Federal Court of Australia

Arthur as litigation representative for CYG20 v Commonwealth of Australia [2021] FCA 259

ORDERS

THE COURT ORDERS THAT:

1.    The separate question below is answered as follows:

Have ss 189 and 196 of the Migration Act 1958 (Cth) authorised the detention of the applicant since 4 September 2019, and if “yes” as to part only of that period then as to which part or parts?

    Answer:

Yes, as to the entirety of the period from 4 September 2019 to 2 October 2020.

2.    Subject to either party asking to have the matter relisted within 7 days hereof, the originating application filed on 29 May 2020 be dismissed.

3.    The applicant pay the respondent’s costs of the separate question as agreed or taxed.

4.    Subject to either party asking to have the matter relisted within 7 days hereof, the applicant pay the respondent’s costs of the substantive proceeding as agreed or taxed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    This proceeding is one of a series of recent cases in which persons who have or are being held in immigration detention claim that part or all of the period of their detention is unlawful. Many of those cases rely upon AJL20 v Commonwealth of Australia [2020] FCA 1305. The High Court will hear an appeal from that decision on 13 April 2021. Part of the Commonwealth’s response in the current proceeding is that Bromberg J’s decision in AJL20 is plainly wrong and should not be followed.

2    In the present proceeding, the Court is asked to hear and determine separately from any other questions the following question:

Have ss 189 and 196 of the Migration Act 1958 (Cth) authorised the detention of the applicant since 4 September 2019, and if “yes” as to part only of that period then as to which part or parts?

3    For reasons which will be explained shortly, for the purpose of the separate question the parties agree that the maximum relevant period of immigration detention in respect of the applicant’s claim of unlawful detention is the period from 4 September 2019 to 2 October 2020.

Summary of background facts

4    When he was 16 years old, the applicant arrived in Australia by boat on or about 25 August 2013 accompanied by his mother. The applicant’s mother was born in Baghdad, Iraq. The applicant and his mother were detained under s 189 of the Migration Act 1958 (Cth) (Act). The applicant was kept in immigration detention during the period from 25 August 2013 to 2 October 2020. His immigration detention ended on 2 October 2020 when he was transferred to criminal detention after he was charged with several criminal offences.

5    In his originating application filed on 29 May 2020, the applicant seeks damages (including aggravated and exemplary damages) in respect of the alleged unlawful immigration detention.

6    It is evident that the applicant has been held in immigration detention for a significant period, being in excess of seven years (most of which has been taken up with processes relating to the applicant’s applications for a protection visa and/or related Court proceedings, in which the applicant has enjoyed some success). Such a long period of detention is a matter of major concern. All the more so in the applicant’s case because it appears to be common ground that he suffers from various mental health conditions and his intellectual abilities are in the low range. That is why the Court made an order appointing Sister Brigid Arthur as the applicant’s litigation representative.

7    The applicant is a stateless Faili Kurd, who was born in Iran. On 31 March 2016, he was included as a dependant in his mother’s application for a Safe Haven Enterprise (subclass 790) visa (Protection Visa). On 20 June 2016, the Minister’s delegate refused that application. The application was referred to the Immigration Assessment Authority (IAA) which, on 11 July 2016, remitted the delegate’s decision back to the Minister with a direction that the applicant is a refugee within the meaning of s 5H(1) of the Act.

8    The IAA found that the applicant was born in Iran and this was his country of formal habitual residence. The IAA described Iran as “the receiving country” for the purpose of the Act. The IAA also found that the applicant had a well-founded fear of serious harm amounting to persecution if he were to return to Iran, taking into account that unregistered Faili Kurds “do not generally have access to services including healthcare and education”. It concluded that discrimination “involves systematic and discriminatory conduct because it results from laws and policies specifically aimed at the particular social group of which they are members, but which would impact particularly harshly on them because of their particular circumstances”. The IAA added at [45] of its reasons for decision:

In this regard, I also note that in the SHEV application the applicant stated that her son had experienced bullying and physical violence directed at him because of his behavioural problems, learning disability and because he is a Faili Kurd. As noted above, DFAT assesses that societal discrimination against Faili Kurds, including being targeted for extortion or subject to harassment, detention or physical assault, is not widespread but cannot be ruled out in individual cases. Based on this information and the applicant’s evidence about the past experiences of the second named applicant, I consider that there is a very real possibility, given the second named applicant’s combination of vulnerabilities, that he may be subject to mistreatment of this kind in Iran. I am satisfied that there is a real chance that he would be subjected to significant physical ill-treatment or harassment constituting serious harm, directed at him for the essential and significant reason of his membership of the particular social group “unregistered Faili Kurds”.

9    The relevant period for which the applicant was in immigration detention and which is the subject of the present proceeding commenced on 4 September 2019 (when his Protection Visa application was refused once again) and ended on 2 October 2020 (when the applicant was taken into police custody and charged with several criminal offences relating to the use of a carriage service to menace/harass/offend). .

10    The applicant did not dispute that the purpose for which he was being detained during the relevant period of immigration detention was related to the obligation of a Commonwealth officer under s 198(6) to remove the applicant “as soon as reasonably practicable”. One of the primary issues for determination is whether there was a failure by the Commonwealth to pursue or carry into effect the applicant’s removal from Australia “as soon as reasonably practicable” as required by s 198 of the Act. Any such failure might constitute a departure from the permissible purpose of the detention and render the applicant’s detention unlawful for some or all of the relevant period of his immigration detention.

11    I will defer stating my findings in respect of the relevant steps taken by the Commonwealth in relation to the applicant during the maximum relevant period.

12    It is desirable to first outline the relevant legislative provisions and then summarise the relevant findings and analysis in AJL20.

The relevant legislative provisions

13    Division 7 of Pt 2 of the Act provides for the detention of unlawful non-citizens. There is no dispute that the applicant was an unlawful non-citizen from the date he arrived in Australia and up until 2 October 2020, when he was taken into police custody. Shortly thereafter, on 8 October 2020, he was granted a bridging visa covering his period in non-immigration detention.

14    Division 8 of the Act provides for the removal of unlawful non-citizens. The key relevant provisions in this regard are as follows:

189    Detention of unlawful non-citizens

(1)    If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

…

196    Duration of detention

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)    he or she is removed from Australia under section 198 or 199; or

(aa)    an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)    he or she is deported under section 200; or

(c)    he or she is granted a visa.

(2)    To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.

(3)    To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.

(4)    Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.

(4A)    Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.

(5)    To avoid doubt, subsection (4) or (4A) applies:

(a)    whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and

(b)    whether or not a visa decision relating to the person detained is, or may be, unlawful.

(5A)    Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.

(6)    This section has effect despite any other law.

