Federal Court of Australia

Save the Children Australia v Minister for Home Affairs [2024] FCAFC 81

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    On or before 25 June 2024, the parties file any agreed proposed orders as to costs.

3.    In the absence of any agreement as to costs, on or before 2 July 2024, the parties file and serve any written submissions (limited to 5 pages) on an appropriate form of orders as to costs.

4.    Any proposed orders or any submissions in accordance with orders 2 and 3 of these orders will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from orders made by this Court in Save the Children Australia v Minister for Home Affairs [2023] FCA 1343 (primary judgment).

2    In Syria are two refugee camps, called Al-Roj and Al-Hol, where large numbers of women and children are held because of an actual or perceived association (voluntary or involuntary) that they have had with the Islamic State in Iraq and Syria (ISIS). It is not in dispute that most of the women were wives (again, voluntary or involuntary) of ISIS fighters, and the children were children of ISIS fighters. In these camps, especially in Al-Roj, are women and children with a connection to Australia. The primary judge proceeded, as we do, on the basis that each of these women is an Australian citizen, and each of the children whose circumstances underlie this proceeding is, or is eligible to become, an Australian citizen.

3    The appellant, Save the Children Australia (STCA) is a registered charity with the stated purpose of supporting children in need. Since around April 2019, STCA has been communicating with the Australian Government, seeking the return to Australia of Australian women and children in North-East Syria. STCA is authorised to act on behalf of certain Australian women and their children, who are detained in North-East Syria in camps including the Al-Roj camp. The primary judge referred, and we will continue to refer to, these Australian women and children as the STCA women and children. We will continue to use that term to refer to a slightly different sub-group who gave instructions to STCA to act for them on the appeal: see [28] below. The precise composition of the group does not affect any of the legal or factual issues on the appeal.

4    There are other Australian women and children who are detained in camps including Al-Roj camp but who have not authorised STCA to seek relief on their behalf. The primary judge referred to these women and children and the STCA women and children collectively as the “relevant women and children”. Before the primary judge, the respondents accepted that STCA had standing in respect of the STCA women and children: primary judgment [6]. There was a challenge to STCA’s standing before the primary judge in respect of the relevant Australian women and children who were not STCA women and children, which is renewed through a notice of contention in the appeal.

5    The Al-Roj and Al-Hol camps were established as refugee camps in the early 1990s. In 2012, the Autonomous Administration of North-East Syria was established. In September 2013, the United States of America and its allies formed a Coalition of countries to defeat Daesh/ISIS. The Coalition includes amongst its 86 nations the US, the United Kingdom and Australia. In 2015, the Syrian Defence Force was formed.

6    In a section of the primary judgment described as setting out “some general facts and matters that do not appear to be controversial between the parties” (at [24]), his Honour found (at [27]-[28] of the primary judgment):

AANES is the de facto governing authority over a region in North-East Syria that includes the Al-Roj camp. It is a non-state actor. SDF is the military wing of AANES and also a non-state actor.

AANES and SDF are reliant on support from the Coalition, including to improve security and ensure that the SDF has control of detention facilities.

7    From early 2019, the appellant began advocating with the Australian government for the return of Australian women and children from North-East Syria, and sought to draw the attention of the Australian government to the conditions in the camps.

8    In mid-2019, the Australian Government repatriated certain Australian citizens from North-East Syria. Then, around approximately 27 October 2022, the Australian Government repatriated four women and 13 children from Al-Roj camp to Australia. The primary judge set out the facts of this repatriation, including, from [51]-[54] of the primary judgment:

The evidence includes a DFAT file note of a meeting on 24 October 2022. This is a record of a meeting between a DFAT officer or representative and AANES. The file note records that the purpose of the meeting was “to co-ordinate arrangements for the repatriation of Cohort 1 on 27 October”, that is, the four women and their 13 children. The file note contains several further references to that group as “Cohort 1”. The file note includes:

… The Administration was eager to assist with a successful repatriation, but indicated they too had established a set of processes which they used with all countries conducting repatriation.

