Tran v Commonwealth of Australia

Federal Court of Australia|2021-06-01|Before: Mr J, Jagot J

The amended originating application and amended statement of claim dated 21 April 2021 be filed within 7 days of the making of these orders.
The amended originating application be dismissed.
The applicant pay the respondent's costs, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background 1 These reasons for judgment concern Mr Tran's application for relief in paragraphs 1 and 2 of the amended originating application provided on 21 April 2021. In those paragraphs Mr Tran seeks declarations that his detention by the Commonwealth has not been authorised by the Migration Act 1958 (Cth) (the Act) from various dates and an order that he be released from detention forthwith. Mr Tran also claims damages for false imprisonment, interest and costs, but those parts of his claim have been deferred for subsequent consideration (as necessary). 2 Mr Tran arrived in Australia in 1978 as an infant. He was granted a permanent entry permit by the respondent on 2 July 1981, which was subsequently converted to a Class BF transitional (permanent) visa on 1 September 1994 (the permanent visa). Mr Tran was convicted of a criminal offence engaging s 501(3A) of the Act. A delegate of the Minister for Home Affairs cancelled his permanent visa in June 2017. As a result, Mr Tran became an unlawful non-citizen within the meaning of the Act. 3 Mr Tran remained in custody for his criminal offence until 19 March 2018. He was then delivered into the custody of the Commonwealth through the Department of Home Affairs (the Department) and detained under s 189 of the Act. Mr Tran has remained in detention since. 4 The actions and inactions of the Department, as an agency of the Commonwealth, are taken to be the actions and inactions of the Commonwealth. 5 Mr Tran alleges that his detention became unlawful on and from five alternative dates (31 August 2018, 29 November 2018, 7 June 2019, 13 January 2020 or March 2020) on the basis that, in all of the circumstances then existing, on and from any or each of those dates, the Commonwealth was no longer detaining him for the permissible purpose of removing him from Australia as soon as reasonably practicable, as required by s 198(1) of the Act. 6 The Commonwealth, however, has proved the lawfulness of Mr Tran's detention. As a result, his application must be dismissed.

The statutory scheme 7 It is not in dispute that Mr Tran became an unlawful non-citizen on the cancellation of his permanent visa: s 14 of the Act. 8 Section 189(1) of the Act provides that: If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person. 9 It is not suggested that an officer did not reasonably suspect Mr Tran of being an unlawful non-citizen in the migration zone at all material times. 10 Section 196, as relevant, provides: (1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until: (a) he or she is removed from Australia under section 198 or 199; or (aa) an officer begins to deal with the non-citizen under subsection 198AD(3); or (b) he or she is deported under section 200; or (c) he or she is granted a visa. (2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen. (3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa. (4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen. … 11 Section 198(1) provides that: An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed. 12 Mr Tran made such a request in September 2018.

