Federal Court of Australia

DMH20 v Minister for Home Affairs [2022] FCA 1054

ORDERS

THE COURT ORDERS THAT:

1.    Within 14 days of these orders, the parties are to confer and submit agreed or competing short minutes of order giving effect to these reasons.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant, who is a national of the Republic of Malta, is in immigration detention as a result of the cancellation of his permanent residency visa in February 2012. By this application, he seeks a declaration that “it will not become reasonably practicable to remove the applicant, and there is no real likelihood or prospect of removal of the applicant, from Australia in the reasonably foreseeable future”. The applicant also seeks associated relief requiring his release from immigration detention.

2    The applicant accepts that even if the declaration sought were made, Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 (Al-Kateb), precludes the granting of the associated relief. He accepts that the combined effect of ss 189, 196 and 198 of the Migration Act 1958 (Cth) (Migration Act) and Al-Kateb, is that officers of the Department of Home Affairs (the Department) are authorised and required to keep the applicant in immigration detention unless and until he is removed from Australia under s 198 of the Migration Act, and that that circumstance subsists even if it is the case that it will not become reasonably practicable to remove the applicant from Australia and there is no real likelihood or prospect of his removal from Australia in the reasonably foreseeable future. As a consequence, the applicant recognised that the only relief he can meaningfully seek at first instance is a declaration. In that context, by way of a further amended originating application, the applicant seeks the declaration for the purpose of founding an application which would seek to challenge the correctness of Al-Kateb before the High Court.

3    There is no dispute between the parties that the applicant bears the onus of persuading the Court of the factual proposition which he seeks to be declared: Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285 (M47) at [39]; Gore v Australian Securities and Investments Commission [2017] FCAFC 13; (2017) 249 FCR 167 at [28]–[29] citing Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1525; (2003) 137 FCR 317 at [355]–[356].

4    The respondent, the Minister for Home Affairs (Minister), contends that a declaration should not be made.

5    At various times throughout the applicant’s different proceedings, the relevant Minister was the “Minister for Immigration and Citizenship” or a variation thereof. To the extent necessary, references to the Minister and Department in these reasons should be read as references to the relevant Minister and Department responsible for administering the Migration Act.

6    For the reasons below, I am not satisfied that the declaration sought should be made.

Factual background

7    A number of primary facts are not in dispute.

8    The applicant is a national of the Republic of Malta and was born on 10 December 1976. He first arrived in Australia in May 1981 aged four and has lived in Australia for the majority of his life. On 1 September 1994, the applicant was deemed to be a permanent resident by operation of law and to hold a transitional (permanent) (Class BF) visa pursuant to the Migration Reform (Transitional Provisions) Regulations 1994 (Cth).

9    On 10 December 2004 and 27 May 2005 the applicant was convicted of serious sexual offences including attempted incest against his former step-daughter and the rape of her mother, which resulted in a delegate of the Minister cancelling the applicant’s visa under s 501(2) of the Migration Act on 20 May 2010. Upon the applicant’s release from prison on 5 July 2010, he was detained in immigration detention under s 189(1) of the Migration Act. Following a successful challenge to the cancellation of his visa on 17 August 2010, he was released from immigration detention.

10    On 14 February 2012, the Minister personally cancelled the applicant’s visa under s 501A(2) of the Migration Act on character grounds. On 16 February 2012, the applicant was taken into immigration detention under s 189(1) of the Migration Act where he has remained since.

11    On 10 May 2012, the applicant made an application under s 195A of the Migration Act for the Minister to consider exercising his power to grant him a permanent visa. Although that application was not ultimately progressed, the Department initiated a fresh request for Ministerial intervention under ss 195A and 197AB of the Migration Act on 23 January 2014. On 20 May 2014, the Minister declined to intervene in the applicant’s case. On 27 April 2015, following an internal referral, the Minister again declined to consider intervening under s 195A in the applicant’s case.

12    On 27 November 2014, the applicant applied for a protection visa. This application was refused by a delegate of the Minister on 28 January 2015. That refusal was upheld by the Refugee Review Tribunal on 8 May 2015. The applicant’s application for judicial review of the Tribunal’s decision was dismissed by the Federal Circuit Court on 14 July 2016, and his appeal to this Court was dismissed on 3 March 2017: ATZ15 v Minister for Immigration and Border Protection [2017] FCA 191.

13    On 24 November 2016, as a result of the accidental release of his personal information on the Department’s website, the applicant requested an International Treaties Obligations Assessment (ITOA), which was refused by the Minister on 20 December 2016. His application for judicial review of that decision was dismissed by the Federal Circuit Court on 20 December 2017, and his appeal to this Court was dismissed on 31 October 2018: ATZ15 v Minister for Immigration and Border Protection [2017] FCA 1811.

14    On 7 February 2019, the applicant commenced these proceedings.

Evidence relied on

15    The applicant relies on the following:

(1)    two affidavits affirmed by him on 10 January 2019 and one affidavit affirmed by him on 2 November 2021;

(2)    an affidavit of the applicant’s wife affirmed 2 November 2011; and

(3)    documents identified in the combined tender list as being tendered by the applicant.

16    The affidavits were admitted subject to the paragraphs not read and the paragraphs excluded by rulings on objections. The witnesses were not required for cross-examination.

17    The Minister relies on the following:

(1)    a notice to admit dated 29 November 2021 and a notice of dispute dated 6 December 2021;

(2)    an affidavit of Jodi Michelle Stubbs, Senior Director within the Status Resolution Network in the Department, affirmed 10 February 2022 together with its annexures;

(3)    an affidavit of Sally Davis, Acting Border Force Superintendent for the National Removals team within the Australian Border Force (ABF), affirmed 10 February 2022 together with its annexure; and

(4)    documents identified in the combined tender list as being tendered by the Minister.