(7)    In this section:

"visa decision" means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).

197C    Australia’s non-refoulement obligations irrelevant 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.

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.

…

15    Mention should also be made of some relevant definitions. The term “detain” is defined in s 5 as follows:

(a)    take into immigration detention; or

(b)    keep, or cause to be kept, in immigration detention;

and includes taking such action and using such force as are reasonably necessary to do so.

Note:    This definition extends to persons covered by residence determinations (see section 197AC).

16    The term “unlawful non-citizen” is defined in s 14, but it is unnecessary to set it out because there is no contest that the applicant was an unlawful non-citizen at all relevant times.

17    It might be noted, however, that the word “remove” is defined in s 5 as “remove from Australia”.

AJL20 summarised

18    AJL20 involved two proceedings brought by the applicant. The applicant complained in both proceedings that he had been unlawfully detained. He sought damages for false imprisonment in one proceeding and an order seeking his release from detention in the other. His claim of unlawful detention was for the period commencing on 26 July 2019 up until the date of Bromberg J’s judgment (11 September 2020). The applicant is a citizen of Syria. His mother immigrated to Australia in around 1996. In around May 2005, the applicant was granted a Child (Class AH) (Subclass 101) visa and arrived in Australia. His visa was cancelled on 2 October 2014 under s 501(2) of the Act. He was taken into immigration detention on 8 October 2014 and remained there from that time.

19    Justice Bromberg’s reasons for judgment contain a detailed analysis of relevant case law, including Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476; Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322; Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219; ASP15 v Commonwealth [2016] FCAFC 145; 248 FCR 372 and Plaintiff M96A/2016 v Commonwealth [2017] HCA 16; 261 CLR 582.

20    Justice Bromberg explained at [38] ff why he rejected the Commonwealth’s contention that although s 198 imposed a statutory obligation to bring about removal as soon as reasonably practicable, that requirement was not reflective of any constitutional limitation, as well as the Commonwealth’s alternative contention that there was no temporal restraint referrable to the purpose of the detention imposed by Ch III of the Constitution on laws providing for administrative detention. His Honour held that ss 196 and 198 “must be read together”, with the consequence that “the latter imposed a condition on the operation of the former” (see at [48]). His Honour explained why he did not accept the Commonwealth’s claim that the Act authorises the continued detention of a person until the event of removal is effected, irrespective of whether the purpose of removal is in fact being pursued (see at [75]).

21    Justice Bromberg held that the proper construction of ss 189, 196 and 198 of the Act was such that upon engagement of the duty imposed by s 198(6) for an officer to remove an unlawful non-citizen as soon as reasonably practicable, the relevant person’s continued detention could only be lawful if it was for one of the following purposes:

(a)    removing the person from Australia;

(b)    receiving, investigating and determining an application for a visa by the person to enter and remain in Australia;

(c)    determining whether to permit the person to make a valid application for a visa; or

(d)    determining whether to grant the person a visa without an application by him or her.

22    Other relevant findings by Bromberg J include:

(a)    The detention must be for a permissible purpose and departure from the purpose of detention is “the marker of unlawfulness” (at [78]).

(b)    The purpose of, or for, the detention “is assessed objectively by reference to all the circumstances” and the motives or intentions of relevant public officers are not relevant (at [79], citing M96A at [22] per Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ).

(c)    Following Plaintiff S4, the relevant inquiry for determining whether there has been a departure from the permissible purpose of the applicant’s detention is whether the removal of the applicant from Australia has been “undertaken” or has been “carried into effect” as soon as reasonably practicable, which requires an objective assessment to be made of all relevant circumstances, including the steps in pursuance of removal which have been taken as well as those steps which were reasonably practicable but were not taken. His Honour observed that “[P]erfection is not required, but whether reasonably practical steps to pursue removal were or were not taken will be relevant” (at [89]).

(d)    In making that assessment it is necessary to bear in mind that removal from Australia is not country-specific, with a consequence that in assessing whether there is an active pursuit of removal, the scope of that pursuit is not confined to the country of destination that the officer effectuating the removal under s 198(6) may have chosen (at [90]).

(e)    The Commonwealth bears the onus of proof as to whether the applicant’s detention is lawful (at [91]).

23    Significantly, Bromberg J acknowledged that a broad view had to be taken of matters relating to:

(a)    the reasonableness of the Commonwealth’s steps;

(b)    the failure to take any steps when reasonable; and

(c)    whether practicable steps for effectuating a detainee’s removal from Australia were available (at [127] and [170]).

24    Consistently with that approach, in an important passage upon which the Commonwealth placed heavy reliance in the present proceeding, Bromberg J said at [116]:

The absence of any or sufficient steps being taken to progress removal over a period of detention will not necessarily demonstrate that removal of the detainee from Australia was not undertaken or carried into effect as soon as reasonably practicable. As Hayne J noted in Al‑Kateb at [226]-[228] the removal of a non‑citizen from Australia will ordinarily require the cooperation of other countries to effectuate that removal. There may be delays or obstacles to the timely removal of a detainee caused by circumstances beyond the control of Australia which bring about inaction or cause the absence of active steps to progress removal. There may be other justifications for inaction or delayed action which will serve to deny the conclusion that the removal of the non-citizen was not undertaken or carried into effect as soon as reasonably practicable.

The Commonwealth’s evidence summarised

25    The Commonwealth read 15 affidavits. There was also an agreed Tender Bundle (Exhibit A1). The relevant parts of the evidence may be summarised as follows.

26    Mr Ulysses Salting Prescilla is a Detention Status Resolution Officer (DSRO) at Villawood Immigration Detention Centre (VIDC). Mr Prescilla described the role of a DSRO as including:

(a)    conducting an initial interview to see if a detainee wants to apply for a visa or be removed. If the detainee wishes to be removed, the detainee is referred to the “removals team”;

(b)    conducting a monthly meeting with the detainee for case reviews;

(c)    regularly reviewing at each case review the status of the detainee, such as whether the detainee remains an unlawful non-citizen and facilitating the release of the detainee if he or she is granted a visa or where detention is no longer appropriate; and

(d)    keeping case notes on interactions with detainees.

27    Mr Prescilla further explained that a case review occurs approximately monthly. The DSRO records a summary of the detainee’s case, including confirming that the person is an unlawful non-citizen, recording progression towards a visa or removal, noting any barriers to case progression and recording any steps that have been taken since the last case review and proposed future steps.

28    Mr Prescilla was the applicant’s DSRO from May 2017 until 13 September 2019. In other words, he was the applicant’s DSRO for only nine days during the alleged unlawful immigration detention period (4-13 September 2019). Mr Prescilla deposed that he did not complete any case reviews for the applicant on or after 4 September 2019. I accept Mr Prescilla’s evidence.

