THE COURT'S POWER
22 Dr Durani says that he effectively requires a mandatory injunction to compel his release from detention and a further prohibitory injunction to restrain any subsequent proposed detention pending the determination of his substantive application. It is contended that no higher standard applies to the extent that a mandatory as opposed to a prohibitory injunction is sought: Racecourse Totalizators Pty Ltd v Totalisator Administration Board of Queensland (1995) 58 FCR 119. It is unnecessary to resolve this question at this stage.
23 The real question is the effect of the prohibition contained in subs 196(3) and subs 196(4) of the Act which have been cited above.
24 Dr Durani argues that any reliance by the Minister on a proposition that detention is 'mandatory' must be viewed in light of two critical qualifications. The first is the status of Dr Durani as an unlawful non-citizen presupposes that the primary decision was itself lawfully made. There are real questions, it is said, as to whether the Migration Decision is affected by one or more jurisdictional errors and hence at law no decision at all. Secondly, the statutory framework of the Act said to compel mandatory detention is itself qualified and ameliorated by dispensing provisions such as s 195A and s 197AB of the Act. Those provisions are in these terms:
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1) This section applies to a person who is in detention under section 189.
Minister may grant visa
(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5) The power under subsection (2) may only be exercised by the Minister personally.
…
197AB Minister may determine that person is to reside at a specified place rather than being held in detention centre etc.
(1) If the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this Subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).
(2) A residence determination must:
(a) specify the person or persons covered by the determination by name, not by description of a class of persons; and
(b) specify the conditions to be complied with by the person or persons covered by the determination.
(3) A residence determination must be made by notice in writing to the person or persons covered by the determination.
25 Dr Durani relies heavily on the Full Court's decision in Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249. In VFAD the respondent was an Afghan citizen who arrived in Australia without a visa and was, therefore, an 'unlawful non-citizen'. He applied for a protection visa. His application was considered by a delegate and some months later the protection visa was refused. The respondent lodged an application for review of the decision with the Refugee Review Tribunal which affirmed the decision. The respondent then instituted proceedings in this Court seeking a declaration that he had been granted a protection visa. By way of interlocutory relief, he sought an order that he be released from immigration detention until the hearing and determination of his application. That order was granted by the primary judge but appealed by the Minister.
26 On appeal the central issue in that case was whether the power conferred by s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA) to make interlocutory orders could be exercised to order the release, on a temporary basis, of persons in immigration detention or whether that general power was confined since the introduction of s 196(3) of the Act.
27 Dr Durani relies upon the passages in VFAD where the Full Court (Black CJ, Sundberg and Weinberg JJ) held (at [104]-[120]) that absent clear statutory statement, s 23 FCA still empowers the Court to protect fundamental freedoms and entitlements such as liberty, in an appropriate case.
28 In VFAD (at [144]-[157]) the Court also discussed two other cases where similar conclusions were reached for slightly different reasons, VHAF v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 122 FCR 270 and VJAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1253 respectively.
29 In addition to VFAD, to a lesser extent, Dr Durani also relies upon High Court decisions which are not directly in point but which emphasise the importance of unmistakable and unambiguous language by statute to abrogate or curtail basic rights: see, for example, Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 (at [30]-[32]) and Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 (at [29]-[33]).
30 Following VFAD, the Migration Amendment (Duration of Detention) Bill 2003 introduced subs (4) and subs (4A) which were designed, as the second reading speech explained, 'to provide an immediate response to the worrying trend for courts to release persons of character concern before the final resolution of the court case' (emphasis added).
31 Although the Minister confirmed that there is no present intention to remove Mr Durani pending the determination of the review of his cancellation decision, the Minister relies upon the decision of Al-Kateb v Godwin (2004) 219 CLR 562 which makes it quite clear that the Court has no power to release Dr Durani. Al-Kateb involved a stateless person who arrived in Australia without a visa and who was taken into immigration detention. His application for a protection visa was refused. He wrote to the Minister asking to be removed from Australia. Removal did not take place because the attempts to obtain the necessary international cooperation were unsuccessful. The Federal Court concluded that there was no real likelihood or prospect of removal in the reasonably foreseeable future but that the Act nevertheless required that he remain in detention. The appeal was transferred from the Full Federal Court to the High Court of Australia following an application by the Attorney-General for the Commonwealth under s 40 of the Judiciary Act 1903 (Cth). It was argued that the Act did not authorise his detention and that if the Act purported to do so, indefinite detention was beyond the legislative power of the Commonwealth. The majority of the High Court approached the interpretation question by reference to the plain language of the Act. Section 196 of the Act headed 'Duration of detention' provides that an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is removed, deported or granted a visa.
