Federal Court of Australia

DMH20 v Minister for Home Affairs [2023] FCAFC 31

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    Ahmed Ali Al-Kateb was a stateless Palestinian born in Kuwait, who arrived in Australia without a passport or visa in December 2000 and was taken into immigration detention. His application for a protection visa was refused and that refusal was upheld by the Refugee Review Tribunal. His application for judicial review of the Tribunal’s decision was also unsuccessful. In June 2002 he told the (then) Department of Immigration and Multicultural and Indigenous Affairs that he wished to be removed from Australia to either Kuwait or Gaza.

2    Mr Al-Kateb was not removed, because Australian officials were unable to obtain the necessary international co-operation, and remained in detention. On 3 April 2003, this Court dismissed an application for a declaration that he was unlawfully detained. The primary judge (von Doussa J) found that all reasonable efforts had been made to remove Mr Al-Kateb but that his “removal from Australia is not reasonably practicable at the present time as there is no real likelihood or prospect of removal in the reasonably foreseeable future”: SHDB v Goodwin [2003] FCA 300 at [9]. The expression “reasonably practicable” reflected the language of s 198 of the Migration Act 1958 (Cth), which requires an “officer” to remove a non-citizen in detention from Australia in certain defined circumstances, including when a request for removal is made by the non-citizen: s 198(1).

3    Mr Al-Kateb’s appeal from that judgment was removed into the High Court, where a majority held that his continued detention was authorised by ss 189 and 196 of the Migration Act and that these provisions were valid: Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 (McHugh, Hayne, Callinan and Heydon JJ; Gleeson CJ, Gummow and Kirby JJ dissenting).

4    At the level of statutory construction, the reasoning of the majority depended principally on the language of s 196(1), which provided that a non-citizen who had been detained under s 189 was required to be detained “until he or she is” either removed from Australia under ss 198 or 199, deported under s 200, or granted a visa. That language was seen as leaving no room for release from detention in other circumstances, in particular where removal was not, and not likely to become, “reasonably practicable” in the foreseeable future.

5    At the level of constitutional validity, the majority held that detention of a non-citizen for the purpose of removing him or her from Australia did not infringe the principles laid down in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1 even if that purpose was not able to be carried into effect or likely to become so in the reasonably foreseeable future.

6    The minority held, in short, that the command in s 196 was to be read as subject to an exception where s 198 was unable to be carried out such that, in those circumstances, the Migration Act provided no authority for continued detention.

7    The provisions that were considered in Al-Kateb have since been amended, but not in a way that affects the reasoning.

8    The decision of the High Court in Al-Kateb has been the subject of commentary, much of it adverse. It is sometimes suggested that the High Court might come to a different decision if the issue were to be considered again. However, an appropriate vehicle for reconsideration of Al-Kateb has yet to come before the High Court.

9    Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA17; 265 CLR 285 came before the High Court by way of a special case setting out agreed facts and questions of law. The plaintiff invited the Court to infer from the agreed facts that there was no real prospect or likelihood that he would be able to be removed from Australia in the reasonably foreseeable future and to hold that his detention was therefore unlawful. The Court declined to draw the inference. The plaintiff had deliberately failed to assist the officers of the Department in their attempts to establish his true identity and nationality. The Court held that there was no basis to assume that it was beyond the plaintiff’s power to provide further information on these issues, and there was thus no way of knowing whether his identity could be established and his removal from Australia achieved. Accordingly, no factual basis was established for the application of the view of the minority in Al-Kateb: Plaintiff M47 at [42] (Kiefel CJ, Keane, Nettle and Edelman JJ).

10    Analysis of the reasoning in Al-Kateb featured in both the submissions and the reasons for decision in Commonwealth v AJL20 [2021] HCA 21; 273 CLR 43; however, it considered a different aspect of the relationship between ss 196 and 198 and no challenge to the correctness of Al-Kateb was made.

11    The issue in AJL20 was whether s 196 continued to provide authority for detention in a case where relevant officers were not making reasonable attempts to remove the detainee from Australia as required by s 198. A majority held that detention was authorised in those circumstances. The proper remedy for failure to perform the duty in s 198 was an order compelling performance of that duty.

12    The appellant in the present case has been in immigration detention since 16 February 2012, shortly after the visa that he previously held was cancelled. That cancellation was the consequence of him having been convicted, some years earlier, of serious sexual offences. He is a national of the Republic of Malta, who first arrived in Australia in 1981 aged four and has lived in this country for the majority of his life. Although he has been pursuing visa applications, merits review and judicial review proceedings for much of the time he has been detained, the last such proceeding came to an end in October 2018. Since then, there is no doubt that s 198 of the Migration Act has required him to be removed from Australia as soon as reasonably practicable. He has not been removed. He commenced proceedings by the filing of an originating application in this Court on 31 January 2019.

