Federal Court of Australia

Michael Trail (A Pseudonym) v Secretary, Department of Home Affairs [2023] FCA 1061

ORDERS

THE COURT NOTES THAT:

A.    On 1 February 2022, an order was made by Allsop CJ pursuant to s 32AD of the Federal Court of Australia Act 1976 (Cth), that the order made on 16 December 2021 transferring this proceeding from the Federal Circuit and Family Court of Australia (Division 2) under s 153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), be confirmed.

THE COURT ORDERS THAT:

1.    The application dated 1 December 2021 for an order in the nature of a writ of mandamus directing the respondent to perform, or cause to be performed, the duty in s 198 of the Migration Act 1958 (Cth), is to be dismissed.

2.    The parties are to confer and seek to reach agreement on the costs of these proceedings by no later than 4.30 pm on Friday, 29 September 2023.

3.    If the parties are unable to reach an agreement on the costs of the proceedings by 4.30 pm on Friday, 29 September 2023, each party is to file and serve submissions on costs of not more than 3 pages and the proposed orders that they seek, by 4.30 pm on Friday, 13 October 2023.

4.    If the parties cannot reach agreement on costs, the costs of the proceedings will be determined on the papers, unless either party seeks an oral hearing.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    The applicant has been detained at Villawood Immigration Detention Centre since 13 August 2018. He is a person without citizenship of any country.

2    The applicant is in a most invidious position. He is an unlawful non-citizen who has exhausted all administrative and judicial review avenues to remain in this country. At present, notwithstanding the extensive steps taken by officers of the Department of Home Affairs (Department) and the Australian Border Force (Border Force), the applicant has not been able to be removed to another country.

3    The applicant seeks relief in the nature of a writ of mandamus directing the respondent, the Secretary of the Department, to perform, or cause to be performed, as soon as reasonably practicable, the removal of the applicant from Australia, pursuant to s 198(6) of the Migration Act 1958 (Cth) (Act).

4    The applicant contends that the respondent has not complied with his obligation to remove the applicant under s 198(6) of the Act because he has not taken steps to make special approaches, from at least 20 January 2023, to remove the applicant to Australia’s “Five Eyes partners”, namely, the United States of America, the United Kingdom, Canada and New Zealand (Five Eyes).

5    For the following reasons, I am not satisfied that the Secretary has breached his duty pursuant to s 198(6) of the Act to remove the applicant, as an unlawful non-citizen, as soon as reasonably practicable.

6    Further and relatedly, I am satisfied and, I do not consider it to have seriously been in dispute before me, that it is most unlikely that the applicant can be removed to another country in the foreseeable future.

B.    Background

7    The factual and procedural background to this matter is extensive. The relevant factual background, including the administrative and judicial avenues that have been pursued by the applicant, together with the relevant procedural background, are summarised below.

8    The applicant was born in Beirut, Lebanon on 14 September 1986. He is of Palestinian ethnicity.

9    On 18 May 2005, the applicant arrived in Australia as a dependent on his mother’s Partner (Provisional) (subclass 309) visa.

10    On 3 March 2009, the applicant applied for a Protection (Class XA) (Subclass 866) visa (First Protection Visa Application).

11    On 2 June 2009, a delegate of the Minister refused to grant the First Protection Visa (First Refusal Decision).

12    On 15 November 2010, the applicant was sentenced to a term of 48 months imprisonment by a Judge of the District Court of South Australia.

13    On 16 November 2010, the Refugee Review Tribunal affirmed the Minister’s decision to not grant the First Protection Visa Application.

14    On 22 May 2012, the applicant applied for the second time, for a Protection (Class XA) (Subclass 866) visa (Second Protection Visa Application).

15    On 14 December 2012, a delegate of the Minister found the Second Protection Visa Application to be invalid on the basis that it was barred by s 48 of the Act.

16    On 29 June 2013, the applicant applied for a Carer (Class BU) (subclass 836) visa (Carer Visa Application).

17    On 2 July 2013, a delegate of the Minister refused to grant the Carer Visa Application.

18    On 6 August 2013, the Department informed the applicant that the Minister had declined to intervene pursuant to the applicant’s First Ministerial Intervention Request.

19    On 22 August 2013, the applicant applied for the third time, for a Protection (Class XA) (Subclass 866) visa (Third Protection Visa Application).

20    On 8 May 2014, a delegate of the Minister refused to grant the Third Protection Visa Application.

21    On 4 March 2016, the then Federal Circuit Court of Australia dismissed an application for judicial review of the Minister’s decision not to grant the Third Protection Visa Application: SZVCN v Minister for Immigration & Anor [2016] FCCA 431 (Judge Manousaridis).

22    On 12 September 2017, the applicant applied for the fourth time, for a Protection (Class XA) (Subclass 866) visa (Fourth Protection Visa Application). This was the applicant’s last application for a visa.

23    On 5 November 2018, a delegate of the Minister refused the grant of the Fourth Protection Visa Application.

24    On 18 January 2019, the Immigration Assessment Authority affirmed the decision of the delegate not to grant the applicant the Fourth Protection Visa Application, thus enlivening the respondent’s duty pursuant to s 198(6) of the Act to remove the applicant as soon as reasonably practicable.

25    On 9 December 2020, the applicant commenced proceedings in this Court (NSD 1305 of 2020) against the Commonwealth alleging that the Commonwealth had failed to perform its duty to remove the applicant pursuant to its duty under s 198 of the Act as soon as reasonably practical and sought an order for habeas corpus (habeas corpus proceedings). The proceeding was commenced on the basis of the decision of this Court in AJL20 v Commonwealth of Australia [2020] FCA 1305 (Bromberg J).