18    Ms Davis was required for cross-examination.

Overview of submissions

19    In summary, the applicant seeks that this Court draw five primary inferences from the evidence on which he relies. First, the government of Malta is not, and has not been since about March 2013, willing to accept the return of the applicant to Malta. Second, the government of Malta is not, and has not been since about March 2013, willing to accept the return of the applicant to Malta unless he freely and voluntarily signs an application for a travel document for his return to Malta, which he will not do. Third, Malta’s attitude towards the applicant’s return is unlikely to change in the reasonably foreseeable future. Fourth, the Minister and the Department have simply run out of options for the removal of the applicant from Australia. Finally, on the basis of the preceding matters, it will not become reasonably practicable to remove the applicant, and there is no real likelihood or prospect of removal of the applicant, from Australia in the reasonably foreseeable future. This is the declaration which the applicant asks the Court to make.

20    The Minister submitted that the declaration should not be made. It was submitted that on the evidence, the inferences sought should not be drawn. It was submitted, inter alia, that the applicant is frustrating ongoing attempts to remove him to Malta by refusing to cooperate with those efforts, including by refusing to sign an application for a Maltese travel document. If he did so, the Minister submitted, there is a real likelihood or prospect of his removal to Malta. In those circumstances, just as was the case before the High Court in M47, it cannot be “concluded that the options for his removal within a reasonable time, if his cooperation is forthcoming, have been exhausted”: M47 at [41].

Consideration

21    At this stage I also make four preliminary observations.

22    First, the inferences that the applicant seeks the Court to draw are based on a timeline reflecting that the positions of Malta with respect to the removal of the applicant to Malta exist and have existed since at least March 2013.

23    Second, as can be seen from the inferences contended for, the case appears to be advanced on a two-pronged basis: that Malta is not willing generally to accept the return of the applicant (the first basis), and that Malta is not willing to accept the applicant because he is involuntary towards removal (the second basis). That said, although the applicant at times blurred the distinction between the two bases, submitting that it is the cumulative effect of those propositions, in practical terms they are distinct propositions. The applicant submitted that he is seeking one declaration with the evidence on both bases, and both bases reinforce the conclusion sought. That there are two bases is also reflected in the applicant’s identification of the issues as advanced in his written submissions, which identify the two bases as “and/or” propositions. This impacts on what significance, if any, can be given to the applicant’s conduct.

24    Third, whatever interaction there has been between the Australian government and Malta, for the most part of the applicant’s detention (being from November 2014 until October 2018), deportation could not be advanced because the applicant had ongoing legal proceedings.

25    Fourth, the applicant submitted that the length of time for which he has been detained while efforts for his removal have been made is far greater than the time and effort expended in other cases where removal was found not to be reasonably practicable in the reasonably foreseeable future, citing examples of cases in support (including Al-Kateb). This submission is of little, if any, assistance. Whether the applicant has established the factual proposition underpinning his application (and whether any declaration, in whatever terms, might ensue) is necessarily fact-specific.

The applicant’s first basis

26    It is appropriate to consider the applicant’s submission that, regardless of the applicant’s attitude to removal, Malta would not accept him.

Communications regarding the applicant’s removal

27    The applicant detailed a chronology of interactions between the Department and the High Commission of Malta, and internal communications within the Department or reviews of the applicant’s case, based on documents produced to him by the Minister. These matters were not generally disputed; rather, what is in issue is the inferences that can be drawn from them.

28    Some of these interactions between the Department and the High Commission of Malta reflect that they also relate to other person(s) to be removed to Malta, and in some instances, only relate to another person. It is unnecessary to repeat the chronology in its entirety. Rather, focus is directed to the particular material relied on by the applicant that is said to provide the basis of the inferences asked to be drawn. That said, all the evidence relied on, including the broader steps undertaken by the Department as reflected in documents, has been taken into account. Moreover, for the purpose of considering the inferences said to be drawn, it is important that the matters referred to be considered in the context in which they occurred.

29    The first contact between the Department and the Maltese authorities in relation to the applicant appears to have been on 22 March 2012, being a meeting between the then-High Commissioner of Malta, Mr Francis Tabone, and an officer of the Department. A contemporaneous email recording that meeting states, inter alia:

Mr Tabone did not seem to be happy with the potential involuntary removal of the client and requested the department to provide the High Commission with detailed information in this matter. …

The High Commissioner finally agreed (verbally) that if the client fails to cooperate, the department will have to initiate a formal request to the Maltese government through High Commission. Thereafter an approval to issue a passport for the client will be sought from authorities in Malta. Subsequently they will be happy to assist the department with this removal however their preferred mode would be a voluntary application by the client in which case it would be expedient.

30    On about 29 March 2012, after a meeting between the Department, the applicant, his case manager and his partner, it was recorded that the applicant was coming to terms with his removal to Malta, but that he said he was not willing to be removed to Malta without his partner (whom he married on 31 March 2012) and step-son. The applicant’s partner said that they would be going with him. The Officers of the Department explained that the Department would only consider this as an option if the applicant was removed voluntarily and cooperated with the Department. On 11 April 2012, the applicant completed a form requesting he be voluntarily removed from Australia. At a meeting with his case manager on 19 April 2012, the applicant stated that he would not be going without his wife and her son. On 4 May 2012, the applicant attended the Maltese Consulate to progress obtaining travel documents, including his passport, in preparation for removal from Australia.

31    As noted above, on 10 May 2012, the applicant made an application under s 195A of the Migration Act for the Minister to consider granting the applicant a permanent visa. Although that application was not ultimately progressed, the Department initiated a fresh request for Ministerial intervention under ss 195A and 197AB on 23 January 2014.

32    On 17 May 2012, the Maltese authorities were advised of the applicant’s impending arrival in Malta, with the Deputy Prime Minister/Foreign Minister of Malta querying whether “it made sense” to send the applicant back to Malta. On 23 May 2012, the Australian High Commissioner in Malta reported that Mr Tabone had expressed concerns about “what is to be done with [the applicant]” and the media attention he might attract in Malta.

