Federal Court of Australia
ABF17 v Commonwealth of Australia [2024] FCA 694
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: | 28 June 2024 |
THE COURT ORDERS THAT:
1. The applicant’s application for an order in the nature of a writ of habeas corpus is dismissed.
2. By 4.00 pm on 12 July 2024, each of the parties is to file brief written submissions of no more than 5 pages addressing: (i) the question of costs; and (ii) what, if any, orders should be made in relation to the balance of the claims made and relief sought in the originating application dated 22 March 2023.
3. By 4.00 pm on 19 July 2024, the parties are to file any written submissions in reply of no more than 2 pages.
4. Subject to further order, the questions addressed in the submissions filed in accordance with orders 2 and 3 will be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
HORAN J:
Introduction
1 The applicant is an Iranian national who is currently detained at the Villawood Immigration Detention Centre. By originating application filed 22 March 2023, the applicant seeks an order in the nature of habeas corpus directed to the respondent, the Commonwealth of Australia, together with a declaration that his ongoing detention is unlawful (the habeas corpus application). The applicant also seeks a declaration that his detention has been unlawful since an earlier date, and damages for unlawful detention.
2 On 26 March 2024, I made orders directing that the habeas corpus application be heard and determined separately and in advance of the balance of the applicant’s claims for relief. That application raises the question whether the applicant’s current and continuing detention is authorised by ss 189 and 196 of the Migration Act 1958 (Cth).
3 It is common ground between the parties that there is a present duty to remove the applicant from Australia as soon as reasonably practicable under s 198 of the Migration Act. The applicant has been refused a protection visa and has exhausted all avenues of merits review and, at least as at 26 April 2024, judicial review. He has also made a written request to be removed from Australia, albeit stating that he will not agree to return to Iran. The Commonwealth has not been able to remove the applicant to Iran, on the asserted basis that the Iranian government will not issue travel documents for “involuntary” return of its nationals. The Commonwealth’s position is that the applicant can be removed to Iran if he voluntarily complies with certain steps necessary to obtain travel documents, and in such circumstances is not taking any steps to remove the applicant to any other country.
4 As the High Court recently decided in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005, the provisions of the Migration Act that authorise the detention of unlawful non-citizens do not validly apply to a non-citizen who has failed to obtain permission to remain in Australia, and in respect of whom there is an enforceable duty to remove him or her from Australia, if and for so long as there is no real prospect of his or her removal from Australia becoming practicable in the reasonably foreseeable future: NZYQ at [55].
5 The constitutional limitation expressed in NZYQ was subsequently considered by the High Court in ASF17 v Commonwealth of Australia [2004] HCA 19 in relation to an Iranian national in immigration detention who was refusing to cooperate with the administrative processes necessary to facilitate his removal from Australia to Iran, but had expressed his preparedness to be removed to any country other than Iran. The High Court unanimously affirmed the decision of Colvin J (ASF17 v Commonwealth of Australia [2024] FCA 7 (ASF17 (FCA)) to dismiss an application for habeas corpus and associated declaratory relief.
6 The hearing of the habeas corpus application in the present case took place shortly after the High Court had reserved judgment in ASF17. The High Court subsequently delivered judgment on 10 May 2024. On 14 May 2024, following correspondence between my chambers and each of the parties’ solicitors, I made orders for the parties to file written submissions concerning the implications of the High Court’s decision in ASF17 for the present application.
7 In the light of the written submissions filed, the principal issue that is now joined between the parties concerns the question whether the applicant has the power or capacity to cooperate with the steps required to effect his removal to Iran, based on the evidence, including expert medical evidence, adduced by the applicant. In this regard, the applicant places reliance on the decision of Kennett J in AZC20 v Secretary, Department of Home Affairs (No 2) [2023] FCA 1497 as establishing an “exception” to the principle upheld by the High Court in ASF17. Accordingly, it is necessary to examine the scope of any so-called exception relating to the power and capacity of a detainee to cooperate with his or her removal from Australia, and its application to the evidence presented in the present case.
8 For the reasons set out below, on the evidence before the Court, I consider that there is a real prospect of the applicant’s removal to Iran becoming practicable in the reasonably foreseeable future, and that his detention is therefore validly authorised by ss 189(1) and 196 of the Migration Act. This is because it is within the power or capacity of the applicant to cooperate with the steps that are practically available to be taken in the administrative processes necessary to facilitate his removal to Iran, which can realistically be predicted to result in the applicant’s removal to Iran in the reasonably foreseeable future.
Background
9 The applicant is an Iranian national who was born on 17 January 1989 in Ahwaz, Khozestan, a province in southwest Iran. He is of Ahwazi Arab ethnicity and is a Sunni Muslim.
10 After leaving Iran, the applicant arrived on Christmas Island on 30 October 2012 as an unauthorised maritime arrival. On 23 November 2015, the then Minister for Immigration and Border Protection decided under s 46A of the Migration Act to allow the applicant to apply for a temporary protection visa. On 25 February 2016, the applicant made an application for a Temporary Protection (Class XD) (Subclass 785) visa, following which he was granted a bridging visa on 8 March 2016.
11 It is unnecessary in the present context to recount in detail the nature of the applicant’s claims in support of his protection visa application. The applicant claimed to fear persecution from the authorities in Iran because he is an Ahwazi Arab, because he had previously come under suspicion in Iran, and because he was a returned asylum seeker who had fled Iran illegally and had spent time in a Western country. Among other things, the applicant claimed that he had been arrested and imprisoned by Iranian authorities for a period of between 14 and 16 months under suspicion of having stolen certain documents, and that he had been beaten and tortured while in detention. He claimed that his arrest and detention were for reasons of his ethnicity as an Ahwazi Arab and, more generally, that Ahwazi Arabs face discrimination in Iran with respect to employment, housing and civil rights.
12 On 17 August 2016, the applicant was notified that his application for a protection visa had been refused by a delegate of the Minister. The delegate found that the applicant was not a person in respect of whom Australia has protection obligations. While the delegate accepted that the applicant had been mistakenly imprisoned in 2011 and released approximately a year later, the delegate did not accept that the applicant was of continued adverse interest to the Iranian authorities, nor that the applicant’s family had been contacted by the Iranian authorities since his departure from Iran. The delegate accepted that the applicant is an Ahwazi Arab, but did not accept that he had suffered serious discrimination amounting to persecution for reasons of his ethnicity. The delegate also found that the applicant did not face a real chance of persecution or serious harm as a result of his tattoos, his Western appearance or lifestyle, or his use of online social networking services such as Facebook.
13 The delegate’s decision was subsequently referred to the Immigration Assessment Authority (IAA) for review.
14 On 28 September 2016, the applicant’s bridging visa was cancelled under s 116(1)(g) of the Migration Act and reg 2.43(1)(p)(ii) of the Migration Regulations 1994 (Cth), which prescribes a ground for the cancellation of a bridging visa where the Minister is satisfied that the holder has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country. The applicant was imprisoned in New South Wales between 2016 and 2021.
15 On 9 December 2016, the IAA affirmed the delegate’s decision to refuse to grant a protection visa to the applicant. The IAA made similar findings to those of the delegate, concluding that the applicant was not of interest to the Iranian authorities and would not face a real chance of serious harm on return to Iran as an Ahwazi Arab. The IAA also found that the Iranian authorities would not take an adverse interest in the applicant because of his tattoos or his adaptation to a more Western lifestyle since his arrival in Australia, nor because he is a failed asylum seeker.
16 On 5 January 2017, the applicant applied to the then Federal Circuit Court for judicial review of the IAA’s decision. The applicant was unrepresented in his proceedings before the Federal Circuit Court. On 11 December 2020, the Federal Circuit Court dismissed the application for judicial review: ABF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 3329 (FCC Decision).
17 On or about 16 September 2021, the applicant was taken into immigration detention by officers of Australian Border Force (ABF), immediately after his release from criminal custody at the Goulburn Correctional Centre. The applicant has been continuously detained in immigration detention since this time, and is currently detained at the Villawood Immigration Detention Centre.
18 On 24 December 2022, the applicant was married to an Australian citizen.
19 On 18 September 2023, the applicant filed in this Court an application for an extension of time to appeal from the FCC Decision (proceeding No NSD 1074 of 2023). The application had been listed for hearing before Raper J on 9 May 2024. However, at the hearing before me on 26 April 2024, senior counsel for the applicant informed the Court that the applicant had recently given instructions to discontinue that proceeding, and orders were made by consent on 29 April 2024 that the application be discontinued with each party bearing their own costs. There are no longer any proceedings on foot by which the applicant seeks to challenge the refusal to grant him permission to remain in Australia.
20 While he has been in detention, the applicant has made several oral requests to Commonwealth officers that he be removed from Australia to a country than Iran. The applicant cannot recall the dates on which those oral requests were made, but deposes that he asked “at least 3 to 4 times” and was told on each occasion that the Commonwealth cannot remove him “because there is nowhere else to send me to outside of Australia”.
21 On 12 November 2023, following the High Court’s decision in NZYQ, the applicant’s solicitor sent an email request to the Department of Home Affairs (the Department) demanding the applicant’s immediate release from detention, asserting that he had been unlawfully detained on the basis that the Department had not been able to remove him or resettle him to a third country despite him having no substantive visa application or appeal proceedings on foot between 11 December 2020 (when the Federal Circuit Court dismissed his judicial review application) and 27 September 2023 (when he filed his application for an extension of time to appeal from the FCC Decision). The applicant’s solicitor indicated that, unless the applicant was immediately released from immigration detention, he would commence proceedings seeking an urgent writ of habeas corpus.
22 The applicant’s solicitor sent a further email to the Department on 30 November 2023, asking why the applicant still remained in detention and seeking advice as to “the legal basis for his ongoing detention”.
23 The applicant has been informed by his solicitor that there has been no response to these emails.
24 On 8 February 2024, the applicant submitted a “Detainee Request Form”, in which he wrote:
I want to leave the country, any country I am happy to go to. CANNOT go back to IRAN for safety reasons. Can you please send me, I am struggling with anxiety.
25 On 22 March 2024, the applicant filed in this Court his originating application seeking an order in the nature of a writ of habeas corpus directed to the Commonwealth, a declaration that his ongoing detention has been and is unlawful, and damages for unlawful detention (including aggravated and exemplary damages).
Hearing of the application
26 The hearing of the applicant’s habeas corpus application took place before me on 22, 26 and 29 April 2024.
27 The applicant relied on the following evidence:
(a) an affidavit of the applicant affirmed 19 September 2023 (and filed in proceeding No NSD 1074 of 2023) (September 2023 affidavit); and
(b) an affidavit of the applicant affirmed 22 March 2024 (March 2024 affidavit); and
(c) an expert report of Dr Emily Kwok, a clinical and forensic psychologist, dated 11 April 2024 (Kwok report).
28 Dr Kwok gave oral evidence and was cross-examined.
29 The Commonwealth relied on the following evidence:
(a) an affidavit of Mr Jason Nette, Inspector of the Consular General Engagement and Liaison Team of the ABF, affirmed 5 April 2024 (Nette affidavit); and
(b) an affidavit of Ms Linda Langi, Status Resolution Officer (SRO) within the Status Resolution and Visa Cancellation Division of the Department, affirmed 5 April 2024 (Langi affidavit).
30 Each of Mr Nette and Ms Langi gave oral evidence and were cross-examined.
Evidence of the applicant
31 The applicant stated in his March 2024 affidavit that detention has caused him great stress, and that he is “very drained and tired”. He stated that he has difficulty having regular sleep and that it had “affected my mental health waiting for something to happen”. He has thought about suicide while in detention, and has made an unsuccessful attempt to kill himself in the past.
32 The applicant stated, “I just want to be free – I do not care where I am sent, as long as it is not Iran”, and concluded:
I desperately want to be released from detention. I am willing to cooperate to be removed from Australia to anywhere but Iran. As I have said in my requests to be removed, I will not agree to return to Iran as I believe I will be harmed or killed.
