Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 In this matter the Court ordered, inter alia, that the applicant be released from immigration detention forthwith: see Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1009. However, on the application of the respondent ("the Minister") the operation of the order was stayed until further order to enable counsel for the Minister to put submissions as to why the order for release should be stayed pending appeal. Counsel for the Minister has now applied under O 37 r 10 of the Federal Court of Australia Rules for a stay pending the hearing and determination of any appeal by the Minister. Counsel accepted that a stay would not usually be granted save in exceptional circumstances, such as where the appeal rights will be rendered nugatory. In that regard in Federal Commission of Taxation v Myer (1986) 64 ALR 325 at 327, Dawson J observed: "It is well established by authority that the discretion which it confers to order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal. …Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory. … Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where, for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed. …" 2 The special circumstances relied upon by the Minister are as follows. The release from detention of an unlawful non-citizen, namely a person in Australia who is a non-citizen without a visa, raises an important issue under the Migration Act 1958 (Cth) which should be determined by an appeal court. The release is contrary to the manner in which the Minister has administered the Act. The release may impede the ability of the Minister to remove the applicant from Australia. In particular, the Minister contends that the risk of abscondment may render nugatory a successful appeal in that the applicant may not be able to be removed if he is not in detention. In the alternative, the Minister contends that if a stay is not granted, the Court should require the applicant to submit to conditions that require daily reporting in person and to agree to his further detention if the Minister is able to remove him from Australia. 3 One aspect of the present matter is, in my view, of fundamental importance; the Court has found that the applicant is being unlawfully detained and therefore unlawfully deprived of his liberty. Having regard to that matter in particular, the circumstances relied upon by the Minister do not warrant the Court ordering that the applicant's unlawful detention continue until any appeal of the Minister is heard and determined. Such an order will tend to deny the applicant the fruits of his victory, that is his liberty. Further, there is some uncertainty as to when the appeal may be heard and determined. 4 It is also relevant that the applicant has actively sought to be removed and has fully cooperated with those seeking to effect his removal. There is no evidence before the Court that there is a real or likely risk of abscondment. The applicant has uncles in Adelaide and Sydney with whom he is able to reside and there is no evidence upon which I could find that there is a likelihood that the applicant would breach the orders that I have made requiring him to report his contact details and to facilitate his removal. Rather, in wishing to return to his family in the Gaza Strip and in cooperating to date with the Department to enable his return, the evidence is to the contrary. 5 In my view, the Minister's right to be protected against the successful outcome of any appeal being rendered nugatory is protected by the reporting conditions I have ordered (as varied by consent by the parties), the order that the applicant take reasonable steps to facilitate his removal, and the undertaking by the applicant to submit to daily reporting in person. 6 For the above reasons I have concluded that upon the applicant's undertaking being given as to personal reporting and upon the final orders being varied by consent in the manner agreed to on behalf of the Minister and the applicant, the Minister's application for a further stay is to be refused with costs. The existing order for a stay until further order should be discharged. 7 I have reserved liberty to apply to enable the parties to apply to the Court in respect of any matter that might arise as a result of the orders made by the Court in this matter, including varying the reporting conditions in the event that they give rise to difficulties the parties are unable to resolve. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.