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[2004] HCA 38
appellant. Appeal allowed. Orders 1, 2, 3, 4, 5, 6 and 8 of the Federal Court made on 5 November 2002 were set aside, and the application to that Court was dismissed. The Minister was ordered to pay the...
9 cited instruments linked from this judgment.
The High Court majority decided that Al Khafaji had to remain in immigration detention under the Migration Act until he was removed from Australia. That was so even though the Federal Court had found there was no real prospect of removal in the reasonably foreseeable future. The majority relied on its reasoning in the companion case Al-Kateb v Godwin. The Federal Court's release orders were therefore set aside. Gummow and Kirby JJ disagreed, reasoning that the statutory removal purpose could not sustain detention where removal was not reasonably in prospect.
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1,978 words · generated 03/10/2026
The appeal concerned the continued immigration detention of Abbas Mohammad Hasan Al Khafaji, an Iraqi national who had lived in Syria. He arrived in Australia without proper travel documents on 5 January 2000 and was detained as an unlawful non-citizen under s 189 of the Migration Act 1958 (Cth) (Gummow J at [7]; Callinan J at [40]).
Al Khafaji applied for a protection visa. A delegate accepted that he had a well-founded fear of persecution if returned to Iraq, but refused the visa because the delegate considered he had a right to re-enter and reside in Syria, where he would have effective protection. The Refugee Review Tribunal affirmed the refusal. Al Khafaji did not seek judicial review of the Tribunal's decision, and the application was treated as finally determined on 1 January 2001 (Gummow J at [8]-[12]).
The statutory position then required removal in the circumstances described by s 198. Al Khafaji asked in writing to be removed to Syria or another country, first on 9 February 2001 and again on 16 April 2002 (Gummow J at [13]). The Department had taken steps to arrange removal, but the evidence did not establish a likely timeframe. The primary judge recorded that the departmental director considered removal “still achievable”, but accepted that the process could be protracted and indefinite (Gummow J at [14], [16]).
Mansfield J found that “there is not at present any real prospect” of removal in the reasonably foreseeable future. He ordered Al Khafaji’s release, with reporting and other conditions (Gummow J at [16]; Hayne J at [34]-[35]). The Minister appealed. The matter was removed to the High Court under s 40 of the Judiciary Act 1903 (Cth) and heard with related cases, including Al-Kateb v Godwin [2004] HCA 37 (Gummow J at [5]; Hayne J at [36]).
The High Court allowed the Minister’s appeal. By majority, it held that the Migration Act validly required continued detention until removal, so the Federal Court orders could not stand (Hayne J at [37]-[38]).
The decisive reasoning for the majority was that the statutory and constitutional issues were governed by the Court’s reasoning in the companion case Al-Kateb. McHugh J said the provisions required Al Khafaji to be kept in immigration detention until removal (at [3]). Hayne J similarly concluded that the Act validly required continued detention (at [37]). Heydon J agreed with Hayne J, reserving only a question about whether s 196 should be read consistently with treaties not incorporated into Australian law (at [51]).
The judgment does not set out the full reasoning in Al-Kateb. It is therefore important not to treat this case’s short references to that decision as if they independently explain every step of the majority’s constitutional analysis. The result stated here is clear: the lack of a reasonably foreseeable removal date did not, for the majority, make detention unlawful.
Callinan J addressed the primary judge’s reliance on reasonable practicability and reasonable foreseeability. He said the Act imposed no such temporal qualification, and that the focus was the statutory purpose of deportation, which had not been abandoned (at [45]). In his view, the fact that international and human affairs can involve long periods, or changing circumstances, meant that present predictability and delay did not determine the constitutional nature of detention. He also considered that the statutory language was specific and clear, and that detention served a statutory purpose (at [47]-[49]).
The majority outcome should be contrasted with Gummow and Kirby JJ’s reasons. Gummow J considered that the removal purpose was no longer reasonably in prospect on the primary judge’s findings. He reasoned that s 198 no longer provided a present purpose of facilitating removal, so the temporal operation of “until” in s 196 lost its necessary premise (at [22]). Kirby J agreed with the result Gummow J proposed and emphasised a construction that would avoid giving the Executive an effectively self-defining power of indefinite detention (at [25]-[29]). Those were dissenting views, not the Court’s holding.
The Court’s order followed from the majority’s conclusion about lawfulness. The Federal Court had ordered release with conditions, including reporting and compliance with specific future removal arrangements. Hayne J said that, if detention had been unlawful, release should have been unconditional, but the majority found detention lawful and set aside the release orders (at [37]-[38]).
