F.1. Scope of the duty pursuant to s 198(6)
68 Consistently with the statements in the authorities summarised above, in my view, the words "as soon as reasonably practicable" in s 198(6), and in other related provisions of the Act for the removal of an unlawful non-citizen, require an evaluative assessment of all the steps taken by a respondent to effect removal of an unlawful non-citizen. Necessarily, it will be fact dependent and have regard to the particular circumstances of the applicant. The evaluation is ultimately directed at a removal "as soon as reasonably practicable", rather than the question of whether all reasonably practicable steps have been taken to remove an unlawful non-citizen. There is, however, both an inherent tension and inevitable interrelationship between the two concepts.
69 On the one hand, any attempt to pursue all reasonably practicable steps could be expected to achieve a less timely removal than a targeted focus on steps more likely to effect a removal. There may, in many cases, be a cascading series of possible alternative approaches that could be made to different countries in an effort to achieve a successful removal. Generally, but not invariably, the extent to which the unlawful non-citizen has a connection with a foreign country may relevantly guide the sequence in which those approaches might be made.
70 On the other hand, the duty to remove an unlawful non-citizen as soon as reasonably practicable must subsist until the removal has occurred. If attempts to remove an applicant have been unsuccessful but the applicant is able to identify a reasonably practicable step that has not yet been taken, it might well follow that there had been a breach of the duty.
71 An unlawful non-citizen, however, is likely to face significant practical difficulties in demonstrating that the proposed step was reasonably practicable. Whether a postulated step is reasonably practicable is a question that the Department is much better placed to answer and would, in all but the most straightforward of cases, be a matter that would be expected to depend on an assessment of the steps undertaken by an officer or officers of the Department. It is also an enquiry that may produce a different answer at different points in time. Steps that might be reasonably practicable in one period might not be reasonably practicable in other periods and the converse may also apply. The enquiry is thus temporally sensitive and inherently evaluative, often with incomplete or conflicting information as to the practicality of particular options. Foreign governments and officials may fundamentally alter their policies and procedures with little notice and further may not necessarily implement those policies and procedures in a coherent or consistent manner.
72 The difficulties with assessing the practicality of removal of unlawful non-citizens was highlighted by Hayne J in Al-Kateb at [230]:
This appellant's case stands as an example of why it cannot be said that removal will never happen. His prospects of being removed to what is now the territory in Gaza under the administration of the Palestinian Authority are, and will continue to be, much affected by political events in several countries in the Middle East. It is not possible to predict how those events will develop. The most that can be decided with any degree of certainty is whether removal can be effected now or can be effected in the future pursuant to arrangements that now exist. Of course, it must be accepted in the present appeal that, as the primary judge found, "there is no real likelihood or prospect of [the appellant's] removal in the reasonably foreseeable future", but that does not mean it will never occur. Whether and when it occurs depends largely, if not entirely, upon not only the course of events in the Middle East (his preferred destination being Gaza) but also upon the willingness of other countries to receive stateless Palestinians.
73 Conceptually, in my view, consistently with the authorities in respect of s 198(6) and analogous provisions of the Act, an applicant might seek relief in the nature of a writ of mandamus compelling an officer to comply with their duty pursuant to s 198(6) to remove an unlawful non-citizen as soon as reasonably practicable in one of three ways.
74 First, an applicant might contend that the official has failed to take any, or only manifestly perfunctory, steps to comply with the duty. It would present an applicant with a much stronger case to establish a breach of duty, than a contest as to the sufficiency and timeliness of a large number of steps that might have been taken to remove an unlawful non-citizen to multiple countries.
75 A breach of duty was found and an order for mandamus was made in BHL19 essentially on this basis. The following findings were made by Wigney J at [174]:
In all the circumstances, the evidence before the Court supports the overall finding that, from at least 22 February 2021, when Removal Operations closed its "removals service" in relation to the applicant, officers of the Commonwealth failed to discharge the duty to remove the applicant from Australia as soon as reasonably practicable. From that time at least, officers who had the duty to remove the applicant pursuant to s 198 of the Migration Act have at best been dilatory in performing that duty. They have failed to take any reasonable steps to seek to remove the applicant from Australia, either to Syria (prior to 25 May 2021) or any other country. Indeed, they have done next to nothing. Their inactivity can, to a large extent, be explained by the fact that they were initially distracted by the (at the time) erroneous and irrelevant belief that the applicant could not be removed to Syria involuntarily. That caused them to effectively abandon any attempt to remove the applicant, including to any third country. No reasonable attempt was made to explore the possibility of the applicant being removed to a country other than Syria, either before or after the passing of the Clarifying Act.
(Emphasis added.)
76 Given the extensive evidence of the enquiries made by officers of the Department in this case, such a contention could not have succeeded. It could not be suggested that the Department had "failed to take any reasonable steps", or that they have "done next to nothing", or that they had effectively abandoned "any attempt" to remove the applicant.
77 Second, an applicant might contend that while some reasonable steps had been taken by an officer to effect their removal, taken as a whole, those steps were insufficient to satisfy the officer's duty pursuant to s 198(6) of the Act. Such an approach would require the applicant to persuade the Court, by reference to all of the evidence relied upon by the relevant officer, that the officer had failed to remove the applicant as soon as reasonably practicable.
78 This was the approach initially taken by the applicant in its 2022 submissions. The focus of the submissions was that the officers of the Department had been dilatory and not taken sufficient steps with the governments of Lebanon, the Palestinian Territories and Israel, or with other countries, to effect the applicant's removal as soon as reasonably practicable. As explained above at [39]-[40], this approach was effectively abandoned in the 2023 submissions and in oral submissions made before me at the hearing of the proceedings.
79 Third, an applicant might acknowledge that reasonable but ultimately unsuccessful steps had been taken but then identify an additional reasonable step that they considered was necessary for the relevant officer to take in order to establish that the officer had not breached their duty pursuant to s 198(6). Such an approach would appear to fall outside the three requirements identified by Wigney J in BVZ21 at [14] to issue a writ of mandamus to enforce the duty under s 198(6). The failure to take an additional particular step would not establish a "refusal to perform any steps", "dilatoriness" in undertaking any steps or a "failure" to take any step. Further, it would require the Court to assess whether failing to take the additional step was sufficient for it to conclude that the officer had breached their duty, in the context of all of the other steps taken by the officer. Nevertheless, one could conceive that some steps could be readily characterised as objectively "reasonable". For example, steps taken to remove an applicant to a country in which the applicant had a recognised connection, absent some particular issues to the contrary, might well be found by a Court to be a step that the relevant officer should have taken to avoid a finding that they had breached their duty to remove an applicant as soon as reasonably practicable.
80 This third approach, as explained at [48]-[50] above, was ultimately the approach taken by the applicant in this case. The extensive evidence of the steps taken by officers of the Department and Border Force ultimately deployed in this case effectively precluded the first and second approaches from being pursued.
81 Hence, in the present context, the issue to be determined is whether the failure to make a special approach to the Five Eyes partners was sufficient to give rise to a breach of the duty in s 198(6) in circumstances where the applicant does not challenge but rather relies on the extensive but unsuccessful steps taken by officers of the Department and Border Force to effect a removal of the applicant.