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[2021] FCA 259
Federal Court of Australia
2021-03-23
Bromberg J, Griffiths J
Original judgment source is linked above.
The applicant's case summarised 86 Perhaps reflecting the fact that the Commonwealth carried the onus of establishing the lawfulness of the applicant's detention, the applicant did not himself adduce any affidavit evidence. As noted above, only one of the Commonwealth's witnesses was cross-examined. The applicant did not raise any objection to the extensive documentary evidence which was included in the Tender Bundle (Exhibit A1). 87 It is convenient to summarise the applicant's case with reference to the alternative arguments advanced by the Commonwealth.
(a) Commonwealth's actions relating to the applicant's removal from Australia 88 The applicant contended that there was non-compliance with s 198 of the Act from 4 September 2019 to 2 October 2020, relying upon the following primary submissions. 89 First, the Commonwealth's duty to remove the applicant under s 198(6) was engaged when the applicant's application for a protection visa was refused on 4 September 2019, noting that the applicant was no longer entitled to make any further visa applications under the Act. 90 Secondly, after 4 September 2019, there was no reasonable possibility of the applicant being granted a substantive visa as the result of the Minister favourably exercising any of his relevant non-compellable visa-granting powers, given the applicant's past criminal offending. 91 Thirdly, given that the applicant was found by the IAA to be a stateless person, the Commonwealth knew or ought to have known that there was little or no reasonable possibility of removing the applicant from Australia to another country. The applicant added that although an identity assessment of him had commenced in September 2020 (based on his brother having submitted an Iranian driver's licence as part of his application for Australian citizenship), there was no explanation why that identity assessment had not commenced earlier. Furthermore, the applicant submitted that it is expected that the outcome of the identity investigation will be inconclusive given that the Iranian driver's licence did not belong to him. 92 Fourthly, merely because the applicant had withheld his consent to voluntarily being removed to either Iran or Iraq did not absolve the Commonwealth of its obligation to remove him from Australia as soon as reasonably practicable, citing Al-Kateb at [227] per Hayne J. This was because the duty under s 198 is to remove an unlawful non-citizen in immigration detention to any country that is willing to accept him or her. The applicant acknowledged in his outline of written submissions that the Commonwealth's evidence indicated "that it is not reasonably practicable to remove [him] to Iran or Iraq", but submitted that there was no evidence to suggest that the Commonwealth had taken any other steps with a view to removing the applicant to any other country that might accept him, including the possibility of him being removed to a European nation. 93 Fifthly, the applicant pointed to the evidence of Ms Davis as indicating the possibility of an escorted removal of unlawful non-citizens on chartered flights, including to countries such as New Zealand, the United Kingdom, Vietnam and Italy. 94 Finally, the applicant contended that the Commonwealth's failure to comply with its statutory duty under s 198(6) was not excused by various personnel changes within the Department. 95 In oral address, Ms Yu (who appeared for the applicant) identified the following three periods as relevant to the determination of the separate question: (a) 4 September 2019 to 2 October 2020 (i.e. the maximum period of alleged unlawful detention); (b) 22 October 2019 (when the applicant was referred to the Removals Team) to 2 October 2020; and (c) April 2020 (when Ms Ly said that she considered the applicant's circumstances for the purpose of progressing his removal) to 2 October 2020. 96 The applicant submitted that his mental health issues were relevant to an assessment of the weight to be given to the fact that he did not consent to being removed to any country. It was also submitted that Mr Gillard's evidence was of little weight because his evidence was directed to the removal of unlawful non-citizens to countries where the person had a right to enter. Further, the applicant submitted that there was no evidence which indicated that the Commonwealth had taken any steps to ascertain whether New Zealand might be willing to accept him even though he would not be being removed from on-shore immigration detention. 97 As to Mr Knight's evidence concerning discussions with an Iranian Consular official, the applicant submitted that this evidence had no application to his circumstances because the discussions related to the involuntary return of Iranian citizens and he did not have that status.
