BHL19 v Commonwealth of Australia (No 2)
[2022] FCA 313
•31 March 2022
FEDERAL COURT OF AUSTRALIA
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
File numbers: VID 178 of 2021
VID 502 of 2021Judgment of: WIGNEY J Date of judgment: 31 March 2022 Catchwords: MIGRATION – where applicant is a refugee from Syria – where Australia found to owe applicant protection obligations due to well-founded fear of persecution and risk of serious harm if returned to country of citizenship – where applicant was refused a protection visa on character grounds under s 501(1) of Migration Act 1958 (Cth) – where applicant is currently detained as an unlawful non-citizen by the respondent, the Commonwealth of Australia, pursuant to s 189 of Migration Act 1958 (Cth) – consideration of statutory scheme regarding the detention and removal of unlawful non-citizens in Australia – whether applicant has been unlawfully detained as a result of the Commonwealth having failed to effect the applicant’s removal as soon as reasonably practicable – detention of the applicant found to be lawful – applicant’s claims for damages dismissed – whether the Commonwealth or its officers have failed to discharge the duty under s 198 of Migration Act 1958 (Cth) to remove applicant from Australia as soon as reasonably practicable – where Commonwealth officers found to have failed to discharge their statutory duty – appropriate relief for failure to discharge the duty under s 198 of Migration Act 1958 (Cth)
ADMINISTRATIVE LAW – application seeking relief in the form of a writ of habeas corpus, or alternatively, a mandatory injunction directing the Commonwealth to release applicant from detention forthwith – application seeking a mandatory injunction requiring the Commonwealth to discharge its duty in s 198 of Migration Act 1958 (Cth) in relation to applicant – application seeking a declaration that the Commonwealth has failed to discharge its duty in s 198 of Migration Act 1958 (Cth) in relation to applicant – whether s 476A of Migration Act 1958 (Cth) operates to remove the jurisdiction of the Federal Court of Australia to consider claims for injunctive and declaratory relief in respect of the Commonwealth’s alleged failure to discharge its duty under s 198 of Migration Act 1958 (Cth) – whether applicant’s claims involve direct judicial review of a migration decision – consideration of the appropriate relief where Commonwealth found to have failed to discharge its duty under s 198 of Migration Act 1958 (Cth) to remove applicant from Australia as soon as reasonably practicable – where writ of mandamus found to be the appropriate form of relief – whether circumstances of applicant’s case warrants the making of a declaration that officers of the Commonwealth failed to discharge their duty under s 198 of Migration Act 1958 (Cth)
Legislation: Constitution s 75(v)
Administrative Appeals Tribunal Act 1975 (Cth) ss 44(3), 45(2)
Australian Passports Act 2005 (Cth) s 9(1A)(b)(i)
Federal Court of Australia Act 1976 (Cth) ss, 21, 22, 23, 32, 32AD, 38(2)
Federal Court Rules 2011 (Cth)
High Court Rules 2004 (Cth) rr 25.13, 25.13.1, 25.13.2, 25.13.4, 25.13.5, 25.13.6
Judiciary Act 1903 (Cth) ss 39B, 39B(1), 39B(1A)(c)
Migration Act 1958 (Cth) ss 5, 5(1), 5AA(1), 13, 14, 46A(1), 46A(2), 189, 189(1), 195A, 196, 196(1), 196(3), 196(6), 197C, 197C(1), 197C(2), 197C(3), 197C(4), 197C(5), 197C(6), 197C(7), 197C(8), 197C(9), 198, 198(2), 198(6), 198AD, 198AD(3), 199, 200, 474(2), 474(3), 474(3)(g), 474(3)(j), 476A, 476A(1), 476A(1)(a), 476A(1)(c), 500, 501, 501A, 501B, 501BA, 501C, 501CA
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Cases cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
AJL20 v Commonwealth of Australia [2020] FCA 1305
Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37
Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 313
Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561; [2002] NSWSC 310
Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union (2007) ATPR 42–140; [2006] FCA 1730
Australian Securities and Investments Commission v Monarch FX Group Pty Ltd (2014) 103 ACSR 453; [2014] FCA 1387
Australian Securities and Investments Commission v Stone Assets Management Pty Ltd (2012) 205 FCR 120; [2012] FCA 630
Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 3) (2012) 213 FCR 380; [2012] FCA 43
AZC20 v Minister for Home Affairs [2021] FCA 1234
Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; [1988] HCA 49
Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465; [2006] FCA 1368
BHL19 v Commonwealth of Australia [2021] FCA 462
BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 929
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420; [2020] FCAFC 94
Chamoun v Commonwealth of Australia [2021] FCA 740
Commonwealth of Australia v AJL20 (2021) ALJR 567; [2021] HCA 21
Commonwealth of Australia v MZZHL [2021] FCAFC 191
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5
DBE17 v The Commonwealth of Australia (2019) 266 CLR 156; [2019] HCA 47
EVX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1079
Fernando v Minister for Immigration and Citizenship (2007) 165 FCR 471; [2007] FCA 1203
Forster v Jododex Australia Pty Limited (1972) 127 CLR 421; [1972] HCA 61
Gardner v Dairy Industry Authority of New South Wales (1977) 52 ALJR 180
Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41
Lewis v Australian Capital Territory (2020) 381 ALR 375; [2020] HCA 26
M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; [2003] FCAFC 131
M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; [2003] FCAFC 171
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602; [2020] FCAFC 223
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54; [2003] FCAFC 70
MNLR v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (2021) 283 FCR 525; [2021] FCAFC 35
Mokhlis v Minister for Home Affairs (2020) 382 ALR; [2020] HCA 30
MZZHL v Commonwealth of Australia [2021] FCA 600
NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506; [2003] FCAFC 292
Okwume v Commonwealth of Australia [2016] FCA 1252
Plaintiff M168/10 v The Commonwealth of Australia (2011) 279 ALR 1; [2011] HCA 25
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231; [2015] HCA 3
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 43
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Limited [1921] 2 AC 438
Smethurst v Commissioner of Police (Cth) (2020) 376 ALR 575; [2020] HCA 14
Stubbs v NRMA Insurance Ltd (1997) 42 NSWLR 550
Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89; [1993] FCA 105
WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625
WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 84 ALD 655; [2004] FCA 1332
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 223 Date of hearing: 26 May, 2 June, 21 October and 10 November 2021
Counsel for the Applicant: Mr M Guo Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondent: Mr G R Kennett SC with Mr B Kaplan and Mr M Varley Solicitor for the Respondent: Australian Government Solicitor ORDERS
VID 178 of 2021
VID 502 of 2021BETWEEN: BHL19
Applicant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
ORDER MADE BY:
WIGNEY J
DATE OF ORDER:
31 MARCH 2022
THE COURT ORDERS THAT:
1.In proceeding VID 178 of 2021, the applicant be granted leave to amend his originating application by filing an amended originating application in the form annexed to the affidavit of Ms Sarah Fisher affirmed on 21 July 2021.
2.In proceeding VID 502 of 2021:
(a)the transfer of the proceeding to this Court be confirmed pursuant to s 32AD of the Federal Court of Australia Act 1976 (Cth);
(b)the proceeding be heard together with proceeding VID 178 of 2021; and
(c)the evidence and submissions made in proceeding VID 178 of 2021 be evidence and submissions in the proceeding.
3.The parties are to confer within seven days of this judgment with a view to reaching agreement as to the orders which would give effect to this judgment, including the terms of the writ of mandamus which is to issue and the question of costs.
4.If the parties reach agreement in relation to the orders which should be made, they are to advise the Court accordingly and provide the Court with short minutes of the proposed orders within seven days of the date of judgment.
5.If the parties are unable to agree in relation to the orders which should be made, the parties are to:
(a)file and serve written submissions (not exceeding five pages in length, not including the draft proposed orders) in relation to the proposed orders within 14 days of the date of judgment; and
(b)liaise with the Court with a view to having the matter being listed for further hearing to determine the orders on a date to be fixed.
THE COURT DECLARES THAT:
1.From at least 22 February 2021, officers of the Commonwealth have failed to discharge their statutory duty under s 198(2) or (6) of the Migration Act 1958 (Cth) to remove the applicant from Australia as soon as reasonably practicable.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WIGNEY J:
The applicant is a refugee from the conflict-riven country Syria. It is accepted that Australia owes him protection obligations because he has a well-founded fear of persecution and is at risk of serious harm if he was to return to Syria. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs has nevertheless refused to grant the applicant a protection visa on character grounds. As a result, the applicant is an unlawful non-citizen and has been detained as such by the respondent, the Commonwealth of Australia. He has been in immigration detention for over eight years.
The current controversy between the applicant and the Commonwealth relates to the applicant’s ongoing detention and the discharge of the statutory duty to remove him from Australia as soon as reasonably practicable. The applicant alleged that the Commonwealth had effectively abandoned any effort to remove him and that his detention was accordingly unlawful. He sought damages for false imprisonment and an order in the nature of a writ of habeas corpus, or a mandatory injunction, directing his release from detention. When the applicant’s prospects of securing that relief were dealt a blow by an intervening judgment of the High Court in another matter, the applicant sought to compel the Commonwealth to discharge its duty to remove him from Australia as soon as reasonably practicable.
The central questions raised by this matter are: first, whether the Commonwealth, or its officers, have failed to discharge their statutory duty to remove the applicant from Australia as soon as reasonably practicable; and second, if so, whether the applicant is entitled to, or should be granted, any relief arising from that state of affairs.
FACTUAL BACKGROUND
The applicant is a Syrian national. He arrived in Australia by boat on 15 November 2012. He did not have a visa. He was therefore an unlawful non-citizen as defined in s 14 of the Migration Act 1958 (Cth) (see also ss 5 and 13 of the Migration Act) and was detained by an officer or officers of the Commonwealth pursuant to s 189(1) of that Act.
The applicant’s obvious purpose in travelling to Australia was to seek asylum. He was, however, prevented from validly applying for a visa because, having arrived in Australia by sea without a visa, he was an “unauthorised maritime arrival”: see ss 5AA(1) and 46A(1) of the Migration Act.
On 16 January 2013, the Minister for Immigration granted the applicant a bridging visa which was valid for a period of six months. The applicant was released from detention upon the grant of that visa.
On 3 February 2014, however, the applicant was detained because his bridging visa had expired.