Construction of the statute 13 The parties agreed that unless I considered the reasons for judgment of Bromberg J in AJL20 v Commonwealth of Australia [2020] FCA 1305 to be plainly wrong I should apply his Honour's approach to the construction of the Act as a matter of judicial comity. 14 In AJL20, Bromberg J considered that, properly construed, the provisions of the Act identified above mean that an unlawful non-citizen may only be detained for the purpose of that person's removal from Australia as soon as reasonably practicable. Once that was no longer the purpose of the detention of the person, the person's detention became unlawful. Accordingly, at [75] his Honour said: … For administrative detention under the Act to be lawful it must be detention for a purpose which the Act provides for, removal from Australia being one such permissible purpose. Where there is a departure from the permissible purpose for the detention, the detention will no longer be lawful irrespective of whether one or other of the events specified in s 196(1) has in fact occurred. That is so because it is a condition of the lawfulness of a detention that the detention be for a permissible purpose. 15 In determining whether the Commonwealth's purpose for detaining an unlawful non-citizen remained the permissible purpose of removing that person from Australia as soon as reasonably practicable, Bromberg J in AJL20 observed that: (1) "[c]onsistently with the unanimous view of the Court in S4 [Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219], the relevant inquiry for determining whether there has been a departure from the permissible purpose of the applicant's detention is whether the removal of the applicant from Australia has been "undertaken" or has been "carried into effect" as soon as reasonably practicable. An objective assessment is to be made of all relevant circumstances including the steps in pursuance of removal which have been taken as well as those steps which were reasonably practicable but were not taken. As Hayne J observed in Al-Kateb [Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562] at [226], the phrase "as soon as reasonably practicable" is a "compound temporal expression" which "recognises that the time by which the event is to occur is affected by considerations of what is '[c]apable of being put into practice, carried out in action, effected, accomplished, or done'". The word "reasonably" in the phrase in question is important. I accept the Commonwealth's submission that the test is not whether everything that could have been done has been done. Perfection is not required, but whether reasonably practicable steps to pursue removal were or were not taken will be relevant": [89]; (2) "[t]he absence of any or sufficient steps being taken to progress removal over a period of detention will not necessarily demonstrate that removal of the detainee from Australia was not undertaken or carried into effect as soon as reasonably practicable. As Hayne J noted in Al-Kateb at [226]-[228] the removal of a non-citizen from Australia will ordinarily require the cooperation of other countries to effectuate that removal. There may be delays or obstacles to the timely removal of a detainee caused by circumstances beyond the control of Australia which bring about inaction or cause the absence of active steps to progress removal. There may be other justifications for inaction or delayed action which will serve to deny the conclusion that the removal of the non-citizen was not undertaken or carried into effect as soon as reasonably practicable": [116]; (3) "…the requirement to undertake or carry into effect a removal as soon as reasonably practicable includes some allowance for error to be made in the pursuance of the removal. I do not consider, however, that such an allowance would extend to unreasonable error": [118]; (4) "…a broad view of reasonableness may be taken…": [127]; (5) "…it must be firmly kept in mind that the Commonwealth bears the onus of proof. If the Commonwealth's failure to pursue the applicant's removal to Syria is probative of whether or not the Commonwealth had undertaken or sought to give effect to the applicant's removal as soon as reasonably practicable, it was for the Commonwealth to demonstrate that there was no such failure": [160]; and (6) "[t]here may well be room for debate as to what steps should be reasonably pursued in an endeavour to remove a detainee from Australia as soon as reasonably practicable": [170]. 16 AJL20 is subject to appeal. The appeal was heard by the High Court in April 2021. Judgment is reserved. The parties agree that in circumstances where Mr Tran continues to be detained, I should decide this matter on the basis of the cases as put rather than wait for the decision of the High Court. 17 The Commonwealth submitted that AJL20 is plainly wrong. The Commonwealth put the same submission in BHL19 v Commonwealth of Australia [2021] FCA 462 which Wigney J rejected in the context, however, of an interlocutory injunction. I agree with the Commonwealth that the fact that another judge, at first instance, has rejected the claim that AJL20 is plainly wrong (albeit on an interlocutory basis) is immaterial. I either consider AJL20 to be plainly wrong or I do not. 18 Mr Tran submitted that I would not conclude that AJL20 was plainly wrong if I considered Bromberg J's construction to be reasonably open, which is a low threshold: Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 20; (2003) 196 ALR 52 at [36]. I prefer to say that I accept that "…where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is 'clearly wrong' is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction": Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [76]. 19 The Commonwealth submitted that AJL20 is plainly wrong as: (1) the text of s 196(1) of the Act is clear and intractable. Detention is to continue until one of the specified terminating events in s 196(1); (2) this is confirmed by s 196(3) which provides that an unlawful non-citizen may only be released from detention as a result of one of the events in s 196(1) occurring; (3) the scheme of the Act, including its objects in s 4, supports this construction. The statutory scheme involves three elements: (a) non-citizens may enter the Australian community only if they have permission (in the form of a visa) to do so, and they may remain in Australia only for so long as they have permission (again in the form of a visa) to do so; (b) if a non-citizen has entered Australia without permission, or no longer has permission to remain here, that non-citizen must be detained; and (c) the detention of a non-citizen is to end upon that person's removal or deportation from Australia or upon the person obtaining a visa; (4) the combined effect of ss 189(1) and 196(1) is that a non-citizen (other than an Australian Aboriginal) can be lawfully within the Australian community only if he or she has been granted a visa: s 196(1)(c). Otherwise, he or she is an unlawful non-citizen who must be detained, and can leave immigration detention only by departing Australia by one of the means referred to in s 196(1); (5) S4, relied on by Bromberg J in AJL20, is not authority to the contrary. S4 stands for the proposition that the Act contains an implicit requirement to decide whether to permit a protection visa application as soon as reasonably practicable (and if permission were granted, to consider the application within a reasonable time). That is, the Commonwealth could not, at its discretion, delay the occurrence of one of the events in s 196(1) of the Act; (6) consistently with S4 and Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1, the duty in s 198(1) to remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed is enforceable by the writ of mandamus, but failure to comply with the duty does not make detention unlawful; (7) the contrary construction reached in AJL20 is the result of an incorrect elision of the task of statutory construction (which depends on the ordinary and natural meaning of the statutory text in context) and the evaluation of the Constitutional validity of the statutory provisions, inconsistently with the principles discussed in Palmer v Western Australia [2021] HCA 5 at [65], [119]-[127]; (8) Constitutional validity of a statutory provision depends on the purpose of the statute, not the purpose of the Executive. AJL20 converts the purpose of the Executive into a condition of the lawfulness of detention which is not supported by authority; and (9) AJL20 does not adequately confront the fact that, on release from detention, an officer who reasonably suspects that the person is an unlawful non-citizen in the migration zone must detain the person as required by s 189(1). This anomaly results from the incorrect construction of the Act which underlies AJL20. 20 If the Commonwealth is correct, Mr Tran cannot succeed in his case. Mr Tran has not sought mandamus to require compliance with the duty in s 198(1). None of the terminating events in s 196(1) have occurred. On this basis, Mr Tran, as an unlawful non-citizen in the migration zone, has been and continues to be lawfully detained. 21 I am not persuaded that AJL20 is plainly wrong. AJL20 is arguably correct having regard to, in particular, Lim as follows: (1) "[w]hat initially begins as lawful custody under Div. 4B may cease to be lawful by reason of the failure of the Executive to take steps to remove a designated person from Australia in conformity with Div. 4B. Thus, a failure to remove a designated person from Australia "as soon as practicable" pursuant to s. 54P(1), after that person has asked the Minister in writing to be removed, would, in my view, deprive the Executive of legal authority to retain that person in custody": 11-12; and (2) "… the two sections will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. On the other hand, if the detention which those sections require and authorize is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Ch. III's insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates": 33. 22 In Al-Kateb Hayne J (with whom McHugh and Heydon JJ agreed on this issue) said at [224]-[225]: The provisions requiring detention of unlawful non‑citizens do not expressly refer to the purpose of detention. Rather, s 189 requires officers to detain unlawful non‑citizens and s 196 identifies the period of detention. In this respect, however, the legislation does not differ in any fundamental respect from the provisions considered in Koon Wing Lau v Calwell [(1949) 80 CLR 533]. The War‑time Refugees Removal Act 1949 (Cth), considered in that case, provided for the deportation of aliens who had entered Australia during the Second World War. It provided (s 7(1)(a)) that a deportee might "pending his deportation and until he is placed on board a vessel for deportation from Australia" be kept in such custody as the Minister or an officer directed. Of these provisions Dixon J said [(1949) 80 CLR 533 at 581] that they "mean that a deportee may be held in custody for the purpose of fulfilling the obligation to deport him until he is placed on board the vessel" (emphasis added) and that "unless within a reasonable time [the person to be deported] is placed on board a vessel he would be entitled to his discharge on habeas". The present legislation, prescribing the period of detention as it does, may therefore be read as providing for detention for the purposes of processing any visa application and removal. But that does not decide the point of how long that detention may persist. It does not decide when that purpose (of detention for removal) is spent. It does not decide that the time during which a person may be detained is "a reasonable time". Here the period of detention is governed by the requirement to effect removal "as soon as reasonably practicable". 23 Further, at [294]-[295] in Al-Kateb, Callinan J said: In their joint judgment in Lim, Brennan, Deane and Dawson JJ acknowledged the breadth of the aliens power as well as the lawfulness of detention for purposes other than punitive ones. In particular it was accepted there that the Parliament might make laws reasonably capable of being seen as necessary for the purposes of deportation. The yardstick, and with respect rightly so, was ''purpose'', the existence, that is the continuing existence of the relevant purpose of deportation. Nothing that was said in relation to the intrusion upon judicial power by the enactment of another provision directed to a different end alters or diminishes that. … The fact that deportation may not be imminent, or even that no current prediction as to a date and place of it can be made, does not mean that the purpose of the detention, deportation, has been or should be regarded as abandoned. The sensitivity of international relations, the unsettled political situation in many countries, and the role and capacity of the United Nations, all contribute to the inevitable uncertainties attaching to the identification of national refuges for people who have come to this country unlawfully and who have been shown to be people to whom protection obligations are not owed. I would not import into ss 189 and 198 of the Migration Act an implication that the obligation of an officer to detain an illegal entrant ceases, or may cease, and is not to be enforced simply because it is proving, and may well prove, for some indefinite time, to be difficult to find a country that will receive him. The words ''as soon as reasonably practicable'' in s 198 of the Migration Act are intended to ensure that all reasonable means are employed to remove an illegal entrant, and not to define a period or event beyond which his detention should be deemed to be unlawful. 24 In Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322 French CJ said at [30]: Absent her claim on Australia for protection under the Refugees Convention and the process of assessment that followed it, the plaintiff's continuing detention would only have been lawful while steps were being taken to arrange for her removal as soon as reasonably practicable from Australia to Sri Lanka. The process of assessment provided a distinct legal underpinning for her detention pending its completion and the ministerial decision. The legal proceedings which the plaintiff has instigated in this Court to test that process for legal error must, like the process itself, be accommodated by the provisions of s 198(2). In short, subject to reasonable promptness on the part of the Minister and his officers in responding to the declaration of this Court, the plaintiff's continuing detention is authorised. 25 In Plaintiff M76 Crennan, Bell and Gageler JJ said at [139]: The necessity referred to in that holding in Lim is not that detention itself be necessary for the purposes of the identified administrative processes but that the period of detention be limited to the time necessarily taken in administrative processes directed to the limited purposes identified. The temporal limits and the limited purposes are connected such that the power to detain is not unconstrained. So much is clear from their Honours' separate observations that Ch III is not contravened by laws which require or authorise the executive to detain non-citizens in custody "in the context and for the purposes of", and in that sense as an "incident of", processes allowing for application for, and consideration of, the grant of permission to remain in Australia, and providing for deportation or removal if permission is not granted. The common law does not recognise any executive warrant authorising arbitrary detention. A non‑citizen can therefore invoke the original jurisdiction of the Court under s 75(iii) and (v) of the Constitution in respect of any detention if and when that detention becomes unlawful. What begins as lawful custody under a valid statutory provision can cease to be so. 26 In S4, at [28], the High Court summarised Lim in these terms: Because detention under the Act can only be for the purposes identified, the purposes must be pursued and carried into effect as soon as reasonably practicable. That conclusion follows from the purposive nature of detention under the Act. But it is a conclusion that is reinforced by consideration of the text and structure of the Act, understood against the background of fundamental principle. 27 I also note that in Snedden v Minister for Justice [2014] FCAFC 156; (2014) 230 FCR 82 at [116] this was said: There are essentially three elements to the composite expression "as soon as is reasonably practicable". First, the word "practicable" has the meaning of "capable of being carried out in action; feasible": M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 (M38/2002) at [65]. It identifies that which is able to put into practice and which can be effected or accomplished: Al-Kateb v Godwin (2004) 219 CLR 562 (Al-Kateb) at [121]. Secondly, the qualification "reasonably" limits or qualifies what would otherwise be an absolute obligation: M38/2002 at [65]. It introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme: Al-Kateb at [121]. Thirdly, the phrase "as soon as" supplies a temporal element: Al-Kateb at [121]. It directs the decision-maker to make the determination without delay once it is reasonably practicable to do so: Santhirarajah [Santhirarajah v Attorney-General (Cth) (2012) 206 FCR 494] at [74]; Judgment at [24]. 28 While I recognise that the statements described above are not to be viewed in isolation or divorced from the factual context of the particular cases, and are also countered by other statements in the same cases which would support the Commonwealth's construction, they are sufficient to persuade me that AJL20 is not plainly wrong. 29 Accordingly, the case is to be resolved presuming AJL20 to be correct.

Onus of proof 30 The Commonwealth accepts that, Mr Tran having genuinely put in issue the lawfulness of his detention, the Commonwealth bears the onus of proving the lawfulness of Mr Tran's detention. 31 For Mr Tran it was stressed that: (1) the issue being personal liberty, the proof required had to be "clear and cogent": McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 385 ALR 405 at [57]; and (2) "evidence is to be weighed according to the proof which it was in the power of one side to produce and the other to contradict": McHugh at [60] citing Blatch v Archer (1774) 1 Cowp 63 at 65. 32 The Commonwealth did not dispute these principles.

Facts 33 The primary facts are not in dispute. The parties have prepared a comprehensive chronology which identifies the primary facts. That chronology is replicated in Schedule 1. 34 The basic fact which underlies much of what has occurred is that there is no documentary record of Mr Tran's birth. The evidence is, variously, that he was born on a fishing vessel off the coast of Vietnam, that he was born on the boat travelling between Vietnam and Australia, or that he was born on shore in Vietnam. To date: (1) Mr Tran has not been recognised by Vietnam as a citizen of that country; (2) Vietnam has refused to provide the applicant with any travel document which would permit the applicant to enter that country, or to otherwise agree to his removal to that country; and (3) Mr Tran has not been removed from Australia under s 198 of the Act. 35 For the purpose of discharging its onus of proof, the Commonwealth adduced evidence from officers of the Department to prove that, at all times, it had continued to detain Mr Tran as provided for in s 189(1) of the Act and for the permissible purpose of facilitating his removal from Australia as soon as reasonably practicable as provided for in s 198(1) of the Act. It is unnecessary to give details of the witnesses. Some were cross-examined, others not. There was no challenge to the credit of any of the witnesses. There was no real dispute about the facts, as the chronology discloses. The dispute focused on the inferences that should be drawn from the facts.