…

In closing the meeting [name redacted] stated that they saw the repatriation as a humanitarian activity and indicated that they look forward to future cooperation with Australia on foreign relation[s], humanitarian issues and the economy.

On 27 October 2022, Mr Innes-Brown met with AANES, signed the repatriation document as representative of the Australian Government and issued a short media statement on behalf of the Australian Government. On the same day, the four women and their children were released by AANES to the Australian Government. The women and children were then repatriated to Australia.

On 28 October 2022, Mr Innes-Brown sent an email to others at DFAT reporting on his meeting with AANES on the day of the repatriation (27 October 2022). He stated that the formalities “went smoothly” and that the meeting “was conducted in a positive tenor”. Attached to the email was a copy of the signed repatriation document. Mr Innes-Brown stated that he would write a full record when he returned the following week.

The evidence includes a file note prepared by Mr Innes-Brown of his meeting with AANES on 27 October 2022. The file note includes:

[name redacted] said AANES was appreciative of the efforts of the Australian Government to repatriate some women and children. At all times AANES had sought to play a facilitation role. They believed that women and children were victims of this war. For years AANES had been asking for a solution to ISIS families as the facilities of AANES were unable to deal with this challenge alone. Therefore they appreciated the Australian Government’s repatriation decision. He hoped this would lead to cooperation – not just on the repatriation – with AANES to support the establishment of security in the region.

…

I (Marc Innes-Brown) said the Australian Government was very appreciative of the cooperation of the Syrian Kurd authorities on repatriation arrangements. The cooperation had been very smooth. I also thanked them for the care they had provided to these Australian citizens over recent years. I also acknowledged the sacrifices made by the Syrian Kurds in the fight against Daesh (very similar to my public statement made at the conclusion of the meeting).

[name redacted] said he wished to reassure me that AANES was ready to cooperate with Australia to achieve humanitarian outcomes. …

Noting the plan to repatriate further groups of women and children and the long distance from Australia, I asked whether it would be necessary to travel to North and East Syria as part of this process. [name redacted] said yes – they preferred to have a senior Government official attend to take responsibility.

Additional notes: At no point did I make any commitment to undertake wider cooperation and/or provide funding for AANES. …

9    These facts assume some prominence in the parties’ contentions on appeal. At trial, the respondents did not call Mr Marc Innes-Brown, who was appointed as the Australian Government’s Special Envoy to liaise with AANES “to facilitate the return to Australia of Australians that are currently located in Al Roj Camp”. The failure to call Mr Innes-Brown was contended at trial to provide a basis for certain inferences the appellant sought to have the Court draw. The primary judge’s approach to these contentions formed part of the arguments on appeal.

10    Between at least October 2020 and February 2023, a number of other nations repatriated their nationals from North-East Syria, including from the Al-Roj camp.

11    Despite the appellant’s continued efforts, the relevant women and children have not been repatriated to Australia. The evidence discloses a long and full history of negotiations on behalf of STCA and others, culminating (for the purposes of this proceeding) with a formal request by STCA in May 2023 to the Australian Government, seeking that a decision be made about the repatriation of the Australian women and children remaining in Al-Roj camp. That request also had some prominence in some of the appellant’s contentions in the proceeding below.

12    The remaining Australian women and children were not repatriated, and on 5 June 2023 STCA filed proceedings in this Court. Its claims were summarised at [3] of the primary judgment:

By its originating application, STCA seeks the following relief (in summary):

(a)    an order that a writ of habeas corpus issue against the respondents in respect of the relevant women and their children, alternatively in respect of certain women and their children (31 people in total) who have authorised STCA to act on their behalf (the STCA Women and Children);

(b)    on the return of the writ, an order that the relevant women and children (alternatively, the STCA Women and Children) be released;

