David v Secretary of Department of Home Affairs
[2024] FedCFamC2G 178
•28 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
David v Secretary of Department of Home Affairs [2024] FedCFamC2G 178
File number(s): MLG 2236 of 2023 Judgment of: JUDGE MANSINI Date of judgment: 28 February 2024 Catchwords: MIGRATION – Application for writ of habeas corpus – where applicant has spent 5 years in immigration detention and not yet been removed to his country of origin, Iran – whether the constitutional limit on the power of executive detention under ss. 189 and 196 of the Migration Act 1958 (Cth) has been transgressed – where evidentiary burden rests with the respondents to justify a real prospect of applicant’s removal from Australia becoming practicable in the reasonably foreseeable future – application granted. Legislation: Australian Constitution ss.75
Australian Citizenship Act 2007 (Cth) ss.21
Australian Passports Act 2005 (Cth) ss.9
Australian Passports Determination 2015 (Cth) ss.6
Judiciary Act 1903 (Cth) ss.78B
Migration Act 1958 (Cth) ss.14, 29, 116, 189, 196, 198, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr.15.19
Cases cited: Al-Kateb v Godwin (2004) 219 CLR 562
ASF17 v Commonwealth of Australia [2024] FCA 7
Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794
AZC20 v Secretary, Department of Home Affairs (No 2) [2023] FCA 1497
B1 v B2 [2017] NSWDC 252
Gramophone Co Ltd v Magazine Holder Co (1911) 28 RPC 221
Koroitamana v The Commonwealth [2006] HCA 28
McHugh v Minister for Immigration [2020] FCAFC 223
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416
Mokhlis v Minister for Home Affairs (2020) 94 ALJR 843
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96
WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625
Division: Division 2 General Federal Law Number of paragraphs: 152 Date of last submission/s: 22 February 2024 Date of hearing: 30 January, 6, 8 and 20 February 2024 Place: Melbourne Counsel for the Applicant: Mr Albert with Dr Murphy Solicitor for the Applicant: Asylum Seeker Resource Centre Counsel for the Respondents: Mr Johnson with Mr Barrington Solicitor for the Respondents: Australian Government Solicitor Table of Corrections 5 March 2024 In the Appearances on the cover page in the field Counsel for the Applicant the words "with Dr Murphy" after "Mr Albert" have been added. ORDERS
MLG 2236 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAVID
Applicant
AND: SECRETARY OF DEPARTMENT OF HOME AFFAIRS
First Respondent
MINISTER FOR HOME AFFAIRS
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
28 FEBRUARY 2024
THE COURT ORDERS THAT:
1.A writ of habeas corpus issue requiring the Respondents to release the Applicant forthwith.
2.The application for mandatory injunctive relief be dismissed.
3.The matter be listed for case management on a date to be advised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSINI
IN SUMMARY
This is an application by an unlawful non-citizen who came to Australia from Iran, was refused an Australian visa and has been held in immigration detention for some 5 years. The application is for immediate release of the applicant, who will be called “David” (not his real name).
David was initially detained because he contravened a family violence intervention order. The family violence order resulted from an incident involving numerous counts of violence against his former domestic partner. David contravened the family violence order when he entered the locked home of the victim, doused the bedroom with petrol then assaulted her physically and sexually. For his crime, David was sentenced to and served 30 days’ imprisonment.
On account of his criminal behaviour, David’s temporary bridging visa was cancelled. With no bridging visa, David was not permitted to reside in the Australian community and instead was housed in immigration detention.
David had applied for a protection visa which was refused by the Administrative Appeals Tribunal on 8 May 2018 because he was not found to be owed protection by Australia. Since then, David has remained in immigration detention whilst exhausting avenues of appeal and requests for Ministerial intervention.
This man has no right to live or stay in Australia. Under Australian migration laws, he is to be removed from the country as soon as reasonably practicable.
The Minister for Home Affairs and Secretary of the Department say that the reason David can not be removed is because he has not cooperated by obtaining the necessary travel documents.
David’s case is that, with his cooperation or not, he has no real prospect of being removed from Australia anytime soon or at least as far into the future as this Court can reasonably foresee. He says the obstacles to his removal include that Iran will not accept him because he is stateless (not recognised as having a right to enter and remain there) and he is afraid to return because he will have to serve an 11 year prison sentence (having been convicted of insulting Iranian authorities and acting against the national security of Iran and for his membership of enemy groups).
David has not sought that the relevant officers be compelled to attend to their duty to remove him with more haste. Instead, he relies on the recent High Court of Australia decision in NZYQ (overruling an established constitutional principle as to the limits of executive power to detain) to ask this Court to require his immediate release into the Australian community.
This Court is bound to follow the High Court in NZYQ.
Applying that standard, there is insufficient evidence that David has a real prospect of being removed from Australia in the reasonably foreseeable future and David is required to be released immediately.
The outcome of this decision entitles David to live in the Australian community but does not entitle him to indefinite freedom. At any point, if the prospect of his removal from Australia becomes real in the reasonably foreseeable future, he can be re-detained.
An application of this kind does not empower the Court to consider the nature of David’s offending or risk to the Australian community. He has served his punishment for those offences. However his prior offending is objectively serious and the victim has not had cause to consider taking protective steps whilst he has remained in detention pending his removal from Australia. Steps will be taken to immediately notify the local police, so that they may notify the victim, of the fact of David’s release.
The reasons for this decision follow.
IN SUMMARY
[1]
PRELIMINARY MATTERS
[14]
Jurisdiction of this Court
[15]
Notice to Attorneys-General
[20]
LEGAL FRAMEWORK
[23]
ISSUES FOR DETERMINATION
[36]
THE FACTS
[38]
Notice to admit certain facts
[38]
David’s background
[45]
David’s time and attempts to stay in Australia
[52]
David’s removal from Australia
[60]
David is involuntary and has no travel document
[66]
David’s fear of returning to Iran
[73]
The significance of and process for obtaining a travel document
[77]
Past attempts made
[86]
Ongoing immigration matters
[89]
There are no third country options
[91]
DETERMINATION OF THE MATTERS IN ISSUE
[95]
Where does the onus lie?
[96]
What (if any) of the following matters are preventing David’s removal from Australia in the reasonably foreseeable future?
[108]
Is David’s statelessness a matter preventing his removal from Australia in the reasonably foreseeable future?
[109]
Is the fact of not holding a travel document a matter preventing David’s removal from Australia in the reasonably foreseeable future?
[126]
Resolution
[140]
Other matters said to be preventing David’s removal from Australia to Iran
[141]
If the fact that David will not voluntarily return to Iran is the only matter preventing his removal from Australia becoming practicable in the reasonably foreseeable future, what is the effect of the decision in AZC20 and, as a separate question, the decision in ASF17?
[143]
DISPOSITION
[144]
Administrative referral
[147]
PRELIMINARY MATTERS
This application was heard concurrently with another application for a writ of habeas corpus at the request of the applicants, which was not opposed. As the cases are factually distinct the reasons stand alone yet bear similarities to the extent of common issues of law and procedure.
Jurisdiction of this Court
The Minister for Home Affairs and Secretary of the Department (together “the Respondents”) initially contended that there was no jurisdiction to hear the original application by which the only relief sought was a writ of habeas corpus primarily because it is ancillary to but not of itself a remedy at s.75(v) of the Australian Constitution (Constitution): citing, for example, Mokhlis v Minister for Home Affairs (2020) 94 ALJR 843 at [14].
Part way through the first day of hearing of the application, David’s counsel handed to the Court their foreshadowed amended application to incorporate a prayer for relief in the form of a mandatory injunction.
The Respondents did not oppose the amendment or the propriety of the approach and, on the basis of the amended application, did not oppose the jurisdiction of this Court.
A decision to detain a person under s.189(1) of the Migration Act 1958 (Cth) (Act) is a “migration decision” for the purposes of s.476 of the Act. The authorities make clear that a writ of habeas corpus is no more than a form of order which could be granted in an appropriate case as an incident of the exercise of the original jurisdiction of this Court under the statutory provisions: McHugh v Minister for Immigration [2020] FCAFC 223; 283 FCR 602 (McHugh Full Court) at [211]-[222].
On the basis of the amended application which strictly sought a mandatory injunction, it may be accepted that the jurisdiction of the Court is enlivened.
Notice to Attorneys-General
David’s lawyer gave notice to the Attorneys-General of the Commonwealth and the States that the proceeding may involve a matter arising under the Constitution or involving its interpretation within the meaning of s.78B of the Judiciary Act 1903 (Cth).
To the extent that such notice was necessary, I formed the view and the parties agreed that the time elapsed since the notice was given (7 clear days) constituted a reasonable time, having regard to the apparent purpose of s.78B, the urgent nature of the relief claimed and the precedent to which this Court was taken in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416 at [56]-[57].
The Attorney-General of the Commonwealth reserved the right to intervene in any appeal but not in the present proceedings. There were other responses but no attempt to intervene or request for an adjournment from the other notified parties or any non-party in the present case.
LEGAL FRAMEWORK
A person who is not an Australian citizen and does not hold a valid visa permitting them to travel to and enter Australia or to remain in Australia (known as an “unlawful non-citizen”) may be mandatorily detained and removed pursuant to Divisions 7 and 8 of Part 2 of the Act: ss.14(1), 29(1) and see also s.189 of the Act.
An “officer” (including an officer of the Department) is duty bound to detain a person who is in the “migration zone” and the officer knows or reasonably suspects is an unlawful non-citizen: ss.5 and 189(1) of the Act.
The duration of the detention authorised by s.189(1) is expressed in terms that the person must be kept in immigration detention until the occurrence of a specified event including the grant of a visa to the person or their removal from Australia under s.198: s.196(1) of the Act.
By s.198(1), an officer is obliged to remove an unlawful non-citizen as soon as reasonably practicable where the person asks the Minister in writing to be so removed. This is referred to as a “voluntary removal”.
By s.198(6), an officer is obliged to remove an unlawful non-citizen as soon as reasonably practicable where the person has applied for a visa which has been refused and the application has been finally determined and cannot be granted and the non-citizen has not made another valid application for a substantive visa that can be granted. This is referred to as an “involuntary removal”.
In NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (NZYQ), the High Court of Australia considered the constitutional limits of these legislative provisions which otherwise authorise the executive detention of unlawful non-citizens who do not have permission to remain in Australia. The constitutionally permissible period of execution detention was therein expressed as coming to an end when there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future: at [55].
In setting out its guidance as to the application of the constitutional limitation, the High Court of Australia said the following in relation to the standard of proof in NZYQ at [60]:
To establish that ss 189(1) and 196(1) of the Migration Act validly applied to authorise continuation of the plaintiff's detention, the defendants were accordingly required to prove that there existed a real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future. Whilst the proof was required to be to a standard sufficient to support the making of a finding of fact to the level of satisfaction appropriate in a civil proceeding where individual liberty is in issue, the prospective and probabilistic nature of the fact in issue (that is, the fact of a real prospect of the plaintiff's removal from Australia becoming practicable in the reasonably foreseeable future) would have the potential to be confused were the standard of proof to be "on the balance of probabilities",
(there citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [282]-[283]. Contra Sami v Minister for Home Affairs [2022] FCA 1513 at [157]).
Also in NZYQ, the High Court of Australia said that the notions of “practicability” and of the “reasonably foreseeable future” are essential to anchoring the expression of the constitutional limitation in factual reality. In doing so, the real world difficulties attached to removal were acknowledged, the real world context requiring that proof of a real prospect must involve more than demonstration of a mere un-foreclosed possibility: NZYQ at [61], citing WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625 at [59].
There have been 2 relevant applications of the principle derived from NZYQ since it was handed down. The following paragraphs are instructive in the context of the task before the Court.
In AZC20 v Secretary, Department of Home Affairs (No 2) [2023] FCA 1497 (AZC20) at [27]-[29] it was considered that:
“Real prospect” and “reasonably foreseeable future” express evaluative notions (although they are components of a legal test for validity and thus raise questions which have a single correct answer: cf Minister for Immigration v SZVFW [2018] HCA 30; 264 CLR 541 at [43]-[49] (Gageler J)). Where the relevant lines are to be drawn in future cases may be fact-sensitive and may depend on experience drawn from earlier cases.
In NZYQ at [62]-[70] the Court reasoned to its own conclusion, by reference to evidence, on this point. This appears to have been necessary because, although the parties had agreed as to the state of affairs as at 30 May 2023, they did not agree as to what was to be made of certain inquiries undertaken by the Department after that time. Approaches had been made to United States authorities, who (to put it shortly) had not given a definitive negative answer to the question whether the plaintiff might be received in that country. The conclusion of the Court was that the evidence did not allow any meaningful assessment of either the likelihood of this inquiry being fruitful or the timeframe in which that might occur (at [68]-[69]).
The conclusion that there was no real prospect of removal in the reasonably foreseeable future was described by the Court at [70] as “the necessary conclusion of fact”. However, at [61] reference had been made to the “notions of the practicability and the foreseeability of removal embedded in the expression of the constitutional limitation”. These concepts are (as noted above) to some extent evaluative, and the evaluation takes place in the context of the constitutional principle identified in NZYQ.
In ASF17 v Commonwealth of Australia [2024] FCA 7 (ASF17) at [73] it was held that:
The prospect to be proven is one that would be recognised as a prospect in the real world and, consequently, must be more than a possibility that has not been foreclosed but need not be shown to be a prospect that, on the balance of probabilities, will occur.
The decisions in AZC20 and ASF17 respectively consider the relevance of non-cooperation of a detainee where such non-cooperation was said by the respondents in each case to have frustrated the detainee’s removal from Australia. In this respect, the judgement in ASF17 is subject of appeal and before the High Court of Australia but presently binding on this Court. Notwithstanding the Respondents’ strong reliance on those aspects of the reasons in ASF17, the parties mutually submitted that this matter ought proceed in parallel and not be delayed pending the outcome.
The Court was also taken to numerous authorities said to provide context to the reasoning in NZYQ which passages are not repeated here.
ISSUES FOR DETERMINATION
The primary question for the Court to determine in the present case was agreed:
Is there a real prospect that David’s removal from Australia will become practicable in the reasonably foreseeable future?
As a subset of this, the following issues were also agreed as being for determination:
(a)What, if any, of the following matters are preventing David’s removal from Australia in the reasonably foreseeable future?
(i)David’s statelessness?
(ii)The fact that David does not hold a travel document?
(iii)David’s prison sentence in Iran?
(iv)The fact that David will not voluntarily return to Iran?
(b)If the fact that David will not voluntarily return to Iran is the only matter preventing his removal from Australia becoming practicable in the reasonably foreseeable future:
(i)What is the effect of the Federal Court of Australia’s reasoning in AZC20 v Secretary, Department of Home Affairs (No 2) [2023] FCA 1497?
(ii)What is the effect of the Federal Court of Australia’s decision in ASF17 v Commonwealth of Australia [2024] FCA 7?
THE FACTS
Notice to admit certain facts
Before the Court was a notice to admit dated 22 December 2023.
The Respondents prepared a notice to dispute certain of those facts, which was not filed within 14 days as required by r.15.19(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). By operation of that rule, the facts contained in the notice to admit were taken to be admitted for the purposes of these proceedings.
The Respondents were invited to address the Court about any application for leave to withdraw their deemed admissions of facts. David’s counsel indicated he would oppose. The Respondents did not ultimately seek such leave, but rather confirmed their withdrawal of any dispute as to the facts in the notice to admit.
Especially in a case of this nature, the parties are entitled to rely on admissions of fact via a notice to admit procedure. It is a process provided in the Court’s Rules to contribute to the orderly and efficient conduct of proceedings. In light of the opportunity to apply for withdrawal of the deemed admissions, which was not sought, the admitted facts ought be taken on their face. That is, other than to the extent that judgement ought not proceed on the basis of a factual contention that is plainly untrue on the evidence before the Court: Gramophone Co Ltd v Magazine Holder Co (1911) 28 RPC 221 at [225] as cited in Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794 at [43].
To the extent that the Respondents’ deemed admission that there is no real prospect of removal of David from Australia in the reasonably foreseeable future involves a contention of fact, it would appear to offer a complete answer to the case. That admission is reinforced by another admitted fact – that a related department submitted to the Administrative Appeals Tribunal, in May 2023, that it was at that time extremely unlikely that David would ever be removed from Australia to Iran and that nothing has changed since then.
By their engagement with the proceedings the Respondents were understood to contend that these admissions do not offer a complete answer to the case. They sought to place caveats on them – namely, that the admitted state of affairs is because of David’s non-cooperation about which there is evidence before the Court.
The following is a summary of the admitted facts and the evidence before the Court relevant to the issues for determination, and unless otherwise indicated was uncontentious.
David’s background
David is a national of Iran and only that country. David was born in Iran, to Iranian parents. He is a Faili Kurd or ethnically Kurdish.
David is not a citizen of Australia and is not an Aboriginal or Torres Strait Islander.
Whether David is a citizen of Iran, or any country at all, was strongly contested in these proceedings. The relevant evidence in this respect is summarised in the following paragraphs.
On 4 June 2013, David arrived in Australia as an unauthorised maritime arrival and was initially detained under s.189 of the Act. In late 2016 or early 2017, David applied for a temporary protection (class XD) (subclass 785) visa (the precise date of application was unclear on the evidence before the Court). In making that application, David claimed to have citizenship at birth as “Iranian”, (then) current citizenship of “N.A.” and a father and mother with citizenship of “Iranian”.
David held an Iranian passport which expired on 25 April 2018 (an admitted fact). A copy of an extract of it was in evidence, along with a copy of what was purported to be David’s Iranian National ID card. These copies were submitted to the First Respondent’s Department with David’s protection visa application. David is also recorded on the Irregular Maritime Arrival & Induction Interview form as having told an officer on 14 June 2013, not long after he first arrived in Australia, that he flew from Tehran to Doha using his passport and had a National ID Card which was physically located in Ilam.
Other records kept by the Respondents that were before the Court contained different descriptions of David’s nationality and citizenship. For example:
(a)Dated 14 June 2013, a “Record of Arrival Interview” by which David was recorded as having citizenship of both “Stateless person” and “Iran”.
(b)Dated 31 October 2017, a “Notice of Intention to Consider Cancellation under section 116 of the Migration Act 1958” was completed by an officer. That form recorded David’s “nationality” as “Stateless person” and his “Country of birth” as “Iran”.
(c)Undated, a screenshot of an Integrated Client Services Environment record which recorded David’s “citizenship” as of “Iran”.
(d)Dated as at 16 January 2024, a Case Review record recorded David’s citizenship as “Iran” (line 1) “Stateless Person” (line 2).
David’s “Status Resolution Officer” since 12 January 2024 gave evidence as at 16 January 2024 of his state of satisfaction that David is a citizen of Iran based on his review of departmental records. The basis for this conclusion was not otherwise explained and the truth of the matter was not accepted by David.
