AZC20 v Secretary, Department of Home Affairs (No 2) [2023] FCA 1497 (30 November 2023)

Last Updated: 30 November 2023

FEDERAL COURT OF AUSTRALIA

AZC20 v Secretary, Department of Home Affairs (No 2) [2023] FCA 1497

ORDERS

THE COURT ORDERS THAT:

1. A writ of habeas corpus issue requiring the respondents to release the applicant forthwith.
2. The proceeding be listed for case management at 9:30am on 5 December 2023.

REASONS FOR JUDGMENT

KENNETT J:

INTRODUCTION

1. The history of this matter was set out in reasons for an interlocutory judgment that I delivered on 18 October 2023: [2023] FCA 1252 (at [1]–[7]). For ease of reference, I set it out again here.

This proceeding, commenced in 2021, has a convoluted backstory. Very briefly, it is as follows.

(a) The applicant arrived in Australia in 2013. He is an “unauthorised maritime arrival”, as that term is defined in the Migration Act 1958 (Cth) (the Act) and is therefore unable to apply for any visa except by way of an exercise of discretion on the part of the Minister administering the Act (the Minister). He has been in immigration detention since his arrival.

(b) In August 2015 the Minister made a decision under s 46A of the Act to allow the applicant to make an application for a protection visa. He made that application in September 2015. For presently unexplained reasons, it took until May 2018 for a delegate of the Minister to make a decision on that application. The protection visa application was not finally resolved until 12 February 2021 when the Immigration Assessment Authority (IAA), for the third time, affirmed the decision of the delegate to refuse to grant the visa (two earlier decisions of the IAA having been set aside on judicial review).

(c) On 24 February 2021 the applicant commenced a proceeding seeking, inter alia, an order of habeas corpus. The foundation for the habeas claim was removed by the judgment of the High Court in Commonwealth v AJL20 [2021] HCA 21; 273 CLR 43 (AJL20 HCA). The applicant then sought mandamus to compel his removal from Australia. As part of this claim, he argued that s 198AD(2) of the Act applied to him and that the officers detaining him had failed to perform the duty, under that provision, to remove him to a regional processing country (RPC).

(d) In a judgment delivered on 27 October 2021, Rangiah J accepted this argument and made a declaration accordingly: AZC20 v Minister for Home Affairs [2021] FCA 1234 (AZC20 FC). His Honour also made an order in the nature of mandamus and certain other orders in relation to the detention of the applicant pending his removal to a RPC.

(e) Shortly thereafter, the Minister made a determination under s 198AE of the Act that s 198AD(2) did not apply to the applicant. Even though the orders made in AZC20 FC therefore had no ongoing effect (in that the removal duty found by his Honour no longer applied), the respondents filed a notice of appeal from that judgment on 10 November 2021. That appeal succeeded in the Full Court: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52; 290 FCR 149 (Jagot, Mortimer and Abraham JJ) (AZC20 FFC). However, the judgment in AZC20 FFC was recently set aside by the High Court on the ground that, the relevant issues having been rendered moot, the Court had no jurisdiction to hear the appeal: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 97 ALJR 674 (AZC20 HCA).

(f) Meanwhile, the current proceeding was commenced in the Federal Circuit and Family Court on 15 November 2021. It was transferred to this Court ten days later.

This proceeding was also allocated to Rangiah J, who initially adjourned it to await the outcome of AZC20 FFC. On 1 June 2022, his Honour ordered that the matter proceed on pleadings. The applicant commenced two other proceedings in 2022, which were also allocated to his Honour. Those proceedings were initially stayed by his Honour but later ordered to be heard together with this one. They have since been discontinued. All of the applicant’s proceedings were reallocated to me in February 2023. The applicant, who was then unrepresented and in a fragile mental state, had asked Rangiah J to disqualify himself and his Honour acceded to this request.

The respondent named in the amended originating application is the Secretary to the Department of Home Affairs; however, the Minister for Immigration, Citizenship and Multicultural Affairs was joined as the second respondent in July 2023 and is named as the second respondent in the amended statement of claim. By his amended originating application, the applicant seeks the following orders:

(1) An order that the respondent must perform, or cause to be performed, the duty under s 198 of the Migration Act 1958 (Cth) to, as soon as reasonably practicable, remove the applicant from Australia other than to Iran.

(2) A declaration that it would be unlawful for the respondent to remove, or cause to be removed, the applicant to Iran.

(3) A declaration that the respondent must afford procedural fairness to the applicant in relation to the proposed destination of his removal under s 198 of the Migration Act 1958 (Cth).

(4) An order that from no later than 1.00 pm AEDT on 14 days after judgment:

(a) The respondent is to cause any detention of the applicant in immigration detention pending performance of his duty under s 198 of the Migration Act 1958 (Cth) to occur at the address set out in the affidavit of Anette Hermann filed on 8 September 2021; and

(b) The applicant be detained at that address by being in the company of and restrained by one or more “officers” as defined under Migration Act 1958 (Cth), or by another person or persons directed by the respondent to accompany and restrain the applicant.

On 27 April 2023, at which time the applicant was still unrepresented, I set the matter down for hearing on 12 September 2023 for one day. Later, counsel and solicitors who had previously acted for the applicant commenced to act for him again.

At the hearing on 12 September 2023 it quickly became apparent that the matter was not ready for final hearing and would require more than one day. The applicant sought to amend his statement of claim as a consequence of reasoning in AZC20 HCA and the respondents resisted this amendment in part. Both sides wished to file further material. The applicant wished to renew an application for discovery that had been raised before Rangiah J in 2022 but (for reasons that do not need to be explored here) had not resulted in the making of any orders.

Some affidavit evidence was able to be read. One witness for the respondents, Ms Sally Davis, was cross-examined.

Somewhat unusually (given that the trial had commenced), I set the matter down for case management on 19 September 2023. Competing orders were proposed. I set the matter down for a hearing on the disputed amendments to the statement of claim on 4 October 2023 and made orders for the production of further documents, further affidavits and further written submissions. Taking into account the applicant’s earnest wish for the matter to be resolved sooner rather than later, I set a relatively compressed timetable for these steps and fixed the matter for a (resumed) final hearing on 5 and 6 December 2023.

2. Intertwined with this procedural history is the story of a human being who, without being convicted of any crime, has been detained for ten years. Kiefel CJ, Gordon and Steward JJ, in AZC20 HCA at [1], described it as “an extraordinarily long deprivation of the [applicant’s] liberty by way of executive detention”. It is true that, for a significant part of this period, the applicant was engaged in seeking a visa and therefore not liable to be removed from Australia. However, it is a matter for serious concern that it took two years for the Minister to decide to permit the applicant to make a visa application, longer for a primary decision to be made on that application and longer still for review processes to be completed, while he languished in detention. The applicant has been liable for removal from Australia since at least February 2021 (earlier, if requests that he made for removal are taken into account) and has not yet been removed.
3. On 8 November 2023 the High Court delivered its decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (Case S28/2023) with reasons to be delivered later. Until that time the present case was proceeding on the basis, established by Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 (Al-Kateb), that s 196 of the Act required the applicant to be kept in immigration detention until he was granted a visa or removed from Australia, and this requirement persisted even if his removal was never likely to become practicable. However, in NZYQ, the Court decided that the detention of the plaintiff was unlawful, on the basis (contrary to Al-Kateb) that there was no real prospect of his removal becoming practicable in the reasonably foreseeable future.
4. The following day, the present case was before me for a further interlocutory argument. However, the applicant sought to amend his originating application further in the light of NZYQ. The amendment sought to add a prayer seeking a writ of habeas corpus. The respondents did not oppose the amendment.
5. The application for habeas corpus was set down for hearing on 23 November 2023. By agreement, the other aspects of the case were deferred to await the outcome of that application.
6. The issue that requires resolution is, therefore, whether the detention of the applicant is currently authorised by relevant provisions of the Act.

HABEAS CORPUS

7. Principles relating to the grant of a writ of habeas corpus were recently discussed by the Full Court in AKW22 v Commonwealth [2023] FCAFC 71; 297 FCR 650 at [7]–[20] (Rares, O’Sullivan and Feutrill JJ). It is not necessary to repeat that discussion here. It is sufficient to note that an applicant for habeas corpus has an evidentiary onus to show an arguable basis that, at the time of the hearing, their detention is unlawful. If that is achieved, the onus shifts to the respondent to prove, on the balance of probabilities, that detention is lawful. The respondents accepted that the initial evidentiary onus had been met. The onus therefore fell on the respondents to prove the facts necessary to establish that the applicant is lawfully detained.
8. The nature of the onus that falls on the detainer in a habeas corpus case was considered in detail in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 (McHugh). The standard of proof is the civil standard (the balance of probabilities); however, as always, the degree of persuasion that must be achieved reflects the seriousness of the issues involved. Deprivation of liberty by the executive is a denial of the most fundamental of human rights, and the courts therefore require “clear and cogent” proof of all matters bearing on the lawfulness of that deprivation: at [57] (Allsop CJ). Common law evidentiary presumptions that might otherwise obviate the need for specific proof, such as the presumption of continuance, are not available to the detainer: at [53] (Allsop CJ), [328]–[334] (Mortimer J).
9. McHugh concerned an Aboriginal man who relied on the holding in Love v The Commonwealth [2020] HCA 3; 270 CLR 152 to argue that he was not an “unlawful non-citizen” and therefore not liable to be detained under the Act. The issues in relation to habeas corpus turned on whether the Minister had proved that, at the date of trial, an officer “reasonably suspected” that he was an unlawful non-citizen — a specific state of mind that, the Full Court held, needed to be specifically proved as at the relevant time.

