Mr Wallace's evidence
67 Mr Wallace holds the position of Removals Officer in the Removals Policy and Operations Section of the Unauthorised Arrivals and Detention Operations Branch of DIMIA. He has held this position since August 2003.
68 Mr Wallace did not express an opinion as to the likelihood of the applicants' return to Afghanistan. He gave evidence of his communications with the Embassy and with the applicants about the grant of travel documents to the applicants. He gave evidence of his knowledge of the identification system which will be carried out by the IDCU. However he has not been personally involved in the steps taken to establish that unit.
Mr Stannard's evidence
69 Mr Stannard is the Assistant Director of the Removals Policy and Operations Section in the Unauthorised Arrivals and Detention Operations Branch of DIMIA. He manages the return of failed Afghan asylum seekers to Afghanistan. He has held this position for eight months. During that time he and his staff have handled the removal of 31 Afghanis to Afghanistan.
70 He gave evidence that in his opinion there is a real likelihood or prospect of removal of Mr Kazimi to Afghanistan within "the reasonably foreseeable future". His opinion was based upon his personal knowledge of the return to Afghanistan of persons who claimed to be Afghan nationals. This included 21 cases where one-way travel documents were issued. He was also aware that the Afghan Government has issued a total of about 500 passports or travel documents to failed asylum seekers.
71 It was put to Mr Stannard in cross-examination that he did not express a similar opinion in relation to the cases of Messrs Agha, Adil and Hussain. He said he held his opinion about Mr Kazimi because the Afghan Embassy had advised that it was still considering a one-way travel document.
72 Nevertheless, he said in re-examination that it was his understanding that the IDCU will look at the other three cases to determine what conclusion the Afghan Government should reach as to whether Messrs Agha, Adil and Hussain are Afghan nationals.
The Al Masri Principle
73 As the Full Court observed in Al Masri at [86] the right to personal liberty is among the most fundamental of common law rights and it is also among the most fundamental of universally recognised human rights; see also D Clark & G McCoy Habeas Corpus: Australia, New Zealand, The South Pacific, Federation Press 2000 at 16 - 17.
74 Their Honours were aware that the limitation on the detention power which is in issue in the present case depends upon an assessment of external circumstances but they considered that these difficulties could be addressed by the Court having appropriate regard, inter alia, to the expertise of those persons who are responsible for the conduct of Australia's international relations; see at [129] - [130].
75 I have referred above to the two limitations on the detention power which the Court expressed at [135] and [136] and it is unnecessary to state them in further detail.
76 Their Honours, on two occasions in the judgment pointed out that the second limitation on the detention power cannot be availed of by a detainee who does not cooperate with the authorities in the process of removal; see at [137] and [176]. See also WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 (French J) ("WAIS"). This exception does not apply in the present cases because it is conceded by the Minister that the applicants are now cooperating with the authorities.
77 The Full Court observed at [175] that the second limitation on the detention power is not likely to have frequent application. As their Honours stated, the conclusion that there is no real likelihood or prospect of removal in the reasonably foreseeable future is one that will not be lightly reached.
78 Their Honours noted at [176] that it is for an applicant to adduce evidence which puts in issue the legality of the detention and the evidentiary burden then shifts to the Minister. Their Honours said that this burden may be discharged on the balance of probabilities.
79 I accept that the degree of probability must be such that the Court is satisfied to a sufficient degree bearing in mind that what is in issue is the personal liberty of the applicants; see R v Home Secretary; ex parte Khawaja [1984] 1 AC 74 ("Khawaja") at 113-114.
Recent authorities on the application of the Al Masri principle
80 Most of the recent decisions are interlocutory. However Mansfield J's decision in SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 546, affirmed on appeal [2003] FCAFC 296, appears to be a final decision. In it, Mansfield J was satisfied upon the basis of evidence of a departmental officer that there was a realistic prospect of removal in the next few weeks; at [23] - [24]. See also SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1116; SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 295; SHMB v Goodwin [2003] FCA 1053; Qasim v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1569; Rahmatullah v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1573; Hussain v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1513 and Agha v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1512.
81 In Haney v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1555 ("Haney"), Selway J said at [14] that the question which arises is whether the Department's optimism that there is a real likelihood or prospect of removal from Australia in the reasonably foreseeable future is justifiable.
82 His Honour stated at [21] that in Haney the applicant had been liable for removal for nearly three years. He observed that the evidence indicated that there had not been a real likelihood of removal at all times during that period. Thus, the Al Masri condition had not been satisfied at all times during the period. But, as his Honour said, that was not the question before him. The question was, as in this case, whether his detention was presently unlawful.
"As soon as reasonably practicable"
83 The requests for removal signed by each of the applicants in 2002 triggered the obligation under s 198(1) of the Act to remove the applicants as soon as reasonably practicable.