13    By his amended originating application filed on 17 August 2020 the appellant sought mandamus, an injunction or a writ of habeas corpus requiring the respondent Minister to release him from immigration detention. His case was that his removal from Australia was not reasonably practicable and there was no real likelihood or prospect of his removal in the reasonably foreseeable future (“the first step”); and that, for that reason, his detention was no longer authorised by the Act (“the second step”). He accepted that the second step in this argument could not succeed in this Court in the face of Al-Kateb. He wished to bring the matter before the High Court so that he could challenge the correctness of that decision.

14    The question whether Al-Kateb is correct arises for decision only if the first step is made out. If there is some realistic prospect of his removal becoming practicable in the reasonably foreseeable future, his detention is lawful even if the efforts to bring about removal are inadequate. This follows from the majority reasoning in AJL20.

15    Perhaps for this reason, the appellant filed a further amended originating application on 22 June 2022, which added to the relief sought a declaration that “it will not become reasonably practicable to remove the applicant, and there is no real likelihood or prospect of removal of the applicant, from Australia in the reasonably foreseeable future”.

16    This additional prayer for final relief was apparently intended to require a decision to be made on the first step of the appellant’s argument and prevent the application being dismissed on the basis that success was precluded by Al-Kateb. The appellant’s approach has been to establish the first step in this Court and then seek to have the proceeding removed into the High Court, where the second step could be pursued. Argument before the primary judge was therefore limited to whether the declaration should be made. The respondent did not object to this procedure at least until it was raised by the Full Court on this appeal.

17    The primary judge refused the declaratory relief on the basis of the factual conclusions reached by her Honour: DMH20 v Minister for Home Affairs [2022] FCA 1054 (hereafter, “J”). Her Honour would have refused declaratory relief in any event because the declaration lacked important context: at J[110]. The exercise of discretion to refuse declaratory relief was not challenged by any ground of appeal and was not shown to be erroneous. For the reasons set out next, declaratory relief would have been refused on appeal irrespective of whether any error had been shown in the factual findings made by the primary judge. There being no other basis for allowing the appeal, the result is that the appeal must be dismissed.

18    Notwithstanding these conclusions, the grounds of appeal are addressed later in these reasons after summarising the reasoning of the primary judge.

DECLARATORY RELIEF

19    Section 21 of the Federal Court of Australia Act 1976 (Cth) provides:

21      Declarations of right

(1)      The Court may, in civil proceedings in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.

(2)      A suit is not open to objection on the ground that a declaratory order only is sought.

20    As noted earlier, the appellant sought a declaration of fact. While the declaration is a flexible remedy, its usual purpose is the resolution of controversies concerning legal rights. The word “right” in this context “is wide and loose” and “includes what might more precisely be described as privileges, powers and immunities”: Sankey v Whitlam [1978] HCA 43; 142 CLR 1 at 23 (Gibbs ACJ). At least ordinarily, a declaration should not be granted where it will produce no foreseeable consequence for the parties: Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564, 581-582 (Mason CJ, Dawson, Toohey and Gaudron JJ).

21    Ordinarily, declarations are made of the right involved, not as to the various matters of primary fact which led to the right being established. In Nicholls v Michael Wilson & Partners Ltd [2010] NSWCA 222; 243 FLR 177 at [135] Young JA (with whom Basten JA relevantly agreed at [111]) gave as an example:

[A] declaration is made that a contract has been terminated or rescinded, not that the defendant has done or not done various acts which amount to a repudiation which the other party has accepted; see eg Lohar Corporation Pty Ltd v Dibu Pty Ltd (1976) 1 BPR 9177 at 9179.

22    Declarations recording intermediate conclusions are sometimes made where they perform the function of defining and publicising conduct that contravenes the law, or to express the court’s disapproval of such conduct – see, for example: Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; 216 CLR 53, [95] (Gummow, Hayne and Heydon JJ); Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations [1993] FCA 105; 41 FCR 89 at 100 (Sheppard J). In those cases, the intermediate conclusions are material in the sense that they lead to the imposition of penalties or other mandatory orders and involve some element of legal characterisation of conduct.

23    The declaration proposed in the present case was a bare assertion of fact, divorced from its context and unconnected with any conclusion as to the legal rights of the parties. On the present state of the law, the practicability of removing the appellant makes no difference to the lawfulness of his detention. Even if the proposed declaration is regarded as ancillary to the other relief sought, its utility and appropriateness as a form of final relief are debatable. It would, in effect, simply record a factual finding of the Court that (depending on further argument) might or might not form part of the basis for other orders.