33 In relation to his reasons for not wanting to return to Iran, the applicant stated that he is genuinely fearful of returning to Iran. He referred to his statutory declaration in support of his protection visa application, including his claims that he has previously been persecuted in Iran and his belief that he remains of interest to Iranian authorities and will be harmed or killed if he returns to Iran. The applicant also gave evidence that he has maintained an active social media profile, including on TikTok and Instagram, since around May 2022, and that he has posted videos about his experiences in detention. In some of those videos, the applicant has expressed his faith and culture, and has been critical of the Iranian authorities due to his past experiences and the manner in which they treat Ahwazi Arabs.
Evidence of Dr Kwok
34 Dr Kwok is a clinical and forensic psychologist in private practice. For the purposes of preparing her report, she interviewed the applicant by video-link for approximately one hour and ten minutes on 8 April 2024. Dr Kwok subsequently attempted to contact the applicant by telephone on 10 April 2024 for the purpose of clarifying what she regarded as inconsistencies between what he had reported at interview and the supporting materials with which she had been provided to assist in the preparation of the report (which comprised copies of the applicant’s affidavits and other documents filed in these proceedings), but the applicant did not answer his phone.
35 Dr Kwok described the applicant as “emotionally volatile” during the interview, and noted that he was a “poor historian and said he could not remember details of many of his life experiences”. She opined that the applicant suffered from post-traumatic stress disorder (PTSD) with comorbid depression and anxiety, stemming primarily from “pre-migration” factors including his alleged exposure to torture and sexual assault when wrongfully detained in Iran and other reported difficulties in Iran due to his Arab ethnicity. Dr Kwok stated that the applicant’s psychological distress has persisted in Australia, and that his symptoms include “intrusive memories of trauma events, distressing dreams and nightmares, sleep disturbance, suicidal thoughts, and negative alterations in cognitions and mood”. She observed fluctuations in the applicant’s mood during the interview, and noted that difficulties in emotion regulation are often associated with depression and anxiety. Dr Kwok considered that the applicant’s difficulties with PTSD, depression and anxiety are exacerbated in detention, where he is at a higher risk of self-harm and suicide.
36 Dr Kwok was specifically asked about the impact that the applicant’s mental health condition has on his ability to make decisions with respect to his ongoing immigration detention. Dr Kwok answered this question as follows:
[The applicant] can make general decisions with respect to his ongoing immigration detention. That is, he can express his views around his fears of returning to Iran, difficulties in detention, desires to remain in Australia and desire to return to the Australian community. However, due to emotion dysregulation and alteration in cognition (e.g. fixated in his views, inability to reason from other perspectives, limited rational thinking, etc), he has limited ability to engage in complex thinking that are needed for problem solving and planning. Thus, whilst he can express his general views, he will have difficulty processing, understanding and expressing complex information and providing details.
37 In oral evidence, Dr Kwok stated that the applicant was “rather emotionally volatile” at the time she interviewed him, which could have affected his ability to communicate. Dr Kwok noted that the applicant’s affidavits contained more details than he had expressed at his interview. Based on Dr Kwok’s observation of how the applicant had presented at the interview, she considered that he would not have had “capacity” at that time to give the detailed information that was contained in his affidavits.
Evidence of Mr Jason Nette
38 Mr Nette is the Inspector of the Consular Engagement and Liaison Team (CELT) in the Removal Operations Branch within the ABF, a role which he has held since December 2022. He has been employed within the Department since September 2008, and has held a variety of roles in that time including a brief period (between April 2019 and February 2020) as Inspector of the Travel Document Requests and Consular Enquiries team in “ABF Removals NSW”.
39 CELT is one of six teams in the Removal Operations Branch within the ABF, along with the Complex Removals Support and Reporting team, and a Removal Operations team in each of New South Wales, Victoria and Tasmania, Queensland and Northern Territory, and Western Australia and South Australia.
40 The responsibility for progressing removals of detainees in each particular State or Territory lies with the Removal Operations team in that State or Territory. Individual cases may be referred to CELT for assistance. Among other things, CELT is responsible for negotiating with diplomatic missions (both in Australia and overseas) for the issue of travel documents.
41 Mr Nette states in his affidavit that, during his time in CELT (from December 2022), he has developed a sound understanding of the requirements for lodging travel document applications with Iran. He and other officers under his supervision regularly attend the Iranian Embassy to lodge or request updates on travel document applications, and engage in regular communication with the Iranian Embassy by telephone, email or text message.
42 The Department relies on travel document reference guides, which “record the institutional understanding within the Department built up over time about how different countries operate in terms of receiving removals from Australia”, and “reflect the current understanding of the Department on how to obtain a travel document from the relevant country”. Mr Nette referred to the most recent version of the Travel Document Reference Guide – Iran (Iran TDRG) dated 8 January 2024 (annexed to the Nette affidavit) and confirmed that, based on his experience, this was an accurate description of the current steps involved in lodging and obtaining travel documents from Iran.
43 Mr Nette states that an Iranian national who has requested to be voluntarily removed to Iran will require a travel document known as a “Laissez Passer” issued by Iran, which requires approval from the Iranian Ministry of Foreign Affairs. An Iranian national who attempts to enter Iran without a Laissez Passer would be denied entry.
44 The Iran TDRG contains a summary of the “[p]rocedure and requirements for obtaining travel and identity documents to remove an unlawful non-citizen from Australia to Iran”. The guide states that it “has been compiled for sole reference by those involved within the Removal Operations pathway for the issuance of travel document for unlawful non-citizens to be removed from Australia to IRAN”.
45 Under the heading “Travel Document Application Requirements”, the Iran TDRG states that all travel document applications for Iranian unlawful non-citizens should be progressed through CELT by emailing the application and associated documents in accordance with the processes set out in the guide. The regional removal officer must provide CELT with the following documents:
(a) a “completed and signed Laissez Passer (LP) application form”;
(b) “[o]riginal Iranian identity documents to be safe hand delivered to CELT” (if original identity documentation cannot be obtained, copies are to be provided and the case officer must gain approval from the Iranian Ministry of Foreign Affairs before submitting an application);
(c) “[a] handwritten letter from the [unlawful non-citizen] written in their native language (FARSI) providing brief information on:
(i) his/her route of travel taken to Australia;
(ii) when and where they arrived;
(iii) how long they have been in detention;
(iv) why they want to return to Iran; and
(v) requesting assistance in obtaining a travel document.”
(d) a PDF of the return flight itinerary (which is required before Iran will issue a Laissez Passer, but is not required for lodgement of the application); and
(e) a current passport photograph.
46 In addition, a phone interview with the Iranian Embassy is “mandatory”, and CELT must provide a current contact number for the unlawful non-citizen.
47 Once the regional removal officer has provided these documents, the CELT officer must complete an ABF cover letter; update the “CELT master spreadsheet”; liaise with the Iranian Embassy and lodge the travel document application; liaise with the regional case officer; and safe hand deliver the travel document to the regional case officer. The “[t]imeframe for issuance” is expressed to be “[u]p to 12 weeks”, with a cost of $34.00 to be transferred to a bank account in the name of the Iranian Embassy. The travel document is valid for 20 days from the date of issue.
48 Mr Nette conceded in cross-examination that no-one in CELT speaks Farsi and that they would not check the contents of a handwritten letter provided by an applicant to the Iranian Embassy requesting assistance with the issue of a travel document. In particular, he accepted that officers in CELT would not know whether or not the letter addressed each of the points on which the Iranian Embassy required the applicant to provide brief information.
49 Before a Laissez Passer can be issued, the Iranian Embassy requires approval from the Ministry of Foreign Affairs in Iran. If an unlawful non-citizen is unable to provide original identity documents, a friend or family member must attend an office of the Ministry of Foreign Affairs in Iran, present the original identity documents for the unlawful non-citizen, and specifically request approval for the issuance of a Laissez Passer by the Iranian Embassy in Australia.
50 Mr Nette stated in his affidavit that, to his knowledge, an application for a Laissez Passer for a voluntary removal has never been refused by the Iranian authorities where identity documents in accordance with the above requirements have been provided.
51 The Iran TDRG also deals with “involuntary” returnees:
Involuntary
Travel documents will not be issued by the Iranian Embassy to involuntary UNCs.
An applicant will be considered involuntary if they do not provide the necessary documentation the Iranian Embassy requires and if they refuse to participate in a phone interview.
(Emphasis in original.)
52 Mr Nette deposed that “[a]n involuntary removal refers to a person who is not cooperating with authorities to make the necessary arrangements for their removal from Australia, including by cooperating in obtaining a travel document”. It is Mr Nette’s understanding that Iran does not issue a Laissez Passer to an individual who is “involuntary”. This understanding is based on the Iran TDRG (both in its current form and earlier versions), and on his experience since he commenced working in CELT. However, Mr Nette “cannot recall CELT ever having sought to obtain a Laissez Passer for an involuntary removal”, because of his and the Department’s “understanding” that Iran will not issue a Laissez Passer to such individuals.
53 Mr Nette did not have any personal involvement in the applicant’s case. However, after reviewing the applicant’s identity documents recorded in Departmental systems, he considered that they would suffice for the process of obtaining a Laissez Passer from the Iranian authorities. Accordingly, Mr Nette expressed the view that “the applicant should be able to obtain a Laissez Passer through the Iranian Embassy if he was to become voluntary, provided an original copy or a copy of any one of [his Iranian birth certificate and National ID card], and cooperated with the requirements” for a travel document application.
54 I note that the applicant stated in a statutory declaration dated 19 February 2015, which was provided in support of his protection visa application, that he no longer has a copy of his Iranian passport or Military Service ID card and that the originals of his Iranian birth certificate and National ID card remain in Iran with his family. The applicant said in his statutory declaration that he would ask his brother to post him the original documents. However, there is no definitive evidence before the Court as to the existence or current location of those original documents. The fact that certified copies of the applicant’s Iranian birth certificate and National ID card are contained in the Department’s record-keeping systems (and were annexed to the Nette affidavit) might provide some indication that the original documents were ultimately sent to the applicant by his family in Iran. If the original documents are not held by the Department and are not in the applicant’s possession, the evidence before the Court does not disclose whether the applicant currently has a family member or friend who is able to attend an office of the Ministry of Foreign Affairs in Iran with original identity documents for the purposes of obtaining approval for the issue of a Laissez Passer.
55 Mr Nette stated in his affidavit that the Department has not made specific enquiries with the Iranian Embassy as to whether Iran will provide the applicant with a Laissez Passer to enable his removal to Iran.
56 In the course of his oral evidence, Mr Nette confirmed that the applicant’s case had not been referred to CELT. Mr Nette was not aware whether or not the applicant was on a “removal pathway”, which he broadly described as being where the relevant SRO assesses that there are no ongoing matters with the Department and no legal barriers to removal (such as an injunction issued by a court). Mr Nette did not know whether an officer within the Removals Operation team in New South Wales was responsible for the applicant’s removal, nor what (if any) steps had been taken by such an officer in relation to the applicant’s removal from Australia.
57 Senior counsel for the applicant cross-examined Mr Nette on matters in connection with the introduction into the Commonwealth Parliament of the Migration Amendment (Removal and Other Measures) Bill 2024 (Cth) and associated media releases and press articles. The Commonwealth objected to the admission some of this evidence, including on the basis of Parliamentary privilege. It was suggested by senior counsel for the applicant that such matters might potentially have an impact on the position of Iran in accepting the return of its citizens from Australia. For the purposes of the present proceeding, I regard those suggestions as speculative and of no relevance to the resolution of the issues to be determined by the Court. To the extent that the applicant seeks to rely on such matters as raising a question as to the lawfulness of his detention, I do not consider that he has met the initial evidentiary threshold required to raise any case fit to be considered arising from those suggestions. In such circumstances, it is unnecessary to explore any issues of Parliamentary privilege in relation to any inferences sought to be drawn from statements made in the course of proceedings in Parliament that are contained in the materials put to Mr Nette. The materials are inadmissible on the grounds of relevance.
