ASE24 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Background 6 The applicant is a citizen of Thailand who was detained in Australia whilst attempting to travel from Nadi, Fiji to Doha, Qatar via a stopover at Melbourne Airport on 16 May 2023. It does not appear to be in dispute that the intention of the applicant had been to transfer at Melbourne to a flight to Doha, Qatar, however Qatar Airways refused to allow her to board her Qatar Airways flight as she did not possess health insurance, and did not have accommodation booked in Qatar. (Although this point was not taken at the hearing, I understand that at that time and for those reasons the airline was entitled to refuse to allow the applicant to board the aircraft.) 7 The applicant was interviewed by a delegate of the Department of Home Affairs (the Department) at Melbourne Airport at 10.58pm on 16 May 2023, as she was seeking to leave immigration clearance without holding a visa for entry to Australia. 8 At 1.42am on 17 May 2023 the applicant was notified that she had been refused immigration clearance under sub-paragraph 172(1)(a)(ii) of the Migration Act 1958 (Cth) (Migration Act), by reason of being unable to present to a clearance officer with evidence of a visa that was in effect and held by the applicant, as required under paragraph 166(1)(a) of the Act. The applicant was also detained under s 198 of the Act, and told that she would be removed from Australia as soon as reasonably practicable. 9 The applicant was subsequently transferred to immigration detention in Melbourne. 10 Arrangements were made to remove the applicant to Thailand, but those arrangements were aborted after the applicant retained immigration lawyers to lodge an application for a protection visa, in the form of a Safe Haven Enterprise Visa (SHEV), on 23 May 2023. 11 The applicant's protection visa application was not granted. The applicant sought review of the decision to refuse her a SHEV in the Administrative Appeals Tribunal (Tribunal). 12 On 16 November 2023 the Tribunal affirmed the decision to refuse the applicant the SHEV. It is common ground that on 22 December 2023 the applicant's lawyers informed the Department that the applicant would not seek judicial review of the decision of the Tribunal. This position was reiterated by the McKenzie friend during the hearing before me. 13 By letter dated 13 December 2023 to the Qatar Embassy in Canberra, the applicant sought a visa to enter Qatar. In her letter the applicant wrote, inter alia: …I respectfully write to request a visa which would allow me to enter the State of Qatar for the purpose of seeking legal assistance from a Qatar Law Firm to apply for a Court supervised dispute resolution process in the Qatar International Court and Dispute Resolution Centre, Doha. 14 In summary I understand the applicant sought the supervision of the Qatar International Court and Dispute Resolution Centre (QICDRC) in respect of her claims of fraudulent property deprivation in Thailand. On 22 December 2023 the applicant was issued with an electronic 30-day tourist visa allowing her entry to Qatar. 15 On 29 December 2023 the applicant received an email from an Acting Inspector Removals in Australian Border Force as follows: Good afternoon Ms. [redacted] As discussed on 28/12/2023, we have sought information from the State of Qatar about your proposed entry into Qatar upon being removed from Australia on a Tourist visa. No information has been received from the Qatar Government approving your movement into Doha as of 29/12/2023 and as such your departure on 30/12/2023 will not occur. As per your Ms Matilda Gee's email below "The returns framework supports non-citizens who choose to return to their country of origin or to a country where they have the right of entry and long-term stay, but require assistance to do so." A 30 day Tourist visa for Qatar does not constitute a right of residency or long term stay. Accordingly, it is essential for the Department to inform the Qatari authorities of your circumstances and seek their response, in order to confirm whether your proposed removal to Qatar under s.198 of the Migration Act 1958 (the Act) is reasonably practicable. I note the below claims: [the applicant] has a genuine concern for her safety and wellbeing if she were to return to Thailand, to the extent that she fears persecution and physical harm would be imminent upon her arrival to Thailand. Your claims have been assessed under the Protection visa application process. A delegate found that there were no protection obligations owed in respect to Thailand and this finding was affirmed by the Administrative Appeals Tribunal (the Tribunal) on 16 November 2023. The Tribunal found that it was "not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia to Thailand, there is a real risk the applicant will suffer significant harm as defined in the Act." You continue to be liable for removal to your country of citizenship, Thailand, under s 198 of the Act. You will be notified in due course when arrangements are in place to effect your removal to Thailand. Please refrain from booking any further flights unless you have been advised by the Department of a possible departure date for Thailand. Kind Regards (official notice of the decision-making officer dated 29 December 2023) 16 On 29 December 2023 Ms Rebecca Hedges, a Supervisor of the Consular Engagement and Liaison Team of Australian Border Force, emailed Consular Services at the Qatar Embassy concerning the applicant. Attached to that email were numerous documents, including a visa issued on 22 December 2023 for the applicant to enter Qatar for 30 days (Visa TH663…..42). The email was in the following terms: Good morning Consular Services, Thank you for confirming the requirement for Thai national, Ms [redacted], to obtain a visa prior to arrival into Qatar. Ms [redacted] has obtained a 30 day tourist visa for entry prior to 21/03/2024 (please find attached). Ms [redacted] has a flight