Kafkaesque passport scenario … New “effective and efficient procedures” … Stuck in immigration detention while seeking to be removed to Pakistan … Nauru or PNG would be better than Villawood … Shades of Al-Kateb … From Sohini Mehta  

Immigration secretary Mike Pezzullo is, according to Perram, as much “a victim of circumstance” as the detainee, who is anonymised as SZSZM. This must be an unusual experience for Pezzullo who is more used to creating victims than being one – but, in this instance he’s not as big a “victim” as his prisoner. 

In September 2014, SZSZM lost a Federal Court appeal challenging the refusal of his protection visa claim. 

SZSZM emigrated with his parents from Pakistan to Australia when he was 11 years old. In 2006, he and his family were granted permanent residence. Unlike them, he never applied for Australian citizenship. 

SZSZM had a “substantial criminal history” for drug and other offences in Australia. 

On October 17, 2012, SZSZM’s permanent residence visa was cancelled on character grounds.

Four months later the appellant applied for a protection visa, claiming to fear harm “as an outsider” if he were deported to Pakistan.  

Although a delegate of the minister accepted SZSZM had a genuine fear of returning to Pakistan, he found the appellant’s fear was speculative. 

There was insufficient evidence to establish an “objective factual basis” for SZSZM’s fear, not least because many of his claims homogenised Pakistani society.

In the protection visa application, SZSZM described Pakistan as a dangerous country and said that he did not share the dominant fundamentalist view of Islam. He also said he feared harm as he would be perceived not to be following Islam, although he identified his religion on the form as “Sunni Muslim”. 

The appellant also expressed a fear that he might be kidnapped for ransom based on a perception that he is a wealthy Westerner. He further claimed the Pakistani authorities wouldn’t offer him protection because the police are corrupt and he was afraid that the authorities might harm him owing to their fundamentalist religious views. 

The delegate could not find a reason to conclude that, as SZSZM claimed, his criminal record would be public knowledge in Pakistan and he would be denied the ability to subsist for reasons associated with his conviction.

Upon review, the Refugee Review Tribunal (RRT) affirmed the delegate’s decision. He further found no evidence that it was necessary for SZSZM to disclose his criminal record in Pakistan and the chance of matters coming to attention of others was remote. 

The tribunal questioned SZSZM about why he thought he would have to disclose his Australian criminal record. The substance of the appellant’s response was that he did not know much about the situation in Pakistan:

“I just thought that maybe if you’re deported or something like that, you know, they would be aware about it or I don’t know much. Over there like the only jobs I can think of would be like in English speaking jobs. I’m not sure how, like the jobs work over there, like, like to be, you know, like it’s a pretty corrupt country so maybe they just give good jobs to people that they think, you know, they, they are known to them and, and, like I thought maybe if I want to try and go for a job like that, you know, they would have my criminal record, it would be disclosed that he was from overseas. Just with my accent and all that, you know, like I thought maybe just because of the way I speak they will be able to – yeah, I’m not sure.” 

The appellant’s migration agent was none the wiser. In submissions towards the end of the tribunal hearing, she referred to “the lack of knowledge” of the agreements in place with Pakistan to ensure that the appellant was not subject to arbitrary detention or human rights abuses.

She submitted that the appellant “will be seen to be returned from Australia involuntarily so the authorities – he will be handed over to authorities in the airport,” but quickly conceded that she had no information to suggest that there was any such process.

The appellant applied to the Federal Circuit Court for judicial review of the tribunal’s decision, but the application was dismissed.

In an appeal to the Federal Court he claimed the RRT wrongly required him to hide his criminal history to avoid persecution, relying on Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (High Court, 2003). In that case, the High Court held that, if the RRT required two homosexuals to live discreetly in order to avoid persecution in their country of nationality, it would have fallen into jurisdictional error.

The court dismissed the appeal as it found no evidence or material to connect SZSZM’s criminal history to a Refugee Convention reason or to suggest that any unnecessary disclosure of criminal history would expose the appellant to harm from religious extremists. 

In 2016, a beleaguered SZSZM fronted the Federal Court again. By now he had spent four years in immigration detention and his request on November 20, 2015 to be removed from Australia and returned to Pakistan still hadn’t been met. 

SZSZM, the applicant, was claiming various types of relief that hinged on him first establishing that there had been a breach of section 198(1) of the Migration Act 1958 (Cth), which provides:

SZSZM could not be returned to Pakistan without a travel document and hadn’t identified any other country which he was entitled to enter. 

Even making that assumption, Perram could not establish any unreasonable behaviour on the part of the DIBP secretary.

The same day the applicant requested removal, the department forwarded documentation to the Consulate General of Pakistan and sought a currently valid passport to facilitate repatriation, planned for December 15, 2015. 

On November 26, 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 required further documentation to be forwarded to the consulate.

On December 9, 2015, the secretary 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 January 8, 2016.

On December 21, 2015, the Pakistan Consulate advised that the “deportation has been referred to our Ministry of Interior”.

On January 4, 2016, repatriation arrangements were cancelled, as the Pakistan Consulate had not responded to several emails from the department.  

Following a refusal to admit two other Pakistani nationals whom the Secretary attempted to remove on January 2, 2016 and January 23, 2016, the department decided on January 25, 2016 that confirmation of arrangements with the Pakistani government would be required before attempting any further removals.

Months of back and forth ensued between the Department of Immigration and Border Protection and its Pakistani contacts – including the Ministry of Interior in Pakistan; departmental representatives in Islamabad; the Pakistan High Commission; the NSW Pakistan Consulate; Islamabad Post; and the Pakistani federal investigation agency. 

On August 31, 2016, the first successful removal of a Pakistani national pursuant to Pakistan’s new requirements was achieved. On the same day, the Pakistan Consulate emailed the department advising that they were still awaiting a decision on the identity of the applicant.

Regarding SZSZM’s submission that the secretary could have enquired more persistently as to the status of his documentation, the Perram noted the department had been contacting the consulate about once a month to find out how the passport application is progressing. He further commented: 

“I have no reason to think that [the] bureaucracy [in Pakistan] would have been provoked into action any more than it was by fortnightly or even weekly telephone calls or emails from the department.” 

Other arguments relating to contested errors on the part of the secretary were rejected as there was no evidence the delays at the Pakistani end were connected to these shortfalls. 

SZSZM also submitted that the secretary had not sufficiently explored the availability of other countries to which the applicant might be sent. Perram J did not accept that the secretary was obliged to identify states that the applicant might be permitted to enter, given the applicant hadn’t identified any himself.

Such was the applicant’s desperation to be removed from immigration detention in Australia that he submitted the secretary could’ve vied for third-party resettlement in PNG or Nauru. The judge thought it would be unreasonable to require the secretary to attempt to resettle “a person experiencing delays in the issue of a passport” in a third country.

It was determined that the Pezzullo hadn’t breached s.198(1) and ordered SZSZM to pay the secretary’s costs. 

SZSZM’s leave to appeal was dismissed on April 26, despite some sympathetic judicial noises. SZSZM’s indeterminate detention is the product of a failure of bureaucratic skill and imagination. 

SZSZM v Minister for Immigration, Federal Circuit Court, Judge Barnes 

SZSZM v Minister for Immigration and Border Protection, Federal Court, Katzmann J 

SZSZM v Minister for Immigration and Border Protection, Federal Court, Perram J