BHL19 v Commonwealth of Australia [2021] FCA 462 | Case summary

the Statutory scheme in relation to detention and removal 14 Subsection 189(1) of the Act provides for the detention of unlawful non-citizens. It is in the following terms: (1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen, the officer must detain the person. 15 An unlawful non-citizen is, in general terms, a non-citizen who does not hold a visa: ss 13 and 14 of the Act. An "officer" is broadly defined in s 5 of the Act. 16 Section 196, which provides for the duration of detention, is in the following terms: (1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until: (a) he or she is removed from Australia under section 198 or 199; or (aa) an officer begins to deal with the non-citizen under subsection 198AD(3); or (b) he or she is deported under section 200; or (c) he or she is granted a visa. (2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen. (3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa. (4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen. (4A) Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful. (5) To avoid doubt, subsection (4) or (4A) applies: (a) whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and (b) whether or not a visa decision relating to the person detained is, or may be, unlawful. (5A) Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply. (6) This section has effect despite any other law. (7) In this section: visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa). 17 Section 198 of the Act provides for the removal from Australia of unlawful non-citizens in certain specified circumstances. One of those circumstances is where a non-citizen who is a detainee has made a valid application for a visa, that application has been refused and the non-citizen has not made a valid application for a visa that can be granted while the applicant is in the migration zone: s 198(6) of the Act. It is common ground that the applicant is such a person. 18 It is also necessary, in the context of s 198, to refer to s 197C of the Act. That section provides that, for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. 19 The effect of the operation of these provisions has been considered in many decisions of this Court and the High Court. The main cases in the High Court are: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37; Plaintiff M76/2013 v Minster for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53; Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 34; and Plaintiff M96A/2016 v Commonwealth (2017) 261 CLR 582; [2017] HCA 16. 20 Time does not permit any detailed discussion of the principles that may be derived from those cases. It suffices for present purposes to note that the relevant principles were considered at length by Bromberg J in AJL20. As noted earlier, the applicant's case largely depends on the correctness of Bromberg J's construction of the relevant provisions in the Act based on his analysis of the authorities. The Commonwealth contends that the judgment in AJL20 is plainly wrong. That issue is addressed later. ISSUE ONE - POWER 21 The Commonwealth contends that the grant of the interlocutory relief sought by the applicant is beyond the Court's power and precluded by the operation of s 196(3) and (6) of the Act. It submits that the combined operation of those provisions effectively ousts or abrogates the power that the Court would otherwise have to grant the interlocutory relief sought by the applicant pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act). That submission is said to be supported by authority, including: CMA19 v Minister for Home Affairs [2020] FCA 736 at [239]; Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1104 at [8]; P1/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1029 at [30]; Ongel v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 239 at [2]; Applicant in WAD 230/2014 v Minister for Immigration and Border Protection [2014] FCA 1351 at [12]-[15]; CZCV v Commonwealth [2020] FCA 1864 at [18]; Durani v Minister for Immigration and Border Protection (2013) 223 FCR 391; [2013] FCA 1264 at [38]. 22 It may be accepted that s 196(3) to (7) of the Act operate to deny the Court power to order the release of an unlawful non-citizen from immigration detention in certain circumstances. In particular, it is clear that the Court has no power to grant interlocutory relief which includes an order for the release of an unlawful non-citizen in the context of an application for judicial review of a decision to cancel that person's visa pursuant to s 501(1) of the Act and cognate provisions. That is clear enough from the terms of s 196(4) of the Act. All but one of the cases relied on by the Commonwealth involve interlocutory relief which was sought in that context. The one exception is CMA19. That case will be addressed later. 23 The interlocutory relief sought in this matter, however, is not sought in the context of the judicial review of a relevant cancellation decision. Indeed, it is not sought in the context of the judicial review of any decision. It is, rather, sought in the context of an application for relief in the nature of a writ of habeas corpus. It follows that the interlocutory relief sought by the applicant does not fall within, and is not precluded by, s 196(4) of the Act. So much so is conceded by the Commonwealth. The Commonwealth also concedes that, but for the operation of s 196(3) and (6) of the Act, the Court would have the power to grant the interlocutory relief sought by the applicant by virtue of s 23 of the FCA Act. 24 The question, then, is whether the combined effect of s 196(3) and (6) of the Act, properly construed, is to oust or abrogate that power. In my view those provisions do not have that effect. 25 In Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249; [2002] FCAFC 390 (at [104]-[120]), the Full Court held that s 196(3) of the Act did not abrogate the power under s 23 of the FCA Act to grant interlocutory relief which had the effect of ordering the release of persons who were unlawful non-citizens: see also Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 13, 14 and 51. 26 Following the decision in VFAD, s 196(4) to (7) were inserted into the Act: Migration Amendment (Duration of Detention) Act 2003 (Cth) (2003 Amendment). In Burgess v Commonwealth (2020) 276 FCR 548; [2020] FCA 670, Besanko J (at [98]-[115]) considered the legislative history and extrinsic material relevant to the 2003 Amendment. Two significant points emerge from his Honour's analysis. 27 First, the Migration Amendment (Duration of Detention) Bill 2003 (Cth) initially included a version of the proposed s 196(4) of the Act which applied to all detainees, not just those who had had their visa cancelled: see Burgess at [109]. It would appear from the extrinsic material that, as initially proposed, s 196(4) precluded the Court from ordering the release of an unlawful non-citizen prior to a final determination that the detention was unlawful, or that the person was not an unlawful non-citizen, in any circumstance, not just in the context of an application for judicial review of a cancellation decision. The Bill, however, was subsequently amended so that the proposed s 196(4) applied only to prevent an order for the interlocutory release of unlawful non-citizens who were being detained as a result of a relevant cancellation decision. 28 Second, it is clear that the 'mischief' to which the amendment which introduced s 196(4) to (7) of the Act was directed was the grant of interlocutory relief in the context of judicial review applications - in particular, applications for the judicial review of cancellation decisions: see the portion of the Explanatory Memorandum extracted in Burgess at [113]. There was nothing to suggest that the relevant mischief was the grant of interlocutory relief in the context of a claim by the detainee that he or she was being unlawfully detained otherwise than in the context of a judicial review application: see Burgess at [108], [114]. 29 It follows that the legislative history and extrinsic material suggests that the legislative intention was to prevent the grant of interlocutory relief involving detention only in specific and narrowly defined circumstances: where the application for interlocutory relief was made in the context of a judicial review application and specifically a judicial review application in respect of a visa cancellation decision. The legislative history and extrinsic material does not support a construction of s 196(4) to (7) as precluding interlocutory orders for the release of unlawful non-citizens in any other circumstance. 30 As has already been noted, the Commonwealth concedes that the applicant's case does not fall within s 196(4) of the Act. Subsections 196(4A), (5) and (5A) are also not relevant to the applicant's case. It is no doubt for that reason that the Commonwealth relies solely on s 196(3) and (6) of the Act. The difficulty for the Commonwealth, however, is that s 196(3) was largely unaffected by the 2003 Amendment. The question, in those circumstances, is whether the insertion of s 196(6) as a result of the 2003 Amendment somehow alters the conclusion concerning the construction of s 196(3) arrived at in VFAD. 31 As the Full Court in VFAD noted, s 196(3) is silent as to the power of the Court to grant interlocutory relief and, for it to be construed as abrogating the Court's power to order the release of an unlawful non-citizen on an interlocutory basis, it would be necessary for Parliament's intention to be "unmistakably clear": VFAD at [104]-[113]. The insertion of s 196(4) was clearly an "unmistakably clear" expression of Parliament's intention to abrogate the Court's power to make interlocutory orders of that nature in the context of judicial review applications in respect of cancellation decisions. The insertion of s 196(6), however, could not be said to be an unmistakably clear expression of Parliament's intention to abrogate the Court's power to make interlocutory orders for the release of unlawful non-citizens in circumstances not covered by s 196(4) of the Act. The conclusion reached by the Full Court in VFAD that s 196(3) of the Act does not abrogate the Court's power to make interlocutory orders under s 23 of the FCA Act accordingly remains. 32 The Commonwealth concedes that s 196(3) and (6) do not operate to oust or abrogate the Court's power to order the release of an unlawful non-citizen in circumstances where the Court has "finally" determined that the person is being unlawfully detained. That is despite the apparently unequivocal terms of s 196(3) of the Act. It is difficult to see why, in those circumstances, those provisions could be taken to oust the Court's power to make an interlocutory order for release pursuant to s 23 of the FCA Act in the context of a case, like this case, where the applicant is claiming that he is being unlawfully detained. That is particularly so in circumstances where, as noted earlier, unlike s 196(4), s 196(3) is completely silent about interlocutory relief. It is difficult to see how the insertion of s 196(6) as a result of the 2003 Amendment somehow alters that position. 33 The Commonwealth's contentions in relation to the operation of s 196(6) depend, to a large extent, on the judgment of Griffiths J in AFF20 v Minister for Home Affairs [2020] FCA 546. It is tolerably clear, however, that that case involved interlocutory relief sought in the context of a cancellation decision covered by s 196(4) of the Act. Insofar as his Honour referred to s 196(6) of the Act, it was strictly in that context. 