29    Mr Kamlesh Praveen Kumar is also a DSRO at VIDC. He affirmed two affidavits. He was the applicant’s DSRO from 13 September 2019 until 2 October 2020, which covers all but nine days of the alleged unlawful immigration detention period. I accept Mr Kumar’s evidence. I will summarise the main points of his evidence.

30    Mr Kumar described how records relating to detainees are stored in a record-keeping system called TRIM. He said that these records included notes of case reviews. He explained how case reviews included a summary of any barriers to case resolution, including noting information which would enable responsible persons to take further steps to assist a detainee “down a visa or removal pathway”.

31    On 22 October 2019, Mr Kumar referred the applicant’s case to NSW Removals as an “involuntary removal” because on 21 October 2019, the applicant had told him words to the effect that he did not wish to return to Iran. He deposed that he “flagged this issue for NSW Removals to address”.

32    During the time Mr Kumar was the applicant’s DSRO, he was satisfied that the applicant was an unlawful non-citizen and caused the applicant to remain in detention under 189(1) of the Act. He deposed that on 2 October 2020, the Australian Federal Police arrested the applicant and he was removed from VIDC. Mr Kumar was notified on 8 October 2020 that the applicant had been granted a Bridging Visa.

33    It is evident that Mr Kumar had only a limited involvement with the steps relating to the removal of the applicant after he referred the applicant to NSW Removals on 22 October 2019. Accordingly, it is unnecessary to say anything more about his evidence relating to that topic.

34    Ms Sharon Ann Bates is a Senior Border Force officer in NSW Removals. Her role is to plan and conduct removals of unlawful non-citizens from Australia. She deposed that on 2 July 2020, she called the applicant at VIDC and asked if he consented to being removed to Iran, and he responded with words to the effect that he did not. This was her only interaction with the applicant. I accept Ms Bates’ evidence.

35    Ms Hala Masri is an Australian Border Force Supervisor in NSW Removals. In June 2019, she was asked to move into a newly created Logistics Team which was created to manage some of the “protracted caseload”. This comprised unlawful non-citizens in Australia who were being detained in order to be removed from Australia, but were particularly difficult to remove. She deposed that the difficulties were caused because the individuals did not have valid travel documents or did not consent to being removed and were to be removed to countries which did not accept the return of people without their consent, including Iran and Iraq.

36    Ms Masri deposed that she recalled deciding in October 2019 that the applicant should form part of the protracted caseload and that his case specifically prompted a discussion she had with Ms Katarina Mihalj about the creation of a process to manage the protracted caseload within the Logistics Team. Ms Masri described a new procedure which came into effect around 19 November 2019, whereby the Logistics Team formally took carriage of persons in the protracted caseload and, every two months, allocated protracted cases to supervisors within NSW Removals for a removals discussion. Supervisors would allocate each case to a Removals Officer, who would engage the detainee for a removal discussion. She deposed that the purpose of the two monthly discussion was to ask the detainee whether they had changed their mind about consenting to their removal and to see if anything further could be done to effect their removal in the light of any changed circumstances since the previous meeting.

37    On 21 November 2019, Ms Masri emailed a supervisor in NSW Removals requesting that she allocate a Removals Officer to have a removal discussion with the applicant.

38    Ms Masri deposed that she left the Logistics Teams in February 2020 and that she has had nothing to do with the applicant’s case since. She was unable to explain why no removals conversation was scheduled with the applicant in January 2020, other than to speculate that it may have been due to staff shortages and holiday breaks. I accept Ms Masri’s evidence.

39    Ms Janet Ly is an Acting Supervisor in NSW Removals. She visited the applicant on 28 November 2019 and observed him being asked by another Removals Officer if he would sign a “Request for Removal from Australia form”, which he declined to do. Ms Ly deposed that in order to obtain a travel document from Iran or Iraq, the person would need to attend an interview with Iranian or Iraqi officials, which she considered would not be possible for the applicant, because he would not sign a Request for Removal from Australia form. I accept Ms Ly’s evidence. It is corroborated by an internal document dated 24 March 2020 with the letterhead of the Australian Border Force, which is titled by the respondent as “NSW Trace Iraq – Travel Document Application Process”. That document states that in the case of an involuntary removal, advice had been received from “Removal CO” on 29 January 2019 that involuntary removals “cannot progress” to Iraq. The document also states that for “involuntary Iraqi removals, we cannot approach the Iraqi Consulate to obtain a travel document. They will not issue a travel document to an involuntary detainee” (emphasis in original).

40    Mr Shahbaz Arnold Akbari is a Removals Officer in NSW Removals. He deposed that he met with the applicant on 26 August 2020 for the purpose of a removal conversation. The applicant told him he did not consent to being removed to Iran or Iraq, that he would not speak with Iranian or Iraqi officials and that he would not consider leaving Australia for a third country. I accept Mr Akbari’s evidence.

41    Ms Allison Dee is the Acting Superintendent of NSW Removals. She affirmed two affidavits. I accept Ms Dee’s evidence and will now summarise the primary relevant points. In her first affidavit, Ms Dee described the establishment and function of a new team called the “Logistics Team”, which was created in July 2019. She described the function of the Logistics Team as “to co-ordinate various administrative functions relating to removals, such as supporting the organisation of charter flights and responding to queries from the Department’s Canberra office”. Another of its functions was to co-ordinate the “protracted caseload”. Ms Dee described various staff changes within the Logistics Team in the period July 2019 to 15 June 2020.

42    Later in her first affidavit, Ms Dee gave further details regarding the “protracted caseload”, which included the applicant. She described how in late 2019 it was decided to provide “greater accountability” for protracted cases by the Logistics Team by co-ordinating discussions between removal officers and detainees in the protracted caseload every two months. These two-monthly reviews were in addition to the monthly case reviews conducted by DSROs.

43    The new procedure was described in an email dated 19 November 2019, a copy of which was attached to Ms Dee’s first affidavit. The new procedure required:

(a)    individuals forming part of the protracted caseload to be allocated an indicator (i.e. by using the code [8.1] in the Client, Case Management and Detention portal (CCMD));

(b)    the creation of an allocation spreadsheet, allocating each protracted case to a member of the Logistics Team;

(c)    the officers in the Logistics Team to allocate their protracted removal cases to a supervisor within NSW Removals every two months; and

(d)    the supervisor would then allocate each case to a Removals Officer, who would conduct a removal discussion with the detainee with a view to ascertaining whether the detainee would consent to his or her removal.

