CZA19 v Commonwealth of Australia & Anor; DBD24 v Minister for Immigration and Multicultural Affairs & Anor

[2024] HCATrans 81

[2024] HCATrans 081

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M66 of 2024

B e t w e e n -

CZA19

Applicant

and

COMMONWEALTH OF AUSTRALIA

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Second Respondent

Office of the Registry
  Perth  No P34 of 2024

B e t w e e n -

DBD24

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 NOVEMBER 2024, AT 10.00 AM

Copyright in the High Court of Australia

____________________

MR D.J. HOOKE, SC:   May it please the Court, in CZA19 I appear with my learned friends MR J.R. MURPHY and MR C.J. FITZGERALD for the applicant, and in DBD24 I appear with MR J.D. DONNELLY and MR. M.G.S. CROWLEY for the plaintiff.  (instructed by Zarifi Lawyers)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia:   May it please your Honours, I appear with MR P.M. KNOWLES, SC and MR M.P.A. MAYNARD for both respondents in CZA19, and both defendants in DBD24.  (instructed by Australian Government Solicitor)

GAGELER CJ:   Thank you, Mr Solicitor.  Yes, Mr Hooke.

MR HOOKE:   May it please the Court.  Your Honours, these cases present what is, despite the picture that the Commonwealth seeks to paint in its written submissions, a very narrow question, and a very narrow extension of the constitutional limitation in NZYQ. 

The question could be framed in this way, and that is whether the present regime for mandatory detention of unremovable and lawful non‑citizens with protection findings in their favour is reasonably capable of being seen as necessary for a legitimate non‑punitive purpose while the visa applications remain undetermined.

It is important to notice what these cases are not about.  They are not about whether people in the positions of these – the applicant and the plaintiff; I will call them collectively the applicants, if that is convenient – have a right to remain to Australia.  They do not, and that was recognised by this Court in the final paragraphs of NZYQ in a different context.  However, they do have the right to liberty protected by the constitutional bounds.

The concepts of the right to remain in Australia and the right to liberty are not to be alighted, and that is what, in our submission, the Commonwealth seeks to do.  We have made the point, in our written submissions in reply, that the Commonwealth’s submissions somewhat troublingly speak of the liberty of the subject in the context of migration that immigration detention in terms which rather devalue that liberty.  In our submission, that is a fundamental problem with the approach that the Commonwealth parties take to this litigation.

Before I turn to the constitutional context, could I take your Honours to the facts which we say lead to the conclusion that the removal of neither applicant was a real prospect of becoming practicable in the foreseeable future from the time of the protection findings.

GAGELER CJ:   Is that contentious?

MR H OOKE:   The way in which the Commonwealth approached the agreement of facts led us to contemplate that the Commonwealth did not concede that as a matter of fact.  I stand to be corrected, but there was a bit of hedging, as your Honours would have seen, in the way that some of the facts in relation to removability are framed.  I am content, if it its conceded and not contentious, to move straight past it ‑ ‑ ‑ 

GAGELER CJ:   Let us not waste too much – we will not waste too much time.

MR H OOKE:   I will not waste a lot of time on it.  The findings your Honours will see at paragraph 23 of the amended statement of agreed facts in CZA19 at page 77 of the cause removed book.  It was made by the tribunal on 10 November 2022; “it” being a protection finding in respect of the Republic of Poland.  He was thereafter detained for a further 16 months while his visa application remained undecided.

That remained so after this Court’s decision in NZYQ, after he commenced proceedings seeking, inter alia, habeas in the Federal Court, and was released only on 13 May 2024, when his visa application was refused for the second time, and it seems simultaneously another delegate granted a bridging visa, a NZYQ visa, because, according to the minute, he was “being released”, as he engaged the NZYQ protection.  That is found at paragraphs 12 and 57 of the amended statement of agreed facts.

We interpolate, here, that your Honours will notice that this all occurred simultaneously despite the fact that, on the agreed facts, the Commonwealth had made no inquiries about removability prior to the decision on the protection visa being made because that is its practice.  So, one then wonders how it was all simultaneously able to be assessed upon the Commonwealth’s written submissions in circumstances where there had been no inquiries made that it was able to be ascertained by the Commonwealth that he was not capable of being removed in the NZYQ sense.

GORDON J:   Are there not set out in the caused removed book, page 83, where the attempts to remove the applicant are addressed?

MR HOOKE:   That was in relation to Cambodia, your Honour.

GORDON J:   I think it says that, other than that, there is an event:

At no time since . . . has there been any evidence that would indicate that the Applicant:

(a)     could be removed –

Paragraph 64.  Then the dispute between you is set out in paragraph 65, is it not?

MR HOOKE:   Yes.  Yes, but the absence of any inquiry is in 63.  The only inquiry that was made was in relation to Cambodia, in response to the request for removal to Cambodia.  So, in our submission, when one then looks to the agreed facts at 64, 65 and 66, it being a matter in respect of which the Commonwealth bears the onus as the jailer, there was no real prospect of removal becoming practicable in the foreseeable future from at least the time of the protection finding.

In DBD24, the situation is similar.  He had applied for a protection visa on 15 November 2021.  That is at paragraph 19 of the special case, on page 18 of the special case book.  On 18 December 2023, his protection visa having been refused, the Tribunal remitted the application for reconsideration with a protection finding.  That is at page 8 of the special case book, paragraph 22.  He then remained detained for a further almost 10 months until his visa application was determined, and was released on 1 October with a protection visa.  The Commonwealth admits in relation to DBD24 that between 18 December 2023 and his release:

there was no real prospect of the Plaintiff’s removal to Vietnam –

That is at paragraph 31 – and that:

there was no evidence that would indicate that the Plaintiff has a right to enter and reside in any third country –

And nor has there been any such evidence at any time since he arrived on 22 April 2013.  Again, it being a matter of the Commonwealth’s onus, there is no evidence that the Commonwealth has been able to point to that would suggest the possibility of removal to any other country.  So, the same submission holds.  Your Honours, turning to the constitutional context, in NZYQ, the Court restated and reinforced that:

a law enacted by the Commonwealth Parliament which authorises the detention of a person, other than through the exercise . . . of the judicial power . . . will contravene Ch III . . . unless the law is reasonably capable of being seen to be necessary for a legitimate and non‑punitive purpose.

Such detention otherwise being “penal or punitive”.  In other words, a law granting the Executive power to impose involuntary detention in custody is prima facie punitive or punitive by default.  Determination of whether Chapter III is infringed by a statutory scheme requires consideration of means and ends, and the interconnection between the two.

On the approach of six members of the Court in NZYQ, the concept of punishment in Lim can be understood in two different ways.  First, “the core instance”, which is:

where harsh consequences are imposed based upon classic criminal notions of just desert.

which would be an illegitimate purpose of executive detention, and the second separate sense involves the law being treated as punitive because it employs means that are disproportionate to its legitimate purpose.  Sorry, those are Justice Edelman’s approaches – I do apologise.

EDELMAN J:   I thought it seemed familiar.

MR HOOKE:   The other six members of the court regarded the assessment as being “a single question of characterisation”.  In our submission, both approaches require an assessment of means and ends, and in the end, there may not be, in our respectful submission, a great difference between the plurality and Justice Edelman in the way that the ultimate question plays out.

Could I say something about the way in which that inquiry takes place.  It is an incident of sovereignty that the Commonwealth has the power to exclude or expel aliens.  That becomes without any doubt from Lim at page 29, page 375 of the joint book of authorities.  It is:

the vulnerability of the alien to exclusion or deportation.

that diminishes the protection of Chapter III for aliens, and it allows the Executive to detain them in certain circumstances.  Again, Lim at 29; picked up in Falzon at paragraph 39; and NZYQ at paragraph 29.

It is that constitutional context that informs the Migration Act regime for detention.  The ends relied on by the Commonwealth in this case is what we have called the “visa processing purpose”, what the Commonwealth calls the “admission purpose”.  We accept that that purpose has been, and recognised to be one of the legitimate purposes of detention in the authorities, but closer analysis reveals that the visa processing purpose is not properly understood, in our submission, to be a freestanding purpose justifying detention without further inquiry.

Could we say, in relation to the various authorities from which the Commonwealth picks short extracts in support of its position, that in none of those cases was the proposition that there was a constraint on the legitimate purpose of detention for the processing purpose, by reason of the overarching purpose of removal, the subject of argument.

EDELMAN J:   Put aside the linguistic ways in which it has been expressed, your point is just a simple point of logic, as I understand it, but you do not need to detain somebody to process a visa application.  A visa application can be processed whether they are in Australia, out of Australia, in detention, out of detention.  Detention has nothing to do, by itself, with processing an application.  That is it, is it not?

MR HOOKE:   That is right.  And the Commonwealth’s response to that is to say, well, this Court has said repeatedly that we can do it, so we can.  And they say they can do it without engaging in the exercise of actually reducing to some ‑ ‑ ‑

GAGELER CJ:   I had not understood that to be your point.  If that is your point, then it says that no detention during any visa processing is constitutionally permissible.

MR HOOKE:   Your Honour, we do not go that far.

GAGELER CJ:   So, can you state what your point is here?

MR HOOKE:   The point is one within the framework of what Justice Edelman put to me, and that is why I said it is important in this case to recognise what it is about and what it is not about.  What it is about is people who, within that cohort of aliens who have pending visa applications – in this case, protection visa applications – have the benefit of a protection finding so that, absent some exceptional circumstance, their removal, even if the application is refused, cannot result in removal from Australia.

EDELMAN J:   But your purpose is a purpose to ensure they are available to be removed.

MR H OOKE:   Quite.

EDELMAN J:   That is why they are detained during the processing of their application or subsequent to the processing of the application, during investigation – the detention is to make sure you can remove them.

MR H OOKE:   Yes, and once, by virtue of the protection finding, removal becomes an unachievable end, then the justification, we say, for continuing detention during the visa processing ceases to be a legitimate purpose.

JAGOT J:   But does a protection finding not only apply to a specific country?  Why would that be the criterion which brings to an end an otherwise legitimate purpose if it is only vis‑à‑vis Poland, vis‑à‑vis Vietnam; it is not a finding that there is no place in the world.

MR H OOKE:   No, but most people – and that is why I said, save for the exceptional case – in most cases, there is not going to be a third country to which they could be removed.

