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Federal Court of Australia |
Last Updated: 3 June 2004
FEDERAL COURT OF AUSTRALIA
B v The Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] FCA 699
IMMIGRATION – detention of unlawful non-citizens –
children – whether children should be detained – in what
circumstances
children should be detained – injunction – serious
question – balance of convenience – inappropriate
orders.
Judiciary Act 1903 (Cth)
Migration Act 1958
(Cth)
Immigration (Guardianship of Children) Act 1946
(Cth)
Re Minister for Immigration and Multicultural and Indigenous
Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441
cited
Minister for Immigration and Multicultural and Indigenous Affairs v
B & Anor [2004] HCA 20 cited
Al Khafaji v Minister for
Immigration and Multicultural and Indigenous Affairs [2002] FCA 1369
cited
Minister for Immigration and Multicultural and Indigenous Affairs v
Al Masri [2003] FCAFC 70; (2003) 197 ALR 241 cited
Castlemaine Tooheys Ltd v South
Australia [1986] HCA 58; (1986) 161 CLR 148 applied
Australian Capital Television Pty
Ltd v The Commonwealth [1992] HCA 1; (1992) 66 ALJR 214 cited
Chu Kheng Lim v The
Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992)
176 CLR 1 followed
NAMU of 2002 and Others v Minister for Immigration
and Multicultural and Indigenous Affairs [2002] FCAFC 401; (2002) 124 FCR 589 cited
SPKB
v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1116 cited
SPKB v Minister for Immigration and Multicultural and
Indigenous Affairs [2003] FCA 296 cited
Williams v The Queen [1987] HCA 36;
(1986) 161 CLR 278 cited
SHMB v Goodwin [2003] FCA 1053
cited
SHMB v Goodwin (No 2) [2003] FCA 1171 cited
B
& ORS by their next friend RB v THE SECRETARY, DEPARTMENT OF IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS and AMANDA
VANSTONE; THE MINISTER FOR
IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
S 82 of
2004
LANDER J
3 JUNE 2004
ADELAIDE
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B & ORS
By their next friend RB APPLICANTS |
|
|
AND:
|
THE SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND
INDIGENOUS AFFAIRS
FIRST RESPONDENT AMANDA VANSTONE, THE MINISTER OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT |
|
DATE OF ORDER:
|
3 JUNE 2004
|
|
WHERE MADE:
|
THE COURT ORDERS
THAT:
1. The application for the
interlocutory injunctions is
dismissed.
Note: Settlement and
entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
|
|
|
S 82 OF 2004
|
|
B & ORS
By their next friend RB APPLICANTS |
|
|
AND:
|
REASONS FOR JUDGMENT
1 On 29 April 2004, the applicants, who are all minors, issued an application pursuant to s 39B of the Judiciary Act 1903 (Cth) in which they sought the following orders:
‘1. The Applicants seek a Writ of prohibition, or alternatively an injunction be granted prohibiting and/or restraining the First Respondent whether by himself, his servants, his agents or howsoever otherwise, from taking any steps to detain the Applicants.
2. The Applicants seek a Writ of prohibition, or alternatively an injunction be granted prohibiting and/or restraining the Second Respondent whether by herself, her servants, her agents or howsoever otherwise, from taking any steps to detain the Applicants.’
The application contained details of the applicants’ claim to which I will refer later in these reasons.
2 The applicants are all children aged 15, 14, 12, 10 and 7 years. They are all unlawful non-citizens as defined in ss 4 and 14 of the Migration Act 1958 (Cth) (the Act).
3 The applicants’ father entered Australia unlawfully by boat on about 22 October 1999.
4 He was detained in immigration detention. On 29 May 2000 he applied for a protection visa claiming that he was an Afghani national. His claim was accepted at that time and a temporary protection visa issued on 3 August 2000. He was released from immigration detention.
5 The applicants’ mother, who is also in immigration detention, but not at the Baxter Detention Centre, entered Australia unlawfully by boat with the applicants on 1 January 2001. They were taken into immigration detention at the Woomera Detention Centre. On 21 February 2001 she applied for a protection visa for herself and for the five applicants, which was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) on 22 May 2001, principally on the ground that she was not an Afghani national but a national of Pakistan. She applied to the Refugee Review Tribunal (RRT) for a review of the delegate’s decision, but the delegate’s decision was affirmed by the RRT on 26 July 2001.
6 In September 2001 the applicants’ mother applied to the then Minister requesting that he exercise his discretion under s 417 of the Act to substitute a more favourable decision for that of the RRT. On 21 March 2002 the Minister declined to exercise his discretion in the applicants’ mother’s favour. The applicants’ mother was notified of the Minister’s decision by letter dated 2 April 2002.
7 On 9 April 2002 the applicants’ mother applied to the High Court of Australia seeking a review of the RRT’s decision affirming the Minister’s delegate’s decision not to grant a protection visa and a review of the Minister’s decision not to exercise his discretion under s 417 of the Act. On 11 June 2002 Gaudron J granted an order nisi calling upon the Minister to show cause why the constitutional writs should not issue in respect of both decisions. On 4 February 2003 the order nisi was discharged.
8 In the meantime, on 12 April 2001, ‘as a consequence of receiving information that [the applicants’ father] was not an Afghan farmer, as he had claimed, but rather a plumber and electrician from Quetta, Pakistan’, the applicants’ father was issued with a notice of intention to consider cancellation of his visa.
9 On 26 April 2002 the applicants’ mother made another request for the Minister to substitute a more favourable decision for the decision of the RRT. The applicants’ mother was informed that the Minister usually did not consider exercising the power under s 417 whilst litigation was pending. By then, as the chronology shows, the applicants’ mother had sought a review by the High Court of the two decisions to which I have referred.
10 On 27 June 2002 the two eldest applicants, with a number of other persons, escaped from the immigration detention centre at Woomera. On 18 July 2002 the two eldest applicants sought asylum at the British Consulate in Melbourne but that was refused. On 19 July 2002 they were returned to immigration detention at Woomera.
11 Two days before the two eldest applicants returned to immigration detention, the applicants’ mother made yet another application under s 417 but was again informed that such matters were generally not considered whilst litigation was pending.
12 On 31 July 2002, whilst the applicants’ mother and the applicants were detained at the Baxter Detention Centre, the two male applicants applied to the Family Court for an order that the second respondent release them from immigration detention. That application was dismissed by Dawe J on 9 October 2002.
13 The applicants’ father brought proceedings against the Department to compel the Department to release details to him of the Department’s claim that his visa had been fraudulently obtained. On 30 August 2002 the Department informed the applicants’ father of additional information obtained in relation to his identity and nationality. He was advised that there was an application by him for Pakistani identification documentation in 1975 and family registration documents of 1973 and 1982 listing his birthplace, citizenship and permanent residence as Pakistan. Other information was supplied.
14 On 4 December 2002 the applicants’ father’s visa was cancelled and he was taken into immigration detention at Villawood. His visa was cancelled because it was concluded he was not Afghani as claimed but a Pakistan national.
15 On the same day, the applicants’ father applied to the RRT for a review of that decision and a bridging visa pending determination by the RRT of his application for a protection visa. The application for the bridging visa was refused on 9 December 2002.
16 In early January 2003 the applicants and their mother were transferred to the Baxter Detention Centre. The applicants’ father was transferred from Villawood to the same place on 13 January 2003.
17 On 4 February 2003 the High Court discharged the order nisi: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441. The Court found that the RRT decision was not tainted by jurisdictional error. It held that the applicants’ mother was not entitled to any other relief.
18 On 4 March 2003 the RRT affirmed the decision to cancel the applicants’ father’s temporary protection visa.
19 On 27 March 2003 the applicants’ father applied to this Court for a review of the RRT’s decision. On 22 May 2003 Selway J dismissed that application. The applicants’ father has appealed to the Full Court of this Court.
20 The two male applicants appealed to the Full Court of the Family Court from the decision of Dawe J. Leave was given to the three female applicants to be joined as appellants. The applicants’ father also appealed.
21 On 11 June 2003 the applicants’ mother and the three youngest children were transferred to the Woomera Residential Housing Project. The two eldest applicant boys remained with their father.
