Jordan (a pseudonym) v Secretary of Department of Home Affairs
[2023] FedCFamC2G 515
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jordan (a pseudonym) v Secretary of Department of Home Affairs [2023] FedCFamC2G 515
File number(s): MLG 293 of 2022 Judgment of: JUDGE MANSINI Date of judgment: 16 June 2023 Catchwords: PRACTICE AND PROCEDURE – Application for stay of proceedings following residential detention order and pending judgment in substantive application – where stay was sought to afford time in which policy changes or other possible developments of circumstances in Pakistan may occur – where a stay would delay the determination of the legitimate interests of the parties and be contrary to the objects of the legislation – interlocutory application refused.
MIGRATION – Application for relief in the form of certiorari, mandamus and an injunction requiring the Applicant to be removed from Australia to any country other than Pakistan – where the Applicant was unable to identify a decision within the meaning of s.474 – where the Act does not require removal to a particular destination or place and no failure to perform the s.198 duty and no unreasonableness in performance of the duty identified – application dismissed.
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s.140
Migration Act 1958 (Cth) ss.4, 5, 13, 14, 48B, 195A, 196, 197C, 198, 199, 474, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr.1.04, 29.10
Cases cited: AFX17 v Minister for Home Affairs [2020] FCA 807
Al-Kateb v Godwin [2004] HCA 37
AOU21 v Minister for Home Affairs [2021] FCAFC 60
BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 43
Beljajev v Director of Public Prosecutions (1991) 173 CLR 21
Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
Blatch v Archer (1774) 98 ER 969; (1774) 1 Cowp 63
BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530
Byazkilinc v Manager of Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465
Commonwealth v AJL20 (2021) 391 ALR 562
Craig v South Australia (1995) 184 CLR 163
DUZ17 v Minister for Home Affairs [2019] FCA 1593
DXN21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] FedCFamC2G 589
Edelsten v Ward (No. 2) (1988) ALJR 346
Horne v Retirement Guide Management Pty Ltd (2017) 54 VR 325
Jago v The District Court of New South Wales and Ors [1989] HCA 46
Kirby v Centro Properties Limited [2008] FCA 1505
M38/2002 v Minister for Immigration and Indigenous Affairs [2003] FCAFC 131
McMahon v Gould (1982) 7 ACLR 202
Minister for Immigration and Border Protection vSZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
Mokhlis v Minister for Home Affairs (2020) 94 ALJR 843
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506
New South Wales v Robinson (2019) 266 CLR 619
Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17
Plaintiff M61 v Commonwealth (2010) 243 CLR 319
Plaintiff M70/2011 v Minister for Immigration and Citizenship & Anor [2011] HCA 32
Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Refugee Tribunal: Ex parte Aala (2000) 204 CLR 82
Royal Society for the Prevention of Cruelty to Animals (Victoria) Inc v Marson Constructions Pty Ltd [2000] VSCA 38
Snedden v Minister for Justice for the Commonwealth of Australia (2014) 145 ALD 273
State of Western Australia v Bond Corporation Holdings Pty Ltd and Others [No 2] (1992) 37 FCR 150
Sterling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd (1992) 34 FCR 287
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 and Multicultural and Indigenous Affairs [2002] FCA 1625
WAJZv Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 84 ALD 655
Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562
Wright v The State of Western Australia (2010) 43 WAR 1
Division: Division 2 General Federal Law Number of paragraphs: 168 Date of hearing: 9 June 2022, 15 November 2022 & 14 March 2023 Place: Melbourne Counsel for the Applicant: Mr M Albert with Mr H Crosthwaite Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the Respondent: Mr B McGlade Solicitor for the Respondent: Australian Government Solicitor ORDERS
MLG 293 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RYAN JORDAN (A PSEUDONYM)
ApplicantAND: SECRETARY OF DEPARTMENT OF HOME AFFAIRS
Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
16 june 2023
THE COURT ORDERS THAT:
1.The interlocutory application for a stay of proceeding filed on 2 February 2023 is dismissed.
2.The further amended application filed on 19 July 2022 is dismissed.
3.Costs be reserved.
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).
IN SUMMARY
[1]
PART A: CONTEXT
[5]
Factual and procedural
[5]
The applications before the Court
[22]
Primary application for final relief
[22]
Interlocutory application for a stay
[25]
Materials relied upon
[27]
The duty to remove the Applicant from Australia
[32]
Statutory framework and applicable principles
[32]
The Court’s jurisdiction
[38]
Nature and exercise of the duty at s.198
[40]
Relief that may be granted
[46]
PART B: THE STAY APPLICATION
[48]
Statutory framework and applicable principles
[48]
Respective submissions
[56]
Whether to grant a stay in the present case
[63]
PART C: THE SUBSTANTIVE APPLICATION
[71]
The evidence
[71]
About the removals process
[72]
Cost of immigration detention
[78]
Situation in Pakistan
[79]
Removal to other countries
[81]
The Applicant’s personal and psychological circumstances
[86]
The Applicant’s removals process
[92]
FIRST FORM OF RELIEF SOUGHT - CERTIORARI
[105]
Statutory framework and applicable principles
[106]
Respective submissions
[110]
Was a decision made on 7 June 2022?
[112]
SECOND AND FOURTH FORMS OF RELIEF SOUGHT – MANDAMUS AND INJUNCTION
[121]
Statutory framework and applicable principles
[123]
Respective submissions
[129]
Whether there has been a failure to perform the s.198 duty warranting mandamus
[141]
Whether Pakistan is unavailable as a country destination of removal warranting injunctive relief
[158]
Resolution of second and fourth forms of relief sought
[164]
THIRD FORM OF RELIEF SOUGHT - RESIDENTIAL DETENTION ORDER
[165]
CONCLUSION
[168]
REASONS FOR JUDGMENT
JUDGE MANSINI
IN SUMMARY
Before the Court is an application that concerns the Commonwealth’s statutory duty to remove an unlawful non-citizen from Australia “as soon as reasonably practicable” as required by s.198 of the Migration Act 1958 (Cth) (Act).
At the time the proceedings commenced, the Applicant was held in immigration detention as an unlawful non-citizen. By that application (as amended) he sought relief essentially directed at his removal to a third country other than his country of citizenship, Pakistan, and for his immigration detention to occur at a residential address.
Whilst judgment in the substantive application was reserved, the Applicant was released from immigration detention to live in the Australian community on a residence determination order. He then sought a stay of the substantive proceedings.
For the reasons that follow, I have determined that there is no basis to grant a stay and there is no basis to grant the forms of relief sought in the substantive application.
PART A: CONTEXT
Factual and procedural
The Applicant is a citizen of Pakistan who came to Australia by boat on 23 March 2013 as an unauthorised maritime arrival. There is substantial context to his subsequent efforts to stay in Australia. Only the facts most pertinent to the present applications are summarised.
As an unauthorised maritime arrival, the Applicant was initially detained for some 8 weeks before being permitted to stay in Australia on a series of temporary visas and, for almost one year following the lapse of a temporary visa, with no visa at all until Ministerial intervention allowed him to apply for further temporary visas.
On 27 March 2017, the Applicant applied for a Safe Haven Enterprise Visa (protection visa). On 8 October 2018, the protection visa application was refused by a delegate of the Minister for Home Affairs (as it then was). On 3 December 2018, the Immigration Assessment Authority affirmed the delegate’s decision. On 15 October 2019, this Court (differently constituted) dismissed the Applicant’s application for judicial review. On 30 June 2020, a Full Court of the Federal Court of Australia dismissed the Applicant’s appeal. On 5 November 2020, the High Court of Australia refused the Applicant special leave to appeal therein exhausting the Applicant’s rights to appeal the outcome of his protection visa application.
Whilst awaiting the delegate’s decision on his protection visa application, on 25 May 2018, the Applicant’s most recent bridging visa was cancelled (by reason of the Applicant being charged with sexual assault and false imprisonment) and the Applicant was detained as an unlawful non-citizen. The Applicant appealed the charges which were subsequently dismissed and also sought review of the bridging visa cancellation decision which application he withdrew on 22 October 2019.
On 6 November 2020, after the High Court’s refusal to grant special leave, the Applicant was referred for removal from Australia under s.198(6) of the Act and has remained in detention pending his removal from Australia. At that time, Pakistan was refusing to accept involuntary removals without travel documents.
On 29 April 2021, the Applicant again applied for a protection visa. A request for Ministerial intervention was made on 5 May 2021 and was not referred on 18 May 2021 for failure to meet Department guidelines.
On 9 February 2022, these proceedings were commenced. The originating application sought:
(a)interlocutory orders for the allocation of a human pseudonym, a restraint on the Respondent from taking the Applicant to a regional processing country, a residential detention order for the Applicant to live with a friend pending the final resolution of the proceedings, and a subsequent transfer of this proceeding to the Federal Court; and
(b)final orders for the Respondent to as soon as reasonably practicable take the Applicant to a regional processing country pursuant to s.198AD(2), a residential detention order pending the performance of the s.198AD duty at the nominated friend’s address, and that the Respondent pay the Applicant’s costs.
Various procedural orders were subsequently made including the allocation of a human pseudonym pursuant to s.91X of the Act and a program for final hearing was entered. The matter was later re-allocated for hearing before the Court as presently constituted.
On 4 May 2022, the Applicant filed an amended application which essentially sought orders for the Respondent to: perform the duty under s.198 of the Act to remove the Applicant from Australia as soon as reasonably practicable; to cause immigration detention to occur at a residential address; be restrained from removing the Applicant to Pakistan; in addition to a declaration that the Respondent must afford procedural fairness to the Applicant in performing the duty under s.198 and an order as to costs.
On 9 June 2022, the hearing of the substantive application commenced. The Applicant attended in person from immigration detention and was represented by Counsel appearing in person. The Respondent was also represented by Counsel appearing in person. The hearing was adjourned on that day, on application of the Applicant during cross-examination of a Mr Michael Carney, Inspector (Executive Level (EL) 1) within the Field and Removals Operations Team (Removal Operations) of the Maritime and Enforcement Operations South Branch of the Australian Border Force and on the basis that the injunction sought was no longer sought on an urgent or interlocutory basis.
On 21 June 2022, the Applicant made a request under s.198 of the Act for the Minister to remove him to any of: Germany, Italy, the United States of America, New Zealand, Canada, Antigua or Barbuda.
On 19 July 2022, the Applicant filed a further amended application which contained 4 grounds of review and identified the relief sought in the terms set out below.
Over the period 19 July to 14 November 2022, further affidavit evidence, consolidated written submissions and an updated supplementary court book was filed.
On 15 November 2022, the hearing before this Court resumed. The Applicant attended by video link from immigration detention and was represented by Counsel appearing in person. The Respondent was also represented by Counsel appearing in person. Judgment was reserved.
On 22 December 2022, the Minister made a residence determination order pursuant to s.197AB of the Act enabling the Applicant to live in the Australian community. The Applicant was subsequently released from immigration detention.
On 2 February 2023, the matter was listed for mention in relation to a further question of the Court regarding the third ground of the further amended application. At the mention, the Applicant’s Counsel notified the Court that the prior evening an application in a proceeding had been lodged with the Registry. In summary, the Applicant sought a stay of the substantive matter on the basis that the continuation of it would be to his detriment and prejudice. Programming orders were made in relation to that interlocutory application and materials were subsequently filed by the parties.