On 13 August 2015, almost three years after his arrival in Australia, the Minister determined, pursuant to s 46A(2) of the Migration Act, that the applicant could apply for a visa.
On 23 September 2015, the applicant applied for a temporary protection visa.
On 19 August 2016, an officer of the Department of Immigration determined that the applicant was a refugee because he had a well-founded fear of persecution “at the hands of the Assad-led regime or opposing rebel forces [in Syria] including a threat to or loss of liberty or life, significant physical harassment and ill treatment, arrest and imprisonment, torture and enforced disappearance”.
Despite the Department’s finding that the applicant was a refugee, on 4 February 2019, the Minister refused to grant the applicant a protection visa. The Minister refused to grant the applicant a visa because he was not satisfied that the applicant passed the “character test” contained in s 501 of the Migration Act.
The applicant applied for judicial review of the Minister’s decision. That application was dismissed: BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 929. The applicant’s appeal from that judgment was subsequently dismissed (by majority) by the Full Court: BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420; [2020] FCAFC 94. Interested readers may care to read the Full Court judgment and judge the reasonableness of the Minister’s decision for themselves. That, however, is another matter entirely given the applicant’s appeal rights are exhausted.
On 11 December 2020, the High Court dismissed the applicant’s application for special leave to appeal: BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] HCATrans 220.
The applicant remains in immigration detention. He has been in detention now for over eight years.
The central issue raised by the applicant’s present application is whether, following the dismissal of his application for special leave to appeal, officers of the Commonwealth have failed to take reasonable steps to remove the applicant from Australia in accordance with their statutory duty and, if so, whether he is entitled to any relief to remedy that state of affairs. Before considering the evidence in relation to the steps, if any, which have been taken to remove the applicant, it is necessary to give some closer attention to the statutory regime in relation to the detention and removal of unlawful non-citizens.
STATUTORY SCHEME – DETENTION AND REMOVAL OF UNLAWFUL NON-CITIZENS
Subsection 189(1) of the Migration Act provides for the detention of unlawful non-citizens. It is in the following terms:
(1)If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen, the officer must detain the person.
An unlawful non-citizen is, in general terms, a non-citizen who does not hold a visa: ss 13 and 14 of the Migration Act. An “officer” is broadly defined in s 5 of the Migration Act as including, inter alia, officers of the Department, members of certain police forces and persons or classes of persons authorised as such by the Minister.
Section 196 of the Migration Act, which provides for the duration of detention, is in the following terms:
(1)An unlawful non-citizen detained under section 189 must be kept in immigration detention until:
(a)he or she is removed from Australia under section 198 or 199; or
(aa)an officer begins to deal with the non-citizen under subsection 198AD(3); or
(b)he or she is deported under section 200; or
(c)he or she is granted a visa.
(2)To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
(3)To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.
(4)Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.
(4A)Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.
(5)To avoid doubt, subsection (4) or (4A) applies:
(a)whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and
(b)whether or not a visa decision relating to the person detained is, or may be, unlawful.
(5A)Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.
(6)This section has effect despite any other law.
(7)In this section:
visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).
Section 198 of the Migration Act provides for the removal from Australia of unlawful non-citizens in certain specified circumstances. Subsection 198(6), which is in the following terms, specifies one of those circumstances:
(6)An officer must remove as soon as reasonably practicable an 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.
It is common ground that the applicant’s circumstances fell within s 198(6) of the Migration Act and that accordingly an officer was required to remove the applicant from Australia as soon as reasonably practicable.
More will be said later about the interaction between, and the combined operation of, ss 189, 196 and 198 of the Migration Act. It suffices at this point to note that, at least by the time the hearing of the applicant’s application had concluded, the following three key points had been authoritatively determined by the High Court in Commonwealth of Australia v AJL20 (2021) ALJR 567; [2021] HCA 21 (AJL20 (HC)). First, an unlawful non-citizen detained under s 189 must be detained until the occurrence of one of the events specified in s 196(1), being either: he or she is removed from Australia under ss 198 or 199; or an officer begins to deal with the non-citizen under s 198AD(3); or he or she is deported under s 200; or he or she is granted a visa. Second, the operation of ss 189(1) and 196(1) is not conditional upon compliance with the duty of removal under s 198 of the Migration Act. It follows that a failure by an officer to remove an unlawful non-citizen as soon as reasonably practicable in accordance with the duty in s 198 does not render unlawful the ongoing detention of that person. And third, if there has been non-compliance with s 198, the appropriate remedy is the writ of mandamus to enforce compliance.
It is also necessary, in the context of s 198, to refer to s 197C of the Migration Act. Subsections 197C(1) and (2) of the Migration Act provide as follows:
(1)For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2)An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
The somewhat surprising effect of s 197C(1) and (2) of the Migration Act, at least until a relatively recent amendment, to which reference will be made shortly, was that officers were required to remove an unlawful non-citizen from Australia even if that removal would result in a breach of Australia’s international non-refoulement obligations: see MNLR v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (2021) 283 FCR 525; [2021] FCAFC 35 at [86]-[97]. In the applicant’s case, the effect of ss 197C(1) and (2) was that officers had a duty to remove the applicant from Australia as soon as reasonably practical, even if that removal involved returning him to Syria where, as explained earlier, it was established that the applicant had a well-founded fear of persecution and was at risk of suffering serious harm.
As will be seen, the applicant’s case against the Commonwealth largely hinged on the allegation that no officer had taken any, or any reasonable, steps to remove him from Australia. The evidence suggested that, at least in the first instance, that inaction was essentially a product of the fact that officers were conscious that removing the applicant to Syria would have resulted in a breach of Australia’s non-refoulement obligations. While it is perhaps understandable why officers would have been reluctant to return the applicant to Syria in those circumstances, particularly as he affirmed to those officers his unwillingness to voluntarily return to Syria, the problem for the Commonwealth, at least until shortly prior to the hearing of this matter, was that ss 197C(1) and (2) essentially directed officers to disregard Australia’s non-refoulement obligations when discharging their duty under s 198 of the Migration Act.
On 25 May 2021, which was the very day before the hearing of the applicant’s application for final relief was to commence, the relevant legal landscape changed. The Migration Act was amended by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) (the Clarifying Act). The Clarifying Act clarified the operation of s 197C in two ways. First, it repealed the heading of the section, which had read “Australia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198”, and replaced it with a heading which read “Relevance of Australia’s non-refoulement obligations to removal of unlawful non-citizens under section 198”. Second, and more significantly, the Clarifying Act inserted new subsections 197C (3) to (9). Subsection 197C(3) provides as follows:
(3)Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a)the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b)in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c)none of the following apply:
(i)the decision in which the protection finding was made has been quashed or set aside;
(ii)a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii)the non‑citizen has asked the Minister, in writing, to be removed to the country.
Subsections 197C(4) to (9) essentially deal with the circumstances in which a “protection finding” can be taken to have been made. It is unnecessary to set those subsections out. Suffice it to say that there was no dispute that the Minister had made a protection finding in the applicant’s case.
As can be seen, the change to the operation of s 197C effected by the Clarifying Act could more accurately be said to amount to a reversal than a clarification. The effect and operation of s 197C was tolerably clear. Before the amendments, officers were required to disregard as irrelevant the fact that Australia owed non-refoulement obligations to an unlawful non-citizen when it came to the exercise of the duty to remove. After the amendments, the position was effectively reversed. Officers were not required or authorised to return an unlawful non-citizen to a country in respect of which a protection finding had been made regarding that unlawful non-citizen.
THE APPLICANT’S CLAIM AND THE COMMONWEALTH’S DEFENCE
It is necessary to provide a relatively detailed account of the applicant’s claims and the Commonwealth’s defence. As will be seen, both changed over time, largely as a result of changes in the law, changes in the position taken by the Minister and intervening decisions of the High Court and the Full Court.
The applicant’s application and the relief initially sought
The applicant commenced this proceeding on 12 April 2021 by filing an originating application and a statement of claim. The originating application sought, amongst other things, damages from the Commonwealth. It also sought interlocutory relief in the nature of a writ of habeas corpus, or alternatively, a mandatory injunction directing the Commonwealth to release him from detention forthwith.
The nub of the applicant’s case against the Commonwealth, as articulated in the statement of claim, was that he had been unlawfully detained by the Commonwealth since 12 December 2020, that being the day after the High Court’s dismissal of his application for special leave to appeal the Full Court’s judgment which upheld the dismissal of the appellant’s challenge to the Minister’s decision to refuse to issue a protection visa to the applicant. The applicant contended that from 12 December 2020, officers of the Commonwealth had a duty to remove him from Australia by reason of ss 198(2) or (6) of the Migration Act. That duty was, by reason of s 197C of the Migration Act, unaffected by the fact that Australia owed the applicant non-refoulement obligations. The applicant alleged that no officer had ever discharged their duty under s 198(2) and (6).
The applicant contended that the Commonwealth could only lawfully detain him, or continue to detain him, under s 189 and s 196 of the Migration Act if the detention was for one of three purposes: first, for the purpose of removing him from Australia; second, for the purpose of receiving, investigating and determining an application for a visa by him to enter and remain in Australia; or third, for the purpose of determining whether to permit him to make a valid application for a visa. The second and third of those purposes were not applicable to the appellant’s circumstances. That was essentially common ground. As for the first purpose, the applicant alleged that, at least since 12 December 2020, the Commonwealth was not detaining him for the purpose of removal. That was said to be demonstrated by the fact that no officer had discharged their duty to remove the applicant, despite the fact that there had been no impediment to his removal. Alternatively, the applicant contended that, if the Commonwealth had ever detained him for the purpose of removal, that purpose was not being carried into effect as soon as reasonably practicable. He claimed, on that basis, that his ongoing detention was unlawful.
It was readily apparent that the applicant’s case that he was being unlawfully detained by the Commonwealth was heavily reliant on the first instance decision of the Court in AJL20 v Commonwealth of Australia [2020] FCA 1305 (AJL20 (first instance)). The facts and circumstances of that case were similar in many respects to the facts and circumstances of this case.
In AJL20 (first instance), a Syrian national whose protection visa had been cancelled by the Minister sought an order for his release from immigration detention on the basis that his removal from Australia under s 198 of the Migration Act had not been carried into effect as soon as reasonably practicable and that his ongoing detention was therefore unlawful. The trial judge held that ALJ20’s ongoing detention was unlawful and ordered that he be released from detention. There were four critical findings or steps in the trial judge’s reasoning. Each of them essentially flowed from the trial judge’s construction of ss 189, 196 and 198 of the Migration Act.