22 On 19 June 2003 the Full Court of the Family Court allowed the applicants’ appeals and remitted the applicants’ applications to a judge of the Family Court for hearing.
23 The matter was heard by Strickland J who, on 5 August 2003, refused the five applicants’ applications. A further appeal was brought to the Full Court of the Family Court and the appeal was allowed on 25 August 2003. The applicants were released from immigration detention that day.
24 The Family Court granted a certificate, pursuant to s 95(b) of the Family Law Act 1975 (Cth), giving the Minister a right of appeal to the High Court on the ground that ‘the case involved an important question of law or of public interest’.
25 On 29 April 2004 the High Court unanimously allowed the appeal and set aside the orders of the Full Court of the Family Court releasing the applicants from detention and, in lieu thereof, ordered that the appeal to the Full Court of the Family Court be dismissed: Minister for Immigration and Multicultural and Indigenous Affairs v B & Anor [2004] HCA 20.
26 At the time of the High Court decision the applicants were not, in fact, in immigration detention. They were in the general community being cared for by Centacare Catholic Family Services. They were attending schools in the Adelaide metropolitan area.
27 The High Court decision given on 29 April 2004 meant that the applicants were liable to be detained pursuant to s 189 of the Act.
28 Section 189(1) provides:
‘189 Detention of unlawful non-citizens
(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.’
29 Section 189(1) obliges an officer, who knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, to detain the person. The applicants have been in the migration zone and have been unlawful non-citizens since they arrived in Australia by boat. All officers, therefore, who know that and know them, must detain the applicants.
30 An ‘officer’ is defined in s 5 of the Act as:
‘(a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or
(b) a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or
(c) a person who is a protective service officer for the purposes of the Australian Protective Service Act 1987, other than such a person specified by the Minister in writing for the purposes of this paragraph; or
(d) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or
(e) a member of the police force of an external Territory; or
(f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or
(g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.’
31 There are persons who are not under the control and direction of the Minister or the Secretary who are ‘officers’. For example, a member of the police force of a State is an officer for the purpose of the Act and is thereby obliged to detain any persons who he/she knows or reasonably suspects to be unlawful non-citizens. However, the Minister cannot instruct the officer in the performance of that police officer’s duty.
32 The Minister can authorise any person to be an officer for the purposes of the Act provided that the authorisation is in writing.
33 If the applicants are detained, s 196(1) of the Act provides that they must be kept in immigration detention until the applicants are:
‘(a) removed from Australia under section 198 or 199; or
(b) deported under section 200; or
(c) granted a visa.’
34 Subsections (2) and (3) of s 196 provide:
‘(2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa.’
35 Subsection (4) of s 196 has no application to this matter.
36 Therefore, if the applicants are detained pursuant to s 189(1), they are liable to remain in immigration detention until one of three matters in s 196(1) occurs.
37 Section 196(2) does not prevent a court releasing a citizen or a lawful non-citizen from immigration detention. Section 196(2) has no application to these applicants, or their parents, because they are all unlawful non-citizens.
38 Section 196(3) purports to preclude a court from releasing an unlawful non-citizen from detention other than for a purpose in s 196(1) unless the unlawful non-citizen has been granted a visa.
39 In this case, the applicants are unlawful non-citizens and do not have visas and s 196(3) would, on the face of it, preclude this Court from releasing them from any form of immigration detention, except if they were being removed from Australia under s 198 and, in particular, s 198(6).
40 Section 198 obliges officers to remove unlawful non-citizens from Australia whose applications for visas have been finally determined: s 198(6).
41 The applicants’ mother’s application for a visa has been finally determined. She has exhausted all her legal rights. She and the applicants are, therefore, liable to be removed from Australia pursuant to s 198(6) of the Act.
42 The applicants’ father’s appeal to the Full Court of this Court has not yet been heard. He would argue that his application for a visa has not been finally determined: s 5(9). I do not need to decide that matter.
43 Apart from the appeal from Selway J’s decision, I have been told that on 22 December 2003 the applicants’ father applied for special leave to appeal to the High Court in some other proceeding. It is not clear to me from what order special leave is sought. Mr Abbott QC, who appeared for the applicants, but not their father, said it related to a claim by the applicants’ father for the release of documents which are relevant to his nationality.
44 ‘Immigration detention’ is defined as:
‘(a) being in the company of, and restrained by:
(i) an officer; or
(ii) in relation to a particular detainee--another person directed by the Secretary to accompany and restrain the detainee; or
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii) in a police station or watch house; or
(iv) in relation to a non-citizen who is prevented, under section 249, from leaving a vessel--on that vessel; or
(v) in another place approved by the Minister in writing;
but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).’
45 Immigration detention includes holding an unlawful non-citizen by or on behalf of an officer in any place approved by the Minister in writing.
46 The Minister can approve any premises as ‘immigration detention’.
47 When the matter first came before me, immediately after the High Court handed down its decision, the applicants were being cared for by Dale West of Centacare Catholic Family Services in suburban premises in Adelaide. Their mother was then in immigration detention in Adelaide in a motel. Her detention is an example of the power of the Minister to approve a place as ‘immigration detention’. The applicants’ mother cares for her sixth child, who is approximately six months old, and who was born in Australia. Apparently, the applicants’ mother claims that the child is an Australian citizen. I think there are proceedings on foot in relation to that child’s status.
48 At that time, the applicants visited their mother regularly. Moreover, from time to time, the applicants’ father was brought from the Baxter Detention Centre to visit his children.
49 The applicants’ original application was for an interlocutory injunction restraining the respondents from taking any steps to detain the applicants whilst the High Court considered a challenge to the validity of ss 189 and 196 of the Act. I was then told by Mr Moore, the applicants’ solicitor, that the High Court had reserved judgment in a matter Re Woolley & Anor; Ex parte Applicants M276/2003 in which the validity of ss 189 and 196 was challenged. I have also been told that the High Court has reserved judgment in another matter in which the construction of s 198 was argued: see Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji; Ex parte Attorney-General (Cth); Al Khafaji v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1369.
50 Mr Moore asked me to continue the then present de facto arrangements and restrain the two respondents from taking any steps to detain the applicants or to take the applicants into detention.
51 The matter first came before me on 29 April 2004, the day the High Court gave its decision. The matter was adjourned until the next day so that further evidence could be presented. During the overnight adjournment, the Minister took steps to place the applicants in immigration detention. The Minister approved the premises at which the children were living ‘as a place approved in writing’: s 5(1). She directed the carers of the applicants to accompany and restrain the applicants whenever they were outside the approved premises: s 5(1). She also approved the applicants’ schools as approved places and directed the applicants’ teachers to accompany and restrain the applicants whilst inside the school premises: s 5(1).
52 The action taken by the Minister’s officer had the effect of placing the applicants in immigration detention whilst still preserving their existing lifestyle. However, the action taken frustrated the applicants’ proceedings not to be returned to immigration detention, because the Minister had already taken them into immigration detention whilst their application was being considered.
53 The matter came on again on 4 May 2004 when the applicants sought a longer adjournment to consider their position. The matter was adjourned until 26 May 2004. On that day the applicants, in response to the Minister’s actions, sought to amend their application. There was no opposition to leave being granted and I gave leave to amend. The applicants now seek the following orders:
‘1. The Applicants seek a Writ of prohibition, or alternatively that an injunction be granted prohibiting and/or restraining the First Respondent whether by himself, his servants, his agents, and/or officers within the meaning of The Migration Act under the control of the Respondents or howsoever otherwise, from detaining the Applicants or holding the Applicants in migration detention or taking any steps to detain the Applicants.
2. The Applicants seek a Writ of prohibition, or alternatively that an injunction be granted prohibiting and/or restraining the Second Respondent whether by herself, her servants, her agents, and/or officers within the meaning of the Migration Act under control of the Respondents or howsoever otherwise, from detaining the Applicants or holding the Applicants in migration detention or taking any steps to detain the Applicants.
3. That the First and Second Respondents and each of them do show cause as to why a writ in the nature of Habeas Corpus should not issue directed to the First and Second Respondents ordering the release from detention of the Applicants.’
54 They also seek the following interlocutory relief:
1. Interim injunction restraining the First Respondent whether by himself, his servants, his agents, and/or officers within the meaning of the Migration Act under the control of the Respondents or howsoever otherwise, from detaining the Applicants or holding the Applicants in migration detention or taking any steps to detain the Applicants.