Evidence of Ms Linda Langi
58 Ms Langi has been employed since 26 April 2022 as a SRO, located at the Villawood Immigration Detention Centre. In that role, Ms Langi is responsible for (among other things) considering whether particular individuals in immigration detention are unlawful non-citizens for the purposes of ss 189 and 196 of the Migration Act; engaging and communicating with detainees to whom she has been assigned; and conducting regular case reviews of those detainees, including reviewing the lawfulness of their detention.
59 The case reviews undertaken by Ms Langi provide a summary of a detainee’s current immigration status, including information about why the detainee is in detention; a “case objective” (such as the detainee’s removal from Australia or the finalisation of any visa application including any review or appeals); any relevant “vulnerabilities” that the detainee has provided; any events since the last case review; any upcoming events that will progress the detainee’s status; any relevant current or historical immigration information in relation to the detainee; and any “barriers to case resolution”, such as statutory bars on further visa applications.
60 As an SRO, Ms Langi monitors the progress of each detainee’s immigration status towards either the grant of a visa or removal from Australia, including by “[asking] detainees questions and [providing] any new information to relevant stakeholders in order to progress their status towards one of these outcomes”. Ms Langi is responsible for “referring a detainee to NSW Removals if they have exhausted all avenues towards holding a visa, or if they request voluntary removal”.
61 Ms Langi was assigned as the SRO for the applicant on 19 December 2023. However, she states that it is not part of her role as SRO to organise the removal of an unlawful non-citizen, and that “[i]t is the responsibility of NSW Removals Operations to make removal arrangements”.
62 After she was assigned as the applicant’s SRO, Ms Langi reviewed Departmental records and completed a case review. She was and remains satisfied of the details of the applicant’s immigration history, and understands that the applicant must be detained as an unlawful non-citizen.
63 The most recent case review in relation to the applicant was conducted on 4 April 2024 by Ms Langi, who generated and printed from Departmental record-keeping systems a document entitled “Case Review As at 04/04/2024”. Among other things, this case review contained a summary of the applicant’s immigration history, with abbreviated descriptions of relevant events. An entry for 17 September 2021, the day following the applicant’s release from Goulburn Correctional Centre and his detention under s 189 of the Migration Act, stated “Refer Invol removal”. While the meaning of this reference was not explained in evidence or submissions, it might be taken to suggest that the applicant did not agree at that time to his voluntary removal, at least to Iran. The case review then set out a number of entries in relation to requests for Ministerial intervention under ss 195A and 197AB of the Migration Act or consideration whether to grant the applicant a bridging visa under reg 2.25 of the Migration Regulations.
64 The case review recorded an entry for 18 January 2024 in the following terms:
18/01/24 Assessed as not being NZYQ affected at this point in time. Since he is not owed protection or stateless, the only other possibility for him being affected is if there was no real prospect of his removal becoming practicable in the reasonable foreseeable future. However, since he is Iranian his removal could be effectively pursued if he was on a voluntary removal pathway - ADD2023/7382001.
(Emphasis added.)
In the course of her oral evidence, Ms Langi clarified that she had not herself performed the assessment of whether the applicant was “NZYQ affected”, and that it was not part of her role to conduct such an assessment.
65 In relation to the applicant’s case progression, the case review document stated that the case objective is “Removal”, and recorded a meeting between Ms Langi and the applicant on 4 April 2024 as follows:
04/04/2024 – SRO met with detainee at Hotham visits interview room to discuss his immigration pathway. Detainee advised that he remains involuntary to removal, he recently married, he confirmed the emergency contact person and provided details of community support from his wife and good friend in the community – refer Case Note dated 04/04/2024
(Emphasis added.)
The case note referred to was not tendered as evidence in the present proceeding.
66 The case review document stated that activities “Planned next month” were: “Monitor Involuntary Removal”; “Monitor JR [Judicial Review]”; and “Monitor MI [Ministerial Intervention]”.
67 Under the heading “Barriers to case resolution and actions taken or being taken to resolve those barriers”, the case review document stated:
Barrier Indicator: [8.1] Foreign Gov’t Permission (eg involving invol. removals)
Outcome of TD Discussion: Unwilling to apply
Statutory Bars: s.48, s.48A, s.195
Obstacles:
- No valid Travel Document
(Emphasis added.)
68 The case review document stated that there were no health or welfare concerns raised, and that the applicant’s placement in “held detention” was “consistent with current CPAT recommendation”. Although not addressed in evidence, this is likely to be a reference to the “Community Protection Assessment Tool”. In relation to the “Status Resolution Service Level”, the case review stated:
Case Management Approach setting still appropriate. SRO will review case on a monthly basis and remain alert to any changes in circumstances that affect case progression. At this stage of [the applicant’s] immigration pathway requires minimal intervention. SRO to ensure barriers to status resolution are identified/escalated appropriately to effectively achieve case objective: Removal
69 The case review document indicated that review by a Senior Case Manager was not required for the 4 April 2024 review.
70 There is no direct evidence that the applicant’s case has been referred to the Removal Operations team in New South Wales or elsewhere, nor that any removal officer has been assigned to the applicant. However, the case review document produced by Ms Langi contains, under the heading “Service Summary Details”, a reference to “Returns and Removals – Onshore Compliance” with a “Start Date” of 7 October 2021 and a named officer as the “Service Contact”. The case review records the “Stage” of this service as “Removal Logistics Planning”, and its “Status” as “Active”. Nevertheless, the named officer was not called as a witness and no evidence was given as to any steps that have been taken in planning the logistics of the applicant’s removal. The case review document also records that there is no “Active External Referral” in relation to the applicant.
Notice to Admit
71 On 27 March 2024, the Commonwealth’s solicitors served a Notice to Admit Facts on the applicant’s solicitors. Among other things, the Notice required the applicant to admit for the purposes of these proceedings that “[t]he applicant does not have any medical condition that impacts their capacity to understand and make decisions in respect of their immigration affairs”.
72 By a Notice of Dispute dated 28 March 2024, the applicant made an admission in the following terms, that:
(a) he presently has capacity to understand and make decisions, and has had such capacity at all times since these proceedings were commenced; and
(b) his capacity to understand and makes decisions extends (and has extended, at all times since these proceedings were commenced) to making decisions about his immigration affairs.
Consideration
Legislative framework
73 Section 189(1) of the Migration Act provides that “[i]f 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”. An “unlawful non-citizen” is, relevantly, a person in the migration zone who is not an Australian citizen and does not hold a visa that is in effect (ss 13 and 14).
74 Section 196(1) of the Migration Act provides that an unlawful non-citizen detained under s 189 must be kept in immigration detention until, relevantly, he or she is removed from Australia under s 198 or is granted a visa.
75 Section 198 of the Migration Act deals with removal from Australia of unlawful non-citizens. There are a number of circumstances in which a duty to remove as soon as reasonably practicable is enlivened. For present purposes, the relevant subsections are those dealing with requests written requests for removal and the finalisation of visa application processes. “Remove” is defined in s 5 to mean remove from Australia. Sections 198(1) and (6) provide as follows:
(1) An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.
…
(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.
76 Accordingly, the authority under the Migration Act to detain a person and to keep that person in immigration detention depends on the knowledge or reasonable suspicion of a relevant officer that the person is an unlawful non-citizen. In certain cases, the statutory authority to detain an unlawful non-citizen for the purpose of removal may be subject to constitutional limits recognised by the High Court in Love v The Commonwealth (2020) 270 CLR 152 and, recently and more relevantly to the present case, in NZYQ.
77 In the present case, there is unchallenged evidence that Ms Langi, as an officer within the meaning of the Migration Act, knows or reasonably suspects that the applicant is an unlawful non-citizen. The question on which issue is joined between the parties concerns whether or not the applicant’s detention infringes or exceeds the constitutional limit recognised in NZYQ, and subsequently elaborated in ASF17, on the power to detain an alien for the purposes of his or her removal from Australia.
Applicable principles – habeas corpus
78 There is no dispute between the parties as to the applicable principles governing the habeas corpus application. Those principles were recently summarised by Rares, O’Sullivan and Feutrill JJ in AKW22 v Commonwealth (2023) 297 FCR 650 at [7]-[20]; see also AZC20 at [7]-[8].
79 It is accepted that the applicant has an initial evidentiary burden of establishing that there is reason to suppose that his detention is unlawful or, in other words, to put in issue the legality of his detention at the time of the hearing by raising an arguable case for the issue of the writ of habeas corpus. The onus then shifts to the respondent to prove on the balance of probabilities that the applicant’s current detention is lawful.
80 The historical origins of this shifting burden lie in the traditional procedures for obtaining a writ of habeas corpus at common law: see NZYQ at [59]. While habeas corpus is a writ of right, it does not issue as a matter of course and requires the applicant to demonstrate proper grounds for its issue. The applicant must demonstrate “reasonable justification or probable cause” so as to require the detainer “to justify the detention by proving its lawful character”: McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602 at [59]-[60] (Allsop CJ), [92]-[95] (Besanko J), [273] (Mortimer J).
81 In England, the practice before the late eighteenth century was for the writ to be granted ex parte, and the lawfulness of the detention (or any issue of custody or control) would then be determined on the return of the writ at which time the body of the prisoner would be produced to the court: J. Farbey and R.J. Sharpe, The Law of Habeas Corpus (3rd ed, Oxford University Press, 2011) p 236; see also Rahmatullah v Secretary of State for Defence [2012] UKSC 48; [2013] 1 AC 614 at 649 [87]-[89] (Lord Phillips). After about 1780, however, a practice developed of applying for a rule or order nisi (that is, an order requiring the respondent to show cause), followed by a substantive hearing to determine whether to make an order absolute for the issue of the writ, or for the release of the prisoner, without having to bring the prisoner physically before the court. In such circumstances, if an order were made for the writ to issue following a substantive hearing, any proceedings on the return of the writ were purely formal and the order was usually treated as requiring the prisoner’s release from detention: Sharpe at 236.
82 In this Court, there is no separate procedure for habeas corpus applications under the Federal Court Rules 2011 (Cth), and the relief sought by an applicant who is seeking to challenge his or her detention is often framed as an “order in the nature of a writ of habeas corpus”, as was sought in the originating application in the present case. There is no doubt that, in cases within its jurisdiction, this Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) both to issue a writ of habeas corpus and to make orders “in the nature of habeas corpus” which direct the release of a person from detention: see Save the Children Australia v Minister for Home Affairs [2024] FCAFC 81 at [33] (Mortimer CJ, Kennett and Horan JJ). In proceedings such as the present case, the matter often proceeds by way of a final hearing on the substantive questions of fact and law that govern the existence of lawful authority for the applicant’s detention, rather than adopting a “two-stage procedure” (whether by the issue and return of the writ, or by an order nisi and order absolute): compare CRS20 v Secretary, Department of Home Affairs [2024] FCA 619 at [67] (Wheelahan J). At any such final hearing, both the initial evidentiary burden borne by the applicant and the legal onus borne by the respondent fall to be addressed in the course of the final determination of the application.
