Federal Court of Australia

Tran v Commonwealth of Australia [2021] FCA 580

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application and amended statement of claim dated 21 April 2021 be filed within 7 days of the making of these orders.

2.    The amended originating application be dismissed.

3.    The applicant pay the respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

JAGOT J:

Background

1    These reasons for judgment concern Mr Tran’s application for relief in paragraphs 1 and 2 of the amended originating application provided on 21 April 2021. In those paragraphs Mr Tran seeks declarations that his detention by the Commonwealth has not been authorised by the Migration Act 1958 (Cth) (the Act) from various dates and an order that he be released from detention forthwith. Mr Tran also claims damages for false imprisonment, interest and costs, but those parts of his claim have been deferred for subsequent consideration (as necessary).

2    Mr Tran arrived in Australia in 1978 as an infant. He was granted a permanent entry permit by the respondent on 2 July 1981, which was subsequently converted to a Class BF transitional (permanent) visa on 1 September 1994 (the permanent visa). Mr Tran was convicted of a criminal offence engaging s 501(3A) of the Act. A delegate of the Minister for Home Affairs cancelled his permanent visa in June 2017. As a result, Mr Tran became an unlawful non-citizen within the meaning of the Act.

3    Mr Tran remained in custody for his criminal offence until 19 March 2018. He was then delivered into the custody of the Commonwealth through the Department of Home Affairs (the Department) and detained under s 189 of the Act. Mr Tran has remained in detention since.

4    The actions and inactions of the Department, as an agency of the Commonwealth, are taken to be the actions and inactions of the Commonwealth.

5    Mr Tran alleges that his detention became unlawful on and from five alternative dates (31 August 2018, 29 November 2018, 7 June 2019, 13 January 2020 or March 2020) on the basis that, in all of the circumstances then existing, on and from any or each of those dates, the Commonwealth was no longer detaining him for the permissible purpose of removing him from Australia as soon as reasonably practicable, as required by s 198(1) of the Act.

6    The Commonwealth, however, has proved the lawfulness of Mr Tran’s detention. As a result, his application must be dismissed.

The statutory scheme

7    It is not in dispute that Mr Tran became an unlawful non-citizen on the cancellation of his permanent visa: s 14 of the Act.

8    Section 189(1) of the Act provides that:

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.

9    It is not suggested that an officer did not reasonably suspect Mr Tran of being an unlawful non-citizen in the migration zone at all material times.

10    Section 196, as relevant, provides:

(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.

…

11    Section 198(1) 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.

12    Mr Tran made such a request in September 2018.

Construction of the statute

13    The parties agreed that unless I considered the reasons for judgment of Bromberg J in AJL20 v Commonwealth of Australia [2020] FCA 1305 to be plainly wrong I should apply his Honour’s approach to the construction of the Act as a matter of judicial comity.

14    In AJL20, Bromberg J considered that, properly construed, the provisions of the Act identified above mean that an unlawful non-citizen may only be detained for the purpose of that person’s removal from Australia as soon as reasonably practicable. Once that was no longer the purpose of the detention of the person, the person’s detention became unlawful. Accordingly, at [75] his Honour said:

… For administrative detention under the Act to be lawful it must be detention for a purpose which the Act provides for, removal from Australia being one such permissible purpose. Where there is a departure from the permissible purpose for the detention, the detention will no longer be lawful irrespective of whether one or other of the events specified in s 196(1) has in fact occurred. That is so because it is a condition of the lawfulness of a detention that the detention be for a permissible purpose.

15    In determining whether the Commonwealth’s purpose for detaining an unlawful non-citizen remained the permissible purpose of removing that person from Australia as soon as reasonably practicable, Bromberg J in AJL20 observed that:

(1)    “[c]onsistently with the unanimous view of the Court in S4 [Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219], 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. An objective assessment is 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. As Hayne J observed in Al-Kateb [Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562] at [226], the phrase “as soon as reasonably practicable” is a “compound temporal expression” which “recognises that the time by which the event is to occur is affected by considerations of what is ‘[c]apable of being put into practice, carried out in action, effected, accomplished, or done’”. The word “reasonably” in the phrase in question is important. I accept the Commonwealth’s submission that the test is not whether everything that could have been done has been done. Perfection is not required, but whether reasonably practicable steps to pursue removal were or were not taken will be relevant”: [89];

(2)    “[t]he 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”: [116];

(3)    “…the requirement to undertake or carry into effect a removal as soon as reasonably practicable includes some allowance for error to be made in the pursuance of the removal. I do not consider, however, that such an allowance would extend to unreasonable error”: [118];

(4)    “…a broad view of reasonableness may be taken…”: [127];

(5)    “…it must be firmly kept in mind that the Commonwealth bears the onus of proof. If the Commonwealth’s failure to pursue the applicant’s removal to Syria is probative of whether or not the Commonwealth had undertaken or sought to give effect to the applicant’s removal as soon as reasonably practicable, it was for the Commonwealth to demonstrate that there was no such failure”: [160]; and

(6)    “[t]here may well be room for debate as to what steps should be reasonably pursued in an endeavour to remove a detainee from Australia as soon as reasonably practicable”: [170].

