SZSZM v Secretary, Department of Immigration and Border Protection

The applicant's case 32 In support of his application for an extension of time, the applicant says, in his affidavit made 28 December 2016, that he lacked knowledge of the appeal times and processes in the Federal Court in relation to the Act, and that it is difficult for him to have access to the "right knowledge and processes" while he remains detained in the Villawood Detention Centre. 33 With respect to his application for leave to appeal, the applicant says that this is an important issue as he remains in detention while the Department gets the benefit of the trial judge's decision when, if he was successful, he would have had the opportunity to be removed from Australia. The applicant further submitted that, in such a matter involving the deprivation of liberty, it is in the interests of justice that leave be granted. 34 The applicant's draft notice of appeal dated 28 December 2016 raises the following grounds of appeal: 1. The Court below erred in failing to find that the Respondent was in breach of the duty under s 198(1) of the Migration Act 1958 because: a. The Respondent has delayed in taking steps of inquiry to facilitate removal of the Applicant. Either the Consulate is the appropriate venue to facilitate the Applicant's travel documents, or is not. The findings of the trial judge allow for sporadic contact with the Consulate on the basis that the real fault is with the slow internal workings of the bureaucracy in Pakistan. There was no evidence that the Respondent had taken steps to deal with those slow internal workings to comply with the statutory duty. b. The Respondent had failed to take any step or give any consideration to removal of the Applicant to countries other than Pakistan which was to not consider other reasonably practicable methods of removal. 35 By an amended application for leave to appeal filed 30 March 2017, the applicant seeks leave to appeal on the following grounds: 1. The trial judge erred in failing to find that the Respondent was in breach of the duty under s 198(1) of the Migration Act 1958. 2. The trial judge erred in relying on the evidence of [Michael Crighton] as having determinative weight, particularly since several months have passed since that evidence was given and the foresight expressed has been demonstrated to have been wrong or not worthy of determinative weight. 36 In his affidavit made 11 April 2017, the applicant raises the following further grounds in support of his application: 2. I hereby seek extension of time to be granted as I am some seven days late to lodge the leave to appeal application. 3. I strongly submit the late leave to appeal application is only due to the fact that I was represented by Mark Seymour at the last occasion in relation to this matter. I misunderstood the time frame to appeal this matter. 4. I misunderstood and was of the opinion that I had twenty one days to lodge an appeal however I was informed I misunderstood and was incorrect. 5. I then lodged by judicial review late. 6. I strongly believe this late leave to appeal is only due to the fact of myself having lack of knowledge in relation to judicial processes and time frames. 7. I hereby also plead to the Court to grant me the leave to appeal in relation to a new ground which I have submitted in relation to my leave to appeal application. 8. This ground is in relation to the evidence which was given by the Respondent at the last final hearing on 1 December 2016. 9. Part of that evidence by the Respondent on 1 December 2016 ended up being the heart of the decision which was served by the Honourable Judge Perram on 9 December 2016. 10. The Respondent's evidence given by [Michael Crighton] orally on 1 December 2016 in relation to the applicant's travel document was given determinative weight by the Honourable Justice Perram J. 11. The decision served by Justice Perram on 9 December 2016 at paragraph 47 'But here the evidence was that the applicant's problem was a temporary one. Eventually, the applicant will be given a Pakistani passport, all that is involved here is a delay' demonstrates that Justice Perram gave determinative weight to the Respondent's oral evidence and erred in relying on the Respondent's evidence as since that evidence was given , there has been some several months passed and there has been no foresight expressed in relation to that evidence given by the Respondent . 