Al Khafaji v Minister for Immigration & Multicultural & Indigenous Affairs

7 In the meantime, in December 2000, the applicant also signed a request to the respondent, in conjunction with nearly 20 other persons in immigration detention, for the respondent to exercise his power under s 417 of the Act to substitute for the decision of the Tribunal a decision granting him and the other signatories a protection visa under the Act. The signatories were all persons in immigration detention of Iraqi nationality and who had come to Australia from Syria. The respondent on 9 February 2001 informed the applicant that he had decided not to substitute such a decision for the decision of the Tribunal in the case of the applicant. 8 On 20 January 2001, the applicant was transferred to the Curtin IRPC. Upon receipt of the respondent's notification of 9 February 2001, the applicant repeated his request to the respondent that he be returned to Syria from Australia as soon as possible, and he suggested other countries to which he might be sent if arrangements could not be made to send him to Syria. He made a written request to that effect on 9 February 2001. He was apparently then interviewed by an officer of the respondent on 9 March 2001, who noted he "wants to return anywhere". He maintained those requests through discussion with officers of the respondent in the Curtin IRPC from time to time thereafter. 9 In about mid 2001 the applicant learned that several of the signatories to the request of December 2000 had been granted protection visas by the respondent in the exercise of his powers under s 417 of the Act. He then made a fresh written request to the respondent to exercise that power in his favour, sent on or about 13 July 2001, and to otherwise arrange for his departure from Australia to Syria or to some other country as soon as possible. He expressed his very strong desire to get out of immigration detention either by being sent to another country or by being granted a protection visa. By letter of 18 July 2001, an officer of the respondent informed the applicant that his further request under s 417 would not be referred to the respondent for decision as it contained no new information. 10 The applicant has meanwhile remained in immigration detention at the Curtin IRPC. He made a further formal written request to be returned on 16 April 2002. He was told in mid-April 2002 by an officer of the respondent that steps to send the applicant to another

country would be expedited, but so far as he is aware nothing further has happened in his case. The respondent's officer says the applicant was told "he would probably be most successful in obtaining a visa for a third country if he could recover his own Iraqi passport and use it for this purpose. The alternative suggestion was for him to have a visa entered in an Australian Certificate of Identity." The applicant was aged seven when he and his family fled Iraq, leaving illegally. He told the Tribunal he had left Syria illegally to come to Australia using a false Iraqi passport, and that he no longer had that false passport. It is not clear on what basis the respondent's officer in the circumstances suggested the applicant should "recover" his own Iraqi passport. 11 The Australian Certificate of Identity is the correct term for what is sometimes called a "one way passport". The Department of Immigration & Multicultural & Indigenous Affairs (DIMIA) is, as at September 2002, preparing on behalf of the applicant an application for an Australian Certificate of Identity to be submitted to the Department of Foreign Affairs & Trade, Passports Office, so the applicant can apply for a visa to Syria or another country. 12 The applicant describes his life as simply stopping, and that he is left in what he describes as "inhumane" circumstances in an IRPC. If he is not to be granted a protection visa by the respondent exercising his power under s 417 of the Act, he maintains his strongly expressed desire to be returned immediately to Syria. The applicant complained to the Commonwealth Ombudsman, the Ombudsman of Western Australia, and to the Human Rights and Equal Opportunity Commission on about 4 June 2002 about his ongoing detention. On 14 June 2002, through his migration agent, he again requested the respondent to exercise his power under s 417 of the Act to grant him a protection visa, so he could be released from immigration detention. The letter complained of the length of time he had been held in immigration detention. On 29 July 2002 the Commonwealth Ombudsman told the applicant that the respondent, through his officers, was "being very active" in securing the removal of the applicant from Australia and would be contacting the applicant within the next two weeks. No such contact was made. On 18 August 2002 the applicant again wrote to the Commonwealth Ombudsman about his circumstances. He was told by the Commonwealth Ombudsman by letter dated 30 August 2002 that DIMIA was being contacted for its response. To the date of the hearing, he had heard nothing further from the respondent's officers, or from the Commonwealth Ombudsman, about DIMIA's further response. 