16    AJL20 is subject to appeal. The appeal was heard by the High Court in April 2021. Judgment is reserved. The parties agree that in circumstances where Mr Tran continues to be detained, I should decide this matter on the basis of the cases as put rather than wait for the decision of the High Court.

17    The Commonwealth submitted that AJL20 is plainly wrong. The Commonwealth put the same submission in BHL19 v Commonwealth of Australia [2021] FCA 462 which Wigney J rejected in the context, however, of an interlocutory injunction. I agree with the Commonwealth that the fact that another judge, at first instance, has rejected the claim that AJL20 is plainly wrong (albeit on an interlocutory basis) is immaterial. I either consider AJL20 to be plainly wrong or I do not.

18    Mr Tran submitted that I would not conclude that AJL20 was plainly wrong if I considered Bromberg J’s construction to be reasonably open, which is a low threshold: Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 20; (2003) 196 ALR 52 at [36]. I prefer to say that I accept that “…where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction”: Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [76].

19    The Commonwealth submitted that AJL20 is plainly wrong as:

(1)    the text of s 196(1) of the Act is clear and intractable. Detention is to continue until one of the specified terminating events in s 196(1);

(2)    this is confirmed by s 196(3) which provides that an unlawful non-citizen may only be released from detention as a result of one of the events in s 196(1) occurring;

(3)    the scheme of the Act, including its objects in s 4, supports this construction. The statutory scheme involves three elements:

(a)    non-citizens may enter the Australian community only if they have permission (in the form of a visa) to do so, and they may remain in Australia only for so long as they have permission (again in the form of a visa) to do so;

(b)    if a non-citizen has entered Australia without permission, or no longer has permission to remain here, that non-citizen must be detained; and

(c)    the detention of a non-citizen is to end upon that person’s removal or deportation from Australia or upon the person obtaining a visa;

(4)    the combined effect of ss 189(1) and 196(1) is that a non-citizen (other than an Australian Aboriginal) can be lawfully within the Australian community only if he or she has been granted a visa: s 196(1)(c). Otherwise, he or she is an unlawful non-citizen who must be detained, and can leave immigration detention only by departing Australia by one of the means referred to in s 196(1);

(5)    S4, relied on by Bromberg J in AJL20, is not authority to the contrary. S4 stands for the proposition that the Act contains an implicit requirement to decide whether to permit a protection visa application as soon as reasonably practicable (and if permission were granted, to consider the application within a reasonable time). That is, the Commonwealth could not, at its discretion, delay the occurrence of one of the events in s 196(1) of the Act;

(6)    consistently with S4 and Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1, the duty in s 198(1) to remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed is enforceable by the writ of mandamus, but failure to comply with the duty does not make detention unlawful;

(7)    the contrary construction reached in AJL20 is the result of an incorrect elision of the task of statutory construction (which depends on the ordinary and natural meaning of the statutory text in context) and the evaluation of the Constitutional validity of the statutory provisions, inconsistently with the principles discussed in Palmer v Western Australia [2021] HCA 5 at [65], [119]-[127];

(8)    Constitutional validity of a statutory provision depends on the purpose of the statute, not the purpose of the Executive. AJL20 converts the purpose of the Executive into a condition of the lawfulness of detention which is not supported by authority; and

(9)    AJL20 does not adequately confront the fact that, on release from detention, an officer who reasonably suspects that the person is an unlawful non-citizen in the migration zone must detain the person as required by s 189(1). This anomaly results from the incorrect construction of the Act which underlies AJL20.

20    If the Commonwealth is correct, Mr Tran cannot succeed in his case. Mr Tran has not sought mandamus to require compliance with the duty in s 198(1). None of the terminating events in s 196(1) have occurred. On this basis, Mr Tran, as an unlawful non-citizen in the migration zone, has been and continues to be lawfully detained.

21    I am not persuaded that AJL20 is plainly wrong. AJL20 is arguably correct having regard to, in particular, Lim as follows:

(1)    “[w]hat initially begins as lawful custody under Div. 4B may cease to be lawful by reason of the failure of the Executive to take steps to remove a designated person from Australia in conformity with Div. 4B. Thus, a failure to remove a designated person from Australia “as soon as practicable” pursuant to s. 54P(1), after that person has asked the Minister in writing to be removed, would, in my view, deprive the Executive of legal authority to retain that person in custody”: 11-12; and

(2)    “… the two sections will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. On the other hand, if the detention which those sections require and authorize is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Ch. III's insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates”: 33.