booking to depart Doha on 26 January 2024 for Bangkok, however would like to seek legal assistance in Qatar. A letter from Ms [redacted] outlining the details was sent to your office earlier this month, please find attached. Ms [redacted] has also booked hotel accommodation at the Green Garden Hotel, although the check in date will need to be amended. Could you please confirm if Ms [redacted] will be allowed to be removed from Australia to Qatar with this tourist visa, given it is only valid for 30 days? Ms [redacted] faces a possible 3 year exclusion from Australia due to her method of arrival. Appreciate if you can advise urgently whether Ms [redacted's] removal to Qatar will be accepted by Qatari authorities so that travel arrangements can be made to depart Australia. Kind regards 17 On 31 January 2024 a person in the Qatar Embassy in Canberra emailed the Consular Engagement and Liaison Team of Australian Border Force, with the subject heading "FW : Enquiry re entry requirements for Qatar [SEC=OFFICIAL]". The email referred to the applicant and was as follows : Good Afternoon Rebecca Thank you for contact us regards of Ms [redacted] We are still waiting to hear frorn the Ministry of the State of Qatar, when we have any response I'll contact you Thank you again for your Patience 18 The email referred to the same attachments as had been annexed to Ms Rebecca Hedges' email of 29 December 2023, including Visa TH663……42. 19 On 5 February 2024 a person in the Qatar Embassy in Canberra again emailed the Consular Engagement and Liaison Team of Australian Border Force, with the subject heading "FW : Enquiry re entry requirements for Qatar [SEC=OFFICIAL]". The email again referred to the applicant, and was as follows: Good Afternoon Rebecca We received letter from the Ministry regards your question about Ms [redacted] The entry permit issued by Hayya has cancelled and she isn't allowed to enter Qatar Thanks & regards 20 On 14 February 2024 the applicant received from Australian Border Force a "Notice of Intention to Remove from Australia", indicating that she was scheduled to be removed from Australia to Thailand on or after 29 February 2024 pursuant to s 198 of the Migration Act.

Submissions of the Applicant 21 The applicant made both written and oral submissions. The applicant sought to rely on s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and s 5(1)(b) and (h) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). 22 The applicant sought to rely on Plaintiff M70/2011 V Minister for Immigration and Citizenship [2011] HCA 32 for the proposition that "the removal power under s 198 was to be read in light of, and subject to the obligations of the Refugee Convention". 23 The applicant further sought to rely on Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 to support the proposition that the interpretation of the removal power under s 198 was also to be read in light of and subject to "the non-refoulement obligations under the ICCPR and CAT" (the ICCPR being the International Covenant on Civil and Political Rights (ICCPR) and CAT being the Convention Against Torture (CAT)). 24 In summary, the applicant submitted that: The decision-making officer of the Australian Border Force (Decision-making Officer) had an obligation to provide reasons for decision pursuant to s 13 of the ADJR Act. The Decision-making Officer had not considered the applicant's well-founded fear of harm if she was returned to Thailand, and that a consideration of a well-founded fear of persecution in the future necessarily involved a determination as to what happened in the past, including whether past harms occurred and whether they had Convention character (SZRCJ v Minister for Immigration and Citizenship [2012] FMCA 605). The applicant faces a real prospect of harm in Thailand in reprisal for, and in order to prevent substantiation of, her allegations of statutory fraud against Thai Government Officers. The applicant submitted that evidence had been provided in the case of an aggregation of past incidents in Thailand which gave rise to the legitimate fear of harm. That the Court order discovery of the essential inquiry to the State of Qatar regarding the applicant's visa there and the applicant's request to be removed there. That there be a stay of the removal order until the completion of proceedings in total. That the Court allow the applicant to be removed voluntarily to the State of Qatar where she intends to pursue important legal matters in the QICDRC. 25 At the hearing the McKenzie friend further submitted, in summary, that: The applicant was subject to significant pressure and threats to her life in Thailand. She was charged with operating a Ponzi scheme, and is liable for 4 years of jail time in Thailand should she return to that country, due to proceedings being issued in reprisal for her accusations of high profile Thai politicians and evidence being excluded at the trial. There was plainly confusion by Australian authorities concerning whether the applicant had a valid visa to enter Qatar. The McKenzie friend tendered Ex 1(A), which was in summary an email dated 4 February 2024 rejecting a tourist visa application made by the applicant. He submitted that it was unclear from another email of 5 February 2024 (from the Qatar embassy to Australian Border Force) exactly which visa application was referred to when that email indicated that the applicant's visa had been cancelled and accordingly she could not enter Qatar. There was no reference to a Hayya visa application portal number in the email of 5 February 2024, or to any reasons for the refusal to allow the applicant to enter Qatar. The evidence before the court was not finally conclusive as to whether the applicant had a valid visa to enter Qatar. The applicant's removal from Australia should be stayed to allow the applicant to make proper enquiries into her visa status with Qatar, and to follow all legal avenues possible for her to obtain a visa for entry to Qatar.

Submissions of the Respondent 26 The respondent provided a detailed summary of the history of the matter from the applicant's arrival in Melbourne on 16 May 2023 until the issue of the notice of intention to remove her on 14 February 2024. The summary included the events surrounding the applicant's detention at Melbourne Airport in May 2023, the applicant's application for a SHEV lodged in May 2023, the review of that decision at the Tribunal, relevant correspondence with the Qatar embassy, and the proposed arrangements for the applicant's removal from Australia. 27 The respondent submitted in summary as follows: The relevant section of the Migration Act is s 198(2). The applicant sought to be voluntarily removed from Australia to Qatar. The process of removal was paused pending the final determination of the applicant's SHEV application which eventually was refused on 16 November 2023. The Department of Home Affairs has a policy that an unlawful non-citizen may be removed from Australia only to a country of citizenship, or a country where the non-citizen has a right of entry and long-term stay. The respondent referred the court to the observations of Wigney J in BHL19 v Commonwealth of Australia (No 2)[2022] FCA 313 at [171]: It could scarcely be acceptable that it would be reasonable for the Commonwealth to remove an unlawful non-citizen to a country, other than their country of nationality or ordinary residence, whether voluntarily or involuntarily, simply on the basis that, in the ordinary course, a traveller might be able to arrive and remain in that country for a period of time, either without a visa, or with a visa obtained on arrival. Upon the final determination of the SHEV application, the respondent liaised with the Qatar authorities to confirm whether the applicant would be allowed to be removed to Qatar, and to ensure that the Qatar authorities were fully informed of the basis for the removal of the applicant from Australia. In late 2023 the applicant was issued with a 30-day tourist visa to enter Qatar, through the Hayya visa application portal of Qatar. The respondent sought to confirm with the Qatar authorities that the applicant could be removed to Qatar on the basis of that visa being issued. The Qatar authorities cancelled the applicant's visa on 5 February 2024, and stated that the applicant would not be allowed to enter Qatar. The decision of the Qatar authorities that the applicant would not be allowed to enter Qatar meant that the applicant could not be voluntarily removed from Australia to Qatar. The decision of the Tribunal affirmed the decision of the delegate that the applicant was not owed protection within the meaning of the Refugee Convention. The Tribunal considered the applicant's claims under s 36(2)(a) and 36(2)(aa) of the Migration Act, which give effect to Australia's obligations under the Refugee Convention, and the ICCPR and CAT respectively. The Tribunal determined that the applicant was not owed protection under either limb. The applicant satisfied the provisions under s 198(2) of the Migration Act, thus the removal obligation was engaged. As there was not a third country to which the applicant could be voluntarily removed, the removals officer was obliged to proceed to remove the applicant to her country of citizenship, namely Thailand. Consequently, the Notice of Intention to Remove was issued on 14 February 2024. The applicant did not identify substantive relief that the stay of her involuntary removal to Thailand would allow her opportunity to pursue and seek to have determined. The application should be dismissed, with costs.