2. Interim injunction restraining the Second Respondent whether by herself, her servants, her agents, and/or officers within the meaning of the Migration Act under the control of the Respondents or howsoever otherwise, from detaining the Applicants or holding the Applicants in migration detention or taking any steps to detain the Applicants.
3. Such further or other Order as the Court deems fit.’
55 Mr Abbott then presented his argument in support of the amended application. At the conclusion of his argument, he sought an adjournment of the matter to enable further evidence to be adduced on the question of the balance of convenience. The respondent did not consent or object to the adjournment. The matter was adjourned until 28 May 2004.
56 The claim is for an interim injunction but I think that to be a mistake. The applicants seek an interlocutory injunction pending the hearing of the substantive matter. The particulars given for both the substantive and interlocutory relief are the same. It is asserted that the applicants are being detained without lawful authority. It is claimed that the applicants’ detention ‘has become indefinite in that there is no real likelihood or prospect of the removal of the Applicants from Australia in the reasonable foreseeable future’. It is argued that, to the extent that ss 189 or 196 of the Act, or any other provision of the Act purports to authorise the detention of the applicants, those sections are beyond constitutional power and are invalid. Essentially, the applicants rely upon the same grounds for an order removing them from immigration detention as they did for restraining those who would have placed them in immigration detention.
57 The applicants have recognised the need to give notices under s 78B of the Judiciary Act, which were apparently given on 20 May 2004. The notices only call into question the validity of s 196 of the Act, not s 189. Mr Abbott thought there might have been an accidental omission of reference to s 189.
58 I am asked to make the interlocutory orders to which I have referred pending the hearing of the substantive matter. The substantive matter will include a challenge to the validity of at least s 196 and, perhaps, s 189. The substantive claim will include a claim that the applicants are entitled to be released from immigration detention, because their detention has become indefinite and there is no reasonable prospect that they will be released from detention in the foreseeable future by way of removal under s 198: Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 197 ALR 241. I think, although it is not clear, that the applicants will also argue that the Constitution does not permit the detention of children.
59 The applicants relied upon their solicitor’s affidavit, sworn on 24 May 2004, in which he says that the applicants do not seek to rely upon matters under or involving the interpretation of the Constitution for the purposes of seeking the interlocutory orders. I do not have to consider any argument which calls into question the validity of any section of the Act.
60 For the following reasons, I think it was appropriate for the applicants to proceed on that basis on this interlocutory application.
61 First, an enactment of the legislature is presumed valid until shown to be invalid: Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 1; (1992) 66 ALJR 214 per Mason CJ at 217. In Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 155-156, Mason ACJ said, in considering an application for an interlocutory injunction:
‘In the absence of compelling grounds, it is the duty of the Court to respect, indeed to defer to, the enactment of the legislature until that enactment is adjudged ultra vires.’
62 Secondly, the validity of a repealed section of the Act, which was in like terms to s 189, was considered by the High Court in Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1. In that case, the High Court held s 54L of the Act to be a valid enactment. Thus, there is High Court authority which supports the validity of s 189.
63 In the same case, the High Court held s 54R, which was in unlike terms to s 196, to be invalid. However, the validity of s 196 has been considered by the Full Court of the Federal Court in NAMU of 2002 and Others v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 401; (2002) 124 FCR 589. In that case, the Full Court discussed the differences between the repealed s 54R, which was held to be invalid by the High Court, and s 196, and held s 196 to be a valid exercise of power by the Parliament. In that case, and in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri at [33], the Full Court held that s 196(3) was valid.
64 I understand that in Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji there was no challenge to the validity of s 198. The decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri was, apparently, the subject matter of the appeal to the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji but no decision has yet been given.
65 In Minister for Immigration and Multicultural and Indigenous Affairs v B & Anor, which reversed the decision of the Full Court of the Family Court releasing these applicants from detention, Kirby J said that ss 189 and 196 of the Act are valid and must be obeyed.
66 Therefore, it could not be said that, on the law, as it presently stands, there is any serious question to be tried on the question of the validity of those sections of the Act.
67 The applicants, however, have not relied upon the invalidity of any sections of the Act for the purpose of this application for interlocutory injunctions. Rather, they have relied upon the decision of the Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri.
68 In that case, the respondent was a Palestinian from the Gaza Strip. He arrived unlawfully in Australia on or about 5 June 2001. As such, he was an unlawful non-citizen and was placed in detention in the Woomera Detention Centre. On 2 July 2001 he lodged an application for a protection visa claiming to be a refugee. A delegate of the Minister refused to grant Mr Al Masri a protection visa. On 5 December 2001 the RRT affirmed the delegate’s decision. Mr Al Masri did not challenge the decision of the RRT. Instead, he signed a written request, directed to the Minister, seeking to be returned to the Gaza Strip. On 18 February 2002 he was advised that arrangements had been made for his departure but he was later informed that the Department was unable to return him to Palestine or the Gaza Strip because the Department could not obtain permission for his entry. There was evidence before the primary judge that Mr Al Masri made repeated enquiries between the date of signing his application to be returned to the Gaza Strip and 15 August 2002, when the primary judge delivered judgment.
69 On 21 May 2002 Mr Al Masri commenced proceedings in the Court seeking an order in the nature of habeas corpus for release from immigration detention.
70 The primary judge held that the power to detain under the Act was impliedly limited to such time whilst the Minister was taking all reasonable steps to secure the person’s removal from Australia as soon as is reasonably practicable. He held that the removal of a person from Australia is reasonably practicable where there is a real likelihood or prospect of removal in the reasonably foreseeable future.
71 The Minister appealed to the Full Court. That Court held that the Minister’s purpose in detaining under s 196 must be for one of the reasons contained in s 196(1). In this case, the purpose must be for removing the applicants from Australia under s 198. Secondly, the power to detain under s 196 must be limited to where there is a real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future. Essentially, the Full Court upheld the decision of the primary judge.
72 The applicants have argued that, in this case, their removal is not reasonably practicable because there is no real likelihood or prospect of removal in the reasonably foreseeable future. They argued that, in those circumstances, they should be released from detention.
73 In support of that submission, the applicants have pointed to matters deposed to by the applicants’ solicitor. He has deposed:
’13. It is likely that [the applicants’ father’s] litigation will continue into the indefinite future. I have been informed my [sic] Mr Paul Ignations [sic] Boylan, the solicitor for [the applicants’ father] that [the applicants’ father] has on-going litigation and in particular:
13.1 [The applicants’ father] has applied for special leave to appeal in the High Court, by application of 22 December. [The applicants’ father’s] pseudonym in the High Court is "SHJB". The Reply document in the special leave application was filed on 13 April 2004, and the Second Respondent has sought leave to file a further written submission before the settling of the appeal book. It is estimated that the special leave application will be heard in mid to late 2005, given the current state of the High Court list. If [the applicants’ father] is successful, in the High Court, there will be further proceedings in the Refugee Review Tribunal;
13.2 [The applicants’ father] is also the appellant in litigation before the Full Court of the Federal Court in an appeal from Selway J. The father’s pseudonym in this litigation is "STKB". It is anticipated that argument on the appeal will take place in approximately three (3) months’ time. Further, it is likely that whatever the outcome in the Full Federal Court appeal, the loosing [sic] party will seek special leave to appeal in the High Court. It is estimated that such a leave hearing in the High Court would be in the latter part of 2005. If leave is obtained in the High Court, it is likely that there would be at least an extra year from the time of any grant of special leave before the Father’s litigation in the High Court is finally resolved, and if successful the matter would probably be remitted to the RRT.
14. I am instructed that at all material times the Applicants’ parents claim to have escaped from Afghanistan, and have at all material times sought asylum in Australia. [The applicants’ mother] has declined and refuses voluntarily to leave Australia. She has not permitted her children (including the Applicants) to be removed from Australia, and repatriated to either Afghanistan (which the parents allege is their home), or Pakistan (which is where the government alleges is their home).
15. I am informed by Mr Paul Ignatious Boylan and believe that at all material times [the applicants’ father] has been unwilling to consent to him or his children being removed to Pakistan and/or Afghanistan, which situation is likely [to] continue indefinitely into the future.
