CRS20 v Secretary, Department of Home Affairs
[2024] FCA 619
•12 June 2024
FEDERAL COURT OF AUSTRALIA
CRS20 v Secretary, Department of Home Affairs [2024] FCA 619
File number: VID 123 of 2024 Judgment of: WHEELAHAN J Date of judgment: 12 June 2024 Catchwords: CONSTITUTIONAL LAW — application for writ of habeas corpus – consideration of the constitutional and statutory limit on executive detention established in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 – where the applicant is in immigration detention – where the applicant has requested removal from Australia – where the case was initially argued on the basis that s 198(1) of the Migration Act 1958 (Cth) applied to the applicant, thereby requiring his removal from Australia – where Iran and Iraq were identified as countries to which the applicant could be removed – whether there is a real prospect of the removal of the applicant to Iran or Iraq becoming practicable in the reasonably foreseeable future – where the respondents conceded that the applicant had discharged an evidentiary burden to put the lawfulness of his detention in issue – where the respondents bore the legal onus to prove that the detention of the applicant was authorised by law – there is no real prospect of the removal of the applicant to Iran becoming practicable in the reasonably foreseeable future – there is a real prospect of the removal of the applicant to Iraq becoming practicable in the reasonably foreseeable future.
MIGRATION — construction of ss 198 and 198AD of the Migration Act – where s 198(11) provides that s 198 does not apply in circumstances where s 198AD applies – where s 198AD(2) requires persons to whom it applies to be taken to a regional processing country as soon as reasonably practicable – whether s 198AD applies to an unauthorised maritime arrival in whose favour the Minister has made a determination under s 46A(2) – decision of Rangiah J in AZC20 v Minister for Home Affairs [2021] FCA 1234 considered – decision of the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52; 290 FCR 149 considered – where the High Court overruled the judgment of the Full Court on the basis that it lacked jurisdiction – Rangiah J’s decision is to be followed unless it is plainly wrong – Rangiah J’s decision is not plainly wrong – s 198AD applies to the applicant – there was no evidence concerning the prospects of taking the applicant to a regional processing country, as is required by s 198AD(2) – the respondents’ legal onus to justify the detention of the applicant is not discharged – order that the applicant be released from detention made.
Legislation: Constitution ch III
Evidence Act 1995 (Cth) ss 136, 140
Federal Court of Australia Act 1976 (Cth) ss 23, 25(6), 37M
Freedom of Information Act 1982 (Cth)
Judiciary Act 1903 (Cth) ss 39B(1A), 78B
Migration Act 1958 (Cth) ss 3A, 5(1), 5AA, 46A, 46A(2), 46A(2C), 46A(3), 46A(4), 65A, 85, 189(1), 195A, 196(1), 197C, 198, 198(1), 198(6), 198(11), 198A, 198AA, 198AB, 198AD, 198AD(1), 198AD(2), 198AD(2A), 198AD(3), 198AE, 198AF, 198AG, 198AH, 198AHA
Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth)
Migration Amendment (Excision from Migration Zone) Act 2001 (Cth)
Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth)
Parliamentary Privileges Act 1987 (Cth) s 16
Federal Court Rules 2011 (Cth)
Civil Liability Act 2002 (NSW)
Cases cited: Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
ASF17 v Commonwealth [2024] HCA 19
Australian Communist Party v Commonwealth (1951) 83 CLR 1
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
AZC20 v Minister for Home Affairs [2021] FCA 1234
AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 411 ALR 615
BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91; 285 FCR 43
BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 201; 301 FCR 229
BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; 162 FCR 234
BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; 283 FCR 97
Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98; 288 FCR 657
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
CKL21 v Minister for Home Affairs [2022] FCAFC 70; 293 FCR 634
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
CPE15 v Minister for Immigration and Border Protection [2017] FCA 591
Dean v Pope [2022] NSWCA 260; 110 NSWLR 398
Director of Public Prosecutions (Vic) v Patrick Stevedores Holdings Pty Ltd [2012] VSCA 300; 41 VR 81
DWN042 v Republic of Nauru [2017] HCA 56; 350 ALR 582
Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36
Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd [2007] FCAFC 16; 158 FCR 325
Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336
Gett v Tabet [2009] NSWCA 76; 109 NSWLR 1
Hahn v Conley (1971) 126 CLR 276
HFM043 v Republic of Nauru [2018] HCA 37; 359 ALR 176
Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757
Howe v Zuchowski [2024] VSCA 56
La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52; 290 FCR 149
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181
Nationwide News Pty Ltd v Rush [2020] FCAFC 115; 380 ALR 432
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005
Perazzoli v BankSA, a division of Westpac Banking Corporation Ltd [2017] FCAFC 204
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217
Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319
Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42
Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144
Plaintiff M96A/2016 v Commonwealth [2017] HCA 16; 261 CLR 582
Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28
Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; 255 CLR 179
Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Purkess v Crittenden (1965) 114 CLR 164
Re Sutherland; French Caledonia Travel Service Pty Ltd (in liq) [2003] NSWSC 1008; 59 NSWLR 361
Sami v Minister for Home Affairs [2022] FCA 1513
Save the Children Australia v Minister for Home Affairs [2023] FCA 1343
Sparks v Hobson [2018] NSWCA 29; 361 ALR 115
Spencer v Commonwealth [2010] HCA 28; 241 CLR 118
Taylor v Owners — Strata Plan No 11564 [2014] HCA 9; 253 CLR 531
Teubner v Humble (1963) 108 CLR 491
Blatch v Archer (1774) 1 Cowp 64; 98 ER 969
Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586
Scott v Copenhagen Reinsurance Co (UK) Ltd [2003] 2 All ER (Comm) 190
Wentworth Securities Ltd v Jones [1980] AC 74
Halsbury’s Laws of England, 4th ed, vol 26, at [580]
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 284 Date of hearing: 3–4 June 2024 Counsel for the Applicant: Mr M Albert with Ms J Zhou Solicitors for the Applicant: Asylum Seeker Resource Centre Counsel for the Respondents: Mr P Knowles SC with Mr M Maynard Solicitors for the Respondents: Australian Government Solicitor
ORDERS
VID 123 of 2024 BETWEEN: CRS20
Applicant
AND: SECRETARY OF DEPARTMENT OF HOME AFFAIRS
First Respondent
MINISTER FOR HOME AFFAIRS
Second Respondent
ORDER MADE BY:
WHEELAHAN J
DATE OF ORDER:
12 JUNE 2024
THE COURT ORDERS THAT:
1.The applicant be released from detention forthwith.
2.Pursuant to r 39.32(3) of the Federal Court Rules 2011 (Cth), this order be taken to have been entered upon its authentication.
3.Failing agreement on costs, the applicant’s application for costs be listed for hearing at 2.15 pm on 18 June 2024.
4.By 4.00 pm on 17 June 2024, counsel for the parties confer in relation to the issues to be dealt with at the hearing of the applicant’s application for costs.
OTHER MATTERS:
A.The parties should email the Chambers of the Hon. Justice Wheelahan forthwith in the event that agreement is reached on the question of costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WHEELAHAN J:
This is an application for a writ of habeas corpus directing the first respondent, the Secretary of the Department of Home Affairs, to release the applicant from immigration detention.
The applicant is a Faili Kurd of Shia Muslim faith. To explain the genesis of his application, it is enough to map the broad contours of the applicant’s life and legal status in Australia. The applicant was born in Iraq, but grew up in Iran after being deported there as a young child. In 2012, the applicant travelled to Australia by boat. Upon his arrival, he was taken into immigration detention. For a time, the applicant was at liberty in the Australian community as the holder of a bridging visa. That visa was cancelled, however, in 2016, and the applicant’s application for a protection visa was later refused. Aside from some time on remand, the applicant has remained in immigration detention ever since. The applicant has made a series of challenges to the refusal of his protection visa application, but now seeks to be removed from Australia. The Department has not yet succeeded in arranging the removal of the applicant from Australia. For that reason, he remains in immigration detention.
The applicant submits that his continuing detention is not authorised by ss 189(1) and 196(1) of the Migration Act 1958 (Cth). He bases that submission on the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005, which held that the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia comes to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future. The High Court held that, where this constitutionally permissible period would otherwise be exceeded, s 3A of the Migration Act requires that ss 189(1) and 196(1) not apply so as not to authorise the continuing detention of the alien.
The exclusive foundation on which the applicant seeks a writ of habeas corpus is the submission that there is no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future, meaning there is no positive legal authority for his continuing detention.
The applicant has invoked the jurisdiction of this Court to resolve a justiciable controversy concerning his right to personal liberty, which arises under a law made by the Commonwealth Parliament and, indeed, under the Constitution itself. This Court therefore possesses jurisdiction under s 39B(1A) of the Judiciary Act 1903 (Cth). Its jurisdiction having been regularly invoked, the Court is clothed with the power to direct the issue of a writ of habeas corpus. Further, under s 23 of the Federal Court of Australia Act 1976 (Cth), it has power to make an order in the nature of habeas corpus, that is, an order of its own force without the procedural step that a writ issue: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 at [2] (Allsop CJ), [75] (Besanko J) and [188]–[248] (Mortimer J).
Evidence
The evidence in the proceeding was by affidavit, with some additional documents that were tendered separately. No witness was required for cross-examination.
The applicant’s evidence
The applicant read four affidavits to the Court. All of these were affidavits made by his solicitor, Rachel Saravanamuthu.
Ms Saravanamuthu’s first affidavit, dated 16 February 2024, comprised two paragraphs and essentially deposed to the fact that the applicant was being held in immigration detention.
Ms Saravanamuthu’s second affidavit, dated 2 May 2024, was more substantial and detailed the applicant’s immigration history and the course of efforts to remove him from Australia. It was received into evidence save for two paragraphs that were not read: [56] and [77].
Ms Saravanamuthu’s third affidavit annexed documents that were responsive to two notices to produce issued by the respondents, as well as documents that the respondents had produced in response to a request from the applicant’s solicitors. That last category comprised documents to which a Pre-Removal Clearance completed by the respondents on 15 May 2024 had referred.
Ms Saravanamuthu’s fourth affidavit was read on the second day of the hearing, and annexed documents obtained by the applicant under the Freedom of Information Act 1982 (Cth) and by internet searches of a database of documents obtained by others under the same legislation. Those documents included a determination made by the Minister for Home Affairs revoking a determination under s 46A(2) to lift the bar apparently in relation to the applicant.
The respondents’ evidence
The respondents read four affidavits to the Court.
Two affidavits, which were read without objection, were affirmed by Michelle Stone on 18 April 2024 and 30 May 2024, respectively. Ms Stone is a lawyer with the Australian Government Solicitor, the solicitors for the respondents, and her first affidavit annexed documents relating to the applicant’s migration and detention history, as well as communications between the representatives of the parties to this proceeding. Ms Stone’s second affidavit detailed communications between the respondents’ solicitors and the Attorneys-General of the Commonwealth, States and Territories regarding the service of notices under s 78B of the Judiciary Act. I received an assurance from senior counsel for the respondents that the notices had been served as required.
The respondents also read two affidavits of Jason Nette, an Inspector in the Consular Engagement and Liaison Team of the Australian Border Force’s Removals Program Branch.
Mr Nette’s first affidavit, dated 18 April 2024, dealt with subjects including –
(a)the functions, responsibilities and processes of the Removals Program Branch and its Consular Engagement and Liaison Team;
(b)the Consular Engagement and Liaison Team’s role in the processes that are followed to facilitate the removal of persons to Iran and Iraq;
(c)the practices and requirements of the Iranian and Iraqi authorities regarding the removal of persons from Australia to Iran and Iraq, respectively; and
(d)the steps undertaken by the Consular Engagement and Liaison Team to facilitate the removal of the applicant from Australia to Iran or Iraq.
Mr Nette’s second affidavit, dated 16 May 2024, dealt with subjects including –
(a)the internal systems used by the Consular Engagement and Liaison Team to record notes of steps taken in relation to travel document applications;
(b)interactions between Australian government officers and consular officials from the Iraqi embassy; and
(c)a Minute of Pre-Removal Clearance dated 15 May 2024 that was conducted to ensure, for administrative purposes, that the removal of the applicant did not breach Australia’s non-refoulement obligations.
Additionally, at the commencement of the hearing the respondents tendered an “Iran Travel Document Reference Guide”, dated 2 May 2024, that was an updated version of a document annexed to Mr Nette’s first affidavit. This was received into evidence without objection.
After the respondents closed their evidentiary case, counsel for the applicant commenced his address on the substantive issues before the Court. Over the course of that address, counsel for the applicant introduced two new issues that had not previously been identified to the Court or, I gather, to the respondents’ representatives. Those issues concerned the fitness of the applicant to travel, and the potential application of s 198AD of the Migration Act. In view of those new issues, the respondents and then the applicant applied for leave to reopen their evidentiary cases. Those applications to reopen were not, in the end, opposed, and I granted leave accordingly.
Upon reopening their case, the respondents tendered four additional documents that were relevant to the two new issues raised by counsel for the applicant. Those documents were –
(a)an email chain between an email address styled “Corporate Affairs” and the applicant’s solicitor spanning 8 November 2023 to 11 December 2023, which related to the applicant’s health and a CT scan that he had undergone;
(b)a letter from the Department of Immigration and Border Protection to the applicant dated 25 January 2016, inviting the applicant to apply for a protection visa and referring to an exercise of power by the Minister under s 46A(2) of the Migration Act to permit the applicant to lodge a valid application for a protection visa;
(c)an email from a representative of the applicant to an email address styled “tpv lodgements” dated 3 March 2016, concerning the invitation to the applicant to apply for a protection visa; and
(d)a letter from the Department of Immigration and Border Protection to the applicant dated 26 April 2016, acknowledging what the letter describes as a “valid application for a Safe Haven Enterprise (subclass 790) visa”.
Counsel for the applicant objected to the admission of these documents on the basis of relevance, as well as on the basis of the hearsay and opinion rules. Counsel for the applicant further submitted that a direction under s 136 of the Evidence Act 1995 (Cth) should be made in relation to the email chain identified at item (a) above. I overruled the applicant’s objections, and declined to make a direction under s 136, for reasons given orally at the hearing. The four new documents were thus received into evidence in their entirety, and for all purposes.
Background
I will now set out the circumstances of the applicant, and the events relevant to his application, in greater detail.
As I have mentioned, the applicant is a Faili Kurd of Shia Muslim faith. He was born in Iraq in 1985, to parents who had themselves been born in Iraq. Just several months after he was born, the applicant was deported with the rest of his family to Iran, apparently at the instigation of the regime of Saddam Hussein. Thereafter, the applicant was raised in Iran.
Many of the facts in this case — especially those concerning the steps taken to facilitate the removal of the applicant — are uncontroversial. The applicant’s nationality, however, is a live issue in this proceeding, albeit indirectly. The applicant claims to be stateless — a citizen of neither Iraq nor Iran. The respondents do not accept that the applicant is stateless. As will appear, the key factual basis on which the respondents support the continuing detention of the applicant is that the authorities in Iraq or Iran may recognise the applicant as a citizen, and therefore facilitate his removal from Australia in the reasonably foreseeable future.
The summary that follows constitutes my findings of fact on the issues I address. Where factual matters are more controversial, I will explain the controversy and make my findings explicit. For reasons I will explain, the issue of the applicant’s nationality is better understood in the context of the parties’ respective cases, and for that reason I omit this issue from my summary of the background facts and circumstances.
History of the detention of the applicant
In 2012, the applicant travelled to Australia by boat. Upon his arrival, he was taken into immigration detention, where he remained until 5 December 2012. On 5 December 2012, the applicant was granted a Bridging Visa E (Subclass 050) which enabled him to leave immigration detention and live in the Australian community. The applicant’s status as an unauthorised maritime arrival precluded him from making a valid application for a visa in Australia until that statutory preclusion was lifted on 13 August 2015. I will come back to the issue of the applicant’s status as an unauthorised maritime arrival and the lifting of the statutory bar in due course, as this became a matter of some dispute at the hearing.
The applicant subsequently lodged an application for a Safe Haven Enterprise Visa (Subclass 790) (SHEV) on 11 April 2016. Before his application was determined, the applicant was charged with a criminal offence and taken into remand. Days later, his bridging visa was cancelled. While on remand, the applicant was charged with a further offence. On 6 July 2017, however, the criminal charges against the applicant were withdrawn. Accordingly, the applicant was transferred to immigration detention on the same day.
As I recount further below, the applicant’s application for a SHEV was refused by a delegate of the Minister for Immigration and Border Protection on 19 October 2017.
On 2 May 2019, the applicant was charged in relation to an incident that occurred in immigration detention. As a result, he was taken out of immigration detention and placed on remand. The applicant was convicted of common assault and assault occasioning actual bodily harm in the company of others on 27 September 2019. For these offences, two community correction orders were made, for 12 months and 18 months respectively. He was then returned to immigration detention, where he remains to the present day.
The applicant’s claims for protection visas
For reasons that will become clearer, it is also necessary to set out briefly the history of the applicant’s claims for protection visas.
As noted at [26] above, the applicant applied for a SHEV on 11 April 2016. In the statement that accompanied his application, the applicant stated that he believed he would suffer harm and discrimination if he returned to Iran. There were two main bases on which the applicant founded that claim. First, the applicant recounted that he had been in a relationship with a woman in Iran and engaged in sexual relations with her outside marriage. The applicant stated that he feared being detained and harmed by the Iranian authorities on that account, as well as being harmed by the woman’s brothers, who he said had threatened to kill him on numerous occasions. Secondly, the applicant stated that he would suffer significant discrimination in Iran on the basis of his ethnicity as a Faili Kurd. This claim was supported by details of claimed harm and discrimination that the applicant and his family members had suffered in Iran due to their ethnicity. At no point in his statement did the applicant claim to fear persecution if he were returned to Iraq.
The applicant’s application for a SHEV was refused by a delegate of the Minister on 19 October 2017. The Immigration Assessment Authority affirmed the delegate’s decision on 27 November 2017. The Authority concluded that the applicant was not stateless, and had in fact acquired Iranian citizenship at some point. The applicant sought judicial review of the Authority’s decision in the Federal Circuit Court of Australia, but that Court dismissed his application. On appeal to the Full Court of this Court, the applicant succeeded, the decision of the Authority was quashed, and the Authority was ordered to make the decision again according to law.
On 25 May 2020, the Authority again affirmed the delegate’s decision to refuse the applicant’s application for a SHEV. The Authority again concluded that the applicant was not stateless, and had in fact acquired Iranian citizenship at some point before leaving Iran. The Authority also concluded that the applicant was not an Iraqi citizen. This decision was set aside by the Federal Circuit and Family Court of Australia (Div 2) (Circuit Court), and the matter was remitted to the Authority for re-determination. The Minister appealed to this Court from the judgment of the Circuit Court, but that appeal was dismissed.
On 27 September 2022, the Authority once more affirmed the delegate’s refusal of the applicant’s application for a SHEV. This time, the Authority concluded that the applicant was not stateless, had been an Iranian citizen since before 2001, and was not an Iraqi citizen. The applicant sought judicial review of this third decision in the Circuit Court, but that Court dismissed his application on 24 May 2023.
In the preceding summary, I have focused on the features of the administrative decisions that are salient to the current application for a writ of habeas corpus. It is also worth noting, however, that the executive decision-makers who considered the merits of the applicant’s visa application rejected the applicant’s claim to be a person to whom Australia owes protection obligations. The reasons for each rejection varied somewhat from decision-maker to decision-maker. By way of illustration, the reasons included a lack of satisfaction concerning: (a) whether the applicant had indeed had a sexual relationship with a woman outside marriage; (b) whether the applicant genuinely feared harm from the woman’s family; (c) whether harm suffered by the applicant’s family members in Iran was referable to their being Faili Kurds; and (d) whether there was a real chance of the applicant being detained or harmed by the Iranian authorities.
Events relating to the potential removal of the applicant from Australia
The key issue in this case is whether there is a real prospect of the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future. As I will explain, that issue calls for a particular focus. It is not a focus on whether the applicant has been detained for a long time, or even longer than may have been reasonably necessary to effect his removal. Nevertheless, the history of efforts to remove the applicant from Australia can rationally inform the Court’s assessment of the issue raised on this application. Events that have transpired can affect the Court’s assessment of whether there currently exists the real prospect that is required for the applicant’s detention to be authorised. For that reason, it is important to examine the history of events relating to the removal of the applicant from Australia in some detail. Most of what follows was not controversial. I will explain significant points of dispute raised at the hearing as I proceed through my findings.
Potential removal to Iran
On 5 July 2023, the applicant’s solicitor emailed the Australian Border Force and the Department to communicate a request by the applicant to be removed to Iran.
On 13 July 2023, an Australian Border Force removal officer emailed the applicant’s solicitor regarding the removal process and provided documents for the applicant to complete, including an application for an Iranian travel document.
On 26 July 2023, the applicant’s solicitor forwarded to the Border Force several completed documents to facilitate the applicant’s removal to Iran. These included a laissez-passer application form, a brief letter in Farsi to the Iranian embassy, a completed form titled “Application for Return and Reintegration Assistance”, and two copies of the applicant’s identity document. After some further logistical correspondence with the Border Force, the applicant’s solicitor also provided a completed “Request for removal from Australia” form on the same day. There was some further correspondence between the applicant’s solicitor and the representative of the Border Force over the next two days, concerning logistical matters including whether the applicant could provide a clearer copy of certain documents.
The applicant’s solicitor emailed the Border Force representative on 25 August 2023 to enquire about the status of efforts to remove the applicant from Australia. On 28 August 2023, the Border Force representative informed the applicant’s solicitor that the laissez-passer application had been submitted to the Iranian embassy on 7 August 2023.
The applicant’s solicitor sought further updates on 3 October 2023 and 25 October 2023, but on each occasion the Border Force representative informed her that there was no update regarding the removal of the applicant. Internal documents of the Border Force record that Border Force officers attended the Iranian embassy on 4 October 2023 and were advised by consular staff that a travel document would likely be issued to the applicant within a week of that date.
On 8 November 2023, the High Court pronounced orders in NZYQ. While the Court’s reasons were published subsequently on 28 November 2023, the Court made a declaration on 8 November 2023 to the effect that the detention of the plaintiff, NZYQ, had been unlawful since 30 May 2023 by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future. On 15 November 2023, the applicant’s solicitor wrote to the Border Force referring to the High Court’s decision and claiming that the applicant’s detention may have been unlawful due to the fact that he could not be removed in the reasonably foreseeable future.
On 16 November 2023, a Border Force officer informed the applicant’s solicitor by email that the Iranian embassy had advised Border Force that the applicant’s travel document application was progressing, and that an update would be available by the middle of the following week. This accords with internal Border Force records, which indicate that Border Force officials attended the Iranian embassy on 16 November 2023 to request an update on the applicant’s case, and that consular staff advised that a laissez-passer would take two to three days to issue.
On 21 November 2023, Border Force officers sent a message to the Iranian embassy to seek an update on the issue of a laissez-passer. Border Force officers then attended the Iranian embassy on 23 November 2023. On the same day, a Border Force officer informed the applicant’s solicitor that the Iranian embassy had requested to speak with the applicant. The applicant’s solicitor confirmed with the Border Force officer that her details could be shared with the Iranian embassy. On 30 November 2023, the Iranian embassy advised that the issuing officer wished to speak with the applicant directly. On 4 December 2023, the Border Force officer informed the applicant’s solicitor that the Iranian embassy wished to speak with the applicant directly about his travel document application, and that the Border Force would pass the applicant’s details on to the Iranian embassy.
On 11 December 2023, the applicant’s solicitor contacted the Border Force officer and requested that the officer follow up with the Iranian embassy. On the same day, the Border Force officer informed the applicant’s solicitor that Border Force had not received any updates from the Iranian embassy. At the suggestion of the Border Force officer, the applicant and his solicitor contacted the Iranian embassy directly on 12 December 2023.
On 14 December 2023, Mr Nette emailed the Iranian embassy seeking an update regarding the applicant’s application for a laissez-passer. Mr Nette received a reply from the Iranian embassy on the same day, which relevantly stated –
[T]he person named is not Iranian, and apparently he is Iraqi, if he presents the documents that show that he is Iranian, it is possible to issue Laisse Passer …
On 19 December 2023, the applicant’s solicitor left a voicemail message with the Iranian embassy, which was not returned.
On 8 January 2024, the applicant’s solicitor requested an update from Border Force regarding the applicant’s removal. On 9 January 2024, a Border Force officer acknowledged receipt of that request.
The applicant commenced this proceeding on 19 February 2024.
On 8 March 2024, the Australian Government Solicitor wrote to the applicant’s solicitor, addressing the current status of efforts to remove the applicant from Australia. That letter noted the Iranian embassy’s statement that the applicant was not Iranian, which I have set out above.
Potential removal to Iraq
Mr Nette deposed that the 14 December 2023 response from the Iranian embassy prompted Border Force to engage with the Iraqi embassy to see whether consular staff could determine the applicant’s citizenship status if provided with the applicant’s Iran-issued identity card.
On 11 January 2024, an officer of the Department of Home Affairs sent a “Third Party Note” to the Iraqi embassy to request that consular staff determine whether the applicant was an Iraqi citizen. The Iraqi embassy responded on the same day with a request for certain documents. There was further correspondence between the Iraqi embassy and the Department the following day concerning material requested by the embassy.
On 7 February 2024, Mr Nette and two other Australian government officers attended a meeting at the Iraqi embassy with the Deputy Head of Mission and another consular officer. The purpose of the meeting was to discuss the applicant’s case. The Deputy Head of Mission stated that the documents provided were not enough to determine the applicant’s citizenship status, and that the applicant would need to be interviewed. The Deputy Head of Mission also stated that the Iraqi embassy would be able to determine whether the applicant was an Iraqi citizen once that interview had occurred.
After the applicant commenced this proceeding on 19 February 2024, a letter was sent by the Australian Government Solicitor to the applicant’s solicitor on 8 March 2024 which stated that the Iraqi embassy had indicated that it wished to interview the applicant to determine his eligibility for citizenship. That letter also asked the applicant’s solicitor to confirm whether the applicant would be willing to be interviewed by an official from the Iraqi embassy in Canberra for the purposes of assessing whether he had a right of return to Iraq. While there was further correspondence between the Australian Government Solicitor and the applicant’s solicitor on issues raised by the 8 March 2024 letter, the applicant’s solicitor did not immediately or directly confirm whether the applicant was willing to be interviewed by consular staff from the Iraqi embassy.
On 21 March 2024, the Australian Government Solicitor sent a letter to the applicant’s solicitor, which in part set out the Australian Government Solicitor’s understanding of the case that the applicant would advance at the trial of this proceeding. That understanding was set out in paragraph [5] of the letter which stated, inter alia, at points (d) and (e) that –
…
d.Fourth, the applicant would voluntarily cooperate in any such removal, including by taking all reasonable steps within his power that are necessary to effect his removal. Such steps would include applying for a travel document issued by a country other than Australia or attending an interview at the embassy or consulate of such a country;
e.Fifth, the applicant does not suffer from any medical condition that would prevent him from being removed from Australia or prevent him from cooperating with such removal; and
…
The Australian Government Solicitor asked the applicant’s solicitor to confirm that this was the nature of the applicant’s case, stating at paragraph [6] of the letter –
We ask that you confirm that this is the nature of the case which is to be advanced by the applicant at trial by 28 March 2024. If it is not, or it is incomplete in a material respect, we ask that you set out precisely the nature of the case which is to be advanced by the applicant.
The applicant’s solicitor replied by email on 27 March 2024, stating that (subject to a presently irrelevant exception), “the information included in paragraph 5 [was] consistent with the [a]pplicant’s case”.
On 16 April 2024, the Australian Government Solicitor sent a further letter to the applicant’s solicitor, which noted the enquiry of 8 March 2024 as to whether the applicant was willing to attend an interview with an Iraqi embassy official. The letter also referred to the 21 March 2024 letter, which set out the Australian Government Solicitor’s understanding of the applicant’s case in this Court, including the proposition in paragraph [5] that the applicant would voluntarily attend an interview at the embassy of a country other than Australia. Next, the letter referred to the email sent by the applicant’s solicitor on 27 March 2024, which indicated that paragraph [5] of the 21 March 2024 letter was relevantly accurate. The letter finally asked the applicant’s solicitor to confirm whether the applicant was willing to attend an interview with an official from the Iraqi embassy.
On 18 April 2024, the applicant’s solicitor replied to the Australian Government Solicitor, confirming that the applicant was willing to attend an interview with an official from the Iraqi embassy, and passing on the applicant’s request that this occur as soon as possible.
On 19 April 2024, the Department sent a Third Party Note to the Iraqi embassy, requesting that the embassy conduct an interview with the applicant.
On 22 April 2024, the applicant and his solicitor attended an interview with an Iraqi consular official by video link. At this interview, the applicant advised the consular official that he did not have any Iraqi identity documents, that none of this family lived in Iraq, and that his mother and brother lived in Iran. The Iraqi consular official requested copies of the applicant and his family’s Iranian refugee identity documents. On the same day, the applicant’s solicitor sent copies of the requested Iranian refugee identity documents to the Iraqi consular official by email.
The next day, 23 April 2024, the applicant’s solicitor received an email from the Iraqi embassy stating that it would check the identity documents provided.
On 26 April 2024, an official from the Iraqi embassy informed Mr Nette that an interview had been conducted with the applicant and his solicitor. The consular official also stated that the embassy was processing its papers with the Iraqi Ministry of Foreign Affairs, to obtain their instructions on the issue.
On 13 May 2024, Mr Nette emailed the Iraqi embassy seeking an update on the applicant’s case. On the same day, an official from the Iraqi embassy stated by reply email that the applicant’s case was still being processed by the Iraqi Ministry of Foreign Affairs. The official also politely asked Mr Nette to be patient.
On 15 May 2024, the Department undertook a Pre-Removal Clearance which confirmed, for administrative purposes, that the removal of the applicant to Iraq did not breach Australia’s non-refoulement obligations.
The Issues
As I noted at the outset, the sole form of substantive relief that the applicant seeks is a writ of habeas corpus directing his release from immigration detention. An application for a writ of habeas corpus can raise complex issues of law and procedure. In this case, however, there was no dispute about most of the applicable principles. It is therefore appropriate for me to make some observations about the legal framework that must be adopted to decide this application.
Procedural setting
The long history of habeas corpus makes it important to distinguish between the substantive legal principles that govern its availability, and historical points of procedure that have been overtaken by reforming legislation and contemporary rules of court. For a long time, the procedure in actions for the remedies then known as “prerogative writs” remained distinctive, despite the procedural reforms of the 19th century. In brief terms, various rules of court of the time provided that, ordinarily, a two-stage procedure would be followed on an application for a writ of habeas corpus. First, the applicant would proceed ex parte to seek a conditional order requiring the proposed respondent to show cause why the writ should not be issued. It was only at a second hearing that the court would ultimately decide, based on the return that had been made to the writ setting out the justification for detention, whether to direct the release of the detainee.
Under the Federal Court Rules 2011 (Cth), there is no separate procedure to be followed in applications for habeas corpus. The result is that it is necessary to be cautious when considering habeas corpus authorities decided under different procedural frameworks. Those authorities are relevant to this proceeding only insofar as they disclose substantive, rather than procedural, principles of the law relating to the remedy of habeas corpus. For their part, the parties to this application proceeded on the basis that the hearing held on 3 and 4 June 2024 was the final hearing in this proceeding. There was no question of the Court making any conditional order, and so the issue for determination is the substantive issue of whether the detention of the applicant is authorised by law: cfSave the Children Australia v Minister for Home Affairs [2023] FCA 1343 at [3]–[4] (Moshinsky J). If a writ of habeas corpus issues, or an order in the nature of habeas corpus is made in these circumstances, it will require the release of the applicant forthwith: see NZYQ at [74].