Discussion 36 Mr Tran was detained as required by s 189(1) of the Act and made a written request for removal to Vietnam on 19 September 2018. He had also lodged an application for review of the refusal to revoke the cancellation of his visa with the Administrative Appeals Tribunal (the AAT). It was reasonable for the Department to enable Mr Tran's review application to be determined before he was in fact removed to Vietnam. In any event, however, numerous steps were taken between September 2018 and November 2018 to facilitate Mr Tran's request for removal. In that period, the steps taken disclosed issues with the verification of Mr Tran's identity. On 29 November 2018 the AAT affirmed the delegate's decision not to revoke the cancellation of Mr Tran's visa. 37 For Mr Tran, it was noted that nothing apparently occurred between 23 October 2018 and 20 November 2018 despite it being known by then that there was an issue about verifying Mr Tran's identity. However, the reason for this should be inferred to be that, on 23 October 2018, the Department had sought information from other Commonwealth files about Mr Tran's family to assist with identity verification. Awaiting this information was not unreasonable. The information request and its receipt and review were all directed to the permissible object of facilitating Mr Tran's removal from Australia as soon as reasonably practicable. The permissible purpose for Mr Tran's detention, accordingly, continued. 38 It was also noted for Mr Tran that there was no evidence of the Department responding to an internal request of 20 November 2018 to "obtain more personal details to assist with identity verification". It was submitted that it could be inferred that the request was never satisfied. Even if this is the proper inference, it does not suggest that the Department was doing other than attempting to have Mr Tran removed from Australia to Vietnam as soon as reasonably practicable. To the contrary, on the evidence, it must be inferred that this permissible purpose for detention of Mr Tran continued. 39 As noted, on 29 November 2018, the AAT affirmed the refusal to revoke the cancellation of Mr Tran's visa. Again, it cannot be inferred that the respondent abandoned its permissible purpose or was doing other than attempting to remove Mr Tran to Vietnam as soon as reasonably practicable. The chronology discloses continuing efforts to this end between 29 November 2018 and 7 June 2019. 40 The submissions for Mr Tran focus on various examples of inaction during this period including: (a) the Department not reviewing or actioning some documents Mr Tran provided that may have assisted with obtaining travel documents, (b) no officer calling Mr Tran's parents, (c) the Department being caught in a circuit of unproductive emails until 1 March 2019, (d) the Department not ensuring that the form to be lodged with the Vietnamese Embassy had as much information as possible, and (e) little being done otherwise while awaiting the "inevitable" response, from the Vietnamese authorities, recording the refusal to process Mr Tran's travel documents because there was "no evidence that Mr Tran was born or used to live in Viet Nam". 41 These complaints do not found an inference of the Commonwealth abandoning the permissible purpose or failing to attempt to remove Mr Tran from Australia as soon as reasonably practicable. Administrative and systemic perfection is not required. The benefit of hindsight, that one or other course of action ultimately failed, is not helpful. The issue is one of objective reasonableness in all of the circumstances as they appeared at the time. The actions taken by the Department satisfy that standard up to 7 June 2019. 42 It was not unreasonable for the Department to have relied on Mr Tran to ensure the travel document form was completed with as much information as possible. The form was in Vietnamese. Mr Tran's parents may be inferred to have been fluent in Vietnamese. They were the most familiar with Mr Tran's circumstances. Mr Tran had requested removal and thus the Department was entitled to assume that he had an interest in ensuring that all relevant information was provided to the Vietnamese Embassy. To require the Department to independently verify that Mr Tran had provided all relevant information to the Vietnamese Embassy involves a standard of perfection which the Department was not required to meet in order to avoid an inference of an abandonment of the permissible purpose or failure to attempt to remove Mr Tran from Australia as soon as reasonably practicable. 43 It was submitted for Mr Tran that it is notable that, while waiting for a response from the Vietnamese authorities, the Department did not take other steps to progress Mr Tran's identity verification despite offers of assistance to "progress birth registration/citizenship" from the Australian Embassy in Hanoi. Again, the issue is one of reasonableness. It was not unreasonable for the Department to await a response from the Vietnamese authorities. Contrary to the submissions for Mr Tran, it was not clear at the time that the response from the Vietnamese authorities "inevitably" would be refusal. The refusal did come on 7 June 2019 to the effect that "there is no evidence that Mr Tran was born and used to live in Viet Nam", but it is not the case that the Department should have known this to be inevitable. The proper inference on the evidence is that the permissible purpose of Mr Tran's detention continued throughout this period. 44 For the period from 7 June 2019 to 18 December 2019 other submissions were made for Mr Tran. It was said: (a) by 11 June 2019, following the response of the Vietnamese authorities, it was clear to persons within the Commonwealth that "Mr Tran is not able to be removed", (b) by 17 July 2019, after a number of internal steps were taken, Mr Tran's file status changed from "Removal" to "MI [Ministerial intervention] Outcome", which is a reference to a process for Ministerial intervention under s 195A of the Act (which permits the Minister to decide whether or not to exercise a discretion to grant a visa), (c) around 11 November 2019, Mr Tran was advised that Australian Border Force was "unable to remove him or assist with any further PPT [passport] applications", and (d) internal Departmental records show that no further steps towards identification verification were being taken and the Department was "at a loss" and "stuck". 45 These facts do not support the inference that the Commonwealth had abandoned its permissible purpose for detaining Mr Tran or was doing other than attempting to remove Mr Tran from Australia as soon as reasonably practicable. The evidence disclosed that although the State-based file was closed pending progression of the possible Ministerial intervention under s 195A of the Act, the Department's "Removals Helpdesk" remained in communication with the Vietnamese Embassy, with the Vietnamese Embassy confirming on 7 August 2019 that it had been unable to verify Mr Tran's identity. 46 Also in 2019, the responsible team within the Australian Embassy in Hanoi (referred to as Post), which processed visas for entry into Vietnam and facilitated the obtaining of permission from the Vietnamese government for the return of Vietnamese nationals from immigration detention to Vietnam, noticed that a number of such cases were not progressing. Post managed to resolve some of those cases but, by late 2019, Post's Principal Migration Officer, Mr Kneipp, considered that it was not possible to resolve some of those cases under its usual procedures. As a result, on 18 December 2019, Mr Kneipp proposed to the International Policy Division of the Department that a delegation of Vietnamese officials should visit Australia to interview select detainees in order to verify their identities. He did so after discussing the issue with the International Policy Division on 16 or 17 December 2019. 47 The point made for Mr Tran was that the 18 December 2019 proposal was too little and too late to legitimise Mr Tran's continuing detention. I do not accept this submission. The action taken on 18 December 2019, although it was not directed specifically to Mr Tran, was directed towards a group of which he formed part. The evident purpose of the proposal was to enable the members of that group to have their identities verified in order to facilitate their return to Vietnam. The fact that Mr Kneipp sent this email on 18 December 2019 supports the inference that the Department had not simply abandoned its purpose of removing Mr Tran from Australia as soon as reasonably practicable. Mr Kneipp must have been formulating that proposal for some time before 18 December 2019. Together with this, the following considerations, as submitted for the Commonwealth, are relevant: (1) the issue is not whether the Department took all reasonably practicable steps to remove Mr Tran from Australia as soon as reasonably practicable. The issue is whether it should be inferred from all of the circumstances that the Commonwealth abandoned its permissible purpose of removing Mr Tran from Australia as soon as reasonably practicable; (2) accordingly, a failure to take one or other reasonably practicable step to remove Mr Tran from Australia as soon as reasonably practicable does not, of itself, necessarily prove any abandonment of the permissible purpose; (3) the relevant circumstances include: "(a) the operational context in which attempts are being made to remove the detainee, constrained by the necessarily finite resources available to the Commonwealth, (b) the cooperation of the country to which the detainee is to be removed, and (c) the degree to which the detainee is in a position, or is inclined, to furnish the Commonwealth with the information and cooperation necessary to effect his or her removal"; (4) Mr Tran had not suggested any capacity for his removal from Australia other than to Vietnam; and (5) when asked for information to facilitate his removal, Mr Tran did not provide, to the Department, aspects of the information disclosed in Mr Tran's affidavit in this proceeding. It is not to the point that there is little, if any, evidence about what the Department asked Mr Tran. The point is that it was open to Mr Tran to provide any information he wished to support his removal to Vietnam. It is obvious from his affidavit that, at some time at least, he possessed additional information which he did not disclose until he deposed to his state of knowledge in his affidavit. 48 In these circumstances, no inference of abandonment of the Commonwealth's permissible purpose for detaining Mr Tran would be drawn. 49 For the period from 18 December 2019 to March 2020, it was submitted for Mr Tran that the Department "put all its eggs in one basket", being the proposed delegation of officials from Vietnam. It was not unreasonable, however, for the Department to consider that this would be the best method of resolving the issue of Mr Tran's identity, amongst others. The fact that Mr Kneipp said in an email of 18 December 2019 that while the Department would seek to have Mr Tran interviewed by the delegation from Vietnam it should be prepared "for the likelihood that he will not be recognised and consider other options" does not establish the contrary conclusion. 50 Contrary to the submissions for Mr Tran, the Department was not bound to consider other options before seeing if the interview of Mr Tran by the delegation from Vietnam could resolve his identity issue. It was not unreasonable for the Department to await the outcome of that interview before it decided if other options should be pursued. In any event, it is not clear from Mr Kneipp's email that he was suggesting any particular step should be taken before the interview which the Department did not then take. It may be inferred that if Mr Kneipp had any such step in mind he would have said so in the email, but he did not. As Mr Kneipp said about this email, he did not think it certain that the Vietnamese government would refuse to recognise Mr Tran and believed the interview process to be worth a try but wanted the Department to consider the potential that Mr Tran may not be recognised as a Vietnamese citizen. 51 Between 18 December 2019 and 5 March 2020 there was substantial activity to facilitate the delegation of Vietnamese officials to conduct the interviews. The fact that the Department's focus was on this delegation as a means to resolve identity issues for Mr Tran and others does not bespeak unreasonableness. 52 From 5 March 2020 the COVID-19 pandemic prevented the delegation from Vietnam visiting Australia as proposed. At that time commercial flights into Vietnam were restricted and security escorts on commercial and charter flights were suspended. 53 It was recorded by the Department on 16 November 2020 that "planning for Mr Tran's removal has not continued". 54 Mr Kneipp said that by the second half of 2020 he realised that the restrictions on international travel were unlikely to be lifted for some time and a different approach was required. He cannot recall precisely when, but he then asked a senior official from Vietnam if the interviews could be conducted remotely. This suggestion was rejected. Mr Kneipp continued to liaise with Vietnamese officials, including during a meeting in January 2021, about the interviews being conducted remotely (which the Vietnamese officials did not agree to but confirmed they would be willing to conduct the interviews in Australia once the COVID-19 pandemic was over). Mr Kneipp was re-assigned in January 2021. Before that, in late December 2020, another Departmental officer again spoke to Vietnamese officials about Mr Tran, but was told that nothing could be done as his identity could not be verified. 