FEDERAL COURT OF AUSTRALIA SZSZM v Secretary, Department of Immigration and Border Protection [2016] FCA 1477 File number: NSD 1455 of 2016 Judge: PERRAM J Date of judgment: 9 December 2016 Catchwords: MIGRATION – removal of unlawful non-citizens – removal on request – requirement to remove 'as soon as reasonably practicable' Legislation: Migration Act 1958 (Cth) s 198(1) Cases cited: Al-Kateb v Godwin (2004) 219 CLR 562 Date of hearing: 1 December 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 51 Counsel for the Applicant: Mr M Seymour Solicitor for the Applicant: Macarthur Legal Service Counsel for the Respondent: Mr P Jones Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS NSD 1455 of 2016 BETWEEN: SZSZM Applicant AND: SECRETARY, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION Respondent JUDGE: PERRAM J DATE OF ORDER: 9 DECEMBER 2016 THE COURT ORDERS THAT: 1. Vary Order 1 of 24 October 2016 to read: The following question be tried separately from and in advance of all other issues: 'Has the respondent breached s 198(1) of the Migration Act 1958 (Cth)?' 2. Answer the question thus posed 'No'. 3. The applicant pay the respondent's costs of the hearing of the separate question as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRAM J: 1. Introduction 1 SZSZM is a citizen of Pakistan. He has been in immigration detention in Australia since 15 November 2012, his visa having been cancelled on character grounds on 17 October 2012. On 20 November 2015, he requested that he be removed from Australia and returned to Pakistan. 2 The applicant does not hold a passport or any other travel document which would permit him to travel overseas. Since his request to be removed, the Secretary of the Department of Immigration and Border Protection has been endeavouring, through the Pakistan Government, to obtain a passport for him. Those efforts have thus far been unsuccessful. 3 Section 198(1) of the Migration Act 1958 (Cth) ('the Migration Act') provides: 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. 4 There is no debate that the applicant is presently an unlawful non-citizen. He now claims that he has not been removed as soon as reasonably practicable, as s 198(1) requires. In his originating application he claims various types of relief but they all depend, to some extent, on his first establishing that there has been a breach of that section. 5 On 24 October 2016, I directed that the question whether s 198(1) had been breached be tried separately and in advance of all other issues in the case. It is that single issue which is now before the Court. 6 Because the applicant has requested in writing that he be removed, the language of s 198(1) imposes a mandatory duty upon an officer to remove him 'as soon as reasonably practicable'. 7 There was a debate before me as to whether this meant as soon as reasonably practicable from the viewpoint of the officer referred to in s 198(1), or whether some objective standard might be involved: cf. Al-Kateb v Godwin (2004) 219 CLR 562 at [34], [226]-[231], [295]. 8 I do not need to resolve that issue as factually I am satisfied that it is neither presently, nor has it at any other time been, reasonably practicable to remove the applicant from Australia, whether viewed objectively or from the standpoint of the Department or any of its officers. 9 The evidence before me established that: (a) the applicant is a Pakistani citizen who does not hold a travel document; (b) without a travel document he cannot be returned to Pakistan; and (c) the applicant has not identified any other country which he has an entitlement to enter. 10 That, by itself, would on one view appear to be the end of the matter. Because he does not have a travel document, he cannot be removed to Pakistan, and he has not nominated anywhere else that he might be sent. Because it is not possible for him to be removed, it is not 'practicable' for him to be removed either. 11 It might nevertheless be said that although the applicant's removal is not presently possible or practicable, yet might it be 'reasonably practicable' if the reason the travel document had not been issued was due to some default on the Secretary's part. To take an extreme example, if the Secretary refused to permit the applicant to complete the necessary application forms, and this was the reason no travel document had been issued to him, then it might be said that it had been reasonably practicable to remove him. And this might be so even though it was not currently possible to remove him. 12 I propose to make in the applicant's favour the assumption that this is indeed how s 198(1) operates. I emphasise that this is an assumption. Even making that assumption, the evidence does not come close to establishing any unreasonable behaviour on the part of the Secretary. Indeed, the evidence led by the Secretary shows his actions to have been quite reasonable. 