22    In Al-Kateb Hayne J (with whom McHugh and Heydon JJ agreed on this issue) said at [224]-[225]:

The provisions requiring detention of unlawful non‑citizens do not expressly refer to the purpose of detention. Rather, s 189 requires officers to detain unlawful non‑citizens and s 196 identifies the period of detention. In this respect, however, the legislation does not differ in any fundamental respect from the provisions considered in Koon Wing Lau v Calwell [(1949) 80 CLR 533]. The War‑time Refugees Removal Act 1949 (Cth), considered in that case, provided for the deportation of aliens who had entered Australia during the Second World War. It provided (s 7(1)(a)) that a deportee might “pending his deportation and until he is placed on board a vessel for deportation from Australia” be kept in such custody as the Minister or an officer directed. Of these provisions Dixon J said [(1949) 80 CLR 533 at 581] that they “mean that a deportee may be held in custody for the purpose of fulfilling the obligation to deport him until he is placed on board the vessel” (emphasis added) and that “unless within a reasonable time [the person to be deported] is placed on board a vessel he would be entitled to his discharge on habeas”.

The present legislation, prescribing the period of detention as it does, may therefore be read as providing for detention for the purposes of processing any visa application and removal. But that does not decide the point of how long that detention may persist. It does not decide when that purpose (of detention for removal) is spent. It does not decide that the time during which a person may be detained is “a reasonable time”. Here the period of detention is governed by the requirement to effect removal “as soon as reasonably practicable”.

23    Further, at [294]-[295] in Al-Kateb, Callinan J said:

In their joint judgment in Lim, Brennan, Deane and Dawson JJ acknowledged the breadth of the aliens power as well as the lawfulness of detention for purposes other than punitive ones. In particular it was accepted there that the Parliament might make laws reasonably capable of being seen as necessary for the purposes of deportation. The yardstick, and with respect rightly so, was ‘‘purpose’’, the existence, that is the continuing existence of the relevant purpose of deportation. Nothing that was said in relation to the intrusion upon judicial power by the enactment of another provision directed to a different end alters or diminishes that.

… The fact that deportation may not be imminent, or even that no current prediction as to a date and place of it can be made, does not mean that the purpose of the detention, deportation, has been or should be regarded as abandoned. The sensitivity of international relations, the unsettled political situation in many countries, and the role and capacity of the United Nations, all contribute to the inevitable uncertainties attaching to the identification of national refuges for people who have come to this country unlawfully and who have been shown to be people to whom protection obligations are not owed. I would not import into ss 189 and 198 of the Migration Act an implication that the obligation of an officer to detain an illegal entrant ceases, or may cease, and is not to be enforced simply because it is proving, and may well prove, for some indefinite time, to be difficult to find a country that will receive him. The words ‘‘as soon as reasonably practicable’’ in s 198 of the Migration Act are intended to ensure that all reasonable means are employed to remove an illegal entrant, and not to define a period or event beyond which his detention should be deemed to be unlawful.

24    In Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322 French CJ said at [30]:

Absent her claim on Australia for protection under the Refugees Convention and the process of assessment that followed it, the plaintiff’s continuing detention would only have been lawful while steps were being taken to arrange for her removal as soon as reasonably practicable from Australia to Sri Lanka. The process of assessment provided a distinct legal underpinning for her detention pending its completion and the ministerial decision. The legal proceedings which the plaintiff has instigated in this Court to test that process for legal error must, like the process itself, be accommodated by the provisions of s 198(2). In short, subject to reasonable promptness on the part of the Minister and his officers in responding to the declaration of this Court, the plaintiff’s continuing detention is authorised.

25    In Plaintiff M76 Crennan, Bell and Gageler JJ said at [139]:

The necessity referred to in that holding in Lim is not that detention itself be necessary for the purposes of the identified administrative processes but that the period of detention be limited to the time necessarily taken in administrative processes directed to the limited purposes identified. The temporal limits and the limited purposes are connected such that the power to detain is not unconstrained. So much is clear from their Honours’ separate observations that Ch III is not contravened by laws which require or authorise the executive to detain non-citizens in custody “in the context and for the purposes of”, and in that sense as an “incident of”, processes allowing for application for, and consideration of, the grant of permission to remain in Australia, and providing for deportation or removal if permission is not granted. The common law does not recognise any executive warrant authorising arbitrary detention. A non‑citizen can therefore invoke the original jurisdiction of the Court under s 75(iii) and (v) of the Constitution in respect of any detention if and when that detention becomes unlawful. What begins as lawful custody under a valid statutory provision can cease to be so.

26    In S4, at [28], the High Court summarised Lim in these terms:

Because detention under the Act can only be for the purposes identified, the purposes must be pursued and carried into effect as soon as reasonably practicable. That conclusion follows from the purposive nature of detention under the Act. But it is a conclusion that is reinforced by consideration of the text and structure of the Act, understood against the background of fundamental principle.