55 On 18 February 2021, Mr Hollis, Consul (Home Affairs) at the Australian Consulate in Ho Chi Minh City, sent a third party notice (TPN) to the Immigration Department of the Ministry of Public Security of the Socialist Republic of Vietnam (MPSI) in relation to Mr Tran's identity. In the TPN Mr Hollis requested that Mr Tran be interviewed by teleconference or videoconference. MPSI declined this request on 5 March 2021 but said it would send a delegation to Australia once the COVID-19 pandemic was over. 56 On 16 April 2021 the Department forwarded Mr Tran's affidavit in this proceeding to the Queensland removals section to see if the additional information in it could assist in facilitating Mr Tran's removal. Various internal email communications about Mr Tran followed. It should be inferred that the Department is now using the information in Mr Tran's affidavit to ascertain if further steps can be taken to facilitate his removal to Vietnam. This is sufficient to support an inference that the requisite permissible purpose is continuing at this time. 57 The essential complaint for Mr Tran is that nothing happened to progress his removal between 5 March 2020 and 18 February 2021, when Mr Hollis issued the TPN. In fact, Mr Kneipp asked Vietnamese officials if the interviews could be conducted remotely before this in the second half of 2020 but on a date that cannot be identified. It was submitted for Mr Tran that the Department had done nothing but wait for the COVID-19 pandemic to be over. 58 The fact that nothing was done between 5 March 2020 and Mr Kneipp's communications with Vietnamese officials at some time in the second half of 2020 and into January 2021 does not support an inference that the Commonwealth abandoned the permissible purpose for which it could detain Mr Tran, being his removal from Australia as soon as reasonably practicable. The COVID-19 pandemic is an unprecedented event which has caused unprecedented restrictions on travel into and out of Australia. In these circumstances, it was not unreasonable for the Department to wait, even for months, to ascertain if international travel into Australia would re-commence in 2020. With the benefit of hindsight it is now apparent that travel restrictions may last for many more months. However, as at March 2020 and throughout that year, an expectation that travel into and out of Australia would re-commence to enable the interviews to be conducted was not unreasonable. 59 In these circumstances, the focus for Mr Tran on things that were not done is misplaced. It is true that between March and December 2020 the Department did not re-visit or initiate new steps to facilitate the removal of Mr Tran. It did not do so, however, because it considered that the best option was the interview process by the Vietnamese delegation, and an unprecedented pandemic had delayed that from occurring. Neither the Commonwealth nor Vietnam abandoned the proposed interviews. The Commonwealth continued, and continues, to want the interviews to occur as soon as reasonably possible. Vietnam remained, and remains, willing to send the delegation once "border restrictions in place because of COVID [are] lifted". In the circumstances, the actions (or inactions) of the Department were not unreasonable and do not prove an abandonment of the permissible purpose for detaining Mr Tran. 60 Contrary to the submissions for Mr Tran, the Commonwealth was not bound to arrange a charter flight for Mr Tran to Vietnam from June 2020 when such flights re-commenced. The Commonwealth, as noted, did not have to take every reasonably practicable step possible to effect the removal of Mr Tran in order to retain the permissible purpose of detaining him (that is, removing him as soon as reasonably practicable). 61 The submissions for Mr Tran, despite proposing to the contrary, seek to impose a standard of perfection on the Commonwealth. They also appear to impose on the Commonwealth an obligation not only to do everything that it possibly could to effect Mr Tran's removal immediately on it being possible, but also to possess a capacity to foresee which efforts will be worthwhile and which will not be. That is, Mr Tran's case appears to be that the Commonwealth should have known that various efforts would be fruitless or doomed and should never have bothered to undertake them at all. Nothing in the evidence supports the inference that the Commonwealth, at the time and in all of the circumstances, was doing other than genuinely attempting to remove Mr Tran from Australia. It was not acting unreasonably in attempting to do so even if, ultimately, its efforts proved fruitless. It is not as if the evidence supports any suggestion that the Commonwealth knew its efforts would be fruitless and proceeded in any event never believing that its efforts would facilitate Mr Tran's removal to Vietnam. 62 The standard of perfection which the submissions for Mr Tran seek to impose on the Commonwealth is apparent from the alleged systemic problems within the Department said to be revealed by the evidence such as: (a) no system existing whereby a removals officer who is on leave is substituted, (b) delay in conducting an initial removal planning interview with MrTran, (c) lack of clear responsibilities, (d) lack of training about identity verification, (e) lack of care and diligence in recording information, (f) the existence of a "cut and paste" culture, and (g) inadequate systems to identify and correct errors. No administrative system is perfect. Every administrative system can be improved. The obligation imposed by s 198(1) is qualified by a standard of reasonableness despite the subject-matter being individual liberty. 63 Accordingly, and as the Commonwealth submitted, the problem with the case for Mr Tran is that it depends on: … a rigid construction of the phrase "as soon as reasonably practicable" in s 198 of the Act, which would require the Commonwealth to take any and all steps reasonably practicable for it to take towards the applicant's removal, and to take those steps at the time each step becomes reasonably practicable. 64 This approach is contrary to AJL20 and Arthur as litigation representative for CYG20 v Commonwealth of Australia [2021] FCA 259 at [106(c)] in which Griffiths J adopted the approach in AJL20 without deciding whether it was plainly wrong or not. 65 Further, and as the Commonwealth also submitted, the onus of proof to which the Commonwealth is subject does not require it to: …show that there were no (or no other) reasonably practicable steps it could have taken. The Commonwealth is not required to prove a negative: it need not imagine the universe of steps that could have been taken so as to explain why none of them was taken. 66 The references in the submissions for Mr Tran to the Commonwealth's acceptance of the need to undertake a "complex identity referral" as at 21 November 2018 does not assist Mr Tran's case. The failure to initiate such a referral (if it be a failure, the evidence being unclear about this), in circumstances where at the time there were ongoing communications with the Vietnamese authorities, was not unreasonable. It is also not apparent that such a referral could have made any difference to the position of Mr Tran. 67 I do not accept the submissions for Mr Tran that the evidence supports the inference that from 23 October 2018 (by which time the Department had recognised that more information would be required to enable Vietnamese authorities to verify Mr Tran's identity) the Commonwealth abandoned its permissible purpose for Mr Tran's continuing detention by failing to: (1) make a complex identity referral or commission an identity assessment report; (2) engage meaningfully, or at all, with Mr Tran's parents, other family members or friends to ascertain further details of their (and Mr Tran's) connection to Vietnam, including places of birth, residence, employment, ancestry and the possible locations of corroborating documentary records; and/or (3) engage meaningfully with Mr Tran to ascertain further details of his connection to Vietnam, including his family members' places of birth, residence, employment, ancestry and the possible locations of corroborating documentary records. 68 No doubt there was more that the Department could have done from time to time and it could have acted with greater alacrity. But the Department's efforts and the pace at which it acted has not been unreasonable in the circumstances as they have existed from time to time. In particular, as the Commonwealth submitted, it should be noted that the evidence discloses that: (1) while the Department did not make a complex identity referral or commission an identity assessment report, it took numerous steps to facilitate the verification of Mr Tran's identity as disclosed in the chronology including: (a) assisting Mr Tran to apply to have his birth registered with the Vietnamese authorities; (b) facilitating an application to be completed for the re-issue of birth certificates for Mr Tran's parents, as an antecedent step to getting Mr Tran recognised as a Vietnamese citizen by descent; and (c) assisting Mr Tran to apply for Vietnamese citizenship by descent; (2) the Department assisted Mr Tran to obtain sufficient information to provide to the Vietnamese authorities to allow it to verify his identity and thereby establish Vietnamese citizenship (or some other right to enter Vietnam), including by: (a) meeting with Mr Tran to update him on the progress of his application and explain to him that the information provided to date was insufficient to enable Vietnam to issue travel documents; to seek from him additional information about his family's history and connection to Vietnam to support his applications; and, to assist him in contacting his parents to request that information; (b) obtaining from the Department's archives and reviewing Mr Tran's family's citizenship files; and (c) conducting their own desktop research to identify any publicly available information regarding the circumstances of Mr Tran's arrival to Australia which may assist in verifying his identity; and (3) the Department, through diplomatic channels, pursued means to progress the applicant's removal to Vietnam, including: (a) making enquiries with the Vietnamese Embassy in Canberra as to the options available to the applicant to obtain Vietnamese citizenship, and facilitating a request that the Vietnamese consular department consider Mr Tran's case directly; (b) facilitating an interview by the Vietnamese Embassy of the applicant's mother, in the hope of obtaining from her details of her life in Vietnam which might assist in verifying Mr Tran's identity; (c) seeking assistance from the Department's outpost in Hanoi to progress Mr Tran's case directly with the Vietnamese immigration department and through the Vietnamese consular department; and (d) arranging for a delegation of Vietnamese officials to visit Australia in April 2020 with the purpose of a verification interview with Mr Tran. 69 In the light of this evidence, the concerns identified for Mr Tran about inaction, delay, and inadequate records of actions taken and not taken are insufficient to found an inference of the Commonwealth, at any time, abandoning its permissible purpose for the ongoing detention of Mr Tran or failing to act so as to effect his removal as soon as reasonably practicable. The evidence does not support the inferences set out in the submissions for Mr Tran, including: (a) an alleged belief on the part of the Department that a detained person is responsible for their own removal - co-operation by a detained person is an obviously relevant consideration in assessing the reasonableness of the Commonwealth's conduct, (b) unreasonable disregard by the Department of information, provided by Mr Tran, that might have facilitated his earlier removal, or (c) unreasonable delay by the Department in taking available steps to facilitate verification of Mr Tran's identity. It may be accepted that, as it was put for Mr Tran, "during each hour that various emails were not responded to, [Mr Tran] was deprived of his liberty in immigration detention", but (assuming AJL20 to be correct) the Parliament has chosen to qualify the Commonwealth's obligations to a person in detention by reference to a standard of reasonableness and this qualification must be given effect. 70 As a result, I do not accept that the evidence shows the Commonwealth: (a) taking only unreasonable or impracticable steps to carry into effect removal, (b) failing to take reasonable and practicable steps to carry into effect removal, or (c) taking reasonable and practicable steps to carry into effect removal, but doing so without reasonable promptness. The efforts of the Department did not meet a standard of administrative and systemic perfection, but nor did they need to in order to prove that there was no abandonment by the Commonwealth of the continuing permissible purpose authorising Mr Tran's detention. 71 For these reasons, the application should be dismissed. Costs should follow the event. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot.

