SHDB v Goodwin & Ors

REASONS FOR JUDGMENT 1 This application, brought under s 39B of the Judiciary Act 1903 (Cth), raises very similar issues to those considered in Action No S 19 of 2003, SHFB v Goodwin & Ors [2003] FCA 294 (SHFB). Judgment in that matter is being delivered at the same time as this judgment. Both applicant SHFB and the present applicant, SHDB, have previously brought proceedings in the Federal Court seeking writs in the nature of habeas corpus and declarations that they are being unlawfully detained by the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister). The applications in those matters were heard together by Selway J who dismissed them on 30 January 2003: SHFB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 29 and SHDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 30. 2 On 12 February 2003 SHFB and the present applicant, SHDB, issued fresh proceedings seeking prerogative relief against two officers of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) and the Minister. The first respondent, Philippa Goodwin, is the Deputy Secretary of DIMIA. The second respondent, Julie Helen Keenan, is the Acting Director of the Unauthorised Arrivals Section in the Unauthorised Arrivals and Detention Division of DIMIA. The third respondent is the Minister. 3 In these proceedings SHDB seeks the following orders: "A. A Declaration that the Applicant is unlawfully detained. B. A Writ in the nature of Mandamus directing the First respondent or her delegate to remove the Applicant from Australia within 21 days. C. A writ in the nature of Mandamus directing the Second Respondent or her delegate to remove the Applicant from Australia within 21 days. D. A writ in the nature of Mandamus directing the Second Respondent or her delegate to inquiry, within 2 days, with the United Nations Relief and Work Agency if the applicant was ever registered as a Palestinian Refugee with access to Jordanian travel documents, to facilitate the removal from Australia of the Applicant. E. A writ in the nature of Mandamus directing the Second Respondent to inquire, providing all the necessary information, within 2 days with the relevant authorities regarding the Applicant's eligibility for entry documents to Algeria to facilitate his removal from Australia. F. A writ in the nature of Mandamus directing the Second Respondent to inquire, providing all the necessary information, within 2 days, of both the Palestinian and the Israeli authorities, regarding the Applicant's eligibility for residency in Gaza to facilitate his removal from Australia. G. A writ in the nature of Mandamus directing the second respondent to make the appropriate inquiries, providing all the necessary information, of the Jordanian authorities within 2 days, of the applicants eligibility to reside in Jordan for the applicant to facilitate his removal from Australia. H. A writ in the nature of Mandamus directing the Second Respondent to inquire, providing all the necessary information, within 2 days with the relevant authorities regarding the Applicant's eligibility for entry documents to Syria to facilitate his removal from Australia. I. A writ in the nature of Mandamus directing the second respondent to make the appropriate inquiries, providing all the necessary information, of any authority within 2 days, of the applicants eligibility to reside in any third country to facilitate his removal from Australia. J. A writ in the nature of prohibition against the third respondent from continuing to detain the applicant if the first and second respondents are not able to remove the applicant from Australia within 28 days. K. A writ in the nature of Habeas Corpus releasing the Applicant from immigration detention. L. An order that the respondent pay the applicant's costs. M. Such other orders as the court thinks fit." 4 This matter, and the fresh proceedings by SHFB, were heard together, the same counsel appearing for each applicant. The same substantive arguments as to the construction of ss 189, 196 and 198 of the Migration Act 1958 (Cth) were advanced in support of the remedies sought. My reasons for rejecting the arguments are set out in the Reasons for Judgment in SHFB, and those Reasons should be read in conjunction with these Reasons. 5 SHDB claims to be a stateless Palestinian. He says he was born on 29 July 1976 in Kuwait of Palestinian parents and has lived most of his life in Kuwait, although he has also lived briefly in Jordan. He arrived in Australia in mid-December 2000 without a passport and was placed in immigration detention. On 6 January 2001 he lodged an application for a protection visa with DIMIA. On 22 February 2001 a delegate of the Minister refused to grant him a protection visa. On 28 February 2001 he applied for a review of that decision to the Refugee Review Tribunal. The Refugee Review Tribunal affirmed the decision of the delegate on 16 May 2001. He then applied for judicial review of that decision in this Court on 6 June 2001. The application was dismissed on 23 October 2001, and an appeal against that decision was dismissed on 21 May 2002. On 19 June 2002 SHDB indicated to DIMIA that he wished to leave Australia and return to "Kuwait, and if you cannot please send me to Gaza". On 30 August 2002 he signed a form addressed to the Minister whereby he advised that "I wish voluntarily to depart Australia, and ask the Minister to remove me from Australia as soon as reasonably practicable". 6 In support of the relief sought in this matter, SHDB filed an affidavit which in part responded to an affidavit filed by the second respondent in opposition to the relief sought against the Minister in the previous proceedings determined by Selway J. In the affidavit in those proceedings, the second respondent deposed that DIMIA considered SHDB might be eligible to obtain a visa or travel authority to enable his removal to Egypt, Kuwait or Palestine, and that his repatriation to Syria might be possible. The second respondent deposed that enquiries were still being pursued. To that end, high level enquiries had been made with at least one foreign government, but the outcome was not then known. At that time officers of DIMIA remained of the view that "[SHDB's] removal can still be achieved with the cooperation of the applicant". 7 In his affidavit SHDB also deposed to his belief, and reasons for that belief, that he is not eligible to obtain a visa or travel authorities for any of the countries referred to by the second respondent. 8 In these proceedings the second respondent gave affidavit and oral evidence of the progress of enquiries being pursued with third countries by DIMIA, including confidential evidence about further enquiries at a ministerial level. The possibility of enquiries with the United Nations High Commissioner for Refugees was mentioned. Ms Keenan's evidence, which I accept, explains why orders as sought in pars B and C of the relief could not be complied with. Paragraphs D and E of the relief claimed appear to apply to the situation of the other applicant SHFB, but in any event the second respondent deposes to having made unsuccessful enquiries about the removal of SHDB to the Palestinian territories. 9 The second respondent also deposed to having taken action so far as she is able in terms of par F of the relief claimed. In relation to the relief claimed in par G, she deposed that a DIMIA officer had undertaken enquiries with the Jordanian authorities even though, on the evidence of SHDB that he was illegally in Jordan, DIMIA considered the enquiry pointless. In relation to the relief claimed in par H, the second respondent gave reasons for her belief that enquiries of the kind described would be futile. In relation to the claim in par I, the second respondent said she remained unable to identify a third party to which SHDB could be removed in the time frame proposed. However, the possibility of removal in the future remained, and officers of DIMIA and the Minister were continuing to make enquiries. In this case, as in SHFB, I am not satisfied that DIMIA officers, including the second respondent, are not taking all reasonable steps to secure the removal from Australia of the applicant. However, I consider the evidence does establish that removal from Australia is not reasonably practicable at the present time as there is no real likelihood or prospect of removal in the reasonably foreseeable future. 10 For the reasons given in SHFB, I do not consider that this conclusion entitles the applicant to the relief claimed in pars A, J or K of the application. Further, I do not consider that the applicant is entitled to relief in the nature of a writ of mandamus against the first or the second respondent. 11 The application should be dismissed, and costs should follow that event. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa .