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.