Enr20 v Minister for Home Affairs

[2021] FCCA 288

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENR20 v Minister for Home Affairs [2021] FCCA 288

File number(s):

SYG 2424 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

18 February 2021

Catchwords:

MIGRATION – Application for writ of habeas corpus/release of applicant from detention – where applicant alleges unlawful detention – whether there has been a breach of s. 198 of the Migration Act 1958 (Cth) – whether appropriate steps have been taken for the removal of the applicant – detention of applicant found not to be unlawful – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 46A, 48B, 91X, 189, 195A, 196, 197AB, 197C, 198, 476

Cases cited:

McHugh v Minister for Immigration, Citizenship,

Migrant Services and Multicultural Affairs [2020] FCAFC 223

Number of paragraphs:

49

Date of last submission/s:

18 February 2021

Date of hearing:

18 February 2021

Place:

Sydney

Solicitor for the Applicant:

Mr D Taylor, Sydney West Legal and Migration

Counsel for the Respondents:

Mr P Knowles

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

SYG 2424 of 2020

BETWEEN:

ENR20

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	18 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The further amended application filed on 1 January 2021 is dismissed.

2.The applicant pay the respondents’ costs fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a Constitutional writ in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of an application brought alleging that the applicant is the subject of unlawful detention, engaging this Court’s powers in respect of a Ministerial decision. 

2. The focus of the argument advanced by Mr Taylor, on behalf of the applicant, is that there has been a breach of s 198 of the Act by reason of a failure to take appropriate steps for the removal of the applicant. 

3. The applicant is a citizen of Sri Lanka and arrived in Australia as an authorised maritime arrival in 2012. 

   LITIGATION HISTORY

4. The Minister lifted the bar under s 46A of the Act on 20 November 2012, and the applicant applied for a Protection visa on 14 December 2012, which application was refused on 4 September 2013 by a delegate of the first respondent. The applicant sought review unsuccessfully in the Refugee Review Tribunal, which affirmed the decision of the delegate on 14 May 2015. The applicant applied for judicial review, which was dismissed by the Federal Circuit Court of Australia on 2 September 2016. The applicant appealed to the Federal Court of Australia on 16 February 2017. That application was dismissed. The applicant unsuccessfully sought a special leave application that was dismissed on 12 October 2017. 

5. The applicant was scheduled to be removed from Australia on 10 September 2018, and the applicant’s current legal representative sought an injunction in respect of his removal. A judge of this Court made an interim order on 10 September 2018 preventing the applicant’s removal from Australia. As a consequence, the applicant was taken off the flight that was leaving Perth, having boarded in Sydney, on a flight to Sri Lanka. 

6. The application was then listed before a judge on 14 September 2018 and the request to extend the restraining order was refused on 14 September 2018. The applicant made a further special leave application to the High Court of Australia, which was dismissed on 13 February 2019. 

7. The applicant sought relief in the Federal Court of Australia in relation to the alleged publication of personal information contained in the judgment of the Federal Circuit Court of Australia, which was dismissed on 10 July 2020. The applicant then appealed that judgment, which was dismissed on 22 December 2020.

8. It was foreshadowed that the applicant intended to seek special leave, but that does not appear to have occurred. 

   THE APPLICATION

9. There do not now appear to be any other proceedings still extant, other than these proceedings that were commenced on 15 October 2020 by the applicant.

10. These proceedings are one in which the applicant is, in substance, alleging breach of s 198 of the Act and seeking orders in the nature of a writ of habeas corpus on the basis that it is alleged that the applicant’s continued detention is unlawful.

11. The further amended application contends that the detention is unlawful because the Minister has not taken steps to resolve impediments to the removal. 

12. The history of steps taken in relation to an Office of the United Nations High Commissioner for Human Rights (“OHCHR”) Interim Measures Request (“IMR”) of 10 September 2018 was referred to in the context of communications, and an alleged failure to undertake a genuine domestic process in respect of the United Nations Convention against Torture (“UNCAT”) complaint and the IMR request. 

13. The application also alleges that the applicant has sur place claims as the result of a s 91X breach, which has been rejected by the Federal Court of Australia.

14. The application complains about the failure to undertake a concurrent International Treaties Obligations Assessment (“ITOA”) to consider the applicant’s sur place claims, allegedly arising out of material that was on the flight to Sri Lanka, as a result of which the applicant claims to fear harm from the Sri Lankan authorities. It is alleged that the respondents have unlawfully failed to undertake a domestic assessment in respect of the applicant’s additional claims.

15. In the application, reference is also made to s 197C of the Act, alleging that the removal must proceed as soon as reasonably practical irrespective of non-refoulement obligations.

