NAET v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1 (7 January 2003)

Last Updated: 14 January 2003

FEDERAL COURT OF AUSTRALIA

NAET v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1

MIGRATION - application for declaration that applicant unlawfully detained and order for release from immigration detention - where alleged that no real likelihood of removal of applicant from Australia in foreseeable future - application dismissed.

Migration Act 1958 (Cth) ss 5, 14, 194, 195, 196, 198

Judiciary Act 1903 (Cth) ss 39B(1), 39B(1A)(c)

Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 192 ALR 609 not followed

NAES v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 2 applied

NAET v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NO. N 1254 OF 2002

BEAUMONT J

7 JANUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1254 OF 2002

BETWEEN:	NAET APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	7 JANUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed, with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1254 OF 2002

BETWEEN:	NAET APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J
DATE:	7 JANUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

1 This matter was heard at the same time, and raises, in principle, the same questions as in NAES v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 2, in which I have also given reasons for judgment today and which should be read in conjunction with these reasons. Here also, the applicant seeks, pursuant to ss 39B(1) and 39B(1A)(c) of the Judiciary Act 1903 (Cth), a final declaration that he is detained without lawful authority under the Migration Act 1958 (Cth), and a permanent order for his release from immigration detention.

2 By his statement of claim dated 25 November 2002, the applicant makes allegations to the following effect:

* The applicant, a stateless Bidoon of Kuwait, arrived in Australia in July 1998 without a visa and was then taken into, and remains in, immigration detention.

* In July 1998, he applied for, but was later refused, a protection visa. Subsequent attempts to review that refusal have failed.

* On several occasions in 2002, he made requests to officers of the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") to remove him to Kuwait, including a request in writing made on 30 September 2002 that the Department either remove or release him within 45 days.

* On or about 1 October 2002, he was given "a one-way Australian travel document called an Australian Certificate of Identity and was advised by [the Department] to use the document[] to obtain a visa to go to Syria".

* In late October 2002, the Syrian Embassy in Australia refused to issue him with a visa.

* The Minister has not been able to secure the applicant's removal from Australia.

THE APPLICANT'S CASE

3 In their written submissions, the applicant's counsel submit that it should be concluded that there is no real likelihood of his removal in the foreseeable future because of (a) the lapse of time (38 months) since he exhausted his avenues of challenge to the refusal of his protection visa; (b) Syria's refusal to grant him a visa; and (c) the absence of any agreement between Australia and Kuwait for the acceptance of the return of Bidoons.

4 In oral argument, senior counsel for the applicant also placed emphasis upon documentary evidence from the Department that inquiries with respect to third countries (ie countries other than Kuwait) "had been unsuccessful".

CONCLUSIONS ON THE APPLICATION

5 Again, the applicant relies upon the reasoning in Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 192 ALR 609. But, in my opinion, the present matter cannot be distinguished, in principle, from NAES v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 2.

6 It must follow that here also, the application will be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beaumont.

Associate:

Dated: 7 January 2003

Counsel for the Applicant:	Mr N Williams SC / Ms N Sharp
Solicitor for the Applicant:	Public Interest Advocacy Centre
Counsel for the Respondent:	Mr H Burmester QC / Ms M Allars
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 December 2002
Date of Judgment:	7 January 2003