Substantive principles relating to the remedy of habeas corpus
There was no dispute as to the principles that govern the availability of habeas corpus.
The starting point is that every person is entitled to be at liberty, unless some positive law authorises another to detain the person. As Brennan, Deane and Dawson JJ put it in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (Lim) at 19 (Mason CJ agreeing at 10) –
Under the common law of Australia … an alien who is within this country, whether lawfully or unlawfully, is not an outlaw. Neither public official nor private person can lawfully detain him or her … except under and in accordance with some positive authority conferred by the law. Since the common law knows neither lettre de cachet nor other executive warrant authorizing arbitrary arrest or detention, any officer of the Commonwealth Executive who purports to authorize or enforce the detention in custody of such an alien without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision.
(Footnotes omitted.)
See also NZYQ at [25] (The Court).
Where an applicant seeks “the specific relief of immediate liberation” from such unlawful executive detention, “the appropriate form of proceeding is by writ of habeas corpus”: Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36 at 76 (Isaacs J).
As I have explained, the positive legal authority upon which the respondents rely to justify the applicant’s detention is derived from ss 189(1) and 196(1) of the Migration Act. In NZYQ, the High Court held at [39] that the decision in Lim established the principle that –
a law enacted by the Commonwealth Parliament which authorises the detention of a person, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt, will contravene Ch III of the Constitution unless the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose.
Six members of the Court proceeded to hold at [44] that –
where there is no real prospect of the removal of the alien from Australia becoming practicable in the reasonably foreseeable future, it cannot be said that, objectively determined, the “purpose of the detention is to make the alien available for deportation” or “to prevent the alien from entering Australia or the Australian community” pending the making of a decision as to whether or not they will be allowed entry.
Accordingly, where there is no real prospect of the removal of an alien detainee from Australia becoming practicable in the reasonably foreseeable future, the statutory provisions that purport to authorise the alien’s detention contravene the Lim principle in their application to that person. By force of s 3A of the Migration Act, then, those provisions do not apply to authorise the detention. The result in such a case is that ss 189(1) and 196(1) do not supply positive legal authority to justify the detention of the alien. Absent some other, valid authority for the detention, the detainee is entitled to be at liberty, and habeas corpus will issue to secure his or her immediate release.
As this discussion shows, the substantive question in this case is whether there is a real prospect of the removal of the applicant becoming practicable in the reasonably foreseeable future, such that the respondents have positive legal authority to detain him under ss 189(1) and 196(1) of the Migration Act. In such an application for habeas corpus, it falls to the applicant to discharge an initial evidential burden of establishing that there is reason to suppose that his or her detention has ceased to be lawful by reason that it has transgressed the applicable constitutional limitation on his or her detention: NZYQ at [59] (The Court). If that initial evidential burden is discharged, the respondents bear the legal burden of proving that the constitutional limitation has not been transgressed: NZYQ at [59] (The Court). As the High Court explained in NZYQ at [59], this follows from two substantive principles of law. The first is the principle that “where a person in the detention of another adduces sufficient evidence to put the lawfulness of that detention in issue, the legal burden of proof shifts to the other to establish the lawfulness of that detention”. As the High Court noted, this principle is “reflected in the traditional procedure” I have already outlined, but the principle itself is a substantive one of the common law. The second principle is the principle of constitutional law that “it is the duty of the Court in every constitutional case to be satisfied of every fact the existence of which is necessary in law to provide a constitutional basis for the legislation”. See also Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 222 (Williams J).
In this case, the respondents conceded that the applicant had shown “probable cause” for the issue of a writ of habeas corpus. That acceptance was based on the facts that the applicant requested voluntary removal from Australia in July 2023, and that discussions with Iran and Iraq had not yet been successful in achieving the removal of the applicant from Australia. I understood this to be a concession on the part of the respondents that the applicant had discharged the initial evidential burden of establishing that there is reason to suppose that his detention has ceased to be lawful by reason that it has transgressed the applicable constitutional limitation on his detention, as discussed by the High Court in NZYQ.
The issue in this case
For these reasons, it was common ground that the applicant’s entitlement to a writ of habeas corpus turns on the single question whether the respondents have established that there is a real prospect of the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future.
Applicant’s submissions
The applicant framed the issue before the Court as involving “prediction in the present focussed on what is a real prospect in the reasonably foreseeable future”. Invoking the decision of Mortimer J in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60], the applicant submitted that the reasonably foreseeable future is an “ambulatory” period that nevertheless calls for an “assessment … which can be made on the basis of probative material, without extending into guesswork”. The applicant submitted that, with respect to a person who has been detained for a long period and for whom attempts at removal have been underway, the reasonably foreseeable future will usually extend to only a few months, citing Sami v Minister for Home Affairs [2022] FCA 1513 at [148]–[149] (Mortimer J).
Counsel for the applicant submitted that the past rationally informs that exercise. They relied in particular on the statement of the Full Court in a different context in CKL21 v Minister for Home Affairs [2022] FCAFC 70; 293 FCR 634 at [74] (Moshinsky, O’Bryan and Cheeseman JJ) –
In assessing the likelihood of a future event, the key facts will include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity.
The applicant also stressed that the burden of proof lay with the respondents to establish lawful justification for his detention. It was submitted that s 140 of the Evidence Act requires the respondents to meet this burden on the balance of probabilities, taking into account the nature of the cause of action and the subject matter of the proceeding. In the applicant’s submission, the fact that the application concerns the deprivation of liberty means that the evidence required to meet the civil standard must reach a level that can be described as “clear and cogent”: see McHugh at [57], [60] (Allsop CJ), [90] (Besanko J), [281], [294], [340] (Mortimer J).
The applicant submitted that a “real prospect” of an event occurring requires more than that the event might “arguabl[y]” happen (citing Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [20] (French CJ and Gummow J)), and more than a “mere possibility” (citing Perazzoli v BankSA, a division of Westpac Banking Corporation Ltd [2017] FCAFC 204 at [107], [134] (Perram, Foster and Murphy JJ)).
The applicant also relied on factual analogies with, and distinctions from, previous cases in support of the submission that the Court cannot be satisfied that there is a real prospect of the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future. Those cases included –
(a)cases that preceded Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562, which applied a test analogous, in the applicant’s submission, to that established in NZYQ;
(b)Sami, in which Mortimer J made factual findings on the hypothetical basis that Al-Kateb were to be overturned;
(c)NZYQ itself, which in fact overturned Al-Kateb; and
(d)cases decided since NZYQ.
It is convenient to state here that factual findings in other cases are not binding, and one should not reason from factual conclusions in one case to a factual conclusion in another. One should be mindful that observations made by judges in the course of deciding issues of fact in other cases ought not to be treated as laying down rules of law: Teubner v Humble (1963) 108 CLR 491 at 503 (Windeyer J); Hahn v Conley (1971) 126 CLR 276 at 294 (Windeyer J); Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98; 288 FCR 657 at [29] (Logan, Charlesworth and Wheelahan JJ); Howe v Zuchowski [2024] VSCA 56 at [240] (Beach and Lyons JJA and J Forrest AJA). However, one of the characteristics of our legal system is that legal principles, including the organising principles for the application of statutory provisions, are developed through decided cases, and that “it is the insight of the common law that wisdom can be drawn from previous examinations of similar problems”: Scott v Copenhagen Reinsurance Co (UK) Ltd [2003] 2 All ER (Comm) 190 at [33] (Rix LJ). I understood counsel for the applicant to accept that the previous cases that were cited were of utility in this sense, and that they afforded illustrations of the application of the “real prospect” test and no more.
The applicant’s five points
At the hearing, counsel for the applicant submitted that there are five independent reasons why there is no real prospect of the removal of the applicant becoming practicable in the reasonably foreseeable future –
(1)The applicant is medically unfit to travel anywhere.
(2)The applicant has no valid travel document.
(3)There is a statutory preclusion arising from ss 196(1) and 198AD on the removal of the applicant anywhere other than a regional processing country — a category that does not include Iran or Iraq.
(4)There is no real prospect of the removal of the applicant to Iran becoming practicable in the reasonably foreseeable future.
(5)There is no real prospect of the removal of the applicant to Iraq becoming practicable in the reasonably foreseeable future.
The applicant’s third point prevails
For reasons that I will explain, I am persuaded as to point (3), which is sufficient to give the applicant the relief which he seeks, because it has the supervening effect that, as matters stand, there is a legal preclusion on the removal of the applicant to Iran or Iraq, and there is otherwise insufficiently cogent evidence of a real prospect that the removal of the applicant to a regional processing country will become practicable in the reasonably foreseeable future.
However, to accommodate the prospect that this matter goes further, I will address the other matters that were advanced on the assumption that s 198 applies to the applicant, before addressing in detail the applicant’s third point concerning the application of s 198AD.
Removal to Iran or Iraq
The following reasons in relation to removal to Iran or Iraq are given on the hypothesis, which I have not accepted, that s 198AD does not apply to the applicant.
In relation to the prospect of removal to Iran or Iraq pursuant to s 198, it would only be necessary that there be a real prospect of removal of the applicant to one country becoming practicable in the reasonably foreseeable future. Even if there were no such prospect in relation to Iran, the existence of such a prospect in relation to Iraq would be enough to bring the operation of ss 189(1) and 196(1) within the bounds of constitutional validity. As a result, the applicant’s points (4) and (5) above are not independent. Nor, as I will explain, can the applicant’s point (2) above be separated from points (4) and (5). Based on evidence I will set out in more detail, I am satisfied that a real prospect of removal to Iran or Iraq turns on the prospect of whether the applicant can obtain a travel document from Iran or Iraq, which in turn is a consequence of whether Iran or Iraq will recognise him as a citizen, or perhaps as someone entitled to citizenship.
Submissions of the applicant in relation to removal to Iran or Iraq
Counsel for the applicant submitted in writing that it would follow from the fact that the applicant is stateless that there is no real prospect of his being removed from Australia in the reasonably foreseeable future, because a stateless person is one whom no State accepts responsibility to accept. In support of the claim that the applicant is stateless, the applicant pointed to several features of the evidence, including: the finding of the delegate of the Minister in October 2017 that the applicant was stateless; the applicant’s own claims to this effect from his arrival until now; the position of the Iranian authorities that the applicant is not an Iranian citizen; the findings of the Immigration Assessment Authority that the applicant is not a citizen of Iraq; and the past position of the Australian government that the applicant is not a citizen of Iraq.
With respect to his fitness to travel, the applicant relied at the hearing upon a “Fitness to Travel” assessment that was conducted on 20 November 2023 by a registered nurse on behalf of International Health and Medical Services. That assessment stated that the applicant was not fit to travel –
due to recent alleged assault that requires further investigation for injury requiring CT brain that is scheduled on the 21/11/2023. This is required in order to properly determine fitness to travel.