LEGAL FRAMEWORK

Relevant provisions of the Act

10. Section 189 of the Act requires an officer to detain a person who is in the “migration zone” if the officer reasonably suspects that the person is an “unlawful non-citizen”. An “unlawful non-citizen” is, relevantly, a person in the migration zone who is not an Australian citizen and does not hold a visa (ss 13 and 14).
11. Section 196 of the Act provides, in relation to a person who is detained under s 189, as follows:

196 Duration of detention

(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.

(4A) Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.

(5) To avoid doubt, subsection (4) or (4A) applies:

(a) whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and

(b) whether or not a visa decision relating to the person detained is, or may be, unlawful.

(5A) Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.

(6) This section has effect despite any other law.

(7) In this section:

visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).

12. I have set out the whole of s 196 in order to emphasise the strictness of its requirement for the detention of unlawful non-citizens. Section 196(1) is clearly the central provision. Read according to its terms, it requires a person who is an unlawful non-citizen to be detained until either they are granted a visa or they are taken out of Australia by removal under s 198, deportation under s 200 or being taken to a regional processing country under s 198AD (only the first of which is presently relevant). This legislative intention is confirmed by sub-ss (3) to (4A). AJL20 HCA made it clear that the requirement to keep a person detained is not conditional on efforts being made to remove that person.
13. Section 198 is the provision under which the present applicant is liable to be removed. Relevantly, it provides as follows.

198 Removal from Australia of unlawful non‑citizens

Removal on request

(1) An officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed.

...

Removal of unlawful non-citizens in other circumstances

...

(6) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:

(a) the non‑citizen is a detainee; and

(b) the non‑citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c) one of the following applies:

(i) the grant of the visa has been refused and the application has been finally determined;

(ii) the visa cannot be granted; and

(d) the non‑citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

14. Sections (1C), (2), (2A), (2B), (5), (7) and (8) of s 198 also provide that an officer “must remove as soon as reasonably practicable an unlawful non‑citizen if” specified circumstances exist.

NZYQ

15. When argument was heard on the habeas corpus application, the reasons of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (NZYQ) had not yet been published. This did not make it impossible to infer the ratio decidendi of the case, although it meant that the principle of law for which it stood would be understood narrowly: see Rupert Cross and JW Harris, Precedent in English Law (Clarendon Press, 4^th ed, 1991) at 47–48. However, the Court’s reasons were published on 28 November 2023 while these reasons were being drafted. Upon invitation from my chambers, the parties filed short written submission on the impact of the High Court’s reasons on 29 November.
16. NZYQ came before the Full Court of the High Court by way of a further amended special case, which set out certain agreed facts and stated questions of law which arose from those facts. The agreed facts included the following:

(a) The plaintiff was a Rohingya Muslim from Myanmar who was stateless. He was not able to obtain citizenship of any country and did not hold a travel document.

(b) After arriving in Australia in 2012 he was detained, but then released on a bridging visa in September 2014.

(c) His bridging visa was cancelled in January 2015 when he was charged with a serious crime. He later pleaded guilty to that crime and was sentenced to a term of imprisonment.

(d) He was released on parole in May 2018 and immediately detained under s 189 of the Act. He was in detention from that time until the case came on for hearing in the High Court.

(e) The plaintiff applied for a protection visa in June 2017. In July 2020 a delegate of the Minister concluded that he was a person in respect of whom Australia had protection obligations on the basis that he was a refugee, having a well-founded fear of persecution in Myanmar. However, the visa was refused under s 36 of the Act on the basis that the plaintiff, having been convicted of a “particularly serious crime”, was a danger to the Australian community. This decision was affirmed by the Administrative Appeals Tribunal in March 2022 and an application for judicial review of the Tribunal’s decision was unsuccessful.

(f) The plaintiff requested that he be removed from Australia in May 2022 but did not ask to be removed to Myanmar (which was relevant because, absent such a request, s 197C of the Act precluded his removal to that country (where he had been found to face persecution)).

(g) Various steps had been taken to try to find a country to which the plaintiff could be removed. As at 30 May 2023 no viable options had been identified. The Department of Immigration, Citizenship and Multicultural Affairs (which, along with its predecessors, I refer to in these reasons as the Department) had never successfully removed a person, convicted of a crime of the kind for which the plaintiff was convicted, to a country of which they were not a citizen.

17. The parties therefore agreed that, as at 30 May 2023:

(a) the plaintiff “could not be removed from Australia”;

(b) there was “no real likelihood or prospect of the Plaintiff being removed from Australia in the reasonably foreseeable future”; and

(c) “as a matter of reasonable practicability, it was unlikely that the Plaintiff would be removed from Australia in the foreseeable future”.

18. Further paragraphs were added to the special case by amendment, noting additional steps taken to explore options for removal of the plaintiff. The parties did not agree as to the significance of those steps and proposed to file affidavits in relation to them. The parties did agree, however, that this did not affect the correctness of the conclusions recorded as at 30 May 2023 (set out in the previous paragraph).
19. The orders made by the High Court in NZYQ were as follows.

The questions stated for the opinion of the Full Court in the further amended special case filed on 31 October 2023 be answered as follows:

Question 1: On their proper construction, did sections 189(1) and 196(1) of the Migration Act 1958 (Cth) authorise the detention of the plaintiff as at 30 May 2023?

Answer: Yes, subject to section 3A of the Migration Act 1958 (Cth).

Question 2: If so, are those provisions beyond the legislative power of the Commonwealth insofar as they applied to the plaintiff as at 30 May 2023?

Answer: Yes.

Question 3: On their proper construction, do sections 189(1) and 196(1) of the Migration Act 1958 (Cth) authorise the current detention of the plaintiff?

Answer: Yes, subject to section 3A of the Migration Act 1958 (Cth).

Question 4: If so, are those provisions beyond the legislative power of the Commonwealth insofar as they currently apply to the plaintiff?

Answer: Yes.

Question 5: What, if any, relief should be granted to the plaintiff?

Answer: The following orders should be made:

(1) It is declared that, by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future:

(a) the plaintiff’s detention was unlawful as at 30 May 2023; and

(b) the plaintiff’s continued detention is unlawful and has been since 30 May 2023.

(2) A writ of habeas corpus issue requiring the defendants to release the plaintiff forthwith.

Question 6: Who should pay the costs of the further amended special case?

Answer: The defendants.

20. The following points of present relevance emerge from these answers and the High Court’s reasons.

(a) The Court did not re-open the conclusions on statutory construction that had been reached in Al-Kateb. On their proper construction, therefore, ss 189 and 196 of the Act authorised the detention of the plaintiff, despite the agreed position that there was no real likelihood or prospect of his removal becoming possible in the reasonably foreseeable future.

(b) However, this conclusion was expressed subject to s 3A of the Act. Section 3A(1) expresses the intention of the Parliament that (in short) a provision of the Act is to have every application that it validly can, but is not to apply to the extent that its application is invalid.

(c) In their application to the plaintiff, ss 189 and 196 exceeded the legislative power of the Commonwealth.

(d) The detention of the plaintiff was unlawful, and habeas corpus should issue, “by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future”.

21. It is not necessary for present purposes to go into the detail of the constitutional issues or the reasoning in relation to them. It is sufficient to note that the conclusion that executive detention of a non-citizen is unlawful where the purpose of removing them from Australia cannot be achieved reflects an understanding of where to draw the line between punitive and non-punitive detention (for the purposes of Chapter III of the Constitution) identified in Chu Kheng Lim v Minister for Immigration (1996) 176 CLR 1.
22. NZYQ is thus authority for the proposition that detention of an unlawful non-citizen is not validly authorised by ss 189 and 196 of the Act if there is “no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future”.

Reading down of ss 189 and 196

23. The Court in NZYQ was of the view that ss 189 and 196 of the Act were beyond the legislative power of the Commonwealth in so far as they required the continuing detention of the plaintiff (at [71]). The Court did not need to canvass the extent to which s 3A(1) is effective to preserve the operation of these provisions in other cases (as noted at [73]).
24. Section 3A provides as follows.

3A Act not to apply so as to exceed Commonwealth power

(1) Unless the contrary intention appears, if a provision of this Act:

(a) would, apart from this section, have an invalid application; but

(b) also has at least one valid application;

it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.

(2) Despite subsection (1), the provision is not to have a particular valid application if:

(a) apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or

(b) the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power.

(3) Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).

(4) This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.

(5) In this section:

application means an application in relation to:

(a) one or more particular persons, things, matters, places, circumstances or cases; or

(b) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases.

invalid application, in relation to a provision, means an application because of which the provision exceeds the Commonwealth’s legislative power.

valid application, in relation to a provision, means an application that, if it were the provision’s only application, would be within the Commonwealth’s legislative power.