Consideration 28 Given that the relief sought by the applicant in the Applications is, in essence, the same, and no further substantive relief is claimed, I will assess the applicant's claim for relief on the basis that it is the final relief sought. 29 First, Part 2 Division 8 Subdiv A of the Migration Act deals with the Removal of Unlawful Non-citizens from Australia. The key provision in the present circumstances is s 198 which relevantly provides: … Removal of unlawful non-citizens in other circumstances (2) An officer must remove as soon as reasonably practicable an unlawful non-citizen: (a) who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and (b) who has not subsequently been immigration cleared; and (c) who either: (i) has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or (ii) has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined. (emphasis added) 30 Section 197C of the Migration Act further provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen (s 197C (1)), although the removal does not apply if a protection finding has been made in relation to the non-citizen (s 197C (3)). 31 In the present case it is not in dispute that the applicant is an unlawful non-citizen within the meaning of the Migration Act, and is subject to removal pursuant to s 198 of the Migration Act. 32 Second, in the present case no protection finding was made by the Tribunal in respect of the applicant, including in relation to her claimed fear to be removed to Thailand. 33 I note that before the Tribunal the applicant had claimed, in summary: she was sentenced by the Suphran Buri Provincial Court in Thailand on 18 February 2020 (where she was a joint defendant with her company) to a period of 20 years imprisonment for offences of dishonesty. The offending related to grass cultivation in Thailand for export to China; exculpatory evidence was not included in the court file or considered by that court, despite her lodging a document including all her evidence; she had made complaints concerning the trial to the Thailand Office of the Judiciary on 27 January 2020, which has the powers and duties regarding the administrative works of the court system, however the Thailand Office of the Judiciary dismissed her complaint by letter of 10 April 2020, detailing that the court had ordered that the prosecution and the defence documents be kept separate; the applicant appealed against the judgment and sentence of the Suphran Buri Provincial Court to the Court of Appeal. On 25 November 2020 the Court of Appeal amended the judgment of the Suphran Buri Provincial Court, dismissing some charges and resentencing the applicant to imprisonment for 4 years; the Court of Appeal deliberately imposed a sentence of less than 5 years imprisonment to prohibit the applicant from seeking an appeal to the Supreme Court of Thailand; and the criminal case against her and her company, was commenced in retaliation for earlier civil proceedings that she commenced on 18 April 2018 to recover a condominium that the Bangkok Asset Management had purchased on 5 August 2017 at a public auction. This property had been the subject of an acquisition of the preferential mortgage right from TS Asset Management. The applicant sought to revoke the sale of the condominium because the sale was conducted without a warrant of execution by filing a petition in the Central Bankruptcy Court on 9 January 2017 but it was dismissed. The applicant claimed that the transfer of her condominium was done dishonestly. 34 Materially, the Tribunal observed: 47. The Tribunal has considered the applicant's evidence concerning what she claims was a criminal prosecution in response to her making complaints against those responsible for the sale of her condominium, but is not persuaded that the reason the applicant's evidence was excluded or that she was found guilty by the Suphran Buri Provincial Court and sentenced to imprisonment, or that the reason the Court of Appeal determined her appeal in the way that it did was due to an improper purpose. The Tribunal acknowledges that the applicant's husband provided a written statement and told the Tribunal at the hearing about his belief the evidence at the Suphran Buri Provincial Court was excluded for an improper purpose, but apart from both his and the applicant's belief about this, there is no independent evidence to confirm that this is the case. Likewise, the sentence imposed by the Court of Appeal, which resulted in the applicant being resentenced to 4 years imprisonment instead of the 20 years, does not satisfy the Tribunal that the reason it was done was to deprive the applicant of a dika appeal right to the Supreme Court. 48. In the Tribunal's assessment, the applicant and her husband are unhappy with the verdict of the Suphran Buri Provincial Court, as well as the result of the appeal to the Court of Appeal. They genuinely believe that the applicant is not guilty of the offences to which she has been ultimately sentenced. There would be many people sitting in Australian jails who feel the same way, and like the applicant and her husband, labour under a belief that the legal process must have been corrupted because they should not have been found guilty and sentenced to imprisonment. That does not establish the facts that there was corruption in the applicant's criminal justice process. The judgement of the Suphran Buri Provincial Court suggests that the applicant's defence was taken into account by the judge but not accepted. The applicant has been unable to persuade the Tribunal that the argument was not accepted because of irrelevant considerations, or a conspiracy to target or harm the applicant. 49. The Tribunal is not satisfied that because the applicant wrote a letter of complaint to the Office of the Judiciary, or that because she initiated civil action in an attempt to recover her property, that the applicant is being targeted in a sense of being persecuted, or that she has been significantly harmed because of those actions. 