JAGOT J:   But that is the very fact that is relevant, is it not?  You are assuming the fact.  I am just not sure how you get from the protection finding relating to one country necessarily equals “not reasonably practicable” to remove as a factual matter, that is all.

MR HOOKE:   On the facts of these cases, it is conceded that there was no evidence of either applicant having a right to enter and reside in any other country.

JAGOT J:   Sure.  It just means that you cannot then express the principle at the level of generality even if there is a protection finding.  It needs to be something that is not the principle that you are advocating for there.

EDELMAN J:   A protection finding can only be one aspect of the inquiry.

MR HOOKE:   Certainly.  It may be that it is the appropriate way to frame the limitations by reference to a protection finding in the absence of any evidence of a right to enter and reside in any third country.

GORDON J:   The cohort is actually smaller again, is it not?  Your cohort is protection finding, criminal history, inability, or no evidence of any prospect of removal to a third country in the sense that there is no evidence that could be removed to a third country.

MR HOOKE:   It does not necessarily involve a criminal history.

GORDON J:   Your applicants do here.

MR HOOKE:   These applicants do, these applicants do, of course. 

GORDON J:   The one question may have been, for example – and it is not addressed in the facts – is how often the Commonwealth can remove someone to a third country with a criminal history?  It is not before us, but when we are actually looking at the cohort we have here, it is a very narrow cohort.

MR HOOKE:   It is.

BEECH-JONES J:   Mr Hooke, is not your principle – you have two points, as I understood it, which was the admission process is actually subordinate to removal – so, it is governed by the NZYQ limit – and even if that is a legitimate purpose, this means mandatory detention, in your words, is disproportionate.  Is that right?

MR HOOKE:   Yes.

BEECH-JONES J:   That first proposition applies to everyone seeking admission, does it not?

MR HOOKE:   No, because “everyone” is not someone who in respect of whom removal is not practicable.

BEECH-JONES J:   But that is a factual inquiry that you would say, if at any point it is challenged, would apply to anyone detained for the purpose of considering their visa application.  They could invoke it and put the burden on the Commonwealth, could they not?

MR HOOKE:   It can only arise – and I keep coming back to what the case is and what it is not about – in a situation where there is a statutory barrier to removal.

BEECH-JONES J:   Why?  Why would it only apply in that?  In a case where someone is from a country that is in a state of civil war and you cannot remove them, there is a reason for believing they cannot go back to their country of origin.  Why does it not apply to them?

MR HOOKE:   If that were the foundation of their visa application, it would ‑ ‑ ‑

BEECH-JONES J:   Regardless of whether if it was the foundation.  They came for a visitor’s visa but all of a sudden their country is in a state of tumult and they cannot be returned, your principle would engage then, would it not? 

MR HOOKE:   In that situation, one would expect that they would be making an application for protection, and that would bring them potentially within the cohort, but unless and until they come into that cohort of people where there is a statutory barrier to removal, then it does not arise. 

BEECH-JONES J:   Your principle is unconnected to your cohort once you express the purpose as being so limited.

MR HOOKE:   Your Honour, whether it – no, it is not, with respect.  The reason is because, subject to the narrow extension of NZYQ for which we advocate, we accept that all aliens, all unlawful non‑citizens who have a pending visa application or not, are vulnerable to removal unless they are subject to a protection finding or given a visa. 

EDELMAN J:   Do you say that there is any necessary sequence in which the Commonwealth needs to engage in consideration of the circumstances of an applicant?  So, for example, where the Commonwealth is to consider an application for a visa also questions of whether or not the person can be removed to any other country, is there any reason why the application for the visa cannot be considered before the circumstances of whether or not removal is possible?  Indeed, it might seem that that would be the logical sequence.

MR H OOKE:   What your Honour puts has force, except that what we see in practical terms, and that is why I pointed out in the facts in CZA19, there was no need for any further inquiry in relation to CZA19 once the visa application had been determined because his release and the grant of a bridging visa took place simultaneously.

EDELMAN J:   That may happen in particular cases, but in the usual run of things, would not the usual sequence be the consideration of the application before one then would turn to consideration of whether or not there are other places to which the person might be removed?

MR H OOKE:   That might be so if there appeared to be somewhere else that they might be entitled to go, but one also recalls the sequence of section 36, and that is that the question of protection being owed has to be determined first.

Of course, “first” in this context means after identification, ascertainment of country of origin, citizenship and health.  So, those matters are the subject of initial inquiry, and we do not suggest that detention for the purpose of ascertaining those matters is not legitimate.  It is legitimate even on the primary basis upon which we put our argument, because you cannot ‑ ‑ ‑ 

EDELMAN J:   But would the detention be detention for the purposes of ascertaining those matters, or would it be detention for the purposes of ensuring the person is available to be removed, if necessary, while you ascertain those matters?

MR HOOKE:   It is detention for the overarching purpose of removal, but we accept that it could also be seen as reasonably necessary for the subordinate purpose of visa processing and investigation because, to take for example confirmation of identity and the like, there is every reason why it would be a legitimate purpose for detention to keep someone in custody when you have not confirmed their identity.

GORDON J:   In paragraph [44] of NZYQ, six members of this Court identified, arguably, or at least state that:

in circumstances 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” –

MR HOOKE:  

pending the making of a decision as to whether or not they will be allowed entry.

Yes, but the authorities also say that segregation for the sole purpose of keeping somebody separate from the community is not a legitimate purpose.  Our point in relation to the protection finding and the lack of any other prospective place of removal ‑ ‑ ‑

STEWARD J:   Mr Hooke, I hate to be a stickler, but both of these cases have come up to us with agreed facts, and it is not an agreed fact for the relevant periods in question that it was not reasonably practicable to remove.  That has not been agreed.  In one case the Commonwealth says, I do not admit it, save for one country; in the other case the agreed fact, there is no evidence.  So, how do we move from those agreed facts to the finding that you need in order to invoke the principle in NZYQ, in a case where we have agreed facts and nothing else.

MR HOOKE:   Because, in our submission, the Court can draw an inference from the facts that are agreed, and part of what informs the drawing of those inferences is where the onus on these questions of fact lie.

STEWARD J:   Is it right to talk about an onus where there is agreed facts?

MR HOOKE:   In our submission, yes.

STEWARD J:   All right, thank you.

MR HOOKE:   If there is a fact that the party bearing the onus wished to contend for, then one would expect to see it in the agreed facts or for the facts not to be agreed.  I am sorry, I was partway through responding to your Honour Justice Gordon in relation to paragraph [44] of NZYQ.  What we say about that is that in the context of the purpose of preventing the alien from entering Australia or the community pending the making of a decision as to whether they will be allowed entry, that is where the significance of the protection finding and the absence of any potential third country for removal assumes constitutional significance, because the question of whether they will be allowed entry, albeit not on a freestanding basis or on a basis that entitles them to remain, disappears because of the logic of NZYQ.

GORDON J:   Your short point is, picking up your answer to Justice Steward, where it is inevitable that there is no real prospect of removal, those two purposes cannot justify the ongoing detention. 

MR HOOKE:   Yes.  The inevitably of release, regardless of the outcome of the application, renders the detention in those circumstances arbitrary and, therefore, punitive. 

BEECH-JONES J:   That is in circumstances where the purposes, you do accept – like ascertaining identity and criminal records and so forth – have been spent. 

MR HOOKE:   Yes, and all of those matters, of course, are antecedent to the protection finding.

BEECH-JONES J:   In these cases, yes. 

MR HOOKE:   And generally.  You could not, for example, make a protection finding if you do not know who the person is, or where they have come from, or what their background is, why it is that they claim to be owed protection.  So, there is an element of artificiality, in our submission, in the approach of the Commonwealth, in contending that all of this happens after a protection finding.

The proposition that your Honour Justice Beech‑Jones raises with me also feeds into the submissions that we make in relation to the fallback position, if it be accepted, against us that the processing purpose is a standalone legitimate purpose for detention, because we would accept, as we have in writing, that the statutory regime could be valid if it were appropriately calibrated or tailored to detain for those purposes.

STEWARD J:   Mr Hooke, can I ask another question.  On the facts as you claim them to be, upon the completion of any visa admission process, your clients were bound to be released, one way or the other.

MR HOOKE:   Yes.

STEWARD J:   Either they got a visa released or they became released subject to NZYQ.  Why is the availability of mandamus not a sufficient remedy for your clients in those circumstances?

MR HOOKE:   Because what we are dealing with here, your Honour, is question of liberty in the context of habeas.  The prima facie position is that, unless there is a legitimate justification for the detention, the detention is unlawful.

STEWARD J:   But is the law disproportionate when you do have that remedy available?

MR HOOKE:   The remedy of mandamus does not, in a sense, answer the proposition that arises in these cases because our proposition is that even if there were other matters that were still required to be considered indeterminate for the purpose of determining the visa applications, it is the fact of the removal not being a real prospect of becoming practicable.

STEWARD J:   So, is it your case that, upon the application being made, if it was objectively inevitable that they could not be removed in the reasonably foreseeable future, there could be not detention at any stage, even in circumstances where the Department may not know about that objective fact yet?

MR HOOKE:   One of the objective facts would be a protection finding, your Honour. 

GAGELER CJ:   The protection‑finding test prevents, through the statutory mechanism, removal to the country of origin.

MR HOOKE:   Yes.

GAGELER CJ:   But your proposition would be applicable to anyone who turns up and applies for a visa and brings an application for habeas corpus.  You would say the onus of proof is on the detainer to prove that, at the end of the processing, it will be possible to remove the applicant somewhere.

MR HOOKE:   No, your Honour, and this is why – and I keep coming back to the narrowness of the proposition that we put – we accept that it must first be established that there is no reasonable prospect of removal.  The first step ‑ ‑ ‑

GAGELER CJ:   Who has to establish that?

MR HOOKE:   In our submission, the starting point is a protection finding because it takes out of play the place to which one would, ordinarily, expect someone who was ‑ ‑ ‑

GAGELER CJ:   It might be the starting point, factually, in the present case, but your constitutional proposition cannot be tied to the scheme of the Act as it currently exists.

