The circumstances here in more detail and the policy of the Department
22 Some further detail about the applicant's circumstances and some history as to the development of the Minister's and Department's procedures must be set out to ameliorate what might otherwise be conclusions to be drawn from the bald facts set out above.
23 The applicant is a Tamil born in Jaffna in November 1990. He arrived in Australia by boat on 1 December 2011. He applied for a protection obligation evaluation on 21 January 2012. This was referred to an independent protection assessor. In May 2012, the applicant was granted a temporary safe haven visa under s 195A of the Act. On 27 September 2012, the assessor recommended that the applicant not be recognised as a person to whom Australia has protection obligations, providing a 32 page statement of reasons for the recommendation. The applicant sought judicial review of the assessor's decision in the Federal Circuit Court by application filed on 20 February 2013. The matter was heard and determined ex tempore on 23 April 2014 by a judge of that Court dismissing the application. The settled reasons of the judge were dated 5 May 2014.
24 The applicant's visa expired in September 2013. He remained at large in the community until 10 June 2014. He was, however, in contact with his case officer from time to time. In January 2014, in a discussion with his case officer, he was told that if his judicial review application failed, he would be required to leave Australia. After the Federal Circuit Court decision, the applicant discussed his circumstances with his case officer and told her that he was seeking the assistance of a lawyer. On 26 May 2014, the case officer told the applicant that if he was late with his court filing, he had to start making arrangements to leave Australia. The applicant said he understood this. On 3 June, the case officer spoke to the applicant and said that he was out of time with his application; that he was now expected to leave Australia; and that he may be detained for the purposes of removal. The applicant then filed on that same day (3 June) an application for an extension of time to file a notice of appeal. On 4 June, the applicant told his case officer that he had filed the application for an extension of time. The case officer said to him that, because of the nature of the application, he was viewed as having no on-going matters, that his case had been closed and that the expectation was that he make genuine arrangements to depart, otherwise he may be detained and removed. Thus, by 4 June, the applicant, who had said in May that he was going to consult a lawyer, was told on a number of occasions that if he was late with his judicial review application, he may be removed from Australia. What was not made explicit, however, was that if the applicant wished to prevent removal it was his responsibility to approach the Court for injunctive relief.
25 At this point, it is important to understand the policy of the Department. That policy, entitled "PAM3: Act - Compliance and Case Resolution: Returns and Removals: Removal from Australia", was in evidence. Under that policy, as a general rule, no removal would occur if there was an unfinalised matter before a merits review tribunal, or if there was an entitlement to seek judicial review (that is if a time for review had not expired) or if the person was seeking judicial review. There were policy exceptions to these general rules such as a person presenting an extreme risk of harm. Other exceptions were as follows:
[T]he person has a history of serial and vexatious litigation and is considered unlikely to succeed in judicial review. This may be evidenced by attempts to repeat or reopen judicial appeal after review options have been exhausted, failed attempts to seek court injunctions to stay removal.
Litigation Branch has advised that the Department has reasonable prospects of defending an injunction application (to prevent removal) having regard to the particular set of facts and circumstances surrounding judicial review.
(The latter of these quoted exceptions was utilised in this case).
26 The same policy document provided for the giving of notice to persons to be removed. The policy was directed to persons in detention. The applicant was taken into immigration detention on 10 June 2014. Prior to that, on 5 June, in a telephone conversation with his case officer, he was told that because his application to appeal was out of time, he was expected to depart immediately. The case officer noted on that occasion that he was argumentative.
27 On being taken into detention on 10 June, the applicant was given a "Detainee Induction Pack" which contained, amongst other things, an information sheet for free legal services in Sydney.
28 To return to the policy: Departmental officers are required to remind persons in detention that the law requires the Department to remove them as soon as reasonably practicable. The policy also provided for minimum notice of removal, as follows:
Removal officers must provide a person with as much notification as possible of their planned removal date. Notification should occur at least seven days prior to removal to allow the person time to raise concerns about their planned removal. Removal officers should consider any concerns raised by the person and, if necessary, escalate the case to their removals manager. Removal officers should also appropriately document the person's concerns and any resulting action on departmental systems.