34 As has already been noted, all but one of the other cases referred to or relied on by the Commonwealth in this context similarly involved cancellation decisions which were otherwise covered by s 196(4) of the Act. The one exception is the judgment of Murphy J in CMA19. 35 The interlocutory relief sought in CMA19 was sought in the context of a successful judicial review application of a decision by the Minister to refuse the grant of a protection visa. The successful applicant sought an interlocutory order that he be released pending a further hearing which was to determine the period within which the Minister was required to re-determine his visa application. Justice Murphy (at [239]) declined to make that interlocutory order on the basis that it was precluded by the unequivocal terms of s 196(3) of the Act. His Honour said that his view as to the operation of s 196(3) was consistent with Al-Kateb at [35], Re Woolley; Ex parte M276/2003 (2004) 225 CLR 1 at [193]; [2004] HCA 49 at [193], and Durani at [38]. 36 There is, however, nothing to indicate that Murphy J was taken to the Full Court decision in VFAD. As has already been noted, the Full Court in VFAD found that s 196(3) of the Act did not abrogate the Court's power to grant interlocutory relief pursuant to s 23 of the FCA Act, despite its apparently unequivocal terms. There is also nothing to suggest that Murphy J was taken to the legislative history or extrinsic material in relation to the 2003 Amendment, or the judgment of Besanko J in Burgess, which was handed down very shortly before Murphy J handed down his judgment. Indeed, it would appear to be tolerably clear that the application for interlocutory relief was not supported by any meaningful argument. That would perhaps also explain the absence of any detailed reasoning by his Honour concerning the operation of s 196(3) of the Act in the circumstances. 37 As for the authorities referred to and apparently relied on by his Honour, the passage from Al-Kateb cited by his Honour simply refers to the unambiguous language of s 196(3) of the Act. As has already been noted, however, the unambiguous language of s 196(3) did not preclude the Full Court in VFAD from finding that it did not abrogate the Court's power to grant interlocutory relief pursuant to s 23 of the FCA Act. The passage from Woolley is to the effect that the provisions in the Act providing for "universal mandatory detention" override the Court's general or "parens patriae" powers in respect of children. Durani was, as has already been noted, a case involving judicial review of a cancellation decision and, therefore, clearly fell within s 196(4) of the Act. It is difficult to see how any of those authorities necessarily supported his Honour's finding based on s 196(3) of the Act. 38 There are sound reasons why Murphy J was correct to reject the interlocutory relief sought in that case, irrespective of s 196(3) of the Act. The successful judicial review application in respect of the refusal decision did not mean that the applicant was no longer an unlawful non-citizen. That would only be the result if the Minister subsequently granted the visa. That was by no means assured. Nor did the successful judicial review application otherwise mean that the applicant was being unlawfully detained. There was no question that the applicant was lawfully detained. The basis upon which the interlocutory relief was sought was, accordingly, obscure and certainly not on all fours with the circumstances of this case. 39 I am not persuaded, in all the circumstances, that I am bound to follow CMA19. Justice Murphy would appear to have been plainly right to refuse the interlocutory relief in the circumstances of that case, which were fundamentally different to the circumstances of this case. In my view, however, his Honour was plainly wrong to refuse to grant interlocutory relief on the basis of s 196(3) of the Act alone. As already noted, that appears to have been largely a product of the fact that his Honour was not taken to VFAD, Burgess and the relevant extrinsic material and legislative history in respect of the 2003 Amendment. 40 It should finally be noted that, putting to one side the operation of s 196(3) and (6) of the Act, the Commonwealth did not otherwise submit that the Court did not have the power to make interlocutory orders in an action for a writ of habeas corpus. It would appear that the Court has entertained interlocutory applications in that context before, albeit before the 2003 Amendment: see Haney v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1555 at [15], [19]; VFAD at [101]. 41 The tests to be applied in such a case are generally the same as would apply in relation to the grant of an interlocutory application: first, is there a serious question or issue to be tried?; and second, does the balance of convenience favour an order for immediate release from detention? Those two questions are not necessarily separate and distinct: see Haney at [16], citing VFAD at [99]-[102]. 42 It follows that, in all the circumstances, I am satisfied that the Court has power to grant the interlocutory relief sought by the applicant. ISSUE TWO - IS THERE A SERIOUS QUESTION TO BE TRIED? 43 As noted earlier, there are two elements to this issue: first, a legal element concerning the correctness of the judgment in AJL20 in relation to the proper construction of ss 189, 196, 197C and 198 of the Act; and second, a factual element, which largely flows from the construction of the relevant provisions in AJL20 as to whether the applicant's removal has been undertaken or carried into effect as soon as reasonably practicable. The legal element: correctness of AJL20 44 Turning first to the legal element, in AJL20 Bromberg J construed the scheme of the Act in relation to detention and removal in light of the authorities referred to earlier in these reasons. After a detailed and thorough review of the authorities, his Honour arrived at three critical legal conclusions concerning the limits and scope of the detention of an unlawful non-citizen. They were, in short summary, as follows. 