MR H OOKE:   Well, your Honour, we tie it to the scheme of the Act in the same way that NZYQ ties to the scheme of the Act at the constitutional level, and that is to say that the place to which one would ordinarily expect removal to take place is the country of origin, and that is where most people – one could almost say inevitably, but that would not be accurate.  Most people who are refused a visa are removed to their country of origin.  The protection finding forecloses that removal, but then becomes ‑ ‑ ‑ 

STEWARD J:   Practically, but not legally.

MR H OOKE:   Well, both – 197C forecloses ‑ ‑ ‑

STEWARD J:   You could still be removed to another country.

MR H OOKE:   Yes, that was what I was just coming to, your Honour.  The other prospect is removal to a third country, and as the court has been told by the Commonwealth more than once, it does not remove people to countries to which they have no right to enter or reside, nor would one expect that such a country would receive them.  So, it becomes a question of whether there is a third country to which that person can be removed.

Now, that might arise because someone has dual citizenship.  That is something that would be explored in the process of the protection finding, because 36(3) requires, or excludes Australia owing protection obligations if the person has a right to enter and reside in a third country and has not taken advantage of that.  So, this is all inquiry that necessarily arises in the course of inquiry into the obligation of protection, and to suggest that those types of fundamental matters are something that arise only at the heel of the hunt after the protection visa application is refused is, with great respect, highly artificial.

GAGELER CJ:   Mr Hooke, I think you have made your “ends” argument.  I do not want to cut you off, but are you moving on to the “means” argument at this stage?

MR HOOKE:   Could I just say something else about ends.  It relates to the appropriate level of generality at which to look at the inquiry.  We have made the submission that, at the appropriate level of generality, the overarching purpose is removal, and that subsumes within it the processing purpose, but what is important to recognise also is that the removal purpose can animate even during detention during visa processing.  It can occur by withdrawal of a visa application, it can occur by a request for removal, and that is plain from the text of the provisions.  They do not confer discrete powers to detain during and after visa processing, or anything like that.  They are just a blunt mandatory detention for anyone without a visa.  That is where we say that the tailoring and what have you becomes relevant.

The only purpose, in our submission, that is capable of explaining that breadth of the detention power in all its applications is making an unlawful non‑citizen available for their potential removal.  It is the only one that hangs together, in our submission.  It is for that reason that we say that the processing purpose is not independent of, but related, or subsidiary to the purpose of removal.

BEECH‑JONES J:   Say you had a case where someone applies for a visa and there are conditions that might be imposed for, say, community safety, and they are in detention, and they have been processed.  You know what their identity is, and you know a few things about them, and you know they cannot be returned to their country of origin.  But you do not know everything about, say, their criminal record for the purposes of considering what conditions you might attach to their visa.  In that circumstance, would the inability to remove them from Australia overwhelm the position and require their release?

MR HOOKE:   Yes.  But on what terms that release took place is a matter for the Executive.

BEECH‑JONES J:   Even though they are not in possession of the information they need to make that decision?

MR HOOKE:   Your Honours, as I have said earlier, there is an element of artificiality in suggesting that that type of information does not come as part of the confirmation of identity, background and so on.  It may be that the terms on which the release is to take place is a legitimate purpose of detention for processing, but it assumes an urgency and a greater significance when that inability to remove crystallises.

Your Honours are well familiar with some of the steps that have been taken in relation to the NZYQ cohort and the imposition of conditions.  Some of them have stuck, some of them have not, and some of them may stick in a different form – who knows?  But this is, again, part of the tailoring of the scheme to invoke questions of proportionality and legitimate connection to purpose.

The current regime – the one with which we are concerned, of course – is not calibrated to detain only people with outstanding investigations.  It is not calibrated or refined to any purpose connected with the visa processing, other than segregation for its own sake, in our submission, once you get past that point of ascertaining identity and what have you.

On the independence of the processing purpose, we draw attention to what was said by the Court in Plaintiff S4/2014 at volume 5, tab 19 of the joint book of authorities, pages 1452 to 1453 in paragraphs 33 and 35, and that is to the effect that the removal duty at the level of the operation is the leading provision, and: 

The duration of the plaintiff’s lawful detention . . . was thus ultimately bounded by the –

removal requirement.  We say that the way in which the Court in S4 expressed that hierarchy of operational provisions also holds true to the purposes for which detention might be legitimate under the Act.

GAGELER CJ:   So, the language of “as soon as reasonably practicable”; that was the focus of the passage that you were referring us to, was it not?

MR HOOKE:   Yes, but the important ‑ ‑ ‑

GAGELER CJ:   Language which is only triggered when the requirements of section 198(6) are met, meaning the visa is refused.

MR HOOKE:   Quite, but the point that we take from those passages, your Honour, is the leading status of the removal power and obligation, and the way it subsumes, in a sense, the secondary obligation of visa processing; the way in which the Court described the duration of detention being “ultimately bounded” by the removal requirement.  By parity of reasoning, we say once the removal requirement disappears because of the inability to remove, in the same way that ultimately bounds the period of detention legitimate under the subordinate processing purpose.

EDELMAN J:   But what you are calling the subordinate purpose, if that is still part of the purpose, then the purpose is not just removal; it is removal following the statutory processes of investigation for entry.

MR HOOKE:   Indeed.  But if the overarching – as we have described it – purpose that gives detention its legitimacy is making the person available for removal, then, if that purpose becomes unachievable, the legitimacy of the detention, in our submission, ends.  We qualify it, of course, in the way that I have qualified my answers to members of the Court on the basis that we do not take issue with the legitimacy of detention for the purpose of the initial identification and factfinding process.  But it is once you get to that point where removal becomes a futility that ‑ ‑ ‑

EDELMAN J:   But I do not think you can say that is the statutory purpose because the statute does not require a person to be released from detention when, prior to determination of their entry application, it might become apparent that it is not reasonably practicable to remove the person to any third country.

MR HOOKE:   I am sorry if I said “statutory”.  I mean the legitimate purpose.

EDELMAN J:   I see.  So, to the extent that the statutory purpose goes beyond that, then the statutory purpose is illegitimate?

MR HOOKE:   Yes.  And when one looks at the statutory provision in relation to the requirement for detention, one sees that, first of all, all aliens – as I said earlier – with undetermined visa applications or no visa applications remain vulnerable to removal unless and until it is shown that that is not a real prospect.  Secondly, the removal duty can be engaged during the process.

The Commonwealth appears to accept that visa processing is not capable of independently justifying detention where the removal duty is engaged, when one looks at paragraph 64 of the Commonwealth’s submissions, because it is accepted that a person in the position of these applicants, had they requested removal prior to the determination of their visas but after the protection findings, would likely have engaged NZYQ and have been released on a bridging visa.

Now, that rather begs the question, if anybody in the position that these applicants were in made a request for removal under 198, they would not be capable of removal on the facts that are before your Honours, they could not be removed to their country of origin, they would have to be released, and the protection visa application would remain on foot.  So, in one sense, the statutory regime provides a mechanism for a person in the position of these people to create their own release by requesting a removal which cannot be effected, and then waiting in the community on a bridging visa for the determination of the protection visa.

So, one then asks, absent the request for removal, what is the legitimate purpose linked back to being reasonably necessary for the purpose of processing the visa application that is served by the detention?  The answer, in our submission, is none.

GAGELER CJ:   We are now up to the means?

MR H OOKE:   The means, your Honour.  If your Honours are with us in relation to removal being the animating ‑ ‑ ‑ 

GAGELER CJ:   Then we do not get to it?

MR H OOKE:   ‑ ‑ ‑ purpose, then your Honours do not need to go any further, because it follows from NZYQ.

GAGELER CJ:   I think we follow that.

MR H OOKE:   Yes.  If your Honours are against us on that, it is not the end of it.  As I have said, even if the visa processing purpose is an independent purpose capable of justifying executive detention, the Commonwealth must show it to do so here.  That is, in the context of this scheme, the mandatory detention of all visa applications during the entirety of the visa processing must be shown to be reasonably capable of being seen as necessary to advance the purpose of visa processing.  As I have said, the statutory regime is not sufficiently tailored to that purpose in the way that Justice Gordon described in Jones at paragraph [78], tab 31 of the joint book of authorities.

The starting point of our analysis is, we apprehend, uncontroversial, that is, there is nothing about a visa application that necessarily requires detention.  That is consistent with what Chief Justice Gleeson said in Woolley, at paragraph 26, volume 6 of the joint book of authorities, tab 21.  There is nothing about a visa application that cannot be considered when someone is not in detention, and some of the examples were floated earlier – people applying from offshore; people already on a visa who were applying for a different visa; people on a bridging visa who are applying for a visa; people who are the subject of a residents’ determination under section 197AB – the list goes on.  The question then becomes, notwithstanding that starting point:  does the mandatory detention of all persons while they await a visa decision somehow advance the purpose of visa processing?

We have described the Act’s scheme for detention as blunt, and we adhere to that description.  The obligation to detain, by way of illustration of its bluntness and scope, applies even in circumstances where all investigations have been completed that are necessary to inform the Minister’s decision, including identity, nationality, criminal history, security profile, health, and so on.  It applies despite the decision‑maker being able to be confident that, should any further inquiries be necessary, the applicant will be co‑operative even if not in detention.  We emphasise, here, of course, that it is very much in the interests of any visa applicant to be co‑operative in the provision of information that advances the processing purpose.

GAGELER CJ:   Mr Hooke, can I just ask, on this branch of your argument – the “means” branch – is your argument confined to the circumstances of the narrow cohort you identified in relation to the “ends” argument?

MR HOOKE:   We address the statutory scheme as it exists.

GAGELER CJ:   Yes, but is the argument one that any form of mandatory detention, pending the determination of a visa application, is not reasonably capable of being seen as necessary for what, on this branch of your argument, you are accepting to be a legitimate purpose?

MR HOOKE:   No, your Honour.  The only argument that we advance is that it is not legitimate for the purposes of people in the situation of these applicants.

GAGELER CJ:   All right.  So, what is it about the situation of these applicants that takes it out of the norm?

MR HOOKE:   The fact that the scheme requires their detention, notwithstanding the fact that they have been found to be owed protection, and there is no real prospect of their removal becoming practicable in the foreseeable future.  We say that the scheme requiring detention of everyone for the whole of the period of visa processing – and, in some cases, beyond – is not reasonably tailored to meet, for the purposes of these cases, people who have the characteristics that I have just described. 

