DXN21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 589
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DXN21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] FedCFamC2G 589
File number(s): MLG 3047 of 2021 Judgment of: JUDGE A KELLY Date of judgment: 27 July 2022 Catchwords: MIGRATION – removal from Australia – where applicant Sri Lankan national moved to India as refugee – where applicant had been granted protection visa – where applicant convicted of sexual offence involving a child – where visa cancelled on character grounds – where applicant detained as unlawful non-citizen – where applicant made written request of the Minister that he be removed from Australia – necessity for identity papers – where Sri Lankan government refused to permit applicant enter country – where applicant alleged officers of Commonwealth had failed and continued to fail to perform the duty imposed by s 198(1) of the Migration Act 1958 (Cth) to remove him from Australia as soon as reasonably practicable – where applicant sought relief in the nature of a writ of mandamus – where applicant bears onus of proving there has been a refusal or failure to perform the duty in s 198 – statutory framework respecting detention and removal of unlawful non-citizens from Australia – principles informing mandamus and onus of proof – whether applicant for mandamus required to plead and prove specific matters relied on as grounding entitlement to remedy of mandamus – whether necessary to identify specific steps that would be feasible, reasonable and practicable to effect removal as soon as possible – whether such steps are matters of common knowledge or require technical or expert evidence – where parties afforded opportunity to make further submissions in respect to Swain v Waverley City Council (2004) 220 CLR 517 – whether applicant had discharged his burden of proof for mandamus – application granted.
PREROGATIVE WRITS – where applicant in detention seeks relief in the nature of a writ of mandamus grounded upon conduct by officers of the Executive alleged to have been dilatory in and about performance of duty of removal – applicable principles – distinction to claim grounded upon simple refusal to perform duty – distinction to claim grounded upon erroneous view of law by officers respecting limitations upon duty of removal – necessity to demonstrate failure in performance preceding institution of application for judicial review and continuing to judgment – nature of relief inherently discretionary – whether evaluation of future conduct by Executive informs grant or withholding of relief.
EVIDENCE – onus of proof on judicial review – legal and evidentiary onus borne by applicant – elements of proof – whether applicant required to identify particular steps being relied upon to advance claim includes feasibility and reasonable practicability of suggested steps – whether such steps may be matters of common knowledge or experience – whether steps are of a kind for which technical or expert or other evidence is required – where pleadings do not identify any such suggested steps – where Executive not required to imagine universe of possible steps that “could and should have been taken” – where Executive may be called upon to explain its conduct in a particular case – where circumstances may be decisive in finding onus has been discharged if plaintiff’s evidence unanswered or there has been no further evidence adduced by respondents – other evidentiary considerations material to determination.
Legislation: Constitution, s 75(v)
Evidence Act 1995 (Cth), ss 140, 144
Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 5, 169
Migration Act 1958 (Cth), ss 4, 5, 14, 29, 36, 42, 45, 65, 68, 77, 82, 189, 195A, 196, 197AB, 197C, 198, 501, 501CA,
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 9, 23, 29
High Court Rules 2004 (Cth), r 25.13
Migration Regulations 1994 (Cth), reg 2.52
Cases cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
AJL20 v Commonwealth (2020) 279 FCR 549
Al-Kateb v Godwin (2004) 219 CLR 562
AOU21 v Minister for Home Affairs [2021] FCAFC 60
AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424
Arthur as litigation representative for CYG20 v Commonwealth [2021] FCA 259
AZC20 v Minister for Home Affairs [2021] FCA 1234
Bagg’s Case (1615) 11 Co Rep 93, (1616) 77 ER 1271
Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 661
Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 16
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
Blatch v Archer (1774) 98 ER 969
Bowman v Commonwealth of Australia [2022] FCA 594
Braverus Maritime Inc v Port Kembla Coal Terminal Ltd (2005) 148 FCR 68
Chamoun v Commonwealth of Australia [2021] FCA 740
Coca-Cola Amatil (NSW) Pty Ltd v Pareezer (2008) Aust Torts Reports ¶81–834
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466
Commonwealth v AJL20 (2021) 95 ALJR 567
DFE16 v Minister for Home Affairs [2021] FCA 1151
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 353
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213
Duncan v Camel Laird [1942] AC 624
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173, (2021) 395 ALR 36
General Motors-Holdens Pty Ltd v Bowling (1976) 51 ALJR 235
John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
Laybutt v Glover Gibbs Pty Ltd (2005) 79 ALJR 1808
M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 146
Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292
Mastipour v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] FCA 1571
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Multicultural and Indigenous
Affairs v Al Masri (2003) 126 FCR 54
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EPL20
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Sillars [2022] HCASL 9
Minister for Immigration and Multicultural Affairs v Eshetu (1990) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1
Minister for the Environment v Sharma (2022) 400 ALR 203
Minogue v Shuard (in her capacity as Correctional Services Commissioner) [2017] VSCA 267
MRR v GR (2010) 240 CLR 461
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506
Nationwide News Pty Ltd v Rush (2020) 380 ALR 432
New South Wales v Fahy (2007) 232 CLR 486
Obeid v The Queen (2017) 96 NSWLR 155
Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404
P&C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366
Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia (No 2) [2022] FCA 593
Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42
Plaintiff M76/2013 v Minister for Immigration and Border Protection (2013) 251 CLR 322
Plaintiff M96A/2016 v Commonwealth (2017) 261 CLR 582
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
R v Barker (1762) 3 Burr 1265
R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsman of Australia (1950) 82 CLR 54
R v Building Controller; Ex parte Marinov (1981) 36 ACTR 13
R v Commissioner of Metropolitan Police; Ex parte Blackburn [1968] 2 QB 118
R v Kensington and Chelsea London Borough Council (1976) 74 LGR (UK) 424
Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993) 178 CLR 379
Re Woolley; Ex parte M276/2003 (2004) 225 CLR 1
Rosenberg v Percival (2001) 205 CLR 434
Ruddock v Taylor (2005) 222 CLR 612
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174, 394 ALR 347
Snedden v Minister for Justice (2014) 230 FCR 82
Sullivan v Moody (2001) 207 CLR 562
Swain v Waverley City Council (2004) 220 CLR 517
SYVB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 60
SZSZM v Secretary, Department of Immigration and Border Protection [2016] FCA 1477
Tran v Commonwealth of Australia [2021] FCA 580
WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625
WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 84 ALD 655
White v Calstores Pty Ltd [2006] QCA 535
Other materials Explanatory Memorandum, Border Protection Legislation Amendment Bill 1999 (Cth), item 32
Federal Court of Australia, Migration Practice Note – Removal from Australia of Immigration Detainees who have Proceedings before the Court (MIG-2), 7 March 2022
Harry Woolf, De Smith’s Judicial Review (Sweet & Maxwell, 8th ed, 2018)
Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomas Reuters, 7th ed, 2022)
Michael Supperstone, James Goudie and Paul Walker, Judicial Review (LexisNexis, 4th ed, 2005)
John D Heydon, Cross on Evidence (LexisNexis,13th ed, 2021)
Perry Herzfeld and Thomas Prince, Interpretation (Thomas Reuters, 2nd ed, 2020)
Division: Division 2 General Federal Law Number of paragraphs: 350 Dates of hearing: 13 April, 16 May 2022 Place: Melbourne Counsel for the Applicant: Mr J. Hartley Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondents: Ms S. Spottiswood (13 April 2022)
Mr S. Lloyd, QC with Ms S. Spottiswood (16 May 2022)Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 3047 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DXN21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR
First Respondent
SECRETARY, DEPARTMENT OF HOME AFFAIRS
Second Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
27 JULY 2022
THE COURT DECLARES THAT:
1.As at this date, and in responding to the applicant’s written request that he be removed from Australia as soon as possible, officers of the Commonwealth have failed in their duty under section 198(1) of the Migration Act 1958 (Cth) to do so.
THE COURT ORDERS THAT:
2.Pursuant to ss 202-203 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
3.The amended application dated 30 December 2021 be allowed.
4.A writ of mandamus issue in the form annexed to this Order.
5.The writ of mandamus is returnable at 10.00am on Tuesday, 13 September 2022.
6.The procedure for the return of the writ of mandamus is to be the procedure set out in rule 25.13 of the High Court Rules 2004 (Cth).
7.Pursuant to s 169(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), upon the filing and service of the affidavit required by the writ of mandamus issued in the form annexed to this Order, the parties be referred to mediation before a Registrar of the Court.
8.The matter be listed for a further case management hearing on a date to be fixed.
9.The respondents pay the applicant’s costs of the proceeding, as agreed or assessed.
THE COURT NOTES THAT:
10.Paragraph 6 of this Order is made pursuant to r 29.12 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
WRIT OF MANDAMUS
Federal Circuit and Family Court of Australia MLG3047/2021 Registry: Melbourne DXN21
Applicant
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
SECRETARY, DEPARTMENT OF HOME AFFAIRS
Second Respondent
ELIZABETH THE SECOND, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth:
To: Mr Michael Pezzullo, A.O., Secretary of the Department of Home Affairs, THIS WRIT COMMANDS you to make all inquiries and do all things as may be reasonably necessary to enable an officer, within the meaning of s 5 of the Migration Act 1958 (Cth), to perform the duty to remove as soon as reasonably practicable the applicant from Australia consequent upon his request made on 17 November 2018 pursuant to s 198(1) of that Act.
YOU ARE REQUIRED TO make a return to this Writ by filing and, serving on the applicant, an affidavit on or before 4:00pm on Tuesday, 6 September 2022 deposing to whether you have done what you are commanded to do by this Writ or why it has not been done.
TAKE NOTICE that disobeying this Writ is a contempt of Court which may be punished by imprisonment, fine or both.
Date: 27 July 2022
……………………………..
RegistrarNote: 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).
TABLE OF CONTENTS
INTRODUCTION [1] BACKGROUND [4] PROCEDURAL HISTORY [11] PLEADED ISSUES [25] STATUTORY FRAMEWORK AND LEGAL PRINCIPLES [45] Detention and removal [52] Duty & power of removal [65] Reasonably practicable [74] Lack of co-operation by other countries [82] RELIEF IN THE NATURE OF A WRIT OF MANDAMUS [86] ONUS OF PROOF [102] Nature of the proceeding and relief sought [103] Relief grounded on delay [109] Other issues informing onus and the specific ground for relief [114] EVIDENCE [133] FINDINGS ON THE EVIDENCE [141] (1) Overview [143] (2) Request for removal [145] (3) Demands for, and inability to provide, proof of identity [161] (4) Non-referral to Colombo Post [165] (5) Lack of progress [189] (6) Further travel document applications [203] (7) Complex Identity Unit referral [206] (8) Dealings with Colombo Post [214] (9) Interview by Sri Lankan authorities [224] (10) Recent communications with village head [231] (11) Other evidence [239] (12) Evaluation [240] SUBMISSIONS [243] CONSIDERATION [252] RESOLUTION [288] GRANT OR REFUSAL OF RELIEF? [319] DECLARATIONS [331] MEDIATION [343] CONCLUSION [347] REASONS FOR JUDGMENT
KELLY A, J
INTRODUCTION
By amended application filed 30 December 2021, the applicant seeks declaratory and other relief in the nature of mandamus to compel the respondents to exercise a duty, the alleged failure in the exercise of which is grounded upon the applicant not having been removed from Australia as soon as reasonably practicable following his request, in writing, to be so removed. Duty to do so may arise under s 198(1) of the Migration Act 1958 (Cth) (Act).
