HPZB v Minister for Home Affairs
[2025] FedCFamC2G 297
•3 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
HPZB v Minister for Home Affairs [2025] FedCFamC2G 297
File number: MLG 257 of 2022 Judgment of: JUDGE SYMONS Date of judgment: 3 March 2025 Catchwords: MIGRATION – protection visa – costs – where applicant sought mandamus for alleged breach by respondents of s 198(1) of the Migration Act 1958 (Cth) – where on day of final hearing applicant conceded that respondents no longer in breach of duty – where applicant sought costs of proceeding – whether Court should make determination of merits when original application and relief no longer pursued – where none of the parties was unreasonable in its commencement, maintenance or defence of the proceeding – where despite some evidence before the Court not possible to reach concluded view on merits of the case – principle identified in Ex parte Lai Qin applied – no order for costs – application for mandamus dismissed Legislation: Australian Passports Act 2005 (Cth) s 9
Migration Act 1958 (Cth) ss 19, 36, 91W, 198, 501, 501A
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 214
Cases cited: BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
CEU19 v Minister for Immigration, Citizenship and Multicultural Affairs (2019) 165 ALD 566; [2019] FCA 1050
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Woollahra Municipal Council v Minister for Local Government [2017] HCA Trans 244
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submissions: 16 May 2022 Date of hearing: 16 May 2022 Place: Melbourne Counsel for the applicant: Mr A Aleksov and Ms D Gang Solicitor for the applicant: Asylum Seeker Resource Centre Counsel for the respondents: Mr C Horan KC and Mr N Swan Solicitor for the respondents: Australian Government Solicitor ORDERS
MLG257 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HPZB
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
SECRETARY, DEPARTMENT OF HOME AFFAIRS
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
4 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The applicant’s application filed on 1 February 2022 seeking final orders, including a writ of mandamus, be dismissed.
2.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
By an application filed on 1 February 2022, the applicant sought relief that included the following orders:
1. a writ of mandamus directed to the second respondent, the Secretary of the Department of Home Affairs requiring the Secretary to perform, or cause to be performed, the duty under s 198 of the Migration Act 1958 (Cth), as soon as reasonably practicable, to remove the applicant from Australia; and
2. Within 7 days, the Secretary cause any detention of the applicant in immigration detention pending performance of the duty to occur at the address set out in the affidavit of the applicant dated 1 February 2022.
3. An order that the Respondent pay the Applicant’s costs of and incidental to the application.
4. Such other order or writs as the Court thinks appropriate.
However, part-way through the final hearing of his application on 16 May 2022, the applicant (through his counsel, Mr Aleksov) submitted that the proper course was for the Court to dismiss his claim for mandamus and grant his costs of the entire proceeding. The Minister’s position ultimately was that there should be no order for costs because the Court was not required, except in the context of a costs application, to resolve the substantive issue underlying the application for mandamus.
To understand the change of position adopted by the applicant, it is necessary to record some of the background to the application and evidence relied on by the parties.
BACKGROUND
The applicant is an Afghan national who arrived in Australia on 19 January 2012 together with his wife and two sons.
On 29 May 2015, the applicant, his wife and two sons applied for Temporary Protection (Subclass 785) Visas (the visas). On 15 March 2017, a delegate of the (then) Minister for Immigration and Border Protection (Minister for Immigration) refused to grant the visas.
On 23 August 2017, the (then) Administrative Appeals Tribunal (Tribunal) set aside the delegate’s decision, and remitted the matter for reconsideration to the Minister for Immigration with a direction that the applicant satisfied s 36(2)(aa) of the Migration Act 1958 (Cth) (Act) and that the grant of the visa was not precluded by s 91W of the Act (which deals with evidence of identity).
On 17 December 2018, a delegate of the Minister for Immigration refused to grant the visa to the applicant pursuant to s 501(1) of the Act for the reason that the applicant’s conviction on one count of people smuggling in 2014 meant that he had a “substantial criminal record” and did not pass the character test. On 13 December 2019, the Tribunal set aside the delegate’s decision, and remitted the matter with a direction that the application for the visa not be refused under s 501(1) of the Act.
On 10 December 2020, the first respondent (Minister) and Minister for Immigration gave the applicant a Notice of Intention to Consider Refusal of his application for a Temporary Visa under s 501A(2) of the Act.
On 3 December 2021, the Minister for Immigration set aside the Tribunal’s decision pursuant to s 501A(2) of the Act and refused to grant the applicant the visa. That decision was communicated to the applicant on 6 December 2021.
By an email dated 13 December 2021 to the Minister, copied to the Visa Applicant Character Consideration Unit in the Department of Home Affairs (Department), the applicant requested his removal from Australia under s 198(1) of the Act.