33    The applicant placed particular emphasis on the record of a meeting between representatives of the Department and the Maltese High Commissioner on 12 March 2013, which was principally held in relation to the removal of another Maltese national. The applicant points to an aspect of the record of the meeting which records as follows (emphasis as appears in the applicant’s outline of submissions):

The HoM [Head of Mission – Mr Tabone] also expressed his concerns that an earlier Maltese client [the applicant] and [the other national] are in contact and are apparently / possibly conversing about their options. However Mr Tabone remarked that [the applicant] is the ‘worst’ and he will never intend to accept him back to Malta.

34    This meeting was reported to relevant persons in the Department. For example, a later Departmental Report under s 486N of the Migration Act dated 7 January 2014 states, inter alia:

The former Maltese High Commissioner [Mr Tabone], during discussions with the then Minister and with the department indicated on numerous occasions that he would not assist in facilitating [the applicant’s] removal to Malta due to the nature of his crimes and the time they were committed. The current High Commissioner advised the department that he would discuss the matter with the current Minister before the end of 2013. The department intends to pursue the issue of a passport with the Maltese High Commission.

35    It can be inferred from the date of the meeting with Mr Tabone, being 12 March 2013, that it is this statement by Mr Tabone which is the basis of the applicant’s claim that the government of Malta is not, and has not been since at least March 2013, willing to accept the applicant’s return to Malta. As explained above, although the applicant was referred to, that meeting principally related to another detainee. From the record of that meeting it is evident that Maltese officials recognised that Maltese nationals had a right of re-entry to Malta.

36    In any case, it is apparent from the report of 7 January 2014 referred to above that Mr Tabone is no longer the head of the Maltese High Commission. He finished his term on 30 June 2013.

37    As is apparent from the later communications referred to immediately below, the language recorded as having been used in communications between the Department and Malta after the new High Commissioner took office on 25 September 2013 does not reflect the blanket assertion reported to be attributed to Mr Tabone with respect to the removal of the applicant.

38    A brief meeting between a departmental officer and the Maltese High Commissioner occurred on 20 December 2013. An internal Department email containing a report of that meeting records that the High Commissioner stated that he “hoped to make forward progress in the new year towards determining the cases” of the applicant and the other Maltese detainee, and expressed a view that both should be permitted to remain in Australia on compassionate grounds, given the length of time they had spent in Australia. The Maltese authorities accepted that the applicant is a Maltese national.

39    A record of an internal departmental briefing on about 12 February 2014 in relation to the applicant and the other detainee records that the Maltese government “informally accepts that [the other detainee] and [the applicant] are Maltese nationals however, it is reluctant to provide travel documents due to their criminal history; length of time in Australia, and their inability to support themselves in Malta” (emphasis added). According to the briefing, these communications were in the context of obtaining travel documents for the involuntary removal of these persons.

40    On 17 February 2014, officers of the Department met with the Maltese High Commissioner about the applicant and the other detainee. An internal Department email sent on 27 February 2014, containing a report of the meeting, records that the:

High commissioner was very negative about accepting these people back into Malta and maintains that Australia should look after them. We held ground noting the minister and governments position on visa holders who commit crimes in Australia. The high commissioner said he wanted to meet with the minister first, and then would discuss with government officials back in Malta. We have given the MO the heads up about the request to meet, but don’t know if the meeting has been arranged yet or if the high commissioner has approached the MO for the meeting. I suspect we may have a chance to get travel documents if at the meeting the minister makes it clear that he is not likely to release these people from held detention, and the high commissioner has subsequent discussions in Malta.

41    Pausing there. These records do not support an inference that Malta would refuse to accept the applicant in any circumstances, although it can be accepted that there is a clearly expressed preference not to do so.

42    As referred to above, on 20 May 2014, the Minister declined to consider intervening in the applicant’s case under ss 195A or 197AB of the Migration Act.

43    It is accepted by the parties that from at least 16 June 2014 until February 2016, the Maltese High Commissioner was under the misapprehension based on a representation by the then-Australian Immigration Minister that the applicant had requested to be, and should be, removed to Malta.

44    At a meeting on 24 July 2014, the Maltese High Commission advised officers of the Department that it “agreed in principle to accept removal of all three persons [one being the applicant] to Malta”. An internal Department email recording the meeting states that the Maltese High Commission would seek final advice from the Maltese government in order to issue letters confirming the right of re-entry for the three individuals by “the first week of August or so”.

45    There appears to have been a delay in this occurring. An internal Department email providing an update on 22 August 2014 records that:

The Maltese HoM agreed to consider issuing letters confirming a right to re-enter for the removees but advised that he would confer with the Maltese government before making his decision.

In early August, our team had a further meeting with the Maltese High Commission to enquire if the letters confirming a right to re-enter were ready for issuance. The letters had been drafted but not yet signed by the HoM.

46    On 19 September 2014, the Maltese High Commission informed the Department it was still awaiting a response from the relevant authorities in Malta regarding post-arrival arrangements for the removed citizens before issuing the right of re-entry letter to the applicant. The High Commission was “unable to provide a timeframe … they will notify the department as soon as the letter is ready to issue”.

47    Further communications between the Department and the respective High Commissions ensued. There is evidence that the Maltese government eventually decided to issue the applicant with a travel document by mid-2015. In a departmental case summary (undated, but attached to an email dated 24 February 2016) it is recorded that:

[i]n July 2015, the Malta High Commission reported it had received advice from the relevant authorities in Malta to issue a travel document for [the applicant]. However, the High Commission was subsequently advised that the Department was no longer pursing a travel document for [the applicant] as a result of his ongoing [court] matters.

48    It is accepted that the underlying communication regarding the High Commission no longer pursuing a travel document for the applicant is not in evidence.

49    As referred to above, on 27 November 2014, the applicant made an application for a protection visa. From about July 2015 until 20 December 2017, the Department did not progress to remove the applicant by seeking the Maltese travel documents (as noted in the case summary extract above), as he was unavailable for removal during his various court proceedings.

50    After the Federal Circuit Court dismissed the applicant’s application for judicial review in respect of his IOTA application on 20 December 2017, the Department recommenced its efforts to effect the applicant’s removal. However, on 12 January 2018, the applicant appealed the Federal Circuit Court’s dismissal. As noted, on 31 October 2018, this Court dismissed that appeal.

