FEDERAL COURT OF AUSTRALIA

SZSZM v Secretary, Department of Immigration and Border Protection [2017] FCA 458

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs, to be assessed if not otherwise agreed.

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

REASONS FOR JUDGMENT

BARKER J:

1    On 27 April 2017, I refused the application of the applicant, a male citizen of Pakistan, for an extension of time to appeal and leave to appeal from a decision of the Federal Court of Australia determining that the Secretary of the Department of Immigration and Border Protection did not breach s 198(1) of the Migration Act 1958 (Cth). See SZSZM v Secretary, Department of Immigration and Border Protection [2016] FCA 1477. These are my reasons for so doing, which reflect my reasons given orally on 27 April 2017.

2    The applicant was born in Karachi, Pakistan on 28 October 1988. He first arrived in Australia on 6 July 2000 on a Tourist (Short Stay) (subclass 676) visa and was later granted a Five Year Resident Return (subclass 155) visa on 3 July 2006.

3    Between 10 October 2005 and 18 April 2007, the applicant was convicted of a number of juvenile offences. On 17 October 2012, the applicant’s visa was cancelled on character grounds pursuant to s 501 of the Act. After being released from prison, the applicant was taken into immigration detention, where he has remained since 15 November 2012.

4    The applicant was unsuccessful in challenging the visa cancellation and a decision refusing his application for a Protection (subclass 866) visa.

5    On 20 November 2015, the applicant requested that he be removed from Australia and returned to Pakistan. The applicant did not hold a passport or any other travel document which would permit him to travel overseas. The Secretary attempted to obtain travel documentation for the applicant through the Pakistan Government, but was unsuccessful.

6    By an originating application filed 31 August 2016, the applicant sought a declaration that the Secretary was in breach of s 198(1) of the Act; a writ of mandamus; an order that the Secretary remove the applicant from Australia; damages for breach of statutory duty or equitable compensation; and costs. He was then legally represented.

7    The applicant claimed that he was not removed as soon as reasonably practicable, contrary to s 198(1) of the Act, which provides that “an officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed”.

8    On 24 October 2015, the primary judge directed that the question of whether s 198(1) had been breached be tried separately and in advance of all other issues in the case. On 9 December 2016, the primary judge held that the separate question should be answered in the negative.

9    The applicant attempted to lodge an application for leave to appeal from that decision, but was some seven days late. The applicant claimed that he misunderstood the time frame to appeal.

10    On 5 January 2017, the applicant filed an application for an extension of time to appeal and leave to appeal from the decision of the primary judge.

11    On 1 February 2017, the proceeding came before the primary judge for directions. As a result of discussion between the solicitors for the parties, on 6 February 2017 his Honour made the following orders by consent:

(1)    Judgment be entered for the respondent in the proceedings.

(2)    The applicant pay the respondent’s costs of the proceedings.

12    In these circumstances, a number of questions arise, which include:

    Whether the making of the consent orders on 6 February 2017 dismissing the proceeding substantively, following the determination of the preliminary question make futile the applicant’s proposed appeal.

    Whether, in any event, the decision of the primary judge is attended with sufficient doubt to justify the extension of time for applying for leave to appeal, as sought by the applicant.

PRIMARY JUDGE’S DECISION

13    The primary judge, in his judgment of 1 December 2016, noted that the cancellation of the applicant’s visa under s 501 of the Act rendered him an unlawful non-citizen and, in the circumstances, the applicant was to remain in immigration detention unless removed from Australia, by virtue of s 189 and 196(1) of the Act.

14    The primary judge further noted that, on 20 November 2015, the applicant requested that he be removed from Australia, in accordance with s 198(1) of the Act. On that same day, the Department advised the Consulate General of Pakistan that it required documentation to facilitate the applicant’s return to Pakistan, as the applicant did not hold a currently valid passport.

15    On 23 November 2015, the Department sent a follow up email to the Consulate. The Department made arrangements for the applicant’s flight to Pakistan on 15 December 2015.