24    It is true that the appellant needs a finding of the kind reflected in the proposed declaration in order to enliven the question as to the correctness of Al-Kateb. However, there are other, more orthodox procedures by which that could have been pursued. There was capacity under r 30.01 of the Federal Court Rules 2011 (Cth) for the question whether there was a prospect of removing the appellant to be heard separately from any other questions. An appeal lies from the determination of such a question: Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90.

25    By way of interlocutory application filed on 29 September 2021, the appellant sought orders pursuant to r 30.01 before the primary judge, that certain questions be heard separately from the other issues in the proceeding. The primary judge declined to make an order under r 30.01, but the application which had been made was not one for determination of a confined separate question. The questions proposed were unlikely candidates for which the separate question procedure is appropriate. The proposed questions were:

(a)    whether, on the proper construction of ss 189, 196 and 198 of the Migration Act 1958 (Cth) (the Act) as applied to the applicant, ss 189 and 196 of the Act authorise the applicant's detention only for the purpose of the removal of the applicant from Australia pursuant to s 198(6) of the Act;

(b)    whether, on the proper construction of ss 189, 196 and 198 of the Act as applied to the applicant, ss 189 and 196 of the Act authorise the applicant's detention only for so long as that purpose remains reasonably practicable to achieve, or remains a reasonably practicable possibility;

(c)    whether the applicant's continued detention is authorised by ss 189 and 196 of the Act;

(d)    whether, to the extent that ss 189 and 196 of the Act authorise the applicant's continued detention, ss 189 and 196 of the Act are beyond the legislative power of the Commonwealth as they apply to the applicant;

(e)    whether the continued detention of the applicant is unlawful; and

(f)    whether the applicant is entitled to relief requiring his release from immigration detention.

26    If the separate question procedure was not invoked, and an applicant proceeded on the basis that the Court was bound to dismiss the application on the basis of Al-Kateb, the Court could simply record factual findings and then dismiss the application, as occurred recently in Sami v Minister for Home Affairs [2022] FCA 1513. The correctness of such findings could then be debated on appeal, albeit the appeal would necessarily be dismissed. Alternatively, proceedings could be commenced in the original jurisdiction of the High Court and, if necessary, factual issues remitted to this Court.

27    As mentioned, the primary judge stated at J[110] that she would not have been persuaded to make a declaration in the terms sought even if she had accepted the appellant’s characterisation of the factual position, because “to do so would assert a fact devoid of its factual context”. This is an important point. The import of any factual conclusion along the lines sought by the appellant would, in any debate concerning the re-opening of Al-Kateb, be likely to depend to some degree on the underlying facts. A declaration would not stand alone, but would only have utility when read with the factual findings underlying it. As noted earlier, her Honour’s discretion to refuse declaratory relief for this reason was not challenged by any ground of appeal or shown to be attended by error.

28    Declaratory relief should be refused on this basis. The appeal in so far as it attacks the primary judge’s refusal to grant declaratory relief should be dismissed for these reasons.

29    The appellant also sought on appeal an order remitting the matter to a single judge for further proceedings on the balance of the relief sought in the further amended originating application. After publishing her reasons and receiving proposed short minutes of order from the parties, the primary judge made orders dismissing the entire proceeding. Therefore, no claim for relief remains on foot in the Court’s original jurisdiction. The orders dismissing the claims for habeas corpus, an injunction or mandamus were correct on the authority of Al-Kateb, regardless of whether the proposed declaration was made. It follows that the remaining aspects of the appeal must also be dismissed.

30    As mentioned, although we have concluded that the appeal must be dismissed for reasons unrelated to the factual merits of the case sought to be advanced, we consider it appropriate to express our conclusions as to the merits of that case and to address the grounds of appeal briefly.

THE JUDGMENT UNDER APPEAL

31    The appellant argued that there was no realistic prospect of his removal from Australia becoming practicable because his country of nationality – Malta – would not issue him a travel document that would allow him to enter. It was common ground that there was no possibility of his removal to another country. The argument was put on two bases: first, that Malta would not accept his return at all; and secondly, that Malta would not accept his return if he did not voluntarily consent to that return.

First basis: Malta would not accept the appellant

32    As to the first basis, the primary judge summarised the relevant evidence at J[27]–[58] and [64]. There was documentary evidence before her Honour of Malta’s High Commissioner to Australia in 2012 and 2013 (Mr Tabone) expressing a significant degree of unwillingness to see the appellant return to his country. Malta’s Foreign Minister, who was also Deputy Prime Minister, was also referred to as having queried whether it “made sense” to return the appellant. These reservations appear to have been a response to the crimes that the appellant had committed. Mr Tabone finished his term on 30 June 2013.