51    As a consequence, any steps taken by the Department during the time while the applicant had outstanding court proceedings were in relation to another detainee. That said, those steps are relevant as they concerned a particular class of person: Maltese nationals who were involuntary removals, which is the position of the applicant.

52    One such step taken in relation to another Maltese national was made using diplomatic channels, and involved the Department sending a cable to the Australian High Commission in Malta in July 2018, referring to the Convention on International Civil Aviation, opened for signature 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947) (Chicago Convention) to which Malta is a contracting state. The Chicago Convention states, under Annex 9, that signatory countries are to admit into its territory its nationals who have been deported from another State, and to issue a travel document not more than 30 days after a request is made to facilitate the return of one of its nationals.

53    In response to this cable, the Australian High Commission in Malta made approaches to the Maltese authorities in the latter half of 2018 through both official channels and “social back channels” to request travel documents for Maltese involuntary removals in Australia.

54    The Maltese Ministry for Foreign Affairs and Trade Promotion wrote to the Australian High Commission on 24 August 2018 as follows:

The Ministry for Foreign Affairs and Trade Promotion of Malta presents its compliments to the High Commission of Australia and has the honour to refer to NV 36/2018 dated 20th August 2018 concerning the case of [other Maltese national].

The Ministry would like to inform the esteemed High Commission that with regard to deportations of singularly Maltese nationals, and in particular the aforementioned case of [other Maltese national] the Maltese position, as previously communicated in meetings held between the Malta High Commission in Canberra on the one side and representatives from Australian competent authorities on the other since 2013, remains unchanged to the point that unless the applicant consents to and willingly signs the travel document applications, there is no possibility of providing the person in question with a valid travel document.

The Ministry for Foreign Affairs and Trade Promotion avails itself of this opportunity to renew to the High Commission of Australia the assurances of its highest consideration.

55    Internal Department communications thereafter focused on Malta’s refusal being based on the fact of the detainee being involuntary to removal. This tells against the applicant’s submission that the inference is that Malta would not accept the applicant regardless of his attitude towards removal.

56    For example, on 19 December 2018, an ABF Superintendent circulated the following update in relation to efforts to remove the “involuntary Maltese cohort”:

As some of you are aware, over the last 6 months we have made a number of fresh attempts at securing travel documents for our involuntary Maltese cohort. This included representations to the ambassador here, by Inspector Davis and our colleagues from International Division. This was fruitless.

I then took advantage to meet with the Australian Ambassador to Malta in August, who undertook to approach the issue both through official channels and social back channels. Unfortunately this was also fruitless.

The official word from the Ministry for Foreign Affairs and Trade Promotion of Malta is [the 24 August 2018 communication extracted above].

57    The only other communication that was really said to be relevant to the more general assertion that Malta would not accept the applicant in any circumstance is that recorded from the latest meeting (in evidence) between the ABF and the new Maltese High Commissioner (Mr Mario Farrugia Borg) on 20 January 2022. The applicant relies on the following recorded in a summary prepared by the ABF (emphasis by applicant):

•    ABF advised there are several long-term detainees in Australia that are citizens of Malta that are involuntary towards removal, including [other Maltese nationals] and [the applicant]. ABF advised that the some of these involuntary cases are suffering from mental health issues which may be a direct cause from being in Immigration detention long-term. Mr Farrugia Borg advised that he previously work at the consulate in Victoria and has had experience working with these types of cases as outlined by the ABF.

•    Mr Farrugia Borg advised that it is the policy of the Maltese Government not to issue travel documents to persons that are involuntary towards removal to Malta. Mr Farrugia Borg elaborated that involuntary removal is an affront to basic human rights and that in many of the cases mentioned by ABF, the persons involved have been in Australia since childhood and are not a product of Malta. Furthermore, as these persons have not lived in Malta for some time, they would have no community support or any financial means in which to support themselves.

•    ABF advised that in the case of [another Maltese national], he has completed his travel document application and has requested that it be lodged with the High Commission. ABF reiterated that he remains involuntary towards removal at this time however.

•    Mr Farrugia Borg stated that he will not accept travel document applications for persons considered involuntary towards removal as he does not see the point in holding on to them with no outcome. ABF requested clarification on the travel document application process for voluntary removals and Mr Farrugia Borg advised that an unsigned application form is required to be submitted to the HC and the applicant is then requested to attend in person to sign the form and undergo an interview.

•    ABF advised that the previous High Commissioner did advise that he would grant a travel document for one of the involuntary cases but that the travel document was not issued. Mr Farrugia Borg reiterated that travel documents would not be issued for the purposes of involuntary removals.

58    Although the record refers to other features of the cases, it reflects that the primary concern of Malta is the involuntary removal of its citizens. There is nothing in that record which suggests that Malta would refuse to accept the applicant if he voluntarily sought to return to Malta. The other concerns are raised in the context of an involuntary return to Malta. Indeed, as a general proposition, it is difficult to see why the communications over the years focus on the fact of involuntary removals if the position is, as the applicant contends, that Malta had determined to not accept him regardless.

Consideration

59    In the discussion above, I have already made some observations about the effect of some of the communications. I rely on those in my reasoning, without necessarily repeating them.

60    Leaving aside the issue of voluntary removal, the inference to be drawn from the evidence in the documentation is, at its highest, that Malta is reluctant to accept the applicant, not that it will not. Moreover, as explained, the evidence is that in 2014 when the Maltese High Commission was under the mistaken apprehension that the applicant wished to return to Malta, it agreed “in principle” to accept his removal. Indeed, by July 2015, Malta had agreed to provide travel documents to the applicant and only halted this process due to the applicant’s court matters. This agreement was notwithstanding Malta’s earlier concerns over the applicant attracting adverse media attention in Malta, and its general desire for him to remain in Australia.