45 First, his Honour concluded that detention of an unlawful non-citizen under the Act is only lawful if it is for a permissible purpose under the Act. The only permissible purpose that was relevant in the circumstances of the case before his Honour was the purpose of removal. 46 Second, his Honour concluded that the purpose of the removal of an unlawful non-citizen from Australia must be pursued or carried into effect "as soon as reasonably practicable". 47 Third, his Honour found that a departure from the requirement that removal be pursued or carried into effect as soon as reasonable practicable entails a departure from the purpose of detention. It therefore renders the detention unlawful because the detention is no longer for a permissible purpose. 48 Justice Bromberg also concluded, on the evidence before him, that the removal of the applicant from Australia from a particular date had not been pursued or carried into effect as soon as reasonably practicable. The Commonwealth's inaction in relation to removal was found to be largely the product of an incorrect belief that the applicant could not be removed because he was owed protection obligations. His Honour found that that incorrect belief did not justify the inaction. It followed from those findings that the applicant's detention had for some time not been for the purpose of his removal from Australia and was therefore unlawful. His Honour accordingly ordered that the applicant be released forthwith. 49 The applicant in this case contends that Bromberg J's construction of ss 189, 196 and 198 of the Act was correct and should be followed. He also submits that his case is on all fours with the applicant's case in AJL20. 50 The Commonwealth argues, however, that Bromberg J's construction of the relevant provisions was, and is, wrong. It argues, in summary, that the detention of an unlawful non-citizen is lawful until one of the events in s 196(1) of the Act occurs. In the case of removal, under s 196(1)(a), the detention remains lawful until a detainee is actually removed from Australia. If, in the meantime, a detainee contends that the Commonwealth is not taking active steps to remove him or her, the detainee's only remedy is to seek a writ of mandamus to compel the Commonwealth to remove him or her. 51 The Commonwealth also contends in its written submissions that Bromberg J's reasons disclosed certain specific errors, though those submissions were not developed orally. The Commonwealth further contends that even if Bromberg J's construction of the provisions was correct, the evidence in this case nonetheless showed that it was taking active steps to remove the applicant from Australia. That factual issue will be addressed shortly. 52 It should be noted in this context that the Commonwealth has filed an appeal from the judgment in AJL20. That appeal was removed to the High Court upon the application of the Attorney-General, pursuant to s 40 of the Judiciary Act 1903 (Cth). The appeal was heard by the High Court on 13 April 2021 and judgment was reserved. The Commonwealth nevertheless correctly accepted that I should follow AJL20 unless I am persuaded or satisfied that Bromberg J's construction of the relevant provisions is plainly wrong. The Commonwealth did not suggest that I defer deciding the applicant's case until the High Court hands down its judgment in AJL20. 53 As the critical issue in AJL20, and the corresponding issue in this matter, involves an issue of statutory construction, the following observations made by French J in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [76] are apposite to the question whether I should decline to follow AJL20: The injunction to judicial comity does not merely advance mutual politeness as between judges of the same or co-ordinate jurisdictions. It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. And where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is 'clearly wrong' is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction. (Emphasis added.) 54 I do not propose, at this interlocutory stage, to give detailed consideration to Bromberg J's reasons, the Commonwealth's criticisms of those reasons or the Commonwealth's countervailing construction of the relevant provisions of the Act. It suffices to note that Bromberg J's reasons include a thorough and detailed review and consideration of the applicable authorities and the relevant principles to be derived from them, as well as seemingly cogent and persuasive reasoning in support of the constructional conclusions eventually arrived at. There is certainly no readily apparent or obvious flaw or gap in his Honour's reasoning. 