Before the High Court appeal, Mansfield J had applied the approach associated with Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs. Gummow J noted that Mansfield J had followed Merkel J’s construction in Al Masri, which was later affirmed by the Full Court of the Federal Court (at [6]). That approach allowed the primary judge to conclude that detention could not continue once removal was not reasonably practicable in the foreseeable future.
The High Court’s decision displaced the practical effect of the release ruling in this case. The majority applied Al-Kateb and held that detention remained required until removal, despite the finding about the absence of a real prospect of removal in the reasonably foreseeable future (McHugh J at [3]; Hayne J at [37]). The disposition was to allow the appeal, set aside the specified Federal Court orders and dismiss the application.
This judgment is divided. Its outcome is not a unanimous statement that indefinite detention was lawful. Gummow and Kirby JJ would have dismissed the appeal and left the release orders standing. Their reasons treat the statutory purpose of removal as central and consider the effect of removal no longer being reasonably in prospect (Gummow J at [22]-[24]; Kirby J at [27]-[29]). Any account of the state of the law stated in this decision must therefore distinguish the majority holding from those opinions.
The majority’s constitutional analysis is incorporated from Al-Kateb rather than reproduced here. On the material provided in this judgment, it is safe to state the result and the provisions applied, but not to add unquoted detail about the companion decision’s complete constitutional reasoning.
At [3], McHugh J states that ss 189, 196 and 198 required Al Khafaji to remain detained until removal. In plain English, the majority treated the Act’s detention requirement as continuing even when removal had no reasonably foreseeable date.
At [37], Hayne J says the provisions requiring continued detention were “not invalid”, and that detention was therefore not unlawful. This connects the statutory interpretation to the constitutional outcome. The detailed explanation is referred to Al-Kateb, not reproduced in this appeal.
At [45], Callinan J says the Act imposed no temporal qualification of the kind relied on by the primary judge. His point is that delay, even substantial delay, did not itself change the statutory character of detention while the purpose of removal remained.
At [49], Callinan J says the statutory language was “specific and clear”. That is his answer to the argument that fundamental rights should not be curtailed without clear legislative language. His conclusion formed part of his reasons for allowing the appeal.
At [22], Gummow J reaches the opposite conclusion on statutory construction. He reasons that the removal provisions no longer supported detention if removal was not reasonably in prospect. In plain English, for Gummow J the connection between detention and a presently achievable removal mattered. This was dissenting reasoning.
At [28], Kirby J warns against construing ambiguous provisions as giving the Executive a self-defining and self-fulfilling power of indefinite detention. He relied on liberty and international law considerations in support of the dissenting construction.
The central fact pattern is an unlawful non-citizen held under the Migration Act after the relevant visa process has ended, where removal has not occurred and the person or the Minister’s evidence indicates that removal may be delayed or uncertain. Here, the primary judge found that there was no real prospect of removal in the reasonably foreseeable future, despite evidence that further efforts might possibly succeed after protracted steps (Gummow J at [16]; Hayne J at [35]).
The case is particularly relevant where the person has requested removal under s 198, but practical arrangements have not been made. Al Khafaji requested removal in writing, and his case raised the interaction between the statutory removal duty and the detention provision (Gummow J at [12]-[13], [18]).
The precedent also applies to the relationship between an unsuccessful protection visa process and detention pending removal. Al Khafaji’s visa was refused because decision-makers considered Syria a country where he could obtain protection, but the later practical problem was that his return there had not been achieved (Gummow J at [8]-[14]).
The facts must be compared carefully. The reasoning here was expressly linked to Al-Kateb, and the judgment does not decide every possible question about delay, changed circumstances, or the legal basis for detention in other statutory settings. Nor does it decide the separate question whether a particular person had a legally enforceable right to enter and reside in a third country. Gummow J observed that the nature of any such Syrian right, and any correlative duty, had not been explored in submissions (at [19]-[21]).
The judgment text supplied here does not identify any later cases that applied, distinguished, followed or reconsidered Al Khafaji. It therefore does not provide a basis for making claims about subsequent judicial treatment.
The decision itself records its relationship with Al-Kateb v Godwin [2004] HCA 37. The appeals were heard together, and the majority in Al Khafaji expressly adopted the companion case’s reasons on detention and validity (McHugh J at [3]; Hayne J at [30], [37]; Heydon J at [51]). It also refers to Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 as another related appeal heard with the matter (Hayne J at [30]; Callinan J at [39]).
The decision discusses Al Masri as the Federal Court approach Mansfield J followed (Gummow J at [6]; Callinan J at [42]). That reference describes the procedural and legal background; the High Court’s order in this case set aside the release orders made below. No claim about treatment by courts after 2004 can be grounded in this judgment alone.
Several matters were expressly left unresolved or were not fully explored. First, Gummow J noted the question whether a “right” to enter and reside in Syria existed if it could not be exercised within a reasonable time. He also noted the possible correlative duty and the relationship between municipal and international law, but said those issues had not been explored in submissions (at [19]-[21]).
Second, Heydon J reserved whether s 196 should be interpreted consistently with treaties to which Australia is a party but which have not been incorporated into Australian law by statute (at [51]). Kirby J, by contrast, considered that Australian legislation should, so far as its language permits, be construed consistently with international law, including human rights law (at [27]-[28]). The judgment thus records disagreement or reservation about the relevance and reach of those interpretive principles.
Third, the judgment’s account of the controlling constitutional reasoning depends on Al-Kateb. The current text states that the relevant provisions were valid but does not reproduce the full reasoning in that companion case. Any fuller analysis of Chapter III must therefore be checked against the companion judgment.
Finally, the decision does not determine how later factual changes would affect the statutory position, nor does it decide the full range of circumstances in which removal might cease to be the purpose of detention. Its majority holding concerns the provisions and circumstances before the Court, with the factual finding of no foreseeable removal date not sufficient to make detention unlawful.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
MINISTER FOR IMMIGRATION AND MULTICULTURAL
AND INDIGENOUS AFFAIRS APPELLANT
AND
ABBAS MOHAMMAD HASAN AL KHAFAJI RESPONDENT
Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji
[2004] HCA 38
6 August 2004
A254/2003
ORDER
Appeal allowed.
Orders 1, 2, 3, 4, 5, 6 and 8 of the Federal Court of Australia made 5 November 2002 set aside and in lieu thereof order that the application to that Court be dismissed.
The appellant to pay the respondent's costs in this Court.
Cause removed under s 40 of the Judiciary Act 1903 (Cth)
Representation:
D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and S J Maharaj for the appellant (instructed by Australian Government Solicitor)
S W Tilmouth QC with M B Manetta and H M Heuzenroeder for the respondent (instructed by Jeremy Moore & Associates)
D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and S J Maharaj intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
D S Mortimer SC with J K Kirk intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by Human Rights and Equal Opportunity Commission)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Immigration – Unlawful non-citizens – Detention pending removal from Australia – No real prospect of removal from Australia in reasonably foreseeable future – Whether detention lawful under Migration Act 1958 (Cth) – Whether detention is temporally limited by purpose of removal – Whether requirement to remove as soon as reasonably practicable implies time limit on detention.
Statutes – Acts of Parliament – Construction and interpretation – Where meaning ambiguous or uncertain – Presumption of legislative intention not to invade personal common law rights.
Constitutional law (Cth) – Judicial power of the Commonwealth – Unlawful non-citizen in immigration detention – No real prospect of removal from Australia in reasonably foreseeable future – Whether provision for indefinite detention without judicial order infringes Chapter III of the Constitution – Whether detention involves an exercise of judicial power of the Commonwealth by the Executive – Whether detention is for a non-punitive purpose.
Constitutional law (Cth) – Construction and interpretation – Whether Constitution to be interpreted to be consistent with international law of human rights and fundamental freedoms.
Constitution, Ch III.
Migration Act 1958 (Cth), ss 189, 196, 198.
GLEESON CJ. This appeal was heard at the same time as Al-Kateb v Godwin1.
The facts and issues are set out in the reasons of Gummow J. For the reasons I gave in Al-Kateb I consider that this appeal should be dismissed with costs.
McHUGH J. Mr Abbas Mohammad Hasan Al Khafaji is an Iraqi national and unlawful non-citizen who was refused a protection visa in Australia on the grounds that he had not taken all reasonable steps to avail himself of a right to reside in Syria. However, attempts by the Australian government to remove him from Australia have been unsuccessful. In the Federal Court, Mansfield J found that there was no real prospect of successful removal in the foreseeable future. Mr Al Khafaji's case therefore raises the same issues concerning the legality of detaining an unlawful non-citizen in immigration detention as are raised in Al‑Kateb v Godwin2. For the reasons that I give in that case, ss 189, 196 and 198 of the Migration Act 1958 (Cth) require that Mr Al Khafaji be kept in immigration detention until he is removed from Australia.
Tragic as this outcome is for Mr Al Khafaji, the Minister's appeal must be allowed. I agree with the orders proposed by Hayne J.
GUMMOW J. This appeal by the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") from the judgment and order of the Federal Court of Australia (Mansfield J)3, which was pending in the Federal Court, was removed into this Court under s 40 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") by order of this Court made on 14 August 2003. The appeal raises issues related to those in Al-Kateb v Godwin4 and this judgment should be read with my judgment in that case.