12. I plead in my submissions time should be extended to allow leave to appeal and leave to appeal because: (1) The delay is due to myself being unaware of judicial review processes and time frame knowledge in relation to lodging papers for a Judicial review. (2) The delay is fully explained and there should not be any conceivable prejudice to the Minister. (3) The substantive case has merit , and indeed should succeed. (4) In a matter so serious where a conscious of a statutory duty that interferes with the applicant's personal liberty especially where the applicant's removal falls short of being prompt or efficient and, instead, indicative of neglect or casual , rather than considered , attention . (5) The new ground is not a new matter and indeed is part of the evidence which was relied upon by the Trial Judge. In these circumstances I submit that the interests of justice require that the extension of time to leave to appeal and leave to appeal be granted. 37 The applicant filed submissions on 12 April 2017, in which the applicant submits that the Court should first find that the Secretary is in breach of s 198(1) of the Act and then questions of remedy can be determined. 38 The applicant submits that the issue to be determined is as follows: 2. Section 198(1) of the Act requires ('must') an responsive action (''remove') to occur, once a pre-condition is satisfied (''asks ...in writing'), within a required period ('as soon as reasonably practicable''). 3. Section 197C(2) makes it clear this provision imposes a 'duty' upon officers enforcing the Act. Furthers 4(4) asserts that removal of non-citizens advances the central objective of the Act (ie 'to regulate, in the national interest, the coming into and presence in, Australia of non-citizens'). The text and context of the provision therefore highlights the importance of the duty providing guidance as to the scope of it. 4. In the present case, the pre-condition has been fulfilled but the action has not been carried out. The issue is therefore whether there has been a breach of the provision by reason of the failure to carry out the action within the period. 5. It is submitted that consideration of this issue would be addressed by reference to the 'test' in Thornton v Repatriation Commission (1981) 52 FLR 285 at 292; (1981) 35 ALR 485 at 492 recently considered by the Full Court in ASP15 v Commonwealth of Australia [2016] FCAFC 145 (see esp at [21) and [47]). That is, the question is whether the failure to carry out the required action is 'justified and not capricious', being for a 'considered reason' and 'not in consequence of neglect, oversight or perversity'. Further, the test imposes an evidentiary burden for the Respondent to establish: see ASP15 at [48]. In addition, it is important that the statutory duty would be construed mindful of the common law presumption that Parliament intends minimal infringement of personal liberty: AI Kateb at [19] per Gleeson CJ. 6. Section 189(1) of the Migration Act, makes it mandatory that a person who is in Australia and who no longer holds a visa that is in effect (in other words a person who is an 'unlawful noncitizen' within the meaning of section 14 of the Migration Act) be detained , the inevitable legal and practical consequence of this is that the applicant is deprived of his personal liberty. 7. The doctrine of 'legality' has been recognised as providing the 'strongest guidance' for determining whether a statutory scheme such as the one at issue permits an interpretation that allows for the infringement upon a basic human right , such as the right to personal liberty. 8. The doctrine of legality was stated in the following terms by the High Court in the case of Coco v The Queen . 'The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation of such basic rights , freedoms or immunities but has also determined upon abrogation or curtailment of them . The Courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear , they will often be ambiguous on the aspect of interference with fundamental rights '. 9. The Migration Act is completely silent on the question of whether a person who cannot be returned to his or her home country as there is no verification of their existence in their Country of birth and who are therefore liable to indefinite detention. 10. The observations of Chief Justice Gleeson (as he then was) in his dissenting opinion in the case of AI-Kateb v Godwin are pertinent and illustrate that the Migration Act does not expressly provide for indefinite detention in circumstances where a person cannot be removed from Australia: '......as was pointed out in Chu Kheng Lim v Minister for Immigration, in the ordinary case, the detention can be brought to an end upon the alien making a request to be removed. There are, however exceptional cases , where a visa application has been determined adversely to an alien, or an alien had requested removal , but removal is not possible in the circumstances which prevail at the time and which are likely to prevail in the foreseeable future. What happens? Is the consequence indefinite, perhaps permanent, detention? The Act does not in express terms address that problem'. 