Federal Court of Australia

Sami v Minister for Home Affairs [2022] FCA 1513

ORDERS

THE COURT ORDERS THAT:

1.    The application for the issue of a writ of habeas corpus, alternatively mandatory injunction, be refused.

2.    The application for declaratory relief be refused.

3.    The proceeding be dismissed.

4.    Any submissions on costs of the proceeding are to be filed on or before 23 December 2022, on the basis of a fixed lump sum, and are to be no more than 5 pages.

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

REASONS FOR JUDGMENT

MORTIMER J:

Summary

1    Mr Sami has been in immigration detention for almost a decade and, by this proceeding, seeks to secure his release. Mr Sami seeks the issue of a writ of habeas corpus, or a mandatory injunction, to require the respondents in this proceeding, the Minister for Home Affairs and the Commonwealth of Australia, to release him from detention. Further, or alternatively, he seeks a declaration that his continued detention is unlawful. Mr Sami seeks this relief on the basis that his detention is not authorised by ss 189, 196 and 198 of the Migration Act 1958 (Cth), because there is no real likelihood or prospect of his removal from Australia in the reasonably foreseeable future.

2    Mr Sami acknowledges the decision of Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 stands in the way of all of the relief he seeks. He concedes that in this Court, he can make no more than a formal submission that Al-Kateb is wrongly decided and should be overruled. However, Mr Sami submits this Court should determine the factual issues to avoid the difficulties that arose in a recent attempt to challenge Al-Kateb in the High Court: see Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 265 CLR 285 at [38]. Appropriately, the respondents expressly accept this is how Mr Sami’s case has been framed from the time Mr Sami obtained legal representation in this proceeding, and therefore have not sought its summary dismissal, despite Al-Kateb.

3    The parties had a number of disagreements about how the burden of proof operates in this proceeding, and I address these contentions below. Whatever view the Court takes, the respondents contend the evidence clearly establishes there is a “real prospect of [Mr Sami’s] removal from Australia in the reasonably foreseeable future”, and therefore, in accordance with even the dissenting judgment of Gummow J in Al-Kateb, Mr Sami’s detention remains lawful. They submit that arrangements to remove Mr Sami to Egypt are still in progress, including having recently developed in a substantial way, and that the Egyptian authorities are continuing to follow a process that will lead to Mr Sami being removed to Egypt.

4    Initially, the respondents also submitted there were other pathways for Mr Sami’s removal beyond the Egyptian option, namely an investigation of Mr Sami’s rights to residency or citizenship in France, or in several other countries. This second pathway assumed less significance in the second tranche of the trial, but I nevertheless make findings about it below.

5    For the reasons that follow, the evidence comfortably persuades me that findings of fact should be made on the evidence which support the case sought to be made by Mr Sami. That is irrespective of which of the two competing approaches to the prospects of removal is adopted.

Background

Mr Sami’s arrival in Australia and the circumstances of his detention

6    Mr Sami arrived in Australia in June 2000, on an Egyptian passport, having been granted a tourist visa. He married an Australian citizen and was granted a partner visa conferring permanent resident status in October 2003.

7    Over the following years, Mr Sami was convicted of a number of offences involving fraud or dishonesty, and sentenced to terms of imprisonment. Pursuant to s 501 of the Migration Act, a delegate of the Minister for Immigration and Citizenship cancelled Mr Sami’s visa in March 2012, rendering Mr Sami an unlawful non-citizen for the purposes of the Act. Accordingly, upon his release from criminal custody on 15 February 2013, Mr Sami was detained under s 189 of the Migration Act, pending his removal from Australia.

8    Mr Sami has resisted removal from Australia, and has pursued a number of legal options open to him. He has remained in immigration detention since February 2013.

Mr Sami’s legal proceedings

9    Mr Sami applied to the Administrative Appeals Tribunal in March 2012 for a review of the delegate’s decision to cancel his visa. The Tribunal affirmed the delegate’s decision: Sami and Minister for Immigration and Citizenship [2012] AATA 459. Mr Sami’s applications for judicial review were dismissed by the Federal Court and the Full Court of the Federal Court: Sami v Minister for Immigration and Citizenship [2013] FCA 106; Sami v Minister for Immigration and Citizenship [2013] FCAFC 128. On 10 December 2014, the High Court refused special leave to appeal from the Full Court’s decision: Sami v Minister for Immigration and Citizenship [2014] HCASL 212.

10    Mr Sami has also been unsuccessful in his applications for a protection visa, which commenced in March 2013. This first application was refused by the delegate, and the Tribunal affirmed this refusal on review. The (then) Federal Circuit Court set aside the Tribunal’s decision and remitted Mr Sami’s application to the Tribunal. However, the Tribunal affirmed the delegate’s decision again, and Mr Sami’s subsequent application for judicial review was dismissed by the Federal Circuit Court on 21 August 2018.

11    Mr Sami also commenced several proceedings in relation to applications he made in 2005 to become an Australian citizen. He was unsuccessful in each of these proceedings: see Sami v Minister for Immigration and Border Protection [2015] FCA 1496; Sami v Minister for Immigration and Border Protection [2016] FCA 1405; Sami v Commonwealth of Australia [2018] FCA 800. On 11 December 2018, White J dismissed Mr Sami’s application for an extension of time to seek leave to appeal from the Court’s decision to summarily dismiss his application for judicial review of the refusal of his 2005 citizenship applications: Sami v Commonwealth of Australia [2018] FCA 1991. Some of these proceedings also sought relief that would result in Mr Sami being released from detention. It appears that a subsequent application for leave to appeal to the High Court was rejected on 7 January 2019.

12    On the same day as that rejection of special leave occurred, the Department of Home Affairs, through the Australian Border Force, commenced the administrative processes to remove Mr Sami from Australia. On 7 January 2019 his case was referred to the section of the ABF that conducts these processes, described in the email correspondence as “WA Compliance Removals”. The email relevantly read:

Hi WA Removals

We are referring to you Mr Tony SAMI, an Egyptian national who has no outstanding matters both before the court and before the department at the moment. Mr SAMI is an involuntary UNC currently located at PIDC. Mr SAMI has been in detention since 15/02/2013 and has gone through several appeals with nil positive outcome. It appears that Mr SAMI has now exhausted all the legal avenues as the High Court declined his application for leave today noting that he has no ground to lodge further applications.

[Mr Sami’s immigration history was then set out]

Grateful if you could please accept this referral (1-G3B8WDJ) and engage with Mr SAMI to facilitate his timely removal to his country of origin.

13    As I explain in my findings below, nothing of substance happened until early 2021. Therefore, nothing about this process can accurately be described as “timely”.

14    On 17 November 2021, Mr Sami commenced the current proceeding in this Court by way of an application for habeas corpus and mandamus to compel his release from detention, as well as an order for compensation and an apology from the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, purportedly under the Australian Human Rights Commission Act 1986 (Cth). Mr Sami was without legal representation at the time he made this application. It seems that Mr Sami commenced this proceeding on the basis of findings in an Australian Human Rights Commission report that his detention had been arbitrary and contrary to the International Covenant on Civil and Political Rights. Mr Sami also made an interlocutory application to prevent his removal from Australia and to refer him to legal representation.

15    The Court referred Mr Sami to pro bono representation under r 4.12 of the Federal Court Rules 2011 (Cth) on 23 November 2021. Present counsel and, in time, their instructors, accepted the referral, for which the Court expresses its gratitude. Mr Sami has had the benefit of highly capable representation in this proceeding. The respondents are also represented by highly capable counsel and solicitors. Thus, the Court has had the benefit of well prepared and presented cases on both sides.

16    After the pro bono referral, in February 2022 an amended originating application was filed. This amended application sought an order in the nature of habeas corpus or an injunction to require his release from his detention, as well as a declaration that his detention has been unlawful since 15 January 2020, and an order for his legal costs. The application was further amended without objection in August 2022 to identify the respondents to the proceeding as the Minister for Home Affairs and the Commonwealth of Australia.

17    On the morning of the first day of the hearing, the applicant sought leave to file and rely upon a further amended originating application and a further amended concise statement. By these amended documents, the declaratory relief sought was amended. Declaratory relief about Mr Sami’s detention from 15 January 2020 was no longer sought. Thus, at the hearing the applicant sought the following declaratory relief:

1.    The detention of the Applicant:

1.1    is not authorised by ss 189(1), 196(1) and 198(6) of the Migration Act 1958 (Cth) (Act); and

1.2    therefore is unlawful.

2    In the alternative, to the extent the detention of the Applicant is purportedly authorised by ss 189(1), 196(1) and 198(6) of the Act:

2.1    those sections are invalid because they infringe Chapter III of the Constitution; and

2.2    the Applicant’s detention is unlawful.

18    As I have explained, the formal outcome in this Court is determined by an application of Al-Kateb, and Mr Sami’s application must be dismissed. However, the parties jointly invited the Court to make findings of fact reflecting the limitations on detention, set out in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54 and set out by members of the minority in Al-Kateb.

19    The parties provided a bundle of documents comprising various correspondence between various Departmental officers, and between Departmental officers and Egyptian authorities. The respondents read an affidavit affirmed by Sarah Zacka, an officer in the ABF who supervises the Department’s ‘Consular Engagement and Liaison Team’. This team is responsible for liaising with foreign consulates about the removal of unlawful non-citizens from Australia to other countries. Ms Zacka was cross-examined in relation to her evidence on both days of the hearing. Some parts of Ms Zacka’s affidavit evidence were ruled inadmissible following the hearing of objections on 8 August 2022, for reasons delivered orally that day.

20    By the end of the August 2022 hearing, it was apparent from the evidence adduced by the respondents, and filed only the Friday before that hearing, that there were a series of steps underway in an attempt to remove Mr Sami from Australia within a week or two of that hearing date.

21    The Court expressed its concern that the factual situation was still developing, and invited the parties to consider whether the Court should adjourn the hearing to allow events to run their course over what on the evidence appeared to be only a matter of weeks. The respondents opposed such a course, and submitted the parties should close their evidentiary cases and the Court should reserve its decision and make findings of fact on the evidence as it then stood. Mr Sami submitted the Court should adjourn the hearing to allow for further evidence after the present set of events had run their course. He also sought leave to re-open his evidentiary case, and to advance a different test for whether his detention was authorised by the Migration Act, seeking to adopt the approach taken by Gummow J in his Honour’s dissenting judgment in Al-Kateb.