55 That said, the issue is difficult and complex. It is quite clear that the cases decided up to this point do not directly deal with the particular constructional issue considered by Bromberg J in AJL20. The Commonwealth's arguments concerning the contrary construction of the relevant provisions, most of which were considered and rejected by Bromberg J, could certainly not be said to be entirely without merit. Likewise, some of the arguments advanced by the Commonwealth concerning what were said to be specific errors in Bromberg J's reasoning would appear to have some merit. It may be accepted, in all the circumstances, that there may well be grounds for finding that Bromberg J's construction of the relevant provisions of the Act was wrong. As the observation by French J in Hicks makes plain, however, a finding that Bromberg J was plainly wrong is not lightly to be made. 56 The Commonwealth has foreshadowed advancing more detailed submissions concerning the correctness of AJL20 at the final hearing. I do not exclude the possibility that I may ultimately be persuaded that Bromberg J was plainly wrong in his construction of the relevant provisions. At this interlocutory stage, however, I am not so satisfied. I propose, therefore, to address the applicant's case on the basis that I should follow the judgment in AJL20. The factual element: "as soon as reasonably practicable" 57 The Commonwealth accepts that it ultimately bears the onus of establishing on the balance of probabilities that the applicant's continued detention is lawful: see AJL20 at [92]-[94]; Burgess at [17]. It is not entirely clear, however, how the onus operates at an interlocutory stage. Perhaps the best approach to take in the circumstances is to determine first whether the Commonwealth has provided at least a prima facie justification for the continuing detention of the applicant. If it has not, the applicant would obviously have a strong prima facie case that his detention is unlawful. If the Commonwealth is able to demonstrate at least a prima facie justification for detention, the question then becomes whether the applicant is able to mount a reasonable or serious case that, when tested or analysed, the Commonwealth's justification is in fact not valid or satisfactory and that his detention is accordingly unlawful. 58 As the interlocutory application came on for hearing at short notice, the evidence adduced by both the applicant and the Commonwealth was information and belief evidence from their respective solicitors as permitted by s 75 of the Evidence Act 1995 (Cth). The applicant's solicitor was not cross-examined. The Commonwealth's solicitor was briefly cross-examined in relation to her evidence. 59 The applicant's evidence establishes, in summary, that he is a citizen of Syria. He has been in immigration detention since 3 February 2014. He lodged an application for a protection visa on 27 June 2016. That application was refused by the Minister personally on 4 February 2019. His judicial review application from that decision was dismissed by this Court on 17 June 2019. His appeal from that decision was dismissed by the Full Court on 28 May 2020 and his application for special leave to appeal to the High Court was dismissed on 11 December 2020. The applicant is not able to apply, and has not subsequently applied, for any visa. 60 As for any steps taken to remove him from Australia, the applicant's evidence is that he was interviewed by an officer from the Department of Home Affairs on 20 January 2021; he told that officer that he would not voluntarily return to Syria, as he feared he would be killed; the officer told him that it would be hard to find a third country for him; he had a conversation about a week later with another officer of the Department and again confirmed that he would not return to Syria voluntarily; and the second officer said he had no information about any potential of removal to a third country. That was the extent of the applicant's involvement with the Department or the Commonwealth concerning his removal. 61 The applicant's solicitor's affidavit annexed some correspondence between her and the Commonwealth's solicitor, the detail of which is unnecessary to recount. 62 The Commonwealth's evidence addressed the applicant's immigration history. It is unnecessary to repeat that history, save as to say that it confirmed that the applicant was initially detained for a two-month period in late 2012 and early 2013. He was granted a bridging visa, but that visa subsequently expired. He was later "re-detained" on 3 February 2014. The important point to note about the applicant's immigration history is that at no point was any visa held by him cancelled by the Minister or his delegate. 63 As for the applicant's detention and the steps taken by the Commonwealth to remove him from Australia, the Commonwealth's evidence, in summary, is that the purpose of the applicant's detention is removal from Australia. No other purpose was or is identified. The only steps taken to remove the applicant, however, are: an officer of the Department spoke with the applicant by telephone on 22 December 2020; the applicant's "case" was transferred to the "WA Removals" team on 11 January 2021; an officer spoke with the applicant on 20 January 2021; WA Removals referred the applicant's case to the "WA Resolution team" on 22 February 2021, together with a "recommendation that the applicant be the subject of a Ministerial intervention submission"; WA Removals then "closed the referral"; an officer spoke with the applicant on 24 March 2021; and WA Removals later "reopened the referral" on 16 April 2021. There is no evidence as to why the referral was reopened or what that meant. 64 There is also evidence that the Department had received advice from the Department of Foreign Affairs and Trade (DFAT) on 2 March 2021 to the effect that removal to Syria was not possible due to "complete lack of formal relations between Australia and Syria" and that "there is no mechanism to formally request a travel document from Syria". The Department also received advice from DFAT that "DFAT is unable to engage with the government of Syria to request a travel document". It was also said that the Department is "unable to obtain clearance for charter flights to land in Damascus". 65 Finally, the Commonwealth adduced evidence about the steps that the Department had initiated to request the Minister to consider exercising his "non-compellable discretionary powers", in particular under s 195A of the Act. Those steps appear to have commenced as early as October 2019, though it would be fair to say that very little if anything has actually happened in that regard. 