44    Ms Dee deposed that, based on her review of the CCMD, the applicant had removal discussions with Removal Officers on 28 November 2019, 2 July 2020 and 26 August 2020. Two-monthly reviews were not carried out in the applicant’s case in January, March or May 2020. Ms Dee deposed that she did not know why the applicant’s case was not allocated to a Removals Officer for a removal discussion as it should have been in those months.

45    It is desirable to set out [17] of Ms Dee’s first affidavit (to which no objection was taken), which records her belief as to why the two-monthly reviews did not occur in those months:

17.    In my opinion, the cessation of the two-monthly reviews is likely to be explained by difficulties caused by the COVID-19 pandemic. As part of my role as Acting Superintendent, I am aware that:

17.1.    Since March 2020, members of the Logistics Team have been working remotely. The Logistics Team initially attempted this on a rotating basis with some officers coming in from time to time. Currently, each team member comes in every second day, however this is applied flexibly.

17.2.    Prior to the pandemic, removals interviews were generally conducted by Removal Officers in person. Those in person interviews ceased on around March 2020, when all contact with detainees was ceased due to the pandemic, to ensure a COVID-safe detention centre. In keeping with this, Removal Officers commenced phone interviews, and non-contact face to face interviews, where appropriate, in the detention centre.

17.3.    Further, since March 2020, the Department has had difficulties with progressing removals generally. The Department has been unable to progress escorted removals. Further, non-escorted removals remain challenging because it is difficult for the Department to secure seats on commercial flights, and there are frequent cancellations when we do secure those seats. To address this, over the past few months, Removals Headquarters with the support of NSW Removals, including the Logistics Team have been trying to arrange charter flights to progress removals, and have been successful in arranging charter flights to New Zealand, England, and Vietnam.

46    In her second affidavit, Ms Dee deposed that the applicant requires a security escort in order to be removed from Australia by reason of the Aviation Transport Security Regulations 2005 (Cth) (see reg 4.75). This was not contested.

47    Ms Sally Myee Davis is an Inspector in the Commercial Transfers and Charters Team, Field Operations Branch, Enforcement Command in the Australia Border Force. From 17 January 2020 until 24 August 2020, Ms Davis was the Acting Superintendent of Removal Operations HQ in the Field Operations Branch. From 2016 until August 2020, Ms Davis also worked in the Travel Document and Consular Liaison Team, whose role included liaising with embassies and overseas posts to obtain travel documents and rights of entry for the purpose of removal from Australia of unlawful non-citizens. Ms Davis deposed that she personally had had no involvement in the applicant’s case.

48    Ms Davis gave evidence that the Iranian Embassy will not issue travel documents for involuntary removals. She also gave evidence as to the disruption to the Department’s ability to progress removals as a result of the COVID-19 pandemic, which had resulted in the closure of borders and the reduced frequency of commercial flights and the reduced availability of security escorts. She deposed that there had been limited commercial flights since March 2020 and that the volume of removals using commercial flights has been reduced from an average of 60 removals per week before March 2020 to about 3 to 4 removals a week since then.

49    Ms Davis said that her team could arrange charter flights to remove individuals from Australia, although this was relatively rare prior to the pandemic. She explained that during the pandemic, because of the non-availability of commercial flights, she had arranged a number of charter flights to remove unlawful non-citizens from Australia to countries including New Zealand, the United Kingdom, Vietnam and Italy. She said that she had not organised any charter flights to Iran and that it would not be practicable to do so because Iran does not accept involuntary removals. I accept Ms Davis’s evidence. Her evidence that the Iranian Embassy will not issue travel documents for involuntary removals is consistent with an email dated 21 April 2020, in which the Commonwealth’s instructing solicitor told the applicant’s instructing solicitor, on instructions, that Iran will not issue a travel document without the applicant’s consent and an interview.

50    Mr Alistair Charles William Knight works in the International Policy Division of the Department of Home Affairs, and was previously the Director of the Middle East and Africa section. He deposed as to his efforts at progressing the issue of the removal of involuntary removals from Australia to Iran between October 2019 and March 2020, the impracticability of engagement with Iraq over the issue of involuntary removals and the disruption to the work of the International Policy Division as a result of the COVID-19 pandemic. Mr Knight described two meetings he had had with the Iranian Consul concerning involuntary removals. At the second meeting the possibility of the return of six other Iranian detainees (i.e. not the applicant) was discussed. I accept Mr Knight’s evidence.

51    Mr Tobias Luke Wright also works in the International Policy Division of the Department of Home Affairs. He was the Acting Director of the Middle East and African section between February and August 2020. He deposed as to the impact of the COVID-19 pandemic on the work of the Division, including that within weeks of starting as Acting Director his team was ordered to start working from home and that this continued to be the case until 2 August 2020 when he ceased in his acting role. Mr Wright did not give any evidence regarding the applicant personally. I accept Mr Wright’s evidence.

52    Mr Scott Dalgleish is a Complex Identity Advice Analyst in the National Resilience and Cyber Security Group within the Department of Home Affairs. He said that on 4 September 2020, the applicant was referred to him for an identity assessment and that as at 11 December 2020, he was still completing that assessment. Mr Dalgleish deposed that the length of time required to complete an identity assessment depends upon the complexity of the case and could take as little as four weeks and as long as approximately 12 months. I accept Mr Dalgleish’s evidence.

53    Mr Jason Gillard is the Assistant Director in the Status Resolution, Returns and Removals Policy Section (Section) of the Immigration and Settlement Services Group within the Department of Home Affairs. He described how the Section has policy responsibility for the “status resolution framework”, which he said governs the management of non-citizens’ immigration status from arrival, to either a visa outcome or departure from Australia. He said that he had had no involvement in the applicant’s case, nor any personal knowledge of his circumstances.

54    Mr Gillard said that his section is responsible for setting the policies around the removal of unlawful non-citizens from Australia, including assisted voluntary returns and other assistance given for unlawful non-citizens to depart Australia. He said that the Section develops options for returning unlawful non-citizens to foreign countries by engaging in Australia’s international networks on removal policy issues.

55    Mr Gillard said that the Department has a policy of not removing unlawful non-citizens to countries to which they do not have a right of residency and long-term stay and that this policy has been in place since at least 2014. He said that the Department asked unlawful non-citizens in detention questions about their links to other countries so as to determine whether there are third countries to which the person could be returned. He said that, based on his experience, the Department does not engage with any other third countries, where there is not an identified family link or request by the unlawful non-citizen to be removed there. He said that to do so would impose “a significant administrative burden on the Department with little prospect of any practical result”. He said that the Department focuses its attention on progressing the removal of unlawful non-citizens to countries to which they have an identified connection where there is a reasonable prospect of a successful removal.