Counsel for the applicant informed the Court that this assessment was produced by the respondents on 30 May 2024, as one of the attachments to the Pre-Removal Clearance that the applicant had requested that the respondents produce. The applicant submitted that it was significant that the assessment had been relied upon as recently as 15 May 2024, when the Pre-Removal Clearance Minute was completed. In these circumstances, the applicant submitted that the respondents had not discharged their burden of proving, by clear and cogent evidence, that the applicant was fit to travel anywhere. As a result, so the submission went, the Court could not be satisfied that there was a real prospect of the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future.
On the premise that s 198 applied to the applicant’s detention, the applicant referred to the history of events since 5 July 2023, submitting in respect of Iran that the Iranian authorities had both failed and refused to issue any travel document to the applicant, as well as informed the respondents in writing that the applicant is not Iranian. For this reason, the applicant submitted that there was no real prospect that the applicant would be removed to Iran in the reasonably foreseeable future.
With respect to Iraq, the applicant drew attention to the fact that, until recently, it had never been suggested by anyone that the applicant had any right to enter and remain in Iraq. The applicant pointed to the fact that the Immigration Assessment Authority had repeatedly found that the applicant was not an Iraqi citizen. The applicant further referred to the interview conducted between the Iraqi embassy and the applicant on 22 April 2024, and the provision of the applicant’s Iranian identity documents to the Iraqi embassy on the same day. In this context, it was submitted that the failure of the Iraqi embassy to confirm that the applicant is an Iraqi citizen assumed significance. Counsel characterised the prospect of the Iraqi authorities recognising the applicant as an Iraqi citizen as a “hope” and a “mere un-foreclosed possibility”.
The applicant also made submissions about the effect of Mr Nette’s evidence concerning the requirements that need to be satisfied for the Iraqi embassy to issue a travel document. Most relevantly, the applicant drew attention to the need for two Iraqi identity documents, which the applicant submitted he did not possess and could not furnish. The applicant submitted that this presented an independent barrier to his removal to Iraq, which would stand in the way of removal even if the Iraqi government were to recognise the applicant as an Iraqi citizen. Even putting his asserted statelessness to one side, the applicant submitted that he has no travel document. The applicant also submitted that there is nothing to indicate he is able to obtain one lawfully. Accordingly, the applicant submitted that this was a practical impediment to his removal from Australia, since a travel document is required to travel internationally.
The applicant also submitted that it was unrealistic to suggest that the applicant could obtain Iraqi citizenship in the reasonably foreseeable future, having regard to –
(a)the scant evidence about any previous Iraqi citizenship the applicant or his family may have held;
(b)the applicant’s lack of Iraqi identity documents;
(c)the Iraqi embassy’s asserted position that the applicant’s Iranian documents are insufficient to determine his Iraqi citizenship;
(d)the applicant’s inability to furnish any further information concerning his status at the interview with the Iraqi embassy; and
(e)country information showing that regaining Iraqi citizenship would require a representative of the family to travel to Iraq, in circumstances where the evidence is that no member of his family is willing or able to do so.
Separately, the applicant submitted in writing that it is not practicable to remove the applicant to Iraq before Australia has determined that it does not owe him non-refoulement obligations in respect of Iraq. In support of this submission, the applicant referred to Australia’s policy against removing people who have been found to be owed protection by Australia to the countries in respect of which they are owed protection. The applicant submitted that there has been no assessment of whether the applicant is owed non-refoulement obligations in respect of Iraq. Until such an assessment occurs, the applicant submitted, there is no real prospect of his removal in the reasonably foreseeable future. The submission was not put on the basis that there was any statutory prohibition on the removal of the applicant to Iraq in these circumstances, as there would be if a relevant protection finding had in fact been made: see Migration Act s 197C.
Submissions of the respondents in relation to removal to Iran or Iraq
Counsel for the respondents submitted that there remains a real prospect of the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future. The respondents founded their case principally on the submission that the prospect of removal of the applicant to either Iran or Iraq remains real.
As a starting point, the respondents submitted that it was important to note that the applicant only “commenced cooperating in efforts to remove him from Australia” in July 2023. I understood the thrust of this submission to be that care must be taken when considering how long the applicant has been in detention, and how much delay there has been in effecting the removal of the applicant from Australia.
The respondents identified three matters of principle arising from the High Court’s decisions in NZYQ and ASF17 v Commonwealth [2024] HCA 19, which assist, in the respondents’ submission, in the resolution of the factual question at issue here.
First, the respondents referred to the following statement in the joint judgment in ASF17 at [35] –
For the removal of an alien from Australia under s 198(1) or s 198(6) of the Act to be practicable, there must first and foremost be identified a country to which that alien might be removed, and removal of that alien to that country must be permissible under the Act.
The respondents submitted that no question of impermissibility arises in this case, because the applicant is not the subject of a protection finding for the purposes of s 197C. I note in passing that this passage, and other passages from ASF17, are directly relevant to the assessment of the applicant’s submission concerning the consequences of there having been no consideration of whether the applicant is owed protection obligations in respect of Iraq.
Secondly, the respondents submitted by reference to ASF17 at [41] that, where a country has been identified to which a detainee might permissibly be removed under s 198(1) –
… the question of whether there is a real prospect of removal of the detainee from Australia to that country becoming practicable in the reasonably foreseeable future is a question of whether there are steps which are practically available to be taken which, if taken, can realistically be predicted to result in the removal of the detainee to that country in the reasonably foreseeable future.
Thirdly, the respondents submitted that where those steps include administrative processes directed to removal which require the cooperation of a detainee, and in which the detainee has the capacity to cooperate, “those steps are to be regarded as remaining practically available to be taken in circumstances where the detainee refuses to cooperate in the taking of them”: ASF17 at [41].
With respect to the applicant’s fitness to travel, the respondents relied on the email that was in evidence from “Corporate Affairs” at International Health and Medical Services to the applicant’s solicitor on 11 December 2023. That email relevantly stated –
A CT (non-contrast) was conducted on 4 December 2023. The report was unremarkable and provides the following conclusions;
No acute intracranial haemorrhage.
Features of sinusitis, as described.
The respondents submitted that this email was evidence that a CT scan of the applicant’s brain was conducted on 4 December 2023. The respondents also pointed to an earlier email in the same chain, dated 29 November 2023, in which Corporate Affairs informed the applicant’s solicitor that the applicant tested positive for COVID-19 on 23 November 2023. Taken together, the respondents submitted that the evidence showed that the scan foreshadowed by the registered nurse on 20 November 2023 was conducted on 4 December 2023, and that the scan revealed no features that would prevent the applicant from travelling. The respondents also submitted that the registered nurse’s assessment was expressed to expire on 15 December 2023, and should not be understood as providing any indication as to the fitness of the applicant to travel now or in the reasonably foreseeable future.
The respondents relied on the series of administrative steps that had been taken since 23 July 2023, when the applicant formally requested removal from Australia under s 198(1) of the Migration Act. I have already set out my findings about those steps; those findings materially accord with the account advanced by the respondents.
Although senior counsel for the respondents acknowledged that the point was pressed only faintly, the respondents claimed that there remains a real prospect of removal of the applicant to Iran on the basis that the applicant is at least potentially entitled to Iranian citizenship and that, were the applicant to provide information as to his family’s Iranian citizenship, there would be steps practically available to the Department to effect his removal. The basis of this submission was that country information suggested that an adult with an Iranian mother can acquire Iranian citizenship. The respondents also referred to a statement made by the applicant’s brother to Australian embassy staff in 2022 that he and the applicant’s mother had acquired Iranian citizenship in 2000 or 2001. The respondents further called in aid findings made by the Immigration Assessment Authority that the applicant had become an Iranian citizen, and certain circumstances the respondents submitted supported the inference that the applicant was in fact an Iranian citizen.
The respondents asked the Court to infer that the applicant is at least potentially entitled to Iranian citizenship, and to infer that there are steps practically available to the applicant to assist the Department to effect his removal to Iran, namely: procuring proof of his mother’s Iranian citizenship, and supplying the proof which his brother may have used in order to obtain Iranian citizenship, which may equally be applicable to him. The respondents submitted that if the applicant took these steps, “there would be a real prospect that it could prove to the Iranian [e]mbassy that the applicant is entitled to Iranian citizenship, which may persuade Iran to accept him (whether or not it grants him citizenship at the same time)”. This was supported, in the respondents’ submission, by the Iranian embassy’s statement on 14 December 2023 that “if [the applicant] presents the documents that show that he is Iranian, it is possible to issue Laisse Passer”.
The respondents placed greater weight on their submissions concerning removal to Iraq. With respect to the prospects of the removal of the applicant to Iraq becoming practicable in the reasonably foreseeable future, the respondents submitted that what must be shown is a “prospective and probabilistic” fact: see NZYQ at [60]. In the respondents’ submission, this calls for an assessment of the likelihood of the occurrence of a particular future event.
The respondents submitted that the likelihood of removal to Iraq hinges upon the likelihood that the Iraqi embassy will determine that the applicant is a citizen of Iraq or that he is entitled to such citizenship. The respondents pointed to the evidence of Mr Nette that, if the embassy were to determine that the applicant was, or was entitled to become, an Iraqi citizen, then the Department would be able to obtain a travel document for him and facilitate his removal to Iraq within about four weeks. The respondents submitted that they were not required to prove that the applicant actually is, or actually is entitled to be, an Iraqi citizen. The respondents thus framed the relevant factual question as whether there is a real prospect of the Iraqi embassy finding that the applicant is a citizen or is entitled to become one. On that question, the respondents submitted that –
(a)the Iraqi embassy had advised that an interview with the applicant, together with his Iranian identity documents, would be sufficient to determine whether he was an Iraqi citizen;
(b)that interview was conducted on 22 April 2024, and the documents were provided on the same day; and
(c)the Iraqi Ministry of Foreign Affairs is still actively considering the information obtained in that interview.
In that context, the respondents submitted that there is a real prospect of the Iraqi embassy determining that the applicant either is, or is entitled to become, an Iraqi citizen, having regard to the following facts –
(a)the applicant was born in Iraq;
(b)Iranian identity documents “confirm” that the applicant is a national of Iraq, and was born in Iraq; and
(c)Iranian identity documents for the applicant’s father, mother, and brother similarly show their nationality as Iraq, and that his father and mother were born in Iraq.
The respondents referred to country information that was in evidence to the effect that the applicant would either be, or be entitled to become, an Iraqi citizen if his father or mother were Iraqi.
The respondents further submitted that the Iraqi embassy has only had the information it considers necessary to determine the question of citizenship since 22 April 2024. It is unsurprising, in the respondents’ submission, that Iraq should take some time to verify information provided by the applicant. The respondents submitted that the Court cannot infer from a one-month processing period that Iraq will not determine that the applicant is a citizen or that he is entitled to citizenship.
Removal to Iran or Iraq — consideration
Framing the issues for determination
As I have mentioned, I have given consideration to the following issues raised by the parties to accommodate the possibility that this matter goes further.
As I have already explained, the sole substantive issue in this case is whether the respondents have established that there is a real prospect of the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future. As a result of the manner in which the parties joined issue on this factual question, the issue before the Court is, in fact, more confined than this. The issue is more confined in several ways.
First, there is no suggestion from the respondents that the applicant is a citizen of any country other than Iran or Iraq. Nor do the respondents suggest that there is any real prospect of the applicant being removed from Australia to any country other than Iran, Iraq, or a regional processing country. For the purposes of this section of the reasons, the main question is whether there is a real prospect of the removal of the applicant to Iran or Iraq becoming practicable in the reasonably foreseeable future. If s 198AD applies to the applicant, which I will address later, the alternative issue is whether there is a real prospect of the removal of the applicant to a regional processing country becoming practicable in the reasonably foreseeable future.
Secondly, it is common ground that it would not be practicable to remove the applicant to Iran or Iraq unless a travel document were issued to him by the authorities of the relevant country. A laissez-passer is a form of travel document.
Thirdly, there is unchallenged evidence before the Court, relied upon by both sides, as to the conditions that, at least to the best of the Department’s knowledge, have to be satisfied for the applicant to be granted a travel document by Iran or Iraq, respectively. That evidence — which I have mentioned, but not addressed in any detail — was contained largely in Mr Nette’s first affidavit and Ms Saravanamuthu’s second affidavit.
With respect to Iran, the evidence suggests that Iran accepts Iranian nationals who are returning voluntarily, and will issue a laissez-passer to such a person to facilitate travel to Iran. According to Mr Nette, the general process to be followed for obtaining an Iranian laissez-passer is as follows –
(a)the Iranian embassy must be provided with a completed and signed laissez-passer application form, original Iranian identity documents (or, with the permission of the Iranian Ministry of Foreign Affairs, copies of original documents that have been sighted by the Ministry in Iran), a handwritten letter from the applicant written in their native language, a current passport photograph, and a return flight itinerary to Iran, though this itinerary can be provided after the application is lodged;
(b)a fee of $34.00 must be paid to the Iranian embassy for the service; and
(c)the applicant must participate in a telephone interview with the embassy.
According to Mr Nette, examples of identity documents that have successfully been used to obtain a laissez-passer to Iran include Iranian drivers’ licences, Iranian passports, Iranian national identity cards, and Iranian birth certificates. An important qualification on this general process is the fact that a person without original Iranian identity documents can still obtain an Iranian laissez-passer if a family member or friend of the person attends the Ministry of Foreign Affairs in Iran and provides written documentation proving the person’s identity. If satisfied that the person is an Iranian national, the Iranian authorities will provide a reference number that will enable the person to obtain a travel document from the Iranian embassy.
With respect to Iraq, the evidence suggests that the Iraqi authorities do issue travel documents to facilitate the voluntary return of Iraqi nationals to Iraq. According to Mr Nette, the general process to be followed for obtaining an Iraqi travel document is as follows –
(a)the Iraqi embassy must be provided with a completed and signed application form, a current passport photograph, copies (or, preferably, originals) of two Iraqi identity documents, a telephone number for the embassy to use to interview the applicant, a handwritten letter requesting assistance to obtain a travel document and return to Iraq, addressed to the Iraqi embassy, and a copy of a return flight itinerary;
(b)a fee of US$3.00 must be paid; and
(c)the applicant must in fact be interviewed by the Iraqi authorities.
Importantly, the evidence established that both Iran and Iraq will only issue travel documents to a person to facilitate their removal from Australia if satisfied — by the provision of identity documents or, perhaps exceptionally, by some other process — that the person to be removed is a citizen of Iran or Iraq, respectively. In other words, a person can only be removed to Iran or Iraq if the person is accepted to be a citizen of Iran or Iraq, respectively — at least via these general processes, which were the primary processes relied upon by the respondents.
The applicant submitted that, on the evidence, the only way that a person can obtain an Iraqi travel document is by complying with the process set out above. The applicant emphasised that that process requires a person seeking a travel document to give the Iraqi embassy copies or originals of two Iraqi identity documents. The applicant pointed to the uncontested evidence of his solicitor to the effect that the applicant does not possess any Iraqi identity documents, and never has. On this basis, the applicant submitted that he would not be able to obtain an Iraqi travel document irrespective of his citizenship status. That is, the applicant said that even if the Iraqi authorities came to the view that the applicant was an Iraqi citizen, he would not be able to obtain a travel document because he did not have any Iraqi identity documents.
I do not accept these submissions. The best evidence came from the applicant’s solicitor, who stated in her file note of the interview with the Iraqi embassy: “Embassy will issue temporary passport so [the applicant] can travel to [Iraq] once they can confirm his citizenship.” In the context of the file note, which is a record of things said and done at the interview, the only reasonable inference is that the Iraqi consular official conducting the interview made a representation to the effect recorded in the applicant’s solicitor’s file note. Nor do I see any reason to question the genuineness of that statement in the circumstances of this case. I therefore consider that whether the Iraqi authorities will issue a travel document to the applicant turns on whether the Iraqi authorities become satisfied that the applicant is a citizen of Iraq.
Leaving aside the issue of identity documents and citizenship, I am satisfied that all of the steps required by the Iranian and Iraqi authorities have either been taken, or could practicably be taken, by the applicant and Australian government officers working together. In this regard, I refer to the 7 August 2023 request for a laissez-passer that a Border Force officer lodged with the Iranian embassy. That request enclosed a completed laissez-passer application, a letter handwritten by the applicant, relevant telephone numbers, and passport photographs, amongst other things; it also indicated that a flight itinerary would be provided. Likewise, it would be reasonably practicable for similar documents and information to be provided to the Iraqi embassy.
In this way, the issue whether there is a real prospect of the removal of the applicant from Australia becoming practicable in the reasonably foreseeable future ultimately resolves down to whether there is a real prospect of either the Iranian or Iraqi authorities accepting that the applicant is a citizen (or, perhaps, is entitled to become a citizen) of Iran or Iraq, respectively. It follows that I accept the respondents’ submission set out at [109], and would make the same point with respect to the prospects of the applicant being removed to Iran.
Additionally, there is a separate issue concerning whether there is a real prospect of the removal of the applicant to Iraq becoming practicable before Australia has determined that it does not owe him non-refoulement obligations in respect of Iraq.
The requisite threshold
As I have explained, the parties accepted that the respondents bear the onus of proving that the required “real prospect” exists in the present case. That much is beyond dispute in light of the High Court’s reasons in NZYQ, especially at [60]. In the same paragraph, their Honours explained in greater detail the nature of the burden that the defendants in that case were required to meet –
Whilst the proof was required to be to a standard sufficient to support the making of a finding of fact to the level of satisfaction appropriate in a civil proceeding where individual liberty is in issue, the prospective and probabilistic nature of the fact in issue (that is, the fact of a real prospect of the plaintiff’s removal from Australia becoming practicable in the reasonably foreseeable future) would have the potential to be confused were the standard of proof to be “on the balance of probabilities”.
(Footnotes omitted.)
The Court went on to say at [61] –
The notions of the practicability and the foreseeability of removal embedded in the expression of the constitutional limitation accommodate “the real world difficulties that attach to such removal”. The real world context also entails that proof of a real prospect must involve more than demonstration of a mere un-foreclosed possibility.
(Footnotes omitted.)
The Court’s path of reasoning made reference to the legislative history which I outlined earlier. Of particular note is that the Court made the point that the fast track process introduced as Pt 7AA by the 2014 amendments contemplated that, for whatever reason, there was a cohort of unauthorised maritime arrivals who had not been taken to a regional processing country and who were amenable to an exercise of power by the Minister to lift the bar under s 46A(2), and that the processing and review of their visa applications would take place onshore in accordance with the provisions of the Act. The Court also made the important point that the introduction of Pt 7AA, while being consistent with an onshore process of consideration and review, did not relevantly change the situation prior to its introduction, where the Minister might lift the bar for an unauthorised maritime arrival who might otherwise be liable to removal to a regional processing country under s 198AD(2) if the other conditions attaching to that obligation were engaged, including that it was reasonably practicable to do so. After referring to the situation both before and after the commencement of Pt 7AA on 18 April 2015, the Court held –
68In either case, in our opinion, the intention of the legislative scheme is that those individuals who are permitted, by an exercise of Ministerial power under s 46A(2), to apply for a visa, are thereafter not intended to be subjected to being taken to a regional processing centre under s 198AD. The reason is the same in each situation: such individuals have been given access to an onshore, domestic process to have their claims for protection heard and determined. The purpose of taking them to a regional processing centre no longer exists. Their claims will be processed in Australia, under Australian domestic legislation; the Minister has made a conscious and deliberate decision to that effect. Thus, once the s 46A(2) power was exercised, it was no longer “reasonably practicable” for a person such as the respondent to be removed to a regional processing country.
69Once any visa application has been finally determined, as that phrase is defined in ss 5(9) and 5(9A) of the Act, a person in the respondent’s position would be exposed to removal under s 198(6) of the Act, read now with s 197C of the Act. That duty would again remain subject to removal being “reasonably practicable”: for example, depending on whether there is an outstanding judicial review application.
It may be noted that the textual “hook” to which the Full Court referred at [68] was that it would no longer be “reasonably practicable” to remove a person who had been given access to onshore domestic processing to have the person’s claims to refugee status heard and determined offshore, alluding to the obligation in s 198AD(2) to take an unauthorised maritime arrival to a regional processing country “as soon as reasonably practicable”.
AZC20 in the High Court
As I have mentioned, the High Court set aside the Full Court’s orders on the grounds that the orders of Rangiah J were of no continuing effect with the result that there was no justiciable controversy and therefore no jurisdiction to make the orders on appeal: AZC20 HCA at [36]–[37], [49], [54], [59] (Kiefel CJ, Gordon and Steward JJ) and [61] (Edelman J).
Resolution
Upon counsel for the applicant submitting that s 198AD applies to the applicant, with the consequence that s 198 was excluded by s 198(11), counsel for the respondents joined issue on the submissions, and the hearing proceeded. No application was made on behalf of any of the parties to reserve the question for consideration by a Full Court under s 25(6) of the Federal Court of Australia Act, a course similar to one identified by Kiefel CJ, Gordon and Steward JJ in AZC20 HCA at [49]. The fact that the point had not been foreshadowed by the applicant in the written material, and the overarching obligation under s 37M of the Act, may have contributed to this course in circumstances where counsel for the applicant pressed for a speedy decision. As a result, I am in the position where I must resolve the question myself.