16    On 26 November 2015, the Pakistan Government informed the Department that it had recently devised a new procedure for processing deportations of people back to Pakistan and that the Consulate was unable to issue an emergency travel document to the applicant, verify his passport or issue a visa unless his nationality and antecedents were verified. This required further documentation to be forwarded to the Consulate. The Department subsequently sent two follow up emails to the Consulate in late November 2015.

17    In December 2015, the Consulate requested, and the Department provided, further documentation, including the applicant’s travel itinerary, which stated that the removal date had been changed to 8 January 2016. The Department emailed the Consulate on two occasions seeking an update on the progress of the applicant’s documentation.

18    The applicant’s travel arrangements to depart Australia on 8 January 2016 were cancelled on 4 January 2016 due to the Department having received no response from the Consulate.

19    On 2 January and 23 January 2016, the Secretary attempted to repatriate two Pakistani nationals, who were subsequently refused entry without the documentation provided by Pakistan.

20    The Department continued to send emails to the Consulate in January 2016, requesting updates on the status of the applicant’s travel documents. The Department additionally met with officials from the Pakistan High Commissioner to seek clarification on the new returns procedure.

21    On 21 January 2016, the applicant received a letter from the Department advising him of the current state of his repatriation.

22    On 4 May 2016, the Department met with the Pakistan High Commission to discuss issues surrounding the removal of detainees to Pakistan and was provided with new standing operating procedures for deportations. The Department was informed of a new requirement that the person to be removed was to be escorted to the Pakistan High Commission for biometric testing and witnessing.

23    Following further correspondence between the Department and the Pakistani authorities, the Consulate advised, on 31 May 2016, that it had received verification and approval from the Minister of Interior, and the applicant’s travel documents were ready to be issued. However, on 1 June 2016, the Consulate informed the Department that verification of the applicant’s identity card had not been completed. The applicant was escorted to the New South Wales Pakistan Consulate for biometric testing on 6 June 2016.

24    The primary judge noted that on 31 August 2016, the first successful removal of a Pakistani national, pursuant to the new requirements of Pakistan, was achieved. On that same day, the Minister for Immigration and Border Protection met with the Pakistan High Commissioner to discuss the return of Pakistan nationals.

25    The Department continued to send emails to the Consulate requesting updates on, and offering to assist with, the applicant’s identification process. After their enquiry on 11 November 2016, the Consulate responded that the matter was still being investigated.

26    The primary judge stated that the applicant argued that the Secretary could have been more persistent in his enquiries of the Consulate. The primary judge considered that it was clear that the difficulty existed not with the Consulate, but with the “slow internal workings of the bureaucracy in Pakistan”. The primary judge noted that the evidence suggested that the Department contacted the Consulate about once a month to find out how the passport application was progressing. The primary judge did not accept that it was in any way unreasonable for the Department to follow up with the Consulate with the frequency that it did.

27    The applicant contended that he was told he did not put his thumbprint on the relevant application forms and that the Secretary had made no attempts to obtain a Pakistani identity card. The primary judge stated that there was nothing to suggest that such arguments have anything to do with the delays experienced by the applicant in relation to his travel documentation.

28    The primary judge also considered evidence from Mr Michael Crighton, the Acting Superintendent of NSW Removals Operations of the Department, that, in some circumstances, it is possible for a person to be removed from Australia travelling only on an identity card issued by the Australian Government, but noted that in such cases, the receiving state must indicate a willingness to accept the person without a travel document before a removal is attempted. The primary judge said that this was not evidenced by the Pakistani Government and so, the point does not go anywhere.

29    The primary judge further did not accept the applicant’s submission that the Secretary was obliged to identify other countries to which the applicant might be sent and be permitted to enter, where the applicant did not identify any himself.

30    The applicant submitted that the Secretary could have sought to resettle the applicant in a third party country such as Papua New Guinea or Nauru. The primary judge found that, on the evidence, the applicant was not a stateless person, but was experiencing delays in being issued a passport and, in those circumstances, it would be unreasonable to require the Secretary to attempt to resettle the applicant in some third country.