GAGELER CJ:   Can you give us some better particulars why? 

MR HOOKE:   Because there is the inevitability of release, no matter what the decision is.  There is nothing that is posited by the Commonwealth, in relation to people in the position of these applicants owed protection, and no real prospects of removal, et cetera, how it is reasonably necessary to the advancement of the visa processing purpose. 

EDELMAN J:   So, the practical difference between the first argument and the second argument, then, is effectively a shift in onus, because, on your first argument, the Commonwealth bears the onus of showing that the purpose is legitimate, which you say it cannot be unless the Commonwealth shows that removal is a reasonably practicable alternative.  But on this limb, where the purpose can include, for example, the matters relating to consideration of an entry application, you would say, once it is then apparent – or once it is then, from an applicant’s point of view, shown that they fall within a cohort of people for whom it is inevitable that they would ultimately be released, then there would be a disproportion between purpose and the detention. 

MR HOOKE:   Yes. 

GLEESON J:   That is despite the duration of the detention being limited. 

MR HOOKE:   It is limited only by the duration of the time taken to make the decision on the visa application. 

GLEESON J:   By what is reasonably capable as being seen as necessary. 

MR HOOKE:   Yes, except that, in our submission, once the prospect of removal is taken away, and the inevitability of release into the community becomes crystallised, that significantly changes the proportionality analysis.  Of course, outside the cohort of people to whom we say that this applies, the Commonwealth does not need to rely on the visa processing purpose – certainly not solely on the visa processing purpose – because it still has the overarching removal purpose upon which it can rely for detention in those cases, or the legitimate purpose of carrying out those fundamental investigations in the early stages of visa processing.

So, it is not the radical sweeping aside of an entire system of visa processing that these proceedings are directed to.  As I said earlier, it is very narrow and it turns upon that shift in the existence or otherwise of the removal purpose and in the proportionality analysis that occurs at the time when, if I can shorthand it, the NZYQ criterion crystallises, albeit that it crystallises during the processing phase, rather than the removal phase.  But it is the same criterion on which we rely as the basis for challenging the legitimacy or, on our second argument, proportionality of detention beyond that point.

In relation to the question of calibration or refinement, it is to be remembered, of course, that the scheme that was considered in Lim included a number of significant restraints.  First of all, there was a maximum time period of detention for the purpose of the Minister making a determination of the visa application.  Your Honours will recall the 273 days.  And there was also the requirement for removal of an unlawful non‑citizen on request, and that was without the restraint that now exists under section 197C as it is now in force.

The current scheme does not include a maximum time limit within which the Minister must make a decision.  An alien in the position of these applicants under the present statutory scheme, including the present 197C cannot be removed on request.  So, both of those significant features of the legislation as it was considered in Lim no longer are present.

The temporal constraints were again discussed by the Court in AJL20, but they were predicated on the ultimate availability of removal and, as your Honours know, two things have fundamentally changed since AJL20.  The first is the overturning of the constitutional holding in Al‑Kateb and the second, which is important, is that AJL20 turned, of course on the former form of section 197C, that is, that non‑refoulement obligations were irrelevant to the duty to remove.  In that regard, we give your Honours reference to NZYQ at paragraph [24] and paragraph [47].

That leads, in our submission, to what was described by Justice McHugh in Re Woolley at paragraph 88 as the “tenuous connection” between the duration of detention and the completion of processes that are actually required or even made easier by detention.  When your Honours look at the shift through to the current regime against what Justice McHugh said in paragraph 88 of Woolley – at volume 6, tab 21 of the book of authorities – in our submission, it makes plain that the tenuousness of the connection between visa processing after the NZYQ criterion is crystallised and the visa processing purpose.

We have included in our written submissions some examples of less restrictive means of advancing that these are processing purposes.  Many of them have been discussed in the course of argument already and I do not propose to repeat them, but we say that they give a very stark illustration of the disconnect between means and ends once one gets into the position of the members of this cohort.  Your Honours, for those reasons, in our submission, the Court would find that the answer to the question of law posed in the special case in DBD24 is yes, and declaratory relief should issue in CZA19 in the form that is contained in the amended application in the cause removed.

Unless there is anything further, your Honours, those are our submissions.

GAGELER CJ:   Thank you, Mr Hooke.  Mr Solicitor.

MR DONAGHUE:   Your Honours, these proceedings both concern the validity of immigration detention during a period when each applicant had made a valid application for a visa that had not yet been determined and when – very importantly, as a consequence of that fact – the Migration Act conferred no power to remove either of the applicants from Australia.  That was true for the whole of the period that is in issue.

The reason that there was no power to remove during that period is because, one, the applicant’s visa not having been “finally determined” – the defined phrase that I will come to, defined in section 5(9) of the Act – the power to remove in 198(6) was not enlivened.  The second reason there was no power to remove is that at no stage during the relevant period had a written request for removal been made which enlivened section 198(1) of the Act, and no other removal power was enlivened, so that what was happening was there was a visa application on foot that the Commonwealth was required to decide within a reasonable period of time.

Only upon the conclusion of that processing period – enforcably required to be made within a reasonable time – would the power to remove be engaged under 198(6) unless, at some earlier time, a request was made in writing for removal under 198(1).  In other words, the Act in its terms embodies the sequence of decision‑making that Justice Edelman put to my friend this morning by not empowering removal until the visa process is complete, subject to a request at some earlier time.

In NZYQ, this Court expressly formulated the constitutional limit on immigration detention of unlawful non‑citizens in terms of non‑citizens who had been denied admission to Australia and who were detained for the purpose of removal.  I will take your Honours to those references shortly, and those references were repeated by the Court in ASF17.  In our submission, notwithstanding that our friends have not dealt with them, their whole case invites your Honours to treat that formulation of the limit as a mistake, as something the Court did not mean when it said it twice in recent decisions.

In our submission, it should not be viewed in that way.  It reflected the core feature of the reasoning in those cases that the limit was focused on the purpose of removal because it was that purpose that the Court held was refuted when there was no real prospect of removal becoming practicable in the reasonably foreseeable future.  By contrast, in our submission, the absence of a real prospect of removal does not refute the separate legitimate and non‑punitive purpose recognised in authorities going back to Lim of considering and determining an application for admission.

That purpose not having been refuted, the question of whether there is a prospect of removal or not does not bear on whether the detention is reasonably capable of being seen as necessary for that purpose.  So, our very short point is that the suggested extension of the NZYQ limit that our friends seek makes no sense at all at the level of constitutional principle, having regard to the reasoning that led to the articulation of that limit in NZYQ, and also seriously collides with the statutory framework which envisages now, and has since Lim envisaged, a sequenced process of decision‑making.

EDELMAN J:   I am not sure your submission purpose actually is any different from the applicants’.  I mean, once the applicants accept that there is a subsidiary purpose that is involved in consideration of an application and so on, and once you accept, I think as you must, that that consideration process is only for a reasonable period of time then whether one expresses it as a single purpose which includes a period of processing or one expresses it as two purposes might not make a difference.

MR DONAGHUE:   Possibly not, your Honour, but in – one of my friend’s answers to Justice Beech‑Jones was informative.  Justice Beech‑Jones said, well, what if you are detaining a person for the purpose of deciding the conditions of admission into the community upon which they will be released – which is, we submit, at the core of the admissions‑related purpose – would you, the applicant, say that if there is no real prospect of removal, you have to release at that time – even though, I interpolate, at that time there is no removal power engaged – and Mr Hooke says yes.  Now, we say no because the detention in that period of time is squarely proportionate to the admissions purpose and so wholly constitutional, irrespective of the prospect of removal.

EDELMAN J:   Whether or not that answer is right can be put to one side.  I do not think it is possible to contend though, is it, that the admissions purpose is wholly independent of any removal purpose.  The reason for detention in the admissions process is to make sure that removal is available at the end, because if you knew for certain right at the start of the admissions process that you were not going to remove a person, you would not need to detain them.

MR DONAGHUE:   Well, there is a bit wrapped in that, your Honour.  I accept that – I do not accept that the only justification for the admission purpose is making you available for removal.  I do accept that that is one consequence of the admission purpose, but there are other dimensions to it that I will come to.

EDELMAN J:   Which justify detention?

MR DONAGHUE:   Which justify detention.  I think my friend must accept that too, because he says during the initial period when you are making inquiries – he tries to distinguish that in some way, but during that early period we say, yes, it is justified.  But then also wrapped up within what your Honour puts to me – and I will develop this – is this notion that underpins our friends’ case, that you can know with some level of certainty at an early stage in the process that there is some group of identified people who it is inevitable who will be released, and we just do not accept that factual premise.  It depends on inquiries that, under the structure of the Act, you do not even make until later down the statutory path.

I see the time, your Honour.  Is that convenient?

GAGELER CJ:   Yes, it is a convenient time to take the morning adjournment, thank you.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

MR DONAGHUE:   Your Honours, what I propose to do is to structure my submission as follows.  First, to make some quite brief points about the relevant provisions of the Migration Act, which I know are familiar territory.  Second, to take your Honours again, quite briefly I hope, to NZYQ and ASF17 to make good the point I made in opening and, having done that, to grapple with the more detailed version of the answers that I have given already, in particular to Justice Edelman, about the purposes advanced by the admissions process insofar as they are distinct from keeping someone available for removal, and the way the legitimate purposes fit together with the scheme of the Migration Act.  That will be the bulk of my submissions, and then I will make some submissions quite briefly at the end about the “means” fit issue that Mr Hooke addressed. 

Can I ask your Honours to take up the Act – the Migration Act.  The essential point that I am making, which is reflected in our outline in paragraph 2, is that the Act sets up a regime where it authorises and requires detention during two distinct phases referrable to two distinct legitimate and non‑punitive purposes.  Those two purposes were recognised in NZYQ in a paragraph I will come to, but we quoted the relevant line in our outline at paragraph 2:  “removing an alien from Australia or enabling an application by the alien for permission to remain in Australia to be made and considered”.  You see those two purposes reflected in distinct parts of the Act.  As to the processing purpose, in section 47(1), requires:

The Minister is to consider a valid application for a visa.

