B v The Secretary, Department of Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 On 29 April 2004, the applicants, who are all minors, issued an application pursuant to s 39B of the Judiciary Act 1903 (Cth) in which they sought the following orders: '1. The Applicants seek a Writ of prohibition, or alternatively an injunction be granted prohibiting and/or restraining the First Respondent whether by himself, his servants, his agents or howsoever otherwise, from taking any steps to detain the Applicants. 2. The Applicants seek a Writ of prohibition, or alternatively an injunction be granted prohibiting and/or restraining the Second Respondent whether by herself, her servants, her agents or howsoever otherwise, from taking any steps to detain the Applicants.' The application contained details of the applicants' claim to which I will refer later in these reasons. 2 The applicants are all children aged 15, 14, 12, 10 and 7 years. They are all unlawful non-citizens as defined in ss 4 and 14 of the Migration Act 1958 (Cth) (the Act). 3 The applicants' father entered Australia unlawfully by boat on about 22 October 1999. 4 He was detained in immigration detention. On 29 May 2000 he applied for a protection visa claiming that he was an Afghani national. His claim was accepted at that time and a temporary protection visa issued on 3 August 2000. He was released from immigration detention. 5 The applicants' mother, who is also in immigration detention, but not at the Baxter Detention Centre, entered Australia unlawfully by boat with the applicants on 1 January 2001. They were taken into immigration detention at the Woomera Detention Centre. On 21 February 2001 she applied for a protection visa for herself and for the five applicants, which was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) on 22 May 2001, principally on the ground that she was not an Afghani national but a national of Pakistan. She applied to the Refugee Review Tribunal (RRT) for a review of the delegate's decision, but the delegate's decision was affirmed by the RRT on 26 July 2001. 6 In September 2001 the applicants' mother applied to the then Minister requesting that he exercise his discretion under s 417 of the Act to substitute a more favourable decision for that of the RRT. On 21 March 2002 the Minister declined to exercise his discretion in the applicants' mother's favour. The applicants' mother was notified of the Minister's decision by letter dated 2 April 2002. 7 On 9 April 2002 the applicants' mother applied to the High Court of Australia seeking a review of the RRT's decision affirming the Minister's delegate's decision not to grant a protection visa and a review of the Minister's decision not to exercise his discretion under s 417 of the Act. On 11 June 2002 Gaudron J granted an order nisi calling upon the Minister to show cause why the constitutional writs should not issue in respect of both decisions. On 4 February 2003 the order nisi was discharged. 8 In the meantime, on 12 April 2001, 'as a consequence of receiving information that [the applicants' father] was not an Afghan farmer, as he had claimed, but rather a plumber and electrician from Quetta, Pakistan', the applicants' father was issued with a notice of intention to consider cancellation of his visa. 9 On 26 April 2002 the applicants' mother made another request for the Minister to substitute a more favourable decision for the decision of the RRT. The applicants' mother was informed that the Minister usually did not consider exercising the power under s 417 whilst litigation was pending. By then, as the chronology shows, the applicants' mother had sought a review by the High Court of the two decisions to which I have referred. 10 On 27 June 2002 the two eldest applicants, with a number of other persons, escaped from the immigration detention centre at Woomera. On 18 July 2002 the two eldest applicants sought asylum at the British Consulate in Melbourne but that was refused. On 19 July 2002 they were returned to immigration detention at Woomera. 11 Two days before the two eldest applicants returned to immigration detention, the applicants' mother made yet another application under s 417 but was again informed that such matters were generally not considered whilst litigation was pending. 12 On 31 July 2002, whilst the applicants' mother and the applicants were detained at the Baxter Detention Centre, the two male applicants applied to the Family Court for an order that the second respondent release them from immigration detention. That application was dismissed by Dawe J on 9 October 2002. 13 The applicants' father brought proceedings against the Department to compel the Department to release details to him of the Department's claim that his visa had been fraudulently obtained. On 30 August 2002 the Department informed the applicants' father of additional information obtained in relation to his identity and nationality. He was advised that there was an application by him for Pakistani identification documentation in 1975 and family registration documents of 1973 and 1982 listing his birthplace, citizenship and permanent residence as Pakistan. Other information was supplied. 