I conclude the application should be granted. This case was finely balanced. I am satisfied the applicant has discharged his onus of proving an entitlement to relief. In summary, I have found that there have been periods prior to the institution of this proceeding which were marked by inactivity by those officers of the Executive charged with responsibility for performance of the duty to remove the applicant from Australia upon his written request to be so removed. While the court must be satisfied that non-performance of a public duty must continue to the date of judgment, and accepting there has been a marked increase in activity since shortly before and following the commencement of the proceeding, having regard to the legal and evidentiary onus which is carried by an applicant for the remedy of mandamus, I am left with an actual sense of persuasion that the avowed activity which has been indicated is unlikely to continue unless the remedy is granted. I am equally satisfied that the officers charged with performance of the duty under s 198 are in an invidious position. Nothing in these reasons should be misunderstood as any form of criticism or challenge to the sincerity of the position advanced by the Executive. To the contrary, the remedy has little to do with the parties’ subjective intentions. Objectively, I am satisfied non-performance of the duty will most likely continue and that the applicant’s removal will meander unless mandamus is granted.
Problems of the kind presented in this case are a direct consequence of intractable provisions in the Act. Those problems will not abate unless they are addressed by the Parliament. A duty arising under s 198 cannot be erased. Until it has been performed an unlawful non-citizen must be detained. Such a person can only regain their liberty by removal from Australia. Mandamus is an available discretionary remedy where no other remedy is available.
BACKGROUND
The applicant, a male Sri Lankan citizen, was born in Jaffna, Sri Lanka, in 1984. With his family, he moved to India in 1990 where they resided as refugees. The applicant first came to Australia on 11 May 2010 doing so as an unauthorised maritime arrival. He was granted a Bridging (Subclass 050) visa on 20 December 2011 and a protection visa on 27 August 2012.
On 24 November 2017, the applicant’s protection visa was replaced with a Class BB Subclass 155 Five Year Resident Return visa (visa).
On 28 June 2018, the applicant was convicted in the Local Court of NSW of indecent assault upon a 12 year old girl. He was sentenced to a term of 10 months and 15 days imprisonment. Within the miscellaneous provisions comprising Part 9 of the Act, s 501 addresses the mandatory cancellation of a visa on character grounds, including, relevantly, in circumstances where the First Respondent (Minister) has been satisfied that a person has been convicted of a sexually based offence involving a child. On 4 September 2018, the applicant’s visa was cancelled by a delegate of the Minister and consequently, he became an “unlawful non-citizen”: Act, s 14(1). For that reason, the applicant was placed in detention: Act, s 189(1).
The day following his detention, on 17 November 2018, the applicant asked the Minister, in writing, to be removed from Australia pursuant to s 198(1) of the Act. According to the request, the Removal destination inserted in the fomr was “Colombo, Sri Lanka”. By contrast, the attached pro forma Request for Removal from Australia merely stated: “I am an unlawful non-citizen and I request that the Department of Home Affairs/Australian Border Force remove me from Australia in accordance with s 198(1) of the Migration Act 1958 (the Act), which states that an officer must remove as soon reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.” To the extent the parties are in dispute as to the construction of those documents, and where that was a pro forma part of the statement (the applicant having otherwise required the assistance of an interpreter), I do not treat the request as reflecting an affirmative intention on the part of the applicant to be removed to anywhere in the world. Rather, it may be fairly understood as a request to be removed from Australia.
To this date the Sri Lankan government has not issued the applicant with a travel document which would permit him to enter Sri Lanka. That is because he has insufficient identification documents. It is common ground that the applicant has not yet been removed from Australia pursuant to s 198 of the Act. The facts and circumstances bearing upon consideration of the applicant’s removal from Australia are examined below.
The applicant accepts the Minister’s cancellation decision. The current controversy between the applicant and the Minister relates to compliance of the statutory duty of the Commonwealth to discharge the s 198 duty by removing him from Australia as soon as reasonably practicable.
Upon the amended pleadings, what was said to be the single issue raised for determination was whether or not there has been, and currently is, compliance with the duty in s 198(1) of the Act to remove the applicant from Australia as soon as reasonably practicable.
PROCEDURAL HISTORY
On 25 November 2021, the applicant filed an application for judicial review. In that part of the application which addressed the topic, Migration decision details, the Minister’s ‘decision’ was described as being “Continuing” and as concerning “A future decision or other action by the Minister or an officer under the Migration Act.” The applicant claimed declaratory relief that the Minister had not performed a duty required by s 501CA(3) of the Act in that the notice given to him respecting the entitlement to make representations concerning the cancellation decision did not comply with certain requirements of the Migration Regulations 1994 (Cth). Relief in the nature of a writ of mandamus was sought requiring the Minister to perform the duty required by s 501CA(3) by giving him proper notice under the regulations. Relief was also sought for an extension of time to make representations under par 501CA(3)(b). In the event, it was necessary to pursue the application for this relief: see at [17] below.
As relevant to the present application, alternative relief was sought, again for relief in the nature of a writ of mandamus, “directing the Minister to perform the duty under s 198 of the Act to, as soon as reasonably practicable, remove him from Australia.”
Although the applicant also sought an extension of time, this too became unnecessary and was abandoned by deletion upon the filing of an amended application on 30 December 2021. The extension of time had been sought because, in the period between the making of the cancellation decision and the application for judicial review, the Full Court of the Federal Court of Australia decided Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174, 394 ALR 347 which determined a complex point of statutory construction respecting the combined operation of par 501CA(4) of the Act and reg 2.52(2)(b) of the regulations, holding that the appellant had not been extended an invitation to make representations in relation to a cancellation decision in accordance with those regulations.
By a response filed on 6 December 2021, the respondents opposed the application on the stated basis the court had no jurisdiction to review the Minister’s decision and the application for judicial review did not establish any jurisdictional error. The respondents sought that the application be listed for a first date pending the finalisation of applications for special leave to appeal to the High Court in both Sillars and EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173, (2021) 395 ALR 36 (which proceeding was transferred for hearing by a Full Court together with the appeal in Sillars).
Orders were sought that the matter be heard on an expedited basis.
On 24 December 2021, orders were made by consent granting leave to amend the statement of claim and originating application.
Recorded in the consent order made on 24 December 2021 was the parties’ agreement that by 31 December 2021, the applicant would be issued a notice in accordance with s 501CA(3). The fact of that agreement reflected the result of the outcome of Sillars on appeal.
Other procedural orders were made on that date, including in relation to pleadings, evidence and for the making of discovery by the Minister of documents relevant to the question of the steps taken with a view to removal of the applicant. The application was set down for hearing. While a series of further orders were made on 1 February, 3 March, 23 March and 6 April 2022, it is unnecessary to address the detail of those procedural orders. However, the circumstance that orders were made, by consent, for pleadings is not without some significance, particularly where each party was ever ready to take a pleading point against the other.
The hearing was conducted on 13 April and 16 May 2022. While the court had been disposed to conduct the second day of hearing earlier than 16 May 2022, this was not possible due to Covid-19 issues and the unavailability of counsel to complete the hearing on earlier dates.
Before the hearing, on 22 February 2022, applications for special leave to appeal the decisions in Sillars and EPL20 were dismissed on the papers: [2022] HCASL 9. On the second day of the hearing, counsel for the Minister also confirmed that it was not intended to pursue any appeal from BHL19 v The Commonwealth (No 2) [2022] FCA 313.
On the eve of the first day of hearing a raft of further documents and objections were filed. The lateness of filing much of that material has had some impact upon the delivery of these reasons for judgment (as did the supply of five lever arch folders of authorities). After rulings were given on 13 April 2022 in relation to a series of objections to parts of the evidence, an order was made by consent on 22 April 2022, recording that the parties were agreed upon the grant of leave to rely upon certain affidavits, the limited purposes for which parts of certain affidavits might be relied upon and in striking out parts of other affidavits.
The court also raised for consideration the precise form of relief that was being sought and submitted to be appropriate in the final determination of the case.
Conformably with the duties of a model litigant, the parties’ solicitors drew my attention to the Federal Court Migration Practice Note respecting Removal from Australia of Immigration Detainees who have Proceedings before the Court (MIG-2) and which I have considered. What was not made clear was whether the applicant, as a voluntary returnee, did or did not agree to his return before the finalisation of his case: MIG-2, cl 2.1. Nothing in the proceeding occurred to indicate any want of compliance by the Minister with the requirements of MIG-2.
Before turning to the evidence, it is convenient to address the pleaded issues, the statutory framework and legal principles relevant to the application and the relief claimed.
PLEADED ISSUES
The grounds on which relief was sought were stated in the applicant’s statement of claim. As noted, the applicant amended this pleading on 30 December 2021. By the amended pleading many paragraphs were deleted. While the Minister filed a defence to the original statement of claim, that defence also stood as the pleading to the amended statement of claim. Issues that were agreed or presented for determination on the pleading were as follows.
The parties agree the cancellation decision was made on about 4 September 2018.
It is also common ground that since 4 September 2018, the applicant has been an unlawful non-citizen within the meaning of the Act and that on 17 November 2018, he made a written request of the Minister pursuant to s 198(1) of the Act to be removed from Australia.
The scope of the duty and power conferred by that section lie at the heart of this proceeding. It is, however, agreed that since the making of his request, the effect of s 198(1) of the Act has been to require his removal from Australia as soon as reasonably practicable.
By s 5 of the Act, seven categories of person are designated as “officers” for the purposes of the Act. As to this, the parties were generally agreed that at various times between late 2018 and the present date, certain officers have made applications to Sri Lankan authorities for the provision of “Sri Lankan travel documents” in relation to the applicant. While the applicant particularised this allegation by expressing a belief that such applications had been made on three occasions (17 December 2018, 22 February 2019 and 2 April 2019) and possibly on two further occasions (15 February and 17 June 2021), the Minister contended such applications had been made on 17 December 2018, 21 February 2019 and 24 November 2021.
To the extent there was agreement as to the making of applications for Sri Lankan travel documents by such officers to the Sri Lankan authorities, it was agreed one such application had been made on 17 December 2018. Most surprisingly, the parties joined issue on the making of any further applications by those officers to Sri Lankan authorities.
