Carrascalao v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] HCATrans 169 (13 October 2022)

Last Updated: 14 October 2022

[2022] HCATrans 169

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S109 of 2022

B e t w e e n -

HELDER AGAPITO CARRASCALAO

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON THURSDAY, 13 OCTOBER 2022, AT 2.02 PM

Copyright in the High Court of Australia
HIS HONOUR: I order that the matter be remitted to the Federal Court of Australia pursuant to section 44 of the Judiciary Act 1903 (Cth), subject to the direction that a judge of the Federal Court determine the issue whether, as a matter of reasonable practicability, the removal of the plaintiff from Australia is unlikely in the foreseeable future, or there is no real likelihood or prospect of his removal from Australia in the reasonably foreseeable future. The costs of the hearing on 5 October 2022 should be reserved. I publish my reasons and direct that those reasons be incorporated into the transcript.

The plaintiff was born in 1968 in East Timor. He came to Australia when he was 7 years of age and he has not left Australia since that time. On 11 September 2017 the Minister cancelled the plaintiff’s transitional (permanent) visa under s 501(3) of the Migration Act 1958 (Cth) (“the Act”). The plaintiff has been in immigration detention since that time.

By this application in the original jurisdiction of the Court, the plaintiff seeks orders, including for habeas corpus, to bring an end to his allegedly unlawful detention under ss 189, 196 and 198 of the Act. In particular, the plaintiff seeks a declaration that ss 189(1), 196(1) and 198(2A) of the Migration Act 1958 (Cth) do not authorise the detention of a person in the circumstances where: the person, at present, cannot be removed from Australia; and, as a matter of reasonable practicability is unlikely to be removed in the foreseeable future, or alternatively there is no real likelihood or prospect of the person being removed in the reasonably foreseeable future. Further or alternatively to that declaration, the plaintiff seeks a declaration that ss 189(1), 196(1) and 198(2A) of the Migration Act 1958 (Cth) infringe Ch III of the Constitution to the extent that those sections purport to authorise the detention of a person in those circumstances. In that regard, he has flagged his intention to seek that this Court either overrule or distinguish this Court’s decision in Al‑Kateb v Godwin^[1], and to rely upon the approach of the Justices in the minority in that case.

Whether or not the Full Court of this Court might be disposed to entertain the plaintiff’s challenge to the correctness of Al‑Kateb is not an issue that a single Justice should seek to pre-empt; indeed, the defendants do not urge that I should do so. But if the matter is to proceed to the Full Court of this Court so that the plaintiff’s argument may be ventilated, it is necessary that the foreshadowed attempt to rely upon the minority judgments in Al‑Kateb should have an established factual basis^[2]. In particular, the facts as to whether the plaintiff, as a matter of reasonable practicability, is unlikely to be removed in the foreseeable future or, alternatively, that there is no real likelihood or prospect of the plaintiff's removal in the reasonably foreseeable future, must be established in the plaintiff’s favour^[3].

In that regard, the defendants argue that I should dismiss the application summarily pursuant to r 25.09.3(b) or (c) of the High Court Rules 2004 (Cth) on the ground that the application does not disclose a reasonable factual basis for the relief sought even if the minority view in Al‑Kateb were to prevail. The defendants contend that efforts to remove the plaintiff to either Portugal or Timor‑Leste are ongoing and have not been exhausted. The defendants also contend that the plaintiff, by failing to co‑operate with the authorities, has contributed to the lack of success thus far of the defendants’ attempts to remove the plaintiff from Australia so that it cannot be said that the plaintiff’s removal is unlikely if his co‑operation were forthcoming.

The plaintiff disputes the defendants’ contentions, pointing to the circumstances that he has been in immigration detention since 11 September 2017, and that in that time efforts to facilitate his removal to Timor‑Leste or Portugal have not been successful.

The defendants have stepped up the intensity of their efforts in recent times. A complex identity assessment completed by officers of the Department of Home Affairs on 18 December 2020 concluded that the plaintiff is eligible for Timor‑Leste citizenship by origin and that he is eligible for Portuguese citizenship, based on his birth in a Portuguese territory to a father who was a Portuguese citizen. Neither Timor‑Leste nor Portugal has, as yet, accepted that the Department’s assessment is correct or indicated that it is willing to accept the plaintiff’s return. It is said for the defendants that the plaintiff has failed to co‑operate with attempts to arrange his removal to either Timor‑Leste or Portugal. It is said further, that because the defendants are continuing to attempt to arrange his removal to either of these countries, it cannot now be said that the plaintiff’s removal from Australia is either not reasonably practical or unlikely in the reasonably foreseeable future.

My concern is not with the final resolution of the competing contentions of the parties as to these issues of fact. Rather, my concern is with whether there is a real question to be determined. When the defendants' recent attempts to arrange the plaintiff’s removal to either Timor‑Leste or Portugal are considered against the defendants’ inability to remove him over a period of more than five years, one is naturally sceptical as to whether such attempts as have been pursued recently are likely to bear fruit, even if the plaintiff were to co‑operate fully with those attempts. In this latter regard, there is also some force in the consideration that the plaintiff’s identity and other personal circumstances are sufficiently known to the defendants for them to be able to secure his removal if it is, in fact, reasonably practicable. In this respect, the present case is distinguishable from Plaintiff M47/2018 v Minister for Home Affairs^[4].

It seems likely that the prospects of success of the defendants’ ongoing efforts to remove the plaintiff from Australia and the significance of the plaintiff’s co‑operation in that regard cannot sensibly be assessed without further evidence, including expert evidence. Looking at the matter broadly, as I must, I am unable to conclude that no real question of fact arises on the application as to the practical likelihood of the plaintiff’s removal from Australia in the foreseeable future. In my view, the plaintiff’s application raises issues of fact that must be resolved.

The resolution of the parties’ differences as to the circumstances relating to the prospects of removing the plaintiff from Australia, including as to any want of co‑operation on the part of the plaintiff in relation to his removal to either Portugal or Timor‑Leste, will involve substantial evidence and argument. That may include expert evidence as well as evidence from persons involved in the attempts to remove the plaintiff that have been undertaken thus far. A hearing of that kind by a single Justice of this Court is not a convenient course having regard to the demands upon this Court in its role as the ultimate appellate court. Accordingly, the determination of these issues of fact should be made by a Judge of the Federal Court of Australia.

I order that the matter be remitted to the Federal Court of Australia pursuant to s 44 of the Judiciary Act 1903 (Cth), subject to the direction that a Judge of the Federal Court determine the issue whether, as a matter of reasonable practicability, the removal of the plaintiff from Australia is unlikely in the foreseeable future, or there is no real likelihood or prospect of his removal from Australia in the reasonably foreseeable future. The costs of the hearing on 5 October 2022 should be reserved.

The Court will now adjourn. Adjourn the Court, please.

AT 2.03 PM THE MATTER WAS CONCLUDED

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[1] [2004] HCA 37; (2004) 219 CLR 562.

[2] Lambert v Weichelt (1954) 28 ALJ 282 at 283; Mineralogy Pty Ltd v Western Australia [2021] HCA 30; (2021) 95 ALJR 832 at 846 [56]; [2021] HCA 30; 393 ALR 551 at 565.

[3] Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322 at [145]‑[147]; Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; (2019) 265 CLR 285.

[4] [2019] HCA 17; (2019) 265 CLR 285.