14 On 4 December 2002 the applicants' father's visa was cancelled and he was taken into immigration detention at Villawood. His visa was cancelled because it was concluded he was not Afghani as claimed but a Pakistan national. 15 On the same day, the applicants' father applied to the RRT for a review of that decision and a bridging visa pending determination by the RRT of his application for a protection visa. The application for the bridging visa was refused on 9 December 2002. 16 In early January 2003 the applicants and their mother were transferred to the Baxter Detention Centre. The applicants' father was transferred from Villawood to the same place on 13 January 2003. 17 On 4 February 2003 the High Court discharged the order nisi: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441. The Court found that the RRT decision was not tainted by jurisdictional error. It held that the applicants' mother was not entitled to any other relief. 18 On 4 March 2003 the RRT affirmed the decision to cancel the applicants' father's temporary protection visa. 19 On 27 March 2003 the applicants' father applied to this Court for a review of the RRT's decision. On 22 May 2003 Selway J dismissed that application. The applicants' father has appealed to the Full Court of this Court. 20 The two male applicants appealed to the Full Court of the Family Court from the decision of Dawe J. Leave was given to the three female applicants to be joined as appellants. The applicants' father also appealed. 21 On 11 June 2003 the applicants' mother and the three youngest children were transferred to the Woomera Residential Housing Project. The two eldest applicant boys remained with their father. 22 On 19 June 2003 the Full Court of the Family Court allowed the applicants' appeals and remitted the applicants' applications to a judge of the Family Court for hearing. 23 The matter was heard by Strickland J who, on 5 August 2003, refused the five applicants' applications. A further appeal was brought to the Full Court of the Family Court and the appeal was allowed on 25 August 2003. The applicants were released from immigration detention that day. 24 The Family Court granted a certificate, pursuant to s 95(b) of the Family Law Act 1975 (Cth), giving the Minister a right of appeal to the High Court on the ground that 'the case involved an important question of law or of public interest'. 25 On 29 April 2004 the High Court unanimously allowed the appeal and set aside the orders of the Full Court of the Family Court releasing the applicants from detention and, in lieu thereof, ordered that the appeal to the Full Court of the Family Court be dismissed: Minister for Immigration and Multicultural and Indigenous Affairs v B & Anor [2004] HCA 20. 26 At the time of the High Court decision the applicants were not, in fact, in immigration detention. They were in the general community being cared for by Centacare Catholic Family Services. They were attending schools in the Adelaide metropolitan area. 27 The High Court decision given on 29 April 2004 meant that the applicants were liable to be detained pursuant to s 189 of the Act. 28 Section 189(1) provides: '189 Detention of unlawful non-citizens (1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.' 29 Section 189(1) obliges an officer, who knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, to detain the person. The applicants have been in the migration zone and have been unlawful non-citizens since they arrived in Australia by boat. All officers, therefore, who know that and know them, must detain the applicants. 30 An 'officer' is defined in s 5 of the Act as: '(a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or (b) a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or (c) a person who is a protective service officer for the purposes of the Australian Protective Service Act 1987, other than such a person specified by the Minister in writing for the purposes of this paragraph; or (d) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or (e) a member of the police force of an external Territory; or (f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or (g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.' 31 There are persons who are not under the control and direction of the Minister or the Secretary who are 'officers'. For example, a member of the police force of a State is an officer for the purpose of the Act and is thereby obliged to detain any persons who he/she knows or reasonably suspects to be unlawful non-citizens. However, the Minister cannot instruct the officer in the performance of that police officer's duty. 32 The Minister can authorise any person to be an officer for the purposes of the Act provided that the authorisation is in writing. 