(c)    alternatively to (a) and (b), a declaration that, in making a decision not to repatriate the relevant women and children, the Minister for Home Affairs or another officer of the Commonwealth took into account a prohibited consideration, acted for an ulterior purpose, or acted unreasonably;

(d)    alternatively to (c), a declaration that, in failing to make a decision to repatriate the relevant women and children, the Minister for Home Affairs or the Commonwealth acted for an ulterior purpose or acted unreasonably;

(e)    alternatively to (d), mandamus, alternatively an injunction, compelling the Minister for Home Affairs or the Commonwealth by an appropriate officer to properly consider certain letters from STCA (dated 19 May 2023 and 23 May 2023) and to decide whether or not to repatriate the relevant women and children.

13    There is no challenge on the appeal to the primary judge’s findings on the judicial review claims, so it is not necessary to discuss those claims any further.

14    The challenge on appeal is to the primary judge’s conclusions and reasoning on the habeas corpus application. Relying on a series of cases from the UK, the appellant contended that where the Court entertains a doubt as to whether a respondent to an application for a writ of habeas corpus has control over the detention of the individual, the Court can “test” the asserted lack of control by using the “pressure of the writ”. The UK cases are Barnardo v Ford [1892] AC 326; R v Secretary of State for Home Affairs; ex parte O’Brien [1923] 2 KB 361; Rahmatullah v Secretary of State for Defence [2012] UKSC 48; [2013] 1 AC 614.

15    The primary judge summarised the propositions emerging from this series of UK cases at [103] of the primary judgment:

(a)    For a defendant or respondent to be amenable to a writ of habeas corpus, actual physical custody of the relevant person is not essential; it is sufficient if the defendant or respondent has control over the detention of the relevant person: O’Brien at 398 per Atkin LJ; Rahmatullah at [43] per Lord Kerr JSC, at [90]-[91] per Lord Phillips of Worth Matravers, at [109] per Lord Reed JSC.

(b)    The question whether a defendant or respondent has control over the detention of the relevant person is concerned with whether control exists in fact (as distinct from in law): O’Brien at 398 per Atkin LJ; Rahmatullah at [48] per Lord Kerr JSC.

(c)    Control may be established, for example, where there is an agreement or arrangement (whether or not legally enforceable) between the person who is detaining the relevant person and the defendant/respondent whereby the relevant person will be handed over upon demand: O’Brien at 398-399 per Atkin LJ.

(d)    If the Court is satisfied that the relevant person is not in the custody or control of a defendant or respondent, a writ of habeas corpus ought not issue: Barnardo at 335 per Lord Watson; O’Brien at 391 per Scrutton LJ; Rahmatullah at [109] per Lord Reed JSC.

(e)    Where a defendant or respondent contends that he or she does not have custody or control over the relevant person, and the Court is left in doubt about the matter, it is open to the Court to use the “pressure of the writ” to test whether the defendant’s or respondent’s contention is correct: Barnardo at 339 per Lord Herschell; O’Brien at 381 per Bankes LJ, at 392 per Scrutton LJ, at 399 per Atkin LJ; Rahmatullah at [45], [60], [63]-[64] per Lord Kerr JSC, [92] per Lord Phillips of Worth Matravers, [110] per Lord Reed JSC.

16    In terms of Australian authority, the appellant found support in a passage from the reasons of Gageler J (as his Honour then was) in Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 at [165]:

Amenability to the writ is determined solely as a question of whether the person to whom the writ is addressed has de facto control over the liberty of the person who has been detained, in relation to which actual physical custody is sufficient but not essential.

17    The primary judge accepted the appellant’s submission about control over custody or detention being sufficient to found the issue of a writ of habeas corpus, based on the UK authorities, including by reference to M68.

18    The primary judge also accepted that a writ of habeas corpus could issue, where the Court is left in doubt about the question of a respondent’s control over an individual’s detention, and the “pressure of the writ” could be used in an appropriate case to test whether a respondent’s assertion of lack of control is correct: primary judgment at [103(e)], extracted above. That proposition is challenged in the notice of contention.