2. Facts 13 The following summary of the evidence draws heavily on the respondent's written submissions. 14 On 20 November 2015, the applicant acknowledged that he was an unlawful non-citizen, and requested the respondent to remove him from Australia, in accordance with s 198(1). 15 As part of that process, on that day, the Department forwarded documentation to the Consulate General of Pakistan, advising that as the applicant did not hold a then currently valid passport, it would be seeking documentation to facilitate his repatriation to Pakistan, which was planned for 15 December 2015. A follow up email was sent to the Pakistan Consulate on 23 November 2015. At this time, no response was received from the Consul-General. 16 Despite this, on 25 November 2015, arrangements were made for a flight for the applicant to Pakistan on 15 December 2015. However, there was then a setback. 17 On 26 November 2015, the Government of Pakistan informed the Department that it had recently devised a 'new comprehensive procedure for effectively and efficiently processing deportations of people from various countries back to Pakistan' and that the 'Consulate General of Pakistan will not be able to issue Emergency Travel Document (sic) to the deportee or verify his given passport or issue visa (sic) to the escorting team unless nationality and antecedents of the deportee are duly verified'. This process required further documentation to be forwarded to the Consulate. 18 Follow up emails to the Pakistan Consulate were sent by the Department on 26 and 30 November 2015. 19 A response was received from the Pakistani Consulate on 1 December 2015 seeking, inter alia, the applicant's travel itinerary and stating that clearance and verification of nationality and antecedents were required from the Ministry of Interior. 20 On 9 December 2015, the respondent emailed the Pakistan Consulate confirming the forwarding of all the appropriate documentation and attaching a copy of the itinerary. It advised that the removal date had now been changed to 8 January 2016. 21 On 21 December 2015, the Department emailed the Pakistan Consulate seeking a further update on progress. On the same day, the Pakistan Consulate advised that the 'deportation has been referred to our Ministry of Interior'. On 8 January 2016, a further email was sent by the Department to the Pakistan Consulate seeking an update on the progress of the documentation. 22 Meanwhile, the Department experienced a refusal to admit two Pakistani nationals who the Secretary attempted to remove on 2 January 2016 and 23 January 2016. 23 On 4 January 2016, the travel arrangements for the applicant to be repatriated on 8 January 2016 were cancelled, as there had been no response from the Pakistan Consulate. A further email was sent by the Department to the Pakistan Consulate on 8 January 2016, seeking an update in respect of the Applicant. On 15 January 2016, the Department met with officials from the Pakistan High Commission to seek clarification on the new returns procedure required by the Pakistan Ministry of Interior. On 19 January 2016, the Department forwarded an email to the New South Wales Pakistan Consulate following up on the status of the applicant's documentation. On 20 January 2016, the Department was informed by the Pakistan Consulate that the documentation was still awaiting approval from the Pakistan Ministry of Interior. On 21 January 2016, the applicant was provided with a letter from the Department advising of the current state of his repatriation – in effect, that the Department was waiting for travel documentation to be issued by the Pakistan Consulate. 24 On 25 January 2016, after the return of the second person who had been removed to Pakistan from Australia (referred to above), the Department decided that confirmation of arrangements with the Pakistani Government would be required before any further attempted removals. 25 In addition to its communications with the Pakistani Government, the Department endeavoured to keep the applicant abreast of the situation. Between 19 January 2016 and 23 May 2016, the applicant was contacted by his case manager or a removal officer on at least some twelve occasions to discuss the status of his travel documentation or his removal more generally. 26 On 2 March 2016, a meeting was sought between the Departmental representatives in Islamabad and the Ministry of Interior in Pakistan, to discuss the arrangements for removals. 27 On 4 May 2016, representatives of the Department met with representatives of the Pakistan High Commission to discuss the ongoing issues surrounding the removal of detainees to Pakistan, and were provided with copies of new 'standing operating procedures for deportation from abroad'. Those representatives were informed of a further requirement that the person to be removed was to be escorted to the High Commission for the provision of biometrics and witnessing. 