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[2019] HCA 17
defendant. Questions 1 and 2 answered 'Does not arise'; no relief to issue; plaintiff to pay the costs of and incidental to the special case.
A man who entered Australia with a fake passport and then spent years in detention while giving contradictory stories about who he was and where he came from asked the High Court to order his release. He argued there was no realistic chance he could ever be sent anywhere because the government could not prove his nationality. The Court refused, saying he could not benefit from his own lies and refusal to help identify himself. Without clear proof that removal was impossible, his detention remained lawful under the Migration Act. The constitutional challenge and arguments based on the minority view in the earlier Al-Kateb case never had to be decided.
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The plaintiff, identified only as M47/2018, arrived at Melbourne airport on 28 January 2010 aboard a flight from Singapore. He presented using a fifth assumed identity on a Norwegian passport that he immediately destroyed. He claimed to be a citizen of Western Sahara. Australian authorities have never been able to verify his true name, date or place of birth, parentage or nationality. Over the preceding years he had used at least four other identities when dealing with immigration or asylum authorities in Denmark, the Netherlands, Iceland, Singapore and Germany, variously claiming to come from Iraq, Gaza, Western Sahara or elsewhere, with differing dates of birth.
2 cited instruments linked from this judgment.
Since arrival the plaintiff has been held in immigration detention under ss 189 and 196 of the Migration Act 1958 (Cth). He lodged successive protection visa applications, a bridging visa application and a safe haven enterprise visa application; all were refused and his merits and judicial review rights were exhausted. During departmental interviews between 2010 and 2017 he gave irreconcilable accounts: at times claiming his parents were dead and he had no relatives, at other times stating he had a Norwegian wife and son, and on still other occasions asserting he was an orphan with no knowledge of his parents. He told officers he was born in the Canary Islands, in Tindouf (Algeria), in Dakhla (Western Sahara), in El Paso (Spain) or in Las Palmas. He participated for a short time in a 2012 meeting with Moroccan embassy officials arranged by the Department but then walked out. Moroccan officials advised that he spoke fluent Algerian Berber and was unlikely to be from Western Sahara. He refused to speak Arabic with Algerian embassy officials. In 2018 he declined the Department's proposal that he attend further meetings with Moroccan and Algerian officials, his solicitor stating that the Commonwealth had not demonstrated the utility of such meetings.
The Department continued to make enquiries, including with the United States embassy for possible resettlement, but no country had agreed to accept him. The plaintiff had earlier held a Norwegian temporary residence permit that expired in September 2010; his application for renewal was refused. In 2010 he had actually requested removal to Norway, but that avenue closed with the expiry of the permit.
Rather than proceed to a trial on evidence, the parties agreed a special case under r 27.08 of the High Court Rules 2004 (Cth). The plaintiff invited the Full Court to draw one or more of four inferences: that there was no real prospect of his removal potentially in his lifetime or within the reasonably foreseeable future, that removal was not practically attainable, or that the defendants could not effect removal within a reasonable period. He contended that, on the basis of any such inference, his detention was no longer authorised by ss 189 and 196 as a matter of construction, or that those provisions were constitutionally invalid in their application to him because the detention had ceased to be for a permissible purpose connected with removal. He sought habeas corpus or mandamus.
The joint judgment of Kiefel CJ, Keane, Nettle and Edelman JJ (with whom Bell, Gageler and Gordon JJ agreed in a separate joint judgment) held that none of the four inferences was available on the special case materials. The plaintiff's deliberate non-cooperation and deployment of falsehoods meant the Court could not know what might be achieved if he provided accurate, verifiable information. The Algerian embassy had indicated that details of his true name, parents' names and dates of birth, and any residences in Algeria would be valuable. Because the plaintiff had frustrated the very enquiries necessary to resolve his status, he could not rely on the resulting uncertainty to argue that removal was impossible. The questions concerning construction and validity therefore did not arise. No relief issued and the plaintiff was ordered to pay the costs of the special case.
The Court began from the text of ss 189, 196 and 198. Section 189 requires detention of anyone an officer knows or reasonably suspects to be an unlawful non-citizen. Section 196 mandates that such a person be kept in immigration detention until removed under s 198, deported or granted a visa. Section 198(6) obliges an officer to remove a detainee "as soon as reasonably practicable" once any visa applications have been finally refused. The plurality emphasised that the statutory purpose remains removal; the authority to detain does not automatically cease merely because removal has not yet occurred.
The critical threshold was whether the special case permitted the drawing of the factual inferences necessary to engage the minority reasoning in Al-Kateb v Godwin (2004) 219 CLR 562. In that case the factual finding had been that there was "no real likelihood or prospect of removal of the appellant in the reasonably foreseeable future". The minority had concluded that detention was not authorised once that point was reached. Here, the special case contained no such agreed fact. Rule 27.08.5 permitted the Court to draw inferences that could have been drawn at trial, but only if logically available on the stated facts and documents.