31    For the reasons above, the primary judge was satisfied that the Secretary had done all that he reasonably could do to arrange the applicant’s travel documents. The primary judge concluded that the Secretary had not breached s 198(1) of the Act

Application in this court

The applicant’s case

32    In support of his application for an extension of time, the applicant says, in his affidavit made 28 December 2016, that he lacked knowledge of the appeal times and processes in the Federal Court in relation to the Act, and that it is difficult for him to have access to the “right knowledge and processes” while he remains detained in the Villawood Detention Centre.

33    With respect to his application for leave to appeal, the applicant says that this is an important issue as he remains in detention while the Department gets the benefit of the trial judge’s decision when, if he was successful, he would have had the opportunity to be removed from Australia. The applicant further submitted that, in such a matter involving the deprivation of liberty, it is in the interests of justice that leave be granted.

34    The applicant’s draft notice of appeal dated 28 December 2016 raises the following grounds of appeal:

1.    The Court below erred in failing to find that the Respondent was in breach of the duty under s 198(1) of the Migration Act 1958 because:

a.    The Respondent has delayed in taking steps of inquiry to facilitate removal of the Applicant. Either the Consulate is the appropriate venue to facilitate the Applicant’s travel documents, or is not. The findings of the trial judge allow for sporadic contact with the Consulate on the basis that the real fault is with the slow internal workings of the bureaucracy in Pakistan. There was no evidence that the Respondent had taken steps to deal with those slow internal workings to comply with the statutory duty.

b.    The Respondent had failed to take any step or give any consideration to removal of the Applicant to countries other than Pakistan which was to not consider other reasonably practicable methods of removal.

35    By an amended application for leave to appeal filed 30 March 2017, the applicant seeks leave to appeal on the following grounds:

1.    The trial judge erred in failing to find that the Respondent was in breach of the duty under s 198(1) of the Migration Act 1958.

2.    The trial judge erred in relying on the evidence of [Michael Crighton] as having determinative weight, particularly since several months have passed since that evidence was given and the foresight expressed has been demonstrated to have been wrong or not worthy of determinative weight.

36    In his affidavit made 11 April 2017, the applicant raises the following further grounds in support of his application:

2.    I hereby seek extension of time to be granted as I am some seven days late to lodge the leave to appeal application.

3.    I strongly submit the late leave to appeal application is only due to the fact that I was represented by Mark Seymour at the last occasion in relation to this matter. I misunderstood the time frame to appeal this matter.

4.    I misunderstood and was of the opinion that I had twenty one days to lodge an appeal however I was informed I misunderstood and was incorrect.

5.    I then lodged by judicial review late.

6.    I strongly believe this late leave to appeal is only due to the fact of myself having lack of knowledge in relation to judicial processes and time frames.

7.    I hereby also plead to the Court to grant me the leave to appeal in relation to a new ground which I have submitted in relation to my leave to appeal application.

8.    This ground is in relation to the evidence which was given by the Respondent at the last final hearing on 1 December 2016.

9.    Part of that evidence by the Respondent on 1 December 2016 ended up being the heart of the decision which was served by the Honourable Judge Perram on 9 December 2016.

10.    The Respondent’s evidence given by [Michael Crighton] orally on 1 December 2016 in relation to the applicant’s travel document was given determinative weight by the Honourable Justice Perram J.

11.    The decision served by Justice Perram on 9 December 2016 at paragraph 47 ‘But here the evidence was that the applicant’s problem was a temporary one. Eventually, the applicant will be given a Pakistani passport, all that is involved here is a delay’ demonstrates that Justice Perram gave determinative weight to the Respondent’s oral evidence and erred in relying on the Respondent’s evidence as since that evidence was given , there has been some several months passed and there has been no foresight expressed in relation to that evidence given by the Respondent .

12.    I plead in my submissions time should be extended to allow leave to appeal and leave to appeal because:

(1)    The delay is due to myself being unaware of judicial review processes and time frame knowledge in relation to lodging papers for a Judicial review.

(2)    The delay is fully explained and there should not be any conceivable prejudice to the Minister.

(3)    The substantive case has merit , and indeed should succeed.