33 If the applicants are detained, s 196(1) of the Act provides that they must be kept in immigration detention until the applicants are: '(a) removed from Australia under section 198 or 199; or (b) deported under section 200; or (c) granted a visa.' 34 Subsections (2) and (3) of s 196 provide: '(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.' 35 Subsection (4) of s 196 has no application to this matter. 36 Therefore, if the applicants are detained pursuant to s 189(1), they are liable to remain in immigration detention until one of three matters in s 196(1) occurs. 37 Section 196(2) does not prevent a court releasing a citizen or a lawful non-citizen from immigration detention. Section 196(2) has no application to these applicants, or their parents, because they are all unlawful non-citizens. 38 Section 196(3) purports to preclude a court from releasing an unlawful non-citizen from detention other than for a purpose in s 196(1) unless the unlawful non-citizen has been granted a visa. 39 In this case, the applicants are unlawful non-citizens and do not have visas and s 196(3) would, on the face of it, preclude this Court from releasing them from any form of immigration detention, except if they were being removed from Australia under s 198 and, in particular, s 198(6). 40 Section 198 obliges officers to remove unlawful non-citizens from Australia whose applications for visas have been finally determined: s 198(6). 41 The applicants' mother's application for a visa has been finally determined. She has exhausted all her legal rights. She and the applicants are, therefore, liable to be removed from Australia pursuant to s 198(6) of the Act. 42 The applicants' father's appeal to the Full Court of this Court has not yet been heard. He would argue that his application for a visa has not been finally determined: s 5(9). I do not need to decide that matter. 43 Apart from the appeal from Selway J's decision, I have been told that on 22 December 2003 the applicants' father applied for special leave to appeal to the High Court in some other proceeding. It is not clear to me from what order special leave is sought. Mr Abbott QC, who appeared for the applicants, but not their father, said it related to a claim by the applicants' father for the release of documents which are relevant to his nationality. 44 'Immigration detention' is defined as: '(a) being in the company of, and restrained by: (i) an officer; or (ii) in relation to a particular detainee - another person directed by the Secretary to accompany and restrain the detainee; or (b) being held by, or on behalf of, an officer: (i) in a detention centre established under this Act; or (ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or (iii) in a police station or watch house; or (iv) in relation to a non-citizen who is prevented, under section 249, from leaving a vessel - on that vessel; or (v) in another place approved by the Minister in writing; but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).' 45 Immigration detention includes holding an unlawful non-citizen by or on behalf of an officer in any place approved by the Minister in writing. 46 The Minister can approve any premises as 'immigration detention'. 47 When the matter first came before me, immediately after the High Court handed down its decision, the applicants were being cared for by Dale West of Centacare Catholic Family Services in suburban premises in Adelaide. Their mother was then in immigration detention in Adelaide in a motel. Her detention is an example of the power of the Minister to approve a place as 'immigration detention'. The applicants' mother cares for her sixth child, who is approximately six months old, and who was born in Australia. Apparently, the applicants' mother claims that the child is an Australian citizen. I think there are proceedings on foot in relation to that child's status. 48 At that time, the applicants visited their mother regularly. Moreover, from time to time, the applicants' father was brought from the Baxter Detention Centre to visit his children. 49 The applicants' original application was for an interlocutory injunction restraining the respondents from taking any steps to detain the applicants whilst the High Court considered a challenge to the validity of ss 189 and 196 of the Act. I was then told by Mr Moore, the applicants' solicitor, that the High Court had reserved judgment in a matter Re Woolley & Anor; Ex parte Applicants M276/2003 in which the validity of ss 189 and 196 was challenged. I have also been told that the High Court has reserved judgment in another matter in which the construction of s 198 was argued: see Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji; Ex parte Attorney-General (Cth); Al Khafaji v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1369. 50 Mr Moore asked me to continue the then present de facto arrangements and restrain the two respondents from taking any steps to detain the applicants or to take the applicants into detention. 