For the Minister, it was further contended that, apart from the applications made by its officers to those authorities on the dates so identified, there had, in addition, been a visit to the Sri Lankan High Commission made on 22 February 2019 in the course of which the visiting officer was “advised that a support letter provided by the applicant concerning his identity was required to be signed and stamped as Sri Lanka would not otherwise accept the support letter.” The applicant joined issue on this contention.
The Minister contended that until 22 November 2022, the applicant had refused or otherwise not provided a signed and stamped support letter. In support of this contention, the Minister identified by way of particulars three emails dated 22 and 26 February 2019 and 22 November 2021 respectively together with a document styled General Referral for Mental Health and Stakeholder Information Sheet dated 26 February 2019. Responding to those contentions, the applicant stated by way of reply that at a time when he was in detention in Sydney in early 2019, his caseworker, a person he believed to be an ABF officer, Christina (whom I infer was a person named Cemile), requested that he procure a document showing his Sri Lankan origins. The applicant further responded that at an unspecified time he spoke by telephone with a non-blood relative in Sri Lanka (a person named Alwis), requesting assistance for a document of the kind being sought by his case officer, Cemile, and that in consequence Alwis spoke to a village “head man” who produced a letter dated 6 February 2018 which the applicant gave to his caseworker. By his reply, the applicant further contended that his caseworker asked for the 6 February 2018 letter to be signed and sealed and that this request was conveyed by Alwis to the head man who in turn declined to do so. In about February 2019, the applicant told his caseworker he could not procure a signed and sealed version of that letter. The applicant further contended that during a conversation with his caseworker in February 2019, Cemile “informed him she would go to Canberra to try to sort it out.”
The applicant contended that in addition to the events described above, from early 2019 and from time to time, he had telephoned the Sri Lankan High Commission in Australia asking how he could leave Australia and that in response to those inquiries was told his birth certificate was not acceptable and for that reason he would not be issued a Sri Lankan travel document. He further stated that he relayed these matters to his caseworker also.
Insofar as the Minister contended the applicant had not provided a signed and stamped support letter until 22 November 2021, the applicant responded that the signature appearing on the letter he had provided to the Department on that date was his signature and not the signature of the village head man. Furthermore, he contended that the letter provided at that time was so provided in circumstances where he struggled to read English, but thought that in doing so he had complied with a request by another ABF officer, Chris, made by email transmitted on 15 November 2021. To the extent this email suggested Chris had spoken with the applicant on that date, the applicant denied any such discussion.
The applicant contended that at no stage between early 2019 and November 2021 (a period of nearly three years), had the issue of a support letter been raised with him by any officer.
The parties were agreed that each application made by an officer to the Sri Lankan authorities for the provision of travel documents in relation to the applicant had been rejected on the basis that insufficient information identifying the applicant had been supplied. For the Minister, it was contended that to date, the Sri Lankan authorities had not yet advised the respondents of the outcome of a travel document application made on 24 November 2021.
As concerned provision by the applicant of all identification documents as were in his possession, the parties were at issue whether the applicant had supplied all such documents to officers by no later than January 2019. There was some agreement whether by January 2019 or alternatively September 2019, the applicant told the officers he was not able to provide them with any additional identification documents. As to these matters, the applicant relied upon emails passing between an acting senior officer of ABF to unidentified recipients transmitted on 9 January and 18 September 2019 respectively. The Minister admitted that on those dates the applicant had variously told officers of the ABF that he did not have a Sri Lankan ID card or any other form of identification and that, on the later date, he said there were no other identification documents which he could provide.
There was some agreement that by no later than 1 October 2019, alternatively, 20 November 2019, officers knew Sri Lankan authorities would not issue the applicant with a travel document and further that Indian authorities would not do so either. Concerning these matters, the applicant relied upon an email transmitted on 1 October 2019 by an acting supervisor of the ABF together with a document dated 20 November 2019 that had been prepared by an unidentified case officer and entitled s 195A Guidelines Assessment for a person in s 189 detention. For the Minister, it was contended that by 1 October 2019, ABF officers knew: (a) Sri Lankan authorities would only issue the applicant with a travel document if those authorities were provided by the applicant with, and satisfied by, sufficient identification documents demonstrating his Sri Lankan citizenship; (b) Indian authorities had informed them that India would not issue the applicant with a travel document.
The Minister further contended that the actions and decisions of both Sri Lankan and Indian authorities were outside of the respondents’ control. So much may be accepted.
The applicant alleged, and the Minister denied, officers had failed and were continuing to fail to perform the duty imposed by s 198(1) of the Act to remove him from Australia as soon as reasonably practicable. The following was alleged in addition to those matters:
(a)officers had at no time taken any step in furtherance of removing the applicant to any place other than Sri Lanka or India. To this the Minister contended: the respondents were not aware of the applicant holding citizenship or otherwise possessing a right to reside in any place other than Sri Lanka; Sri Lanka required a travel document to be issued by its authorities before the applicant was able to be removed to Sri Lanka; between January 2019 and the present, those authorities had not accepted the travel document applications made by officers on behalf of the applicant “due to insufficient identification documentation as evidence of [his] Sri Lankan citizenship”; throughout the period November 2018 to date ABF officers had taken steps to obtain identification documents in support of the Sri Lankan travel document applications and to consider alternatives to his removal to Sri Lanka (providing 11 particulars of having done so);
(b)officers had not taken any steps, of any kind, to remove the applicant from Australia “between around October 2019 and January 2021 (alternatively, September 2020).” For the Minister, several steps taken by such officers toward removal were identified, including by booking flights to Sri Lanka planned for 4 February and 26 August 2019 (such removal not being possible where Sri Lankan authorities had not issued the applicant with a travel document). The Minister further contended that: had Sri Lankan travel documents been able to be obtained, removal would have occurred; difficulties of removal were compounded by the Covid-19 pandemic including by the cessation by Sri Lankan authorities in issuing travel documents, restrictions on flights to Sri Lanka and the associated unavailability of escorts. It was also contended that in April 2019 and February 2021 the applicant had been referred for consideration of Ministerial decisions on visas under ss 195A and/or 197AB of the Act but that he had been assessed in each case as not meeting guidelines for such referrals;
(c)the only steps taken by those officers had been the submission of travel document applications to Sri Lankan authorities, such applications being submitted in circumstances where earlier applications, based on the same identification documents had been rejected and such officers either knew or ought to have known that renewed applications would also be rejected;
(d)at no time had officers sought to procure travel documentation for the applicant (other than from Sri Lanka or India), such as a Convention Travel Document. To this, the Minister contended that a Convention Travel Document did not confer a right of entry or stay in Sri Lanka or any other place. It was further contended for the Minister that on 28 February 2019, ABF officers had considered whether a Certificate of Identity may assist the applicant’s removal to Sri Lanka and decided that it would not do so. Otherwise, the Minister admitted these allegations;
(e)despite Sri Lanka having since 2018 rejected travel document applications for the applicant on the basis of insufficient information, it was common ground that:
(i)as at 26 February 2021, the option of referral to the Department’s Complex Identity unit had not been considered;
(ii)as at 1 July 2021, the option of referral to that unit had not been taken.
As concerned a Convention Travel Document, by the penultimate paragraph of his reply, the applicant asserted, for the first time, that “a Convention Travel Document would enable the Applicant to enter a number of countries visa-free including, without limitation, Germany.”
By way of particulars to the allegation that officers had been failing and were continuing to fail to perform the duty arising under s 198(1) of the Act, the applicant also pleaded that it was not necessary for him to succeed in the proceeding for him “to demonstrate the date from which the Executive commenced to be dilatory in performing the duties imposed on it. The Applicant will submit, however (so far as it is necessary to so submit) that the date is January 2019, alternatively September 2019, alternatively October 2019.”
Relatedly, nowhere in the applicant’s amended statement of claim or reply was any reference made to an issue of so-called citizenship by investment (a ‘golden’ passport) whereby, as the argument ran, the discharge or performance of the duty arising under s 198 of the Act was said to involve some sort of comparative cost/benefit analysis of the costs of the applicant remaining in detention versus the costs to the Commonwealth of paying another country to accept the applicant for the purposes of his removal from Australia. The issue was not raised on the pleadings and, in light of the lateness of the relevant affidavits and the Minister being taken by surprise, I ruled in favour of the objection to that evidence. For completeness, I note counsel for the applicant accepted that if this evidence fell beyond the pleaded issues it should not be admitted. This ruling also disposed of the applicant’s notice to admit.
Having regard to the principles considered below respecting the onus of proof in an application for judicial review (as distinct from a common-law claim for damages for wrongful detention or a claim for habeus corpus), it may be of some future importance to recognise the ambit of the issues that were brought forward for determination by the applicant and whether, in particular, there was any lacuna in the pleaded case to be met by the Commonwealth respecting the identity of those other countries to which inquiries of removal could or should have been made: cf BHL19, [2022] FCA 313, [44], [168]-[174]. In this case, the applicant’s pleaded case only suggested Germany may be a country that would accept a Convention Travel Document for the limited purpose of entry. No other countries to which the Executive ought to have made enquiries respecting removal were identified. The pleaded claim was that at no time had any officers taken any step in furtherance of removing him “to any place other than Sri Lanka or India.” Yet his evidence and submissions suggested the Commonwealth ought to have explored such options with Germany and that there “must have been” other countries of which inquiries ought to have been made. This approach seemed squarely in conflict with the reasoning of Wigney J BHL19 at [171] which reasoning, the applicant said was ‘mistaken’.
STATUTORY FRAMEWORK AND LEGAL PRINCIPLES
The nuanced nature of the duty and power conferred by s 198 to remove a person from Australia on request warrants examination. To do so requires consideration of that provision in the context of the Act having regard to its objects.
The object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. In the advancement of that object, the Act provides for visas permitting non-citizens to enter or remain in Australia, it being intended that the Act is the only source of a non-citizen’s right to so enter or remain in this country and that the Act should provide for the removal or deportation from Australia of non-citizens whose presence in Australia is not, or is no longer, permitted: Act, s 4.
Subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to travel to, enter and remain in Australia: Act, s 29(1). A non-citizen who wants a visa, must, subject to the Act and regulations, apply for a visa of a particular class: Act, s 45(1).
As appears below, some attention was drawn to s 42 of the Act, Visa is essential for travel. Subsection 42(1) provides that a non-citizen must not travel to Australia without a visa that is in effect. However, this proscription is subject, relevantly, to par 42(2A)(d) which reads:
(2A) Subsection (1) does not apply to a non-citizen in relation to travel to Australia:
(a)-(c) . . .
(d) if:
(i) an attempt to remove the non-citizen under section 198 to another country was made but the removal was not completed; and
(ii) the non-citizen travels to Australia as a direct result of the removal not been completed; and
(iii) the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizens; or
(da)-(e) . . .