13 The director of the Unauthorised Arrivals Section of DIMIA (the director) has, since February 2001, been principally responsible for negotiation and arrangements for the return of persons in immigration detention who are Iraqi nationals who have been found to be at risk of persecution in Iraq but with effective protection in a third country. The applicant is said to fall into that group. He confirms the awareness of the respondent of the applicant's desire to be returned, at least no later than the written request of 9 February 2001. 14 The director also, in a confidential affidavit, explains the steps taken to arrange for the return from Australia to Syria of failed asylum seekers who were formerly residents of Syria between 2000 and the present time. It is not appropriate to set out the detailed nature of those steps, as they are confidential. It is not necessary to do so for the purposes of the present decision. The director says that he considers the return of the applicant is "still achievable". 15 The respondent's position is firstly that the applicant is an unlawful non-citizen in Australia, as defined in s 14 of the Act, and that he was therefore duly detained in immigration detention under s 189 of the Act. The applicant does not dispute that his detention was in the first place lawful. 16 Section 196 of the Act provides: "(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is: (a) removed from Australia under section 198 or 199; or (b) deported under section 200; or (c) granted a visa. (2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen. (3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa." Section 198(1) then requires the removal from Australia of the applicant "as soon as reasonably practicable" following his written request to be removed. It is in the following terms: "An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed." Section 5 defines "remove" as "remove from Australia".

17 The respondent accepts the applicant made a written request for his removal from Australia on 9 February 2001, so the respondent's obligation under s 198(1) was then activated. 18 The applicant contends the detention power under ss 196(1)(a) and 198 is impliedly limited so that he may be detained under those provisions only for as long as . the respondent is taking all reasonable steps to secure the removal of the applicant from Australia as soon as is reasonably practicable; and . the removal of the applicant from Australia is "reasonably practicable", in the sense that there must be a real likelihood or prospect of removal in the reasonably foreseeable future. The propositions so expressed are based upon the decision of Merkel J in Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1009 (Al Masri) at [38]. 19 The respondent contends that, under the relevant provision, the continued detention of the applicant is lawful so long as the purpose of the respondent remains to effect the removal of the applicant from Australia. He asserts, and I accept, that he continues to hold the applicant in immigration detention for that purpose. He disputes that there is any basis to import into ss 196(1)(a) and 198 some time limit on the power to detain or to limit the power by reference to the prospects of removal. He thus contends that the decision of Merkel J in Al Masri is wrong and should not be followed. 20 I note there is no challenge to the constitutional validity of s 196, whether its effect be as contended by the respondent or by the applicant. 21 I find that the removal of the applicant from Australia is not "reasonably practicable", because there is not at present any real prospect of the applicant being removed from Australia in the reasonably foreseeable future. I have had regard to the period of the applicant's detention since 5 January 2000, or perhaps more accurately since 9 February 2001 when he requested in writing that he be returned to Syria, including the periods during which he has had unresolved requests to the respondent under s 417 of the Act. I have had regard to his communications with the respondent and DIMIA officers. I have had regard to the affidavits filed on behalf of the respondent, to which I have referred above. In my view there is nothing to indicate that there is any real prospect of the applicant being returned to Syria in the reasonably foreseeable future, and nothing to indicate that he can successfully be removed to another country in any measurable timeframe. I accept the director's evidence that "with persistence" there is some prospect of the applicant being successfully removed from Australia to a third country, possibly including Syria, after "protracted" steps are taken, but the period of time over which those steps may be taken - assuming, which is by no means clear, that they are ultimately successful - is indefinite and is certainly not of short compass. There is no material to suggest the applicant's removal from Australia will probably or