16. In the application, reference is also made to the exercise of the Ministerial intervention power of s 195A of the Act and to the proposition that the decision of the Minister to personally refuse to exercise the s 195A Ministerial intervention power required the applicant to be held in immigration detention under ss 189 and 196 of the Act. It is alleged that the Minister had a duty to remove the applicant as soon as reasonably practicable under s 198(6) of the Act, irrespective of any non-refoulement obligations. 

17. It is alleged that the removal is inconsistent with the suspension of removals process of 12 September 2018.

18. It is alleged that the purpose of the detention under ss 189 and 196 of the Act has not been complied with, and the application seeks the release of the applicant from immigration detention. 

    MINISTERIAL INTERVENTION HISTORY

19. The applicant did request ministerial intervention on 16 August 2018, 7 September 2018, and 18 September 2018. Each of these requests were assessed as not meeting Ministerial guidelines. 

20. The applicant was referred for consideration of the Minister under s 195A of the Act and, on 2 December 2019, the Minister declined to intervene in the applicant’s case, and the applicant was notified of this outcome on 10 February 2020.

21. The applicant was referred to consideration under s 197AB of the Act on 25 February 2020 and the affidavit evidence before the Court identifies that that consideration is ongoing. 

22. The applicant made a request through his current legal representatives for Ministerial intervention in the exercise of the powers under s 48B of the Act on 13 July 2020. 

23. The applicant’s legal representatives again wrote to the Department on 14 July 2020, advising that an appeal would be lodged in relation to the decision in another case and that there would be a withdrawing of the request for Ministerial intervention.

    DETENTION HISTORY

24. The applicant was initially detained on his arrival in 2012. The applicant was granted a bridging visa following Ministerial intervention on 20 November 2012 and was released from immigration detention. 

25. The applicant was last granted a bridging visa on 23 November 2015 that ceased on 23 February 2016. Since that date, the applicant has not held any further visa and has, and remains, an unlawful non-citizen in Australia. 

26. The applicant was located by the New South Wales Police on 2 April 2018 and, having identified that he had no current visa, was subsequently detained under s 189(1) of the Act by an officer on 2 April 2018, and has remained in detention since that date.

    COMPLAINTS TO UNCAT

27. The applicant, through his lawyers, made complaints to UNCAT on 10 September 2018 and he also requested an IMR be issued by UNCAT to the Australian Government in response to the complaint. 

28. On 4 December 2020, the Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs assessed the IMR as being unwarranted. 

29. On 6 January 2021, the applicant’s case was referred to the removals area of the Department and evidence has been tendered of an email sent in that regard on 6 January 2021.

    CURRENT DETENTION STATUS AND REMOVAL STEPS

30. There is no evidence that the applicant has claimed to be indigenous or a Torres Strait islander person. 

31. In the evidence before the Court, the applicant remains liable to be detained under s 189(1) and s 196 of the Act on the basis that he is an unlawful non-citizen and does not hold a visa. 

32. Affidavit evidence has also been read that identifies steps taken on 6 January 2021 referring the applicant for involuntary removal. 

33. On 12 January 2021, the applicant was approached by an acting senior Border Force officer in relation to his proposed removal from Australia and was asked whether he would sign a request for removal under section 198(1) of the Act. The applicant refused to sign the request and refused to participate in the interview. The interview is usually undertaken with removal action by obtaining information from the detainee about a number of matters, including support available to them when they return to their intended address, whether the airport is close in relation to their home, and where they are returning, and any medical or other issues that they may wish to raise that impact on them travelling. 

34. The most recent advice from the Sri Lankan High Commission to the Department of the respondents is that the border remains currently closed for repatriation flights and commercial flights due to the current COVID-19 pandemic. Despite that advice, steps were taken for a repatriation flight being organised to Sri Lanka in January 2021. The flight was full of Sri Lankan citizens in the community who wished to return to Sri Lanka. They were not ones who were returning involuntarily and, accordingly, did not require security escorts. The applicant has not indicated that he will voluntarily return to Sri Lanka and, accordingly, will require a security escort. The most recent advice from the Sri Lankan authorities is that it is not presently possible to make arrangements to return Sri Lankans who require security escorts. 

35. There has also been advice from the Sri Lankan Consulate on 18 January 2021 that, due to current limitations on international travel, the issuing of temporary travel documents is currently suspended. The evidence identifies that  the respondents, through the Department, will continue to seek updated information from the Consulate about this practice, and it has also been identified that the Department will continue to liaise with the Sri Lankan authorities with a view to obtaining agreement that the applicant be returned to Sri Lanka as soon as reasonably practicable.

    BEFORE THE COURT

36. At the commencement of the hearing, the applicant indicated through his solicitor that he wished to cross-examine two witnesses. The Court asked the solicitor to identify the issue of fact upon which cross-examination was sought to be engaged. No proper identification of any genuine issue or fact was identified. Accordingly, the request for cross-examination was refused. 

