Gageler CJ
Gordon J
Edelman J
Steward J
Gleeson J
Jagot J
Beech-Jones J
23.
The parties were in dispute about the significance of certain inquiries undertaken by officers of the Department after 30 May 2023. Those inquiries were in one respect ongoing at the time of the hearing of the special case. They were the subject of affidavit and documentary evidence tendered at the hearing.
The evidence showed that recent inquiries by officers of the Department had been triggered by an instruction which the Minister gave to the Department on 29 August 2023. The instruction then given was to inquire into the potential for the plaintiff to be removed to one of the "Five Eyes" countries: the United States, the United Kingdom, Canada or New Zealand. In compliance with the instruction, inquiries were promptly made through diplomatic channels of officials in each of those "Five Eyes" countries. The responses of officials in the United Kingdom, Canada and New Zealand quickly made clear that none of those countries would accept the plaintiff.
However, an inquiry made through the Australian embassy in Washington of an official within the United States Department of State led to a response on 30 September 2023 that the Department of State would "consider" the plaintiff's case and "have a hard look" but would require detail about the plaintiff's criminal offending and would need to confer with the Department of Homeland Security and the United States Citizenship and Immigration Services. The official advised that, if the United States were to progress acceptance of the plaintiff's case, it would likely need to receive the case through the United Nations High Commissioner for Refugees or the United States embassy in Canberra and would seek to interview the plaintiff through its embassy in Thailand or Malaysia. The requested details of the plaintiff's offending were provided on 6 October 2023. Despite frequent follow-up contact, the Department of State had provided no further substantive response by the time of the commencement of hearing of the special case on 7 November 2023 and still had provided no further substantive response by the time the hearing of the special case ended the following day.
By affidavit dated 26 October 2023, the First Assistant Secretary, International Division, within the Department of Home Affairs explained that she was aware of only two other cases in which an approach had been made to the United States for third country removal of a specific individual and that both of those other approaches had been quickly rejected. She opined that the response of 30 September 2023 that the Department of State would "consider" the plaintiff's case and "have a hard look" made the plaintiff's case unique. She opined that it was impossible for her to predict the prospects of the plaintiff being accepted for