51 The matter first came before me on 29 April 2004, the day the High Court gave its decision. The matter was adjourned until the next day so that further evidence could be presented. During the overnight adjournment, the Minister took steps to place the applicants in immigration detention. The Minister approved the premises at which the children were living 'as a place approved in writing': s 5(1). She directed the carers of the applicants to accompany and restrain the applicants whenever they were outside the approved premises: s 5(1). She also approved the applicants' schools as approved places and directed the applicants' teachers to accompany and restrain the applicants whilst inside the school premises: s 5(1). 52 The action taken by the Minister's officer had the effect of placing the applicants in immigration detention whilst still preserving their existing lifestyle. However, the action taken frustrated the applicants' proceedings not to be returned to immigration detention, because the Minister had already taken them into immigration detention whilst their application was being considered. 53 The matter came on again on 4 May 2004 when the applicants sought a longer adjournment to consider their position. The matter was adjourned until 26 May 2004. On that day the applicants, in response to the Minister's actions, sought to amend their application. There was no opposition to leave being granted and I gave leave to amend. The applicants now seek the following orders: '1. The Applicants seek a Writ of prohibition, or alternatively that an injunction be granted prohibiting and/or restraining the First Respondent whether by himself, his servants, his agents, and/or officers within the meaning of The Migration Act under the control of the Respondents or howsoever otherwise, from detaining the Applicants or holding the Applicants in migration detention or taking any steps to detain the Applicants. 2. The Applicants seek a Writ of prohibition, or alternatively that an injunction be granted prohibiting and/or restraining the Second Respondent whether by herself, her servants, her agents, and/or officers within the meaning of the Migration Act under control of the Respondents or howsoever otherwise, from detaining the Applicants or holding the Applicants in migration detention or taking any steps to detain the Applicants. 3. That the First and Second Respondents and each of them do show cause as to why a writ in the nature of Habeas Corpus should not issue directed to the First and Second Respondents ordering the release from detention of the Applicants.' 54 They also seek the following interlocutory relief: 1. Interim injunction restraining the First Respondent whether by himself, his servants, his agents, and/or officers within the meaning of the Migration Act under the control of the Respondents or howsoever otherwise, from detaining the Applicants or holding the Applicants in migration detention or taking any steps to detain the Applicants. 2. Interim injunction restraining the Second Respondent whether by herself, her servants, her agents, and/or officers within the meaning of the Migration Act under the control of the Respondents or howsoever otherwise, from detaining the Applicants or holding the Applicants in migration detention or taking any steps to detain the Applicants. 3. Such further or other Order as the Court deems fit.' 55 Mr Abbott then presented his argument in support of the amended application. At the conclusion of his argument, he sought an adjournment of the matter to enable further evidence to be adduced on the question of the balance of convenience. The respondent did not consent or object to the adjournment. The matter was adjourned until 28 May 2004. 56 The claim is for an interim injunction but I think that to be a mistake. The applicants seek an interlocutory injunction pending the hearing of the substantive matter. The particulars given for both the substantive and interlocutory relief are the same. It is asserted that the applicants are being detained without lawful authority. It is claimed that the applicants' detention 'has become indefinite in that there is no real likelihood or prospect of the removal of the Applicants from Australia in the reasonable foreseeable future'. It is argued that, to the extent that ss 189 or 196 of the Act, or any other provision of the Act purports to authorise the detention of the applicants, those sections are beyond constitutional power and are invalid. Essentially, the applicants rely upon the same grounds for an order removing them from immigration detention as they did for restraining those who would have placed them in immigration detention. 57 The applicants have recognised the need to give notices under s 78B of the Judiciary Act, which were apparently given on 20 May 2004. The notices only call into question the validity of s 196 of the Act, not s 189. Mr Abbott thought there might have been an accidental omission of reference to s 189. 