26    Following the successful appeal of the Commonwealth to the High Court in Commonwealth of Australia v AJL20 (2021) 273 CLR 43; [2021] HCA 21, the applicant discontinued the habeas corpus proceedings.

27    On 7 December 2021, the applicant filed the present proceedings in the Federal Circuit and Family Court (Division 2) (FCFCOA).

28    On 16 December 2021, on the application of the applicant and with the consent of the Secretary, the FCFCOA transferred the proceedings to this Court.

29    On 1 February 2022, Allsop CJ made an order under s 32AD of the Federal Court of Australia Act 1975 (Cth) confirming the transfer of the proceedings to this Court.

30    The proceedings were initially listed for a two day hearing on 12 May 2022 before Jagot J (as her Honour then was).

31    By consent, the hearing dates were vacated and the proceedings were set down for hearing for two days commencing on 14 September 2022 in order to give the respondent more time to comply with his statutory duty, in particular, to consider the potential for removal of the applicant to the Palestinian Territories, Lebanon or Türkiye.

32    On 14 September 2022, on the first day of the hearing, Jagot J made orders again vacating the hearing dates and ordered the respondent to file a single affidavit deposing to steps taken by the Department to progress the applicant’s possible removal to a specified list of countries.

33    On 24 November 2022, the Secretary filed an affidavit from Sally Rochelle McAuliffe sworn on that same date, in compliance with the orders made by Jagot J on 14 September 2022. Ms McAuliffe gave evidence of enquiries made by Border Force officers of the possibility of removing the applicant to countries including Georgia, Türkiye, Macau, Ecuador, Italy, Malaysia, Slovenia and Hungary (Alternative Countries). She gave evidence of enquiries by Border Force officer, Sarah Zacka to the Embassy of Israel on the possibility of the applicant’s removal to the Palestinian Territories, including by transiting through Jordan. Ms McAuliffe also gave evidence of further enquiries by Border Force officer, Tracey Cremerius with the Lebanese Embassy in Canberra (Lebanese Embassy) in respect of pending travel document applications by following up correspondence after approximately 6 weeks and attending the Lebanese Embassy, in person, on a fortnightly basis.

C.    Witnesses

C.1.    The applicant’s witnesses

34    The applicant relied on affidavits from his solicitors Alison Mary Battisson and Eric Zhang and Izzat Salah Abdulhadi, the Head of the General Delegation of Palestine to Australia, New Zealand and the Pacific since 2006. None of the applicant’s witnesses was cross-examined.

C.2.    The respondent’s witnesses

35    The respondent relied on 24 affidavits from the following officers of the Department and Border Force addressing the steps taken to seek to remove the applicant to another country and the difficulties that had been encountered:

(a)    Sally Rochelle McAuliffe;

(b)    Allison Louise Dee;

(c)    Sally Myee Davis;

(d)    Amanda Turner;

(e)    Rachel Margaret Colman;

(f)    Nicholas Yates;

(g)    Nivean Ismail;

(h)    Sarah Zacka;

(i)    Andrew Kane-Maguire;

(j)    Tracey Cremerius;

(k)    Matthew Wise;

(l)    Tambey Shabsough;

(m)    Jason Gillard; and

(n)    Adrian Downie.

36    None of the respondent’s witnesses, other than Ms McAuliffe, was cross-examined.

D.    Submissions

D.1.    Applicant

37    The applicant, by his counsel, initially filed written submissions dated 2 May 2022, 11 May 2022 and 1 September 2022 (2022 submissions) during the period when the proceedings were being case managed and had been listed for hearing before Jagot J. The 2022 submissions were directed at alleged failures by the respondent to take all reasonable steps to remove the applicant to Lebanon, Türkiye, the Palestinian Territories and other countries which might accept stateless persons, namely, Bulgaria, Germany, Iceland, Italy, Hungary, Slovenia, Slovakia and Svalbard, a territory in Norway.

38    Subsequently, after the proceedings had been allocated to my docket, the applicant filed further written submissions dated 12 April 2023 and 10 May 2023 (2023 submissions).

39    By the time the 2023 submissions were filed and in the period leading up to the hearing of the proceedings before me on 9 to 10 May 2023, the respondent had filed extensive evidence from officers of the Department and Border Force, culminating in an affidavit from Ms McAuliffe affirmed on 28 April 2023. It was readily apparent from that evidence that extensive attempts had been made to remove the applicant to Lebanon, the Palestinian Territories and other countries but all attempts to date had encountered significant barriers and all had been unsuccessful.

40    The focus of the 2023 submissions and the oral submissions made to me during the hearing by Mr A. Crossland of counsel, who appeared with Mr R. Reynolds for the applicant, therefore understandably changed from that advanced in the 2022 submissions.

41    The focus of the applicant’s submissions before me was that the respondent had breached his duty to take all reasonable steps to remove the applicant because he had not made a special approach to the Five Eyes partners to accept the removal of the applicant.

42    Mr Crossland of counsel, who appeared for the applicant, accepted that the question of what constitutes “all reasonable steps” or “reasonable steps to remove a person as soon as practicable” in order to comply with the duty imposed by s 198 of the Act, depends on all the circumstances of the case.

43    At the hearing of the proceeding, Mr Crossland submitted that the following circumstances were relevant in this case.