(b) Applicant's contentions as to why AJL20 is not plainly wrong 98 The applicant contended that all the arguments now advanced by the Commonwealth concerning the correctness of AJL20 were fully considered and properly rejected by Bromberg J. (It is difficult to reconcile this contention with the uncontested claim that s 196(3) was drawn to the primary judge's attention in oral address by both the applicant and the respondent in AJL20, but was not addressed in the reasons for judgment.) 99 Secondly, the applicant contended that the challenge to Bromberg J's reasoning in AJL20 at [31], [34] and [77] was based on the misreading of Plaintiff S4 at [34], which the applicant said supported Bromberg J's reasoning. 100 Thirdly, the applicant submitted that mandamus was not an appropriate remedy to compel compliance with s 198 because there was no realistic possibility that such an order would be complied with in the reasonably foreseeable future. 101 Fourthly, the applicant submitted that s 196(3) had to be read down so as to apply to a case where an unlawful non-citizen is being lawfully detained, citing Al-Kateb at [10] and [113] per Gleeson CJ and Gummow J respectively.
Consideration and determination 102 Having regard to the way Commonwealth presented its case, it is convenient first to deal with the issue whether the Commonwealth has demonstrated that it did in fact take reasonable practicable steps during the relevant period of the applicant's immigration detention to have him removed from Australia in accordance with the obligation imposed by s 198(6), before addressing the issue whether AJL20 should not be followed because it is plainly wrong. The latter issue does not arise if the former issue is determined in the Commonwealth's favour.
(a) Did the Commonwealth take reasonable practicable steps during the relevant period of immigration detention? 103 For the following reasons, I am satisfied on the basis of the evidence adduced by the Commonwealth that it did take reasonable practicable steps during the relevant maximum period of the allegedly unlawful immigration detention here, as well as within the two smaller sub-periods as identified at [94] above. 104 First, based on the evidence of Mr Prescilla and Mr Kumar, I find that during the entirety of maximum alleged unlawful immigration detention period, it was reasonably suspected by a Commonwealth officer that the applicant was an unlawful non-citizen, which engaged the obligation to detain him throughout that period in accordance with s 189 of the Act. 105 Secondly, I find that the purpose for which the applicant was detained during the entirety of the maximum alleged unlawful immigration detention period was for the permissible purpose of him being removed from Australia, as required by s 198(6) of the Act. 106 Thirdly, for the following reasons I find that the Commonwealth has demonstrated that sufficient reasonable practicable steps were taken throughout the entirety of the alleged maximum unlawful immigration detention period to discharge the statutory obligation imposed by s 198(6): (a) The objective assessment of the reasonableness of the Commonwealth's steps or any inactivity during the relevant period must take account of the following important relevant features of the applicant's individual circumstances: (i) The applicant's statelessness and lack of any travel documents created significant practical difficulties for the Commonwealth in finding a country which would accept him, as described by Ms Davis and Mr Knight and, to a lesser extent, Mr Gillard. That is particularly so with Iran and Iraq, as is highlighted in the evidence of Ms Davis and Mr Knight, which is supported by documentary evidence as identified at [48]-[50] above. (ii) Those difficulties were exacerbated by the applicant's consistent refusal throughout the relevant period to give his consent to being removed from Australia to any country, let alone Iran or Iraq. (iii) As to the applicant's capacity to give informed consent to his removal from Australia, a matter which was raised in the present proceeding, I accept the Commonwealth's submission that there is no evidence to indicate that, even if a guardian had been appointed during the alleged period of unlawful immigration detention, this may have produced a different outcome. In particular, it is most improbable that a guardian would have given consent to the applicant's removal to either Iran or Iraq given his status as a Faili Kurd and the relevant findings of the IAA. (iv) It is difficult to be critical of the Commonwealth for not making direct inquiries of countries apart from Iran and Iraq as to whether they would accept the applicant given the applicant's stated position that he would not consent to his removal to any country, and his lack of travel documents. The evidence before the Court did not indicate that any country would be willing to accept a person with these characteristics, not to mention his previous criminal record and conduct which underpinned