That requirement to consider the application continues, under subparagraph (2), either until:

(a)      the application is withdrawn; or

(b)      the Minister grants or refuses to grant the visa –

Subject to the relevant qualification.  Section 65 is then the decision provision which imposes a binary requirement where the Minister, having considered “a valid application” must, “if satisfied” the criteria are met, “grant the visa” and “if not so satisfied”, must “refuse to grant the visa”.

There used to be in the Act, a statutory time limit for the making of decisions on protection visas that is not there anymore, but this Court has held, in a number of cases – S297 is one, AJL20 is another – that there is an enforceable duty to make a decision on a visa application within a reasonable time, enforceable by a mandamus.

Section 65 directs the Minister to considering the criteria prescribed by the Act or by the regulations.  Relevantly, the criteria – I will not take your Honours to it – for a protection visa in section 36(2)(a) include meeting the definition of a refugee, and in section 36(2)(aa), meeting what I call the complementary protection criteria.  That is, fearing serious harm on various other grounds.  Here, there was a direction from the Tribunal that both applicants met the criterion in 36(2)(aa). 

There is – and my friend adverted to this.  If your Honours could turn to this, which is 36A – in the reprint I am working from, it is on page 80 – there is a mandated sequence for considering the two criteria I have just mentioned in advance of others.  So, 36A(1) requires the Minister to:

consider and make a record of whether the Minister is satisfied of . . .

(a)     . . . 36(2)(a)

(b)     . . . 36(2)(aa) –

And:

(i). . . 36(2)(a) with respect to a country but does not satisfy the criterion in 36(1C) –

Subsection 36(1C) is that the person:

(a)is a danger to Australia’s security; or

(b)having been convicted . . . of a particularly serious crime –

The main reason I am asking your Honours to note that is that the Minister has to “make a record” of such a finding and has to do so – you see this in subsection (2):

(a)before deciding whether to grant or refuse to grant the visa; and

(b)before considering whether the non‑citizen satisfies any other criteria –

That operates together with 197C to make sure that even if a person is ultimately going to be refused a visa, there is a record made within the statutory process of whether or not the person is a person with respect to whom Australia has protection obligations.  I will come to 197C shortly.

STEWARD J:   This was introduced to overcome one of the Full Court decisions.

MR DONAGHUE:   This particular section, yes.

STEWARD J:   I just cannot – do you remember the name?

MR DONAGHUE:   I cannot remember the name, though I will see if we can turn that up.

STEWARD J:   Thank you.

MR DONAGHUE:   There were directions – ministerial directions, I think – that suggested it should not be done that way, but it used to be possible to refuse a protection visa on character grounds, for example, so you would never know whether the person was owed protection or not, and that then meant that 197C did not fit neatly into the scheme.

Of course, if a visa is granted, then detention ends, and you see that in 196 of the Act, 196(1)(c), the grant of a visa is one of the mandated end points for the mandatory detention that the scheme creates.  So, if you are a person who is detained during the processing period and you think – correctly – that the Department is taking too long, you can seek mandamus to require a decision to be made, which will then either result in a grant of the visa that ends your detention and you are released, or that brings the processing phase to an end by the refusal of your visa, and then the purpose will shift to the removal purpose.  That is how we submit the scheme works.

The second phase – as what I have just said foreshadows – is the removal phase, which, in our submission, arises once an application is refused and that refusal has been finally determined, according to the definition I will come to in a moment, or if the non‑citizen requests removal under 198(1), which I will also come to in a moment. 

In the event of removal, you reach a different mandatory end point of detention, which is that provided in 196(1)(a), which says detention must end upon removal.  In our submission, it is only people who are detained during the removal phase, for the purpose of removal, to whom the NZYQ limit applies in its terms and in its rationale, and I will come to NZYQ to develop that in a moment. 

If your Honours could turn to section 198 of the Act, the removal power.  I have mentioned 198(1) a few times: 

An officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed.

There is authority to the effect that that does not allow you to pick and choose amongst countries, it just has to be a request for removal specifically.  But, of course, where 197C applies, it will limit that removal obligation.  The other relevant removal power is in subsection (6): 

An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:

(a)the non-citizen is a detainee; and

(b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c)one of the following applies:

(i)the grant of the visa has been refused and the application has been finally granted –

It has to be both “refused” and “finally determined”.  What does “finally determined” mean?  It is defined in section 5(9) of the Act on page 33 of the reprint, relevantly, to mean: 

(a)a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7 –

Part 7 is the regime that governs merits reviews of protection visa decisions.  So, it is only once either a merits review proceeding is complete, or: 

the period within which such a review could be instituted has ended without a review having been instituted –

that the visa application is finally determined, so you stay within the admissions phase.  While it is possible that there might be a different decision made in the merits, one thing that might happen is the Tribunal might send the application back to a delegate – which is what happened in these cases – with a direction that particular criteria are satisfied, and then the task is still on the Department to address the other criteria and to make a decision one way or the other.  But until the application is finally determined, there is no power to remove under section 198(6).

Applying those provisions to these applicants, DBD24, having been to the Tribunal, had the matter sent back to a delegate with the direction that he met the 36(2) criteria, was then granted the visa that he had sought.  The removal power in 198 was never engaged at any time with respect to him.  He was detained during the admission period and then he got the visa he sought.

In the case of CZA19, again following the Tribunal’s direction, the matter went back to the Department to consider other criteria.  Our friends ask the Court to infer that there is nothing really remaining to be done after the protection finding has been made.  Your Honours can see in the book in relation to CZA19 – the cause removed book at 78, paragraph 32 – that the Department became aware of very significant past criminal activity by CZA19 during the processing period that followed the making of the protection finding with respect to him.

Ultimately, following the remittal from the Tribunal, he was refused the visa that he sought.  He was refused on grounds that he had been convicted of a particular serious offence that enlivened 36(1C)(b) of the Act.  I will not take your Honours through the detail of it, but a decision on that ground is not reviewable under Part 7 – it is reviewable in the AAT but under different provisions.  So, once he was refused his visa he was immediately finally determined.  Therefore, section 198 would have been enlivened from that point in relation to him, but he was granted a bridging visa at the same time.  He ceased to be a person who was detained, and so 198(6) did not apply to him for that reason, so, again, he was never a person who could have been removed under 198.

The other provision I should mention just before leaving the Act is 197C.  Can I ask your Honours to turn to that, and to make these brief points about it.  Section 197C(3) disapplies – well, “Despite subsections (1) and (2) – so (1) and (2) are provisions that, generally speaking, make non‑refoulement obligations irrelevant to the operation of 198, but they do not have that effect where subsection (3) applies.  Noting the opening words of (3), its legal effect is that:

section 198 does not require or authorise an officer to remove –

So, it is a displacement of the removal duty under 198 and so, of course, if that duty is not enlivened for other reasons, 197C does not do anything.  It only has effect once there is a removal power.  That is the first point.

The second point is that, in its terms, its legal operation does not turn upon the making of the protection finding by itself.  You see in (3)(a) that it only displaces 198 where:

the non‑citizen has made a valid application for a protection visa that has been finally determined –

That makes sense in light of the provisions your Honours have just seen because usually there is no removal power until the visa application has been finally determined.  But it is only once you have a decision one way or the other on the visa application that 197C has any legal effect.  That is the second point.

You then have a series of definitions of “protection finding” in subsections (4) through to (7), and I do not need to take your Honours through the detail of them.  But it is sufficient to note in subsection (4):

a protection finding is made for a non‑citizen with respect to a country . . . in relation to the non‑citizen under section 36A that the Minister is satisfied as mentioned –

in one of those various paragraphs which include 36(2)(a) and 36(2)(aa).  The point is that 197C(3) and 36A are both expressed in terms that refer to the record being made by the Minister.  I mention that because our friends – and we, in part, share responsibility for this in the DBD24 Case – treat the finding of the Tribunal as if it is the protection finding under 197C(3), and it is not.  It is only when the Minister makes the record conformably with the direction given by the Tribunal that a protection finding has been made. 

Hard to see in practical terms how that would matter, given that it is only at the end of the protection visa process anyway when the decision has been finally determined that the section would have legal effect, but I make the point here because our friends are asking your Honours to reach back into the past by reference to the time when a Tribunal made a finding and to say, well, that was a step that enlivened 197C that then has significance for the validity of detention.  Within the framework of these provisions, that is just not right.  Section 197C did not do anything legally until the final determination of the protection visa application.

So, in the circumstances of this case, 197C(3) did not do anything, because it could only have operated once the visa applications were finally determined, and that is the end point of the date range your Honours are concerned with.  It could only have disapplied section 198, and section 198 never applied to these applicants during the period that your Honours are concerned with, and in any event, to pick up the point your Honour Justice Jagot made, even if it had applied, it could only have applied to prevent removal to the particular countries to which the protection finding related, and not to the rest of the world.  That is all I wanted to say about the Act.

Can I ask your Honours to turn to NZYQ (2023) 97 ALJR 1005, which is volume 4, tab 32, and when your Honours have it, to start at paragraph [4], just to make the factual position that your Honours were dealing with clear. You can see recorded in paragraph [4], about five lines down in that paragraph, that there had been a final determination of the visa application made by NZYQ such that 198(6) was enlivened and, a few lines further on, there had also been a request that engaged 198(1). So, there were two separate removal powers applicable in the case of NZYQ.

In the next paragraph, paragraph [5], about four lines down, you can see that there was a finding that engaged 197C(3) with respect to Myanmar, which meant that the two removal powers identified in the previous paragraphs did not require removal to that particular place but, as you will recall from the argument, there was argument about whether there was a real prospect of removal to other places, including the United States, which rather highlights the point that the protection finding does not equate to the conclusion that NZYQ applies.

In paragraph [13], over the page, your Honours return to section 198, summarise the effect of 198(1) and 198(6), and then say, about 10 lines up from the bottom:

Each of those duties would be compellable by a writ of mandamus under s 75(v) of the Constitution were removal of the plaintiff reasonably practicable.  But a writ of mandamus compelling performance of those duties would be futile if there were no real prospect of removal becoming practicable in the reasonably foreseeable future –

So, it was the futility of attempting to enforce duties that could not be enforced that was the premise for much of the reasoning that follows, and your Honours return to that theme later.