22    After considering the parties’ submissions, the Court ruled that the hearing should be adjourned. Orders and reasons for those orders were published to the parties on 26 August 2022, after a case management hearing at which the parties advanced their respective positions orally. The Court’s reasons were:

I propose to allow the application on behalf of the applicant to reopen his case and to make the orders that are sought and consequential upon that. These are my reasons. In determining this application, I have applied the principles set out in the Full Court decision in Colin R Price & Associates Proprietary Limited v Four Oaks Proprietary Limited & Ors [2017] FCAFC 75. The subject matter of this proceeding inherently concerns an evolving situation, and that is the case whether or not it is put on the basis that the applicant initially sought to put the case relying on the reasons of, amongst others, Gleeson CJ in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 and the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54, or whether it is put on the basis, as it is now put, of Gummow J’s reasoning in Al-Kateb.

In saying that, I make no decision about whether there is, substantively, a legal difference or not. That is a matter for argument and determination at the end of the case, but however it is couched, the subject matter of the proceeding involves an evolving situation. The duty of this Court is to resolve all issues between the parties before it as finally and completely as it can, and that is what the interests of justice require, especially in a case concerning liberty. As Mr Lenehan submitted, there would be nothing preventing Mr Sami, if the respondents’ contentions were accepted, filing another proceeding, indeed, filing another proceeding before this one had finished because the ruling would have been that he was not able to adduce any more evidence in this proceeding.

So we could have a plurality of – or a multiplicity of proceedings on behalf of Mr Sami, quite lawfully, sequentially, challenging factual circumstances. That is wholly inappropriate and undesirable. What is in the interests of the administration of justice is that this Court tries to deal, as finally and completely as it can, on the basis of the most up-to-date and reliable evidence, with the arguments of the parties about whether Mr Sami’s detention is lawful. The new-evidence issues really began with a large number of documents filed, I note, without leave, by the respondents the Friday before the hearing, and it was those documents which really updated the situation about Mr Sami’s proposed removal.

The applicant needed to respond to that, but it became obvious that there had been a number of recent developments. In that context of the filing of those new documents, the respondents rely on some offers between the parties that are now before the Court with privilege waived, and, in my view, all those documents demonstrate is the fluidity of the situation, which favours reopening. While it is clear that the applicant and his lawyers were, at least, by that Friday and possibly before that, on notice about some of the recent factual developments, the reason for the flurry of activity on behalf of the respondents and those that they are communicating with just before the trial in this Court has not been the subject of any evidence by the respondents.

Inferences might be drawn that there was a connection between the flurry of that activity and the immediacy of the trial. Those inferences might, ultimately, be drawn by the Court in its final decision, or they might not; they may or may not be relevant to the questions for determination, but those inferences seem to me to be available, and what that demonstrates is that there is a high degree of fluidity, and the Court should strive not to make its decision on the drawing of an artificial line. I accept, as I did during the hearing, that a line does need to be drawn, even in a case like this, but I am firmly persuaded the line is not to be drawn at this point.

I also accept the submissions Mr Lenehan made in reply, that, really, what the offers made by the respondents, to which the Court has been taken this morning, show is that Mr Sami was being invited to agree to nothing more than an indefinite adjournment of his proceeding and some further case management, and Mr Sami was being asked to give up his right to a hearing. It is not surprising that that offer was rejected. I also take into account and accept the submission that, looking at it substantively, it is difficult to see what the difference would be between the kind of position proposed by the respondents in that correspondence and what is now happening.

Either way, later in 2022, the Court would have been asked, on the respondent’s offer, to look at the situation as it currently was, and, on the applicant’s current application, the Court is being asked to look at the situation as it currently is. In substance, the positions are much the same. I also take into account the evidence about Mr Sami’s mental health, and, in my view, in exercising its powers about the conduct of this proceeding and what is in the interests of the administration of justice, the Court should strive not to add to the distress and anxiety of an individual in detention in the circumstances of Mr Sami by taking an approach that might force him to do nothing more than commence new proceedings. That is not an appropriate exercise of power.

In that sense, there is little or no public interest in finality, in a case such as this, for its own sake. What there is, is an interest in the Court doing its best, with the assistance of the parties, to draw a line and require the evidence to be closed at a point where it looks like the Court has the best, most complete and reliable evidence that it is likely to have, which will then provide the best and most reliable basis for the Court to determine the legal arguments between the parties, and, as I said, I am not satisfied that that point has yet been reached really because of the flurry of activity on behalf of the respondents and those they are communicating with just before the trial.

I also note, as I said to Ms Pham in argument, that it is – in terms of finality –the respondents who have all the necessary and appropriate powers to resolve Mr Sami’s circumstances, and they have a number of options open to them. As Ms Pham’s recitation of her instructions to the Court this morning demonstrated, the respondents have made a number of recent elections about which powers they are prepared to exercise and those that they are not prepared to exercise to resolve Mr Sami’s circumstances. It does not, in my respectful opinion, reflect well on the respondents to come to the Court and ask it to draw artificial lines on the basis of finality when the power to resolve these circumstances lies with them. For those reasons, I will make the orders sought on behalf of the applicant.

23    The Court adjourned the trial to a further hearing on 9 November 2022. Ahead of that hearing, both parties filed further evidence.

24    At the further hearing, the respondents read and relied upon an affidavit of Naryl Brown, an officer within the “Removals team” of ABF. The applicant objected to parts of the affidavit, and some of those objections were upheld. Ms Brown is not involved directly in the removal arrangements for Mr Sami. She deposed instead to some of the processes relevant the circumstances of persons such as Mr Sami, such as communications with consular and diplomatic missions in respect of removal arrangements. Ms Brown has had some experience in applying for travel documents for Egyptian nationals, but not with the Egyptian Consulate in Melbourne, which is the entity to which an application for travel documents has been made for Mr Sami. After the objections ruling, the applicant did not seek to cross-examine Ms Brown. Where relevant, I refer to her evidence in my findings set out below.

The statutory regime governing detention and removal

25    Read with s 13 and s 14, s 189 of the Migration Act is the principal provision authorising, and requiring, the detention of non-citizens who are in the “migration zone” (a term defined in s 5 of the Act) without a valid visa. Relevantly, s 189 provides:

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

26    Section 196 provides for the continuing mandatory detention of an unlawful non-citizen:

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

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

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

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

(c)    he or she is granted a visa.

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

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

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

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

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

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

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

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

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

(7)    In this section:

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

27    Section 198 sets out the circumstances in which an unlawful non-citizen must be removed from Australia. Relevantly to Mr Sami’s circumstances, it provides:

(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.

28    Mr Sami submits that, at least after early January 2019, the only purpose for which he could be detained under the Migration Act is to remove him from Australia, relying on Applicant S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219. He contends that, where there is no real likelihood of him being removed from Australia in the reasonably foreseeable future, his detention is not for the purpose of removal, relying on Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1 at 33. Mr Sami submits that this conclusion follows from the proper construction of the relevant provisions of the Act, informed by the principle of legality in the manner explained by Gleeson CJ in Al-Kateb at [18]-[22] and by Gummow J at [122]. He contends the Full Court in Al Masri correctly construed these statutory provisions, to the same effect as the minority in Al-Kateb. This submission, founded in a constructional choice about the operation of the detention provisions in the Migration Act, is the first and primary basis on which he contends Al-Kateb is wrongly decided.

29    He then makes two further and alternative submissions. The second submission is that ss 189, 196 and 198 must be read down, in accordance with s 15A of the Acts Interpretation Act 1901 (Cth), so as to preserve their constitutional validity. This second submission remains at the level of statutory construction, albeit reliant on an underlying constitutional argument.

30    The third submission is that the provisions are constitutionally invalid to the extent they authorise the detention of a person for whom there is no real likelihood of removal from Australia in the reasonably foreseeable future, because in purporting to authorise detention in those circumstances the provisions are incompatible with Ch III of the Constitution.

31    These three submissions are made formally at first instance on behalf of Mr Sami, recognising this Court is bound by the majority reasoning in Al-Kateb.

Legal issues

The burden of proof

The applicant’s position

32    In relation to his application for the issue of a writ of habeas corpus, Mr Sami submits that, while he bears an initial evidentiary burden of establishing that there is reason to suppose that his detention is unlawful, once he has discharged this burden, the respondents bear the onus of proving that his detention is justified. In support of this submission senior counsel referred (amongst others) to Plaintiff M47/2018 at [39], McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 at [60], [92] and [273] and Al Masri at [176]. Mr Sami submits this is the case irrespective of which of the three arguments he advances is found to be correct. He submits that the fact he seeks declaratory relief does not alter this position, citing Burgess v Commonwealth [2020] FCA 670; 276 FCR 548 at [5] and [17].

33    Finally, Mr Sami submits that, if the issue at the heart of his application becomes a matter of severing the impugned parts of the Migration Act, as opposed to reading them down, the whole notion of legal onus might become inapposite, citing Clubb v Edwards [2019] HCA 11; 267 CLR 171 at [152] and [347].

The respondents’ position

34    The respondents submit that Mr Sami bears the legal onus of establishing the necessary facts for any declaratory relief he seeks. In the respondents’ submission, this reflects the ordinary onus for applicants for declaratory relief, which applies even if a different onus applies for another cause of action; relying on Gore v Australia Securities and Investments Commission [2017] FCAFC 13; 249 FCR 167 at [28]-[29].

35    On the habeas corpus application, the respondents contend there is no binding authority on onus in a situation such as this, where an implied limit on the detention power is under consideration. They seek to distinguish McHugh for that reason. Further, the Full Court’s statements about onus in Al Masri are contended not to bind this Court: first, because the question of onus was not actively put in issue by the parties in Al Masri and, second, because Al Masri was overruled in Al-Kateb. On the second point, the respondents submit all of the Full Court’s reasoning in Al Masri, whether it was made in relation to a point on which Al-Kateb overruled it or not, can have no higher status than obiter dicta: see Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd [1981] HCA 4; 146 CLR 336 at 410; Re French Caledonia Travel Service Pty Ltd (in liq) [2003] NSWSC 1008; 59 NSWLR 361 at [59].

My conclusion

36    In my opinion, the respondents parse the authorities too much. McHugh is clear authority on general principles concerning habeas corpus, and is consistent with the High Court’s statement in Plaintiff M47/2018 at [39]. It remains the case in this country that a person responsible for the deprivation of another’s liberty can be compelled to justify that detention, the legal burden of proof resting with the detainer to establish a lawful justification once a detained person has put in issue, or raised a prima facie evidentiary case about, the legality of their detention.

37    In the context of this proceeding avowedly involving a challenge to Al-Kateb (just as Plaintiff M47/2018 did), an applicant bears an:

initial evidentiary burden of establishing that there is reason to suppose that his detention has ceased to be lawful by reason that it is no longer reasonably foreseeable that he will be removed from Australia.

