This is a story about a man who recently lost a lawsuit in the High Court of Australia against the Commonwealth involving rights under the Migration Act 1958. To lose a migration case against the Commonwealth in the High Court is no great distinction, but much else distinguishes this man from ordinary people. In epitome, his claim was that he was entitled to be released from immigration detention after he had arrived in Australia without a visa, but with a passport which he destroyed before encountering immigration officers, although he has not given any account worthy of belief identifying who he is or what country he belongs to. He claims to be stateless, but has not given reliable information about that. After being in immigration detention for more than eight years without resolving who he was, let alone where he belonged, and without obtaining any kind of visa, he claimed that the High Court should order his release and let him join the Australian community.
This essay appears in the most recent Quadrant.
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Claims like these immediately turn the mind to human rights, that is, his human rights, as human rights law does nothing for the interests of the Commonwealth and its citizens who are paying for this whole process and will have to share their country with him if he is released, or the interests of a citizen who does not want unidentified strangers joining his community without permission and without truthfully saying who they are, where they belong or why they are not back there. His lawyers include a firm modestly named Human Rights for All Pty Ltd: no room for objectivity there, and “All” cannot include you and me. The Australian Human Rights Commission asked the High Court for leave to appear as Amicus Curiae, a modest sixteen pages free of any notion that there is a public interest in controlling who comes into Australia: but it seems that the High Court did not accept the tendered friendship and did not give that leave. At the hearing the claim was argued and disposed of without reference to the International Covenant on Civil and Political Rights: an assumption that Australia and its laws control its borders may seem fragile, but it held good on this occasion.
If you ask “Who are you talking about?” I have already given some indication of the difficulty, but there is nothing to be gained from looking at the High Court papers accessible to the general public, because in obedience to the Migration Act section 336E his identity is not disclosed, and documents which refer to his identity are not available, while written submissions give careful anonyms, initials or abbreviations such as YeY, MB and SZUNZ, which conceal the various names he has given (whatever they are). When documents give the title of the proceedings he is referred to as Plaintiff M47/2018, and at the hearing counsel and Justices carefully disciplined themselves accordingly. It would be disrespectfully familiar to speak of him as dear old M47/, which used to his face would chill the friendliest approach. So with a certain stiff legality I speak of him as the Plaintiff. Why Australian law requires the name of anyone in collision with the Migration Act to be a secret is an unexamined mystery now left to one side. It was once a high principle that justice was administered in public.
The nature of the problem of the Plaintiff’s true and false names appears from passages in reasons published by some of the Justices:
- … He had previously identified himself to authorities in other countries using at least three different names. When he travelled to Australia he did so on a Norwegian passport under a fourth name. The plaintiff destroyed that passport and presented himself to immigration officers in Australia under a fifth name …
- The plaintiff had previously identified himself to Danish authorities as a citizen of Iraq born in 1990, and to authorities in the Netherlands under a different name as a citizen of Gaza, Israel, born on 1 March 1988. In or about 2007, he applied for protection in Iceland under a different name, as a “citizen” of Western Sahara born in 1991. On 30 December 2009, the plaintiff was intercepted at Singapore airport attempting to travel to New Zealand via Australia on a counterfeit British passport which gave his date of birth as 27 March 1989. On or around 5 January 2010, the plaintiff sought asylum in Germany using the same date of birth.
The High Court documents readily available on the internet include the written submissions lodged by the parties and by the Australian Human Rights Commission before the hearing, transcripts of two preliminary directions hearings and a transcript of the argument before the High Court in Canberra on February 13, 2019, and the reasons given by the Justices for the orders they made. They do not include pleadings such as the statement of claim or the defence, and significantly they do not include the special case agreed upon by the parties. The case began in the High Court with claims for orders declaring that the Plaintiff was entitled to be released from detention, and for a writ of habeas corpus to bring that about. In form a claim like that would be heard by a single Justice and nominally it was, but the parties (sensibly) agreed and the Justice directed the facts to be set out in a special case for the opinion of the full court, including questions which disposed of the claim when the full court answered them. The special case seems to have contained about 500 pages and went through several forms including a revised special case and a supplementary special case, and probably contained every grain of fact and recorded event available to the department after eight years of considerations and events; but I have not seen it. There are many references and quotes in the written submissions, oral argument and reasons, and facts asserted in this story are based on the special case in this indirect way, without an opportunity to read it and be wholly exact in all events, sequences and details.