SCHEDULE 1 Agreed Chronology of steps taken to progress removal during the relevant period Date Event Reference 28 June 2017 Minister cancels the applicant's Permanent Residency Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) Amended statement of claim at [7] (SCB Tab 2, p 4); Amended Defence at [7] (SCB Tab 4, p 15) 19 Mar 2018 Applicant enters immigration detention First Affidavit of Michel Fryer-Hornsby at Annexure MFH-2 (CB, Tab 7, pp 139- 140) 14 July 2018 Applicant meets with Michele Fryer-Hornsby, his allocated Status Resolution Officer, and tells her that he is unable to return to Vietnam because "he has no family remaining there and his parent escaped when he was a baby" First Affidavit of Michel Fryer-Hornsby at [22] (CB Tab 7, p 92), Annexure MFH-2 (CB Tab 7, p 147) 31 Aug 2018 (First date from which false imprisonment is alleged) Delegate of the Minister determined not to revoke the cancellation of the applicant's visa Amended statement of claim at [10] (SCB Tab 2, p 5); Amended Defence at [10] (SCB Tab 4, p 15) 6 Sept 2018 Applicant meets with Michele Fryer-Hornsby and tells her that: Second Affidavit of Michele Fryer-Hornsby at [6] (SCB Tab 12, p 580) (a) he intends to lodge an application to review the non-revocation decision with the AAT (b) he does not want to return to Vietnam 12 Sept 2018 The applicant meets with Michele Fryer-Hornsby. He tells her that he wanted to return to Vietnam to await the outcome of his AAT review Second Affidavit of Michele Fryer-Hornsby at [7] (SCB Tab 12, p 580) 12 Sept 2018 Michele Fryer-Hornsby refers the applicant's case to the Removals team within the Department First Affidavit of Michele Fryer-Hornsby at [28] (CB Tab 7, p 93), Annexure MFH-3 (CB Tab 7, p 184) 13 Sept 2018 The applicant applies to the AAT for merits review of the delegate's decision Amended Statement of Claim at [11] (SCB Tab 2, p 5); Amended Defence at [11] (SCB Tab 4, p 15) 19 Sept 2018 The applicant meets with an officer from the Removals team for a nine minute "Removal Planning Interview" and formally signs a request for removal to Vietnam. The applicant is described in the interview as "[e]xtremely compliant" and "willing to cooperate". The applicant provides the full names of his father and mother and a telephone number for his father. First Affidavit of Amy Malone at Annexure 11 (CB Tab 11, p 510); CB 1131-1133 21 Sept 2018 The Applicant completed travel document applications and provided certain basic information including his father's date of birth, current residential address in Australia and the fact his grandparents were from Vietnam; other aspects of the application (including the applicants next of kin in Vietnam) are incomplete First Affidavit of Amy Malone at Annexure 2 (CB Tab 11, pp 516-521); 26 Sept 2018 The applicant's case is allocated to Amy Malone to be his removals officer: First Affidavit of Amy Malone at [7] (CB Tab 11, p 469) 27 Sept 2018 Amy Malone provides to the Removals Helpdesk (the unit within the Department responsible for pulling together the necessary paperwork) a copy of the applicant's application for travel documents for Vietnam, which have been signed by the applicant, but which are incomplete First Affidavit of Amy Malone at [9] (CB Tab 11, p 470) 28 Sept 2018 Rachel Colman of the Removals Helpdesk advises Amy Malone that the travel documents application did not contain sufficient information, and suggests that she obtain more. Affidavit of Rachel Colman at [9] (CB Tab 16, p 852) 28 Sept 2018 Rachel Colman emails Amy Malone and attaches family identification documents, copies of which are also stored with the National Archives of Australia Affidavit of Rachel Colman (CB Tab 16, p 863-874) 28 Sept 2018 Amy Malone emails the Status Resolution team at Yongah Hill Detention Centre. She requests that someone ask the applicant if his parents or other family member have Vietnamese birth certificates or any other documentation to support his date of birth, and whether the applicant can find out from his parents exactly where he was born, and which town they lived in Vietnam before leaving. First Affidavit of Amy Malone at Annexure ASM-6 (CB Tab 11, p 543) 28 Sept 2018 Amy Malone emails the Citizenship Helpdesk to recall the applicant's parents' citizenship files First Affidavit of Amy Malone at [11] (CB Tab 11, p 470), Annexure ASM-5 (CB Tab 11, p 541) 1 Oct 2018 Joanne Adams, Status Resolution Officer at Yongah Hill Detention Centre, speaks with the applicant to question his date of birth and date of arrival First Affidavit of Amy Malone at Annexure ASM-7 (CB Tab 11, pp 561-561) ~4 Oct 2018 Joanne Adams speaks with the applicant again, at which time he passes on information to her in relation to his arrival in Australia that he obtained from his father. The applicant provides Ms Adams his father's mobile phone number First Affidavit of Amy Malone at Annexure ASM-7 (CB Tab 11, pp 559-560) ~4 Oct 2018 Joanne Adams conducts independent research on the internet and locates an article of potential relevance to the applicant's arrival in Australia First Affidavit of Amy Malone at Annexure ASM-7 (CB Tab 11, p 560); Second Affidavit of Alison Battisson at Annexure 15 (Sup CB Tab 7, pp 455-472) 22 Oct 2018 Amy Malone emails Joanne Adams and request that she asks the applicant to get his parents to send the Department copies of any documents to support their birth or Vietnamese citizenship, including details of where they lived and worked in Vietnam First Affidavit of Amy Malone at Annexure ASM-7 (CB Tab 11, p 559) ~22 Oct 2018 Joanne Adams meets with the applicant, who tries to call his parents. The applicant's parents cannot be reached because they are out fishing First Affidavit of Amy Malone at Annexure ASM-7 (CB Tab 11, p 558) 1 Nov 2018 Applicant meets with Michel Fryer-Hornsby. She records in the applicant's monthly case review, under "Activities this period": "SRO provided update on removal planning - Complex Identity, delay in TD procurement" First Affidavit of Michele Fryer-Hornsby at Annexure MFH-1 (CB Tab 7, p 117) 6 Nov 2018 Amy Malone emails ("Jess") Jessica Ziedin, another Status Resolution Officer at Yongah Hill, and asks her to meet with the applicant and "see if we can get documents relating to his parents Vietnamese citizenship" First Affidavit of Amy Malone at Annexure ASM-7 (CB Tab 11, pp 558-559) ~7 Nov 2018 Jessica Ziedin speaks with the applicant, who confirms that he is awaiting his AAT outcome at this end of the month and if it is negative he will go voluntarily and is happy to commence the removals process now just in case. The applicant also says that "although he did previously ring his parents and request details, he has not yet followed up on this and will do so this afternoon". He notes that his parents are "old" and may not be able to recall previous addresses or jobs "but he will ask again" First Affidavit of Amy Malone at Annexure ASM-7 (CB Tab 11, p 558); Transcript 27 April 2021, p 60:11-12 (XXN of applicant) 19 Nov 2018 Amy Malone sends an email to Yongah Hill and to the WA Removals team noting the complexity of the applicant's case First Affidavit of Amy Malone at Annexure ASM-7 (CB Tab 11, p 557) 20 Nov 2018 The applicant withdrew his request for removal First Affidavit of Amy Malone at Annexure ASM-7 (CB Tab 11, p 557), Annexure ASM-11 (CB Tab 11, pp 586-587) 26 Nov 2018 Amy Malone sends an email noting the closure of the Applicant's removals service and asking for the outcome of (apparently erroneous) referral to "VIC" to try to obtain more personal details. Ms Malone instructs that the applicant's "application can be suspended until further notice" First Affidavit of Amy Malone at Annexure ASM-12 (CB Tab 11, p 589); Second Affidavit of Amy Malone at [2]-[6] (CB Tab 19, 29 Nov 2018 (Second date from which false imprisonment is alleged) AAT affirms the delegate's decision not to revoke the cancellation of the applicant's visa Amended Statement of Claim at [12] (SCB Tab 2, p 5); Amended Defence at [12] (SCB Tab 4, p 15) 5 Dec 2018 The applicant signs another request to be removed to Vietnam. First Affidavit of Amy Malone at Annexure ASM-13 (CB Tab 13, pp 607-609) 5 Dec 2018 The applicant meets with Jessica Zieden (SRO), and tells her that he never intended to withdraw his request for removal and asks her about applying for a Vietnamese citizenship certificate. The applicant provides additional identify documents relating to his father, which Jessica Zieden sends to Amy Malone. First Affidavit of Amy Malone at [29] (CB Tab 13, p 474), Annexure ASM-13 (CB Tab 13, p 597) 5 Dec 2018 The applicant's case is reallocated to Amy Malone as his Removals Officer First Affidavit of Amy Malone at [28] (CB Tab 11, p 474) 10 Dec 2018 Amy Malone emails the Removals Helpdesk to ask what the process is for obtaining the applicant's parents birth certificates. Amy Malone is hoping to obtain for the applicant Vietnamese citizenship by naturalization. First Affidavit of Amy Malone at Annexure ASM-13 (CB Tab 11, p 614) 11 Dec 2018 At Amy Malone's request, Alone Kevan, another Status Resolution Officer at Yongah Hill, meets with the applicant to obtain from him his parents' names, date