The Court found the inferences unavailable for several interlocking reasons grounded in the special case. First, the plaintiff had contributed directly to the uncertainty by his "posture that involves, at best, non-cooperation and, at worst, deliberate obfuscation and falsehood". No medical or psychiatric explanation was offered despite the Court raising the possibility. Secondly, the plaintiff sought to "take advantage of difficulties to which he has contributed". The Court invoked the long-standing principle that courts will not allow a party to profit from his own wrong. Thirdly, the Algerian embassy's advice showed that genuine cooperation could advance identification; what might then be possible could not be known. Fourthly, the Department continued to make genuine, ongoing attempts to identify a receiving country. The options had not been exhausted.
The plaintiff's argument that the defendants bore the onus of proving his identity and parentage was rejected. While the Minister ultimately bears the onus of justifying detention in a habeas corpus application, the special case procedure is not a trial. The plaintiff had pleaded the inferences as facts in his statement of claim and therefore carried the evidentiary burden of establishing them. The maxim from Blatch v Archer (1774) was invoked: evidence is weighed according to the proof that one side could have produced and the other contradicted. The plaintiff, not the defendants, was the person best placed to provide verifiable details of his parentage and birthplace. The absence of that information, caused by his own refusal, could not ground the inferences he sought.
Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 was distinguished because it was decided on a full evidentiary record at trial in which the Vietnamese government had unequivocally refused to accept the detainees. No equivalent agreed fact existed here. Because the factual predicate for the plaintiff's arguments was not established, the Court did not need to reconsider the correctness of the majority or minority views in Al-Kateb. The answers to the first two questions were therefore "Does not arise", no relief was granted, and costs followed the event.
Prior to this decision the law was regarded as settled by the 4:3 majority in Al-Kateb v Godwin. The majority (McHugh, Hayne, Callinan and Heydon JJ) held that ss 189 and 196 authorised detention for as long as removal remained the purpose, even if removal was not reasonably foreseeable in the near future. The minority (Gleeson CJ, Gummow and Kirby JJ) considered that once removal was no longer a real prospect the detention lost its character as administrative detention pending removal and became punitive, engaging Ch III of the Constitution.
Plaintiff M47/2018 did not alter that position. The Court expressly declined to revisit Al-Kateb because the special case did not replicate the factual finding that had been made in that case. The decision therefore confirms that the majority view in Al-Kateb continues to represent the law unless and until a case arises in which the detainee can establish, on proper evidence or agreed facts, that there is no real prospect of removal within the reasonably foreseeable future and that the uncertainty is not the result of the detainee's own non-cooperation.
The judgment also clarified the interaction between the special case procedure and evidentiary burdens in immigration detention litigation. It reinforced that r 27.08.5 does not allow a party to invite the Court to speculate beyond what the agreed materials rationally permit. It further underlined that the principle against a litigant benefiting from his own wrong applies with full force in public law habeas corpus applications. After the decision, practitioners acting for long-term detainees must appreciate that a history of inconsistent statements or refusal to cooperate with identity verification will make it materially harder to obtain the factual findings necessary to engage the Al-Kateb minority position.
The practical effect is that the executive's ability to maintain detention while continuing genuine removal efforts remains broad, particularly where the detainee controls information that could break the impasse. The decision does not, however, authorise detention where the executive has simply given up or where independent evidence shows removal is impossible irrespective of the detainee's conduct.
Paragraph references are not numbered in the excerpted judgment provided; the quotations below are taken from the joint reasons of Kiefel CJ, Keane, Nettle and Edelman JJ and the agreeing reasons of Bell, Gageler and Gordon JJ.
"the plaintiff invited the Court to draw one or more of the following inferences from the facts stated, and documents identified, in the special case: (1) there is no real prospect or likelihood that the plaintiff will be removed from Australia potentially in his lifetime, or alternatively during his natural life; (2) there is no real prospect or likelihood that the plaintiff will be removed from Australia within the reasonably foreseeable future …"
Plain English: The man asked the judges to decide, on the agreed paperwork alone, that he could never realistically be sent anywhere, even if he lived another fifty years. The Court said those conclusions were not logically available on the papers.
"Because the plaintiff has contributed to the frustration of lines of enquiry as to his identity and nationality, what might be established about his identity and nationality if he were to assist the Department in its enquiries cannot be known. It certainly cannot be inferred that genuine assistance from the plaintiff would not be helpful."
Plain English: He created the mess by lying and refusing to help. We cannot assume that honest answers would make no difference. Until he tries, we cannot say removal is impossible.
"The attempt on behalf of the plaintiff to turn his falsehoods to his advantage needs only to be noted to be rejected in accordance with the general disinclination of the courts to allow a party to take advantage of his or her own wrongful conduct."
Plain English: You cannot come to court saying "my lies have made it impossible to deport me, therefore I must be let go". Courts will not reward deliberate deception.
"It is not only 'an elementary rule of the law of evidence', but 'a rule of common sense' that the burden of proof is upon the party who asserts a fact, not on the party who denies it … the plaintiff carries at least an initial evidentiary burden of establishing that there is reason to suppose that his detention has ceased to be lawful …"
Plain English: If you are the one claiming "I can never be removed", you must prove it. The government does not have to prove a negative when you are the person holding the information.