25. Section 3A was referred to by Gordon and Edelman JJ in Thoms v The Commonwealth [2022] HCA 20; 96 ALJR 635 at [77] (Thoms), along with s 15A of the Acts Interpretation Act 1901 (Cth), as a basis for construing s 189 as not authorising detention of a person who, on the facts apparent to the detaining officer, was not an alien (but otherwise operating according to its terms) (see also [24] (Kiefel CJ, Keane and Gleeson JJ)). The provision does not appear to have received any little other judicial consideration (other than being mentioned in Behrooz v Secretary, Department of Immigration and Multicultural Affairs [2004] HCA 36; 219 CLR 486 at [8] (Gleeson CJ), [109] (Kirby J)). Provisions in relevantly identical terms to s 3A(1) have been referred to in some earlier cases, with the Court pointedly declining to decide what effect they have: eg Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 348 (Dawson J), 355 (Toohey J), 372 (McHugh J); Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 503 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).
26. In my view, s 3A(1) is to be understood as an interpretation provision stating (albeit not definitively) the intention of the Parliament as to what operation provisions of the Act are to have in the event that, read according to their terms, they exceed legislative power (cf Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union [2000] HCA 34; 203 CLR 346 at [295] (Kirby J)). It may thus assist in resolving the question that arises as to whether a law that is expressed in general terms, and is invalid to some extent, can be given a partial operation (see, eg, the Industrial Relations Act case at 502–503); although, when regard is also had to s 3A(2), the section as a whole could perhaps be criticised as simply restating that question. In the present case, the circumstances referred to in s 3A(2)(a) and (b) are not present. I therefore understand s 3A to express an intention that ss 189 and 196 of the Act are to authorise detention in all circumstances falling within their terms in which they can validly do so. In particular, they are to be understood to apply (subject to the qualification mentioned in Thoms at [77]) to all unlawful non-citizens other than those in respect of which, for the reason identified in NZYQ, the requirement of ongoing detention cannot be imposed consistently with constitutional limitations. The applicant did not submit that, as a result of NZYQ, the provisions were wholly invalid.

No real prospect of removal

27. The issue of most significance here is the content of the concept of “no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future”. “Real prospect” and “reasonably foreseeable future” express evaluative notions (although they are components of a legal test for validity and thus raise questions which have a single correct answer: cf Minister for Immigration v SZVFW [2018] HCA 30; 264 CLR 541 at [43]–[49] (Gageler J)). Where the relevant lines are to be drawn in future cases may be fact-sensitive and may depend on experience drawn from earlier cases.
28. In NZYQ at [62]–[70] the Court reasoned to its own conclusion, by reference to evidence, on this point. This appears to have been necessary because, although the parties had agreed as to the state of affairs as at 30 May 2023, they did not agree as to what was to be made of certain inquiries undertaken by the Department after that time. Approaches had been made to United States authorities, who (to put it shortly) had not given a definitive negative answer to the question whether the plaintiff might be received in that country. The conclusion of the Court was that the evidence did not allow any meaningful assessment of either the likelihood of this inquiry being fruitful or the timeframe in which that might occur (at [68]–[69]).
29. The conclusion that there was no real prospect of removal in the reasonably foreseeable future was described by the Court at [70] as “the necessary conclusion of fact”. However, at [61] reference had been made to the “notions of the practicability and the foreseeability of removal embedded in the expression of the constitutional limitation”. These concepts are (as noted above) to some extent evaluative, and the evaluation takes place in the context of the constitutional principle identified in NZYQ.
30. Also relevant to the evaluative exercise is the nature of what needs to be proved. The strict approach to the onus of proof enunciated in McHugh (which, of course, turned on proof of officers’ state of mind at particular times rather than a “real prospect”) needs to be understood in this light. At [60]–[61] of NZYQ the Court said:

To establish that ss 189(1) and 196(1) of the Migration Act validly applied to authorise continuation of the plaintiff's detention, the defendants were accordingly required to prove that there existed a real prospect of his removal from Australia becoming practicable in the reasonably foreseeable future. Whilst the proof was required to be to a standard sufficient to support the making of a finding of fact to the level of satisfaction appropriate in a civil proceeding where individual liberty is in issue, the prospective and probabilistic nature of the fact in issue (that is, the fact of a real prospect of the plaintiff's removal from Australia becoming practicable in the reasonably foreseeable future) would have the potential to be confused were the standard of proof to be “on the balance of probabilities”.

The notions of the practicability and the foreseeability of removal embedded in the expression of the constitutional limitation accommodate “the real world difficulties that attach to such removal”. The real world context also entails that proof of a real prospect must involve more than demonstration of a mere un-foreclosed possibility.

(Footnotes omitted.)

31. The underlying facts in NZYQ, set out above, included:

(a) the plaintiff having no citizenship of any country;

(b) a statutory barrier, under s 197C of the Act, to his removal to his country of former residence;

(c) a very significant practical barrier (in the form of his conviction) to persuading any other country to receive him; and

(d) the failure of the efforts that had been made to find a country to which he could be removed (efforts which, as the hearing date approached, appear to have become quite intensive).

32. The concept of there being a “real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future” has a deeper history, upon which NZYQ implicitly draws. It reflects the finding of the primary judge in Al-Kateb (reported as SHDB v Goodwin [2003] FCA 300 at [9] (von Doussa J) (SHDB)), on which argument in the High Court in that case proceeded. The applicant in that case was a stateless Palestinian, born in Kuwait, who had arrived in Australia without documentation in 2000. He asked to be removed in June 2002, and the finding that there was no real prospect of his removal was made in April 2003. In the view of the primary judge, all reasonable efforts had been made. There was evidence of discussions with the authorities of at least one other country, including at ministerial level.
33. In SHDB, and the companion case of SHFB v Goodwin [2003] FCA 294 (SHFB) which von Doussa J decided on the same day, the applicants sought declarations that their detention was unlawful, having previously failed in applications for habeas corpus that were heard by Selway J ([2003] FCA 30). Both Selway J and von Doussa J declined to follow the decision of Merkel J in Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1009; 192 ALR 609 (Al Masri), in which his Honour held that the requirement for detention under the Act was subject to an implied limit so that detention was only authorised so long as there was a “real likelihood or prospect of removal in the reasonably foreseeable future” (at [38]). In SHFB, von Doussa J referred to other judgments of single judges of the Federal Court that had declined to follow this reasoning. After von Doussa J had delivered judgment in SHDB and SHFB, the decision of Merkel J was upheld on appeal by the Full Court: Minister for Immigration and Multicultural Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54 (Black CJ, Sundberg and Weinberg JJ) (Al Masri FCAFC). Al Masri FCAFC was in substance overruled by the High Court in Al-Kateb. It has been revived, in its result if not its reasoning, by NZYQ.
34. The circumstances in which it was found in these cases that there was no real possibility of removal being reasonably practicable in the reasonably foreseeable future were, briefly, as follows:

(a) In Al Masri the applicant was a Palestinian from the Gaza Strip, which was under the control of the Palestinian Authority. He arrived in Australia in June 2001 and was taken into detention soon afterwards. He lodged an application for a protection visa, which was refused, and the delegate’s decision was affirmed by the Refugee Review Tribunal (RRT) in December 2001. On the day of the RRT’s decision, Mr Al Masri signed a written request to be removed to the Gaza Strip. At that stage he had a passport that he produced to departmental officers. Arrangements were made for his departure in February 2002 but, at the last moment, removal was aborted because officers were unable to obtain the necessary approvals for him to enter the Gaza Strip. It would seem that Israel refused to allow his entry into or transit through its territory. Endeavours were then made to obtain permission from Egypt or Jordan for the applicant to return through their territory. Approaches were also made to Syria to see if it would accept the applicant. Further discussions occurred with Israel, including a meeting between the Secretary of the Department and the Israeli Ambassador. The applicant applied for habeas corpus in May 2002, the case was heard in July, and Merkel J gave judgment (finding no real prospect of removal) on 15 August 2002. (The efforts to obtain necessary approvals for the respondent to return the applicant to Palestinian territory continued and bore fruit a few days after the judgment of Merkel J. He was taken back into detention and (after further applications before his Honour) removed on 9 September 2002. One of the issues in Al Masri FCAFC was therefore whether the appeal, having become moot, was competent.)

(b) The applicant in SHFB claimed to be a stateless Palestinian. He arrived in Australia without a passport in August 2001 and was immediately detained. He applied for a protection visa, which was refused in May 2002. The RRT affirmed that decision in October 2002 and he advised that he wished to be removed to Israel, Palestine or Egypt. Von Doussa J observed at [5] that, without a visa or other travel authority (in addition to a certificate of identity issued by Australia) it was not possible to remove him from Australia. The applicant completed an application form for a Palestinian passport on 30 December 2002, but it was not able to be processed without further information about family contacts in Palestinian territories. He commenced proceedings on 6 January 2003, which were dismissed by Selway J on 30 January. The second application, which came before von Doussa J, was commenced on 12 February. Evidence before his Honour disclosed that inquiries had been made of other countries at ministerial level. An officer gave evidence that removal would be achievable but could take time. His Honour was not satisfied that officers were not taking all reasonable steps, but did find that removal from Australia was “not reasonably practicable at the present time as there is no real likelihood or prospect of removal in the reasonably foreseeable future”. Thus, if his Honour had applied the construction given to s 196 by Merkel J, he would have held that the applicant was no longer able to be detained (at [21]).

(c) The applicant in SHDB also claimed to be a stateless Palestinian. He had been born and lived most of his life in Kuwait. He arrived in Australia without a passport in December 2000 and was detained. He applied for a protection visa, which was refused in February 2001. The refusal decision was affirmed by the RRT in May of that year. He applied for judicial review of the RRT’s decision and his application was dismissed in October 2001, with an appeal also dismissed in May 2002. In June 2002, he asked to be removed to Kuwait, or alternatively Gaza. In August he made a request in writing to be removed as soon as reasonably possible. There was evidence before von Doussa J of discussions with the authorities of Palestine, Israel and Jordan (including at ministerial level), as well as the possibility of engaging the United Nations High Commissioner for Refugees. His Honour was not satisfied that departmental officers were not taking all reasonable steps to secure the applicant’s removal from Australia.

35. More recently, in Sami v Minister for Home Affairs [2022] FCA 1513 (Sami), the applicant sought habeas corpus and asked Mortimer J (as her Honour then was) to make factual findings in order to provide the basis for an appeal in which Al-Kateb could be challenged. The applicant arrived in Australia in June 2000 travelling on an Egyptian passport with a tourist visa, married an Australia citizen and was granted a permanent visa in October 2003. The visa was cancelled under s 501 of the Act in March 2012 as a result of criminal convictions, and on his release from prison in February 2013 he was placed in immigration detention. The applicant sought review of the decision to cancel his visa, applied for a protection visa and also commenced several proceedings in relation to applications he had made in 2005 to become an Australian citizen. These proceedings went on until January 2019. As soon as the last proceedings were resolved, his case was referred to officers responsible for removals, but (as her Honour described it) nothing of substance happened until early 2021. The applicant commenced proceedings seeking habeas corpus in November 2021. Various adjournments occurred, including because efforts to remove the applicant seemed to be intensifying, and the trial was not completed until November 2022 (at which stage the applicant still had not been removed). There had been a long process of interactions with Egyptian authorities, attempting to obtain documentation that would allow the applicant to return to that country. Problems seem to have arisen because the applicant had changed his name and was not able to contact any relatives in Egypt. Officers needed to obtain information from the applicant. He was at least initially not cooperative, for reasons that Mortimer J did not think unreasonable, but by April 2022 his cooperation was no longer a factor. There was a flurry of communications as the trial approached, but they did not produce results. By the time of the hearing, her Honour found, there was no known timeframe in which the Egyptian consulate was likely to issue the applicant a travel document (it was not known even whether there was an intention to issue one). Her Honour therefore found that there was no real prospect of the applicant being removed to Egypt in the reasonably foreseeable future (at [144]). Referring to the reasons of Jacobson J in Agha v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 164; 205 ALR 377 (Agha), her Honour considered the reasonably foreseeable future to be a matter of months (at [148]). Some consideration had been given to trying to remove the applicant to Qatar, the United Arab Emirates or the United States, but these did not rise above vague and undeveloped possibilities (at [163]). The applicant himself had raised the prospect that he might be entitled to reside in France, but this had not been seriously explored by departmental officers (at [167]–[168]). It was thus common ground that it was unlikely that, in the reasonably foreseeable future, he could be removed to any country other than Egypt.
36. In these circumstances, Mortimer J comfortably reached the view that the respondents had not demonstrated a real prospect of the applicant’s removal being reasonably practicable in the reasonably foreseeable future. However, Sami may need to be treated with some caution because her Honour’s observation concerning the standard of proof (at [157]) was disapproved in a footnote at the end of paragraph 60 of NZYQ.
37. Mention should also be made of Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 265 CLR 285 (Plaintiff M47), a case in which the High Court was asked to revisit Al-Kateb, which is discussed further below. The agreed facts in that case included that conduct of the plaintiff had frustrated attempts to establish his true identity and country of origin, thereby hampering (at least) efforts to remove him from Australia. That fact was prominent in the Court’s refusal to infer that there was no real likelihood of his removal from Australia in the reasonably foreseeable future. Plaintiff M47 was expressly distinguished in NZYQ at [62]. Similar considerations arose in DMH20 v Minister for Home Affairs [2023] FCAFC 31; 296 FCR 256 (DMH20), where the appellant’s country of nationality (Malta) had a policy of not accepting persons returning involuntarily and he did not consent to being removed.

THE PRESENT CASE

38. The applicant is a national of Iran. While s 198 of the Act authorises removal of a detainee to any place that will receive them, relevant principles of international law mean that Australia will normally look, in the first instance, to the detainee’s country of nationality if they have one: Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 at [89], [91]–[93] (Gummow, Hayne, Crennan and Bell JJ) (Plaintiff M70). The respondents did not contend that there was any likelihood of the applicant being able to be removed to any other country. It is therefore necessary only to consider whether there exists a real prospect of removing the applicant to Iran in the reasonably foreseeable future.
39. I will consider first whether such a prospect exists as a matter of practicality. I will then address two legal impediments arising under the Act which, the applicant submits, prevent his removal to Iran.

Practicability of removal to Iran

40. As noted earlier, some affidavits were read and one witness (Ms Davis) was cross-examined at some length on 12 September 2023. Another of the respondents’ witnesses (Mr Warrick) was cross-examined briefly. Counsel read some further affidavits on 23 November for the specific purpose of the habeas corpus application. With very minor exceptions, all of the evidence that was relied on in relation to the habeas corpus application was received without objection and without any limitations on its use being sought.

Prospects of removal

41. The applicant held an Iranian passport, which expired on 27 July 2017.
42. On 21 May 2017, while his protection visa application was still being considered, the applicant made a request to be removed from Australia. He used a form that was provided for that purpose. In the space provided to nominate a preferred destination, he specified Erbil (which is in Iraqi Kurdistan). He made a further request in similar terms on 26 May 2017.
43. Each of these requests was sufficient to engage s 198(1) of the Act. Removal from Australia would have meant the end of the applicant’s protection visa application, but it was open to him to make that choice. The departmental response was to interview the applicant and then investigate whether he had capacity to obtain an Iraqi travel document. The view was reached that Iraqi authorities would not issue him with a travel document because of a lack of evidence that he had Iraqi citizenship. In July 2017 the removal request was “closed”.
44. This action seems to have proceeded on a misunderstanding of s 198(1). The opening words of that subsection refer to removing an unlawful non-citizen in general terms, not removal to any particular country or place. The obligation that it contains is triggered by a voluntary act on the part of the non-citizen (requesting removal), but whether that voluntary act has occurred is binary: either there is a request or there is not. Nothing in the text of the subsection indicates that the content of the obligation to remove is intended to be shaped by the wishes of the non-citizen concerning the place to which they are to be removed. Consistently with this understanding of the text, in Al-Kateb (a case where s 198(1) was engaged), Hayne J said at [227]:

Removal is the purpose of the provisions, not repatriation or removal to a place. It follows, therefore, that stateless or not, absent some other restriction on the power to remove, a non-citizen may be removed to any place willing to receive that person.

(Original emphasis.)

45. NZYQ is not inconsistent with this passage. See also Plaintiff M70 at [89], [91]–[93].
46. Further, the opening words of s 198(1) are materially identical to the chapeaux of s 198(2), (2A), (2B), (5), (6), (7), (8) and (9), suggesting that the content of the duty in each case is the same. The operative provisions apart from sub-s (1) do not involve any choice on the part of the non-citizen concerned, and clearly apply regardless of that person’s preferences as to the place to which they are removed (although the countries to which a person can lawfully be removed may be affected by s 197C(3) of the Act). The words should be taken to mean the same thing where they appear in sub-s (1) (see, eg, Regional Express Holdings Ltd v Federation of Air Pilots [2017] HCA 55; 262 CLR 456, [21]).
47. Thus, the applicant’s removal requests gave rise to a duty to remove him from Australia, which could at least prima facie have been carried into effect by removing him to Iran (his country of nationality, from which he still held a valid passport). That was not attempted; removals officers did not engage with the applicant’s case again until 2021.
48. However, this is at most tangential to the issue currently before the Court. Although the past is often a useful guide to the future, the issue here is not the adequacy of officers’ attempts to remove the applicant. Perhaps ironically, assiduous and energetic attempts to remove a non-citizen may help a claim for habeas corpus if they have not succeeded. Inadequate efforts may leave room to draw an inference that some action not yet taken could make removal practicable in the reasonably foreseeable future. (Inadequate efforts to remove a person lead to an application for mandamus.)
49. An affidavit deposed by Mr Paul Brown, a departmental officer, on 5 July 2023 described what had been done in order to remove the applicant from Australia since early 2021, when his protection visa application was finally determined by the second decision of the IAA. That event engaged s 198(6), so that his removal from Australia was required to be “as soon as reasonably practicable” on two bases. It seems that nothing at all was done until July 2021. Since then, all efforts (such as they have been) have focused on Iran. Relevant officers understood that the applicant was not agreeable to voluntary removal to Iran and the Iranian authorities had a long standing policy of not issuing travel documents to involuntary returnees. There was nevertheless some engagement with the Iranian embassy in relation to the applicant. The result was a request by Iranian officials to meet with him for the purpose of exploring the possible issue of a travel document. In June 2022, the applicant was asked whether he was prepared to meet Iranian officials. He has given evidence that the purpose of the meeting was not explained to him, and he did not wish to speak to any Iranian officials because he still has family members in that country and is concerned they would be placed at risk if authorities knew he had sought asylum. In any event, he declined to attend and the meeting did not occur. The applicant was interviewed by an officer on 19 December 2022 and confirmed that he was still “involuntary” in relation to returning to Iran. An interview was scheduled in March which the applicant did not attend. In response to an email in May 2023, he said that he could not lawfully be removed to Iran. He was asked by email in June 2023 to reconsider an interview with the Iranian embassy for the purpose of obtaining a travel document. He responded that he could not meet with Iranian authorities because of what those same authorities had done to him in the past. The most up-to-date departmental evidence (the affidavit of Ms Chloe Bereth affirmed on 20 November 2023) annexes a file note dated 16 November 2023 which records that the applicant was “[u]nwilling to depart voluntarily to Iran”.
50. There is evidence from several sources that Iran has for a long time maintained a policy of not issuing travel documents to people for the purpose of returning to that country if their return was not voluntary. The respondents’ evidence in this regard is not up to date (the relevant affidavits having been filed in July 2023). In other respects, including the holding of the necessary suspicion that the applicant is an unlawful non-citizen for the purposes of s 189 of the Act, the evidence was updated shortly before the hearing. If necessary, I would infer that the respondents’ evidence in relation to Iran’s position was not updated because more recent evidence would not help (cf Al Masri at [52]). However, the nature of Iran’s policy is not disputed; indeed, in a departmental manual dated July 2019 it is referred to as a matter of Iranian law). (In June 2018 an agreement was announced that was intended to facilitate the return of Iranian citizens who arrived in Australia after 19 March 2018; however, if that agreement has been implemented, it is not relevant to the applicant.) There is also a suggestion, in the manual referred to earlier in this paragraph, that involuntary removal of an Iranian national can be pursued if they hold a valid Iranian passport. However, by 2021 the applicant was not in that category.
51. The applicant’s evidence also confirms that he is opposed to returning to Iran. His unwillingness in this regard is profound, consistent and of long standing. He has told the Department by email that he is prepared to give any assistance for the purpose of obtaining a travel document so that he can be removed to a country other than Iran. However, he has consistently refused to have any contact with Iranian officials. In any event, the consequence of Iran’s position is that he is very unlikely to be issued with a travel document by that country so long as Australian officials wish to remove him there.
52. The affidavit of Ms Sally Davis, sworn on 17 July 2023, contains a suggestion that officials at the Iranian embassy have “always been helpful when it comes to people who have mental health issues”. That may suggest the existence of some prospect that Iranian authorities would issue a travel document to the applicant despite his resistance to returning to Iran and his refusal to be interviewed by them. However, even taken at its highest, it falls well short of “clear and cogent proof” of a realistic prospect of removing the applicant in the reasonably foreseeable future.
53. Counsel for the applicant sought to identify inconsistencies between the evidence of Ms Davis and Mr Brown (and between different parts of Ms Davis’s evidence) concerning the characterisation of the main barrier to the removal of the applicant. He made a related submission concerning Ms Davis’s credibility (she having been cross-examined during the first instalment of the trial, albeit when the issues were somewhat different). It is not necessary to tease out these differences or to resolve them for present purposes (if indeed there are differences). It is clear, and not disputed, that:

(a) there is no realistic prospect of returning the applicant to Iran unless he is issued a new travel document;

(b) the only identified potential source of a travel document is Iran (Australia could issue him with a Certificate of Identity but there is no evidence that this would suffice to enter Iran);

(c) there is not a realistic prospect of the issue of a travel document unless:

(i) the applicant consents to being removed to Iran; or

(ii) (possibly) the applicant meets and provides information to Iranian officials, and they can somehow be persuaded to make an exception to their country’s normal policy; and

(d) there is no substantial possibility of the applicant agreeing to either of these things in the reasonably foreseeable future.

54. In referring to the reasonably foreseeable future in the previous paragraph, I have had regard to the statements by Jacobson J in Agha and Mortimer J in Sami referred to at [35] above. As a general proposition, the reasonably foreseeable future is the future that can be foreseen; and the length of time that it comprises may vary with the nature of the event that is in issue and the contingencies associated with it. For example, when a child starts school, one can say that they will finish school in the reasonably foreseeable future, even though that highly probable event is 10 to 12 years away. However, when the event that is in issue cannot occur without a change in circumstances, and there is nothing to indicate when (or even whether) that change might occur, it can readily be concluded that there is not a real prospect of the event occurring in the reasonably foreseeable future. The conclusion is reinforced where a person’s liberty depends on it and the detainer bears the onus of proving the existence of such a prospect.
55. Subject to the issue to be considered next, therefore, the respondents have not proven facts which allow a conclusion that there is a real prospect of the applicant’s removal from Australia becoming practicable in the reasonably foreseeable future.

Relevance of the applicant’s non-cooperation

56. Plaintiff M47, like NZYQ, involved a special case setting out agreed facts. As noted above, those facts included the plaintiff’s refusal or failure to provide basic information about himself that was necessary to the success of any attempt to remove him. He had made several inconsistent claims about his identity and origins and refused to participate in efforts by the Department to establish his true identity and nationality. The plaintiff invited the Court to infer from the agreed facts that there was no real prospect or likelihood that he would be able to be removed from Australia in the reasonably foreseeable future. The Court unanimously declined to draw that inference, and thus concluded that the case did not raise a question as to whether Al-Kateb was correctly decided.
57. That chain of reasoning is significant because the formulation “no real likelihood or prospect of removal in the reasonably foreseeable future” aligns with the foundation of the reasoning in Al Masri, the finding of von Doussa J in SHDB (upon which the arguments in Al-Kateb proceeded), and the basis upon which NZYQ was argued and decided. Thus, if the facts do not justify the characterisation that there is “no real likelihood or prospect of removal in the reasonably foreseeable future”, there is no support in authority for the view that s 196(1) does not apply according to its terms.
58. Addressing the consequences of the plaintiff’s conduct in Plaintiff M47, Kiefel CJ, Keane, Nettle and Edelman JJ said (at [30]–[31]):

In the Department's dealings with the plaintiff, he has adopted a posture that involves, at best, non-cooperation and, at worst, deliberate obfuscation and falsehood. No good reason has been advanced for the adoption of this posture. For an unlawful non-citizen seeking entry into Australia, matters relating to his identity cannot sensibly be thought to be private matters of legitimate concern only to him. Further, it was not suggested that the plaintiff's inconsistent accounts of his personal background and his refusal to cooperate with the authorities are due to any medical condition or mental illness on his part. The possibility that the inconsistencies in the plaintiff's accounts of his origins might be explicable by difficulties of that kind was explicitly raised with senior counsel for the plaintiff before the special case was referred to the Full Court, and no suggestion to that effect has subsequently been made on the plaintiff's behalf.

Because the plaintiff has contributed to the frustration of lines of enquiry as to his identity and nationality, what might be established about his identity and nationality if he were to assist the Department in its enquiries cannot be known. It certainly cannot be inferred that genuine assistance from the plaintiff would not be helpful.

59. Their Honours continued at [34], [36]:

The attempt on behalf of the plaintiff to turn his falsehoods to his advantage needs only to be noted to be rejected in accordance with the general disinclination of the courts to allow a party to take advantage of his or her own wrongful conduct...

In addition, the Department is still engaged in pursuing the possibility of removing the plaintiff from Australia. There is no reason to doubt that this pursuit is genuine and further, given the posture of non-cooperation adopted by the plaintiff, the Court is in no position to conclude that the pursuit is futile. The defendants’ submission that the options for the plaintiff’s removal have not yet been exhausted should be accepted.

(Citations omitted.)

60. Their Honours concluded at [41]–[42]:

The inconsistent statements made by the plaintiff as to his identity and place of origin are not explicable by genuine uncertainty or ignorance, and so it cannot be assumed that it is beyond his power to provide further information concerning his identity that may shed positive light on his prospects of removal. Neither can it be concluded that the options for his removal within a reasonable time, if his cooperation is forthcoming, have been exhausted.

Accordingly, the Court answered the questions referred to it on the basis that the inferences urged by the plaintiff were not available and no factual basis for the application of the view of the minority in Al-Kateb was established. The result was that no question arose as to the lawfulness of the plaintiff's detention.

61. Bell, Gageler and Gordon JJ, concurring in the result, added (at [49]):

One inference to be drawn from the materials in the special case is that it is within the plaintiff's power to give a factual account of his name, date and place of birth, and that of his parents. An allied inference is that it is within the plaintiff's power to cooperate in other ways with requests made by the Department in its attempt to establish his identity and nationality. In the absence of his cooperation, it cannot be known whether the plaintiff's identity can be established, nor can the Court essay any conclusion as to the prospect or likelihood of his removal from Australia. It follows that none of the inferences on which the plaintiff relies is open.

62. Nothing said in Plaintiff M47 is inconsistent with the Court’s reasoning in NZYQ. The factual basis upon which the Court in the latter case accepted that there was no realistic prospect of the plaintiff’s removal becoming practicable did not involve any element of non-cooperation or frustration of the removal process by him. The Court expressly noted that point and distinguished Plaintiff M47. I therefore proceed on the basis that Plaintiff M47 has not been overruled.
63. Plaintiff M47 proceeded on agreed facts rather than by a trial on evidence, and the onus of proof therefore did not have the same relevance as it does here. The majority Justices at [37]–[39] rejected an attempt by the plaintiff in that case to draw support from the usual rule that the detainer bears the ultimate onus in an application for habeas corpus. Mortimer J in McHugh at [273] explained why that discussion did not support a departure from the usual rule. However, I do not think this factor diminishes the significance of the central holding in Plaintiff M47, to the effect that the Court would not accept that there was no “real prospect” of removal in circumstances where it was the plaintiff himself who was preventing any prospect of removal from even being explored. The relevant primary facts in Plaintiff M47 were agreed, so that the respondents’ onus was discharged at least to that level. Whether those facts gave rise to a real prospect of removal might be understood as question of the inference to be drawn from the facts (as to which the respondents did bear an onus) or a question of characterisation (a matter for submissions). The latter understanding seems more likely to be correct, since the statements at [36], [41] and [49] (set out above) are otherwise difficult to reconcile with the correct allocation of the onus of proof (a point to which their Honours were clearly alive). Either way, the High Court was not prepared to hold that there was no real prospect of the plaintiff’s removal in circumstances where the lack of any such prospect was a consequence of the plaintiff’s own deliberate conduct. The Full Court in Al Masri FCAFC had foreseen this situation and said (at [137]):

We should add that we do not intend our observations to give any support to a contention that a person who has made a request in writing under s 198(1), might by their own act in frustrating the process of removal, make their continued detention unlawful. For the purposes of the implied limitation [on the power to detain], if such a person were, for example, to refuse to sign a consent required by a country otherwise prepared to take him, that person would not (ordinarily at least) be held in circumstances where there was no reasonable likelihood of his removal.