The first critical finding was that the detention of an unlawful non-citizen under the Migration Act is only lawful if it is for a permissible purpose under the Migration Act. The only permissible purpose that was relevant in the circumstances of AJL20’s case was the purpose of removal under s 198.
The second critical finding was that, if the purpose of detention of an unlawful non-citizen was removal, the removal of the person was required to be carried into effect “as soon as reasonably practicable”.
The third critical finding was that a departure from the requirement that removal be carried into effect as soon as reasonably practicable entailed or constituted a departure from the purpose of detention and thereby rendered the detention unlawful.
The fourth critical finding was that there had been such a departure in AJL20’s case and therefore his ongoing detention was unlawful.
The applicant also placed some reliance on another first instance decision in which it had been found that an unlawful non-citizen had been unlawfully detained for a period of time during which no steps had been taken to remove that person from Australia. In that case, MZZHL v Commonwealth of Australia [2021] FCA 600 (MZZHL (first instance)), the trial judge not only followed AJL20 (first instance) (having not accepted that it was plainly wrong), but also separately reasoned that “detention” in ss 189 and 196 of the Migration Act meant “lawful detention” and that, once the pursuit of any attempt to remove the applicant from Australia was abandoned by the Commonwealth, ss 189 and 196 conferred no authority to continue to detain.
The determination of the claim for interlocutory relief
The applicant’s application for interlocutory relief in the nature of habeas corpus was heard and determined in a relatively short space of time. The applicant argued that, like the applicant in AJL20 (first instance), he was being unlawfully detained because his removal from Australia had not been carried into effect as soon as reasonably practicable and there had therefore been a departure from the purpose of removal.
The Minister opposed the interlocutory relief sought by the applicant on a number of bases. Those bases included: first, that the relief sought was beyond the Court’s power and was precluded by ss 196(3) and (6) of the Migration Act; second, that the construction of ss 189, 196, 197C and 198 of the Migration Act by the trial judge in AJL20 (first instance) was plainly wrong and should not be followed; third, that even though the applicant had not been removed, he was still being detained for the purpose of removal and steps had been and were being taken by the Commonwealth to remove him; and fourth, that the balance of convenience did not support the grant of interlocutory relief because the scheme of the Act was that unlawful non-citizens were required to be detained.
The applicant’s application for interlocutory relief was unsuccessful: BHL19 v Commonwealth of Australia [2021] FCA 462. The Court did not accept that the trial judge’s construction of the relevant provisions of the Migration Act in AJL20 (first instance) was plainly wrong. The Court also found that there was a serious question to be tried as to whether the applicant’s removal had been undertaken as soon as reasonably practicable and therefore a serious question to be tried as to whether the applicant’s ongoing detention was unlawful. The Court determined, however, that the balance of convenience did not favour the making of an order that the applicant be released prior to the Court determining, on a final basis, that his detention was unlawful. The matter was listed for an early final hearing.
The Commonwealth’s initial defence
There were essentially two limbs to the Commonwealth’s initial defence to the applicant’s claim.
The first limb was to maintain that AJL20 (first instance) was wrongly decided. The Commonwealth contended that the applicant’s detention was at all times authorised and required by ss 189 and 196 of the Migration Act. That was because an officer knew, or reasonably suspected, that the applicant was an unlawful non-citizen and none of the events specified in s 196(1) of the Migration Act had occurred. The Commonwealth’s case was that, in those circumstances, and on the proper construction of ss 189, 196 and 198 of the Migration Act, the question whether reasonable steps had been taken to remove the applicant in accordance with the duty under s 198 of the Migration Act was essentially immaterial. His detention was nonetheless lawful.
The second limb of the Commonwealth’s defence was to not only deny that the Commonwealth had no intention of removing the applicant, but to assert, in effect, that steps had been taken to remove the applicant from Australia. The only reason the applicant had not been removed, so it was contended, was that it was not reasonably practicable to do so. As for removal to Syria, the Commonwealth pleaded that the Australian government had been unable to engage with Syrian authorities for the purpose of them accepting travel document applications for “involuntary removees” to Syria. The Commonwealth also pleaded that it had not been reasonably practicable to arrange security escorts for international flights to Syria as a result of the COVID-19 pandemic. As for possible removal to third countries, the Commonwealth asserted that there were no other countries which had been identified to which the applicant could be removed.
The Commonwealth’s concession and shifts in the Commonwealth’s defence
When the matter came on for hearing, the Commonwealth continued to maintain that AJL20 (first instance) was wrongly decided. The Commonwealth’s defence, however, materially shifted in a number of other ways.
First, the Commonwealth effectively abandoned any pretence that it had been taking steps, or at least reasonable steps, to remove the applicant from Australia to Syria. No attempt was made to tender any evidence to establish that there had been any difficulties engaging with Syrian authorities in relation to travel document applications, or that there had been any difficulties arranging security escorts for removals to Syria as a result of the COVID-19 pandemic. Instead, the Commonwealth conceded that it could not establish that its officers were taking reasonable steps to remove the applicant to Syria. As will be seen, that concession was properly made in light of the evidence that was ultimately adduced by the Commonwealth.
Second, the Commonwealth foreshadowed that it would be seeking to rely on a decision by the Minister which had been made on the day before the first day of the hearing. That decision was that the Minister would give consideration to whether he might exercise his non-compellable and non-reviewable power under s 195A of the Act to grant the applicant a visa. It should be emphasised that the Minister had not decided to actually grant the applicant a visa. He had only decided to consider whether he might exercise his power under s 195A to grant the applicant a visa.
The Commonwealth tendered a copy of the Minister’s reasons for making that decision. The significance of the Minister’s decision was said to be that it meant that the duty to remove the applicant was effectively suspended until the Minister had determined whether or not to grant him a visa. There was said to be authority in support of that proposition.
Third, again, on the first day of the hearing, the Commonwealth foreshadowed amending its defence so as to rely on the Clarifying Act, which had come into force on the previous day. The Commonwealth contended that the terms of the new s 197C(3) of the Migration Act applied to the applicant’s circumstances. It followed that, at least from that point on, the applicant could not be removed to Syria. That left open the question of whether it had been, and still was, reasonably practicable to remove the applicant to a third country. It also left open the question of whether the applicant had been unlawfully detained before the Clarifying Act came into effect.
The Commonwealth was in due course granted leave to amend its defence.
Another shift in the Commonwealth’s position
The Commonwealth’s next shift in position was more a retreat than a shift. The Commonwealth ultimately abandoned its foreshadowed reliance on the Minister’s decision to consider exercising his power under s 195A of the Migration Act. That may or may not have been a result of a foreshadowed challenge by the applicant to the bona fides of the Minister’s decision. As noted earlier, the Minister’s decision was made on the very eve of the hearing. That could hardly have been a coincidence, particularly given that by this time the applicant had been in immigration detention for many years and many months had passed since the applicant’s application for special leave to appeal to the High Court in respect of his visa cancellation had been dismissed. The timing and nature of the decision bore all the hallmarks of a last-ditch attempt to undermine the applicant’s case that he should be released because no steps had been or were being taken to remove him.
In any event, the amended defence that was ultimately filed did not seek to justify the continuing detention of the applicant on the basis of any suggestion that the Minister was giving consideration to whether he should grant the applicant a visa. Needless to say, the Minister has not granted the applicant a visa. Maybe he is still considering whether to do so, though that appears rather doubtful.
The hearing
The hearing of the applicant’s application for final relief took place on 26 May 2021 and 2 June 2021. Evidence was adduced and the parties made submissions. The applicant relied on a short affidavit affirmed by him, as well as an affidavit affirmed by his solicitor. The Commonwealth read affidavits from five Commonwealth officers. Only one of those officers was cross-examined. The parties’ submissions focussed to a large extent on whether AJL20 (first instance) was correctly decided, though they also addressed whether the evidence established that the Commonwealth had effectively abandoned any attempt to remove the applicant. The Court reserved its judgment.
The High Court’s decision in AJL20 and the applicant’s amendment application
Some weeks later, on 23 June 2021, the High Court (by majority) overturned the decision in AJL20 (first instance): AJL20 (HC). The majority held that the trial judge’s construction of ss 189, 196 and 198 of the Migration Act was erroneous. Critically, the majority held that the operation of ss 189(1) and 196(1) was not conditional upon compliance with the duty of removal in s 198 of the Migration Act. It followed that the detention of an unlawful non-citizen does not become unlawful as a result of any non-compliance with the removal duty in s 198, including if no reasonable steps had been or were being taken to remove the unlawful non-citizen from Australia. The majority reasoned that a writ of mandamus compelling officers to discharge the removal duty was the appropriate remedy in those circumstances.
This matter was relisted following the handing down of the judgment in AJL20 (HC). The parties were invited to consider their respective positions and make further submissions concerning the implications of the judgment in AJL20 (HC). A further hearing eventually took place on 10 November 2021.
The applicant did not abandon his case in the face of the decision in AJL20 (HC). He continued to rely on the decision in MZZHL (first instance). He also applied to amend his originating application to include the following relief:
1A.A writ of habeas corpus, alternatively a mandatory injunction directing the Respondent to release the Applicant from detention forthwith.
1B.Further or alternatively, a mandatory injunction requiring the Respondent to discharge its duty in s 198 of the Migration Act 1958 (Cth) (the Act) in respect of the Applicant.
1C.Further or alternatively, a declaration that the Respondent has failed since 12 December 2020, and at the date of judgment is still failing, to discharge its duty in s 198 of the Act in respect of the Applicant.
The Commonwealth did not oppose the amendment insofar as it involved adding the claim for a writ of habeas corpus, or alternatively a mandatory injunction directing the Commonwealth to release the applicant from detention. The Commonwealth accepted that the inclusion of that relief was consistent with the way the applicant had put his case at trial.
The Commonwealth did, however, oppose the amendment insofar as it added claims for a mandatory injunction requiring the Commonwealth to discharge its duty under s 198 of the Migration Act and a declaration that the Commonwealth had failed to discharge that duty since 12 December 2020. The Commonwealth submitted that the effect of s 476A(1) of the Migration Act was that the Court did not have jurisdiction to entertain those claims. Judgment in respect of the amendment application was reserved. It was indicated that the outcome of the amendment application would be addressed in the final judgment.