The main topic of the Australian Constitution is what laws the federal parliament is empowered to make, and how it is to make them. There are many other provisions, but there are not many constitutional guarantees, and those that are expressed seem well chosen. A few implied guarantees have been discerned generations after the deaths of the founders who drew up the Constitution (sparing them considerable astonishment), and as with the doctrine on Section 92 these await over-ruling by High Court Justices who were not yet born when the implications were discerned: a lengthy process, but part of our scheme of government. A constitutional keystone is the jurisdiction given to the High Court to restrain acts of the executive government which are not authorised by law. This keystone is now known as judicial review (another astonishment for the founders, who gave it the Latin names of the writs they knew). Even if the Plaintiff has been delinquent in some way or in many ways, the Commonwealth can only keep him in immigration detention if the Migration Act authorises keeping him in detention. Personal liberty free from restraint by the Commonwealth unless the law authorises restraint is a high value, and the High Court is there to protect it.
The name of the department which administers the Migration Act changes from time to time and just now it is the Department of Home Affairs. The Migration Act 1958, its amendments, explanatory memoranda and second reading speeches, regulations, administrative directions, departmental practices, decisions of administrative tribunals, judicial decisions, changing policies of changing governments and political demands which influence its operation, accumulating now for more than sixty years, form a thorny maze where no one should dare to act and no one could profess understanding without first spending some years working in it. Every statement seems bafflingly complex and many statements are cross-referential and cannot be read on their own. There have been great shoals of classes of visas and circumstances for their grant and withdrawal. There are many different provisions for how particular decisions are to be made and who may make them. Sometimes powers are to be exercised in conditions and circumstances which expose them fully to judicial review: sometimes there are provisions which amplify grounds for exercise and limit judicial control. There could be anything there, and review tribunals, appeals to courts and judicial review are around every corner and backed by legal aid.
The power under which the department has detained the plaintiff since 2010 is conferred by sections 189 and 196 of the Migration Act. These sections cannot really be read on their own as they operate in the context of the whole of the Migration Act. I will set out the parts of these sections which seem presently relevant. Of course there is more, as the reader can readily confirm.
S 189 (1) If an officer knows or reasonably suspects that a person in the migration zone … is an unlawful non-citizen, the officer must detain the person …
S 196 (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 …
(b) he or she is deported under section 200; or
(c) he or she is granted a visa …
(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention … unless the non-citizen has been granted a visa …
(6) This section has effect despite any other law.
It is also significant to notice section 198, which deals with removal from Australia of unlawful non-citizens. Section 198 seems to be the source of references to removal as soon as reasonably practicable in contentions about sections 189 and 196. Section 198 does not authorise detention but it could be thought to deal with ending detention in that it deals with removal from Australia. Section 198 deals with many kinds of non-citizens, and subsection (6) could relate to the Plaintiff:
(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.
(A curious byway of these sections is whether if detention of an unlawful non-citizen were no longer authorised and he were released, there would be still be a duty to remove him when if ever it became possible to remove him to somewhere.)
These powers were closely examined by the High Court in 2004 in Al-Kateb v Godwin 219 CLR 562. In that case a lower court had found as a fact that there was no real likelihood or prospect of removal of the unlawful non-citizen from Australia in the reasonably foreseeable future. It was contended that the purpose of the detention authorised by sections 189 and 196 was removal of the unlawful non-citizen from Australia, and if there was no real likelihood or prospect of removal the purpose for which detention was authorised could not be achieved; detention was ancillary to removal and the power of detention was spent. (In the Plaintiff’s case it was contended that there was no real likelihood or prospect of removal at all, for the rest of his life.) This was not a novel proposition: the High Court has repeatedly looked jealously at the purposes for which statutory authorisations of detention have been enacted and have not treated detention as authorised for longer than required to achieve those purposes, or as authorised for any other purposes. It would not be correct to call this reading down the statutory authorisation: rather, the process is reading the statutory authorisation in the whole context including the purpose for which it exists.