50. In the Tribunal's assessment, if the applicant was being deliberately by a criminal case being initiated against her, the Tribunal's assessment is that she would not have been at liberty throughout those proceedings, nor would her appeal to the Court of Appeal been accepted. Although the Tribunal accepts that the applicant's complaints are necessarily against agents of the state, being the Suphran Buri Provincial Court and public servants concerning the loss of her condominium, the Tribunal is not satisfied that this resulted in the applicant having any political profile or that her criminal cases is a 'politically sensitive case' that has resulted on her being less likely to receive a fair trial. 35 The Tribunal concluded as follows: CONCLUSION 67. The Tribunal is satisfied that the applicant will return to Thailand and be required to serve 4 years imprisonment. The Tribunal is not satisfied that the loss of her condominium and resulting civil proceedings or claims was done because she was being 'targeted' by Thai authorities, or that criminal proceedings were initiated against her because she was being 'targeted' because of the complaint or proceedings in connection with the loss of her condominium. 68. The Tribunal is satisfied that the applicant will return to Thailand as a person who is required to serve a term of imprisonment. The Tribunal is not satisfied that the imposition of the imprisonment is 'persecution' and is not satisfied that the imprisonment is significant harm. Refugee 69. For the reasons given above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Thailand based on her race, religion, nationality, membership of a particular social group, or political opinion. 70. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act. Complementary protection 71. For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia to Thailand, there is a real risk the applicant will suffer significant harm as defined in the Act. 72. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act. Member of the same family unit 73. For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act. 74. Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act. 36 As I have already noted, the applicant has specifically stated that she does not seek judicial review of the Tribunal's decision or reasons. It follows that it is not open to this Court to revisit in any way the findings of the Tribunal to which the applicant is subject. 37 Third, a decision to which the ADJR Act applies is defined by s 3 of that Act as: …a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition): (a) under an enactment referred to in paragraph (a), (b), (c), (d) or (e) of the definition of enactment ; or (b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca), (cb) or (f) of the definition of enactment ; other than: (c) a decision by the Governor-General; or (d) a decision included in any of the classes of decisions set out in Schedule 1. Note: Regulations for the purposes of section 19 can declare that decisions that are covered by this definition are not subject to judicial review under this Act. 38 The applicant specifically relied on s 5(1)(b) and s 5(1)(h) of the ADJR Act, which provide: (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds: … (b) that procedures that were required by law to be observed in connection with the making of the decision were not observed; … (h) that there was no evidence or other material to justify the making of the decision; 39 I note that s 5(3) of the ADJR Act qualifies s 5(1)(h) in the following terms: (3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. 40 The precise decision or decisions which the applicant seeks reviewed are not specifically pleaded. However, from the submissions of the applicant before me, it is my understanding that the applicant claims that: an officer of Australian Border Force made a decision, set out in the official notice of the decision-making officer dated 29 December 2023, that the removal of the applicant to Qatar on 30 December 2023 was not reasonably practicable, a further decision was made by a decision-maker in Australian Border Force to issue the applicant a Notice of Intention to Remove from Australia dated 14 February 2024, whereby the applicant was informed she would be removed from Australia to Thailand on or after 29 February 2024, those decisions were not provided with adequate reasons for the purposes of the ADJR Act, and the applicant wishes to be provided with all substantive evidence on which those decisions were based. 41 A case of relevance in this context is the decision of Judge Mansini in the Federal Circuit and Family Court of Australia in BBY21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 31. I note that the applicant in BBY21 initially appealed the judgment of Judge Mansini, however it appears that the appeal was not pursued: BBY21 v Minister for Immigration and Citizenship and Multicultural Affairs [2023] FCA 1567. 42 In BBY21 a citizen of Singapore who came to Australia on a Visitor subclass 976 visa was convicted of drug-related crimes, and was subsequently detained as an unlawful non-citizen. He was later refused a protection visa. The decision to refuse a protection visa was the subject of unsuccessful applications and appeals. Before her Honour the applicant claimed that the Commonwealth had breached its statutory duty to remove him from Australia as soon as reasonably practicable, to Kenya. The applicant was not a resident or citizen of Kenya. As the primary Judge observed, the Commonwealth refused to facilitate the applicant's removal to Kenya for reasons which included departmental policy to remove only for "long-term stays" and information that the Republic of Kenya considered the applicant a prohibited immigrant. The applicant sought various forms of relief directed at compelling the applicant's removal from Australia to Kenya, and declaring the policy invalid. 