The jurisdictional issue is considered in detail later in these reasons.
Transfer of proceedings commenced in the Federal Circuit Court of Australia
As events transpired, the jurisdictional issue that arose in the context of the applicant’s amendment application is essentially of only academic interest. That is because, on 19 August 2021, the applicant commenced proceedings in the Federal Circuit Court of Australia in which he claimed injunctive and declaratory relief in terms which essentially mirrored the relief the subject of the amendment application. The only material difference was that the application in the Circuit Court included the Secretary of the Department of Home Affairs as the second respondent. The applicant also sought an order transferring the Circuit Court proceedings to this Court.
The Commonwealth in due course consented to the transfer of the Circuit Court proceeding to this Court. The Circuit Court subsequently ordered that the proceeding be transferred to this Court. As discussed in more detail later, the transfer of the Circuit Court proceeding essentially circumvented the jurisdictional issue and the Commonwealth’s opposition to the amendment application.
The parties subsequently consented to orders being made to the effect that the proceeding transferred from the Circuit Court be heard together with the proceeding commenced in this Court and that the evidence and submissions received in the proceeding commenced in this Court be evidence and submissions in the transferred proceeding. This judgment accordingly deals with the two proceedings as if they were effectively one.
A final twist
At a further hearing to determine the applicant’s amendment application, the Commonwealth raised the prospect of a further twist. That twist involved a potential further amendment of the Commonwealth’s defence to include a defence based on s 198AD of the Migration Act. That was not a provision which had been adverted to previously. It had apparently escaped the Minister’s attention. It appears to have come to the Minister’s attention as a result of the judgment in AZC20 v Minister for Home Affairs [2021] FCA 1234.
It is unnecessary to consider this issue further. It is a red-herring. That is because, at yet a further hearing on 10 November 2021, the Commonwealth advised that it did not wish to amend its defence to include any defence based on s 198AD. If the Commonwealth had amended its defence and established that s 198AD applied in the applicant’s case, then arguably there would have been a duty to take the applicant to a “regional processing country”, as opposed to a duty to remove him from Australia. Perhaps unsurprisingly, that rather bizarre outcome was not pressed by the Commonwealth.
ISSUES RAISED BY THE APPLICATION
Three broad issues arise for resolution following the various permutations of the proceedings just described.
The first issue is whether the applicant should be granted leave to amend his originating application to include injunctive and declaratory relief in respect of the allegation that the Commonwealth had failed, and is stilling failing, to discharge its duty in s 198 of the Migration Act to remove the applicant. As has already been noted, that issue is somewhat academic given the transfer of the Circuit Court proceeding, though the applicant pressed the amendment application and maintained that the injunctive and declaratory relief could be granted in the proceeding commenced in this Court.
The second issue concerns the applicant’s case that he has been, and currently is, unlawfully detained because the Commonwealth has abandoned any attempt to remove him from Australia. If it is found that the applicant has been unlawfully detained in the past, the question then arises as to whether he should be awarded damages in respect of that unlawful detention. If the applicant is found to be currently unlawfully detained, the question then arises whether an order in the nature of habeas corpus should be made requiring his immediate release. As will be seen, these issues can be dealt with fairly shortly in light of the majority judgment in AJL20 (HC).
The third issue concerns the applicant’s allegations about the Commonwealth’s failure to discharge its duty under s 198 of the Migration Act. This issue is raised directly in the Circuit Court proceeding and will arise in the proceeding commenced in this Court if the applicant’s amendment application is allowed. The main question is whether the evidence establishes that the Commonwealth has failed to discharge, and continues to fail to discharge, its duty under s 198 of the Migration Act to remove the applicant from Australia as soon as reasonably practicable. If the applicant establishes that the Commonwealth is currently not discharging that duty, it will be necessary to consider what, if any, relief can and should be granted to the applicant. While the applicant primarily sought injunctive relief, it is necessary to consider whether the issue of a writ of mandamus would be the more appropriate and suitable remedy. It will also be necessary to consider whether the declaration sought by the application should be made.
ISSUE 1 – AMENDMENT OF THE ORIGINATING APPLICATION
As already noted, the Commonwealth did not oppose the applicant’s amendment application insofar as it added a claim for a writ of habeas corpus or mandatory injunction directing the applicant’s release from detention. The Commonwealth’s opposition to the balance of the amendment application was based entirely on the contention that the Court does not have jurisdiction to entertain the applicant’s proposed claims for injunctive and declaratory relief.
The jurisdictional question – s 476A of the Migration Act
The jurisdictional question is whether the effect of s 476A of the Migration Act is that, other than in the proceeding transferred from the Circuit Court, the Court does not have original jurisdiction to entertain the applicant’s claims for injunctive and declaratory relief in respect of the alleged failure of Commonwealth officers to discharge their duty under s 198 of the Migration Act.
But for s 476A of the Migration Act, the terms of which will be set out momentarily, there could be no doubt that the Court would have jurisdiction to entertain the claims for injunctive and declaratory relief. Subsection 39B(1) of the Judiciary Act 1903 (Cth) provides that, subject to certain exceptions which are not presently relevant, the “original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth”. This is obviously a matter in which an injunction is sought against an officer or officers of the Commonwealth. Further, s 39B(1A)(c) relevantly provides that the “original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter … arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter”. This is also obviously a matter which arises under the Migration Act.
The jurisdictional issue therefore boils down to the operation of s 476A(1) of the Migration Act, which provides as follows:
(1)Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:
(a) both:
(i)the Federal Circuit and Family Court of Australia (Division 2) transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 153 of the Federal Circuit and Family Court of Australia Act 2021; and
(ii)the Federal Court confirms the transfer under section 32AD of the Federal Court of Australia Act 1976; or
(b)the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or
(c)the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or
(d)the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.
As can be seen, the effect of s 476A(1) of the Migration Act is that, despite any other law, including s 39B(1) of the Judiciary Act, the Federal Court has original jurisdiction in relation to a migration decision if, and only if, one or more of the circumstances in paragraphs (a) to (d) apply. A “migration decision” is defined in s 5(1) of the Migration Act as including, relevantly, a “privative clause decision”. A “privative clause decision” is defined in ss 5(1) and 474(2) as meaning, relevantly, “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 …”. Importantly, a reference in s 474(2) to a “decision” includes a reference to, relevantly, “doing or refusing to do any act or thing” and “a failure or refusal to make a decision”: see s 474(3)(g) and (j) respectively.
The Commonwealth contended that the applicant’s claims for injunctive and declaratory relief in respect of the duty to remove under s 198 of the Migration Act would involve judicial review of a migration decision. That is because the claims involve the allegation that officers failed or refused to do an act or thing – removing the applicant – which is a decision (as broadly defined in s 474(3)(g) and (j) of the Migration Act) of an administrative character made, or required to be made, under the Migration Act. In those circumstances, so it was submitted, the effect of s 476A(1) of the Migration Act is that the jurisdiction that the Court would otherwise have under s 39B(1) and (1A)(c) of the Judiciary Act is excluded or removed unless one of the paragraphs in s 476A(1) was engaged.
The applicant, for good reason, did not contend that paragraphs (b) to (d) in s 476A(1) of the Migration Act were engaged. The relevant decision is obviously not one made by the Administrative Appeals Tribunal on review under s 500 of the Migration Act, or one made by the Minister personally under ss 501, 501A, 501B, 501BA, 501C or 501CA of the Migration Act, or a decision in respect of which the Court has jurisdiction under ss 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975 (Cth).
As for s 476A(1)(a) of the Migration Act, as has already been indicated, the applicant commenced a proceeding in the Circuit Court on 19 August 2021 seeking injunctive and declaratory relief which mirrored the relief the subject of the amendment application. On 30 August 2021, the Circuit Court ordered the proceeding be transferred to this Court. While the applicant did not apply for an order pursuant to s 32AD of the Federal Court of Australia Act 1976 (Cth) (FCA Act), there is no reason why such an order should not be made. The parties also consented to orders that the transferred proceeding be heard together with this proceeding and that the evidence and submissions in this proceeding be evidence and submissions in the transferred proceeding.
It follows that, at least in the case of the proceeding which has been transferred from the Circuit Court, s 476A(1) does not operate to remove or exclude the Court’s original jurisdiction in relation to the alleged failure of officers to discharge their statutory duty under s 198 of the Migration Act. There is no issue in respect of the Court’s jurisdiction in the transferred proceeding. The applicant nevertheless pressed for the jurisdictional issue to be determined in respect of the proceeding commenced directly in this Court.
The applicant maintained that, despite the operation of s 476A of the Migration Act, the Court had jurisdiction to determine his claims for a mandatory injunction and declaratory relief in respect of the alleged failure by the Commonwealth to comply with the duty to remove him under s 198 of the Migration Act. He submitted that the reach of s 476A of the Migration Act is confined to applications for public law remedies in the nature of direct judicial review of migration decisions and does not extend to mere collateral attacks on migration decisions. In the applicant’s submission, the proceeding commenced in this Court is a common law action for damages for false imprisonment and the remedies which he seeks are not in the nature of direct judicial review of migration decisions. He emphasised, in that context, that he does not apply for the issue of a writ of mandamus, but rather seeks a private law injunction in the Court’s auxiliary equitable jurisdiction.
There is merit in at least some of the applicant’s submissions concerning the scope of s 476A of the Migration Act.
It is now well established that the reach of s 476A of the Migration Act is confined to applications for public law remedies in the nature of direct judicial review of migration decisions and does not deprive the Court of original jurisdiction in relation to a claim in tort against the Commonwealth for false imprisonment, even if that claim involves a collateral challenge to a migration decision or decisions: DBE17 v The Commonwealth of Australia (2019) 266 CLR 156; [2019] HCA 47 at [14]-[15] (Nettle J); McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602; [2020] FCAFC 223 at [15] and [18] (Allsop CJ), [74] (Besanko J) and [174] (Mortimer J); see also Fernando v Minister for Immigration and Citizenship (2007) 165 FCR 471; [2007] FCA 1203 at [22] (Siopis J); Okwume v Commonwealth of Australia [2016] FCA 1252 at [28] (Charlesworth J). It is equally clear that the Court also has the power to grant a remedy in the nature of a writ of habeas corpus in the context of such an action because such relief does not involve direct judicial review of any migration decision: McHugh at [16], [20]-[23] (Allsop CJ), [74]-[75] (Besanko J) and [188]-[248] (Mortimer J).