33    In early 2014 the new Maltese High Commissioner expressed the view that Australia should “look after” people in the appellant’s position and sought a meeting with the Minister. However, in mid-2014 there was an “in principle” agreement to accept removal of the appellant and two other detainees to Malta.

34    There were further communications in 2014 in which the High Commissioner agreed to consider taking steps to allow the appellant’s return, but he needed to confer with authorities in Malta. Maltese officials seemed to understand that the appellant wished to return at that stage.

35    In July 2015, the High Commission reported that it had received advice from Malta to issue a travel document to the appellant. However, by that time, the appellant had applied for a protection visa and his removal was no longer being pursued.

36    Between November 2014 and October 2018 the appellant was pursuing either his protection visa application or related legal proceedings, and officers were therefore not seeking to remove him. There was documentary evidence of communications with Malta during that period, relating to another detainee, in which Malta’s position was that it would only grant a travel document if the detainee consented to and “willingly” signed the application for the document.

37    After 2018, when the appellant again became the subject of discussions between Australian and Maltese officials, the barrier was Malta’s insistence on consent by the person to be removed. There was no suggestion that the appellant’s character or conduct was a reason why his return to Malta would not be accepted.

38    The primary judge considered that “the inference to be drawn from the evidence in the documentation is, at its highest, that Malta is reluctant to accept the applicant, not that it will not”: at [60]. Her Honour was not persuaded of the proposition that Malta was not willing to accept return of the appellant irrespective of his attitude to removal: at [62]. Her Honour considered that this conclusion was supported by oral evidence to the effect that there was another detainee, about whom Malta had expressed the same concerns, who had been successfully removed once he agreed to go to Malta: at [64].

Second basis: Malta would not accept involuntary return

39    There was no dispute that, since 2013, Malta had consistently refused to issue a travel document to any of its nationals who were “involuntary to removal”: at J[69]. For the purpose of determining whether there was a reasonable prospect of the appellant’s removal to Malta becoming practicable, two issues therefore arose: whether there was “no real prospect of Malta altering its position in the reasonably foreseeable future”; and “whether there is no real prospect of the applicant altering his position and becoming voluntary”: at J[70].

40    The primary judge does not appear to have reached a firm conclusion on the first of these issues. Her Honour noted evidence that other countries have changed their minds on the acceptance of involuntary removals and that Malta’s position was inconsistent with the Convention on International Civil Aviation, opened for signature 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947) (Chicago Convention) to which it is a signatory, and accepted that there was no “obvious futility” in periodic approaches being made to Malta; however, she also accepted that there was no evidence to suggest a likely change in Malta’s position: at J[71]. In her Honour’s view, Malta’s position was not determinative because of the position the appellant himself was taking.

41    Her Honour dealt at J[72]–[86] with arguments concerning the relevance of various cases concerning non-cooperation by a person liable to removal. At J[84], her Honour recorded the important (and obviously correct) conclusion that, if the appellant’s cooperation were forthcoming, it could not be said that his removal to Malta could not be achieved.

42    Relevantly to the second question, the appellant’s evidence was that he was unwilling to return to Malta, would not sign any application for a travel document, and this would not change. He gave reasons for taking this position. In summary, those reasons included his family connections in Melbourne (where he has lived since childhood) and fear of what might happen to him in Malta. He submitted that his position was unlikely to change and “entirely reasonable in the circumstances”. As to the latter of these points, the primary judge observed at J[91] that it was not for the Court to decide the reasonableness or otherwise of his desire to stay in Australia. As to the former it was noted that, while the appellant’s evidence was unchallenged, it could go no higher than evidence of his current state of mind: at J[93]. The prospect that he might change his mind in future needed to be considered objectively, on the evidence as a whole.

43    The Minister submitted that the appellant’s position arose in the context of the various applications he had made seeking to secure a right to stay in Australia, and was in effect another such application. If his current proceedings failed, he would face the prospect of indefinite immigration detention. In those circumstances (the submission went), it could not be concluded that he would never change his mind. It was also noted that the evidence showed the appellant having in the past contemplated circumstances in which he might return to Malta voluntarily.

(a)    In 2012, he completed a form requesting voluntary removal, but said in discussions with officers that he would go to Malta only if his wife (who was then pregnant) and his step-son were on the flight with him.

(b)    In a meeting with an officer in December 2017, while unwilling to be removed, he indicated that he would be willing if his wife and biological son were also removed. According to the officer’s note, he was “receptive” to the information presented to him and “reacted positively to the fact that he will be a free man in Malta, and what he chooses to do after he arrives is up to him”.