11. It is submitted further that the present case is distinguishable on its facts from the High Court's decision in AI-Kateb , and for that reason this Court is not bound to apply the holding in that case. Although the High Court in AI- Kateb did, by a narrow 4-3 majority, find that indefinite detention was authorised under the Migration Act in the case of a person who had arrived in Australia without a visa, whose application for a protection visa had been rejected, and whose removal from Australia was not reasonably practicable, it did not consider and did not decide the altogether different question presented by this case, whether a person who had entered Australia lawfully. 12. The Federal Court rejected the applicant's claims that the Respondent had breached it's duty under s198(1) of the Migration Act 1958 as it was submitted that the Respondent delayed In taking steps of inquiry to facilitate the applicant's removal. 13. The Federal Court failed to rule on the fact that whether the Consulate is the appropriate venue to facilitate the applicant's travel documents or it is not. 14. The findings made by the Federal Court allowed for sporadic contact with the Consulate on the basis that the real fault is with the slow internal workings of the bureaucracy in Pakistan. There was no evidence that the Respondent had taken steps to deal with those slow internal workings to comply with the statutory duty. 39 The applicant states that he will seek leave to rely on his amended notice of appeal at the hearing, and relies on the following particulars of failure to comply with the statutory duty: (1) the failure to adopt prompt and efficient means to effect removal of the applicant to Pakistan; (2) the failure to consider or explore alternative options for removal of the applicant outside Australia; and (3) taking irrelevant material into consideration, namely the respondent's oral evidence in relation to the applicant's travel document where the hearsay rule applied (amended ground). 40 The applicant makes the following submissions with respect to the above grounds of appeal: Failure to adopt prompt and efficient means to effect removal 17. The salient facts can be briefly summarised in the following chronology. 18. On 20 November 2015 the Applicant requested, in writing, that he be removed 'from Australia' (See MC1). 19. Almost immediately after that request was made, the DIBP made representations to the Consulate General of Pakistan (Consulate) seeking assistance in the removal of the Applicant to Pakistan. (See MC2, p 18) 20. On 1 December 2015 DIBP was informed of a 'new policy of the Government of Pakistan' involving 'details of the deportee [having) to be shared with the Ministry of Interior to get clearance'. (See MC7, p 36) 21. The following day an officer of DIBP wrote to ask of the Consulate if 'approval and verification' had been sought for the Applicant. (See MC9, p 50) The response of the same date affirmed that the matter had been referred to the Ministry of Interior. (See MC10, p 55) Several efforts were made over the following month to follow up the request for assistance. 22. Matters changed in around 25 January when an ''internal decision' was made within DIBP 'not to progress removals to Pakistan in the short term' or in the 'immediate future'. (See MC17, p 72) 23. Despite this internal decision, the Applicant continued to be told that DIBP was progressing his removal'. (See MC 18, p 74, MC19, 76) 24. Internal emails within DIBP suggest this internal decision was still active by early March. (See MC20, p 78) Again, the Applicant was not informed of this internal decision but rather told that there were no updates through to May 2016. 25. On or about 4 May 2016, new Operating Procedures were provided to DIBP. (See MC26, p 92) These included a requirement to provide biometrics of the person to be deported, noting that Pakistan would 'only' accept such persons 'duly verified' through the Procedures. (MC2, p 20) Notwithstanding the apparently clear language of the Procedures, internal emails within DIBP reflected upon the 'logistical challenges' associated with escorting such persons to the High Commission or Consulate and whether the High Commission's compromise on a face-to-face requirement for involuntary cases provided 'scope for negotiations in future on same arrangement for voluntary removals'. (MC27, p 98) 26. Again, despite the clear language of the Procedures, subsequent efforts to obtain the assistance of the Consulate were framed in terms of whether it was necessary to escort the Applicant to the Consulate in person. (MC28, p 101, MC29, p 101) The Applicant was, again, not informed of the developments in his case through May 2016. (MC30, p 119, MC31, p 121) 27. Internal emails of DIBP then provide an incomplete picture of events occurring in late May. The email of Naryl Brown on 31 May suggests a phone call was received from the Consulate confirming verification of the Applicant, which is not consistent