Jumping forward a few pages to paragraph [30], the Court quotes a seminal passage from Lim which includes, in determining or identifying the permissible purposes of immigration detention, from the last line of the quote on page 1013, one of the purposes is:

what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered.

And then, in the next paragraph, explaining what should be taken from Lim:

insistence in Lim that the detention of an alien must be limited to a period that is “reasonably capable of being seen as necessary” for one or other of two legitimate and non‑punitive purposes –

one being:

removing the alien from Australia –

the other being:

enabling an application by the alien for permission to remain in Australia to be made and considered –

That is an express statement, in our submission, that both of those purposes are legitimate and non‑punitive purposes – and that there are two, not one.  Your Honours – I will not take you to it – in paragraph [48] again refer to two legitimate purposes.  In paragraph [40], over the page, the Court, explaining why Al‑Kateb should be overruled, say that: 

The purpose of the law . . . is that which the law is designed to achieve in fact.  For an identified legislative objective to amount to a legitimate and non-punitive purpose, the legislative objective must be capable of being achieved in fact.

So, again, it must be possible to achieve the purpose; it cannot be futile.  Then, paragraph [46], applying these principles: 

Translated to the case at hand, if the only purposes peculiarly capable of justifying executive detention of an alien are, as was said in Lim, removal from Australia or enabling an application for permission to remain in Australia to be made and considered, then the absence of any real prospect of achieving removal of the alien from Australia in the reasonably foreseeable future refutes the existence of the first of those purposes.

In our submission, it is hard reasonably to read that passage as anything other than carefully distinguishing between the two permissible purposes and identifying the NZYQ limit as applicable only to one of them, the removal purpose.  That is how we submit that that passage should properly be read. 

While your Honours are here, can I also ask you to turn over the page, and note paragraph [50], which is an endorsement by six of your Honours of something said by Chief Justice Gleeson in Woolley.  Our friend refers to this paragraph as if it supports his argument, that detention is not necessary for the purpose of admissions because it is possible to consider a visa application while the person is not in detention.  That is not what Chief Justice Gleeson is saying in this passage.  Indeed, as you can see at the start: 

Plainly [the plurality in Lim] did not contemplate that it is essential for a person to be in custody in order to make an application for an entry permit, or that it is only possible for the Executive to consider such an application while the applicant is in custody.

The admissions purpose is not about that.  It is not saying it is permissible because people need to be in detention for that, they were referring to the time necessarily involved in receiving, investigating and determining an application for an entry permit.

That is consistent with what your Honours said back in paragraph [31] of this case, but also in numerous cases, that what needs to be reasonably necessary and able to be enforced, subject to enforceable duties, is the time taken to achieve the purpose.  The inquiry is not as to whether there are ways of achieving the admission purpose other than detention.

Certainly, aspects of the submissions that you have heard from our friends this morning sounded like an attack on the mandatory detention regime that was upheld in Lim and has applied ever since.  Many of the submissions sounded like, detention for the purposes of admission cannot be justified because there are ways of dealing with people who are seeking a visa that are less onerous than detention.

Your Honour the Chief Justice asked my friend, are you putting it that widely, and he said, no.  But the argument moved in and out of levels of generality, whenever the width of the proposition – the logic of the proposition supports wider results, and our friend said, no, we are putting only a narrow case.  But, in my submission, you have not been given any workable, or stable, criteria that would all your Honours to conclude that a detention for the admission purpose is permissible, up to a point but not permissible thereafter, because the prospects of removal or otherwise do not, in our submission, shed any useful light on whether only a reasonable time is being taken to process a visa application.

GLEESON J:   Mr Donoghue, is the end of that passage in Woolley implicitly endorsing a detention for segregation purpose?

MR DONAGHUE:   Not for segregation by itself, your Honour.  It is accepting that it is legitimate to keep a non‑citizen, who is seeking submission, out of the community for a period of time while their application is being considered.  Without wanting to jump too far ahead, to give your Honours an example of when that might be evidently desirable, one of the kinds of criteria that are considered a health criteria – if you are considering, or satisfying yourself, that a person does not a communicable disease that is not present in the Australian community, you need to do that before you release the person into the community or it will be much harder to manage the ramifications of that.

So, it is endorsing keeping the person out of the community for a period of time.  In our submission, the way the authorities of this Court limit that is to say, you have to make the decision within a reasonable time and as long as you do that, the detention will not be punitive.

EDELMAN J:   That is something different, though, from a purpose of allowing an application for an entry permit.  That is a purpose of ensuring that communicable diseases are not spread in the community, or you might say the same with investigation of a criminal record, or other aspects.  They are purposes that might justify a period of detention.  But the bit I am struggling with is how, by itself, the processing of an entry permit can have anything to do with detention.

MR DONAGHUE:   Your Honour, in my submission, one cannot separate the “by itself” from the things that are being looked at when you are considering the entry permit.  So, you are looking at character, you are looking at security, you are looking at health.  They are the “things”.  You are also looking – I accept other criteria., like protection criteria – but many of the things that you are looking at are things that do justify keeping someone out of the community, as long as you do it reasonably, within a reasonable period of time.

EDELMAN J:   So, the purpose of processing an entry permit application is shorthand for a purpose that includes consideration of threats or hazards to the community.

MR DONAGHUE:   It does include that, yes.  It includes all of the things that a sovereign state is entitled to take into account in making a decision to admit or not, and in the conditions or criteria for that admission – because the other things that, perhaps, our friends’ case elides, is that if someone comes to Australia and says, I would like to have a permanent visa or a visa that allows me to live and work, and come and go, in an unrestricted way over a period of five years, then they will need to meet the criteria for that visa.  What they get if they meet the criteria and the get the visa is quite different from what they might get if they are released into the community on an NZYQ basis. 

So, there is not a binary, entering into the community or not entering into the community.  There is a question of the conditions and whether or not – what conditions should be imposed requires the Executive to have time to think through what the appropriate framework is for the entry of a particular non‑citizen.  So, all of that, in our submission, is wrapped up in the admission purpose.

Can I ask your Honours to note the ratio passage in NZYQ at paragraph [55] – this is one of the passages I referred to in opening – because your Honours introduce the constitutional limit as:

expressing the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia –

That is, the admission process purpose is over, in our submission:

as coming to an end when there is no real prospect of removal . . . becoming practicable in the reasonably foreseeable future –

That formulation was then precisely mirrored as few months later in ASF17, and I will not – can your Honours turn it up, but I will not spend long there.  It is volume 7, tab 23, ASF17 v Commonwealth (2024) 98 ALJR 782. At paragraph [31] under the heading “The constitutional limitation”, your Honours say:

The constitutional limitation unanimously expressed in NZYQ in terms 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 –

So, really, our short point is these applicants in the periods your Honours are looking at had not failed to obtain permission to remain in Australia.  That was still underway.  DBD24 was granted that permission at the end.  CZA19 was also granted permission, albeit for as different visa than the one he had sought once that was refused.  In their terms they do not fall within that limit.

I should also ask your Honours to note both [33] and [35].  So, in [33], explaining the precise question that arose, the precise question was identified as:

whether there is a real prospect of removal . . . becoming practicable in the reasonably foreseeable future is directed is whether the detention of the alien under ss 189(1) and 196(1) of the Act is justified –

I will not read it all, but skipping down a few lines:

for the identified statutory purpose of removing the alien from Australia under s 198(1) or s 198(6) –

Then in paragraph [35]:

For the removal of an alien –

under those provisions:

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.

Again, we say for the whole of the period now in question, it was not permissible under the Act to remove the applicants to anywhere.  There was no power under the Act to remove the applicants to anywhere, and yet your Honours are being asked to say because there was no – even though there was no power to remove them, the impracticability of removing them meant that they could not be detained.  In our submission, that is a very substantial extension of what your Honours have held in those two cases.

Now, can I come to the reasons why we submit that your Honours should not extend the reasoning in those authorities, and why we submit that the logic that led to the constitutional limitation in NZYQ cannot be extended.  We say there are two central problems, and I will develop each of them.  The first is that the argument wrongly assumes that the absence of a real prospect of removal refutes the admission purpose – we say it does not, for reasons I will come to.  The second problem is that the argument wrongly assumes that it is necessary and possible to determine whether there is a real prospect of removal in the foreseeable future even though the Act does not yet confer power or impose any duty with respect to removal, and so officers under the Act will not yet have made inquires directed to a possible removal that would bear upon the answer to the NZYQ question.

Can I deal first with the admission purpose not refuted point.  We submit that, in addition to the point your Honour Justice Edelman has put to me about keeping an alien available for removal if their application is refused, detention for the purposes of admission also – and I have foreshadowed this – serves the purpose of ensuring that the applicant for admission is available to answer any questions that are relevant to the admission criteria.  So, it allows detention to identify the identity of the person, their nationality, their criminal history, security risks that they might pose, health risks that they might pose, and it allows those issues to be run down before the person enters the community, thereby allowing appropriate steps to be taken to mitigate any risks that they might identify.

I have already given the health example in answer to Justice Gleeson; for security or criminal history, there is the possibility of community safety order‑type things being done; there is the possibility of conditions under bridging visas of various kinds being appropriate, none of which can be assessed before the relevant inquiries have been undertaken.  In our submission, whether or not a person is ultimately admitted, the terms upon which they are admitted are of proper legitimate interest to the Executive and justifies a period – only a reasonable period, but justifies a period of detention.

The other second way in which the admission purpose exists independently of the benefit of keeping a person – a non‑citizen – available for removal if refused is that it enhances the integrity of the visa regime by ensuring that applicants for admission not only have to participate in and are readily available to participate in answering any inquiries that go to their admission, but cannot just sidestep the system by absconding into the community while the process is under way.

To make concrete that possibility, that is the very thing that happened in DBD24’s case.  Very shortly after his arrival, he was released into the community on a residence determination, and he vanished for eight years until he was subsequently apprehended.  It is, in our submission, important to allow the Executive, while it is going through the processes of deciding whether to admit and the terms of admission, to ensure that that process cannot just be avoided.

GAGELER CJ:   Mr Solicitor, the cases, including the passage in Woolley that you drew attention to as quoted in NZYQ, tend to put the admission purpose at a much higher level rather than the pragmatic or practical level that you have just been addressing.  It is more at the level of saying, here you have someone who has no right to enter Australia who is seeking permission to enter Australia – that is what a visa is – and while the request for a permission is being considered, the person can be prevented from entering Australia.