the Minister's latest decision to refuse him a Protection Visa. (v) I accept Mr Knight's evidence of meetings he had on 30 October 2019 and 14 February 2020 with the Iranian Consul regarding involuntary removals to Iran. These discussions related to the possibility of returning six Iranian nationals who were in the off-shore detainee network and who were involuntary returns, but not the applicant himself, as Mr Knight candidly acknowledged. I accept this evidence. I also accept that, at least in Mr Knight's own mind, those discussions were intended by him to hopefully obtain Iranian approval in relation to a smaller group of involuntary removals as a step towards Mr Knight then working to change the Iranian policy on involuntary removals more broadly. There is no reason to think that Mr Knight's intentions were limited to the return of Iranian citizens. (vi) It is true that there were some intervals during the relevant period when there was no direct activity to remove the applicant from Australia, but that fact alone is not determinative. The relevant question is whether such periods of inactivity were unreasonable in the applicant's particular circumstances. For the following reasons, I consider that they were not unreasonable. For example, there was a period of approximately two weeks prior to Mr Kumar referring the applicant to the Removals Team on 22 October 2019 when no active steps were evidently taken to remove the applicant, notwithstanding the expiration of the period within which the applicant could have commenced judicial review proceedings in relation to the Minister's decision dated 4 September 2019. It is evident from the notes of the first case review conducted by Mr Kumar on 16 September 2019 (i.e. shortly after Mr Kumar had taken over as the applicant's DSRO) that it was considered that the time period for commencing judicial review proceedings had not yet expired. Moreover, it was noted that the applicant was unwilling voluntarily to return to Iran. Mr Kumar conducted his second case review of the applicant on 28 October 2019 (i.e. six days after he had referred the applicant to the Removals Team). The notes of that case review record that, as at 3 October 2019, "s 195a + s 197ab referrals remain ongoing (adv from CCRS/SRSS)". Similarly, although there was a regrettable failure to conduct two-monthly reviews of the applicant's case in January, March and May 2020 as part of procedure described by Ms Dee for the "protracted caseload", I consider that Ms Dee adequately explained that failure (see [43] above). It is evident that other steps were taken during this period, notwithstanding the failure to conduct two-monthly reviews, including generic steps described above concerning the position regarding involuntary removals to Iran which, even if not directed to the applicant personally, had potential implications for him depending on their outcome. (b) As described by Ms Masri, Ms Ly and Ms Dee, shortly after 22 October 2019 when the applicant was referred by Mr Kumar to the Removals Team, his case was assessed as one which should be included in the "protracted caseload", which comprised removal cases with particular complexity and to whom there was a dedicated team of people. This was an appropriate management step, which was intended to have complicated and challenging cases, such as the applicant's, dealt with by a separate team. Because of the complexities and complications relating to cases in the protracted caseload cohort, it is reasonable to expect that progress of such cases will often be more challenging and time-consuming compared with more straightforward cases. (c) As indicated above, I accept Ms Dee's unchallenged reasons why she believed that there was a failure to conduct two-monthly reviews of the applicant in January, March and May 2020. Those omissions should not have occurred and if they had been accompanied by other relevant incidents, I may have taken a different view of this regrettable failure. As emphasised above, however, a broad view needs to be taken in assessing the reasonableness of the Commonwealth's conduct. (d) Since at least mid-March 2020, there were very real practical difficulties presented by the COVID-19 pandemic in arranging for the applicant to be removed from Australia to any other country. These difficulties were described by Ms Davis, Ms Dee and Mr Wright, whose evidence I accept. In particular, I accept Ms Dee's evidence that, even if it had been possible to remove the applicant to some other country during the relevant period, this could only have been done if he had a security escort because of his criminal record and the requirements of the Aviation Transport Security Regulations 2005 (Cth). These claims were not contested by the applicant in the present proceeding. I accept Ms Davis's evidence that from mid-March 2020 all escorted removals were cancelled and that since that time no Serco escort has been used on a commercial flight. Ms Davis deposed that, as at mid-December 