In the path of such a reading of sections 189 and 196 is the decision of the High Court in Al-Kateb. In 2004 a majority, four Justices of the High Court, held that sections 189 and 196 were so clearly stated that it would be incorrect to decide that the power of detention was spent when there was no real likelihood or prospect of removal in the reasonably foreseeable future. After all, must is a very strong word. Three Justices dissented. It is conceivable that the High Court could decide to reopen Al-Kateb and look at sections 189 and 196 again, but unless and until the High Court does so the opinion of the majority is binding. What I say here about states of opinion and grounds for decision in the High Court is extremely compressed and those who wish for full understanding should do their own research.
The law established by Al-Kateb was a lion in the Plaintiff’s path, but stood behind other lions as he first had to establish that in fact (in some or all of the four different formulations put forward by his counsel) there was no real likelihood of removal in the reasonably foreseeable future. No lower court and no earlier findings of fact were involved, and the need was there to persuade the High Court to find the facts that way on the basis of the special case, all 500 or so pages of it, and what the High Court inferred from what was expressly stated in the special case.
The Plaintiff arrived in Australia at Melbourne by plane on January 28, 2010, an unlawful non-citizen under section 14 of the Migration Act 1958. He has been detained at all times since shortly after his arrival, currently at Villawood Immigration Detention Centre—now for almost nine years. It was established by agreed facts that there is no medical condition or mental illness which affects his position.
The Plaintiff travelled to Australia on a Norwegian passport which showed a name for him, referred to as MB. He destroyed the passport and then presented himself to immigration officers without any passport, visa or other travel document. He gave his name as YeY and said he was a citizen of Western Sahara. Western Sahara is a disputed territory claimed by Morocco and by the Polisario Front. It is identified by the United Nations as a non-self-governing territory. It is not recognised by Australia as a state or as a place which has citizens or an issuer of passports.
When he arrived in Australia the Plaintiff held a Norwegian temporary residence permit in the name MB which entitled him to reside in Norway. Norwegian authorities had satisfied themselves with reference to a photograph and fingerprints of what they supposed was his date of birth and his name, at least for use in Norway. He had lived in Norway for some years, perhaps six years. He had made his way to a number of other countries and had been sent back to Norway from each of them. Most recently he had been sent back from Germany early in January 2010, the month when he arrived in Australia.
It seems that he was not sent back to Norway straight away because of the possibility that he would apply for a protection visa, and he did so on February 23, 2010. In this application he claimed that he been a child soldier. He withdrew this application on March 27. On March 29 he asked in writing for removal to Norway. He asked for a Norwegian interpreter to assist him with his request for removal to Norway; a Norwegian interpreter could not be found and his next preference was for an Algerian interpreter. Norway is the only identified country in which he has had habitual residence and is the sole receiving country for the purpose of assessing claims for protection and other visas. The department asked Norway for a travel document.
While this was being considered the Plaintiff lodged a second protection visa application on June 11, 2010. He claimed that he feared that if he went back to Norway, Norway would send him to Morocco. Departmental officers did not pursue their request to Norway. In this second protection visa application he said he had lived in Tindouf in Algeria at some stage when he was a child. This application was rejected by the Refugee Review Tribunal (RRT) on September 20, 2010.
His Norwegian temporary residence permit expired on September 24, 2011. Attempts were made to obtain renewal of his Norwegian permit and a Norwegian travel document. These were rejected by Norway in November 2011.