16. The Applicants are each below the age of majority, and I refer to paragraph 10 of my earlier affidavit.
17. In summary, the length of the Applicants’ detention is:
17.1 Solely dependent upon government policy and the government’s attitude to [the applicants’ father’s] case;
17.2 Is likely to be indefinite, at least insofar as one can ascertain at this stage.
18. It is the Applicant’s [sic] case that on-going detention is unlawful:
18.1 As being indefinite executive detention unrelated to the processing of migration status, or the removal of the Applicants from Australia; and/or
18.2 By virtue of the principle in Minister for Immigration v. Al Masri.’
74 The applicants’ argument is that their father will not co-operate in their removal whilst he has litigation pending in the Federal Court and in the High Court. Their mother will not co-operate in their removal, in any event.
75 The respondents relied on the affidavit of James Robert Williams, Assistant Secretary in the Unauthorised Arrivals and Detention Operations Branch of the Unauthorised Arrivals and Detention Division, sworn on 26 May 2004. The applicants did not seek to cross-examine Mr Williams on his affidavit. I can proceed on the basis that his evidence is not disputed. He deposed:
‘7. I have read the affidavit of Jeremy James Moore of 24 May 2004 filed in these proceedings. In paragraphs 11 and 12 of that affidavit, Mr Moore asserts that it is DIMIA policy not to remove the applicants and their next friend while the applicant’s [sic] father, Mr [B] has ongoing litigation. This is not DIMIA policy. The removal of the applicants and their next friend will take place in accordance with the Act, namely as soon as it is reasonably practicable to do so.
8. DIMIA is currently considering the practicability of removing the applicant [sic] and their next friend from Australia in light of a number of different factors, including extant High Court litigation involving Master [B], the effect (if any) of the United Nations Human Rights Committee opinion annexed to Mr Moore’s affidavit at JJM3, and the lack of cooperation shown by the next friend to date in obtaining Pakistani travel documentation. At the time of swearing this affidavit, I have not formed a concluded view as to whether or not it is currently practicable to remove the applicants and their next friend from Australia.
9. Were the applicants’ next friend to request in writing for her and the applicants to be removed from Australia in accordance with sub-section 198(1) of the Act, take appropriate steps in relation to Master [B’s] litigation to give effect to any such request, and cooperate with DIMIA’s attempts to obtain a Pakistani travel document, it would not be necessary for DIMIA to consider the effect of the issues referred to above at paragraph 8 on the practicability of removing the applicants and their next friend.
10. My duties nevertheless require me to consider and make contingent arrangements for the removal of the applicants and their next friend in the event that I, or my superiors, form the view that it is presently practicable to remove the applicants and their next friend notwithstanding the issues identified above at para 8 or upon circumstances materially changing so that it is plainly practicable to remove the applicants and their next friend. In doing so, I have formed the view that the removal of the applicants and their next friend from Australia could be effected within a very short space of time, particularly if the applicants’ next friend were to cooperate with DIMIA’s attempts to obtain Pakistani travel documentation.
...
13. The information before me therefore indicates that the applicants and their next friend are entitled to Pakistani travel documents which would enable them to depart Australia and enter Pakistan. I am of the view that were the applicants’ next friend to obtain Pakistani travel documents for herself and the applicants they could be removed from Australia as soon as the Pakistani travel documents were obtained and suitable travel arrangements could be made. I am aware that there are regular connecting air services between Australia and Pakistan.
14. I am of the opinion that there is a real prospect of removing the applicants and their next friend from Australia in a very short period of time should the applicants’ next friend cooperate and obtain Pakistani travel documentation.
...
16. Removal without the cooperation of the applicants’ next friend in obtaining Pakistani travel documentation for herself and the applicants is less convenient than removal with Pakistani travel documentation obtained on application by the applicants’ next friend. There is also an element of uncertainty is [sic] effecting entry into Pakistan in this way as it is unusual. Other factors, such as Australia’s bilateral relationship with Pakistan may also lead me to conclude that such an attempt should not be made, or should only be made at a particular time. However, as DIMIA has been able to effect entry of an unlawful non-citizen into Pakistan in this manner previously, I am of the view that there is nevertheless a real prospect of any such attempt being successful should it be attempted.
17. DIMIA would prefer to remove the applicants and their next friend from Australia using Pakistani travel documents obtained by the applicants’ next friend.’
76 I think it uncontroversial that if the applicants’ mother co-operated the applicants could be released from immigration detention.
77 The applicants say that, because of the litigation pending and their parents’ attitude generally, their detention is likely to be indefinite.
78 There is no question about the ability of the Minister or an officer to remove the applicants and their parents to Pakistan. On 11 December 2003 the Deputy High Commissioner for Pakistan wrote:
‘Ms Karen Dundas
Removals Policy and Operations,
Department of Immigration and Multicultural and Indigenous Affairs,
Belconnen, Canberra
ACT 2617
Subject: Visas on Certificate of Identity: [Mr. B] and family.
Dear Ms. Dundas,
Please refer to Ms. Julie Keenan letter dated 10 December, 2003 on the above subject.
2. The national status of [Mr. B] has already been verified. He is Pakistan national and does not require any visa to enter Pakistan. His following family members, being Pakistan nationals, also do not require visa to enter Pakistan.
1. [B] wife
2. [B] son
3. [B] son
4. [B] daughter
5. [B] daughter
6. [B] daughter.’
79 On 6 February 2004 he wrote:
‘Dear Narelle Lee,
Reference your fax message of today regarding confirmation of the national status of [Mr. B’s] son master [B], who was borne [sic] in Australia on 15th October 2003.
2. As per the citizenship Act of Government of Pakistan, any child borne [sic] out of Pakistani parent abroad is considered a Pakistan national. Accordingly, it is confirmed that master [B] is a Pakistan national.
3. Hope this will serve the purpose.
With best regards.
Yours sincerely,
(signed)
(Muhammad Sarfraz A. Khanzada)
Deputy High Commissioner
Narelle Lee,
Removals Police and Operations
Department of Immigration and
Multicultural and Indigenous Affairs,
North Building,
Chan Street Belconnen
Canberra ACT 2617’
80 This is not then a case where the applicants cannot return to their country of nationality, nor is it a case where the applicants’ parents or younger sibling cannot return. The applicants and their parents are not stateless persons.
81 If the applicants’ mother co-operated, she and the applicants could be returned to Pakistan, which has claimed them as its own. The same result would also ensue if the applicants’ father co-operated.
82 This is a markedly different case to Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri. In that case, Mr Al Masri wanted to be removed from Australia and requested the authorities remove him pursuant to s 198(1) of the Act.
83 The question then is whether the applicants are entitled to be released from immigration detention in circumstances where their release depends upon their parents’ refusal to co-operate with the authorities and where their parents refuse to leave a country which has no protection obligations towards them.
84 In Minister for Immigration and Multicultural Affairs v Al Masri, the Court adverted to a factual situation where the person who is liable to be removed frustrated the process of removal. The Court said, at [137]:
‘We should add that we do not intend our observations to give any support to a contention that a person who has made a request in writing under s 198(1), might by their own act in frustrating the process of removal, make their continued detention unlawful. For the purposes of the implied limitation, if such a person were, for example, to refuse to sign a consent required by a country otherwise prepared to take him, that person would not (ordinarily at least) be held in circumstances where there was no reasonable likelihood of his removal.’
85 That dictum would seem to prevent the applicants’ mother from claiming the benefit of the Al Masri decision. She has refused to co-operate in her removal and, in those circumstances, would seem to be not entitled to argue that her continued detention is unlawful. If that is right, and she continues to refuse to co-operate, she faces indefinite detention. In SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1116 at [98]- [99], I said:
‘ In Al Masri the Full Court determined that the Minister’s purpose in detaining a detainee must be for the removal of that detainee otherwise the detention would be unlawful: Al Masri at 272. Moreover, the Minister could only detain to effect a removal as soon as "reasonably practicable". In those circumstances there must be "a real likelihood or prospect of the removal of a person from Australia in the reasonably foreseeable future": Al Masri at 272.