2020, escorted removals using Serco security guards had recommenced, but only on chartered flights. Ms Davis added that she had arranged a number of charter flights to remove unlawful non-citizens from Australia to countries such as New Zealand, the United Kingdom, Vietnam and Italy. This does not assist the applicant's case in circumstances where the recommencement of removals on some chartered flights is outside the relevant alleged unlawful immigration period. In addition, the applicant steadfastly refused his consent to be taken to any country during that period and lacked any travel documents. (e) As to the applicant's complaint that the process of assessing his identity could have commenced earlier than 4 September 2020, even if this complaint be accepted, it is difficult to see that it would have had any material bearing on the applicant's case given his lack of travel documents and his steadfast refusal to be removed to either Iran or Iraq or, indeed, to any other country. 107 For all these reasons, and having regard to the evidence adduced by the Commonwealth, most of which was not challenged by the applicant, I accept the Commonwealth's claim that it took reasonable practicable steps throughout the entirety of the relevant period to have the applicant removed from Australia. 108 That conclusion should not obscure the dilemmas created by s 198(6) and the related statutory provisions regarding mandatory immigration detention and removal from Australia. The applicant's case vividly illustrates the quandary created for Commonwealth officers who, on the one hand, are statutorily obliged to remove a person such as the applicant as soon as is reasonably practicable, yet the practical reality is that such removal is effectively impossible in the foreseeable future because of matters which are beyond the Commonwealth's control (as is the case in the present proceeding during the relevant alleged period of unlawful immigration detention). As Hayne J observed in Al-Kateb at [231], even in a case where there is no real likelihood or prospect of an unlawful non-citizen being removed in the reasonably foreseeable future, this does not mean that continued detention is not for the purpose of subsequent removal. The majority view in that case was that the obligation under s 198(6) should not be read as being subject to a narrower limitation than its words permit. Rather, the time for removal is fixed by reference to reasonable practicability and not some narrower limitation such as, for example, "within a reasonable time".
(b) Whether AJL20 is plainly wrong 109 Having regard to the findings of fact and my conclusion that the Commonwealth has demonstrated that it took reasonable practicable steps with a view to removing the applicant from Australia with reference to each of the three periods identified by the applicant, it is unnecessary to determine whether or not I consider any aspect of Bromberg J's central reasoning in AJL20 to be plainly wrong.
Conclusion 110 For these reasons the separate question is answered "yes" in respect of all of the period from 4 September 2019 to 2 October 2020 (including the sub-periods identified by Ms Yu). This would appear to produce the necessary consequence that the originating application filed on 29 May 2020 should be dismissed. I will make an order to that effect but also provide the parties with an opportunity to have the matter relisted if they consider that this order is inappropriate. 111 There is no evident reason why costs should not follow the event. I will make an order as to costs of both the substantive proceeding and the separate question. Again, however, either parties will have liberty to have the matter relisted if they wish to contest the order as to costs of the substantive proceeding. I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Griffiths.
Arthur as litigation representative for CYG20
Commonwealth of Australia
GRIFFITHS J: 1 This proceeding is one of a series of recent cases in which persons who have or are being held in immigration detention claim that part or all of the period of their detention is unlawful. Many of those cases rely upon AJL20 v Commonwealth of Australia [2020] FCA 1305. The High Court will hear an appeal from that decision on 13 April 2021. Part of the Commonwealth's response in the current proceeding is that Bromberg J's decision in AJL20 is plainly wrong and should not be followed. 2 In the present proceeding, the Court is asked to hear and determine separately from any other questions the following question: Have ss 189 and 196 of the Migration Act 1958 (Cth) authorised the detention of the applicant since 4 September 2019, and if "yes" as to part only of that period then as to which part or parts? 3 For reasons which will be explained shortly, for the purpose of the separate question the parties agree that the maximum relevant period of immigration detention in respect of the applicant's claim of unlawful detention is the period from 4 September 2019 to 2 October 2020.
