NAES v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 2 (7 January 2003)

Last Updated: 14 January 2003

FEDERAL COURT OF AUSTRALIA

NAES v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 2

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

NAKG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1600 cited

Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 applied

WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625 followed

NAES v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NO. N 1253 OF 2002

BEAUMONT J

7 JANUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1253 OF 2002

BETWEEN:	NAES 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 1253 OF 2002

BETWEEN:	NAES 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 By his amended application, the applicant seeks, by way of permanent relief, orders in relation to his immigration detention. The application is made under ss 39B(1) and 39B(1A)(c) of the Judiciary Act 1903 (Cth).

2 The specific relief sought is first, a declaration that the applicant is unlawfully detained, and, secondly, an order in the nature of habeas corpus, directing the respondent Minister to cause the applicant to be released from immigration detention.

3 This relief is claimed on the basis of the allegations pleaded in the applicant's statement of claim, dated 25 November 2002, to the following effect:

* The applicant, who was born in Iraq, and is an Iraqi citizen, arrived in Australia in February 2000 without a visa; as an "unlawful non-citizen" within the meaning of s 14 of the Migration Act 1958 (Cth) ("the Act") he was then taken into, and has since been held in, "immigration detention" (as defined in s 5 of the Act).

* He has applied for, but the Minister has refused, the grant of a protection visa; and several attempts to review the Minister's decision have failed.

* In November 2000, he requested removal by the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") "from Australia to any other country where he would be safe".

* In April 2001, he requested removal from Australia "to Syria or any other country where he would be safe".

* In April 2001, he was informed by the Department that "Syria had refused to permit [this]".

* In April 2002, he made a further request to the Department for removal "to any other country where he would be safe".

* In October 2002, he was provided with an Australian Certificate of Identity (ie a "one-way passport"); and he thereupon "requested a number of his friends to attempt to obtain a visa on his behalf from any country to which he could safely be removed".

* In November 2002, the Department informed him that he "had to obtain a visa himself and that the Department would not make an application on his behalf or assist him in making the application".

* Later in November 2002, one of his friends informed him that he had been unable to obtain any visa.

* The Minister "has not been able to secure [his] removal".

* Neither ss 196, 198 (see below), nor any other provision of the Act, authorises his continued detention.

THE STATUTORY SCHEME

4 Detention and removal are dealt with in separate parts of the Act, as follows:

(a) Detention

Section 189, in Division 7 of Part 2 of the Act, entitled "Detention of unlawful non-citizens", provides for officers of the Department to take into custody persons whom such officers know, or reasonably suspect, are unlawful non-citizens:

"189(1) If an officer knows or reasonably suspects that a person in the migration zone... is an unlawful non-citizen, the officer must detain the person."

Detain is defined in s 5 as:

"(a) take into immigration detention; or

(b) keep, or cause to be kept, in immigration detention; and includes taking such action and using such force as are reasonably necessary to do so".

The term "unlawful non-citizen" is defined in s 14, so that an unlawful non-citizen is a non-citizen in the migration zone, who is not a lawful non-citizen.

As soon as reasonably practicable after an officer detains a person under s 189, the officer must ensure that the person is made aware of the provisions of ss 195 and 196 (s 194(a)).

Section 195 of the Act, entitled "Detainee may apply for visa", provides:

"195(1) A detainee may apply for a visa:

(a) within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or

(b) if he or she informs an officer in writing within those 2 working days of his or her intention to so apply - within the next 5 working days after those 2 working days.

(2) A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time."

Section 196 of the Act, entitled "Period of detention", provides:

"196(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:

(a) removed from Australia under section 198 or 199; or

(b) deported under section 200; or

(c) granted a visa.

(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." (Emphasis added)

(b) Removal

Division 8 of Part 2 of the Act deals with the removal of an unlawful non-citizen. Section 198 relevantly provides:

"198(1) An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

...

(6) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a) the non-citizen is a detainee; and

(b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c) one of the following applies:

(i) the grant of the visa has been refused and the application has been finally determined;

(ii) the visa cannot be granted; and

(d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone." (Emphasis added)

5 The formula "an officer must remove as soon as reasonably practicable" appears at the head of all nine subsections of s 198; and, in each case, it is followed by the conditions under which that obligation arises. The word "remove" is defined in s 5 as "remove from Australia".

THE OPERATION OF THE LEGISLATIVE SCHEME

6 The operation of the legislative scheme was recently explained by French J in WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625 at [46]- [49]:

"46. The direction to officers contained in s 189 of the Act is imperative and uncompromising in its terms. When the requisite condition of knowledge or reasonable suspicion that a person is an unlawful non-citizen is satisfied the officer `must detain the person.'

47. Section 196 requires that an unlawful non-citizen detained under s 189 `must be kept in immigration detention' unless removed from Australia, deported or granted a visa. The section reads as though it creates an obligation, albeit it does not specify the repository. The obligation which it creates is unqualified and in terms unlimited in time except by reference to the three terminating events. That is emphasised by subs 196(3). When read with s 189 it may be that

s 196, properly construed, imposes an obligation on the Minister and his officers to maintain the detention referred to. Less directly, it may be said that the section imposes a liability on the person who is an unlawful non-citizen and who has been detained under s 189.

48. Section 198 imposes a duty on `an officer' to remove an unlawful non-citizen from Australia `as soon as reasonably practicable' after the occurrence of any of the events severally referred to in the subsections of that section. The duty is curiously expressed as reposing in `an officer'. No doubt this is a way of referring to the Minister who must act through his officers in the way specified in the section.

