SHFB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 29 (30 January 2003)

Last Updated: 4 February 2003

FEDERAL COURT OF AUSTRALIA

SHFB v Minister for Immigration and Multicultural and

Indigenous Affairs [2003] FCA 29

MIGRATION - detention of unlawful non-citizen - whether detention subject to implicit temporal limitation - duty to arrange removal from Australia - "as soon as reasonably practicable" - how duty enforced

Migration Act 1958 (Cth) - ss 189, 196, 198

Al Khafaji v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1369 cited

Al Masri v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCA 1009 not followed

Applicant WAIW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 621 cited

Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 20 followed

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

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

VFAD v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1062 cited

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

SHFB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NO S4 of 2003

SELWAY J

30 JANUARY 2003

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S4 OF 2003

BETWEEN:	SHFB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	30 JANUARY 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

The application seeking:

a. a writ in the nature of mandamus, and

b. a declaration that the Applicant is unlawfully obtained, and

c. an order in the nature of habeas corpus for the release of the Applicant from detention

be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 4 OF 2003

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

JUDGE:	SELWAY J
DATE:	30 JANUARY 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 The parties are in agreement that the applicant is an "unlawful non-citizen". The other relevant facts necessary for a resolution of this application are not in dispute. They are:

(a) The applicant arrived in Australia without a passport on 18 August, 2001 and was detained. That detention has continued to the present;

(b) On 24 September, 2001 he lodged an application for a protection visa. That application was refused by a delegate of the Minister on 7 May, 2002. The applicant sought a review of that determination by the Refugee Review Tribunal. In its decision of 16 October, 2002 the Tribunal concluded that it was not satisfied that Australia had protection obligations to the applicant and affirmed the decision not to grant a protection visa.

(c) The applicant has not appealed that decision. Instead on 16 October, 2002 he signed a form addressed to the Respondent whereby he "hereby request that you make arrangements for me to be returned to Israel/Palestine/Egyp" (sic). He has also informed the Departmental officers that he wishes to return to Palestine.

(d) The applicant has applied for a Palestinian passport. It is unclear to me whether he has provided all the information necessary for such a passport, but it is not alleged that the applicant has been unco-operative or that any delays are his fault.

(e) In response to the intimation from the Applicant, Departmental officers seem to have done the following:

(i) they have provided him with a travel document which will permit him to leave Australia, but which will not authorise him to stay anywhere else without further visas or other travel authorities.

(ii) the "Unauthorised Arrivals Section" of the Department has been involved in seeking the applicant's removal since 22 October, 2002. Internal inquiries have been made as to the possibility that the applicant might be received in particular countries, particularly Jordan and Algeria. So, for example on 18 November, 2002 an e-mail was sent to the Principal Migration Officer in Cairo. It would not appear that any response has been received. I note that on 16 January, 2003 Ms Keenan, a senior Departmental officer, made 2 affidavits which are filed herein. On that same day she directed that the Cairo e-mail be followed up. On 13 January, 2003 she directed that Departmental officers in the Australian embassy in Jordan be approached for assistance.

(f) It remains the view of Departmental officers that "the removal of [the applicant] from Australia is achievable and a number of options are yet to be exhausted."

2 The result of all this is that the applicant has been in detention for over 3 months since 16 October, 2002 notwithstanding that since that date he and the Minister are in complete agreement that he should leave this country as soon as possible. On current indications it would seem likely that the applicant will continue in detention for many months yet whilst the Department continues to make its own internal inquiries at what seems a leisurely pace, particularly given the lack of any response thus far from its overseas officers.

3 In these circumstances it is perhaps not surprising that the applicant seeks various orders against the Minister. Most particularly he seeks a declaration that he is unlawfully held, a writ in the nature of habeas corpus directing the Respondent to release the Applicant from detention forthwith and a writ in the nature of mandamus requiring the Respondent to comply with s 198 of the Migration Act, 1958 (Cth) ("the Act").

4 Sections 189, 196 and 198 of the Act relevantly provide:

"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.

(2) .....

196 Period of detention

(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.

.......

198 Removal from Australia of unlawful non-citizens

(1)An officer must remove as soon as reasonably practicable an unlawful

non-citizen who asks the Minister, in writing, to be so removed.

(2) An officer must remove as soon as reasonably practicable an unlawful

non-citizen:

.....

(c) who either:

(i) ...; or

(ii) has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined."

Section 5 of the Act defines "remove" as "remove from Australia". Consequently, the duty cast by s 198 is a duty to remove the detainee from Australia. On its face it says nothing about the detention or release of the detainee within Australia.

5 In Al Masri v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCA 1009 ("Al Masri") Merkel J considered a similar situation. In that case the detainee had been held in detention for some 8 months following his written request to return to Palestine. The Respondent had actively sought permission from Israel for his return, but that had been refused. The Respondent was still seeking his return through Jordan or Egypt, but they had both refused to accept him. Merkel J read the various provisions of the Act such that (at [21]),

"When s 196(1)(a) is read together with s 198 it is clear that detention is only to be until removal as soon as reasonably practicable."

Consequently His Honour concluded (at [39]):

"If a court is satisfied that the Minister is not taking "all reasonable steps" or that the removal is "not reasonably practicable" the implicit limitations upon the detention power will not have been complied with or met and continued detention of the removee will no longer be authorised by the Act."

6 The decision of Merkel J in Al Masri has been appealed, but judgment has not yet been delivered in that appeal. It has been followed by Mansfield J in Al Khafaji v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1369 (at [31) and by Finkelstein J in Applicant WAIW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1621 (at [8]) on the basis that their Honours were not convinced that Merkel J was "plainly wrong". It was followed but doubted by Jacobsen J in NAKG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1600 at [48]- [49]. It was also doubted by French J in WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625 ("WAIS") at [56]-[57]. It was not followed by Beaumont J in NAES v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 2 (at [17]) or by Whitlam J in Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 20 ("Daniel") (at [36]).