43 Judge Mansini found that the Court was not empowered to make an order for mandamus in the form sought, and in any event, neither the Commonwealth nor its officers had failed to discharge their statutory duty to remove the applicant from Australia as soon as reasonably practicable. Her Honour at [33] referred to a policy of the Department concerning removal of detainees from Australia, which specifically provided that a person may be removed only to a country of citizenship or a country where they have the right of entry and long term stay. 44 Judge Mansini referred to evidence before that Court concerning the Departmental policies and voluntary removal from Australia. There is no similar evidence before me. However I note that at [95] her Honour said: 95. There is vast support in the authorities for the proposition that whether removal is reasonably practicable in a particular case will depend upon whether there is another country that will facilitate entry. The authorities acknowledge the limited ability of Australia to influence receipt by another country and that cooperation of both the detainee and third country will be necessary before the removal can occur: for example, Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17 at 36, 41, 49; SZSZM v Secretary, Department of Immigration and Border Protection [2016] FCA 1477, [9]-[10]. In BHL19 (No 2), a case involving a non-citizen who was found to be owed protection and could not be returned to their country of origin or citizenship, Wigney J summarised those authorities at [169]-[171]: The circumstances in some cases may undoubtedly be such that it could not be said to be reasonably practicable to remove an unlawful non-citizen to a country if that country was unwilling to permit the person to enter the country, or unwilling to otherwise cooperate with Australia, in relation to the removal of the person to that country: see NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506; [2003] FCAFC 292 at [48], [53] (Wilcox, Lindgren and Bennett JJ); Al-Kateb at [218], [226] (Hayne J); WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 at [58] (French J); M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; [2003] FCAFC 171 at [65]- [66] and [68] (Goldberg, Weinberg and Kenny JJ); WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 84 ALD 655; [2004] FCA 1332 at [75] (French J); Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465; [2006] FCA 1368 at [36] (Besanko J). It does not follow, however, that it was somehow incumbent on the applicant in this case to identify countries that might be willing to receive him or otherwise cooperate with Australia in relation to his removal. [...] [...] It could scarcely be accepted that it would be reasonable for the Commonwealth to remove an unlawful non-citizen to a country, other than their country of nationality or ordinary residence, whether voluntarily or involuntarily, simply on the basis that, in the ordinary course, a traveller might be able to arrive and remain in that country for a period of time, either without a visa, or with a visa obtained upon arrival. It could not seriously be suggested that it would have been reasonable for the Commonwealth to simply put the applicant on an aeroplane bound for one of those countries on the basis that he could enter the country without a visa, or could apply for a visa at the airport upon arrival. 45 I respectfully note and adopt the comments of Wigney J in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 to which Judge Mansini referred. 46 I also note the Full Court's explanation of the expression "reasonably practicable" for the purposes of s 198 of the Migration Act in M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131. In that case Goldberg, Weinberg and Kenny JJ observed: 65 The use in legislation of the expression "reasonably practicable" is not novel, and the authorities that discuss its use are numerous. In the authorities and in the Shorter Oxford English Dictionary, the word "practicable" has the meaning "capable of being carried out in action; feasible": see, e.g., Uebergang v Australian Wheat Board [1980] HCA 40; (1980) 145 CLR 266 ("Uebergang") at 305 per Stephen and Mason JJ; also Adsett v K & L Steelfounders & Engineers Ltd [1953] 2 All ER 320, at 321 per Singleton LJ; and Lee v Nursery Furnishings Ltd [1945] 1 All ER 387, at 389 per Lord Goddard. Whether or not the removal of an unlawful non-citizen is practicable seems to be largely, if not entirely, concerned with whether the removal is possible from the officer's viewpoint. The word "reasonably" in the expression "reasonably practicable" limits or qualifies what would otherwise be an almost absolute obligation: cf Marshall v Gotham Co Ltd [1954] AC 360 ("Marshall v Gotham"), at 373 per Lord Reid. The removal of a non-citizen may be practicable in the sense that it is feasible, but not "reasonably practicable" as required by s 198(6) of the Act. 66 In the context of s 198(6) of the Act, practicability and reasonableness may, on occasion, operate in opposing senses: cf Uebergang, at 306 per Stephen and Mason JJ. Whether the removal of a non-citizen is "reasonably practicable", as distinct from merely "practicable", may direct attention to a range of considerations, including factors relating to the unlawful non-citizen facing removal, and the interests of third parties who may be directly affected (such as, for example, the interests of third party states). 