Whether the applicants continuing detention is unlawful
212 As I have said, the applicant's position is tragic and an outcome that sees him remaining in detention indefinitely may have seriously adverse consequences in terms of his mental health, and his life. But the authorities are in my view clear that the applicant's continuing detention was and remains lawful.
213 In ASP15 and Another v Commonwealth and Another [2016] FCAFC 145; (2016) 248 FCR 372 (ASP15) (Robertson, Griffiths and Bromwich JJ) the appellants were unlawful non-citizens detained in immigration detention under s 189 of the Act. The appellants' case was that the Minister's delegate failed to determine their visa applications "as soon as reasonably practicable", which period they claimed was the then applicable statutory 90-day time limit for determination of a visa application. The appellants were ultimately granted visas but well past the statutory time limit. In reliance upon the reasoning in Plaintiff S4 and Plaintiff M76 they argued that the delay in making the visa decisions meant they were detained beyond the point which their detention was authorised by the Act. They asserted that their detention was unlawful and constituted the tort of false imprisonment, and they sought damages from the Commonwealth and the Minister. The Full Court dismissed their application.
214 Their Honours said (at [30]-[31]):
In Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, the majority at 581 [33]-[35] and 638-640 [225]-[233] specifically rejected the contention that where detention was for the purpose of removal, in order to be constitutionally valid s 196(1) was to be construed as implicitly subject to a requirement that the purpose of removal be capable of fulfilment within a reasonably practicable time. That conclusion is binding on this Court.
The majority in Al-Kateb further held that detention for the purpose of removal would cease to be validly authorised by s 196(1) if and only if removal was required by s 198, but not effected. That is, detention for the purpose of removal would cease to be validly authorised by s 196(1) if and only if each of the criteria in s 198 was satisfied and removal was reasonably practicable. If a person continued to be detained after this, it would inevitably follow that the detention was for some purpose other than removal as authorised and required by s 198(2).
(Emphasis in original.)
215 The Full Court said (at [32]-[33]) that Plaintiff M76 was not a case in which resolving any residual differences between Al-Kateb and the remarks of Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 (Lim) arose, because the Al-Kateb point had not been reached in Plaintiff M76. That is, the point had not been reached where there was an impasse in which removal could not be affected and nothing more could be done administratively, but a future resolution of the impasse could not be excluded as a possibility. Thus their Honours said:
Al-Kateb therefore remains good law, and allows for the possibility of prolonged detention due to such an impasse, indicating that duration of detention alone, and the lack of any immediate prospect of it ending, is not enough to make that detention unlawful. That is of significance in a case such as the present appeals in which the complaint is not that nothing more could have been done, but rather that it was not done quickly enough.
(Emphasis added.)
216 The Full Court went on to observe (at [33]) that the passages from Plaintiff S4 that were relied upon to build upon Lim and "to develop a case of unlawful detention by the asserted undue effluxion of time in making a visa decision, require close and careful consideration as to text and as to context." Their Honours noted that Al-Kateb was not discussed in Plaintiff S4, nor was any doubt cast on its correctness. Nor was Al-Kateb substantially addressed by counsel for the appellants in ASP15 (and the same is true in the present case).
217 The Full Court distinguished the facts in Plaintiff S4 from those in ASP15 (at [34]-[39]), noting that in Plaintiff S4 the appellant was an unauthorised maritime arrival in immigration detention and prevented by s 46A(1) of the Act from making a valid protection visa application. Their Honours explained that the appellant therefore met each of the criteria in s 198(2) and the obligation to remove him had been triggered. Because the removal obligation had been enlivened it applied to all pending steps, including the obligation to consider whether or not to lift the bar under s 46A(2). It was in that context that the High Court made the observations that it did about the duration of the detention being bounded by the requirement in s 198(2) to remove the appellant "as soon as reasonably practicable".
218 The Full Court contrasted the facts in Plaintiff S4 to those in ASP15, noting that in the latter case the power under s 46A had been exercised and the appellants had been able to make and had made valid protection visa applications. Their Honours said therefore (at [39]):
The obligation under s 198(2) was never triggered. It follows that there was no occasion for the terms of s 198(2) to have any effect on s 196(1), let alone dominant effect. The reasoning in Plaintiff S4 does not assist in this case, and does not overcome the reasoning of the majority in Al-Kateb.