MR DONAGHUE:   I entirely accept that, your Honour, and we do put that.  I suppose what I am seeking to do is meet what I understand one strand of the argument put against us, which is that that rationale does not work for people who, in some way that I am about to come to, can be determined to be people who are not going to be admitted at the end of the process.  It said, while permission is sought to enter, you cannot detain to keep separate if permission is ultimately going to be granted.

GAGELER CJ:   It is not really permission, is it.  It is not permission in the same sense.  It is not the NZYQ limit.  It is not a visa.

MR DONAGHUE:   It is not a visa, and it is not permission in the same sense.  That is certainly true, and that is partly what I was trying to bring out when I said the conditions on admission may be very different.  If you have a visa that permits you to stay and to come and go, you are in a very different situation from an NZYQ person who, if they ever leave Australia, will not be allowed to return.  There is a very material difference.  I certainly agree with what your Honour puts to me and rely upon what is said in paragraph [26] as endorsed in NZYQ as to the justification for the admission purpose.  I was really seeking to add or supplement that in the way that I just did.  The other point that – the second point ‑ ‑ ‑

BEECH‑JONES J:   Just on that, I think with one of these applicants, it might be fair to characterise him – that is, DBD24 – as never having been granted permission to enter Australia.  It is not quite so clear for CZA19, though, they have, at some point, been granted permission.

MR DONAGHUE:   I think he was arrested at the airport with drugs, so he was granted permission to come – I think as a tourist, I stand to be corrected – as a tourist, and on his arrival, he was arrested.

BEECH‑JONES J:   So, his case is, can he remain?

MR DONAGHUE:   Yes.

BEECH‑JONES J:   Does that make any difference?

MR DONAGHUE:   In my submission, no, because he is seeking – by the visa he sought, he sought admission on a different basis – admission to the community on a different basis, not physical admission into the country.

The second point that we seek to make about why your Honours should not extend NZYQ is that our friends seek to have your Honours treat this case as a very narrow case by saying it is only about people whose release is inevitable.  But as much of the questioning this morning, in our respectful submission, bore out, it is really not quite as simple as that, and if NZYQ is to be extended into the admission period, then it becomes important to identify the limits of that extension and why it does not apply to people in a significantly wider cohort than the cohort of people who have a protection finding, particularly when one bears in mind that, as a matter of law, the protection finding does not do the work that our friends seek to attribute to it because it does not bite, under the statute, until the visa application is finally determined.

In our submission, our friends’ references to the onus of proof are instructive in this regard, because what they say, to a significant extent, is right.  Once an evidential burden has been discharged, the Commonwealth will have the onus of showing the validity of detention.  And if NZYQ extends beyond the removal purpose into the period of admission, in our submission, it will follow that from the moment of detention of anyone, any unlawful non‑citizen, they could bring an application for habeas and say to the Commonwealth, you show that there is a real prospect of my removal in the reasonably foreseeable future.

Now, a protection finding might bear on that analysis, because if one has been made, it might tend to show you cannot remove to the country to which that finding relates.  But if the person has only just arrived, we might not even know who they are yet, and it certainly will not be clear – there will not have been any inquiries made about the countries that might be prepared to receive them.

It may be that at the early stages in processing any claims that they might make about protection have not been evaluated.  So, the Commonwealth cannot know which countries are going to be permissible consistently with our international obligations, even leaving aside 197C.  So, there are investigations that the Commonwealth, in our submission, should reasonably be permitted to undertake as part of the admissions process but which will create a real problem for us in a situation where the Commonwealth bears the burden of proof in a habeas application if this constitutional limitation reaches right back to the start when one is engaging in an admission assessment, rather than a removal process.

In our submission, even though our friends kept trying to wind back their argument, you were never really given a stable legal reason why one can differentiate between people who have a protection finding under 197C and others.  In our submission, the 197C finding does nothing more than rule out one country.  It does not provide any basis to infer that there are no other countries, particularly at a point in time when there is no reason, in our submission, why officers should have been exploring that question because they were still deciding whether to admit the person.

So, to assume a person who has a protection finding that says they cannot go back to Poland, that person might have dual citizenship rights.  True, those rights may be relevant to a protection visa under 36(3), but why are we only talking about protection visas?  This legal principle – NZYQ is not limited to people who have protection visas, it applies to who cannot be removed for any other reason, as well.  If there are health reasons why someone cannot be removed in the reasonably foreseeable future, they will benefit from NZYQ.  So, there might be dual citizens, there might be family members who could sponsor the person to come to another country, there might be third countries that are prepared to resettle for other reasons.  None of that will have been explored under the statutory framework before there is a power or duty to remove.

In our submission, your Honours should not proceed from the factual foundation that you can tell that it is inevitable that someone will have to be released under NZYQ before any removal power has been enlivened.  If somebody wants to test it – if someone really says, I cannot be removed and I should be released under NZYQ, they can either seek mandamus to force a visa decision to be made within a reasonable time and then they will be in the NZYQ cohort, or they can request removal under 198(1).  Of course, if they do that, and it turns out that they can be removed, then they will be removed and that might have ramifications for their visa application.  But our friends are asking your Honours to say, even when a person has not enlivened a removal power that they could have enlivened, they still get the benefit of the NZYQ limit.  In our submission, your Honours should not accept that.

Now, can I ask your Honours to note one other decision of this Court on the relationship between the admission and removal purpose, which is Plaintiff M76/2013 v Minister for Immigration (2013) 251 CLR 322. It is in volume 3, tab 18, if I could ask your Honours to turn it up. In our submission, this case is useful because of the light it sheds on the relationship between what is now the NZYQ limit and the admission purpose.  It does that for these reasons, if I can just get to your Honours what was going on.

M76 had been determined to be a refugee through a non‑statutory refugee status assessment process, but that assessment had not resulted in her case being referred for a bar‑lift under 46A because ASIO had issued an adverse security assessment.  The Department had not been able to identify any third country resettlement options, and so M76 was stuck with an adverse security assessment, causing no bar‑lift and nowhere to which she could be removed.

The challenge that was brought was brought on two bases:  first, it was one of the line of cases in which an invitation was made to the Court to overrule Al‑Kateb, and to order her – I am not sure, actually, if M76 was a he or a she, I thought it might be a she, from memory – to order her removal.  The second basis of the argument was an administrative law challenge to the Department’s failure to refer her to the Minister.

It was that second challenge that succeeded in M76, and the point that I am seeking to draw from the case is the ramifications that that success had for the Court’s attitude to whether or not it needed to consider the Al‑Kateb challenge.  Can I ask your Honours to go to the joint reasons of Justices Crennan, Bell and Gageler at paragraph 135, which is a couple of paragraphs into the judgment.  Their Honours said:

It follows from those answers to Questions 3 and 4 –

which was the admin law challenge:

that the Minister has yet to complete his consideration under s 46A of the Act as to whether or not to lift the bar so as to allow the plaintiff to apply for a visa.  Accordingly, the plaintiff’s present detention can and should be held to be validly authorised by ss 189 and 196 of the Act.  Her present detention is for the purpose of completing statutory processes, which will result in a determination of whether she is or is not to be granted permission to remain in Australia, and for the purpose of removing her if that permission is not granted.

So, that is your Honour Justice Edelman’s point.  Then, 136:

On that basis, we would answer “Yes” to Question 1 without reaching the constitutional issue determined in Al‑Kateb –

And your Honours then went on to explain that in the paragraphs that follow.  So, 138 summarises the holding in Lim; 139 is one of the cases that I mentioned earlier about the relevant question being about the duration:

The necessity referred to in that holding in Lim is not that detention itself be necessary for the purposes of the identified administrative process but that the period of detention be limited to –

what is necessary.  Paragraphs 138 and 139 were endorsed by six judges in the joint judgment in M96A at paragraph 21.  The point is that there have to be enforceable temporal limits, it is not necessary to justify that detention itself. 

BEECH-JONES J:   So, Mr Solicitor, what was the six judges – where did you say that was endorsed? 

MR DONAGHUE:   Sorry, in Plaintiff M96A, which I think is in the materials, at paragraph 21.  So, I have diverted there because it is relevant to that point.  Coming back to the point I was seeking to extract from the case about the relationship between purposes, if you go over the page to paragraph 141, there is a reference to Al‑Kateb and it is pointed out that: 

The minority neither advanced nor supported a proposition, contrary to Lim, that it is unlawful to detain in custody a non‑citizen while administrative processes capable of resulting in admission to Australia have not been exhausted.

The issue in Al-Kateb is identified as having applied when those processes had been exhausted.  Then in 146, it is explained that: 

First, because the answers –

on the administrative law challenge, it meant: 

that the steps to be taken . . . under and for the purposes of the RSA process have not been completed, the administrative processes capable of resulting in the plaintiff being granted permission . . . have not yet been exhausted.

At the end of that paragraph, the same was true in M47, which is another case where the Court did not reach Al‑Kateb.  The consequence was that it was not necessary to consider what is now the NZYQ limit because admission processes were still underway.  I will not take your Honours to it, but Chief Justice French’s reasons at 30 to 31 are to the same effect.

So, this is a case that makes no sense in the way the Court dealt with the Al‑Kateb issues if the limit applies indifferently, as between people who are being considered for the purpose of admission, and people who will be considered for the purpose of removal.

EDELMAN J:   I am not sure that paragraph 139 of Plaintiff M76 quite means what you are submitting.  Certainly, in M96A, the issue was not the purpose of detention itself, it was the temporal issue.  It could not be the case, could it, that any purpose at all could justify detention as long as the period of detention was a reasonable period of time?

MR DONAGHUE:   No, your Honour, not any purpose at all.  We are here within the framework of the purposes accepted in Lim – admission and removal – but the point was that where Parliament chooses to say, we will impose a mandatory detention regime for the purpose of admission, the inquiry in Lim is not an inquiry as to that judgment whether you should have done something less than detention, it should have been detention only for people who are a security risk, or people who are a flight risk, or matters of that kind.  The Lim inquiry is much narrower:  is the detention that Parliament has authorised for that permissible purpose temporally constrained so it is no longer than is reasonable?