with the subsequent email of the Consulate dated 1 June. (See MC32, p 123 and 128) 28. On 2 June 2016 DIBP was again informed that the requirement to bring the Applicant to the Consulate was 'mandatory'. (MC34, p 130) Accordingly, despite receiving the Procedures in early May, the Applicant was not escorted to the Consulate until 6 June 2016. (See MC34, p 130) 29. Since that time, there have been some further requests for assistance but it is not clear that any further action has been undertaken and no confirmation from the Consulate that the assistance will be forthcoming since '[t]he delay is due to the verification of [the Applicant's] Pakistani antecedents and the concerned authorities who are doing his background check' with 'no success' as at 13 October 2016. (See MC41, p 145) Failures to take prompt and efficient steps 30. The DIBP failure to comply with the requirement to place thumb impressions on the original application meant biometric data was not provided to the Consulate in November 2015. Further, the failure to follow the notified 'mandatory' steps in the Procedures caused a delay of providing biometric data for at least an additional month. Similarly, since the date of compliance with the Procedures there has been, on the documents, follow up action taken only on 21 July 2016 (See MC36, p 135), 30 August 2016 (See MC 38, p 139), 30 September 2016 (See MC39, p 141), and 12 October 2016 (See MC40, p 143). Such lengthy periods in following up the request for assistance are, naturally, to the Applicant's detriment if he must be kept in detention pending removal. Further, keeping the Applicant uninformed of the reasons for delay in the processing of his removal has been cruel or capricious. Finally, the Applicant intends to adduce evidence that the second application contained a factual inaccuracy (ie that the ''reason for deportation' was ''overstayer' (See MC28, p 106)) that was included by officers of the DIBP which is further indicative of casual or neglectful attention to detail when complying with the statutory duty. 31. The Applicant submits that a reasonable person, conscious of a statutory duty that interferes with personal liberty, would consider the response to requests for assistance falls short of being prompt or efficient and, instead, indicative of neglect or casual, rather than considered, attention. Though the Court can be conscious of the difficulties involved in international co-operation the present application throws up a justiciable controversy as to whether the DIBP actions have been sufficiently attentive to the statutory duty: see AI Kateb at [13) per Gleeson CJ. They have not. Failure to consider alternatives for removal 32. There is no record of any attempt to even consider alternative options to removal to Pakistan. There has accordingly been no considered approach taken to the full extent of the duty and no considered reason given for the failure to explore such alternatives. That there are alternatives for removal based on 'some other country to take an altruistic view' is something a predecessor to the Respondent has relied upon: note the arguments of Counsel in AI Kateb at 219 CLR 567. 33. Further, the Court can take judicial notice of steps taken by Australia to settle people in other countries -which are notorious facts. The Respondent has the evidentiary burden to show that there has been consideration of this option and to provide a 'considered reason' for not taking this step or to explain why DIBP is not able to conduct such negotiations on behalf of the Applicant. 34. It is consistent with a statutory duty to remove (and to detain pending removal) that all possible means of compliance at least be considered if not all possible means of compliance be explored. The Respondent has not complied with either step. (Amended ground) Taking irrelevant material into consideration namely the Respondent's oral evidence in relation to the applicant's travel document where the hearsay rule applied. The Court below accepted the Respondent's oral evidence which is consistent with the Federal Court's Judgement served on 9 December 2016 paragraph'47' But here the evidence was that the applicant's problem was a temporary one. Eventually, the applicant will be given a Pakistani passport, all that is involved here is a delay' The issue that arises Is that the Court below gave determinative weight to the Respondent's oral evidence where he hearsay rule applied and ruled in favour of the Respondent yet since that evidence was given by the Respondent several months ago the foresight expressed has been demonstrated to have been wrong and not worthy of the determinative weight it was given by the Federal Court. 41 The applicant concludes that the Court should find that the Secretary has not complied with the statutory obligation under s 198(1) of the Act in all respects relied upon.