See Explanatory Memorandum, Border Protection Legislation Amendment Bill 1999, Item 32.
The Act makes extensive provision for the discrete circumstances in which a visa may be cancelled. Within Pt. 2 of the Act, each of Sub-div C, D, E, F, FA, FB, G, GB, GC and H of Div 3 address the circumstances in which a visa may be cancelled (and the respective procedures to each form of cancellation). Elsewhere, in Div 2 of Pt 9 of the Act, further provision is made for the cancellation of a visa, including upon character grounds.
It should be recognised each cancellation power lies within a particular statutory framework. In particular, the Act distinguishes between circumstances in which a visa may be cancelled, albeit subject to the exercise of a Ministerial discretion not to do so, from those circumstances in which, as here, the visa cancellation is mandatory.
A visa that is cancelled ceases to be in effect upon cancellation: Act, ss 68(1), 77, 82(1).
Detention and removal
Division 7 of Pt 2 which concerns the subject, Detention of unlawful non-citizens, is arranged in two sub-divisions and comprises ss 188-197AG. Division 8 of Pt 2 concerns the subject, Removal of unlawful non-citizens, is also in two sub-divisions and comprises ss 197C-199. While these provisions interact, I agree it is of fundamental importance to maintain the distinction between the powers and duties conferred and created with Divs 7 and Div 8 respectively: Commonwealth v AJL20(2021) 95 ALJR 567 at [110], [142] (Edelman J).
Upon cancellation, a person who had held a valid visa becomes an unlawful non-citizen. Persons who are unlawful non-citizens are to be detained and removed from Australia as soon as reasonably practicable, including, as here, where the non-citizen asks the Minister, in writing, to be so removed: Act, ss 14, 189, 196, 198. And although it would later be disapproved on another issue, in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 at [35] Black CJ, Sundberg and Weinberg JJ held there was “no power under the Act to decide against the removal of an un-lawful non-citizen and so that where a subsection of s 198 applies to an unlawful non-citizen the removal of that person would occur by force of law.” Removal is mandatory. The reasoning in Al Masri would be echoed in more recent authority which recognised that once ss 189 and 198 are engaged, the duty of removal cannot be erased.
Section 14, which defines the term, unlawful non-citizen, need not be examined.
Section 189(1), imposes a duty to detain “[i]f an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non- citizen.” The term detain as defined in s 5(1) of the Act includes the taking of a person into immigration detention, a term also defined by s 5. While that term includes three types of detention, it is unnecessary to examine that issue: cfMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52, [78] (Jagot, Mortimer and Abraham JJ).
Section 189(1) does not confer a discretion. An officer must detain a person if the relevant state of mind is held: Ruddock v Taylor (2005) 222 CLR 612 at [11] (Gleeson CJ, Gummow, Hayne and Heydon JJ), [234] (Callinan J). Detention then becomes an obligation imposed on the Executive subject to, and for, the purposes of the Act, including removal. Where s 189(1) applies, detention is mandatory and not, as in some other jurisdictions, discretionary. Thus, considerations that might bear upon the reasonableness of a discretionary decision to detain do not operate: Al-Kateb v Godwin (2004) 219 CLR 562 at [1], [3]-[4], [12], [17], [35], [89]-[90], [199], [223]-[229], [254], [303]; AJL20 (2021) 95 ALJR 567 at [33] (Kiefel CJ, Keane, Gageler, Steward JJ), [85] (Gordon and Gleeson JJ). As the reasoning in Al Kateb demonstrates, having regard to the objects of the Act, purposes of detention include a primary purpose of the non-citizens removal from Australia and the segregation of a non-citizen from the Australian community, including of those who may be dangerous. Read with the objects of the Act, a person who is an unlawful non-citizen must be detained – that is, cannot enter the Australian community – and must continue to be detained until he or she has been removed from Australia.
Importantly, the duration of detention is addressed by s 196(1) which provides that “[a]n unlawful non-citizen detained under section 189 must be kept in immigration detention until” one of four things happens, including, relevantly, where “he or she is removed from Australia under section 198”: par 196(1)(a). ‘Remove’ is defined by s 5 and means remove from Australia. At the latest, removal is complete at the point where the detainee has been admitted into the receiving country: NATB v Minister for Immigration (2003) 133 FCR 506, [53] (the Court). The applicant submitted that further contextual support for the conclusion that removal was complete upon entry into a receiving country was founded in par 42(2A)(da)(i). While counsel for the respondents identified reasons why that submission may well be unsound, it is unnecessary to examine this issue further in this case.
Section 198 of the Act provides for the removal from Australia of unlawful non-citizens in certain specified circumstances. It contains 16 subsections, only two of which are relevant. Other forms of removal are not relevant.
Subsection 198(1), Removal on request, is in the following terms:
198 Removal from Australia of unlawful non-citizens
Removal on request
(1)An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minster, in writing, to be so removed.
Subsection 198(6), concerns an officer’s obligation to remove a non-citizen as soon as is reasonably practicable. Paragraph 198(6)(a) reads:
(6)An officer must remove as soon reasonably practicable and unlawful non-citizen if:
(a)the non-citizen is a detainee; and . . .
For the purposes of the present application, s 198(6) is of contextual importance as confirming that “the authority and obligation of the Executive to detain unlawful non-citizens is hedged about by enforceable duties, such as that in s 198(6), that give effect to legitimate non-punitive purposes”: ALJ20 (2021) 95 ALJR 567, [44], [52] (Kiefel CJ, Gageler, Keane and Steward JJ). The pluralities use of the phrase hedging duties at [52] may perhaps be understood as standing in contrast with the legislative conferral of powers which are not so hedged about by limitations not contained in the express terms of a subject provision: cf Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404, 421. It is an unfamiliar expression.
Detention effects the purpose of preventing a non-citizen from entering or remaining in Australia. While the purpose of removal places a temporal limit upon the period of detention, ss 189, 196 and 198 operate upon an implicit assumption that difficulty in removal may be inevitable in many cases where the non-compellable co-operation required of a receiving country is not forthcoming, as may occur in the case of stateless persons and/or those convicted of serious offences: “The obligation, however, in its nature is subject to the possibility that it cannot be fulfilled for reasons unrelated to any fault on the part of the detainer, or the detainee.” Al-Kateb, (2004) 219 CLR 562, [7], [12] (Gleeson CJ), [218], [226] (Hayne J, Heydon J agreeing).
In Al-Kateb, Hayne J at [223] and [254] (McHugh J at [33] and Heydon J agreeing at [303]) characterised ss 189(1), 196 and 198 as creating an obligation which required detention where an officer knew or reasonably suspected that a person in Australia was an unlawful non-citizen. McHugh J, while regarding the case as tragic, concluded at [33]:
For the reasons given by Hayne J, ss 189, 196 and 198 of the Act require Mr Al-Kateb to be kept in immigration detention until he is removed from Australia. The words of ss 196 and 198 are unambiguous. They require the indefinite detention of Mr Al-Kateb, notwithstanding that it is unlikely that any country in the reasonably foreseeable future will give him entry to that country. The words of the three sections are too clear to read them as being subject to a purposive limitation or an intention not to affect fundamental rights.
As Al-Kateb shows, the impact and consequences of long term detention are not of recent event.
In the context of this Act, purposes of detention are protective of the community and are not punitive. For that reason, amongst others, unlawful non-citizens have no unqualified immunity from detention: Re Woolley; Ex parte M276/2003 (2004) 225 CLR 1, [4]-[5], [9] (Gleeson CJ), [58], [61], [81]-[82], [99] (McHugh J), [224], [227] (Hayne J), [270] (Heydon J agreeing); [262] (Callinan J), cf at [138]-[148] (Gummow J), [182]-[187] (Kirby J); see also AJL20 (2021) 95 ALJR 567 at [24] (Kiefel CJ, Keane, Gageler, Steward JJ). Re Woolley identifies one of the most important attributes of self-government as a right to determine who may and may not enter or remain in a country. This attribute is an expressed object in subs 4(1), 4(2), 4(4) and 4(5) of the Act.
The parties properly accept the validity of ss 189, 196 and 198 of the Act. It is unnecessary to examine the legislative history of those provisions, including radical reforms effected in 1992. By their combined operation, ss 189, 196 and 198 interfere with what would otherwise be fundamental rights of liberty and freedom. They do so because their language is intractable and reveal a legislative intention to so interfere with those rights: Al-Kateb, [241].
Duty & power of removal
Self-evidently, s 198(1) is engaged by a written request for removal by an unlawful non-citizen.
Principles to be applied in interpreting the content of the duty in s 198 are well-established. As senior counsel for the respondents observed, properly construed, s 198(1) is a provision in which the duty of removal is coupled with a power that is engaged when the conditions it contains have been satisfied. The imperative duty of removal (“must remove open”) is subject to two qualifications – first, “as soon as” and secondly, as is “reasonably practicable”. So construed, the imperative duty of removal is one which must be performed once removal becomes reasonably practicable. Cognate provisions are located elsewhere in s 198.
I have found it instructive to consider how the qualification “reasonably practicable” is informed by the burden of proof (see below). However, by way of overview the following general matters may be noted: (1) within the ambit of the expression “reasonably practicable” is that the person must be capable of being removed from Australia; (2) conversely, if there is no country willing to allow the unlawful non-citizen to enter their country, the person is not capable of being removed from Australia; (3) it is important to recognise that the duty does not arise, in a sense of crystallising the obligation of removal, until it is reasonably practicable to do so; (4) relatedly, the power of removal does not spring into existence until removal is reasonably practicable; (5) reasonable practicability of removal turns on a variety of factors including: the willingness of a country to allow a person to enter their country (as manifested by the issue of travel documents); a physical capability of effecting removal; the existence of any present impediments to removal (eg, Covid-19 pandemic); the existence of conditions in a receiving country which render removal infeasible (e.g., civil unrest, anarchy or natural disaster); whether the non-citizen is physically or mentally of a state as to render removal impracticable; whether removal is inappropriate for other reasons (e.g., pending litigation undetermined); (6) it is long settled that the availability of the discretionary remedy of mandamus attaches, if at all, to a public duty that is unperformed; (7) failure to perform the public duty may be constructive or actual; (8) whether they be considered to be a rule of law or otherwise, elements of the remedy are that the duty was unperformed in a period preceding the institution of the application for judicial review and continues up to the date of judgment; (9) important distinctions are to be drawn between applications for mandamus grounded upon an abject refusal to perform a public duty, a refusal to do so based upon an erroneous misunderstanding of the content of the duty in issue, and conduct (by act or omission), that is said to be dilatory; (10) where removal is sought under s 198 of the Act, I consider that in those cases grounded on allegedly dilatory conduct, there is a real question whether the availability of mandamus hinges or attaches to a duty to remove the non-citizen as soon as possible once it is reasonably practicable to do so or whether, as I prefer, it properly attaches to an anterior implied duty in s 198 to take all steps and do all things as may be reasonably incidental to securing the result that the duty of removal is performed.