32 In that case, Callinan J held (at [300]) that the decision and reasoning in Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1037 should be rejected as well as the reasoning in other cases in which Al Masri has been adopted or affirmed by the Federal Court, including (with specific reference by footnote) VFAD.
33 The Minister relies on the following paragraphs from McHugh J's reasons in Al-Kateb, where his Honour said (at [33]-[35]):
33 For the reasons given by Hayne J, ss 189, 196 and 198 of the Act require Mr Al-Kateb to be kept in immigration detention until he is removed from Australia. The words of ss 196 and 198 are unambiguous. They require the indefinite detention of Mr Al-Kateb, notwithstanding that it is unlikely that any country in the reasonably foreseeable future will give him entry to that country. The words of the three sections are too clear to read them as being subject to a purposive limitation or an intention not to affect fundamental rights.
34 Detention under s 196 for the purpose of removal under s 198 will cease to be detention for that purpose only when the detention extends beyond the time when the removal of the non-citizen has become "reasonably practicable". As long as removal of an unlawful non-citizen is not reasonably practicable, ss 196 and 198 require that person's detention to continue until it is reasonably practicable or that person is given a visa. Minimising the time that an unlawful non-citizen must spend in detention was undoubtedly the reason for providing a time limit for removal or deportation. But that does not mean that the detention of an unlawful non-citizen is limited to a maximum period expiring when it is impracticable to remove or deport the person.
35 The unambiguous language of s 196 - particularly sub-s (3) - indicates that Parliament intends detention to continue until one of the conditions expressly identified therein - removal, deportation or granting of a visa - is satisfied.
34 Similarly, see Hayne J (at [221]-[233]) with whom Heyden J agreed (at [303]).
35 Justice Callinan in Al-Kateb said (at [297] to [300]) (footnotes omitted):
297 The appellant also submits that the intent of Parliament should be interpreted by this Court in a manner that is consistent with Australia's "international obligations": that is, Parliament should be assumed to have intended that any provisions for detention in the Migration Act comply with Art 9 of the International Covenant on Civil and Political Rights which admonishes against "arbitrary detention".
298 These submissions cannot be accepted. The statutory language is clear and unambiguous. It leaves no room for any implications of the kind found by the House of Lords and the Privy Council. It requires the detention of aliens until such time as they are granted a visa or removed from Australia. There is certainly no basis, in my view, for an implication to the effect that the ability to detain aliens in accordance with the Migration Act is limited to detention for a "reasonable" period. Nor is a presumption, assuming it should be made, against legislation that is contrary to an international obligation, sufficient to displace the clear and unambiguous words of Parliament. It is a matter for the Australian Parliament to determine the basis on which illegal entrants are to be detained. So long as the purpose of detention has not been abandoned, a statutory purpose it may be observed that is clearly within a constitutional head of power, it is the obligation of the courts to ensure that any detention for that purpose is neither obstructed nor frustrated.
299 The test is not whether the Minister harbours a hope, but whether she continues to have the intention of removing the appellant from the country. General experience may well be, it is not clear whether it is so from the evidence here, that a very great deal of time can elapse before, not only stateless persons, but also others can be removed to another country. But that does not mean that a court is entitled to hold that a person who has no right to enter and reside in the community must be released into it. Nor is it open to a court to hold, in respect of a matter of this kind, that because removal is currently unachievable, it should be treated for all practical purposes as permanently unachievable.
300 The decision and reasoning of Merkel J in Al Masri should be rejected. Similarly, the reasoning in the other cases in which Al Masri has been adopted or affirmed by the Federal Court is also flawed and should be rejected.