27    I also note that in Snedden v Minister for Justice [2014] FCAFC 156; (2014) 230 FCR 82 at [116] this was said:

There are essentially three elements to the composite expression “as soon as is reasonably practicable”. First, the word “practicable” has the meaning of “capable of being carried out in action; feasible”: M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 (M38/2002) at [65]. It identifies that which is able to put into practice and which can be effected or accomplished: Al-Kateb v Godwin (2004) 219 CLR 562 (Al-Kateb) at [121]. Secondly, the qualification “reasonably” limits or qualifies what would otherwise be an absolute obligation: M38/2002 at [65]. It introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme: Al-Kateb at [121]. Thirdly, the phrase “as soon as” supplies a temporal element: Al-Kateb at [121]. It directs the decision-maker to make the determination without delay once it is reasonably practicable to do so: Santhirarajah [Santhirarajah v Attorney-General (Cth) (2012) 206 FCR 494] at [74]; Judgment at [24].

28    While I recognise that the statements described above are not to be viewed in isolation or divorced from the factual context of the particular cases, and are also countered by other statements in the same cases which would support the Commonwealth’s construction, they are sufficient to persuade me that AJL20 is not plainly wrong.

29    Accordingly, the case is to be resolved presuming AJL20 to be correct.

Onus of proof

30    The Commonwealth accepts that, Mr Tran having genuinely put in issue the lawfulness of his detention, the Commonwealth bears the onus of proving the lawfulness of Mr Tran’s detention.

31    For Mr Tran it was stressed that:

(1)    the issue being personal liberty, the proof required had to be “clear and cogent”: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 385 ALR 405 at [57]; and

(2)    “evidence is to be weighed according to the proof which it was in the power of one side to produce and the other to contradict”: McHugh at [60] citing Blatch v Archer (1774) 1 Cowp 63 at 65.

32    The Commonwealth did not dispute these principles.

Facts

33    The primary facts are not in dispute. The parties have prepared a comprehensive chronology which identifies the primary facts. That chronology is replicated in Schedule 1.

34    The basic fact which underlies much of what has occurred is that there is no documentary record of Mr Tran’s birth. The evidence is, variously, that he was born on a fishing vessel off the coast of Vietnam, that he was born on the boat travelling between Vietnam and Australia, or that he was born on shore in Vietnam. To date:

(1)    Mr Tran has not been recognised by Vietnam as a citizen of that country;

(2)    Vietnam has refused to provide the applicant with any travel document which would permit the applicant to enter that country, or to otherwise agree to his removal to that country; and

(3)    Mr Tran has not been removed from Australia under s 198 of the Act.

35    For the purpose of discharging its onus of proof, the Commonwealth adduced evidence from officers of the Department to prove that, at all times, it had continued to detain Mr Tran as provided for in s 189(1) of the Act and for the permissible purpose of facilitating his removal from Australia as soon as reasonably practicable as provided for in s 198(1) of the Act. It is unnecessary to give details of the witnesses. Some were cross-examined, others not. There was no challenge to the credit of any of the witnesses. There was no real dispute about the facts, as the chronology discloses. The dispute focused on the inferences that should be drawn from the facts.

Discussion

36    Mr Tran was detained as required by s 189(1) of the Act and made a written request for removal to Vietnam on 19 September 2018. He had also lodged an application for review of the refusal to revoke the cancellation of his visa with the Administrative Appeals Tribunal (the AAT). It was reasonable for the Department to enable Mr Tran’s review application to be determined before he was in fact removed to Vietnam. In any event, however, numerous steps were taken between September 2018 and November 2018 to facilitate Mr Tran’s request for removal. In that period, the steps taken disclosed issues with the verification of Mr Tran’s identity. On 29 November 2018 the AAT affirmed the delegate’s decision not to revoke the cancellation of Mr Tran’s visa.

37    For Mr Tran, it was noted that nothing apparently occurred between 23 October 2018 and 20 November 2018 despite it being known by then that there was an issue about verifying Mr Tran’s identity. However, the reason for this should be inferred to be that, on 23 October 2018, the Department had sought information from other Commonwealth files about Mr Tran’s family to assist with identity verification. Awaiting this information was not unreasonable. The information request and its receipt and review were all directed to the permissible object of facilitating Mr Tran’s removal from Australia as soon as reasonably practicable. The permissible purpose for Mr Tran’s detention, accordingly, continued.

38    It was also noted for Mr Tran that there was no evidence of the Department responding to an internal request of 20 November 2018 to “obtain more personal details to assist with identity verification”. It was submitted that it could be inferred that the request was never satisfied. Even if this is the proper inference, it does not suggest that the Department was doing other than attempting to have Mr Tran removed from Australia to Vietnam as soon as reasonably practicable. To the contrary, on the evidence, it must be inferred that this permissible purpose for detention of Mr Tran continued.

39    As noted, on 29 November 2018, the AAT affirmed the refusal to revoke the cancellation of Mr Tran’s visa. Again, it cannot be inferred that the respondent abandoned its permissible purpose or was doing other than attempting to remove Mr Tran to Vietnam as soon as reasonably practicable. The chronology discloses continuing efforts to this end between 29 November 2018 and 7 June 2019.