AJL20 summarised 18 AJL20 involved two proceedings brought by the applicant. The applicant complained in both proceedings that he had been unlawfully detained. He sought damages for false imprisonment in one proceeding and an order seeking his release from detention in the other. His claim of unlawful detention was for the period commencing on 26 July 2019 up until the date of Bromberg J's judgment (11 September 2020). The applicant is a citizen of Syria. His mother immigrated to Australia in around 1996. In around May 2005, the applicant was granted a Child (Class AH) (Subclass 101) visa and arrived in Australia. His visa was cancelled on 2 October 2014 under s 501(2) of the Act. He was taken into immigration detention on 8 October 2014 and remained there from that time. 19 Justice Bromberg's reasons for judgment contain a detailed analysis of relevant case law, including Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476; Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322; Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219; ASP15 v Commonwealth [2016] FCAFC 145; 248 FCR 372 and Plaintiff M96A/2016 v Commonwealth [2017] HCA 16; 261 CLR 582. 20 Justice Bromberg explained at [38] ff why he rejected the Commonwealth's contention that although s 198 imposed a statutory obligation to bring about removal as soon as reasonably practicable, that requirement was not reflective of any constitutional limitation, as well as the Commonwealth's alternative contention that there was no temporal restraint referrable to the purpose of the detention imposed by Ch III of the Constitution on laws providing for administrative detention. His Honour held that ss 196 and 198 "must be read together", with the consequence that "the latter imposed a condition on the operation of the former" (see at [48]). His Honour explained why he did not accept the Commonwealth's claim that the Act authorises the continued detention of a person until the event of removal is effected, irrespective of whether the purpose of removal is in fact being pursued (see at [75]). 21 Justice Bromberg held that the proper construction of ss 189, 196 and 198 of the Act was such that upon engagement of the duty imposed by s 198(6) for an officer to remove an unlawful non-citizen as soon as reasonably practicable, the relevant person's continued detention could only be lawful if it was for one of the following purposes: (a) removing the person from Australia; (b) receiving, investigating and determining an application for a visa by the person to enter and remain in Australia; (c) determining whether to permit the person to make a valid application for a visa; or (d) determining whether to grant the person a visa without an application by him or her. 22 Other relevant findings by Bromberg J include: (a) The detention must be for a permissible purpose and departure from the purpose of detention is "the marker of unlawfulness" (at [78]). (b) The purpose of, or for, the detention "is assessed objectively by reference to all the circumstances" and the motives or intentions of relevant public officers are not relevant (at [79], citing M96A at [22] per Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ). (c) Following Plaintiff S4, the relevant inquiry for determining whether there has been a departure from the permissible purpose of the applicant's detention is whether the removal of the applicant from Australia has been "undertaken" or has been "carried into effect" as soon as reasonably practicable, which requires an objective assessment to be made of all relevant circumstances, including the steps in pursuance of removal which have been taken as well as those steps which were reasonably practicable but were not taken. His Honour observed that "[P]erfection is not required, but whether reasonably practical steps to pursue removal were or were not taken will be relevant" (at [89]). (d) In making that assessment it is necessary to bear in mind that removal from Australia is not country-specific, with a consequence that in assessing whether there is an active pursuit of removal, the scope of that pursuit is not confined to the country of destination that the officer effectuating the removal under s 198(6) may have chosen (at [90]). (e) The Commonwealth bears the onus of proof as to whether the applicant's detention is lawful (at [91]). 23 Significantly, Bromberg J acknowledged that a broad view had to be taken of matters relating to: (a) the reasonableness of the Commonwealth's steps; (b) the failure to take any steps when reasonable; and (c) whether practicable steps for effectuating a detainee's removal from Australia were available (at [127] and [170]). 24 Consistently with that approach, in an important passage upon which the Commonwealth placed heavy reliance in the present proceeding, Bromberg J said at [116]: The absence of any or sufficient steps being taken to progress removal over a period of detention will not necessarily demonstrate that removal of the detainee from Australia was not undertaken or carried into effect as soon as reasonably practicable. As Hayne J noted in Al‑Kateb at [226]-[228] the removal of a non‑citizen from Australia will ordinarily require the cooperation of other countries to effectuate that removal. There may be delays or obstacles to the timely removal of a detainee caused by circumstances beyond the control of Australia which bring about inaction or cause the absence of active steps to progress removal. There may be other justifications for inaction or delayed action which will serve to deny the conclusion that the removal of the non-citizen was not undertaken or carried into effect as soon as reasonably practicable.