7 When interpreting legislation there is always the possibility that opinions may reasonably differ on the meaning and effect of various provisions. This is particularly so when much modern legislation that this Court is required to interpret is often prolix and its meaning unclear. Where several different interpretations are reasonably open it is important to follow previous authority, even if not binding and even if an arguably better interpretation appears to be available. This helps ensure consistency of approach which is a fundamental requirement of the rule of law and of maintaining public confidence.

8 On the other hand, where the interpretation of a statute is clear and obvious and the alternative non-binding interpretation plainly wrong, then to follow that interpretation notwithstanding its apparent error is also to subvert the rule of law. It would be to give greater weight to the reasoning of a Judge than to the words made by the Parliament. As the cases referred to above plainly show, there may well be disagreement as to whether a particular interpretation of a statute is correct or is doubtful, but not plainly wrong or is plainly wrong.

9 In this case my task is somewhat simpler. I am faced with two different, contradictory lines of authority. In these circumstances it is not necessary for me to decide whether one or other line of authority is "plainly wrong" or not. My task is to choose which of the two authorities I think is correct.

10 It seems to me that the relevant provisions in this case are clear and obvious. I prefer the approach in Daniel. I think that the approach in Al Masri is in error, primarily because the reasoning in that case seems largely to be based upon an attempt to discern analogies from previous cases, rather than seeking to interpret the plain words of the Act. As I read the Act "unlawful non citizens" must be detained (s 189 of the Act). Indeed, Commonwealth officers are under a duty to do so. The detention is to continue until they are removed from Australia, deported or granted a visa (s 196 of the Act).

11 This does not mean that the Federal Court cannot make appropriate orders for release from detention in cases where the court holds that the detention is unlawful because the detainee is not an "unlawful non-citizen". Nor does it deny the interlocutory powers of the court to release from detention where there is an arguable case that the detainee is unlawfully held because he or she is not an "unlawful non-citizen": see VFAD v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1062 (on appeal) [2002] FCAFC 390 at [113]. But that is not this case. In this case the applicant accepts that he is an "unlawful non-citizen".

12 I agree generally with the analysis by Whitlam J in Daniel and by French J in WAIS.

13 To the question whether the continued detention of the applicant is unlawful, the answer is "no". He is an "unlawful non-citizen". The relevant detention is authorised by ss 189 and 196 of the Act. It follows that habeas corpus will not go.

14 On the other hand, Commonwealth officers are to act "as soon as reasonably practicable" in order to effect the relevant removal or deportation (s 198 of the Act). This provision has nothing whatever to do with the release of the detainees into the community. If it did it would be practically inconsistent with s 189 of the Act. It would be absurd if this Court could order that a person be released when Commonwealth officers were under a duty, enforceable by this Court, to immediately detain them upon such release. Nor is there any need to read section 196 and 198 "together" if by this is meant that one or other should be read down. Both can sensibly be read giving them their usual and sensible meaning.

15 Section 198 does, nevertheless, impose a duty. The duty is imposed upon "an officer". Notwithstanding the comments by French J in WAIS at [48] that "an officer" means the respondent, it seems to me that with the specific definition of "officer" in s 5 of the Act, and the distinction drawn throughout the Act between the respondent and officers, has the effect that s 198 imposes a duty upon specific Commonwealth officers, not the Minister. Which officers are subject to the specific duty may well depend upon the facts of the particular case.

16 The duty imposed by s 198 is an onerous duty. The terms of the section make this clear. The Act does not envisage the permanent maintenance of camps for stateless persons. What it requires is that these persons be removed from Australia "as soon as reasonably practicable". The context of the Act reinforces the onerous nature of the duty imposed. Parliament clearly did not intend that persons would be detained indefinitely or even for long periods although the duty will remain until the detainees are, in fact, removed. The duty imposed by s 198 includes within it all the necessary preparatory steps that must be taken in order to achieve the relevant removal. In some cases this will require facilitation of transport to the airport; in others it may require international inquiries to ascertain if a person can be placed in a particular country. Specific officers may be subject to specific duties that are encompassed within the broader duty of removal in s 198 of the Act.

17 I must say that the attempts made thus far to discharge this duty in this case, at least as revealed in the affidavits, seem inadequate.

18 As Whitlam J noted in Daniel at [37] the duty imposed by s 198 is a duty that can be enforced by mandamus, save (perhaps) for any argument that might be made that the duty has, in effect, been removed from the Act by the privative clause: see s 474(3)(g) of the Act.

19 As both parties have accepted during their oral submissions, the current application for mandamus is not an appropriate vehicle for the consideration of these matters. It is directed to the Minister. The application requires that he comply with section 198 of the Act - a section which is not addressed to him. In any event the Minister and his officers claim that they are complying with that section.

20 If the applicant wishes to enforce the duty imposed by section 198 of the Act he is going to have to identify who is obliged to do what and in what manner they have failed. Obviously a judgment will need to be made as to what "reasonably practicable" means in the context of the individual officer concerned. These are issues which may need to be explored when and if appropriate proceedings are brought for that purpose.

21 Given the form of the current application for mandamus that too must be dismissed.

22 I will hear the parties as to costs.

I certify that the preceding twenty two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated: 30 January, 2003

Counsel for the Applicant:	Ms S O'Connor with Ms A Hamdan
Solicitor for the Applicant:	Hamdan Lawyers
Counsel for the Respondent:	Mr P Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 January, 2003
Date of Judgment:	30 January, 2003