44    First, the applicant had been detained in immigration detention for 1,730 days.

45    Second, there was no foreseeable prospect of the applicant being returned to Lebanon, the country of his birth.

46    Third, there was no foreseeable prospect of the applicant being removed to the Palestinian Territories, principally because of Israel’s policy which precludes him from being able to be removed to the Palestinian Territories. Ms McAuliffe gave evidence that on 13 October 2022, two Border Force officers, Ms Zacka and Ashleigh Hibbert, were advised by an officer of the Israeli Embassy in Canberra that Israel would not approve a request to deport the applicant to the Palestinian Territories, unless the applicant could provide evidence that he held “valid Palestinian citizenship” and “appears in their citizens register”.

47    Fourth, notwithstanding many “front desk” enquiries undertaken for the removal of the applicant to the Alternative Countries, in the period from approximately 5 October 2022 to approximately 24 November 2022, there is no reason to expect that there is any prospect of the applicant being removed to any of those countries.

48    Fifth, it is within the capacity of the respondent to approach or commence negotiations with representatives of Australia’s close “Anglophone allies” for the purpose of securing an arrangement, specific to the applicant, for his removal to one of those countries. I note that the Angolphone allies is a reference to Australia’s Five Eyes partners. Relatedly, Mr Crossland submits that is also within the capacity of the respondent to engage with officers of other Commonwealth departments, including the Department of Foreign Affairs (DFAT), in relation to whether there should be such negotiations.

49    Sixth, there is evidence which supports the proposition, and no credible countervailing evidence, that there is merit in undertaking negotiations with Australia’s Five Eyes partners to secure a specific arrangement for the removal of the applicant to one of those countries. It is not simply a question of capacity and the respondent itself sees merit in such an approach as it was pursued for the plaintiff in Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285; [2019] HCA 17.

50    The applicant submitted that the failure of the respondent to take the “objectively reasonable” step of approaching Australia’s Five Eyes partners to secure a specific arrangement for the removal of the applicant was a present and continuing failure to take reasonable steps to remove the applicant.

D.2.    Respondent

51    Mr R. Knowles KC, who appeared with Mr N. Swan for the respondent, submitted that, in effect, there had been a Court supervised administration of the respondent’s duty under s 198 of the Act for the past twelve months. He advanced the following principal submissions.

52    First, the extensive evidence that the respondent had adduced to the Court did not show any failure to comply with the duty imposed by s 198(6) of the Act. Rather, the chronology filed by the respondent of the steps that had been taken in compliance with that duty referred to evidence of significant and ongoing efforts by the Department’s officers to effect removal of the applicant over a considerable period of time.

53    Second, the duty to remove an unlawful non-citizen “as soon as reasonably practicable”, imposed by s 198(6) of the Act, does not require the respondent to take all reasonable steps or any particular reasonable step. Rather, it requires the respondent not to abandon “its permissible purpose of removing” the applicant as soon as practicable and “administrative and systemic perfection is not required”.

54    Third, given the applicant’s known connection with Lebanon, including the previous issue of a travel document by the Lebanese authorities, it is “entirely understandable” that the respondent is continuing to pursue Lebanon as an option for removal in all the circumstances.

55    Fourth, the evidence of the enquiries undertaken by the respondent in Plaintiff M47 is simply not relevant to the case of the applicant because it was in a set of agreed facts in a special case for the High Court relating to different circumstances and a different applicant five years ago. Moreover, Plaintiff M47, unlike the applicant, did not have a criminal record in Australia and critically, by way of distinction, had no known connection with any country in contrast to the applicant who had a connection by birth to Lebanon, had lived there in the past and had previously been issued with a travel document by the Lebanese authorities. Given the evidence before the Court of the particular circumstances of the applicant, any special approach to the Five Eyes partners for removal of the applicant would not have been reasonably practicable. The absence of any structural or institutional barrier to making a special approach to the Five Eyes partners, as acknowledged by Ms McAuliffe, does not lead to a conclusion that making such an approach is necessary in order to comply with the duty imposed by s 198(6) of the Act.

56    Fifth, the unchallenged evidence of Ms McAuliffe is that any special approach to the Five Eyes partners for removal of the applicant could not succeed without high level ministerial involvement. Entering into such agreements for removal at a ministerial level is a matter for governments in the exercise of foreign policy in their relationships with sovereign states and their governments. These decisions are not justiciable and therefore not amenable to any writ of mandamus.

E.    Legal principles

E.1.    Section 198(6) of the Act

57    Section 198(6) of the Act provides:

198    Removal from Australia of unlawful non-citizens

Removal of unlawful non-citizens in other circumstances

    …

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

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

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

(c)    one of the following applies:

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

(ii)    the visa cannot be granted; and

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

(Emphasis added.)

58    The Full Court of this Court in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; [2003] FCAFC 131, at [64] (Goldberg, Weinberg and Kenny JJ), discussed the content of the words “reasonably practicable” by reference to dictionary definitions and authority and advanced a number of propositions which were conveniently summarised by French J (as his Honour then was) in WAJZ, WAKA, WAGF, WAKB, WAKE and WADX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 1332 at [75] in the following terms:

1.    Whether or not the removal of an unlawful non-citizen is practicable seems to be largely, if not entirely, concerned with whether the removal is possible from the officer’s viewpoint. The word ‘reasonably’ in the expression ‘reasonably practicable’ limits or qualifies what would otherwise be an almost absolute obligation. The removal of a non-citizen may be practicable in the sense that it is feasible, but not ‘reasonably practicable’ as required by s 198(6) of the Act — 308 [65].

2.    In the context of s 198(6) of the Act, practicability and reasonableness may, on occasion, operate in opposing senses. Whether the removal of a non-citizen is ‘reasonably practicable’ as distinct from merely ‘practicable’ may direct attention to a range of considerations, including factors relating to the unlawful non-citizen facing removal and the interests of third parties who may be directly affected (such as for example, the interests of third party states) — 308 [66].

