In July 2022 Australia’s immigration minister, Andrew Giles, was warned of legal “risks” associated with immigration detention and the need to show “concrete and robust steps” to deport non-citizens stuck in limbo.
A taskforce had been set up within the home affairs department to explore third country options to resettle long-term detainees in immigration detention. Its existence was never publicised and references to it were redacted from documents released under freedom of information.
But in the high court on 17 April the Australian Border Force operation that succeeded the taskforce was revealed for the first time: Operation Zufolo.
The solicitor general, Stephen Donaghue, said the operation was a look at “all the long-term cases to evaluate whether there was any possibility of third countries” for resettlement.
But lawyers say there is no evidence the taskforce has succeeded in removing anyone to a third country, and government sources concede it served as a device to head off or boost prospects in problematic court cases.
One government insider says Operation Zufolo exists to “look like we are symbolically doing something” to consider resettlement.
A departmental spokesperson confirmed to Guardian Australia that in May 2022 it established “a third country options taskforce to enhance efforts to address removal barriers for long-term detention cases, particular for those individuals that could not be removed to their home country”.
In November 2022 it was succeeded in the ABF by Operation Zufolo, which is described as the operational and removal phase.
Removals ‘highly unlikely’
The ABF removed 2,274 unlawful non-citizens last financial year, all or almost exclusively to countries that cooperate with removal of their citizens, such as New Zealand.
But the department acknowledges there are “ongoing challenges” removing a “significant proportion of the detainee population” because they are owed protection, are stateless, or their home country won’t accept them due to their criminal history or their refusal to cooperate with deportation.
These are the long-term detainees Operation Zufolo seeks to resettle in third countries, but it is unclear that it has ever successfully done so.
In its July 2022 submission to the immigration minister, the department told Giles it was “highly unlikely” a person would be accepted without “at least significant ties” to the proposed third country.
Sanmati Verma, the managing lawyer of the Human Rights Law Centre, says the centre is “not directly aware of any instances in which the Australian government has successfully arranged third-country resettlement for a person in [onshore] detention”.
The US and New Zealand resettlement deals are limited to those who came to Australia by boat after July 2013 and then languished in offshore detention.
The onshore detention cohort is made up of the much larger group who flew to Australia legally on another visa and then claimed asylum, or who became unlawful non-citizens by overstaying their time-limited visa or because their visas were cancelled under character provisions.
The department and ABF did not respond to questions seeking anonymised examples or statistics of successful third country resettlement from onshore detention.
“The department and ABF actively explore all avenues to remove unlawful non-citizens from Australia as soon as reasonably practicable” including “genuine efforts to address barriers to removal in all cases, including exploring third country options”, a departmental spokesperson said.
‘Increased risks’ to indefinite detention
Since the high court’s 2004 Al Kateb decision, the Australian government had operated on the basis that indefinite immigration detention was lawful, even in circumstances where it was not possible to deport the non-citizen.
But in November 2023 the high court overturned that precedent in the NZYQ decision, which has so far resulted in more than 150 people being released from detention.
“Before NZYQ, warehousing people in immigration detention was standard practice,” Verma says.
“The government did not consider itself to be under any real obligation to bring an end to people’s detention through their resettlement in another country.”
Despite the Al Kateb precedent standing for two decades the legal risks were building. The department warned Giles it needed to respond to “increased risks” from court cases finding it needed to “pursue third country options”.
Coalition and Labor governments were both advised of the risk that Al Kateb – which was decided by a “bare majority” of four judges to three – could be overturned. The department believed good-faith efforts to resettle those detained would boost the prospect it would continue to be upheld.
Whether Operation Zufolo was thought likely to actually resettle detainees or simply to “look like we are symbolically doing something” on resettlement, as the government insider says, the object to avoid or bolster prospects in court cases was the same.
Verma at the Human Rights Law Centre, which intervened in the NZYQ case and others, says the government “engages in a flurry of activity directed at removal once court proceedings are commenced, but not before”, arguing this is done to cut off challenges.
