Daniel v Minister for Immigration and Multicultural and Indigenous Affairs

The Decision in Al Masri 9 The starting point for the applicant in the present case is the judgment of Merkel J in Al Masri, which concerned a Palestinian detainee who had unsuccessfully applied for a protection visa and whose return to the Gaza Strip the Australian Government had been unable to arrange. That case proceeded on the basis that s 198(1) of the Act applied to the detainee. Merkel J held (at 614) that "when s 196(1)(a) is read together with s 198 it is clear that detention is only to be until removal as soon as reasonably practicable." His Honour noted that in Vo v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 371 a Full Court held (at 374) that the length of detention of a deportee under the Act cannot "of itself destroy the legal validity of the detention." Merkel J distinguished Vo saying (at 615): "[23] 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)." 10 Merkel J next considered the approach taken to what he said were "analogous statutory provisions" in three reported decisions of foreign courts. They were R v Governor of Durham Prison, Ex parte Hardial Singh [1984] 1 WLR 704, Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 ("Tan") and Zadvydas v Davis 533 US 678 (2001). His Honour concluded (at 618-619): "[38] 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 [sic] 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. Accordingly, in my view ss 196(1)(a) and 198 are to be construed as authorising detention only for so long as: · the minister is taking all reasonable steps to secure the removal from Australia of a removee as soon as reasonably practicable; · the removal of the removee from Australia is 'reasonably practicable', in the sense that there must be a real likelihood or prospect of removal in the reasonably foreseeable future. [39] If a court is satisfied that the minister is not taking 'all reasonable steps' or that removal is 'not reasonably practicable' the implicit limitations on the detention power will not have been complied with or met and continued detention of the removee will no longer be authorised by the Act. [40] For the above reasons I do not accept the minister's submission that the only implicit limitation on the power is purposive. As explained above, ss 196(1)(a) and 198 introduce implicit purposive and temporal limitations and, in accordance with the approach in Hardial Singh, Lam and Zadvydas, those provisions should be construed as being subject to the limitations set out above. I would add that, notwithstanding his counsel's concession that where the minister no longer had the requisite purpose of removal the power to detain is at an end, the minister's purposive limitation would almost certainly authorise indefinite detention. That is because s 198(1)(a) [sic] imposes a mandatory duty on the minister to deport [sic] as soon as reasonably practicable with the consequence that, absent bad faith, it is difficult to conceive of a situation where the requisite purpose would cease. [41] In the present case the applicant has adduced evidence that puts in issue the legality of his continued detention. Accordingly, the question is whether the minister has discharged the burden cast upon him to establish on the balance of probabilities that the 'all reasonable steps' and 'reasonably practicable' limitations set out above have been complied with or met. [42] The evidence establishes that the minister is detaining the applicant for the purpose of his removal and appears to have taken all reasonable steps within his power to secure that outcome but, notwithstanding those steps, has been unable to remove the applicant. The substantive issue raised by the evidence is whether there is no real likelihood or prospect of the applicant's removal in the reasonably foreseeable future." (The reference to Lam is to the case I have called Tan because that, not Lam, was the surname of the first appellant in that case.) 11 His Honour then considered the evidence in terms of the question he had framed and concluded that in that case the continued detention was unlawful. His Honour later added (at 623) an excursus on conventional international law. The "final" order made by his Honour released the detainee on conditions that required him subsequently to comply with "arrangements made for his removal from Australia in accordance with s 198 of the [Act]."