By application to the Federal Court filed on 10 September 2002, the respondent had sought against the Minister injunctive and other relief under s 39B of the Judiciary Act. The respondent was successful and on 5 November 2002 Mansfield J ordered that the Minister forthwith release the respondent from detention. At the time of this order, the respondent, as an unlawful non‑citizen, had been detained under the provisions of the Migration Act 1958 (Cth) ("the Act") for two years and 10 months. Mansfield J followed the construction given the legislation by Merkel J in a case thereafter affirmed by the Full Court of the Federal Court.
"A criterion for a protection visa is that the applicant for the visa is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."
The delegate accepted that the respondent had a well‑founded fear of persecution if he were to return to Iraq, by reason of his political opinion or political opinion imputed to him. However, the respondent failed to obtain a protection visa.
"Australia is taken not to have protection obligations to a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national."
The question posed in the concluding words of s 36(3), the country of nationality of a non‑citizen, is to be determined solely by reference to the law of that country (s 36(6)). Section 36(3) would not apply in relation to Syria if the respondent had a well‑founded fear of persecution there (s 36(4)). Nor would it apply to Syria if the respondent had a well‑founded fear that Syria would return him to Iraq and that he would be persecuted there (s 36(5)).
However, the delegate concluded that the respondent had effective protection in Syria, including the right to re‑enter and reside in Syria without the risk of refoulement to Iraq and that he did not have a well‑founded fear of persecution for any Convention reason if he were to return to Syria. Hence s 36(3) operated, Australia was to be taken not to have protection obligations to the respondent and, as a result, he did not meet the necessary criterion in s 36(2) for a protection visa.
A review of the delegate's decision by the Refugee Review Tribunal ("the Tribunal") affirmed the decision on the footing that, without determining whether s 36(2) was satisfied, the delegate correctly had applied s 36(3).
The respondent was notified of the decision of the Tribunal on 4 December 2000. He took no steps to institute in the Federal Court an application for judicial review of the Tribunal's decision under the provisions of Pt 8 of the Act as it then stood7. The decision of the Tribunal had been made under Pt 7 of the Act. The absence of any application for judicial review under Pt 8 produced the result that, on 1 January 2001, the application for the protection visa was "finally determined" within the meaning of the definition given that expression in s 5(9) of the Act. That state of affairs then called into play the obligation imposed by s 198(6) of the Act, that "[a]n officer must remove as soon as reasonably practicable an unlawful non‑citizen" where the grant of a substantive visa has been refused and the application "finally determined". Further, s 198(1) of the Act stated:
"An officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed."
On 9 February 2001, the respondent made a written request to the effect that he be returned to Syria from Australia as soon as possible and with suggestions of other countries to which he might be sent if arrangements could not be made to send him to Syria. He made a further formal written request on 16 April 2002. The Minister has been aware of the respondent's wish to be returned at least since the written request of 9 February 2001.
The evidence before Mansfield J was that the respondent was regarded by the Minister's Department as falling into a group of Iraqi nationals found to be at risk of persecution in Iraq but with effective protection in a third country. In an affidavit the subject of a confidentiality order, the director of the Unauthorised Arrivals Section of the Department explained steps taken to arrange for the return from Australia to Syria of failed asylum seekers who are formerly residents of Syria. His Honour said that it was inappropriate to set out the detailed nature of these confidential steps, but he recorded the director's opinion that the return of the respondent was "still achievable".
The provisions of the Act with respect to the period of immigration detention of unlawful non‑citizens are apt to draw a court exercising federal jurisdiction in a matter arising under the Act or s 75(v) of the Constitution into an issue respecting the conduct of the executive branch in attempting to procure the removal of unlawful non‑citizens from Australia and to other countries. Both this appeal and that in Al‑Kateb provide examples. The term "non‑justiciable" has been used with respect to certain aspects of the conduct by the executive branch of foreign relations8. But the Act itself and its subjection to the operation of Ch III of the Constitution render that term inapplicable to cases such as the present9. That is not to deny that confidentiality orders, such as that apparently made by Mansfield J in this case, may be appropriate10.
After referring to the text of ss 196 and 198 of the Act, and recording the absence of any challenge to the validity of s 196, Mansfield J said:
"I find that the removal of [the respondent] from Australia is not 'reasonably practicable', because there is not at present any real prospect of [the respondent] being removed from Australia in the reasonably foreseeable future. I have had regard to the period of [the respondent's] detention since 5 January 2000, or perhaps more accurately since 9 February 2001 when he requested in writing that he be returned to Syria, including the periods during which he has had unresolved requests to [the Minister] under s 417 of the Act. I have had regard to his communications with [the Minister] and [Department] officers. I have had regard to the affidavits filed on behalf of [the Minister], to which I have referred above."