and place of birth and household address in Vietnam. The applicant provides his mother's place of birth but says that his parents do not have Vietnamese birth certificates, citizenship certificate or a marriage certificate. The applicant says that he does not have any relatives in Vietnam First Affidavit of Amy Malone at Annexure ASM-14 (CB Tab 11, p 612) 11 December 2018 Amy Malone goes on leave until 15 January 2019, Applicant is not allocated a removals officer in this period Transcript 27 April 2021, p (XXN of Malone) 14 Dec 2018 Amanda Turner sends Vietnamese MOU Caseload Update. There are no entries in relation to the applicant's case Tender Bundle at Tab 1, pp 1-5 20 Dec 2018 Amanda Turner at the Removals Helpdesk writes to the Department's outpost in Hanoi (referred to as "Post") for advice as to how the applicant might obtain Vietnamese citizenship in the absence of any proof of either of his parents' birth in Vietnam. She forwards to Post the information provided by the applicant to Ms Malone. Affidavit of Amanda Turner at [13] (CB Tab 9, p 377), Annexure ANT-3 (CB Tab 9, p 405) 21 Dec 2018 Applicant meets with Michele Fryer-Hornsby. He tells her he is unsure if he is a citizen of Vietnam and that he and his family are trying to make an application to the Vietnamese government for a residency visa "based on his parents previous citizenship [sic]" First Affidavit of Michele Fryer-Hornsby at Annexure MFH-2 (CB Tab 7, p 145) 21 Dec 2018 Amanda Turner sends Vietnamese MOU Caseload Update. There are no entries in relation to the applicant's case Tender Bundle at Tab 2, pp 6-11 Pre-10 Jan 2019 Amanda Turner visits the Vietnamese Embassy in Canberra and asks about progressing the applicant's citizenship application. Staff at the Embassy tell her that they might issue travel documents to the applicant if they had proof of his mother's Vietnamese citizenship Affidavit of Amanda Turner at Annexure ANT-3 (CB Tab 9, p 404) 10 Jan 2019 Amanda Turner emails Post asking for help in light of Embassy's indication regarding the applicant's mother's citizenship. Post and Amanda Turner exchange replies on the same day Affidavit of Amanda Turner at Annexure ANT-3 (CB Tab 9, pp 403-404) 11 Jan 2019 Amanda Turner sends Vietnamese MOU Caseload Update. There are no entries in relation to the applicant's case Tender Bundle at Tab 3, pp 12-17 15 Jan 2019 Amy Malone emails Removals Helpdesk (Amanda Turner) with an update on the applicant's case First Affidavit of Amy Malone at Annexure ASM-15 (CB Tab 11, pp 627-628) 23 Jan 2019 Amy Malone receives the applicant's parent's hardcopy citizenship files from archives and searches them for information that might useful. Amy Malone forwards what she finds (including details relating to the applicant's grandparents) to the Removals Helpdesk. First Affidavit of Amy Malone at [34] (CB Tab 11, p 475), Annexure ASM-15 (CB Tab 11, p 627) 24 Jan 2019 Amy Malone and Removals Helpdesk (Nicole Andersen) exchange emails in which Amy Malone re-shares information relating to the applicant's father First Affidavit of Amy Malone at Annexure ASM-15 (CB Tab 11, pp 624-625) 24 Jan 2019 Removals Helpdesk (Nicole Andersen) forwards the information relating to the applicant's parents to Post, asking for their assistance First Affidavit of Amy Malone at Annexure ASM-15 (CB Tab 11, pp 633-634) 25 Jan 2019 Post respond to Nicole Andersen of the Removal Helpdesk advising that "We won't be able to refer this case to MPSI for identity verification like other MOU cases. He is not yet considered a MOU case as he does not have Vietnamese citizenship". Post advises that they will contact the Vietnamese Consular Department (Ministry of Foreign Affairs) about the applicant's case First Affidavit of Amy Malone at Annexure ASM-15 (CB Tab 11, pp 632-633) 25 Jan 2019 Nicole Andersen sends Vietnamese MOU Caseload Update. The applicant is listed (incorrectly) as "Involuntary" and the status of the applicant's case is recorded as "Insufficient personal details WA to obtain more personal details to assist with identity verification" Tender Bundle at Tab 4, pp 18-23 25 Jan 2019 Nicole Andersen sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 25 Jan 2019 Tender Bundle at Tab 5, pp 24-28 30 Jan 2019 Amy Malone and Removals Helpdesk (Nicole Andersen) exchange emails regarding the applicant's case and the advice received from Post First Affidavit of Amy Malone at Annexure ASM-15 (CB Tab 11, pp 623-624) 1 Feb 2019 Nicole Andersen sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 25 Jan 2019 Tender Bundle at Tab 6, pp 29-32 1 Feb 2019 At his request, the applicant is transferred from Yongah Hill to Brisbane Immigration Transit Accommodation (BITA) First Affidavit of Amy Malone at Annexure ASM-16 (CB Tab 11, p 636) 8 Feb 2019 Nicole Andersen sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 25 Jan 2019 Tender Bundle at Tab 7, pp 33-36 11 Feb 2019 The applicant's case is allocated to a removals officer in Brisbane, Natalie Jackson Affidavit of Natalie Jackson at [5] (CB Tab 13, pp 684-685), Annexure NJJ-1 (CB Tab 13, p 692) 15 Feb 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 25 Jan 2019 Tender Bundle at Tab 8, pp 37-40 18 Feb 2019 Amanda Turner (Removals Helpdesk) sends an email to Natalie Jackson with relevant travel document application forms and a birth registration form. Natalie Jackson meets with the applicant and provides him the documents Affidavit of Natalie Jackson at [9] (CB Tab 13, p 685) 22 Feb 2019 Natalie Jackson meets with the applicant again Affidavit of Natalie Jackson at [10] (CB Tab 13, p 686) 22 Feb 2019 Rachel Colman (Removals Helpdesk) resumes responsibility for the Vietnamese caseload at around this time. She sends an email to Post requesting an update on the applicant's case, and an email to Natalie Jackson advising what is required for a Vietnamese birth certificate Affidavit of Rachel Colman at Annexure RMC-3 (CB Tab 16, p 917), Annexure RMC-2 (CB Tab 16, p 906) 22 Feb 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 25 Jan 2019 Tender Bundle at Tab 9, pp 41-45 22 Feb 2019 Natalie Jackson emails Rachel Colman to point out the error in the entry for the applicant's case in the Vietnamese MOU Caseload Update Affidavit of Rachel Colman at [12], [14] (CB Tab 16, pp 853-853), Annexure RMC-2 (CB Tab 16, p 907) 27 Feb 2019 Natalie Jackson meets with the applicant. He provides to her a completed birth registration form Affidavit of Natalie Jackson at [12] (CB Tab 13, p 686) 28 Feb 2019 Natalia Jackson and Rachel Colman exchange emails about the applicant's case Affidavit of Natalie Jackson at [13] (CB Tab 13, pp 686-687) ~28 Feb 2019 Rachel Colman lodges the applicant's application for a Vietnamese birth certificate with the Vietnamese Embassy. She discusses with the Embassy the possibility of an interview with the applicant's mother for the purpose of verifying her and the applicant's identities Affidavit of Rachel Colman at [20]-[21] (CB Tab 16, p 854), [21] (CB Tab 16, p 854) 1 Mar 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is "Insufficient personal details WA to obtain more personal details to assist with identity verification. RHD trying to progress birth registration with Embassy" Tender Bundle at Tab 10, pp 46-50 1 Mar 2019 Natalie Jackson meets with the applicant. Rachel Colman and Natalie Jackson exchange emails about a contact phone number for the applicant's parents to give to the Embassy. Those emails contain reference to an "old family friend/distant relative that lives near Ho Chi Minh City that may be able to assist" Affidavit of Natalie Jackson at [17] (CB Tab 13, p 687); Affidavit of Rachel Colman at [23] (CB Tab 16, p 854) 5 Mar 2019 Natalie Jackson and Rachel Colman exchange emails which indicate that the Vietnamese Embassy is having trouble getting in contact with the applicant's parents Affidavit of Rachel Colman at Annexure RMC-4 (CB Tab 16, p 923) 8 Mar 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 1 Mar 2019 Tender Bundle at Tab 11, pp 51-55 12 Mar 2019 Rachel Colman seeks an update from the Embassy on 12 March 2019. Embassy staff advised her that the applicant's mother appeared to know little of the applicant's life as an adult, but did inform them that the applicant was born on-shore in Vietnam, and not on a boat, as the applicant had previously informed the Department. The Vietnamese Embassy provide Rachel Colman with a new form - in Vietnamese - and ask that the applicant complete the form "with as much information as possible" Affidavit of Rachel Colman at [24] (CB Tab 16, p 854), Annexure RMC-6 (CB Tab 16, p 937) 15 Mar 2019 Rachel Colman sends Vietnamese MOU Caseload Update. Save that the applicant's location is changed to QLD, the status of the applicant's case is unchanged from 1 Mar 2019 Tender Bundle at Tab 12, pp 56-60 pre-18 Mar 2019 Post in Hanoi contact the Consular Department in Vietnam regarding the applicant's case. The Consular Department provides advice regarding the process for obtaining travel documents. Affidavit of Rachel Colman at Annexure RMC-3 (CB Tab 16, p 915) 18 Mar 2019 Rachel Colman and Post exchange emails regarding the applicant's case. Post advises of