The Correctness of the Decision in Al Masri 12 In Al Khafaji v Minister for Immigration and Multicultural and Indigenous Affairs [2002]FCA 1369 the Minister contended that the decision in Al Masri was wrong and should not be followed. Mansfield J summarized the contentions of the Minister's counsel in that case as follows: "[26] … [S]enior counsel … 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 circumstance 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." 13 Mansfield J said (at [32]) that, "whilst there is much to be said for the position adopted by the [Minister]", he was not persuaded that the decision in Al Masri was plainly wrong. His Honour accordingly followed Merkel J's approach. 14 Before me counsel for the Minister repeated, in substance, the contentions summarized by Mansfield J, which I have reproduced above. Al Masri has since been considered by other judges. In NAKG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1600 ("NAKG") Jacobson J referred to the submissions in Al Khafaji and, whilst declining to express a final view of his own, said: "[49] Nevertheless, I do wish to record here that, in my view, there is considerable force in the submissions put to me by counsel for the respondents. In particular, I have real difficulty in seeing how the plain words of s 196(1)(a) and indeed the even plainer words of s 196(3) of the Act can lend themselves to the implied limitation imported by Merkel J. [50] I have come to this view even though s 196(1)(a) is to be construed in the light of s 198 of the Act. Although I have not reached a final view, I do not see how the obligation to remove 'as soon as reasonably practicable' in s 198 cuts down the obligation under s 196(1) to keep an unlawful non-citizen in immigration detention until one of the conditions in s 196(1) is satisfied. [51] Moreover, the considerations which led the Full Court in Vo to come to the view that the authority to detain is not dependent upon considerations of the period of detention seem to me to apply with even greater force to s 196(1). If time considerations are irrelevant to the construction of a discretionary power of detention, how can they apply to a scheme for mandatory detention expressed in the clear language of ss 196(1) and 196(3)?" 15 In WAIS French J expressed serious reservations as to the correctness of the judgment in Al Masri. His Honour said: "[56] … The language of s 196 … seems to me to be intractable. The detention there prescribed is ended only by one of the terminating events. The removal obligation for which s 198 provides does not seem to have been enacted for any purpose protective of the rights of detainees. Rather it facilitates the expeditious removal from Australia of unlawful non-citizens. The remedy for a failure in the discharge of that duty may be mandamus, possibly directed to the Minister. And it may be that, as an incident of such a mandatory order, the Court might direct conditions of detention which are calculated to minimise the harm suffered by the detainee as a consequence of the delay in effecting removal. The uncertainty of the criteria adopted in Al Masri illustrates their difficulty. Absent a specification of some precise period by the court the judgement that a lawful detention has expired and become unlawful, on the Al Masri criteria, is a matter of evaluation as to which minds might differ. The Parliament has specified precise criteria by reference to particular events, upon which detention under s 196 will terminate. It is difficult to see how the Court can in effect legislate another limiting condition. Had the Parliament sought so to limit the power it could be expected, in the context of this particular statutory scheme, to have done so. That is not to undercut the general principle that clear words are required to justify interference with common law rights and freedoms. Rather, it is based upon a consideration of the specificity with which Parliament has identified the conditions upon which a detention under s 196 expires." 16 In Applicant WAIW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1621, Finkelstein J applied Al Masri to grant interlocutory relief. His Honour said that there was no manifest error in Merkel J's reasons and that the result reached in Al Masri was "supportable by the analogical use of cases" to which Merkel J referred.