61    The high point of the applicant’s evidence is the record of a statement by Mr Tabone during his tenure as High Commissioner, made during a meeting in March 2013 held in respect to another detainee. The statement that the applicant was “the worst” must be viewed in this comparative context, whereby Mr Tabone was principally considering whether to accept the involuntary removal of another Maltese national rather than expressing a considered position on the applicant. In any case, as referred to above, Mr Tabone finished his term on 30 June 2013 and the language used in later communications regarding the applicant is more tempered than that said to have been expressed by Mr Tabone. The evidence of the statement attributed to Mr Tabone must be considered in light of the later evidence, and when all the evidence is considered, this single statement by an individual does not (alone or in combination with other evidence), give rise to the inference sought.

62    I am not persuaded on the evidence that, as a general proposition, Malta is not, and has not been since at least March 2013, willing to accept the return of the applicant to Malta in any circumstance. That is, I am not persuaded that, irrespective of the applicant’s attitude towards removal, there is no reasonable prospect of Malta accepting the return of the applicant within the reasonably foreseeable future.

63    This conclusion is also supported by the evidence of Ms Davis, given in re-examination.

64    Ms Davis gave evidence that a person in the same position as the applicant, about whom Malta had expressed the same concerns, was successfully removed to Malta. The concerns held by Malta were overcome. Ms Davis gave evidence of the circumstances as follows. The person had come to Australia when he was a child and had a high media profile as he had been incarcerated for murder. He had no family links in Malta, and did not have a lot of money. He had been involuntary towards his removal for some time but he then became voluntary. Ms Davis explained that this person was given assistance to help him reintegrate into the Maltese community. She gave evidence that the Department successfully removed the person back to Malta “without any issues whatsoever”.

65    The applicant submitted that I should place very little weight on this evidence, as it had not been pleaded (even though it related to another detainee), and he had been given no notice of that evidence so denied the opportunity to investigate the circumstances of the other case. The applicant submitted that there is no evidence of the circumstances of the removal, or the length of time the person was involuntary.

66    I do not accept the applicant’s submission that this matter was required to be pleaded, rather, it was a matter of evidence regarding a topic that arose in cross-examination. Moreover, the circumstances described in Ms Davis’s evidence are the same as those facing the applicant, in respect of which Ms Davis also gave evidence, she being familiar with both cases. Further, the submission that the Court does not know for how long the detainee was involuntary misses the point. The issue being addressed by the re-examination was the applicant’s cross-examination that Malta held concerns about the applicant such that even if he was a voluntary removal, Malta would not accept him. There is no suggestion that the length of time that the person to whom Ms Davis referred was involuntary was relevant to that issue such that the applicant should have been given an opportunity to investigate those circumstances. Moreover, if the issue is whether a person’s removal is voluntary or involuntary, it is difficult to see how the length of time before the person becomes voluntary is relevant.

67    This evidence by Ms Davis regards a relevant factual matter from which inferences can be drawn.

The applicant’s second basis

68    It is necessary to turn to the second basis on which the applicant advances his case, that the government of Malta is not, and has not been since about March 2013, willing to accept the return of the applicant to Malta unless the applicant freely and voluntarily signs an application for a travel document for his return to Malta, which he will not do.

69    The proposition that Malta has taken that position since 2013 is not in issue. There is no dispute that since 2013, Malta has consistently refused to issue a travel document to someone who is involuntary to removal. That is the evidence of Ms Davis and is also recognised in numerous formal and informal Maltese and Australian government communications and other documents which are in evidence. I note in that context, in a statement attributed to Mr Tabone in the 12 March 2013 meeting record, Mr Tabone is recorded as stating in relation to the other Maltese non-voluntary removal that:

the involuntary nature or failure of [the other Maltese national] to cooperate during the removal process is not deemed to be an impediment by the Maltese High Commission (MHC) in his removal. Hence the MHC would issue the travel document or at least a written right of entry for the client once the Maltese government agrees in principle for his removal.

Malta seemed, at that time, to be willing to be flexible in some cases in the application of its policy. That said, the evidence since that time reflects that Malta has consistently refused to issue a travel document to someone who is involuntary to removal.

70    Nonetheless, the principal question is what stems from Malta’s consistently held position since 2013 against non-voluntary removals. There are two issues: whether it has been established that there is no real prospect of Malta altering its position in the reasonably foreseeable future, and whether there is no real prospect of the applicant altering his position and becoming voluntary.

Malta’s position

71    I turn now to the submissions as to Malta’s position changing in the reasonably foreseeable future. Ms Davis’s evidence is that, in the past, countries have changed their mind about accepting involuntary removals, although she accepted that Malta has not changed its mind since the position it has adopted since at least 2013. The Minister noted that Malta’s position with respect to involuntary removal is inconsistent with the Chicago Convention to which Malta is a signatory. In that context, the Minister submitted that, based on the evidence of Ms Davis, there is no obvious futility in periodic approaches to Malta of the kind which have continued to occur, including recently that which brought about the meeting in January 2022. That may be accepted. However, it is also in that context where Malta has maintained a consistent stance since at least 2013, despite the approaches made, and there is nothing in the evidence to suggest that that is likely to change with respect to the applicant in the reasonably foreseeable future. However, even if that is so, it does not, for the reasons below, have the significance or consequence contended for by the applicant.

72    The Minister submitted that as the applicant has adopted a position of non-cooperation, and as it is within the applicant’s power to cooperate, this Court should not make the factual finding upon which the declaration depends. It cannot be said, the Minister submitted, that it is established that there is no reasonable likelihood of the applicant’s removal, if there exists a step which could be taken by the person to facilitate that removal which they decline to take. The respondent referred to the reasoning in M47 at [41] and [47]–[49], citing also Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 54; (2003) 126 FCR 54 (Al Masri) at [137] and B v The Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] FCA 699 (B) at [84]–[85].