58 I am asked to make the interlocutory orders to which I have referred pending the hearing of the substantive matter. The substantive matter will include a challenge to the validity of at least s 196 and, perhaps, s 189. The substantive claim will include a claim that the applicants are entitled to be released from immigration detention, because their detention has become indefinite and there is no reasonable prospect that they will be released from detention in the foreseeable future by way of removal under s 198: Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241. I think, although it is not clear, that the applicants will also argue that the Constitution does not permit the detention of children. 59 The applicants relied upon their solicitor's affidavit, sworn on 24 May 2004, in which he says that the applicants do not seek to rely upon matters under or involving the interpretation of the Constitution for the purposes of seeking the interlocutory orders. I do not have to consider any argument which calls into question the validity of any section of the Act. 60 For the following reasons, I think it was appropriate for the applicants to proceed on that basis on this interlocutory application. 61 First, an enactment of the legislature is presumed valid until shown to be invalid: Australian Capital Television Pty Ltd v The Commonwealth (1992) 66 ALJR 214 per Mason CJ at 217. In Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 155-156, Mason ACJ said, in considering an application for an interlocutory injunction: 'In the absence of compelling grounds, it is the duty of the Court to respect, indeed to defer to, the enactment of the legislature until that enactment is adjudged ultra vires.' 62 Secondly, the validity of a repealed section of the Act, which was in like terms to s 189, was considered by the High Court in Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1. In that case, the High Court held s 54L of the Act to be a valid enactment. Thus, there is High Court authority which supports the validity of s 189. 63 In the same case, the High Court held s 54R, which was in unlike terms to s 196, to be invalid. However, the validity of s 196 has been considered by the Full Court of the Federal Court in NAMU of 2002 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 589. In that case, the Full Court discussed the differences between the repealed s 54R, which was held to be invalid by the High Court, and s 196, and held s 196 to be a valid exercise of power by the Parliament. In that case, and in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri at [33], the Full Court held that s 196(3) was valid. 64 I understand that in Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji there was no challenge to the validity of s 198. The decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri was, apparently, the subject matter of the appeal to the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji but no decision has yet been given. 65 In Minister for Immigration and Multicultural and Indigenous Affairs v B & Anor, which reversed the decision of the Full Court of the Family Court releasing these applicants from detention, Kirby J said that ss 189 and 196 of the Act are valid and must be obeyed. 66 Therefore, it could not be said that, on the law, as it presently stands, there is any serious question to be tried on the question of the validity of those sections of the Act. 67 The applicants, however, have not relied upon the invalidity of any sections of the Act for the purpose of this application for interlocutory injunctions. Rather, they have relied upon the decision of the Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri. 68 In that case, the respondent was a Palestinian from the Gaza Strip. He arrived unlawfully in Australia on or about 5 June 2001. As such, he was an unlawful non-citizen and was placed in detention in the Woomera Detention Centre. On 2 July 2001 he lodged an application for a protection visa claiming to be a refugee. A delegate of the Minister refused to grant Mr Al Masri a protection visa. On 5 December 2001 the RRT affirmed the delegate's decision. Mr Al Masri did not challenge the decision of the RRT. Instead, he signed a written request, directed to the Minister, seeking to be returned to the Gaza Strip. On 18 February 2002 he was advised that arrangements had been made for his departure but he was later informed that the Department was unable to return him to Palestine or the Gaza Strip because the Department could not obtain permission for his entry. There was evidence before the primary judge that Mr Al Masri made repeated enquiries between the date of signing his application to be returned to the Gaza Strip and 15 August 2002, when the primary judge delivered judgment. 69 On 21 May 2002 Mr Al Masri commenced proceedings in the Court seeking an order in the nature of habeas corpus for release from immigration detention. 