(b) The Commonwealth's claim that AJL20 is plainly wrong 74 As noted above, the Commonwealth contended, in the alternative, that AJL20 is plainly wrong and should not be followed. This alternative argument is based on the following propositions. 75 First, his Honour erred in finding that there was a "departure from the requisite removal purpose" solely because there was non-compliance with the duty in s 198 of the Act. Bromberg J's reasoning misreads Plaintiff S4 at [34]. The High Court was there making an observation based on the facts and issues in the case before it, in terms directed to a finding that it was not open to the Minister, at his discretion, to delay processes that would lead to one of the events in s 196. The High Court was not suggesting that a failure to discharge the duty to remove as soon as reasonably practicable results in there being no lawful purpose for detention. That was not in issue in the case, and was not the subject of any argument or finding. 76 Secondly, the purpose of detention under the Act is not determined by the Executive but rather specified by the Parliament and given effect through the intersecting duties in ss 189, 196 and 198. A failure by an officer to comply with a statutory duty imposed by the Parliament with respect to an unlawful non-citizen is incapable of overriding or altering the purpose of detention specified by the Parliament. If there has been a departure from those statutory purposes, performance of them may be required. By way of analogy, in Wotton v Queensland [2012] HCA 2; 246 CLR 1 at [22]-[23], a majority of the High Court accepted that where a statute complies with a constitutional limitation (in that case, the freedom of political communication), then a complaint respecting the exercise of power thereunder raises only a question of the exercise of statutory power to be corrected by way of judicial review. It did not (and does not here) operate to deny the legislation's operation according to its terms. 77 Thirdly, Bromberg J relied upon what he described as the "seminal holding" in Lim, namely, that provisions of the Act which then authorised mandatory detention were valid if "the detention which those laws required and authorised was limited to what was reasonably capable of being seen as necessary for the purposes of deportation or to enable an application or permission to enter and remain in Australia to be made in considered" (as summarised in Plaintiff S4 at [26]). 78 On its own terms, however, it submitted that this "seminal holding" does not require the conclusion that ongoing detention becomes "unlawful" and entitles a detainee either to be released into the community or seek damages for false imprisonment. Rather, detention of an unlawful non-citizen is constitutionally permissible, and required by the terms of the Act, for as long as it takes to consider the grant to the person of permission to remain in Australia, and if permission is not granted, to remove the person. The Act does not infringe the relevant constitutional limit because removal must be pursued as soon as reasonably practicable, and the end-point of detention therefore cannot be delayed at the discretion of the Executive. Discharge of the duty to remove (which, relevantly to this case, brings to an end the period of detention) can be enforced by mandamus; and detention is necessary for that purpose until removal is affected. The Commonwealth submitted that the point can be seen in this way: Bromberg J said that the Commonwealth could not re-detain AJL20 upon his release. Without being able to detain him, it is not at all apparent how his removal is now to be effected (unless he were to voluntarily submit to removal). 79 Fourthly, Bromberg J's reliance on various observations in Plaintiff M76, Plaintiff S4 and Plaintiff M96A is misplaced. The Commonwealth accepted that both ss 189 and 196 are constrained by the limitations imposed by Ch III, and must be read with s 198. However, it submitted that it does not follow that detention is not authorised. Rather, the importance placed on s 198 by the Court in Plaintiff S4 (at [23]) in ensuring constitutional validity tends to suggest that if there has been non-compliance with s 198 then the appropriate course is to enforce compliance. Until there has been compliance, the task to which detention was incidental has not been discharged, and the Act itself supplies the end-point of detention by requiring the task to be performed. 