In determining whether there is a real likelihood or prospect of removal regard must be had to the applicant’s cooperation in effecting that removal. It is only if the applicant is prepared to cooperate that the implied limitation that the detention can only continue where there is a real likelihood or prospect of removal of the person from Australia exists.’
86 I then referred to the dicta in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri at [37], cited above, and said at [100]-[101]:
‘ The Full Court said at 281 that 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.
In my opinion the applicant is not entitled to make his cooperation for removal to Iraq conditional upon obtaining the Minister’s assurance about his safety or having the Minister first determine that he is not a refugee.’
87 That decision was approved by the Full Court in SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 296.
88 However, in this case, the applicants are children. Their removal is being frustrated by their mother and may, in future, be frustrated by their father. They say that they do not have the power to instruct their parents as to how they should behave. There is no evidence that the applicants themselves are doing anything to frustrate their removal from Australia.
89 The purpose of an interlocutory injunction is to maintain the status quo so that the state of affairs, which existed before the issue of the proceedings, is preserved pending the disposal of the proceedings. The orders sought on this application would not preserve the status quo immediately before the amended proceeding was filed, but would reverse the status quo.
90 However, the applicants, rightly, point to the events which occurred during the hearing of the original application. During that time, the Minister, without notice, altered the status quo. The status quo in this case should be considered to be the applicants’ status when the High Court gave its decision. The High Court discharged the orders made by the Full Court of the Family Court which had ordered that the applicants be released from immigration detention until the final hearing of their applications for release from detention. The High Court decided that the orders were made without jurisdiction.
91 The High Court order did not mean that the applicants immediately reverted to being in immigration detention. Whether or not a person is in immigration detention is a factual matter. It can be inferred from the facts that when the order was made the applicants were not in immigration detention. They were not in the company of, or being restrained by an officer, or being held by an officer within the meaning of the definition of ‘immigration detention’ in s 5(1) of the Act.
92 They were still unlawful non-citizens. The orders of the Family Court had never purported to change their status in that regard.
93 When the High Court order was made, the applicants became liable to be detained under s 189 of the Act and liable to be kept in detention until one of the events occurred under s 196(1).
94 When the original application was made to me, the applicants were unlawful non-citizens who were not in immigration detention. That was the status quo the applicants sought to preserve on this amended application.
95 On an application for an interlocutory injunction, it is necessary for the applicants to show that there is a serious question to be tried, in the sense that at the trial of the action there is a probability that the applicants will be entitled to relief; that the applicants are likely to suffer irreparable harm; and that the balance of convenience favours the making of orders: Castlemaine Tooheys Ltd v South Australia at 153. The serious question to be tried does not depend upon the invalidity of any sections of the Act. The applicants assume the validity of the sections for the purpose of this application. The applicants claim that, by reason of their parents’ conduct, their detention has become indefinite. They say that there are no prospects of the respondents or their officers removing the applicants from Australia without their parents. Their parents will not co-operate. Moreover, the applicants argue that, because of their age, they cannot apply under s 198(1) to be removed. Therefore, they will remain in immigration detention indefinitely. Therefore, there is a serious question to be tried.
96 It was not disputed that I had power to make an order in the nature of an injunction, if the applicants were able to establish that there was a serious question to be tried and the balance of convenience favoured such an order: Minister for Immigration and Multicultural and Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390; (2002) 196 ALR 111 at [104] et seq. Specifically, the respondents did not argue that s 196(3) precluded the making of such an order. On the state of the law as it stands, the approach taken by the respondents was correct: Minister for Immigration and Multicultural and Indigenous Affairs v VFAD of 2002 at [142].
97 The respondents argued that there was no serious question to be tried. The applicants’ immigration detention had not become indefinite. They relied on paragraphs 10 and 16 of Mr Williams’ affidavit, which is reproduced in [75] of these reasons. Moreover, they relied upon Mr Williams’ evidence that there was no policy within the Department that the respondents will not remove the applicants whilst their father’s litigation is pending. The applicants, they argued, were not entitled to be released whilst those who have responsibility for them being in immigration detention (i.e. their parents) took no steps to allow them to be released.
98 The applicants have established, at this interlocutory stage, that they went into immigration detention on 1 January 2001. They remained in immigration detention, with the exception of the first two applicants who escaped for three weeks, continuously until 25 August 2003. They resumed immigration detention on 30 April 2004. They have established that it is unlikely that they will ask the Minister to remove them from Australia: s 198(1). That is not unreasonable. It would not be expected that five children of the ages of the applicants would voluntarily seek to be separated from their parents. They have established that it is most unlikely that their mother will request their removal and probably unlikely that their father will do so. If they are considered a group with their mother, it may be likely that their immigration detention will become indefinite. If they are considered a group with both parents, their immigration detention will continue at least until the father’s application for a visa is finally determined, which would mean more than a year.
99 Only Kirby J considered the applicants’ position by reference to the Act in Minister for Immigration and Multicultural and Indigenous Affairs v B & Anor. He said, at [142]:
‘142 The relevant point of construction concerns whether the MA permits the "detention" of the respondent children for the period proved in the evidence in this case. This was not a case where the evidence showed that a fundamental postulate of the statutory purpose of detention in default of the grant of a visa (namely removal or deportation from Australia) could not be fulfilled. A factual conclusion had been reached that the parents were nationals of Pakistan. Although the parents disputed that finding of fact, it was one not open to correction in these proceedings. Upon that basis, the respondent children, like their parents, were not stateless persons. Thus, the situation that arose in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri was not presented in this case.’ [Foonotes omitted.]
100 Later, he said at [171] and following:
‘171 Mandatory detention of unlawful non-citizens who are children is the will of the Parliament of Australia. It is expressed in clear terms in ss 189 and 196 of the MA. Those sections are constitutionally valid. In the face of such clear provisions, the requirements of international law (assuming it to be as the respondents assert and as the UNHRC, in part, has found) cannot be given effect by a court such as this. This Court can note and call attention to the issue. However, it cannot invoke international law to override clear and valid provisions of Australian national law. The Court owes its duty to the Constitution under which it is established. Pursuant to the Constitution, all laws made by the Parliament of the Commonwealth are "binding on the courts, judges, and people of every State and of every part of the Commonwealth". Those laws must be obeyed and enforced, whenever they are valid and their obligations are clear and applicable. They cannot be ignored or overridden, least of all by this Court.
172 I do not regard it as arguable that the detention of the respondent children under the MA was permanent or indefinite. True, it lasted a long time before their release by order of the second Full Court. However, under the MA, the period of detention had a clear terminus. This (putting it broadly) is the voluntary election of the children (through their parents) to leave Australia or the completion of the legal proceedings brought by the parents on the children's behalf, with necessary consequences for the status of the children.
173 The case of the respondent children is to be distinguished from other recent proceedings. It cannot be said that the MA is inapplicable to them because they are stateless. Nor is the MA inapplicable because the conditions of detention have been shown, arguably, to fall outside the statutory conditions required by the MA. In this appeal, the attack was directed to the power of detention, as such, and its duration. With the dissenting judge in the first Full Court, in my opinion "it cannot be said that there is no real likelihood or prospect in the reasonably foreseeable future of the children being removed and thus released from detention".
Conclusions and orders
174 So far as Australian law was concerned, the respondent children were therefore lawfully detained under the MA. In such circumstances, by the language of that Act, they had to be detained until one of the provisions in s 196(1) was fulfilled, ie until removal or deportation from Australia or the grant of a visa. Even if a point might ultimately be reached where the loss of liberty of an "unlawful non-citizen" in proved conditions falls outside the statutory expression "immigration detention" (or would invite constitutional invalidity as amounting to unauthorised punishment), that point had not been reached in the case of the respondent children at the time of their release.
175 If there was protracted duration of the detention of the respondent children, as there clearly was, it was solely because of the operation of the MA upon the challenges mounted seriatim before the successive Australian decision-makers by the children's parents severally and then together. The confinement of the children was not only lawful under the MA. It was obligatory in terms of the provisions of that Act. And, as I have shown, those provisions represent the deliberate and repeatedly reaffirmed will of the Australian Parliament, acting in this case within its constitutional powers.’ [Footnotes omitted.]