29 The policy also provided for circumstances of notification of less than seven days, but more than 48 hours; and also of less than 48 hours.
30 On 4 June (before the applicant's detention) Mr Dwyer advised as follows:
This client's application to appeal (which was filed on 3 June) is out of time (by about 20 days). As such he requires an extension of time. In order to obtain an extension of time he would need to provide the court with a reasonable explanation for the delay in filing his proceedings (and with respect, his current explanation that he thought the appeal period was 31 days and he attended the court on 23 and 28 May (I assume in an attempt to lodge the appeal), do not appear to be acceptable) and he would need to satisfy the court that his proposed appeal is reasonably arguable. At the moment the proposed grounds of appeal are only generic and do not raise a specific error by the FCC that could be considered to be arguable.
It is possible that, if the client is detained and removal was progressed, that he would apply to the court for an injunction to prevent the removal. At the moment, I think we would be able to defend that application. But I can't rule out that we would not be injuncted (depending on the judge and if an arguable error is identified).
31 This advice satisfied the second quoted exception at [25] above. The policy in practice appears to be that if the application for judicial review or appeal was before the Court (whether filed in time or being heard) removal would not take place; but if the application was out of time and an extension of time was being sought, advice would be taken as to its merits and likelihood of success. If such advice was (as here) that it was unlikely to succeed and if the Department would likely be successful in resisting an injunction application, steps would be taken to remove the person giving such notice as the Department thought appropriate and seeking to comply with s 256.
32 As stated above, on Thursday, 19 June, the applicant was advised that he was to be removed the following Wednesday. The note of the meeting records that the applicant was requested to sign a "Request for Removal" form. He asked for a copy of the form; he said that he would discuss it with his lawyer, and that he would possibly sign it the next day. The note also records that he declined to provide details of his lawyer "at that stage". The record of the interview noted that the applicant was "polite and cooperative throughout the interview". Also on 19 June, an email was sent to the Court (see [3] above). As noted above, a copy was sent to an address given by the applicant. It was not clear whether the applicant had access to the computer or his emails in detention.
33 At this point, it is necessary to explain why the email was sent to the Court. Mr Dwyer, in his second affidavit, explained this. He said that he had made known to officers of the Department and solicitors retained on behalf of the Minister that, as a "minimum standard", the Court should be informed when the detainee is informed.
34 Mr Dwyer referred to five instances from 1 July 2013 to 30 June 2014 in which unlawful non-citizens were removed from Australia while having active litigation on foot. One of those matters was in the Federal Court and four in the Federal Circuit Court. It is unnecessary to go into the detail of them, except to say that in some, the Court was not informed, and that in two, an injunction was sought by the applicant (one proceeding being discontinued, an injunction being granted in another). In one proceeding, the Minister sought summary dismissal of the application for an extension of time. This last-mentioned proceeding came before Judge Nicholls in the Federal Circuit Court on 16 October 2013. At that hearing, the following exchange took place (according to a note in evidence):
His Honour was initially reluctant to proceed with the interlocutory hearing. He expressed the view that, in circumstances where s.198(6) of the Migration Act imposes a statutory obligation on the Department's officers to remove a person from Australia, the mere existence of extension of time proceedings (absent an injunction) provides no impediment to removal being effected. He queried the necessity of the interlocutory application and asked why the Court's resources should be directed to deciding the extension of time application today.
I responded that the Minister agreed with his Honour's view and that the interlocutory application was brought out of an abundance of caution, lest any criticism be levelled at the Department for removing the applicant whilst proceedings were on foot.
His Honour remained unpersuaded of the desirability of hearing the extension of time application today. However, the applicant indicated that he wanted the Court to prevent his removal from Australia. In the circumstances, his Honour decided that he most expedient course would be to determine the extension of time application as sought.
His Honour had read our written submissions and did not need to hear any further oral submissions why an extension of time should be refused. He asked questions of the applicant regarding the applicant's efforts to obtain legal representation and commence proceedings in the almost 9 months since the Tribunal's decision. The applicant's answers were consistent with the matters set out in the Removal of Interest Brief provided to us in connection with our removal file. However, none of those answers provided an acceptable explanation for the applicant's lengthy delay in commencing proceedings.