A ‘leisurely approach’ to removal
One such litigant was Tony Sami, an Egyptian man whose visa was cancelled due to fraud offences and who then stayed in detention for a decade, desperate to remain in Australia to prevent separation from his two Australian children.
Because Sami was refusing to cooperate with Egyptian authorities to obtain a travel document, authorities considered his detention “three-walled”, meaning he could end it at any time by returning to Egypt.
But that changed when in December 2022 the federal court’s Justice Debra Mortimer said there was “no real likelihood” of Sami being removed, a finding that prepared him to go to the high court to challenge Al Kateb.
Mortimer said before the case departmental officers had taken a “leisurely approach” to removing Sami, followed by a “vastly increased pace” of activity in the weeks before the case’s hearing.
After those damning findings, the Australian government succeeded in involuntarily removing Sami to Egypt.
For others removal proved impossible or was not seriously tried. In the high court, the lawyer Lisa De Ferrari criticised efforts to remove her client ASF17, a bisexual man who refuses to return to Iran, where sex between men is illegal and can attract the death penalty.
“What the commonwealth means by, ‘we did explore third country options’, was limited to … going to him and asking him, ‘are you sure you do not have any relatives in any other country but Iran that we might be able to use as avenues to investigate other countries?’
“That was all that it ever was,” she said. “It never was … about exploring with any third other country – nothing.”
Donaghue said the officer responsible for ASF17’s detention had explained that he was instructed he didn’t need to ask about third countries because Operation Zufolo determined none was available.
“So, the evidence is actually that we [the commonwealth] did try to find somewhere else,” he told the high court. “Unsurprisingly, for a citizen of Iran who could be returned to Iran if he cooperated, we did not find any.”
Undeportable NZYQ wins in high court
The commonwealth eventually met its match in the form of NZYQ, a Rohingya man, who proved impossible to deport because he is stateless and he had been convicted of raping a 10-year-old.
NZYQ launched his high court case on 5 April 2023. From 26 May to 18 September, the government considered giving NZYQ a visa in light of “litigation risk”, a proposal to release him and remove the foundation for the high court challenge.
Yet on 31 May the commonwealth agreed facts of the case including: that the department “had not identified any viable options to remove the plaintiff from Australia”; and had “never successfully removed a person, who has been convicted of an offence involving sexual offending against a child” except to a country of which they were a citizen. NZYQ could not be removed from Australia.
All this was agreed before a single country had been asked to take NZYQ.
Between July and September officials sounded out Bangladesh and Saudi Arabia because NZYQ had family members in both.
On 29 August the home affairs minister, Clare O’Neil, asked the department to progress all avenues to remove NZYQ, to leave “no stone unturned”, according to a departmental email.
On 16 September, Giles’s office said he was comfortable with this approach. Ministerial involvement resulted in approaches to Australia’s Five Eyes allies.
The commonwealth amended the facts of the case to include its removal efforts, as the legal strategy shifted to arguing that – unlike Al Kateb – it was not impossible to deport NZYQ.
No country said yes. The best the commonwealth could say when the high court heard the case on 7 and 8 November was that the US had agreed to take a “hard look”.
Deportation was a key component of the legal strategy, to distinguish NZYQ from Al Kateb by showing removal was still possible.
In the hearing NZYQ’s counsel, Craig Lenehan, said the removal efforts were done “under the shadow of this litigation”.
A “charade of working towards” removal was not enough to justify indefinite detention, he said.
The high court ruled there was “no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future”.
All seven justices agreed that if deportation is not possible, then detention is punitive and breaches the constitution’s separation of powers.
The bare majority who gave a green light to indefinite detention in Al Kateb had been replaced by a unanimous red light from the Stephen Gageler court.
By one of its key performance indicators, propping up the legality of indefinite detention, Operation Zufolo had failed.