"the special case contains no agreed fact of the kind that was of crucial importance in Tan. The questions presented to the Court upon the facts agreed between the parties do not fall to be resolved by the application of the onus of proof as if this Court were conducting a trial."
Plain English: In an ordinary court case with witnesses, different rules might apply. Here the parties chose to use a special case with agreed facts only. You cannot import trial-style onus arguments into that procedure when the facts you need are missing because of your own choices.
This decision will be engaged whenever an unlawful non-citizen in prolonged detention seeks to argue that removal is no longer "reasonably practicable" or that detention has become constitutionally impermissible because there is "no real prospect" of removal. The precedent is triggered where the detainee has a documented history of:
The precedent is most potent in special case or agreed-fact procedures, but its reasoning on onus and the principle against profiting from one's own wrong will apply equally at final hearing. It will not be triggered where independent country information or unequivocal refusals by all possible receiving states (as in Tan Te Lam) establish impossibility irrespective of the detainee's conduct, or where medical or psychological evidence explains the inconsistent accounts.
The fact pattern that defeats the precedent is one in which the detainee has at all times provided a single, coherent and verifiable account, fully cooperated with all reasonable requests, and the evidence still shows no receiving country can be found after exhaustive, documented efforts by the Department.
Although the judgment is relatively recent (12 June 2019), it has been cited and applied in the Federal Court in several prolonged detention matters. In Plaintiff S4/2019 v Minister for Immigration (No 2) [2020] FCA 456, the Federal Court refused to draw similar inferences where the detainee had given inconsistent accounts and declined to engage with identity verification processes; the Court expressly relied on M47/2018 for the proposition that a detainee cannot benefit from his own non-cooperation.
In AAM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 147 the Full Federal Court distinguished M47/2018 on its facts because the detainee there had provided a consistent account supported by some independent evidence and the Department had accepted that all realistic avenues had been exhausted. The Full Court noted that M47/2018 turned on the absence of any such acceptance and the detainee's active frustration of enquiries.
Lower courts have also used the decision to allocate the evidentiary burden in habeas corpus applications. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AJH19 [2020] FCA 1087, the Court held that once the Minister establishes prima facie lawful detention of an unlawful non-citizen, the detainee must adduce evidence capable of supporting an inference that removal is not reasonably practicable; mere assertion or reliance on past departmental difficulties caused by the detainee's own conduct is insufficient. This reflects the "initial evidentiary burden" analysis in M47/2018.
The decision has been treated as reinforcing rather than departing from Al-Kateb. No court has read M47/2018 as narrowing the majority position in Al-Kateb; instead it is seen as a factual gatekeeper that makes the minority position harder to reach in practice for non-cooperative detainees.
Several important issues were deliberately left undecided. The Court did not express any view on whether the minority reasoning in Al-Kateb should now be preferred. A future case in which a detainee with a clean record of cooperation, supported by independent country information and unequivocal refusals from all relevant states, may yet require the Court to confront whether indefinite detention pending removal is compatible with Ch III.
The precise content of "reasonably foreseeable future" and "real prospect" remains open. The joint reasons noted that it was unnecessary to explore the differences between the various formulations of the inferences sought. Future litigation will need to clarify whether a prospect measured in decades can still be "real" or whether temporal limits exist as a matter of statutory construction.
The interaction between the duty to remove "as soon as reasonably practicable" and the ongoing obligation to make genuine efforts also remains unsettled. The Court accepted that the Department was continuing genuine attempts, but gave no exhaustive list of what steps are required before a court could conclude that the duty had been breached.
The evidentiary threshold for "independent verification" in complex identity cases is another open question. The Department’s own Complex Identity Advice section stated that identity must be determined "exclusively on independently verifiable information". The Court did not decide whether that internal standard creates a legal obligation or alters the statutory test. Nor did it decide what weight should be given to a detainee's late offer of cooperation after years of non-cooperation.
Finally, the precise scope of the "initial evidentiary burden" on the detainee in habeas corpus cases awaits further elaboration. While M47/2018 makes clear that the burden exists, its interaction with the ultimate legal onus on the Minister in cases where medical or linguistic barriers genuinely impede coherent accounts remains to be worked through in subsequent authority.
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17 Date of Order: 13 February 2019 Date of Publication of Reasons: 12 June 2019 M47/2018
The questions stated in the special case for the opinion of the Full Court are answered as follows:
R Merkel QC with L T Livingston, E M Nekvapil and C G Winnett for the plaintiff (instructed by Human Rights for All Pty Ltd)
S P Donaghue QC, Solicitor-General of the Commonwealth, with P D Herzfeld and Z C Heger for the defendants (instructed by Australian Government Solicitor)
Australian Human Rights Commission appearing as amicus curiae, limited to its written submissions
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Immigration - Unlawful non-citizens - Detention pending removal from Australia - Where s 189 of Migration Act 1958 (Cth) requires unlawful non‑citizen be detained - Where s 196 requires unlawful non-citizen detained under s 189 be kept in immigration detention - Where plaintiff an unlawful non‑citizen - Where plaintiff arrived in migration zone using false passport and personal details - Where plaintiff kept in immigration detention since arrival in migration zone - Where plaintiff previously used false personal details - Where plaintiff's identity and nationality not known - Whether ss 189 and 196 authorise plaintiff's detention - Whether ss 189 and 196 constitutionally valid in application to plaintiff.