73    The applicant contended that the Minister’s submission is misplaced, because it is asking the Court to address a legal proposition about the nature of the applicant’s detention. As referred to above, the applicant submitted his conduct or position towards removal was irrelevant. There is an artificial aspect to the applicant’s submission. For example, the submission that the applicant “has refused to do what he cannot do, namely freely and voluntarily signing an application for a Maltese travel document”, fails to recognise that it is an act within the applicant’s control. It is entirely within his power to cooperate and to take steps which may assist in facilitating his removal. The applicant also conflates the concepts of voluntarily agreeing to be removed to Malta, with being happy, pleased or glad to do so. They are not the same. Reluctant cooperation is enough. A person can voluntarily and willingly agree to do something, even though their preference might be otherwise. It does not make the action any less voluntary. The conflation of the concepts is apparent from questions asked by the applicant of Ms Davis about a detainee signing the documentation requesting removal but remaining involuntary.

74    The Department is still engaged in pursuing the possibility of removing the applicant from Australia. This is reflected not only in the documentary evidence, but in the evidence of Ms Davis. As explained above, Ms Davis gave evidence in her affidavit, inter alia, that: where a detainee is refusing to sign a passport application, the Consular Engagement and Liaison Team in the National Removals Team will continue to pursue attempts to obtain a travel document to facilitate removal through diplomatic channels; that is occurring in this case; prior to the COVID-19 pandemic, the Department liaised periodically with the Maltese High Commission about the possibility of obtaining a travel document for the applicant (usually at least twice a year); and although there was disruption to these periodic meetings by the COVID-19 pandemic, Ms Davis met with the newly appointed Maltese High Commissioner on 20 January 2022 for the purpose of raising the issue of the provision of travel documents to Maltese detainees who are involuntary towards removal to Malta. In cross-examination, Ms Davis rejected the proposition that there is no point in the Department making any further attempts to remove the applicant. In that context I do not accept the applicant’s submission that from 2019 onwards, virtually no meaningful steps have been taken to remove the applicant from Australia.

75    The applicant does not have a legal entitlement to remain in Australia, and has exhausted his legal avenues to do so. He nonetheless chooses to frustrate the operation of the Migration Act because he does not wish to return to Malta. That is a position of non-cooperation. This is not a case, like Al-Kateb, in which the applicant is stateless. This is not a case where the applicant’s refusal to sign the travel documents to facilitate his return to Malta proceeds from an accepted well-founded fear of persecution or real risk of significant harm. Although the applicant does rely on what he says are his fears of harm if he is removed to Malta, his protection application was not established, and the appeals were dismissed. This application is not an opportunity for the applicant to reopen those claims. In this context, the applicant’s continued failure to cooperate is a choice.

76    Although the Minister referred, inter alia, to M47 in support of her submission, it does not as the applicant submitted, change the nature of the submission from a factual one into a legal one. M47 addresses, in the circumstances of that case, whether as a matter of fact, the inferences the applicant sought to have the Court draw from the facts were established: see for example M47 at [10], [30] ff and [42], [49]. For the applicant in M47 to raise a challenge to Al-Kateb, the first issue was whether the necessary factual findings underpinning it could be made (M47 at [11]–[12]). In M47, the plurality concluded (at [41]) that no inference could be drawn that removal was not reasonably practicable where the detainee refused to provide information to the authorities about his identity, frustrating the attempts of the Australian government to process him. The legal questions as to the lawfulness of the detainee’s detention therefore did not arise for consideration given the factual conclusions.

77    Although it may be accepted that the particular facts in M47 are different from the present circumstances, there is in this case, as in M47, the common underlying proposition of a refusal to cooperate with the Department: see, for example, M47 at [30]. The Minister, in referring to M47, placed particular reliance on the observation by the plurality (Kiefel CJ, Keane, Nettle and Edelman JJ) at [36]:

In addition, the Department is still engaged in pursuing the possibility of removing the plaintiff from Australia. There is no reason to doubt that this pursuit is genuine and further, given the posture of non-cooperation adopted by the plaintiff, the Court is in no position to conclude that the pursuit is futile. The defendants’ submission that the options for the plaintiff’s removal have not yet been exhausted should be accepted.

78    And at [41]:

The inconsistent statements made by the plaintiff as to his identity and place of origin are not explicable by genuine uncertainty or ignorance, and so it cannot be assumed that it is beyond his power to provide further information concerning his identity that may shed positive light on his prospects of removal. Neither can it be concluded that the options for his removal within a reasonable time, if his cooperation is forthcoming, have been exhausted.

79    And to the same effect by their Honours Bell, Gageler and Gordon JJ at [49]:

In the absence of his cooperation, it cannot be known whether the plaintiff’s identity can be established, nor can the Court essay any conclusion as to the prospect or likelihood of his removal from Australia. It follows that none of the inferences on which the plaintiff relies is open.

80    The passages referred to in Al-Masri and B similarly reflect that the issue of cooperation there considered was a factual one.

81    For example, in B at [84]–[85], Lander J observed:

[84]    In Minister for Immigration and Multicultural Affairs v Al Masri, the Court adverted to a factual situation where the person who is liable to be removed frustrated the process of removal.  The Court said, at [137]:

‘We should add that we do not intend our observations to give any support to a contention that a person who has made a request in writing under s 198(1), might by their own act in frustrating the process of removal, make their continued detention unlawful.  For the purposes of the implied limitation, if such a person were, for example, to refuse to sign a consent required by a country otherwise prepared to take him, that person would not (ordinarily at least) be held in circumstances where there was no reasonable likelihood of his removal.’

[85]    That dictum would seem to prevent the applicants’ mother from claiming the benefit of the Al Masri decision.  She has refused to co-operate in her removal and, in those circumstances, would seem to be not entitled to argue that her continued detention is unlawful.  If that is right, and she continues to refuse to co-operate, she faces indefinite detention.  In SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1116 at [98]–[99], I said:

‘In Al Masri the Full Court determined that the Minister’s purpose in detaining a detainee must be for the removal of that detainee otherwise the detention would be unlawful: Al Masri at 272.  Moreover, the Minister could only detain to effect a removal as soon as “reasonably practicable”.  In those circumstances there must be “a real likelihood or prospect of the removal of a person from Australia in the reasonably foreseeable future”: Al Masri at 272.