On 14 March 2023, the matter proceeded to hearing of the interlocutory application by video link. The Applicant was represented by Counsel and the Respondent was represented by Counsel.
The applications before the Court
Primary application for final relief
By the further amended application of 19 July 2022, the Applicant sought the following substantive relief against the Secretary of the Department of Home Affairs as the single respondent:
1.The decision by or on behalf of the Respondent dated 7 June 2022 to remove, or that it was lawful to remove, the applicant to Pakistan be quashed.
2.The respondent must perform, or cause to be performed, the duty under s 198 of the Act to, as soon as reasonably practicable, remove the applicant from Australia other than to Pakistan.
3.An order that from no later than 1.00pm on 14 days after judgment:
(c) The respondent is to cause any detention of the applicant in immigration detention pending performance of his duty under s 198 of the Migration Act 1958 (Cth) to occur at the address set out in the affidavit of [Applicant’s friend] dated 22 December 2021; and
(d) The applicant be detained at that address by being in the company of and restrained by one or more “officers” as defined under Migration Act 1958 (Cth), or by another person or persons directed by the respondent to accompany and restrain the applicant.
4. The respondent be enjoined from removing the applicant to Pakistan.
5. [deleted]
6. An order that the respondent pays the applicant’s costs of the proceedings.
(sic.) (the tracked changes which indicated amendments to the superseded version of the application as marked on the further amended application have been omitted for ease of reference)
In support, the Applicant articulated 4 grounds:
(a)In respect of the first order sought, that the decision to remove, or that it was lawful to remove, the Applicant to Pakistan dated 7 June 2022 was unlawful and/or infected by jurisdictional error (hereinafter referred to as Ground 1) because:
•The respondent failed to afford the applicant procedural fairness, which obligation conditions to the lawful exercise of the duty to remove under s 198 of the Act.
•The respondent failed to consider or engage with material filed by or on behalf of the applicant in respect of whether it was reasonably practicable to remove him to Pakistan, including affidavits in sworn form.
•The respondent took into account irrelevant considerations, namely whether Australia owed the applicant non-refoulement obligations.
•Having regard to all matters, the decision to remove the applicant to Pakistan was legally unreasonable.
(b)In respect of the second order sought, that it was reasonably practicable to remove the Applicant to a place outside Australia other than Pakistan (Ground 2).
(c)In respect of the third order sought, the Applicant conceded that the relief is not available but maintained the ground to preserve the Applicant’s position subject to the outcome of proceedings in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52 (AZC20) on appeal before the High Court of Australia (Ground 3).
(d)In respect of the fourth order sought, it is not reasonably practicable to remove the Applicant to Pakistan now or in the reasonably foreseeable future for reasons other than Australia’s non-refoulement obligations (Ground 4).
In summary, the Respondent denied that relief was available in those forms including because no decision to remove the Applicant was made on 7 June 2022 or at any time and, therefore, there was no “migration decision” to quash and there is no basis to compel the Respondent to do anything at all. If the injunctive relief sought (by Ground 4) were refused, then the Respondent maintained that the Applicant could be removed to Pakistan quickly within 3 to 4 weeks. The Respondent also said that new evidence about the circumstances in Pakistan is not able to be considered by this Court and is a matter for the removal officers. Further, as Ground 3 is not pressed, then the proper approach is that it be withdrawn or dismissed.
Interlocutory application for a stay
By the interlocutory application filed 2 February 2023, the Applicant sought orders in the following terms:
1.Pursuant to rule 29.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, proceeding MLG 293/2022 is stayed until 2 July 2023, or some other time that the Court deems appropriate.
2.Each party have liberty to apply to vary or discharge the stay.
3.Costs reserved.
The Respondent said this was not a circumstance warranting the extraordinary exercise of the discretion to order a stay and to do so would be to improperly secure the Court’s intervention in the preservation of a status quo.
Materials relied upon
As at the second day hearing of the substantive matter on 15 November 2022, the Applicant relied on the following materials:
(a)Further amended application (filed 19 July 2022);
(b)Affidavit of Carina Ford (dated 24 March 2022) – annexing the psychological report conducted by Mr Guy Coffey (dated 23 March 2022);
(c)Affidavit of Carina Ford (dated 29 April 2022) - annexing evidence of her communication with two separate bodies regarding the Applicant’s citizenship eligibility and citizenship laws and processes in Antigua and Barbuda and Vanuatu respectively;
(d)Affidavit of Carina Ford (dated 29 April 2022) – annexing various country information;
(e)List of authorities (filed 7 June 2022);
(f)Affidavit of Carina Ford (dated 15 July 2022) – annexing communication of the request to the Minister made on 21 June 2022; and
(g)Outline of written submissions (filed 30 September 2022).
As at 14 March 2023, the Applicant relied on the following additional materials filed in support of the stay application:
(a)Application in a proceeding (filed 2 February 2023);
(b)Affidavit of Carina Ford (dated 1 February 2023) – annexing various media articles regarding the situation in Pakistan;
(c)Outline of written submissions (filed 28 February 2023); and
(d)Affidavit of Carina Ford (dated 10 March 2023) – annexing further media articles regarding the situation in Pakistan.
The second of the Applicant solicitor’s affidavits dated 29 April 2022 (at 27(d) above) annexed various country information including:
·Country Information Report Pakistan produced by the Department of Foreign Affairs and Trade (DFAT), dated 25 January 2022 (the DFAT Report);
·European Asylum Support Office (EASO) Country of Original Information Report “Pakistan Country Overview”;
·World Health Organisation Mental Health Atlas 2020, Pakistan;
·International Journal of Emergency Mental Health and Human resilience article, ‘Mental Health Pakistan’;
·Amnesty International Report 2021/21- the State of the World’s Human Rights, dated April 2021;
·Human Rights Watch Report on Pakistan, 2022;
·United States Department of State, Bureau of Democracy, Human Rights and Labour Country Report on Human Rights Practices for 2020- Pakistan, dated March 2021; and
·Bundle of news articles dated 18 January 2022- 28 April 2022.
As at the second day hearing of the substantive matter on 15 November 2022, the Respondent relied on the following materials:
(a)Response (filed 11 April 2022);
(b)Affidavit of Michael George Carey (dated 25 May 2022);
(c)Affidavits of Paul Wylie (dated 27 May 2022 and 2 June 2022);
(d)Affidavit of Cameron John Retallick (dated 3 June 2022);
(e)List of authorities (filed 7 June 2022);
(f)Affidavit of Cameron John Retallick (dated 29 August 2022);
(g)Affidavit of Jill Ogden (dated 29 August 2022);
(h)Affidavit of Michael George Carey (dated 30 August 2022); and
(i)Outline of written submissions (filed 31 October 2022).
As at 14 March 2023, the Respondent also relied on their outline of written submissions (filed 7 March 2023) in response to the stay application.
The duty to remove the Applicant from Australia
Statutory framework and applicable principles
The object of the legislation at the heart of these proceedings is to “regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”: s.4(1). The stated Parliamentary intention is that this Act “be the only source of the right of non-citizens to so enter or remain”: s.4(2). And, to “advance its object”, the Act “provides for the removal … from Australia of non-citizens whose presence in Australia is not permitted by this Act”: s.4(4).
Specifically, the Act provides for an “officer” who knows or reasonably suspects that an “unlawful non-citizen” is in the migration zone to detain the person: s.189(1). And, in turn:
(a)An “officer” is defined by the legislature to include officers of the Department, members of certain police forces and persons or classes of persons authorised as such by the relevant Minister: s.5 of the Act; and
(b)The term “unlawful non-citizen” is defined to include a non-citizen who does not hold a visa: ss.13 and 14 of the Act.
The duration of detention of an unlawful non-citizen is proscribed to include, among other things, until he or she is removed from Australia under ss.198 or 199: s.196(1)(a) of the Act.
The authority and duty to detain an unlawful non-citizen pursuant to s.189(1) for the period specified in s.196(1) is attended by an obligation on the executive to effect the removal of an unlawful non-citizen “as soon as reasonably practicable”: Commonwealth v AJL20 (2021) 391 ALR 562 (AJL20). This obligation is contained in s.198, which relevantly provides:
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 Minister, in writing, to be so removed.
[…]
Removal of unlawful non-citizens in other circumstances
[…]
(6)An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is a detainee; and
(b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c)one of the following applies:
(i)the grant of the visa has been refused and the application has been finally determined;
(ii)the visa cannot be granted; and
(d)the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
Section 197C also bears relevance to this application:
197C Relevance of Australia's non-refoulement obligations to removal of unlawful non-citizens under section 198
(1)For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2)An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.
(3)Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if:
(a)the non-citizen has made a valid application for a protection visa that has been finally determined; and
(b)in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non-citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii)a decision made under subsection 197D(2) in relation to the non-citizen is complete within the meaning of subsection 197D(6);
(iii) the non-citizen has asked the Minister, in writing, to be removed to the country.
(4)For the purposes of subsection (3), a protection finding is made for a non-citizen with respect to a country if a record was made in relation to the non-citizen under section 36A that the Minister is satisfied as mentioned in paragraph 36A(1)(a), (b) or (c) with respect to the country.
(5)For the purposes of subsection (3), a protection finding is also made for a non-citizen with respect to a country if the Minister was satisfied of any of the following (however expressed including impliedly):
(a)the non-citizen satisfied the criterion in paragraph 36(2)(a) with respect to the country and also satisfied the criterion in subsection 36(1C);
(b) the non-citizen satisfied the criterion in paragraph 36(2)(aa) with respect to the country;
(c) the non-citizen:
(i)would have satisfied the criterion in paragraph 36(2)(a) with respect to the country except that subsection 36(3) applied in respect of the non-citizen; and
(ii) satisfied the criterion in subsection 36(1C);
(d) the non-citizen:
(i)satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
(ii)would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non-citizen was a non-citizen mentioned in paragraph 36(2)(a);
(e) the non-citizen:
(i)satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and
(ii)would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non-citizen was a non-citizen mentioned in paragraph 36(2)(a) and subsection 36(2C) or (3) applied in respect of the non-citizen;
(f)the non-citizen would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that subsection 36(2C) or (3) applied in respect of the non-citizen.
(6)For the purposes of subsection (3), a protection finding is also made for a non-citizen with respect to a country if:
(a) the Minister was satisfied (however expressed and including impliedly) that, because subsection 36(4), (5) or (5A) applied to the non-citizen in relation to the country, subsection 36(3) did not apply in relation to the country; and
(b)a protection finding within the meaning of subsection (4) or (5) was made for the non-citizen with respect to another country.
(7)For the purposes of subsection (3), a protection finding is also made for a non-citizen with respect to a country in circumstances prescribed by the regulations.
(7A)For the purposes of subsection (3), if an unlawful non-citizen has made more than one valid application for a protection visa that has been finally determined, that subsection applies only in relation to the last such application.
(8) For the purposes of subsection (5), it is irrelevant whether or not the non-citizen satisfied any other criteria for the grant of a protection visa.
(9) For the purposes of subparagraph (3)(c)(iii), a non-citizen who withdraws their written request to be removed to a country is taken not to have made that request.