(4)    In a matter so serious where a conscious of a statutory duty that interferes with the applicant’s personal liberty especially where the applicant’s removal falls short of being prompt or efficient and, instead, indicative of neglect or casual , rather than considered , attention .

(5)    The new ground is not a new matter and indeed is part of the evidence which was relied upon by the Trial Judge.

In these circumstances I submit that the interests of justice require that the extension of time to leave to appeal and leave to appeal be granted.

37    The applicant filed submissions on 12 April 2017, in which the applicant submits that the Court should first find that the Secretary is in breach of s 198(1) of the Act and then questions of remedy can be determined.

38    The applicant submits that the issue to be determined is as follows:

2.    Section 198(1) of the Act requires (‘must’) an responsive action (‘‘remove’) to occur, once a pre-condition is satisfied (‘‘asks ...in writing’), within a required period (‘as soon as reasonably practicable’’).

3.    Section 197C(2) makes it clear this provision imposes a ‘duty’ upon officers enforcing the Act. Furthers 4(4) asserts that removal of non-citizens advances the central objective of the Act (ie ‘to regulate, in the national interest, the coming into and presence in, Australia of non-citizens’). The text and context of the provision therefore highlights the importance of the duty providing guidance as to the scope of it.

4.    In the present case, the pre-condition has been fulfilled but the action has not been carried out. The issue is therefore whether there has been a breach of the provision by reason of the failure to carry out the action within the period.

5.    It is submitted that consideration of this issue would be addressed by reference to the ‘test’ in Thornton v Repatriation Commission (1981) 52 FLR 285 at 292; (1981) 35 ALR 485 at 492 recently considered by the Full Court in ASP15 v Commonwealth of Australia [2016] FCAFC 145 (see esp at [21) and [47]). That is, the question is whether the failure to carry out the required action is ‘justified and not capricious’, being for a ‘considered reason’ and ‘not in consequence of neglect, oversight or perversity’. Further, the test imposes an evidentiary burden for the Respondent to establish: see ASP15 at [48]. In addition, it is important that the statutory duty would be construed mindful of the common law presumption that Parliament intends minimal infringement of personal liberty: AI Kateb at [19] per Gleeson CJ.

6.    Section 189(1) of the Migration Act, makes it mandatory that a person who is in Australia and who no longer holds a visa that is in effect (in other words a person who is an ‘unlawful noncitizen’ within the meaning of section 14 of the Migration Act) be detained , the inevitable legal and practical consequence of this is that the applicant is deprived of his personal liberty.

7.    The doctrine of ‘legality’ has been recognised as providing the ‘strongest guidance’ for determining whether a statutory scheme such as the one at issue permits an interpretation that allows for the infringement upon a basic human right , such as the right to personal liberty.

8.    The doctrine of legality was stated in the following terms by the High Court in the case of Coco v The Queen .

‘The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation of such basic rights , freedoms or immunities but has also determined upon abrogation or curtailment of them . The Courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear , they will often be ambiguous on the aspect of interference with fundamental rights ‘.

9.    The Migration Act is completely silent on the question of whether a person who cannot be returned to his or her home country as there is no verification of their existence in their Country of birth and who are therefore liable to indefinite detention.

10.    The observations of Chief Justice Gleeson (as he then was) in his dissenting opinion in the case of AI-Kateb v Godwin are pertinent and illustrate that the Migration Act does not expressly provide for indefinite detention in circumstances where a person cannot be removed from Australia:

‘......as was pointed out in Chu Kheng Lim v Minister for Immigration, in the ordinary case, the detention can be brought to an end upon the alien making a request to be removed. There are, however exceptional cases , where a visa application has been determined adversely to an alien, or an alien had requested removal , but removal is not possible in the circumstances which prevail at the time and which are likely to prevail in the foreseeable future. What happens? Is the consequence indefinite, perhaps permanent, detention? The Act does not in express terms address that problem’.