The Foreign Cases 17 The overseas authorities relied on by Merkel J require careful analysis. Hardial Singh involved an application for habeas corpus. The applicant was an Indian national who had entered the United Kingdom lawfully. He was serving a term of imprisonment for criminal offences when a deportation order was made against him. Following the date upon which the applicant would otherwise have been released, he was detained in prison pursuant to par 2(3) of Sch 3 to the Immigration Act 1971 (UK), which provided: "Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal … from the United Kingdom …" 18 Woolf J interpreted that provision as follows (at 706): "… Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained … pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time. …" 19 In connexion with the last of those propositions, Woolf J was referred to an unreported decision, the facts of which he distinguished (at 707) on two bases. First, the applicant in the other case "was an illegal entrant who should never have been in this country at all." And secondly, whereas in the other case the court was satisfied that everything that could reasonably be done by the Secretary of State had been done, in Singh's case he was not so satisfied. On the state of the evidence before the court, his Lordship concluded (at 709) that he "would take the view that the implicit limitations imposed on the power of detention contained in the Act had not been complied with." 20 The propositions stated by Woolf J were invoked by the appellants in Tan. They were boat people who had arrived in Hong Kong from Vietnam and been refused permission to remain there as refugees. Each of them had been detained pursuant to s 13D of the Immigration Ordinance (HK). Section 13D(1) provided that such a person "may … . be detained … pending his removal from Hong Kong". Section 13D(1A) further relevantly provided: "The detention of a person under this section shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances affecting that person's detention, including - (a) … (b) in the case of a person being detained pending his removal from Hong Kong - (i) the extent to which it is possible to make arrangements to effect his removal; and (ii) whether or not the person has declined arrangements made or proposed for his removal." 21 The Court of Appeal of Hong Kong held that the so-called Hardial Singh rules, which the primary judge (Keith J) applied, had no application to the statutory scheme under the Ordinance. The Privy Council disagreed. Its judgment was delivered by Lord Browne-Wilkinson, who said (at 111-112): " Section 13D(1) confers a power to detain a Vietnamese migrant 'pending his removal from Hong Kong.' Their Lordships have no doubt that in conferring such a power to interfere with individual liberty, the legislature intended that such power could only be exercised reasonably and that accordingly it was implicitly so limited. The principles enunciated by Woolf J in the Hardial Singh case [1984] 1 WLR 704 are statements of the limitations on a statutory power of detention pending removal. In the absence of contrary indications in the statute which confers the power to detain 'pending removal' their Lordships agree with the principles stated by Woolf J. First, the power can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal. Secondly, if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised. Thirdly, the person seeking to exercise the power of detention must take all reasonable steps within his power to ensure the removal within a reasonable time. Although these restrictions are to be implied where a statute confers simply a power to detain 'pending removal' without more, it is plainly possible for the legislature by express provision in the statute to exclude such implied restrictions. Subject to any constitutional challenge (which does not arise in this case) the legislature can vary or possibly exclude the Hardial Singh principles. But in their Lordships' view the courts should construe strictly any statutory provision purporting to allow the deprivation of individual liberty by administrative detention and should be slow to hold that statutory provisions authorise administrative detention for unreasonable periods or in unreasonable circumstances. Their Lordships are unable to agree with the Court of Appeal of Hong Kong that there is any conflict between the Hardial Singh principles and the provisions of section 13D. Section 13D(1A), which was inserted in 1991, expressly envisages that the exercise of the power of detention conferred by section 13D(1) will be unlawful if the period of detention is unreasonable. It expressly provides that 'The detention … shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to …' (Emphasis added.) What section 13D(1A) does is to provide expressly that, in deciding whether or not the period is reasonable, regard shall be had to all the circumstances including (in the case of a person detained pending his removal from Hong Kong) 'the extent to which it is possible to make arrangements to effect his removal' and 'whether or not the person has declined arrangements made or proposed for his removal.' Therefore the subsection is expressly based on the requirement that detention must be reasonable in all the circumstances (the Hardial Singh principles) but imposes specific requirements that in judging such reasonableness those two factors are to be taken into account. The two additional factors specifically mentioned in section 13D(1A) reflect the delays in arranging with the Vietnamese authorities to accept repatriation and the fact that detainees in refusing to be repatriated under the voluntary scheme are declining to take advantage of a scheme which could effect their repatriation, and therefore their release, much more speedily. The requirement that these factors should be taken into account was directly attributable to earlier decisions in the Hong Kong courts suggesting that these factors were not relevant in determining whether the period of detention was reasonable: … For these reasons, their Lordships consider that Keith J was entirely correct in applying the Hardial Singh principles as amplified by the provisions of section 13D(1A) to the facts of this case." 22 The Privy Council also held that the determination of the facts relevant to the question whether the appellants were being detained "pending removal" goes to the jurisdiction to detain, not to the exercise of the discretion to detain. Lord Browne-Wilkinson said (at 113-114): "… In their Lordships' view the facts are prima facie jurisdictional. If removal is not pending, within the meaning of section 13D, the director has no power at all. … In the absence of express words to the contrary, it is for the court to determine whether the power exists and for that purpose the court has to be satisfied as to the existence of the underlying facts. Their Lordships do not exclude the possibility that, by clear words, the legislature can confer power on the executive to determine its own jurisdiction. … Where human liberty is at stake, very clear words would be required to produce this result. As was emphasised by all their Lordships in the Khawaja case, in cases where the executive is given power to restrict human liberty, the courts should always 'regard with extreme jealously any claim by the executive to imprison a citizen without trial and allow it only if it is clearly justified by the statutory language relied on:' [1984] AC 74, 122, per Lord Bridge of Harwich. Such an approach is equally applicable to everyone within the jurisdiction of the court, whether or not he is citizen of the country: see per Lord Scarman, at pp 111-112." Because "the legislature introduced no provision limiting the court's power to determine jurisdictional issues of fact", his Lordship explained (at 114) that "the burden lay on the executive to prove to the court on the balance of probabilities the facts necessary to justify the conclusion that [the appellants] were being detained 'pending removal' ". 23 In Zadvydas the Supreme Court of the United States construed a provision in that country's Immigration and Nationality Act: 8 USC s 1231(a)(6) (1994 & Supp V 1999). The decision involved the cases of two aliens who had been convicted of deportation offences and had been ordered to be removed from the United States. Section 1231(a) made provision for the detention, release, and removal of aliens ordered to be removed as follows: under par (1) the Attorney General was to remove such an alien within a period of 90 days (defined as the "removal period"), under par (2) the Attorney General was to detain the alien during the removal period, and under par (3), if the alien was not removed within the removal period, the alien was, pending removal, subject to supervision under regulations prescribed by the Attorney General. However, par (6) applied to certain categories of such aliens. It provided: "An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3)." 