3.    Whether the removal of an unlawful non-citizen will be ‘reasonably practicable’ in a particular case will depend upon all the circumstances considered by reference to the statutory duty in s 198(6) — 308 [67].

4.    Section 198(6) of the Act leaves it to the officer on whom the duty to remove would otherwise fall to consider whether removal is reasonably practicable in the circumstances of the case. The officer has to weigh these circumstances in order to decide the issue for himself or herself — 308 [67].

5.    The term ‘as soon as reasonably practicable’ is an evaluative term to be assessed by reference to all the circumstances of the case. What is reasonable is to be determined, inter alia, by reference to the practical difficulties that may lie in the way of making arrangements for removal which involve the cooperation of other countries whether in respect of the particular applicant or generally in relation to the class of applicants of which he is a part — 309 [68].

6.    Other factors that may lead an officer to conclude that removal would not be reasonably practicable in the circumstances of the case may include severe natural disaster or a state of utter civil anarchy in the country of destination or the physical condition of a person facing removal — 309 [69].

59    In Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37, the High Court considered whether s 189, s 196 and s 198 of the Act authorised the detention of an unlawful non-citizen even if their removal from Australia was not reasonably practicable in the foreseeable future. The majority, McHugh, Hayne, Callinan and Heydon JJ concluded that the provisions of the Act did authorise continuing detention in those circumstances. In the course of his separate judgment, Hayne J discussed the meaning of “as soon as reasonably practicable” under s 198 of the Act, by reference to the meaning of “practicable” in The Oxford English Dictionary, 2nd ed (1989), vol 12, p 269 and relevantly stated at [226]:

…The compound temporal expression recognises that the time by which the event is to occur is affected by considerations of what is “[c]apable of being put into practice, carried out in action, effected, accomplished, or done”

60    His Honour also emphasised at [227] that (a) the phrase “as soon as reasonably practicable” assumes an event can happen, (b) the relevant focus is on when the event will happen not whether it will happen, (c) removal is the purpose of the provisions, not a removal to a place, and (d) the time for performance of the duty to remove does not end until it is reasonably practicable to remove the non-citizen in question.

61    In Tran v Commonwealth of Australia [2021] FCA 580, Jagot J considered the construction to be given to the equivalent requirement in s 198(1) of the Act, in the context of an application that the continuing detention of the applicant was unlawful because of the respondent’s failure to remove him “as soon as reasonably practicable”. Although the Court in Tran was ultimately concerned with the alleged abandonment of a permissible purpose, namely detaining the applicant for the purpose of removing him as soon as reasonably practicable, the consideration of that issue necessarily required a consideration of the meaning of the phase to effect a removal “as soon as reasonably practicable”. In that context, in which the Commonwealth bore an onus of proof to establish that the detention of the applicant remained lawful, Jagot J made a series of observations, the effect of which can be summarised as follows:

(a)    the obligation imposed by s 198(1) of the Act is qualified by a standard of reasonableness notwithstanding the subject-matter of the section being individual liberty (at [62]);

(b)    the Commonwealth is not required to take “any and all” steps reasonably practicable to effect an applicant’s removal and to take each step “at the time each step” becomes reasonably practicable (at [63]-[64]); and

(c)    the Commonwealth does not need to show that there were no (or no other) reasonably practicable steps, it is not required to prove a negative, it does not need to imagine a universe of steps that could have been taken to explain why none was taken (at [65]).

62    Further, as Wigney J observed in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 at [169]:

The circumstances in some cases may undoubtedly be such that it could not be said to be reasonably practicable to remove an unlawful non‐citizen to a country if that country was unwilling to permit the person to enter the country, or unwilling to otherwise cooperate with Australia, in relation to the removal of the person to that country: see NATB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 506; [2003] FCAFC 292 at [48], [53] (Wilcox, Lindgren and Bennett JJ); Al-Kateb at [218], [226] (Hayne J); WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625 at [58] (French J); M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 146; [2003] FCAFC 171 at [65]–[66] and [68] (Goldberg, Weinberg and Kenny JJ); WAJZ v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 84 ALD 655; [2004] FCA 1332 at [75] (French J); Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465; [2006] FCA 1368 at [36] (Besanko J).

E.2.    Mandamus

63    A writ of mandamus is directed at a public official to compel the official to perform a public duty. An applicant for mandamus must demonstrate both the existence of a duty and an actual or constructive refusal to perform that duty: AOU21 v Minister for Home Affairs [2021] FCAFC 60 at [195] (Griffiths, Mortimer and Perry JJ).

64    A party seeking an order in the nature of mandamus bears the onus of proving the facts necessary to justify the grant of relief: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67] (Gummow J, Heydon and Crennan JJ agreeing); Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 at [24] (French CJ, Bell, Keane and Gordon JJ); AOU21 at [19], [195].

65    Notwithstanding that an applicant bears the onus of establishing facts to justify the grant of relief by way of mandamus, it is not incumbent on the applicant to identify specific countries that might be prepared to take him: BHL19 at [170] (Wigney J).

66    Rather, as Wigney J explained in BVZ21 v Minister for Home Affairs [2022] FCA 1344 at [14]:

…the power to issue a writ of mandamus, or make an order in the nature of such a writ, to enforce the duty under s 198 of the Act would only be enlivened in circumstances where it has demonstrated that the Executive has refused to perform that duty, or has been dilatory or has failed to take any reasonable steps to discharge the duty.

(Emphasis added.)

67    By reason of s 476A(1)(a) of the Act, the Court will only have jurisdiction to grant relief in the nature of a writ of mandamus in respect of the duty under s 198 of the Act if the relief is first sought in the Federal Circuit and Family Court of Australia (Division 2) and the proceeding is subsequently transferred to this Court: see BHL19 at [70]-[97]; BVZ21 at [12] (Wigney J).