11.    It is submitted further that the present case is distinguishable on its facts from the High Court’s decision in AI-Kateb , and for that reason this Court is not bound to apply the holding in that case. Although the High Court in AI- Kateb did, by a narrow 4-3 majority, find that indefinite detention was authorised under the Migration Act in the case of a person who had arrived in Australia without a visa, whose application for a protection visa had been rejected, and whose removal from Australia was not reasonably practicable, it did not consider and did not decide the altogether different question presented by this case, whether a person who had entered Australia lawfully.

12.    The Federal Court rejected the applicant’s claims that the Respondent had breached it’s duty under s198(1) of the Migration Act 1958 as it was submitted that the Respondent delayed In taking steps of inquiry to facilitate the applicant’s removal.

13.    The Federal Court failed to rule on the fact that whether the Consulate is the appropriate venue to facilitate the applicant’s travel documents or it is not.

14.    The findings made by the Federal Court allowed for sporadic contact with the Consulate on the basis that the real fault is with the slow internal workings of the bureaucracy in Pakistan. There was no evidence that the Respondent had taken steps to deal with those slow internal workings to comply with the statutory duty.

39    The applicant states that he will seek leave to rely on his amended notice of appeal at the hearing, and relies on the following particulars of failure to comply with the statutory duty:

(1)    the failure to adopt prompt and efficient means to effect removal of the applicant to Pakistan;

(2)    the failure to consider or explore alternative options for removal of the applicant outside Australia; and

(3)    taking irrelevant material into consideration, namely the respondent’s oral evidence in relation to the applicant’s travel document where the hearsay rule applied (amended ground).

40    The applicant makes the following submissions with respect to the above grounds of appeal:

Failure to adopt prompt and efficient means to effect removal

17.    The salient facts can be briefly summarised in the following chronology.

18.    On 20 November 2015 the Applicant requested, in writing, that he be removed ‘from Australia’ (See MC1).

19.    Almost immediately after that request was made, the DIBP made representations to the Consulate General of Pakistan (Consulate) seeking assistance in the removal of the Applicant to Pakistan. (See MC2, p 18)

20.    On 1 December 2015 DIBP was informed of a ‘new policy of the Government of Pakistan’ involving ‘details of the deportee [having) to be shared with the Ministry of Interior to get clearance’. (See MC7, p 36)

21.    The following day an officer of DIBP wrote to ask of the Consulate if ‘approval and verification’ had been sought for the Applicant. (See MC9, p 50) The response of the same date affirmed that the matter had been referred to the Ministry of Interior. (See MC10, p 55) Several efforts were made over the following month to follow up the request for assistance.

22.    Matters changed in around 25 January when an ‘‘internal decision’ was made within DIBP ‘not to progress removals to Pakistan in the short term’ or in the ‘immediate future’. (See MC17, p 72)

23.    Despite this internal decision, the Applicant continued to be told that DIBP was progressing his removal’. (See MC 18, p 74, MC19, 76)

24.    Internal emails within DIBP suggest this internal decision was still active by early March. (See MC20, p 78) Again, the Applicant was not informed of this internal decision but rather told that there were no updates through to May 2016.

25.    On or about 4 May 2016, new Operating Procedures were provided to DIBP. (See MC26, p 92) These included a requirement to provide biometrics of the person to be deported, noting that Pakistan would ‘only’ accept such persons ‘duly verified’ through the Procedures. (MC2, p 20) Notwithstanding the apparently clear language of the Procedures, internal emails within DIBP reflected upon the ‘logistical challenges’ associated with escorting such persons to the High Commission or Consulate and whether the High Commission’s compromise on a face-to-face requirement for involuntary cases provided ‘scope for negotiations in future on same arrangement for voluntary removals’. (MC27, p 98)

26.    Again, despite the clear language of the Procedures, subsequent efforts to obtain the assistance of the Consulate were framed in terms of whether it was necessary to escort the Applicant to the Consulate in person. (MC28, p 101, MC29, p 101) The Applicant was, again, not informed of the developments in his case through May 2016. (MC30, p 119, MC31, p 121)

27.    Internal emails of DIBP then provide an incomplete picture of events occurring in late May. The email of Naryl Brown on 31 May suggests a phone call was received from the Consulate confirming verification of the Applicant, which is not consistent with the subsequent email of the Consulate dated 1 June. (See MC32, p 123 and 128)