In the time since AJL20, the Full Federal Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 (BHL19 (No 2)) has clarified the effect of s.197C since the amendment to the Act on 25 May 2021, at [27]:
As can be seen, the change to the operation of s 197C effected by the Clarifying Act could more accurately be said to amount to a reversal than a clarification. The effect and operation of s 197C was tolerably clear. Before the amendments, officers were required to disregard as irrelevant the fact that Australia owed non-refoulement obligations to an unlawful non-citizen when it came to the exercise of the duty to remove. After the amendments, the position was effectively reversed. Officers were not required or authorised to return an unlawful non-citizen to a country in respect of which a protection finding had been made regarding that unlawful non-citizen.
The Court’s jurisdiction
Section 476 of the Act confers on this Court the same original jurisdiction in relation to migration decisions as that of the High Court of Australia under paragraph 75(v) of the Constitution, including the power to grant Constitutional writs.
A “migration decision” is defined at s.5 of the Act to mean a “privative clause decision”. Section 474 relevantly provides:
(1) A privative clause decision:
(a) is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
“privative clause decision” means a decision of an administrative character made, proposed to be made or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)
(3) A reference in this section to a decision includes a reference to the following:
[…]
(b)granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
[…]
(g) doing or refusing to do any other act or thing;
(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
[…]
(j) a failure or refusal to make a decision.
Nature and exercise of the duty at s.198
The obligations at ss.198(1) and (6) (as with the other sub-paragraphs of s.198) are expressed as on an officer (M38/2002 v Minister for Immigration and Indigenous Affairs [2003] FCAFC 131 (M38/2022) at [65] and [67]); to remove an unlawful non-citizen from Australia; at the time that is as soon as reasonably practicable to do so. The legislature has incorporated the qualifying phrase “as soon as reasonably practicable” as distinct from reasonable and practicable: Snedden v Minister for Justice for the Commonwealth of Australia (2014) 145 ALD 273 at [116]. 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)
The duty of removal is not absolute in that it does not arise as soon as the conditions expressed in ss.198(1) and 198(6) have been satisfied: M38/2002 at [64]. Indeed there is not yet an unperformed duty that may be subject of mandamus until it has become reasonably practicable to remove an unlawful non-citizen from Australia – therein an application of this nature will attract focus on the activity (or lack thereof) in consideration, identification and pursuit of options to remove: M38/2002 cited in DXN21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] FedCFamC2G 589 (DXN21) at [72]-[73].
Such consideration of the discharge of the duty at s.198 will turn on the particular circumstances of the case and involves a range of considerations (or limitations on what can be considered) in a reasonable practicability assessment. Those considerations include, but are not limited to, factors relating to the detainee facing removal, and what will happen to a person after they are removed and the interests of third party states: M38/2002 at [66], [68]-[69]; BHL19 (No 2) at [166]-[170]; DXN21 at [82]; NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506 (NATB) at [53]; WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 (WAIS) at [58]. In the oft-cited passage from WAIS, French J (as he then was) explained at [58]:
The term “as soon as reasonably practicable” in s 198 is an evaluative term which is to be assessed by reference to all the circumstances of the case. What is reasonable is to be determined, inter alia, by reference to the practical difficulties that may lie in the way of making arrangements for removal which involve the cooperation of other countries whether in respect of the particular applicant or generally in relation to the class of applicants of which he is part. Provided arrangements are being sought generically or specifically by reference to the applicant with reasonable expedition it is difficult to see how delays beyond the control of the Minister and his officers can be taken into account in determining what period for removal falls outside the scope of the terms “as soon as reasonably practicable” in s 198.
The statute neither proscribes nor limits the place or destination of removal for an unlawful non-citizen under s.198. In Plaintiff M70/2011 v Minister for Immigration and Citizenship & Anor [2011] HCA 32 (Plaintiff M70), a majority of the High Court of Australia considered that the Act does not specify “to where” a person may be removed: at [89]. Further, the “general expectation that Australia can and should look to the country of a person’s nationality to receive that person on removal from Australia is necessarily subject to some qualifications”: Plaintiff M70 at [93]. In Al-Kateb v Godwin [2004] HCA 37 (Al-Kateb), a case involving a stateless person who had requested removal but was not being removed as a foreseeable possibility, Hayne J at [226]-[227] (in the majority) considered that:
The period of detention is fixed by reference to the occurrence of any of three specified events. Detention must continue "until" one of those events occurs. The event described as being "removed from Australia under section 198" is an event the occurrence of which is affected by the imposition of a duty, by s 198, to bring about that event "as soon as reasonably practicable". That compound temporal expression recognises that the time by which the event is to occur is affected by considerations of what is "[c]apable of being put into practice, carried out in action, effected, accomplished, or done". In particular, the expression recognises that the co‑operation of persons, other than the non‑citizen and the officer, will often (indeed usually) be necessary before the removal can occur. The duty to remove must be performed within that time. And so long as the time for performance of that duty has not expired, s 196 in terms provides that the non‑citizen must be detained.
It may be accepted that “as soon as reasonably practicable” assumes that the event concerned can happen, and that, if there is any uncertainty, it is about when the event will happen, not whether it will. Where, as here, the person to be removed is stateless, there is no state to which Australia can look as the first and most likely receiving country. But whether the non-citizen is stateless or has a nationality, Robtelmes v Brenan reveals that the removal provisions of the Act are concerned with what was there identified as the corollary to, or complement of, the power of exclusion. Removal is the purpose of the provisions, not repatriation or removal to a place. It follows, therefore, that stateless or not, absent some other restriction on the power to remove, a non-citizen may be removed to any place willing to receive that person. It follows that, unless some other provision of the Act restricts the places to which a non-citizen may be removed (and none was said to be relevant here), the duty imposed by s 198 requires an officer to seek to remove the non-citizen to any place that will receive the non-citizen. And the time for performance of the duty does not pass until it is reasonably practicable to remove the non-citizen in question.
(emphasis in original; citations omitted).
There is vast support in the authorities for the proposition that whether removal is reasonably practicable in a particular case will depend upon whether there is another country that will facilitate entry: see M38/2002 at [68]. The authorities acknowledge the limited ability of Australia to influence receipt by another country and that cooperation of both the detainee and third country will be necessary before the removal can occur: for example, Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17 (Plaintiff M47) at [36], [41], [49]; SZSZM v Secretary, Department of Immigration and Border Protection [2016] FCA 1477, [9]-[10]. In BHL19 (No 2), a case involving a non-citizen who was found to be owed protection and could not be returned to their country of origin or citizenship, Wigney J summarised those authorities at [169]-[171]:
The circumstances in some cases may undoubtedly be such that it could not be said to be reasonably practicable to remove an unlawful non-citizen to a country if that country was unwilling to permit the person to enter the country, or unwilling to otherwise cooperate with Australia, in relation to the removal of the person to that country: see NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506; [2003] FCAFC 292 at [48], [53] (Wilcox, Lindgren and Bennett JJ); Al-Kateb at [218], [226] (Hayne J); WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 at [58] (French J); M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; [2003] FCAFC 171 at [65]-[66] and [68] (Goldberg, Weinberg and Kenny JJ); WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 84 ALD 655; [2004] FCA 1332 at [75] (French J); Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465; [2006] FCA 1368 at [36] (Besanko J).
It does not follow, however, that it was somehow incumbent on the applicant in this case to identify countries that might be willing to receive him or otherwise cooperate with Australia in relation to his removal. […]
[…] It could scarcely be accepted that it would be reasonable for the Commonwealth to remove an unlawful non-citizen to a country, other than their country of nationality or ordinary residence, whether voluntarily or involuntarily, simply on the basis that, in the ordinary course, a traveller might be able to arrive and remain in that country for a period of time, either without a visa, or with a visa obtained upon arrival. It could not seriously be suggested that it would have been reasonable for the Commonwealth to simply put the applicant on an aeroplane bound for one of those countries on the basis that he could enter the country without a visa, or could apply for a visa at the airport upon arrival.
The conduct of the detainee may legitimately bear some relevance, as highlighted by the observation of French J in WAIS at [61] that:
[…] A detainee cannot, in effect, create a circumstance which negatives any reasonable likelihood that he can be removed in the foreseeable future by withholding his consent or cooperation to a particular avenue for removal and specifically to removal to the country from which he came.
Relief that may be granted
The Applicant in such a case as this bears the onus of proving that the Respondent has failed to discharge, or has been dilatory in the discharge of, its duty at s.198 of the Act by failing to take any steps, or any meaningful or reasonable steps, to remove them: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 as cited in BHL19 (No 2) at [163]; AOU21 v Minister for Home Affairs [2021] FCAFC 60 (AOU21) at [195].
Where the Executive has failed to carry out its duty under s.198 of the Act (remove a non-citizen from detention as soon as reasonably practicable), the appropriate remedy is a writ of mandamus: AJL20.
PART B: THE STAY APPLICATION
Statutory framework and applicable principles
This Court has a broad statutory power to make orders of such kinds as the Court considers appropriate in relation to matters in which it has jurisdiction: s.140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
Here, the stay is sought pursuant to r.29.10 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Court’s Rules) which provides:
Stay of proceedings
The Court may, at any time, grant, discharge or vary a stay of the proceedings to which an application for judicial review of a migration decision relates.
Also relevant is the overarching purpose of the Court’s Rules by which they are to be interpreted and applied. That is, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: r.1.04.
It was not contentious that this Court has a general power to control its own proceedings and that power extends to enable a stay of the proceeding before it either permanently, temporarily or until a specified day.
A court will ordinarily allow proceedings in which its jurisdiction has been properly invoked to progress to trial and determination unless the legitimate interests of the parties and the administration of justice require otherwise. The judgment to be made requires a balancing of factors of the kind referred to in McMahon v Gould (1982) 7 ACLR 202 (McMahon); State of Western Australia v Bond Corporation Holdings Pty Ltd and Others [No 2] (1992) 37 FCR 150 (Bond Corporation) at 171-172 per French J.
Each case turns on its own merits and it is well established that it would be wrong and undesirable to attempt to define the relevant factors in the abstract: McMahon.
The non-exhaustive factors that may be considered in balancing whether to exercise the discretion to order a stay, as outlined in Bond Corporation at 171-172 per French J (a case about whether a civil proceeding should be stayed pending a criminal trial), include: possible prejudice or detriment, and the burden and effect on the parties, and the conduct of the parties.
The onus is on the party seeking the stay to establish that it is in the interests of justice to stay these proceedings: Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562 at [111] per Dodds-Streeton J. In that case, the defendant to a civil proceeding sought a stay pending the outcome of a related criminal proceeding but the principle as to onus remains apt.
Respective submissions
The Applicant asked the Court to exercise the discretion by balancing justice between the parties. At the stay hearing, Counsel for the Applicant said that any injustice to the Respondent would be minimal and transient whereas the interests of justice favour a stay for 3 main reasons:
(a)First, because the Minister may unilaterally take further steps to secure the Applicant’s freedom, effectively achieving the goal that the Applicant seeks to achieve through Court processes. A stay would avoid injustice to the Applicant by affording time in which policy changes could occur (which time he would be otherwise be deprived of were the substantive application to proceed to judgment). Underscoring this ground was the absence of information about the duration of the Applicant’s residential detention order and the contention that the Respondent having declined to produce information to contradict this (which is solely within its knowledge and power to do) enables a Blatch v Archer (1774) 98 ER 969 inference to be drawn.