219 The Full Court concluded (at [40]):
It follows that once a valid visa application has been made, unless and until a decision is made either to grant or refuse a visa, detention is authorised and required by s 196(1). This conclusion is consistent with the binding authority of Al-Kateb as to the nature of lawful detention and the meaning of s 196(1). None of the authorities relied upon by the appellants compels a different conclusion. Such detention does not cease to be for the purpose of considering and determining an application for a visa because the necessary process has not been completed within the time required by the Migration Act, be that time period express or implied. If in fact a court determines that the process to make a visa decision has gone on for too long, it nonetheless remains detention for that purpose and is both validly authorised and required by s 196(1) of the Migration Act. The normal remedy is court action to compel a visa decision to be made, one way or the other.
(Emphasis added.)
220 Their Honours also said (at [42]):
Such reasoning as submitted by the appellants also inverts principle. The regime for immigration detention is valid for the purposes of making a visa decision precisely because it imposes an obligation on the Minister to make that decision within whatever time limit applies; detention only remains valid so long as such a purpose under the Migration Act continues to exist. In the case of detention pending a visa decision, failure to do so within the required time renders the Minister liable to the issue of a writ of mandamus to compel him or her to perform their statutory duty. However it does not render invalid the provision which authorises detention in the first place. So long as the Migration Act validly continues to authorise detention, there can be no claim for false imprisonment or habeas corpus.
(Emphasis added.)
221 The applicant notes that ASP15 distinguished Plaintiff S4 and submits that the Full Court should not be understood as doubting the propositions advanced based on Plaintiff S4 and Plaintiff M76. I do not accept that submission. It is correct that the facts in the two cases can be distinguished, but the position in the present case is more akin to ASP15 than Plaintiff S4. In ASP15 and in the present case the detainees had made valid protection visa applications, and thus the obligation to remove them as soon as practicable was never triggered (at least up to the visa refusal decision on 24 July 2019 in the present case).
222 More fundamentally, the majority in Al-Kateb rejected a construction of ss 189, 196 and 198 which depends upon "taking the temporal element of the legislative command in s 198 (to remove as soon as reasonably practicable) and converting that into a different temporal limitation on the operation of s 196 and, by inference, on the operation of s 189": at [237] per Hayne J, with whom McHugh and Heydon JJ agreed at [33]-[34] and [303] respectively, and at [290]-[298] per Callinan J.
223 Further, the Full Court in ASP15 unequivocally held (at [40]) that once a valid visa application has been made, unless and until a decision is made either to grant or refuse a visa, detention is authorised and required by s 196(1), which it held was consistent with the binding authority of Al-Kateb as to the nature of lawful detention and the meaning of s 196(1). The Full Court in ASP15 also held (at [42]) that where the process to make a visa decision has gone on for longer than reasonably practicable, such detention nonetheless remains validly authorised and required by s 196(1) of the Act. That is, the Full Court explicitly rejected the argument the applicant mounts in the present case and I am bound to follow ASP15.
224 Considered dicta in the Full Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54 (Al Masri) (Black CJ, Sundberg and Weinberg JJ) points the same way. The majority in Al-Kateb overturned the ratio in Al Masri but the High Court was not called on to deal with another part of the decision where the Full Court rejected the trial judge's reasoning that the power to detain under s 196 was limited in operation to such time as the Minister was taking all reasonable steps to remove a detainee from Australia as soon as reasonably practicable, which limitation emerged from reading s 196(1) as subject to the duty imposed upon the Minister by s 198(1), to remove a detainee as soon as reasonably practicable. The Full Court rejected that limitation (at [134]) and said:
Although the two provisions are part of the same scheme, we would not read them together in this way. If the Minister were not fulfilling his duty under s 198(1) to remove as soon as reasonably practicable the detention would, in our view, still be lawful and the appropriate remedy would be an order in the nature of mandamus to compel the Minister to take the steps required for the performance of his duty.
The applicant did not address this finding.
225 Finally, the applicant's argument is contrary to a number of decisions of single judges of this Court. They are however of limited assistance as they predate the Full Court decision in Al Masri, and predate the decisions of Al-Kateb, Plaintiff M76, Plaintiff S4, and ASP15. It suffices to go to two of them: WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 (WAIS) at [47], [49] and [56] (French J) and NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2 (NAES) at [6] and [11] (Beaumont J).
