commission, on 6 December 2022, included statements that the attaché considered the Applicant does not meet a number of requirements to be permitted entry to the Republic of Kenya at all (temporarily or permanently). Whilst that evidence was received on the basis it established the record and not necessarily the truth of its contents, it nonetheless follows that the Second Respondent had and has in its possession a communication from a representative of the Kenyan High Commission which plainly records that an attaché considered that the Applicant has been declared a prohibited immigrant and that his E-Pass would not allow travel to Kenya for the Applicant’s purpose given his criminal convictions. Those statements were consistent with the Kenyan legislation brought before the Court in these proceedings.
It ought be acknowledged that the Court did not have the benefit of any expert evidence as to the operation of the Kenyan law or the possibility of any pardon or exemption that might apply to the Applicant’s circumstance. However and without making any finding as to the truth of the attaché’s statements, there being no evidence of any exemption or attempt to obtain one, there remains an obvious and concerning likelihood that the Applicant is not entitled to enter Kenya via the latest E-Pass or otherwise. The Applicant may not need to discharge the onus of positively establishing his right to enter Kenya but, in the face of the evidence that is before the Court and without more, he does not discredit the Second Respondent’s efforts or successfully persuade the Court that Kenya is willing to receive him or that the proposal to simply remove the Applicant by putting him on a plane to Kenya is reasonable in the manner contemplated in BHL19 (No 2).
Other context of relevance is the evidence that officer(s) of the Second Respondent have requested the Applicant through his legal representative to provide his Singaporean passport on at least 3 occasions and he has to date produced a copy but not the original document which remains in possession of his lawyer. I accept the evidence that the original is a necessary requirement in order to ultimately facilitate the final stage of the Applicant’s removal from Australia in terms of boarding a plane. Some concessions were appropriately made in cross-examination to the effect that there are other preparatory steps that the Department’s officers can take without the physical passport. However, the evidence established that there are sound and practical reasons why a physical passport would be required before public expense is incurred in purchasing plane tickets and arranging escorts. On the one hand, it is difficult to conceive of how the Applicant’s failure to produce the Singaporean passport to date was anything other than a deliberate delay tactic. By his own evidence, even if he was confused about the form he was asked to sign on 2 November 2022, the Applicant certainly understood that he did not want to sign anything that might have been perceived as his consent to return to Singapore. But, in fairness to him, the Applicant’s representative was advised that if the document was not voluntarily produced then the Department would obtain a Singaporean travel document through other means.