might necessarily be effected within a time span of (say) several months. That is a finding which senior counsel for the respondent contested only in a relatively faint way. 22 I do not need to make any finding whether the respondent is taking all reasonable steps to secure the removal of the applicant from Australia. That is the first of the two qualifications upon the detention power in s 196(1)(a) and 198 as expressed by Merkel J in Al Masri. The two qualifications are cumulative. The respondent's contention did not seek to distinguish between the two qualifications, or to suggest that one or other only of them ought to be implied. His contention was that no qualification upon the power of detention should be discerned, so long as the purpose of the detention was and continued to be the removal of the applicant from Australia. 23 The respondent's principal contention was that the decision in Al Masri was wrong and should not be followed. 24 It is plain that I should follow the decision of Merkel J in Al Masri unless I am of the view that it is plainly wrong: see e.g. Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 1375; K Mart Australia Ltd v Commissioner of Taxation [1995] FCA 760; Marr v Australian Telecommunications Corp (1991) 25 ALD 473; Upperedge v Baily (1994) 13 ACSR 541; Bank of Western Australia v Federal Commissioner of Taxation (1994) 125 ALR 605. In Repatriation Commission v Gorton (2001) 110 FCR 321 at [25], Heerey J said of the possible reconsideration of an earlier Full Court decision: "If the subsequent Full Court immediately sets sail into a detailed examination of the issues considered by the earlier Full Court, it may come to the conclusion that it disagrees with the earlier decision. It would therefore follow that the earlier decision, in the view of the later Full Court, is wrong. It is then but a short and almost irresistible step to conclude that the earlier decision should not be followed. How can it be right to follow a decision now established to be wrong? But such an approach can result in the frequently repeated rule of restraint being given little more than lip service." His Honour also referred to observations of the Full Court in Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 560-561 that the power to decline to follow an earlier decision of the Court should be exercised with great care. 25 In the light of my findings of fact, if I were to follow the decision in Al Masri, the applicant would be entitled to the orders sought on the application. The respondent contends that the decision is plainly wrong and that I should not follow it. 26 I have carefully considered the respondent's thorough and well expressed contentions presented by senior counsel. He claims that the circumstances in which a person is to be released from "immigration detention" are exhaustively defined by ss 191 and 196(1) and (2) of the Act. The statutory regime is said to show that immigration detention under the Act involves both the deprivation of liberty of the person and the assumption of control over the person. He points out that the obligation to detain contained in ss 189 and 196 of the Act is imposed in unqualified terms, so that that obligation does not allow for the possibility that a person in immigration detention could lawfully be released from detention apart from the circumstances strictly defined by ss 191 and 196(1) and (2) of the Act. 27 The respondent stresses the unqualified terms of ss 189 and 196, as indicating that their terms do not allow for the possibility that a person in immigration detention could lawfully be released from detention other than in accordance with the expressed terms of ss 191 or 196. His argument is that there was no real foundation to read into s 196 the implied limitations which Merkel J found in Al Masri, and that the words imposing the obligation upon the respondent to effect the removal of the applicant from Australia "as soon as reasonably practicable" cannot be read to mean that, if removal is not practicable despite the efforts of the respondent to effect the removal under s 198, then the detention becomes unlawful. The extent of the efforts to effect removal, it was argued, cannot result in the detention becoming unlawful, at least so long as some efforts are being made to do so and so long as the purpose of the detention is to effect the removal; desultory efforts to effect removal, with the ongoing purpose identified, could not result in the detention being unlawful or unauthorised. Senior counsel also argued that the word "reasonably" in relation to the word "practicable" indicates the obligation is to be measured against all the circumstances, including that removal often involves complex and sensitive discussions at executive level between governments and the circumstances in the country proposed for return. The focus is upon whether the removal is being effected, where the removal is reasonably practicable, rather than upon whether it is or may be achievable within some measurable time frame. 