64. While the observations by the majority in Plaintiff M47 suggest disapproval of the plaintiff’s conduct (justifiable to the extent that he had engaged in obfuscation and falsehood), that is not necessary to the point of principle that emerges from the case. People in immigration detention may seek to delay or frustrate their removal from Australia for a variety of reasons and are not under any general obligation to cooperate in the process. The point of principle, as I understand it, is that an alien who has no legal right to remain in Australia is not to be permitted to engineer their own release into the community by frustrating the efforts of officers to carry out their duty under s 198 of the Act. Accordingly, assessment of whether there exists a real prospect of removing an unlawful non-citizen assumes that they will not act so as to frustrate that removal. There may well be a normative aspect to this assumption. How this principle is articulated as an aspect of constitutional law (rather than legislative intention) following NZYQ remains to be seen. However, as noted earlier, I am proceeding on the basis that Plaintiff M47 has not been overruled and is binding.
65. I have come to the view that the present applicant is not caught by the principle that emerges from Plaintiff M47 for the following reasons.

(a) The principle should be understood to operate narrowly in view of the fact that it is, in effect, an exception to the operation of a constitutional rule that protects individual liberty. For this reason, it should be understood to apply only where an unlawful non-citizen embarks on a deliberate strategy of preventing their removal from Australia.

(b) While the applicant is adamant that he will not return to Iran, he does not seek to prevent his removal from Australia to some other place. Rather, he has persistently sought that result. There is no evidence that his requests to be removed to places other than Iran have not been genuine. In fact, he has on several occasions asked to be removed to international waters. In proceedings commenced in this Court, he has applied for an order to that effect. In the present proceedings he seeks mandamus to require officers to carry out their duty to remove him. That application was being vigorously advanced until the decision in NZYQ was announced.

(c) The applicant’s opposition to being removed to Iran has its basis in a strong belief that he would suffer persecution if he were to return there. He has maintained this opposition in circumstances where, if officers could not find an alternative destination for him, the consequence was understood to be indefinite detention.

(d) The applicant has had mental health problems over a lengthy period, as a result of which I am not persuaded that it is realistically within his power to change his approach to one of cooperation with removal to Iran. This may be a topic on which, consistently with Blatch v Archer [1774] EngR 2; [1774] 1 Cowp 63 [98 ER 969], slight evidence from the respondents would be sufficient in the absence of evidence from the applicant (cf, eg, Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corp (1985) 1 NSWLR 561 at 565 (Hunt J)). However, the respondents have not gone into evidence on the issue and the applicant has. He has given unchallenged evidence that he has tried to kill himself many times while in immigration detention. He has also tendered a report dated December 2020 by a clinical psychologist, Mr Guy Coffey. The report is evidently based on interviews with the applicant and perusal of relevant medical and other records. It includes the following:

(i) The applicant’s first suicide attempt was in 2015, when he tried to hang himself. He lost consciousness and thereafter was unable to speak. (I add that, in all his communications since then, including in Court while self-represented, the applicant has communicated only by typing what he wants to say into a computer or smartphone application.)

(ii) In December 2018 he engaged in a hunger strike and lost 25 kg. He has harmed himself on numerous occasions in various ways including by swallowing razor blades and taking overdoses of drugs. He described his motivation for these acts as varying between a wish to die, anger and frustration, and protest against his detention. On occasion, dangerous acts of self-harm have been his response to relatively mundane events in detention that he perceived as unjust.

(iii) Mr Coffey observed at [81]–[82], [84]:

[The applicant] does not suffer from a major depressive disorder but he has entered a state of chronic demoralization and dysphoria. At times he cannot see that any value attaches to his life. His thinking has become confined to the present, he has detached himself from his family, friends and former life and he cannot see a future for himself. His grip on what he finds of value in himself and his relationships has become increasingly tenuous. A blow to his self-regard or a feeling of powerlessness in relation to perceived unfairness is sufficient to cause him to lose his hold on a desire to live and provides an impetus for him to harm himself – sometimes as a retaliatory act of impotent rage, sometimes as protest, sometimes as a straightforward attempt to die.

The personality characteristic which in the past was a source of esteem and a cause of difficulty for him – an inclination to confront with argument or derision what he sees as irrational or unfair – has become hypertrophied under the stresses of the detention environment. He rails against small departures from fairness to protect himself against a feeling that he controls nothing. For the same reason he confronts ‘the whole system’.

I am therefore of the opinion that [the applicant’s] volatility, self-harm and adversarial relationship with detention staff is a product of the interaction between emotional dysregulation associated with PTSD, chronic demoralisation, and the effect of extended detention on his personality functioning.

(iv) Mr Coffey could see only modest potential for the applicant’s condition to improve with treatment while he remained in detention. He was somewhat more optimistic about the prospects for improvement if the applicant were to be released into the community.

(e) These circumstances distinguish the present case from Plaintiff M47. The position of the plaintiff in that case was evidently regarded as self-serving; the majority expressly noted the absence of any suggestion that his failure to provide information was due to incapacity or mental illness; and both the majority and minority reasons explicitly relied on inferences that it was within his power to cooperate with his removal.

66 For these reasons, the reasoning in Plaintiff M47 does not stand in the way of a conclusion that there is no real prospect of the applicant being removed from Australia in the reasonably foreseeable future. In my opinion that conclusion should be drawn.

67. This conclusion makes it strictly unnecessary to consider the applicant’s submissions that his removal from Australia is precluded by provisions of the Act. However, the points were argued and it is appropriate to say something about them. I approach these issues on the assumption that, contrary to my conclusion above, there is a real possibility of the removal of the practical impasse in relation to removal to Iran being solved.

Is removal precluded by s 197C(3)?

68. Section 197C(3) of the Act provides as follows.

Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:

(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and

(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

(c) none of the following apply:

(i) the decision in which the protection finding was made has been quashed or set aside;

(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);

(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.

69. Paragraph (a) of sub-s (3) is satisfied in this case and none of the circumstances in para (c) is present. Attention therefore falls on para (b). However, para (c) is not entirely irrelevant, for reasons mentioned below.
70. Section 197C(4) to (7) set out the circumstances in which a “protection finding” is taken to be made, as follows.

(4) For the purposes of subsection (3), a protection finding is made for a non‑citizen with respect to a country if a record was made in relation to the non‑citizen under section 36A that the Minister is satisfied as mentioned in paragraph 36A(1)(a), (b) or (c) with respect to the country.

(5) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country if the Minister was satisfied of any of the following (however expressed and including impliedly):

(a) the non‑citizen satisfied the criterion in paragraph 36(2)(a) with respect to the country and also satisfied the criterion in subsection 36(1C);

(b) the non‑citizen satisfied the criterion in paragraph 36(2)(aa) with respect to the country;

(c) the non‑citizen:

(i) would have satisfied the criterion in paragraph 36(2)(a) with respect to the country except that subsection 36(3) applied in respect of the non‑citizen; and

(ii) satisfied the criterion in subsection 36(1C);

(d) the non‑citizen:

(i) satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and

(ii) would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non‑citizen was a non‑citizen mentioned in paragraph 36(2)(a);

(e) the non‑citizen:

(i) satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and

(ii) would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non‑citizen was a non‑citizen mentioned in paragraph 36(2)(a) and subsection 36(2C) or (3) applied in respect of the non‑citizen;

(f) the non‑citizen would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that subsection 36(2C) or (3) applied in respect of the non‑citizen.

(6) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country if:

(a) the Minister was satisfied (however expressed and including impliedly) that, because subsection 36(4), (5) or (5A) applied to the non‑citizen in relation to the country, subsection 36(3) did not apply in relation to the country; and

(b) a protection finding within the meaning of subsection (4) or (5) was made for the non‑citizen with respect to another country.

(7) For the purposes of subsection (3), a protection finding is also made for a non‑citizen with respect to a country in circumstances prescribed by the regulations.