David’s time and attempts to stay in Australia
Some 5 years after his arrival in Australia and whilst awaiting an outcome on his protection visa application, on 7 February 2018, David was charged with breaching family violence intervention orders against his former domestic partner. The family violence order and the contravention resulted from 2 separate incidents (and numerous counts) of violence committed against his former domestic partner. The incident that resulted in the family violence order involved: false imprisonment, 3 counts of assault with a weapon (using a knife, a plank of wood and a pillow); making a threat to kill; and unlawful assault. David then contravened the family violence order when he entered the locked home of the victim, doused the bedroom with petrol then assaulted her physically and sexually. For this crime, David was sentenced to and served 30 days’ imprisonment.
On 15 March 2018, David was transferred to immigration detention following the cancellation of his bridging visa pursuant to s.116(1)(g) of the Act. The cancellation decision was due to his criminal conviction for contravention of the family violence order. David has remained in immigration detention ever since and, in this time, has attempted suicide on a number of occasions and suffered a number of physical and sexual assaults (admitted by the Respondents other than to the extent of characterisation of those attempts which they said could not be inferred from the evidence). Also while in immigration detention, David has pursued avenues to secure a visa and release from immigration detention. Some of those attempts are referenced in the following paragraphs.
On 8 May 2018, the Immigration Assessment Authority affirmed the refusal of David’s protection visa application on the basis of findings that David was not owed protection obligations under the Act. David exhausted his rights to appeal the protection visa outcome on 31 July 2020 (when a Full Court of the Federal Court of Australia dismissed his appeal of a 30 August 2019 decision to dismiss an application for judicial review of the Tribunal’s decision by another Judge of this Court).
Subsequently, David has unsuccessfully sought Ministerial intervention and also sought a further bridging visa which was technically invalid because the visa was linked to an application which had been finalised. The further bridging visa was initially refused on character grounds then set aside by the Administrative Appeals Tribunal. In its decision, the Tribunal acknowledged that the decision would not result in David’s release from immigration detention (essentially because there was no extant visa application to which the bridging visa was linked).
On 10 and 28 November 2023, David’s lawyers wrote to the Australian Government Solicitor’s office and requested his release from immigration detention in light of the reasoning in NZYQ. The 10 November 2023 letter also sought urgent Ministerial intervention under s.195A of the Act with reference to David’s ongoing safety in detention and his particular circumstances.
On 30 November 2023, the Australian Government Solicitor’s office responded in relation to the request for removal pursuant to the decision in NZYQ and undertook to respond separately to David’s application for Ministerial intervention. The substance of the letter was to the effect that the First Respondent’s Department considered David’s case to be distinguishable from that of NZYQ because David does not wish to be removed to Iran, that is the only country to which he has a legal right of return, David is not cooperating and Iran will not accept involuntary returnees. The letter also stated that the Department’s (unspecified) efforts to fulfil their duty to remove David from Australia have been frustrated by his lack of cooperation which is the determinative barrier to his removal to Iran. That response concluded with a statement to the effect of encouraging David to cooperate with removal efforts so that the process can be completed as quickly as possible.
On 1 December 2023, David’s lawyers again wrote to the Australian Government Solicitor’s office and reiterated his refusal to voluntarily return to Iran. By that letter it was claimed that Iran is the only country for which David has a legal right of return. It was also claimed that David has a history of health and mental issues including repeated sexual and physical assaults perpetrated against him whilst in custody and likened his circumstances to that of the applicant subject of the decision in AZC20.
On 4 December 2023, the Australian Government Solicitor’s office responded. By that response, it was said that that the First Respondent’s Department was considering the decision in AZC20 and whether David is affected by the decision, and that they would endeavour to respond as soon as possible. David’s lawyer gave evidence that, as of 22 January 2024, no such response had been received. Responses were exchanged via these proceedings which commenced on 13 December 2023.
David’s removal from Australia
David is currently in the Australian “migration zone” and does not hold a visa that is in effect. David’s Status Resolution Officer gave evidence of his state of satisfaction, as at 16 January 2024, that David is a person who (based on his understanding of the operation of s.189 of the Act) he must continue to detain.
From 8 May 2018, there has been a continuous statutory duty to remove David from Australia (admitted to the extent that it were a contention of fact and not law).
It was also admitted that:
There is no real prospect of removal of [David] from Australia in the reasonably foreseeable future.
Additional admitted facts before the Court were that, in May 2023, there was an extremely low likelihood that David will ever be removed to Iran and nothing has changed since May 2023 to affect the likelihood of David’s removal to Iran. The relevant evidence in support of these was said to be a copy of an Administrative Appeals Tribunal decision dated 24 May 2023. By that decision, the Tribunal made findings in the following terms (with reference to the Minister for Immigration, Citizenship and Multicultural Affairs, respondent to the application subject of those proceedings), in the context of a review of the refusal of David’s application for an invalid bridging visa):
However, on the facts of this case, there is a negligible possibility that the applicant will be removed to Iran, which he accepts. In those circumstances, while the applicant might face some meaningful impediments if he were to be removed to Iran in connection with his ongoing mental health conditions and substance use disorder, the Minister submits that this consideration should be given minimal (if any) weight against refusal in light of the extremely low likelihood that he will ever be removed there.
(emphasis added)
The Respondents emphasised that this admitted fact is to be read in its proper context, which appears in the previous paragraph of the Tribunal’s reasons, where the submission was described as connected with David’s involuntary removal status.
The materials before the Court included the following evidence said to be relevant to the issues for determination in these proceedings as to the reasons why David has no real prospect of removal from Australia in the reasonably foreseeable future.
David is involuntary and has no travel document
As at 16 January 2024, David’s Status Resolution Officer gave evidence of the most recent case review which he had conducted of David’s case and annexed a record which, on its face, was dated 16 January 2024. The Status Resolution Officer affirmed that this case review was completed in reliance on the information contained in the Departmental records. The Status Resolution Officer would typically also make contact with the detainee to inform the conduct of a case review but did not say that this occurred on this particular occasion. The case review as at 16 January 2024 contained the following assessment of barriers to removal in David’s case:
Barriers to case resolution and actions taken or being taken to resolve those barriers.