56    Mr Gillard was the only witness who was cross-examined by the applicant. It emerged that he had had no experience in relation to the removal of stateless unlawful non-citizens and his experience with removing refugees was also quite limited. He candidly acknowledged that he was not aware that the applicant was both stateless and had been found to be a refugee. When Mr Gillard was asked whether the Department had a policy regarding the removal of stateless persons, he said “the standard protocol”, but that statelessness would create “a lot more complications” because it would be difficult to locate a country to which a stateless person could be returned.

57    When Mr Gillard was asked what the Department’s process was in removing a detainee who lacked the mental capacity to give informed consent to removal, he said that this “is very complex situation” and he could not say what the process was. He said that it would be quite a rare situation and that he had not come across it, so he would need to take advice.

58    I accept Mr Gillard’s evidence, noting his frank acknowledgment that he was not in a position to answer some of the questions put to him in cross-examination.

59    Mr Matthew Luke Franklin is a Federal Agent in the Australian Federal Police Force (AFP). He described the applicant’s arrest on 2 October 2020 and his transfer of custody on that day from Australia Border Force to the AFP. An objection to all of Mr Franklin’s affidavit on the grounds of relevancy was refused. This was because I considered that the affidavit was relevant to parts of the Commonwealth’s amended defence and related to the Commonwealth’s claim that the applicant ceased to be in immigration detention from 2 October 2020. I accept Mr Franklin’s evidence.

The Commonwealth’s case summarised

60    The Commonwealth’s case was presented on alternative bases. The first basis assumed that Bromberg J’s approach in AJL20 was followed by the Court in the present proceeding, with the consequence that the Court needed to determine, for the purposes of the separate question, whether the Commonwealth had taken reasonable steps directed to achieving the permissible purpose of removing the applicant from Australia during the period 4 September 2019 to 2 October 2020. The Commonwealth submitted that if the Court found in its favour on that matter, the separate question should be answered “yes”.

61    The second basis only arose if the Court determined that the Commonwealth failed to demonstrate that it had taken such reasonable steps during the relevant period. In that event the Commonwealth contended that AJL20 is plainly wrong and should not be followed by the Court.

62    Reflecting the alternative ways in which the Commonwealth put its case, I will now summarise its contentions on both matters.

(a) The findings of fact sought by the Commonwealth

63    In its outline of written submissions, the Commonwealth asked the Court to make the following findings based on the evidence outlined above.

64    First, the purpose for which the applicant was detained between 4 September 2019 and 2 October 2020 was for him to be removed from Australia.

65    Secondly, active steps were being taken to remove the applicant from 4 September 2019 until March 2020, by way of the Department engaging with the Iranian Embassy to progress the issue of the return of involuntary detainees.

66    Thirdly, between March 2020 and 2 October 2020, it was not reasonably practicable to remove the applicant from Australia due to:

(a)    his unwillingness to sign a Request for Removal from Australia form in order to obtain a travel document; and

(b)    difficulties arising from the COVID-19 pandemic (particularly as to the removal of involuntary detainees who required security escorts).

67    Fourthly, from September 2020 to October 2020, efforts were made to investigate the applicant’s identity, in order to determine whether he had a right of return to another country.

68    Fifthly, from 2 October 2020, the applicant has no longer been detained by the Commonwealth in immigration detention (as a result of his being charged with criminal offences, denied bail, and being granted a bridging visa).

69    Sixthly, at all times during the period from 4 September 2019 until 2 October 2020, an officer knew or reasonably suspected the applicant to be an unlawful non-citizen, and it was therefore necessary for him to be detained under ss 189(1) and 196(1) of the Act.

70    The Commonwealth said that AJL20 is distinguishable. That is because it contended that the affidavit evidence summarised above established that the Commonwealth was taking active steps during the relevant immigration period to:

(a)    progress the issue of involuntary removals with the Iranian government; and

(b)    identify options other than Iraq or Iran for the applicant’s removal,

which it said demonstrated that the purpose of the applicant’s detention was for him to be removed.

71    The Commonwealth also relied upon evidence which it said established that it was not reasonably practicable to remove the applicant from Australia from March 2020 because of the COVID-19 pandemic.

72    The Commonwealth drew attention to the fact that in AJL20 Bromberg J stated at [127] and [170] that a “broad view” should be taken about the reasonableness of a course of action adopted to pursue a removal as soon as reasonably practicable. As noted, the Commonwealth placed heavy reliance on what Bromberg J said at [116] of AJL20, which is set out at [24] above.

73    In oral address, the Commonwealth asked the Court to make additional findings based on the evidence. Rather than adding unduly to the length of these reasons for judgment, I will not summarise those additional findings here but will address them later in these reasons for judgment.

(b) The Commonwealth’s claim that AJL20 is plainly wrong

74    As noted above, the Commonwealth contended, in the alternative, that AJL20 is plainly wrong and should not be followed. This alternative argument is based on the following propositions.

75    First, his Honour erred in finding that there was a “departure from the requisite removal purpose” solely because there was non-compliance with the duty in s 198 of the Act. Bromberg J’s reasoning misreads Plaintiff S4 at [34]. The High Court was there making an observation based on the facts and issues in the case before it, in terms directed to a finding that it was not open to the Minister, at his discretion, to delay processes that would lead to one of the events in s 196. The High Court was not suggesting that a failure to discharge the duty to remove as soon as reasonably practicable results in there being no lawful purpose for detention. That was not in issue in the case, and was not the subject of any argument or finding.

76    Secondly, the purpose of detention under the Act is not determined by the Executive but rather specified by the Parliament and given effect through the intersecting duties in ss 189, 196 and 198. A failure by an officer to comply with a statutory duty imposed by the Parliament with respect to an unlawful non-citizen is incapable of overriding or altering the purpose of detention specified by the Parliament. If there has been a departure from those statutory purposes, performance of them may be required. By way of analogy, in Wotton v Queensland [2012] HCA 2; 246 CLR 1 at [22]-[23], a majority of the High Court accepted that where a statute complies with a constitutional limitation (in that case, the freedom of political communication), then a complaint respecting the exercise of power thereunder raises only a question of the exercise of statutory power to be corrected by way of judicial review. It did not (and does not here) operate to deny the legislation’s operation according to its terms.

77    Thirdly, Bromberg J relied upon what he described as the “seminal holding” in Lim, namely, that provisions of the Act which then authorised mandatory detention were valid if “the detention which those laws required and authorised was limited to what was reasonably capable of being seen as necessary for the purposes of deportation or to enable an application or permission to enter and remain in Australia to be made in considered” (as summarised in Plaintiff S4 at [26]).