67 In R v Archdall & Roskruge; ex parte Carrigan & Brown [1928] HCA 18; (1928) 41 CLR 128 ("Archdall"), at 136, Knox CJ, Isaacs, Gavan Duffy and Powers JJ remarked in a joint judgment that "[r]easonableness is relative, and must be proportioned to the circumstances of the case considered as a whole". Whether the removal of an unlawful citizen will be "reasonably practicable" in a particular case will depend upon all the circumstances, considered by reference to the statutory duty in s 198(6)… Section 198(6) of the Act leaves it to the officer on whom the duty to remove would otherwise fall to consider whether removal is reasonably practicable in the circumstances of the case. The officer has to weigh these circumstances in order to decide the issue for himself or herself: cf Archdall, at 140 per Higgins J. 68 As the decision in Al Masri also shows, whether, in a particular case, removal is "reasonably practicable" may depend on whether there is another country that will admit the unlawful non-citizen. If there is no such country, then his or her removal from Australia will not be reasonably practicable. As French J said in WAIS, at [58]: The term `as soon as reasonably practicable' in s 198 is an evaluative term which is to be assessed by reference to all the circumstances of the case. What is reasonable is to be determined, inter alia, by reference to the practical difficulties that may lie in the way of making arrangements for removal which involve the cooperation of other countries whether in respect of the particular applicant or generally in relation to the class of applicants of which he is a part. 69 Doubtless, there will be other factors that, from time to time, will lead an officer to conclude that, at the time removal is contemplated, removal would not be reasonably practicable in the circumstances of the case. If, for example, the only country willing to receive an unlawful non-citizen were suffering from some severe natural disaster or were in a state of utter civil anarchy, the officer may well be entitled to conclude that his or her removal would not be reasonably practicable until the effects of the disaster had dissipated or some degree of order had been restored. (We interpolate here that this was not the situation under consideration in SE: see SE, at 739-740.) The physical condition of a person facing removal may also lead an officer to conclude that his or her removal in that condition would not make the removal reasonably practicable: cf Liang Wei Li, at [7] per Merkel J (with whom Heerey and Conti JJ agreed). 47 The evidence before me is that after the applicant was unable to transit to her flight to Qatar on 16 May 2023 and was detained as an unlawful non-citizen, she sought a SHEV (which was refused both by the delegate and later the Tribunal). After the decision of the Tribunal, the evidence is that there were numerous communications between the applicant and the Qatar Embassy (in which the applicant sought a visa for entry to Qatar), and communications between Australian Border Force, and Consular Services at the embassy, in respect of whether the applicant would be permitted entry into Qatar such that she could be voluntarily removed from Australia to Qatar. 48 The most recent evidence before the Court is the email of 5 February 2024 in which Australian Border Force was informed that the applicant would not be permitted entry into Qatar. 49 At the hearing the McKenzie friend submitted that there was "confusion" in respect of whether the applicant would be permitted entry into Qatar. In particular he relied on Ex 1(A), which appeared to be an email dated 4 February 2024 from the Hayya visa platform to the applicant which relevantly provided: Dear [redacted] We regret to inform you that we are unable to approve your application for a Hayya Visit Tourist Visa (A1) with the reference number HT67…55, at this time. Reason for rejection : For my information about your application, please log in to My Hayya > select Action > Application History. 50 It appears that there were multiple applications by the applicant for visas to enter Qatar, and in fact on 22 December 2023 the applicant was granted a visa to enter Qatar for 30 days (namely the Visa TH663…..42),. However, the evidence before the Court is clear that that visa was cancelled on or about 5 February 2024. 51 As of December 2023 when the applicant was seeking visas to enter Qatar, she was in migration detention in Australia as an unlawful non-citizen. Section 198 of the Migration Act was enlivened to require her removal from Australia as soon as reasonably practicable. The applicant claimed that she had Visa TH663…..42 which would have permitted her removal from Australia to Qatar on 30 December 2023. However, as the official notice of the decision-making officer dated 29 December 2023 explained, a 30 day Tourist visa for Qatar did not constitute a right of residency or long term stay such that Australian Border Force could be satisfied that removal from Australia to Qatar on the basis of that visa was reasonably practicable. The official notice of the decision-making officer dated 29 December 2023 explained that the Department considered it essential to confirm that the applicant would be granted entry into Qatar before she was removed there from Australia. Seeking such confirmation is consistent with reasonable conduct on the part of the Commonwealth, as explained by Wigney J in BHL19 (No 2) at [171]. 52 Given that the only possible basis for removal of the applicant to Qatar in December 2023 was a 30 day tourist visa, I am satisfied that there was evidence before the decision-maker that, unless Australian Border Force received confirmation that the applicant's 30 day tourist visa would permit her removal from Australia to Qatar, it was not reasonably practicable for her to be so removed on 30 December 2023. The reasons provided by the decision-maker in the official notice of the decision-making officer dated 29 December 2023 explained this - namely the applicant had a 30 day tourist visa with no right of residency or long term stay in Qatar. 