Barrier Indicator: 5.7 FC – Federal Court – (All Visas) / [8.1] Foreign Govt Permission
Outcome of TD Discussion: Unwilling to apply
Statutory Bars: s48, s195, 91K
Obstacles:
-Invol towards removal
-No valid Travel Document
-Ongoing immi matters
An Acting Inspector of the Victoria/Tasmania Field and Removal Operations Team within the Australian Border Force prepared an affidavit affirmed 16 January 2024. As of 16 January 2024, this officer’s evidence was that she understood that the sole barrier to David’s removal from Australia was David’s status as an involuntary returnee. The Acting Inspector deposed to have formed this view based on her knowledge that David has a right of entry to Iran and no other country, David has refused to return to Iran voluntarily, and Iran will not issue a travel document to involuntary returnees.
As earlier referenced, the lawyer’s letter of 30 November 2023 (from the Respondents’ lawyer to David’s lawyer) described David’s non-cooperation as the determinative reason that David could not be removed to Iran at that time. That letter also confirmed instructions that Iran does not accept involuntary returnees.
Iran’s long-standing policy not to accept involuntary removals from Australia was not in issue in these proceedings.
There were admitted facts in terms that:
It has been the position of the Iranian Government for over 20 years not to accept involuntary returnees from Iran to Australia.
It continues to be the position of the Iranian Government not to accept involuntary returnees from Iran to Australia.
To the extent that David’s argument was that the Iranian Government will not accept involuntary returnees to Iran coming from Australia, then the notice to admit would appear to contain a typographical error but the reverse formulation was not in issue when regard is had to the evidence as at 16 and 17 January 2024, for example:
(a)An Acting Inspector of the Removal Operations Team gave evidence that Iranian authorities will not issue a travel document to involuntary returnees; and
(b)A Supervisor in the Detention and National Removals, Consular Engagement and Liaison Team within the Australian Border Force gave evidence that the First Respondent’s Department understands that Iran will not issue a necessary Laissez Passer to an involuntary removal, as recorded in the Department’s Travel Document Reference Guide – Iran (an internal document which records the institutional understanding within the Department about how Iran operates in terms of receiving removals from Australia).
David’s unwillingness to be removed from Australia to Iran was also not disputed and consistent with his position taken in these proceedings. On the evidence before the Court, David’s unwillingness had been communicated by David to various officers on each occasion that he was asked, over a number of years. The most recent evidence of this was:
(a)A file note of a discussion between a Removals Officer and David, dated 14 September 2023, which recorded David as having said that he did not want to go back to Iran and did not want to be disturbed with such (nonsense) calls; and
(b)An affidavit of David’s lawyer which deposed to his instructions that, on 20 November 2023, David was contacted by an Australian Border Force officer and confirmed that he remained unwilling to return to Iran.
David’s fear of returning to Iran
As to the explanation for his unwillingness, David has always maintained that he cannot return to Iran because he fears harm on return there.
There was evidence before the Court of an extant prison sentence of some 11 years to be served upon return to Iran. A translation in evidence recorded that the sentence was handed down by the Illam Regional Office of the Justice Department, in absentia on 25 May 2015, for the crime of:
..while still in the Country, insulting the sanctities and officials of the Islamic Republic; acting against the national security of the Country; and being a member of groups who are enemies of the Regime;
There was also reference in a psychological assessment dated 6 May 2023 of David having reported that, when living in Iran, he lived “with fear all my life…I had no secure job or secure place to go...they chase me and do bad things to me” and also disclosed a history of sexual and physical abuse and torture whilst in the military. Further that David reported to the clinical psychologist that he is not able to return to Iran because he will be charged with political crimes, possibly be tortured or killed and that his conversion to Christianity also posed a risk to him on his return.
By the letters of David’s lawyers to the Australian Government Solicitor’s office dated 10 and 28 November and 1 December 2023, David’s unwillingness to return to Iran voluntarily on account of his fears was clearly articulated.
The significance of and process for obtaining a travel document
As at the time of application and at hearing, David did and does not have any valid travel document.
The evidence of the Acting Inspector of the Removal Operations Team was that the absence of a travel document was critical because without such document David would have no authority to enter Iran.
A Supervisor in the Detention and National Removals, Consular Engagement and Liaison Team within the Australian Border Force had not been involved in David’s case but gave evidence about her experience of the process for obtaining an Iranian travel document since commencing her role in July 2023. This witness is responsible for updating a document known as the Travel Document Reference Guide – Iran with information relating to the requirements of the Iranian officials. Her evidence of the process drew on that contained in this guide and annexed the most recent version of it (which included her input) dated 8 January 2024.
More specifically, in terms of voluntary removal to Iran, the Supervisor deposed:
(a)That an individual seeking voluntary removal to Iran requires a Laissez Passer to be issued which in turn requires approval from the Ministry of Foreign Affairs in Iran and without which entry to Iran would be denied. To obtain a Laissez Passer an applicant is required to provide documentation to the Iranian Embassy including an application form (completed and signed); original Iranian identity documents (or, if originals can not be provided, then copies must be submitted for approval of the Ministry of Foreign Affairs in Iran before the application is submitted to the Iranian Embassy); a hand written letter of the applicant in their native language (Farsi); a current passport photo; and a flight itinerary to Iran. Additionally, there is a fee payable to the Iranian Embassy of $34.00 Australian dollars and the person is required to participate in an interview by telephone with the Embassy before the Laissez Passer will issue. According to the experience of this witness, the process to obtain a Laissez Passer from application can take up to 12 weeks - or longer if there are delays in arranging interviews with the Iranian authorities. Where the identity documents are provided this witness was not aware of any case that was refused where the departee was to be removed voluntarily.
(b)To have had carriage of a number of cases involving the voluntary removal of Iranian nationals all of which have been successful. When asked to expand on this evidence at hearing, this witness said that she had been involved in 27 cases of successful voluntary removal to Iran. That evidence was at odds with the response of the First Respondent’s Department to interrogatories which disclosed that there were a total of 4 successful voluntary removals to Iran in the period June 2023 to January 2024 (inclusive).
In terms of involuntary removal to Iran, the Supervisor deposed to her understanding (having regard to her own experience and the contents of the Travel Document Reference Guide - Iran) that a non-cooperative removee would not be issued with a Laissez Passer by the Iranian authorities. This witness could not recall ever having to obtain a Laissez Passer for an involuntary removal to Iran because of her understanding that Iran will not issue one to such individuals.
