//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2003] FCA 2
Federal Court of Australia
2003-01-07
Beaumont J
Original judgment source is linked above.
THE APPLICANT'S CASE 8 In their written submissions for the applicant, his counsel submit: · Since the Department has informed the applicant that it will not assist him in obtaining a visa, notwithstanding that he is detained, it should be concluded that the Minister "is not taking all reasonable steps to secure [his] removal." · Moreover, it should be concluded that there is no real likelihood of his removal in the foreseeable future, because of: (a) the lapse of time, being (i) 25 months since he first requested removal and (ii) 16 months since all his review rights were exhausted; (b) the facts that the Department cannot remove him directly to Iraq, and has been unable to secure the agreement of a third country to receive him; and (c) the number of unsuccessful attempts made by the Department to remove him. 9 These submissions were developed in oral argument. Senior counsel contended, by reference to the evidence, that Iraq "is not an option". He contended that (a) the portions of Iraq that are under the control of the government of Iraq "are not an option in respect of the applicant"; (b) in respect of parts of northern Iraq "no one has yet been returned [there]; and no agreement has been reached with any country that would facilitate that"; and (c) although the applicant had an Iraqi passport, it had now expired, and he is "unwilling for reasons that need no explication to apply to Iraq for a further passport."
CONCLUSIONS ON THE APPLICATION 10 As noted, the applicant now seeks, by way of permanent relief: · A declaration that he is detained without lawful authority; and · A final order for his release from immigration detention. 11 In my opinion, as was raised in argument, the present application is fundamentally misconceived. Even if inexcusable delay on the part of the Department had been demonstrated (a question upon which I need not, and do not, express an opinion), the only appropriate remedy, in my view, would have been an application for mandamus compelling "the officer" upon whom is placed the statutory duty prescribed by s 198 to remove the applicant "as soon as [is] reasonably practicable" in the circumstances of the applicant's case. However, no such remedy is sought here. Indeed, it appears to be disclaimed. 12 In short, in my view, the present kind of matter is governed by the principles explained by Murphy J in Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577. In an application for mandamus to compel the Commissioner to deal in a timely fashion with a taxpayer's objection to the Commissioner's assessment of tax, Murphy J said (at 578): "The first question is whether the Commissioner has a public duty to allow or disallow within a reasonable time. The Commissioner suggested that the duty to 'consider the objection' under s 186 of the Act, at its highest, is a duty to give diligent and honest consideration to objections. He contended that there is no time limit, reasonable or otherwise, in which he is required to determine an objection. Where time limits have not been specified in other sections of the Act a reasonable time has been implied (see Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252). Without a time limit any duty would be illusory. I interpret s 186 of the Act as requiring the Commissioner to allow or disallow an objection in whole or in part within a reasonable time. The next question is whether the Commissioner has failed to do so. The Commissioner contended that, in all the circumstances, a reasonable time had not elapsed. In Thornton v Repatriation Commission (1981) 35 ALR 485, in determining whether there was unreasonable delay by the Repatriation Commission in making a statutory decision, Mr Justice Fisher stated: 'The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious…a delay for a considered reason and not in consequence of neglect, oversight or perversity' (at 492)." (Emphasis added) 13 His Honour went on to refuse mandamus on the ground that the delay involved had been "adequately explained" (at 580). 14 But, significantly for present purposes, Murphy J did not hold that if undue and unexplained delay had been demonstrated, it would have had the consequence that the taxpayer's objection was to be treated as allowed. To have done so, would have undermined the legislative scheme for dealing with the merits of the Commissioner's assessment. 15 At the same time, his Honour made it clear that, if inexcusable delay had been demonstrated, the Court would issue mandamus compelling the Commissioner to perform his statutory duty by considering the objection, and ruling on it, as soon as reasonably practicable. In my opinion, this form of relief would give effect to, rather than undermine, the statutory scheme, and accordingly would be the appropriate type of remedy in a case of the present kind. By contrast, an order for release made in circumstances other than the three terminating events prescribed by s 196 would undermine the legislative scheme, and, accordingly, would be beyond the Court's competence. 16 Significantly, for present purposes (as noted) no application for mandamus is made to compel performance of the duty to remove under s 198 here, or even foreshadowed by the applicant. On the contrary, as mentioned, the applicant seeks no relief in aid of his removal at all. 17 On behalf of the applicant, considerable reliance is placed upon the reasons given for making a conditional "final" order in Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 192 ALR 609. However, those reasons were seriously criticised in two recent decisions, in NAKG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1600 and in WAIS, above. I agree entirely with each of those criticisms. For that reason alone, I would not follow Al Masri. Moreover, and in any event, the fundamental misconception I have raised above, was not addressed in Al Masri at all. 18 Accordingly, the application is dismissed, with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beaumont.
Mr N Williams SC / Ms N Sharp Counsel for the Applicant:
Solicitor for the Applicant: Public Interest Advocacy Centre
Counsel for the Respondent: Mr H Burmester QC / Ms M Allars
Solicitor for the Respondent: Australian Government Solicitor
NAES
Minister for Immigration & Multicultural & Indigenous Affairs
THE OPERATION OF THE LEGISLATIVE SCHEME 6 The operation of the legislative scheme was recently explained by French J in WAIS v Minister for Immigration & Multicultural & Indigenous Affairs[2002] FCA 1625 at [46]-[49]: "46. The direction to officers contained in s 189 of the Act is imperative and uncompromising in its terms. When the requisite condition of knowledge or reasonable suspicion that a person is an unlawful non-citizen is satisfied the officer 'must detain the person.' 47. Section 196 requires that an unlawful non-citizen detained under s 189 'must be kept in immigration detention' unless removed from Australia, deported or granted a visa. The section reads as though it creates an obligation, albeit it does not specify the repository. The obligation which it creates is unqualified and in terms unlimited in time except by reference to the three terminating events. That is emphasised by subs 196(3). When read with s 189 it may be that s 196, properly construed, imposes an obligation on the Minister and his officers to maintain the detention referred to. Less directly, it may be said that the section imposes a liability on the person who is an unlawful non-citizen and who has been detained under s 189. 48. Section 198 imposes a duty on 'an officer' to remove an unlawful non-citizen from Australia 'as soon as reasonably practicable' after the occurrence of any of the events severally referred to in the subsections of that section. The duty is curiously expressed as reposing in 'an officer'. No doubt this is a way of referring to the Minister who must act through his officers in the way specified in the section. 49. Section 198 appears in a separate division dealing with the removal of detainees. It sets out the circumstances in which the obligation to remove persons from Australia arises. That removal necessarily terminates the continuing detention under s 196. That the removal must take place 'as soon as reasonably practicable' after a written request or final refusal of a visa (ss 198(1) and (6)) does not, on the face of it, import any express or implied limitation upon the obligation to detain the unlawful non-citizen under s 196. That obligation or liability is terminated by the event of removal. There are no words in the section which condition it upon the expiry of a time which is 'reasonably practicable' to effect the removal after the satisfaction of one of the conditions in s 198. …" 7 I respectfully agree with this analysis.
(2002) 192 ALR 609
(1983) 50 ALR 577
(1981) 35 ALR 485