The Failure to Cooperate Judgment

by Paul Cutler | May 10, 2024 | Uncategorized

The High Court gave its judgment in the failure to cooperate case today (10 May 2024 – see ASF17 v Commonwealth of Australia [2024] HCA 19). In my earlier blogpost I expressed my view that ASF17’s failure to cooperate would be fatal to his case. It turns out that my prediction was correct. If you only read a few paragraphs in the judgment it should be these ones (with my underlining added):

THE POSITION OF ASF17

[7] For the purpose of facilitating removal of ASF17 from Australia, officers of the Department conducted regular interviews with him from 2018. Throughout those interviews, he consistently told officers that he would not voluntarily return to Iran. He consistently refused to sign a request for removal or to engage with Iranian authorities in planning for his removal. He repeatedly told officers that he would agree to be sent to any country other than Iran. However, he did not suggest that there was any country to which he might be removed other than Iran.

[8]  Iranian citizens cannot enter Iran from Australia without a travel document issued by Iranian authorities and Iranian authorities have a longstanding policy of not issuing travel documents to involuntary returnees.

[9]  The Department has a policy of not removing anyone to a country in respect of which they have no right of residency or long-term stay (“the third country removal policy”). Considerations underpinning the third country removal policy include the potential for diplomatic controversy were someone to be removed to a country which had not agreed to accept them and the lack of any basis for generally considering that a country would agree to accept anyone who has no right of residency or long-term stay in that country.

[10] The consistent refusal of ASF17 to cooperate in facilitating his removal from Australia to Iran combined with his failure to identify any third country in which he might have a right of residency or long-term stay therefore resulted in an impasse. His position was described in a record of the Department in 2022 as “intractable”.

and….

EFFECT OF HIS FAILURE TO COOPERATE 

[42] The short point is that, conformably with the Lim principle, continuing detention for a non-punitive purpose that is occurring because of a voluntary decision of the detainee cannot be characterised as penal or punitive. The non-punitive statutory purpose of removing an alien detainee from Australia under s 198(1) or s 198(6) of the Act remains a non-punitive purpose that is reasonably capable of being achieved if and for so long as removal could be achieved in the reasonably foreseeable future were the detainee to decide to cooperate in the undertaking of administrative processes necessary to facilitate that removal.

and….

[48] ASF17 could be removed to Iran if he cooperated in the process of obtaining the requisite travel documents from Iranian authorities. He has decided not to cooperate. He has the capacity to change his mind. He chooses not to do so.

[49]  On those undisturbed findings of primary fact, the evaluative characterisation of the primary judge, that there is a real prospect of removal of ASF17 from Australia to Iran becoming practicable in the reasonably foreseeable future, such that the constitutional limitation identified in NZYQ has not been exceeded, is correct. ASF17’s continuing detention under ss 189(1) and 196(1) of the Act does not exceed the temporal limitation on the valid application of those provisions imposed by Ch III of the Constitution.

[50]  The appeal will be dismissed with costs.

Failure to Cooperate

by Paul Cutler | Apr 30, 2024 | Uncategorized

The legislative attempt to make failure to cooperate a criminal offence passed the Lower House but not the Senate on 26 March 2024. The Migration Amendment (Removal and other Measures) Bill 2024 creates a new class of people called “removal pathway non-citizens”. In some circumstances the Minister can give directions to those people to assist with their own removal from Australia. Their failure to cooperate will be an offence.

When all of this was newsworthy at the end of March there were media reports about a pending High Court case. That case is ASF17 v Minister which was heard on 17 April 2024 and judgment is reserved.

I have read the submission of the parties which are on the High Court website. Thankfully the High Court rules compel brevity.

Some brief facts

The appellant is a citizen of Iran detained in Australia. He has been detained by officers of the Commonwealth for over 10 years under the Migration Act 1958 (Cth). He is bisexual. The Commonwealth accepts that sexual intercourse between males is illegal in Iran and can attract the death penalty

The appellant’s case was that, at all relevant times, the Commonwealth: (1) knew Iran would not issue travel papers for the involuntary removal of one of its citizens from Australia; (2) knew the appellant would not go to Iran voluntarily; and (3) never considered possible pathways to removal from Australia other than to Iran. The appellant accepted that, if he cooperated by taking certain steps, he could be removed to Iran.

The Applicant had requested removal from Australia to some country other than Iran (to no avail). The stalemate between ASF17 and the Commonwealth is obvious. His failure to cooperate is making it impossible to remove him and there is nowhere else that he can be sent.

The issue – cooperate

As we now know from NZYQ detention can’t be indefinite and becomes unlawful when there is no real prospect of the removal of the alien from Australia becoming practicable in the reasonably foreseeable future. The issue before the High Court is basically about whether his continued detention is lawful or not when ASF17 is not cooperating in his removal.

There are a number of authorities referred to in the written submissions of the parties (see  Al Masri (2003), WAIS (2002) SPKB (2003)) which basically say that an applicant can’t create a circumstance which negatives any reasonable likelihood that he can be removed in the foreseeable future by withholding his consent or cooperation to a particular avenue for removal. In effect, you can’t take advantage of a situation that you have created.

My personal view on this is that ASF17’s failure to cooperate will be fatal to his case. If that turns out to be correct I don’t see much point in making failure to cooperate an offence (which would just result in further lawful criminal detention).

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Indefinite Detention

by Paul Cutler | Feb 29, 2024 | Uncategorized

Remitted

by Paul Cutler | Jan 31, 2024 | Uncategorized

You may remember that the High Court remitted QYFM to a differently constituted Full Federal Court after it found that Justice Bromich should have recused himself. I have previously blogged about the recusal decision.

When the matter arrived back in the Full Court the original grounds of appeal were “jettisoned” and leave was sought to rely on six new ones. The appellant was also granted leave to rely on the AAT transcript which had not been before the original Full Court. That transcript revealed that the Appellant (who was self represented in the AAT) had been given a warning about the privilege against self incrimination. One of those warnings arose in the context of a reference from a former employer WS. Apart from being unsure of WS’s gender the following occurred:

SENIOR MEMBER: All right. And how do you know [WS]?

WITNESS: I know him from a long way back, so [WS] is a long way back.

SENIOR MEMBER: Okay. And what do you mean a long way back, is that a friendship or did you work for him or how do you know each other?

WITNESS: It’s a friend – he’s a friend.

SENIOR MEMBER: Oh he’s a friend?

WITNESS: Yes.

SENIOR MEMBER: So have you worked for [WS]?

WITNESS: No.

WITNESS: No, I have not worked for him (indistinct).

SENIOR MEMBER: All right. Well why does [WS] then say in his letter, he was with us from July 2011 to December 2012 and his high work ethic and leadership potential was realised, resulting in [the appellant] being quickly promoted to warehouse supervisor, if you haven’t worked for him, how can it be that he said these things?

WITNESS: I think I must ask him what do they call it? I must ask him some character reference and that’s what he was referring to so (indistinct) people to – (indistinct) people as, you know, helping them – yes, you know, as a friendship helping and that’s why I think he might have meant it that way.  But I have no word for it.

SENIOR MEMBER: So has [WS] provided false information to the tribunal, saying that you had worked for him?

WITNESS: It could be so – – –

SENIOR MEMBER: But … you provided these letters to the tribunal in support of your case, why have you provided something that’s false?

Things only got worse when later that day, the Tribunal telephoned WS.  The transcript records, in essence, his evidence that he had never known the appellant.  The Tribunal then asked whether the appellant had “any questions at all of the witness”.  The appellant replied:  “No”. This led the Senior Member to say: ” … I have some serious doubts … that you have provided statements that are true and accurate“.

Whatever the legal merits (or not) of this case were, credibility issues like the one created for himself were very unhelpful to the application!

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Section 48A Bar

by Paul Cutler | Oct 16, 2023 | Uncategorized

Is there a section 48A bar arising from the following facts:

1. The Applicant applied for a protection visa in 2013;
2. The application was refused in 2014;
3. In September 2017, the AAT affirmed the delegate’s decision; 
4. On 12 September 2017 (the day following the AAT decision) the Assistance Minister used the power in s417(1) to grant a three month visitor visa with a no further stay condition on it; and
5. On 12 October 2017 the Applicant applied for a second protection visa.

That second application was found to be invalid on the basis that there was a section 48A bar which had not been waived. An application for judicial review was made in the Federal Circuit and Family Court of Australia where Judge Laing found that there was a s48A bar. The matter then went to the Full Federal Court (see Fel17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 153).

It was a 2:1 majority decision in the Full Court:

• In seven succinct paragraphs Justice Snaden found that: “There is nothing about the subject matter, scope or purpose of the Act that should require or suggest that the exercise of power under s 417(1) operates so as to revive the by-then-extinguished legal effect of the decision whose affirmation the Minister has seen fit to replace with something more favourable.”; and
• Unfortunately, Justices Halley and Abraham found that: “In short, s 48A of the Migration Act prohibits the making of a further protection visa application where one has already been made and refused. That is subject only to s 48B, where the Minister can personally exercise his power to consider another application if it is considered in the public interest to do so. That power was not exercised. The Assistant Minister substituting the Tribunal’s Decision and granting a different visa, a three month visitor visa, pursuant to s 417(1) of the Migration Act, does not mean that the appellant has no longer been refused a protection visa for the purposes of s 48A.”

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A matter

by Paul Cutler | Sep 27, 2023 | Uncategorized

Even those of us who didn’t do very well at constitutional law know that having a matter is a pre-requisite for federal jurisdiction. In AZC20 v Minister [2023] HCA 26 the High Court found that there had been no matter before the Full Federal Court.

The facts

The facts of AZC20 (which are a bit complicated and involve several sets of proceedings and appeals) were that:

1. AZC20 is an Iranian gentleman who arrived in Australia by boat in 2013;
2. His protection visa application was unsuccessful and he has been held in immigration detention ever since his arrival;
3. He commenced proceedings in the FCA seeking orders that the Minister remove him as soon as practicable to an offshore processing facility (s198AD);
4. He was successful in obtaining that order, together with an order that as an interim step he be moved to home detention (in the home of one of his supporters)
5. On the day that the home detention was to take effect, two things happened. Firstly, Nauru advised it would not take AZC20 and secondly the Minister used the power under 198AE (to waive the requirement for removal under 198AD).

That resulted in the Commonwealth making an application in the FCA to vacate the orders, while AZC20 sought to vary them to ensure compliance with the home detention orders. Those applications were both refused. The Commonwealth appealed. AZC20 then started the “s198 mandamus proceeding” which was eventually moved into the FCA where it was adjourned pending the appeal. During the hearing, the Full Court raised the issue about whether the utility of the appeals was of general wider importance but unrelated to AZC20. It proceeded by considering the questions before it as one of “discretion” not “jurisdiction” and allowed both of the Commonwealth appeals.

By the time the matter gets to the High Court, the issue is whether there was a “matter” before the Full Court.

What’s a matter?

 A matter has two elements:

• the subject matter itself as defined by reference to the heads of jurisdiction [in ss 75 and 76], and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy
• The second requirement to identify some “immediate right, duty or liability” to be established by the determination of the court “reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy”. That requirement applies in both original and appellate jurisdiction.

The decision

The High Court explained (at [35]-[36]):

[35] On appeal, therefore, the question is not whether the party can establish the claimed legal right, duty or liability, as that question has been determined. The question is not whether the party continues to have the interest necessary to obtain relief, because that question has been overtaken by the grant of relief or by the refusal of relief. The question on appeal and for determination on appeal is whether the orders of the primary judge should be affirmed, varied or reversed – that is, whether the appeal should be allowed and, if so, what orders should be made in the place of the primary judge’s orders. But the appellate court’s supervisory function over the exercise of original jurisdiction by the primary judge is not an end in itself. The second element required to form a “matter” still applies – there must be a controversy over some immediate right, duty or liability. Usually, there is a live controversy because the orders of the primary judge continue to have effect in determining the parties’ rights, duties or liabilities, unless set aside on appeal. In seeking to appeal the orders made at first instance, one or more of the parties are seeking to challenge the continuing effect of the orders on the determination of their respective rights, duties or liabilities. As will be explained, that critical feature – any controversy over the continuing effect of the orders on the parties’ rights, duties or liabilities – was absent in the appeals before the Full Federal Court.

[36] The appellant submitted before this Court that there was no “matter” before the Full Federal Court because the orders that the Commonwealth parties sought to appeal had no operative legal effect by the time the Full Court determined the appeals. At the time the appeals were filed, Nauru had informed Australia it would not accept the appellant and the Minister had voluntarily engaged s 198AE such that s 198AD did not apply to the appellant. Since the home detention order was dependent on the s 198AD mandamus order, the events rendering the s 198AD mandamus order inoperative similarly made the home detention order inoperative. Even if there was a “matter” when the appeals were filed, there ceased to be a “matter” from the moment during the hearing when the Commonwealth parties undertook not to seek the costs of the trial or the appeals.

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