78    On its own terms, however, it submitted that this “seminal holding” does not require the conclusion that ongoing detention becomes “unlawful” and entitles a detainee either to be released into the community or seek damages for false imprisonment. Rather, detention of an unlawful non-citizen is constitutionally permissible, and required by the terms of the Act, for as long as it takes to consider the grant to the person of permission to remain in Australia, and if permission is not granted, to remove the person. The Act does not infringe the relevant constitutional limit because removal must be pursued as soon as reasonably practicable, and the end-point of detention therefore cannot be delayed at the discretion of the Executive. Discharge of the duty to remove (which, relevantly to this case, brings to an end the period of detention) can be enforced by mandamus; and detention is necessary for that purpose until removal is affected. The Commonwealth submitted that the point can be seen in this way: Bromberg J said that the Commonwealth could not re-detain AJL20 upon his release. Without being able to detain him, it is not at all apparent how his removal is now to be effected (unless he were to voluntarily submit to removal).

79    Fourthly, Bromberg J’s reliance on various observations in Plaintiff M76, Plaintiff S4 and Plaintiff M96A is misplaced. The Commonwealth accepted that both ss 189 and 196 are constrained by the limitations imposed by Ch III, and must be read with s 198. However, it submitted that it does not follow that detention is not authorised. Rather, the importance placed on s 198 by the Court in Plaintiff S4 (at [23]) in ensuring constitutional validity tends to suggest that if there has been non-compliance with s 198 then the appropriate course is to enforce compliance. Until there has been compliance, the task to which detention was incidental has not been discharged, and the Act itself supplies the end-point of detention by requiring the task to be performed.

80    Fifthly, contrary to the reasons of Bromberg J, the judgment of Hayne J in Al-Kateb in terms recognised that an unlawful non-citizen was required to be detained until an event in s 196(1) occurred: “the detention of a non-citizen is to end only upon that person’s removal or deportation from Australia or upon the person obtaining a visa” (at [210]).

81    Sixthly, the Commonwealth submitted that one matter which indicated that Bromberg J’s decision in AJL20 was plainly wrong, is the fact that Bromberg J ordered the release of AJL20 forthwith notwithstanding the terms of s 196(3) of the Act, to which his Honour made no reference even though it was drawn to his attention in oral address. While the applicant here does not seek immediate release, the lawfulness or otherwise of his detention must be coextensive with his ability to obtain release by Court order.

82    Section 196(3) expressly prohibits the release of the applicant into the community. The Commonwealth submitted that the only way that a Court can order that a person be released into the community in the face of s 196(3) is if that provision is invalid or if it is read down. The Commonwealth acknowledged that in Al-Kateb Gleeson CJ and Gummow J proposed reading down the provision so that it only applied to “lawful detention”. But it submitted that these views did not command majority support, and are inconsistent with McHugh J in the majority in Al-Kateb at [35], and the views of Crennan J in Plaintiff M168/10 v Commonwealth [2011] HCA 25; 85 ALJR 790 at [35], Keane J in Kanhalingam v Minister for Home Affairs [2020] HCATrans 122 and Edelman J in Kazemi v Minister for Home Affairs [2020] HCATrans 124.

83    Moreover, the Commonwealth contended that Gummow J’s dictum in Al-Kateb overlooked that s 196(3) is unlike the provision read down or held invalid in Lim (s 54R). Section 54R provided that “[a] court is not to order the release from custody of a designated person” in a context where s 54L treated removal as a species of release (such that s 54R in terms prohibited removal), and where it was clearly possible for circumstances to arise where a “designated person” was entitled not to be detained. Section 196(3) does not do that. It explicitly contemplates that a court might order “release” for the purpose of s 196(1), being removal. And meanwhile, every “unlawful non-citizen” (as defined in s 13) is required by the terms of ss 189 and 196 to be and remain detained. Subsection 196(3) therefore does not require reading down.

84    The Commonwealth submitted that the doubts expressed by Gleeson CJ and Gummow J in Al-Kateb (noting also that Mortimer J cited Gleeson CJ in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 385 ALR 405 at [219]-[220]) arose in circumstances which are distinguishable from the present case. Gleeson CJ and Gummow J did not consider that s 196(3) prevented release in circumstances where achievement of removal under s 198 was not reasonably practicable in the foreseeable future. Justice Mortimer was considering a case where it had not been shown to the requisite standard that an officer believed the person not to be an Australian Aboriginal, such that her Honour effectively held that s 196(3) did not prevent release of a person who was not shown to be an unlawful non-citizen. That is in keeping with s 196(2), which makes it clear that s 196(1) is not intended to cause a citizen or lawful non-citizen to be kept in detention.

85    The Commonwealth submitted that if there be unreasonable delay in complying with the obligation in s 198, it should be remedied by an order in the nature of mandamus compelling compliance with s 198, not a finding that the detention was unlawful. The Commonwealth adopted what the Full Court said in ASP15 at [42] in the context of a failure to determine a visa application as soon as reasonably practicable:

… In the case of detention pending a visa decision, failure to do so within the required time renders the Minister liable to the issue of a writ of mandamus to compel him or her to perform their statutory duty. However it does not render invalid the provision which authorises detention in the first place. So long as the Migration Act validly continues to authorise detention, there can be no claim for false imprisonment or habeas corpus.

The applicant’s case summarised

86    Perhaps reflecting the fact that the Commonwealth carried the onus of establishing the lawfulness of the applicant’s detention, the applicant did not himself adduce any affidavit evidence. As noted above, only one of the Commonwealth’s witnesses was cross-examined. The applicant did not raise any objection to the extensive documentary evidence which was included in the Tender Bundle (Exhibit A1).

87    It is convenient to summarise the applicant’s case with reference to the alternative arguments advanced by the Commonwealth.

(a) Commonwealth’s actions relating to the applicant’s removal from Australia

88    The applicant contended that there was non-compliance with s 198 of the Act from 4 September 2019 to 2 October 2020, relying upon the following primary submissions.

89    First, the Commonwealth’s duty to remove the applicant under s 198(6) was engaged when the applicant’s application for a protection visa was refused on 4 September 2019, noting that the applicant was no longer entitled to make any further visa applications under the Act.

90    Secondly, after 4 September 2019, there was no reasonable possibility of the applicant being granted a substantive visa as the result of the Minister favourably exercising any of his relevant non-compellable visa-granting powers, given the applicant’s past criminal offending.

91    Thirdly, given that the applicant was found by the IAA to be a stateless person, the Commonwealth knew or ought to have known that there was little or no reasonable possibility of removing the applicant from Australia to another country. The applicant added that although an identity assessment of him had commenced in September 2020 (based on his brother having submitted an Iranian driver’s licence as part of his application for Australian citizenship), there was no explanation why that identity assessment had not commenced earlier. Furthermore, the applicant submitted that it is expected that the outcome of the identity investigation will be inconclusive given that the Iranian driver’s licence did not belong to him.

