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.