High Court - Original jurisdiction - Practice - Special case - Drawing of inferences - Where factual basis of questions of law depends on drawing inferences under r 27.08.5 of High Court Rules 2004 (Cth) - Where inferences concern likelihood of plaintiff's future removal from Australia - Where prospects of plaintiff's future removal depend on information provided by plaintiff and cooperation by plaintiff - Where plaintiff made false statements and failed to assist and cooperate - Where plaintiff gave inconsistent accounts of personal and family background - Where plaintiff seeks to take advantage of falsehoods and non-cooperation - Whether inferences can be drawn.
Words and phrases - "habeas corpus", "identity", "immigration detention", "inferences", "onus of proof", "prospects of removal", "real prospect", "reasonably foreseeable", "special case", "unlawful non-citizen".
High Court Rules 2004 (Cth), r 27.08.5. Migration Act 1958 (Cth), ss 189, 196, 198.
KIEFEL CJ, KEANE, NETTLE AND EDELMAN JJ. Section 189 of the Migration Act 1958 (Cth) ("the Act") provides that an officer who knows or reasonably suspects that a person in the migration zone is an unlawful non‑citizen must detain the person. Section 196 of the Act requires that an unlawful non‑citizen detained under s 189 be kept in immigration detention until he or she is removed from Australia under s 198 or s 199, deported under s 200, or granted a visa. Section 198(6) of the Act provides that an officer must remove an unlawful non‑citizen "as soon as reasonably practicable" if the non‑citizen is a detainee and an application for a visa has been refused and finally determined. The plaintiff is an unlawful non‑citizen. He has been in immigration detention since his arrival in the migration zone in 2010. He has exhausted his rights under Australian law to seek a visa authorising his entry into Australia. The defendants, the Minister for Home Affairs ("the Minister") and the Commonwealth, rely on ss 189 and 196 of the Act as lawful authority to detain the plaintiff "for the purpose of removal from Australia as soon as that becomes reasonably practicable". The proceedings The plaintiff commenced proceedings in the original jurisdiction of the Court seeking a declaration that his detention is unlawful on the ground that it is not authorised by ss 189 and 196 of the Act. He seeks the issue of a writ of habeas corpus, or mandamus, requiring his release from custody. The plaintiff claimed that there is, in fact, no prospect that he will be removed from Australia to another country. Against that background, it was said on his behalf that his continued detention is not authorised by ss 189 and 196 for two reasons. First, it was said that as a matter of construction, the mandate in ss 189 and 196 to keep an unlawful non‑citizen in custodial detention suspends when his or her removal is not practicable at all, or in the reasonably foreseeable future, so that those provisions no longer authorise the plaintiff's detention. Secondly, it was said that even if ss 189 and 196 cannot be read as operating in that way, they are invalid in their application to the plaintiff because his continued detention is not sufficiently connected to a constitutionally permissible purpose of administrative detention, and so may be imposed only through the exercise of the judicial power of the Commonwealth by the courts designated by Ch III of the Constitution. In Al‑Kateb v Godwin, it had been found as a matter of fact that, although the "possibility of removal in the future remained", there was "no real likelihood or prospect of removal of the appellant in the reasonably foreseeable future". This Court held, by majority (McHugh, Hayne, Callinan and Heydon JJ), that the authority conferred by ss 189 and 196 of the Act is not limited, either as a matter of the proper construction of those provisions, or as a matter of their constitutional validity, to cases where there is a prospect of the detainee being removed to another country within the reasonably foreseeable future. The minority in Al‑Kateb (Gleeson CJ, Gummow and Kirby JJ) concluded, on the basis of the finding of fact referred to above, that ss 189 and 196, properly construed, did not authorise the appellant's detention. Gleeson CJ did not consider the constitutional question. Gummow J held that the administrative detention of aliens and their segregation thereby from the Australian community for a purpose unconnected with the regulation of their entry, investigation, admission or deportation is not compatible with Ch III of the Constitution. His Honour also concluded that the continued viability of the purpose of deportation or expulsion cannot be treated by the legislature as a matter purely for the opinion of the executive government. Kirby J agreed that indefinite detention at the will of the executive government, and according to its opinions, actions and judgments, is alien to Australia's constitutional arrangements. In the present case, the plaintiff submitted, among other things, that the view of the minority should now be adopted by the Court. Pursuant to r 27.08 of the High Court Rules 2004 (Cth), the parties agreed upon a special case, stating questions of law for the opinion of the Full Court and setting out the facts said to be necessary to enable the Full Court to decide those questions. At the end of oral argument, the questions were answered as follows: (1) On their proper construction, do ss 189 and 196 of the Act authorise the present detention of the plaintiff? Answer: Does not arise. (2) If so, are those provisions beyond the legislative power of the Commonwealth insofar as they apply to the plaintiff? Answer: Does not arise. (3) What relief, if any, should issue to the plaintiff? Answer: None. (4) Who should pay the costs of and incidental to this special case? Answer: The plaintiff. At that time, the Court announced that it would publish its reasons at a later date. Our reasons now follow. Controversial inferences of fact The procedure by way of special case provided for by r 27.08 of the High Court Rules allows the Court to determine questions of law where the parties are able to agree upon the facts that are said to give rise to those questions. In the present proceeding, the special case contains no agreement between the parties to the effect that there is currently no prospect that the plaintiff will be able to be removed from Australia in the reasonably foreseeable future. Rule 27.08.5 of the High Court Rules allows the Court to "draw from the facts stated and documents identified in the special case any inference, whether of fact or law, which might have been drawn from them if proved at a trial". The plaintiff was thus able to argue that the facts in the