In light of the authorities just referred to, there could be no doubt that s 476A of the Migration Act does not operate to exclude or remove the Court’s jurisdiction to entertain the applicant’s claim for damages for false imprisonment and for relief in the nature of habeas corpus. That is despite the fact that the applicant’s claims relating to false imprisonment involve a collateral challenge to a migration decision.
As discussed at length earlier in these reasons, an essential element in the applicant’s claim that his detention was and is unlawful is that officers of the Commonwealth have failed to comply with their duty under s 198 of the Migration Act to remove him from Australia as soon as reasonably practicable. The applicant’s claim therefore involves a collateral challenge to a migration decision. That is because the alleged failure or refusal to do something that is required by the Migration Act is a decision (as broadly defined in s 474(3)(g) and (j) of the Migration Act) of an administrative character made, or required to be made, under the Migration Act: see M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; [2003] FCAFC 131 at [88] (The Court); Mokhlis v Minister for Home Affairs (2020) 382 ALR; [2020] HCA 30 at [12] (Edelman J).
As the authorities referred to earlier establish, however, s 476A of the Migration Act does not operate to exclude or remove the Court’s jurisdiction to entertain claims which involve only collateral challenges to migration decisions. It only operates to exclude claims involving the direct judicial review of migration decisions. The applicant’s claim for damages and relief in the nature of habeas corpus involves at most a collateral challenge to the Commonwealth’s compliance with the duty under s 198 of the Migration Act.
The more difficult question, however, is whether s 476A would operate to remove or exclude the Court’s jurisdiction to entertain the applicant’s claims for injunctive and declaratory relief arising from the allegation that officers had failed to comply with their statutory duty to remove the applicant as soon as reasonably practicable. That question hinges, to an extent, on whether those claims involve direct judicial review of a migration decision. It also hinges on whether s 476A can operate to preclude the Court from granting that relief despite the fact it is sought in the context of a broader claim – the claim for damages and habeas corpus – in respect of which the Court undoubtedly has jurisdiction.
The Commonwealth contended that the injunction and declaration sought by the applicant are public law remedies. It drew attention, in that regard, to the fact that injunctive relief is one of the remedies referred to in s 75(v) of the Constitution. It also submitted that the injunctive relief sought by the applicant was in substance identical to relief in the nature of a writ of mandamus, also referred to in s 75(v) of the Constitution. In those circumstances, so it was submitted, the injunctive and declaratory relief sought by the applicant involved direct judicial review of a migration decision and s 476A of the Migration Act therefore operated to remove or exclude the Court’s jurisdiction to entertain that challenge.
The applicant submitted that the Commonwealth’s contention in that regard confused and conflated the separate concepts of jurisdiction and power. He submitted that the Court had jurisdiction to entertain his claim because it was a private law claim for damages, even though his claim that he was wrongfully detained involved an allegation that Commonwealth officers had failed to comply with the duty under s 198 of the Migration Act. In the applicant’s submission, because the Court had jurisdiction in relation to the matter generally, the question whether the Court could grant particular relief – an injunction to compel performance of the duty and a declaration that officers had failed to discharge the duty – was one of power, not jurisdiction. The applicant also took issue with the Commonwealth’s characterisation of his claim as involving a claim for mandamus. He maintained that his claim was for an injunction in the Court’s auxiliary equitable jurisdiction and that the Court had power to grant that relief pursuant to s 22 of the FCA Act.
The jurisdictional question arising from s 476A of the Migration Act is by no means easy to resolve in the circumstances of this case. It would, at least at first blush, appear that, had the applicant filed an originating application which simply sought relief in the nature of mandamus to compel the Commonwealth, through its officers, to perform the duty to remove him from Australia pursuant to s 198 of the Migration Act, the effect of s 476A would be to deprive the Court of jurisdiction to entertain that claim. A claim for relief in the nature of mandamus in respect of the duty under s 198 of the Migration Act would ordinarily involve direct judicial review of a migration decision. That was the conclusion reached by Katzmann J in Chamoun v Commonwealth of Australia [2021] FCA 740 at [51]. The applicant did not suggest that the finding in Chamoun was plainly wrong.
Does it matter that the injunctive relief sought by the applicant in respect of the duty under s 198 is made in the context of, or as part of, a broader “matter” in respect of which the Court plainly has jurisdiction, being the applicant’s claim for damages for false imprisonment and relief in the nature of habeas corpus? And does it matter that the applicant has framed his relief in terms of a mandatory injunction, as opposed to relief in the nature of a writ of mandamus?
As for the first of those two questions, some of the reasoning in McHugh provides support for the applicant’s contention that, because the Court has jurisdiction to entertain his claim that he has been unlawfully detained, it has the power not only to make an order in the nature of the writ of habeas corpus, but also the power to grant injunctive and declaratory relief. In McHugh, the appellant applied for an order in the nature of habeas corpus in the context of, or in conjunction with, an application for judicial review in respect of a decision by the Minister under s 501CA of the Migration Act not to revoke the cancelation of his visa. Section 476A did not remove the Court’s jurisdiction to review the decision under s 501CA because it fell within s 476A(1)(c). The appellant also claimed that s 189 did not apply to him in any event because he was either a citizen or an Aboriginal Australian who was not an alien. The Minister conceded that the Court had jurisdiction to determine whether s 189 could apply to the appellant. The Minister nevertheless contended that s 476A operated to deprive the Court of jurisdiction to entertain the applicant’s claim for relief in the nature of habeas corpus.
The Full Court held that the Court had the authority and power to issue a writ of habeas corpus, or make an order in the nature of habeas corpus, in the circumstances of the case. Both Allsop CJ (with whom Besanko J agreed in respect of the issue concerning jurisdiction) and Mortimer J reasoned that it was inappropriate to refer to the jurisdiction to entertain habeas corpus because “as a writ or remedy it is an incident of the exercise (if appropriate to be exercised) of the Court’s jurisdiction otherwise conferred.”: Allsop CJ at [21]; see also Mortimer J at [188]. Allsop CJ also relevantly reasoned that the “Court, with statutory (including any implied) jurisdiction has authority (from that jurisdiction) and power (from s 23) to issue the writ of habeas corpus, if it be an appropriate remedy (interlocutory in character) within or incidental to the resolution of the controversy (the matter) before the Court and in respect of which it has jurisdiction”: Allsop CJ at [21]; see also Mortimer J at [223]-[247]. In those circumstances, it was held that a writ of habeas corpus, or an application for an order in the nature of habeas corpus, “can be sought as a remedy within, or as an incident of, the matter that includes the judicial review of the decision under s 501CA and the claim under s 39B that s 189 does not apply to [the applicant] …”: Allsop CJ at [23]; Besanko J agreeing at [74]-[75]; see also Mortimer J at [239]-[241].
There are some clear parallels between McHugh and this case. In this case, the Minister conceded that the Court has jurisdiction, unaffected by s 476A of the Migration Act, to entertain the applicant’s claim for damages for false imprisonment. He also conceded that the Court had authority and power to issue a writ of habeas corpus. The applicant’s allegations relating to the failure of officers to remove him in accordance with their duties under s 198 plainly arose in the context of his claim for damages for false imprisonment. In those circumstances, there is much to be said in favour of the proposition that the Court has authority, arising from its jurisdiction in respect of the claim of false imprisonment, and power (pursuant to s 23 of the FCA Act) to grant relief (be it injunctive relief, or relief in the nature of mandamus), within or incidental to the resolution of the matter before the Court in respect of which it has jurisdiction: see also s 32 of the FCA Act.
It is true that the nature of the writ of habeas corpus, which, as Allsop CJ observed in McHugh (at [16]) “is of great historical and contemporary importance”, may differ in some important respects from the injunctive and declaratory relief sought by the applicant in respect of the duty under s 198 of the Migration Act. While habeas corpus “does not involve direct judicial review of any decision” (Allsop CJ in McHugh at [16]), it is somewhat difficult to see how the same could necessarily be said in respect of the injunctive and declaratory relief. That said, it is equally difficult to see why the particular nature of the relief sought within, or as an incident of, a matter in respect of which the Court has jurisdiction necessarily bears on the question of jurisdiction.
The Commonwealth submitted that, even though the Court had jurisdiction to entertain the applicant’s broader claims in respect of false imprisonment, s 476A can nevertheless operate to remove the Court’s jurisdiction in respect of that part of the matter which involves an application for direct judicial review of a migration decision. In the present context, that would mean that s 476A would operate to remove or exclude the Court’s jurisdiction in respect of the applicant’s claims for relief relating to the duty to remove under s 198 of the Migration Act, but leave undisturbed the Court’s jurisdiction to entertain the applicant’s claims in respect of false imprisonment. The Commonwealth also characterised the applicant’s claims for injunctive and declaratory relief in respect of the duty to remove as an “add-on” which the applicant did not “need” in order to obtain the relief sought by him in respect of his detention.
There are at least three difficulties with those submissions.
First, the submission in relation to the operation of s 476A appears to run counter to the reasoning in McHugh. In McHugh, the Full Court had jurisdiction to review the Minister’s decision under s 501CA by reason of s 476A(1)(c) of the Migration Act. The Full Court held that the Court had authority and power to issue a writ of habeas corpus, as being within or as an incident of that jurisdiction. If the submission made by the Minister in this case concerning the operation of s 476A is correct, it would have operated in McHugh to remove the Court’s authority and power to entertain the application in respect of habeas corpus because it could (on the Commonwealth’s argument) also have been characterised as an “add-on”. It is apparent that the Full Court did not consider that s 476A operated in this way. The Commonwealth did not grapple with that aspect of the reasoning in McHugh.
Second, it is not entirely correct to characterise the applicant’s claims based on the duty to remove under s 198 of the Migration Act as a mere “add-on”, or as being unnecessary. It is true that the applicant’s specific claims for injunctive and declaratory relief concerning the alleged failure of officers to perform their duty were sought to be added at a later point in time, no doubt as a result of the High Court’s decision in AJL20 (HC). That does not mean that those claims can accurately be characterised as being unnecessary or a mere “add-on”. The claims for injunctive and declaratory relief are based on the same core allegation that formed the basis of the applicant’s claim for damages for false imprisonment, namely, that officers had failed to discharge their duty under s 198 of the Migration Act to remove the applicant as soon as reasonably practicable. In seeking to add the claims for injunctive and declaratory relief, the applicant was merely seeking to add additional or alternative claims for relief arising from the same core allegation. The fact that the applicant might have been able to secure his original claim for damages without resort to the additional or alternative claims for relief is entirely beside the point.