…
His Honour also made it clear that he expects the Department to adopt a consistent approach in how it deals with matters such as this. He noted that, in an AGS matter this morning, an applicant in a similar position was removed without the proposed removal first being brought to the Court's attention. He endorsed the approach taken in a previous matter in which the Court was notified in advance of a proposed removal.
His Honour's preferred approach differs from how we have handled similar matters in the past. We have usually sought to have such matters listed and disposed of urgently so that no criticism can be directed at the Department for removing a litigant with proceedings on foot - see e.g. the attachment judgment from 2011 (also given by Judge Nicholls). We were also told by High Court Deputy Registrar Grey last year that it was inappropriate to notify the Court of the proposed removal of a plaintiff in an original jurisdiction matter.
In view of his Honour's observations, the approach we propose to adopt in future extension of time applications in the Federal Circuit Court is to notify both the applicant and the Court in writing of any proposed removal. It will then be incumbent on the applicant to seek an injunction. The approach to be adopted in other courts, or where substantive judicial review proceedings are on foot, may differ. We will seek instructions accordingly on a case by case basis.
35 According to senior counsel for the Minister, what occurs in the Federal Circuit Court is that the Court is given notice of an impending and planned removal, and then, as a matter of urgency, the Court, of its own motion, lists the application that is pending before the Court for a hearing. It is to be noted that in 2012, the High Court Deputy Registrar told the Department that it was not appropriate to notify the Court of the proposed removal of a plaintiff in a matter in the original jurisdiction of the High Court.
36 Mr Dwyer also gave evidence of a number of other matters in both the Federal Circuit Court and the Federal Court in which injunctive proceedings were sought against removal once notification was made, in circumstances where there was litigation on foot. Mr Dwyer referred to 22 matters in the period 1 July 2013 to 30 June 2014, in 15 of which an injunction against removal was sought, nine being determined on the day of the application, four the day after, and the remaining two heard within three and five days.
37 It is appropriate at this point to say something of this practice. With respect to Judge Nicholls and to Mr Dwyer, the attitude of the Deputy District Registrar of the High Court is appropriate. The Court is not an adjunct of the Executive; nor does it act for, nor should it be seen to act for, or in the interests of, the applicant. One might ask rhetorically: What is the purpose of notifying the Court of the impending removal? If the answer is: so that the Court may, in the interests of the applicant, or for the sake of good order, promptly list the applicant's application and have her or him brought to Court to press the application, there is a danger that the Court is being seen to be directed by the Department as to the time and place for the exercise of judicial power. The function of the Court is to hear and determine controversies in the exercise of judicial power of the Commonwealth, brought before it by the parties. If there is no legal impediment to the person being removed from the country, it will be a matter for the person concerned to bring an application to restrain the Minister from removing the person from Australia. As has already been discussed, there is a duty upon the person holding the applicant in immigration detention to provide reasonable facilities for the obtaining of legal advice and the making of a relevant application. This duty includes the person being given a reasonable time to seek that advice and to make that application.
38 A further difficulty arises in relation to giving notice to the Court. If, as was done in this case, the person in detention is informed that the Court has been informed, there is a danger that the detainee will be encouraged to think that the Court will list the matter promptly for him or her. What other purpose in the communication to the Court might there be, in that person's eyes? Further, this is precisely what the Federal Circuit Court has apparently been doing. So if the Court, in the exercise of its administration, does not list the matter in time, and the detainee is removed, perhaps having been of the view that the Court will do something by way of listing her or his matter, the Court can be seen to be to blame for the applicant's predicament.
39 Whilst it may be perhaps understandable that Mr Dwyer thought it appropriate to tell the Court, that was no doubt because the action of removing the applicant might be seen as having a tendency to undermine the exercise of judicial power that is sought by the detainee, to the extent that an application was on foot for the making of an order in relation to his status. However, for the reasons given, that step is not appropriate.