the response from the Vietnamese Consular Department Affidavit of Rachel Colman at Annexure RMC-3 (CB Tab 16, p 915) 21 Mar 2019 Natalie Jackson provides Rachel Colman with the applicant's completed application forms (some parts of which are left incomplete) Affidavit of Rachel Colman at Annexure RMC-7 (CB Tab 16, p 100) 22 Mar 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 1 Mar 2019 Tender Bundle at Tab 13, pp 61-65 pre-25 Mar 2019 Rachel Colman lodges the applicant's application forms with the Vietnamese Embassy Affidavit of Rachel Colman at [27] (CB Tab 16, p 855), Annexure RMC-8 (CB Tab 16, p 961)) 29 Mar 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 1 Mar 2019 Tender Bundle at Tab 14, pp 66-70 5 Apr 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 1 Mar 2019 Tender Bundle at Tab 15, pp 71-75 12 Apr 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 1 Mar 2019 Tender Bundle at Tab 16, pp 76-80 26 Apr 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is changed to "Insufficient personal details WA to obtain more person details to assist with identity verification. RHD trying to progress birth registration with Embassy- no recent updates, still pending." Tender Bundle at Tab 17, pp 81-85 3 May 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 26 Apr 2019 Tender Bundle at Tab 18, pp 86-90 9 May 2019 Rachel Colman asks the Vietnamese Embassy for an update on the applicant's case. They confirm that the applicant's citizenship application has been sent to Vietnamese immigration for processing and Embassy is waiting to hear from the authorities in Vietnam Affidavit of Rachel Colman at [28] (CB Tab 16, p 855) 10 May 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 26 Apr 2019 Tender Bundle at Tab 19, pp 91-95 17 May 2019 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 26 Apr 2019 Tender Bundle at Tab 20, pp 96-100 24 May 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 26 Apr 2019 Tender Bundle at Tab 21, pp 101-105 31 May 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 26 Apr 2019 Tender Bundle at Tab 22, pp 106-111 7 June 2019 (Third date from which false imprisonment is alleged) Rachel Colman asks the Vietnamese Embassy for an update on the applicant's case. The Embassy advise that the Vietnamese authority have concluded that "there is no evidence that Mr Tran was born and used to live in Viet Nam. So we can not process the Birth Certificate and Travel document for him". The Embassy also advised that they had asked the Vietnamese authority for "further instructions" regarding the applicant's case. Affidavit of Rachel Colman at Annexure RMC-9 (CB Tab 16, p 976) 7 June 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 26 Apr 2019 Tender Bundle at Tab 23, pp 112-117 11 June 2019 Natalie Jackson updates her team leaders and meets with the applicant to advise him of the outcome of his citizenship application Affidavit of Natalie Jackson at [26] (CB Tab 13, p 689) 14 June 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 26 Apr 2019 Tender Bundle at Tab 24, pp 118-122 18 June 2019 Matt Todd, a team leader of Natalie Jackson's, suggests a s 195A assessment Affidavit of Natalie Jackson at [27] (CB Tab 13, p 689) 19 June 2019 A "s 195a enquiry" was sent to Complex Case Resolution Affidavit of Bronwyn Ellis at Annexure BJE-1 (CB Tab 8, p 217) 21 June 2019 The Applicant's "Case Objective" changes from "Removal" to MI [Ministerial Intervention] Outcome" in his Case Reviews. Affidavit of Bronwyn Ellis at Annexure BJE-1 (CB Tab 8, p 218); compare affidavit of Stuart Foley at Annexure SJF-1 (CB Tab 10, p 458) 21 June 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is changed to "Insufficient personal details QLD to obtain more personal details to assist with identity verification. RHD trying to progress case with Embassy. Embassy have advised that they cannot action birth registration for Mr TRAN, but they will seek other options and let us know" Tender Bundle at Tab 25, pp 123-128 24 June 2019 Request for Ministerial intervention in the applicant's case is made Affidavit of Bronwyn Ellis at Annexure BJE-1 (CB Tab 8, p 227) 28 June 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 21 June 2019 Tender Bundle at Tab 26, pp 129-134 5 July 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 21 June 2019 Tender Bundle at Tab 27, pp 135-140 12 July 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 21 June 2019 Tender Bundle at Tab 28, pp 141-146 17 July 2019 Natalie Jackson closes the applicant's (State-based) "removals file" as a ministerial intervention request had been made and Removals Helpdesk were awaiting further information from the Vietnamese authorities Affidavit of Natalie Jackson at [29] (CB Tab 13, p 689); Transcript 10 May 2021, p 11: 35-38 (XXN of Jackson) 19 July 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 21 June 2019 Tender Bundle at Tab 29, pp 147-152 26 July 2019 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 21 June 2019 Tender Bundle at Tab 30, pp 153-158 7 Aug 2019 The Vietnamese Embassy advise Rachel Colman that the Vietnamese authority has been unable to verify the applicant's identity. Rachel Colman updates Natalie Jackson and Post Affidavit of Rachel Colman at [32]-[34] (CB Tab 16, pp 855-856), Annexure RMC-11 (CB Tab 16, p 985) Mid-late 2019 Anthony Kneipp (Principal Migration Officer) tasks Post with resolving protracted cases through, at the first instance, processes established under the MOU with the Vietnamese Government First Affidavit of Anthony Kneipp at [16] (CB Tab 12, p 643); Transcript 27 April 2021, p 32: 45 - p 33: 7 (XXN of Kneipp) 9 Aug 2019 Rachel Colman sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 21 June 2019 Tender Bundle at Tab 31, pp 159-164 16 Aug 2019 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 21 June 2019 Tender Bundle at Tab 32, pp 165-169 23 Aug 2019 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 21 June 2019 Tender Bundle at Tab 33, pp 170-175 6 Sept 2019 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 21 June 2019 Tender Bundle at Tab 34, pp 176-181 13 Sept 2019 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 21 June 2019 Tender Bundle at Tab 35, pp 182-187 20 Sept 2019 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is changed to remove the struck through words in the following: "Insufficient personal details: QLD to obtain more personal details to assist with identity verification. RHD trying to progress case with Embassy. Embassy have advised that they cannot action birth registration for Mr TRAN, but they will seek other options and let us know" Tender Bundle at Tab 36, pp 188-193 27 Sept 2019 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 20 Sept 2019 Tender Bundle at Tab 37, pp 194-198 11 Oct 2019 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 20 Sept 2019 Tender Bundle at Tab 38, pp 199-203 18 Oct 2019 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 20 Sept 2019 Tender Bundle at Tab 39, pp 204-209 11 Nov 2019 Applicant requested to speak to ABF removals regarding voluntary removal. ABF removals advise applicant "they are unable to remove him or assist with any further PPT [passport] applications" First Affidavit of Bronwyn Ellis at Annexure 1 (CB Tab 8, p 264) Late 2019 A number of protracted cases remain unresolved despite attempts by Post to progress them using the processes established under the MOU. Anthony Kneipp progresses a plan to resolve these cases by way of a delegation of Vietnamese officials First Affidavit of Anthony Kneipp at [16] (CB Tab 12, p 643); Transcript 27 April 2021, p 33: 9 - 46 - p 34: 2 (XXN of Kneipp) 16 Dec 2019 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is changed to include the underlined words in the following: "Insufficient personal details: Embassy have advised that they cannot action birth registration for Mr TRAN, but they will seek other options and let us know. 22/11/2019 no update- RHD to follow up next week" Tender Bundle at Tab 40, pp 210-213 16/17 Dec 2019 Teleconference between Anthony Kneipp (Principal Migration Officer in Post) and Alison Goodwill (International Policy Division int he Department about the Vietnamese case load and a possible delegation of Vietnamese officials to Australia First Affidavit of Anthony Kneipp at [18] (CB Tab 12, p 643) 18 Dec 2019 Anthony Kneipp emails the International Policy Division setting out his proposal for the delegation and saying "be prepared for the likelihood that he will not be recognised and consider other options." First Affidavit of Anthony Kneipp at [17], [20] (CB Tab 12, p 643), Annexure AJK-2 (CB, Tab 12, pp 654-655) 13 Jan 2020 (Fourth date from which false imprisonment is alleged) The applicant receives correspondence from the Vietnamese Embassy advising him personally (rather than through the Department) that he was not recognised as a citizen of that country Fifth Affidavit of Alison Battisson at Annexure AMB5-1 (SCB, Tab 10, p 569) 21 Jan 2020 Anthony Kneipp has a teleconference with Alison Goodwill, Emily Dowling and Sally Davis about the delegation. Ms Colman or Ms Turner may also have taken part. First Affidavit of Anthony Kneipp at [21]-[22] (CB