44    The primary judge was not persuaded by the appellant’s submissions that she should ignore or reject the Minister’s arguments that: (a) his position on removal was part of an attempt to be allowed to stay in Australia; and (b) that maintaining his attitude in the future would result in the prospect of indefinite detention for him. As to the former, her Honour noted that the appellant had contacted the Maltese High Commission seeking clarification of Malta’s position and then emailed his case manager, asserting that his continued detention was unlawful, the day after receiving the Deputy High Commissioner’s response. She concluded that his taking of a position that frustrated his removal was being relied on in a positive manner to stay in Australia: at J[104]. As to the latter, her Honour considered that the consequence for the appellant in the event that he maintained his refusal to cooperate but did not succeed in his efforts to be released - indefinite detention – was a relevant circumstance in considering whether there was a prospect of him changing his position: at J[106]–[107]. Even apart from these points, her Honour was not persuaded that there was no realistic prospect of the appellant changing his position, so as to make his removal to Malta possible, in the reasonably foreseeable future: at J[108].

The primary judge’s conclusion

45    For the reasons summarised above, the primary judge was not persuaded of the existence of the state of affairs reflected in the proposed declaration: at J[109]. As previously mentioned, her Honour also observed that, even if her factual conclusion had been different, she would not have made the proposed declaration as “to do so would assert a fact devoid of its factual context”: at J[110].

46    Having delivered reasons on 8 September 2022, the primary judge ordered the parties to bring in agreed or competing short minutes of order giving effect to the reasons. Final orders were made on 21 September 2022, dismissing the proceedings with costs.

THE APPEAL

Leave to raise an additional ground

47    A further procedural problem faced by the appellant was that the grounds of appeal as originally framed did not identify any issue with the order dismissing the balance of the relief which had been sought. There was therefore no live issue in the appeal in relation to the lawfulness of the detention of the appellant, and no vehicle by which the correctness of Al-Kateb could be raised.

48    Counsel for the appellant sought leave to amend the grounds of appeal to insert a fifth ground in the following form:

The primary judge erred in law in dismissing the balance of the relief sought on the basis that:

(a)    Al-Kateb v Godwin (2004) 219 CLR 562 was incorrectly decided: and

(b)    either:

(i)    on their proper construction, ss 189, 196 and 198 of the Migration Act 1958 (Cth) do not permit or require the detention of an unlawful non­citizen in circumstances where it will not become reasonably practicable to remove the non-citizen, and/or there is no real likelihood or prospect of removal of the non-citizen, from Australia in the reasonably foreseeable future; or

(ii)    alternatively, if and to the extent that ss 189, 196 and 198 of the Migration Act 1958 (Cth) do permit or require the detention of an unlawful non­ citizen in circumstances where it will not become reasonably practicable to remove the non-citizen, and/or there is no real likelihood or prospect of removal of the non-citizen, from Australia in the reasonably foreseeable future, they are beyond the legislative power of the Commonwealth to the extent that they so permit or require: and

(c)     in the premises, the continued detention of the appellant is unlawful.

49    That leave was not opposed and leave is granted to raise the ground.

Preliminary observations

50    The first basis on which the case was put below was not pressed on appeal. Rather, the appellant challenged aspects of the primary judge’s conclusions and reasons for rejecting the proposition that Malta would not accept the appellant’s return because he is involuntary towards his removal.

51    None of the primary judge’s findings of primary fact are challenged by Grounds 1 to 4 of the appeal. Rather, the appellant’s case takes issue with her Honour’s refusal to draw an inference from those facts about future events. As noted earlier, the appellant sought a declaration that “it will not become reasonably practicable to remove the applicant, and there is no real likelihood or prospect of removal of the applicant, from Australia in the reasonably foreseeable future”. That form of words borrows from the language of s 198, but does not correlate with or describe any statutory test. Neither the duty of removal in s 198 nor the liability to be detained under s 196 is dependent on any such criterion.

52    The form of words appears to have been chosen with an eye to the factual basis on which the High Court proceeded in Al-Kateb. That is because the appellant wishes to be able to present the High Court with a case that is factually similar to Al-Kateb, so that the correctness of Al-Kateb will arise for decision. He wishes to avoid presenting a case that is distinguishable on the basis that an avenue to removal exists, as occurred in M47.

53    Self-evidently, there is some chance of the appellant being removed from Australia in the future. That was acknowledged in Al-Kateb, where the barriers to removal were much more likely to be permanent than in the present case. If and when the present case reaches the High Court, the Court will proceed on its own understanding and characterisation of the factual situation, including how the prospects of removal of the appellant are best described. It will not be bound by whether or not this Court has adopted a particular form of words to describe those prospects. Furthermore, if the High Court is minded to revise its understanding of the relationship between ss 196 and 198, identification of the findings or inferences that are critical will depend on the newly framed relationship which emerges.

54    There is therefore a touch of artificiality to Grounds 1 to 4 of the appeal. The issues debated make no difference to the appellant’s rights according to the law as presently understood; and whatever gloss this Court puts on the uncontroversial primary facts will not define or limit the area of debate in any further appeal.

Ground 1

55    By the first ground of appeal, the appellant contended that the primary judge erred in making the following findings:

(a)    the appellant “chooses to frustrate the operation of the Migration Act because he does not wish to return to Malta”, which is a “position of non-cooperation” and that the appellant’s “continued failure to cooperate is a choice” at [75]; see also [73] and [104];

(b)    the appellant’s conduct has “frustrated the attempts to remove him to Malta”: at [84];

(c)    it “cannot be concluded that removal to Malta within a reasonable time, if the [appellant]’s cooperation is forthcoming, cannot be achieved”: at [84]; and

(d)    “by cooperating it would deprive the [appellant] of an argument that is now sought to be made, and he would be removed”: at [86].

56    The appellant contended that:

(1)    in making these findings, the primary judge failed to distinguish between the appellant (a) being voluntary towards his removal and (b) cooperating in his removal;

(2)    the primary judge erred in applying (at [77]–[81]) cases involving non-cooperation in different contexts to that of the appellant;

(3)    the primary judge was invited to draw the inference that Malta was unwilling to accept the appellant’s return unless he “freely and voluntarily” signed an application for a travel document and that these words were significant and were overlooked by the primary judge.

57    The answer to the first and third of these contentions lies in what the primary judge stated at J[73]:

… There is an artificial aspect to the applicant’s submission. For example, the submission that the applicant “has refused to do what he cannot do, namely freely and voluntarily signing an application for a Maltese travel document”, fails to recognise that it is an act within the applicant’s control. It is entirely within his power to cooperate and to take steps which may assist in facilitating his removal. The applicant also conflates the concepts of voluntarily agreeing to be removed to Malta, with being happy, pleased or glad to do so. They are not the same. Reluctant cooperation is enough. A person can voluntarily and willingly agree to do something, even though their preference might be otherwise. It does not make the action any less voluntary.

58    The primary judge directly addressed the submission which the appellant made and did not overlook his argument that Malta was unwilling to accept the appellant’s return unless he “freely and voluntarily” signed an application for a travel document.

59    As to the second contention, the primary judge expressly recognised that the facts in M47 were different but that, in common with that case, there was a refusal to cooperate: at J[77].

60    The difficulty with the appellant’s case was that the impediment to the appellant’s removal was within his own control. The appellant submitted:

[I]n order to “cooperate” in a fashion which might result in his removal, [DMH20] would have to sign an application (dishonestly) indicating that he wishes to return. He would likely also have to attend the High Commission and convince the staff, deceptively, that he wishes to return. The law cannot demand that of him. Moreover, whether he could do so despite a ten-year history of resolute opposition to return to Malta, well ventilated in these proceedings, is doubtful. In reality, the only form of “cooperation” that would make a difference is for [DMH20] actually to change his mind, which he has indicated he will not do, for deeply held reasons which are unlikely to change in the foreseeable future.

61    This submission assumes that the appellant is incapable of changing his mind, such that any consent by him would be either dishonest or deceptive. This is not the case. The submission perpetuates the misconception advanced before the primary judge to the effect that one cannot cooperate in something one would prefer not to do.

62    It may be accepted that the appellant cannot be forced to consent to his removal. It is not, however, a necessary corollary of that proposition that it is appropriate to make a declaration that removal is not “reasonably practicable”. Put another way, the fact that the appellant does not want to be removed and has a stated position, which can only be a position of present intention, that he will not voluntarily return to Malta does not necessarily mean that removal is not “reasonably practicable” in a relevant timeframe.

63    The primary judge is not shown to have erred in any of the ways suggested by Ground 1.

Ground 2

64    Ground 2 of the appeal was as follows:

The primary judge erred in setting aside the proper construction of section 198 of the Migration Act … as relevant to the matter for determination (at [85]), and should have found that:

(a)    section 198 of the Act requires the removal from Australia, as soon as reasonably practicable, of unlawful non-citizens whether or not they are voluntary towards removal; and

(b)    for that reason, the appellant merely being involuntary towards his removal cannot properly be regarded as a failure to cooperate in his removal, or as a reason for not finding, for the purposes of the Act, that it will not become reasonably practicable to remove the appellant, and there is no real likelihood or prospect of removal of the appellant, from Australia in the reasonably foreseeable future.

65    The primary judge recorded that it was common ground that the issue before the Court was a factual one: at J[85]. Her Honour was not invited to resolve any question of statutory construction.

66    In written submissions, the appellant contended:

It assumes away the whole problem to hold, as the primary judge effectively did, that the appellant should become voluntary, thereby engaging s 198(1) of the Act rather than s 198(6).

In the statutory context in which the question came before her, it was an error for the primary judge to hold that being involuntary amounted to a failure to cooperate such that the factual finding for which the appellant contends could not be made. The Act does not require the appellant to facilitate his removal by becoming voluntary towards it. To the contrary, it contemplates that many persons will be involuntary but requires their removal as soon as reasonably practicable nonetheless. It imposes a duty to remove as soon as reasonably practicable – enforceable by mandamus – regardless of whether a person is involuntary.

67    The Migration Act requires the removal of both voluntary and involuntary unlawful non-citizens. Contrary to the assumption in the first paragraph set out above, a person’s cooperation in his or her removal under s 198(6) would not amount to a request for removal under s 198(1). As to the second paragraph set out above, it does not follow from the fact that the Migration Act requires removal of both voluntary and involuntary unlawful non-citizens, that there was any error in concluding as a matter of fact that the appellant failed to cooperate in his removal.

68    The primary judge did not make the declaration of fact which the appellant sought, in part because removal was reasonably practicable except for a matter within the appellant’s control. That conclusion did not involve any erroneous construction of the Migration Act.

Ground 3

69    By Ground 3, the appellant contended that the primary judge erred in failing to find that it was unlikely that the appellant would become voluntary towards his removal. The appellant relied on four submissions in this respect:

(1)    First, the appellant contended that the primary judge erred in expressing the test as whether the Court was persuaded that there was “no prospect” of the appellant altering his position. The appellant submitted that this was not the applicable standard and that the question is whether a change of position is likely.

(2)    Secondly, the appellant contended that it was “impermissible” for the primary judge to take into consideration the conclusion that the appellant will face the prospect of indefinite detention if these proceedings are unsuccessful in concluding that the appellant may ultimately change his mind about his removal: at J[92].

(3)    Thirdly, the appellant criticised the primary judge’s reliance on two past instances where the appellant had indicated he might be voluntary to his removal: at J[99]. The appellant complained that the primary judge did not note at J[99] of her reasons, what was recorded at J[95] and [98], namely that the appellant’s attitude was expressed as being conditional on his wife, stepson, and later his biological son, being able to come with him (which they cannot do). Further, the appellant pointed to his direct evidence, on which he was not cross-examined, that his present position would not change in future: J[87]. It was submitted that, even if the evidence is regarded only as going to present intention as the primary judge concluded, “it amounts to a challenge to that evidence to infer from past conduct that the appellant’s position might change” and that inference should not have been drawn without a submission to that effect being squarely put to the appellant in cross-examination.

(4)    Fourthly, the appellant noted that the primary judge characterised the appellant’s submissions that he was not by these proceedings “attempting to find a right to stay” as “disingenuous”: J[104]. The appellant submitted that the proceedings were not concerned with the appellant’s right to stay in Australia, but about his liberty pending removal. The appellant submitted that people in Australia have a right to liberty subject to defined exceptions and that the proceedings are “concerned with those limits, and specifically with the lawfulness of his indefinite immigration detention so long as his involuntary removal is not reasonably practicable in the reasonably foreseeable future”.

70    As to the first submission, as the respondent submitted, the primary judge accurately described the declaration which had been sought and her Honour’s description also reflected the terms of the appellant’s submission at trial that “there is no prospect that his position will change in the reasonably foreseeable future”.

71    As to the second submission, the consequences for the appellant if his proceedings failed were necessarily part of the relevant context in which the appellant had brought the proceeding as the primary judge explained at J[92]. It would be wholly artificial to determine future possibilities by excising from consideration relevant events which would necessarily exist.

72    The submissions of the appellant criticised this reasoning on the ground that it assumed the failure of his proposed challenge to Al-Kateb. Two points should be made about that. First, as the respondent submitted, the failure of the appellant’s case is at least a possibility, and its implications are therefore properly considered in considering whether there is a prospect of him changing his position in relation to removal. Secondly, if this involves a conceptual difficulty, the same difficulty (assuming a result) would arise if the prospect of indefinite detention were not taken into account. That would assume the success of his challenge to Al-Kateb (or to put it another way, assume that current High Court authority does not correctly state the law). This tends to emphasise the difficulty of attempting to characterise the facts in advance of a possible change in the understanding of the law rather than in the light of established legal principles. If a choice must be made between these competing inferences, this Court should prefer the one that is consistent with the application of existing authority.