49. Section 198 appears in a separate division dealing with the removal of detainees. It sets out the circumstances in which the obligation to remove persons from Australia arises. That removal necessarily terminates the continuing detention under s 196. That the removal must take place `as soon as reasonably practicable' after a written request or final refusal of a visa (ss 198(1) and (6)) does not, on the face of it, import any express or implied limitation upon the obligation to detain the unlawful non-citizen under s 196. That obligation or liability is terminated by the event of removal. There are no words in the section which condition it upon the expiry of a time which is `reasonably practicable' to effect the removal after the satisfaction of one of the conditions in s 198. ..."

7 I respectfully agree with this analysis.

THE APPLICANT'S CASE

8 In their written submissions for the applicant, his counsel submit:

* Since the Department has informed the applicant that it will not assist him in obtaining a visa, notwithstanding that he is detained, it should be concluded that the Minister "is not taking all reasonable steps to secure [his] removal."

* Moreover, it should be concluded that there is no real likelihood of his removal in the foreseeable future, because of: (a) the lapse of time, being (i) 25 months since he first requested removal and (ii) 16 months since all his review rights were exhausted; (b) the facts that the Department cannot remove him directly to Iraq, and has been unable to secure the agreement of a third country to receive him; and (c) the number of unsuccessful attempts made by the Department to remove him.

9 These submissions were developed in oral argument. Senior counsel contended, by reference to the evidence, that Iraq "is not an option". He contended that (a) the portions of Iraq that are under the control of the government of Iraq "are not an option in respect of the applicant"; (b) in respect of parts of northern Iraq "no one has yet been returned [there]; and no agreement has been reached with any country that would facilitate that"; and (c) although the applicant had an Iraqi passport, it had now expired, and he is "unwilling for reasons that need no explication to apply to Iraq for a further passport."

CONCLUSIONS ON THE APPLICATION

10 As noted, the applicant now seeks, by way of permanent relief:

* A declaration that he is detained without lawful authority; and

* A final order for his release from immigration detention.

11 In my opinion, as was raised in argument, the present application is fundamentally misconceived. Even if inexcusable delay on the part of the Department had been demonstrated (a question upon which I need not, and do not, express an opinion), the only appropriate remedy, in my view, would have been an application for mandamus compelling "the officer" upon whom is placed the statutory duty prescribed by s 198 to remove the applicant "as soon as [is] reasonably practicable" in the circumstances of the applicant's case. However, no such remedy is sought here. Indeed, it appears to be disclaimed.

12 In short, in my view, the present kind of matter is governed by the principles explained by Murphy J in Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577. In an application for mandamus to compel the Commissioner to deal in a timely fashion with a taxpayer's objection to the Commissioner's assessment of tax, Murphy J said (at 578):

"The first question is whether the Commissioner has a public duty to allow or disallow within a reasonable time. The Commissioner suggested that the duty to `consider the objection' under s 186 of the Act, at its highest, is a duty to give diligent and honest consideration to objections. He contended that there is no time limit, reasonable or otherwise, in which he is required to determine an objection.

Where time limits have not been specified in other sections of the Act a reasonable time has been implied (see Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252). Without a time limit any duty would be illusory. I interpret s 186 of the Act as requiring the Commissioner to allow or disallow an objection in whole or in part within a reasonable time.

The next question is whether the Commissioner has failed to do so. The Commissioner contended that, in all the circumstances, a reasonable time had not elapsed. In Thornton v Repatriation Commission (1981) 35 ALR 485, in determining whether there was unreasonable delay by the Repatriation Commission in making a statutory decision, Mr Justice Fisher stated: `The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious...a delay for a considered reason and not in consequence of neglect, oversight or perversity' (at 492)." (Emphasis added)

13 His Honour went on to refuse mandamus on the ground that the delay involved had been "adequately explained" (at 580).

14 But, significantly for present purposes, Murphy J did not hold that if undue and unexplained delay had been demonstrated, it would have had the consequence that the taxpayer's objection was to be treated as allowed. To have done so, would have undermined the legislative scheme for dealing with the merits of the Commissioner's assessment.

15 At the same time, his Honour made it clear that, if inexcusable delay had been demonstrated, the Court would issue mandamus compelling the Commissioner to perform his statutory duty by considering the objection, and ruling on it, as soon as reasonably practicable. In my opinion, this form of relief would give effect to, rather than undermine, the statutory scheme, and accordingly would be the appropriate type of remedy in a case of the present kind. By contrast, an order for release made in circumstances other than the three terminating events prescribed by s 196 would undermine the legislative scheme, and, accordingly, would be beyond the Court's competence.

16 Significantly, for present purposes (as noted) no application for mandamus is made to compel performance of the duty to remove under s 198 here, or even foreshadowed by the applicant. On the contrary, as mentioned, the applicant seeks no relief in aid of his removal at all.

17 On behalf of the applicant, considerable reliance is placed upon the reasons given for making a conditional "final" order in Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 192 ALR 609. However, those reasons were seriously criticised in two recent decisions, in NAKG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1600 and in WAIS, above. I agree entirely with each of those criticisms. For that reason alone, I would not follow Al Masri. Moreover, and in any event, the fundamental misconception I have raised above, was not addressed in Al Masri at all.

18 Accordingly, the application is dismissed, with costs.

I certify that the preceding eighteen (18) 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