(Plaintiff M47/2018 at [39])

38    Were this Court not bound by Al-Kateb to dismiss all the relief sought by the applicant, I would have upheld the habeas corpus application. I consider that, but for Al-Kateb, by the evidence adduced the applicant has put in issue whether there is any real prospect of him being removed from Australia in the reasonably foreseeable future. He has raised a prima facie case, to use the alternative language in some of the habeas corpus authorities. The respondents would then bear the burden of justifying his continued detention by proving – in accordance with one of the two standards I discuss below – that his detention remained lawful.

39    As I explain below, I find the respondents have not discharged their burden of proof. While the past is not a certain guide to the future in these circumstances, the confidence with which the respondents have expressed their case on Mr Sami’s removal is not borne out by the facts, and by the course of events to the point of judgment. I have found that to be the case whether the ‘test’ is framed as the respondents submit, or as the applicant contends.

40    It would be appropriate for the Court to decide the habeas corpus application first. If the applicant succeeded, declaratory relief would also follow, if it were necessary given the issuance of the writ.

41    Sensibly, in circumstances such as the present, there could be no different approach to the application for declaratory relief. Although as the moving party the applicant might in point of legal theory bear the burden of proving the facts necessary to make out his claim for declaratory relief, in light of my factual conclusions on the habeas corpus application, any shifting of the burden back to the applicant would not have made my conclusions any different. My factual findings and reasoning are the same. In other words, even if the applicant were to bear the whole burden of proof on the facts, he has discharged it.

On the assumption Al-Kateb is overruled, what is the applicable legal test?

42    To some extent, the posing of this question and the answering of it involves crystal ball gazing. It may have been implicitly conceded in the parties’ submissions that the choice was not simply between the two alternatives they propounded, but of course the reality is that unless and until Al-Kateb is overruled, no-one will know what the correct legal test is for any limit imposed on the mandatory detention of an individual in the position of Mr Sami. It may or may not be one arising from the existing authorities. That places the Court in a difficult position for fact-finding, but not an impossible one.

43    Nevertheless, the fact-finding does not involve any hypothetical question because of that difficulty. Mr Sami is deprived of his liberty. In accordance with Chu Kheng Lim, that deprivation must be authorised by statute. Where a person is detained for the purposes of removal under s 198 of the Migration Act, a Court is able to make findings of fact about the prospects, or likelihood, of such removal occurring. Those findings are capable of providing the basis for the High Court to rule upon the lawfulness of that person’s detention in any reconsideration of Al-Kateb.

The respondents’ position

44    The respondents submit that, if Al-Kateb were overruled, the applicable legal test to establish whether Mr Sami’s detention is unlawful is to ask whether there is no real prospect of his removal in the reasonably foreseeable future. Citing Agha v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 164; 205 ALR 377 at [92]-[94], the respondents submit that a “real prospect” of removal is one that is not remote and which is not far-fetched or fanciful. The respondents submit that the test does not require the Court to be satisfied that removal is more likely than not, and that a finding that the test has been satisfied should not be made lightly: see Al Masri at [175]. Further, the Court is to ask whether the prospect exists at present: that is, at the time of judgment. The Court is not to focus on whether there has always been a real prospect of Mr Sami’s removal in the past, or the length of time that removal efforts have been underway: citing Alsalih v Manager Baxter Immigration Detention Facility [2004] FCA 352; 136 FCR 291 at [65] and Rahmatullah v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1573 at [12].

45    The “reasonably foreseeable future” is said not to be a fixed period. Instead, it depends on the facts in each case. A removal might occur within the reasonably foreseeable future even if it is in the distant future, so long as it is sufficiently clear that the removal will eventually come to pass. Relatedly, if past experience demonstrates that the arrangement of a removal to a particular country typically takes a long time, then reasonable foreseeability might extend further into the future commensurate with the period of time that experience expects.

46    The respondents also submit that the word “reasonably” qualifies the word “foreseeable”, not the reasonableness of the detention itself. The Court must take into account practical, real-world difficulties when considering what is “reasonably” foreseeable: see WAIS at [59].

47    Finally, the respondents submit that the Court can have regard to the expertise of officers involved in this aspect of the conduct of Australia’s international relations when assessing whether there is a real prospect of removal in the reasonably foreseeable future: citing Al Masri at [130] and Agha at [89].

The applicant’s position

48    Mr Sami submits that the applicable legal test to establish whether his detention is unlawful is to ask whether, as a matter of reasonable practicability, he is unlikely to be removed to Egypt in the foreseeable future. Mr Sami submits that this means that s 196 and s 198 of the Migration Act authorise and require Mr Sami’s detention only if, as a matter of reasonable practicability, he is likely to be removed in the foreseeable future. This formulation primarily rests on Gummow J’s reasons in Al-Kateb at [122], but counsel for Mr Sami also referred the Court to Gleeson CJ’s reasons at [11], McHugh J’s reasons at [33], Kirby J’s reasons at [145] and Callinan J’s reasons at [290], as well as the reasons of French CJ and Bell J in Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1 at [7] and [524], respectively.

49    This enunciation of the test developed over the course of the August hearing. By orders made on 5 September 2022, the Court granted Mr Sami leave to file and rely on an amended concise statement to reflect Mr Sami’s position on what he contends to be the legal test. Although senior counsel for the respondents indicated that he would seek instructions whether the respondents opposed leave being granted, no opposition to leave being granted was communicated to the Court before those orders were made. Ultimately, as I explain below, the respondents opposed leave being given to Mr Sami to re-open his case.

50    Mr Sami submits that “unlikely” means “not probable”, rather than “not possible”, consistently with the fundamental value of the liberty of the person, citing Boughey v The Queen [1986] HCA 29; 161 CLR 10 at 14 and Tillman v Attorney-General for the State of New South Wales [2007] NSWCA 327; 70 NSWLR 448 at [10], [13], [82] and [88]-[90]. He also submits that the meaning of “foreseeable future” depends on all of the relevant circumstances, including past engagements with the country to which the person might be removed, and the nature of any “roadblocks” to removal, citing Agha at [93]. Finally, Mr Sami submits that the fact that the Australian government is awaiting a response from other countries that might be willing to receive him does not preclude the Court from finding that his removal is unlikely, citing Plaintiff M47/2012 at [146]-[148].

My approach

51    It is not for this Court to rule on the correct approach. I have made factual findings below based on both approaches.

52    Despite [51], I consider something should be said about the premise of the respondents’ submissions summarised at [45] above. The premise is that a Court can engage in the necessary fact-finding on the basis that evidence of past experience of removal arrangements provides some kind of yardstick or benchmark for what period of time can be considered “reasonable”, and in turn what period of time into the future might be a “reasonably foreseeable” period.

53    I do not accept that premise. In my view, the evidence strongly suggests that departmental officers take their own time in making arrangements. There is not one skerrick of evidence suggesting any planning to a timeframe. There are no schedules or work plans. Subject to one finding I make below, the evidence consists of little more than a series of emails and somewhat random inquiries, with no objective basis for their timing, conducted it would seem entirely at the discretion of the officer responsible for a given removal. Replies and responses are similarly timed at the discretion of the officer concerned. There is no apparent consciousness that each day, a person like Mr Sami remains deprived of his liberty not because he is under any punishment or any sentence of imprisonment that has a known end date, but because he is being held for a single purpose. Pursuit of that purpose appears somewhat leisurely and without any real attention being paid to the fact the time taken by the officers involved is directly and causally related to a person’s continued deprivation of liberty. If the legislative scheme of mandatory detention can be said to have achieved any objective since its introduction in 1992, it has achieved the altogether disgraceful objective of officers who are otherwise no doubt conscientious and honest becoming apparently immunised to the incarceration of individuals like Mr Sami for years. All so that an activity that thousands of free individuals undertake every day in Australia – leaving on a plane to fly to another country – can be arranged.

54    I do not consider it is at all appropriate to use evidence about how long other removals have taken, how long inquiries have taken, how long responses to inquiries have taken, as evidence of anything approaching “reasonableness”. It is evidence of nothing more than discretionary timing at the hands of public officials who may have abandoned or suppressed any human sense of what it is to lock a person up other than for punishment.

55    In Al-Kateb at [140] Gummow J said:

The continued viability of the purpose of deportation or expulsion cannot be treated by the legislature as a matter purely for the opinion of the executive government. The reason is that it cannot be for the executive government to determine the placing from time to time of that boundary line which marks off a category of deprivation of liberty from the reach of Ch III.

56    While those observations were made in the context of his Honour’s view that the relevant statutory provisions in the Migration Act should be construed as subject to limits arising from Ch III of the Constitution, the point about these not being matters for the opinion of the executive is equally applicable to my present observations. Where mandatory detention exists, it should not be for the executive to simply take its own time in the removal process, as part of the general conduct of its bureaucracy much as if what was being administered was a licence application. Even if this occurs, it cannot thereby create, through the executive’s opinion of how the pace and intensity at which removal arrangements can be handled in a bureaucratic sense, some benchmark or yardstick of what is a “reasonable time” for obtaining the necessary documents and permissions for a person to be taken out of Australia and to another nation state.

Chronology

57    I make the following findings of fact in terms of the chronology of what I consider to be the key and relevant events in the respondents, by their officers, attempting to arrange the removal of Mr Sami from Australia.

58    After the 7 January 2019 email I have extracted at [12] above, an ABF officer described as “Tim” made an enquiry of the Consulate on 12 February 2019:

Good Morning,

I am writing to enquire about obtaining a travel document for an Egyp[t]ian national currently in immigration detention.

If someone could kindly call to discuss this matter I’d be most grateful.

Regards

59    A response was provided on 13 February 2019:

I would like to inform you that in order for the Consulate General to inquire with the Egyptian competent authority about the possibility of issuing a travel document for the person in immigration detention, we would need to first confirm his/her Egyptian identity.

Accordingly, kindly send the Consulate General via e-mail a scanned copy of an Egyptian identification document of the person concerned (Egyptian passport and /or Egyptian National ID card). Please confirm if the Australian Border Force holds the original identification documents.

The Egyptian Consulate General in Melbourne has jurisdiction in Western Australia, South Australia, Victoria, and Tasmania. Also please advise if the Immigration Detention Centre is located within the Consulate General’s jurisdiction.

60    Thus, confirmation of Mr Sami’s Egyptian identity was, unsurprisingly, the first step required by the Egyptian authorities.

61    Mr Sami had only an expired Egyptian passport, a copy of which the Department held. A copy was sent to the Consulate, and there ensued some correspondence about that passport. On 29 March 2019, the Consulate replied to this effect:

I would like to inform you that the relevant competent authorities in the Arab Republic of Egypt have requested that Mr. [Sami] contact one of his relatives in Egypt to visit the Egyptian Passports, Immigration and Nationality Authority in order to provide documents proving Mr. [Sami’s] identity[.]