70 The primary judge held that the power to detain under the Act was impliedly limited to such time whilst the Minister was taking all reasonable steps to secure the person's removal from Australia as soon as is reasonably practicable. He held that the removal of a person from Australia is reasonably practicable where there is a real likelihood or prospect of removal in the reasonably foreseeable future. 71 The Minister appealed to the Full Court. That Court held that the Minister's purpose in detaining under s 196 must be for one of the reasons contained in s 196(1). In this case, the purpose must be for removing the applicants from Australia under s 198. Secondly, the power to detain under s 196 must be limited to where there is a real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future. Essentially, the Full Court upheld the decision of the primary judge. 72 The applicants have argued that, in this case, their removal is not reasonably practicable because there is no real likelihood or prospect of removal in the reasonably foreseeable future. They argued that, in those circumstances, they should be released from detention. 73 In support of that submission, the applicants have pointed to matters deposed to by the applicants' solicitor. He has deposed: '13. It is likely that [the applicants' father's] litigation will continue into the indefinite future. I have been informed my [sic] Mr Paul Ignations [sic] Boylan, the solicitor for [the applicants' father] that [the applicants' father] has on-going litigation and in particular: 13.1 [The applicants' father] has applied for special leave to appeal in the High Court, by application of 22 December. [The applicants' father's] pseudonym in the High Court is "SHJB". The Reply document in the special leave application was filed on 13 April 2004, and the Second Respondent has sought leave to file a further written submission before the settling of the appeal book. It is estimated that the special leave application will be heard in mid to late 2005, given the current state of the High Court list. If [the applicants' father] is successful, in the High Court, there will be further proceedings in the Refugee Review Tribunal; 13.2 [The applicants' father] is also the appellant in litigation before the Full Court of the Federal Court in an appeal from Selway J. The father's pseudonym in this litigation is "STKB". It is anticipated that argument on the appeal will take place in approximately three (3) months' time. Further, it is likely that whatever the outcome in the Full Federal Court appeal, the loosing [sic] party will seek special leave to appeal in the High Court. It is estimated that such a leave hearing in the High Court would be in the latter part of 2005. If leave is obtained in the High Court, it is likely that there would be at least an extra year from the time of any grant of special leave before the Father's litigation in the High Court is finally resolved, and if successful the matter would probably be remitted to the RRT. 14. I am instructed that at all material times the Applicants' parents claim to have escaped from Afghanistan, and have at all material times sought asylum in Australia. [The applicants' mother] has declined and refuses voluntarily to leave Australia. She has not permitted her children (including the Applicants) to be removed from Australia, and repatriated to either Afghanistan (which the parents allege is their home), or Pakistan (which is where the government alleges is their home). 15. I am informed by Mr Paul Ignatious Boylan and believe that at all material times [the applicants' father] has been unwilling to consent to him or his children being removed to Pakistan and/or Afghanistan, which situation is likely [to] continue indefinitely into the future. 16. The Applicants are each below the age of majority, and I refer to paragraph 10 of my earlier affidavit. 17. In summary, the length of the Applicants' detention is: 17.1 Solely dependent upon government policy and the government's attitude to [the applicants' father's] case; 17.2 Is likely to be indefinite, at least insofar as one can ascertain at this stage. 18. It is the Applicant's [sic] case that on-going detention is unlawful: 18.1 As being indefinite executive detention unrelated to the processing of migration status, or the removal of the Applicants from Australia; and/or 18.2 By virtue of the principle in Minister for Immigration v. Al Masri.' 74 The applicants' argument is that their father will not co-operate in their removal whilst he has litigation pending in the Federal Court and in the High Court. Their mother will not co-operate in their removal, in any event. 