101 The respondent argued that Kirby J’s decision established that:
(a) mandatory immigration detention is a valid expression of the will of the Commonwealth Parliament;
(b) the sections which express that will (ss 189, 196 and 198) must be obeyed by the Courts and Judges;
(c) the factual finding was that the parents and the applicants were nationals of Pakistan and that none of them were stateless;
(d) it is not arguable that the applicants’ detention is permanent or indefinite;
(e) the detention can and will be brought to an end by ‘the voluntary election of the children (through their parents) to leave Australia or the completion of the legal proceedings brought by the parents on the children’s behalf’;
(f) the applicants are lawfully detained;
(g) the point has not been reached that the applicants’ detention has become unlawful;
(h) the applicants’ detention was not only lawful but obligatory; and
(i) any protracted detention has been brought about solely because of the numerous challenges brought one after another by the applicants’ parents.
102 Kirby J’s decision was given just over four weeks ago. The facts and circumstances relating to the applicants’ detention have not changed since then. Nothing deposed to in the affidavits tendered in support of the applicants’ case is relevant to this issue. The respondents argued that Kirby J’s decision meant there was no serious question to be tried.
103 No other Justice of the High Court approached their result by the same route as Kirby J, so no other Justice had to consider those matters. It was put by the applicants’ counsel that Callinan J’s comments at [224] and [225] are diametrically opposed to Kirby J’s reasons but that is not so. Callinan J referred to ss 189, 196 and 198 of the Act. He said he found it unnecessary to explore the correctness of the decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri. He said:
‘224 The judges in the majority in the Full Court also embarked upon a long discussion of authority and academic writing about the "capacity" of children to make decisions. The significance of "capacity" was that, in their Honours' view, "if the children or any of them are unable to bring their detention to an end [by making a request under s 198(1)], therefore, like Mr Al Masri, their continued detention is unlawful". They expressed the view, despite the absence of any evidence about capacity, that the children were unlawfully detained.
225 The Full Court heard no argument that, as with Mr Al Masri, the children here had failed in their visa application and had exhausted all avenues of appeal and that it was therefore the duty of every "officer" under s 198(6) of the Migration Act to remove them from Australia as soon as "reasonably practicable". If the reasoning in Al Masri was correct, the lawfulness of their detention depended on the prospects of that removal being achieved in the reasonably foreseeable future. Whether they had any capacity to request their own removal under s 198(1) would then have no relevance. It is unnecessary to reach any conclusion on this last matter.’ [Footnotes omitted.]
There is nothing in these two paragraphs which
contradict Kirby J’s reasons.
104 The applicants argued that Kirby J’s decision is wrong. It is wrong, it is said, to treat children as subject to the same statutory regime as adults. I do not agree. Parliament has treated all persons the same for the purposes of ss 189, 196 and 198. It does not quarantine children from detention and removal. Normally, children would be in the company of their parents and usually it is in a child’s best interests to remain in their parents’ company. One would not envisage a circumstance where the parents would be removed from Australia but the children allowed to remain.
105 The applicants pointed to s 199 of the Act which deals with spouses and dependant children and empowers an officer to remove them if requested by the spouse or, in the case of a dependant, the non-citizen. It was said that section suggests an interpretation of the Act which does not allow the parents to request removal on behalf of their children. It does not. In fact, it supports Kirby J’s reasons. Section 199 specifically empowers a spouse of an unlawful non-citizen to request to be removed with dependant children of the unlawful non-citizen. It is contemplated that a parent might make a request for removal on behalf of children who otherwise would not be liable to be removed. It was said that his decision leads to practical difficulties.
106 In the applicants’ further written submissions, they said:
‘8.5 There are insuperable practical difficulties in the position taken by Kirby J. For example:
8.5.1 It does not indicate when the power of the parents to exercise a power vested in their children is conveyed to the minor – at 18 years, or at an age of discretion in fact (compare section 87 of the MA, or section 4AAA of the Immigration (Guardianship of Children) Act 1946 (Cth));
8.5.2 If the age of majority is the relevant criterion, what occurs if there are conflicting requests from the parents and, say, a precocious 17 year old?
8.5.3 What happens in relation to unaccompanied minors? Does the Minister exercise the section 198(1) of the MA request power to herself, under sections 4AA or 6 of the Immigration (Guardianship of Children) Act 1946 (Cth)? Does the manifest conflict of interest in such a position matter?’
107 The power of the parents to apply to be removed under s 198 can be exercised whilst their children are minors and not after. Section 87 is a special section which does not impact upon the parents’ right to apply to have the parents and the children removed under s 198 or a spouse’s right to apply under s 199. Section 4AAA of the Immigration (Guardianship of Children) Act 1946 (Cth) does not apply.
108 Where the Minister becomes a child’s guardian under that Act by force of s 4AA or s 4AAA(1) or otherwise the Minister would have to act in the best interests of the child. The child’s interests are paramount. Whether in those circumstances the Minister would apply under s 198(1) for the removal of that child would depend upon whether that was in the best interests of that child.
109 I am not persuaded that Kirby J’s decision leads to practical difficulties, nor am I persuaded that his decision is wrong.
110 Kirby J’s decision is not binding on me. However, it is no overstatement to say that it is highly persuasive. In his reasons, Kirby J addressed the very issue, although raised in a different way, that I am asked to find raises a serious question to be tried. If he had been asked whether there was a serious question to be tried, his findings and conclusions would have led him to answer that question in the negative. There is no reason why I should not reach the same conclusion as a Justice of the High Court. Comity, if nothing else, dictates that I should. There is another reason to follow his decision and that is because, with respect, I agree with that decision.
111 The legislative scheme is that unlawful non-citizens should be removed as soon as is reasonably practicable. In view of the effect on the applicants and their mother of them being removed whilst their father and husband’s litigation is not complete, ‘as soon as is reasonably practicable’ may be as late as the completion of that litigation. The applicants’ detention has not become unlawful, because their detention has not become indefinite. There are still prospects of the applicants being removed from Australia in the reasonably foreseeable future.
112 In all these circumstances, the applicants have not established that there is a serious question to be tried. That would be enough to decide this application but, because the matter has been so fully argued and because the matter might need to be reconsidered, I should address the balance of convenience.
113 On this application, the question of irreparable harm and balance of convenience have been rightly dealt with as one issue. It was argued that if the orders sought were not made the applicants would remain in immigration detention. That is correct. Therefore, it was said, the balance of convenience was unquestionably with the applicants.
114 Mr Abbott argued that liberty was a fundamental right which should not be taken away without lawful authority. If there is a serious question to be tried concerning a person’s liberty then the balance of convenience must favour that person. It may be accepted that a person’s liberty is a fundamental right and no person may be deprived of that liberty without clear and unambiguous lawful authority: Williams v The Queen [1987] HCA 36; (1986) 161 CLR 278 at 292 per Mason and Brennan JJ. Persons in immigration detention in a Detention Centre are being detained. Their personal freedoms are being curtailed. In particular, they are being denied the right to free movement, free association and free speech.
115 There is no doubt, as I have said, that if the orders sought are not made the children will remain in immigration detention because of the mandatory obligations which are imposed on all officers under s 189.
116 However, the immigration detention will not be at the Baxter Detention Centre. The Minister has determined that the applicants will be in immigration detention of the kind which I have mentioned. Their rights to free movement, free association and free speech have not been curtailed, at least, to the same extent as those in Detention Centres. The question in this case is whether the balance of convenience favours an order that the applicants be released from immigration detention of the kind in which they are presently detained pending a determination of the substantive claim. For that reason, the decisions of Mansfield J in SHMB v Goodwin [2003] FCA 1053 and SHMB v Goodwin (No 2) [2003] FCA 1171 are not directly relevant.
117 The application is made by the applicants’ next friend, their mother. She has been finally adjudged by the highest Court in this country not to be entitled to protection under the Refugees Convention. It was found as a fact that, contrary to her claims, she was a Pakistani. She obviously is not prepared to accept the Court’s ruling. If she were, she would return to Pakistan. If she did accept the Court’s ruling she could thereby release all of her children from immigration detention. They would be released and returned to Pakistan. There is something incongruous in a mother bringing an action as the next friend of her children seeking a result which she could obtain for herself by accepting the ruling of the High Court.
118 But, of course, this application is not about release from detention per se, but about release from detention and the right to stay in Australia in circumstances where the High Court has ruled no right exists.
119 However, that matter might be put aside. The more particular question is whether it is in the applicants’ interests to be released from immigration detention pending the determination of the substantive matter. Their mother, at least, supports this Court making an order to that effect. Their father’s silence but, more importantly, his intervention in the Family Court proceedings, suggests that he also supports such an order.
120 The matter was adjourned so that the applicants could adduce evidence of their claim that they would suffer harm if the orders were not made. Two affidavits were relied on by the applicants in support of the claim that the balance of convenience favoured the applicants.
121 Mr Dale West, Director of Centacare Catholic Family Services, has had the primary responsibility for the applicants since the orders of the Family Court on 23 August. Mr West has identified those persons who have had the particular care of the applicants since that time.
122 Initially, for a period of four months, they were in the care of a husband and wife who became unavailable to care for them.
123 Since that time, they have been under the care of two persons. One of those persons (the primary carer) cares for them three weeks out of four and lives in the house in which the applicants reside. In the other week, they are cared for by a relief carer who is, herself, the mother of three infant children aged 11, 13 and 16. It is not clear, on Mr West’s affidavit, who lives in the house in which the applicants reside in that fourth week. Mr Abbott told me from the Bar table that the relief carer lives in during that fourth week. Her children reside with their father. I accept that.
124 Apparently, both the primary carer and the relief carer are supported by a third year social worker at the University of South Australia, Mr Joseph Frick. I have assumed, although Mr West does not say, that Mr Frick is related to the other deponent, Pauline Frick, who is the Manager of Centacare Catholic Family Service Family and Relationship Services Unit.
125 Mr West deposes to the qualifications of the primary and relief carers who seem well qualified to care for the children.
126 Mr West says that, as Director of Centacare Catholic Family Services, he will ensure that the applicant children are at all times looked after by suitable carers. I accept that.
127 Mr West has not deposed to any practical change in the applicants’ lifestyle since the High Court allowed the appeal from the Family Court on 29 April 2004.
128 That is not unimportant because the matter was adjourned on 26 May 2004 to allow evidence to be led, if it were available, to establish that the fact of immigration detention handicapped the applicants in their lifestyle. It had been put to me from the Bar table that, because of the Minister’s actions on 30 April 2004, the applicants needed to be accompanied 24 hours a day, which was not the regime that existed prior to the High Court decision. No evidence has been led to support the statement made from the Bar table.
129 Ms Frick was cross-examined on one aspect of her affidavit. Mr Abbott later sought and obtained leave to recall her to explain other paragraphs of that affidavit. Ms Frick’s evidence was that Centacare and the Department of Immigration and Multicultural and Indigenous Affairs have agreed upon a regime which does not require the applicants to be under constant supervision. The children go to school unaccompanied and they go out socially unaccompanied.
130 I will address Ms Frick’s affidavit in relation to the emotional effects upon the applicants separately.
131 The regime of immigration detention to which the applicants are presently subject is the same regime to which they were subject before immigration detention. There is no evidence that anything has changed in fact except, according to the Act, they are now in immigration detention and before the order of the High Court they were not. The fact that the order of the High Court has meant that nothing has changed is a powerful argument to find that the balance of convenience does not favour the applicants.
132 If the order were made they would be free of immigration detention, whilst their parents would remain in detention – the father at Baxter, the mother in a motel. They would be legally adrift from all parental supervision. It might be said that is presently the case and that is probably right. The formal arrangements presently in place do not ensure that the applicants either come into contact with their parents or, if they do, take heed of any parental instruction.
133 However, the effect of the orders which are sought from this Court are simply that they be released from immigration detention. If those orders were made, they would then be free to do whatever they liked unrestrained by any parental supervision or any other form of legal supervision. No one would have legal responsibility for the children. Their parents cannot exercise any care or control over them. The carers would have a duty to care for them but would have no legal right to supervise them. I am not sure that that would be in the best interests of five children aged between 7 and 15.
134 The Immigration (Guardianship of Children) Act does not apply to these applicants. Section 6 of that Act makes the Minister the guardian of every non-citizen child who arrives in Australia after the commencement of the Act to the exclusion of the father and mother and any other guardian. However, because the applicants entered Australia in the charge of their mother, they are not non-citizen children for the purpose of that Act.
135 The applicants would be left in a legal vacuum if the interlocutory orders were made. Whilst the applicants are in immigration detention, of the kind which presently pertains, the Minister and the Department, and its officers, must have responsibility for their care and safety.
136 They are further reasons why the balance of convenience does not favour the applicants.
137 The other affidavit relied on by the applicants is that of Pauline Frick. Ms Frick has traced the mental condition of the applicants’ from the time she first came into contact with the applicants, noting the improvement in that condition during the period when they were not in immigration detention and the effect of the decision of the High Court. Her evidence is that there was a marked improvement in their emotional well-being over that period of time. She says:
’12.1 On the evening of April 28th, the night before the High Court handed down its decision, Dale West and I visited the five children and sat with the boys explaining to them the realities of the next day, given the pessimism surrounding the result. It was explained to the boys as constructively as possible that the consequences could be any one of the following.
- Return to Baxter.
- Community Detention
- Status quo
- Deportation
As a result
● The boys exhibited intense anxiety and fear.
● They said that they had been unable to sleep for several nights worrying about the case.
● They expressed fear for their own and their sister’s [sic] safety if they were deported.
● They quickly reversed back to talk of hopelessness saying how quickly the eight months of freedom had gone. "It felt like a long time, now it is over".
● It was difficult to offer any reassurance given their previous experience over many years of hopes being dashed.
12.2 I carefully explained to the girls an outline of the day ahead trying not to make them too fearful or anxious.
13. On 29th April 2004 Dale West picked up the five children at 7.30am and they all came to my home. Dale West and I looked after the children during Thursday.
13.1 The boys arrived in the dark clothes they were wearing when released from Baxter, along with bandannas and beanies on their heads.
13.2 The girls were confused and anxious and subdued.
13.3 The boys found it hard keeping still and would pace and ask questions.
13.4 [NB] asked what would happen if the police knocked on the door to take them.
13.5 Later Dale West and I took the five children back to their home with the knowledge that until further notice, they would be detained in their own home.
13.6 Firstly, the boys were upset that they had honoured ours and the governments trust, they had been obedient and had totally complied with instructions. The boys questioned why was the government punishing them now by placing them back into detention in their home? If this was how the government responded, what was the use of them trying they asked.
13.7 The boys talked about the fact that their lives were truly worthless as there was no respect or acknowledgement from the government of how they had respected the government’s wishes, and as a consequence had lost their freedom.
13.8 The next day [AB] stayed in bed.
13.9 The boys did not play sport on the following weekend. They felt punished at the thought of having someone to take them and guard them, when they had previously obeyed the rules, so they deemed to play sport under those circumstances would be undignified for them.
13.10 [NB] had been invited to a birthday party and was told she could no longer attend, as the people’s house would have to be declared a detention centre for that to happen.
13.11 The boys resented being driven to school and felt embarrassed at having someone attend soccer practice with them when no other parents did that. Especially after they had proven their trust to Centacare previously.
13.12 They also stated they felt embarrassed that they were becoming an encumbrance to Centacare as we were having to give up our time and be with them at these activities.
13.13 After finally feeling like they were a normal part of the school community, they suddenly felt very obvious and different.
13.14 The impact was such that the boys began to feel de-motivated at school knowing that the teachers were now their detention officers. This needs to be seen in the light of the mental and emotional impact of the previous three years of detention. They felt their entire world had become one large detention centre.
14 On 30th April 2003 [sic], the day after the court hearing, all the children returned to school except [MB]. Dale West and I allowed him to stay home and do school work, he was emotionally exhausted. That afternoon I received a call from Sue Gould from the Immigration Department asking why only four of the children were at school. When that was confirmed, she asked if [MB] was alone in the house. I said that he was alone as the carer had gone out and in talking to [MB] he was happy to stay and continue with his homework. Sue Gould said "As the children were now detainees, they could not be left unaccompanied. I was to collect him and either bring him to the office for the day or take him to be in detention with his mother until the carer returned." (or words to that effect).
● [AB] began to call himself the living dead and said the government just needs to dig a hole and bury them all.