His Honour expressed his conclusions as follows:
"In my view there is nothing to indicate that there is any real prospect of [the respondent] being returned to Syria in the reasonably foreseeable future, and nothing to indicate that he can successfully be removed to another country in any measurable timeframe. I accept the director's evidence that 'with persistence' there is some prospect of [the respondent] being successfully removed from Australia to a third country, possibly including Syria, after 'protracted' steps are taken, but the period of time over which those steps may be taken – assuming, which is by no means clear, that they are ultimately successful – is indefinite and is certainly not of short compass. There is no material to suggest [the respondent's] removal from Australia will probably or might necessarily be effected within a time span of (say) several months. That is a finding which senior counsel for [the Minister] contested only in a relatively faint way."
"In about mid 2001 [the respondent] learned that several of the signatories to the request of December 2000 had been granted protection visas by [the Minister] in the exercise of his powers under s 417 of the Act. He then made a fresh written request to [the Minister] to exercise that power in his favour, sent on or about 13 July 2001, and to otherwise arrange for his departure from Australia to Syria or to some other country as soon as possible. He expressed his very strong desire to get out of immigration detention either by being sent to another country or by being granted a protection visa. By letter of 18 July 2001, an officer of [the Minister] informed [the respondent] that his further request under s 417 would not be referred to [the Minister] for decision as it contained no new information."
The chain of events narrated above indicates the odd, if not paradoxical, position in which both the respondent and the Minister found themselves. The application for a protection visa had failed because of the conclusion by the delegate and the Tribunal that the respondent still had "a right" within the meaning of s 36(3) to enter and reside in Syria but had not taken all possible steps to avail himself of that "right". Yet it thereafter became apparent that, while the respondent wished to avail himself of that right, by triggering the requirement under s 198(1) of the Act that he must be removed as soon as reasonably practicable, there was, as Mansfield J found, no real prospect of that return to Syria coming to pass in the reasonably foreseeable future. The result, on the construction of the Act for which the Minister still contends in this Court, is the continued mandatory detention of the respondent.
There must be a serious question as to whether there exists a "right" of the nature identified in s 36(3) where it is insusceptible of exercise within a reasonable time of its assertion. It has long been notorious that the term "right" has no definite or stable connotation and bears a variety of meanings according to the connection or context in which it is used. Here, as s 36(3) emphasises, the entry and residence may be merely temporary and the right may have arisen or be expressed in various ways. Nevertheless, remarks of Professor Hohfeld, nearly a century ago, are on point11:
"[E]ven those who use the word and the conception 'right' in the broadest possible way are accustomed to thinking of 'duty' as the invariable correlative."
On the present facts, any correlative duty must be that of Syria. Presumably the duty is owed under its municipal law to the respondent personally and must be shown to exist by evidence in an acceptable form to the Australian decision-maker dealing with the protection visa application. It may also be that there is a duty owed to him, or to Australia, as an international obligation. These questions of the intersection between municipal and international law have not been explored in submissions.
It is enough for this appeal to note that the issues of construction that do arise respecting the application to this case of the duties to remove the respondent from Australia under s 198 should not be approached on the footing that, as a matter of international obligation to Australia, Syria is required to permit the respondent to re‑enter that country and to reside there.
The relevant provisions of the Act are construed in my judgment in Al-Kateb. The findings of Mansfield J set out earlier in these reasons lead to the conclusion that ss 198 and 196 no longer mandated the continuing detention of the respondent. Section 198 no longer retained a present purpose of facilitating removal from Australia as an end reasonably in prospect; as a result, the temporal imperative imposed by the word "until" in s 196(1) lost the necessary condition or assumption for its operation that s 198 still operates to provide for removal under that section.
The consequence is that the appeal by the Minister fails and must be dismissed with costs. That leaves standing the orders made by the primary judge. Order 1 required the release of the respondent from detention. Orders 2‑6 provided for what was to happen thereafter and established what was described in submissions to this Court as a reporting regime restraining the activities of the respondent and requiring his compliance with any arrangements for his removal from Australia which might be made in the future. Order 8 reserved to either party liberty to apply to vary or discharge these orders, including as to the reporting requirements.
There has been no cross‑appeal against these orders imposing restrictions on the respondent after his release. Indeed, his counsel in a sense relied upon them as supporting the practicality of a reporting regime as an alternative to detention. In these circumstances, it is sufficient to say here that the considerations referred to under the heading "Orders" in my reasons in Al‑Kateb may supply a statutory footing for the restrictive orders in question here.