The status of the Full Court’s decision in AZC20
Upon the High Court setting aside the orders of the Full Court in AZC20 FCAFC, the Court ordered in their place that the applications for leave to appeal to the Full Court be refused, and that the appeals to the Full Court otherwise be dismissed. This had the result that the orders of the Full Court no longer had any legal effect, and the orders of Rangiah J constituted the applicable exercise of judicial power in the matter.
Where a judgment of a court is reversed on appeal, any statements of principle in the reasons for judgment cease to be binding. That is because the reasons of the court whose orders are reversed do not form part of the ratio decidendi for the determination of the matter. In Re Sutherland; French Caledonia Travel Service Pty Ltd (in liq) [2003] NSWSC 1008; 59 NSWLR 361 at [59] Campbell J stated that “a first instance decision altered on appeal can be of no higher precedent status than a dissenting judgment on appeal”, citing Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 at 410 (Aickin J). There is some irony in the fact that Aickin J dissented in that case, which was noted by Basten JA in Sparks v Hobson [2018] NSWCA 29; 361 ALR 115 at [37]. In Sparks v Hobson at [35]–[40], Basten JA treated the principle as extending to decisions of intermediate appellate courts that were reversed by the High Court, as did White JA in Dean v Pope [2022] NSWCA 260; 110 NSWLR 398 at [263], and the Victorian Court of Appeal in Director of Public Prosecutions (Vic) v Patrick Stevedores Holdings Pty Ltd [2012] VSCA 300; 41 VR 81 at [121] (Maxwell P, Weinberg JA and Ferguson AJA). More directly, in this Court the Full Court applied the principle in BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 201; 301 FCR 229 at [103]–[105] to hold that the reasons of the majority of the Full Court in BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91; 285 FCR 43, whose orders were set aside by the High Court, were not binding. However, the Full Court in BIF23 considered the reasons of the majority in BDS20 to be persuasive to the extent of being compelling, and followed them. See also Nationwide News Pty Ltd v Rush [2020] FCAFC 115; 380 ALR 432 at [507] (White, Gleeson and Wheelahan JJ).
The reasons of the Full Court in AZC20 FCAFC are not binding upon me. That is because the reasons do not support the exercise of any judicial power, and in that sense, are akin to reasons in a dissenting judgment, at least where they are not inconsistent with anything said by the majority. However, as with BIF23, the reasons of the Full Court are capable of being persuasive. But unlike the position of the Full Court in BIF23, there is a further principle discussed below, which is that I should follow the decision of Rangiah J unless I form the view that it is plainly wrong. The result is that I regard myself as being able to take account of the reasons of the Full Court as persuasive authority in considering whether I should depart from the decision of Rangiah J.
The weight to be given to the first instance decision in AZC20
I will now briefly address the authorities concerning the circumstances in which a single judge of this Court might depart from the reasons of another single judge.
In La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 (La Macchia) at 204, in a passage which has been cited favourably on a number of occasions, Burchett J cited Halsbury’s Laws of England, 4th ed, vol 26, at [580] for the proposition that “a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong”. Burchett J stated that the word “usually” indicated that the approach required is a flexible one, and the authorities illustrated that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle.
In Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75] French J referred to the reasons of Burchett J in La Macchia, and his Honour’s reference to judicial comity, and added –
76The injunction to judicial comity does not merely advance mutual politeness as between judges of the same or co-ordinate jurisdictions. It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. And where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction. Indeed, where a serious doubt arises on the part of one judge, about the correctness of the law as stated by another, in a matter of importance, it may be desirable for a case to be stated to the Full Court for early resolution of the question in contention.
As to Full Court authority on this question, in BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; 162 FCR 234, Greenwood J, in reasons with which Sundberg J generally agreed, stated –
83The circumstances in which a judge in the exercise of the Court’s original jurisdiction might find a decision of a single judge of the Court to be “plainly wrong” should be approached with real and deliberative caution and would generally involve that class of case where for one reason or another there is transparent error such as the consideration of an incorrect statutory instrument in the resolution of the controversy; consideration of a provision of a statute in a form not enacted at the relevant date of the events or a failure to consider a provision of an Act relevant to the disposition of the cause, thus causing the analysis to fall into error; a failure to apply having regard to the issues raised by the controversy, a binding decision of a Full Court of this Court or the High Court; a failure to apply a decision of a Full Court of this Court, an intermediate Court of Appeal of another jurisdiction or an authority of the High Court expressing a clear persuasive emphasis of opinion in favour of a particular conclusion (particularly concerning legislation of the Commonwealth Parliament); or some other circumstance that has caused a dispositive adjudication of the controversy to miscarry.
84That minds might differ on a question is not a foundation for a conclusion that a decision supported by exposed reasons for judgment after full argument, is plainly wrong.
85The difficulty however lies in preserving that degree of important flexibility necessary to enable a judge to do justice between the parties to a controversy inherent in a dispositive adjudication of that controversy when a judge is persuaded that an earlier authority is wrong (apart from illustrations of the kind above) balanced with the importance of consistency and certainty in the administration of the law. The question is always a matter of careful judgment.
86The circumstances which might properly lead to a departure from an earlier authority will necessarily vary according to the content of the case and the issues and therefore no prescriptive rules ought to be formulated. However, the point of equilibrium in that balance might be reached by recognising the required emphasis necessary in concluding that an earlier authority is “plainly wrong” or “clearly wrong”. In cases where a party advised and represented by experienced senior counsel properly discharging the duty owed to the Court urges upon the Court the merits of the reasoning of the authority in the resolution of the immediate case, it would be difficult to conclude that the authority is “plainly wrong” notwithstanding that a judge might reach an entirely different view of the proper construction of the provision against the background of the facts found and thus conclude that the early authority is wrongly decided. There is a distinction between concluding a decision is wrongly decided and a conclusion that an earlier authority is “plainly wrong” and thus ought not to be applied and followed.
In BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; 283 FCR 97, Allsop CJ, Moshinsky and O’Callaghan JJ stated at [62] that the practice that a judge should usually follow a decision of another judge of the same court unless the judge is of the view that it is plainly wrong had been expressed in different ways on different occasions. The Court found it unnecessary to express a view on the different formulations, and stated that it was undesirable to adopt any rigid formulation. The Court held that it was sufficient to refer to the passage from the reasons of Burchett J in La Macchia at 204 to which I referred earlier.
Subsequently, in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181, Allsop CJ, in reasons on this topic with which Kerr and Mortimer JJ at [104] agreed, considered in some depth the principles underpinning the practice that the Full Court will follow one of its own previous decisions unless convinced that it was plainly wrong. In summary, and relevant to Full Courts, Allsop CJ made the following points, citing, inter alia, Gett v Tabet [2009] NSWCA 76; 109 NSWLR 1 at [283] –
(a)“plainly wrong” does not just mean “obviously wrong”, but bespeaks the quality of the error or the level of conviction of the error that must be perceived;
(b)there was a need to balance the risk of perpetuation of error in too rigid a stance in reconsideration of earlier decisions and the importance of the stable operation of the doctrine of precedent and the predictability of the law; and
(c)however, in relation to Full Courts, judicial focus should remain on the wider institutional values of consistency and predictability described in the authorities, and on the need for decisions to be re-visited sparingly and with great care in considering whether, in order to advance the equally important value of ensuring the law is correctly pronounced and applied, it may be necessary to depart from a previous decision.
In relation to single judges, Allsop CJ stated that the question of consistency in decision-making that should weigh on the minds of judges was a different question –
21… The question of consistency that should weigh on the attitude of a single judge to an earlier first instance single judge decision is a different question. It is not founded on the respective positions of intermediate courts of appeal in an integrated national judiciary, but upon comity. That said, as the expression of principle by French J in Hicks reveals, the matter can be expressed in very similar terms. Comity in this context has often been expressed in similar language to plainly wrong. In Huddersfield Police Authority v Watson [1947] KB 842 at 848, Lord Goddard referred to the modern practice and modern view of the subject that a judge at first instance following a decision of another judge at first instance from comity, not obligation, unless convinced that the decision was wrong. The modern expression of the matter in this Court is to similar effect: Hicks [2003] FCA 757 at [75]-[76] and La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204.
The desire for comity has a particular relevance to the construction of Commonwealth statutes, where consistency of interpretation is a well-recognised objective: see Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485. That is of particular importance in circumstances where the Full Court has had occasion to remind the executive that considered decisions of a court declaring the meaning of a statute are not to be ignored: Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd [2007] FCAFC 16; 158 FCR 325 at [3]–[7] (Allsop J, Stone J agreeing at [1], Edmonds J agreeing at [48]).
Discussion
A useful starting point is an observation concerning an important assumption underlying the Migration Act made by the Court in the Offshore Processing Case at [27] –
… read as a whole, the Migration Act contains an elaborated and interconnected set of statutory provisions directed to the purpose of responding to the international obligations which Australia has undertaken in the Refugees Convention and the Refugees Protocol. … the Migration Act proceeds, in important respects, from the assumption that Australia has protection obligations to individuals. Consistent with that assumption, the text and structure of the Act proceed on the footing that the Act provides power to respond to Australia’s international obligations by granting a protection visa in an appropriate case and by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason.
A similar observation was made by Gummow, Hayne, Crennan and Bell JJ in the Malaysian Declaration Case at [98], namely that the legislative intention evident from the Act as a whole was that “its provisions are intended to facilitate Australia’s compliance with the obligations undertaken in the Refugees Convention and the Refugees Protocol”.
The different approaches of the Full Court and of Rangiah J in AZC20 were that Rangiah J’s approach was faithful to the literal text of the legislation, rejecting submissions to construe s 198AD as containing an implied exception in the case of an unauthorised maritime arrival for whom the bar had been lifted under s 46A(2) and who was therefore a fast track applicant. On the other hand, the Full Court’s approach was patently one involving a construction designed to achieve the legislative purpose, and harmony, which had regard to the scheme of the Act so far as it related to unauthorised maritime arrivals. There is authority to support both approaches.
In rejecting the implied exclusion to the application of s 198AD to AZC20, Rangiah J cited at [55] the following passage from HFM043 v Republic of Nauru [2018] HCA 37; 359 ALR 176 at [24] (Kiefel CJ, Gageler and Nettle JJ) –
The task of construction of a statute is of the words which the legislature has enacted. Any modified meaning must be consistent with the language in fact used by the legislature. Words may be implied to explain the meaning of its text. The constructional task remains throughout to expound the meaning of the statutory text, not to remedy gaps disclosed in it or repair it.
Within the above passage were footnoted references to Taylor v Owners — Strata Plan No 11564 [2014] HCA 9; 253 CLR 531 at [39] (French CJ, Crennan and Bell JJ), and Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 (Cooper Brookes) at 310–11 (Stephen J). Commencing with Cooper Brookes, at 310 Stephen J stated –
… if literal meaning is to be departed from, it must be clear beyond question both that literal meaning does not give effect to the intention of the legislature and that some departure from literal meaning will fulfil that intent.