Third, as the applicant submitted, the Commonwealth’s submissions tended to conflate jurisdiction and power. It was common ground that the Court had jurisdiction to entertain the applicant’s claim relating to false imprisonment, including as it did the allegation that officers had failed to perform the duty under s 198 of the Migration Act. While the specific claims for injunctive and declaratory relief were sought to be added at a later stage, and may not directly relate to the claims for damages and relief in the nature of habeas corpus, it is difficult to see why that necessarily bears on the question of jurisdiction.
The final issue to address is whether it matters that the applicant has framed his relief in terms of a mandatory injunction, as opposed to relief in the nature of mandamus. It would appear likely that the applicant framed the relief in that way with a view to circumventing the issues that might otherwise arise concerning the operation of s 476A of the Migration Act.
As has already been discussed at length, the critical question in determining whether s 476A operates to exclude the Court’s jurisdiction in relation to his claims concerning the duty in s 198 is whether they constitute an application for public law remedies in the nature of direct judicial review of the conduct said to constitute a migration decision. Like many of the submissions by the parties in this matter, the submissions by the applicant and the Commonwealth in respect of the nature of the relief sought by the applicant were poles apart. For its part, the Commonwealth characterised the injunctive and declaratory relief sought by the applicant as “public law remedies in all but name” and submitted that the mandatory injunction sought by the applicant was “indistinguishable from mandamus”. The Commonwealth also relied on the fact that both mandamus and injunctive relief against Commonwealth officers are referred to in s 75(v) of the Constitution. The applicant, on the other hand, characterised the relief sought by him as an equitable injunction in aid of the enforcement of private law rights. It was therefore not a public law remedy.
The proper characterisation of the relief lies somewhere in between those two polar extremes.
It may be accepted that the exercise of the power to issue an injunction under s 75(v) of the Constitution is informed by the principles historically applied in respect of that remedy by courts administering equity: see the discussion in Smethurst v Commissioner of Police (Cth) (2020) 376 ALR 575; [2020] HCA 14 at [91]-[98] (Kiefel CJ, Bell and Keane JJ), [110]-[113] (Gageler J); [143]-[146] (Nettle J), [170]-[183] (Gordon J) and [226]-[239] (Edelman J). It does not follow that a mandatory injunction issued against an officer of the Commonwealth is incapable of being characterised as a public law remedy. While an injunction issued in that context may be “forged in the realm of private law”, it may nevertheless be available in the “field of public law”: cf Smethurst at [144] (Nettle J). An injunction is one of the “means of assuring all [sic] that officers obey the law and neither exceed nor neglect any jurisdiction …”: Smethurst at [97] (Kiefel CJ, Bell and Keane JJ), citing Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 at [104] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
The applicant’s contention that the mandatory injunction sought by him to compel officers of the Commonwealth to fulfil their duty under s 198 is “in aid of the enforcement of private law rights” is also somewhat doubtful. The injunction sought by the applicant plainly seeks to compel Commonwealth officers to discharge a public duty, rather than protect the applicant’s private rights. It is, in that context, more a public law remedy than a remedy which seeks to protect or enforce the applicant’s private rights.
The fact that the mandatory injunction sought by the applicant may be capable of being characterised as a public law remedy does not, however, mean that it necessarily involves direct judicial review of a migration decision such as to engage s 476A of the Migration Act. Indeed, despite the broad definition of “decision” in s 474(3) of the Migration Act, it is somewhat difficult to see why an injunction compelling officers to perform a duty which they have failed or refused to perform necessarily involves “reviewing” the officers’ failure or refusal to perform the duty. As Allsop CJ observed in McHugh (at [16]), “the notion of judicial review is to be more narrowly conceived” given the statutory context of s 476A, which concerns the “reordering of original and appellate jurisdiction between related courts”.
It should also be noted in this context that an injunction may issue to restrain a Commonwealth officer from exceeding or abusing power in circumstances where there has been no jurisdictional error: see Smethurst at [234] (Edelman J). It is, in those circumstances, difficult to see why the same would not apply to the issue of a mandatory injunction to compel the performance of a public duty. That tends to reinforce the conclusion that a mandatory injunction of the type sought by the applicant does not necessarily involve direct judicial review of a migration decision.
It is also not entirely correct for the Commonwealth to contend that the injunction sought by the applicant was “mandamus in all but name”. If the injunction sought by the applicant was to be granted, the effect may, broadly speaking, be similar to the effect of an order in the nature of a writ of mandamus, in the sense that the officers would be compelled to perform their statutory duty. To that extent, it could be said that there is an overlap between the two forms of relief. That is not to say, however, that the injunctive relief sought by the applicant is the same “in all but name” as the issue of a writ of mandamus. The two forms of relief are conceptually different and the principles that apply to the grant of an injunction in this context differ from the principles that apply in respect of mandamus. As already noted, an injunction may be granted in respect of a matter that does not involve jurisdictional error.
In all the circumstances, the better view would appear to be that, while the mandatory injunction sought by the applicant could accurately be characterised as a public law remedy, it nevertheless does not, at least in the particular circumstances of this case, involve direct judicial review of the relevant migration decision.
The more significant point, however, is that, as was the case in McHugh in respect of the relief of habeas corpus, the relevant question in this matter is not whether the Court has jurisdiction to issue an injunction. The question is whether the Court has power to issue an injunction as a means of resolving a matter in respect of which it has jurisdiction.
While the jurisdictional issue raised by the potential operation of s 476A in the circumstances of this matter is by no means straightforward, and its resolution is by no means free from doubt, the better view would appear to be that, in the somewhat unique circumstances of this case, the Court has jurisdiction to entertain the applicant’s claims for relief based on the allegation that officers have failed to perform or carry out their duty to remove him under s 198 of the Migration Act. The Court has jurisdiction to entertain those claims within, or as an incident of, the applicant’s broader claim for damages for false imprisonment and relief in the nature of habeas corpus. There is no dispute that the Court has jurisdiction to entertain those claims. The applicant is able to seek, and the Court has power to issue, a mandatory injunction and declaration relating to the failure of the officers to carry out their duty as an incident of that matter. Section 476A does not operate to exclude or remove the Court’s jurisdiction in that regard.
It should finally be reiterated that this lengthy excursion concerning jurisdiction is in any event essentially academic. That is because the Circuit Court proceeding, which includes the applicant’s claims concerning the alleged failure of the Commonwealth to perform or carry out the duty to remove him under s 198 of the Migration Act, has been transferred to this Court. An order has or will be made confirming that transfer pursuant to s 32AD of the FCA Act. Subsection 476(1)(a) is accordingly engaged and the Court has jurisdiction in relation to those claims pursuant to that provision.
The jurisdictional question was the only substantive point that the Commonwealth raised in opposition to the applicant’s amendment application. The Commonwealth did not suggest that it was in any way prejudiced by the amendment.
Leave to amend will accordingly be granted to the applicant to file an amended originating application in the form annexed to the affidavit of Ms Sarah Fisher affirmed on 21 July 2021.
ISSUE 2 – LAWFULNESS OF THE APPLICANT’S DETENTION
The fate of the applicant’s claims concerning unlawful detention was effectively sealed by two judgments handed down during the course of the proceeding.
As discussed earlier, the applicant’s claims concerning unlawful detention as originally framed were based in large part on the decision in AJL20 (first instance). The applicant’s case hinged on three propositions: first, that the only relevant purpose of his detention by the Commonwealth was his removal from Australia; second, the Commonwealth had not removed him, or had not carried out his removal as soon as reasonably practicable; and third, it followed that the Commonwealth had either never detained him for the purpose of removal, or had ceased to detain him for that purpose.
The fundamental problem for the applicant is that the decision of the majority in AJL20 (HC) undermined the legal basis of the applicant’s claims in relation to unlawful detention. As discussed earlier, the effect of the reasoning of the majority in AJL20 (HC) is that the lawfulness of the detention of an unlawful non-citizen in accordance with ss 189(1) and 196(1) is not conditional on compliance with the duty under s 198 of the Migration Act. A failure by relevant officers of the Commonwealth to remove an unlawful non-citizen as soon as reasonably practicable therefore does not mean that the detention of that person becomes unlawful. The appropriate remedy that may be available in respect of such a failure is the issue of a writ of mandamus to enforce the duty to remove.
Following the handing down of the judgment in AJL20 (HC), the applicant sought to rely on the decision in MZZHL (first instance), at least insofar as the reasoning of the trial judge in that case was not dependent, or entirely dependent, on the reasoning in AJL20 (first instance). The difficulty for the applicant, however, is that the Full Court subsequently allowed an appeal from that judgment: see Commonwealth of Australia v MZZHL [2021] FCAFC 191. The Full Court found that neither of the two paths of reasoning of the trial judge could survive the decision of the majority in AJL20 (HC).
The availability of mandamus to compel the performance of a statutory duty is perhaps one reason why there are very few cases where a mandatory injunction has been granted, or even considered, in circumstances where mandamus would also be available: M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7th ed, 2022) at [16.290]. Another reason may be that equity has typically been reluctant to grant mandatory injunctions: Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 at [85]-[86] (McLure P). It is also clear that, where mandamus does not lie to compel a Minister to exercise a statutory power, such as the power under s 195A of the Migration Act, the Court would not issue a mandatory injunction to the same effect: see Plaintiff M168/10 v The Commonwealth of Australia (2011) 279 ALR 1; [2011] HCA 25 at [37] (Crennan J).
Putting those general considerations to one side, the most compelling reason why mandamus is the more appropriate form of relief than a mandatory injunction in the particular circumstances of this case relates to the qualified nature of the duty under s 198 of the Migration Act. The nature of the duty is such that a mandatory injunction to compel the performance of the duty may be difficult to enforce and may ultimately have limited utility. The procedure that follows the issue of a writ of mandamus, however, is more flexible and more likely to have some utility in enforcing the duty in question.