83 What is required for an applicant to meet the evidentiary burden so as to put in issue the lawfulness of his or her detention is “fact sensitive” – the applicant must adduce evidence sufficient to demonstrate “probable cause” or “a case fit to be considered” as to the absence of lawful authority to detain, but is not required to provide detailed proof of unlawfulness: see AKW22 at [15]-[16]; McHugh at [60] (Allsop CJ), [95] (Besanko J), [273] (Mortimer J). Evidence of the fact and duration of a person’s detention under ss 189 and 196 of the Migration Act is not generally sufficient of itself to discharge the evidentiary burden of an applicant for habeas corpus: compare AKW22 at [24], [26], [36], [40], [52]-[54]. As Kennett J observed in AZC20 at [12], it is clear from the High Court’s decision in Commonwealth v AJL20 (2021) 273 CLR 43 that “the requirement to keep a person detained is not conditional on efforts being made to remove that person” (see AJL20 at [51] per Kiefel CJ, Gageler, Keane and Steward JJ). In order for an applicant to discharge the initial evidentiary burden, there must be evidence of facts giving rise to a basis on which a court could find that his or her current detention is unlawful. For example, an applicant might adduce evidence that reveals “some basis on which a court could conclude that he or she is not an unlawful non-citizen or [that] the detaining officer did not reasonably suspect that he or she is an unlawful non-citizen”: AKW22 at [34]. Or the applicant might adduce evidence that reveals some basis on which a court could conclude that he or she is an Aboriginal Australian who is not within the reach of the aliens power under s 51(xix) of the Constitution: see McHugh.
84 Since the High Court’s decision in NZYQ, an issue may be raised as to the lawfulness of the detention of an unlawful non-citizen on the basis that there is no real prospect of his or her removal from Australia becoming practicable in the reasonably foreseeable future, such that his or her detention exceeds what is reasonably capable of being seen to be necessary to effectuate the legitimate and non-punitive purpose of the removal of an alien from Australia. For such purposes, in the light of the decision in ASF17, any steps in the administrative processes directed to removal that require the cooperation of the detainee, and in which the detainee has the power or capacity to cooperate, are to be regarded as remaining practically available to be taken: see ASF17 at [41].
Has the applicant met the initial evidentiary burden?
85 In his statement of claim dated 22 March 2024, the applicant alleged that his detention is unlawful because it exceeds the limit on constitutional power recognised in NZYQ. The applicant alleged that the “Islamic Republic of Iran” has, to the knowledge of the Commonwealth, adopted and enforced a policy of not accepting “involuntary” returns of its own nationals from Australia. Further, it is alleged that the Commonwealth knows that the applicant subjectively fears being returned to Iran and will not assist officers of the Commonwealth in his removal from Australia to Iran. In circumstances where the Commonwealth has not taken steps to remove the applicant to any other country, the applicant contends that there is no real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future. The statement of claim pleads that this state of affairs has prevailed from a range of alternative earlier dates. However, because the applicant’s habeas corpus application was heard and determined separately from the applicant’s claims for damages, it is sufficient to focus only on the facts relevant to whether or the applicant’s current detention is lawful.
86 As the matter did not proceed by way of pleadings, the Commonwealth has not filed a defence to the statement of claim. Instead, by its written submissions dated 19 April 2024, the Commonwealth disputed that there is no real prospect of the applicant’s removal becoming practicable in the reasonably foreseeable future. The Commonwealth did not accept that the applicant had met the initial evidentiary burden of showing an arguable basis that his detention is currently unlawful and submitted that, even if that burden were met, “the detention can be justified because of the Applicant’s refusal to cooperate with attempts to return him to Iran”.
87 It is common ground between the parties that a statutory duty has been enlivened under s 198 of the Migration Act to remove the applicant from Australia as soon as reasonably practicable. The basis for that position was either or both that the application made by the applicant for a temporary protection visa was finally determined on 9 December 2016, when the IAA affirmed the decision not to grant him a protection visa (s 198(6)), or that the applicant had on 8 February 2024 asked the Minister in writing to be removed (s 198(1)).
88 In respect of the duty under s 198(6), it may be noted that the applicant was held in criminal custody until 16 September 2021, when he was first taken into immigration detention under s 189(1). The duty to remove under s 198(6) would not have arisen prior to that date, because the applicant was not a “detainee” (being a person taken into or kept in immigration detention under the Migration Act). Although the applicant recently sought to reagitate a challenge to the validity of the IAA’s decision, having filed an application for an extension of time to appeal from the FCC Decision dismissing his application for judicial review, that application did not alter the fact that his protection visa application had been finally determined and therefore did not itself displace any duty to remove under s 198(6). In any event, the applicant has indicated that he no longer pursues that extension of time application (see paragraph 19 above).
89 In respect of the duty under s 198(1), the terms of the applicant’s request dated 8 February 2024 are somewhat ambiguous. While on the one hand the applicant has stated he wants to leave the country and that he is happy to go to “any country”, on the other hand he has qualified that request with a statement that he “CANNOT go back to IRAN for safety reasons”. It is not immediately apparent that s 198(1) can be enlivened by a conditional request by which an unlawful non-citizen seeks to specify the country or countries to which he wishes to be removed, or to exclude any country or countries to which he does not wish to be removed: see WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2022] FCA 1625 at [61] (French J), which was approved in SPKB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 532 at [17] (Carr, Finn and Sundberg JJ); cf. Plaintiff M96A/2016 v The Commonwealth (2017) 261 CLR 582 at [16] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ). In so far as it is necessary to rely on s 198(1) as the source of a duty to remove, it might be possible to construe the applicant’s request as an unconditional request to be removed to any country, including Iran if it is practicable to do so notwithstanding his indication that he cannot return to Iran “for safety reasons”. In other words, his request is sufficient to enliven the general duty to remove him from Australia under s 198(1), although any absence of voluntary cooperation with the administrative processes necessary for him to travel to and enter Iran may present difficulties in carrying out that statutory duty.
90 As I have said, these proceedings have been conducted throughout on the premise that there is a statutory duty to remove the applicant from Australia under s 198 of the Migration Act. The parties joined issue on the question whether there is a real prospect of such removal becoming practicable in the reasonably foreseeable future, in circumstances where the applicant is (and is likely to remain) unwilling to cooperate with the administrative processes necessary for his removal to Iran. Neither party raised any contention, let alone adduced any evidence to establish, that the applicant is an unauthorised maritime arrival to whom s 198AD(1) applies and in respect of whom there is a duty under s 198AD(2) to be taken from Australia to a regional processing country: cf. CRS20 at [189]-[280] (Wheelahan J). If s 198AD were applicable to the applicant, s 198 would not apply and there would be no statutory duty to remove the applicant to Iran or elsewhere. Rather, the applicant’s detention would need to be for the purposes of his removal to a regional processing country under s 198AD(2), and there would need to be a real prospect of his removal to such a regional processing country becoming practicable in the reasonably foreseeable future.
91 There is evidence that the applicant is an unauthorised maritime arrival who entered Australia between 13 August 2012 and 1 January 2014, and was given a written determination by the Minister under s 46A to “lift the bar” on making a valid application for a protection visa. Thus, the applicant was a “fast track applicant” for the purposes of Pt 7AA of the Migration Act, and the decision to refuse to grant him a protection visa was subject to review by the IAA. However, there is no evidence as to whether any of ss 198AE, 198AF or 198AG has operated to disapply s 198AD in relation to the applicant. In such circumstances, and noting that the point has not been raised by the parties or addressed in submissions, I do not consider that a question arises on the present application as to whether there is a duty to take the applicant to a regional processing country or, if there is such a duty, whether it is reasonably practicable to do so or whether there is a real prospect that it would be practicable to do so in the reasonably foreseeable future. The applicant has not raised any contention to that effect, and the initial evidentiary burden that would be required to be met in relation to any such contention has not been satisfied. Accordingly, it is unnecessary for me to consider the issues addressed by Wheelahan J in CRS20, including the proper construction of ss 198 and 198AD as considered by Rangiah J in AZC20 v Minister for Home Affairs [2021] FCA 1234.
92 Returning to the case sought to be advanced by the applicant, I consider that the applicant has met the initial evidentiary burden to raise an arguable case and to put in issue the lawfulness of his current detention. The applicant has done more than simply provide evidence of the fact and duration of his detention under ss 189 and 196 of the Migration Act. In circumstances where the duty to remove under s 198 has been engaged, and there is prima facie some delay in the applicant’s removal from Australia in the performance of that duty, this is sufficient to raise “probable cause” that the applicant’s detention is not lawful in the light of the constitutional limitation recognised in NZYQ. What is necessary to discharge the evidentiary burden, including the period that has elapsed in effecting or attempting to effect removal, may depend on the facts of each particular case. In the present case, the applicant has been in immigration detention since September 2021, and it is likely that there has been a duty under s 198(6) to remove him from Australia for the whole of that period. Alternatively, there is evidence on which a duty to remove under s 198(1) has arisen since (at least) 8 February 2024.
93 In the circumstances of the present case, I do not consider that it is necessary for the applicant to adduce evidence that he is not a person to whom s 198AD applies in order to meet his initial evidentiary burden. As discussed above, the Commonwealth did not oppose the application on that basis, and the proceeding was argued by both parties on the basis that there is a duty to remove the applicant from Australia under s 198 of the Migration Act.
94 The central questions raised on the application relate to the practicability of the applicant’s removal to Iran, in circumstances where he is either unwilling or unable to cooperate in or to assist with the administrative steps necessary to enable him to travel to and enter Iran. In the light of the High Court’s decision in ASF17, there might be cases in which an applicant’s initial evidentiary burden on an application for habeas corpus could potentially encompass issues relating to his or her willingness or capacity to cooperate with his or her removal from Australia, such as evidence to put in issue whether the applicant has the power or capacity to cooperate with the relevant administrative process. However, those issues will often fall to be addressed in the context of the respondent’s legal burden as an issue going to the lawfulness of the applicant’s detention.
95 In the present case, as the applicant has raised a case fit to be considered as to the lawfulness of his current detention, the Commonwealth has the legal burden to establish that the constitutional limit on the power to detain conferred by ss 189 and 196 of the Migration Act has not been exceeded, by proving that there is a real prospect of the applicant’s removal from Australia becoming practicable in the reasonably foreseeable future: see NZYQ at [59]-[60]; ASF17 at [1].
Is the applicant’s current detention lawful?
96 The legal burden on the respondent to demonstrate that the applicant’s detention is lawful is to be discharged on the balance of probabilities, having regard to the nature and seriousness of the subject matter of the applicant’s claim concerning the deprivation of his liberty by the Executive: McHugh at [53], [60] (Allsop CJ), [76] (Besanko J), [294] (Mortimer J); AZC20 at [8] (Kennett J). Nevertheless, as the High Court recognised in NZYQ at [60]-[61], it should be kept in mind that what the respondent is required to prove is the existence of a real prospect of removal becoming practicable in the reasonably foreseeable future:
To establish that ss 189(1) and 196(1) of the Migration Act validly applied to authorise continuation of the plaintiff's detention, the defendants were accordingly required to prove that there existed a real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future. Whilst the proof was required to be to a standard sufficient to support the making of a finding of fact to the level of satisfaction appropriate in a civil proceeding where individual liberty is in issue, the prospective and probabilistic nature of the fact in issue (that is, the fact of a real prospect of the plaintiff's removal from Australia becoming practicable in the reasonably foreseeable future) would have the potential to be confused were the standard of proof to be “on the balance of probabilities”.
The notions of the practicability and the foreseeability of removal embedded in the expression of the constitutional limitation accommodate “the real-world difficulties that attach to such removal”. The real-world context also entails that proof of a real prospect must involve more than demonstration of a mere un-foreclosed possibility.
(Citations omitted.)
97 In other words, in order to establish that the temporal limitation on the valid application of ss 189 and 196 of the Migration Act has not been exceeded, the Commonwealth does not necessarily have to prove that it is more probable than not that the applicant will be removed in the reasonably foreseeable future. It is sufficient to prove as a matter of fact that there is a “real prospect” that the applicant’s removal will become practicable in the “reasonably foreseeable future”. On the other hand, a mere possibility that has not been foreclosed will not amount to a “real prospect” of removal.
The parties’ submissions
98 The submissions at the hearing focused on whether or not the first-instance decision of Colvin J in ASF17 (FCA) should be followed.