24 The cases under review by the Supreme Court were those of Kestutis Zadvydas, an apparently stateless man born in Germany of Lithuanian parents, and Kim Ho Ma, a male Cambodian national. Both men were resident aliens, lawfully admitted to the United States, whose subsequent convictions rendered them removable under s 1227(a)(2). Each of them was kept in custody after the expiration of the removal period. Several countries had refused to accept Zadvydas, and a district court had found that there was no "realistic chance" that Cambodia would accept Ma because that country had no repatriation treaty with the United States. 25 The Supreme Court was required, according to Breyer J (at 682), to "decide whether [s 1231(a)(6)] authorizes the Attorney General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien's removal." The majority's conclusion was that the indefinite definition of aliens who had been "admitted to the United States but subsequently ordered removed" would raise serious constitutional concerns and that, therefore, s 1231(a)(6) had to be construed "to contain an implicit 'reasonable time' limitation, the application of which is subject to federal court review." 26 Writing for the Court, Breyer J explained how this construction was adopted in Part III of its opinion. At the outset he noted (at 689) the "cardinal principle" of constitutional avoidance in statutory interpretation, which had led the Court to "read significant limitations into other immigration statutes in order to avoid their constitutional invalidation." He said (at 690) that a statute permitting indefinite detention of an alien would raise a serious constitutional problem in light of the freedom from government detention which lies at the heart of the "liberty" protected by the Fifth Amendment's Due Process Clause. Breyer J observed (at 693-694) that the Court had previously held that the Due Process Clause protects an alien subject to a final order of deportation. This meant, he said (at 695), that "the issue we address is whether aliens that the Government finds itself unable to remove are to be condemned to an indefinite term of imprisonment within the United States." 27 Breyer J gave short shrift to the characterization of the right at issue, made by Scalia J in dissent (at 702-703), as a "right of release into this country". He pointed out (at 696) that the choice was not between imprisonment and the alien "living at large", but between imprisonment and supervision under release conditions that may not be violated. In support of this proposition, Breyer J referred to s 1231(a)(3) and the regulations made thereunder establishing conditions of release after the removal period, and he noted that penalties were imposed for failure to comply with release conditions. 28 Despite what he called the "obvious" constitutional problem, Breyer J acknowledged (at 696) that the Court was bound to give effect to the intent of Congress. However, he said (at 697): "We cannot find here … any clear indication of congressional intent to grant the Attorney General the power to hold indefinitely in confinement an alien ordered removed." Breyer J said that the word "may" in par (6) of s 1231(a) was ambiguous. He examined (at 698) the legislative history of provisions governing "deportation-related detention" in the United States, and said that "nothing in the history of these statutes … clearly demonstrates a congressional intent to authorize indefinite, perhaps permanent, detention." Consequently the Court (at 699) "interpret[ed] the statute to avoid a serious constitutional threat" and "conclud[ed] that, once removal is no longer reasonably foreseeable, continued detention is no longer authorized by [s 1231(a)(6)]." 29 In Part IV of the Court's opinion, Breyer J explained how the federal courts should apply the implicit "reasonable time" limitation it read into s 1231(a)(6). He said (at 699-700): "… Whether a set of particular circumstances amounts to detention within, or beyond, a period reasonably necessary to secure removal is determinative of whether the detention is, or is not, pursuant to statutory authority. …" "In answering that basic question, the habeas court must ask whether the detention in question exceeds a period reasonably necessary to secure removal. It should measure reasonableness primarily in terms of the statute's basic purpose, namely assuring the alien's presence at the moment of removal. Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized by statute. In that case, of course, the alien's release may and should be conditioned on any of the various forms of supervised release that are appropriate in the circumstances, and the alien may no doubt be returned to custody upon a violation of those conditions. … And if removal is reasonably foreseeable, the habeas court should consider the risk of the alien's committing further crimes as a factor potentially justifying confinement within that reasonable removal period. …" 30 In order to limit the occasions when federal courts would need to make difficult judgments on the lawfulness of an alien's continued detention, the Court said (at 701) that it was "practically necessary to recognize some presumptively reasonable period of detention." Accordingly, "for the sake of uniform administration in the federal courts", the Court recognized a period of six months' detention. Breyer J then said (at 701): "After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the 'reasonably foreseeable future' conversely would have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future." 31 The cases of Zadvydas and Ma were remitted for further proceedings consistent with the Court's opinion. Kennedy J wrote a scathing dissent, in which he observed (at 707): "The requirement the majority reads into the law simply bears no relation to the text; and in fact defeats the statutory purpose and design." Rehnquist CJ, Scalia and Thomas JJ joined in that part of his dissent. 32 I turn now to the use made of these cases by Merkel J. In NAKG of 2002 Jacobson J observed (at [52]) that the legislation construed by the foreign courts was in quite different terms from ss 189, 196 and 198 of the Act. The text I have reproduced in [17], [20] and [23] above emphatically confirms that view. Indeed, in my opinion, the foreign statutes are so different in their terms as not to provide useful analogues. The fundamental difference between mandatory language, such as that used in s 196(1) of the Act, and permissive language, such as that used in those statutes, is recognized as of critical importance throughout the common law world. 33 It is true that in Tan the Privy Council agreed with the principles stated by Woolf J in Hardial Singh. However, their Lordships pointed out, in the third paragraph of the excerpt reproduced at [21] above, that s 13D(1A) of the Immigration Ordinance under consideration there was "expressly based" on those principles. In that case there was nothing "implicit" about the requirement that the period of detention be reasonable. Moreover, the issue in Tan was whether the appellants were, in fact, being detained "pending removal". That was the question upon which the Privy Council held that that an onus lay on the Hong Kong Government to prove the "jurisdictional" facts required to establish its power to detain. The present case could not be more different. So long as a person is an unlawful non-citizen, Parliament has imposed a duty to detain that person. 34 In WAIS French J observed (at [53]) that the Constitution does not contain any equivalent of the Due Process Clause in the Fifth Amendment of the United States Constitution. The limitation read into the statute by the Supreme Court in Zadvydas was required because of what was perceived to be a problem under the United States Constitution. There is no such problem in Australia. In Al Masri Merkel J acknowledged (at 613) that the validity of s 196 of the Act had been upheld in NAMU of 2002 v Secretary, Department of Immigration and Multicultural and Indigenous Affair [2002] FCA 907. That decision has since been affirmed by a Full Court: NAMU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 401. In my view, it should also be noted that the interpretation adopted in Zadvydas was available in the context of the explicit choice given by Congress to the Attorney General of releasing a deportee under conditions of supervision prescribed by her. 35 Unlike Merkel J, I do not think that the "considerations" in these three cases can be usefully applied at all in construing s 196(1)(a) of the Act. Tan involved the vindication by Vietnamese boat people of the explicit right conferred on them by the Hong Kong legislature that their period of detention should be "reasonable". Hardial Singh and Zadvydas concerned deportees, none of whom was an "illegal entrant" or an "inadmissible" alien. In each case the statutory scheme was completely different to that in Div 7 of Pt 2 of the Act. I regret to say that, in my opinion, Merkel J's constructs rest on a flawed analysis of these cases.