The relevant Egyptian authorities have also requested the full names, addresses and telephone numbers of Mr. [Sami’s] relative in Egypt.

We kindly seek your assistance in notifying Mr. [Sami] to contact one of his relatives in Egypt to visit the Egyptian Passports, Immigration and Nationality Authority in order for his relative to provide documents proving his identity. We also kindly seek your assistance in providing us with the full names, addresses and telephone numbers of his relatives in Egypt.

62    The Consulate called Mr Sami “Mr Sourour”. That was his name since birth and until December 2004, when he changed it voluntarily. There is no dispute, and I find, that the Egyptian authorities knew at all times the person whose removal to Egypt was sought was Mr Sami.

63    Communications about Mr Sami’s relatives in Egypt were the subject of some dispute between the parties. The applicant submitted this meant the Egyptian authorities required contact details for relatives of Mr Sami living in Egypt, and without them, a travel document was unlikely to be issued. The respondents contended, especially at the November hearing, that this was nothing more than a method of confirming Mr Sami’s identity and not a separate requirement.

64    In my opinion, it is not possible to reach a definitive conclusion one way or the other. As other evidence below indicates, the Egyptian authorities continued to press for this requirement. Since there was no direct evidence from the Egyptian authorities, it is not possible to conclude this was only some kind of substitute identification process, as the respondents contended. It may have had other purposes, including an intention on the part of the Egyptian authorities to find out more about the family of a man who was being involuntarily removed from Australia to their country. There is insufficient reliable evidence to make a positive finding about the purpose or purposes of such inquiries by Egyptian authorities, other than to reject the respondents’ contention that it is more likely than not only about identifying Mr Sami.

65    The Egyptian authorities continued to press for this information about Mr Sami’s relatives. Several months elapsed while a small number of emails were exchanged. On 10 September 2019, “Amy” from ABF contacted “Debra” of WA Compliance Removals, and stated:

We have received correspondence from Consulate General of the Arab Republic of Egypt in Melbourne today stating the following:

“The competent authority in Egypt still request the contact details (including phone numbers) of any of Mr. Sorour’s relatives located in Egypt, or that any of his relatives attend the Egyptian passports, Immigration and Nationality Authority in order to provide documents proving Mr. Sorour’s identity/ Egyptian Nationality. The Consulate General has sent all the information you have previously provided with regard to Mr. Sorour’s family residing outside of Egypt.

Unfortunately, until the above required information is provided, the Egyptian Authority is unable to approve the deportation of Mr. Tewfik Sorour to Egypt”

This therefore means that unless he is able to comply with these requests and we are able to meet these requirements Mr SAMI will not be issued a travel document. His SR: barrier has been update to reflect that involuntary removal to Egypt cannot be progressed. Please feel free to contact me with any suggestions on how we could progress or if Mr SAMI is voluntary to his removal.

66    The applicant submitted:

The Department did not inform the Applicant of this correspondence. Indeed, in an email dated 11 September 2019, an employee of the Department noted that it would be “best not to mention” to the Applicant “that the Egyptian Govt will not issue a [Travel Document]” (CB 156).

67    I accept that submission.

68    Nevertheless, the Department passed onto the ABF, and the ABF appeared to have from its own sources, contact details and telephone numbers in Egypt. This information was passed on to the Consulate. I find on the evidence neither ABF nor the Department made any inquiries of these numbers, or the people listed in the email correspondence. Instead there were vague invitations such as the following:

If anyone finds [a] contact telephone number for his family and wishes to contact them in Egypt to act on his behalf, even though his [sic] is involuntary, please let me know.

69    During this time, Mr Sami’s mental health was deteriorating. The respondents’ records amply demonstrate this. The toll his indefinite detention was taking was serious. It was the challenges of managing him in immigration detention, and perhaps also some simply human concern, which prompted another inquiry to the Department’s removal section on 18 September 2019, from an officer at the Perth Immigration Detention Centre, where Mr Sami was then being held:

Enquiring if you may have any further update on Tony’s case. As you probably well know, Tony continues to present with difficulties around his detention (fatigue) and his management at PIDC is becoming increasingly difficult. From our observations we have not seen any regular engagement between WA Removals and Tony.

I appreciate the complexities surrounding issues associated with obtaining travel docs to effect his removal, but grateful if you can advise where the status of his case remains. Also, if you consider there is any merit in Removals engaging with Tony on that process at this time.

70    The Consulate reiterated on 10 September 2019 that it:

still request[ed] the contact details (including phone numbers) of any of Mr. Sorour’s relatives located in Egypt, or that any of his relatives attend the Egyptian passports, Immigration and Nationality Authority in order to provide documents proving Mr. Sorour’s identity/ Egyptian Nationality. The Consulate General has sent all the information you have previously provided with regard to Mr. Sorour’s family residing outside of Egypt.

Unfortunately, until the above required information is provided, the Egyptian Authority is unable to approve the deportation of Mr. Tewfik Sorour to Egypt.

71    This led “Amy”, one of the regular email correspondents from ABF about Mr Sami, to say:

As discussed, we have hit a wall with progressing Mr SAMI’s removal….

This information was provided to all Departmental staff who have been involved in Mr SAMI’s case and I expressed that unless he/we are able to comply with these requests and we are able to meet these requests Mr SAMI will not be issued a travel document. His SR: barrier will be updated to reflect that his involuntary removal to Egypt cannot be progressed.

72    Inquiries appear to have then pivoted to whether Mr Sami could be removed to France. It is not necessary to describe those in detail, but the inquiries led nowhere.

73    By the end of 2019, the respondents through their officers tried a different strategy. They had a local Egyptian officer in the Australian Embassy in Cairo send an email to the Consulate, trying to get a different kind of travel document. That inquiry drew the following response on 18 December 2019:

Your previous email is duly noted.

Please be kindly advised that after examining the case and contacting our Consulate in Melbourne to asses the situation, pursuant to the information provided by the Consulate in accordance with the directives of Egyptian Authorities, that the specific procedures around the issuing of travel documents for the aforementioned person are mandatory.

Subsequently, after following the procedures outlined by Melbourne, please continue to liaise with the Consulate, as the case rests in their purview.

74    Harking back to my findings at [53] above, the end of 2019 saw around three weeks of inaction. The delays did not produce any different attitude from the Consulate. The Consul General stated on 9 January 2020 in an email:

I would like to inform you that the Egyptian Consulate General in Melbourne was advised yesterday the 8th of January 2020 by the Office of the Assistant Foreign Minister for Consular Affairs in Cairo that the General Department of Passports, Immigration and Citizenship of the Egyptian Ministry of Interior has again requested the detailed information previously requested regarding Mr. Tawfik Ali Ibrahim Ali Sourour i.e. full names, addresses and telephone numbers of his relatives, or that Mr. Tawfik contacts one of his relatives in Egypt to attend to the General Department of Passports, Immigration and Citizenship to provide documents proving his Egyptian identity / citizenship.

75    Thereafter, for the entirety of 2020, nothing of any substance occurred. One exchange of emails in July 2020 suggested the Consulate wanted the same documentation it had been sent in early 2019 – that is, the expired passport, and any other identification documents. When the ABF officer asked a further question – whether the same process applied if the removal was involuntary – they did not receive any response from the Consulate. Six months then passed. On the evidence, nothing of substance was done by or on behalf of the respondents during this period.

76    Eventually, in January 2021, the Consulate provided another email, saying relevantly:

With reference to our telephone call yesterday 14 January 2021 and our email dated 3 July 2020. The requirements remains [sic] the same. Please also note that original identification documents are an essential requirement and contact numbers of first degree relatives in Egypt must be recent.

77    By this stage, Mr Sami had been detained for two years since his legal proceedings had been finalised. The Consulate’s position was confirmed between ABF officers on 17 March 2021, with one telling the other that Mr Sami “does not have an ongoing application [for a travel document] with the Consulate”.

78    Nothing further occurred in the first few months of 2021, until late April.

79    On 27 April 2021, an officer from the National Removals division of the ABF emailed the First Secretary of the Australian Embassy in Cairo to advise them that neither the Egyptian Embassy in Canberra nor the Egyptian Consulate in Melbourne had been willing to assist the ABF with an application for a travel document to allow Mr Sami to enter Egypt. The ABF officer asked whether the Australian Embassy in Cairo could do anything to help progress the travel document application. The Secretary replied that the Embassy would attempt to contact the Egyptian Ministry of Foreign Affairs about the matter via a third person note or ‘note verbale’.

80    A month passed.

81    On 26 May 2021, a different ABF officer emailed the First Secretary of the Australian Embassy to ask whether there had been any progress in relation to Mr Sami’s travel document. The First Secretary responded to say that the normal timeframe for the Egyptian authorities to respond to a note verbale was two to three months. In reply, the ABF officer asked, if Mr Sami were to be issued a travel document, whether the Ministry would require a travel itinerary and how long the document would remain valid for. The First Secretary responded, “We are not sure as this is the first time we approach and ask for a travel document, but the team here suspect that most probably yes the Ministry will need that info.”

82    How that squares with the number of removals to Egypt that Ms Brown deposed to was not explored in the evidence.

83    On 14 June 2021, the First Secretary emailed the ABF to advise them that he had received a response from the Egyptian Ministry on 10 June 2021. In the email, the First Secretary stated:

Unfortunately, the Ministry’s response was unhelpful; they advised that we need to go through the relevant mission in the country of the person’s residence and submit all the relevant documents to them. It is frustrating, because we had already advised them in our TPN that the reason for reaching out to them is because our efforts with the missions have not produced any results.

So! I spoke with the ambassador to see if he’d be happy to join me in a visit to the ministry to raise this issue in person. Glenn is happy to do that but asked that in the first instance, representatives of Home Affairs in Australia pay the embassy or consulate a visit and speak to them in person. He’d like us to be able to tell the Ministry that we’ve done everything you’ve asked for including going in person, but still been unable to get results. If nothing else, a visit in person may explain why they insist on a relative’s contact details.