19    However, his Honour rejected the application of these principles to the facts before the Court. His Honour found, in short summary:

(a)    the relevant women and children are in the custody of the AANES and/or the SDF;

(b)    there was no agreement or arrangement between the Australian Government and AANES to release or repatriate the relevant women and children and the Australian government therefore did not have power to effect their release;

(c)    the Australian Government may request repatriation of the relevant women and children which may be agreed by AANES, but it cannot be assumed that AANES will agree;

(d)    the Australian Government’s ability to make a request to AANES does not amount to control over the detention of the relevant women and children; and

(e)    the relevant women and children were not in the custody or control of the respondents.

20    The primary judge concluded that a writ of habeas corpus should not issue.

STCA’s appeal

21    There are five substantive grounds of appeal: see notice of appeal dated 1 December 2023. Ground 6 is a rolled up ground, dependent for its success on at least one of the former grounds.

22    Grounds 1 and 2 concern the primary judge’s factual findings about whether the respondents in fact had control over the detention of the relevant women and children.

23    Ground 3 concerns the primary judge’s refusal to issue a writ of habeas corpus to “test” the respondents’ contentions about lack of control. In submissions, the appellant described this as the “sufficient doubt” question. This was a prominent plank of its appeal arguments.

24    Grounds 4 and 5 concern the primary judge’s approach to determining whether control existed, by distinguishing the present situation from those in the UK authorities where, at some point, the individual had been in the custody or control of the respondents (Barnardo and O’Brien), or there was what the primary judge considered to be a clearer foundation in a formal agreement that could be said to give the respondent control over the custody of the individual (Rahmatullah): see primary judgment at [107].

The respondents’ notice of contention

25    By ground 1 of the notice of contention dated 15 February 2024 the respondents contend the orders can be affirmed on the ground that the primary judge should have found that the appellant:

did not have standing to bring the proceeding on behalf of the ‘remaining Australian women and children’ who were not ‘STCA-authorised remaining Australian women and children’;

26    By ground 2, while accepting that control over the custody of an individual may be sufficient, the respondents contend the primary judge erred in accepting, (if his Honour did so at [108]) the proposition that a writ of habeas corpus can issue to “test” whether the respondent has control over the custody of an individual, in circumstances where the Court has some doubt.

Resolution

Jurisdiction, standing, power and remedies

27    There was no dispute about the Court’s jurisdiction, the agreed source being s 39B(1) of the Judiciary Act 1901 (Cth): primary judgment at [5].

28    There was no dispute that the appellant has standing to seek relief on behalf of the group of women and children who have authorised it to continue this proceeding. The people in that group changed slightly after trial and the composition of the slightly different group can be found in the affidavit of Rita Jabri Markwell sworn 7 May 2024. That affidavit is subject to a suppression order prohibiting the disclosure, in connection with this proceeding, of the names and other identifying details of the women and children described in that affidavit. Although the group is slightly different in its composition from the group which expressly instructed STCA at trial, we shall continue to refer to this group as the STCA women and children.

29    In light of the conclusions we have reached, it is not necessary to determine the wider standing argument raised by ground 1 of the respondents’ notice of contention about the relevant Australian women and children who have not authorised STCA to act on their behalf.

30    As we have noted, at trial the appellant relied on the common law process for a writ of habeas corpus. On the basis of McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602, there was no dispute this Court had power to issue a writ of habeas corpus: primary judgment at [5].

31    The appeal centres on whether the Court should issue a writ of habeas corpus directed to the Commonwealth of Australia; the first step in the common law process. The primary judge clearly proceeded on the basis of the two-stage common law process and accepted the Court was only concerned with whether the writ should issue to compel production to the Court of the STCA women and children: primary judgment at [3]-[4]. It is at this first stage that the appellant sought to employ the concept of control, and the “substantial doubt” cases to which we have referred at [14]-[15] above.