(b)Second, because the circumstances of generalised violence in Pakistan have deteriorated since the conclusion of the final day of hearing of the substantive matter. More specifically, this was said to be evidenced by news reports of a 44% increase in terrorist attacks in December 2022 when compared to November 2022 and increased instance of suicide bombings targeting civilians (one of which killed nearly 100 civilians and injured more). A stay would put the Court in a better position to understand the circumstances that the Applicant is at risk of being returned to and avoid the injustice of a return to a heightened state of injustice that would justify a different outcome to that which existed at the date of final hearing.
(c)Third, there is a practical utility in granting the stay because if either matter (at (a) or (b) above) crystallised then there would be no need for expenditure of public resources in determining the substantive matter.
The Respondent contended that the scope of the procedural power does not extend to granting substantive relief to a person not entitled to that relief at law. It emphasised that it is only appropriate to exercise the broad discretion to grant a stay in extraordinary circumstances and not to secure the Court’s intervention in the preservation of a status quo: Beljajev v Director of Public Prosecutions (1991) 173 CLR 21; see also Edelsten v Ward (No. 2) (1988) ALJR 346.
The Respondent also argued that there is real need for resolution of the proceeding because the Applicant remains in detention (notwithstanding that he is now in residential detention) and remains subject of the s.198 duty. It was said that the substantive proceeding is a barrier to the exercise of its duty at s.198 of the Act and therefore a resolution is required so that the Applicant can be removed consistent with that mandatory duty.
The Respondent also contended that there is no prejudice to the Court’s determination of the substantive matter. If the Applicant no longer wants the proceedings determined then the proper course is for him to discontinue. And, to the extent of any prejudice in the determination of the substantive matter at this stage, there is no prejudice that could not be resolved by the Applicant applying for a stay of the outcome of these proceedings following delivery of judgment in the substantive matter.
The Respondent also argued that the possibility of the Ministerial exercise of special powers under ss.48B and 195A (the exercise of which would render the substantive proceeding nugatory) is purely speculative, and the proper time for seeking a stay is when there ever becomes evidence that the Minister is considering the exercise of those powers.
Finally, the Respondent submitted that the evidence does not show that the Applicant is currently personally at risk of harm in Pakistan, and that the media articles do not establish the situation in Pakistan being substantially different from the evidence led at the hearing. The Respondent further submitted that what the Applicant seeks to do is have the Court effectively grant the final relief sought albeit on an interlocutory basis which ought not be done prior to the determination in the substantive application of whether the Applicant has the right to restrain his removal to Pakistan, because to do so would confer on the Applicant a right which does not exist at law and that the stay proceeding is improperly brought given it would be nugatory in the event the substantive injunctive relief is granted.
In reply to the argument that the new evidence does not show the Applicant is at a risk of harm in Pakistan, and that the security situation has not deteriorated since the last day of hearing, the Applicant argued that the Respondent was asking the Court to decide at an interlocutory stage an aspect of the substantive matter.
Whether to grant a stay in the present case
The orthodox grounds for a stay of proceedings include to preserve the subject matter of the litigation pending determination in another forum, to protect the administration of justice by avoiding a multiplicity of proceedings, and/or to prevent an unfairness incapable of being overcome or an abuse of process: see, for example, Sterling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd (1992) 34 FCR 287; Edelsten v Ward (No. 2) (1988) ALJR 346; Kirby v Centro Properties Limited [2008] FCA 1505; Jago v The District Court of New South Wales and Ors [1989] HCA 46.
The starting point is to define the substantive matter before the Court that is sought to be stayed. The present case involves an unusual circumstance where the Applicant substantively asks this Court to compel the Respondent to perform the duty at s.198 to attend to his removal from Australia “as soon as reasonably practicable” but, at the same time, asks the Court to stay those proceedings and necessarily delay his removal.
As the Applicant candidly acknowledged, a principal purpose of this litigation was to regain his freedom which liberty has since been restored. As the urgency has been removed, he now wants a stay of this litigation to preserve the status quo and allow time for other possible interventions or developments.
Neither party drew the Court’s attention to an analogous case.
On the material before the Court (including the Applicant’s evidence filed in the substantive proceedings) and adopting the undisputed principles from the authorities, in my opinion the following factors are relevant in the present case:
(a)The substantive application has been litigated and is pending judgment of this Court. There is no particular burden on the Applicant or the Respondent to the continuation of the proceedings that would weigh in favour of a stay. In circumstances where the Applicant did not seek leave to reopen the substantive application for purposes of adducing new evidence, the contention that the Respondent (or indeed both parties) would be relieved of the burden of filing further materials in the substantive matter can not be accepted.
(b)A stay of this application would delay the determination of the legitimate interests of the parties. For the Applicant’s part, he has been detained for a lengthy period and remains in immigration detention. There was some evidence in support of the substantive application (received with some caution, as indicated below) of a clinical psychologist’s assessment of March 2022 which concluded that the Applicant’s lengthy period in immigration detention had materially contributed to his psychological difficulties. Whilst the Applicant is now residing in a residential home and the psychologist’s opinion of March 2022 was that it is more likely that he will begin to recover, the psychologist considered his prognosis was not straightforward to predict (and less clear whilst there was uncertainty about his residency status and a form of detention). The Applicant is entitled to be removed from Australia without delay. For the Respondent, whilst these proceedings remain on foot, it is essentially unable to discharge its mandatory statutory duty to remove the Applicant from Australia.
(c)The stay is not sought on account of complex issues of law, pending an outcome of other litigation or to prevent a multiplicity of proceedings about the same subject matter. In this respect, whilst the outcome of AZC20 may be relevant to Ground 3 that is a point which, in any event, was conceded by the Applicant in the substantive matter.
(d)A delay of these proceedings in order to gain time in preserving the status quo (in which time there may be further developments in Pakistan which could become relevant to the consideration of whether it is reasonably practicable to remove the Applicant from Australia) is a matter that the Applicant considers would be preferable and to no obvious detriment of the Respondent. However, that approach is inconsistent with the objects of the legislation or the advancement of those objects and is not persuasive toward the grant of a stay even if it were a relevant factor for the Court’s consideration in relation to the stay.
Other than to essentially grant the substantive relief sought whilst further delaying the determination of his substantive application, with the consequence that the Applicant remains in residential immigration detention and uncertain as to his residency status (albeit living in the Australian community whilst circumstances in Pakistan potentially evolve and the Applicant’s psychological condition possibly improves), there is nothing discernible to be gained by a stay as to ameliorate any prejudice or detriment to the Applicant arising from a continuation of the proceeding that he commenced.
Having weighed the relevant factors in the particular circumstances of this case, I am not persuaded this case involves extraordinary circumstance(s) as to warrant the exercise of the discretion. In my opinion, this stay application lacks a proper basis and does not identify an unfairness incapable of being overcome as to persuasively justify a stay of the determination of the legitimate interests of the parties. I conclude that to allow a stay would be inconsistent with the objects of the legislation and would only serve to improperly allow intervention of the Court to maintain the status quo for the Applicant.
In light of the above findings, and the delay already occasioned on account of the stay application (and previous applications for amendment of the case and adjournment of the final hearing as made by the Applicant, which have contributed to delay), I proceed now to determine the substantive matter before the Court. I do so in the knowledge that the parties are entitled to exercise their rights to appeal and seek a stay of the substantive outcome and are therefore not prevented from access to justice by the adoption of this course. In doing so, it may be acknowledged that the Applicant was expressly invited to seek to introduce his new evidence to the substantive matter but made no application to do so.
PART C: THE SUBSTANTIVE APPLICATION
The evidence
There was substantial evidence before the Court in relation to the Applicant’s immigration history, the removals process, third country options for removal and his personal and psychological circumstances. The following is a summary of those facts most pertinent to the application in this matter. Recitations of uncontroversial facts constitute findings I have made.
About the removals process
Mr Carey had occupied the role of Inspector within the Removal Operations Team since October 2020 in which role he was responsible for a range of functions including (but not limited to): managing the planning of removals activities and providing a point of escalation for high-risk and sensitive cases; reviewing and approving removals assessments and plans; establishing and maintaining relationships with key stakeholders supporting removals’ activities; managing removals’ workflow; monitoring team activities for risk and identifying mitigation or escalation strategies; liaising and negotiating with local law enforcement and judicial agencies to coordinate removals activities in alignment with relevant legal frameworks. For some 15 years prior, he had occupied various positions within the Department where he had become familiar with the practices and procedures of Removal Operations and the Department in relation to the removal of unlawful non-citizens.
Mr Carey’s evidence was that Removal Operations is responsible for arranging the removal of detainees to their country of origin or relevant third country and undertaking pre-cursor activities to cause that removal – such as applying for passports for detainees, assessing whether the detainee is fit to travel and arranging flights. He said that this removal process generally follows a referral for removal being made by a status resolution officer responsible for monitoring the immigration status of the detainee.
Mr Carey also gave evidence that a removals officer in Removal Operations Victoria is responsible for removal of detainees from Australia (following, generally speaking, a removal referral) which role and duties include the following by way of example:
(a)Conducting interviews with detainees who are in immigration detention in Victoria in order to arrange for their removal from Australia;
(b)Making arrangements for flights to transport detainees;
(c)Issuing removal notices to detainees who have been booked on charter flights organised by Australian Border Force;
(d)Arranging passports and identity documents;
(e)Arranging for assessments of detainees’ fitness to travel;
(f)Arranging security and health escorts through a service provider or private security company;
(g)Assessing the need for post-removal support by the detainee such as accommodation and limited funds on arrival to pay for travel from the airport and basic necessities; and
(h)Arranging uplift approval, which refers to seeking permission from the airline to transport a detainee.
On the first day of hearing, Mr Carey gave evidence about a pre-removals clearance assessment (PRC assessment) which he said is one of the many administrative checks to be performed in accordance with Departmental policy before a person’s removal can be assessed as reasonably practicable. A Ms Jill Ogden (Assistant Secretary of the Humanitarian Program Operations Branch of the Department for Home Affairs) and Mr Carey subsequently filed affidavit evidence about this procedure. According to Ms Ogden:
(a)A PRC assessment is a Departmental process that is requested by a Departmental removals officer to be undertaken by a pre-removal clearance officer in International Obligations and Complex Cases (IOCC).
(b)The Departmental policy document contained an overview of a PRC assessment including, under the heading “Protection officers: Pre-removal Clearance” an overview which provided:
A PRC is a risk management tool designed to determine the existence of any risks of return with respect to involuntary removals that relate to Australia’s non-refoulement obligations. Protection officers undertake this clearance against the risk factor considerations.
[…]
A PRC is an administrative check and not a migration decision. A PRC is not, and should not be, an assessment of the person’s protection claims (both new and/or previously raised). Rather, a PRC is designed to ensure that relevant protection assessment processes have been completed and to establish whether any new material, including changes in country information, or a change in a person’s circumstances, warrant further protection assessment.
As a matter of policy, removal officers do not provide persons with a copy of a PRC completed with respect to them. In circumstances where persons request a copy of their PRC, removal officers should provide those persons with a copy.
The annexed policy document also provided that the completion of a PRC assessment will result in one of two outcomes: either no risk identified (protection officers have determined that a person’s circumstances do not raise concerns relating to Australia’s non-refoulement obligations) or risk identified (protection officers have determined that a person’s circumstances warrants further assessment against Australia’s non-refoulement obligations). Further, once completed and where no risk is identified, that the protection officer must notify the relevant removal officer, their manager and other relevant Departmental business areas of the PRC assessment outcome with advice that there are no protection barriers to removal and that removal planning can proceed.