Courts have consistently held that the duty of removal is not absolute.
In WAISv Minister for Immigration & Multicultural & Indigenous Affairs, French J considered the expression “as soon as reasonably practicable” in s 198 as being an evaluative term which fell to be assessed by reference to all of the circumstances of the particular case including by reference to the practical difficulties that may lie in the way of making arrangements for removal arising from the need for cooperation of other countries (either in relation to a specified individual or persons of a particular class), and allowed that delays beyond the control of the Executive could properly be taken into account. I note the application there was for habeus corpus and that the applicant had abandoned a claim for mandamus: [2002] FCA 1625, [1], [58]-[60].
In M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 146 at [64], Goldberg, Weinberg and Kenny JJ accepted that “no duty to remove a non-citizen arose when removal was not reasonably practicable”. I should not leave M38/2002 without recognising that the Full Court’s statement above was made in approval of the reasoning in Al Masri (2003) 126 FCR 54. It is important to do so because Al Masri was disapproved by a Full High Court in Al-Kateb (2004) 219 CLR 562. From my examination of Al-Kateb, nothing said there by the High Court subverts or disapproves the proposition from M38/2002 set out above. The reasoning in M38/2002 has since been followed: e.g. in, WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 84 ALD 655, [74] (French J); Mastipour v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] FCA 1571; 140 FCR 137 (Mansfield J); and Chamoun v Commonwealth of Australia [2021] FCA 740, [66] (Katzmann J). It seems necessarily to follow that until the duty of removal has arisen, it is impossible to suggest that there has been a failure/refusal in the performance of that duty. A finding that removal is reasonably practicable remains an essential element of an applicant’s proof in an application for the grant of the discretionary remedy of mandamus. The duty is of a continuing nature: AJL20 (2021) 95 ALJR 567, [4], [5], [47], [48].
The problem with which I have become overly pre-occupied is in the identification of the obligation upon which a remedy of mandamus could fasten before the duty has ‘arisen’.
The duty of removal is also not absolute in the sense that it does not arise as soon as the conditions expressed in ss 198(1) and 198(6) have been satisfied: cf M38/2002 (2003) 131 FCR 146, [59]-[64] (The Court). As Goldberg, Weinberg and Kenny JJ explained at [64], the duty of removal arises, not upon satisfaction of the requisite conditions, but instead “as soon thereafter as is reasonably practicable for the officer” to do so. It is during this phase that the duty and power are engaged and so the obligation of removal becomes operative. Further, as the facts of this and other cases illustrate, the obligation may be suspended where, for example, conditions change. However, the duty is not ‘erased’ or it seems, capable of being exhausted. Rather, it is for the Executive to continue to explore means of seeking to remove an unlawful non-citizen: cf Al-Kateb, (2004) 219 CLR 562, [227]-[229]. Upon removal becoming reasonably practicable, the duty re-emerges and the power to do so springs into existence. To say as much is only to reframe consideration of s 198. Senior counsel for the respondents properly submitted that a failure to perform the anterior process of seeking to remove, as distinct from a failure to remove may attract the remedy. The submission usefully draws attention to the content of the duty. Viewed from another perspective, it may be more accurate that the remedy could fasten on the failure to consider, identify and pursue options, the ultimate result of which may render the duty of removal reasonably practicable.
What is clear is that there is not yet an unperformed duty that may be the subject of mandamus until it has become reasonably practicable to remove an unlawful non-citizen from Australia.
Reasonably practicable
In s 198(1), the imperative obligation of removal is qualified by the composite phrase “as soon as reasonably practicable” as distinct from reasonable and practicable. In the context of the obligation of removal, much consideration has been given to the content in s 198 of that phrase. In M38/2002, the Full Court observed at [65]:
Whether or not the removal of an unlawful non-citizen is practicable seems to be largely, if not entirely, concerned with whether the removal is possible from the officer’s viewpoint. The word “reasonably” in the expression “reasonably practicable” limits or qualifies what would otherwise be an almost absolute obligation: The removal of a non-citizen may be practicable in the sense that it is feasible, but not “reasonably practicable” as required by s 198(6) of the Act. (Citation omitted)
Although this reasoning was approved generally in NATB [2003] FCAFC 292, 133 FCR 506 at [48], I note, however, that Wilcox, Lindgren and Bennett JJ at [50]-[53] examined the bounds of the concept of ‘practicable’ as employed in s 198(1) in some further detail.
In Snedden v Minister for Justice [2014] FCAFC 156, 230 FCR 82, [116], Middleton, Pagone and Wigney JJ said with reference to M38/2002 and other authorities:
There are essentially three elements to the composite expression “as soon as is reasonably practicable”. First, the word “practicable” has the meaning of “capable of being carried out in action; feasible”: M38/2002 v Minister Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 (M38/2002) at 165 [65]. It identifies that which is able to put into practice and which can be effected or accomplished: Al-Kateb v Godwin (2004) 219 CLR 562 (Al-Kateb) at 608 [121]. Second, the qualification “reasonably” limits or qualifies what would otherwise be an absolute obligation: M38/2002 at 165 [65]. It introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme: Al-Kateb at 608 [121]. Third, the phrase “as soon as” supplies a temporal element: Al-Kateb at 608 [121]. It directs the decision-maker to make the determination without delay once it is reasonably practicable to do so: Santhirarajah at [74]; Judgment at [24].
As the Full Court also observed in M38/2002 at [65], there is nothing novel in the phrase “reasonably practicable”. In MRR v GR (2010) 240 CLR 461 the Court, speaking of the phrase “reasonably practicable” as employed in other legislation held that the determination as a question of fact whether it was reasonably practicable that equal time be spent by a child with each parent was a condition that must be fulfilled before the court had power to make a parenting order stating: “It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.” Their Honours cited Minister for Immigration and Multicultural Affairs v Eshetu (1990) 197 CLR 611, [130]-[131] (Gummow J).
To adapt the reasoning in MRR, a determination as a question of fact that it is reasonably practicable for a non-citizen to be removed from Australia is a statutory condition which must be fulfilled before the Executive has power to do so. Upon that approach, and for the reasons below, I consider that where mandamus is sought on the ground of dilatory conduct, a material fact to be pleaded and proved would include the steps that were feasible and practicable so as to engage the duty of removal under s 198. The reasoning in MRR is consistent with that adopted in M38/2002, WAIS and WAJZ; that is, the duty and power of removal are conditioned and may be suspended during such times when removal is not reasonably practicable.
So here, the duty and power of removal in s 198(1) is conditioned and qualified by the matters stated above. Feasibility and the reasonable practicability of removal are distinct requirements. Once each of them is satisfied, the duty of removal is engaged. The temporal requirement to effect removal as soon as possible then operates upon the duty to do so. The potential for difficulty in the proper application of s 198(1) is likely to be increased unless these distinct elements are observed. Feasibility, practicability and removal are not to be conflated.
In Arthur as litigation representative for CYG20 v Commonwealth [2021] FCA 259 at [82], [108], Griffiths J recognised the quandary presented by the combined circumstances that: an unlawful non-citizen must be detained; s 196(3) prohibits the release of such persons into the community; where it is engaged s 198(1) creates an obligation of removal; while purposes of detention includes removal from Australia; the practical reality may be such that “removal is effectively impossible in the foreseeable future because of matters which are beyond the Commonwealth’s control”, including by reason of the absence of cooperation or indeed, the refusal, of other countries to accept such persons.
The question whether removal is reasonably practicable is to be judged by a broad standard of reasonableness – administrative and systemic perfection is not the standard against which performance of the duty arising under s 198(1) is to be gauged: Tran v Commonwealth of Australia [2021] FCA 580 at [65] (Jagot J); Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 661 at [17]. While AJL20 has now been overruled, I do not consider that as affecting the foregoing: AJL20, (2021) 95 ALJR 567, [118].
The onus of establishing a failure to perform the duty arising under s 198(1) is not made out merely by identifying intervals during which there was no activity directed to securing a non-citizen’s removal from Australia: CYG20, [2021] FCA 259 at [106(a)(vi)] (Griffiths J).
Lack of co-operation by other countries
As the authorities confirm, whether removal is reasonably practicable in a particular case will depend upon whether there is another country that will facilitate entry: WAIS, [2002] FCA 1625 at [58]; M38/2002, (2003) 131 FCR 146 at [68]; NATB, (2003) 133 FCR 506 at [52]; Al-Kateb, (2004) 219 CLR 562 at [218]; SZSZM v Secretary, Department of Immigration and Border Protection [2016] FCA 1477, [9]-[10].
In SZSZM, Perram J found on the evidence that the applicant, a Pakistani citizen, did not hold a travel document, could not be returned to Pakistan without such document and had not identified any other country to which he had an entitlement to enter. Upon those findings, his Honour held it was not practicable for the applicant to be removed from Australia. I note, no question as to the vagueness of the pleading or any question of onus arose in that application. Notably, in refusing leave to appeal, Barker J observed in relation to an issue presented in this case also: “As to the applicant’s stated desire to be removed to some other third country, as the primary judge observed there was no particularisation to that initial demand or request and no reason why it should be considered that the Secretary was in default of the exercise of duty on account of that consideration. That is not to say, however, that, depending on how matters develop, the applicant may not possibly have some other legal recourse in relation to his continued detention (emphasis added)”: SZSZM [2017] FCA 458 at [69]-[70].
While the applicant here made the formal submission that SZSZM was wrongly decided, no principled basis for the submission was made.
One aspect of lack of co-operation arises from the holding in M38/2002 that the duty of removal under s 198(1) does not arise where removal is not reasonably practicable. Recent authority confirms that neither the duty of removal nor the related purpose of detention are ‘erased’ by a failure or inability to perform that duty from time to time: AJL20, (2021) 95 ALJR 567, [48]. It would follow that unless Al-Kateb is overruled, such persons must remain in detention unless, of course, the matter is addressed by the Parliament. Presently, the duty of removal under s 198, and the quandary it entails, are rods for the Parliament’s own back. They are presently, a complex, necessary and very difficult aspect of executive responsibility: cf Act, s 4.
RELIEF IN THE NATURE OF A WRIT OF MANDAMUS
Mandamus is a remedy which exists essentially because the court is persuaded there is no other. Upon my consideration of the remedy in the context of the present application, the basal reason for the existence of the remedy cannot be overlooked. The remedy’s importance is highlighted by provisions like s 198 that impose a duty in a context where a person is to remain in detention. For a person in detention, the utility of the remedy lies in securing performance in the future.