Statute law, the direct product of the legislature, is perhaps the least appropriate field of all in which to indulge in judicial law-making. The corner of that field occupied by closely drafted statutes of high complexity should be particularly uninviting to the judicial law-maker. It provides the very antithesis of those occasional legislative measures which lay down only general principles and invite the courts to supply the details. It can never be enough to justify judicial intervention that what has been enacted may seem to a court to lead to an irrational result. …
From this conventional starting point, Stephen J looked to the history of amendments to the legislation under consideration, and declined to adopt a literal construction, stating at 310–11 –
However a close examination of that sub-section against the background of its legislative history and that of its neighbouring sections has satisfied me that the intent of its framers, which it reflected when it was originally enacted, has been stultified by amendments to other provisions, which for some reason have passed by s. 80c(3). That sub-section now stands as an anachronism; the failure to amend it to accord with those provisions upon which it operates and have themselves long since been amended, ensures that to give it its literal application will, in the words of Fry L.J ., be to construe “the Act in order to defeat its object rather than with a view to carry its object into effect”; Curtis v Stovin. His Lordship, in common with Lord Esher M.R. and Bowen L.J., refused to adopt a literal interpretation which would have led to the result “that the plain intention of the legislation has entirely failed by reason of a slight inexactitude in the language of the section”.
Just as in Curtis v Stovin it was possible for the Court both to recognize the nature of the draftsman's error and to identify it as error (per Lord Esher M.R.), so here it is possible to trace the process by which s. 80c(3) has become the anachronism which it now is.
(Footnotes omitted.)
In Taylor, the Court addressed what was argued to be an anomaly in provisions of the Civil Liability Act 2002 (NSW) concerning the assessment of damages in dependants’ claims. The majority (French CJ, Crennan and Bell JJ) declined to read the text of the provision in the way argued by the appellant, in effect rejecting a submission by the appellant that the text was not consistent with some legislative purpose that was outside the statute. In coming to that conclusion, the majority stated –
38The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.
(Footnotes omitted.)
The majority then referred to Lord Diplock’s three conditions for reading words into an Act identified in Wentworth Securities Ltd v Jones [1980] AC 74 at 105, which were reformulated by Lord Nicholls in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 at 592 in the following terms –
A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see per Lord Diplock in Jones v Wrotham Park Settled Estates [1980] A.C. 74, 105–106.
French CJ, Crennan and Bell JJ then stated –
However, it is unnecessary to decide whether Lord Diplock’s three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that “the modified construction is reasonably open having regard to the statutory scheme” because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour’s further observation, “[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances”.
(Footnotes omitted.)
In my respectful view, in favour of the construction preferred by Rangiah J are three features: (1) the construction is clearly open on the text; (2) the presence of express exceptions to s 198AD militates against implying further exceptions; and (3) the presence of the Minister’s power under s 198AE to determine that s 198AD does not apply to a particular unauthorised maritime arrival is an obvious way in which inconvenient outcomes might be avoided.
There are, however, some features of Rangiah J’s reasons with which respectfully I do not agree. The first is that there is no need for the power to lift the bar under s 46A(2) to be exercised in conjunction with a determination under s 198AE. The present case affords an illustration. At the time the bar in respect of the applicant was lifted, the applicant held a bridging visa, and for that reason alone he was not liable to be taken to a regional processing country. Further, on the authority of the Offshore Processing Case at [35] and [71], if it were material I would construe the obligation under s 198AD(2) to take an unauthorised maritime arrival to a regional processing country “as soon as reasonably practicable” in light of other relevant provisions of the Act, and as accommodating at least the consideration and any review of a protection visa application once made. The effect of those occurrences would be that s 198AD(2), in its application to a particular unauthorised maritime arrival at a particular time, would not authorise taking the person to a regional processing country. On this analysis, the question in issue narrows to what is the situation after all onshore visa application processes have been exhausted. Does the unauthorised maritime arrival remain subject to s 198AD, or does s 198 apply, despite s 198(11)?
This brings me to the reasoning of the Full Court. In Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; 255 CLR 179, the High Court was called upon to reconcile the operation of s 85 of the Act, which at the relevant time empowered the Minister in unqualified terms to limit the number of visas that may be granted in a specified financial year, and the obligation in s 65A, as then in force, to make a binary decision on an application for a protection visa within a specified time. The Court reconciled the conflict by giving primacy to the obligation under s 65A so that it was not subject to any direction given under s 85, which was construed as not extending to protection visas. In reaching their conclusion, Crennan, Bell, Gageler and Keane JJ stated at [25] –
… “Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible”, in the manner indicated in Project Blue Sky Inc v Australian Broadcasting Authority, “by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions”. The numerous amendments that have been made to the Act form part of its legislative history and bear legitimately on its construction. They are to be construed as part of the Act, so as to be read together “as a combined statement of the will of the legislature”. The timing of amendments might assist in determining the “hierarchy” of apparently conflicting provisions of the Act as amended, but notions of “implied repeal” have no place.
(Footnotes omitted.)
To similar effect are the statements of the Court in Plaintiff S4/2014 at [42], which added that “[c]onstruction should favour coherence in the law”, before referring at [43] to the Anthony Hordern principle: Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1.
I stated earlier that the textual “hook” supporting the Full Court’s reasons was the phrase “as soon as reasonably practicable” appearing in s 198AD(2). It is arguable in my view that this phrase is concerned with the timing of removal to a regional processing country, and not the utility of the removal. A further difficulty in my view is that there is a difference between whether s 198AD applies to a person, and whether the obligation under s 198AD(2) is engaged. Whether something is reasonably practicable is fact-dependent. It is also a circumstance that may change from time to time, and the absence of reasonable practicability at a particular point in time does not lead to the result that s 198AD does not apply. To take an example, a transfer to a regional processing country might be reasonably practicable if no intention or procedural decision to consider raising the bar under s 46A(2) exists. And if an unauthorised maritime arrival in whose favour the bar is lifted fails to take up the opportunity to apply for a visa, it is not obvious that the mere lifting of the bar makes transfer to a regional processing country not reasonably practicable.
What follows is within the realm of the hypothetical, but consider a case in which a regional processing country accommodated applications for protection visas under local laws, notwithstanding prior refusal of an application under Australian law — providing, in other words, a “second bite at the cherry”. Further, consider a case in which the local laws of a regional processing country accommodated an application by a person who had failed to take up the opportunity to apply for a protection visa in Australia while the bar remained lifted. In those circumstances, why should transfer to the regional processing country be regarded as not reasonably practicable?
In this case, however, there is no evidence as to a whole range of matters, including the identity of the regional processing country or the utility of transferring the applicant to the regional processing country. Nevertheless, these examples can still shed light on the practical operation of s 198AD(2), and so on the construction that should or must be preferred in order to ensure that s 198AD(2) works in harmony with other provisions of the Act. The point is that, while the Act provides for a bifurcated scheme of onshore and offshore processing, it is not clear that it would in all cases undermine that statutory scheme for s 198AD to apply to an unauthorised maritime arrival in whose favour the bar has been lifted. And, in light of what I have said about when the taking of a person under s 198AD(2) would be “reasonably practicable”, it may be that s 198AD(2) itself operates to prevent inconvenient results from arising. This militates against the view that it is necessary to construe s 198AD(1) as subject to an implied exception in order to give a harmonious operation to the Act.
More fundamentally in my view, there is a difference between the application of s 198AD to a person, and the existence of the obligation to transfer. As I have sought to explain, the obligation to transfer an unauthorised maritime arrival may change from time to time depending upon what is reasonably practicable. But the application of s 198AD is governed by the text of s 198AD(1). The exclusion of s 198 in s 198(11) is directed to the application of s 198AD, and not to whether at any particular point in time transfer is reasonably practicable. It does not follow from the fact that, at some point in time, transfer is not reasonably practicable that s 198AD(1) does not apply to a person at that time. To the extent that the Full Court is to be understood as holding that it is never reasonably practicable to take a person to a regional processing country once the bar has been lifted under s 46A(2), it is arguable that this conclusion does not grapple with the full range of possible circumstances that could arise for consideration. I am therefore not persuaded by the reasoning of the Full Court that the decision of Rangiah J was plainly wrong.
The question then is whether s 198AD(1) is itself the subject of an implied limitation that the section does not apply to an unauthorised maritime arrival in respect of whom the bar has been lifted, or who has made a valid application for a protection visa. The existence of those alternatives immediately raises a problem, namely that the terms of the implied exception are not clear. Applying the principles referred to by the majority in Taylor, I am not persuaded that where the text of s 198(11) and s 198AD(1) is clear, where the terms of the implied exception are not clear, where there are express exceptions to the application of s 198AD, and where one of those exceptions is the capacity of the Minister to determine that s 198AD does not apply, that a further exception should be implied in addition to those expressly stated. On this issue, and having given the Full Court’s reasons appropriate weight, I am not persuaded that the conclusion of Rangiah J in AZC20 FCA, namely that there is no implied exception, is plainly wrong. As a consequence, I should follow AZC20 FCA.
There is no real prospect of the removal of the applicant to a regional processing country becoming practicable in the reasonably foreseeable future
The respondents have not discharged their onus of showing, to a standard sufficient to support the making of a finding of fact to the level of satisfaction appropriate to a civil proceeding where individual liberty is in issue, that there exists a real prospect of removal of the applicant to a regional processing country becoming practicable in the reasonably foreseeable future. The evidence on that topic is scant to non-existent. The reasons for that may be readily inferred: until last week, both the applicant and the respondents proceeded on an assumption that s 198 is applicable to the applicant. There is no evidence as to why the executive did not consider itself bound by the decision of Rangiah J in AZC20 FCA. That issue need not be explored.
The constitutional limitation identified in NZYQ calls for an assessment in the present of the prospects of the removal of a person from Australia becoming practicable in the reasonably foreseeable future. The High Court in NZYQ at [72] recognised that facts may change, such that a person who has been released by force of a writ of habeas corpus may be re-detained if there arises again a real prospect of the removal of the person becoming practicable in the reasonably foreseeable future. The current position is that there is no evidence of the identity of one or more regional processing countries, and no evidence of any endeavours to transfer the applicant to one of those countries, or what prospects any such endeavours might have. On this evidence I do not have an affirmative state of satisfaction that there exists a real prospect of the transfer of the applicant under s 198AD becoming practicable in the reasonably foreseeable future, such that the continuing detention of the applicant is within the constitutionally permitted period of executive detention identified in NZYQ.
Conclusion
An order of the Court that the applicant be released from detention forthwith should be made.
I will hear the parties on costs and any other orders.
I certify that the preceding two hundred and eighty-four (284) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan. Associate:
Dated: 12 June 2024
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