(a) The applicant submitted that, in so far as his detention was purportedly for the purpose of his removal from Australia, the constitutional limitation had been reached. The applicant submitted that the Commonwealth had constrained itself by its own policy choices to a consideration of the applicant’s removal to Iran only, as opposed to any country other than Iran. While the applicant has consistently maintained that he will not agree to assist the Commonwealth with his removal to Iran, he submitted that he has good reasons for adopting that position, and that any suggestion that he has a “choice” to secure his removal by agreeing to return to Iran is “illusory”. The applicant submitted that the evidence filed by the Commonwealth was insufficient to establish a real prospect of his removal becoming practicable in the reasonably foreseeable future, whether by making specific inquiries with the Iranian Embassy to obtain a travel document for the applicant or to challenge its position in refusing to issue such a travel document, or by otherwise exploring the possibility of removal to a third country.
(b) The Commonwealth submitted that the constitutional limitation in NZYQ had not been reached due to the absence of cooperation from the applicant to his removal to Iran. The Commonwealth relied on the principle expressed by Colvin J in ASF17 (FCA) at [60] that “unless there is an inability to cooperate (for medical reasons or a lack of knowledge), in the absence of cooperation as to matters relating to removal it cannot be concluded that there is no real prospect of the person's removal from Australia becoming practicable in the reasonably foreseeable future”. The Commonwealth submitted that detention does not cease to be for the purpose of removal, and cannot be characterised as punitive, in circumstances where the non-citizen is choosing not to cooperate in achieving that purpose, because the non-citizen could bring his or her detention to an end at any time.
99 The High Court having now essentially upheld the correctness of the approach adopted by Colvin J in ASF17 (FCA), the written supplementary submissions filed by each of the parties are confined to the questions of whether the applicant is properly regarded as being “uncooperative” in the same manner as the appellant in ASF17 and, if so, whether he has “power” or “capacity” to cooperate with the necessary steps to effect his removal. These questions turn largely on the evidence adduced at the hearing in relation to the applicant’s medical and psychological condition, and in particular the expert evidence of Dr Kwok.
100 The applicant submitted that he suffers from “significant mental health conditions” and that, as a result, the Commonwealth cannot establish that “it is realistically within his power to change his approach to one of cooperation with removal to Iran”: compare AZC20 at [65(d)]. The applicant maintained that no finding could be made, and no inference could be drawn, that he was deliberately or opportunistically frustrating the Commonwealth’s efforts to remove him from Australia. In his written supplementary submissions, the applicant submitted that his circumstances can be distinguished from those of the appellant in ASF17 and that “he falls within an exception to the principle upheld in that case” due to his medical conditions.
101 In that regard, the applicant relied on the following evidence:
(a) a letter from Foundation House dated 18 June 2014, which reported that the applicant had suffered from “persistent and intrusive memories and flashbacks of his past trauma which caused him an increased level of psychological arousal”;
(b) the applicant’s unchallenged affidavit evidence that he is genuinely fearful of returning to Iran, that his detention has caused him great stress and is affecting his mental health, and that he has attempted to commit suicide in detention in the past and continues to have suicidal ideation; and
(c) the expert evidence of Dr Kwok, who referred to the applicant’s reported fears of being sent back to Iran and his previous suicide attempts, and formed the opinion that the applicant is suffering from PTSD with psychological symptoms including “negative alterations in conditions and mood”, and that he is vulnerable to mental health problems, particularly in detention.
102 The applicant placed particular reliance on the passage from the Kwok report extracted at paragraph 36 above in support of a submission that, while the applicant was able to make “general decisions” and express his “general views” with respect to his ongoing immigration detention, he had only “limited ability” to make decisions that involve or require “complex thinking” or “expressing complex information and providing details”. The applicant submits that the “compelling inference” available is that the applicant does not have the capacity or power to cooperate in the undertaking of administrative processes necessary to facilitate his removal to Iran, including the requirement to attend an interview with officials from the Iranian Embassy, or at least that the Court cannot be positively satisfied that he would have such power or capacity.
103 Accordingly, the applicant submitted that, in circumstances where he has discharged his initial evidentiary burden, the Commonwealth “has simply has not sought to challenge or compete with the evidence adduced by the applicant concerning the impacts of his mental health”, so that the Court cannot now be satisfied the applicant has sufficient power or capacity to make the necessary decisions required to bring about his removal.
104 The applicant further submitted that, in any event, the evidence does not establish or found an inference “that Iran would accept the applicant even if he (falsely) claimed to it that he was willing to return to that country voluntarily”.
105 The Commonwealth, on the other hand, submitted that the present case is “on all fours” with ASF17. Relying on the applicant’s response to the Notice to Admit, the Commonwealth submitted that the applicant did not formally dispute that he “does not have any medical condition that impacts [his] capacity to understand and make decisions in respect of [his] immigration affairs”, and made positive admissions that “he presently has capacity to understand and make decisions, and has had such capacity at all times since these proceedings were commenced” and that “his capacity to understand and makes decisions extends (and has extended, at all times since these proceedings were commenced) to making decisions about his immigration affairs”.
106 The Commonwealth submitted that these admissions establish that the applicant has the capacity to cooperate with Iranian authorities to obtain a travel document, and that the effect of the admissions is not (and cannot be) “overcome” by the evidence of Dr Kwok. Although Dr Kwok stated that the applicant is suffering from and requires ongoing treatment for PTSD, depression and anxiety, she does not suggest that the applicant is incapable of cooperating in his removal to Iran due to his mental health conditions. In particular, Dr Kwok accepted that the applicant can make general decisions with respect to his immigration affairs. While Dr Kwok qualified this view in relation to the applicant’s limited ability to engage in “complex thinking” or to process, understand and express “complex information”, the Commonwealth submitted that nothing in Dr Kwok’s report suggests that the applicant would be unable to attend an interview with Iranian authorities if and when he is required to do so in order to obtain a travel document.
107 In so far as Dr Kwok gave oral evidence in cross-examination that the applicant would not have had the “capacity” to provide the detailed information contained in his affidavit at his interview with Dr Kwok, she accepted that his capacity would fluctuate depending on his emotional state. Accordingly, the Commonwealth submitted that there was at least a “real prospect” that the applicant would be able to take the steps necessary for his removal to Iran in the reasonably foreseeable future.
108 The Commonwealth sought to contrast the applicant’s circumstances in the present case from those of the applicant in AZC20, who had entered “a state of chronic demoralization and dysphoria” and appeared to be unable to communicate orally: see AZC20 at [65(d)]. The Commonwealth submitted that, on the evidence before the Court, the applicant’s mental health conditions were “not of such severity that it can be concluded that it is not ‘realistically within his power to change his approach to one of cooperation’”.
109 The Commonwealth contended that the evidence of Mr Nette confirms that, if the applicant agreed to be removed to Iran, he would be able to obtain a travel document from Iranian authorities to facilitate his removal. The Commonwealth submitted:
In the absence of cooperation from the Applicant as to matters relating to his removal, the Court cannot conclude that there is no real prospect of the Applicant’s removal to Iran becoming practicable in the reasonably foreseeable future. Put another way, the Applicant’s detention has not ceased to be for the objectively determined purpose of removal because the Applicant himself could bring it to an end at any time.
The practicability of the applicant’s removal to Iran
110 The Commonwealth has defended the legality of the applicant’s ongoing detention solely on the basis that there is a real prospect of his removal to Iran becoming practicable in the reasonably foreseeable future. In such circumstances, the applicant’s contention that the Commonwealth has only ever considered his removal to Iran, and has not assessed whether there was a prospect of his removal to a country other than Iran, goes nowhere: compare ASF17 at [23]. As the Commonwealth submitted, whether or not the applicant might be removed to a third country has no relevance to the determination of the present application. I note that it has been acknowledged in other cases that the Commonwealth has a policy of not removing a person to a country of which they have no right of residency or long-term stay: see ASF17 at [9]. There is no evidence that the applicant in the present case has any right to enter and reside in a country other than Iran, nor that his removal to any country other than Iran might be reasonably practicable now or in the reasonably foreseeable future. If that were to be the case, the Commonwealth’s failure to take steps to remove the applicant to such a third country would not render his detention unlawful, but rather would give rise to a claim for mandamus to enforce the removal duty: see generally AJL20 at [4]-[5], [53], [73] (Kiefel CJ, Gageler, Keane and Steward JJ). However, in the absence of any evidence to establish a real prospect of the applicant’s removal to a third country, the Commonwealth is required to prove that there is a real prospect of his removal to Iran. If the Commonwealth does not discharge that burden, it will follow that the applicant’s current detention is unlawful.
111 In ASF17, the appellant had not cooperated with officers in the undertaking of administrative processes directed to facilitating his removal from Australia. He had consistently told officers that he would not voluntarily return to Iran, and had consistently refused to sign a request for removal or to engage with Iranian authorities in planning for his removal: ASF17 at [7]. The reasons for his refusal to return to Iran were related to his claimed subjective fears of being harmed in Iran, although those claims were ultimately rejected by the Court: ASF17 at [11], [19]-[20]. Like the applicant in the present case, the appellant in ASF17 had told officers that he would agree to be sent to any country other than Iran, but did not identify any country to which he could or might be removed other than Iran. This had resulted in an “impasse”, which the Department had described as “intractable”: ASF17 at [10].
112 On the findings of fact made in ASF17 at first instance and upheld on appeal, the appellant “made a voluntary decision not to cooperate in meeting with Iranian authorities to facilitate his removal to Iran, a decision which he has the capacity to change but which he chooses not to change”: ASF17 at [21], and see also at [77], [126]. Further, this Court had found that, if the appellant “cooperated by writing a letter to Iranian authorities and by providing such other information as may be requested by Iranian authorities, the Commonwealth would be able to obtain travel documents for him to travel to Iran”: ASF17 at [22]. On those findings, the High Court held that it was not open to the appellant to argue that the Commonwealth had not established that he could not be removed to Iran even if he had travel documents. It was accepted that the evidence adduced by the Commonwealth established that, with his cooperation, the appellant could be removed to Iran: ASF17 at [22].
113 The plurality in ASF17 (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ) reemphasised the constitutional underpinning of the limitation expressed in NZYQ by reference to the principle in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1. This involved a “single question of characterisation”, namely “whether the detention of the alien under ss 189(1) and 196(1) of the Act is justified, at the point in time when an application for a writ of habeas corpus is determined, as reasonably capable of being seen to be necessary for the identified statutory purpose of removing the alien from Australia under s 198(1) or s 198(6) of the [Migration] Act”: ASF17 at [32]-[33]. If not, the detention will be characterised as penal or punitive, and beyond the powers capable of being validly conferred on the Executive.
114 The plurality in ASF17 expressed the position as follows (at [41]-[42]):
Where a country has been identified to which a detainee might permissibly be removed under s 198(1) or s 198(6) consistently with s 197C of the Act, the question of whether there is a real prospect of removal of the detainee from Australia to that country becoming practicable in the reasonably foreseeable future is a question of whether there are steps which are practically available to be taken which, if taken, can realistically be predicted to result in the removal of the detainee to that country in the reasonably foreseeable future. The steps practically available to be taken can be expected frequently to include administrative processes directed to removal which require the cooperation of the detainee and in which the detainee has the capacity to cooperate. That such steps are to be regarded as remaining practically available to be taken in circumstances where the detainee refuses to cooperate in the taking of them reflects the nature of the constitutional limitation to which the inquiry is directed.
The short point is that, conformably with the Lim principle, continuing detention for a non-punitive purpose that is occurring because of a voluntary decision of the detainee cannot be characterised as penal or punitive. The non-punitive statutory purpose of removing an alien detainee from Australia under s 198(1) or s 198(6) of the Act remains a non-punitive purpose that is reasonably capable of being achieved if and for so long as removal could be achieved in the reasonably foreseeable future were the detainee to decide to cooperate in the undertaking of administrative processes necessary to facilitate that removal.
115 The plurality (at [45]) approved observations made by French J in WAIS at [61] that “[a] detainee cannot, in effect, create a circumstance which negatives any reasonable likelihood that he can be removed in the foreseeable future by withholding his consent or cooperation to a particular avenue for removal and specifically to removal to the country from which he came”.