KIRBY J. My conclusion in this appeal follows from my reasons in the connected proceeding in Al-Kateb v Godwin12. As in that case, I agree with the orders proposed by Gummow J. I also agree with his Honour's remarks concerning the lawfulness of the original orders of the primary judge thereby confirmed.
The facts
The respondent, an Iraqi, came to Australia by boat on 5 January 2000. He had no visa to enter or remain in Australia. A delegate of the appellant Minister determined that the respondent had a well‑founded fear of persecution by reason of his political opinion, or a political opinion imputed to him, if he were to return to Iraq. The Minister's delegate concluded, however, that the respondent had a right to re‑enter and reside in Syria, without the risk of refoulement to Iraq, that he did not have any well‑founded fear of persecution for any Convention reason if he were to return to Syria, and that accordingly the respondent would have effective protection in Syria. The respondent's application for a protection visa was refused.
The respondent sought review of this decision by the Refugee Review Tribunal and the Tribunal affirmed the delegate's decision not to grant the respondent a protection visa. The respondent did not seek review of that decision in the Federal Court of Australia.
In February 2001, the respondent asked the Minister, in writing, to remove the respondent to Syria or to a third country. He has not been removed from Australia.
The proceedings below
On 10 September 2002, the respondent applied to the Federal Court for habeas corpus. On 5 November 2002, Mansfield J ordered21 that the respondent be released from detention forthwith. The orders required the respondent to notify the Australian Government Solicitor of his address, and any subsequent change of address, and to submit to the custody of the Minister if "specific arrangements" were made for his removal. In addition, he was required to report periodically to the Minister's Department or to a police station.
Mansfield J found that "the removal of [the respondent] from Australia is not 'reasonably practicable', because there is not at present any real prospect of [the respondent] being removed from Australia in the reasonably foreseeable future"22. Mansfield J accepted evidence led on the Minister's behalf that:
"'with persistence' there is some prospect of [the respondent] being successfully removed from Australia to a third country, possibly including Syria, after 'protracted' steps are taken, but the period of time over which those steps may be taken – assuming, which is by no means clear, that they are ultimately successful – is indefinite and is certainly not of short compass"23.
Conclusion and orders
For the reasons given in Al‑Kateb, those provisions of the Migration Act which require the continued detention of the respondent are not invalid. Accordingly, his detention was not unlawful and the orders made by Mansfield J should, therefore, be set aside. In addition, as is also explained in Al‑Kateb, if it had been shown that the respondent's continued detention was unlawful, he should have been released unconditionally. There could be no basis for imposing any of the conditions imposed in the orders.
The appeal to this Court should be allowed. The orders made by Mansfield J on 5 November 2002 (other than the order for costs) should be set aside and, in their place, there should be orders that the application be dismissed. Consistent with the terms on which the matter was removed into this Court, the appellant should pay the respondent's costs in this Court.
CALLINAN J. This appeal raises a question as to the legality of the respondent's detention in immigration detention for an indefinite period but for the purpose of his deportation. These reasons should be read with the reasons in Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs24 and Al‑Kateb v Godwin25.
Facts
This was the third of three cases heard together on 12 and 13 November 2003. The respondent is an Iraqi. He was detained as an unlawful non-citizen upon his arrival in Australia without proper travel documents on 5 January 2000, pursuant to s 189 of the Migration Act 1958 (Cth) ("the Migration Act"). He was held to be a genuine refugee by the delegate of the appellant. It was determined however that he was not a person to whom Australia owed protection obligations because of a finding that he could obtain protection in Syria.
On 30 November 2000, the Refugee Review Tribunal ("the Tribunal") upheld that finding but made no finding as to the respondent's status as a refugee. The result was communicated to the respondent on 4 December 2000. The respondent did not seek to have this decision reviewed by the Federal Court and the time within which he might do so expired on 1 January 2001. On 9 February 2001 the respondent made a written request for removal to Syria. The appellant has been unable so far to effect his removal.
On 10 September 2002, the respondent made an application to the Federal Court for an order for his release in reliance on the decision of the Federal Court in Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs26. Mansfield J heard the application on 16 September 2002. His Honour gave judgment on 5 November 2002 ordering the respondent's release from detention forthwith on strict terms and conditions. By then he had been in detention for 2 years and 10 months.