Principles governing the remedy of mandamus are informed by an appreciation of their origins. It is said, correctly, to be something of a paradox that what began as an executive command, the very aim of which was to avoid judicial proceedings, has transformed into “the central mechanism for the judicial control of executive action”: De Smith’s Judicial Review, 8th Ed (2018), [15-007]; Supperstone, Goudie and Walker, Judicial Review 4th Ed, (2005) at [2.1.4]. Those origins speak loudly to the need for prerogative relief in cases where the conduct of the executive is wanting. However, any unstated assumption that the utility of such relief may have fallen away over the centuries by reason of increased sophistication in the administrative processes of government may be increasingly open to scrutiny: see, e.g., BHL19 [2022] FCA 313, [12]. In a necessary case, behaviour by officers of the Executive may attract relief today as much as it would in 1600, irrespective that “public administration and public bureaucracy are phenomena peculiar to modern developed societies”: cf Supperstone et al at [2.1.4].
In James Bagg’s case, the plaintiff had been removed from office without notice or any hearing. (1615) 11 Co Rep 93, (1616) 77 ER 1271. James Bagg, a Burgess, or magistrate, held a firm, adverse opinion of no less than six mayors of the borough of Plymouth, a seaside port which, in the view of those mayors, was exposed to the influence of many ill-minded men, as well as aliens, as within born, of evil and perverse conversation, contemnors of good government and disturbers of the peace. In seeking to show cause against the grant of relief, the mayors’ plea complained in detail of the manner in which Bagg had spoken to them in the presence of other Burgesses including his suggestions that one or other of them was a cozening knave and an insolent or seditious fellow: 77 ER, 1272-1277. Two matters brought the issue to a head. First, in the presence of many others, Bagg spoke to the then current mayor, Fowens, “turning the hinder part of his body and in an inhuman and uncivil manner . . . scoffingly, contemptuously and uncivilly, with a loud voice, . . . inviting the mayor to ‘Come and kiss . . .’”. Secondly, Bagg, “perfidiously and maliciously spoke” to two taverners, telling them they need not pay any further custom, or ‘wine weight’, to the mayors since it was not due to them. The litany of complaints provoked the next mayor, Clement, to remove Bagg from the privileges of his office, doing so without a hearing. Coke CJ considered the ‘kissing’ complaint to be contra bonos mores and so worthy of punishment, but not being as to ground a cause for disenfranchisement or indictment. The Chief Justice resolved that the King’s Bench retained authority, not only to correct error in judicial proceedings but other errors and misdemeanours in extra-judicial proceedings “tending to the breach of peace, or oppression of the subjects . . . “so that no wrong or injury, either public or private, can be done but that it shall be (here) reformed or punished by due course of law”: at 1277-8. Beyond confirming the importance of judicial recourse, Bagg’s Case shows that the more things change the more they stay the same.
Mandamus will issue where there is a “refusal, actual or constructive, to perform a duty which, in law and in fact, ought to have been performed”: AOU21 [2021] FCAFC 60 at [195] (Griffiths, Mortimer and Perry JJ). A finding that the Executive has been dilatory in the performance of a public duty may ground relief: AJL20 (2021) 95 ALJR 567, [52].
It was common ground that an order in the nature of mandamus may issue if the Minister, by officers in his or her Department, are not performing that duty: AJL20 (2021) 95 ALJR 567 at [52]-[53] (Kiefel CJ, Keane, Gageler, Steward JJ), [97], [112] (Gordon and Gleeson JJ) and [143] (Edelman J). As the reasoning in AJL20 confirms, a conclusion that the Executive had been dilatory in the performance of the duty arising under s 198(1) may ground an entitlement to relief. However, the use of the term ‘dilatory’ should not be applied in a conclusory way. To do so would be to express a conclusion on the issue and distract attention from consideration of that anterior question as to whether or not there had been adequate or proper performance of the duty. Further, as Gordon and Gleeson JJ observed at [91], an important distinction may be drawn between cases in which the Executive is found to have consciously acted so as not to remove a person as soon as reasonably practicable, from those in which the Executive is found to have been unable to do so. Notably, in AJL20 no challenge was made to the correctness of Al-Kateb.
It is not a corollary of a conclusion that relief in the nature of mandamus should be granted that a unlawful non-citizen should be released from detention until the duty of his or her removal as soon as possible has been discharged: AJL20 (2021) 95 ALJR 567, [2], [4]-[5], [49]-[52].
On judicial review the applicant bears the onus of proving that there has been a refusal or failure to perform the duty in s 198: AOU21 [2021] FCAFC 60 at [19].
There was some debate as to the proper approach to the inquiry whether the duty arising under s 198(1) was being performed. For the respondents it was submitted that for the purposes of an application for mandamus, whether there was a failure in performance of the duty under s 198 required consideration of whether that duty was presently being performed by the Minister.
There was no quarrel with the proposition that historical circumstances formed part of “objective reasonableness in all of the circumstances”: Tran [2021] FCA 580, [41] (Jagot J). Otherwise, counsel for the respondents submitted that the court should reject any contention that mandamus may issue, irrespective of a finding of a past failure to perform the duty arising under s 198, where it was found that: (1) the respondents were presently performing the duty, or; (2) the duty did not presently arise (i.e., because removal was not practicable). Two reasons were advanced upon why that was so. First, it was observed that relief in the nature of mandamus involved an order requiring the Minister to do his duty. Thus, there would be no utility in the issuing of an order if it was concluded that the Minister was already performing his duty, despite any finding of previous non-compliance. Secondly, it was said that if prior non-compliance with the duty had the effect that the Minister could never comply with the duty for all time, it would never be possible for the Minister to remedy compliance of his own motion once a breach has occurred. Support for this submission is found in Bethell [2021] FCA 661. Rangiah J at [51] considered such a conclusion to be inconsistent with the scheme of the Act.
Although it was not clear whether these submissions were advanced in absolute terms or as identifying discretionary considerations that may militate against the grant of relief, I did not understand them to mean that they would constitute a sufficient basis for refusing relief in any case. When regard is had to the raison-d’étre of the remedy and the context in which it is being sought here – mandamus grounded on delay – assistance is gained from reminding oneself that the utility of the grant of mandamus is to secure future performance. In a different context, it is accepted that a “duty of care is a thing written on the wind” in the sense that it affords no cause of action unless a breach of that duty occasions damage: John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218, 241 (Brennan J, Aickin J agreeing generally). Here, the duty arising under s 198 is written in ink. Unless the only substantive remedy of mandamus is available, the practical content of its utility is that unlawful non-citizens who must be held in detention should have recourse so as to secure the performance of a duty arising under s 198 in future. The remedy is not of some abstract interest. Its importance lies in the fact that it may be granted where there is nothing left for a detainee to do but seek relief that may act as a spur to activity. From that perspective, I do not accept that consideration of activity in the past or present are the only data points from which the remedy is to be evaluated. While it is for an applicant to prove the facts necessary to justify the grant of relief, to say as much invites attention to the unique facts and circumstances of the particular case. Once a written request for removal has been made, there is no question the duty under s 198 is engaged. Whether the occasion for its performance has arisen is an entirely separate issue. The court must consider whether there has been a refusal to perform the duty. The importance of doing so is to assist in the evaluation of whether it is just that the remedy be withheld or granted. Critically, the reason for doing so is to consider the utility of the remedy to secure performance in the future. Just as the content of a formal demand may be a useful way of testing whether there has been a refusal in the performance of a duty, so too, the degree and nature of activity, past or present, might properly be employed in an evaluation of the likelihood of ongoing future activity. It does not seem to me irrelevant to evaluate whether the dismissal of an application for relief would likely see the activity in a particular case merely subside into the ruck of other cases for removal. If it is accepted that the institution of a proceeding for mandamus may act as a spur to action, it is not difficult to see the dismissal of the application as the opposite side of the same coin.
While it is no longer necessary in a claim for mandamus to prove the making of a formal demand, the content of any demand retains utility as a convenient test against which the court may test whether there has been a failure or refusal to perform a public duty.
Failure to perform a duty can be constructive or actual; in the former case, constructive failure occurs where the purported performance of the duty was invalid, while in the latter, actual failure is to be determined, objectively, on the evidence: Aronson et al, [16.40]; CYG20, [2021] FCA 259, [106(a)] (Griffiths J). Given the way in which some submissions were framed, I note the following, with reference to the learned authors of Judicial Review of Administrative Action and Government Liability: (1) courts reviewing the exercise of a discretionary power (even where coupled with a duty) will almost certainly refrain from dictating the choice to be made: [16.40], [16.110], [16.120]; (2) amongst the most difficult cases are those concerning mandamus where the substantive relief is to require the Executive to hand over money or property: [16.90]. Those principles may inform consideration of the case inasmuch as the applicant grounded his substantive submission on a contention that there “must have been” other options open to be investigated, including consideration whether the cost/benefit of requiring the Executive to spend money to pay another country to take an unlawful non-citizen instead of bearing the continuing cost of detention.
Objectively, and at the least, the institution of this proceeding has been effective as a spur to executive action. While the respondents tacitly conceded their conduct at various times during the period November 2018 to July 2021 may have been wanting on at least some occasions, equally, the evidence also demonstrates increased activity from the latter date and that such activity is ongoing to the present.
Annexure TM-11 to an affidavit affirmed by the applicant’s solicitor on 30 March 2022 was an ABF webpage entitled, Removal of criminals from Australia continues in 2021, dated 9 March 2021 recording, amongst other things, that since closure of international borders in March 2020, ABF had removed some 711 unlawful non-citizens including a murderer, an outlaw motorcycle gang member and others convicted of drug, firearm and/or violence related offences. Thus, the submission was made the evidence established the respondents were capable, during the pandemic, of removal from Australia. While so much may be accepted, it is also notable the countries of removal included the United Kingdom, Italy, Ireland, France, Malta and New Zealand (that is, not Sri Lanka or India). What the media release did not address was how ABF was coping or dealing with circumstances such as the present. I am prepared to infer that the persons referred to in that release did not present problems of the kind at issue.
Difficulty also attends the question of the non-referral of the applicant’s case for a prolonged period by officers of the Department to its Complex Identity unit. Hindsight aside, as in Tran, so here, there were ongoing communications with the Sri Lankan and indeed, Indian, authorities with a view to securing the result that either country would accept the applicant to such country. Further, such communications are ongoing. So too, as in Tran, a referral has finally been made to that unit which deals with, amongst other matters, complex cases arising as to a non-citizen’s identity. Unlike the circumstances in Tran, I consider it was unreasonable not to have effected the referral at an earlier point than in fact occurred. Unlike Jagot J, absent evidence upon this technical issue, I can only, but should not, speculate whether an earlier referral would make any difference in the present case: cf Tran, [2021] FCA 580, [15(2)], [66]. I agree that hindsight is unhelpful in the determination of an application of the present kind. However, under this Act the Executive is often called upon to make predictive assessments. Where a complaint of dilatory conduct by officers of the Executive becomes the ground for complaint in a judicial proceeding, I consider a predictive assessment is also a useful way of testing whether the discretionary remedy of mandamus should be withheld or granted.
