Qasim v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2003-12-22|Before: Branson J

INTRODUCTION 1 The applicant, who claims to be a national of India, has effectively been held in immigration detention since he arrived in Australia without a visa on 9 September 1998. His application for a protection visa was rejected by a delegate of the respondent and by the Refugee Review Tribunal. His application to this Court for judicial review of the decision of the Refugee Review Tribunal was dismissed by consent on 8 August 2000. By an application filed on 17 November 2003 he has sought a declaration that his detention is unlawful and an order directing the respondent to release him. 2 On 18 December 2003 I heard and thereafter dismissed an application for an order that the applicant be released from immigration detention pending the determination of his substantive application. I gave short ex tempore reasons for the dismissal of the application and indicated that if the applicant required written reasons, I would provide them. The Public Interest Advocacy Centre has now requested the provision of written reasons. The following are my reasons for dismissing the application for an interlocutory order that the applicant be released from immigration detention.

The authorities 3 The Court has power to grant interlocutory relief where there is a serious question to be tried regarding the lawfulness of the detention of an 'unlawful non-citizen' within the meaning of the Migration Act 1958 (Cth) ("the Act") (Minister for Immigration and Multicultural and Indigenous Affairs v VFAD [2002] FCAFC 390; (2002) 125 FCR 249). 4 In Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70;(2003) 197 ALR 241, it was held that the power to detain a person under the Act is subject to two limitations. First, the detention must be bona fide for the purpose of removal from Australia (see [135]). Secondly, the period of detention must not extend 'to a time where there is no real likelihood or prospect in the reasonably foreseeable future of a detained person being removed and thus released from detention' (see [155]).

the facts 5 The applicant arrived in Australia without any identification or other documents. He still has no documents which identify him. Without a travel document, the applicant cannot be removed from Australia. I am informed that no travel document will be issued to him unless and until his identity can be confirmed. Conversely, I am satisfied that if the applicant's identity as an Indian national can be confirmed, he will be issued with a travel document. 6 For some time the applicant declined to fill in an application form for an Indian passport. However, in September 2003 he filled out such a form. In doing so he gave his date of birth merely as '1974' (on other documents he has given a full date of birth) and failed to indicate the village in which he was born. He indicated on the form that he had studied unofficially and thus had no educational qualifications. He further indicated that he had never previously tried to obtain an Indian passport. The respondent criticised, as it seems to me with some justification, the quality of the handwriting on some parts of the form. The High Commission of India in Canberra indicated to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) that the form was not legible. 7 Nonetheless, it appears that the form has been provided to the Indian authorities and that attempts are being made by Indian authorities to identify the applicant. The Indian Ministry of Home Affairs on about 21 November 2003 (i.e. after the institution of this proceeding) advised an officer of DIMIA based in New Delhi that some cases, including the applicant's case, had been referred to the State Government. It has subsequently been learnt that "it will take a while to hear from their end."

Conclusion 8 The applicant did not contend that his detention is not bona fide for the purpose of removal. His application for an interlocutory order requiring his release from detention was based on the contention that there is a serious question to be tried that there is no real prospect in the reasonably foreseeable future of his being removed from Australia. 9 Practical difficulties that may be in the way of making arrangement for removal are to be taken into account (WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625 at [58] to [59]). However, a conclusion that there is no real likelihood or prospect of removal in the reasonably foreseeable future is one that will not be lightly reached (Al Masri at [175]). 10 The applicant has only relatively recently agreed to complete an application for an Indian passport. Since the institution of this proceeding advice has been received by DIMIA that inquiries concerning him are continuing in India. I see no reason to conclude, even on the basis of the limited information concerning the applicant that is presently available, that there is no real prospect that this will lead to the verification of the applicant's identity. As mentioned above, I am satisfied that if his identity can be verified he will be issued with a travel document by India. 11 Equally importantly, having heard the applicant cross-examined on the topic of his willingness to assist in the process of obtaining a travel document for him, I have formed the view that it is more likely than not that the applicant is in a position to provide additional information that would assist in the verification of his identity. On more than one occasion during his cross-examination the applicant made reference to not having been directly asked to provide certain information. I conclude that he has not considered it appropriate to date to volunteer information that might prove useful in establishing his identity. 12 It is not necessary for me to form a view as to whether the applicant has positively sought to frustrate attempts to obtain a travel document for him. I am satisfied that he has not volunteered all of the information in his possession that might assist in the verification of his identity. There is, I consider, a real prospect that, in the context of an appropriately structured and conducted interview, the applicant will disclose additional information which may allow his identity to be verified. I consider it appropriate to proceed on the basis that one consequence of this interlocutory application is that the applicant will be re-interviewed by an officer of DIMIA. 13 For the above reasons, I am not satisfied, even on an interlocutory basis, that there is no real likelihood or prospect of the applicant's removal from Australia in the reasonably foreseeable future. That is, in my view, the applicant has failed to indicate that there is a serious question to be tried that his present detention is unlawful. 14 For the above reasons, the applicant's application for an interlocutory order that he be released from immigration detention was dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Solicitor for the Applicant: Public Interest Advocacy Centre

Solicitor for the Respondent: Australian Government Solicitor

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