66 Most recently a "first-stage submission" was sent to the Minister on 18 February 2021. A first-stage submission was said to be a submission asking the Minister to consider whether he should exercise the power. That first-stage submission was apparently closed "without further action" because the applicant had been included in a "group first stage [sic] s 195A submission". That submission was sent to the Minister's office on 15 March 2021. Some revisions were requested by the Minister's office on 22 March 2021 and a revised submission was sent to the Minister's office on 31 March 2021. It is currently "awaiting action". There is no evidence as to what, if anything, has occurred since 31 March 2021. 67 The Commonwealth's solicitor's affidavit annexed some Departmental "case review" documents in respect of the applicant's detention and removal. Those documents are not particularly instructive other than that they tend to indicate that the only "barriers to case resolution" are that the applicant's removal is involuntary and that he is "owed protection". Given the terms of s 197C of the Act, it is difficult to see how the fact that the applicant is "owed protection" could be said to be a relevant barrier to his removal. Indeed, this was the very justification for the Commonwealth's inaction which was rejected by Bromberg J in AJL20. 68 The only relevant activity that is recorded in those documents is that a submission was sent to the Minister "as part of AJL20 cohort [sic]". That is presumably a reference to the group first-stage s 195A submission. It may be inferred that the "group submission" included detainees who are believed to be in a position similar to the applicant in AJL20. Save for that activity, that document simply refers to the brief communications between the applicant and the Department which are otherwise addressed in the evidence. 69 The applicant contends that the evidence adduced by the Commonwealth effectively demonstrates that, since at least 22 February 2021, that being the date that WA Removals closed his departure referral, his removal from Australia has not been undertaken or carried into effect by the Commonwealth as soon as reasonably practicable. While that referral was apparently reopened on 16 April 2021, there is no evidence as to why that was so or what, if anything, has been done beyond that internal administrative step. The applicant also submitted that the Commonwealth's inaction is not justified by the s 195A submissions because detention for the purposes of the Minister's consideration of whether to exercise that power is not a permissible purpose insofar as detention is concerned. In any event, so the applicant submitted, very little, if anything, has actually occurred in relation to that submission. 70 For its part, the Commonwealth submits that the evidence shows that the applicant is being detained for the permissible purpose of removal and that at least some steps have been taken to effect that removal. There are, however, practical difficulties in removing the applicant to Syria. The Commonwealth also contends that it is permissible in the circumstances for some time to be allowed for the Minister to consider the exercise of his power under s 195A of the Act. 71 In all the circumstances, I am satisfied that the Commonwealth has established a prima facie case that the applicant's detention is and remains lawful. That is because there is at least some evidence that the applicant is presently being detained for the purpose of removal and at least some steps appear to have been taken to carry that purpose into effect. 72 I am, however, satisfied that the applicant has demonstrated that there is a serious case or question to be tried about whether his removal has been undertaken or carried into effect by the Commonwealth as soon as reasonably practicable. There is, therefore, a serious case to be tried as to whether the applicant's current detention is for the purposes of removal and is therefore lawful. 73 The critical considerations that have led me to that conclusion are as follows. 74 First, it may be accepted that, as the Minister must have appreciated when he refused the applicant's protection visa application, there would appear to be some practical difficulties involved in returning the applicant to Syria, even putting aside Australia's non-refoulement obligations. Those practical difficulties are evidenced by the advice the Department received from DFAT, referred to earlier. The fact remains, however, that there is nothing to suggest that the Commonwealth has done anything to explore the extent of those difficulties or how or when they may be able to be overcome. Nor could it be said, at least at this point, and on the present state of the evidence, that the practical difficulties are or are likely to be intractable or insurmountable. 75 Second, there are some fairly clear indications in the Department's documentary records that the main reason for the Commonwealth's inactivity is that it is recognised that Australia owes protection obligations in relation to the applicant. It has been accepted that there is a real risk that the applicant will be seriously harmed, if not killed, if he is returned to Syria. His return to Syria would also result in Australia breaching its international non-refoulement treaty obligations. It might reasonably be expected that there would be some reluctance on the part of the Commonwealth to be seen to return the applicant to Syria in those circumstances. 76 This seemingly intractable problem could hardly have come as a surprise to the Minister. He must have been aware of the likelihood, or inevitability, of it arising when he refused the applicant's visa application. More importantly, in light of s 197C, and for the reasons given by Bromberg J in AJL20, the fact that Australia owes the applicant protection obligations provides no excuse or justification for the Commonwealth's inactivity. 