There were more procedures in 2011 and 2012, and on November 5, 2013, he lodged a third protection visa application which was finally rejected by RRT on May 19, 2014. In the course of this, those representing him contended that his name was YY, that his date of birth was 11 October 1992, that he was stateless and that he was of Western Sahara descent. Other steps in 2014 were an appeal to the Federal Circuit Court which was dismissed, an application for a bridging visa which was determined to be invalid, and a further appeal to the full court of the Federal Court which was dismissed in 2015. In 2016 there were applications for the minister to exercise other powers. In 2017 the minister allowed him to lodge a fourth application for a protection visa. This was refused on January 2, 2018. In 2018 he raised the contention that his detention was no longer lawful.
At different times the Plaintiff has given contradictory information about his parents, sometimes suggesting that he had no information about them and at other times suggesting that he could identify both of them. Until 2013 he claimed that his parents were dead and that he had no relatives. Twice in 2013 he said he had a Norwegian wife and three times he said he had a Norwegian son. In 2017 he admitted that he did not have a son. In an interview in September 2014 he said his parents were living in Dakhla, Western Sahara, and he had three brothers living in Algeria. He said he and his older brother were born in Tindouf, Algeria, in a refugee camp; and he gave some memories of that. He said he was in Skype contact with his older brother, who lived in Algeria. He gave some details about his parents’ living in Dakhla and about his father’s moving around in Algeria and Mauritania. Later he said his parents lived somewhere in Algeria where they were most safe. He said his mother loves his wife, referring to a woman he married in an Islamic ceremony while in Australia. He also said he did not know his parents’ names or the names of his brothers. He said he would not countenance removal to his birth region of Algeria or Morocco or surrounding countries such as Mauritania. He said he wanted to visit his family, but then said he did not want to put them in danger by suddenly appearing, and that he had not seen them for about twenty years.
About a year after the 2014 interview a departmental officer got information from a conversation with a person said to be the Plaintiff’s father-in-law, presumably the father of the woman he married in an Islamic ceremony while in Australia. The father-in-law gave a similar account of the Plaintiff’s parents and brothers being alive and said he believed the Plaintiff was from Algeria and left Algeria at an age around thirteen or fourteen, and had told the father-in-law about the family’s activities including the brothers’ being engaged in smuggling. It was clear that the father-in-law did not have a high opinion of the Plaintiff. Credibility concerns in relation to the father-in-law create difficulties for accepting what he said.
In an interview in March 2016 the Plaintiff told a departmental officer that he had no knowledge of his parents as he was an orphan. In an interview in April 2016 he said he lived with his parents until he was six years old and then went to Spain. In May he told an officer that he was born at El Paso in Spain.
The Plaintiff has sworn in an affidavit in 2018 that (a) he does not know but believes he was born in the Canary Islands, Spain, and was taken to Western Sahara as a newborn baby, (b) he does not know the name, date of birth or ethnicity of his mother but he believes his mother resided in Western Sahara around the time of his birth, and (c) he has no information about his father.
The department arranged for the Plaintiff to be interviewed by officials at the Moroccan embassy on May 31, 2012, and by officials at the Algerian embassy on June 28. The Plaintiff telephoned the Moroccan embassy the day before the interview there. An official of the Moroccan embassy informed the department that the Plaintiff gave his name, a forename and a surname, and said he was Algerian. The name he gave was a name he has used in another context. He spoke fluent Algerian Arabic and also Algerian Berber dialect, and he did not speak Hassani, which is one of the main languages of Western Sahara. When at the Moroccan embassy he denied that he had made the telephone call, and after participating for some time he ended the interview by walking out of the embassy. Information given by the Moroccan embassy seems to show that officials there gave extensive and genuine consideration to identifying the languages which the Plaintiff speaks, and shows that they concluded that the Plaintiff is most likely an Algerian.
When the Plaintiff attended the Algerian embassy he declined to speak Arabic. The Algerian officials did not accept that he was an Algerian, nor did they say that he was not. They said they needed more information.
About six months after the interview at the Moroccan embassy the Plaintiff admitted to a departmental officer that he had made the telephone call before his interview there, but he disputed some of the details given by the Moroccan embassy. He denied giving a surname, but said he had given the forename that the Moroccan embassy reported he had given. When the departmental case officer asked him to confirm that he said on the telephone to the Moroccan embassy that he was an Algerian, he told the case officer that he would not tell them everything and that he needed to keep some secrets.