80 Fifthly, contrary to the reasons of Bromberg J, the judgment of Hayne J in Al-Kateb in terms recognised that an unlawful non-citizen was required to be detained until an event in s 196(1) occurred: "the detention of a non-citizen is to end only upon that person's removal or deportation from Australia or upon the person obtaining a visa" (at [210]). 81 Sixthly, the Commonwealth submitted that one matter which indicated that Bromberg J's decision in AJL20 was plainly wrong, is the fact that Bromberg J ordered the release of AJL20 forthwith notwithstanding the terms of s 196(3) of the Act, to which his Honour made no reference even though it was drawn to his attention in oral address. While the applicant here does not seek immediate release, the lawfulness or otherwise of his detention must be coextensive with his ability to obtain release by Court order. 82 Section 196(3) expressly prohibits the release of the applicant into the community. The Commonwealth submitted that the only way that a Court can order that a person be released into the community in the face of s 196(3) is if that provision is invalid or if it is read down. The Commonwealth acknowledged that in Al-Kateb Gleeson CJ and Gummow J proposed reading down the provision so that it only applied to "lawful detention". But it submitted that these views did not command majority support, and are inconsistent with McHugh J in the majority in Al-Kateb at [35], and the views of Crennan J in Plaintiff M168/10 v Commonwealth [2011] HCA 25; 85 ALJR 790 at [35], Keane J in Kanhalingam v Minister for Home Affairs [2020] HCATrans 122 and Edelman J in Kazemi v Minister for Home Affairs [2020] HCATrans 124. 83 Moreover, the Commonwealth contended that Gummow J's dictum in Al-Kateb overlooked that s 196(3) is unlike the provision read down or held invalid in Lim (s 54R). Section 54R provided that "[a] court is not to order the release from custody of a designated person" in a context where s 54L treated removal as a species of release (such that s 54R in terms prohibited removal), and where it was clearly possible for circumstances to arise where a "designated person" was entitled not to be detained. Section 196(3) does not do that. It explicitly contemplates that a court might order "release" for the purpose of s 196(1), being removal. And meanwhile, every "unlawful non-citizen" (as defined in s 13) is required by the terms of ss 189 and 196 to be and remain detained. Subsection 196(3) therefore does not require reading down. 84 The Commonwealth submitted that the doubts expressed by Gleeson CJ and Gummow J in Al-Kateb (noting also that Mortimer J cited Gleeson CJ in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 385 ALR 405 at [219]-[220]) arose in circumstances which are distinguishable from the present case. Gleeson CJ and Gummow J did not consider that s 196(3) prevented release in circumstances where achievement of removal under s 198 was not reasonably practicable in the foreseeable future. Justice Mortimer was considering a case where it had not been shown to the requisite standard that an officer believed the person not to be an Australian Aboriginal, such that her Honour effectively held that s 196(3) did not prevent release of a person who was not shown to be an unlawful non-citizen. That is in keeping with s 196(2), which makes it clear that s 196(1) is not intended to cause a citizen or lawful non-citizen to be kept in detention. 85 The Commonwealth submitted that if there be unreasonable delay in complying with the obligation in s 198, it should be remedied by an order in the nature of mandamus compelling compliance with s 198, not a finding that the detention was unlawful. The Commonwealth adopted what the Full Court said in ASP15 at [42] in the context of a failure to determine a visa application as soon as reasonably practicable: … In the case of detention pending a visa decision, failure to do so within the required time renders the Minister liable to the issue of a writ of mandamus to compel him or her to perform their statutory duty. However it does not render invalid the provision which authorises detention in the first place. So long as the Migration Act validly continues to authorise detention, there can be no claim for false imprisonment or habeas corpus.
[2020] HCATrans 122
[2020] HCATrans 124