77 Third, no doubt because of the intractable, but entirely predictable, problem just referred to, the Commonwealth has devoted some time to exploring whether the Minister might exercise his non-compellable discretionary powers in s 195A of the Act. It may be accepted that it is permissible for the Commonwealth to explore that option while the applicant is detained. Indeed, it has been held that s 198 of the Act should be read as accommodating the taking of steps for the purposes of informing the Minister of matters relevant to the possible exercise of the power under s 195A, so long as those steps are taken promptly: see Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41 at [35]; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 at [12]-[16]; WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [115]. The Commonwealth is not, however, to be afforded unlimited time to consider such alternative options to removal and cannot prolong a person's detention because of the possibility of the exercise of such a power: see WKMZ at [116]; AOU21 v Minister for Home Affairs [2021] FCAFC 60 at [201]-[202]. 78 Without in any way seeking to dissuade the Minister from exercising his discretionary power to grant the applicant a visa pursuant to s 195A of the Act, the prospect of him doing so would appear to be slim at best. It would be somewhat incongruous for the Minister to have refused the applicant's protection visa on character grounds ostensibly on the basis that it was in the public interest for him to do so and yet, a matter of some months later, find that it was in the public interest for the applicant to remain in Australia and be released from detention pursuant to s 195A of the Act. 79 Fourth, there are some indications in the documentary records that the applicant has requested his removal officer to explore whether he might be able to be sent to a third country with which he has some past connection. It does not appear, however, that the Commonwealth has taken any real steps to explore whether that is a realistic or viable option. 80 Fifth, it may perhaps be accepted that, at least in the context of Australia's system of mandatory immigration detention, the four-month period during which the applicant has been in detention since his last avenue of appeal was extinguished is not a particularly lengthy period. It is also perhaps not surprising, given the practical and other issues that are involved in removing the applicant from Australia, that the Commonwealth has not been able to actually remove the applicant within that period. The fact remains, however, that on the evidence before the Court, at least at this early interlocutory stage, virtually nothing has actually been done, beyond mere internal administrative manoeuvrings, to actually pursue or carry into effect the applicant's removal in that four-month period since the refusal of his special leave application. 81 It is important to emphasise that these are all issues that will most likely be explored in considerably more depth at the final hearing. It may be accepted that the Commonwealth has had very limited time in which to file its evidence in opposition to the applicant's interlocutory application. That is significant in light of the fact that, somewhat unusually in the case of interlocutory injunctive relief, the Commonwealth effectively bears the onus of demonstrating that the status quo ought to be maintained, even though it is the respondent to the application. It is expected that the evidence that the Commonwealth will adduce at the final hearing will be far more extensive.

ISSUE THREE - BALANCE OF CONVENIENCE 82 Ordinarily, an interlocutory injunction is made primarily for the purpose of preserving the status quo pending the final hearing. On one view, at least, that is not really the case in respect of the interlocutory relief sought by the applicant in this matter. The status quo - the present situation or state of affairs - is that the applicant is in immigration detention. It may also be accepted that that is the usual state of affairs for unlawful non-citizens, as the applicant unquestionably is, in the scheme for mandatory detention in the Act. That is particularly clear in the terms of s 196(1) of the Act. 83 The point is that, on one view at least, the interlocutory relief sought by the applicant, if granted, does not preserve the status quo, but in effect disturbs the status quo and requires his release from detention, even though he is an unlawful non-citizen. That is notwithstanding that the lawfulness or unlawfulness of his detention, as the case may be, has not been finally determined by the Court. 84 It is, perhaps, in that context or for that reason that Selway J made the following observations about the balance of convenience in such a case in Haney at [17]: … In considering the balance of convenience it is necessary to consider the statutory duties imposed upon Commonwealth officers by s 196 and s 198 of the Act: see SHFB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 29 at [15]-[16]. In determining where the 'balance of convenience' lies in a case like the present the Court must have regard to those statutory duties, including the duty that unlawful non-citizens be detained and (in appropriate circumstances) removed. At this stage there has been no determination that the detention is unlawful. At best there is a serious question to be tried. The consequence, at least in this case, is that the interlocutory release of the applicant could only be justified if, on the material currently before the Court, I conclude that the applicant's prospects of success at trial are such that his continued detention cannot be justified. To adapt the words of Mason ACJ in Castlemaine Tooheys at 154, the applicant will need to show a 'probability, even a distinct probability of success' in order to obtain an order for release. Indeed, in circumstances where the balance of convenience can be otherwise accommodated (such as an expedited hearing) an even higher level of comfort in the likely success of the applicant's case may be required. 