In determining whether there is a real likelihood or prospect of removal regard must be had to the applicant’s cooperation in effecting that removal.  It is only if the applicant is prepared to cooperate that the implied limitation that the detention can only continue where there is a real likelihood or prospect of removal of the person from Australia exists.’

82    The submission advanced by the Minister with respect to the position adopted by the applicant is a factual matter.

83    The evidence establishes that the applicant has been repeatedly requested by the Australian authorities to sign a Maltese passport application, most recently on 4 December 2020 and 21 May 2021, during the life of these proceedings. He declined to do so. As explained above, the Department’s attempts to remove the applicant are ongoing.

84    Given the applicant’s conduct which has frustrated the attempts to remove him to Malta, I am not persuaded that it will not become reasonably practicable to remove the applicant, and that there is no real likelihood or prospect of removal of the applicant from Australia in the reasonably foreseeable future. It cannot be concluded that removal to Malta within a reasonable time, if the applicant’s cooperation is forthcoming, cannot be achieved.

85    The applicant submitted that he is not required to do anything to assist his removal and therefore, this consideration as to his conduct is irrelevant to the factual assessment to be made. It was submitted that it is Malta who is not cooperating, not him. That submission is based on the contention that the provision that requires he be deported (including against his will – s 198(6) of the Migration Act) is a legal submission, which may be one to be determined by the High Court. It is common ground that the issue before this Court is a factual one. It is not a question of whether the conduct of declining to cooperate is lawful or not. The applicant has no legal right to stay in Australia and all avenues to do so have been exhausted. The applicant gains no support from M47 at [34] where the plurality observed:

The attempt on behalf of the plaintiff to turn his falsehoods to his advantage needs only to be noted to be rejected in accordance with the general disinclination of the courts to allow a party to take advantage of his or her own wrongful conduct. There is no basis in the materials before the Court for any conclusion other than that the plaintiff has deliberately failed to assist the defendants in their attempts to establish his true identity and nationality when, so far as the agreed facts are concerned, he does not appear to have anything legitimate to lose by cooperating…

86    It was not suggested in M47 that the conduct the detainee engaged in was unlawful. As in M47, the applicant has nothing legitimate to lose. Of course, as in M47, by cooperating it would deprive the applicant of an argument that is now sought to be made, and he would be removed. The Minister’s submission that the applicant has nothing legitimate to lose by cooperating must be accepted.

The applicant’s position

87    The applicant’s evidence is that he is unwilling to return to Malta and will not voluntarily sign any application for a travel document to that country to facilitate his removal there, and that his position will not change.

88    The applicant explained in his affidavits that this is chiefly because he wishes to stay in Melbourne and remain close to his family. Melbourne is where he has lived since he was four years old and where all his family continue to live. The applicant referred to the arrangements as to the care of his son which include restrictions on his being taken outside the Commonwealth. He also said he was fearful of the effect that being returned to Malta will have on his mental health, which has suffered in previous periods of isolation from his family. He is fearful of being alone in Malta without emotional or financial support or access to proper health treatment, including mental health treatment. He is also fearful that if he is returned to Malta he may suffer harm as a result of the publication of his name and details of his criminal record in a “Malta Today” article, and the threats that were made online about him after its publication. It is apparent that some of the reasons now relied on by the applicant were the basis of his protection application, which has been refused at first instance and on appeal.

89    The applicant submitted that the evidence demonstrates that the expressed position that he will not voluntarily return to Malta is “both unlikely to change in the reasonably foreseeable future, and entirely reasonable in the circumstances”.

90    The Minister submitted that the applicant’s past and ongoing refusal to sign a travel document occurs in the context of the various applications made, designed to secure a right to stay in Australia. It was submitted that this is a further such application. It was submitted that the applicant is attempting to turn his refusal to leave into a right to stay. If the applicant is unsuccessful in the present proceedings, having exhausted all avenues to secure his release from immigration detention, he will face the prospect of indefinite immigration detention. In those circumstances, and accepting his evidence of his present state of mind that he is unwilling to return to Malta and his present state of intention that he will not voluntarily sign an application for a travel document to enter Malta in the future, the Court cannot conclude that those sentiments will never change.

91    As referred to above, the applicant submitted that his position is a reasonable one. The significance of the submission is unclear. The applicant has no right to stay in Australia as all his applications in attempting to do so have been dismissed. It is not for this Court to determine the reasonableness or otherwise of his desire to stay in Australia. If it is said that the reasons will not change and therefore the applicant will not change his position, that submission is available to him regardless of the perceived reasonableness of his position. As referred to above, it should also be noted that some of these reasons expressed by the applicant were the subject of his application for a protection visa, which was refused.

92    The applicant criticises the Minister’s submission that the Court should conclude that if he does not succeed in these proceedings, faced with the prospect of indefinite detention, he may change his mind and become voluntary towards removal. It was submitted that “[i]ndefinite detention for the purpose of grinding the applicant into a state of hopelessness such that he is driven to assist in his removal from Australia away from his wife and son would not be detention for a legitimate purpose”. That misinterprets the Minister’s submission and the issue before this Court. Moreover, as explained above, the lawfulness of the applicant’s detention is not for this Court to decide because as accepted by the applicant, this Court is bound by Al-Kateb. More importantly, this Court is addressing a factual question of whether the applicant has established that there is no real likelihood or prospect of removal of the applicant from Australia in the reasonably foreseeable future. That evidence relied on includes that of the applicant, and the inferences said to arise. That is to be considered in a context which includes the fact that if the application is unsuccessful the applicant will continue to be detained, as he has no legal right to stay in Australia. That context is also that the applicant has exhausted his avenues to stay, with his multiple applications attempting to do so having been dismissed. It is not a question of the Minister using the prospect of indefinite detention to force a change of mind. Rather, the consequence of detention is simply part of the factual and legal matrix in which the application is brought, and necessarily part of the context in which the submission as to the inferences to be drawn from his evidence must be considered.