It was common ground that s 198(1) of the Act imposes a statutory duty to remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed and that the applicant’s email (which amounted to such a written request) engaged s 198(1) of the Act. The central question for determination was whether – assessed across the timeframe commencing on 13 December 2021 and ending (as events transpired) on the day of the final hearing (16 May 2022) – there had been an actual or constructive failure to perform any duty to remove the applicant from Australia.
EVIDENCE
Counsel for the applicant and the respondents read a number of affidavits in support of their respective submissions.
The applicant read (without objection) the affidavit of Abbey Burke dated 1 February 2022.
The respondents read the two affidavits of Mr Michael Carey dated 28 April 2022 (First Carey affidavit), and 13 May 2022 (Second Carey affidavit), and the two affidavits of Mr Paul Wyllie dated 27 April 2022 (First Wyllie affidavit), and 13 May 2022 (Second Wyllie affidavit). The respondents also read the affidavit of Ms Ellie Babic dated 29 April 2022.
Evidence of Mr Carey
In the First Carey affidavit, Mr Carey confirmed that he was an Inspector within the Field and Removals Operation Team (Removal Team), a team which is responsible for locating unlawful non-citizens as defined by s 19 of the Act. Mr Carey stated that he became aware of the email sent by the applicant to the Minister (see [10] above) on 14 December 2021. He described the line of inquiry that occurred within the Removal Team to gain information regarding the movement of Afghan citizens to third countries, and whether there were any treaties in place that would in fact permit this occurring.
On 22 December 2021, the applicant and his legal representative participated in a removal planning interview with Mr Ockleshaw and completed a Part B form. Mr Carey deposed to this being a standard procedure which addressed removal planning considerations, such as the detainee’s country of citizenship and whether the detainee has a right of residency or long-term stay in other countries other than their home country.
On 8 April 2022, Mr Ockleshaw sent an email to the applicant and his legal representative, requesting whether any of the applicant’s family members were entitled to residency or citizenship to a third country. On the same day, the applicant’s legal representative advised that were did not.
In the Second Carey affidavit, Mr Carey described how on 11 May 2022, he had referred the applicant’s case to the Department’s Complex Identity Advice Team (CIAT) for advice on whether the applicant was a citizen of or has a right to residency in a country outside of Afghanistan. On 12 May 2022, CIAT accepted the referral and advised it was awaiting the allocation of an Identity Officer.
When Mr Carey was called, he adopted the First and Second Carey affidavits and gave evidence that the Removal Team and removals officers have responsibility for fulfilment of the duty under s 198 of the Act in any given case. Those individuals – APS4/5 officers – have responsibility for the day-to-day management of a person’s removal procedure, including the coordination of logistics. The activities of the removal officer are supervised by an APS 6 supervisor to whom matters can be escalated. In this case, Mr Carey was the officer responsible for supervising the activities of Mr John Ockleshaw.
Mr Carey accepted that under the Australian Passports Act 2005 (Cth) (Passports Act), the Minister may grant a person or issue a person a travel document. He gave evidence that although not an expert on the topic, he was not aware of any impediment to the applicant being issued with such a document. It was the responsibility of the Australian Border Force (ABF) consular liaison team to approach the Minister for the issue of such a document. Mr Carey agreed that, to his knowledge, there was not any doubt about the applicant’s identity and that he was not aware of any health issues that might present as an impediment to the applicant’s removal, although checks would be conducted prior to any removal proceeding.
Mr Carey told the Court that the applicant’s case had been referred to the ABF consular engagement liaison team for their assistance and he understood that it was this team that was making inquiries as to whether a foreign country, other than Afghanistan, might receive the applicant. Mr Carey accepted that, in hindsight, it should have been obvious that this team needed to be drawn in at the very beginning of the case but that the initial contact had not occurred until [Mr Ockleshaw] sent them an email in April. Mr Carey could not recall whether there were any emails exchanged between his team in relation to what evidence the Minister might have been able to file on 4 April (the first date for filing of evidence). Mr Carey gave evidence that Mr Ockleshaw had been communicating with Mr Wyllie about steps to effect the applicant’s removal. Mr Carey himself first became aware of this application being filed by February this year.
Evidence of Mr Wyllie
Mr Wyllie is a Principal Legal Officer within the Detention Removals Litigation team. He deposed to being the person with carriage of this matter within the Department, and described the relevant legislation, policy and procedures relating to removals under s 198 of the Act.
On 6 April 2022, Mr Orchard-Stephan, an Acting Senior Legal Officer in the Migration and Citizenship Legal Branch of the Department, emailed the ABF Consular and Engagement Liaison Team (CELT), seeking advice as to whether the Department was permitted to interact with the Afghan Embassy in relation to travel documents following the change of the Afghan Government.