(c)Where a PRC assessment concludes that there is a possibility of non-refoulement obligations being breached by a person’s removal, the usual practice of IOCC is that the Pre-Removals Clearance officer will advise the removals officer that removal planning must be suspended and refer the person to the appropriate area within the Department (for example, referral to the department that can consider applications for the Minister to lift the bar and allow another protection visa application under ss.46A and/or 46B).
In Mr Carey’s second affidavit, he said that it is Departmental policy that a removals officer is required to seek a PRC assessment in certain situations before removing a detainee – as a safeguard, to mitigate against the risk of particular detainees being removed in breach of Australia’s non-refoulement obligations. Also by this second affidavit, Mr Carey deposed that a PRC assessment is but one of many processes which are undertaken before removal of a detainee is considered to be reasonably practicable. More specifically, it is an administrative check aimed at mitigating the risk of the removal of particular detainees who, due to identifiable risk factors, may potentially be removed in breach of Australia’s non-refoulement obligations which would in turn trigger implementation of other Departmental processes. At the same time, he said it is not a document used by Removals Operations to determine whether removal to a particular country would result in a breach of Australia’s non-refoulement obligations which are generally irrelevant to the s.198 removal duty by virtue of s.197C of the Act but if a potential non-refoulement risk is identified may trigger the implementation of other Departmental processes.
On the second day of hearing, Mr Carey gave evidence about a removals availability assessment which he said is performed 7 days prior to an unlawful non-citizen’s proposed travel (removal) date. This is detailed further below in relation to the Applicant’s removals process.
Cost of immigration detention
Evidence was received as to the administered operating detention cost per detainee, per day, at the Christmas Island Immigration Detention Centre and the total operating cost of the same facility, which was taken into account to the limited extent that it remains relevant but is not reproduced in this judgment.
Situation in Pakistan
The Applicant’s legal representative filed an affidavit on 29 April 2022 which annexed various country information listed at paragraph 29 of these reasons.
By his own affidavit sworn 29 April 2022, the Applicant deposed to his concerns about generalised violence in Pakistan including the threat of terrorism and attacks he had learned of in the news.
Removal to other countries
By affidavit sworn 29 April 2022, a Ms Carina Ford (the Applicant’s legal representative) by which she deposed to having made enquiries on 27 April 2022 regarding citizenship in Antigua and Barbuda and Vanuatu.
Ms Ford annexed to her evidence an email exchange with the Citizenship by Investment Unit about citizenship of Antigua and Barbuda which outlined 4 options to obtain citizenship for a fee and subject to certain criteria: NDF Investment option; Real Estate option; Business Investment option; and University of the West Indies Fund option. By the schedule of fees, it would appear that the lowest cost option is $USD 137,500.
Ms Ford also annexed an application form from the Vanuatu Government’s Citizenship Office and Commission website and her email correspondence to a gmail address which reflected Ms Ford’s understanding that citizenship of Vanuatu would be available to the Applicant provided that he completed the relevant form and paid a fee of $USD 130,000.
In his first affidavit of 25 May 2022, Mr Carey stated that Removals Operations did not intend to seek to remove the Applicant to any country other than Pakistan, primarily because attempts to so remove him to Pakistan had not been exhausted, the Pakistan High Commission had indicated that they will issue a travel document to the Applicant and Emirates have expressed their willingness to facilitate flights for removal to occur. Mr Carey considered that once the litigation barrier to the Applicant’s removal was resolved, removal to Pakistan appeared likely to be effected quickly and efficiently and there was no information known to Removal Operations to suggest that there is an available “third country pathway” that could be done more effectively and efficiently than removal to Pakistan.
On 21 June 2022, the Applicant (via his legal representative) made a request under s.198 of the Act for the Minister to remove him to any of: Germany, Italy, the United States of America, New Zealand, Canada, Antigua or Barbuda. A copy of that request was in evidence. On the face of the request, the Applicant’s legal representative identified the Applicant as: meeting the criteria for visa-free entry to Germany where his brother is a recognised refugee; related to another sibling resident in Italy; safe in New Zealand, the United States of America and Canada where Australia has arranged for other asylum seekers to go before; and otherwise open to being removed to Antigua and Barbuda via their “golden passport scheme”.
The Applicant’s personal and psychological circumstances
A clinical psychologist’s report dated 23 March 2022 was annexed to an affidavit of the Applicant’s legal representative in these proceedings filed with the originating application on 24 March 2022. The Respondent opposed receipt of this information as evidence because the expert witness did not provide it on affidavit and was not presented for cross-examination. The report was received with some caution.
For present purposes, taking the report on its face, the clinical psychologist gave an overview of the Applicant’s personal and developmental history, medical history and psychological/treatment history and made observations about his mental status at the times of interviews (3, 4 and 16 March 2022).
The clinical psychologist’s report concluded that the Applicant did not suffer a serious mental illness or reach the threshold associated with “Major Depressive Disorder” but did meet the diagnostic criteria for an “Adjustment Disorder – with mixed anxiety and depressed mood (DSM-5)” and was experiencing symptoms of depression and anxiety that were interfering with his daily functioning. As earlier summarised in relation to the interlocutory application for a stay, the clinical psychologist was of the opinion that immigration detention had materially contributed to the Applicant’s psychological problems and the prognosis was less clear to predict whilst the Applicant’s residency status was uncertain and a form of detention continued. The clinical psychologist noted that, at interview, the Applicant denied thoughts of harming himself.
By an affidavit sworn 29 April 2022, the Applicant deposed that if he were returned to Pakistan he would have no other option than to end his life. His evidence was that he will do this because if returned his immediate or extended family or a member of the community or the Government would harm or kill him as he has denounced Islam, converted to Christianity and made public, negative remarks about Islam – he is believed to be an infidel and to have deliberately defamed Islam. Further, that he would rather be dead than live his whole life being shamed, shunned and humiliated.
The Applicant also deposed to having serious mental health issues including anxiety, depression, thoughts of self-harm, suicidal ideation, memory loss and intermittent headaches. His evidence included detail of his concerns that in Pakistan he would be ostracised on account of his mental health issues and his condition would deteriorate including due to societal stigma connected with his Christianity, homosexuality, his criminal charges publicised in his community by his ex-wife and a lack of public resources to get the necessary support.
As earlier referenced, the Applicant also deposed to his concerns about generalised violence in Pakistan including the threat of terrorism and attacks he had learned of in the news.
The Applicant’s removals process
On 6 November 2020, the Applicant was referred for removal and remained in detention (having been detained since 25 May 2018 on account of the bridging visa cancellation). At that time, Pakistan was not accepting the removal of involuntary removees without travel documents.
By his first affidavit sworn on 25 May 2022, Mr Carey gave evidence of steps taken to progress the Applicant’s removal since a Removal Operations group meeting on 13 July 2021 wherein he was advised that the Pakistan High Commission had agreed to accept travel document applications for involuntary removals (which they would assess on a case-by-case basis). That evidence may be summarised as follows:
(a)In March and July 2021, the possibility of a charter flight to Pakistan was given some consideration with regard to the Applicant but did not ultimately eventuate.
(b)On 13 August 2021, a travel document application was submitted on behalf of the Applicant and on 20 August 2021 the Applicant’s status as a national of Pakistan was confirmed as verified and collection of an emergency travel document able to be arranged (which, in Mr Carey’s experience, is subject to provision of a travel itinerary to the Pakistan High Commission).
(c)On 15 December 2021, an internal request was made to identify potential commercial flights for the Applicant’s removal.
(d)On 20 April 2022, confirmation of Emirates’ agreement to provide flights with an escorted removal service for the Applicant to Pakistan was forthcoming – with a planned removal date of 25 May 2022 and accordingly:
·On 22 April 2022, a detention service provider assessment was provided by email from Serco to the Travel Unit – Vic; and
·On 29 April 2022, a health discharge summary was provided by email from International Health and Medical Services to various Departmental email addresses,
but, sometime prior to 4 May 2022, it was determined that the Applicant’s removal would not proceed on 25 May 2022.
(e)On 19 May 2022, Mr Carey formed the view that it was not reasonably practicable to remove the Applicant to Pakistan (which he later, on the second day of hearing in re-examination, clarified to mean: in the sense that a formal removal decision was not ready to be put to the delegate) because of the litigation in the present proceedings. There were subsequent discussions between Mr Carey and the relevant Removal Operations officers about:
·A new planned removal date of 27 July 2022 which would only proceed if the litigation had concluded and not resulted in orders preventing the Applicant’s removal to Pakistan; and
·Taking steps to cause the Applicant to be in a position to be removed relatively quickly following any judgment in this proceeding, such as continuing to liaise with Emirates to procure a contract for their escort services, obtaining an updated health discharge summary and fitness to travel assessment and providing an itinerary to the Pakistan High Commission to secure the Applicant’s travel document.
(f)On 23 May 2022, a removals officer again requested and on 24 May 2022 Emirates’ agreement was again forthcoming in relation to the provision of flights with an escorted removal service to Pakistan with a proposed removal date of 27 July 2022.
In cross-examination on the first day of hearing on 9 June 2022, Mr Carey was asked a question about what country information about Pakistan, specifically on the topic of generalised violence, had been considered by him or his officers. Mr Carey responded:
So the pre-removal clearance that was conducted on – sorry, on Monday, included some detail about country information. That assessment was conducted by the Department’s international obligations area.
The matter was stood down so that the PRC assessment and attachments to it could be produced. The exchange between Counsel for the Applicant and Mr Carey about those documents was then as follows:
Counsel for the Applicant: And it’s right, isn’t it, that this suite of documents - and in particular the pre-removal assessment - was the basis upon which the assessment by the removal officer was made that removal to Pakistan was reasonably practical for [the Applicant]?
Mr Carey:Yes.
After the Applicant had amended his grounds, Mr Carey gave a second affidavit which relevantly sought to explain the role of a PRC assessment in the removals process (detailed above).
In his second affidavit, Mr Carey deposed to the circumstances of the Applicant’s PRC assessment which was requested by email of a Departmental officer on 25 May 2022 without consulting the Applicant. The email request said:
Dear PRC team
Please find attached PRC request under Risk Factor 2 and 3.
It is noted that there is current ongoing litigation for [the Applicant]. Email attached.
Advice received from litigation indicates planning for an Involuntary removal can commence for end of July.
On or around 7 June 2022, Removals Operations received the PRC assessment from the IOCC. The PRC assessment outlined the documents before the assessor and the Applicant’s immigration history. The assessment included the following:
There is no evidence before me to indicate that [the Applicant] meets risk factor 1 (high risk country), risk factor 2 (cohorts with unresolved protection issues), risk factor 3 (finalised criminal charges) or risk factor 5 (specific interest in person from receiving country). As [the Applicant] was charged with criminal offences in Australia which were later dismissed, he meets risk factor 4 (unfinalised criminal charges).
In considering whether [the Applicant] will be at risk of harm in Pakistan as a consequence of his unfinalised criminal charges in Australia, I have considered available country information. A Country of Origin Information Services Section (COISS) Thematic Briefing dated 15 March 2022 (20220315114018), provides the following relevant information:
[…]
There is no evidence before me to indicate that [the Applicant] is of adverse interest to the authorities in Pakistan, or has unfinalised criminal matters in Pakistan. There is no indication that the authorities in Pakistan would seek to prosecute [the Applicant] for unfinalised criminal charges, which were dismissed in Australia.