EDELMAN J:   That may just collapse back into your earlier point, because it may simply be the fact that it is reasonably capable of being seen as necessary for all of those purposes in a broad sense.

MR DONAGHUE:   The various admissions purposes.

EDELMAN J:   Yes.

MR DONAGHUE:   But what it does not allow, in our ‑ ‑ ‑

EDELMAN J:   That is why there is no further inquiry, because at the relevant level of generality, the safety, security, health purposes will justify detention.

MR DONAGHUE:   That may be so, your Honour.  That is not how it has been articulated, but that might be what is underlying ‑ ‑ ‑

EDELMAN J:   But as you say, it cannot be taken to mean that any administrative purpose could justify detention.

MR DONAGHUE:   No.

EDELMAN J:   It is referring to what you have now described as the purposes of admission.

MR DONAGHUE:   Indeed, it is definitely doing that.  In my submission, this passage is talking about what it is that needs to be justified at what is now the second stage of the test in NZYQ.  Our friends – and you see particularly clearly in paragraph 12 of their oral outline – identify a whole series of things that they identify as reasons why the detention itself is not justified rather than the duration of the detention is not justified.  In our submission, they are inviting your Honours to undertake the very kind of inquiry as to the necessity for detention that the first line in paragraph 139 of M76 denies – and that, in fact, Lim itself denies, because Lim upheld a mandatory detention regime for all applicants for – actually no, I withdraw that – Lim itself was concerned with a narrower – but Lim itself concerned statutory precursors that apply to everyone.  And, indeed, in a passage that your Honours, I think, have not been shown ‑ ‑ ‑

BEECH‑JONES J:   Mr Solicitor, can I ask you this.  You accept that there is a limit on the period of detention for the purposes of determining whether to admit a person, and that limit is the time spoken of in the first sentence of 139.  Is that right?

MR DONAGHUE:   Yes, that is correct.  In a number of cases – and it is sufficient for me to give your Honours the reference to AJL20, although I think in M96A there is probably another – there was argument about whether that limit as an enforceable limit is sufficient to ensure that these provisions align with Chapter III, and the Court held that they were.  They

were referring to as hedging duties and it said there are sufficient hedging duties in the relevant statutory provisions to ensure that the whole framework is consistent with the legitimate purpose.

Really, I think almost the last point I want to make is that in the passage immediately after the passage in Woolley that was quoted in NZYQ that I showed your Honours earlier, which was paragraph 26, Chief Justice Gleeson went on in paragraph 27 to say this – if your Honours wish to go to it, it is volume 3, tab 21.  It is paragraph 27, and his Honour said:

It was not suggested in Chu Kheng Lim, and would be inconsistent with the decision in that case, that the validity of mandatory administrative detention of aliens seeking visas, pending resolution of the application process, depends upon evidence, case by case, that the applicant is likely to abscond, or upon the individual hardship involved in detention.  The legislation under challenge in Chu Kheng Lim dealt with what are now called unlawful non‑citizens, who had entered the country without permission, as a class.

So, his Honour’s reasoning is directly inconsistent with the kind of argument your Honours see in paragraph 12 of our friends’ outline.  I think, your Honours, that – would you pardon me for a moment – I am assisted in answering your Honour Justice Steward’s question earlier about the Federal Court case.  It is BCR v Minister for Immigration (2017) 248 FCR 456.

STEWARD J:   Thank you.

MR DONAGHUE:   Unless your Honours have any further questions, those are our submissions.

GAGELER CJ:   Thank you, Mr Solicitor.  Mr Hooke.

MR HOOKE:   Your Honours, as was said in our written submissions in reply, NZYQ is authority for what it decided, not for what it did not decide.  Our learned friends focus on paragraph [46], and the negativing of legitimacy of detention during the removal phase does not stand as authority for the proposition that it does not also negate the legitimacy of detention during the processing phase in the circumstances in which we posit.  That paragraph does not assist the respondents, nor does paragraph [31] of ASF17 which also, of course, only considered the removal purpose post‑refusal of the visa application.

I said to your Honours very early on in chief that one of the difficulties with the Commonwealth’s submissions in this case was that they conflate the power to remove with the removability of a person, objectively ascertained.  That, with respect, has become pellucid through our learned friend’s submissions.  It is not to the point that the power to remove is not engaged.  The question is whether it is reasonably practicable to remove that person in the foreseeable future, and it is the latter that is the objectively ascertainable lack of removability that triggers the constitutional limitation for which we contend.

The point is perhaps well illustrated by our learned friend’s focus on section 197C and the proposition that, first of all, there is no protection finding per se until the Minister makes an entry in the record, and secondly, that section 197C is not actually engaged until the removal process is engaged.  That proposition, with respect, illustrates our point about conflation, because the question we would pose is this, and that is if the visa application is to be refused and the removal power engaged, and 197C engaged, and the removal purpose cannot be taken through to fulfilment, then that engages what we say would be the constitutional limit arising out of the – I will call it “protection finding”, even if that be taking a step ahead.  As our learned friend concedes, it is difficult to see how there could be any practicable difference, whether the Minister has physically made the entry in the record or not.

The floodgates argument that our learned friend advances in relation to anyone who makes an application for a visa being able to put on a habeas application is a straw person.  Before any onus passes to the Commonwealth on a habeas application, the applicant would first have to establish a prima facie basis for thinking that the detention was unlawful.  If it arises immediately after the application is made, it is going nowhere; if it arises in circumstances where the Commonwealth does not know the identity of the person, it is going nowhere; if it arises at a time when the Commonwealth is still making legitimate inquiries – one of our learned friend’s examples was in relation to claims for protection that it has not been able to identify – it is going nowhere, apart from which, of course, there will not have been a protection finding.

EDELMAN J:   Do you also accept that it will go nowhere while the Commonwealth is making inquiries as to health, security, criminal record and so on? 

MR HOOKE:   It depends.  If one has reached the point where there is a protection finding, and where there is no evidence of any other place to which the person might be removed, then we are in the territory of the cohort that we advocate.  It is the spectre that the Commonwealth throws up, of people making an application for a visa and walking into the Federal Court and making a habeas application, that in real world states of affairs – and that was one of the issues that your Honours dealt with comprehensively in NZYQ – one has to look at what the practicalities of the matter are.

As I said to your Honours in chief, we accept that there is a legitimate purpose for detention for the purpose of ascertaining those preliminary matters.  It does not mean that somebody has to be kept in detention while the Minister, fully seized at the facts, undertakes a consideration of them.  That is where issues of the onus then pass to the Commonwealth to justify its continued use of detention for a constitutionally permissible purpose that looms large.

A submission was attributed to me to the effect that nothing happens after protection findings are made.  That is not at all what I said.  What I said was that once non‑removability crystallises in the NZYQ sense, it is at or soon after that point that the legitimate purpose ceases to be one of detention.  Part of the reason we say that, and this is also part of what we say about tailoring the scheme to fit the purpose, is that it ceases to be onerous to require the Commonwealth, as an incident of its continuing detention of a person, having made a protection finding or had a direction to that effect from the Tribunal, to then look at the question of whether there is anywhere else that this person can go.

It is hardly an onerous proposition, and particularly so when one considers that the flipside of it is the very extreme detriment to the individual of a lack of liberty in the form of custody.  Against that fundamental value to the society in which we live, making an inquiry, having determined that protection is owed, as to whether there is anywhere else this person can be sent is a negligible imposition.  When one turns to questions of relativity and proportionality, the balance, in our respectful submission, is overwhelmingly in favour of that inquiry being made.

Our learned friend places some stock on mandamus being the answer to everything that we say.  It is not.  The way in which we have cast the case – that is, on the crystallisation of the NZYQ criterion – it may well be that the Minister still has matters that she or he wishes to consider before making a decision on the visa application.  That is accepted.  It does not mean that the person has to remain in custody while that happens.  For that reason, mandamus may not go if there is a genuine basis why a decision cannot be made in the immediate future, but it does not mean that the continued detention of the individual is justified, having regard to the circumstances applicable to them in terms of non‑removability.

So, mandamus is not the panacea.  It may be a remedy in some cases that will solve the problem, but it certainly will not be it all.  What your Honours are here concerned with is whether the Constitution of this country permits ongoing detention where release is inevitable and the only thing standing between this decision.

Our learned friend took your Honours to M76 and M96A, in particular the latter at paragraph 21.  Like the other cases upon which the Commonwealth relies, this case did not deal with the question that is before your Honours in these cases.  More importantly, your Honours will be aware that paragraph 21 has, as an underlying precept, the assumption that if the application for a visa was refused, then removal would result.  Not only that it was achievable but that it would result.

Once one strips away that assumption from what was said in paragraph 21 of M96A, the purpose of detention described in that paragraph falls away.  So, it does not – again, like the raft of other cases where our learned friends take contextual remarks from decisions in cases where this issue simply was not considered, nor does that case assist.

The other submission we wish to make in response to the floodgates arguments was this.  The difficulties that the Commonwealth asserts – being difficulties of proof – apart from being largely illusory, cannot in any event control the content of constitutional principle.  In our submission, there is, on the issue that we frame, no prospect that this case is going to pick up people on the margins or have any wider application than the way in which we put it.

Secondly, the asserted difficulties of proof are overstated.  This Court and the Commonwealth well know the categories of people who are ordinarily incapable of removal:  the stateless people, people with protection findings, and people with enduring health or capacity issues that impede removal.  With respect to all of those people, the fact that there is no real prospect of their removal will be just as apparent during visa processing as it would be after determination of a visa application.

Finally, leaving aside those clear categories, as I have said, someone who does not fall into those clear categories is going to have real difficulties in overcoming the first evidentiary hurdle or habeas application, and if the detainee could discharge that evidentiary onus, then the Commonwealth has a raft of resources available to it to discharge their onus by pointing to general evidence, country information not necessarily particular to the applicant, and evidence, if there be any, of success in removing similar people in the past after their applications for visas have been refused.

There are very practical solutions to all of the spectres that the Commonwealth put up against us.  None of them, in our respectful

submission, would justify not reading in a very narrow limitation of the kind for which we contend.

Those are our submissions.  May it please the Court.

GAGELER CJ:   Thank you, Mr Hooke.  The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.

AT 12.45 PM THE MATTER WAS ADJOURNED