The duty under s 198 is to remove the applicant as soon as reasonably practicable. The injunction sought by the applicant was to the effect that the Commonwealth and the Secretary (who is the second respondent in the proceeding transferred from the Circuit Court) discharge that duty. If an injunction issued in those terms, it would be very difficult to determine, at any particular point in time, whether the Commonwealth or the Secretary had complied with the injunction. That is because the duty in s 198 is not to remove the applicant simpliciter, but to remove the applicant “as soon as reasonably practicable”. The Commonwealth and the Secretary may be unable to remove the applicant because it is not reasonably practicable to do so at that particular time. For example, despite their best efforts, they may be unable to find a third country or place which is willing to receive the applicant and grant him some form of residency.
The problem which arises from the qualified nature of the duty in question is that the question of compliance with any mandatory injunction could only be tested in contempt proceedings in which the applicant would bear the onus of proving that the Minister had failed to comply with the injunction. To prove non-compliance, it would not be sufficient for the applicant to simply prove that he had not been removed. He would also have to prove that the circumstances were such that it was reasonably practicable to remove him. The circumstances of the applicant’s case are such that it would be extremely difficult, if not practically impossible, for him to discharge the onus of proving non-compliance with a mandatory injunction in the terms proposed by the applicant.
The procedure in respect of mandamus, however, is somewhat more flexible and more suitable to the circumstances of the applicant’s case. The procedure was explained in Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231; [2015] HCA 3 at [35]-[47] (French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ). In that case, a writ of mandamus was issued directing the Minister “to consider and determine the plaintiff’s application for a Protection (Class XA) visa according to law or show cause why it has not been done” (emphasis added). The writ was returnable on 21 July 2014. On 17 July 2014, the Minister decided to refuse the plaintiff’s visa application. On the return of the writ on 21 July 2014, the Minister filed a certificate purporting to state that he had done what was commanded of him by the writ. The plaintiff subsequently pleaded to the Minister’s return to the writ of mandamus, claiming that the Minister had not done what was commanded of him and seeking a peremptory writ of mandamus directing the Minister to grant the visa. The plaintiff succeeded in demonstrating that the Minister’s decision to refuse to grant him the visa was not made according to law. He therefore succeeded in establishing that the Minister’s return to the writ was defective and the duty imposed by the writ remained unperformed. In the end result, the High Court issued a peremptory writ of mandamus commanding the Minister to grant the plaintiff a protection visa.
The procedure referred to in Plaintiff S297 was, as might be expected, entirely in accordance with r 25.13 of the High Court Rules 2004 (Cth). Rule 25.13.1 of the High Court Rules provides that, unless otherwise ordered, a “writ of mandamus must command the person to whom it is addressed to do the act in question or show cause why it has not been done”, and r 25.13.2 specifies the particular form the writ must take. Rule 25.13.4 provides that, unless otherwise ordered, a writ of mandamus must be returnable within 14 days of the service of the writ. Importantly, r 25.13.5 specifies what must be done in answer to the writ. In summary, the person to whom the writ is addressed must file and serve an affidavit stating either that the act commanded by the writ has been done, or the reason why it has not been done. Rule 25.13.6 provides that if the act commanded by the writ has not been done, the Court may issue a writ of peremptory mandamus or make “any other orders necessary”.
Section 23 of the FCA Act relevantly provides that “[t]he Court has power, in relation to matters in which it has jurisdiction, to … issue, or direct the issue of, writs of such kinds as the Court thinks appropriate”. It follows that the Court has jurisdiction to issue, or direct the issue of, a writ of mandamus. Unlike the High Court Rules, however, the Federal Court Rules 2011 (Cth) do not provide a specific procedure in respect of a writ of mandamus or prescribe any form of writ. That does not mean that an appropriate form of writ cannot be fashioned to replicate the form of the writ in the High Court Rules. Nor does it mean that the procedure as explained in Plaintiff S297 cannot be replicated in this Court. Judges of this Court have issued writs of mandamus in a form similar to that used in the High Court: see most recently EVX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1079.
The important point to emphasise is that a writ of mandamus provides a far more flexible and appropriate means by which to compel performance of the particular duty in s 198 of the Migration Act as compared to a mandatory injunction. If a writ of mandamus was issued, the Commonwealth, or the Secretary, would be required to file and serve an affidavit, within the time allowed by the writ, which stated either that the act commanded by the writ had been done (for example, the applicant had been removed) or the reason why the applicant had not been removed as soon as reasonably practicable (for example, the applicant had not been removed because, despite the best efforts of relevant officers, no country had been identified which would receive the applicant and grant him residency). It would then be open to the applicant to plead to the return of the writ and, depending on the circumstances, contend that the Commonwealth or the Secretary had not done what the writ commanded of them, or adequately explain why they had not done what was commanded of them.
In all the circumstances, the appropriate form of relief is the issue of a writ of mandamus, rather than the issue of a mandatory injunction. While the applicant’s originating application (and the application filed in the Circuit Court) did not specifically seek the issue of a writ of mandamus, it did seek “[s]uch other order as the Court thinks fit”. The issue of a writ of mandamus is such an order. The Commonwealth and the Secretary could not, in all the circumstances, complain that the originating application did not specifically seek the issue of a writ of mandamus, or that they have suffered any prejudice or practical injustice arising from that circumstance. They could not, for example, contend that they did not have a reasonable opportunity to be heard in relation to the grant of such relief. As noted earlier, the Commonwealth submitted that the injunction sought by the applicant was mandamus in all but name and essentially directed its submissions to the availability of mandamus.
Should a writ of mandamus issue?
The next question to consider is whether there is any reason why a writ of mandamus should not issue given the factual findings that have been made. To briefly recap, those findings are that officers of the Commonwealth have failed to discharge the duty to remove the applicant from Australia as soon as reasonably practicable. The relevant officers have been dilatory in performing that duty and have failed to take any reasonable steps to seek to remove the applicant from Australia, either to Syria (prior to 25 May 2021) or any other country.
The Commonwealth submitted that an injunction or mandamus should not issue or be granted for four reasons: first, it was not reasonably practicable for the applicant to be removed, or at least the applicant had not demonstrated that it was; second, the applicant had not proved that the “purpose of removal had been abandoned”; third, there would be no “utility in an order that merely repeats the obligation under s 198”; and fourth, it would be “burdensome for the Court to have to supervise compliance with such an order, given its diffuse nature”.
None of the grounds advanced by the Commonwealth for refusing to issue a writ of mandamus have any merit.
First, as discussed earlier, while the applicant bore the onus of proving that the Commonwealth had failed to discharge its duty under s 198 of the Migration Act, discharge of that onus does not require the applicant to positively prove that there is a third country in which he has a right of residence. As the reasoning of the majority in AJL20 (HC) indicates, mandamus may issue where the Executive has been dilatory in performing its duty under s 198, or has failed to take any reasonable steps to discharge the duty. For the reasons already given, the Commonwealth, through its officers, has been dilatory in discharging the duty to remove the applicant and has failed to take reasonable steps to remove the applicant.
The manifest inaction of the officers who were responsible for the applicant’s removal was such that it constituted a constructive, if not actual, failure by the officers to discharge their statutory duty. The evidence revealed that the failure of the officers in that regard was largely the result of the fact that they misunderstood or misconceived what they were required to do in the discharge of their duty. They were initially “distracted” by the “irrelevant consideration” that the option of removing the applicant to Syria would result in a breach by Australia of its non-refoulement obligations: cf AJL20 (HC) at [67]. They also acted under the erroneous assumption that the applicant could otherwise only be returned to a country in respect of which he had a right of residency. Those errors are sufficient to constitute jurisdictional error.
Second, it was also not incumbent on the applicant, in discharging his onus, to prove that the “purpose of removal has been abandoned”. What the applicant needed to prove was that the Commonwealth, by its officers, had failed to discharge the duty in s 198 of the Migration Act. That he did by proving that the officers charged with the duty effectively abandoned any attempt to remove the applicant and, as a result, failed to take any steps, or any meaningful or reasonable steps, to remove him. The fact that some officers may ostensibly have retained vague notions that the applicant was being detained for the purpose of removal says nothing about the discharge of the officers’ duties in the face of their almost complete inaction. Even if the applicant may have been detained for the notional purpose of removal, next to nothing was done to actually remove him.
Third, the Commonwealth’s submission to the effect that there would be no utility in issuing a writ of mandamus which compelled the Commonwealth to discharge the duty in s 198 of the Migration Act in the applicant’s case flies in the face of the majority judgment in AJL20 (HC). As has already been noted, the majority in AJL20 (HC) found, in no uncertain terms, that mandamus is the appropriate relief where the Executive has been dilatory in performing its duties under s 198 of the Migration Act. It should also, of course, be noted that it was the Commonwealth in AJL20 (HC) that submitted that the duty to remove an unlawful non-citizen as soon as reasonably practicable may attract mandamus: see AJL20 (HC) at [99]. In those circumstances, it borders on the disingenuous for the Commonwealth to suggest in this matter that the issue of a writ of mandamus could have no utility in enforcing the duty to remove in s 198 of the Migration Act.
In any event, a writ of mandamus commanding the Commonwealth, or the Secretary, to remove the applicant as soon as reasonably practicable in accordance with the duty in s 198 of the Migration Act will have some utility. As explained earlier, mandamus will require the Commonwealth, or the Secretary, to make a return to the writ by filing an affidavit deposing to whether the Commonwealth, or the Secretary, has done what the writ commands them to do, or why that has not been done. If the applicant is unable, for some reason, to be removed, that requirement will, at the very least require the Commonwealth (through an appropriate officer) or the Secretary to identify what reasonable steps have been taken to remove the applicant.
It should also be noted that the Commonwealth provided no meaningful, let alone persuasive, argument in support of the assertion that there would be no utility in issuing a writ of mandamus which compelled compliance with the duty in s 198 of the Migration Act. The argument amounted to little more than bare assertion. Nor did the Commonwealth cite any authority in support of the proposition that any such lack of utility would provide a proper or sound basis for refusing to issue a writ of mandamus.