116 The conclusion reached by the plurality on the particular facts in ASF17 was summed up in the following terms (at [48]):
ASF17 could be removed to Iran if he cooperated in the process of obtaining the requisite travel documents from Iranian authorities. He has decided not to cooperate. He has the capacity to change his mind. He chooses not to do so.
In such circumstances, the continuing detention of the appellant in ASF17 did not exceed the temporal limitation imposed by Ch III of the Constitution on the valid application of ss 189(1) and 196(1) of the Migration Act.
117 Justice Edelman reached the same result, albeit by a pathway that reflected his discrete approach in NZYQ. Under that approach, while ss 189 and 196 of the Migration Act have a legitimate purpose, being (relevantly) the removal of certain classes of aliens from Australia and their detention or segregation for that purpose, those provisions are disapplied in particular circumstances where the means adopted are disproportionate to the achievement of their legitimate purpose and are thereby punitive in character. To the extent that ss 189(1) and 196(1) require the detention of an alien for whom there is no real prospect of removal becoming practicable in the reasonably foreseeable future, such detention is not reasonably capable of being seen as necessary for the legitimate purpose of the removal of aliens from Australia: ASF17 at [69]-[71], [96]-[97], [101]-[102], [124]-[125] (Edelman J).
118 In the present case, I proceed on the basis that Iran does not accept “involuntary” returns, in that it will not issue travel documents to an Iranian citizen who is not willing to make an application in accordance with its requirements.
119 In ASF17 at [8], such a policy was stated by the High Court as a starting premise, namely that “Iranian citizens cannot enter Iran from Australia without a travel document issued by Iranian authorities and Iranian authorities have a longstanding policy of not issuing travel documents to involuntary returnees”. This policy does not appear to have been the subject of an explicit finding of fact by Colvin J at first instance, although his Honour did refer to a concession made by the applicant in that case that the Commonwealth would be able to obtain travel documents for him to travel to Iran if he “cooperated by writing a letter to the Iranian authorities and by providing such other information as may be requested by Iranian authorities”: ASF17 (FCA) at [131].
120 The Commonwealth’s understanding of Iran’s policy was also discussed by Kennett J in AZC20 at [49]-[52], albeit in slightly more equivocal terms. There was also evidence in that case that, notwithstanding that the applicant was “not agreeable to voluntary removal to Iran”, there had nevertheless been some engagement with the Iranian Embassy resulting in a potential meeting with Iranian officials being offered to the applicant, an opportunity which he had declined. His Honour made findings of fact in AZC20 at [53] that there was no realistic prospect of returning the applicant to Iran unless he was issued with a new travel document, and that was no realistic prospect of such a travel document being issued unless either the applicant consented to his removal to Iran or “(possibly) the applicant meets and provides information to Iranian officials, and they can somehow be persuaded to make an exception to their country’s normal policy”.
121 In any event, in the present proceeding, the applicant’s pleaded case included an allegation that Iran has at all material times “adopted and enforced a policy of not accepting involuntary returns of its own nationals from Australia”: see statement of claim dated 22 March 2024 at [4(a)]; see also applicant’s outline of submissions dated 12 April 2024 at [3]. Together with the applicant’s ongoing unwillingness to agree to his removal to Iran, such a policy is a foundation of the applicant’s central contention that there is no real prospect of his removal to Iran becoming practicable in the reasonably foreseeable future.
122 While the Iran TDRG states that “[t]ravel documents will not be issued by the Iranian Embassy to involuntary [unlawful non-citizens]”, there is no direct evidence before me of an application or request for travel documents for an involuntary returnee having been refused by the Iranian Embassy. Similarly, while Mr Nette expressed his understanding that Iran does not issue a Laissez Passer to an “involuntary” returnee, his understanding was based on the Iran TDRG rather than any direct personal experience. It appears that the Department, and in particular the CELT, do not attempt to obtain travel documents for involuntary removals to Iran based on such an understanding of Iran’s policy or practice. Rather, the Department’s approach in circumstances such as the present case appears to be one of waiting until such time as the non-citizen indicates that he or she is willing to cooperate with the necessary arrangements for his or her removal to Iran, and thereby becomes “voluntary”. Until that occurs, there will be a “barrier” to the non-citizen’s removal from Australia.
123 In so far as the applicant seeks to argue that it is open to the Commonwealth to take steps to “challenge” Iran’s position of not issuing travel documents to involuntary returnees, and that it is the “policy choice” of the Commonwealth not to do so, this issue does not arise for determination in the present case for two reasons. First, in the light of the High Court’s decision in ASF17, the applicant’s detention will be within constitutional limits if there are steps which are practically available to be taken with his consent and cooperation that can realistically be predicted to result in his removal to Iran in the reasonably foreseeable future. Secondly, any alleged failure by the Commonwealth to pursue available steps to effect the applicant’s involuntary removal would potentially be amenable to an application for mandamus to enforce the statutory duty under s 198 of the Migration Act rather than an application for an order in the nature of habeas corpus.
124 In order to travel to and enter Iran, it is necessary for the applicant to obtain a Laissez Passer with the approval of the Iranian Ministry of Foreign Affairs. I accept the evidence of Mr Nette, who has direct experience in dealing with the Iranian Embassy in relation to applications for travel documents, that the Iran TDRG reflects the procedure and requirements for making an application to the Iranian Embassy for the issue of a Laissez Passer to a person with Iranian nationality. While the applicant sought to put in issue whether the Iran TDRG was current as at the date of the hearing (noting that Mr Nette had not checked whether it had been altered since he made his affidavit on 5 April 2024), there is no reason to think that any recent changes have been made to the Iran TDRG. Mr Nette gave evidence that officers from CELT attend the Iranian Embassy on a weekly basis, and that he had attended the Embassy within the fortnight prior to his oral evidence. Further, Mr Nette together with other officers of the Department attended a meeting with Iranian Embassy officials in December 2023 at which there was a general discussion of the topic of removals to Iran. In my view, Mr Nette is well placed to provide evidence on the current procedures for obtaining travel documents for Iranian nationals from the Iranian Embassy.
125 As outlined in paragraph 45 above, an application for a Laissez Passer requires an application form signed by the applicant and accompanied by Iranian identity documents. The identity documents must be original documents or, with the prior approval of the Iranian Ministry of Foreign Affairs, copies of original documents. The applicant must provide a handwritten letter written in their native language (which the Iran TDRG specifies as Farsi), requesting assistance in obtaining a travel document and setting out brief information in relation to his or her route and dates of travel to Australia, the length of time spent in detention, and the reasons why he or she wants to return to Iran. The application must include a current passport photograph, and the applicant is required to participate in a phone interview with the Iranian Embassy. Before a Laissez Passer can be issued, a copy of the applicant’s flight itinerary for the return flight to Iran must be provided.
126 An applicant who is not willing to agree to or comply with the above requirements may be characterised as “involuntary”. Nevertheless, an applicant who voluntarily cooperates with these requirements does not need to pretend that they desire to return to Iran for any reason other than that they are unable to remain in Australia. As a practical matter, and putting to one side any questions of international law, it is for the Iranian authorities to decide whether or not to issue a Laissez Passer to an Iranian citizen who has complied with the application requirements. If an individual has done everything within his or her power to obtain a Laissez Passer, but the Iranian authorities have failed or refused to issue a travel document, further questions may arise as to whether there is a real prospect of the individual’s removal to Iran or any other country becoming practicable in the reasonably foreseeable future.
127 On the facts of the present case, Mr Nette has viewed copies of the applicant’s Iranian birth certificate and National ID card on the Department’s record-keeping systems, and considers that “these forms of identity document would suffice” to obtain a Laissez Passer from the Iranian authorities. Accordingly, Mr Nette expressed the view that “the applicant should be able to obtain a Laissez Passer through the Iranian Embassy if he was to become voluntary”, although this was premised on the provision of “an original copy or a copy” of one of the two identity documents and cooperation with the requirements set out above. It should be noted that, if the original identity documents are not available, it will be necessary to obtain approval from the Ministry of Foreign Affairs before submitting any application with copies of the identity documents, and that this may require the applicant to make arrangements for a family member or friend in Iran to attend at an office of the Ministry of Foreign Affairs with the original documents. Thus, even if the applicant were to cooperate with the making of an application, there might still be potential barriers to the issue of a Laissez Passer that are outside the control of the applicant.
128 For present purposes, however, I find that there is at least a real prospect that the applicant would be issued with a Laissez Passer if he were to cooperate with the steps necessary to make an application to the Iranian Embassy including the information requested by Iranian authorities. At least at the present time, the immediate barrier to the applicant’s removal to Iran is his lack of cooperation and assistance with the administrative processes necessary for him to apply for a travel document – noting, however, that there is no evidence that he has yet been specifically asked to apply for a Laissez Passer or to do anything to enable such an application to be made. While the present case is not necessarily “on all fours” with ASF17, in which the appellant had explicitly refused to meet with Iranian authorities for the purpose of procuring travel documents and had refused to cooperate with any effort to return him to Iran, there nevertheless remain steps that are practically available to be taken by the applicant to obtain a Laissez Passer in order to facilitate his removal to Iran.
129 As noted above, Ms Langi gave unchallenged evidence that she has a reasonable suspicion that the applicant is an unlawful non-citizen for the purposes of s 189(1) of the Migration Act. Nevertheless, Ms Langi is not responsible for making arrangements regarding the applicant’s removal from Australia. She does not appear to have turned her mind to the question whether there is a real prospect of the applicant’s removal from Australia becoming practicable in the reasonably foreseeable future, and it would be difficult for her to do so in circumstances where it was not part of her role or responsibilities to organise the applicant’s removal. The Departmental records indicate that some other Departmental officer, possibly within the Removal Operations team in New South Wales, has previously assessed the temporal limit on detention under s 189(1) and 196(1), and formed a view on or about 18 January 2024 that the applicant was not “affected” by the limitation recognised in NZYQ as “at that point in time”. This assessment was on the stated premise that the applicant’s removal to Iran “could be effectively pursued if he was on a voluntary removal pathway” (see paragraph 64 above). However, the Commonwealth did not call any witness who was able to give direct evidence about such matters.
130 Ultimately, the application of the constitutional limitation recognised in NZYQ involves a factual question for determination by the Court, rather than one that depends on the state of mind of the particular officers who are responsible for the applicant’s detention and removal: compare ASF17 (FCA) at [146]. That is not to say that actions taken (or not taken) by officers of the Commonwealth, and the basis on which such actions have been taken (or not taken) by those officers, cannot be relevant to the factual and legal questions for determination by the Court. Further, what has happened in the past can in some circumstances be relevant to what might happen in the future: Sami v Minister for Home Affairs [2022] FCA 1513 at [159] (Mortimer J). It is for the Court to make any necessary findings of fact and determine for itself whether there is a “real prospect” that the removal of the applicant from Australia will become “practicable” in the “reasonably foreseeable future”. As Kennett J observed in AZC20 at [27]-[29], these terms express concepts that are to some extent evaluative, in the context of the constitutional principle identified in NZYQ as subsequently elaborated in ASF17.
131 The applicant has not been referred to CELT to progress his removal to Iran because he has been classified by unidentified officers of the Department as “involuntary”, in the sense that he is unwilling to complete the documentation required to obtain a travel document for his removal to Iran. It appears that the relevant officers of the Department consider that the applicant’s removal could be effected “if he was on a voluntary removal pathway”. Departmental records indicate that the applicant advised officers on 4 April 2024, in the context of a discussion about his “immigration pathway”, that he “remains involuntary to removal”. The precise terms of this discussion, including the manner in which the applicant conveyed his position, are not in evidence. However, the Departmental records state that the applicant was unwilling to apply for a travel document, and this is consistent with the applicant’s own evidence in the current proceedings.