84 As French J said in WAIS at [58] what is reasonable is to be determined, inter alia, by reference to the practical difficulties involved in the necessary arrangements which require the cooperation of other countries. His Honour observed that:-
"Provided arrangements are being sought generically or specifically by reference to the applicant with reasonable expedition it is difficult to see how delays beyond the control of the Minister and his officers can be taken into account in determining what period for removal falls outside the scope of the term "as soon as reasonably practicable" in s 198."
Decision in the present cases
85 Counsel for the Minister accepted, without necessarily admitting, that the applicants' evidence was probably sufficient to put in issue the legality of the detention so that the evidentiary burden shifted to the Minister. I am satisfied in each of these proceedings that the Minister has discharged the evidentiary burden that there is a real likelihood or prospect that the applicant will be removed from Australia to Afghanistan in the reasonably foreseeable future. In coming to that view I have applied the standard of proof referred to in Khawaja. The reasons I have come to this view are two-fold.
86 First, I accept the opinion of Ms Mathews that upon the basis of what she has been told about the establishment of the IDCU, the work to be carried out by this body will allow remaining doubts about the identity of the applicants to be resolved well before the expiration of the six month period for which funding has been made available. Thus, if the applicants are who they say they are, their identities will be able to be verified and travel documents will be issued.
87 Second, it seems to me that this inference is to be drawn, to the requisite standard, from the communications between DIMIA and the Afghan Embassy and DIMIA and the IOM.
88 In my opinion Ms Mathews clearly had specialised knowledge of the steps which have been taken to establish the IDCU and the likelihood that it will be able to carry out its function upon the basis of her close involvement in the setting up and funding of this body. Her opinion was not displaced by any of the matters which were put to her in cross-examination. I accept that in giving her evidence she was doing her best to assist the Court.
89 As I said above, in Al Masri at [130] the Full Court noted that where a Court has to determine the question of whether there is a real prospect it can have regard to the expertise of persons who are responsible for the conduct of Australia's international relations. Ms Mathews did not have the ultimate responsibility for decisions taken by the Australian Government to fund the IDCU. She acted on instructions from the Minister or under delegated authority. But she held discussions with senior Afghan officials and senior IOM officers about the establishment of the IDCU and it is plain that she had close involvement with the Afghan authorities and the IOM in putting in place the necessary steps. Thus, in my opinion, she had a sufficient degree of responsibility for Australia's relations with Afghanistan on this topic to fall within the type of expertise envisaged by the Full Court.
90 Mr Stannard is not as well qualified as Ms Mathews but I do give his opinion some weight and have taken it into account in reaching the view that there is the necessary likelihood or prospect of removal.
91 It seems to me that the view expressed by Selway J in Haney is correct and that the question which arises is whether the Minister has a proper basis for considering that there is a real likelihood or prospect of removal taking place in the reasonably foreseeable future. In my view, the Minister does have such a basis, firstly, because of Ms Mathews opinion and, secondly, because this conclusion must in any event flow from the information which has been provided to DIMIA by the Afghan Embassy and the IOM.
92 The Al Masri limitation has two conditions each of which involves an element of speculation. The first is that there must be a "real likelihood or prospect". This does not mean that removal will happen. Nor does it mean that removal must be more likely than not. In my opinion all that is required is that there be a likelihood which is not remote and which is not far fetched or fanciful.
93 The second condition is that there must be a likelihood of removal in the reasonably foreseeable future. This is not a fixed period. It must be determined according to the facts of each particular case. Here, Ms Mathews initially expressed a view in terms of the ultimate question, that is, "the reasonably foreseeable future". But in cross-examination she said that she expected the verification checks to be completed well within six months. Given the practical considerations involved in travel and communications in Afghanistan, a period of at least three to four months would be within the reasonably foreseeable future.
94 Moreover, Ms Mathews pointed to instances where passports or travel documents had been issued within a period of 6 weeks after identity had been verified. When this is added to the period which may be taken to conduct on the ground enquiries in Afghanistan, Ms Mathews' views as to the reasonableness of the period satisfy the Al Masri test.
95 In any event, it is an inescapable inference from the communications between DIMIA and the Embassy and the IOM that there is a real likelihood or prospect of the removal of the applicants within the requisite period provided they are who they claim to be. The Embassy and the IOM have informed DIMIA that the IDCU will be fully operational by the present time. DIMIA was told that by 13 January 2004 some of the necessary equipment had been purchased and 17 persons had been engaged as staff. A senior IDCU officer is recorded as having assured the IOM that the IDCU would be up and running by early February 2004.
96 Moreover, the Embassy has informed DIMIA that the applicants have been given top priority on the list of 22 persons who will be processed by the IDCU.
