Federal Court of Australia

BVZ21 v Minister for Home Affairs [2022] FCA 1344

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application dated 4 November 2022 be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The applicant, who has been given the pseudonym ‘BVZ21’, is a New Zealand citizen. She has been held in immigration detention as an unlawful non-citizen for over seven years. For reasons that will be explained, relevant officers of the Commonwealth are obliged by law to remove her from Australia as soon as reasonably practicable, however she cannot be returned to New Zealand and is unwilling to return there voluntarily. Nothing much seems to have occurred in the last two years in terms of finding a third country which may be willing to receive the applicant. In this application, which came before me urgently as duty judge, the applicant seeks to end the apparent stalemate which is perpetuating her detention by seeking a writ of mandamus which would compel the Minister for Home Affairs to transport her to Sydney Airport so that she can catch a flight to Greece on 17 November 2022. The applicant maintains that she will be entitled to enter Greece, apparently because she will be granted a tourist visa upon arrival.

2    As desirable as it may be to bring the applicant’s prolonged detention to an end as soon as possible, the Court cannot grant the urgent relief sought by the applicant. Her application must be dismissed.

3    The applicant’s engagement with the responsible Minister and his Department concerning her visa status has been long, tortuous and lamentable. It was most recently summarised by the Full Court in BVZ21 v Commonwealth [2022] FCAFC 122 at [14]-[38]. In short summary, the applicant applied for a protection visa as long ago as September 2015. That visa application was the subject of an extraordinary series of mostly adverse ministerial and departmental decisions, but for the most part successful administrative and judicial review challenges. In July 2020, the Minister exercised his personal power pursuant to s 501A(3) of the Migration Act 1958 (Cth) to set aside a decision of the Administrative Appeals Tribunal, and refused the applicant’s visa application on character grounds. That decision was made despite a previous finding that Australia owed the applicant protection obligations based on the real risk that she would be seriously harmed if returned to New Zealand. The applicant’s subsequent judicial review challenge to that decision failed. Her appeal rights in respect of the judicial review application were exhausted in August 2021.

4    The applicant has made a number of failed attempts to secure an order from this Court for her release from immigration detention. Her most recent attempt was brought to an end by the judgment of the Full Court in BVZ21. This would appear to be her first attempt to secure her removal from Australia by means of a writ of mandamus.

5    Section 198 of the Act provides for the removal of unlawful non-citizens from Australia in certain specified circumstances.

6    Section 198(1) provides as follows:

198    Removal from Australia of unlawful non-citizens

(1)    An officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed.

7    Section 198(6), which is in the following terms, specifies one of those circumstances:

(6)    An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:

   (a)    the non‑citizen is a detainee; and

(b)    the non‑citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

   (c)    one of the following applies:

(i)    the grant of the visa has been refused and the application has been finally determined;

    (ii)    the visa cannot be granted; and

(d)    the non‑citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

8    I have referred to both s 198(1) and s 198(6) of the Act because the Minister, who appeared in opposition to the relief sought by the applicant, seemed to suggest that the duty to remove the applicant from Australia only arose in recent times when she asked the Minister, in writing, to remove her to Greece, thus engaging s 198(1). It would appear to me, however, that the duty to remove the applicant from Australia as soon as reasonably practicable arose, by reason of s 198(6) of the Act, in August 2021 when her appeal rights in respect of the refusal of her protection visa application were exhausted. It is unclear what, if any, steps have been taken to remove the applicant since August 2021. The fact that the Minister appears to have been acting under a misconception in respect of the operation of s 198 of the Act is somewhat concerning, to say the least.

9    As noted earlier, while there is a duty under s 198 of the Act to remove the applicant from Australia as soon as reasonably practicable, that duty does not extend to removing the applicant to New Zealand. That is a result of the operation of s 197C(1), (2) and (3), which provide as follows:

197C    Relevance of Australia’s non-refoulement obligations to removal of unlawful non-citizens under section 198

(1)    For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.

(2)    An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.

(3)    Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:

(a)    the non‑citizen has made a valid application for a protection visa that has been finally determined; and

(b)    in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

  (c)    none of the following apply:

(i)    the decision in which the protection finding was made has been quashed or set aside;

(ii)    a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);

(iii)    the non‑citizen has asked the Minister, in writing, to be removed to the country.

10    Section 197C(4) to (9) deal with the circumstances in which a “protection finding” can be taken to have been made. It is unnecessary to set those subsections out. Suffice it to say that it is apparent that the Minister had made a protection finding in respect of New Zealand in the applicant’s case. It follows that the applicant cannot be returned to New Zealand unless she asks the Minister in writing to remove her there. The applicant has made it abundantly clear that she has no intention of doing that. The result is that, unless it becomes reasonably practicable to remove the applicant to a third country, the applicant may remain in immigration detention indefinitely.