53 The McKenzie friend at the hearing repeatedly submitted that the purpose of the applicant travelling to Qatar was to commence legal proceedings in the QICDRC, and that this was disclosed in the applicant's visa application and communications with the Qatar embassy prior to the issue to the applicant of Visa TH663…..42. It may well be that a visa was originally granted to the applicant to enter Qatar on the basis that she intended to commence litigation there. However it appears that once questions had been put by Australian Border Force to Qatar Consular Services concerning the removal of the applicant to Qatar, the view of the Qatar Consular Services changed, such that the applicant was then denied entry to Qatar. 54 This refusal of Qatar to permit removal of the applicant from Australia to Qatar provided a conclusion to the inquiry by Australian Border Force into the reasonable practicability of removing the applicant to Qatar - in other words it was plainly not reasonably practicable to do so after 5 February 2024. The only reasonably practicable removal of the applicant from Australia was to her country of citizenship, as stated in the Notice of Intention to Remove from Australia. 55 Fourth, to the extent that the applicant has now sought an extension of time to allow for additional steps that she could undertake for the purpose of satisfying a decision-making officer of the Commonwealth that the applicant's removal to Qatar was reasonably practicable, both the email of 5 February 2024, and the email of 4 February 2024 in Ex 1(A), strongly suggest that further time granted to the applicant for that purpose would be of no utility. The requirement by the decision-maker of a response from the Qatar embassy indicating whether the applicant would be permitted to be moved to Doha in Qatar, has now been fulfilled, and a negative response has been given. No explanation has been provided by the applicant as to how further time given to the applicant would result in a different response from the Qatar authorities, given that her visa has been cancelled and she no longer has a right of entry to Qatar. 56 Fifth, to the extent that the applicant seeks a temporary stay on her removal from Australia to Thailand, no arguments of substance have been advanced by the applicant. This temporary stay appears to relate to the Notice of Intention to Remove from Australia dated 14 February 2024 informing the applicant that she was scheduled to be removed from Australia to Thailand on or after 29 February 2024. The McKenzie friend made extensive submissions to the effect that the applicant was fearful of being removed to Thailand because of her claims in court in Thailand concerning alleged fraudulent land deals and appropriations in Thailand, and because she had allegedly offended "powerful people" in Thailand. 57 The McKenzie friend was unable to articulate how lengthy the temporary stay on the applicant's removal would be, other than it being open-ended. When I asked him at the case management hearing on 22 February 2024, the McKenzie friend replied: I'm sorry, your Honour. We would be asking for a stay until the proceedings are completed in total. (transcript p 5 ll 16-17) 58 The order sought by the applicant is in the nature of an injunction, to maintain the status quo whilst the applicant seeks substantive relief: see for example ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363. However the applicant in the present case seeks no other substantive relief for which the status quo could be maintained. She has specifically not sought judicial review of the decision of the Tribunal where the Tribunal rejected her claims of fears of persecution by "powerful people". The only position the applicant seeks maintained is that she remain in Australia while continuing to explore possible avenues for her voluntary removal to Qatar, and potentially to adduce further material - by way of unspecified discovery orders - to endeavour to persuade Australian Border Force to remove her to Qatar. As I have already observed however, additional time to do so would not appear to be of any utility. 59 The applicant made submissions concerning the conduct of judicial proceedings involving her both at first instance and on appeal in Thailand. However, the fact that the applicant has been convicted of crimes in Thailand and sentenced to a term of imprisonment which may be enforced if she were to return to Thailand does not constitute a reason for her to claim any form of persecution within the meaning of the Refugee Convention, the ICCPR or the CAT. Clearly, the fact that a person may be required to spend time in prison as penalty following conviction for an offence will be the result of non-discriminatory enforcement of a law of general application, and does not give rise to persecution under the Refugee Convention because it does not involve systematic and persecutory conduct pursuant to s 91R(l)(c) of the Migration Act. As I have already observed, I am not empowered to revisit the findings of the Tribunal concerning events in Thailand of which the applicant complains, or the applicant's alleged fear of persecution should she be removed to Thailand. 60 Finally, in submissions the applicant has sought an order that the Court "allow her to be removed voluntarily to the State of Qatar where she intends to pursue important legal matters in the Qatar International Court and Dispute Resolution Centre (QICDRC)". The reality, of course, is that this Court can make no such order where, as is plain from the evidence before the Court, the State of Qatar has refused entry to the applicant.

CONCLUSION 61 The appropriate order is to dismiss both Applications. Costs should follow the event. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.