F.    Consideration

F.1.    Scope of the duty pursuant to s 198(6)

68    Consistently with the statements in the authorities summarised above, in my view, the words “as soon as reasonably practicable” in s 198(6), and in other related provisions of the Act for the removal of an unlawful non-citizen, require an evaluative assessment of all the steps taken by a respondent to effect removal of an unlawful non-citizen. Necessarily, it will be fact dependent and have regard to the particular circumstances of the applicant. The evaluation is ultimately directed at a removal “as soon as reasonably practicable”, rather than the question of whether all reasonably practicable steps have been taken to remove an unlawful non-citizen. There is, however, both an inherent tension and inevitable interrelationship between the two concepts.

69    On the one hand, any attempt to pursue all reasonably practicable steps could be expected to achieve a less timely removal than a targeted focus on steps more likely to effect a removal. There may, in many cases, be a cascading series of possible alternative approaches that could be made to different countries in an effort to achieve a successful removal. Generally, but not invariably, the extent to which the unlawful non-citizen has a connection with a foreign country may relevantly guide the sequence in which those approaches might be made.

70    On the other hand, the duty to remove an unlawful non-citizen as soon as reasonably practicable must subsist until the removal has occurred. If attempts to remove an applicant have been unsuccessful but the applicant is able to identify a reasonably practicable step that has not yet been taken, it might well follow that there had been a breach of the duty.

71    An unlawful non-citizen, however, is likely to face significant practical difficulties in demonstrating that the proposed step was reasonably practicable. Whether a postulated step is reasonably practicable is a question that the Department is much better placed to answer and would, in all but the most straightforward of cases, be a matter that would be expected to depend on an assessment of the steps undertaken by an officer or officers of the Department. It is also an enquiry that may produce a different answer at different points in time. Steps that might be reasonably practicable in one period might not be reasonably practicable in other periods and the converse may also apply. The enquiry is thus temporally sensitive and inherently evaluative, often with incomplete or conflicting information as to the practicality of particular options. Foreign governments and officials may fundamentally alter their policies and procedures with little notice and further may not necessarily implement those policies and procedures in a coherent or consistent manner.

72    The difficulties with assessing the practicality of removal of unlawful non-citizens was highlighted by Hayne J in Al-Kateb at [230]:

This appellant’s case stands as an example of why it cannot be said that removal will never happen. His prospects of being removed to what is now the territory in Gaza under the administration of the Palestinian Authority are, and will continue to be, much affected by political events in several countries in the Middle East. It is not possible to predict how those events will develop. The most that can be decided with any degree of certainty is whether removal can be effected now or can be effected in the future pursuant to arrangements that now exist. Of course, it must be accepted in the present appeal that, as the primary judge found, “there is no real likelihood or prospect of [the appellant’s] removal in the reasonably foreseeable future”, but that does not mean it will never occur. Whether and when it occurs depends largely, if not entirely, upon not only the course of events in the Middle East (his preferred destination being Gaza) but also upon the willingness of other countries to receive stateless Palestinians.

73    Conceptually, in my view, consistently with the authorities in respect of s 198(6) and analogous provisions of the Act, an applicant might seek relief in the nature of a writ of mandamus compelling an officer to comply with their duty pursuant to s 198(6) to remove an unlawful non-citizen as soon as reasonably practicable in one of three ways.

74    First, an applicant might contend that the official has failed to take any, or only manifestly perfunctory, steps to comply with the duty. It would present an applicant with a much stronger case to establish a breach of duty, than a contest as to the sufficiency and timeliness of a large number of steps that might have been taken to remove an unlawful non-citizen to multiple countries.

75    A breach of duty was found and an order for mandamus was made in BHL19 essentially on this basis. The following findings were made by Wigney J at [174]:

In all the circumstances, the evidence before the Court supports the overall finding that, from at least 22 February 2021, when Removal Operations closed its “removals service” in relation to the applicant, officers of the Commonwealth failed to discharge the duty to remove the applicant from Australia as soon as reasonably practicable. From that time at least, officers who had the duty to remove the applicant pursuant to s 198 of the Migration Act have at best been dilatory in performing that duty. They have failed to take any reasonable steps to seek to remove the applicant from Australia, either to Syria (prior to 25 May 2021) or any other country. Indeed, they have done next to nothing. Their inactivity can, to a large extent, be explained by the fact that they were initially distracted by the (at the time) erroneous and irrelevant belief that the applicant could not be removed to Syria involuntarily. That caused them to effectively abandon any attempt to remove the applicant, including to any third country. No reasonable attempt was made to explore the possibility of the applicant being removed to a country other than Syria, either before or after the passing of the Clarifying Act.

(Emphasis added.)

76    Given the extensive evidence of the enquiries made by officers of the Department in this case, such a contention could not have succeeded. It could not be suggested that the Department had “failed to take any reasonable steps”, or that they have “done next to nothing”, or that they had effectively abandoned “any attempt” to remove the applicant.

77    Second, an applicant might contend that while some reasonable steps had been taken by an officer to effect their removal, taken as a whole, those steps were insufficient to satisfy the officer’s duty pursuant to s 198(6) of the Act. Such an approach would require the applicant to persuade the Court, by reference to all of the evidence relied upon by the relevant officer, that the officer had failed to remove the applicant as soon as reasonably practicable.