97 As I said at [8], I admitted the communications between DIMIA and the Embassy and DIMIA and the IOM under s 60 of the Evidence Act. Ordinarily, the effect of this would be that the representations made in the communications, other than second hand or more remote hearsay, would be evidence of the facts which the maker of the representation intended to assert.
98 I was not asked to make a direction under s 136 limiting the use to be made of the evidence. However, the case was conducted on the basis that the communications were not proof of the facts stated but only of the communications themselves. The communications were relevant to a fact in issue, namely, whether there was a reasonable prospect of removal. Thus, although I did not make a formal direction under s 136, I have proceeded upon the basis that the communications are not evidence of the facts stated. Nevertheless, the communications provide a sufficient basis for me to draw the inference which I have that there was a real prospect. As the Full Court said in Al Masri at [175], the contrary conclusion is one that will not be lightly reached.
99 It is true that the authorities in Kabul have previously closed the cases of Messrs Agha, Adil and Hussain but those applicants have now provided fresh information including fingerprints and photographs. The Afghan authorities have stated that they are willing to make on the ground enquiries based on the additional information. There is nothing to suggest that they will not.
100 The applicants did not object to or challenge the evidence that the sum of AUD 200,000 has been remitted to the IOM. There is nothing to suggest that the IDCU in cooperation with the IOM will not, or has not used the funds and the equipment and staff acquired with it to seek to verify the identify of each of the applicants. Nor is there anything to suggest other than that the steps to verify their identities will not occur expeditiously, subject to the practicalities of the situation. On the evidence before me, I would infer that the steps are already underway.
101 Counsel for the applicants submitted that the security concerns in Afghanistan, particularly in the regions in which the applicants say they lived, are so great that serious doubts exist as to whether the IDCU will be able to make enquiries in those areas.
102 Mr Gormly, counsel for the applicants, pointed to country information about the rule of the warlords in areas outside Kabul and to other evidence of lawlessness in Afghanistan. He also referred me to a UNHCR information sheet dated 15 January 2004 which stated that as a result of increased insecurity for UN staff, the UNHCR had temporarily suspended the facilitation of returns from Pakistan. The document also stated that UNHCR field monitoring in Uruzgan, Ghazni and Nangarhar (ie the provinces from which the applicants claim to come) had been suspended.
103 There was also evidence that a UNHCR worker had been killed in Ghazni toward the end of 2003.
104 However, it should be noted that the UNHCR document deals with the facilitation of returns from Pakistan. In any event it stated that so long as the security situation stabilised then facilitated returns will resume in early 2004.
105 Moreover, Ms Mathews gave evidence that there have been returns of asylum seekers to Ghazni province in December 2003 and January 2004. I would infer from this that there are reasonable prospects that security concerns will not stand in the way of the return of the applicants.
106 Nor in my opinion does the evidence support a finding that security concerns will seriously impede the ability of the IDCU to conduct on the ground enquiries. Ms Mathews suggested that it is westerners who have the most to fear from the remnants of the Taliban or from other lawless groups operating in Afghanistan. In any event, the evidence before me is that DIMIA has been informed that the IDCU will have satellite phones and satellite faxes. Ms Mathews' evidence, which I accept, is that the IDCU will be able to use this equipment if it is unable to send personnel to the areas in vehicles to conduct on the spot enquiries.
107 Mr Gormly also submitted that the IDCU would not be able to carry out its tasks because there are no proper records in Afghanistan of birth registrations. Nor was there, in his submission, any proper currently operating system of ID cards. He relied upon country information referred to in a decision of the RRT dated 25 November 1998.
108 However, it seems to me that the short answer to this submission is that the information provided to DIMIA about the manner of operation of the IDCU is that on the ground enquiries, coupled if necessary with satellite communications, are designed to overcome any deficiencies in the written records of identification.
109 Finally, Mr Gormly submitted that in the cases of Agha, Adil and Hussain the Afghan authorities had prejudged their applications for Afghan nationality. Accordingly, he said that there was no reasonable prospect of their return. However, in my opinion, that finding would be contrary to the evidence before me. The evidence is that the authorities in Afghanistan are prepared to re-open the cases with new information provided by those applicants. Indeed, the fact that DIMIA has been informed that the IDCU has been established with funds provided by the Australian Government negatives any suggestion of prejudgment. So too does the fact that the applicants have been placed at the top of the priority list.
110 In any event, the submission that the Afghan Government has prejudged the issue, is probably not justiciable; see Attorney General UK v Heinemann Publishers Australia Pty Limited (1988) 165 CLR 30 at 40; Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth of Australia (2003) 197 ALR 461 (per Black CJ and Hill J) at [46] ff.