I also accept that the present case is distinguishable from BHL19 in several respects including, most importantly, that this is not a case which justifies findings that officers of the Executive had literally stopped even thinking about removal or had done virtually nothing to seek to achieve that result. I reiterate my concern respecting the use of hindsight. It is also important to recognise that in BHL19, the use of the expression ‘meaningful steps’ was employed by Wigney J in that section of the reasons which dealt with his ultimate findings (i.e. conclusions). So understood the use of the description ‘meaningful steps’ did not express his Honour’s approach to the evidence itself: cf [151]-[174] (Findings – officers failed to discharge their duty to remove), with [125]-[150] (Evidence – what was done to remove the applicant?). Far from never turning their mind to whether approaches might be made to the Minister to issue, of his own initiative, certain travel documents, here, the evidence confirms that they did so, including the possibility of issuing a convention travel document (a Titre de Voyage): see bundle 167, 174, 530 – 531. Moreover, as discussed in relation to the issues of pleading, particulars and onus, until the filing of submissions and evidence, the applicant failed to identify (as distinct from identifying with any specificity), particular steps which the applicant would rely upon at the hearing by way of reasonably practicable alternative courses of action that could have been taken, or taken in a more timely way. And assessed in terms of the sufficiency of their conduct, I am satisfied that since before the institution of this proceeding and from June 2021, active steps have been taken in seeking to secure the applicant’s removal from Australia. I am also satisfied that such steps continued after the institution of the proceeding and will continue to be taken. The ultimate finding that such steps will continue to be taken is grounded upon an inference that I am prepared to take respecting the bona fides of the officers charged with responsibility to do so. My preparedness to draw that inference proceeds from my acceptance that the institution of this proceeding has, as is not uncommonly the case, served as a clarion call to action and that it has been somewhat effective in doing so. This consideration tends against the availability of mandamus.
While it seemed to be suggested that it was only a matter of conjecture whether any suggested steps would have been feasible and reasonably practicable in this case (and so whether such step could have made any realistic difference), conversely, there was force in the submission that at some point it must have been obvious to the respondents’ officers the mere repetition of the same steps could not have made any difference or would have been most unlikely to do so. Quite apart from consideration whether such steps would have made any realistic difference, an intermediate conclusion of that kind could impel further inquiry whether something more was needed to be done. In turn, an affirmative answer to that question, redirects attention to whether the discretionary remedy should lie so as to compel more sufficient conduct in future.
I agree in the reasoning of Griffiths J in CYG20 that mere identification of some intervals of inactivity is not determinative and that “The relevant question is whether such periods of inactivity were unreasonable in the applicant’s particular circumstances.” [2021] FCA 259, [106(a)(vi)]-[106(e)]. The determination of such applications is inherently fact intensive.
Upon my consideration of the facts and circumstances of this application, having regard to the principles informing the operation of s 198 and the attendant duty of removal from Australia, I conclude the applicant has discharged the onus borne by him on judicial review. While the issue has been finely balanced, I am driven to conclude that the respondents’ increased activity since shortly before the institution of this proceeding does not leave me with an actual sense of persuasion such avowed performance will not abate immediately upon dismissal of the claim. This is not to suggest any lack of bona fides in the conduct of the Executive’s officers. Rather it is to recognise the particular difficulty attending claims of this kind.
Upon those conclusions, the application should be allowed.
GRANT OR REFUSAL OF RELIEF?
Having been persuaded that the applicant has discharged his onus of proof, should the discretionary relief of mandamus, or any other relief, be granted? Having concluded that the applicant has discharged his onus, the entitlement to relief remains subject to any discretionary factors which may militate against the grant of relief.
It is convenient to recognise the significant contribution of BHL19 on this issue. In BHL19, Wigney J considered the question of appropriate relief in detail at [175]-[208], doing so despite the apparent insistence of the applicant that the appropriate relief was a mandatory injunction: see also Aronson et al, [16.30]. His Honour identified at [177] why mandamus was a more flexible remedy available to be specifically directed at compelling the performance of a duty imposed by law, including in cases where, relevantly, it had been shown the Executive had been dilatory in the performance of duties imposed by s 198 of the Act: see also, [180]-[187].
Something needs to be said, however briefly, in response to certain of the applicant’s submissions. In particular, I do not agree in the submission that the duty of removal from Australia under s 198 is of a breadth such that it can be enforced ‘at all times’ including, without limitation, by making an order directing the respondents that the applicant “be put on a plane.” Without descending into particular detail, it seems clear that since the purpose of mandamus is to compel the performance of an unperformed public duty, “It does not lie to compel the exercise of a discretion in a particular way”: Aronson et al, at [16.20], [16.110]. To the extent mandamus may lie, consistently with the authorities, relief might be cast in terms that obliged a named officer of the Executive to remove to any place willing to receive the applicant, not to a particular place: BHL19, [164], Al-Kateb, [227].
I accept that the institution of the application is itself a spur to performance of the duty. But as Wigney J observed in BHL19 at [204], the prospect of imprisonment for contempt may itself serve as a corresponding spur upon an officer who is named and bound by a writ of mandamus. Although I attach little weight to this consideration in the present case, it remains relevant. By contrast, and unlike Ex parte Blackburn, in this case the respondents did not proffer an undertaking of a kind as to more diligently undertake inquiries or implement steps as might prove sufficient to secure the applicant’s removal from Australia. Again, any such undertaking was of no, or at best marginal, weight in the circumstances of this case, particularly as the issue was not raised by either party for consideration. But in contrast with Kensington and Chelsea London Borough Council, I do not attach much weight against the grant of relief that some greater effort is now being made by officers of the Executive towards securing performance of the duty under s 198 of the Act. Such a consideration may be deserving of particular weight where the duty in question concerns abatement of rubbish, however, lesser weight should attach where the public duty exists for the primary purpose of securing removal of an unlawful non-citizen whose liberty is denied while he is subject to mandatory detention.
The respondents properly conceded that if it was not reasonably practicable to effect removal, nonetheless, the remedy could go at least to the making of an order directed to a person to carry out the duty to seek to remove the person; however, if the evidence sufficiently demonstrated that steps were presently being undertaken, the relief could extend to making an order that would require the appropriate officer “to identify what reasonable steps have been taken to remove the applicant.” In AOU21, [2021] FCAFC 60 at [195] the Full Court held:
In any event, a writ of mandamus commanding the Commonwealth, or the Secretary, to remove the applicant as soon as reasonably practicable in accordance with the duty in s 198 of the Migration Act will have some utility. As explained earlier, mandamus will require the Commonwealth, or the Secretary, to make a return to the writ by filing an affidavit deposing to whether the Commonwealth, or the Secretary, has done what the writ commands them to do, or why that has not been done. If the applicant is unable, for some reason, to be removed, that requirement will, at the very least require the Commonwealth (through an appropriate officer) or the Secretary to identify what reasonable steps have been taken to remove the applicant.
Considerations of utility militating in favour of the grant of relief were squarely identified in BHL19, [2021] FCA 313, [194]-[196]. Perhaps unsurprisingly, having regard to the reasoning in BHL19 at [197]-[203], [205], before me, it was not submitted by the grant of relief would be, in any relevant sense, burdensome, whether to the respondents or the court.
One aspect of the particular utility of the remedy is that it lies for an actual or constructive refusal to perform the public duty. The present case is not one of active failure in the sense that there has not been an express refusal to effect removal. In light of the acknowledged steps that have been taken in seeking to do so historically, I am not prepared to infer an actual refusal to remove the applicant from Australia. Nor is the present case one of constructive failure of the kind illustrated by many of the cases above where the Executive has declined to remove, not doing so on the basis of an erroneous misunderstanding of the applicable laws. While the learned authors, Aronson et al at [16.40] describe a constructive failure to perform a duty as occurring where the purported performance of doing so was invalid, in the present case, and perhaps somewhat unhelpfully, senior counsel for the respondents characterised the impugned conduct as being an actual constructive failure in performance. Whatever was precisely meant by that characterisation, the application was clearly run on all sides on the basis that there had been an insufficiency in seeking to perform the duty imposed by s 198(1). For the respondents it was emphasised that whatever view was taken of the past conduct of the Executive’s officers, the remedy should not issue where the evidence showed the duty was currently being met. Here, with reference to AOU21, it was submitted relief should be refused because the applicant had not discharge the onus of proving a current refusal to perform the duty: [2021] FCAFC 60 at [195]. Emphasis was placed upon the increasing acceleration of activities from at least June 2021 and, as the argument ran, because there had been “a lot happening since then”, the applicant had not discharged his onus of proving a failure in performance either before or after the institution of the proceeding (i.e. late November 2021).
Absent express provision to the contrary, the liberty of a person is a fundamental right. Section 189 of the Act is such a provision. Liberty is not some abstract idea. Principles which inform the objects of other federal legislation include that children have a right to know and be cared for and to spend time and communicate on a regular basis with each of his or her parents. In this case, it is the applicant’s expressed desire that he be removed from Australia in order that he might resume a life outside of Australia with his wife and child. Equally, it is undoubted that the Commonwealth has been prepared in other circumstances to expend many tens of millions of dollars in securing, in effect, the removal of persons from Australia: see, e.g., Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42, [313] (Gordon J). I make no assumption whether or not it may be reasonably practicable in some, complex, cases for the Executive to explore the necessity of significant expenditure to achieve performance of the duty of removal enacted by s 198. It is not an issue I need to decide.
As noted, the court also raised for consideration the precise form of relief that was being sought. This court has the same original jurisdiction in relation to migration decisions as the High Court has under par 75(v) of the Constitution: Act, s 476(1). By par 75(v), the High Court has original jurisdiction in all matters in which, relevantly, a writ of mandamus is sought. Each counsel supplied a proposed draft order, recognising that by r 9.12(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, a requirement is made that writs issued by this court must be substantially in the form of the kind as may be issued pursuant to the High Court Rules 2004. In turn, Part 25 of those rules provide, by r 25.13.2, that a writ of mandamus must be in Form 13. The parties’ draft proposed orders substantially met those requirements. As to this, the applicant drew attention to AOU21, [2021] FCAFC 60. There, a Full Court noted the parties’ competing submissions as to the identity of the person to whom mandamus ought be directed, being the Secretary of the Department or, it seems, a number of subordinates: see at [46], [49]. However, in dismissing the appeal the Full Court held that the applicant had not discharged his burden of proof and did not need to decide the point.
In this application, the respondents contended it was more appropriate for a responsible officer of the ABF to be joined to the proceeding in the event relief was to be granted.