In his reasons, Mansfield J said27:
"I find that the removal of the [respondent] from Australia is not 'reasonably practicable', because there is not at present any real prospect of the [respondent] being removed from Australia in the reasonably foreseeable future. I have had regard to the period of the [respondent's] detention since 5 January 2000, or perhaps more accurately since 9 February 2001 when he requested in writing that he be returned to Syria, including the periods during which he has had unresolved requests to the [appellant] under s 417 of the Act. ... [The detention] is indefinite and is certainly not of short compass. There is no material to suggest the [respondent's] removal from Australia will probably or might necessarily be effected within a time span of (say) several months. That is a finding which senior counsel for the [appellant] contested only in a relatively faint way."
The appellant appealed to the Full Court of the Federal Court against the decision of Mansfield J on 20 November 2002. On 14 August 2003 this Court (Gummow, Kirby and Hayne JJ) ordered that the proceedings be removed into this Court for hearing pursuant to s 40 of the Judiciary Act 1903 (Cth). The proceedings therefore come before this Court as an appeal to the Full Court of the Federal Court to be heard and determined effectively as an appeal to this Court. The order was granted on condition as to costs: that the appellant not challenge the order as to costs made by Mansfield J, that the appellant not seek costs against the respondent in this Court, and that the appellant pay the costs of the respondent in this Court in any event.
The reference by Mansfield J to reasonable practicability and reasonable foreseeability was directed to the situation "at present". The Migration Act imposes no such temporal qualification. It is to purpose to which attention must be paid, and the purpose of deportation has not been abandoned. As I have observed in Al‑Kateb, in the nature of human and international affairs, long periods may be involved just as circumstances may change very quickly. Neither current predictability nor delay can determine the constitutional nature of the detention and its continuation.
Only two further submissions should be noted. They adopt judicial pronouncements which cannot be disputed but this case falls outside their general language. The first was that the common law's jealous protection of liberty is both fundamental and ancient28:
"The right to personal liberty is, as Fullagar J described it, 'the most elementary and important of all common law rights'. Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England 'without sufficient cause'." (footnotes omitted)
The statutory purpose of deportation provides sufficient cause here.
The second was that to effect the curtailment of fundamental rights it must be apparent that29:
"the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights."
The statutory language here is specific and clear. It gives effect to the difference in status between aliens and citizens. Such curtailment of freedom as occurs, occurs for a statutory purpose within constitutional power only. People who do not have valid claims to refugee status or to whom the nation owes no obligations of protection take the risk in unlawfully entering the country that they will be detained. It is difficult to believe that they can have any different understanding. If they do, ignorance of the Australian law can afford them no greater excuse than it would an Australian citizen.
The appeal should be allowed and the orders of Mansfield J made on 5 November 2002, save as to costs, should be set aside. In accordance with the order of this Court on the application to remove the proceedings pursuant to s 40 of the Judiciary Act, the order as to costs made by Mansfield J on 5 November 2002 should not be disturbed, and the appellant should pay the costs of the respondent in this Court.
HEYDON J. Subject to reserving any decision about whether s 196 should be interpreted in a manner consistent with treaties to which Australia is a party but which have not been incorporated into Australian law by statutory enactment, I agree with the reasons stated by Hayne J for his conclusion that the continued detention of the respondent is not unlawful and for the orders he proposes.
It is therefore not necessary to decide whether, if the respondent's continued detention were unlawful, any conditions could be imposed on his release.
[2004] HCA 37. ↩
[2004] HCA 37. ↩
[2002] FCA 1369. ↩
[2004] HCA 37. ↩
Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 192 ALR 609; affd (2003) 126 FCR 54. ↩
By Sched 1, Pt 6, Item 65, which commenced on 16 December 1999. ↩
Before the significant changes introduced with effect from 2 October 2001 by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), which was construed in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476. ↩
Brodie v Singleton Shire Council (2001) 206 CLR 512 at 555 [92]. ↩
See Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 367‑373. ↩
See Federal Court of Australia Act 1976 (Cth), ss 17(4), 50; Australian Broadcasting Commission v Parish (1980) 29 ALR 228. ↩
"Some Fundamental Legal Conceptions as Applied in Judicial Reasoning", (1913) 23 Yale Law Journal 16 at 31. ↩
Minister for Immigration and Multicultural and Indigenous Affairs
Al Khafaji
(2002) 192 ALR 609
(2003) 126 FCR 54
(2003) 211 CLR 476
(2001) 206 CLR 512
(1988) 19 FCR 347
(1980) 29 ALR 228
(1908) 6 CLR 309
(1995) 183 CLR 273
(1998) 195 CLR 337
(1986) 6 NSWLR 352
(1995) 38 NSWLR 137
(1951) 83 CLR 1
(1986) 161 CLR 278
(1994) 179 CLR 427
(2004) 219 CLR 664
(2004) 208 ALR 201
(2004) 78 ALJR 1156
Appeal allowed. Orders 1, 2, 3, 4, 5, 6 and 8 of the Federal Court made on 5 November 2002 were set aside, and the application to that Court was dismissed. The Minister was ordered to pay the respondent's costs in the High Court.