32    In oral argument in the appeal senior counsel for the appellant appeared to concede that the second stage ([3(b)] in the primary judgment) might never be necessary because once the STCA women and children crossed the border and entered Australia, the Commonwealth would neither have nor assert any lawful basis to detain them so as to “produce” them to the Court. Therefore, there would be no need to order their release, and no occasion to determine whether they had been lawfully detained in North-East Syria, as they would already be free (cf C3 v Secretary of State for Foreign, Commonwealth and Development Affairs [2023] EWCA Civ 444; [2023] 3 WLR 529 at [57] (Underhill LJ)). Senior counsel for the respondents appeared to embrace this as correct. In other words, in this proceeding, the writ is sought to be used to compel the repatriation of the women and children in Al-Roj camp to Australian territory, although senior counsel submitted he was confident the (adult) individuals concerned would give undertakings to appear in court if they were repatriated.

33    Two further matters concerning power and process should be noted. First, s 23 of the Federal Court of Australia Act 1976 (Cth) is a broad remedial power, including the power to issue “writs of such kinds” as the Court thinks appropriate. In the light of McHugh at [20] (Allsop CJ), [75] (Besanko J) and [190] (Mortimer J), s 23 should be regarded as the source of power to grant both writs of habeas corpus in the traditional form and orders “in the nature of habeas corpus” which simply direct the release of a person from detention. Forensically, the latter course appears not to suit the appellant’s arguments, because of the perceived need to rely on the three UK cases and the contention that the Court could issue a writ to “test” the Commonwealth’s asserted lack of control over the custody of the Australian women and children. Hence the reliance on the two-stage common law process, notwithstanding this Court has no rules, form or procedures for common law habeas corpus. It is not necessary to decide whether, if the approach and principles in the three UK cases are sound (a matter contested by the respondents in their notice of contention), the Court should issue writs in the traditional form or fashion the relief in some other way.

34    Second, the question about whether a decision and order to issue a writ of habeas corpus is properly characterised as an interlocutory or a final decision is a distraction in the circumstances of the present appeal. The primary judge made orders dismissing the appellant’s application and that is a final order. The characterisation issue only arose at trial in the context of rulings the primary judge needed to make on the admissibility of certain evidence: see [23(a)] of the primary judgment. His Honour’s reasons demonstrate the evidence rulings were not dependent on the character of the orders he was asked to make, or the character of the application before him. Either way, as [23(a)] of the primary judgment reveals, the evidentiary rulings would have been the same. The evidentiary rulings are not challenged on the appeal. For that reason we say no more about the passing references in McHugh to an application for habeas corpus being interlocutory in nature. The orders from which this appeal has been brought were final orders. The finding that his Honour made at [108] of the primary judgment, to the effect that the Australian government did not have control over the detention of the relevant women and children, must therefore be treated as having been made after a final hearing.

Relevant factual matters not in dispute for the purposes of the appeal

35    We have set out some of the uncontentious factual background at [2] to [11] above.

36    AANES and/or SDF has physical custody of the STCA women and children. They are deprived of their liberty. We describe this as the detention of the STCA women and children. The findings of the primary judge at [29] were not challenged on the appeal:

AANES and/or SDF have control over detention facilities and camps in North-East Syria, including the Al-Roj camp. SDF guards the perimeter of the Al-Roj camp. Within the camp, most security is provided by the all-female YPJ (People’s Protection Force), a component of SDF. Ambassador Galbraith describes Al-Roj as a “prison camp”. As with any prison, the responsible authorities (in this case, SDF, YPJ and AANES) restrict the movement and activities of detainees. Conditions in the Al-Roj camp are described in the Tinkler Statement and the report of Ambassador Galbraith.

37    The detention of the STCA women and children by AANES and/or SDF at Al-Roj camp in North-East Syria is not contended by the respondents to be lawful. Further, if the Court finds the Commonwealth has control over the custody of the STCA women and children, the respondents do not contend the detention of the STCA women and children in those circumstances by the Commonwealth is lawful. Senior counsel confirmed that no contention about lawfulness would be made on the return of any writ of habeas corpus issued by the Court.

