by Christine Henchman LLB (Syd)
An unlawful non-citizen in detention who seeks to establish that his detention is unlawful on the basis that it can be inferred that his removal from detention will never be “reasonably practicable”, will do himself no favours where, in his dealings with authorities, he resorts to deliberate obfuscation and falsehood as to both his identity and nationality. That he should not then be treated favourably is in accordance with the general disinclination of courts to allow a party to take advantage of his or her own wrongful conduct. M47/2018 v Minister for Home Affairs  HCA 17.
The plaintiff had arrived in Australia by aeroplane at Melbourne airport on 28 January 2010. 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, as a “citizen” of Western Sahara, thereafter giving many different accounts as to his place of birth and his parents. He was placed in immigration detention, and, in the following years, exhausted his rights under Australian law to seek a visa authorising his entry into Australia. The uncertainty surrounding his identity and nationality also affected attempts to resettle him in a country other than his home.
The legislation – Section 196 of the Migration Act 1958 (Cth) requires that an unlawful non-citizen detained under s 189 be kept in immigration detention until he or she is removed from Australia under s 198 or s 199, deported under s 200, or granted a visa. Section 198(6) provides that an officer must remove an unlawful non-citizen “as soon as reasonably practicable” if the non-citizen is a detainee and an application for a visa has been refused and finally determined (as here in the case of the plaintiff). The defendants, the Minister for Home Affairs and the Commonwealth, were relying on ss 189 and 196 as lawful authority to detain the plaintiff for the purpose of removal from Australia as soon as that became reasonably practicable.
The plaintiff, seeking the issue of a writ of habeas corpus or mandamus, requiring his release from custody, claimed that there was, in fact, no prospect that he would be removed from Australia to another country. He relied upon the minority view in Al-Kateb v Godwin  HCA 37 that ss 189 and 196 did not authorise the appellant’s detention because the indefinite detention at the will of the executive government was alien to Australia’s constitutional arrangements.
In Al-Kateb v Godwin, it had been found as a matter of fact that, although the “possibility of removal in the future remained”, there was “no real likelihood or prospect of removal of the appellant in the reasonably foreseeable future”. Nevertheless the High Court by majority held that the authority to detain conferred by ss 189 and 196 of the Act was not limited to cases where there was no prospect of the detainee being removed to another country within the reasonably foreseeable future. The period of detention was governed by the requirement to effect removal “as soon as reasonably practicable”. Thus detention under s 196 for the purpose of removal under s 198 would cease to be detention for that purpose only when the detention extended beyond the time when the removal of the non-citizen had become “reasonably practicable”.
The plaintiff’s special case asked: whether ss 189 and 196 of the Migration Act 1958 (Cth) authorised the present detention of the plaintiff and, if so, were those provisions beyond the legislative power of the Commonwealth insofar as they applied to the plaintiff. In support of the special case, the plaintiff asked the High Court to draw a number of inferences of fact including: (i) that there was no real prospect or likelihood that he would be removed in his lifetime or within the reasonably foreseeable future and (ii) that his removal was no longer practically attainable.
Senior counsel for the plaintiff conceded that if one or more of the inferences were not drawn in the plaintiff’s favour, the questions posed in the special case as to the operation and validity of ss 189 and 196 of the Act did not arise. Further, there could then be no factual basis to ground the application of the view of the minority in Al-Kateb.
The High Court unanimously declined to draw any of the inferences, the result then being that no question arose as to the lawfulness of the plaintiff’s detention and the plaintiff’s action failed.
The High Court found that in his dealings with the Department after arrival in Melbourne, the plaintiff had adopted a posture that involved, at best, non-cooperation and, at worst, deliberate obfuscation and falsehood with no good reason being advanced for the adoption of that posture. Because the plaintiff had 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 could not be known. It certainly could not be inferred that genuine assistance from the plaintiff would not be helpful.
That the plaintiff had chosen to adopt a course of non-cooperation involving the deployment of falsehoods also tended to suggest that he might be seeking to hide something which he feared might be discovered if he cooperated with the Department.
In addition, the Department was still engaged in pursuing the possibility of removing the plaintiff from Australia. Present doubt as to his identity had already deterred a removal to the United States of America. Further there was no reason to doubt that that pursuit by the Department was genuine and, given the posture of non-cooperation adopted by the plaintiff, the Court was in no position to conclude that the pursuit was futile. The defendants’ submission that the options for the plaintiff’s removal had not yet been exhausted was to be accepted.