11    A writ of mandamus compelling relevant officers to discharge the duty to remove as soon as reasonably practicable under s 198 of the Act may issue where it has been established that such officers have been dilatory in performing that duty, or have failed to take any reasonable steps to discharge that duty: Commonwealth v AJL20 (2021) 95 ALJR 567; [2021] HCA 21 at [52] (Kiefel CJ, Gageler, Keane and Stewart JJ); see also BHL19 v Commonwealth (No 2) [2022] FCA 313 at [177]. It does not follow, however, that the applicant is entitled to the relief she has sought on an urgent basis in this application. Indeed, as already indicated, the Court cannot make the particular order that has been sought by the applicant. That is so for a number of reasons.

12    First, this Court does not have jurisdiction to grant relief in the nature of a writ of mandamus in respect of the duty under s 198 of the Act, at least in circumstances where that is the only relief sought by the applicant: see BHL19 at [70]-[97]; Chamoun v Commonwealth [2021] FCA 740 at [51]-[70]. That is a result of the operation of s 476A(1) of the Act. If the applicant wishes to apply for a writ of mandamus to enforce the duty under s 198 of the Act, she will have to first seek that relief in the Federal Circuit and Family Court of Australia (Division 2), though she can subsequently apply to have that application transferred to this Court. If the transfer application is granted and the transfer confirmed, the Court would then have jurisdiction by reason of s 476A(1)(a) of the Act.

13    Second, even if the Court had jurisdiction to entertain an application for a writ of mandamus to enforce the duty to remove under s 198 of the Act, that jurisdiction would only extend to making an order, or issuing a writ, which required relevant officers to remove the applicant from Australia as soon as reasonably practicable. It is at best doubtful that the Court would have the power to make an order compelling officers to remove the applicant to a specific place (Greece) by a specified date (17 November 2022) or in a specified manner (“unshackled”).

14    Third, the power to issue a writ of mandamus, or make an order in the nature of such a writ, to enforce the duty under s 198 of the Act would only be enlivened in circumstances where it has been demonstrated that the Executive has refused to perform that duty, or has been dilatory or has failed to take any reasonable steps to discharge the duty. In the applicant’s case, the duty only arose when her appeal rights were exhausted in August 2021. While it is true that over a year has passed since then, the applicant has not put sufficient material before the Court to demonstrate that the Executive has been dilatory or has failed to take any reasonable steps to discharge the duty under s 198 of the Act in her case. The applicant bears the onus of proof in that regard.

15    Fourth, while it may be that the applicant is not required to establish that there is a particular country which is willing to receive her in order to obtain the relief she seeks (see BHL19 at [163]-[170]), by the same token it is by no means clear that it could be said to be “reasonably practicable” to remove the applicant to Greece simply because she might be able to obtain a short term tourist visa upon her arrival there. In BHL19, a similar suggestion by the applicant in that case evoked the following response (at [171]):

It could scarcely be accepted that it would be reasonable for the Commonwealth to remove an unlawful non-citizen to a country, other than their country of nationality or ordinary residence, whether voluntarily or involuntarily, simply on the basis that, in the ordinary course, a traveller might be able to arrive and remain in that country for a period of time, either without a visa, or with a visa obtained upon arrival. It could not seriously be suggested that it would have been reasonable for the Commonwealth to simply put the applicant on an aeroplane bound for one of those countries on the basis that he could enter the country without a visa, or could apply for a visa at the airport upon arrival.

16    Fifth, as the Minister pointed out, the applicant’s request to be removed to Greece was only received in very recent times. The Minister has not had a reasonable opportunity to consider that request or determine whether it was reasonably practicable to remove the applicant to Greece in the particular circumstances of her case. It would in those circumstances have been reasonable to give the Minister further time to consider the applicant’s request. That alone would have provided a basis to refuse the urgent relief sought by the applicant.

17    While the relief sought by the applicant bore some of the hallmarks of interlocutory relief, it was not expressly said to be interlocutory relief. The only substantive order sought by the applicant in her originating application was an order in the nature of mandamus requiring the Minister to transport her to the airport so she could catch her flight to Greece on 17 November 2022. The applicant requested that I approach her application on the basis that she sought final, not interlocutory, relief.

18    It is not at all difficult to feel considerable sympathy for the applicant and her plight. She has been in immigration detention for a very long time. She claims that the conditions of her detention are particularly harsh and that she has suffered, and continues to suffer, greatly. There is no apparent end in sight. Nothing said on the Minister’s behalf suggested otherwise. Unfortunately, that provides no basis to grant the relief which the applicant seeks on this application. It may be that, at some point in the future, the applicant may be able to demonstrate that the Executive has been dilatory or has failed to take any reasonable steps to discharge the duty under s 198 of the Act in her case. If so, she may be able to apply for a writ of mandamus to compel the performance of the duty, though that relief should, at least in the first instance, be sought in the Federal Circuit and Family Court of Australia (Division 2). For the reasons that have been given, however, the applicant’s present application must be dismissed with costs.

Associate:

Dated:     15 November 2022