I do not agree that it is necessary or appropriate for a joinder of an ABF officer to be joined. The substantive reason for the grant of the discretionary remedy of mandamus is to secure the performance of a public duty which remains unperformed. Although it was not explored before me in any detail, and as the parties’ proposed orders explicitly recognised, failure to comply with the writ may attract sanctions by way of contempt. In my opinion, just as the institution of an application for judicial review may act as a spur to conduct by the Executive where, historically, it has been wanting, so too, the grant of relief which is directed to the Secretary would conform to relief that has been granted by the Federal Court in other cases. Conversely, I have reflected, without in any way deciding, upon whether the joinder of some subordinate ABF officer for the purpose of fixing that person with responsibility for observing the writ might have an unintended dilutive effect upon the object of the prerogative remedy.
As the Secretary of the Department is responsible for managing its affairs, in my opinion the making of orders and the issuing of a writ directed to that person will promote the interests of justice in a manner which conforms to the objects of the Federal Circuit and Family Court of Australia Act 2021 (Cth); namely, the delivery of effective and efficient justice.
DECLARATIONS
The court may, and perhaps should, exercise its discretion to grant declaratory relief in cases where an administrative decision-maker has committed an error of law or failed to observe the requirements of procedural fairness: Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319. There, a Full High Court confirmed that the exercise of the discretion to grant declaratory relief may be informed by the statutory and historical context attaching importance to the performance of international obligations by both the legislative and executive branches of the Commonwealth: [103]-[104]. Plaintiff M61/2010E is also instructive in that declaratory relief was granted notwithstanding the conclusion mandamus was not available: [9(d)], [101].
Those principles may apply with no less vigour where it has been demonstrated there has been a failure in the performance of a public duty by officers of the Executive which continues to the date of judgment. It may also be accepted that a declaration may have practical utility where an applicant has established a breach of the duty of performance including by reason of an erroneous misconstruction of the scope and content of the duty of removal. As I have said, an important distinction is to be drawn between those applications for judicial review where mandamus is sought grounded upon an error of law (or, for that matter, an abject refusal to perform a public duty), from cases in which it is being alleged the Executive has been dilatory. The present application is of the latter kind and the evidence demonstrates the Executive has now been spurred into action. I agree this has resulted from the institution of the proceeding. A matter of particular difficulty in this case concerns how a remedy may have real utility.
For the applicant it was submitted the court should exercise its discretion to grant a declaration so as to mark its disapproval of the conduct of the Executive in this case: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 353, [62] (Tracey J). Accepting that his Honour considered declarations could have an educative effect, two factors were identified: (1) identifying conduct which was proscribed by legislation; (2) explaining the basis upon which a respondent’s liability had been established. Again, in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213, at [7], Tracey J identified that educative purpose but in doing so stated “Declarations may serve an educative purpose in explaining to the public and persons whose conduct is governed by particular legislation, how and why contraventions of that legislation have occurred.” These authorities, and the principles stated above have been followed on a number of occasions, including by Tracey J and White J. A repeated theme in those decisions was that the educative effect of a declaration was grounded upon precisely framed findings of fact so as to make clear how identified conduct had contravened specific legislation.
For the respondents, it was conceded that, consistently with BHL19, declaratory relief would be difficult to resist if an ultimate finding was made that there had been non-performance of the duty from November 2019 to the date of judgment. Contrastingly, it was also said that if the findings made was that there had been conduct directed to performance of the duty of removal including in the periods before and since institution of the proceeding, relief was not warranted. More precisely, it was said that the evidence supported findings of active steps being taken before the institution of the proceeding from at least June 2021 and continuing to the present date and so there was no sufficient justification for a historic declaration.
Senior counsel also accepted declaratory relief may be appropriate where reputational or business interests were in issue and a judicial pronouncement might be seen to have some mitigating or ameliorating effect upon personal damage suffered by an applicant: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 582, 597. There, the substantive ground of complaint by, and relief for, Ainsworth, like James Baggs, was the respondent’s failure to give any notice of the content of a report containing findings adverse to his interests.
I accept it is doubtful that an entitlement to declaratory relief is established wherever a breach of natural justice has been shown. Rather, it was said that “A declaratory order must be productive of some effect before it could be said to be warranted” and it may not suffice that such an order could be said to supply any effect in general. Instead, it should be recognised that “any consequences could not be brought about by the declaration itself, as might occur where there is a pronouncement of the parties’ rights”: Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1, 35 (Kiefel J, Sackville J agreeing generally with her Honour as to this issue, Jenkinson J agreeing with Sackville J). I note the declaratory relief that there had been a breach of the rules of natural justice was reversed on appeal, notwithstanding the application involved what was described as a ‘test case’. Kiefel J concluded it would be a rare case where a bare declaration would be justified, noting that the object of declaratory relief “must be the determination of matters in controversy between the parties and the limitation of proceedings.” Kiefel J considered declaratory relief could not be seen to have some mitigating effect upon the applicant in a sense of reputational or business interests and that such relief could only be justified “if it served to do justice between the parties to the controversy by playing a part in the resolution of their dispute.” Ozmanian involved proceedings by way of judicial review involving a challenge to conduct preceding a decision by the Minister under s 417 whether to substitute a more favourable decision for the applicant. From that perspective, it may be seen as loosely analogous to the present case.
In other contexts, the caution and restraint to be exercised by the judiciary in exercising supposed powers to admonish officers of the Executive has been noted: cf Minogue v Shuard (in her capacity as Correctional Services Commissioner) [2017] VSCA 267, [97] (Kyrou and Kaye JJA). Those considerations are not without significance.
Reasons favouring the grant of declaratory relief where removal had been sought pursuant to s 198(1) were examined in detail in BHL19, [2021] FCA 313, [214]-[218].
Contrary to the applicant’s submissions I do not favour the deployment of the power to make declarations as a vehicle to mark the court’s disapproval of particular conduct. Whether or not that may have gained favour in proceedings brought under other legislation, to my mind it is more useful to focus on whether an entitlement to the relief sought has been made out and if so to decide whether the court should exercise its discretion to grant or withhold relief.
I have concluded the applicant is here entitled to the discretionary remedy of mandamus. From one perspective, the present case is stronger than Plaintiff M61/2010. It has been settled for at least half a century that it is neither possible nor desirable to fetter the power to grant declaratory relief by laying down rules as to the manner of its exercise. And moreover, “it is a form of relief that is confined by considerations which mark out the boundaries of judicial power”: Plaintiff M61/2010, [102], citing Ainsworth, (1992) 175 CLR 564, 582.
The substantive basis on which I have concluded the claim for a remedy of mandamus is made out is that I am not left with any sense of actual persuasion the respondents’ avowed willingness to perform its duty will continue up to and beyond the date of judgment. It cannot be said in this case that a declaratory order will produce no foreseeable consequences for these parties. To the contrary, it is to be hoped that it will do so. Such relief is also directed to determining a legal controversy between the parties. It is a controversy of long-standing in which, in effect, the respondents contend “We have been performing steps directed to securing removal from Australia and are continuing to do so.” On the other hand, the applicant contends that the respondents know the steps presently being undertaken will continue to be ineffective and states “Do something else and do something more.” The applicant’s prolonged detention has directly affected his rights and interests, not only in his liberty by removal from Australia but by the making of inquiries which the Executive is duty-bound to undertake pursuant to s 198(1). It could hardly be suggested that those matters are abstract or hypothetical. They demonstrate the importance to be attached to the performance of the duty which has been imposed upon the Executive by the Parliament. There is a public interest in the performance of that duty.
Contrary to the form of declaration proposed by the parties, the relief to be granted will be moulded more closely to that given in Ainsworth and M61/2010E.
MEDIATION
Another matter to which the court drew the parties’ attention was whether there might be any merit in making arrangements to facilitate a judicial mediation of the issues in dispute. As to this, I was somewhat crestfallen by the lack of any real enthusiasm on either side. This caused me to reflect further upon whether, each party felt that exploring other means of securing the applicant’s removal from Australia in the current circumstances was futile. While I have concluded I should not speculate further on this, one way or another, this does not foreclose whether the court retains power to make an order for mediation at this stage.
Wide powers are conferred on federal courts to make such orders, including interlocutory orders, as the court thinks appropriate. Those powers include the making of orders considered necessary to enable it to exercise its jurisdiction effectively: Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia (No 2) [2022] FCA 593, [25] (Mortimer J). Since I have already ventilated the topic with the parties, I do not feel constrained to afford them an opportunity to make further submissions about the matter. Moreover, the court is authorised to make orders for mediation irrespective of whether the parties to the proceeding consent: Federal Circuit and Family Court of Australia Act 2021 (Cth), s 169(3). The power to do so has effect subject to the rules of court: s 169(1). Within Div 23.1 of Pt 23 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, r 23.01 provides that where the court orders that a proceeding be referred to mediation, such mediation must proceed in accordance with that Part. Further, rules 23.03(1)(a) and 23.06 confer power on the court and the mediator respectively to end a mediation.
The making of orders for mediation is consistent with the objects of the Federal Circuit and Family Court of Australia Act 2021 (Cth): see s 5(a). In particular, such an order may facilitate more active dialogue between the parties upon the steps that could and should be taken in promotion of the purpose of the applicant’s removal from Australia.
There should be an order for mediation as to which the parties should bear their own costs.
CONCLUSION
For the reasons above, the application should be upheld. The parties were essentially agreed in the form of appropriate orders depending on the outcome of the case.
Putting to one side the now notorious volume of work in this court, and in this jurisdiction, I cannot ignore the prescient observations of Supperstone et al that “there are shortcomings of an adversarial, bi-polar judicial process as a means of resolving problems that need often to be considered in relation to wider considerations of public policy, considerations that lie beyond the narrow boundaries of particular litigation.” There will be circumstances in which public policy considerations lie beyond the narrow boundaries of particular litigation: Supperstone et al at [2.4.3]; cfDuncan v Camel Laird [1942] AC 624, 643 (Viscount Simon, LC, Lords Thankerton, Russell of Killowen, Clauson, MacMillan, Wright and Porter agreeing). Those considerations apply no less equally in relation to detention under the Act: Re Woolley, [2004] HCA 49; (2004) 225 CLR 1, [263].
This court is ill-equipped to address these problems. Despite the costs, complexities and difficulties of removal, the attendant problems of detention require the attention of Parliament. But until this occurs, and while some areas of executive conduct may be entirely ill-suited to mandamus, the remedy may be the only means of recourse that is otherwise presently available. These particular longstanding difficulties are brought into sharp focus by this and like cases.
The court records its gratitude to the parties’ solicitors and counsel for the significant assistance that was provided. There was nothing glib or unhelpful in the conduct of this case.
I certify that the preceding three hundred and fifty (350) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly. Associate:
Dated: 27 July 2022
2
39
0