28.    On 2 June 2016 DIBP was again informed that the requirement to bring the Applicant to the Consulate was ‘mandatory’. (MC34, p 130) Accordingly, despite receiving the Procedures in early May, the Applicant was not escorted to the Consulate until 6 June 2016. (See MC34, p 130)

29.    Since that time, there have been some further requests for assistance but it is not clear that any further action has been undertaken and no confirmation from the Consulate that the assistance will be forthcoming since ‘[t]he delay is due to the verification of [the Applicant’s] Pakistani antecedents and the concerned authorities who are doing his background check’ with ‘no success’ as at 13 October 2016. (See MC41, p 145)

Failures to take prompt and efficient steps

30.    The DIBP failure to comply with the requirement to place thumb impressions on the original application meant biometric data was not provided to the Consulate in November 2015. Further, the failure to follow the notified ‘mandatory’ steps in the Procedures caused a delay of providing biometric data for at least an additional month. Similarly, since the date of compliance with the Procedures there has been, on the documents, follow up action taken only on 21 July 2016 (See MC36, p 135), 30 August 2016 (See MC 38, p 139), 30 September 2016 (See MC39, p 141), and 12 October 2016 (See MC40, p 143). Such lengthy periods in following up the request for assistance are, naturally, to the Applicant’s detriment if he must be kept in detention pending removal. Further, keeping the Applicant uninformed of the reasons for delay in the processing of his removal has been cruel or capricious. Finally, the Applicant intends to adduce evidence that the second application contained a factual inaccuracy (ie that the ‘‘reason for deportation’ was ‘‘overstayer’ (See MC28, p 106)) that was included by officers of the DIBP which is further indicative of casual or neglectful attention to detail when complying with the statutory duty.

31.    The Applicant submits that a reasonable person, conscious of a statutory duty that interferes with personal liberty, would consider the response to requests for assistance falls short of being prompt or efficient and, instead, indicative of neglect or casual, rather than considered, attention. Though the Court can be conscious of the difficulties involved in international co-operation the present application throws up a justiciable controversy as to whether the DIBP actions have been sufficiently attentive to the statutory duty: see AI Kateb at [13) per Gleeson CJ. They have not.

Failure to consider alternatives for removal

32.    There is no record of any attempt to even consider alternative options to removal to Pakistan. There has accordingly been no considered approach taken to the full extent of the duty and no considered reason given for the failure to explore such alternatives. That there are alternatives for removal based on ‘some other country to take an altruistic view’ is something a predecessor to the Respondent has relied upon: note the arguments of Counsel in AI Kateb at 219 CLR 567.

33.    Further, the Court can take judicial notice of steps taken by Australia to settle people in other countries -which are notorious facts. The Respondent has the evidentiary burden to show that there has been consideration of this option and to provide a ‘considered reason’ for not taking this step or to explain why DIBP is not able to conduct such negotiations on behalf of the Applicant.

34.    It is consistent with a statutory duty to remove (and to detain pending removal) that all possible means of compliance at least be considered if not all possible means of compliance be explored. The Respondent has not complied with either step.

(Amended ground) Taking irrelevant material into consideration namely the Respondent’s oral evidence in relation to the applicant’s travel document where the hearsay rule applied.

The Court below accepted the Respondent’s oral evidence which is consistent with the Federal Court’s Judgement served on 9 December 2016 paragraph’47’ But here the evidence was that the applicant’s problem was a temporary one. Eventually, the applicant will be given a Pakistani passport, all that is involved here is a delay’

The issue that arises Is that the Court below gave determinative weight to the Respondent’s oral evidence where he hearsay rule applied and ruled in favour of the Respondent yet since that evidence was given by the Respondent several months ago the foresight expressed has been demonstrated to have been wrong and not worthy of the determinative weight it was given by the Federal Court.

41    The applicant concludes that the Court should find that the Secretary has not complied with the statutory obligation under s 198(1) of the Act in all respects relied upon.