38    The respondents do not dispute that Australian law recognises that it is sufficient for habeas corpus to issue, or for an order of that nature to be made (including an order as to release), if it is proven that a respondent has control over the detention or custody of a person, and for such purposes control in fact is enough: M68 at [165] (Gageler J); O’Brien at 398 (Atkin LJ); Rahmatullah at [43], [48] (Lord Kerr JSC), [90]-[91] (Lord Phillips), [109] (Lord Reed JSC).

39    In argument, the shorthand “control” was used to refer to what, it was clear from the submissions made after question from the Court, was intended to be a reference to control over the custody or detention of an individual. That is what the word “control” means in this context. Senior counsel for the appellant accepted in oral argument that this notion of control imports a relationship between the respondents and the person with physical custody that means the person with physical custody can be required to produce or hand over the person. The concept of obligation comes, senior counsel for the appellant accepted, from the existence of the alleged arrangement or agreement. The alleged arrangement or agreement is the source of the relationship and the obligation.

40    We accept those oral submissions are a fair representation of how the appellant’s case is put, and that a case of this nature falls within the UK authorities on which the appellant relied.

41    Although considerable time was spent on both sides on this issue, it became clear during oral argument that there was no real dispute by the respondents that, in principle, the Commonwealth could have control over the custody of an individual who was physically detained outside Australian territory, and that this control could arise because of the existence of an agreement or arrangement that demonstrated the Commonwealth had such control. The reasoning of Gageler J (as his Honour then was) and Gordon J in M68 provides an example. The lawfulness of any exercise of power by the Commonwealth in such a circumstance was accepted by the respondents to be a separate issue. Given the agreed basis on which this matter proceeded, it is not necessary to explore that issue further.

The legal error grounds (grounds 3, 4 and 5; notice of contention ground 2)

42    Given the other conclusions we have reached, we can assume that the primary judge was correct to accept that the principles in Barnardo, O’Brien and Rahmatullah form part of the common law to be applied in Australia, as he did at [103(e)] of his reasons, namely:

Where a defendant or respondent contends that he or she does not have custody or control over the relevant person, and the Court is left in doubt about the matter, it is open to the Court to use the “pressure of the writ” to test whether the defendant’s or respondent’s contention is correct: Barnardo at 339 per Lord Herschell; O’Brien at 381 per Bankes LJ, at 392 per Scrutton LJ, at 399 per Atkin LJ; Rahmatullah at [45], [60], [63]-[64] per Lord Kerr JSC, [92] per Lord Phillips of Worth Matravers, [110] per Lord Reed JSC.

43    Therefore, it is not necessary to determine ground 2 of the notice of contention. That should await a case where, on the facts, the Court is persuaded there is sufficient doubt about whether a respondent has control over the detention of a person for these principles to be engaged.

44    It may also be the case that, if these principles are applicable, they are not confined in their application to the process of a common law writ of habeas corpus, but extend to other orders that might be made under s 23 of the FCA Act. It is not necessary for us to decide this, but it is important to continue to emphasise the contemporary legal and statutory context in which this Court operates, and to re-iterate that this Court is not confined in its powers to the technicalities (both of law and process) of orders reflecting the common law writs.

45    The principles about control over custody not being in issue, the real thrust of the error alleged by the appellant is that the primary judge ought not to have made a factual finding of the kind he did at [12(a)]:

I am satisfied (on the balance of probabilities) that the respondents do not have control over the detention of the relevant women and children. Accordingly, in my view, a writ of habeas corpus should not issue.

(Emphasis added in bold.)

46    It can be accepted in the appellant’s favour that in [12(a)] the primary judge was referring to the first stage of a common law habeas corpus process — the issue of the writ, before the return at which the Commonwealth either produces the person, or explains why they cannot.