78    This was the approach initially taken by the applicant in its 2022 submissions. The focus of the submissions was that the officers of the Department had been dilatory and not taken sufficient steps with the governments of Lebanon, the Palestinian Territories and Israel, or with other countries, to effect the applicant’s removal as soon as reasonably practicable. As explained above at [39]-[40], this approach was effectively abandoned in the 2023 submissions and in oral submissions made before me at the hearing of the proceedings.

79    Third, an applicant might acknowledge that reasonable but ultimately unsuccessful steps had been taken but then identify an additional reasonable step that they considered was necessary for the relevant officer to take in order to establish that the officer had not breached their duty pursuant to s 198(6). Such an approach would appear to fall outside the three requirements identified by Wigney J in BVZ21 at [14] to issue a writ of mandamus to enforce the duty under s 198(6). The failure to take an additional particular step would not establish a “refusal to perform any steps”, “dilatoriness” in undertaking any steps or a “failure” to take any step. Further, it would require the Court to assess whether failing to take the additional step was sufficient for it to conclude that the officer had breached their duty, in the context of all of the other steps taken by the officer. Nevertheless, one could conceive that some steps could be readily characterised as objectively “reasonable”. For example, steps taken to remove an applicant to a country in which the applicant had a recognised connection, absent some particular issues to the contrary, might well be found by a Court to be a step that the relevant officer should have taken to avoid a finding that they had breached their duty to remove an applicant as soon as reasonably practicable.

80    This third approach, as explained at [48]-[50] above, was ultimately the approach taken by the applicant in this case. The extensive evidence of the steps taken by officers of the Department and Border Force ultimately deployed in this case effectively precluded the first and second approaches from being pursued.

81    Hence, in the present context, the issue to be determined is whether the failure to make a special approach to the Five Eyes partners was sufficient to give rise to a breach of the duty in s 198(6) in circumstances where the applicant does not challenge but rather relies on the extensive but unsuccessful steps taken by officers of the Department and Border Force to effect a removal of the applicant.

F.2.    Steps to effect removal to countries other than Lebanon

82    I am satisfied that the evidence adduced by the respondent from officers of the Department and Border Force, culminating in the affidavit of Ms McAuliffe affirmed on 28 April 2023, demonstrated sustained, extensive and comprehensive, but to date, unsuccessful attempts, to secure removal of the applicant to a third country other than Lebanon. These approaches included steps not only to remove the applicant to Israel and the Palestinian Territories, by transiting through Egypt, but also to the Alternative Countries.

83    The applicant initially challenged the timeliness of these steps and characterised the approaches as “front office” enquiries, particularly with respect to the Alternative Countries. Ultimately, however, the applicant did not materially challenge the sufficiency of the extensive steps taken by the respondent to effect removal of the applicant to other countries and placed less emphasis on any alleged delays in undertaking those steps. Rather, as explained above at [38]-[41], the applicant ultimately relied on these unsuccessful approaches to other countries to support his principal contention that it was necessary for the respondent to make a special approach to the Five Eyes partners in order not to breach his duty to remove the applicant “as soon as reasonably practicable”.

84    I am satisfied that the ultimately unchallenged evidence of the steps taken by the officers of the Department and Border Force establishes that there is no serious prospect for the foreseeable future of the applicant being removed to countries other than Lebanon.

F.3.    Prospects of removal to Lebanon

85    Central to the applicant’s contention that the respondent breached its duty under s 198(6) of the Act by not taking steps to reach a special arrangement with the Five Eyes partners, is the proposition that there was no reasonable prospect of the applicant being removed to Lebanon. That proposition, was part of the foundation for the contention that the respondent’s failure to seek to reach a special arrangement with the Five Eyes partners constituted a breach of the respondent’s duty to remove the applicant “as soon as reasonably practicable”.

F.3.1.    Lebanese travel document

86    In October 2017, the Lebanese Embassy issued the applicant with a travel document (Lebanese travel document). It was not until 21 January 2019, that the applicant advised officers of the Border Force that he wished to be voluntarily removed from Australia.

87    On 25 February 2019, Ms Colman, as a member of the Consular Engagement and Liaison Team (CELT) attended the Lebanese Embassy to request a renewal of the Lebanese travel document. Ms Colman was advised that the travel document could not be renewed and that a new application would have to be submitted and it could take between six months and a year to be issued.

88    On or about 4 December 2019, an officer of the Border Force prepared and lodged a further application for a travel document for the applicant with the Lebanese Embassy.

89    To date, no further travel document has been issued to the applicant by the Lebanese Embassy.

F.3.2.    Danish Immigration Service Report

90    In March 2020, the Danish Ministry of Immigration and Integration published a country report on Lebanon, entitled “Readmission of Palestinian Refugees from Lebanon” (Danish Report). The report was based on discussions with an officer in the Lebanese Ministry of Foreign Affairs, two diplomatic sources and a representative of an international organisation in Lebanon. The names of the four sources were not disclosed in the Danish Report.

91    The Danish Report included the following statements from the two diplomatic sources directed at the extent to which the Lebanese authorities were prepared to allow stateless Palestinian refugees from Lebanon (PRLs) living abroad to return to Lebanon:

3.1    Prevalence of return of PRLs to Lebanon

As far as the diplomatic source (1) knew, since May 2018, no European country had succeeded in returning rejected PRL asylum seekers to Lebanon, whether it was a voluntary or forced return. Other European colleagues had informed the source that it was likewise impossible for their respective countries to deport rejected PRL asylum seekers to Lebanon. The source had not heard any European colleague stating that his or her country did not have a problem in this regard.