The department continued to engage with the Moroccan embassy, and provided the embassy with a language analysis performed by a private Swedish company which concluded with a confidence rating of four in five that the Plaintiff speaks Arabic consistent with the Moroccan dialect. The department made attempts to arrange a further meeting between the Plaintiff and officials at the Moroccan embassy, and also between the Plaintiff and officials from the Algerian embassy.
In 2018 the department communicated again with the embassies of Morocco and Algeria and raised the Plaintiff’s potential return to one of those countries. The department asked the Plaintiff to engage with the Moroccan and Algerian embassies in Canberra again, and to meet their officers for the purpose of establishing his identity and nationality. He declined. This led to discussion during argument before the High Court about the terms of the request and his response, and about his readiness now to attend embassies for interview. This discussion was inconclusive and no arrangement was made.
The department has considered the suggestion that the Plaintiff speaks Arabic with an Algerian accent, but its consideration of this has been inconclusive.
Departmental officers are not satisfied as to his identity. Departmental officers investigated his identity in 2010, again from 2011 to 2015, again in January 2017, and produced a Complex Identity Advice dated September 21, 2018, which identifies avenues of continuing investigation. Departmental officers have concluded that his name, birth date, place of birth, citizenship or nationality are currently unknown; it is likely that he is concealing details, as his memory is extremely strong in some respects and extremely weak when it comes to areas more pertinent to confirming his identity. Departmental officers are unable to point to any avenue of inquiry which is likely to succeed in establishing his identity to their satisfaction.
The Plaintiff contends that there is no known state which considers him to be a national by the operation of its law, and that for that reason he is a stateless person under international law. Departmental officers do not accept that he is stateless, but agree that there is currently no known third country willing to accept him as a national or as a person with a right of entry.
The Plaintiff has claimed possible links with Western Sahara, Morocco and Algeria but nothing has been shown in the department’s proceedings to demonstrate actual links to these countries. Morocco and Algeria have not accepted that he has any links to them. The department has made inquiries including fingerprint checks to Algeria, Belgium, Canada, Denmark, Finland, France, Germany, Iceland, Italy, Lebanon, Morocco, the Netherlands, New Zealand, Norway, Spain, Sweden, Tunisia, the United Kingdom and the United States and these inquiries have not established his identity. The department has approached various countries to ascertain whether they might be prepared to accept him but have not identified any country willing to accept him as a national, or as a person with a right of entry, and they are not able to satisfy themselves as to his identity. In 2018 the department also asked the United States and the United Kingdom to accept him for resettlement. This request was declined. The department also inquired about possible resettlement in Canada and this was declined.
The Plaintiff has no claims under the Refugee Convention, has no identity and has no identifiable family who could provide an avenue for entry to any third country. He has been unable to establish his identity to the satisfaction of Australian officers and he claims that it is likely that he will have the same difficulty anywhere else. There has been no adverse security assessment of the Plaintiff by any Australian security agency. He has not been the subject of any criminal proceedings. No court order has authorised his detention. He has made applications for various visas including protection visas and a safe-haven enterprise visa, but these applications have been unsuccessful and he has exhausted his appeal and review rights. He has no pending application for an Australian visa. The minister has non-compellable powers to grant him a visa under section 195A or section 417 and declined to do so in 2014, and again, most recently on November 12, 2018.
The Plaintiff’s main contention in his counsel’s written submissions was that there was no real possibility, prospect or likelihood of his being removed from Australia at any time during the course of his natural life. It was contended that his case is more extreme than the case in Al-Kateb and that his continuing detention is not authorised. This argument was put in several varying forms. In the circumstances his detention can no longer properly be regarded as being for the purpose of removal and the authority conferred by sections 189, 196 and 198 is spent.
In Al-Kateb it was found that there was no real likelihood or prospect of removal in the reasonably foreseeable future. The Plaintiff claimed that his facts are different in that there is no likelihood or prospect at all of his removal at any time for the whole of his life.