[…]
[…]
Ultimately, I am satisfied that [the Applicant]’s involuntary removal to Pakistan does not raise concerns relating to Australia’s non-refoulement obligations. I find that [the Applicant]’s case does not warrant referral for any departmental protection assessment.
This pre-removal clearance remains valid unless there is a change in the person’s circumstances or a change in country information, or for a period of six months from the date of this document.
Also in his second affidavit, Mr Carey deposed:
The assertion of a removal decision being made on 7 June 2022
I am informed that the Applicant has asserted in this proceeding that a decision was made on 7 June 2022 (the date the Applicant’s PRC was signed off by a Director of IOCC) to remove the Applicant or that it was lawful to remove the Applicant.
That is not right. As noted in [46]-[47] of my first affidavit, a determination that it was not reasonably practicable to remove the Applicant was made around 19 May 2022. That position has remained unchanged since. The relevance of a PRC to the removal process (and the determination of the reasonable practicability of a detainee’s removal) is canvassed in [9] above.
The current situation with the Applicant’s removal
In my first affidavit (at [49]), I noted that, for the purposes of the Applicant’s removal, a flight was booked to Pakistan (via Emirates) which was due to depart on 27 July 2022.
That flight was cancelled in light of the adjournment of the hearing in this proceeding on 9 June 2022 to 15 November 2022.
Removals Operations intends to commence the process of re-booking the Applicant’s flight to Pakistan following judgment being delivered in this proceeding (assuming that the judgment has the consequence of all removal barriers ceasing).
Otherwise, and assuming that no currently unforeseen barriers to removal arise, based on my experience I expect that the Applicant should be able to be removed within 3-4 weeks of judgment being delivered.
I note that, since my first affidavit was sworn, the intention of Removal Operations not to seek to remove the Applicant to any country other than Pakistan has remained. The primary reasons for that remaining the same are as is set out in [56] of my first affidavit.
At the second day of hearing, Mr Carey was cross-examined about the PRC assessment. By way of an initial observation about Mr Carey’s evidence on this occasion, he was quick to try and explain his oral evidence on the prior occasion even before he was asked to do so. Nonetheless I assessed him as a credible witness whose evidence was somewhat complicated and confused by the use of Departmental jargon and legal terminology. His evidence about the PRC assessment was corroborated by Ms Ogden who was also a credible witness with appropriate expertise as to the issue.
Mr Carey’s evidence at the second day of hearing was that a person in the Applicant’s position is “liable to removal” once their case is referred to Removal Operations – in the Applicant’s case, that was from 6 November 2020 after his special leave application to the High Court of Australia was refused. Once liable to removal, Removal Operations starts working on the person’s removal being reasonably practicable such as booking flights, obtaining travel documents and a large range of administrative procedures and checks. The procedure is to issue the Applicant with a notice of intention to remove him once a removal date is set and the plans are formalised. He explained for the first time that the process involves a formal decision to remove a person made by the responsible delegate called a “Removable Availability Assessment”, also known as an “MCP10” which is a “mandatory control point” whereby the relevant delegate approves the removal and notes that the person is both liable to removal and that it is reasonably practicable to remove them. This Removal Availability Assessment occurs 7 days prior to the person’s removal. In this respect, Mr Carey was unwavering that no decision had yet been made to remove the Applicant from Australia and that no decision would be made until 7 days before the Applicant’s removal, if that occurs.
Mr Carey accepted in cross-examination that once a person is “on a removal pathway” certain of the referenced steps are taken with the intention they will be used. For example, flights are booked and paid for with the intention that they will be used.
As of the second day of hearing, it was understood there to be no change to the evidence in Mr Carey’s second affidavit sworn 30 August 2022 as to Removal Operations’ intentions to re-book the Applicant’s travel to Pakistan once other barriers and administrative checks were completed (including a Removal Availability Assessment which had not yet occurred) and that the reasons for this had not changed.
Also relevant is Mr Carey’s evidence in his second affidavit that Removal Operations did not consider there to be any barrier to the Applicant’s removal based on any reasonable risk of the Applicant self-harming on the removal journey having regard to the information known to it and that the Applicant had been assessed as fit to travel (with reference to the Section B- Fitness To Travel assessment at MGC-14 of Mr Carey’s first affidavit). Further, that if there were any safety concerns in connection with a detainee’s removal (in terms of self-harm), measures would be put in place to mitigate against this risk, for example additional security escorts or as a last resort physical restraint.
FIRST FORM OF RELIEF SOUGHT - CERTIORARI
The grounds for grant of a writ of certiorari were expressed as follows:
In respect of order 1, the decision to remove, or that it was lawful to remove, the applicant to Pakistan dated 7 June 2022 was unlawful and/or infected by jurisdictional error because:
a.the respondent failed to afford the applicant procedural fairness, which obligation conditions to the lawful exercise of the duty to remove under s 198 of the Act.
b. the respondent failed to consider or engage with material filed by or on behalf of the applicant in respect of whether it was reasonably practicable to remove him to Pakistan, including affidavits in sworn form.
c. the respondent took into account irrelevant considerations, namely whether Australia owed the applicant non-refoulement obligations.
d. having regard to all matters, the decision to remove the applicant to Pakistan was legally unreasonable.
Statutory framework and applicable principles
This Court’s jurisdiction to grant a writ of certiorari lies in s.476(1) of the Act which grants this Court the same original jurisdiction in relation to migration decisions as the High Court of Australia has under s.75(v) of the Constitution.
In accordance with the definition in s.5 of the Act, a “migration decision” includes a “privative clause decision” defined in s.474(2) of the Act. The decision to remove a person when the criteria in s.198 are met is a privative clause decision within the meaning of s.474(2).
A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. This Court has no jurisdiction to grant relief in respect of a privative clause decision unless jurisdictional error is identified: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at 175.
Respective submissions
The Applicant contended that this Court has jurisdiction to quash the decision to remove the Applicant to Pakistan by operation of s.476(1) of the Act: Re Refugee Tribunal: Ex parte Aala (2000) 204 CLR 82 at [14]. That is, the Respondent’s decision to remove the Applicant from Australia pursuant to s.198 is a “migration decision” as defined in the Act and the decision to remove a person when the criteria in s.198 are met is within s.474(2) because it is a decision of administrative character, required to be made under the Act: Mokhlis v Minister for Home Affairs (2020) 94 ALJR 843 at [11]-[12]. More specifically, by the further amended application, the Applicant asked the Court to find that the decision sought to be quashed was a pre-removal clearance assessment dated 7 June 2022 and supporting documentation which, it was said, contained the reasons for the removal officer having decided that removal to Pakistan was reasonably practicable. He urged the Court to reject the subsequent attempt to “paper over” Mr Carey’s sworn evidence or, in the alternative, find that Mr Carey’s further evidence could not be preferred because he was not the decision-maker and only a decision-maker can provide reasons for their decision. In summary, it was argued that the 7 June 2022 decision was infected with jurisdictional error in one or all of the 4 ways identified in the particulars to the Applicant’s grounds. Therefore, this Court has jurisdiction to order a writ in the nature of certiorari and quash the 7 June 2022 decision to remove the Applicant to Pakistan: s.476(1) of the Act.
The Respondent submitted that a decision to remove the Applicant was not made on 7 June 2022 by way of the PRC assessment and, as there was no decision, the Court should find no basis for an order in the nature of certiorari. The Respondent accepted that the PRC assessment is indicative of the Applicant’s removal officers holding a present state of mind to the effect that, if the Applicant is unsuccessful in this proceeding in relation to the injunctive relief sought, there will likely be no barriers to removal being in existence in the future and (all other things remaining equal) the Applicant will be removed to Pakistan. However the Respondent maintained that a PRC assessment is not of itself a decision to remove, the evidence does not establish that a removal decision has been made to date, and, at best, it establishes that there is potential for a future removal decision to be made.
Was a decision made on 7 June 2022?
The relief in the form of a writ of certiorari was directed at a decision alleged to have been made on 7 June 2022, by the Respondent, that it was “reasonably practicable” to remove the Applicant from Australia pursuant to s.198 of the Act. It may be accepted that a decision to remove a person detained under s.198(1) and/or s.198(6) of the Act is a “migration decision” as defined at s.5 of the Act and a “privative clause decision”, in the sense that it is a decision involving the proposed removal of the detainee: Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465 (Beyazkilinc) at [39] (Besanko J). However, in the present case, whether any such decision had yet been made was a matter of strong contest between the parties.
The Applicant faced great difficulty in pin-pointing a decision under the Act as to establish this ground. In this respect, the Applicant was critical of the manner in which the Respondent’s evidence unfolded. It is true that Mr Carey’s evidence about a PRC assessment in relation to the Applicant having been completed 2 days prior to the first day of hearing (his previous affidavit having been filed some 6 weeks earlier) emerged on the first day of hearing. However, in response, the Applicant was allowed an adjournment and to amend his case during the course of the proceedings. The Respondent was properly allowed to respond and to file further evidence.
Further, the Applicant strongly urged the Court to find that Mr Carey’s evidence was that a PRC assessment dated 7 June 2022, and the supporting documentation, contained the reasons for the removal officer deciding that removal to Pakistan was reasonably practicable and further attempts of Mr Carey to explain ought be rejected. It must be acknowledged that the evidence about this issue on the first day of hearing was brief, in that Mr Carey was asked just one critical question which was put in terms of asking the witness to agree to an assumption (extract of transcript included in summary of evidence above). Whether the witness was careless in his initial response or confused or otherwise, he was not given the opportunity to elaborate on or further explain his response on that day because the cross-examination immediately ceased (at the request of the Applicant’s Counsel). The relevant evidence about the PRC assessment was corroborated by another witness with expertise in the procedure. In the circumstances, there is no reason why the Court ought not receive Mr Carey’s second affidavit and further explanation in cross-examination on the second day of hearing as truthful, consistent with my assessment of the witness, and I find accordingly.
On the evidence that is before the Court, it was established that the Respondent’s process to effect the involuntary removal of unlawful non-citizens from Australia involves a myriad of administrative actions. Those actions are preparatory to a formal (or perhaps final) decision under s.198 that it is “reasonably practicable” to remove a detainee from Australia.
There is no question on Mr Carey’s evidence that the Applicant’s removal officers intend to remove the Applicant in the future but, as the Respondent has undertaken, will not do so pending the outcome of this litigation. However, and as the PRC assessment and supporting policy document itself confirm, the PRC assessment of 7 June 2022 was not of itself a decision that it is “reasonably practicable” to remove the Applicant. Rather, the evidence supports the finding that the PRC assessment of 7 June 2022 is just one administrative hurdle to be cleared before the formal decision is put to the delegate and notice of that decision is given to the Applicant.
As such, on the evidence before the Court, I consider that there is not yet a decision to remove the Applicant which would be a decision within the meaning of s.474(3)(g) (nor did I understand it to be contended that any other sub-paragraph of s.474(3) would be engaged or applied). By the very fact of these proceedings, there has been an effective suspension of the preparation or progress that was otherwise being made toward that decision and the current status of the decision is that it is not “reasonably practicable” to remove the Applicant from Australia.
For completeness, what might arguably be capable of being challenged is a preparatory decision or a potential future or proposed decision to remove the Applicant to Pakistan. The claim was not put in this way and despite substantial opportunity the Applicant has not sought to do so. It is not for the Court to construct the Applicant’s case.