28 On 6 May 2016, the Department contacted the applicant and asked him to complete further documentation, and on 12 May 2016, the Department forwarded the newly completed documentation to the Pakistani authorities. 29 On 16 May 2016, the Department contacted the Pakistani authorities seeking an update. 30 On 31 May 2016, the Department received a phone call from the Pakistan Consulate advising that 'verification and approval had been received from the Ministry of Interior', and that the applicant's travel document was ready to be issued, pending receipt of an itinerary. 31 On 1 June 2016, the Department received an email from the Pakistan Consulate advising that they had received verification of the applicant's passport, but that the identity card verification was not yet complete. This contradicted what had occurred on 31 May 2016. 32 On 2 June 2016, the Department received an email from the New South Wales Pakistan Consulate requesting the applicant be escorted to the Consulate to submit to biometric testing, as part of his identification process. The applicant was escorted to the New South Wales Pakistan Consulate for the biometric and identification process on 6 June 2016. 33 In anticipation of the documentation on 20 June 2016, the removal officer confirmed arrangements for a flight for the applicant to Pakistan on 1 July 2016, and on 21 June 2016, the Pakistan Consulate was advised of this. 34 On 22 June 2016, the Department was advised that the documentation was still not available. 35 Meanwhile, the Department, through the Islamabad Post, continued to engage with 'key interlocutors in the Pakistan Ministry of Interior and federal investigation agency' to 'address obstacles in relation to the issuance of travel documents'. 36 On 31 August 2016, the first successful removal of a Pakistani national, pursuant to the new requirements of Pakistan, was achieved. But on the same day, the Department received an email from the Pakistan Consulate advising that they were still awaiting a decision on the identity of the applicant. 37 On 31 August 2016, the Minister for Immigration and Border Protection met with the Pakistan High Commissioner, to seek Pakistan's cooperation for the return/removal of Pakistan Nationals. Whilst the High Commissioner agreed to raise these matters with the Pakistan Ministry of Interior in Islamabad, the Department is yet to secure any outcome, notwithstanding three requests. 38 On 30 September 2016, the Department forwarded an email to the New South Wales Pakistan Consulate, seeking a further update on the identification process of the applicant. On 12 October 2016, the Department sought a further update. On 13 October 2016, the Pakistan Consulate advised that the applicant was still undergoing 'verification of his Pakistani antecedents'. On 13 October 2016, the Department forwarded an email to the New South Wales Pakistan Consulate, offering to assist in any further way in relation to the applicant's identification. 39 On 9 November 2016, the Department again emailed the Consulate General, which replied on 10 November 2016 that they had sent several reminders but were waiting for confirmation for Islamabad. Following another query on 11 November 2016, the Consulate responded that the matter was being investigated and concluded by saying 'Kindly bear with us'. 3. Consideration 40 For myself, this chronology shows that the proposition that the Secretary is in some way responsible for the delay which has occurred is quite untenable. The Secretary is, like the applicant, a victim of circumstance. 41 The applicant made some particular points which should be addressed. First, it was submitted that the Secretary could have been more persistent in his inquiries of the Pakistan Consulate. The evidence suggests that the Department has been contacting the Consulate about once a month to find out how the passport application is progressing. Mr Seymour of Counsel, for the applicant, would not be drawn on how often it would be necessary for the Secretary's staff to contact the Consulate to constitute a sufficient effort but it was, so it was submitted, more than once per month. This was particularly so when it needed to be kept in mind that throughout this whole process, the applicant would remain in immigration detention. 