The Plaintiff’s counsel presented arguments that the High Court should reopen the rulings in Al-Kateb and over-rule that decision. This would be difficult to achieve, particularly as the three Justices in the minority in Al-Kateb did not give uniform reasons. The High Court did not rule on this.
There was a lengthy argument to the effect that amendments to the Migration Act which followed the High Court decision in Al-Kateb meant that that decision is no longer applicable to the legislation. This was developed at considerable length, and met by contrary arguments. The court did not rule on this. It is difficult to see any substance as the changes were minor and were not directed at reducing the Commonwealth’s powers. It was contended that sections 189 and 196 authorising the Plaintiff’s continued detention are constitutionally invalid in their operation on him and his circumstances. The court did not rule on this either. Much the same argument had failed in Al-Kateb.
The first issue raised by counsel for the Commonwealth in written submissions was that the facts before the court did not support the conclusion that in fact there was no real possibility, prospect or likelihood that the Plaintiff would be removed from Australia during the course of his natural life, or in the reasonably foreseeable future. For that reason the correctness of the decision in Al-Kateb did not arise. The submission pointed out that investigations into his identity were continuing. The fact that there had been extensive identity investigations over the last nine years is not determinative of the prospects of the continuing lines of inquiry. The protracted nature of the investigation was in part due to the Plaintiff’s having made many different and inconsistent claims about his identity, date and place of birth and his relatives’ whereabouts, and that there had been many occasions on which he had travelled on false passports, as he admitted. Many aspects of the inconsistent information given by the Plaintiff were not explicable by genuine uncertainty or ignorance, and it could not be assumed that it was beyond his power to provide further information concerning his identity.
The Commonwealth’s counsel contended that the court should not infer that the Plaintiff is stateless. Some administrative decisions were made at early stages on that basis, but the available information has changed, and so have the bases for more recent decisions.
It was contended that the facts were not relevantly different from the facts in Al-Kateb. That decision governed the present case. In any event the decision should not be reopened. Then it was submitted that if Al-Kateb were reopened the same conclusion should be reached on a correct reading of the Migration Act and of a number of its provisions which bore on section 189 and section 196. There was no room for implication of a requirement of reasonable foreseeability of actual removal. This in substance is what the majority decided in Al-Kateb.
The case came on to be argued at Canberra on February 13, 2019. By this time the Plaintiff was represented by Mr Ron Merkel QC, an advocate of an altogether different style from his previous counsel, Julian Burnside QC. Both are leaders of the Bar in migration law, so the Plaintiff had the benefit of a cumulation of their best ideas; his representation could hardly have been stronger. Mr Merkel opened with some elaborate and obscure developments of the facts he contended the court should infer from the facts in the special case. Several Justices intervened in ways which seem to indicate that they regarded the submission as excessively elaborate. Mr Merkel’s argument treated the difficulties of information and misinformation given by the Plaintiff as advantageous to him in that they created the difficulty of the department establishing the Plaintiff’s identity or any circumstances about him which could lead to his removal. Mr Merkel accepted that there is a problem with the Plaintiff’s credibility and said:
credibility alone and suspicion that something may not have been forthcoming is not a substitute for identification of any facts that could possibly change the current situation, or any facts that have a real prospect of changing the current situation … the facts necessary are something relating to where he may [have been] born or something identifying his parents in a way that some third country would recognise him to be a [child] of its nationals and therefore open a gateway toward resettlement … some facts of that kind … that would overcome the present problem.
Counsel said it was not a fair view that the Plaintiff was not co-operating, and the only thing he was not co-operating with was a recent request that he go to the Moroccan and Algerian embassies again. His lawyers had asked whether there was any basis that the Moroccans had put forward on which they might change their minds, and whether there was any information that was specifically wanted from him. Counsel acknowledged that the Plaintiff had refused to speak Arabic at the Algerian embassy. The Chief Justice pointed out that before that refusal he had claimed to be from Algeria. Four of the seven Justices intervened at this point in ways that showed that they thought that the lack of co-operation in going to each embassy and speaking Arabic when requested was very significant. Mr Merkel’s reception by the court deteriorated. His main point was that the utility of such a meeting had not been demonstrated by the Commonwealth, while it was in the Justices’ minds that when they came to make conclusions about the facts the Plaintiff’s opportunity to contribute to establishing facts was important. The Chief Justice referred to the consideration that when looking at the strength of evidence you look at the evidence which it was in the power of one person to give and in the power of the other to contradict.