Fourth, there is equally no merit in the Commonwealth’s submission that it would be burdensome for the Court to have to supervise compliance with a writ of mandamus given the “diffuse nature” of the duty in s 198 of the Migration Act. The Minister again did not expand on this submission or cite any authority. In any event, the submission again flies in the face of the Commonwealth’s submission in AJL20 (HC) and, more significantly, the majority judgment in that case. It amounted to a submission that the duty in s 198 is effectively unenforceable. If that were the case, that could lead to the impermissible result that unlawful non-citizens could effectively be detained at the unconstrained discretion of the Executive: cf AJL20 (HC) at [99] fn 151 (Gordon and Gleeson JJ) citing, inter alia, Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41 at [64], [77] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 43 at [22] (French CJ, Hayne, Crennan, Kiefel and Keane JJ).
In any event, the duty in s 198 of the Migration Act cannot be said to be “diffuse” in any relevant respect. While the Commonwealth did not elaborate or explain how the duty was said to be diffuse, it may be assumed that the submission was based on the fact that the obligation to remove is qualified by the words “as soon as reasonably practicable”.
The requirement to remove an unlawful non-citizen as soon as reasonably practicable is not “diffuse”. It has been explained in a number of cases. In WAIS, French J said as follows (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 a 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 term “as soon as reasonably practicable” in s 198.
In M38, the Full Court indicated (at [68]) that whether, in a particular case, removal is reasonably practicable may depend on whether there is another country that will admit the unlawful non-citizen. After referring to the aforementioned passage from the judgment of French J in WAIS, the Full Court said (at [69]):
Doubtless, there will be other factors that, from time to time, will lead an officer to conclude that, at the time removal is contemplated, removal would not be reasonably practicable in the circumstances of the case. If, for example, the only country willing to receive an unlawful non-citizen were suffering from some severe natural disaster or were in a state of utter civil anarchy, the officer may well be entitled to conclude that his or her removal would not be reasonably practicable until the effects of the disaster had dissipated or some degree of order had been restored. (We interpolate here that this was not the situation under consideration in SE: see SE at 126-127) The physical condition of a person facing removal may also lead an officer to conclude that his or her removal in that condition would not make the removal reasonably practicable: cf Li at [7] per Merkel J (with whom Heerey and Conti JJ agreed).
Plainly the duty in s 198 of the Migration Act requires the officer or officers responsible for the discharge of the duty to actually turn their mind to whether, in the particular circumstances of the case, the removal of the unlawful non-citizen in question to a particular country would be reasonably practicable. The fact that some degree of evaluation is required to discharge the duty does not make the duty “diffuse” or difficult to apply. The problem in this case is that no officer has genuinely turned their mind to the discharge of their duty, or taken any reasonable steps to discharge it.
As for the submission that it would be unreasonably burdensome for the Court to supervise compliance with an order directing compliance with the duty, that submission may perhaps have had some force in relation to a mandatory injunction for the reasons given earlier. A mandatory injunction may be refused in the exercise of the court’s discretion because it would be difficult to enforce, or would require the long-term supervision of the court. Courts are generally reluctant to make mandatory injunctions for that very reason.
There is, however, no apparent basis for the submission that a writ of mandamus compelling the Commonwealth, or the Secretary, to discharge the duty under s 198 of the Migration Act would be burdensome for the Court to supervise. As explained earlier, the writ would, in the first instance, require the Commonwealth, or the Secretary, to file an affidavit deposing to whether the command in the writ had been complied with, or, if not, why not. That would not impose a burdensome obligation on the Court, or require excessive or ongoing supervision. The next step would depend on the nature of the return. If the Commonwealth’s return was to the effect that it had done what was commanded, but it was not reasonably practicable to remove the applicant, it may be that the return could be challenged. That might involve a challenge to the claim that it was not reasonably practicable to remove the applicant. That could hardly be said to impose an excessively burdensome obligation on the Court.
It should perhaps be noted, in this context, that if officers of the Executive, including Ministers, fail to comply with a writ or order mandating performance of their statutory duties, that may result in those officers being committed to prison for contempt of court: AJL20 (HC) at [52] (Kiefel CJ, Gageler, Keane and Steward JJ); M v Home Office [1994] 1 AC 377; see also AFX17 v Minister for Home Affairs (No 4) (2020) 279 FCR 170; [2020] FCA 926. That may well focus the mind of the officer who ultimately swears or affirms the affidavit in response to the writ issued in this case.
The Commonwealth did not advance any persuasive or compelling reason why a writ of mandamus compelling the discharge of the duty to remove the applicant as soon as reasonably practicable should not issue in the circumstances of this case. For the reasons given, it is appropriate that such a writ issue.
Having regard to the somewhat haphazard way in which the matter proceeded, the parties did not have any real opportunity to make submissions concerning the precise form of the injunction or writ which should issue. It would, in those circumstances, be prudent to permit the parties to liaise with a view to reaching agreement on the appropriate form of the writ having regard to these reasons, including, importantly, the time allowed for the return to the writ. The High Court Rules provide that, unless otherwise ordered, a writ of mandamus must be returnable within 14 days from the service of the writ. This Court can no doubt also order that the writ be returnable at a time other than the default time of 14 days from the date of service: see s 38(2) of the FCA Act and EVX20. It may well be the case that a longer period would be appropriate given the particular nature of the duty involved in this case.
The parties should also give some attention to the identity of the person or entity to whom the writ should be addressed. It should be noted, in that regard, that the duty imposed by s 198 of the Migration Act is imposed on “officers”, rather than the Commonwealth. That may be why the applicant named the Secretary as the second respondent in the proceeding transferred from the Circuit Court.
If the parties are unable to agree on the form of the writ, it will be necessary for the matter to be listed for the purpose of hearing further submissions in relation to that issue.
Declaratory relief
The declaration sought by the applicant was that the Commonwealth “has failed since 12 December 2020, and at the date of judgment is still failing, to discharge its duty in s 198 of the Migration Act in respect of the Applicant”.
The Court has found that the Commonwealth has failed to discharge its duty in s 198 of the Migration Act since at least 22 February 2021. It is difficult to accept that there was a failure to discharge the duty from as early as 12 December 2020. Plainly some time was required for the Commonwealth to take reasonable steps to discharge its duty. The relevant failure has continued up to the time of judgment.
The question is whether the Court should make a declaration reflecting this finding.
The Commonwealth submitted that no declaration should be made in respect of the period of 12 December 2020 to 24 May 2021, the latter being the date of the commencement of the Clarifying Act, because the failure on the part of the Commonwealth to discharge the duty did not render the applicant’s detention unlawful. It followed, so it was submitted, that a declaration in respect of that period would have no foreseeable consequences for the parties.
As for the period from 24 May 2021, the Commonwealth simply submitted that it had not failed to comply with the duty.
The Court’s power to make declarations under s 21 of the FCA Act is a wide discretionary power: 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).
It may be accepted that one discretionary consideration which tends to weigh against making a declaration is that the declaration in question would produce no foreseeable consequence for the parties: Gardner v Dairy Industry Authority of New South Wales (1977) 52 ALJR 180 at 188 (Mason J); Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at [39] (Mason CJ, Dawson, Toohey and Gaudron JJ). That, however, is not the only discretionary consideration. Other relevant considerations include whether the declaration will have any utility, whether the proceeding involves a matter of public interest, whether the circumstances call for the marking of the Court’s disapproval of the impugned conduct, whether the declarations may assist in clarifying the law and whether the declarations will serve to warn others of the danger of engaging in similar conduct: see generally Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561; [2002] NSWSC 310 at [38] (Davies AJ); Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union (2007) ATPR 42–140; [2006] FCA 1730 at [6] (Nicholson J); Australian Securities and Investments Commission v Monarch FX Group Pty Ltd (2014) 103 ACSR 453; [2014] FCA 1387 at [63] (Gordon J); Australian Securities and Investments Commission v Stone Assets Management Pty Ltd (2012) 205 FCR 120; [2012] FCA 630 at [42] (Besanko J); Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 3) (2012) 213 FCR 380; [2012] FCA 43 at [272] (Perram J); Australian Competition and Consumer Commission v IMB Group Pty Ltd [1999] FCA 313 at [21] (Drummond J).
It has also been said that a declaration can “mark in some way the importance of a breach of a public law rule even in a case where it would not be appropriate to award … damages”: P Cane, ‘Damages in Public Law’ (1999) 9 Otago Law Review 489 at 499, referred to with approval by Gordon J in Lewis v Australian Capital Territory (2020) 381 ALR 375; [2020] HCA 26 at [119].
The circumstances of this case warrant the making of a declaration that officers of the Commonwealth have failed to discharge their duty under s 198 of the Migration Act in respect of the applicant. At the very least, the declaration will have some vindicatory purpose and effect. It will vindicate the applicant’s claim that officers of the Commonwealth have failed to discharge their statutory duty to remove him as soon as reasonably practicable, even though that failure has not made his detention unlawful. This proceeding also involves an important matter of public interest, and a declaration would be appropriate to mark the Court’s disapproval of the Commonwealth’s failure to discharge such an important statutory duty.
The declaration should be in the following terms:
From at least 22 February 2021, 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 from Australia as soon as reasonably practicable.
COSTS
The question of costs is not entirely straightforward. The applicant failed to obtain the primary relief sought by him, which was damages and an order directing his release from immigration detention. He has, however, had a measure of success. He has demonstrated that officers of the Commonwealth failed to discharge their statutory duty and has obtained some relief in that regard. The proceeding was also complicated by various shifts in position by the parties, including amendment applications and the need for further submissions arising from changes in the law and the handing down of relevant judgments by the High Court and Full Court during the course of the proceeding. It should also be noted that the costs of the applicant’s application for interlocutory relief were reserved.
In the circumstances, it would be appropriate for the parties to liaise with a view to seeing if an agreed position can be reached in relation to costs. If no agreed position can be reached, the issue can be determined at a further hearing, or on the basis of written submissions.
CONCLUSION AND DISPOSITION
The applicant has failed to establish that he has been unlawfully detained at any point in time. His claim for damages and an order directing his release from immigration detention must be dismissed.
The applicant has, however, demonstrated that officers of the Commonwealth who were responsible for his removal pursuant to s 198(6) of the Migration Act have failed to discharge that duty. A declaration should be made to that effect. A writ of mandamus should also issue compelling the discharge of that duty. The parties will be heard further in relation to the precise terms of the writ if they are unable to reach any agreement in respect of that issue.
The parties will also be heard further in relation to the question of costs if they are unable to agree on an appropriate order in respect of costs.
I certify that the preceding two hundred and twenty-three (223) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. Associate:
Dated: 31 March 2022
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