73    As to the third submission, the primary judge did not ignore the circumstances in which the appellant gave an indication of some willingness to return to Malta. The primary judge carefully set out the “conditions” relevant to the appellant’s apparent willingness.

74    The primary judge also recognised that if the appellant were to volunteer to be removed he would have the same primary means of communication with his son (telephone and audio-visual means) whether in detention or elsewhere: at J[99]. The primary judge took into account the appellant’s family circumstances when concluding that the appellant might become open to voluntary removal.

75    The prospect of the appellant changing his mind about removal was not a matter which was required to be put to the appellant in cross-examination. The primary judge was correct in observing that the appellant’s statement that he would never change his mind about removal was only a statement about his present state of mind: at J[93].

76    It was open to the primary judge to draw inferences as to what might or would occur in the future without the various inferences or reasons for the inferences being put to the appellant in cross-examination. In any event, the appellant’s characterisation of the inference as being drawn from past conduct is incomplete. The primary judge’s conclusion was not solely based on past conduct. The conclusion was based on all of the circumstances, including the reality that the appellant’s position would be different in the future if his proceedings were dismissed.

77    As to the fourth submission, it is important to emphasise that the primary judge was not making any credibility finding when characterising the appellant’s submission that he was not by these proceedings “attempting to find a right to stay” as “disingenuous”. The primary judge’s observation was directed to the submissions being advanced. The appellant sought to have the Court declare that removal was not reasonably practicable and that there was no real likelihood or prospect of removal in the reasonably foreseeable future. The proceedings were directed to obtaining a declaration with a view ultimately to securing the appellant’s release from immigration detention. The Minister submitted that the proceedings were “a transparent attempt to convert a refusal to leave into a right to stay”. In the Minister’s submission it was, in those circumstances, disingenuous to suggest that the proceedings were about “liberty pending removal”. The debate on this issue does not lead anywhere in terms of the appeal. The primary judge used the label “disingenuous” to characterise the submission which had been advanced, with the apparent intention of showing that there was a different way of looking at the case to that which was being propounded. Her Honour’s view was open.

Ground 4

78    The appellant submitted that, “on the basis of the foregoing”, the primary judge should have found that:

(a)    Malta is unwilling to accept the appellant’s return to Malta if he is involuntary towards his removal, regardless of whether or not he otherwise cooperates in his removal;

(b)    that position is unlikely to change in the reasonably foreseeable future;

(c)    the appellant is involuntary towards his removal from Australia;

(d)    that position is unlikely to change in the reasonably foreseeable future; and

(e)    as a consequence of (a)–(d), it will not become reasonably practicable to remove the appellant, and there is no real likelihood or prospect of removal of the appellant, from Australia in the reasonably foreseeable future.

79    The appellant referred in this regard to Sami, in which Mortimer J was “comfortably persuaded” that there was no real prospect of an unlawful non-citizen being removed to Egypt in the reasonably foreseeable future. The appellant described the context as including that conversations between Australia and Egypt about the issue of a travel document were active and ongoing at the close of evidence: Sami at [123]–[125], [144]. The appellant referred in particular to what Mortimer J stated at [147]:

Here, the difficulty on the evidence is with “likelihood” – stemming not so much from the circumstances in Egypt as from the attitude of the Egyptian authorities over the last three years. In my opinion, the evidence discloses too much uncertainty around what the Egyptian authorities require, and what in reality they propose to decide and to do, as opposed to assurances in emails about what might occur, which have proven incorrect. The level of uncertainty means that I am unable to find that there is any “likelihood” of Mr Sami being removed to Egypt. The Court would need to go beyond speculation on the evidence to adopting nothing more than hope. Hope is not likelihood.

80    The appellant also noted that Mortimer J concluded that the “foreseeable future” should be seen in months, rather than years: Sami at [149].

81    The decision in Sami does not assist resolution of the issues in this appeal. The applicant in Sami sought a declaration that removal was “unlikely”; here the declaration sought was that there was “no real prospect” of removal. Further, Sami did not involve a situation in which removal would be practicable but for decisions made by the applicant. It is relevant also to note that Sami is presently subject to appeal.

82    Ground 4 of the appeal does not add materially to Grounds 1 to 3.

Ground 5

83    Ground 5 has been included for the reasons given earlier. It must fail as a result of Al-Kateb. Whether that case is correctly decided is a matter for the High Court.

CONCLUSION

84    The appeal should be dismissed with costs.

Associate:

Dated:    9 March 2023