132 In some respects, the evidence adduced by the Commonwealth in the present case of the specific actions that have been taken to progress the applicant’s removal from Australia leaves a lot to be desired. There is no evidence that the applicant’s case has been referred to an officer in a regional Removal Operations team, nor is there evidence of the steps that have been taken by any such officer to effect the removal of the applicant, whether to Iran or elsewhere. On the evidence before me, I infer that the Department has not engaged a removal officer for the applicant and has not referred the matter to CELT on the basis that the applicant is unwilling to agree to his voluntary removal to Iran. Nevertheless, the applicant does not complain about any failure by the Commonwealth to perform its statutory duty to remove the applicant from Australia. The applicant contends that there is no real prospect of his removal becoming practicable in the reasonably foreseeable future, not that his removal is reasonably practicable but the Commonwealth is not doing enough to carry out that removal.
133 As at 4 April 2024, there were plans to monitor the applicant’s case over the following month including his “involuntary removal”, which I take to mean that Departmental officers would check to confirm that the applicant remains “involuntary” in relation to his removal to Iran. Although this provides some indication that the applicant’s case is being reviewed on a monthly basis, the Department’s stated position is that the applicant’s “immigration pathway requires minimal intervention”. It does not appear that the Department plans to take any further action to progress the applicant’s removal unless and until he is on a “voluntary removal pathway”.
134 The applicant remains unwilling to cooperate in or assist with the steps required to make an application to the Iranian Embassy for the issue of a travel document to enable his removal to Iran. In particular, he does not agree to provide a handwritten letter or to participate in a phone interview with the Iranian Embassy. The question whether it is within the power or capacity of the applicant to take such steps is addressed below.
135 Subject to the issue of capacity, any refusal by the applicant to assist with an application to the Iranian Embassy for the issue of a Laissez Passer can be regarded as a voluntary choice by him not to cooperate in the process of obtaining the requisite travel documents from Iranian authorities. I am not prepared to make a finding that there has been any deliberate attempt by the applicant to “engineer” his release into the community by frustrating efforts to remove him from Australia: cf. AZC20 at [63]-[65]; ASF17 (FCA) at [116]-[117]. Despite any suggestions that the applicant is on a “removal pathway”, there is no evidence that the Commonwealth has even asked the applicant to provide the documents or information required by the Iranian Embassy in connection with an application for a Laissez Passer, nor that he has been asked whether he is willing to participate in a phone interview with officials from the Iranian Embassy for the purposes of obtaining a Laissez Passer. Further, the Commonwealth did not challenge the genuineness of the applicant’s expressed subjective fear of returning to Iran, albeit that both a delegate of the Minister and the IAA have determined that this fear was not well-founded at the time of those decisions, nor did the Commonwealth dispute the applicant’s willingness to be removed to any country other than Iran.
136 In the absence of a protection finding having been made in respect of Iran within the meaning of s 197C of the Migration Act, s 198 authorises and permits the applicant’s removal to Iran. Unless the applicant does not have the power or capacity to take the steps that are necessary to obtain a travel document for Iran, those steps remain practically available to be taken by him. On that basis, there is a real prospect that the applicant’s removal from Australia to Iran will become practicable in the reasonably foreseeable future, if and when the necessary steps are taken with his cooperation to apply for an Iranian travel document. In such circumstances, the applicant’s detention is for the purpose of his removal from Australia under s 198 of the Migration Act and the temporal limit on such detention has not been exceeded.
137 However, it remains necessary to address whether or not it is within the power or capacity of the applicant to take the necessary steps involved in obtaining a travel document from the Iranian authorities in order to enable his removal from Australia to be carried out.
Does the applicant have capacity to cooperate in his removal to Iran?
138 The premise that the applicant can take steps that are practically available in order for him to obtain a travel document from the Iranian authorities is subject to a qualification, namely, that the applicant is neither expected nor required to take steps that are not within his power or capacity, including by reason of mental illness or some other medical condition or due to the limits of his knowledge and ability to provide information.
139 Such a qualification was contemplated by Kiefel CJ, Keane, Nettle and Edelman JJ in Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285 at [30] and [41], in the course of deciding that the plaintiff’s refusal to assist with efforts to confirm his identity and nationality involved “deliberate obfuscation and falsehood” which was neither due to “any medical condition or mental illness on his part” nor “explicable by genuine uncertainty and ignorance”. Justices Bell, Gageler and Gordon noted (at [47]) that there was nothing in the special case “to suggest that the plaintiff suffers from a psychiatric or other medical condition which would affect his capacity to give a coherent, factual account of his background”. In such circumstances, the High Court unanimously found that it was not beyond the “power” of the plaintiff to provide further information and to cooperate with attempts to establish his identity and nationality: Plaintiff M47 at [41] (Kiefel CJ, Keane, Nettle and Edelman JJ), [49] (Bell, Gageler and Gordon JJ).
140 The question of capacity was considered by Kennett J in AZC20, in the context of addressing the relevance of the applicant’s non-cooperation with attempts to obtain a travel document for his removal to Iran. Justice Kennett identified the relevant point of principle established by Plaintiff M47 in the following terms, that “an alien who has no legal right to remain in Australia is not to be permitted to engineer their own release into the community by frustrating the efforts of officers to carry out their duty under s 198 of the Act”: AZC20 at [64]. His Honour understood this principle as operating “narrowly” as an exception to the operation of a constitutional rule that protects individual liberty, and considered that the principle “should be understood to apply only where an unlawful non-citizen embarks on a deliberate strategy of preventing their removal from Australia”: AZC20 at [65(a)].
141 In ASF17 at first instance, Colvin J took a broader view as to the relevance of an applicant’s refusal to cooperate, and did not accept that such non-cooperation is only relevant if it is part of a strategy to prevent removal: see ASF17 (FCA) at [41], [53], [128]. Justice Colvin considered that, “in determining whether there is a real prospect of removal becoming practicable in the reasonably foreseeable future there is to be regard to all actions that might be taken with the cooperation of the person being detained, save only for instances where the person is incapable of cooperating”: ASF17 (FCA) at [128] (emphasis added). His Honour distinguished the decision in AZC20 as resting on findings made by Kennett J “concerning the mental health problems of the applicant in that case”, as a result of which he “was not capable of cooperating”: ASF17 (FCA) at [37], [39]. In contrast, Colvin J found that the applicant in ASF17 had the capacity to cooperate and that, “despite his mental health being affected and his history of depressive illness”, he had made a voluntary decision not to cooperate: ASF17 (FCA) at [37]. This reasoning was referred to by the plurality in the High Court: see ASF17 at [24]-[25] (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ). In particular, the plurality found at [21] that no reason had been advanced to doubt the finding made at first instance that the appellant had the capacity to change his decision not to cooperate with the administrative processes to facilitate his removal to Iran but chose not to.
142 For present purposes, it is unnecessary to resolve any debate between Kennett J and Colvin J about the principle to be drawn from Plaintiff M47 regarding non-cooperation following the decision in NZYQ. The reasoning in both AZC20 and ASF17 (FCA) must now be considered in the light of the High Court’s decision in ASF17. While the High Court affirmed the outcome in ASF17 (FCA), it did not necessarily suggest that the result in AZC20 was wrong and implicitly accepted that there is a limit on the relevance of non-cooperation in circumstances where an alien does not have the power or capacity to participate in the administrative processes necessary to effect his or her removal. The critical question is the manner in which that limit should be expressed.
143 The plurality in ASF17 referred to Plaintiff M47 as a “further illustration” of the point that the detention of an alien remains for a non-punitive purpose “if and for so long as removal could be achieved in the reasonably foreseeable future were the detainee to decide to cooperate in the undertaking of administrative processes necessary to facilitate that removal”: ASF17 at [42], [44]. The plurality specifically noted the references in Plaintiff M47 to the plaintiff’s failure to provide information about his identity “not being explicable on the basis of incapacity by reason of, for example, any medical condition or mental illness”, nor because of any suggestion that the plaintiff suffered from “a psychiatric or other medical condition which would affect his capacity to give a coherent, factual account of his background”: ASF17 at [44] (emphasis added). Accordingly, the plurality stated that “[t]he critical consideration [in Plaintiff M47] was that it was within the ‘power’ of the plaintiff to provide the information”: ASF17 at [44] (emphasis added).
144 In ASF17, the plurality referred to the concept of “capacity” at several other points in its reasons for judgment, but without further elaboration of what such a concept embodies: see ASF17 at [21], [41], [48]. On the facts of ASF17, the plurality considered that the appellant in that case was in the same position as that described by French J in WAIS, namely a detainee who had in effect created a circumstance “which negatives any reasonable likelihood that he can be removed in the foreseeable future by withholding his consent or cooperation to a particular avenue for removal and specifically to the country from which he came”: ASF17 at [45]. This was because the appellant had decided not to cooperate, in circumstances where he had the capacity to change his mind but chose not to do so: ASF17 at [48]. In such circumstances, based on the undisturbed findings of primary fact by Colvin J, the plurality upheld the “evaluative characterisation” that there was a real prospect of the appellant’s removal to Iran becoming practicable in the reasonably foreseeable future: ASF17 at [49].
145 The separate reasons of Edelman J in ASF17 gave more direct consideration to the qualification based on an alien’s incapacity to cooperate with his or her removal from Australia. In his Honour’s view, the temporal limitation recognised in NZYQ would also be exceeded in circumstances where “(i) the consent of aliens to their removal is required because the only country that will accept the aliens does not permit involuntary removal, but (ii) the aliens are incapable of providing that consent for reasons including psychiatric illness”: ASF17 at [59] (emphasis added). Sections 189(1) and 196(1) could otherwise validly apply to require the detention of “aliens who might refuse, without any incapacity (including psychiatric illness) or protection finding under the Migration Act, to provide necessary assistance in the removal process”: ASF17 at [62] (emphasis added).
146 While Edelman J distinguished the decision in AZC20 on its facts, it is clear that his Honour regarded that case as correctly decided: see ASF17 at [72]-[73]. In particular, Edelman J endorsed the conclusion of Kennett J that NZYQ required that ss 189(1) and 196(1) be disapplied so as not to require the detention of the applicant in AZC20, because he had “mental health problems over a lengthy period” as a result of which it was not “realistically within [his] power to change his approach to one of cooperation with removal to Iran”: ASF17 at [72]-[73]. Justice Edelman relevantly stated at [74]:
It is a valid premise, upon which the Commonwealth Parliament can legislate, that if persons in that category are capable of assisting in their removal and are not in need of protection in the country to which they would be removed, then there is a real chance that they will provide the required assistance in the reasonably foreseeable future (especially if provided with counselling, advice and relocation assistance).
(Emphasis added.)
147 In so far as the joint judgment in Lim (at 34) upheld analogous provisions for the detention of aliens on the basis that it was “within the power of a designated person to bring his or her detention in custody to an end by requesting to be removed from Australia”, Edelman J stressed that “their Honours in Lim were not contemplating, or addressing, a scenario where a person is not capable (for medical reasons or due to psychiatric illness) of requesting removal from Australia”: ASF17 at [106] (emphasis added). Justice Edelman proceeded to address the circumstances of “incapacity to assist in removal” as a particular situation in which the NZYQ limitation could be exceeded (at [107]-[108]):
(1) Sections 189(1) and 196(1) must be disapplied in cases of incapacity to assist in removal.
In NZYQ, the disproportionate application of ss 189(1) and 196(1) of the Migration Act between the means of detention and the legitimate purpose of removal of classes of aliens from Australia arose from the refusal of any country to accept the removal of NZYQ. The same reasoning applies where a detained alien, for reasons of a medical or psychiatric nature, is unable to provide the necessary assistance to the Commonwealth for their removal to the only country where there is any real prospect of removal in the reasonably foreseeable future. The Solicitor-General of the Commonwealth thus appeared to accept, correctly, that ss 189(1) and 196(1) of the Migration Act must be disapplied from their application to situations involving removal of aliens who lack capacity.
Contrary to the submissions of ASF17, however, and subject to the circumstances discussed below concerning aliens who require protection in the country to which their removal is sought, the same conclusion cannot be reached in relation to aliens who are capable of consenting but refuse to be removed to a country that requires voluntary removal. The detention of that class of aliens is reasonably capable of being seen as necessary for their removal from Australia because there is a real prospect that aliens in that class (perhaps with counselling, advice and relocation assistance) will consent to be removed from Australia in the reasonably foreseeable future.
(Emphasis added.)
148 The question that remains is what must be shown in order for an alien to have (or to lack) the power or capacity to cooperate with the administrative processes necessary for his or her removal from Australia, particularly where such removal is to a country that does not accept involuntary removals. There is little concrete guidance in the authorities, particularly in the relatively short period since the High Court’s decision in NZYQ and the even shorter period since the decision in ASF17. A situation of legal incapacity would clearly be covered, including for example, by reason of age, disability or significant cognitive impairment. However, the concept of capacity (or perhaps capability) to assist in or cooperate with one’s removal may have a wider application in this particular context. Thus, the judgments in previous cases refer variously to psychiatric or medical conditions and mental illness. While the decision in AZC20 was based on the applicant’s past and current “mental health problems”, it does not appear that any finding was made in terms of the applicant’s legal incapacity. It may also be noted that a similar position might arise in circumstances where there are limits on an alien’s ability to provide necessary information due to a lack of knowledge (eg “genuine uncertainty and ignorance”).
149 In AZC20, Kennett J concluded (at [66]) that there was no real prospect of the applicant being removed from Australia in the reasonably foreseeable future. In reaching that conclusion, his Honour identified (at [65]) a number of features which distinguished the case from the principle that was seen to have emerged from Plaintiff M47. One of those features was that the applicant “has had mental health problems over a lengthy period, as a result of which I am not persuaded that it is realistically within his power to change his approach to one of cooperation with removal to Iran”: AZC20 at [65(d)]. The applicant had tendered a report from a clinical psychologist that recorded his past suicide attempts and “dangerous acts of self-harm”. The psychologist considered that, while the applicant did not suffer from a major depressive disorder, he had “entered a state of chronic demoralization and dysphoria”, and his “volatility, self-harm and adversarial relationship with detention staff [was] a product of the interaction between emotional dysregulation associated with PTSD, chronic demoralisation, and the effect of extended detention on his personality functioning”. It appears that this evidence was sufficient for Kennett J to establish that the applicant suffered from mental illness, if not incapacity, as a result of which it was not within the applicant’s power to cooperate with his removal.
150 Another issue that was touched on by Kennett J in AZC20 concerns who bears the onus in relation to the question of a person’s power or capacity to cooperate with his or her removal. Is this question encompassed by the applicant’s initial evidentiary burden on a habeas corpus application, or is the Commonwealth required to demonstrate that the person has the power or capacity to cooperate in order to discharge the legal burden to justify the lawfulness of detention? In AZC20, Kennett J appeared to treat this as an aspect of the respondent’s legal burden, but observed that “[t]his may be a topic on which, consistently with Blatch v Archer [1774] 1 Cowp 63 [98 ER 969], slight evidence from the respondents would be sufficient in the absence of evidence from the applicant”. In that case, the respondents did not go into evidence on the issue, but the applicant had tendered a psychological report based on interviews with the applicant along with medical and other records, and the applicant himself had given evidence about his past suicide attempts while in immigration detention.
151 It may be that, in the absence of any evidence to suggest that an applicant lacks the power or capacity to cooperate with the relevant administrative processes, it can be readily inferred that the applicant has such power or capacity. However, if there is some evidence that the applicant may be suffering from a medical or psychological condition by reason of which it is not within his or her power or capacity to cooperate, or to “change his mind” or change his approach to one of cooperation, it will be necessary for the Court to make findings and draw inferences on the available evidence. Even if the respondent bears a legal burden to establish that an applicant has the power or capacity to cooperate, the Court may be in a position to make the necessary findings or inferences as opposed to determining the case on the basis of its non-satisfaction or non-persuasion of those matters and a failure by the respondent to discharge its legal burden.
152 Finally, in determining whether an applicant has or lacks the power or capacity to cooperate with the administrative processes necessary for his or her removal, any limit on the applicant’s power or capacity must be considered in the context of the nature of the particular step or steps that are to be performed or completed by the applicant.
153 Turning to the facts of the present case, senior counsel for the applicant contended that he does not have the power or capacity to cooperate in the administrative processes necessary to facilitate his or her removal, particularly in circumstances where he is required to write a handwritten letter to the Iranian Embassy in Farsi and to attend an interview with Iranian authorities from which he subjectively fears harm.
154 There is clear evidence that the applicant has significant issues in relation to his mental health. There is unchallenged evidence that he has attempted to commit suicide while in immigration detention, and he has made threats to kill himself or to self-harm if he is required to return to Iran. His mental health is affected both by his ongoing detention and by his fears of having to return to Iran. He has been relevantly diagnosed by Dr Kwok as suffering from PTSD, along with depression and anxiety, with symptoms including “intrusive memories of trauma events, distressing dreams and nightmares, sleep disturbance, suicidal thoughts, and negative alterations in cognitions and mood”. The applicant’s PTSD stems primarily from his “pre-migration” experiences in Iran, but has persisted in Australia and is exacerbated by his prolonged detention.
155 Nevertheless, Dr Kwok formed a view that the applicant is able to “make general decisions” and “express his general views” with respect to his ongoing immigration detention. I infer that this encompasses or extends to an ability to make such “general decisions” with respect to his removal from Australia. Dr Kwok considers that the applicant would have “limited ability” to engage in complex thinking and provide detailed information, particularly in the context of an interview at which he may be “emotionally volatile” and may suffer from “emotion dysregulation and alteration in cognition”.
156 As set out above at [71]-[72], the applicant was served with a Notice to Admit Facts which relevantly sought an admission in relation to the truth of the following fact: “The applicant does not have any medical condition that impacts their capacity to understand and make decisions in respect of their immigration affairs.” The applicant’s solicitors responded that they considered that this stated fact was “impermissibly vague”, and instead made specific admissions that (relevantly) the applicant presently has capacity to understand and make decisions that extends to making decisions about his immigration affairs.
157 Although not expressly stated in the Notice of Dispute, I proceed on the basis that the applicant otherwise disputed the truth of the relevant fact in the terms stated in the Commonwealth’s Notice to Admit Facts. Thus, while the applicant has not made an admission in relation to the absence of any relevant medical condition, he has nevertheless admitted that he has capacity to understand and make decisions “about his immigration affairs”. This is consistent with the opinion expressed by Dr Kwok in relation to the applicant’s ability to make “general decisions” with respect to his ongoing immigration detention. It is also consistent with the applicant’s expressed willingness to cooperate with his removal from Australia “to anywhere but Iran”: see his March 2024 affidavit at [31]; see also the Detainee Request Form dated 8 February 2024 (extracted at paragraph 24 above).
158 In his written supplementary submissions, the applicant appeared to suggest that Dr Kwok’s oral evidence gave rise to some uncertainty about the applicant’s capacity. In particular, Dr Kwok was asked in cross-examination whether the applicant had the “mental capacity” to make his September 2023 affidavit and March 2024 affidavit (the former was filed in the proceeding seeking an extension of time to appeal from the FCC Decision but was also read into evidence in the present proceeding). Dr Kwok responded that she could not opine on the applicant’s capacity at the time he made those affidavits, as she had not assessed him at either of those dates. When asked to assume that there was no relevant change in the applicant’s presentation between 22 March 2024 and the date on which she interviewed him, Dr Kwok did not agree that he would have had the “capacity” to make his affidavit on that date, and stated that “[b]ased on my observation of how he presented at the interview, he would not have capacity to give that detailed information that was contained in the affidavit”. In re-examination, Dr Kwok added that the applicant had presented as emotionally volatile at his interview, which “could have affected his ability to communicate”, and she “would assume that his capacity would fluctuate … with his emotions”.
159 There may be some ambiguity about the relevant sense in which Dr Kwok was using the term “capacity” when giving the evidence set out above. On one view, her answers were consistent with the opinions set out in her report, namely that the applicant was able to make general decisions and express his general views, but his ability to process and understand complex information and to provide detailed information would be limited by his emotional state at any particular time. However, this does not necessarily provide any basis on which to infer that the applicant lacks the capacity or power to cooperate with the administrative processes involved in obtaining a travel document from the Iranian Embassy.
160 In order to apply for a Laissez Passer, the steps in which the applicant’s cooperation is required include, relevantly:
(a) signing an application form;
(b) providing a handwritten letter in Farsi that requests assistance in obtaining a travel document, and sets out “brief information” about a range of factual matters such as his route of travel to Australia, the date on which and the place at which he arrived in Australia, the period for which he has been detained in Australia, and his reasons for returning to Iran;
(c) providing a current passport photograph; and
(d) participating in a phone interview with officials from the Iranian Embassy.
161 On the evidence before the Court, I find that it is within the power or capacity of the applicant to perform or cooperate with the performance of the steps set out above. I consider that these steps fall within the scope of making general decisions about immigration affairs, and that they will not require the applicant to process or provide complex or detailed information. The applicant will be able to cooperate with each of these steps, if necessary with the assistance of counselling and advice.
162 There is little if any evidence about the nature or purpose of the phone interview with Iranian officials, or the kinds of questions that the applicant might be asked in such an interview. However, there is nothing to suggest that the interview will involve complex or detailed questions, nor that the applicant will be asked to recount any details of the claims that he advanced in support of his protection visa application. Provided that he does not deliberately seek to frustrate the process, the applicant is required to do no more than participate in the interview. It will then be a matter for the Iranian authorities to determine whether to issue a Laissez Passer to the applicant. If circumstances were to arise in which there is no real prospect that the Iranian authorities will issue a Laissez Passer in the reasonably foreseeable future, there would be a question as to whether the temporal limit recognised in NZYQ has been exceeded.
163 For completeness, I note that the applicant’s subjective fear of being harmed on his return to Iran is not of itself sufficient to establish that his removal is not reasonably practicable: compare AZC20 at [84]-[101]. In the absence of a protection finding for the purposes of s 197C of the Migration Act, there is no statutory constraint on the applicant’s removal to Iran. For the purposes of assessing whether there is a real prospect of a person’s removal becoming practicable in the reasonably foreseeable future, a subjective fear of harm does not provide a basis on which the person may refuse to cooperate with the administrative processes necessary for his or her removal. The scheme of the Migration Act provides mechanisms for the consideration of Australia’s non-refoulement obligations, and any claims to fear persecution or significant harm can be addressed in that context, including if necessary through the exercise of the Minister’s personal non-compellable powers under ss 48B or 195A of the Migration Act: see the plurality in ASF17 at [38] and Edelman J at [113]-[114].
164 For the reasons set out above, there is currently a real prospect of the applicant’s removal to Iran becoming practicable in the reasonably foreseeable future, in that there are steps that are practically available to be taken which, if taken, can realistically be predicted to result in the applicant’s removal to Iran in the reasonably foreseeable future. Accordingly, the current detention of the applicant is for the non-punitive statutory purpose of his removal from Australia, and his continuing detention under ss 189(1) and 196 of the Migration Act does not at this time exceed the temporal limitation identified in NZYQ on the valid application of those provisions.
165 The question may need to be revisited if, once the applicant has taken whatever steps are within his power or capacity to assist in the administrative processes necessary for his removal to Iran, that removal does not in fact eventuate within a reasonable period. It would then be necessary to identify any relevant barriers to his removal, and assess whether there was a real prospect of his removal becoming practicable within the reasonably foreseeable future.
Conclusion
166 The application for an order in the nature of habeas corpus is dismissed. I will invite the parties to provide submissions on the question of costs, and on what, if any, orders should be made in relation to the balance of the claims made and relief sought in the originating application.
I certify that the preceding one hundred and sixty-six (166) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan. |
Associate:
Dated: 28 June 2024