40    The submissions for Mr Tran focus on various examples of inaction during this period including: (a) the Department not reviewing or actioning some documents Mr Tran provided that may have assisted with obtaining travel documents, (b) no officer calling Mr Tran’s parents, (c) the Department being caught in a circuit of unproductive emails until 1 March 2019, (d) the Department not ensuring that the form to be lodged with the Vietnamese Embassy had as much information as possible, and (e) little being done otherwise while awaiting the “inevitable” response, from the Vietnamese authorities, recording the refusal to process Mr Tran’s travel documents because there was “no evidence that Mr Tran was born or used to live in Viet Nam”.

41    These complaints do not found an inference of the Commonwealth abandoning the permissible purpose or failing to attempt to remove Mr Tran from Australia as soon as reasonably practicable. Administrative and systemic perfection is not required. The benefit of hindsight, that one or other course of action ultimately failed, is not helpful. The issue is one of objective reasonableness in all of the circumstances as they appeared at the time. The actions taken by the Department satisfy that standard up to 7 June 2019.

42    It was not unreasonable for the Department to have relied on Mr Tran to ensure the travel document form was completed with as much information as possible. The form was in Vietnamese. Mr Tran’s parents may be inferred to have been fluent in Vietnamese. They were the most familiar with Mr Tran’s circumstances. Mr Tran had requested removal and thus the Department was entitled to assume that he had an interest in ensuring that all relevant information was provided to the Vietnamese Embassy. To require the Department to independently verify that Mr Tran had provided all relevant information to the Vietnamese Embassy involves a standard of perfection which the Department was not required to meet in order to avoid an inference of an abandonment of the permissible purpose or failure to attempt to remove Mr Tran from Australia as soon as reasonably practicable.

43    It was submitted for Mr Tran that it is notable that, while waiting for a response from the Vietnamese authorities, the Department did not take other steps to progress Mr Tran’s identity verification despite offers of assistance to “progress birth registration/citizenship” from the Australian Embassy in Hanoi. Again, the issue is one of reasonableness. It was not unreasonable for the Department to await a response from the Vietnamese authorities. Contrary to the submissions for Mr Tran, it was not clear at the time that the response from the Vietnamese authorities “inevitably” would be refusal. The refusal did come on 7 June 2019 to the effect that “there is no evidence that Mr Tran was born and used to live in Viet Nam”, but it is not the case that the Department should have known this to be inevitable. The proper inference on the evidence is that the permissible purpose of Mr Tran’s detention continued throughout this period.

44    For the period from 7 June 2019 to 18 December 2019 other submissions were made for Mr Tran. It was said: (a) by 11 June 2019, following the response of the Vietnamese authorities, it was clear to persons within the Commonwealth that “Mr Tran is not able to be removed”, (b) by 17 July 2019, after a number of internal steps were taken, Mr Tran’s file status changed from “Removal” to “MI [Ministerial intervention] Outcome”, which is a reference to a process for Ministerial intervention under s 195A of the Act (which permits the Minister to decide whether or not to exercise a discretion to grant a visa), (c) around 11 November 2019, Mr Tran was advised that Australian Border Force was “unable to remove him or assist with any further PPT [passport] applications”, and (d) internal Departmental records show that no further steps towards identification verification were being taken and the Department was “at a loss” and “stuck”.

45    These facts do not support the inference that the Commonwealth had abandoned its permissible purpose for detaining Mr Tran or was doing other than attempting to remove Mr Tran from Australia as soon as reasonably practicable. The evidence disclosed that although the State-based file was closed pending progression of the possible Ministerial intervention under s 195A of the Act, the Department’s “Removals Helpdesk” remained in communication with the Vietnamese Embassy, with the Vietnamese Embassy confirming on 7 August 2019 that it had been unable to verify Mr Tran’s identity.

46    Also in 2019, the responsible team within the Australian Embassy in Hanoi (referred to as Post), which processed visas for entry into Vietnam and facilitated the obtaining of permission from the Vietnamese government for the return of Vietnamese nationals from immigration detention to Vietnam, noticed that a number of such cases were not progressing. Post managed to resolve some of those cases but, by late 2019, Post’s Principal Migration Officer, Mr Kneipp, considered that it was not possible to resolve some of those cases under its usual procedures. As a result, on 18 December 2019, Mr Kneipp proposed to the International Policy Division of the Department that a delegation of Vietnamese officials should visit Australia to interview select detainees in order to verify their identities. He did so after discussing the issue with the International Policy Division on 16 or 17 December 2019.