85 I respectfully agree with those observations. In short, before granting interlocutory relief which involves ordering the release of an unlawful non-citizen, the Court would generally have to be satisfied that there was a strong prima facie case that the continued detention of that person was unlawful. This is the type of case where the assessment of the strength of the prima facie case is a particularly important consideration in assessing the balance of convenience. 86 It should also be reiterated in this context that, as adverted to earlier, this matter has been fixed for an early final hearing. That hearing will take place in just under four weeks. The applicant points out that a period of four weeks in detention is no light matter. I have some considerable sympathy for that submission. The applicant also submits that the possible award of damages for false imprisonment, should he ultimately be successful at the final stage, would be highly unlikely to adequately compensate him for any additional time spent in detention. That submission could also not be doubted. 87 For its part, the Commonwealth relies, in relation to the balance of convenience, on what it said is the public interest arising from the scheme of the Act. For the reasons already given, there is some merit in that submission, though that public interest would tend to largely disappear if it is found that the applicant has a strong prima facie case that his detention is unlawful. It is difficult to see how it could be said that there would be a public interest in not ordering the applicant's release in such circumstances. The scheme of the Act, plainly, does not permit unlawful detention. 88 The Commonwealth also submits that it would be futile to order the release of the applicant, because s 189(1) of the Act would oblige an officer to immediately re-detain him. A similar submission was put to and rejected by Bromberg J in AJL20 (at [60]-[64], [175]). That said, the Commonwealth's submission is supported by what Kiefel and Keane JJ said in M76 (at [182]-[183]). Even if, as Bromberg J concluded, the statement by Kiefel and Keane JJ was obiter (see AJL20 at [58]), it nonetheless commands considerable respect. That is so even though it would seem to be somewhat extraordinary if the statutory scheme countenanced the scenario whereby a person who had been ordered to be released, following a finding by the Court that he or she had been unlawfully detained, was required to be immediately re-detained pursuant to s 189 of the Act. 89 Not without some considerable misgivings and trepidation, I have determined that, in all the circumstances, the balance of convenience does not favour the grant of the interlocutory release sought by the applicant. As I have already indicated, I consider that there is a serious question to be tried concerning the lawfulness of the applicant's current detention. He has demonstrated that he has a prima facie case that his continuing detention is unlawful. It could not be said, however, that he has a strong prima facie case, or that there is a high probability that he will ultimately succeed at the final hearing. 90 Perhaps more significantly, in my view the balance of convenience favours, in all the circumstances, the Commonwealth being permitted more time to file evidence justifying the applicant's ongoing detention. As discussed earlier, the Commonwealth has had limited time to file evidence at the interlocutory stage. That evidence comprised information and belief evidence. The Commonwealth has foreshadowed that it will call evidence from at least three witnesses at the final hearing. They are presumably officers who are or were directly responsible for the applicant's detention and removal in the critical four-month period. The applicant will be able to cross-examine those witnesses. The full picture is likely to emerge in those circumstances. 91 In my view, the lawfulness or otherwise of the applicant's detention is best determined at a final hearing on the basis of direct evidence from the officers responsible, even though that necessarily entails that the applicant will be required to remain in detention for at least another four weeks until that occurs. The strength of the applicant's prima facie case, on the basis of the evidence before the Court at this stage, does not compel a contrary conclusion. CONCLUSION AND DISPOSITION 92 The Court has the power to grant the interlocutory relief sought by the applicant. The source of that power is s 23 of the FCA Act. That power is not abrogated by the terms of s 196(3) and (6) of the Act. 93 The applicant has demonstrated that there is a serious question to be tried in respect of the lawfulness of his ongoing detention. He has not, however, demonstrated that the balance of convenience favours the making of an order for his release prior to the Court determining on a final basis whether his detention is, in fact, unlawful. It follows that the applicant's interlocutory application filed on 12 April 2021 must be dismissed. 94 I propose, in all the circumstances, to reserve the question of costs for determination in the context of the final disposition of the matter. I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.

BHL19 v Commonwealth of Australia

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