(emphasis added)
36 As the Minister submits, s 189 of the Act contains a statutory command to immigration officers to detain a person known or reasonably suspected of being an 'unlawful non-citizen': see Ruddock v Taylor (2005) 222 CLR 612. It was this statutory command on which immigration officers necessarily acted in detaining Dr Durani on 6 September 2013.
37 The status of unlawful non-citizen or a person reasonably suspected of being an unlawful non-citizen is to be contrasted with a person who is a 'lawful non-citizen', being a person in the migration zone who holds a visa that is in effect: s 13(1) of the Act. Section 14(1) of the Act provides that a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. Dr Durani necessarily became an unlawful non-citizen or was reasonably suspected of being an unlawful non-citizen and therefore subject to detention under s 189 of the Act upon the cancellation of his visa. There is a further statutory command under s 196 of the Act that influences the duration of Dr Durani's detention and, again, turns on his status as an unlawful non-citizen or upon the reasonable suspicion that he is an unlawful non-citizen. Section 196(1) of the Act requires that an unlawful non-citizen detained under s 189 of the Act be kept in immigration detention until one of the events there described, none of which has yet occurred.
38 It is clear that subs 196(3) and subs 196(4) of the Act prevent the release of Dr Durani. It is not sufficient that there are broad powers available under s 22 and s 23 FCA. Those powers must be exercised consistently with subs 196(3) and subs 196(4) of the Act. Those subsections limit and implicitly revoke the Court's power to make orders that touch on Mr Durani's detention. In particular, I cannot make orders that would have the effect of requiring Dr Durani's release from detention. I accept the submission for the Minister that the scope of the orders that may be made under s 22 and s 23 FCA are required to take into account the clear language used in s 189 and s 196 of the Act concerning the mandatory detention of a person who has the status of an unlawful non-citizen or is reasonably suspected of being an unlawful non-citizen. To ignore those provisions would be directly inconsistent with Al-Kateb where it was made clear, for example by McHugh J (at [33]), that:
the words of [ss 189, 196 and 198 of the Act] are too clear to read them as being subject to a purposive limitation or an intention to affect fundamental rights.
39 In relation to s 196, his Honour noted (at [35]) that:
The unambiguous language of s 196 particularly subsection (3) - indicates that Parliament intends detention to continue until one of the conditions expressly identified therein - removal, deportation or granting of a visa - is satisfied.
40 This issue has also been considered in Re Woolley and Another; Ex parte Applicants M276/2003 (2004) 225 CLR 1 where Kirby J noted (at [193] and [198]) (footnotes omitted):
193 Unless the parens patriae powers, propounded for the applicants, could be rooted in the Constitution itself, the answer to the invocation of such powers in these proceedings (like the answer to the invocation of the child welfare provisions of the Family Law Act 1975 (Cth), in a case of children in immigration detention) is that such powers are excluded by the express provisions, and comprehensive scheme, of the Act. That Act is specific, particular and clear so far as its requirement for universal mandatory detention is concerned, including in relation to children. Such requirements prevail over any otherwise existing general powers enjoyed by federal courts, including this Court, whether under jurisdiction of the parens patriae kind or welfare jurisdiction under the Family Law Act.
…
198 In the light of this history and on the face of the public record of the Parliament, the suggestion that there has been some oversight, mistake or a failure to consider the immigration detention of children in Australia is fanciful. Detention is the deliberate policy of the Australian Parliament, repeatedly affirmed. In default of a constitutional basis for invalidating it, it is the duty of this Court to give effect to the Act, whatever views might be urged about the wisdom, humanity and justice of that policy.
(emphasis added)
41 In light of that analysis, it must be accepted (and indeed was expressly stated) in Al-Kateb by Callinan J in the footnote contained in [300] that the cases relied upon Dr Durani such as VFAD, decided prior to Al-Kateb and Re Woolley, are no longer good authority with respect to the granting of interlocutory relief concerning persons held in immigration detention.
42 Further, a number of the cases including VFAD were decided under a different statutory regime that existed at the time concerning the provisions of s 196 of the Act. Section 196 then concluded at subs (3).