226 In WAIS, the applicant was an unlawful non-citizen held in immigration detention. He made a valid application for a protection visa and was refused, and his efforts at administrative and judicial review of that decision were unsuccessful. He then sought removal from Australia to a place where he would be safe. He was not removed and, having regard to the time that had expired and the lack of any reasonable likelihood that he would be able to be removed in the foreseeable future, he argued that the power to detain him was exhausted and his continuing detention was unlawful. Justice French, as his Honour then was, said (at [49]):
Section 198 appears in a separate division dealing with the removal of detainees. It sets out the circumstances in which the obligation to remove persons from Australia arises. That removal necessarily terminates the continuing detention under s 196. That the removal must take place "as soon as reasonably practicable" after a written request or final refusal of a visa (ss 198(1) and (6)) does not, on the face of it, import any express or implied limitation upon the obligation to detain the unlawful non-citizen under s 196. That obligation or liability is terminated by the event of removal. There are no words in the section which condition it upon the expiry of a time which is "reasonably practicable" to effect the removal after the satisfaction of one of the conditions in s 198. The uncertainty of determining when the detention would cease to be lawful if it were to be based upon the expiry of a period of time qualified by the term "reasonably practicable"[sic].
(Emphasis added.)
To similar effect his Honour said (at [56]) that the language of s 196 is "intractable" and that detention under that provision is ended only by one of the specified terminating events. His Honour considered the appropriate remedy for a failure to discharge the duty under s 198 was a writ of mandamus rather than a finding that detention was unlawful because of excessive time in detention.
227 In NAES the applicant was an unlawful non-citizen in a similar position to the applicant in WAIS. Beaumont J (at [6]) agreed with the reasoning in WAIS and said (at [11]):
Even if inexcusable delay on the part of the Department had been demonstrated (a question upon which I need not, and do not, express an opinion), the only appropriate remedy, in my view, would have been an application for mandamus compelling "the officer" upon whom is placed the statutory duty prescribed by s 198 to remove the applicant "as soon as [is] reasonably practicable" in the circumstances of the applicant's case.
228 In the present case, until the Minister's decision on 24 July 2019, the purpose of the applicant's detention (at least after March 2016 when he lodged the visa application) was to determine his visa application. I have found there was unreasonable delay by the Minister or his delegate in deciding that application, but the authorities indicate that notwithstanding such delay the applicant's detention under ss 189 and 196 remained lawful. The appropriate remedy to address such delay would have been an order for mandamus to compel determination of the visa application.
229 The applicant also contends that since the Minister's visa refusal decision of 24 July 2019, the evidence does not show that any steps have been taken to arrange for his removal to Sri Lanka, the Minister has no intention of removing him to Sri Lanka because to do so would breach Australia's non-refoulement obligations, and he has not been removed from Australia as soon as reasonably practicable. He contends that his continuing detention is therefore unlawful.
230 In this regard the applicant relies on the Minister's response to a Notice to Admit, in which the Minister admitted that:
(a) Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to a country in respect of which a non-refoulement obligation exists; and
(b) neither the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, nor the Minister for Home Affairs is currently considering exercising the discretion to intervene under section 195A of the Act to grant the applicant a visa, releasing him from detention.
The applicant also relies on a Community Protection Assessment Tool prepared by the Department on 26 February 2019 which records that the applicant "was indicatively found to be a refugee on 07/03/2017, thus is not available for removal from Australia."
231 I do not accept the applicant's contention. First, as at 24 July 2019 there was nothing to suggest that the time for the applicant's removal had arrived because it was reasonably practicable to do so. Until that date he was held in detention because he is an unlawful non-citizen whose visa application was being considered. Once the visa refusal decision was made the applicant sought judicial review of the Minister's decision within the applicable time limit. It would have been inappropriate for the Minister to remove the applicant from Australia while that application was on foot. Indeed, counsel for the applicant conceded that had the Minister sought to remove the applicant from Australia pending determination of the judicial review application, the applicant would have sought an injunction against his removal, and he accepted that such an application was likely to be successful. I do not accept that it was reasonably practicable for the Minister to remove the applicant from Australia at any point between 24 July 2019 and the delivery of judgment in this proceeding.
232 Upon judgment in this proceeding and orders to quash the Minister's decision and to re-determine the applicant's visa application in accordance with law, unfortunately for the applicant, the clock starts running again. It is however appropriate to ensure that there is no unnecessary delay in the re-determination of the applicant's visa application and upon hearing submissions from the parties as to a reasonable timeframe I will order that the re-determination occur by a fixed date.