71. Subject to what might be prescribed for the purposes of sub-s (7), each of these situations involves satisfaction that one of the criteria in s 36 of the Act, which revolve around the person being a refugee or otherwise entitled to Australia’s protection, is met. These are the basic criteria for the grant of a protection visa, although satisfying them is not necessarily sufficient to obtain the grant of a visa. The provision that is said to be relevant here is s 197C(4) or alternatively (5). It is said that there is a “record” for the purposes of s 36A stating that “the Minister is satisfied” that the applicant met a relevant criterion in s 36(2) (in particular s 36(2)(a)) in respect of Iran; or, alternatively that that satisfaction has otherwise been reached (cf s 197(5)(a)).
72. The evidence on which the applicant relies for this submission is a 27 page document entitled “Protection Visa Assessment”, dated 24 May 2016 (the assessment). The author of the assessment was Mr Carlos Palacios, who was at the time (and is still) an officer in the Department. He has given evidence which is discussed briefly below. It is an agreed fact between the parties that, as at 24 May 2016, Mr Palacios held a delegation from the Minister for the purposes of s 65 of the Act.
73. The opening paragraph of the assessment reads as follows:

For the reasons outlined below, I recommend that [the applicant] is a person in respect of whom Australia has protection obligations as outlined in paragraph 36(2)(a) of [the Act].

74. After a detailed review of the available factual material, the assessment set out a series of findings to the effect that the applicant feared persecution for reasons of religion and political opinion and that there was a “real chance” of that persecution occurring if the applicant were to return to the “receiving country”. Mr Palacios then expressed himself to be “satisfied that [the applicant] is a refugee as defined by section 5H(2) of the Act”.
75. These conclusions are not expressed tentatively. They represent the considered and apparently settled views of the author. However, the document is in some respects incomplete.

(a) Importantly, no visa class is specified in the space, provided by the template that was used, for the insertion of that information.

(b) No country is specified in the paragraph intended to set out the finding as to the applicant’s nationality. This is not necessarily significant, as it is recorded elsewhere that he is an Iranian national and Iran is his “receiving country”. It may suggest that the document was in some respects still a draft, or that it was not proof-read because it was not intended to be read by people outside the Department.

76. Further, the assessment does not describe itself as a “decision record” and does not purport to record a “decision” to grant or refuse a visa. To do that, it would at least need to identify the class of visa being granted or refused. Instead, it expresses its overall conclusion in terms of a recommendation. That language suggests an understanding that final conclusions on the issues canvassed in the document would be reached by some other officer.
77. Mr Palacios has given affidavit evidence about the capacity in which he prepared the assessment. This evidence does not take matters very far, as it cannot do more than set out his understanding of the position (which obviously is not determinative of the legal effect of what occurred). However, it is consistent with the manner in which the assessment is expressed and with what came afterwards.
78. Also in evidence is a document of similar length, dated 9 May 2018 and entitled “Protection Visa Decision Record” (the decision record). It bears the signature of an officer named as “Peter”, with a position number, who describes himself as “Delegate of the Minister for Home Affairs for the purposes of s 65 of the Act”. “Peter” concluded, relevantly, that he was not satisfied that the applicant was a refugee or that he met other relevant criteria in s 36. The decision record does not in terms refuse to grant a protection visa, but it clearly constitutes a statement of a delegate’s reasons for doing so. The first decision record of the IAA (to which the matter was referred) records 9 May 2018 as the date on which a delegate of the Minister refused to grant the visa, and I infer that this is what occurred.
79. The decision record is thus a “record” that complies with s 36A in respect of the decision to refuse to grant a protection visa to the applicant. The assessment, on the other hand, is not a document prepared by the decision maker and does not record findings that were integers of the actual decision. It is to be understood as a note (albeit a detailed one) prepared for the assistance of the ultimate decision maker. Although Mr Palacios held a relevant delegation, he was not exercising the power delegated to him when he wrote the assessment.
80. Section 197C(3)(c)(i) envisages that a “protection finding” will be made in the course of a “decision”. “Decision” is not defined for the purposes of the Act as a whole. It is defined inclusively in s 474(3), but only for the purposes of giving content to the concept of a “privative clause decision” in s 474 (and the definitions which hang off that concept: “non-privative clause decision (s 474(6)), “purported privative clause decision” (s 5E), and “migration decision” (s 5)). The term “decision”, where used elsewhere in the Act, has its ordinary meaning. In context, it connotes an act that is (or at least purports to be) dispositive of some issue in relation to legal rights or status, and involves both a thought process and some external manifestation that prevents the result of the thought process being revisited without specific authority: see, eg, Amir v Director of Professional Services Review [2021] FCA 745 at [47]–[51] (upheld on appeal: [2022] FCAFC 44; 290 FCR 355) and Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Government Action and Government Liability (LawBook Co, 7^th ed, 2022) at [2.290]. An example is a “decision” to grant or refuse a visa, referred to in s 66(1) of the Act and the heading to s 65.
81. Section 197C(3)(c)(i) thus indicates that a “protection finding” is a finding made, not just in the course of the process leading to (for example) the grant or refusal of a visa, but as part of the reasoning process of the decision maker. The relevant “finding” is a conclusion reached by the person who makes the “decision”, either as part of the basis for the decision, as a reason why disqualifying factors (such as those set out in s 36(2C)) need to be addressed, or for the purpose of making a record in order to comply with s 36A. This is consistent with the references in s 197C(4) and (5) (and in s 36A(1)) to the Minister being satisfied of particular matters. Clearly, these references to the Minister encompass a delegate. However, in my view they must be taken to refer to the delegate who is exercising the relevant decision-making power, and to states of satisfaction reached by the delegate for the purposes of that exercise of power.
82. Section 197C(3)(c)(i) also indicates an intention that “protection findings” are relevant only if contained in the most recent, and legally operative, decision made by or on behalf of the Minister. That intention is also evident in sub-s (7A), which provides, in the case of a person who has made more than one visa application, that only the decision on the most recent application is relevant. There are, of course, sensible reasons why Parliament would not have intended a finding as to refugee status to be determinative of the power to return a person to their home country if it has been overtaken by later findings made at a more senior level or on the basis of additional information. (The evidence in the present case records that, in the time that passed between the assessment and the decision record, the applicant was invited to provide further information and invited to respond to adverse information.)
83. For these reasons, s 197C(3) does not prevent the removal of the applicant to Iran.

Is removal to Iran precluded because it is not “reasonably practicable”?

84. The applicant has given evidence that he will attempt to commit suicide if an attempt is made to remove him to Iran. He was not cross-examined and I proceed on the basis that he is genuine as to this intention. Other material referred to above indicates that the prospect of the applicant acting on this intention needs to be taken seriously.
85. Section 198(1) and (6) of the Act, both of which are applicable here, require an “officer” to remove a non-citizen who is in detention (and who meets other specified criteria) from Australia “as soon as reasonably practicable”. This language no doubt lies in the background to the way in which relevant circumstances were described in NZYQ and in the earlier cases discussed above. However, those cases are concerned with whether removal of a person is likely to become practicable (ie feasible). In this part of the argument, the applicant apparently proposes a test of reasonable practicability as a legal limit on the power and duty to remove a person under s 198.
86. In M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131; 131 FCR 146 (M38), the appellant was an unsuccessful protection visa applicant who was in detention. He sought an injunction restraining his removal to Iran, on the ground that he had a well-founded fear of persecution on convention grounds in that country and such removal was therefore not authorised by s 198(6) (the articles it was said would be contravened were art 3 of the Convention Against Torture and other Cruel and Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) and of the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 16 December 1966, 606 UNTS 267 (entered into force 4 October 1967)). His submissions on this point did not rely on the concept of reasonable practicability (at [70]). However, the Court made some observations on the role played in s 198(6) by that language. At [64] their Honours observed that the officer’s duty to remove an unlawful non-citizen “is not absolute, in the sense that it does not arise as soon as the conditions in paras (a) to (d) are satisfied, but as soon thereafter as is ‘reasonably practicable’ for the officer to remove the non-citizen”. At [65] their Honours continued:

Whether or not the removal of an unlawful non-citizen is practicable seems to be largely, if not entirely, concerned with whether the removal is possible from the officer's viewpoint. The word “reasonably” in the expression “reasonably practicable” limits or qualifies what would otherwise be an almost absolute obligation. The removal of a non-citizen may be practicable in the sense that it is feasible, but not “reasonably practicable” as required by s 198(6) of the Act.

In the context of s 198(6) of the Act, practicability and reasonableness may, on occasion, operate in opposing senses. Whether the removal of a non-citizen is “reasonably practicable”, as distinct from merely “practicable”, may direct attention to a range of considerations, including factors relating to the unlawful non-citizen facing removal, and the interests of third parties who may be directly affected (such as, for example, the interests of third party states).

(Citations omitted.)

87. The appellants in NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292; 133 FCR 506 (NATB) also sought injunctions preventing their removal from Australia. However, instead of relying on Australia’s convention obligations, they argued that their removal was not “reasonably practicable” — and therefore not authorised by s 198(6) — because they faced harm if removed to their respective home countries. This argument was rejected.
88. Discussing the construction of s 198(6), the Full Court said at [42]:

Once the conditions specified in paras (a), (b), (c) and (d) of subs (6) are satisfied, the duty to remove as soon as reasonably practicable arises. However, unless removal is already reasonably practicable, there is not an immediate and absolute duty actually to effect the removal; the duty to remove becomes absolute only once removal becomes reasonably practicable.

89. At [44]–[46] their Honours accepted that the concept of removal in s 198 involved removing a person to another country that was willing to admit that person. At [48]–[50] their Honours expressed broad agreement with what had been said in M38, save for the observation that “reasonably” and “practicable” might pull in opposite directions. They regarded “practicable” as already including an element of reasonableness, but considered that the express addition of “reasonable” might add something to what was already implicit. Their Honours continued at [51]–[53]:

We think it undesirable to attempt a definition of the expression “reasonably practicable” in the present context. It is impossible to foresee all circumstances which may arise. The expression requires a process of evaluation of the facts in each case.