Secretary’s submissions

42    The Secretary filed written submissions on 19 April 2017, in which the Secretary notes that an application for leave to appeal must be filed within 14 days after the date on which judgment was pronounced, in accordance with r 35.13 of the Federal Court Rules 2011.

43    The Secretary submits that, as the applicant’s application for leave to appeal was filed on 5 January 2017, and not by 24 December 2016, there must be a satisfactory explanation for the delay: see Kennedy v Secretary, Department of Industry (Commonwealth of Australia) & Anor [2016] FCA 1251 at [64]; Croker v Phillips Electronics Australia Ltd [2000] FCA 1731; Sharman Licence Holdings Ltd v Universal Music Aust. Pty Ltd [2005] FCA 802.

44    The Secretary submits that the applicant’s explanation for the delay, being his lack of knowledge of the appeal times and processes, and his opinion that he had twenty one days to lodge an appeal, ignores the fact that the applicant was legally represented when the initial application was filed on 31 August 2016, at the hearing of the interlocutory application on 1 December 2016 and subsequently when the matter went before the Court on 1 February 2017, which resulted in the consent orders being made on 6 February 2017, entering judgment in favour of the respondent.

45    The Secretary submits that when consent judgment was entered in favour of the respondent, the applicant was represented by solicitors in the principal claim. It is said, significantly, that was a period one month after the applicant filed his application for extension of time and leave to appeal.

46    The Secretary submits that, even if the Court were to find a satisfactory explanation of the applicant’s delay in seeking leave to appeal, any extension of time would be an exercise in futility, as the application has no reasonable prospects of success. The Court concluded that, in the circumstances, the application should be refused.

47    The Secretary observes that the applicant has provided no evidence as to when he ceased to be legally represented and whether he sought advice as to the processes and times for an appeal. Those matters, the Secretary submits, should have been properly the subject of evidence to support any application for extension of time.

48    In addition to the need for proper and satisfactory explanation for the delay, the Secretary submits that the applicant must demonstrate that he has a reasonable prospect of success, so as not to render the extension of time an exercise in futility: see Kennedy at [65].

49    The Secretary states that the applicant’s amended grounds of appeal are principally:

(1)    the delay in taking steps of enquiry to facilitate the removal of the applicant;

(2)    the failure to take any step or give any consideration to the removal of the applicant to countries other than Pakistan; and

(3)    the reliance by the primary judge of the evidence of Mr Crighton as having determinative weight.

50    The Secretary contends that each of these grounds involves the contest of factual findings made by the primary judge and the applicant’s appeal is, essentially, premised on his disagreement with the primary judge’s decision, which is not a proper ground of appeal.

51    The Secretary submits that a notice of appeal must comply with r 36.01 of the Rules and expose the errors that it is alleged to have been committed: see SZJJC v Minister for Immigration and Citizenship [2008] FCA 614 at [15]. The Secretary states that the proposed notice of appeal does not state briefly but specifically the grounds relied on in support of the appeal, as required by r 36.01(2)(c) of the Rules.

52    The Secretary further submits that there is no substance in the applicant’s arguments and no real likelihood of the appeal being granted, and so leave should be refused: see Lin v Railcorp of NSW [2011] FCA 546.

53    The Secretary notes that the primary judge set out carefully the facts relevant to the alleged breach of duty at [13] – [39] of the decision, and those facts were uncontested.

54    The Secretary submits that the applicant could not be removed to Pakistan, given that he presently lacks documentation to be supplied by Pakistan. This, the Secretary says, is reinforced by the fact that Pakistan has refused to accept previous attempts by the Secretary to repatriate persons to Pakistan without the documentation provided by that country.

55    The Secretary submits the High Court decision in Ahmed Ali Al-Kateb v Philippa Godwin, Deputy Secretary, Department of Immigration and Multicultural and Indigenous Affairs & Ors [2004] 219 CLR 562; [2004] HCA 37 to be the “most pertinent authority” and reiterated the Full Federal Court’s observations in ASP15 v Commonwealth of Australia [2016] FCAFC 145 at [32] that:

“Al-Kateb therefore remains good law, and allows for the possibility of prolonged detention due to such an impasse, indicating that duration of detention alone, and the lack of any immediate prospect of it ending, is not enough to make that detention unlawful”.