Tab 12, p 644) 7 Feb 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is changed to "Insufficient personal details: Vietnam have advised they have no record- Possible details to be updated from Mother?" Tender Bundle at Tab 41, pp 214-217 11 Feb 2020 Anthony Kneipp, Oanh Ngo and Kien Mai (all from Post) met with representatives from the removals area of MPSI (the Vietnamese authority) to discuss the delegation. Anthony Kneipp then updates Alison Goodwill, Sally Davis and others about the meeting. First Affidavit of Anthony Kneipp at [23]-[25]. [26] (CB Tab 12, p 644) 12 Feb 2020 Sally Davis emails Anthony Kneipp with input about the delegation First Affidavit of Anthony Kneipp at [27] (CB Tab 12, p 645) 14 Feb 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 7 Feb 2020 Tender Bundle at Tab 42, pp 218-221 21 Feb 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 7 Feb 2020 Tender Bundle at Tab 43, pp 222-225 24 Feb 2020 Amanda Turner sends a message to Natalie Jackson asking whether the applicant would be interested in meeting with the delegation. Natalie Jackson forwards the message to the applicant's Status Resolution Officer at the time, Bronwyn Ellis Affidavit of Natalie Jackson at [32] (CB Tab 13, p 690) 26 Feb 2020 Alison Goodwill emails Anthony Kneipp with input about the delegation First Affidavit of Anthony Kneipp at [28] (CB Tab 12, p 645) 27 Feb 2020 Funding for the delegation is approved First Affidavit of Anthony Kneipp at [29] (CB Tab 12, p 645), Annexure AJK-5 (CB Tab 12, pp 676-677) 28 Feb 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 7 Feb 2020 Tender Bundle at Tab 44, pp 226-229 March 2020 (Fifth date from which false imprisonment is alleged) The Vietnamese delegation is postponed. Commercial flights into Vietnam are restricted and SERCO security escorts on commercial and charter flights are suspended First Affidavit of Anthony Kneipp at [30] (CB Tab 12, p 645); Affidavit of Sally Davis at [12] (CB Tab 17, p 992), [18] (CB Tab 17, p 993) 4 Mar 2020 Bronwyn Ellis asks the applicant if he would like to take part in the delegation and the applicant says to her that he would First Affidavit of Bronwyn Ellis at [27]-[28] (CB Tab 8, p 193) 5 Mar 2020 Bronwyn Ellis emails Amanda Turner and advises her that the applicant is interested in taking part in the delegation First Affidavit of Bronwyn Ellis at [29] (CB Tab 8, 193) 6 Mar 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is changed to include the underlined words in the following: "Insufficient personal details: Vietnam have advised they have no record- Possible details to be updated from Mother. Willing to speak with Vietnamese authorities" Tender Bundle at Tab 45, pp 230-233 17 Apr 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is changed to "Insufficient personal details: Vietnam have advised they have no record- Possible interview may help." Tender Bundle at Tab 47, pp 239-243 24 Apr 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 48, pp 244-248 1 May 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 49, pp 249-253 15 May 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 50, pp 254-258 22 May 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 51, pp 259-263 5 June 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 52, pp 264-268 12 June 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 53, pp 269-274 22 June 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 54, pp 275-280 26 June 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 55, pp 281-286 3 July 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 56, pp 287-292 10 July 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 57, pp 293-298 17 July 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 58, pp 299-304 24 July 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 59, pp 305-310 31 July 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 60, pp 311-317 14 Aug 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 61, pp 318-323 28 Aug 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 62, pp 324-328 7 Sept 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 63, pp 329-333 11 Sept 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 64, pp 334-338 18 Sept 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 65, pp 339-343 25 Sept 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 66, pp 344-349 2 Oct 2020 Tracey Cremerius sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 67, pp 350-354 9 Oct 2020 Tracey Cremerius sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 68, pp 355-360 16 Oct 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 69, pp 362-366 23 Oct 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 70, pp 367-372 30 Oct 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 71, pp 373-378 16 Nov 2020 Commonwealth writes that "The Vietnamese Consulate have advised that they were unable to verify Mr Tran's identity, or the identities of his family members, and that they therefore rejected his application for a passport. On that basis, planning for Mr Tran's removal has not continued. In light of this, a Ministerial Intervention process is being progressed." First Affidavit of Alison Battisson Annexure 1 (Sup CB Tab 5, p 31) 30 Nov 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 72, pp 379-382 7 Dec 2020 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 17 Apr 2020 Tender Bundle at Tab 73, pp 383-387 Late Dec 2020 Amanda Turner speaks to Vietnamese Embassy and discusses the applicant's case. The Embassy advises that it could do nothing further because they could not verify the applicant's identity Affidavit of Amanda Turner at [31] (CB Tab 9, p 380) Late 2020 or early 2021 Anthony Kneipp canvasses with the Vietnamese authorities the possibility of conducting verification interviews virtually, which is rejected First Affidavit of Anthony Kneipp at [31]-[33] (CB Tab 12, pp 645-646) Transcript 27 April 2021, p 34:28-29 (XXN of Kneipp); p 37: 24-36 (RXN of Kneipp) 4 Jan 2021 Amanda Turner updates the QLD Removals team as to her conversation with the Embassy Affidavit of Amanda Turner at [32] (CB Tab 9, p 380), Annexure ANT-10 (CB Tab 9, p 440) Jan 2021 Anthony Kneipp meets with Vietnamese authorities and discusses the delegation. They confirm that Vietnam still wants the delegation to go ahead, but not until after the COVID-19 pandemic is over First Affidavit of Anthony Kneipp at [33] (CB Tab 12, pp 646) 18 Feb 2021 Paul Hollis, Consul (Home Affairs) makes a further request of the Vietnamese authority to conduct an identity verification interview with the applicant virtually, by way of a Third Person Note Affidavit of Paul Hollis at [6]-[7] (CB Tab 15, p 838), Annexure PSH-1 (CB Tab 15, pp 841-843) 1 Mar 2021 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is changed to remove the struck out words and include the underlined words in the following: "Insufficient personal details: Vietnam have advised they have no record Possible interview may help. of Mr Tran or his parents. More information required from Mr TRAN" Tender Bundle at Tab 74, pp 388-391 5 Mar 2021 The Vietnamese respond to the Third Person Note, rejecting the possibility of a virtual interview with the applicant, but reaffirming their commitment to send a delegation once the COVID019 pandemic is over Affidavit of Paul Hollis at [8] (CB Tab 15, p 838), Annexure PSH-2 (CB Tab 15, pp 845-846) 5 Mar 2021 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 1 Mar 2021 Tender Bundle at Tab 75, pp 392-396 19 Mar 2021 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is changed to include the words in bold in the following: "Insufficient personal details: Vietnam have advised they have no record of Mr Tran or his parents. More information required from Mr TRAN. With QLD" Tender Bundle at Tab 76, pp 397-401 26 Mar 2021 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 1 Mar 2021 Tender Bundle at Tab 77, pp 402-407 8 April 2021 Applicant's father died Transcript 27 April 2021, p 51: 45 (EIC of Applicant) 9 Apr 2021 Amanda Turner sends Vietnamese MOU Caseload Update. The status of the applicant's case is unchanged from 1 Mar 2021 Tender Bundle at Tab 78, pp 408-413 16 Apr 2021 Patricia Metzlar emails the applicant's affidavit to Qld Removals in case it can assist in progressing his removal SCB Tab 15, p 600 16 Apr 2021 Matthew Bishop emails Craig Katlewski to see if the additional information from the applicant would be useful in progressing travel documents SCB Tab 15, p 599 16 Apr 2021 Craig Katlewski emails Sally Davis regarding new information, and Ms Davis directs him to Removals Helpdesk SCB Tab 15, p 598 16 Apr 2021 Mitch Buckley emails Craig Katlewski and Removals regarding the new information SCB Tab 16, p 601 20 Apr 2021 Amanda Turner replies to Mitch Buckley regarding the new information SCB Tab 16, p 601

War‑time Refugees Removal Act 1949(Cth)

Migration Act 1958(Cth)ss 4, 14, 189(1), 195A, 196(1), 196(2), 196(3), 196(4), 198(1), 501(3A)

At a glance

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Catchwords

Judgment (8 paragraphs)

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Legislation Cited (2)

Cases Cited (22)

Cited By (6)