In light of the above findings in relation to the threshold issue upon which the remainder of the first ground is contingent it is strictly unnecessary to consider the validity of the reasons for removal provided in the PRC assessment and whether such decision was made unlawfully and ought be quashed as no such decision was made. For completeness, to the extent that the Applicant’s Counsel on the second day of hearing sought to rely on the decision having been made at some unspecified earlier date, I empathise with the difficulty of his position but again consider it is not for this Court to speculate or construct the Applicant’s case.
For these reasons, the first form of relief is not able to be granted.
SECOND AND FOURTH FORMS OF RELIEF SOUGHT – MANDAMUS AND INJUNCTION
The Applicant sought a writ of mandamus issue in terms that the Respondent must perform, or cause to be performed, the duty under s.198 of the Act to as soon as reasonable practicable take the Applicant from Australia other than to Pakistan. The grounds were expressed as follows:
In respect of order 2, it was reasonably practicable to remove the applicant to a place outside Australia other than Pakistan.
The Applicant also sought an injunction in terms that the Respondent be enjoined from removing the Applicant to Pakistan. The grounds for this relief were expressed as:
In respect of order 4, it is not reasonably practicable to remove the applicant to Pakistan now or in the reasonably foreseeable future, for reasons other than Australia’s non-refoulement obligations.
Statutory framework and applicable principles
This Court’s jurisdiction to grant a Constitutional writ is outlined above at [38] to [39].
Mandamus may issue where the Executive has been dilatory in performing its duty under s.198, or has failed to take any reasonable steps to discharge the duty: AJL20 at [52].
The Court in BHL19 (No 2) at [177] explained:
Mandamus is a remedy which is specifically directed at compelling the performance of a duty imposed by the law: Plaintiff S157/2002 at [5] (Gleeson CJ). It is no doubt for that reason that the majority in AJL20 (HC) reasoned that, where the Executive is dilatory in performing the duties imposed by s 198 of the Migration Act, “the remedy of mandamus is available to compel the proper performance of those duties”: AJL20 (HC) at [52] (Kiefel CJ, Gageler, Keane and Steward JJ); see also [53] and [73]. Similarly, in WAIS, French J said (at [56]) that “[t]he remedy for a failure in the discharge of that duty [the duty in s 198] may be mandamus, possibly directed to the Minister”. And in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54; [2003] FCAFC 70, the Full Court said that “if the Minister were not fulfilling his duty under s 198(1) to remove as soon as reasonably practicable … the appropriate remedy would be an order in the nature of mandamus to compel the Minister to take the steps required for the performance of his duty”: at [134] (Black CJ, Sundberg and Weinberg JJ).
In M38/2002, the Full Court indicated (at [68]) that whether, in a particular case, removal is reasonably practicable may depend on whether there is another country that will admit the unlawful non-citizen. After referring to the earlier cited passage from the judgment of French J in WAIS, the Full Court said (at [69]):
Doubtless, there will be other factors that, from time to time, will lead an officer to conclude that, at the time removal is contemplated, removal would not be reasonably practicable in the circumstances of the case. If, for example, the only country willing to receive an unlawful non-citizen were suffering from some severe natural disaster or were in a state of utter civil anarchy, the officer may well be entitled to conclude that his or her removal would not be reasonably practicable until the effects of the disaster had dissipated or some degree of order had been restored. (We interpolate here that this was not the situation under consideration in SE: see SE at 126-127) The physical condition of a person facing removal may also lead an officer to conclude that his or her removal in that condition would not make the removal reasonably practicable: cf Li at [7] per Merkel J (with whom Heerey and Conti JJ agreed).
The onus of proving that the duty under s.198 has not been properly discharged lies with the Applicant, although this does not necessarily require an applicant to prove that there was a third country in which they have a right of residence or to prove that the purpose of removal had been abandoned: BHL19 (No 2) at [163] and [193].
The reasons in BHL19 (No 2) also provide guidance on the utility of mandamus as a form of relief rather than that of mandatory injunction: at [180]. There, the Full Court considered these to be alternative remedies and concluded that mandamus is more compelling in circumstances of an established failure on the part of the Minister to perform the s.198 duty including because a mandatory injunction may be difficult to enforce whereas mandamus is more flexible and likely to have some utility in enforcement of the duty in question:
…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.
Respective submissions
In his submissions, the Applicant explained that the relief sought in the form of mandamus and an injunction are not alternative forms of relief but rather intended to work together, requiring the removal of the Applicant to a country other than Pakistan. In the Applicant’s submissions, the matters were addressed together and focussed on relief in the form of mandamus.
The Applicant contended that the s.198 duty which requires removal “as soon as reasonably practicable” should be interpreted as arising at a singular and fixed point in time, after which time the duty is breached if not performed: citing BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 43 at [79]; Horne v Retirement Guide Management Pty Ltd (2017) 54 VR 325 at [108]; Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 at [33]. It must be performed promptly and without delay despite what might be practically inconvenient to the Government or officials: citing Plaintiff M61 v Commonwealth (2010) 243 CLR 319 at [35]; Al-Kateb at [33]; New South Wales v Robinson (2019) 266 CLR 619 at [35]; Royal Society for the Prevention of Cruelty to Animals (Victoria) Inc v Marson Constructions Pty Ltd [2000] VSCA 38 at [5]. In respect of the onus, the Applicant contended that the person seeking the performance of the public duty must prove delay but it then falls on the public authority to adequately explain the delay: citing MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [109] (Gordon and Steward JJ) and [118] (Edelman J).
He urged the Court to find that the Respondent must take steps to find a country other than Pakistan to which to remove the Applicant: citing BHL19 (No 2) as an analogous case. The Applicant contended that Pakistan is unavailable as a lawful destination for removal and the Respondent’s singular focus on Pakistan and failure to pursue removal to a third country, in the extraordinarily lengthy period since his judicial review proceedings had concluded and despite his request to consider other countries made in June 2022, constituted a failure to act reasonably and is inconsistent with the Act. He also said the evidence of costs and resources supported a conclusion that the cost of removal to one of the Applicant’s desired locations is lower than the cost of his continued detention (at least, whilst so long as he remained in immigration detention).
Further, the Applicant contended that it is not a pre-condition to the exercise of the power under s.198 that the Applicant nominate a destination country for his removal and it is not within the knowledge of the Applicant as to how the Respondent will lawfully exercise its power of selection to find a place willing to receive him. In this respect, he said it would be an unreasonable onus placed on an unknowing party to guess which of the “193 options” is the most reasonably practicable one, that the selecting authority will choose when it decides (or is enforced by Court order) to act: citing Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198 at [125]. To do so would apply the Blatch v Archer maxim that “evidence is to be weighed according to the proof which it was in the power of the one side to produce and the other to contradict”: Blatch v Archer (1774) 1 Cowp 63 at 65 (Lord Mansfield).
In any event, in demonstration of the utility of mandamus the Applicant submitted that there are places that may objectively be willing to receive the Applicant (either of two countries where he has family being Germany or Italy; any of Canada, the USA or New Zealand being countries to which Australia has removed non-citizens before; or Antigua or Barbuda where his long term residence can be achieved upon payment of a fee).
For its part, the Respondent opposed the suggestion that the onus of establishing mandamus rests with it: in reliance on AOU21 at [195]; and BHL19 (No 2) at [193]. It accepted that there may be some contexts where a delay in performance of a particular duty has effectively meant that the onus lay with the respondent because, once a reasonable time has passed and no decision made, the decisional delay in itself provides an inference to be drawn that the relevant duty has not been complied with: citing, for example, BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 (Bromberg J) and AFX17 v Minister for Home Affairs [2020] FCA 807 (Flick J).
However the Respondent opposed the suggestion that the onus in the present case rested with them. The s.198 duty only arises as soon as (that is, only once) removal is “reasonably practicable”. Therefore, absent the removal being established as reasonably practicable, delay of itself cannot invite an inference of an actual or constructive failure to perform the relevant duty.
The Respondent also contended that the “Blatch v Archer principle” was of little relevance to the present case and of no meaningful application because:
(a)First, the Applicant’s case is that it is unreasonable for the removal officers to not presently undertake further inquiries into the option of third country removal having regard to their state of knowledge and the relevant officers have identified their states of knowledge and the reasons for their removal focus being Pakistan. In this way, the question for the Court is whether the approach of the Respondent’s removal officers is unreasonable.
(b)Second, the Applicant had not deposed to not having knowledge of the relevant matters or deposed to matters establishing that such knowledge cannot be acquired via other means such as freedom of information requests, discovery etc.
The Respondent asked the Court to find that its removal officers are performing the s.198 duty at the time of the judgment and therefore historical non-compliances are irrelevant excepting only to the extent that they are relied upon to establish, by inference, a current failure to perform a duty: M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, 2022) at [16.40]. Appreciating that the question of the steps to take or not take in respect of removal under s.198 are a matter for the removal officers and not the Court, the Respondent invited the Court to only conclude that the s.198 duty has not been performed if the course of action taken or not taken was unreasonable, in an objective sense, in all the circumstances as they appeared at the time: Tran v Commonwealth of Australia [2021] FCA 580 at [23]-[24], [36]-[37], [41]-[43], [49], [50]-[51], [58], [59], [62], [66], and [68]-[70]. In this respect, the Respondent referred to the authorities as to legal unreasonableness and the “demanding standard” required to so establish: DUZ17 v Minister for Home Affairs [2019] FCA 1593 at [39] (Beach J); Minister for Immigration and Border Protection vSZVFW [2018] HCA 30; Minister for Immigration and Citizenship v Li [2013] HCA 18. The Respondent asserted there is no basis to find that the officers responsible for the Applicant’s removal have acted unreasonably by not taking steps to remove the Applicant to a third country.
The Applicant also seeks an injunction against his removal to Pakistan because it is not reasonably practicable to remove him there because it would cause the Applicant to be a danger to himself. As removal is only reasonably practicable if “the person can undertake the journey in a practical sense without danger to himself” the injunction should issue: WAJZv Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 84 ALD 655 at [78]. Secondly, it is not reasonably practicable to remove a person to a state of civil anarchy or internal turmoil and harm caused by generalised violence and internal turmoil is not covered by Australia’s non-refoulement obligations: M38/2002 at [69]; Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [141].
The Respondent argued that the injunctive relief sought could not be granted because the question of whether removal is reasonably practicable is a question for the removal officers and not an objective jurisdictional fact: citing Beyazkilinc at [41]-[47]; M38/2002 [65-[67]. Even if it were a question for the Court’s consideration, the Court could not be satisfied that removal is not reasonably practicable due to the Applicant’s concerns associated with self-harm and that Pakistan is in a state of civil anarchy or internal turmoil.
Further, that it is not appropriate to order the proposed injunctive relief on an ongoing basis (having regard to the alleged risk of self-harm) and to determine that it would not be reasonably practicable to remove the Applicant in the future would involve a determination of a hypothetical issue based on hypothetical facts. In any event, the evidence does not support a finding that the Applicant is at risk of self-harm and there is evidence that an escorted removal would mitigate any such risk. The evidence also does not establish that the Applicant would be prevented from being successfully removed to Pakistan because of the security situation and the Court should not accept that a general security situation in Pakistan would render removal of the Applicant not being reasonably practicable.
Whether there has been a failure to perform the s.198 duty warranting mandamus
At the heart of the further amended application in this matter is the contention that the Applicant is owed a duty to be removed from Australia to a country other than Pakistan as soon as reasonably practicable pursuant to s.198 of the Act.
