NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 918 | Case summary

REASONS FOR JUDGMENT 1 On 17 April 2003, I made orders in each of these matters for the release of the relevant applicant from detention: see NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 460. I did so on terms involving regular reporting by the applicants in accordance with the regime laid down in the orders. My intention in making those orders was that they would operate on an interlocutory basis and would not be final orders. I adopted that course, which I accept is unusual, because of the unusual state of the law in relation to these matters. 2 Ordinarily, an applicant who is successful is entitled to final orders. However, as is apparent from reasons that I have previously delivered in relation to these matters (see NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 224), I had formed the view that the detention of the applicants was not unlawful. It would follow, if that view were maintained, that the applications should be dismissed. However, before orders were made, the Full Court published its reasons in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241. Those reasons would lead, if applied in these cases, to a different conclusion. The conclusion that would be required by the application of the principles espoused by the Full Court in that case is that the detention of the applicants was unlawful and that, therefore, they were entitled to orders in the nature of habeas corpus for their release. That, however, raises the question of whether the Court can and should impose terms for release. 3 Having regard to the fact that the Minister indicated that he proposed to seek special leave to appeal to the High Court from the orders made by the Full Court, it seems likely that the views of the Full Court will not necessarily be the final views. That is not to suggest a likely outcome of either the leave application or an appeal, if leave were granted. It is an indication, however, that there is at least a prospect of a different result. 4 Because of the difficulty that I perceived as to whether or not the Court does have power to impose terms, I considered that the interests of justice were best served by making interlocutory orders and by deferring the final determination of the proceedings until such time as the application for special leave had been determined and, possibly, if leave were granted, until the appeal had been determined. That course gave the applicants the liberty they seek but still maintained the Minister's position, bearing in mind that, even if the applicants are entitled to liberty for the time being, if it becomes possible to remove them, the duty of the Minister must be to remove them and that will involve taking the applicants into detention again. 5 By motions filed on 4 July 2003, pursuant to leave that I reserved to them, the applicants seek to re-agitate the question of whether I should now finally dispose of the proceedings. That would, of itself, involve forming a view as to whether there is power to impose terms. Alternatively, the applicants seek a variation of the reporting regime on the ground that the regime presently in place has proved to be more onerous than was originally expected. The factors relied upon by the applicants as justifying this further application include the fact that the reporting regime has proved to be more inconvenient than was thought, coupled with the presentation to the House of Representatives of a bill for the amendment of the Migration Act 1958 (Cth) ('the Act'). The bill is entitled the Migration Amendment (Duration of Detention) Bill 2003 (Cth) ('the Bill'). 6 Under the Bill, amendments would be made to s 196 of the Act by the insertion of a subsection to the effect that the detention contemplated by s 196 is to continue unless a court finally determines either that the detention is unlawful or that a person detained is not an unlawful non-citizen. The provision is to apply whether or not there is a real likelihood of the person detained being removed from Australia under s 198 or s 199, or deported under s 200, in the reasonably foreseeable future. That language is taken from the language of Merkel J in Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 192 ALR 609,as applied by the Full Court, as being circumstances that rendered continued detention unlawful. 7 The transitional provisions contemplated by the Bill, however, make clear that the proposed amendments, if made, would not affect the validity of any order made by a court before the commencement of the amendments. Counsel for the applicants raised, as a matter for concern, the possibility that, if the Bill were enacted, it would no longer be possible for the Court to vary the regime imposed by the orders of 17 April 2003. Clearly, the transitional provision in its currently proposed form would have the consequence that the amendments would not have any effect on the orders that I have already made. 8 I have heard brief argument on the question of whether the Court does have power to impose terms. Merkel J in Al Masri (at 622 [56]-[57]) observed that, upon the conclusion being reached that an applicant's detention is unlawful, it is clear that there is no discretion to refuse an order for release. However, the Court has power to make orders appropriate to the circumstances of a particular case. 9 Merkel J recognised the Minister's duty to remove an applicant under s 198; that duty remains extant even after release from detention. His Honour therefore considered that it was appropriate for the Court to make orders that the applicant in that case take steps to ensure that the Minister was able to be informed of his whereabouts and if circumstances change and the applicant's removal could be secured that the applicant take reasonable steps to facilitate his own removal. His Honour considered that such orders were appropriate to ensure that the orders made for the release of the applicant in that case both recognised and facilitated the continuing obligation of the Minister to remove him if he was able to do so. 10 Under s 23 of the Federal Court of Australia Act 1976 (Cth), the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. The Minister contends that that provision is wide enough to authorise the imposition of terms including a reporting regime as a condition of granting release. I do not consider that the matter is completely free from doubt. Further, there is no threat, at the moment, from the possible enactment of the Bill, that the regime that I have put in place could not continue. 11 In the circumstances, I am not persuaded to depart from the judgment that I reached earlier, that the interests of justice would be best served by deferring the making of final orders until the outcome of the application for special leave to appeal in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri has been determined. I am mindful of the fact that to do so simply involves avoiding the question of power. However, that is the very reason why I consider it is appropriate in the circumstances of this case to do so. Accordingly, I decline to proceed to final disposition of the proceeding. 12 It is therefore necessary for me to consider the application, brought in the alternative, to vary the reporting regime. The regime presently in place requires reporting in person on two week days each week and reporting by telephone on the other three week days in each week. There appears to have been some confusion as to whether that reporting is required at an office of the Minister's department or whether it can be effected at a police station. That is a matter of administrative detail that the parties should be able to resolve. The applicants have indicated that they are without assets or funds other than small and irregular charitable donations. They are not lawfully entitled to work or obtain social security. Travelling to report personally involves both expense and inconvenience. In the circumstances, I am disposed to vary the regime. 13 The regime presently in place is not specific as to which days of the week are to be days for reporting in person. I do not consider that the position of the Minister would be materially prejudicially affected if reporting in person were restricted to one week day per week, provided that there was telephone reporting on each of the other week days in each week. I therefore consider it is appropriate to vary the orders made on 17 April 2003 to impose that different regime. I will leave it to the parties to formulate orders that make clear that reporting may be at an office of the Minister's department or at a police station once appropriate arrangements have been made between the department and the State police authorities. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

NAGA v Minister for Immigration & Multicultural & Indigenous Affairs

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Judgment (18 paragraphs)

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Legislation Cited (2)

Cases Cited (4)