● [AB] became withdrawn once again, and said "there was no hope, so what is the use of talk?".
● Given their previous severe experiences of detention, and the lack of dignity that accompanied it, the boys saw home detention as emotionally as severe and undignified as the other.
● The girls were embarrassed to tell their friends that they could no longer go to their homes to play or have them over, given the friendships that had developed.
● It cannot be underestimated the impact these friendships had on all the children with regard to their sense of self and emotional well-being.
15. As a result of the facts deposed to herein it is my opinion the children will suffer serious psychological harm if they remain in Immigration detention.
15.1 Since the 29th April 2004 [AB] has said a number of things to me such as:
"with Gods grace I will get cancer"
(or words to that effect)
Following me telling him that my mother has cancer he said
"your mother is lucky"
(or words to that effect)
"I will now go to my room and die"
(or words to that effect)
"I have no hope"
(or words to that effect)
"my only hope is to be with God"
(or words to that effect)
"I am the living dead"
(or words to that effect)
15.2 On 24th May 2004 [AB] stayed in bed all day and refused to get up. He was not sick he was depressed.
15.3 Since 29th April 2003 [sic] [MB] has become angry.
He has been more aggressive with his siblings
He has started punching himself
He has said to me:
"my teachers are now detention officers"
"my school is now a Detention Centre"
(or words to that effect).
"One of my teachers came up to me today and said I had to sign a form saying he would be a detention officer. I felt embarrassed that the teacher had to do it and it meant they didn’t trust me.
15.4 [NB]
has become more easily upset
has become withdrawn
she clings onto Ann Bawden or myself
she has expressed embarrassment about not being able to accept invitations from friends because that would be impracticable and embarrassing as they would have to be accompanied.
Following the Court decision on the 29th April 2004 she has displayed excessive blinking.
16.1 I am of the opinion that if the five children continue being held in Immigration Detention they will all suffer serious psychological harm.
The boys have been adversely affected by the fact that the teachers have had to become detention officers.
The boys are both suicidal and are at risk of self harm. Both boys have previously been involved in self harm episodes (including lip sewing) whilst at Woomera or Baxter.
16.2 Both boys have told me when they were involved in cutting themselves they felt the physical pain took away the pain inside. The children were all exposed to violence and riots. They saw people being beaten and others engaging in lip sewing in self harm activities generally. The Woomera Detention Centre was damaging to any normal child development process.
16.3 Centacare has had discussions with the Department of Immigration. The Department has provided a draft agreement which is annexed to the affidavit of Jeremy James Moore sworn on the 24th day of May 2004 and marked "JJM8". Those proposed arrangements are not acceptable because it reinforces the notion that instead of Centacare staff being carers it makes them prison guards. Centacare is not a prison and Centacare staff are carers not prison warders.
16.4 Neither Centacare nor its staff asked to be appointed Designated Persons or have agreed to be Designated Persons. The attachment of "JJM8" to the affidavit of Jeremy James Moore sworn on the 24th day of May 2004 seeks to make Centacare staff guards and not carers and presumably if Centacare does not come to some arrangement then the Department will again act unilaterally to continue the detention of the children.’
138 Ms Maharaj sought to cross-examine Ms Frick on paragraph 16.1 of Ms Frick’s affidavit. As I have already said, Ms Frick was later recalled to explain other aspects of her affidavit.
139 I was most unimpressed by Ms Frick’s evidence. I think her oral evidence shows that her written evidence contained in her affidavit was exaggerated. I have no doubt that Ms Frick feels passionately about the applicants being in immigration detention. But that is no reason or excuse to attempt to mislead the Court about the applicants’ mental condition and the reasons for it.
140 Paragraph 16.1 of her affidavit is unambiguous. It follows a detailed description of the applicants’ behaviour and their comments since 29 April 2004. The first sentence of paragraph 16.1 does not seek to particularise any regime of immigration detention. On the face of it, any form of immigration detention would give rise to psychological harm. The third sentence of paragraph 16.1 is in the present tense. It is quite unambiguous. The two eldest applicants are suicidal and are at risk of self harm.
141 But that was not her oral evidence. She said that paragraph was only referable to the period of a few days after the High Court decision. She said the risk of psychological harm only relates to a regime where the applicants are accompanied 24 hours a day and where they cannot go out unaccompanied. Indeed, she said the rest of her affidavit had to be understood in that sense.
142 I am surprised that even if paragraph 16.1 should be understood in that limited sense, that Centacare and, in particular, Ms Frick, did not advise the Department of the matters contained in paragraph 16.1.
143 Ms Frick accepted that officers of the Department first learned of her opinion that the two eldest applicants were suicidal when they read her affidavit. I find it extraordinary, if paragraph 16.1 contains Ms Frick’s honestly held opinion, even understood in the limited sense to which I have referred, that she would not bring that opinion to the Department’s attention. The Department had a right to know. She had no right to withhold that opinion from the Department.
144 Her evidence is that the High Court decision distressed the applicants and had a marked effect upon them. I can accept that. The decision itself would have been a blow. Between 29 April and 30 April 2004 they might have worried that they would have to return to the Baxter Detention Centre or Woomera Residential Housing Project. That must have been a matter of significant stress.
145 Ms Frick’s evidence is that, since that time, the applicants, some of them more than the others, have suffered emotionally.
146 She says that it is her opinion that if the children continue being held in immigration detention they will all suffer serious psychological harm.
147 She says that Centacare has had discussions with the Department which has provided a draft agreement for execution by Centacare. That draft agreement sets out the obligations of Centacare in caring for these applicants. I have already referred to her evidence in paragraph 16.4.
148 I do not agree with her claim that the proposed agreement seeks to make Centacare staff guards and not carers. Nor do I accept that if Centacare does not come to some arrangement then the Department will act unilaterally to continue the detention of the children. The Department has acted sympathetically since 29 April 2004. The Department has allowed the applicants to live within as relaxed a regime as possible. I suspect that Centacare has adopted a position to support this application so as to enable it to be said that no satisfactory arrangements are in place. Once it is realised that the application cannot succeed, I think Centacare will make every endeavour to come to an arrangement with the Department to allow the present immigration detention regime to continue.
149 Ms Frick’s evidence is that the applicants’ psychological condition would improve if they were not subject to immigration detention. I accept that the applicants’ health has suffered since they have been in detention. I accept that their health has improved since being released from the Baxter Detention Centre. I accept that their health has suffered since the High Court decision of 29 April 2004. However, I am not satisfied that if I made orders releasing them from immigration detention that would necessarily lead to an improvement in their emotional well-being.
150 Even if I made the orders sought, the applicants will remain unlawful non-citizens. They are not refugees. They would still be liable to be detained and removed from Australia at any time. The obligations imposed upon officers in s 198(6) would continue. The risk of being removed from Australia would continue to hang over their heads. It may be that they will not be removed until after their father’s litigation is complete but it is clear from Mr Williams’ affidavit that the Department is intent upon removing this family and these applicants from Australia as soon as it is able so to do. Because they are not refugees and because they are unlawful non-citizens, they are always liable to be removed on short notice from Australia. That will continue to hang over the applicants’ heads until such time as the father’s litigation is complete.
151 There is no order that I can make that will relieve these applicants of the stress which they are under. The stress caused by their uncertainty as to their status and future is a result of them being unlawful non-citizens. Whether they are in or out of immigration detention does not protect them from removal from Australia.
152 I am not satisfied, therefore, that the balance of convenience favours the applicants.
153 For those further reasons, I would not make the orders sought.
154 The application for the interlocutory injunctions is dismissed.
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I certify that the preceding one hundred and fifty-four (154) numbered
paragraphs are a true copy of the Reasons for Judgment herein
of the Honourable
Justice Lander.
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Associate:
Dated: 3 June 2004
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Counsel for the Applicants:
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M Abbott QC with J J Moore
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Solicitor for the Applicants:
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Jeremy Moore & Associates
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Counsel for the First and Second Respondents:
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S Maharaj with M Kennedy
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Solicitor for the First and Second Respondents:
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Australian Government Solicitor
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Date of Hearing:
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29, 30 April 2004; 4, 26, 28 May 2004
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Date of Judgment:
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3 June 2004
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2004/699.html