84    On 15 June 2021, the First Secretary emailed the ABF a translated copy of the note verbale, which was dated 25 May 2021. It is appropriate to set out this document in full:

Ministry of Foreign Affairs

Office of AFM for Consular Affairs and Egyptian Expatriates

Record Number: 4705

Date: 25/5/2021

Attachments: (-)

Note Verbale

The Ministry of Foreign Affairs in the Arab Republic of Egypt, Office of Assistant Foreign Minister for Consular Affairs and Egyptian Expatriates – presents its compliments to the Australian Embassy in Cairo and with reference to the Embassy’s Notes dated 6 May 2021 regarding the request of deportation of Mr/Tawfik Ali Ibrahim Sorour from the Australian territories, the Ministry has the honour to inform the Embassy that the relevant authorities advised that “Regulations of repatriation of citizens illegally present at any country require that relevant authorities of those countries submit their deportation requests to our embassies and diplomatic missions along with all available data and documents indicating that they hold the Egyptian nationality. Embassies (though the Ministry of Foreign Affairs) are responsible for addressing the General Department of Immigration, Passport and Citizenship which shall, on their part, examine the situation and ensure they are holders of the Egyptian Nationality and accordingly respond to these requests. Those Embassies (after conducting a personal interview with the person to be deported to ensure he/she is the same person in question) shall issue them a travel document valid only for return to the Country. Those citizens may not be deported from abroad using (non-Egyptian) travel documents issued by those countries.

The relevant Egyptian authorities are currently examining the file of the above-mentioned person along with the documents indicating his identity and nationality in order to decide on the request of issuing a travel document for the said person.

The Ministry of Foreign Affairs in the Arab Republic of Egypt, Office of Assistant Foreign Minister for Consular Affairs and Egyptian Expatriates, avails itself of this opportunity to renew to the Australian Embassy in Cairo the assurances of its highest consideration.

85    The translation of the note verbale, and the emails associated with it, were tendered as Exhibit A1.

86    Thus, from May 2021, the officers of the respondents had been informed it would be necessary for Mr Sami to have an in-person interview with the Consulate.

87    Not long after the note verbale, on 24 June 2021, another ABF officer spoke to a person called “Maya” in the Consulate. The ABF officer was informed that the following information was required before a travel document could be issued:

Original Passport; Two (2) contacts of family members who are happy to accept him – including full names, address and contact numbers; Identity document – scanned copy; Confirmation he still holds Egyptian Citizenship.

88    Again, this evidence demonstrates that the Egyptian authorities continued to insist on some local verified connection in Egypt for Mr Sami. The information required goes well beyond verification of identity: it concerns who Mr Sami would live with in Egypt. I infer the Egyptian authorities were, by this point, concerned about more than just confirming that Mr Sami was who he said he was, and that he was an Egyptian citizen.

89    In August 2021, an ABF officer described as “Andrew” requested an interview with Mr Sami. His notes of that interview relevantly record the following:

Mr SAMI was asked, ‘Is you[r] Mother, Father and remainder of your family alive and living in Egypt,’ Mr SAMI stated that his Father, Mother and three half−sisters are all deceased and that he has no remaining living family members. He stated that his Father was a former Ambassador to France and the United Nations and as a diplomat worked in many other countries, his Mother was a French citizen by birth and believed that she renounced her French citizenship when she converted to Islam and moved to Egypt. Following the passing of his Father, his Mother returned to France possibly having her French citizenship reinstated, however he is not sure of this. Mr SAMI stated that he had three half−sisters, before they passed away they were living in the USA, England and Switzerland. He stated that his family moved to the USA from Egypt. He believed he lived in the USA from the late 80’s to 2000.

In response to the query from the Egyptian Consulate in Melbourne’s questions, Mr SAMI was asked if he contacts of family members who are happy to accept him, he reiterated that he was the only remaining member of his family.

90    Thus, by August 2021, Mr Sami had confirmed to the respondents’ officers that he had no living close relatives, let alone any living in Egypt. He also confirmed the wholly uncertain prospects of him being able to secure French citizenship. I infer this is one reason why no other option but Egypt has been seriously pursued by the respondents’ officers, combined with the undisputed fact that Mr Sami is an Egyptian national.

91    In September 2021, a travel document application was provided to the Consulate by the ABF. This application was made by the ABF, not by Mr Sami. As the applicant submitted, in the travel document application the ABF told the Consulate:

(a)    the location of the Applicant’s original Egyptian travel document is unknown;

(b)    the ABF does not have any original identity documents for Mr Sami; and

(c)    Mr Sami does not have any relatives in Egypt, and therefore does not have anyone to attend the Egyptian Passports, Immigration and Nationality Authority in Egypt.

92    The ABF stated:

The Australian Border Force would like to request a Travel Document be issued for Mr Tony SAMI in order to facilitate his return to Egypt as soon as possible[.]

93    This was after Mr Sami had been detained for more than two and a half years.

94    Apparently, at this stage (September 2021), Mr Sami had been listed for removal on a charter flight. He was removed from the flight because there was no travel document. What prompted him to be listed on a flight without a travel document is not revealed by the evidence.

95    In October 2021, the Consulate sent the ABF a police clearance form and asked the ABF to obtain Mr Sami’s fingerprints. In an email on 21 October 2021, the Consulate told WA Compliance Removals:

Kindly complete all the information that you mentioned before. It[’]s all required to complete the process.

96    Notwithstanding these assurances from the Consulate, again months passed. An ABF officer described in the evidence as “Paul” made an inquiry of the Consular Liaison Team in ABF on 30 March 2022:

You’ll see below we are getting questions from legal about detainee Tony SAMI. We have experienced a fair degree of difficulty understanding why the Egyptian Embassy/Consulate is not willing to issue a travel document for Mr SAMI.

Would it be possible for your team to engage with the Egyptian Embassy/Consulate to find out exactly what is required for a travel document to be issued.

Mr SAMI has been in detention very long term, ie, 3330 days (or 9.12 years). Both his mother and father are deceased. Previously the consulate in Melbourne has asked for Tony’s family members to present at the Egyptian immigration office to provide supporting information, and for Tony to submit fingerprints. Both of these have not been able to be carried out due to Tony’s unwillingness to depart or cooperate with Removals. He has also made numerous threats that he would kill himself if we tried to remove him.

If we had clear advice from the Embassy/Consulate, including them knowing that Tony was highly uncooperative, perhaps we might be able to progress this matter. Short of this, it appears from the legal correspondence below that Tony could be released from detention.

97    The ABF officer’s narrative, adverse to Mr Sami, is misleading. By the time this ABF officer sent this email, it was the ABF itself who informed the Consulate Mr Sami had no relatives in Egypt. And the evidence reveals why Mr Sami had to this point refused to provide his fingerprints. First, he had, quite reasonably, been asking to see the Egyptian police clearance form for which his fingerprints were going to be used. That was not provided to him until 26 April 2022. Mr Sami also had a legitimate concern that the Egyptians were not using his correct name, even by reference to his previous legal name before he changed it in December 2004. In an email the same day he received a copy of the police clearance form, Mr Sami said:

As I advised earlier when you correct all documents related to finger prints from the name “Tawfik Moustafa” to my correct name I will be happy to provide my fingerprints other wise please don’t contact me again I think it was 11 documents in total by this name .

Anything else you can contact my lawyers I am happy to provide their contact details again.

98    By this stage, it was not Mr Sami’s lack of cooperation which was causing the delays and his prolonged incarceration.

99    What is below this email in the evidence before the Court is pages of redacted material. No objection was taken by the applicant to the redactions. The extent of redactions is another aspect of the evidence which makes fact-finding difficult. Nevertheless, from the first and last sentences of the ABF officer’s email I am prepared to infer that this inquiry occurred not because of any consciousness on the part of ABF officers that they were failing to perform their duties under the Migration Act with anything approaching expedition, but rather that Mr Sami himself was pressuring them, and indeed legal proceedings had been threatened.

100    Finally, in terms of findings about this email, the officer’s attitude to Mr Sami’s continued detention should not pass without being noted. His main concern appears to be to prevent Mr Sami regaining his liberty by being released from detention. Why this is such a terrible or terrifying prospect, given the suite of discretionary powers available in the Migration Act, is difficult to understand. It does seem as if the officer realises or understands that prolonged and indefinite detention has a deterrent effect (that is, a punitive effect) on a person’s ability to continue to oppose their removal. It does seem as if there is a consciousness that wearing a person’s will down by prolonged and indefinite detention is a legitimate approach in these circumstances.

101    How in a representative democracy governed by the rule of law a person such as Mr Sami is compelled to be incarcerated for such a long period of time while the respondents’ officers go in circles, and do not confront the Egyptian authorities about their appalling disregard for their own citizen, and for the value of liberty for each and every individual, defies belief.

102    The lack of progress appeared to reignite consideration by ABF of other removal options. However, that consideration again could hardly be described as being undertaken with any sense of urgency. The consideration consists almost entirely of emails, and a bureaucratic to and fro between officers, discussing the lack of progress amongst themselves.

103    On 31 March 2022, Sarah Zacka, who gave evidence in this proceeding, emailed an officer from ABF’s WA Removal Operations division (WA Removals) to ask whether any enquiries had been made about Mr Sami’s case “in relation to France”. There ensued a short series of correspondence about discussions between the ABF and the Egyptian Consulate, which Ms Zacka had also asked about. On 6 April 2022, Ms Zacka emailed a different officer in WA Removals to ask again whether there had been “any progress regarding France”. The officer replied approximately 20 minutes later to advise Ms Zacka, “My last phone interview with SAMI was on 31/3/22. Due to his escalating behaviour and claims of being harassed and intimidated by ABF, I was unable to raise any questions with SAMI regarding France.”

104    On 5 August 2022, an officer from ABF’s Vic/Tas Removal Operations division (Vic Removals) emailed the Egyptian Consulate to advise them that the WA Removal Operations division had sent an updated copy of Mr Sami’s police clearance and fingerprints form via “safe hands” to the Egyptian Consulate in Melbourne on 25 July 2022 in order to “progress Tony Samis’ [sic] Travel Document application”. The officer wrote, “I was just curious to see if there are any updates regarding this matter.”

105    By this stage, “this matter” related to the detention of the applicant for two and a half years after his court proceedings had been finally determined.

106    On 12 August, a WA Removals officer emailed the Vic Removals officer to request him to attend the Consulate in person, given that the consul had not replied to the 5 August email and that Mr Sami was scheduled to be on a flight from Australia to Egypt in less than two weeks’ time.

107    How that flight scheduling came about was not revealed by the evidence, although I note that the flurry of activity which I now describe coincided with the listed hearing of Mr Sami’s application before this Court. I do not consider that a mere coincidence. I infer that given the impending Court hearing where the conduct of the respondents and their officers would be placed under scrutiny by the applicant before the Court, the respondents’ officers were spurred into a much more active level of engagement with the removal of Mr Sami, whether of their own decision or by instructions, I know not.