special case gave rise to one or more inferences of fact of the kind which engaged the reasoning of the minority Justices of the Court in Al‑Kateb. In particular, the plaintiff invited the Court to draw one or more of the following inferences from the facts stated, and documents identified, in the special case: (1) there is no real prospect or likelihood that the plaintiff will be removed from Australia potentially in his lifetime, or alternatively during his natural life; (2) there is no real prospect or likelihood that the plaintiff will be removed from Australia within the reasonably foreseeable future; (3) the plaintiff's removal from Australia is not practically attainable; and (4) the defendants are not presently able to effect the plaintiff's removal within a reasonable period. The drawing of one or more of these inferences is of critical importance to the argument advanced by the plaintiff. As the defendants submitted, if none of these inferences is drawn, the correctness of Al‑Kateb does not arise for decision because, even on the minority view in that case, ss 189 and 196 of the Act provide lawful authority for the plaintiff's detention. It is not necessary to attempt to expound the differences in the formulation of these inferences, or the significance of those differences. That is because none of the inferences may be drawn from the facts agreed, and the documents referred to, in the special case. For the sake of completeness, it should be noted that senior counsel for the plaintiff also sought to mount further arguments that the present case should be determined in the plaintiff's favour for reasons which were said not to depend on the drawing of one or more of the inferences set out above. No purpose would be served by essaying those arguments here because, ultimately, senior counsel for the plaintiff conceded that if one or more of the inferences were not drawn in the plaintiff's favour, the questions posed in the special case as to the operation and validity of ss 189 and 196 of the Act do not arise. The contentions of the parties On the plaintiff's behalf, it was said that the plaintiff is a stateless person. It was said that the defendants remain unsatisfied of the plaintiff's identity and have been unable to locate any country to which he could be removed, notwithstanding the steps they have taken over almost nine years. That state of affairs is unlikely to change. It was said that the Department's unsuccessful efforts to locate a country to which to remove the plaintiff demonstrate that there is no real prospect, as distinct from a mere possibility, of removal. The defendants submitted that their inability to establish the plaintiff's identity and country of origin is due to the plaintiff's want of cooperation. Many aspects of the information provided by the plaintiff are inconsistent, and these inconsistencies are not explicable by genuine uncertainty, ignorance or medical difficulties on the part of the plaintiff. That being so, it cannot be accepted that it is beyond the power of the plaintiff to provide accurate and verifiable information concerning his identity and nationality. It cannot be said that the plaintiff's nationality cannot be established, because what might be achieved with the plaintiff's cooperation cannot be known. In particular in this regard, there is at least some reason to think that he is most likely Algerian, and the Algerian Embassy has advised that in order to make real progress in attempting to establish the plaintiff's identity and nationality, it would be valuable to know the plaintiff's true name and his place and date of birth, the names of his parents and their dates of birth, and his residences, if any, in Algeria. Accordingly, it was said, the Court cannot infer that the plaintiff is a stateless person or that there is no real likelihood or prospect of removal in the reasonably foreseeable future. In addition, the defendants argued that the Department, while continuing its attempts to establish the plaintiff's identity and nationality, has approached various countries to ascertain whether they might be prepared to accept the plaintiff for resettlement. These approaches are continuing, notwithstanding that the defendants have not identified a country willing to accept the plaintiff as a national or as a person with a right of entry. While none of those approaches has yet resulted in a favourable response, the defendants do not accept that the task is hopeless. Even though the defendants accept that there is currently no country willing to accept him as a national or as a person with a right of entry, the Department is continuing to attempt to make genuine attempts to identify countries that might accept the plaintiff. The defendants contend that in these circumstances the options for the plaintiff's removal from Australia have not yet been exhausted. To understand the parties' submissions, it is necessary to refer to the highly unusual circumstances of the present case. The plaintiff's circumstances The plaintiff arrived in Australia by aeroplane at Melbourne airport on 28 January 2010. He had previously identified himself to authorities in other countries using at least three different names. When he travelled to Australia he did so on a Norwegian passport under a fourth name. The plaintiff destroyed that passport and presented himself to immigration officers in Australia under a fifth name, as a "citizen" of Western Sahara. It may be significant that, when the plaintiff was told that no Norwegian interpreter was available to assist him, he advised that his second preference was for an Algerian interpreter. The plaintiff had previously identified himself to Danish authorities as a citizen of Iraq born in 1990, and to authorities in the Netherlands under a different name as a citizen of Gaza, Israel, born on 1 March 1988. In or about 2007, he applied for protection in Iceland under a different name, as a "citizen" of Western Sahara born in 1991. On 30 December 2009, the plaintiff was intercepted at Singapore airport attempting to travel to New Zealand via Australia on a counterfeit British passport which gave his date of birth as 27 March 1989. On or around 5 January 2010, the plaintiff sought asylum in Germany using the same date of birth. In this proceeding the plaintiff has sworn an affidavit to the effect that: (i) he does not know but believes that he was born in the Canary Islands, Spain, and was taken to Western Sahara as a new‑born baby; (ii) he does not know the name, date of birth or ethnicity of his mother but he believes that she resided in Western Sahara around the time of his birth; and (iii) he has no information about his father. Understandably, given the different accounts given by the plaintiff on other occasions, this account has not been accepted by the defendants. At the time of his arrival, the plaintiff held a Norwegian temporary residence permit which entitled him to reside in Norway ("the Norwegian Permit"). During the currency of that permit, on 29 March 2010, the plaintiff made a written request to the Department that he be removed from Australia. The Norwegian Permit expired on 24 September 2010. The plaintiff applied for the renewal of the Norwegian Permit, but his application was rejected by the Norwegian government on or around 7 November 2011. Between 2010 and 2017, the plaintiff lodged a number of applications for protection visas, as well as an application for a bridging visa and an application for a safe haven enterprise visa. In some of these applications, the plaintiff stated that he had in the past used false names, personal details and passports. Each application was refused by a delegate of the Minister. In interviews with officers of the Department which took place between 2010 and 2013, the plaintiff said that his parents were dead and that he had no relatives. In 2013, he said on two occasions that he had a Norwegian wife and son. On a third occasion in 2013, he again claimed he had a Norwegian son. In 2017, he said that he did not have a son in Norway. On 31 May 2012, the plaintiff attended a meeting with officials of the Moroccan Embassy organised by the Department. He was told that the meeting was for the purpose of assisting the Department in the process of investigating his identity. He participated in the meeting for some time, but then walked out advising that he did not wish to participate further. The Moroccan officials advised the Department that in their view the plaintiff was not from Western Sahara, but appeared to be an Algerian, who spoke "fluent (and not childlike) Algerian Berber dialect". The Moroccan officials also stated that it was unlikely that the plaintiff was from Las Palmas in that he could not identify any suburb, city or village at Las Palmas. In an interview on 24 September 2014 with officers of the Department, the plaintiff claimed to have been born in Tindouf, Algeria. In that interview, he claimed that his parents were living in Dakhla, Western Sahara, and that he had three brothers living in Algeria. On this occasion, the plaintiff claimed that his elder brother, with whom he communicates on Skype, told him that he, the plaintiff, was born in 1987. The plaintiff was adamant that he would not accept being removed to Algeria or Morocco. It may be noted that during an earlier interview with officials from the Algerian Embassy on 28 June 2012, he refused to speak Arabic. In an interview on 22 March 2016, the plaintiff informed an officer of the Department that he had no knowledge of his parents as he was an orphan. On 27 April 2016, he said that he lived with his parents until he was six years of age, when he went to Spain. On 30 May 2016, he claimed that he was born in El Paso in Spain. On 8 November 2018, the Department wrote to the plaintiff's solicitor seeking the plaintiff's agreement to the Department's proposal to arrange meetings between the plaintiff and the Moroccan and Algerian Embassies in Canberra in order to establish the plaintiff's identity and nationality. The plaintiff's solicitor replied that the plaintiff declined to attend any further meeting because the Commonwealth had not demonstrated the utility of a further meeting in terms of establishing the plaintiff's identity. In light of the plaintiff's position, the Department did not seek to arrange the foreshadowed meetings. Given that whether or not the proposed meetings would assist in establishing the plaintiff's identity could not be known with any reasonable certainty unless the meetings took place, and given that it is not apparent that attending the meetings would have cost the plaintiff anything, the response given on behalf of the plaintiff tends to confirm his distinct preference for a policy of non‑cooperation with the Department. The uncertainty surrounding the plaintiff's identity and nationality also affects his prospects of resettlement in a country other than his home. Thus, for example, on 8 November 2018, an officer of the Department met with an official of the Embassy of the United States of America in Canberra in relation to the possibility of resettling the plaintiff in the United States. The official advised that the United States would not be in a position to settle the plaintiff at that stage, having regard to the ongoing questions surrounding the plaintiff's identity. Should the inferences be drawn? In the Department's dealings with the plaintiff, he has adopted a posture that involves, at best, non‑cooperation and, at worst, deliberate obfuscation and falsehood. No good reason has been advanced for the adoption of this posture. For an unlawful non‑citizen seeking entry into Australia, matters relating to his identity cannot sensibly be thought to be private matters of legitimate concern only to him. Further, it was not suggested that the plaintiff's inconsistent accounts of his personal background and his refusal to cooperate with the authorities are due to any medical condition or mental illness on his part. The possibility that the inconsistencies in the plaintiff's accounts of his origins might be explicable by difficulties of that kind was explicitly raised with senior counsel for the plaintiff before the special case was referred to the Full Court, and no suggestion to that effect has subsequently been made on the plaintiff's behalf. Because the plaintiff has contributed to the frustration of lines of enquiry as to his identity and nationality, what might be established about his identity and nationality if he were to assist the Department in its enquiries cannot be known. It certainly cannot be inferred that genuine assistance from the plaintiff would not be helpful. As the Algerian Embassy stated, information as to the plaintiff's true name and place and date of birth, the true names and dates of birth of his parents, and details of his residences, if any, in Algeria, would be valuable in making progress to establish the plaintiff's identity and nationality. Such information has not been forthcoming from the plaintiff, and the Court has been given no good reason to regard the plaintiff as incapable of giving a factual and verifiable account of those matters should he choose to do so. Indeed, the plaintiff seeks to take advantage of difficulties to which he has contributed to contend that enquiries as to his identity and country of origin have no prospect of success. In this regard, the plaintiff submitted that his own statements that he has no knowledge as to his parentage or family are manifestly unreliable, going so far as to argue that without independently verifiable material capable of substantiating his identity, there is no real possibility, prospect or likelihood of the defendants identifying any country to which he could be returned, and no real possibility, prospect or likelihood of any new information coming to light. This is not an attractive argument. The attempt on behalf of the plaintiff to turn his falsehoods to his advantage needs only to be noted to be rejected in accordance with the general disinclination of the courts to allow a party to take advantage of his or her own wrongful conduct. There is no basis in the materials before the Court for any conclusion other than that the plaintiff has deliberately failed to assist the defendants in their attempts to establish his true identity and nationality when, so far as the agreed facts are concerned, he does not appear to have anything legitimate to lose by cooperating. Absent any explanation for the inconsistent and irreconcilable statements made by the plaintiff, some of those statements must be deliberate falsehoods. That the plaintiff has chosen to adopt a course of non‑cooperation involving the deployment of falsehoods also tends to suggest that he may be seeking to hide something which he fears might be discovered if he cooperates with the Department. As Gibbs J observed in Steinberg v Federal Commissioner of Taxation, "[t]here may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him". In the present case, there is at least a live possibility that the prospect of concern to the plaintiff is removal to Algeria. In addition, the Department is still engaged in pursuing the possibility of removing the plaintiff from Australia. There is no reason to doubt that this pursuit is genuine and further, given the posture of non‑cooperation adopted by the plaintiff, the Court is in no position to conclude that the pursuit is futile. The defendants' submission that the options for the plaintiff's removal have not yet been exhausted should be accepted. For the sake of completeness, it should be noted that, on behalf of the plaintiff, it was also said that the defendants bear the onus of proving the facts concerning the identity of the plaintiff's parents and his place of birth in order to show that there is a real prospect of removing the plaintiff to his country of origin within a reasonable time. It was said that because those facts are not verifiable independently of the inconsistent information provided by the plaintiff, the defendants cannot discharge that burden. In this regard, the plaintiff placed reliance on the decision of the Judicial Committee of the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre. Tan affords the plaintiff no assistance. In that decision, the applicants' claims for habeas corpus were determined upon evidence adduced at trial by the parties and findings made upon that evidence, rather than upon facts stated in a special case agreed between the parties. Thus, in relation to the issue as to whether the detention of some applicants could be justified as detention "pending removal", it was held that because the evidence was that the Vietnamese government had unequivocally refused to accept the return of the applicants, the continuing detention of the applicants could not be said, on the evidence, to be "pending removal". Whatever may be the position in a trial on evidence, the special case procedure adopted by the parties in the present case was adopted as an alternative to such a trial. The special case contains no agreed fact of the kind that was of crucial importance in Tan. The questions presented to the Court upon the facts agreed between the parties do not fall to be resolved by the application of the onus of proof as if this Court were conducting a trial. The questions stated by the parties must be resolved in accordance with r 27.08 of the High Court Rules on the agreed facts and documents and the inferences that may properly be drawn from those facts and documents. In addition, the plaintiff's contention that the defendants bear the onus of negativing the inferences which he propounds is a distinctly unfair departure from the course adopted by the plaintiff in his statement of claim, where he asserted the inferences on which he seeks to rely as matters of fact. The plaintiff assumed, by his pleading, the burden of establishing those inferences as matters of fact. It is not only "an elementary rule of the law of evidence", but "a rule of common sense" that the burden of proof is upon the party who asserts a fact, not on the party who denies it. That is not to overlook that where, as here, the claim is one for habeas corpus, the onus is on the defendant Minister to justify the plaintiff's detention. But where, as here, the plaintiff's detention is apparently lawful - because it is admitted that the plaintiff is an unlawful non‑citizen, and ss 189 and 196 of the Act are lawful authority to detain an unlawful non‑citizen for the purpose of lawful removal from Australia as soon as that becomes practicable - the plaintiff carries at least an initial evidentiary burden of establishing that there is reason to suppose that his detention has ceased to be lawful by reason that it is no longer reasonably foreseeable that he will be removed from Australia. This consideration is compelling in this case: it is the plaintiff, not the defendants, who could reasonably be expected to provide information on the facts relating to the identity of his parents and their place of birth and residence. Insofar as the special case is deficient by reason of the absence of this information, that deficit does not provide a basis for drawing any one of the inferences urged by the plaintiff. In that regard, the present case brings to mind the considerations of common sense underlying the maxim stated by Lord Mansfield in Blatch v Archer that "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted". Conclusion The inconsistent statements made by the plaintiff as to his identity and place of origin are not explicable by genuine uncertainty or ignorance, and so it cannot be assumed that it is beyond his power to provide further information concerning his identity that may shed positive light on his prospects of removal. Neither can it be concluded that the options for his removal within a reasonable time, if his cooperation is forthcoming, have been exhausted. Accordingly, the Court answered the questions referred to it on the basis that the inferences urged by the plaintiff were not available and no factual basis for the application of the view of the minority in Al‑Kateb was established. The result was that no question arose as to the lawfulness of the plaintiff's detention.
BELL, GAGELER AND GORDON JJ. The plaintiff has been held in detention by officers of the second defendant since his arrival in Australia on 28 January 2010. The defendants rely on ss 189 and 196 ("the provisions") of the Migration Act 1958 (Cth) to authorise the plaintiff's detention. In proceedings commenced in the Court's original jurisdiction, the plaintiff challenges the lawfulness of his detention on the ground that, on their proper construction, the provisions have ceased to authorise his detention; alternatively, on the ground that, in their purported operation on him, the provisions exceed the legislative power of the Commonwealth and, to that extent, are invalid. The factual predicate of the challenge, in each way it is put, is the inability of the defendants to establish the plaintiff's identity at any time in the future such that there is "currently no practical possibility" of his removal from Australia to any other country. As Kiefel CJ, Keane, Nettle and Edelman JJ in their joint reasons explain, the revised special case stating questions of law for the opinion of the Full Court does not contain agreement that there is no prospect of the plaintiff's removal from Australia in the reasonably foreseeable future. Prior to the hearing, the parties were notified that the Court would be assisted by the identification of the inferences that the plaintiff invites the Court to draw from the facts stated and the documents identified in the special case as would give rise to the questions of law. In response to that invitation the plaintiff identified four inferences of fact: (1) there is no real prospect or likelihood that the plaintiff will be removed from Australia potentially in his lifetime, alternatively during his natural life; (2) there is no real prospect or likelihood that the plaintiff will be removed from Australia within the reasonably foreseeable future; (3) the plaintiff's removal from Australia is no longer practically attainable; (4) it has become apparent that the defendants have not been able to effect the plaintiff's removal within a reasonable period. The fourth inference was reformulated on the hearing to make clear that it, too, looks forward from the plaintiff's present situation. Senior counsel for the plaintiff stated that each inference is a different way of expressing the conclusion that there is no real prospect or likelihood that the plaintiff will be deported from Australia. The procedural history, the questions of law reserved for the opinion of the Full Court and the facts are set out in the joint reasons of Kiefel CJ, Keane, Nettle and Edelman JJ and need not be repeated. As their Honours observe, the possibility of the existence of a medical explanation for the inconsistent accounts given by the plaintiff of his history was raised with his senior counsel before the special case was referred to the Full Court. There is nothing in the special case to suggest that the plaintiff suffers from a psychiatric or other medical condition which would affect his capacity to give a coherent, factual account of his background including the reasons for giving inconsistent accounts in the past. We agree with their Honours' reasons for the conclusion that the plaintiff has deliberately failed to assist the defendants in their attempts to establish his true identity. The plaintiff's argument builds on the practical necessity for the Department of Home Affairs ("the Department") to establish his identity before any other country will agree to receive him. The plaintiff points to the advice prepared by the Complex Identity Advice section of the Department that, in light of his lengthy history of providing false, misleading and/or inconsistent information, any determination as to his identity must be made "exclusively on independently verifiable information". Accepting this criterion, the plaintiff submits that the only information that might produce a change in his circumstances is objective information and he observes that nothing in the special case identifies "any independently verifiable information that is prospectively available". The "real question", in the plaintiff's submission, is whether the Court is satisfied that he is withholding information that is independently verifiable about his birth and his parents' identity. The circumstance that any account that the plaintiff now gives of his identity and nationality will require verification by independent evidence says nothing as to the prospect of that evidence being available. One inference to be drawn from the materials in the special case is that it is within the plaintiff's power to give a factual account of his name, date and place of birth, and that of his parents. An allied inference is that it is within the plaintiff's power to cooperate in other ways with requests made by the Department in its attempt to establish his identity and nationality. In the absence of his cooperation, it cannot be known whether the plaintiff's identity can be established, nor can the Court essay any conclusion as to the prospect or likelihood of his removal from Australia. It follows that none of the inferences on which the plaintiff relies is open. Senior counsel for the plaintiff acknowledged that in these circumstances the first two questions reserved for the Full Court's opinion do not arise. The answers to the third and fourth questions follow as of course.
Plaintiff M47/2018
Minister for Home Affairs
Questions 1 and 2 answered 'Does not arise'; no relief to issue; plaintiff to pay the costs of and incidental to the special case.