28 I observe, as Merkel J did in Al Masri at [16]-[22], that the provisions now under consideration are different from those governing deportation: see e.g. ss 253 which confers a discretion upon the respondent to detain pending deportation. The deportation cases to which I was referred, namely Vo v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 98 FCR 371 and Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450 are not therefore directly in point. 29 Merkel J at [23] after referring to those cases, said: "The discretionary scheme concerning deportation considered in Vo, which was regarded by the Full Court as structured to deal with the special circumstances in which deportation is to apply, has no counterpart in respect of the mandatory duty to remove unlawful non-citizens from Australia "as soon as reasonably practicable" under ss 196(1)(a) and 198. Nonetheless, the question remains whether ss 196(1)(a) and 198 are to be construed as authorising indefinite detention provided the Minister's purpose is to remove (as is contended by the Minister), or as authorising detention for a reasonable period, but in any event for only so long as there is a reasonable likelihood of removal (as is contended by the applicant). 30 His Honour then referred to, and drew some support for the conclusions he ultimately reached from, the decision in R v Governor of Durham Prison; Ex parte Hardial Singh [1984] 1 WLR 704 concerning the Immigration Act 1971 (UK), in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 concerning the Immigration Ordinance (Hong Kong), and to Re Chung Tu Quan & Ors [1995] 1 HKC 566 as well as the decision of the United States Supreme Court in Zadvydas v Davis (2001) 533 US 678. His Honour concluded at [35]-[38]: "Absent a clear contrary indication in the statute, the courts in Hardial Singh, Lam and Zadvydas were not prepared to construe general statutory provisions providing for Executive detention pending removal or deportation as authorising detention where there is no longer a reasonable likelihood or prospect of deportation or removal. In Hardial Singh and Lam the issue was approached purely as one of construction but on the basis that, in conferring a power to interfere with individual liberty, the legislature must be taken to have intended that such power could only be exercised reasonably and that, accordingly, it was implicitly so limited: see Lam at 111. The limitations embodied in the resulting Hardial Singh principles, which were approved in Lam at 111, were that: . the power can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal; . if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised; . the person seeking to exercise the power of detention must take all reasonable steps within his or her power to ensure the removal within a reasonable time. In Zadvydas the majority opinion accepted a similar implicit limitation on the power to detain, namely an implicit 'reasonable time' limitation, which required that where there is no significant likelihood of removal in the reasonably foreseeable future continued detention is no longer authorised by the statute. In my view the kind of considerations that led the Privy Council to approve the Hardial Singh principles in Lam, and the analogous considerations that led the majority to the view that there were implicit limitations on the detention power in Zadvydas, can be applied to detention pending removal under ss 196(1)(a) and 198 of the Act subject, however, to appropriate modification to give effect to the purposive and a temporal limitations on the power to detain in ss 196(1)(a) and 198. In those sections the legislature, in conferring the power to interfere with individual liberty by providing for detention pending removal as soon as reasonably practicable, must be taken to have intended that the power to detain be limited to the period during which the Minister is taking reasonable steps to secure the removal and be exercisable only for so long as removal is reasonably practicable." 31 Senior counsel for the respondent contended that those decisions can be distinguished, by reference to the different statutory schemes and to the different circumstances there under consideration. Clearly that is so. Merkel J in Al Masri did not address those decisions as if they were directly on point. 