42 I do not accept this submission. It is clear that the difficulty which exists is not with the Consulate, but with the slow internal workings of the bureaucracy in Pakistan. I have no reason to think that that bureaucracy would have been provoked into action any more than it was by fortnightly or even weekly telephone calls or emails from the Department. Further, there is the consideration advanced by the witness Mr Crighton, the Acting Superintendent of the NSW Removals Operations of the Department, which I accept, that in communications between nations a certain degree of good manners and respect is called for, so that there are limits to the extent to which his staff might properly pester the Consulate. I accept this. I do not accept, therefore, that it was in any way unreasonable for the Department to follow up with the Consulate with the frequency that it did. 43 Secondly, it was said that the applicant had been told when he was filling out the relevant application forms that he did not have to put his thumbprint on those forms. This is, I should say, a contested matter between the parties. The material does not provide a very secure basis for forming an opinion about it either way. The documentary material is equivocal, and the assertions of both sides were not tested by cross-examination. I therefore propose to make no finding about it. However, assuming it in the applicant's favour, it goes nowhere, as there is no evidence that the difficulties which have been encountered at the Pakistani end have anything to do with a lack of the applicant's thumbprint. 44 Thirdly, a similar argument was advanced in relation to a Pakistani identity card. The applicant argued that the Secretary had made no attempts to obtain such a card for the applicant. Again, however, there is nothing in the material before me to suggest that this has anything at all to do with the delays which have been experienced in relation to the issue by Pakistan of his passport. There was an email from the Pakistan Consulate on 1 June 2016 which suggested that some delay was occurring at the Pakistani end as a result of the need to verify the applicant's identity card. This was curious because the same email chain also suggested that the applicant did not have such a card. Whatever this denotes – and to me it is quite unclear – it does not prove that the delays at the Pakistani end were being caused by any failure on the part of the Secretary. 45 Fourthly, evidence was elicited from Mr Crighton that in some circumstances it is possible for a person to be removed from Australia travelling only on an identity card issued by the Australian Government. In such cases, however, the receiving state has to indicate a willingness to accept the person without a passport before a removal will be attempted. There was no evidence that Pakistan has indicated any willingness to accept the applicant without a travel document. Accordingly, this point does not go anywhere. 46 Fifthly, it was submitted that the Secretary had not sufficiently explored the availability of other countries to which the applicant might be sent. However, the applicant has never suggested to anyone that there is another country to which he can be sent. If there were such a place, I infer that he would have mentioned it, given his desire to be removed from immigration detention. The fact that he has not so indicated is evidence from which I may infer that there is no such place. I so infer. I do not accept that the Secretary was obliged to identify states that the applicant might be permitted to enter if the applicant did not identify any himself. 47 Sixthly, it was submitted that the Secretary could have sought to have resettled the applicant in a third party country such as Papua New Guinea or Nauru. The question which arises on the operation of s 198(1), the construction of which I have assumed in favour of the applicant, concerns itself with whether the steps taken were reasonable. It may be that in the case of a stateless person reasonable steps would involve making an arrangement with another country for resettlement purposes (although quaere whether the separation of powers would permit this Court to tell the executive how to conduct foreign relations). But here the evidence was that the applicant's problem was a temporary one. Eventually, the applicant will be given a Pakistani passport; all that is involved here is delay. The applicant is not a stateless person. He is a person experiencing delays in the issue of a passport. Even assuming it is possible, it would be quite unreasonable in that circumstance to require the Secretary to attempt to resettle the applicant in some third country. 48 In those circumstances, I am satisfied that the Secretary has done all that he reasonably can do to arrange the applicant's travel document. Accordingly, the time referred to in s 198(1) of the Migration Act has not yet come. 49 To give some procedural rigour to this hearing, I propose to amend Order 1 of 24 October 2016 so that it now reads: The following question be tried separately from and in advance of all other issues: 'Has the respondent breached s 198(1) of the Migration Act 1958 (Cth)?' 50 I would answer the separate question thus posed 'No'. 51 The applicant is to pay the respondent's costs of the hearing of the separate issue as taxed or agreed. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 9 December 2016