On 7 April 2022, Mr Wyllie emailed Ms Dencio, an employee in the Department of Foreign Affairs and Trade (DFAT) Passports Policy Team, seeking advice as to the applicant’s eligibility for a Convention Travel Document, Certificate of Identity (COI), or other Australian-issued travel document. Also on 7 April 2022, Ms Turner, a supervisor within CELT, emailed Mr Orchard-Stephan and Mr Wyllie advising that the Afghan Embassy does not process any travel permit applications for detainees, as this would require further coordination and procedure to be followed with the country.
On 17 April 2022, Mr Wyllie followed up on the email sent to Ms Dencio on 7 April 2022.
In the Second Wyllie affidavit, Mr Wyllie deposed that on 2 May 2022, he received an email from Ms Dencio, advising that a non-citizen who was to be removed from Australia may be eligible for a COI under s 9(1A)(b)(i) of the Passports Act. Mr Wyllie deposed that after receipt of this advice he contacted CELT with this information.
When Mr Wyllie was called, he adopted the First and Second Wyllie affidavits. Mr Wyllie acknowledged the requirement that there be a travel document in the usual course in order to effect removal. His understanding was that in the context of an Australian Passport Determination (under the Passports Act), the Minister for Foreign Affairs would need to be satisfied as to the person’s identity before issuing any document.
Mr Wyllie gave evidence that he took the step (of his own initiative) to write to DFAT on 7 April 2022 regarding a question of travel documentation and that he had discussed with the Australian Government Solicitor that he was intending to take this step. Mr Wyllie told the Court that he became aware of this litigation when it was first filed in February 2022 and that the Court had made orders requiring the respondents to file their evidence on 4 April 2022.
Mr Wyllie explained that the reason he took this step was to assist the Department with progressing the removal of the applicant.
Mr Wyllie accepted as possible that he knew from as early as December 2021, information to the effect that Afghan citizens did not have a right of entry in any other country through a treaty between Afghanistan and another country. He explained that the process that would be followed in terms of the Commonwealth identifying another country would require engagement with the relevant embassy or high commission of the foreign country.
Mr Wyllie told the Court that he had received advice from DFAT that the applicant would be eligible for the grant of a COI.
Mr Wyllie denied, when it was put to him, that on 7 April 2022 and indeed well before then, he knew perfectly well that the applicant was eligible for the grant of a travel document. He denied that he had written to Ms Dencio because the Commonwealth needed to generate material to submit to the Court saying only that he was seeking to assist the Department in its efforts to remove the applicant.
Mr Wyllie acknowledged having received an affirmative reply to his inquiry on 2 May 2022 and agreed that nothing had been done since that time in terms of obtaining a COI or any travel document but said this reflected advice that the usual practice was to obtain the approval of a country to accept someone on a COI, and then to apply for the certificate after this had occurred.
At this point of the hearing, it came to light that Mr Wyllie had been informed that the Department had taken steps to contact the High Commission of Pakistan by sending an email to the Pakistani embassy at 10:26am that morning. This email chain had been started by Mr Wyllie the day prior to hearing with an email bearing the subject “Instructions Sought Ahead of Hearing Tomorrow at 10am”, to which Ms Zacka, an inspector of the Country Engagement Liaison Team, had responded attaching the email to the Pakistani High Commission.
Having reflected on this evidence, a concession was made on behalf of the applicant that the respondents were no longer in default of their duty under s 198(1) of the Act because they had taken steps to contact a foreign embassy to find another country to return or remove the applicant, and the submissions devolved into an argument about costs.
COSTS
The applicant’s submissions
The applicant submitted that a strong inference arose that the respondents’ efforts to contact the Pakistani embassy were entirely responsive to the case prosecuted by him and that had the case concluded at 10:25 am that day he would have enjoyed success. As such, it was submitted the appropriate course of action was to dismiss the claim for mandamus and grant the applicant his costs of this entire matter.
The applicant submitted that from the moment of receipt of his removal request made on 13 December 2021, there was a duty to take reasonable steps to effect his removal that fell upon Commonwealth officers.
The applicant submitted that from December 2021 to 6 April 2022, the evidence before the Court disclosed that nothing at all had happened. Beyond this point, the only step of significance was the step taken that morning of approaching a foreign embassy. The applicant submitted that this obvious step should have been taken “months ago”.
The applicant described the emails that had been sent by Commonwealth officers between 6 April 2022 and the morning of the hearing as examples of “bureaucratic window dressing”, an expression adopted by Wigney J in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 at [155] to refer to a situation where an instruction to reopen the “removals service” was construed by his Honour as an empty step prompted by the fear that the applicant may make an application for a writ, or an order in the nature of habeas corpus. The applicant submitted that the evidence suggested that the Commonwealth simply did not have in place arrangements that would allow it to fulfil its duty under s 198(1) of the Act.