108    In his 12 August email, the WA Removals officer asked their Victorian counterpart to enquire “if the consulate could at the very least give an indication as to whether they are prepared to issue a TD [travel document] in that timeframe or not”. On 16 August, the Vic Removals officer replied to the WA Removals officer :

I attended the Egyptian Consulate this morning and spoke to them regarding the TD. They told me that they sent the documents off to Egypt on the day of receipt, but advised me that they wouldn’t be receiving it until the end of this month.

(Emphasis added.)

109    The passage in bold is a good example, of which there are many, of patently incorrect assertions by the Consulate about the timeframe in which steps would occur. As of 9 November 2022 that travel document had still not been received, and nor had there been confirmation that the police check was acceptable to the Egyptian authorities.

110    The trial of Mr Sami’s application was held on 9 August 2022. As I explained above, I accepted that there should be a further hearing, and further evidence, because of the very recent sequence of events just before the 9 August 2022 hearing. A case management hearing was held on 26 August 2022. Mr Sami had not been removed. There was no travel document. Leave was granted to the applicant to re-open his evidentiary case because of even more recent developments. The matter was listed for further hearing in November 2022. As I have explained, at the November 2022 hearing, the respondents also elected to adduce fresh evidence, through Ms Brown.

111    On 28 September 2022, there was a phone call between the Egyptian Consulate and the ABF. An ABF file note of the call records the Consulate’s representative stating that a travel document for Mr Sami was “done”, but that they needed to speak to Mr Sami:

I was contacted today by the Egyptian Consulate located in Melbourne, in regards to detainee Tony Sami.

The consulate contacted me in regards to an email I sent to them on the 27/09/22 wanting to organise a meeting with them regarding the processing of detainee Samis’ [sic] travel document. The consulate said that they wanted to speak with detainee Sami, either in person, or via phone. The consulate stated that the travel document was done, but they needed to speak to him.

I told the consulate that the best way to facilitate this request would be to liaise with the WA Removals Team directly, as the detainee is located in Perth.

I asked the consulate if it was ok to share their details with the WA Removals Team and I was told that it was.

The consulate then asked me if detainee Sami would be returned to Egypt from Melbourne and I advised her that removal back to Egypt would most likely occur from Perth.

112    On 12 October 2022, an ABF officer based at the Perth Immigration Detention Centre emailed an officer from WA Removals to advise that an interview room had been booked for Mr Sami on 17 October 2022. The Court’s record of an email sent in response to this message was redacted on account of a privilege asserted by the respondents. At 3.48pm, there followed an email from Mr Brown, an officer in WA Removals, sent to Mr Carey, an officer in Vic Removals, stating:

This was a long drawn out process. It ended up the way I thought it would. Would it be possible for Dan [a Vic Removals officer] to contact the Egyptian Consulate on Tuesday 18 October 2022 to find out whether they are still going to issue the travel document for Mr SAMI? If we get the travel document, I’m sure there will be a hastily arranged charter flight.

113    Mr Carey replied:

Yes no worries, we’re slowing [sic] getting somewhere. Dan will follow up with them on 18 October.

114    On 14 October 2022, an officer from Vic Removals emailed the Egyptian Consulate to confirm the phone number for the Consulate to use to contact Mr Sami for the interview, and to ask, “will Mr. Sami be provided a travel document following this interview with the consulate[?]” An officer from the Consulate replied to the email to advise that

the decision for providing Mr. Sami a travel document, will be made after the phone call meeting.

115    I pause here to note that this sequence of correspondence is inconsistent with the earlier statement that the travel document for Mr Sami “was done”.

116    Both parties agreed that the phone call scheduled for 17 October 2022 between Mr Sami and staff of the Consulate in fact occurred. At the Consulate’s request (not the request of Mr Sami or the ABF), no Australian representative was in attendance for the phone call. The phone call lasted approximately 25 minutes. Mr Sami did not give any direct evidence in this proceeding and no staff of the Egyptian Consulate were required to give evidence, so the Court does not have any direct evidence about the contents of this call.

117    On 19 October 2022, an ABF officer at the Perth Immigration Detention Centre emailed WA Removals to advise that Mr Sami had lodged a complaint with the ABF and the health care provider in the detention centre about his systematic persecution and neglect by the ABF and the health care provider. The officer asked:

This would obviously be close hold [sic] information however, do you have any idea of a timeframe for removal to assist in support planning for Mr SAMI?

118    An officer from WA Removals replied the same day:

We are still awaiting advice from the Egyptian Consulate in Melbourne as to whether they will issue a travel document for him. If one does come through, we will need to engage with ABF Charters to see if they can organise a flight to Egypt.

119    Two days later, on 21 October 2022, the WA Removals officer emailed the officer at the detention centre to advise that there were:

No real updates yet, but Tony has made some additional claims to the Egyptian Consulate which we are following through with.

120    That same day, 21 October 2022, the ABF telephoned the Consulate to ask whether Mr Sami would now be granted a travel document. An email from Vic Removals to WA Removals in substance provides a file note of that call. It should be set out in full. The email is from Dan Ashford, who is described as “Supervisor – Removal Operations Vic/Tas”. I infer this is the same “Dan” as the author of many earlier emails about Mr Sami’s removal, although in previous evidence his surname was redacted.

I just spoke to the Egyptian Consul today at 15:30hrs, who stated that she needed more info in regards to Tony Samis’ [sic] accusations that he put before her in their interview on Monday.

The consul stated that Tony Sami had told her a number of claims, but the 2 that the consul mentioned were;

•    He has 2 sons in Australia who are trying to sponsor him to stay in AU

•    And that he has a pending court case in Australia.

The Consul wanted to know what the case was in regards too, as she needed to advise the Egyptian authorities. I advised her that I would find out and let her know. The Consul stated that she probably realised that they were flimsy claims that he stated, but she had to find out exactly what the case was about. She mentioned that the other claims were probably frivolous, but needed to know what the court case was in regards [to.]

I advised the Consul, would she be more comfortable dealing with WA Removals, as they were more familiar with [h]is case. The Consul said no she was more comfortable dealing with me.

121    Shortly after his initial email, Mr Ashford sent a further email to WA Removals to note that:

What I left out in my last email was that I advised the Consul that the department had nominated to remove Tony Sami on a charter flight that was destined for the Africa region recently. I further advised her that if there were any legal matters that could potentially inhibit this removal, that [sic] the department would not have been [sic] nominated him for this removal charter.

122    On 26 October 2022, Mr Ashford sent an email to the Egyptian Consulate stating that:

The Australian Border Force does not have any information about whether Mr Sami’s sons are trying to sponsor him to remain in Australia.

After further investigation in regards to your enquiry about what Tony Sami’s court case is about, I can state that the details are as follows:

1.    Mr Sami commenced proceedings in the Federal Court on 18 November 2021. The respondents to the proceeding are the Minister for Home Affairs and the Commonwealth of Australia;

2.    The proceedings relate to Mr Sami’s current immigration detention. Mr Sami argues that there is no reasonable prospect that he will be removed to Egypt, (or any other country), or that it is unlikely as a matter of reasonable practicability that he will be removed in the reasonably foreseeable future. Mr Sami therefore seeks orders from the Court that he be released from immigration detention.

3.    Mr Sami is legally represented. The parties will next appear before the Court on 9 November 2022.

Please let me know what further steps are required before a travel document can be issued. Please do not hesitate to contact me if any further information is required.

123    On 4 November 2022, Mr Ashford emailed staff in WA Removals to advise them that he had called the Egyptian Consulate earlier that day to follow up on an email he had sent to the Consulate two days prior. In that email, Mr Ashford had asked what would be the “next steps” and “any time frames” in Mr Sami receiving a travel document. Mr Ashford told the WA Removals staff:

I was informed by Ruba that the Consul would contact me early next week, in regards to any updates regarding Tony Samis Travel document application/ processing.

When I enquired as to when early next week would be, I was informed it would be Monday.

124    Monday was 7 November 2022.

125    There was no evidence of the Egyptian Consulate or any other Egyptian authority providing any further update regarding Mr Sami as at the date of the hearing and the closing of evidence on 9 November 2022.

Factual findings

126    Two general observations should be made. First, as at the date of these reasons, the Court has not been notified that Mr Sami has been removed from Australia. There are now agreed orders in place for such notification. It appears that the events which the respondents sought to characterise as imminent were not, in fact, that imminent.

127    Second, neither party called any direct evidence about arrangements for Mr Sami’s removal. There was no evidence, and no evidence of any attempts to secure evidence, from any Egyptian officers, whether in Australia or in Egypt. There was no evidence from the Australian Embassy staff in Cairo, some of whom are mentioned in various pieces of correspondence. The officers directly involved in Mr Sami’s removal to Egypt were not called and did not provide affidavits. Rather, officers who were not directly involved were called and provided affidavits. Mr Sami himself did not give evidence, including about what was discussed at his recent interview with the Egyptian consulate.

128    Therefore, the Court has far from the best evidence before it.

129    That said, I have reached a firm view about the findings of fact that should be made on the evidence as it stands.

The applicant’s factual propositions that I accept

130    There are three factual propositions arising from Mr Sami’s submissions about the prospects of his removal from Australia, which I accept, and find as facts.

131    First, there is no known timeframe in which Mr Sami’s travel document is likely to be issued. The Egyptian Consulate has deliberately refrained from indicating to the ABF that Mr Sami would be granted a travel document, let alone when it would be granted. The recent raising of two issues after the phone call interview illustrates the state of uncertainty. The evidence I have extracted above illustrates regular inquiries from the ABF about timeframes, and the avoidance of the Consulate in giving any express answers, or giving answers to other inquiries about timeframes which were simply incorrect. For example, the indication that the police check would come back from Egypt at the end of August. On the evidence, that did not occur. There is no evidence the police check has in fact been returned to the Consulate from the Egyptian authorities.

132    Despite the email from the Egyptian Consulate to the ABF on 14 October 2022, that “the decision for providing Mr. Sami a travel document, will be made after the phone call meeting”, this did not occur by 9 November 2022, and the assurance from the Consulate was plainly also incorrect. Mr Sami submits that this material is evidence that, after being informed of the nature of this proceeding, despite their awareness of the significance the ABF attached to its request, and the significance the answer would have to Mr Sami’s court proceeding that the Consulate knew was listed for hearing on 9 November 2022, the Egyptian authorities neglected to answer the ABF’s question as to what are the next steps and the timeframe for Mr Sami’s removal to Egypt. I accept that submission.

133    I do not accept the respondents’ submissions that the emails after the phone interview were no more than clarifications, which have been addressed. If that was the case, a travel document would have been issued. To the contrary, I consider the Consulate’s inquiries have muddied the waters somewhat. Clarification might have been forthcoming from direct evidence by the Consulate, but there is none.