47    The point made for Mr Tran was that the 18 December 2019 proposal was too little and too late to legitimise Mr Tran’s continuing detention. I do not accept this submission. The action taken on 18 December 2019, although it was not directed specifically to Mr Tran, was directed towards a group of which he formed part. The evident purpose of the proposal was to enable the members of that group to have their identities verified in order to facilitate their return to Vietnam. The fact that Mr Kneipp sent this email on 18 December 2019 supports the inference that the Department had not simply abandoned its purpose of removing Mr Tran from Australia as soon as reasonably practicable. Mr Kneipp must have been formulating that proposal for some time before 18 December 2019. Together with this, the following considerations, as submitted for the Commonwealth, are relevant:

(1)    the issue is not whether the Department took all reasonably practicable steps to remove Mr Tran from Australia as soon as reasonably practicable. The issue is whether it should be inferred from all of the circumstances that the Commonwealth abandoned its permissible purpose of removing Mr Tran from Australia as soon as reasonably practicable;

(2)    accordingly, a failure to take one or other reasonably practicable step to remove Mr Tran from Australia as soon as reasonably practicable does not, of itself, necessarily prove any abandonment of the permissible purpose;

(3)    the relevant circumstances include: “(a) the operational context in which attempts are being made to remove the detainee, constrained by the necessarily finite resources available to the Commonwealth, (b) the cooperation of the country to which the detainee is to be removed, and (c) the degree to which the detainee is in a position, or is inclined, to furnish the Commonwealth with the information and cooperation necessary to effect his or her removal”;

(4)    Mr Tran had not suggested any capacity for his removal from Australia other than to Vietnam; and

(5)    when asked for information to facilitate his removal, Mr Tran did not provide, to the Department, aspects of the information disclosed in Mr Tran’s affidavit in this proceeding. It is not to the point that there is little, if any, evidence about what the Department asked Mr Tran. The point is that it was open to Mr Tran to provide any information he wished to support his removal to Vietnam. It is obvious from his affidavit that, at some time at least, he possessed additional information which he did not disclose until he deposed to his state of knowledge in his affidavit.

48    In these circumstances, no inference of abandonment of the Commonwealth’s permissible purpose for detaining Mr Tran would be drawn.

49    For the period from 18 December 2019 to March 2020, it was submitted for Mr Tran that the Department “put all its eggs in one basket”, being the proposed delegation of officials from Vietnam. It was not unreasonable, however, for the Department to consider that this would be the best method of resolving the issue of Mr Tran’s identity, amongst others. The fact that Mr Kneipp said in an email of 18 December 2019 that while the Department would seek to have Mr Tran interviewed by the delegation from Vietnam it should be prepared “for the likelihood that he will not be recognised and consider other options” does not establish the contrary conclusion.

50    Contrary to the submissions for Mr Tran, the Department was not bound to consider other options before seeing if the interview of Mr Tran by the delegation from Vietnam could resolve his identity issue. It was not unreasonable for the Department to await the outcome of that interview before it decided if other options should be pursued. In any event, it is not clear from Mr Kneipp’s email that he was suggesting any particular step should be taken before the interview which the Department did not then take. It may be inferred that if Mr Kneipp had any such step in mind he would have said so in the email, but he did not. As Mr Kneipp said about this email, he did not think it certain that the Vietnamese government would refuse to recognise Mr Tran and believed the interview process to be worth a try but wanted the Department to consider the potential that Mr Tran may not be recognised as a Vietnamese citizen.

51    Between 18 December 2019 and 5 March 2020 there was substantial activity to facilitate the delegation of Vietnamese officials to conduct the interviews. The fact that the Department’s focus was on this delegation as a means to resolve identity issues for Mr Tran and others does not bespeak unreasonableness.

52    From 5 March 2020 the COVID-19 pandemic prevented the delegation from Vietnam visiting Australia as proposed. At that time commercial flights into Vietnam were restricted and security escorts on commercial and charter flights were suspended.

53    It was recorded by the Department on 16 November 2020 that “planning for Mr Tran’s removal has not continued”.

54    Mr Kneipp said that by the second half of 2020 he realised that the restrictions on international travel were unlikely to be lifted for some time and a different approach was required. He cannot recall precisely when, but he then asked a senior official from Vietnam if the interviews could be conducted remotely. This suggestion was rejected. Mr Kneipp continued to liaise with Vietnamese officials, including during a meeting in January 2021, about the interviews being conducted remotely (which the Vietnamese officials did not agree to but confirmed they would be willing to conduct the interviews in Australia once the COVID-19 pandemic was over). Mr Kneipp was re-assigned in January 2021. Before that, in late December 2020, another Departmental officer again spoke to Vietnamese officials about Mr Tran, but was told that nothing could be done as his identity could not be verified.

55    On 18 February 2021, Mr Hollis, Consul (Home Affairs) at the Australian Consulate in Ho Chi Minh City, sent a third party notice (TPN) to the Immigration Department of the Ministry of Public Security of the Socialist Republic of Vietnam (MPSI) in relation to Mr Tran’s identity. In the TPN Mr Hollis requested that Mr Tran be interviewed by teleconference or videoconference. MPSI declined this request on 5 March 2021 but said it would send a delegation to Australia once the COVID-19 pandemic was over.

56    On 16 April 2021 the Department forwarded Mr Tran’s affidavit in this proceeding to the Queensland removals section to see if the additional information in it could assist in facilitating Mr Tran’s removal. Various internal email communications about Mr Tran followed. It should be inferred that the Department is now using the information in Mr Tran’s affidavit to ascertain if further steps can be taken to facilitate his removal to Vietnam. This is sufficient to support an inference that the requisite permissible purpose is continuing at this time.