The facts may be stated shortly. The respondent was born in Iraq on 5 January 1973 and is an Iraqi national. In about 1980, he fled Iraq with his family and went to Syria. The respondent grew up there and after completion of his schooling worked casually as a teacher. In November 1999, the respondent left Syria. He arrived in Australia without proper travel documents on 5 January 2000. He was then placed in immigration detention, where he remained until the order for his release was made by Mansfield J.
On 5 April 2000, the respondent applied for a protection visa within the meaning of s 36 of the Act as that section stood after the changes made by the Border Protection Legislation Amendment Act 1999 (Cth)6 ("the 1999 Act"). The delegate of the Minister accepted that the respondent satisfied the criterion for such a visa provided in s 36(2). This stated:
For the reasons given by Gummow J, this appeal by the Minister can be determined by giving meaning to the language of ss 196 and 198 of the Migration Act 1958 (Cth) ("the Act")14. Most of the wider constitutional and other issues that were argued do not need to be decided. However, as Gummow J shows, it is impossible to ignore the constitutional setting, and the basic hypotheses that it presents, in approaching the radical assertions urged for the Minister which this Court should reject.
The interpretation of the Act favoured by Gummow J has an added attraction for me. It is supported by the presumption that Australian statutes (such as the Act) are to be interpreted and applied, as far as their language permits, so as to be in conformity with international law, including the international law of human rights and fundamental freedoms. This principle ensures that Australian law is construed so that it is not needlessly in breach of the obligations binding upon Australia under international law. Since the earliest days of this Court, the latter principle has been one that has helped to guide this Court in the construction of Australian legislation15.
International law16, like the common law of Australia, has a strong presumption in favour of individual liberty and against a power of indefinite detention by the executive government. Certainly, that is how an ambiguous statutory provision in this country is to be read17. This case affords no exception. In relevant respects, the Act is ambiguous. In such circumstances, this Court should certainly uphold an interpretation that denies to the Executive what is effectively a self-defining and self-fulfilling power of indefinite detention of the respondent. Such a power would be incompatible with Ch III of the Constitution. It would also be inconsistent with past decisions of this Court that have declined to extend such self-determining powers to the Executive18.
The appeal should be dismissed with costs.
HAYNE J. This appeal was heard at the same time as the appeals in Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs19 and Al‑Kateb v Godwin20. Although the facts which give rise to this appeal, and the administrative and curial steps which lie behind it, differ in some respects from those considered in Al‑Kateb, the ultimate issue, concerning the lawfulness of the detention of the respondent in immigration detention, is identical. For the reasons I give in Al‑Kateb, the Migration Act 1958 (Cth) validly requires that the respondent be kept in immigration detention until he is removed from Australia.
[2004] HCA 37. ↩
Reasons of Gummow J at [22]. ↩
Reasons of Gummow J at [22]-[24]. ↩
See, for example, Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 363. See also Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287; Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 384 [97] per Gummow and Hayne JJ, 417-418 [166] of my own reasons; Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 at [125]-[129]. ↩
eg International Covenant on Civil and Political Rights, done at New York on 19 December 1966, [1980] Australian Treaty Series No 23, Arts 7, 9, 10. ↩
See Piper v Corrective Services Commission of NSW (1986) 6 NSWLR 352 at 361; Director of Public Prosecutions v Serratore (1995) 38 NSWLR 137 at 142-143 [1]-[2]. See further R v Governor of Durham Prison; Ex parte Hardial Singh [1984] 1 WLR 704 at 706; [1984] 1 All ER 983 at 985; Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 at 111; Zadvydas v Davis 533 US 678 at 699 (2001); Hamdi v Rumsfeld 72 USLW 4607 at 4614-4615 (2004). ↩
eg Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193 per Dixon J, 206 per McTiernan J, 222 per Williams J, 263 per Fullagar J. ↩
[2004] HCA 36. ↩
[2004] HCA 37. ↩
Al Khafaji v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1369. ↩
[2002] FCA 1369 at [21]. ↩
[2002] FCA 1369 at [21]. ↩
[2004] HCA 36. ↩
[2004] HCA 37. ↩
(2002) 192 ALR 609. ↩
Al Khafaji v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1369 at [21]. ↩
Williams v The Queen (1986) 161 CLR 278 at 292 per Mason and Brennan JJ. ↩
Coco v The Queen (1994) 179 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ. ↩