92    Fourthly, merely because the applicant had withheld his consent to voluntarily being removed to either Iran or Iraq did not absolve the Commonwealth of its obligation to remove him from Australia as soon as reasonably practicable, citing Al-Kateb at [227] per Hayne J. This was because the duty under s 198 is to remove an unlawful non-citizen in immigration detention to any country that is willing to accept him or her. The applicant acknowledged in his outline of written submissions that the Commonwealth’s evidence indicated “that it is not reasonably practicable to remove [him] to Iran or Iraq”, but submitted that there was no evidence to suggest that the Commonwealth had taken any other steps with a view to removing the applicant to any other country that might accept him, including the possibility of him being removed to a European nation.

93    Fifthly, the applicant pointed to the evidence of Ms Davis as indicating the possibility of an escorted removal of unlawful non-citizens on chartered flights, including to countries such as New Zealand, the United Kingdom, Vietnam and Italy.

94    Finally, the applicant contended that the Commonwealth’s failure to comply with its statutory duty under s 198(6) was not excused by various personnel changes within the Department.

95    In oral address, Ms Yu (who appeared for the applicant) identified the following three periods as relevant to the determination of the separate question:

(a)    4 September 2019 to 2 October 2020 (i.e. the maximum period of alleged unlawful detention);

(b)    22 October 2019 (when the applicant was referred to the Removals Team) to 2 October 2020; and

(c)    April 2020 (when Ms Ly said that she considered the applicant’s circumstances for the purpose of progressing his removal) to 2 October 2020.

96    The applicant submitted that his mental health issues were relevant to an assessment of the weight to be given to the fact that he did not consent to being removed to any country. It was also submitted that Mr Gillard’s evidence was of little weight because his evidence was directed to the removal of unlawful non-citizens to countries where the person had a right to enter. Further, the applicant submitted that there was no evidence which indicated that the Commonwealth had taken any steps to ascertain whether New Zealand might be willing to accept him even though he would not be being removed from on-shore immigration detention.

97    As to Mr Knight’s evidence concerning discussions with an Iranian Consular official, the applicant submitted that this evidence had no application to his circumstances because the discussions related to the involuntary return of Iranian citizens and he did not have that status.

(b) Applicant’s contentions as to why AJL20 is not plainly wrong

98    The applicant contended that all the arguments now advanced by the Commonwealth concerning the correctness of AJL20 were fully considered and properly rejected by Bromberg J. (It is difficult to reconcile this contention with the uncontested claim that s 196(3) was drawn to the primary judge’s attention in oral address by both the applicant and the respondent in AJL20, but was not addressed in the reasons for judgment.)

99    Secondly, the applicant contended that the challenge to Bromberg J’s reasoning in AJL20 at [31], [34] and [77] was based on the misreading of Plaintiff S4 at [34], which the applicant said supported Bromberg J’s reasoning.

100    Thirdly, the applicant submitted that mandamus was not an appropriate remedy to compel compliance with s 198 because there was no realistic possibility that such an order would be complied with in the reasonably foreseeable future.

101    Fourthly, the applicant submitted that s 196(3) had to be read down so as to apply to a case where an unlawful non-citizen is being lawfully detained, citing Al-Kateb at [10] and [113] per Gleeson CJ and Gummow J respectively.

Consideration and determination

102    Having regard to the way Commonwealth presented its case, it is convenient first to deal with the issue whether the Commonwealth has demonstrated that it did in fact take reasonable practicable steps during the relevant period of the applicant’s immigration detention to have him removed from Australia in accordance with the obligation imposed by s 198(6), before addressing the issue whether AJL20 should not be followed because it is plainly wrong. The latter issue does not arise if the former issue is determined in the Commonwealth’s favour.

(a) Did the Commonwealth take reasonable practicable steps during the relevant period of immigration detention?

103    For the following reasons, I am satisfied on the basis of the evidence adduced by the Commonwealth that it did take reasonable practicable steps during the relevant maximum period of the allegedly unlawful immigration detention here, as well as within the two smaller sub-periods as identified at [94] above.

104    First, based on the evidence of Mr Prescilla and Mr Kumar, I find that during the entirety of maximum alleged unlawful immigration detention period, it was reasonably suspected by a Commonwealth officer that the applicant was an unlawful non-citizen, which engaged the obligation to detain him throughout that period in accordance with s 189 of the Act.

105    Secondly, I find that the purpose for which the applicant was detained during the entirety of the maximum alleged unlawful immigration detention period was for the permissible purpose of him being removed from Australia, as required by s 198(6) of the Act.

106    Thirdly, for the following reasons I find that the Commonwealth has demonstrated that sufficient reasonable practicable steps were taken throughout the entirety of the alleged maximum unlawful immigration detention period to discharge the statutory obligation imposed by s 198(6):

(a)    The objective assessment of the reasonableness of the Commonwealth’s steps or any inactivity during the relevant period must take account of the following important relevant features of the applicant’s individual circumstances:

(i)    The applicant’s statelessness and lack of any travel documents created significant practical difficulties for the Commonwealth in finding a country which would accept him, as described by Ms Davis and Mr Knight and, to a lesser extent, Mr Gillard. That is particularly so with Iran and Iraq, as is highlighted in the evidence of Ms Davis and Mr Knight, which is supported by documentary evidence as identified at [48]-[50] above.

(ii)    Those difficulties were exacerbated by the applicant’s consistent refusal throughout the relevant period to give his consent to being removed from Australia to any country, let alone Iran or Iraq.

(iii)    As to the applicant’s capacity to give informed consent to his removal from Australia, a matter which was raised in the present proceeding, I accept the Commonwealth’s submission that there is no evidence to indicate that, even if a guardian had been appointed during the alleged period of unlawful immigration detention, this may have produced a different outcome. In particular, it is most improbable that a guardian would have given consent to the applicant’s removal to either Iran or Iraq given his status as a Faili Kurd and the relevant findings of the IAA.

(iv)    It is difficult to be critical of the Commonwealth for not making direct inquiries of countries apart from Iran and Iraq as to whether they would accept the applicant given the applicant’s stated position that he would not consent to his removal to any country, and his lack of travel documents. The evidence before the Court did not indicate that any country would be willing to accept a person with these characteristics, not to mention his previous criminal record and conduct which underpinned the Minister’s latest decision to refuse him a Protection Visa.