The Supervisor also gave evidence of having reviewed David’s records including images of David’s Iranian birth certificate, passport and National ID card contained in David’s Departmental files. She said that, in her experience, these forms of document would suffice for the purposes of the process for obtaining a Laissez Passer from the Iranian authorities. In the opinion of this witness, David should be able to obtain a Laissez Passer through the Iranian Embassy if he were to become voluntary and if he provided an original or a copy of any one of the identity documents that she had reviewed and if he cooperated with the requirements of the process.
As of 17 January 2024, the Supervisor’s evidence was that, in her role, she has responsibility for all cases where arrangements are being made for the removal of Iranian nationals and is responsible for liaising with consulates, high commissions and embassies to investigate removal options and obtain necessary travel documents. This witness attends the Iranian Embassy usually once a week to discuss removal arrangements with Embassy officials. Those discussions are not always about specific individuals, more for the purpose of exchanging information about processes, but sometimes she will communicate more regularly with the Iranian Embassy if particular enquiries need to be made. This witness also said that responsibility for progressing each removals case sits with a State-based removals team and her team will provide assistance as required.
No witness gave any evidence of specific exchanges with Iranian officials or authorities in relation to attempted removal of David from Australia to Iran.
The Acting Inspector of the Removal Operations Team deposed of her intention to continue to engage with David to encourage him to agree to voluntarily return to Iran and, if that were to occur and a travel document were obtained, of her view that removal arrangements could then be made swiftly. Further, that attempts to remove David to Iran had not (as at 16 January 2024) been exhausted - for example, because there was a prospect that David would become willing to be voluntarily removed or to meet with the Iranian authorities.
Past attempts made
Removal of David from Australia was attempted in 2021 but was unsuccessful (the Respondents admitted having made a submission to the Administrative Appeals Tribunal to that effect, but not to the extent that this was relied on to establish the impracticability of David’s removal from Australia).
According to a record of the First Respondent’s Department, on 31 August 2021, David’s case was escalated to the National Removals Team as an “intractable” case.
As earlier referenced, there were departmental records in evidence which reflected David’s unwillingness to return to Iran when asked on various occasions over a number of years. One such record reflected that David’s case was referred to “Invol. Removals” on 29 September 2020.
Ongoing immigration matters
The Acting Inspector of the Removal Operations Team gave evidence that, generally speaking, a Status Resolution Officer will refer a detainee to the relevant Removals Operations team in the State or Territory where a detainee is based when either:
(a)The detainee's prospects of detaining a visa have apparently ceased, for example if the detainee is unsuccessful in obtaining a visa and has exhausted all merits/judicial review processes; or
(b)The detainee makes a voluntary request to be removed.
As earlier referenced, as of November 2023 there was an undetermined application for Ministerial intervention under s.195A of the Act.
There are no third country options
On 16 January 2022, the First Respondent’s Department completed a document titled Individual Management Plan Review which reflected that David had suggested that he could be removed to the United States of America because he had a cousin residing there.
David’s lawyer gave evidence of his instructions that David had provided his cousin’s contact details to the Australian Border Force during a meeting with them.
The Acting Inspector of the Removal Operations Team’s evidence was that the First Respondent’s Department has a policy of not removing unlawful non-citizens to countries for which they do not have a right of residency or long-term stay. Her evidence described that the reasons for this policy are generally that the Department has no basis for thinking a third country will accept a removee without a right of residency or to long-term stay there, diplomatic tensions may otherwise arise and in the interests of the welfare of the removee.
At the time of hearing, no investigations had been made as to whether David can be removed to a third country.
DETERMINATION OF THE MATTERS IN ISSUE
The parties confined the issues for determination of the Court in these proceedings. There was no other question in these proceedings as to the lawfulness of David’s ongoing detention or that a statutory obligation exists that he be involuntarily removed as soon as reasonably practicable pursuant to s.198 of the Act.
Where does the onus lie?
It may be accepted that, by his originating application with supporting affidavit filed 13 December 2023 and amended application filed 30 January 2024, David has done no more than establish the mere fact of his ongoing detention. Beyond this, the originating materials and amended application did not pose any particular reasons to suppose that the ongoing detention is unlawful.
At the initial case management proceeding on 21 December 2023, the Respondents did not contend that David had not adequately discharged his initial evidential burden of establishing that there was reason to suppose that his detention had ceased to be lawful by reason that it transgressed the constitutional limitation. On that occasion, the Respondents reserved their right to object on jurisdictional grounds and consented to a program which saw their evidence filed first.
By their materials filed 16 January 2024, the Respondents put on 2 affidavits and an outline of submissions which articulated acceptance that the evidentiary burden had shifted to them only in circumstances where:
(a)David cannot presently be removed to his country of nationality because he refuses to cooperate with procuring a travel document to facilitate his removal; and
(b)The High Court of Australia in NZYQ having determined that the authority to detain under ss.189 and 196 of the Act does not extend to a situation where there is no real prospect of the removal from Australia becoming reasonably practicable in the reasonably foreseeable future.
By this the Respondents were understood to have sought to limit the basis on which they accepted that the evidentiary onus had shifted to them in the present case (as in ASF17).
A further affidavit was filed on behalf of the Respondents the following day (17 January 2024).
David then engaged with the Respondents’ evidence and sought to rely on it by outline of submissions filed on his behalf on 22 January 2024, to articulate the bases on which he says the Court should find that his ongoing detention has exceeded the constitutional limits outlined in NZYQ.
In advance of the first day of hearing: on behalf of the Respondents an additional 2 affidavits were filed on 24 January 2024; and an additional 3 affidavits were filed on behalf of David on 29 January and 5 February 2024.
In a number of respects, David contended that the Respondents had and have not discharged their onus as at the time of the final hearing including by reference to the absence of relevant evidence of sufficient currency or proximity to the hearing.
The established authorities place high regard on the right to and preservation of personal liberty as a profound and most important of all common law rights and emphasise the unique position of a detainer to demonstrate the lawfulness of ongoing detention: for example, see McHugh Full Court at [83] and wherein it was reasoned, at [295]:
The necessity not to define precisely or overly finely in the abstract what has to be proved by the applicant can be appreciated if one recognises that in respect of some detentions (such as in Al Masri which concerned the possible exhaustion of the Constitutional purpose of the power to detain or, as here, where the detention is based on a mental state of the detainer required to be reasonably founded) the incidents or aspects of the lawfulness of the detention are within the knowledge and power of proof of the detainer: cf Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970 to the effect that evidence is to be weighed according to the proof which it was in the power of one side to produce and the other to contradict.
The Court is to determine the application on what is before it at the time of the hearing.
I am satisfied that David has sufficiently called into question the lawfulness of his ongoing detention and that the burden of proof has shifted to the Respondents to prove the lawfulness of David’s ongoing detention to the standard outlined in NZYQ as at the time of the hearing. As indicated in relation to each issue below, there are certain matters which the Respondents were and are uniquely placed to discharge in an evidentiary sense. In those respects, I do not accept that the burden properly shifted three times.
In case there were any doubt, regardless of whether it was David that needed to adduce evidence that put the lawfulness of his executive detention in issue, to the extent that the Respondents introduced evidence in these proceedings relevant to factual findings the Court is required to make in determining the agreed issues, then it may properly be relied upon for that purpose.
What (if any) of the following matters are preventing David’s removal from Australia in the reasonably foreseeable future?
Each issue that the parties asked the Court to answer is addressed in turn below.
Is David’s statelessness a matter preventing his removal from Australia in the reasonably foreseeable future?
The premise of this question is that David is “stateless”.
If the Court were to find that David is stateless at the relevant time then the Respondents accepted that would be determinative of the application before the Court. It would mean that his ongoing detention has transgressed or is beyond the constitutional limit.
In NZYQ the High Court of Australia considered the circumstance of an applicant who was accepted as stateless and were not called upon to determine the meaning of statelessness. Nor has the Federal Court of Australia in the two cases that have since applied the NZYQ principle considered the issue.
The parties asked the Court to take notice of the definition of “stateless person” in Article 1 of the 1954 Convention relating to the Status of Stateless Persons, 28 September 1954 at New York and entered into force for Australia on 13 March 1974, which it was agreed provided a definition applicable at international law:
“A person who is not considered as a national by any State under the operation of its law”
The application of this definition to define the international status of statelessness is consistent with the approach taken in Al-Kateb v Godwin (2004) 219 CLR 562 at [79] and has since been applied in Koroitamana v The Commonwealth [2006] HCA 28; 227 CLR 31 at [78].
For present purposes, it was accepted that citizenship is distinct from statelessness.
David’s counsel asked the Court to consider itself bound by Australian law and to take notice of s.21(8) of the Australian Citizenship Act 2007 (Cth) which provides for eligibility for Australian citizenship in circumstances of “statelessness”. That provision draws a distinction between a “national” of Australia and a “citizen” of Australia. It was contended that nationality is a question of origin and identity; while citizenship is a question of paperwork and recognition under the law. While it was accepted that one is often the same, there was nothing more before the Court as to the operation or application of these provisions.
Department of Foreign Affairs and Trade Country Information Reports on Iran dated 7 June 2018 and 24 July 2023 (DFAT Reports) were said by the Respondents to prove that an Iranian passport is sufficient to demonstrate citizenship.
David’s counsel pointed to some authorities for the proposition that, under Australian law, a passport is not recognised as demonstrative of citizenship: for example, McHugh Full Court at [71]. Further, it was submitted on behalf of David that a person of Faili Kurdish ethnicity is famously not recognised by Iran as an Iranian.
The Respondents properly conceded that their evidence on the matter was confusing and inconsistent because it was replete with records that David is both an Iranian citizen and stateless. Whether those records are reflective of David’s claims or a departmental officer’s assessment on the basis of information before them, statelessness is a question of fact.
It is uncontroversial that David was born in Iran, to Iranian parents. He is of Faili Kurdish ethnicity. He once held, but at the relevant times did and does not hold, a valid Iranian passport. The First Respondent’s Department holds copies of an extract of the since expired Iranian passport and a record purported to be a copy of David’s National ID card.
David’s Status Resolution Officer gave evidence that, on his review of departmental records, David is a citizen of Iran but did not explain his reasons for having reached this state of satisfaction. The officer did not explain how he rationalised the different entries in departmental records cited in the factual summary above to arrive at his conclusion. Nor did he seek to explain why his own case review undertaken as at 16 January 2024, based on his review of departmental records, records David’s citizenship status as both Iran and stateless person. This evidence of an officer’s unsubstantiated and inconsistent conclusion is of no probative value in the present context.
The 2018 and 2023 DFAT Reports are not properly received as evidence of Iran’s current position on who it classes or recognises as a citizen. Those reports are self-expressed to contain an Australian authority (DFAT)’s best judgement based on information it gathers about Iran, at a general level. Those reports are prepared for the particular purpose of protection visa assessments, at a point in time, and not necessarily reflective of the current position of Iran at time of this application or the hearing.
Further, David does not hold a current or valid Iranian passport. The extract of a passport in evidence expired almost 6 years ago. Whether David could possibly obtain a new, valid Iranian passport or other travel document is considered below. The current evidence of an expired and invalid passport would not amount to current evidence of citizenship even if a passport were established as demonstrative of such.
I am not persuaded that the evidence establishes, to the requisite standard, that David is a citizen of Iran.
That does not mean that David would bear the international status of statelessness. But, as the Respondents’ counsel emphasised, whether Iran will recognise David as a national or a citizen for purposes of granting his entry to Iran is a matter for Iran. I agree.
In this respect, there is an absence of evidence including as to the question of whether David’s ethnicity would preclude his recognition by Iran as an Iranian national. The Respondents were uniquely placed to lead this evidence including of any communications with Iran but did not do so.
Is the fact of not holding a travel document a matter preventing David’s removal from Australia in the reasonably foreseeable future?
Without a valid travel document to permit his travel, David can not (or will not) be removed from Australia.
David does not hold a travel document. The Respondents’ most recent record concerning David’s removal, marked as at 16 January 2024, assessed the absence of a valid travel document and that David was involuntary towards removal as 2 of 3 obstacles to his removal from Australia.
David posed at least one third country removal option; but it was not contended by the Respondents that there is any prospect of David’s removal to any other country than Iran.
In terms of the prospect of David’s return to his country of origin, Iran, the Respondents’ evidence was that original or verified copies of Iranian identity documents are essential to obtain a Laissez Passer document which in turn is essential to gain entry to Iran.
Whether David would be recognised as a citizen or national of Iran for re-entry purposes would logically appear to have a bearing on David’s ability to obtain an Iranian travel document to permit his return to Iran. It was earlier concluded that the evidence does not establish that David is currently a citizen of Iran, but he is not necessarily stateless. It is unknown whether Iran would recognise him as a citizen or a national and it was accepted those are matters for Iran.