134    While I accept there is some consistency between the note verbale of 25 May 2021 and the eventual conduct of a phone interview, the time gap between them, and the lack of any progress after the interview, suggests there are other, undisclosed, roadblocks.

135    The most that can be found about the “was done” comment by the Consulate is that the Egyptian consul may have believed that the Ministry of Foreign Affairs had decided to issue a travel document to Mr Sami. However, this was prior to the phone interview. It has little weight given what transpired after the phone interview. In any event, in my view it was in context something of an ‘off the cuff’ remark to which little weight can be attached. Again, the failure by the respondents to adduce direct evidence of these matters is significant in terms of what probative value can be attached to throwaway lines in an email.

136    I do not accept the respondents’ submission that the Egyptian Ministry of Foreign Affairs has decided that a travel document should be issued to Mr Sami, subject to what could arise in his personal interview. There is no evidence at all for such a finding. The prevarication, unresponsiveness, and incorrectness of many communications from the Consulate suggest there is no clear or predictable pattern in its conduct. There is little or no evidence about the attitude of the Egyptian Ministry of Foreign Affairs. What, if any, communications have been made, or may occur, between the Consulate and the Egyptian Ministry for Foreign Affairs after Mr Sami’s interview is a topic on which there is no probative evidence and it is not possible for the Court to make any finding of the kind for which the respondents contend – namely, that the Egyptian consul thought there were matters that arose in the interview requiring further clarification before the consul could explain Mr Sami’s position to the Ministry of Foreign Affairs. The Court simply has no evidence about why the questions were asked or what view was taken of either of the two matters raised by Mr Sami or the ABF’s answers.

137    Second, there has been no final decision by the Consulate whether to issue a travel document. While the evidence demonstrates some procedural steps, and at least one relatively recent information-gathering step with the phone call, that is all that has occurred in almost three years. The evidence is, and I find, that the ultimate decision whether Mr Sami should be issued an Egyptian travel document rests with the Egyptian Ministry of Foreign Affairs. If all that was required was the provision of a criminal record check and fingerprints and the occurrence of a personal interview, then the travel document should have been forthcoming very shortly after the interview on 19 October 2022. Hence, however the Egyptian consul in Australia might be prepared to describe Mr Sami’s legal proceedings in an email (noting the word “flimsy” was used, without any apparent real understanding of the nature of the proceeding) carries no weight.

138    It is not clear that the Egyptian authorities have no further concerns about Mr Sami’s identity, as the respondents contend. The change of name by Mr Sami seems to have produced concerns. The evidence suggests the Egyptian authorities are only prepared to issue a travel document in Mr Sami’s original name. There is no evidence about the fate of the police check, and the fingerprints given by Mr Sami. In other words, there is no positive evidence that the Egyptian authorities were satisfied with the outcome of the police check.

139    It also remains unclear whether the Egyptian authorities still wish to speak to any relatives of Mr Sami in Egypt before a travel document is issued. While I accept the respondents’ submissions that, on the email correspondence and other communications, this appeared to be a more pressing issue early on in the attempts to obtain a travel document, I am not satisfied it is more likely than not that there is no longer any such requirement. I do not consider Ms Brown’s evidence takes the matter any further as it does not concern Mr Sami’s case and his circumstances. I am not satisfied it is more likely than not that the only purpose of this requirement was to confirm Mr Sami’s identity. That is especially so given the Egyptian authorities specifically inquired about who Mr Sami would live with when he returned. Therefore, I find it cannot be discounted that insisting on some kind of in-person contact with Mr Sami’s relatives in Egypt is an avenue the Egyptian authorities will continue to pursue before they are prepared to issue a travel document.

140    Third, it is unclear whether the recent interview between the Consulate and Mr Sami has taken the matter any further, or has set it back. The subsequent emails, and absence of a travel document, might suggest the latter. Mr Sami’s failure to give direct evidence leaves something of an evidentiary gap, but it is really the absence of evidence from the Egyptian authorities which is the more significant evidentiary gap.

Egypt

141    There is no dispute, and I find:

(a)    Mr Sami is a national of Egypt.

(b)    He does not have a current Egyptian passport, but he has an expired Egyptian passport, a copy of which was provided to the Egyptian authorities in early 2019.

(c)    The name on that passport is Tewfik ali Ibrahim Ali SOUROUR. That was Mr Sami’s name at birth and until 20 December 2004 when he changed his name to Tony Sami under the Births, Deaths and Marriages Registration Act 1998 (WA).

(d)    The Egyptian authorities are only contemplating issuing a travel document in Mr Sami’s birth name.

(e)    Mr Sami is not presently recognised or accepted as a citizen of any other country.

(f)    Mr Sami has no relatives in Egypt that he has been able to contact.

(g)    Even if there are relatives of Mr Sami in Egypt, none have been identified who are willing and able to travel to the Egyptian Passports, Immigration and Nationality Authority and provide documents proving Mr Sami’s identity or nationality, answer questions or do whatever else is required of them by the Egyptian authorities (eg provide an address of where Mr Sami will live).

(h)    Mr Sami has provided his fingerprints to the ABF for an Egyptian police check document, and that document has been sent to Egypt but there has been no communication from the Egyptian authorities as to whether they see any difficulties or obstacles arising from that check.

(i)    No travel document has been issued to Mr Sami by the Egyptian authorities, despite enquiries about the travel document first being made on 12 February 2019 and a formal application over a year ago, in September 2021.

142    It is of some significant weight that, since the 9 November hearing, the Court has not been informed that a travel document has been issued. In other words, more than an additional month has passed with no change to the status quo. That fact supports my conclusion that whether a travel document will be issued at all by the Egyptian authorities is inherently uncertain.

143    It is unclear whether the Egyptian authorities are waiting for this proceeding to conclude. Direct evidence could have been given to clarify this, but it has not. There is no rational reason for that to be the case, but it may depend on how much information the Consulate and the Egyptian Ministry of Foreign Affairs has about the nature of the proceeding. The respondents are correct to submit that, objectively, there is nothing about this proceeding that would prevent Mr Sami’s removal to Egypt. It is correct that it is unlikely in the extreme that an injunction would be granted to restrain Mr Sami’s removal to Egypt when this proceeding concerns the inability of the respondents to remove him. Nevertheless, the Court cannot exclude the possibility that the Egyptian authorities are waiting for this proceeding to conclude, now that they appear to be on express notice about it. Why or how they were not on express notice at an earlier point in time is a mystery, but of no apparent legal relevance.

On the respondents’ test: no real prospect of removal to Egypt in the reasonably foreseeable future

144    I am comfortably persuaded that there is no real prospect of Mr Sami being removed to Egypt in the reasonably foreseeable future.

145    In Agha at [92]-[93], Jacobson J said:

The Al Masri limitation has two conditions each of which involves an element of speculation. The first is that there must be a “real likelihood or prospect”. This does not mean that removal will happen. Nor does it mean that removal must be more likely than not. In my opinion all that is required is that there be a likelihood which is not remote and which is not far fetched or fanciful.

The second condition is that there must be a likelihood of removal in the reasonably foreseeable future. This is not a fixed period. It must be determined according to the facts of each particular case. Here, Ms Mathews initially expressed a view in terms of the ultimate question, that is, “the reasonably foreseeable future”. But in cross-examination she said that she expected the verification checks to be completed well within 6 months. Given the practical considerations involved in travel and communications in Afghanistan, a period of at least 3–4 months would be within the reasonably foreseeable future.

146    As to the first condition, I do not consider it is possible on the evidence to describe there being a “likelihood” of Mr Sami being removed. It is not so much that the prospect can be described as “fanciful”, which might be a description to be applied – for example – to the return of a person to country where there is no functioning government, and which is so inherently dangerous that it could not reasonably be imagined that Australia would deposit a person into such a situation. Ukraine might be a contemporary example. Removal might appropriately be described as “fanciful” in such circumstances.

147    Here, the difficulty on the evidence is with “likelihood” – stemming not so much from the circumstances in Egypt as from the attitude of the Egyptian authorities over the last three years. In my opinion, the evidence discloses too much uncertainty around what the Egyptian authorities require, and what in reality they propose to decide and to do, as opposed to assurances in emails about what might occur, which have proven incorrect. The level of uncertainty means that I am unable to find that there is any “likelihood” of Mr Sami being removed to Egypt. The Court would need to go beyond speculation on the evidence to adopting nothing more than hope. Hope is not likelihood.

148    As to the second condition, while the respondents were (correctly) at pains in submissions to emphasise that each case is fact dependent, I consider it is notable that Jacobson J conceived of the foreseeable future as a matter of months. That is, with respect, appropriate, and I consider his Honour well understood that what was at stake was the denial of liberty to a person only because they are subject to involuntary removal as soon as reasonably practicable. It must be recalled that his Honour’s judgment in Agha occurred while Al Masri was good law and there were limits to immigration detention under ss 189, 196 and 198. That is the alternate universe in which this Court is also asked to make its factual findings. In that alternate universe, it is appropriate to pay particular regard to the common law’s protection of liberty, which Parliament is taken to understand and respect.

149    Despite what appears to have occurred over the years since ss 189, 196 and 198 were introduced, it is difficult to understand that, objectively, the provisions disclose a Parliamentary intention that it might take many years to be able to place a person on an aeroplane and either return them to their country of nationality or send them to a third country. Three years, for example, is as long as a term of a federal government in this country. In that context, and insofar as the Al Masri test, applied in Agha and being the one for which the respondents contend, asks a Court to look to the “reasonably foreseeable future”, I do not consider that a period spanning more than a number of months can properly be adopted. Whether it is two, or four months, or simply “several” months, may well be fact dependent. One way in which the factual circumstances might affect what a court finds to be the “foreseeable future” may be how long attempts at removal have been underway. If a person has not been detained for very long, and little or no attempts have been made, it may take more time to establish what process is required. I find that is a relevant factor here. Attempts at removal have been underway for more than three years. Nothing in the next few months is being attempted for the first time, or in unknown conditions. All is familiar to those with responsibilities under the Migration Act to remove Mr Sami. This is one factor contributing to my conclusion that the foreseeable future in Mr Sami’s case should be characterised as a few months.

150    Taking that approach, the fact that a travel document has not been issued by the Egyptian authorities remains unexplained. When the Consulate was informed Mr Sami had been placed on a charter flight scheduled to leave on 23 August 2022, they did not issue a travel document to enable that to occur. By that time, they had his fingerprints and the police check form had been sent to Egypt (handed to the Consulate in July 2022). Despite having had more than two years to interview Mr Sami, they had not proposed an interview. Nor did they propose one when notified of the charter flight. After many follow ups, the Consulate asked on 28 September 2022 to interview Mr Sami. The timing of that request to interview Mr Sami is unexplained on the evidence.