However, some observations may be made. First, it is possible to say that determination about reasonable practicability is not necessarily limited to physical considerations, such as the health of the person to be removed, or the availability of an operating airport in the country of destination. The willingness of another country to allow the person to enter its territorial boundaries is at least one non-physical factor relevant to reasonable practicability. Second, without attempting an exhaustive statement, it is possible to identify some limitations on the matters relevant to determination of reasonable practicability. They arise out of the words themselves. The relevant considerations are practical considerations, as is indicated by the dictionary definitions of “practicable” set out at [47] above, Moreover, the context for determining reasonable practicability is the proposed physical removal of the person from Australia.

This second limitation is of critical importance to the resolution of the appellants’ principal argument. In our opinion, the reference to reasonable practicability in the subsection does not require an officer to take into account what is likely, or even virtually certain, to befall the unlawful non-citizen after removal is complete; and removal is complete, at the latest, once the person has been admitted by, and into, the receiving country. Even if it is virtually certain that he or she will be killed, tortured or persecuted in that country, whether on a Refugees Convention ground or not, that is not a practical consideration going to the ability to remove from Australia. Rather, it is a consideration about a likely course of events following removal from Australia.

90. Responding to a contention that it was “unthinkable that Parliament intended to make an officer an executioner or torturer at one remove”, the Court pointed to the processes that existed under the Act to permit a further visa application or vary an unfavourable tribunal decision (at [54]–[59]). The point being made was (as I understand it) that the terms of s 198(6) did not make consideration of the harm that might befall a person in another country after removal from Australia the responsibility of the officer to whose lot it fell to remove the person. At [61] the Court endorsed the reasoning in M38.
91. It will be noted that the Court in NATB expressed its reasoning at [53] in terms of issues which an officer seeking to remove an unlawful non-citizen was required to take into account. This aspect of the analysis was not developed at any length. However, it appears that the Court regarded the question of reasonable practicability as one for assessment by the removing officer, rather than something amounting to an objective test of lawfulness directly enforceable by the Court.
92. This was the understanding on which Besanko J proceeded in Beyazkilinc v Manager of Baxter Immigration Reception and Processing Centre [2006] FCA 1368; 155 FCR 465 at [41]–[47] (Beyazkilinc), holding that “reasonable practicability” was not a jurisdictional fact, although his Honour accepted (citing French J in WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1332; 84 ALD 655 at [70] (WAJZ)) that proposed removal “can be challenged on the other grounds which constitute jurisdictional error” (at [44]).
93. Beyazkilinc involved an application to strike out the statement of claim in which the applicant sought, among other things, an injunction restraining his removal from Australia. The conclusion that reasonable practicability did not constitute a “jurisdictional fact” fed into his Honour’s reasoning that removal was a “privative clause decision” within the meaning of s 474 of the Act and therefore could not be challenged on the grounds that the applicant was relying upon (see at [40]). His Honour’s approach to the effect of s 474 on a claim in tort was regarded as inconsistent with other authority, and not followed, in Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483; 243 FCR 17 at [436]–[437] (Bromberg J) (Plaintiff S99). However, this does not undermine his Honour’s analysis of s 198.
94. Had s 198 been in issue in Plaintiff S99, it would have been difficult for Bromberg J to disagree with the analysis in Beyazkilinc. This is because the analysis had been adopted again by Besanko J in Kumar v Minister for Immigration and Citizenship [2009] FCAFC 55; 176 FCR 401 at [82] (Kumar), with Stone and Greenwood JJ agreeing. His Honour referred (at [80]–[82] to M38, NATB and WAJZ, all of which proceeded on the basis that reasonable practicability was a matter for assessment by the relevant officer. I have not been referred to a case in which the removal of a non-citizen from Australia was restrained on the ground that it was not “reasonably practicable” and therefore not authorised.
95. There is much to be said for the view that the phrase “as soon as reasonably practicable” does not contain a limit on power at all. The words “as soon as” in s 198 are not words that would normally be used to introduce a qualification on a power or duty. There is also a degree of incongruity in a form of reasoning which holds that something must not be done because it cannot be done. A natural reading of the statutory language would treat “remove as soon as reasonably practicable” as a single composite expression in which “as soon as reasonably practicable” indicates the degree of intensity with which the objective of removing an unlawful non-citizen must be pursued and carried into effect. On this understanding, there is not a distinct duty to remove (with a corresponding power to do so) that comes into operation when removal becomes “reasonably practicable” (an understanding that would make reasonable practicability an objective standard, contrary to Kumar at [82]). Rather, there is a duty which comes into effect as soon as the non-citizen meets the relevant statutory criterion and requires officers, from that moment, to make reasonable efforts to bring about the non-citizen’s removal.
96. On this understanding, the extreme hypothetical case of a non-citizen being forced on to an international flight in the face of evidence that they might not survive the journey would be approached by asking whether that was truly an attempt to “remove” them (noting that “removal” involves taking the person to another country and cannot sensibly be said to involve steps that may mean that person will not arrive in that country alive). As to the prospect of a non-citizen suffering death or injury soon after arrival at their destination, the clear authority of NATB is that that is not an issue relevant to reasonable practicability under s 198. It is a prospect that can and sometimes must be considered under other provisions of the Act, including the provisions relating to protection visas.
97. Despite the attractions of a construction of s 198 that treats “as soon as reasonably practicable” as not limiting the power and duty to remove, I must proceed on the basis that the cases do not rule out removal being restrained on the ground that the officer undertaking that removal has not properly considered whether it is reasonably practicable. Described in those terms, it is a situation that is unlikely to arise for obvious reasons.
98. Returning in the light of these observations to the applicant’s argument that he cannot be (and will not be able to be) removed from Australia to Iran because s 198 will not authorise such removal, acceptance of the argument would seem to involve concluding that, because of his intention to attempt suicide:

(a) no officer will be properly able to form a view, in the reasonably foreseeable future, that the removal of the applicant to Iran is reasonably practicable; and

(b) circumstances in which removal is lawful will therefore not arise.

99. The evidence concerning the applicant’s suicidal intentions, distressing as it is, does not support conclusions of this nature in the absolute terms with which they need to be reached. Accepting that the applicant would be a danger to himself, and potentially others, if required to board an aeroplane bound for Iran, the better view is (as the respondents submitted) that s 196(1) would require him to be “detained” until the process of removal was complete; ie until he had landed in Iran and passed through that country’s border control processes. While detained he could be “restrained” by an officer and subjected to such force as is “reasonably necessary” for the purpose of detention (which would include ensuring his and other persons’ physical safety): see the definitions of “immigration detention” and “detain” in s 5. An officer considering the removal of the applicant would therefore be highly likely to have in contemplation steps that could be taken to restrain the applicant so that he could not harm himself during the journey. This is especially the case given reg 4.87 of the Aviation Transport Security Regulations 2005 (Cth) relevantly requires that a person “in custody under [the Act]” must be escorted by at least two officers if the person is likely to attempt to put the safety of anybody on board an aircraft (presumably including themself) at risk. This makes it impossible to conclude in an absolute way that any attempt to remove the applicant to Iran would be unlawful as a result of a failure properly to assess its practicability.
100. The applicant argues against this construction. He points out that it gives s 196 extraterritorial operation and that it does so in a manner inconsistent with individual liberty. Such an intention would usually be expected to be set out clearly. However, although it is surprising that this is not set out with greater clarity, extraterritorial operation and restraints on liberty are necessarily contemplated once it is accepted that the process of “removing” a non-citizen ends only when they enter another country. Sections 196(1) and 198 are to be contrasted in this respect with s 198AD, which expressly confers powers on an officer to restrain a person and use force while they are being taken to a regional processing country (sub-s (3)), but then expressly provides that the person is not in immigration detention during that process (sub-s (11)).
101. Of course, I am not expressing any view that removal should be attempted in the circumstances being discussed here. Obvious issues of practicality arise; and a basic concern for human dignity weighs heavily against placing the applicant in restraints so that he can be removed to a country where, on his evidence, he would very likely attempt suicide. This part of my reasons is concerned with legal limits on the power to remove. I am not satisfied that those limits, in and of themselves, present an ongoing barrier to removal that engages the reasoning in NZYQ. That is to say, on the assumption that the applicant’s lack of a travel document could be overcome, there is a real prospect that arrangements could be made which would result in removal of the applicant to Iran being assessed as “reasonably practicable”, and thus authorised (if reasonable practicability does give rise to a legal limit on the power), within the reasonably foreseeable future.

DISPOSITION

102. For the reasons set out above, particularly at [53] and [65]–[66], the applicant is not lawfully detained and is entitled to be released immediately. I will make orders accordingly.
103. This does not dispose of all issues in the proceeding. There remains the claim for mandamus requiring the applicant’s removal. Prima facie that cannot succeed in circumstances where the applicant is not detained (and therefore no duty arises under s 198), and in any event it may no longer be pressed. There is also the question of costs, which may not be simple. I will therefore list the matter for case management on 5 December (the day that had been fixed for trial before the habeas corpus application intervened) in order to hear from the parties as to what issues remain and what procedural steps are necessary to resolve them.
104. It is appropriate to acknowledge that the applicant's counsel appeared pro bono in this proceeding, and have done so in other proceedings brought by the applicant over a number of years. Such pro bono assistance serves the broad community interest in access to justice, and the Court is grateful for their efforts.

Associate:

Dated: 30 November 2023