The Supervisor’s evidence that the sort of passport and ID card extracts in evidence would usually suffice to obtain Iranian approval of an essential Laissez Passer was a generic response and falls well short of the standard set out by the authorities.
In any event, the issue of original records (from copies, as David would be required to do on the evidence before the Court) requires approval of the Ministry of Foreign Affairs in Iran. In turn, the issue of a Laissez Passer requires another approval of the Ministry of Foreign Affairs in Iran.
The Supervisor who, as at 17 January 2024, had not had anything to do with David’s case gave evidence of being in regular engagement with the Iranian Embassy and of her experience of the general process for obtaining documents for purposes of removal from Australia to Iran but did not give evidence of any inquiries or communication specific to David. David’s Status Resolution Officer, very recently appointed on 12 January 2024 before preparing his affidavit on 16 January 2024, did not give evidence of any exchange with the Iranian authorities. There is simply no evidence of communication with Iranian authorities specific to David and his circumstances. In the context of the matter and on the generic state of the evidence, it is not appropriate to infer that Iran would supply David with a Laissez Passer even if he were to voluntarily apply.
The evidence did not address what other steps (if any) are required for David to gain entry to Iran.
Further, the evidence of the general process for obtaining a travel document was vague in terms of the length of time it would take to obtain such documents even if David were to voluntarily apply.
By way of legal argument, some doubt was also cast over whether it is possible for Australia to nonetheless issue a travel document even to a stateless person for the purpose of removal or deportation: s.9 Australian Passports Act 2005 (Cth) and s.6 Australian Passports Determination 2015 (Cth). The evidence did not resolve whether this provision of the legislation could or would be applied to David in his particular case.
As of the hearing, there was no updated evidence as to any progress on these matters or endeavours being made as at the time of the hearing.
As to the evidence about whether any voluntary removals have recently occurred from Australia to Iran - it may be accepted that some removals have occurred on a voluntary basis in relatively recent months but this was not determinative of the matter in light of the above findings. For completeness, the Supervisor’s credibility was said to be challenged when she told the Court of her direct involvement in 27 successful voluntary removals to Iran since July 2023, which evidence contradicted the Respondents’ response to interrogatories (by which the Court was informed there had been 4 successful voluntary removals from Australia to Iran in the period June 2023 to January 2024). In fairness to the witness, it was not put to her in cross-examination that she had lied or deliberately mislead the Court. Whatever is the true number of voluntary removals, the evidence is unclear. However it remains possible to conclude that there have been at least some voluntary removals from Australia to Iran in the recent period June 2023 to January 2024 and I do not otherwise find the Supervisor’s evidence to be lacking in credit.
On the evidence before the Court, the only available conclusion it that there is no real prospect of David being removed from Australia unless a travel document is issued. On the basis that the only country to which David could be removed is Iran, the state of the evidence is such that the Court is not able to reach the requisite state of satisfaction that Iran would recognise or allow David to gain entry to Iran by issuing a travel document to him in the reasonably foreseeable future.
Resolution
Having regard to the above findings, and adopting the approach outlined by the High Court of Australia in NZYQ, the evidence does not enable a conclusion to be reached as to the real prospect or likelihood of David’s removal from Australia or the timeframe in which such removal could be achieved.
Other matters said to be preventing David’s removal from Australia to Iran
Having regard to the above findings, it is strictly unnecessary to consider whether David’s removal is presently prevented by the other matters posed regarding David’s subjective fears about returning to Iran on account of his undischarged 11 year prison sentence and regarding any policy position of the Iranian Government to refuse involuntary returnees.
It is also not necessary to determine whether other matters which emerged from the materials and at hearing - of David’s extant request for Ministerial intervention (an ongoing immigration matter), any mental and physical incapacity or non-refoulement obligations - are preventing his removal from Australia to Iran.
If the fact that David will not voluntarily return to Iran is the only matter preventing his removal from Australia becoming practicable in the reasonably foreseeable future, what is the effect of the decision in AZC20 and, as a separate question, the decision in ASF17?
Having regard to the above findings, the Court can not be satisfied that David’s present refusal to voluntarily return to Iran is the only matter preventing his removal from Australia becoming practicable in the reasonably foreseeable future and the remaining questions posed by the parties are unnecessary to resolve.
DISPOSITION
For the above reasons, the conclusion necessarily is that David is not lawfully detained and is entitled to be released immediately. I will make orders accordingly. This form of relief is not final in that it does not entitle David to indefinite freedom to live in the Australian community. At any point, if the prospect of his removal becomes real in the reasonably foreseeable future, he can be redetained.
The substantive claim for mandatory injunction requiring David’s immediate release from immigration detention is rendered nugatory in circumstances where David is not detained and for that reason is no longer pressed and will be dismissed.
The parties sought to address the matter of costs as a separate question. I will therefore list the matter for case management.
Administrative referral
The parties were invited to apply for but did not seek any ancillary orders in the event of the outcome reached in this matter.
The provisions of the migration laws which allow for consideration of family violence offending and risk to the Australian community are not engaged by an application of this kind. And, although a substantial part of the work of this Court is in the family law jurisdiction, where it deals with matters of family violence and the impact of contraventions of family violence orders (with regard to considerations of unacceptable risk and best interests of children) those considerations play no part in the present migration proceedings before the Court. Nor is this an occasion to revisit the sentence that David was ordered to and has since served.
That said, the Court has before it evidence of David's prior family violence offending which is objectively serious. Since the time of his most recent offending, David has been detained and liable to removal from Australia. The victim of his offending has had no cause to reapply for an extension of the family violence order (on behalf of herself or her family) or to take other protective steps.
On invitation of the Court to address the question of notification of additional third parties, it was mutually submitted that there was no difficulty, if the Court considered it appropriate, for the Court’s Registrar to refer these reasons to the relevant police authority in the event that they thought it appropriate to the notify the victim of David’s offending.
Such referral is the exercise of an administrative function of the Court and is not the exercise of a judicial power: B1 v B2 [2017] NSWDC 252 at [19]; Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96 at [16]-[18].
Conscious of the need to protect David’s identity in any publication of these reasons, I would commend the Registrar of the Court to take appropriate administrative action to notify the local police authority, so that they may (if they consider it appropriate to do so) immediately notify the victim of David’s prior offending, of the fact of David’s release.
I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 28 February 2024
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