37. Detailed submissions have been filed by the applicant’s solicitor which, in substance, with the greatest of respect to the solicitor, engage in and endeavour to invite impermissible merits review in relation to determining whether or not the detention of the applicant continues to be lawful.

38. The onus is on the respondents in that regard and, on the evidence that has been adduced, the Court is satisfied that the applicant remains an unlawful non-citizen and that his continued detention is lawful under s 189 and s196 of the Act. 

39. The Court does not accept that there has been any breach of the Act as alleged by the applicant.  The applicant alleges a breach based on a selective and subjective approach to the steps that have been taken in relation to the removal of the applicant. It is apparent, on the evidence before the Court, that real and genuine steps have been taken, and it is the applicant that has prevented his removal from Australia, first by the seeking of an injunction removing him from a flight that was in process and, most recently, by the applicant’s refusal to participate in a voluntary removal. In those circumstances, it is difficult to understand how these proceedings can be genuinely advanced or that there is any reasonably arguable breach of the Act by the Minister. 

40. The Court finds that the applicant has been lawfully detained in immigration detention under s 189 and s 196 of the Act, pending his removal under s 198 of the Act. 

41. There was identified conduct by the applicant that can be described as approbating and reprobating, or in the respondents’ words, inescapable paradox, with the applicant on the one hand making a complaint to the United Nations seeking to prevent his proposed removal and, in this case, seeking to contend that his detention is unlawful because he has not been removed.

42. The applicant seeks to rely upon the principles identified in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223 to assert that the respondent is required to justify the lawfulness of the applicant’s detention. The Court accepts the respondents’ submission that the applicant has not shown on the evidence adduced a reasonably arguable, let alone a prima facie case to challenge the lawfulness of his continued detention.

43. In any event, for the reasons the Court has already given, the Court is satisfied that the respondents have discharged their onus as to the lawfulness of the applicant’s current detention. The respondents have justified the lawfulness of the applicant’s continued detention under s 189 and s 196 of the Act. That is because the applicant is an unlawful non-citizen and the applicant does not hold a visa and is, accordingly, an unlawful non-citizen and because the Court accepts that reasonable steps by the respondents have been and are still being taken for the purpose to remove the applicant from Australia as soon as reasonably practicable. This is also because the applicant has not claimed to be an indigenous Australian and an officer of the Department holds a current suspicion that the applicant is an unlawful non-citizen as identified in the affidavit of Ulysses Priscilla. The applicant is accordingly required to be detained under s 189 and s 196 of the Act. The Court accepts that the detention is for the purpose of removing the applicant as an unlawful non-citizen and is lawful under the Act so long as the purpose is pursued and carried out as soon as reasonably practicable.

44. It is an obvious and significant failure, an oversight in the applicant’s bringing of this case, that there is a world pandemic from COVID-19 that directly impacts on any contention of an alleged failure to take reasonable steps to remove as an unlawful non-citizen. There is direct evidence of that difficulty in the present case, and that evidence alone is sufficient to identify that the applicant’s case must fail. 

45. The Court has taken into account that the Minister has determined the IMR is unwarranted and, as a matter of Australian law, it is irrelevant the IMR has not been formally withdrawn. The Australian government, having investigated the circumstances of the IMR, no longer views the IMR as an impediment to the applicant’s removal on the evidence before the Court. The determination that the IMR is unwarranted was made on 4 December 2020, and the applicant’s case has progressed to the Removals area. 

46. The Court does not accept that, over the period during which there has been a worldwide pandemic, there has been an unreasonable failure by the respondents to take steps to remove the applicant. The evidence in relation to the Sri Lankan Consulate and the issue of travel documents reinforces that position. 

47. There has been no unreasonable delay between the finding of the IMR as unwarranted up to date. It is apparent that the respondents are, through the Department, continuing to monitor the situation in relation to the willingness of Sri Lankan authorities to accept forced returnees. The willingness and ability of a receiving country is a relevant and material matter in relation to whether or not it is reasonably practicable to remove the applicant within the requirements of the provision.

48. Accordingly, there is a clear and reasonable justification for the current delay to the applicant’s removal. The current pandemic is such that Sri Lanka is not currently accepting forced removals and it is apparent on the evidence that there is a continuing monitoring of this situation to facilitate the applicant’s removal as soon as possible. 

49. The Court accepts the respondent’s submission that it is through no fault of the respondents that the removal steps are not proceeding more quickly. It is of the applicant’s own making in having himself removed from the flight to Sri Lanka that he remains in Australia and his further refusal to return voluntarily. Further, there is no evidence to indicate that the removal will not be possible in the future once the pandemic situation abates.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 18 February 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       9 March 2021