Then there was discussion on whether the Plaintiff was prepared to go to interviews with the Moroccan and Algerian embassies and speak in Arabic. There were several adjournments so that his lawyers could get instructions from him about whether he would do so. He did not make a clear commitment to do so. The Commonwealth’s counsel, Mr S.P. Donaghue QC, the Solicitor-General, nominally debating whether there should be an adjournment, brought out a number of adverse facts bearing on whether it was in the Plaintiff’s power to give further information, particularly to give information that would allow him to be removed to Algeria. Mr Donaghue contended there is a strong foundation to think that information was available to him and that it was being withheld, and that it if were provided it well might have the consequence that he could be removed to Algeria. His co-operation would need to be forthcoming to establish what the position was, co-operation beyond simply going to the Algerian embassy. Mr Donaghue’s essential submission was that the court should not infer that it was outside the Plaintiff’s control to give more information that could lead to his removal should he choose to give more.
At later points Mr Merkel faced challenging questions from Justices and said:
The ultimate position that is reached with the Plaintiff is, his credibility has been damaged to the point that the Commonwealth will not accept anything he says about himself, so that the reality is, progress is only possible if he provides information that can be independently verified.
When one Justice asked whether, if the Plaintiff’s parents were identified, there would be a real prospect that they may have independently verifiable information, Mr Merkel said, “The starting point has to be that he was in a position to identify his parents in an independently verifiable way.”
At the end of the day, at 4.41 p.m., the Chief Justice speaking for the court said that in the court’s view there was no factual basis for consideration of the questions in the special case, and the court effectively dismissed the claim by declining to answer those questions. They gave their reasons on June 12, 2019: M47/2018 v Minister for Home Affairs  HCA 17. Four Justices joined in reasons which set out the issues and their findings on the facts at no great length, and three others stated their conclusions briefly indeed. I will quote some passages from the reasons in which four Justices joined.
The reasons made clear the Justices’ adverse view of the Plaintiff’s case on the facts, and spoke of the Plaintiff as having a distinct preference for a policy of non-cooperation with the department. They said:
- 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 co-operate with the authorities are due to any medical condition or mental illness on his part …
- 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. As the Algerian Embassy stated, information as to the plaintiff’s true name and place and date of birth, the true names and dates of birth of his parents, and details of his residences, if any, in Algeria, would be valuable in making progress to establish the plaintiff’s identity and nationality …
- In this regard, the plaintiff submitted that his own statements that he has no knowledge as to his parentage or family are manifestly unreliable, going so far as to argue that without independently verifiable material capable of substantiating his identity, there is no real possibility, prospect or likelihood of the defendants identifying any country to which he could be returned, and no real possibility, prospect or likelihood of any new information coming to light. This is not an attractive argument.
- The attempt on behalf of the plaintiff to turn his falsehoods to his advantage need 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 … Absent any explanation for the inconsistent and irreconcilable statements made by the plaintiff, some of those statements must be deliberate falsehoods.
The reasons addressed which party has the onus of proving or disproving facts related to the lawfulness of the Plaintiff’s detention. In the abstract, a person who alleges that he is unlawfully detained has the benefit of the general entitlement that everyone has to liberty, while the public authority or other person who is detaining him has the burden of showing facts which show that detaining the person is unlawful. As the reasons pointed out, the Plaintiff had not approached the court in that way but his statement of claim asserted facts which he claimed show the unlawfulness of his detention. The Plaintiff’s detention was apparently lawful, and the reasons said:
39 … the plaintiff carries at least an initial evidentiary burden of establishing that there is reason to suppose that his detention has ceased to be lawful by reason that it is no longer reasonably foreseeable that he will be removed from Australia.