Should Al Masri Be Followed? 36 I note that in NAES Beaumont J agreed (at [17]) with the criticism of the reasons in Al Masri expressed by Jacobson J and by French J. I also find such criticism compelling and entirely convincing. In my view, the decision in Al Masri is wrong for the reasons they have given and for the further reasons I have outlined. Nonetheless, counsel for the applicant submit that I must apply Al Masri unless persuaded that decision is "plainly wrong". There are always nice questions of judicial etiquette in expressing an opinion that differs from that of a colleague. No judge does it lightly. Yet I am bound to say, with respect, that I do not think the construction of s 196(1)(a) of the Act adopted by Merkel J is reasonably open on its face. In my view, the decision in Al Masri is plainly wrong. The fact that a Full Court has heard an appeal from that decision is not to the point. Neither party has asked me to delay my disposition of this case until that appeal is decided.

Conclusion 37 The applicant builds his case on the second of the limitations identified by Merkel J. His counsel seeks to add a further gloss to deal with the situation of a recalcitrant removee who will not actively cooperate in his removal. Iraq shares land borders with six countries. The Australian Government is engaged in ongoing sensitive negotiations with the governments of some of those countries to permit the transit of Iraqi nationals. I do not now need to deal with the evidence in this case, and I will refrain from doing so. I agree with Beaumont J's view expressed in NAES that proceedings such as the present case are fundamentally misconceived. If a detainee wishes to enforce any duty under s 198 of the Act, the remedy is mandamus. Here the applicant seeks his unconditional release. 38 The application will be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate: Dated: 24 January 2003 Counsel for the applicant: B W Walker SC with N C Poynder

Solicitor for the applicant: Simon Moran

Counsel for the first and third respondents: H C Burmester QC with M N Allars

Solicitor for the first and respondents: Australian Government Solicitor

Date of hearing: 17 December 2002

Date of judgment: 24 January 2003