Regardless of when the physical Singaporean passport is actually required by the Department, or whether there was more the officers of the Department could have done to extract it from the Applicant or his lawyer, the provision of it would appear to be a step that is within the Applicant’s power to take to progress his removal from Australia which he has so far failed to take. The consequence of this is that the officers of the Department have had to take additional steps to try and acquire an emergency travel document. This has caused delay and frustrated the Second Respondent’s officers in the performance of their duty.
For completeness, the Applicant’s evidence of his rationale for seeking removal to Kenya as a third country went no further than an expression of his personal desire or choice. He has not requested any additional third country be explored, or sought to draw any link with the third country of his wife’s nationality.
Another limb of the Applicant’s argument was focussed on the policy to remove only to destinations or places of “long-term stay”. It is uncontroversial that the Department has a policy requiring removal of a detainee only to a country of citizenship or a country where they have a right of entry and long-term stay which existed at the relevant times and continues in operation.
The policy document itself does not define or elaborate on the meaning of “right of entry” or “long-term stay”. The evidence of the witness with apparent seniority on this issue, Mr Gillard in the Removals Policy section of the Second Respondent’s Immigration Group, was that 12 months is “commonly” accepted as the minimum length of a long-term stay and permanent residency is a “benchmark” of sorts that the Department applied(s). But both Mr Gillard and importantly Ms Eid, being the removals officer concerned with the Applicant’s case, were careful to qualify that it would depend on the destination and the circumstances of the visa and were not prepared to give evidence of any blanket rule or any minimum- or maximum-duration of a long-term stay. Indeed, Ms Eid was steadfast in her evidence that she would have to consider all options. The evidence rose only so high as to establish that “long-term stay” is directed at permanency in the interests of avoiding diplomatic tensions and having regard to considerations like support services, relevant employment and education opportunities and family connections.
It may fairly be accepted that the policy as described in evidence is somewhat of a nebulous concept which nonetheless has a bearing on the options an officer will consider for removal from Australia - but its application will depend on the circumstances of the individual non-citizen and the view of the particular removals officer. Mr Teckchandani was not called to give evidence and as such the reason(s) for the initial refusal communicated in his email of 25 August 2022 was not able to be tested. On its face, those reason(s) expressly included that the required processes and approvals had not been completed to enable the Applicant’s removal with the ticket he had purchased (a reasonable conclusion given the request was made some 4 days prior to the date of pre-purchased flight departure – which, by the removals planning checklist in evidence, would likely be insufficient notice for other steps such as health discharge and other assessments to be undertaken – and the evidence provided was of a ticket to return to Australia on 8 September 2022). In any event, Mr Teckchandani also expressed by those reasons that the application of the Department’s policy meant that removal to Kenya would not be facilitated on the Applicant’s Kenyan E-Pass. On the face of that first E-Pass, it was not a final permission or authority to enter the Republic of Kenya, it was temporary with a proposed arrival date of 29 August 2022. In accordance with the evidence of Mr Gillard about the Department’s policy and practice where a detainee identifies a link to a third country, the Applicant’s request required investigation. Ms Eid then conducted an interview with the Applicant on 17 October 2022 in which his intentions and rationale for requesting removal to Kenya were discussed before she confirmed, by email of 1 November 2022, that the first E-Pass provided by the Applicant was considered a short-term stay for the purposes of being removed to a third country. It is unclear precisely when the latest E-Pass issued on 2 November 2022 with the expiry date of 31 January 2023 was provided to the Department’s officer(s) but, as earlier identified, it would appear this was only at the time when these legal proceedings were commenced on 9 November 2022. After that time, steps were taken to verify or validate the Applicant’s right to enter the Republic of Kenya - by engaging with attaché(s) of the Kenyan High Commission, who advised in response that the Applicant was declared a prohibited immigrant.
RESOLUTION
In my opinion and in all the circumstances of this case, the Applicant has not established that the Commonwealth is not taking and has not taken all reasonable steps to secure his removal from Australia as soon as reasonably practicable.
The responsible officers of the Second Respondent have not been dilatory in their duty and have been making or endeavouring to make arrangements for the Applicant’s removal to his country of citizenship, Singapore, with reasonable expedition. There has been delay on account of the fact that the physical Singaporean passport is not in the Department’s possession, which is beyond the control of the Minister and their officers and is not taken into account in determining what period for removal falls outside the scope of the terms “as soon as reasonably practicable” in s.198(6). In my view, the valid Singaporean passport and the absence of any protection finding (whilst not of itself conclusive) is important context to the proper assessment of what “as soon as reasonably practicable” entails in these particular circumstances and tends to indicate there is nothing necessarily or inherently unreasonable about Australia first looking to Singapore as the non-citizen’s country of origin or nationality as a receiving country upon removal.
The relief sought in this Court is crafted as to be directed only at the Applicant’s removal to a third country, specifically Kenya. As the cases make clear and the Respondents in the present case accept, there is no prohibition on removal to a third country and again depending on the circumstances, the officer’s duty may so extend to exploring or investigating third countries for the non-citizen’s removal. However, again, this case is different to that where the non-citizen is stateless or owed protection and has no country of origin to which to be returned. In these circumstances, and especially where the Applicant has a criminal history that on the evidence is likely to impede his entry to many other countries, it is not reasonable to expect the officers of the Second Respondent to expend their efforts searching (in vain) for third countries. In my view it is at least reasonable that the responsible officer(s) explore other third countries proposed by the Applicant, especially here where he has produced an E-Pass and a pre-purchased plane ticket to Kenya.
On the evidence, the Department’s responsible officers were justified in their approach to seeking to verify the Applicant’s right to enter under the Kenyan E-Pass and their approach to considering the Applicant’s ability to reside there with some support services or ability to gain employment is also reasonable and consistent with the authorities. The efforts taken by the Second Respondent’s officers are, in my view, reasonable.
The duty of removal is to be considered in its proper context, which is the loss of liberty of the non-citizen who remains in detention pending its discharge. In these particular circumstances this draws into focus the importance of cooperation of the non-citizen, who has placed his efforts to date on cooperation with removal to Kenya but not taken the requested steps (namely not produced his passport) as necessary in order to cooperate with removal to Singapore where he does not want to go.
Whether the Respondents could and should have done more, or there are other options open to be investigated, it is not for this Court to dictate the choice to be made in granting mandamus. There is no warrant for reading in, as the Applicant invited the Court to do, to s.198(6) an obligation to remove the Applicant to Kenya or indeed any particular place at all.
In the circumstances of this particular case, the application of the Department’s policy is consistent with principles from the case authorities as to the practicalities of cooperation and willingness of the third country - and does not impose an additional constraint on the exercise of the s.198(6) duty that is inflexible or unreasonable. Without more, I would not find that the policy is inconsistent with the law and therefore plainly invalid or an attempted substitution of inconsistent criteria with those enacted by the legislation.
Even if I were wrong about that, and the policy were invalid, I would not exercise the discretion to make a declaration as sought in the present case. First, because the policy established is that of the Department (not strictly the Minister). And, importantly, I would decline to exercise the discretion particularly given the findings above that the only country to which the Applicant has requested to be removed is not apparently willing to receive him and such remedy is therefore futile and such expression of disapproval not warranted. In closing submissions, the Applicant urged the Court to find the policy was invalid in order to resolve further disputes of an undefined nature. In this respect, I also decline to indulge in a hypothetical escapade and make declaration(s) directed at scenarios posed by the Applicant that do not apply to his circumstances.
In conclusion, the Act does not require removal from Australia to a particular destination or place and I am not satisfied that it would be appropriate nor within power to grant mandamus in the form sought – essentially to direct the performance of the s.198(6) duty and the exercise of the power at s.218 specific to removal of the Applicant to Kenya. And, in any event, for the above reasons I have not found that the Commonwealth or its officers have been dilatory in the discharge of or failed to discharge or abandoned the statutory duty at s.198(6) such that the obligation to remove at s.198(6) has yet arisen. I am not persuaded that the policy has been established as invalid or, even if it were, to exercise the discretion to grant declaratory relief as sought. I am not persuaded that there is any basis for the other forms of relief sought. The application is dismissed with costs.