The Applicant has not particularly identified whether the duty that he sought the Respondent be compelled to exercise (by mandamus), or effectively prevented from exercising in a particular way (by injunction), is that under s.198(1) or s.198(6). There is no doubt that the Applicant in the present case meets the definition of unlawful non-citizen. Further, the grant of his protection visa was refused, the application was pursued to finality and the Applicant has not made another valid application for a substantive visa that can be granted in Australia. It may be accepted that, on 5 or 6 November 2020, the duty of involuntary removal was first engaged. After the application commencing this proceeding was made, the duty of voluntary removal was engaged on 21 June 2022. Since the voluntary removal request, the further amended application was made.
The Applicant sought to position the second and fourth forms of relief sought by reference to the Respondent’s inaction to consider a country other than Pakistan for his removal. On the evidence before the Court, it is not contentious that the Respondent’s removal officers have at all relevant times since 6 November 2020 been focussed on removal of the Applicant from Australia to his country of origin, Pakistan. The Respondent has taken steps to remove the Applicant to Pakistan and he would have been removed there on 25 May 2022 or on 27 July 2022 had this proceeding not been on foot. On the evidence as it was at the conclusion of the second day of hearing, the Respondent still intended to commence the process of re-booking the Applicant’s removal to Pakistan within 3 to 4 weeks.
There is no dispute that the Respondent’s intended removal of the Applicant to Pakistan constitutes a proposed decision of administrative character (doing or refusing to do any other act or thing) that is proposed to be made or required to be made in the exercise of a statutory function conferred by the Act. Accordingly, in respect of the second and fourth forms of relief sought, the application relates to a privative clause decision which is a migration decision and the jurisdiction to determine the further amended application in these respects is enlivened.
As earlier referenced, for a writ of mandamus to issue, the Applicant bears the onus to prove that the relevant officers failed to discharge (or were dilatory in the discharge of) the duty at s.198 of the Act by failing to take any steps, or any meaningful or reasonable steps, to remove them.
The Applicant does not have a lawful right to remain in Australia and, whether by s.198(1) or (6) of the Act, he must be removed from Australia as soon as reasonably practicable. There is no question that the duty was engaged following the High Court of Australia decision on 5 November 2020 – but it falls to determine whether the occasion for performance of the duty has yet arisen in the sense that removal of the Applicant has become reasonably practicable.
As will be apparent from the evidence before the Court, initial progress was unacceptably slow but this is not a case of complete inaction or abject delay on the part of the responsible officer(s) who bear the duty under s.198. Some preparatory steps were taken in 2021 as part of the Department’s involuntary removal planning procedure and remain necessary to facilitate the Applicant’s removal from Australia. Then, since the Pakistan High Commission removed the barrier to obtaining a travel document for the Applicant, there is evidence before the Court to establish reasonably regular activity of certain of the Respondent’s removal officers. Some of those steps are detailed above. Steps taken since July 2021 include the following directed at advancing the Applicant’s removal from Australia to Pakistan: internal consideration of a charter flight to Pakistan in July 2021; an application for travel documentation made on 13 August 2021 to the Pakistan High Commission; internal request made on 15 December 2021 to identify potential commercial flights for removal; secured an agreement with Emirates to provide an escorted removal flight for removal on 25 May 2022; selected a new planned removal date of 27 July 2022; an updated health discharge summary obtained on 29 April 2022; a fitness to travel assessment obtained on 29 April 2022; continued liaison with Emirates from 23 May 2022 to procure a contract for their escort services; booked a removal flight on 24 May 2022 with Emirates; provided an updated itinerary to the Pakistan High Commission to secure the Applicant’s travel document; and, internal PRC assessment on 7 June 2022.
The Applicant contended that the inaction or delay was and is occasioned by the officer(s’) refusal to take steps to remove the Applicant from Australia to any country other than Pakistan.
On the evidence before the Court, it was not until 21 June 2022 that the responsible officers of the Respondent were notified in writing of the Applicant’s desire to be removed from Australia to any other country (per that request, to Germany, Hungary, Italy, New Zealand, the United States, Canada, or Antigua and Barbuda).
There is no question in this case that the Respondent’s removal officers have not explored removal to other countries. On the evidence of the Respondent’s removal officers their rationale for this approach is primarily because removal to a detainee’s country of origin is generally the most efficient and effective means. There may be a legitimate exception where a detainee can clearly demonstrate a right of entry and residency to a third country. However, in the Applicant’s case he has not done so and the Respondent’s primary reasons for its continued focus on his removal to Pakistan were arguably justified in that: attempts to so remove him have not been exhausted; the Pakistan High Commission has indicated that it will issue a travel document (ultimately, but has not yet done so); a commercial airline has indicated their willingness to assist with an escorted flight; and pursuant to the outcome of the PRC assessment, at the time that it was undertaken, the information known to removal officers does not suggest that there is an available third country pathway to removal that would be more efficient or effective than the Applicant’s country of origin. I do not conclude there is anything unreasonable about the approach taken in this respect.
This is also not a case where the only way the Applicant could be removed from Australia is removal to a third country – which plainly distinguishes the circumstances from that of BHL19 (No 2) (on which the Applicant here placed much reliance) and other cases involving third country removals. The Applicant is a citizen and resident of Pakistan and will be issued with a valid travel document (passport) to enter Pakistan. On the evidence as before this Court in the present context, the Applicant exercised all options but did not secure a finding of protection within the meaning of s.197C(4)-(7) which could tell against removal to Pakistan.
In this case the Applicant, who does not necessarily bear the burden of establishing the third country to which he can be removed, raised 8 possible country options about which his representative had made very preliminary inquiries but did not seek to persuade the Court of the reasonable practicability of his removal to any country in particular. I do not accept that the burden in that respect rests with the Respondent and find on the limited evidence before this Court that the Applicant has not discharged it.
An obvious but important barrier to the Applicant’s removal from Australia was the existence of this litigation. On the Respondent’s evidence, subject to any other intervening developments, once this litigation is resolved the Applicant could be removed to Pakistan within a relatively short period of 3 to 4 weeks. On the materials before the Court, the Respondent’s removal officers are conscious that at least some of the myriad of administrative activities, including checks and arrangements, performed prior to an unlawful non-citizen’s removal would need to be refreshed or undertaken again upon conclusion of this litigation before it would be “reasonably practicable” to remove the Applicant from Australia. As will be apparent, a PRC assessment (the previous PRC assessment being no longer valid) will consider risk factors albeit that non-refoulement is not strictly relevant for statutory purposes.
In my opinion and in all the circumstances of this case, the Applicant has not established that the Respondent is not taking and has not taken all reasonable steps to secure his removal from Australia as soon as reasonably practicable.
The responsible officers of the Respondent have not recently been dilatory in their duty and have been making or endeavouring to make arrangements for the Applicant’s removal to his country of citizenship, Pakistan, with reasonable expedition since March 2021. There has been historical delay on account of the initial embargo by the Pakistan High Commission in issuance of a travel document for the Applicant which was not in the Department’s possession, beyond the control of the Minister and their officers and is not taken into account in determining what period for removal falls outside the scope of the terms “as soon as reasonably practicable” in s.198 - especially given, at that time, there was no request to be removed to any other country.
There are legitimate limitations on what can be considered in a “reasonably practicable” assessment, including considerations pertaining to what will happen to a person after they are removed. As the Court explained in NATB, the reference to “reasonably practicable” does not require an officer to take into account what is likely or even virtually certain to befall the unlawful non-citizen after removal is complete as this is not a practical consideration going to the ability to remove from Australia. Rather, it was there held to be a consideration about a likely course of events following removal from Australia. I consider the evidence of the Applicant’s unfortunate mental health and psychological condition (as it was at the time of the clinical psychologist’s report in March 2022) which, for completeness, was met with evidence of appropriate mitigations on the part of the Respondent, to fall within such limitations as considered in NATB.
In my view, the absence of any protection finding (whilst not of itself conclusive) is important context to the proper assessment of what “as soon as reasonably practicable” entails in these particular circumstances and tends to indicate there is nothing necessarily or inherently unreasonable about Australia first looking to Pakistan as the non-citizen’s country of origin or nationality as a receiving country upon removal.
Whether Pakistan is unavailable as a country destination of removal warranting injunctive relief
Section 198 may require removal to third country in certain circumstances.
To date the Respondent has only considered Pakistan.
The injunctive relief sought in this Court is crafted as to be directed only at the Applicant’s removal to a third but unspecified country. As the cases make clear and the Respondent in the present case accepts, there is no prohibition on removal to a third country and again depending on the circumstances, the officer’s duty may so extend to exploring or investigating third countries for the non-citizen’s removal. In my view it is at least reasonable that the responsible officer(s) explore other third countries proposed by the Applicant, especially where he has family residing or provided strong justification for such consideration. However this case is different to that where the non-citizen is stateless or owed protection and has no country of origin to which to be returned. In these circumstances, and especially where the Applicant has not established any particular country that may consider his entry, it is not reasonable to expect the officers of the Respondent to expend their efforts searching (in vain) for third countries.
The duty of removal is to be considered in its proper context, which is the loss of liberty of the non-citizen who remains in (now, residential) detention pending its discharge. In these particular circumstances this draws into focus the importance of cooperation of the non-citizen, who appears to have placed his efforts to date on litigation to stay in Australia rather than demonstration of a third country that will accept his entry.
As earlier referenced, the absence of a protection finding is a relevant contextual factor. The Applicant’s situation is truly a tragic matter. However on the established authorities and in all of the circumstances of this case, the evidence of the Applicant’s mental health and psychiatric condition and of the security situation in Pakistan are matters for the Minister or their officer(s) to properly explore as part of the many administrative checks that are to be performed before the obligation at s.198(6) arises. On the materials before this Court, the Respondent has to date explored mitigations as information about the risks to the Applicant has been presented to it. There is nothing to suggest that those appropriate considerations would not continue in accordance with the Department’s removals operations process as described in the evidence before this Court.
Whether the Respondent could and should have done more, or there are other options open to be investigated, it is not for this Court to dictate the choice to be made in granting relief.
Resolution of second and fourth forms of relief sought
In conclusion, the Act does not require removal from Australia to a particular destination or place and I am not satisfied that it would be appropriate nor within power to grant mandamus or an injunction to prevent removal of the Applicant to Pakistan. For the above reasons I have not found that the Commonwealth or its officers have been dilatory in the discharge of or failed to discharge or abandoned the statutory duty at s.198 such that the obligation to remove at either of ss.198(1) or (6) has yet arisen.
THIRD FORM OF RELIEF SOUGHT - RESIDENTIAL DETENTION ORDER
The third form of relief sought was expressed in the further amended application as an order that the Respondent is to cause any detention of the Applicant in immigration detention pending performance of the duty under s.198 to occur at the residential address of the Applicant’s nominated friend.
As the Applicant conceded, on the state of the law in AZC20 at the time of judgment, there is no basis to grant the relief sought. In any event, the Applicant’s circumstances have changed since judgment in the substantive matter was reserved as the Applicant is detained at a residential address.
Accordingly, this ground must be dismissed and the third form of relief will not be granted.
CONCLUSION
For the above reasons, the application for review is dismissed with costs.
I certify that the preceding one hundred and sixty-eight (168) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 16 June 2023
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