57    The essential complaint for Mr Tran is that nothing happened to progress his removal between 5 March 2020 and 18 February 2021, when Mr Hollis issued the TPN. In fact, Mr Kneipp asked Vietnamese officials if the interviews could be conducted remotely before this in the second half of 2020 but on a date that cannot be identified. It was submitted for Mr Tran that the Department had done nothing but wait for the COVID-19 pandemic to be over.

58    The fact that nothing was done between 5 March 2020 and Mr Kneipp’s communications with Vietnamese officials at some time in the second half of 2020 and into January 2021 does not support an inference that the Commonwealth abandoned the permissible purpose for which it could detain Mr Tran, being his removal from Australia as soon as reasonably practicable. The COVID-19 pandemic is an unprecedented event which has caused unprecedented restrictions on travel into and out of Australia. In these circumstances, it was not unreasonable for the Department to wait, even for months, to ascertain if international travel into Australia would re-commence in 2020. With the benefit of hindsight it is now apparent that travel restrictions may last for many more months. However, as at March 2020 and throughout that year, an expectation that travel into and out of Australia would re-commence to enable the interviews to be conducted was not unreasonable.

59    In these circumstances, the focus for Mr Tran on things that were not done is misplaced. It is true that between March and December 2020 the Department did not re-visit or initiate new steps to facilitate the removal of Mr Tran. It did not do so, however, because it considered that the best option was the interview process by the Vietnamese delegation, and an unprecedented pandemic had delayed that from occurring. Neither the Commonwealth nor Vietnam abandoned the proposed interviews. The Commonwealth continued, and continues, to want the interviews to occur as soon as reasonably possible. Vietnam remained, and remains, willing to send the delegation once “border restrictions in place because of COVID [are] lifted”. In the circumstances, the actions (or inactions) of the Department were not unreasonable and do not prove an abandonment of the permissible purpose for detaining Mr Tran.

60    Contrary to the submissions for Mr Tran, the Commonwealth was not bound to arrange a charter flight for Mr Tran to Vietnam from June 2020 when such flights re-commenced. The Commonwealth, as noted, did not have to take every reasonably practicable step possible to effect the removal of Mr Tran in order to retain the permissible purpose of detaining him (that is, removing him as soon as reasonably practicable).

61    The submissions for Mr Tran, despite proposing to the contrary, seek to impose a standard of perfection on the Commonwealth. They also appear to impose on the Commonwealth an obligation not only to do everything that it possibly could to effect Mr Tran’s removal immediately on it being possible, but also to possess a capacity to foresee which efforts will be worthwhile and which will not be. That is, Mr Tran’s case appears to be that the Commonwealth should have known that various efforts would be fruitless or doomed and should never have bothered to undertake them at all. Nothing in the evidence supports the inference that the Commonwealth, at the time and in all of the circumstances, was doing other than genuinely attempting to remove Mr Tran from Australia. It was not acting unreasonably in attempting to do so even if, ultimately, its efforts proved fruitless. It is not as if the evidence supports any suggestion that the Commonwealth knew its efforts would be fruitless and proceeded in any event never believing that its efforts would facilitate Mr Tran’s removal to Vietnam.

62    The standard of perfection which the submissions for Mr Tran seek to impose on the Commonwealth is apparent from the alleged systemic problems within the Department said to be revealed by the evidence such as: (a) no system existing whereby a removals officer who is on leave is substituted, (b) delay in conducting an initial removal planning interview with MrTran, (c) lack of clear responsibilities, (d) lack of training about identity verification, (e) lack of care and diligence in recording information, (f) the existence of a “cut and paste” culture, and (g) inadequate systems to identify and correct errors. No administrative system is perfect. Every administrative system can be improved. The obligation imposed by s 198(1) is qualified by a standard of reasonableness despite the subject-matter being individual liberty.

63    Accordingly, and as the Commonwealth submitted, the problem with the case for Mr Tran is that it depends on:

… a rigid construction of the phrase “as soon as reasonably practicable” in s 198 of the Act, which would require the Commonwealth to take any and all steps reasonably practicable for it to take towards the applicant’s removal, and to take those steps at the time each step becomes reasonably practicable.

64    This approach is contrary to AJL20 and Arthur as litigation representative for CYG20 v Commonwealth of Australia [2021] FCA 259 at [106(c)] in which Griffiths J adopted the approach in AJL20 without deciding whether it was plainly wrong or not.

65    Further, and as the Commonwealth also submitted, the onus of proof to which the Commonwealth is subject does not require it to:

…show that there were no (or no other) reasonably practicable steps it could have taken. The Commonwealth is not required to prove a negative: it need not imagine the universe of steps that could have been taken so as to explain why none of them was taken.

66    The references in the submissions for Mr Tran to the Commonwealth’s acceptance of the need to undertake a “complex identity referral” as at 21 November 2018 does not assist Mr Tran’s case. The failure to initiate such a referral (if it be a failure, the evidence being unclear about this), in circumstances where at the time there were ongoing communications with the Vietnamese authorities, was not unreasonable. It is also not apparent that such a referral could have made any difference to the position of Mr Tran.