- This consideration is compelling in this case: it is the plaintiff, not the defendants who could reasonably be expected to provide information on the fact relating to the identity of his parents and their place of birth and residence. Insofar as the special case is deficient by reason of the absence of this information, that deficit does not provide a basis for drawing any one of the inferences urged by the plaintiff. In that regard, the present case brings to mind the considerations of common sense underlying the maxim stated by Lord Mansfield in Blatch v Archer that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”.
- 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 prospect 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.
The High Court’s decision does not resolve difficulties created by the Plaintiff’s intrusion into Australia. He is left sitting in immigration detention at public expense, and this will continue until something moves him to start giving information which can be verified. Another outcome might be that he might decide that whoever it is that he does not want to encounter, in whatever country he belongs to, has probably forgotten him: perhaps he will hear on the grapevine that they have died or otherwise passed out of consideration. Sooner or later one of his many applications may get through; certainly he and those advising him seem to think that one will. He only needs to win once to be out and about in Australia, whereas the department must contend with him time after time and year after year. There are other possible resolutions; he may die of something, or as with some other meritless intruders a storm of criticism may start up in the media and test the will of the executive government to resist. Otherwise he will just stay in immigration detention with his intrusion unresolved, immobilised as his many travels recede into the past.
Australian immigration law and administration cannot really be very good if they give an intruder so much fair process and so many hearings that he is still sitting in immigration detention after more than nine years with no resolution. Manifestly an intruder who has destroyed his passport and does not give a true account of himself, uses false names and has a history of presenting himself in other countries in unsatisfactory circumstances and being excluded should not be allowed into Australia, and if he gets here he should be promptly expelled; or if he cannot be expelled he should be punished for intrusion as a crime; certainly he should not be admitted into the community. A country which does not deal effectively with an intruder like that is not respecting its own integrity. After all, his is a simple case, not complex like a refugee case which turns on a well-founded fear of persecution, what the applicant is frightened of and not what is likely to happen: a triumph of subjectivity over objectivity.
Obviously there are other countries, it seems quite a few, which have dealt with the Plaintiff much more firmly and much more quickly than Australia has. They promptly turned him out, whereas he has beguiled the department here with years of applications, reviews, lawsuits and appeals, all meritless. After one application has failed he has repeatedly initiated another. How can this be? How can an unlawful non-citizen have more than one opportunity? How can he apply for a protection visa, withdraw that, apply for another protection visa, lose that and still get more and more hearings? How many fair hearings can we afford to give an unlawful non-citizen? There must be a time when willingness to be fair comes to an end. The Migration Act has endless law about process, but does not effectively bring about disposition or finality. Other countries have been able to deal with the Plaintiff in better ways than we have.
Another consideration is that Norwegians may not be quite as friendly and helpful as they seem. He was not their citizen but they gave him a passport, perhaps thinking that they would see no more of him. Their passport enabled him to set out but it worked one way only: they would not receive him back.
The Plaintiff may be encouraged by the workings of the Human Rights Council in the opinion adopted by the Working Group on Arbitrary Detention at its eightieth session, November 2017, opinion number 71/2017 concerning a person whose name I omit, respectful of section 366E as I am. This opinion dealt with a person whose circumstances were remarkably like those of the Plaintiff. The opinion was to the effect that the person under consideration had been deprived of his liberty in contravention of six different articles of the Universal Declaration of Human Rights and four different articles of the International Covenant on Civil and Political Rights, that his deprivation of liberty was arbitrary within three different categories, that Australia should remedy his situation without delay and that the appropriate remedy would be to release him immediately and accord him an enforceable right to compensation and other reparation. So in the opinion of the Working Group, Australia has let that person down very badly. There is nothing new in this as Australia is one of the Human Rights Council’s best customers, and has repeatedly been castigated in similar ways. It would be unfortunate if the Human Rights Council had any influence on our immigration policy and practices.
John P. Bryson QC spent over twenty years practising at the Bar in Sydney, followed by over twenty years as a Judge and Judge of Appeal of the New South Wales Supreme Court