The diplomatic source (2) was only aware of one particular case in which a foreign country was able to return a PRL without valid Palestinian travel documents to Lebanon. The return was in this instance allowed because the returnee had committed crimes which was reported extensively in the press. The Lebanese authorities thus felt compelled to allow him to return to Lebanon in order to protect the reputation of Lebanon abroad. However, the diplomatic source (1) opined that committing serious crimes abroad would lessen the possibility of obtaining permission to return to Lebanon. In general, Lebanon does not want criminal refugees to return to the country, according to the source.

…

3.3    Impact of involvement of foreign countries’ authorities

…According to the diplomatic source (2), if the authorities of a foreign country are involved in the process of return, the Lebanese MFA tends not to approve the issuance of travel documents (if the person does not have a valid Palestinian travel document) or the permission to return. It is thus only in cases where PRLs want to return voluntarily without the involvement of the authorities of the current country of residence that the PRLs may have a chance to obtain travel documents and a permission to return.

3.4    The Political context

According to the diplomatic source (1), the above mentioned practice by the Lebanese MFA is based on an order from the Foreign Minister of Foreign Affairs and Emigrants, Gebran Gerge Bassil. The order stipulates that no return of refugees from abroad should be approved by the MFA. The minister’s argument was that Lebanon already had enough refugees and that it did not receive sufficient support from the international community with regards to the large number of refugees in Lebanon. During the elections in May 2018, one of the main promises of the minister and his party, the Free Patriotic Movement, was to reduce the number of refugees in Lebanon. According to the source, the Lebanese government is generally not unhappy about PRLs leaving the country.

The diplomatic source (2) stated that the line of reasoning of the Lebanese authorities was that PRLs living in other countries, who did not have valid residence permits in those countries, were an issue for those countries and not for Lebanon.

The diplomatic source (2) found it unlikely that the government’s strict policy towards refugees in Lebanon would change in the foreseeable future given the current political climate and fiscal challenges Lebanon is currently facing.

(Footnotes omitted.)

92    On 2 May 2022, Ms Turner received a copy of the Danish Report.

F.3.3.    Meeting with Lebanese Ambassador

93    On 4 May 2022, Ms Turner and Ms Cremerius met with the Lebanese Ambassador to Australia at the Lebanese Embassy for the purpose of discussing the Danish Report. Ms Turner’s unchallenged evidence is that the Lebanese Ambassador informed her that:

6.1    he did not believe that Lebanon was not able to process travel documents for Palestinian refugees;

6.2    there was no reason that he knew of why Lebanon could not approve a travel document application for the applicant other than the economic and other issues presently occurring in Lebanon;

F.3.4    Email from Niall Kerr to DFAT

94    On 30 March 2023, Niall Kerr, a senior officer in the Department, sent an email to two officers in DFAT referring to the steps being pursued by the Department and Border Force to remove the applicant (Kerr email). Mr Kerr referred to the barriers that had been encountered in the attempts to remove the applicant to Israel, the Palestinian Territories, Lebanon and other countries. Those barriers included a reference to a Lebanese Ministerial direction issued in 2020 that “prevents the acceptance of Palestinian refugees from any part of the world”. The email concluded:

Noting that Home Affairs has reached an impasse with both Israel and Lebanon on this matter, the Department seeks DFAT’s assistance and insights, as the lead on foreign policy matters, on potential avenues that could be explored with Lebanon and Israel to progress the matter.

We appreciate this is an extraordinary request and thank you for your consideration. Any advice provided by DFAT will be kept on a confidential basis. If disclosure of information is required, Home Affairs will consult DFAT.

95    Ms McAuliffe gave evidence that a response was received to Mr Kerr’s email from DFAT on 21 April 2023, advising that DFAT officers at the “Beirut Post” considered that no potential further avenues could be explored with Lebanon.

F.3.5    Third Person Note

96    In the period since May 2022, officers of the Department have continued to engage with the Lebanese Embassy culminating in the issue of a “Third Person Note” that was formally issued to the Lebanese Ministry of Foreign Affairs on 26 April 2023. The Third Person Note sought an update on the issue of a travel document for the applicant and noted that the applicant was born in Beirut, Lebanon and had arrived in Australia on 18 May 2005 on a “Document De Voyage Pour Les Refugies Palestiniens” issued by the Lebanese Government. The Third Person Note included a request for advice on whether the applicant was eligible for a further Lebanese travel document and, given the applicant was born and resided in Lebanon as a Palestinian refugee, what options might be available for him to return to Lebanon and what criteria might he need to meet.

97    There was no evidence before me that suggested that the Department had received any response to the Third Person Note.

F.3.6    Conclusion

98    On balance, I am satisfied that the respondent has taken reasonable steps to effect the removal of the applicant to Lebanon but that at least for the foreseeable future, there is no serious prospect that the applicant can be removed to Lebanon. The candid assessment made in the Kerr email, the response received from DFAT to the email and the lack of any substantive progress notwithstanding the responses from the Lebanese Embassy all suggest any removal in the foreseeable future to Lebanon is unlikely. These communications, in effect, confirmed that the negative assessment made in the Danish Report for removal largely remains valid.

F.4.    Approach to Five Eyes partners

99    In my view, the contention that the respondent, has in all the circumstances, breached his duty under s 198(6) to remove the applicant as soon as reasonably practicable, because he has failed to make a special approach to the Five Eyes partners to accept the applicant, cannot be accepted.

100    I have come to that view notwithstanding my assessment that there is no serious prospects of the applicant being removed in the foreseeable future to Lebanon, or any other country, for the following reasons.

101    First, the decision by the respondent to make a special approach to the Five Eyes partners to remove the plaintiff in Plaintiff M47, to their respective countries, does not carry with it any necessary inference that a similar application was required for the applicant in this proceeding, in order for the respondent to satisfy his duty to remove the applicant as soon as reasonably practicable.