75 The respondents relied on the affidavit of James Robert Williams, Assistant Secretary in the Unauthorised Arrivals and Detention Operations Branch of the Unauthorised Arrivals and Detention Division, sworn on 26 May 2004. The applicants did not seek to cross-examine Mr Williams on his affidavit. I can proceed on the basis that his evidence is not disputed. He deposed: '7. I have read the affidavit of Jeremy James Moore of 24 May 2004 filed in these proceedings. In paragraphs 11 and 12 of that affidavit, Mr Moore asserts that it is DIMIA policy not to remove the applicants and their next friend while the applicant's [sic] father, Mr [B] has ongoing litigation. This is not DIMIA policy. The removal of the applicants and their next friend will take place in accordance with the Act, namely as soon as it is reasonably practicable to do so. 8. DIMIA is currently considering the practicability of removing the applicant [sic] and their next friend from Australia in light of a number of different factors, including extant High Court litigation involving Master [B], the effect (if any) of the United Nations Human Rights Committee opinion annexed to Mr Moore's affidavit at JJM3, and the lack of cooperation shown by the next friend to date in obtaining Pakistani travel documentation. At the time of swearing this affidavit, I have not formed a concluded view as to whether or not it is currently practicable to remove the applicants and their next friend from Australia. 9. Were the applicants' next friend to request in writing for her and the applicants to be removed from Australia in accordance with sub-section 198(1) of the Act, take appropriate steps in relation to Master [B's] litigation to give effect to any such request, and cooperate with DIMIA's attempts to obtain a Pakistani travel document, it would not be necessary for DIMIA to consider the effect of the issues referred to above at paragraph 8 on the practicability of removing the applicants and their next friend. 10. My duties nevertheless require me to consider and make contingent arrangements for the removal of the applicants and their next friend in the event that I, or my superiors, form the view that it is presently practicable to remove the applicants and their next friend notwithstanding the issues identified above at para 8 or upon circumstances materially changing so that it is plainly practicable to remove the applicants and their next friend. In doing so, I have formed the view that the removal of the applicants and their next friend from Australia could be effected within a very short space of time, particularly if the applicants' next friend were to cooperate with DIMIA's attempts to obtain Pakistani travel documentation. … 13. The information before me therefore indicates that the applicants and their next friend are entitled to Pakistani travel documents which would enable them to depart Australia and enter Pakistan. I am of the view that were the applicants' next friend to obtain Pakistani travel documents for herself and the applicants they could be removed from Australia as soon as the Pakistani travel documents were obtained and suitable travel arrangements could be made. I am aware that there are regular connecting air services between Australia and Pakistan. 14. I am of the opinion that there is a real prospect of removing the applicants and their next friend from Australia in a very short period of time should the applicants' next friend cooperate and obtain Pakistani travel documentation. … 16. Removal without the cooperation of the applicants' next friend in obtaining Pakistani travel documentation for herself and the applicants is less convenient than removal with Pakistani travel documentation obtained on application by the applicants' next friend. There is also an element of uncertainty is [sic] effecting entry into Pakistan in this way as it is unusual. Other factors, such as Australia's bilateral relationship with Pakistan may also lead me to conclude that such an attempt should not be made, or should only be made at a particular time. However, as DIMIA has been able to effect entry of an unlawful non-citizen into Pakistan in this manner previously, I am of the view that there is nevertheless a real prospect of any such attempt being successful should it be attempted. 17. DIMIA would prefer to remove the applicants and their next friend from Australia using Pakistani travel documents obtained by the applicants' next friend.' 76 I think it uncontroversial that if the applicants' mother co-operated the applicants could be released from immigration detention. 77 The applicants say that, because of the litigation pending and their parents' attitude generally, their detention is likely to be indefinite. 78 There is no question about the ability of the Minister or an officer to remove the applicants and their parents to Pakistan. On 11 December 2003 the Deputy High Commissioner for Pakistan wrote: 'Ms Karen Dundas Removals Policy and Operations, Department of Immigration and Multicultural and Indigenous Affairs, Belconnen, Canberra ACT 2617 Subject: Visas on Certificate of Identity: [Mr. B] and family. Dear Ms. Dundas, Please refer to Ms. Julie Keenan letter dated 10 December, 2003 on the above subject. 2. The national status of [Mr. B] has already been verified. He is Pakistan national and does not require any visa to enter Pakistan. His following family members, being Pakistan nationals, also do not require visa to enter Pakistan.