93    The applicant is also critical of the Minister’s submission on the basis that it is said to have the effect of placing less weight on the applicant’s evidence, without having challenged that evidence in cross-examination. However, the applicant’s evidence, which appeared to be ultimately accepted by his counsel, can be no higher than evidence as to his current state of mind regarding his future intention. The Minister does not challenge that evidence. That is all the evidence the applicant can give. Putting to the applicant that in the future he may change his mind can also relate only to his current state of mind.

94    In light of the evidence of the applicant’s current state of mind as to his future intention, the Minister points to two occasions where the applicant had expressed a contrary intention (or at least the possibility of holding a contrary view). I note that the applicant in his affidavits addresses the first of the occasions relied on by the Minister, but is silent as to the second.

95    As referred to above, in April 2012, the applicant completed a form requesting his voluntary removal, and although the applicant then made an application to the Minister in May 2012 under s 195A of the Migration Act, on 8 June 2012, the applicant met with officers of the Department, and an internal Department email recorded that:

[The applicant] seems to have turned his mind to the real possibility of being removed to Malta. [The applicant] has indicated that he will sign the s…..198 and be removed voluntarily if unsuccessful with his [s].195A. [The applicant] reiterated that he would only do so on the condition that his wife and step-son are on the flight with him. He stated that he does not trust immigration because of what happened in the past and will only return voluntarily on that basis.

96    This was at a time when the applicant was expecting his newborn child, due in July 2012.

97    I note that in his affidavit, the applicant said of this occasion that he was worried he would be deported and wanted to know if his family might join him.

98    Subsequently, on 29 December 2017, an officer of the Department met with the applicant and a record of that meeting states:

•    [DMH20] is not interested in requesting voluntary removal at this time.

•    [DMH20] stated that MALTA will not issue a travel document for his return, if he is involuntary.

•    [DMH20] has ongoing family court matters, which he wishes to pursue vigorously.

•    [DMH20] believes he will be targeted once he arrives in Malta, due to his criminal convictions.

•    I advised that he should think about his options, if he is returned to Malta. Specifically, if he is concerned about his publicity in Malta, he may wish to consider moving/settling to another country. I advised he would have to make his own way out of Malta.

•    [DMH20] stated that he would be willing to be removed, if his wife and 5 year old biological son are also removed. I advised that this would only be possible in limited circumstances. Specifically, he would need consent from the biological mother, or have full custody of the child.

•    While he is not willing to sign up at this time, he was receptive to the information that was presented to him, and reacted positively to the fact that he will be a free man when he arrives in Malta, and what he chooses to do after he arrives is up to him.

•    I did not push any particular course of action, but presented information and answered his questions, with the view that he may come to his own decision to request removal. There was no point in trying to persuade [DMH20] of a particular course of action. A passive approach is more likely to produce a positive result over time.

99    As is apparent from these two instances, the applicant has in the past expressed a view that he would be prepared to be voluntary to his removal. Also, it is evident from the documentation that these expressions were made in circumstances where he recognised that his legal options to stay were unsuccessful. The personal circumstances of the applicant, in particular in 2017, are not dissimilar to those relied on in this application. The applicant’s evidence on this application appears to be that his primary means of communication with his son while in detention is by telephone and audio-visual means, which I note could occur from elsewhere.

100    In that context, there have been a number of proceedings advanced to achieve the applicant’s goal of remaining in Australia.

101    On 31 October 2018, the last of the proceedings, the applicant’s appeal in his ITOA application was dismissed.

102    On 2 January 2019, the applicant received an email from the Maltese Deputy High Commissioner (in response to an email query he had made), which states:

With reference to your request for clarification, kindly note that a Maltese citizen may only opt to apply for a Maltese passport by willingly completing and signing the passport application and providing the necessary documents.

Unless the Maltese passport application is consensually signed, no travel document can be issued by the Maltese authorities.

103    The next day, the applicant emailed his case manager, stating that as a result of the advice he had received from the Maltese Deputy High Commissioner, he was being detained for removal that could not be carried out and therefore his immigration detention was unlawful. These proceedings were commenced on 7 February 2019.

104    The applicant’s submission that he is not by these proceedings attempting to find a right to stay is, in the circumstances, rather disingenuous. In circumstances where the applicant has no right to stay in Australia, his choice not to sign the documentation which would enable his voluntary removal affects the Department’s ability to remove him. The applicant’s conduct which frustrates his removal is being relied on in a positive manner to stay in Australia.

105    In any event, those are the factual circumstances in which this application is made.

106    It is made in the circumstance where the consequence is that if this application does not succeed, on the current state of the law, the applicant will continue to be detained. His avenues for challenge would appear to be exhausted. I do not accept the applicant’s submission that I cannot consider that circumstance.

107    In circumstances where the applicant has been open to the prospect of voluntary removal if his legal proceedings were unsuccessful, from which the consequence is continuing detention, I am not persuaded that there is no prospect of the applicant altering his position. The other issues or concerns raised by Malta, referred to above, would be considered in a different context. I note also the evidence of Ms Davis, referred to above, that assistance was given to another particular detainee to reintegrate to Malta. Matters of that nature have not arisen given the applicant’s current position, but the possibility of such assistance is of note, in that it may inform any decision made in respect to the possibility of agreeing to voluntary removal.

108    Even if I had found otherwise, I would not be persuaded as to the factual conclusion sought by the applicant.

Conclusion

109    For the reasons above, I am not persuaded that it will not become reasonably practicable to remove the applicant, and there is no real likelihood or prospect of removal of the applicant, from Australia in the reasonably foreseeable future. This is the declaration which the applicant asks the Court to make.

110    In any event, even if I had found otherwise I would not have been persuaded to make a declaration in the terms sought, as to do so would assert a fact devoid of its factual context. That is, any ability to remove the applicant is frustrated by his conduct, and his unwillingness to cooperate with the process. It would then be a matter for another court to determine any legal ramifications of that result.

Associate:

Dated:    8 September 2022