(v)    I accept Mr Knight’s evidence of meetings he had on 30 October 2019 and 14 February 2020 with the Iranian Consul regarding involuntary removals to Iran. These discussions related to the possibility of returning six Iranian nationals who were in the off-shore detainee network and who were involuntary returns, but not the applicant himself, as Mr Knight candidly acknowledged. I accept this evidence. I also accept that, at least in Mr Knight’s own mind, those discussions were intended by him to hopefully obtain Iranian approval in relation to a smaller group of involuntary removals as a step towards Mr Knight then working to change the Iranian policy on involuntary removals more broadly. There is no reason to think that Mr Knight’s intentions were limited to the return of Iranian citizens.

(vi)    It is true that there were some intervals during the relevant period when there was no direct activity to remove the applicant from Australia, but that fact alone is not determinative. The relevant question is whether such periods of inactivity were unreasonable in the applicant’s particular circumstances. For the following reasons, I consider that they were not unreasonable. For example, there was a period of approximately two weeks prior to Mr Kumar referring the applicant to the Removals Team on 22 October 2019 when no active steps were evidently taken to remove the applicant, notwithstanding the expiration of the period within which the applicant could have commenced judicial review proceedings in relation to the Minister’s decision dated 4 September 2019. It is evident from the notes of the first case review conducted by Mr Kumar on 16 September 2019 (i.e. shortly after Mr Kumar had taken over as the applicant’s DSRO) that it was considered that the time period for commencing judicial review proceedings had not yet expired. Moreover, it was noted that the applicant was unwilling voluntarily to return to Iran. Mr Kumar conducted his second case review of the applicant on 28 October 2019 (i.e. six days after he had referred the applicant to the Removals Team). The notes of that case review record that, as at 3 October 2019, “s 195a + s 197ab referrals remain ongoing (adv from CCRS/SRSS)”. Similarly, although there was a regrettable failure to conduct two-monthly reviews of the applicant’s case in January, March and May 2020 as part of procedure described by Ms Dee for the “protracted caseload”, I consider that Ms Dee adequately explained that failure (see [43] above). It is evident that other steps were taken during this period, notwithstanding the failure to conduct two-monthly reviews, including generic steps described above concerning the position regarding involuntary removals to Iran which, even if not directed to the applicant personally, had potential implications for him depending on their outcome.

(b)    As described by Ms Masri, Ms Ly and Ms Dee, shortly after 22 October 2019 when the applicant was referred by Mr Kumar to the Removals Team, his case was assessed as one which should be included in the “protracted caseload”, which comprised removal cases with particular complexity and to whom there was a dedicated team of people. This was an appropriate management step, which was intended to have complicated and challenging cases, such as the applicant’s, dealt with by a separate team. Because of the complexities and complications relating to cases in the protracted caseload cohort, it is reasonable to expect that progress of such cases will often be more challenging and time-consuming compared with more straightforward cases.

(c)    As indicated above, I accept Ms Dee’s unchallenged reasons why she believed that there was a failure to conduct two-monthly reviews of the applicant in January, March and May 2020. Those omissions should not have occurred and if they had been accompanied by other relevant incidents, I may have taken a different view of this regrettable failure. As emphasised above, however, a broad view needs to be taken in assessing the reasonableness of the Commonwealth’s conduct.

(d)    Since at least mid-March 2020, there were very real practical difficulties presented by the COVID-19 pandemic in arranging for the applicant to be removed from Australia to any other country. These difficulties were described by Ms Davis, Ms Dee and Mr Wright, whose evidence I accept. In particular, I accept Ms Dee’s evidence that, even if it had been possible to remove the applicant to some other country during the relevant period, this could only have been done if he had a security escort because of his criminal record and the requirements of the Aviation Transport Security Regulations 2005 (Cth). These claims were not contested by the applicant in the present proceeding. I accept Ms Davis’s evidence that from mid-March 2020 all escorted removals were cancelled and that since that time no Serco escort has been used on a commercial flight. Ms Davis deposed that, as at mid-December 2020, escorted removals using Serco security guards had recommenced, but only on chartered flights. Ms Davis added that she had arranged a number of charter flights to remove unlawful non-citizens from Australia to countries such as New Zealand, the United Kingdom, Vietnam and Italy. This does not assist the applicant’s case in circumstances where the recommencement of removals on some chartered flights is outside the relevant alleged unlawful immigration period. In addition, the applicant steadfastly refused his consent to be taken to any country during that period and lacked any travel documents.

(e)    As to the applicant’s complaint that the process of assessing his identity could have commenced earlier than 4 September 2020, even if this complaint be accepted, it is difficult to see that it would have had any material bearing on the applicant’s case given his lack of travel documents and his steadfast refusal to be removed to either Iran or Iraq or, indeed, to any other country.

107    For all these reasons, and having regard to the evidence adduced by the Commonwealth, most of which was not challenged by the applicant, I accept the Commonwealth’s claim that it took reasonable practicable steps throughout the entirety of the relevant period to have the applicant removed from Australia.

108    That conclusion should not obscure the dilemmas created by s 198(6) and the related statutory provisions regarding mandatory immigration detention and removal from Australia. The applicant’s case vividly illustrates the quandary created for Commonwealth officers who, on the one hand, are statutorily obliged to remove a person such as the applicant as soon as is reasonably practicable, yet the practical reality is that such removal is effectively impossible in the foreseeable future because of matters which are beyond the Commonwealth’s control (as is the case in the present proceeding during the relevant alleged period of unlawful immigration detention). As Hayne J observed in Al-Kateb at [231], even in a case where there is no real likelihood or prospect of an unlawful non-citizen being removed in the reasonably foreseeable future, this does not mean that continued detention is not for the purpose of subsequent removal. The majority view in that case was that the obligation under s 198(6) should not be read as being subject to a narrower limitation than its words permit. Rather, the time for removal is fixed by reference to reasonable practicability and not some narrower limitation such as, for example, “within a reasonable time”.

(b) Whether AJL20 is plainly wrong

109    Having regard to the findings of fact and my conclusion that the Commonwealth has demonstrated that it took reasonable practicable steps with a view to removing the applicant from Australia with reference to each of the three periods identified by the applicant, it is unnecessary to determine whether or not I consider any aspect of Bromberg J’s central reasoning in AJL20 to be plainly wrong.

Conclusion

110    For these reasons the separate question is answered “yes” in respect of all of the period from 4 September 2019 to 2 October 2020 (including the sub-periods identified by Ms Yu). This would appear to produce the necessary consequence that the originating application filed on 29 May 2020 should be dismissed. I will make an order to that effect but also provide the parties with an opportunity to have the matter relisted if they consider that this order is inappropriate.

111    There is no evident reason why costs should not follow the event. I will make an order as to costs of both the substantive proceeding and the separate question. Again, however, either parties will have liberty to have the matter relisted if they wish to contest the order as to costs of the substantive proceeding.

Associate:

Dated: 23 March 2021