67    I do not accept the submissions for Mr Tran that the evidence supports the inference that from 23 October 2018 (by which time the Department had recognised that more information would be required to enable Vietnamese authorities to verify Mr Tran’s identity) the Commonwealth abandoned its permissible purpose for Mr Tran’s continuing detention by failing to:

(1)    make a complex identity referral or commission an identity assessment report;

(2)    engage meaningfully, or at all, with Mr Tran’s parents, other family members or friends to ascertain further details of their (and Mr Tran’s) connection to Vietnam, including places of birth, residence, employment, ancestry and the possible locations of corroborating documentary records; and/or

(3)    engage meaningfully with Mr Tran to ascertain further details of his connection to Vietnam, including his family members’ places of birth, residence, employment, ancestry and the possible locations of corroborating documentary records.

68    No doubt there was more that the Department could have done from time to time and it could have acted with greater alacrity. But the Department’s efforts and the pace at which it acted has not been unreasonable in the circumstances as they have existed from time to time. In particular, as the Commonwealth submitted, it should be noted that the evidence discloses that:

(1)    while the Department did not make a complex identity referral or commission an identity assessment report, it took numerous steps to facilitate the verification of Mr Tran’s identity as disclosed in the chronology including:

(a)    assisting Mr Tran to apply to have his birth registered with the Vietnamese authorities;

(b)    facilitating an application to be completed for the re-issue of birth certificates for Mr Tran’s parents, as an antecedent step to getting Mr Tran recognised as a Vietnamese citizen by descent; and

(c)    assisting Mr Tran to apply for Vietnamese citizenship by descent;

(2)    the Department assisted Mr Tran to obtain sufficient information to provide to the Vietnamese authorities to allow it to verify his identity and thereby establish Vietnamese citizenship (or some other right to enter Vietnam), including by:

(a)    meeting with Mr Tran to update him on the progress of his application and explain to him that the information provided to date was insufficient to enable Vietnam to issue travel documents; to seek from him additional information about his family’s history and connection to Vietnam to support his applications; and, to assist him in contacting his parents to request that information;

(b)    obtaining from the Department’s archives and reviewing Mr Tran’s family’s citizenship files; and

(c)    conducting their own desktop research to identify any publicly available information regarding the circumstances of Mr Tran’s arrival to Australia which may assist in verifying his identity; and

(3)    the Department, through diplomatic channels, pursued means to progress the applicant’s removal to Vietnam, including:

(a)    making enquiries with the Vietnamese Embassy in Canberra as to the options available to the applicant to obtain Vietnamese citizenship, and facilitating a request that the Vietnamese consular department consider Mr Tran’s case directly;

(b)    facilitating an interview by the Vietnamese Embassy of the applicant’s mother, in the hope of obtaining from her details of her life in Vietnam which might assist in verifying Mr Tran’s identity;

(c)    seeking assistance from the Department’s outpost in Hanoi to progress Mr Tran’s case directly with the Vietnamese immigration department and through the Vietnamese consular department; and

(d)    arranging for a delegation of Vietnamese officials to visit Australia in April 2020 with the purpose of a verification interview with Mr Tran.

69    In the light of this evidence, the concerns identified for Mr Tran about inaction, delay, and inadequate records of actions taken and not taken are insufficient to found an inference of the Commonwealth, at any time, abandoning its permissible purpose for the ongoing detention of Mr Tran or failing to act so as to effect his removal as soon as reasonably practicable. The evidence does not support the inferences set out in the submissions for Mr Tran, including: (a) an alleged belief on the part of the Department that a detained person is responsible for their own removal – co-operation by a detained person is an obviously relevant consideration in assessing the reasonableness of the Commonwealth’s conduct, (b) unreasonable disregard by the Department of information, provided by Mr Tran, that might have facilitated his earlier removal, or (c) unreasonable delay by the Department in taking available steps to facilitate verification of Mr Tran’s identity. It may be accepted that, as it was put for Mr Tran, “during each hour that various emails were not responded to, [Mr Tran] was deprived of his liberty in immigration detention”, but (assuming AJL20 to be correct) the Parliament has chosen to qualify the Commonwealth’s obligations to a person in detention by reference to a standard of reasonableness and this qualification must be given effect.

70    As a result, I do not accept that the evidence shows the Commonwealth: (a) taking only unreasonable or impracticable steps to carry into effect removal, (b) failing to take reasonable and practicable steps to carry into effect removal, or (c) taking reasonable and practicable steps to carry into effect removal, but doing so without reasonable promptness. The efforts of the Department did not meet a standard of administrative and systemic perfection, but nor did they need to in order to prove that there was no abandonment by the Commonwealth of the continuing permissible purpose authorising Mr Tran’s detention.

71    For these reasons, the application should be dismissed. Costs should follow the event.

Associate:

Dated:    1 June 2021

SCHEDULE 1

Agreed Chronology of steps taken to progress removal during the relevant period