56    The Secretary further argues that the applicant’s attempt, at [11] of his submissions, to differentiate Al-Kateb on the basis that he entered Australia lawfully, has no merit as the mode of entering Australia was of no moment in the High Court’s reasoning in Al-Kateb.

57    In relation to the ground that the primary judge erred in relying on the evidence of Mr Crighton, the Secretary submits that complaint is without substance. The Secretary states the primary judge was entitled to accept Mr Crighton’s evidence in relation to both the usual protocols of “good manners and respect” between States and that the applicant would eventually be provided with a Pakistani passport. The Secretary added that this evidence could only be viewed prospectively and so, the fact that Pakistan has not yet provided the document does not meant that the primary judge should not have accepted the evidence, or that the evidence was wrong.

58    The Secretary submits that, on the facts, it was inevitable that the primary judge found that the Secretary has not breached s 198(1) of the Act.

59    The Secretary stated that, even if the Court found a satisfactory explanation for the delay in filing the application for leave to appeal, that application has no reasonable prospects of success. Consequently, any extension of time would be an exercise in futility and so, in the circumstances, the application should be refused.

Applicant’s reply

60    In oral submissions at the hearing, the applicant accepted that he was legally represented by his solicitor on 1 February 2017. He appeared to indicate that he understood the consent judgment to be entered was about costs and costs only.

consideration

61    It must be said at the outset that there is some confusion as to the extent to which the applicant was legally advised in respect of his application for extension of time and leave to appeal. Plainly he undertook those steps himself. He was, however, legally represented at the time.

62    What there is no doubt about is that he was legally represented as of 1 February 2017 and immediately afterwards, as a result of which the consent judgment in the principal proceeding was entered.

63    There may be said to be some difficulties in those circumstances in the applicant now seeking to appeal against the interlocutory decision on the preliminary point.

64    That matter aside, however, I am not satisfied, in any event, that the decision of the primary judge is attended with that degree of doubt that should result in the applicant being granted leave to appeal from that decision.

65    While the applicant would seek to add an amended third ground to an appeal challenging the manner in which the primary judge used the evidence of Mr Crighton, in my view, any such challenge would be bound to fail. On any view, Mr Crighton’s evidence was as to the prospective position in relation to the repatriation of the applicant to Pakistan. The applicant would appear to wish to rely on events that have happened since that evidence was given in an attempt to falsify it. That would, however, be an impermissible way of seeking to challenge a judicial judgment made in the past, reliant on the evidence then given. Plainly, Mr Crighton’s evidence was about what the Secretary believed would happen as of that date.

66    There was ample evidence before the Court to fully justify the decision of the primary judge that the Secretary wished to meet the obligation imposed by s 198 and to facilitate the removal of the applicant from Australia to Pakistan.

67    The reason that could not be achieved at that time was that Pakistan had not facilitated the entry of the applicant into Pakistan. There was every good reason to believe that there was merely a delay and that there would, in the future, at an appropriate time when Pakistan issued the relevant documents, be a removal.

68    As to the applicant’s stated desire to be removed to some other third country, as the primary judge observed there was no particularisation to that initial demand or request and no reason why it should be considered that the Secretary was in default of the exercise of duty on account of that consideration.

69    There is no doubt that in cases such as the present, an applicant finds himself in a most difficult situation. This must be considered regrettable as a matter of implementation of the law, however, on the existing authorities of Al-Kateb there appears to be no real alternative to the continued detention of the applicant prior to his eventual removal to Pakistan.

70    That is not to say, however, that, depending on how matters develop, the applicant may not possibly have some other legal recourse in relation to his continued detention.

71    However, for present purposes, the application before the Court should be dismissed with costs.

Orders

72    The Court orders:

(1)    The application be dismissed.

(2)    The applicant pay the respondent’s costs, to be assessed if not otherwise agreed.f

Associate:

Dated:    4 May 2017