32 However, whilst there is much to be said for the position adopted by the respondent, I am not persuaded that the decision of Merkel J in Al Masri is plainly wrong. I have resisted the temptation of first reaching my own view as to the proper scope and operation of ss 196(1)(a) and 198. Were I to do so, as Heerey J explained in Gorton, it is a small and attractive step then to conclude that a contrary decision (assuming for the moment that I had come to a conclusion contrary to that in Al Masri) is plainly wrong. In my judgment, the approach of Merkel J in Al Masri is the result of his Honour's careful consideration of the relevant provisions. His analysis of the issues and reasons for decision in the cases of Hardial Singh, Lam and Zadydvas is not shown to be erroneous, and I am not persuaded that he misunderstood the textual or contextual differences between those cases and the legislation and circumstances he was addressing in Al Masri. Whilst those cases are distinguishable, I can readily understand how his Honour came to apply the principles expressed in those cases to the proper construction of ss 196(1)(a) and 198. Moreover, as his Honour indicated, he did not merely adopt the principles expressed in those decisions but construed ss 196(1)(a) and 198 in a way which had regard to those principles and which reflected the result of somewhat different implied limitations upon the detention power in ss 196(1)(a) and 198. The conclusion his Honour reached as to the two implied limitations upon the detention power in s 198 of the Act is therefore one which I propose to follow in this matter. 33 It follows, in my judgment, that the continued detention of the applicant under s 196 of the Act is not lawful. I propose to make orders in the following terms: 1 Pursuant to s 39B of the Judiciary Act 1903 (Cth) that the respondent cause the applicant to be removed from detention forthwith. 2. Within 24 hours of the applicant's release from detention the applicant give notice in writing to his solicitors Jeremy Moore & Associates, 10 Albyn Terrace, Strathalbyn 5255 and to Mr David Williams at the Australian Government Solicitor, Level 20, 25 Grenfell Street, Adelaide, South Australia of his address and contact details and thereafter notify forthwith his solicitors and the Australian Government Solicitor at the above addresses of any change of address and contact details. 3. In the event that the applicant receives notice in writing from the Australian Government Solicitor or an officer of the Department of Immigration and Multicultural and Indigenous Affairs as to the arrangements made for his removal from Australia in accordance with s 198 of the Migration Act 1958 (Cth) he shall take all reasonable steps in his power to comply with those arrangements in order to facilitate his removal, and in the event of specific arrangements being made for his removal from Australia at a specified time and that he submit to the custody of the respondent for that purpose. 4. In the event that the applicant receives any request in writing from the Australian Government Solicitor or an officer of the DIMIA that he promptly complete and submit to any department of the Australian Government any application or applications for travel documents as the respondent reasonably considers may facilitate his removal from Australia. 5. That the applicant report to the Department of Immigration & Multicultural & Indigenous Affairs at 55 Currie Street, Adelaide or at a Police Station to be agreed between the parties by their solicitors, on a daily basis between the hours of 9 am and 5 pm. 6. The applicant attend in person any hearing in the Federal Court of Australia or in the High Court of Australia of which he is given reasonable notice in writing by the Australian Government Solicitor provided that, if such attendance is required at a city in which the applicant is not then residing he may so attend by attending the Registry of the Court before which any such application is listed for hearing in the capital city in which he is then residing or nearest to the capital city in which he is then residing, and if he is not then residing in a capital city, provided he is provided by the respondent at the time of notification with reasonable transport and accommodation expenses to travel to such capital city and remain there during any such hearing. 7. The respondent pay the applicant's costs of and incidental to the proceedings. 34 I will however give the parties the opportunity to be heard as to the precise terms of the orders before formally making them. 35 I finally note that the applicant drew attention to two recent decisions of the Tribunal (not concerning himself) in which the Tribunal has concluded that Syria does not give a right of re-entry to Iraqi nationals who have left Syria and have breached the entry requirements of another country. That circumstance may have changed since the Tribunal's decision concerning the applicant. The Tribunal in the applicant's case concluded that the applicant could re-enter and remain in Syria. The applicant has also suggested that a changed relationship between Syria and Iraq now exposes Iraqi nationals in Syria to the risk of refoulement to Iraq. If there has been a change in either of those circumstances, the respondent might wish to reconsider the applicant's request under s 417 of the Act. But those matters are not for the Court to determine. I record them for the sake of completeness to acknowledge the applicant's position as presented. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 4 November 2002 Counsel for the Applicant: Mr M Manetta

Solicitor for the Applicant: Jeremy Moore & Associates

Counsel for the Respondent: Mr H Burmester QC with Ms S Maharaj

Solicitor for the Respondent: Australian Government Solicitor