I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.
Associate:
Dated: 24 January 2023

File number(s):	SYG 1633 of 2022
Judgment of:	JUDGE MANSINI
Date of judgment:	24 January 2023
Catchwords:	MIGRATION – urgent application by unlawful non-citizen seeking removal from Australia to a third country of his choice – where applicant is a citizen of Singapore who came to Australia where he was convicted of crimes and is a non-citizen who has been refused protection from Australia and exhausted rights of review – where department officers have refused and refuse to remove to Republic of Kenya – whether the responsible officers of the Commonwealth have taken and are taking all reasonable steps to discharge the duty to remove the applicant from Australia as soon as reasonably practicable under s.198(6) – consideration of departmental policy of removal to place of citizenship or right to enter and long term stay – valid citizenship and right to enter Singapore - whether third country is willing to receive - cooperation of the applicant - remedies of mandamus and declarations – no basis for relief sought – application dismissed with costs.
Legislation:	Migration Act 1958 (Cth) ss.13, 14, 189, 196, 197C, 198, 218, 474, 476 Kenya Citizenship and Immigration Act 2011 ss. 33, 35 Kenya Citizenship and Immigration Act Regulations 2012
Cases cited:	Al-Kateb v Godwin [2004] HCA 37 AOU21 v Minister for Home Affairs [2021] FCAFC 60 ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98; 360 ALR 64 BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 Commonwealth v AJL20 (2021) 391 ALR 562 Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) ALD 634 DXN21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] FedCFamC2G 589 Forster v Jododex Australia Pty Limited (1972) 127 CLR 421; [1972] HCA 61 Green v Daniels (1977) 51 AJLR 463 M38/2002 v Minister for Immigration and Indigenous Affairs [2003] FCAFC 131 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506 Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 Plaintiff M70/2011 v Minister for Immigration and Citizenship & Anor [2011] HCA 32 Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438 SZSZM v Secretary, Department of Immigration and Border Protection [2016] FCA 1477 Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625
Division:	Division 2 General Federal Law
Number of paragraphs:	131
Date of last submission/s:	22 December 2022
Date of hearing:	13 December 2022
Place:	Melbourne (by Microsoft Teams)
Solicitor for the Applicant:	Lucky Exchange Lawyers
Counsel for the Respondent:	Mr B Kaplan
Solicitor for the Respondent:	HWL Ebsworth

SYG 1633 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	BBY21 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent DEPARTMENT OF HOME AFFAIRS Second Respondent COMMONWEALTH OF AUSTRALIA Third Respondent

order made by:	JUDGE MANSINI
DATE OF ORDER:	24 January 2023