102    The position of the plaintiff in Plaintiff M47 was materially different to the applicant. Unlike the applicant, the plaintiff did not have a recognised connection to another country and again unlike the applicant, he did not have a criminal record in this country. The first matter may have engendered more or less willingness for a Five Eyes partner to accede to a special approach, either sympathy at the lack of a recognised connection to another country or concern about the background of the person the subject of the special approach. The absence of a criminal record in this country may well have led to an expectation of more favourable consideration of any approach for removal.

103    Second, the applicant’s contention that an approach to the Five Eyes partners for his removal should have been made was supported only by evidence of enquiries undertaken by the respondent that were included in agreed facts in the special case submitted to the High Court in Plaintiff M47. The High Court in that case was concerned with the validity of the plaintiff’s detention under s 189 and s 196 of the Act. The only potential relevance of the special approach to the Five Eyes partners was that it was included in the agreed facts for the stated case. The Court declined to draw inferences that there was no real prospect or likelihood that the plaintiff would be removed from Australia in his lifetime or in the reasonably foreseeable future from those agreed facts: at [36] (Kiefel CJ, Keane, Nettle and Edelman JJ) and [44] (Bell, Gageler and Gordon JJ). The Court, however, made no explicit reference to the utility or significance of the special approach to the Five Eyes partners in that case and made no finding that the pursuit of those approaches were necessary in order to comply with the duty to remove the plaintiff “as soon as reasonably practicable” pursuant to s 198(6) of the Act.

104    Third, the removal of persons to countries to third countries, including the United States of America and New Zealand has occurred in the past pursuant to arrangements negotiated with foreign governments but, as explained by Ms McAuliffe, with respect to a cohort of transitory persons who were taken to regional processing countries and under Commonwealth Government policy, had no right to settle in Australia.

105    The following explanation of the arrangements with the United States of America appears on the Department’s website:

In 2016, Australia and the United States agreed a resettlement arrangement. It provides resettlement opportunities in the United States for up to 1250 refugees under regional processing arrangements.

As at 31 March 2023, the United States resettlement arrangement has enabled 1081 individuals (413 from Nauru, 440 from PNG and 228 from Australia) to resettle in the United States. Many refugees have had their resettlement applications approved and are at various stages of pre-departure activities, while many others have applications in train.

106    The arrangements with New Zealand are described in the following terms on the Department’s website:

On 24 March 2022, Australia and New Zealand announced a resettlement arrangement whereby New Zealand will permanently resettle up to 450 refugees over three years to June 2025, covering refugees in Nauru and temporarily in Australia.

107    The applicant is not a transitory person, nor has he been recognised as a refugee in Australia.

108    The unchallenged evidence of Ms McAuliffe is that there is no separate agreement in place that would facilitate the removal of the applicant to a third country.

109    Fourth, any prospect that a special approach to the Five Eyes partners might lead to any agreement for the removal of the applicant is entirely speculative. There was simply no evidence advanced that might provide any credible basis to conclude that any of the Five Eyes partners might agree to a special arrangement for the removal of the applicant. In any event, the determination of what response might be received from a foreign government to a request for assistance from the Commonwealth Government is outside the competence of the Court: see Habib v Commonwealth (No 2) (2009) 175 FCR 350; [2009] FCA 228 at [68] (Perram J).

110    A failure to pursue an entirely speculative course of action cannot provide a foundation for a finding that the respondent has breached his duty to remove the applicant “as soon as reasonably practicable”.

111    Fifth, any confining of the breach of duty to a failure of officers of the Department to pursue a special approach to the Five Eyes partners, as advanced by Mr Crossland, does not assist the applicant. Focusing only on a failure of the officers of the Department to approach the Five Eyes partners makes it even more difficult to find a breach of the duty to remove the applicant “as soon as reasonably practicable” given the unchallenged evidence of Ms McAuliffe that for any special arrangement with a Five Eyes partner to come to fruition, it would need high level ministerial involvement

F.5.    Justiciability of ministerial involvement

112    Given my conclusions above at [99]-[111] in relation to the alleged special approach that should have been made to the Five Eyes partners, it is not necessary to address whether ministerial intervention to secure an agreement with one of the Five Eyes partners is justiciable. Nevertheless for completeness, and in the event that this matter is taken further, I make the following brief observations.

113    I accept that at least initial approaches by officers of the Department to their opposite numbers in Five Eyes partners would be justiciable but given the unchallenged evidence of Ms McAuliffe, referred to at [111] above, it would need high level ministerial involvement to be successful.

114    Further, as submitted by the respondent, the contention by the applicant that the respondent has breached his duty pursuant to s 198(6) of the Act by failing to make a special approach to the Five Eyes partners is, in substance, an impermissible request for the Court to engage in the merits of Australia’s international relations and foreign policy. The conduct of foreign affairs is a matter solely for the Executive branch of Commonwealth Government and any steps that might be taken by ministers of the Government to advance any removal of the applicant with foreign governments are matters of foreign policy: R v Burgess; Ex parte Henry (1936) 55 CLR 608; [1936] HCA 52 at 644 (Latham CJ); Habib at [68] (Perram J).

G.    Disposition

115    The application by the applicant dated 1 December 2021 for an order in the nature of a writ of mandamus directing the respondent to perform, or cause to be performed, the duty in s 198 of the Act, is to be dismissed.

116    Costs would normally follow the event but given the particular issues raised in this proceeding, I will give the parties an opportunity to confer and reach agreement on costs, failing which, each party will be given an opportunity to make short submissions on costs.

Associate:

Dated:    8 September 2023