The applicant referred to CEU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1050 at [88], where Mortimer J (as her Honour then was) granted costs despite the applicant failing to obtain the orders he was after. In this case her Honour noted the only reason the applicant’s legal representatives had to expend significant resources was due to the respondents’ course of conduct. The applicant submitted that the Court should adopt a similar approach in this case.
The respondents’ submissions
The respondents resisted the suggestion that they were under some free-standing duty to take all reasonable steps to effect removal as soon as they became available and submitted that the steps in fact taken by the Commonwealth should be assessed having regard to the language of s 198(1) which casts a duty to effect removal as soon as it becomes reasonably practicable.
The respondents acknowledged that there might be circumstances in which a court would need to intervene if nothing or not enough was being done in pursuit of this duty but submitted that this case fell well short of this mark. Instead, the evidence disclosed that in the weeks and months since the removal request had been made, there had been a series of actions taken to address issues that related to removal, extending to identity documents, travel documents, inquiries about rights of residence and entry and stay in third countries, and most recently, an approach to the Pakistan High Commission. The respondents described these inquiries as appropriate, including because, in the case of inquiries about rights of citizenship or residence, they had the potential to identify helpful leads.
The respondents submitted that there was no concession and no evidence to support a finding that there had been any period during which the executive had failed to comply with the requirement to remove the applicant as soon reasonably practicable or, to put it a different way, had abandoned efforts to remove the applicant from Australia. The respondents submitted that for this reason, the present case could be distinguished from BHL19.
The respondents submitted that as far as the question of costs was concerned, it was open to the Court to adopt the approach set out in Re Minister for Immigration and Ethnic Affairs; Ex parte LaiQin (1997) 186 CLR 622 and resist the making of a costs order reflecting the position that the Court had not been required ultimately to engage with the merits of the application but that in any event, it was not sufficiently clear that one or other party would have enjoyed success.
The respondents submitted that the applicant had not proved the facts and circumstances necessary to establish an entitlement to mandamus so that the default position should prevail.
CONSIDERATION
This Court has a broad discretion in relation to the award of costs under s 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). It falls to be exercised in a particular context in the present case, being that the substantive proceeding has been rendered moot following a concession made by the applicant that the conditions for the grant of mandamus did not exist beyond the point in time that an inquiry was made of the Pakistan High Commission. The respondents of course say that the conditions were never present.
In Lai Qin, an application for judicial review of the Tribunal’s decision (to affirm a decision not to grant her a protection visa) was rendered moot by the Minister exercising a personal discretion to grant her a protection visa under s 417 of the Act. McHugh J explained at 624-625:
In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties…To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties had acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation.
…
Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried…
If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings.
In Woollahra Municipal Council v Minister for Local Government [2017] HCA Trans 244, Gageler J (as his Honour then was) cited the “guiding principle” in Lai Qin with approval and reiterated that it reflects the position that “if it appears that both parties have acted reasonably until the litigation was settled, or its further prosecution becomes futile, the proper exercise of the discretion as to costs will ordinarily mean that the Court will make no order as to the costs of the proceedings”.
In this case, no criticism can be made of the decision taken by the applicant to commence this litigation or to maintain it to the point in time which he did. The applicant undoubtedly was frustrated by the pace at which he perceived the respondents to be taking steps directed at the duty contained in s 198(1) of the Act. Equally however, I am not persuaded, on the evidence that is before the Court, that the respondents’ decision to defend the application and to maintain its defence up to the date of hearing, could be characterised as unreasonable.
Furthermore, while I appreciate that this is perhaps an unusual case where at least some evidence has been adduced and tested so it is not entirely accurate to say that the merits have not been trespassed upon, I am unable to reach the level of conviction required that one party was almost certain to have succeeded if the matter had been fully ventilated and then determined. [1]
[1] For example, the applicant had earlier flagged that he might seek to cross-examine Mr Ockleshaw but this course was not ultimately pursued.
The parties disagree as to the precise nature of the duty owed by the respondents to the applicant under s 198(1) of the Act. This, to my mind, is not simply a matter of semantics and has consequences for the lens through which the different steps taken by the respondents, and the timeliness of those steps, should be viewed. There is clearly evidence that some efforts were made by the respondents to identify a third country to which the applicant could be removed and to understand and facilitate the arrangements that would allow removal to occur. This is not a clear-cut case of “abandonment” of the kind described in BHL19 where “once the officers in Removal Operations became aware that the applicant was unwilling to voluntarily return to Syria, they effectively downed tools and closed the “removals service” in respect of the applicant” (BHL19 at [158]).
I am also not persuaded that there is a symmetry between this case and CEU19 (see [40] above). The prospect of a costs order was flagged to reflect the concern of the Federal Court that the respondents had not fully complied with orders that required them to cause the transfer of the applicant in that case from Nauru to Australia to receive medical treatment.
In these circumstances, I consider the appropriate orders to be made in this case are those set out in the beginning of this judgment.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 3 March 2025
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