Al-Aadily v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant has applied to the Court for a declaration that he is unlawfully detained and for an order for habeas corpus directing that the respondent ('the Minister') cause the applicant to be released from detention forthwith. The application was listed for urgent hearing. It was heard at the same time as two similar applications - Haney v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1555 ('Haney')and Al-Khazrajy v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1557. The application for principal relief was adjourned for further hearing. Counsel for the applicant made an oral application for an interlocutory order that the applicant be released from detention pending the final resolution of his application. These reasons deal with that interlocutory application. For the reasons given below that application is dismissed with costs. 2 The applicant arrived in Australia on 16 December 1999. He is an Iraqi citizen. He was and is an 'unlawful non-citizen' for the purposes of the Migration Act 1958 (Cth) ('the Act'). He was taken into detention. The applicant applied for a protection visa. That application was finally refused by the Refugee Review Tribunal on 5 October 2001. The applicant sought judicial review of that decision. That application was dismissed by this Court on 3 August 2001. An appeal to the Full Court of this Court was dismissed on 18 June 2002. An application for leave to appeal to the High Court was commenced on 16 July 2002. That application was subsequently discontinued on 7 May 2003. The applicant has been liable for removal from Australia since that date: s 198 of the Act. 3 The applicant lodged a request seeking the exercise by the Minister of the Minister's power to substitute a different decision pursuant to s 417 of the Act. This request was made on 24 April 2002 and was rejected on 17 December 2002 on the basis that the Minister considered that it was inappropriate to consider the request as the applicant had a matter before the High Court. 4 On 24 July 2002, the applicant met with an officer from the Department for Immigration and Multicultural and Indigenous Affairs ('DIMIA') regarding the process of removal from Australia. The applicant indicated that he would contact friends abroad and ask them to apply for a genuine Iraqi passport on his behalf. These attempts were not successful. At a subsequent meeting with the same DIMIA officer the applicant indicated that he was prepared to complete an application for an Australian Certificate of Identity ('COI'). The COI was issued on 4 October 2002 and provided to the applicant on 9 October 2002. The applicant requested that the COI be sent to a nominated friend who he said would apply for visas to third countries on the applicant's behalf. 5 On 11 November 2002, the applicant advised a DIMIA officer that he had an application to the High Court. He also said that he had received the COI and would apply for a visa to Syria should his High Court application fail. As mentioned above the applicant discontinued the High Court proceedings on 7 May 2003. 6 The applicant met with a DIMIA officer on 13 June 2003, to further discuss repatriation options. The applicant advised that he was now willing to return to Iraq and asked if he was eligible for any repatriation assistance. The applicant was advised that he was eligible for such assistance. The applicant completed a new COI form which was then sent to the Removal Policy and Operations Section ('RPOS') on 18 June 2003. 7 On 4 September 2003, the applicant again met with a DIMIA officer. The applicant stated that he would return to Iraq but was waiting for a new COI to be issued. A new COI was subsequently issued and on 22 September 2003, the applicant signed the International Organisation for Migration ('IOM') forms requesting return to Iraq. 8 On 23 October 2003, another meeting was arranged between the applicant and a DIMIA officer. The applicant expressed an urgency to depart and asked that the powers in Canberra assist in that regard. He was advised by the DIMIA officer that travel arrangements had been made and once everything had been confirmed he would be notified of his departure. 9 On 2 December 2003, the applicant and two other Iraqi detainees were informed by a DIMIA officer that arrangements were underway for their return to Iraq, but that the IOM were awaiting transit approval from the Jordanian authorities. The DIMIA officer explained that once transit approval was received their return arrangements would progress. 10 On 10 December 2003, DIMIA made inquires of the IOM regarding progress towards removal. DIMIA was advised that the IOM office in Canberra lodged a transit approval document with IOM in Amman on 22 October 2003. The next day the IOM office in Canberra made a tentative booking for the applicant to depart from Australia on 18 November 2003. This booking was cancelled on 17 November 2003 on the basis that the transit approval had not come through. A further tentative booking was made for departure from Australia on 6 December 2003. On 4 December 2003, this booking was also cancelled, as the transit approval was still outstanding. Another tentative date was then booked for early January 2004. 11 The facts in this case are relevantly similar to those in Haney. In particular, the applicant sought the assistance of the IOM on 22 September 2003, for his removal to Iraq via Jordan and that request has not yet been determined. For the reasons given in Haney, in my view the balance of convenience does not favour making an interlocutory order for the release of the applicant from detention. The application is rejected with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.