151    To recall what, chronologically, was the last piece of evidence before the Court about the attitude of the Consulate (and, I infer, the Egyptian authorities), well after the interview with Mr Sami, I reproduce below Mr Ashford’s email from Friday 4 November 2022:

I rang the Egyptian Consulate this afternoon at 14:20hrs, to follow up on the email that I sent to the Consulate on Wednesday 02/11/22.

I spoke with RUBA , who then went and sought clarification with the Consul.

I was informed by Ruba that the Consul would contact me early next week, in regards to any updates regarding Tony Sami[’]s Travel document application/ processing.

When I enquired as to when early next week would be, I was informed it would be Monday.

152    I infer no update was provided on Monday 7 November, since that was two working days before the November hearing and I am confident the respondents would have adduced any response if one was received. This yet another example of the Consulate saying one thing and doing another.

153    Even if, contrary to my conclusions, I was persuaded there was a “likelihood of removal”, it is not possible for the Court to be satisfied on the balance of probabilities that any removal may occur in the next few months. That is, I find, a period equating to the “reasonably foreseeable future”. The Court would be doing no more than either hoping, or guessing, to find otherwise.

On the applicant’s test: as a matter of reasonable practicability, unlikely to be removed to Egypt in the foreseeable future

154    I make the same findings on the applicant’s preferred test. For my own part, although it is not for me to decide, there may not be much of a distinction as a matter of substance. At [122] of Al-Kateb, Gummow J says:

If the stage has been reached that the appellant cannot be removed from Australia and as a matter of reasonable practicability is unlikely to be removed, there is a significant constraint for the continued operation of s 198.

155    This is the passage on which the applicant relies. However, at [124], when describing how prospects of removal may “revive”, his Honour says:

Nor, it may be, does the appellant escape further liability to renewed detention to facilitate that removal if the prospects of removal arrangements revive as a matter of real likelihood.

(Emphasis added.)

156    Both approaches speak of likelihood. Both are expressed in the negative.

157    Either way, the Court is required to engage in fact-finding about the probabilities of a course of events in the future. It is not guessing. It is not hoping. It is not tossing a coin. The Court is applying the ordinary civil standard of proof to propositions about what may occur in the future. It must still be persuaded on the balance of probabilities, one way or the other. In that sense, the Court is not ‘speculating’. It is drawing inferences from the facts on the evidence before it. Those inferences concern events to occur in the future, to be sure, but they are still inferences to be drawn from the evidence. In Seltsam Pty Limited v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [84]-[88], Spigelman CJ said:

It is often difficult to distinguish between permissible inference and conjecture. Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division. Nevertheless, the distinction exists.

Lord Macmillan in Jones v Great Western Railway Co (1930) 47 TLR 39, in the context of stating that a possibility that a negligent act caused injury was not enough, said (at 45):

“The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have validity as legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference.”

After referring to this passage, Sir Frederick Jordan in Carr v Baker [1936] NSWStRp 20; (1936) 36 SR(NSW) 301 said (at 306):

“The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible.”

As Lord Wright put it in a frequently cited passage in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170:

“Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some case the other facts can be inferred with as much practical certainty, as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”

The test is whether, on the basis of the primary facts, it is reasonable to draw the inference. (See eg Layton v Vines [1952] HCA 19; (1952) 85 CLR 352 at 358).

158    His Honour was there dealing with inferences about causation. However, in my respectful opinion, his observations are applicable in the present circumstances. On either test, the Court must ask itself what it is reasonable to infer from the evidence about the likelihood of Mr Sami’s removal. Whether the inference is framed as “no real prospect” or “as a matter of reasonable practicability unlikely” seems to me have little effect on the result. In any event, on the evidence before the Court in this case, I would draw the same inferences irrespective of which way the test was expressed as between the two contended choices.

On either approach

159    The length of time Mr Sami has spent in detention (three years) and the three months that passed between the hearing in August 2022 and the hearing in November 2022 support the ultimate inferences for which the applicant contends. As I explained at [52]-[56] above, that conclusion is reached not because of any premise about the time taken to get to this point being ‘reasonable’, or ‘normal’ or ‘usual’. Rather, it is the simple fact of the passage of more than three years since the duty under s 198 arose, on the view most favourable to the respondents. As I explain above, if the respondents are correct that all that is required is a police check and a travel document, then there is no objective basis for this needing to take three years. The fact that, on the respondents’ own case about the steps involved, Mr Sami is still detained after more than three years and two court hearings, demonstrates that there is no real likelihood of him being removed in the foreseeable future. The respondents sought to have the Court, in effect, ignore the amount of time that had passed, and focus on the future. That is an incorrect approach. What has happened in the past is capable of being a guide as to what may occur in the future. It may not be determinative, but it is relevant.

160    In a case where there is no dispute about a person’s nationality, no issue of refoulement (on Australia’s assessment of its obligations), and no suggestion an ordinary international flight cannot be used to take a person to their country of nationality, it should have been reasonably practicable to have removed Mr Sami within approximately six months of his proceedings being finalised. The steps required were not complex. The vastly increased pace at which ABF officers were able to move between around mid-July 2022 to the Friday before the 9 August 2022 hearing indicates to me that the ABF officers are able to move much faster when they have a reason to do so. As is the Consulate. Intensive efforts by both parties could not reasonably take longer than six months, if there was a genuine willingness on the part of the Egyptian authorities to cooperate in facilitating Mr Sami’s return to his country of nationality. The conclusion which in my opinion seems most probable on the evidence is that the Egyptian authorities do not wish to facilitate Mr Sami’s return to Egypt. They have not been placed under any real pressure to accept a person who is obviously their citizen. Rather, the respondents’ officers have permitted matters to meander along for more than three years.

161    On the evidence before me, there is no rational basis for the Court to conclude that there are any real prospects this situation will alter over the next few months. Of course, that finding can say nothing about whether the Egyptian authorities might suddenly decide, for reasons known only to them, to issue a travel document for Mr Sami. No rational assessment of the evidence suggests that is a realistic prospect, but unilateral action cannot be ruled out. That is in large part because the Court has had no direct evidence from the actors most centrally involved in this tragic situation.

Removal to other countries

162    By the time of the November trial, this matter was given little emphasis by the parties. The principal evidence about this option came from Ms Zacka.

163    Her evidence about removal to Qatar, the United Arab Emirates or the United States did not rise above vague and undeveloped possibilities. It could not seriously be entertained as rising even to a “real likelihood”. For example, as the applicant submitted:

As regards the USA, in her evidence, Ms Zacka confirmed she is not aware of any case in which a person was able to be removed to the United States in circumstances in which the person was a previous green card holder; held third-country citizenship but no valid passport; had criminal convictions in Australia; and was not a person who has made out refugee or complementary protection claims (T80).

164    I accept that submission.

165    In relation to France, the evidence suggests it was Mr Sami himself who initiated inquiries about whether he was entitled to French citizenship. It was not in dispute that Mr Sami currently did not hold French citizenship. The evidence was that, in January 2019, Mr Sami told a Departmental officer he:

has previously indicated that he may be entitled to French residency through his mother. He has allegedly been in contact with the French Embassy in Canberra and they are investigating his case. He is still waiting for a response.

166    The most Ms Zacka could say in cross-examination is that countries may be “more forthcoming” with the ABF rather than with a detainee.

167    In late March 2022, Ms Zacka emailed a WA Removals officer to ask whether any enquiries had been made about Mr Sami’s case “in relation to France”. There ensued a short series of correspondence about discussions between the ABF and the Egyptian Consulate, which Ms Zacka had also asked about. On 6 April 2022, Ms Zacka emailed a different officer in WA Removals to ask again whether there had been “any progress regarding France”. The officer replied approximately 20 minutes later to advise Ms Zacka that “My last phone interview with SAMI was on 31/3/22. Due to his escalating behaviour and claims of being harassed and intimidated by ABF, I was unable to raise any questions with SAMI regarding France.”

168    Aside from this, there is no evidence the respondents through their officers have even seriously explored whether Mr Sami could be granted French citizenship, and if so through what means and how long this might take.

169    Properly, the respondents ultimately accepted that regardless of which party bears the onus, the Court must find that it is unlikely that, in the reasonably foreseeable future, Mr Sami would be removed to any of the other countries considered in this proceeding, namely the United States, the United Arab Emirates and Qatar.

On the respondents’ test: no real prospect of removal in the reasonably foreseeable future to any country other than Egypt

170    The evidence is incapable of establishing any real prospect of removal to a country other than Egypt in the reasonably foreseeable future. In relation to that latter term, I adopt the approach I have set out above – namely that it means, in the present circumstances, a few months. For example, the respondents appear to accept Mr Sami is not currently a national of France but would have to go through some kind of application or grant process, at the very best, the outcome of which is entirely unknown. However, the respondents’ officers simply have not explored this option, any more than the other options. They have focused on Egypt, understandably so.

On the applicant’s test: as a matter of reasonable practicability, unlikely to be removed to any country other than Egypt in the foreseeable future

171    My findings on the basis of the applicant’s proposed approach are the same as those on the respondents’ approach.

Habeas corpus

172    If the law were otherwise, I would have no difficulty finding that the applicant has raised an issue, or established a prima facie case, that his removal is unlikely as a matter of practicability in the foreseeable future, or that there is no real prospect of his removal in the reasonably foreseeable future. If the law were otherwise, I would have no difficulty in finding that the respondents had not discharged their burden of proving lawfulness. My findings of fact would be the same as those made above at [126]-[171].

173    Were the law otherwise, my findings would justify the grant of a writ of habeas corpus.

The two competing approaches

174    Whether the applicant has the onus to prove positive propositions on either “test” for the lawfulness of the applicant’s detention, or the respondents have the onus to prove negative propositions, in my opinion the result is the same on the evidence. The evidence is sufficiently clear about the level of uncertainty, and the inordinate periods of time already taken, including failed attempts over the two hearings separated by three months, that in my opinion on either test the applicant’s case on the facts should succeed. Aside from some kind of arbitrary course of conduct by the Egyptian authorities, without notice and unrelated to the existing evidence about their conduct to this point (which can of course never be ruled out), I find Mr Sami’s detention is likely to continue into the foreseeable future.

Conclusion

175    Were the law otherwise, the Court would have granted the relief sought on the findings of fact it had made. However, on the authority of Al-Kateb, the applications for relief must be dismissed, and the proceeding itself must be dismissed. The Court will hear the parties on costs, as they requested.

Associate:

Dated:    16 December 2022