47    Grounds 3, 4 and 5 all challenge this finding in different ways, hence the prominence in the appellant’s arguments on appeal of the phrase “substantial doubt”. In essence, the appellant submits that, despite his Honour finding on the balance of probabilities that the Commonwealth did not have control over the detention of the relevant women and children, the primary judge should have found that there was sufficient doubt on the evidence as to that question to justify the issue of the writ in order to test whether the respondents’ contention of lack of custody or control is correct.

48    It is clear from the primary judge’s reasons read as a whole and in their proper context that his Honour was confident on the evidence before him that there was no arrangement or agreement between the Australian Government and AANES relating to the release or repatriation of the Australian women and children: see [106] of the primary judgment.

49    His Honour was not left in any doubt by the evidence, so the principles in the three UK cases were not engaged. That is the correct reading of the primary judge’s reasoning and, in particular, the terms of [106] and [108] bear this out. Especially the following passage at [108] of the primary judgment:

I consider that this evidence makes clear that there is no agreement or arrangement between the Australian Government and AANES regarding release or repatriation of the relevant women and children and that the Australian Government does not otherwise have control over the detention of the relevant women and children. In these circumstances, a further hearing on the return of the writ is not necessary to ascertain the true position or to test whether the respondents’ contentions are correct. Therefore, I do not consider the approach adopted in Barnardo, O’Brien and Rahmatullah to be appropriate in the circumstances of this case.

(Emphasis added in bold.)

50    It is useful to situate these findings in the context of what needed to be proved, and by whom, for the writ to issue.

(a)    There is no doubt that, in an application for habeas corpus, the applicant must prove that the liberty of the person subject to the writ is being restrained by the respondent (see eg McHugh at [60] (Allsop CJ), [90] (Besanko J), [254], [274] (Mortimer J)). It is then up to the respondent to justify that restraint, at least if a serious issue (ie a case fit to be considered) is raised as to its lawfulness. Assuming the correctness of the UK authorities, the formulation of the issue by Lord Kerr of Tonaghmore JSC in Rahmatullah at [64] is sufficient for present purposes:

An applicant for the writ of habeas corpus must therefore demonstrate that the respondent is in actual physical control of the body of the person who is the subject of the writ or that there are reasonable grounds on which it may be concluded that the respondent will be able to assert that control.

(b)    These matters must be proved to the civil standard — that is, on the balance of probabilities — and on the evidence.

51    It follows that the primary judge was deciding whether the evidence demonstrated a sufficient prospect of the Commonwealth having control over the detention of the relevant women and children to engage the reasoning in the UK cases. The effect of the findings expressed at [106] and [108] is that no such prospect had been shown, because the evidence made “clear” that there was no arrangement or understanding capable of conferring that control (and the Commonwealth did not otherwise have control over their detention). His Honour was satisfied to the contrary of what the appellant needed to prove. The fact that his Honour did not express himself by using the language of doubt (eg “there is no sufficient doubt”) is a matter of style rather than substance. Indeed, references to doubt are apt to cause confusion in circumstances where all relevant findings are to be made on the balance of probabilities. Such a finding does not require exclusion of the possibility that the contrary is true. Lord Kerr’s formulation (“reasonable grounds on which it may be concluded that the respondent will be able to assert that control”) comes closer to capturing what would need to be established. The primary judge’s findings are inconsistent with the existence of any such “reasonable grounds”.

52    The UK cases (again, assuming their correctness) do not deny that a writ of habeas corpus should not issue “if the Court is satisfied that the body whose production is asked is not in the custody, power or control of the person to whom it is sought to address the writ”: O’Brien at 391 (Scrutton LJ); see also Barnardo at 333 (Lord Halsbury), 335 (Lord Watson), 339 (Lord Herschell); Rahmahtullah at [44] (Lord Kerr JSC), [109] (Lord Reed JSC). In Rahmahtullah, for example, the Divisional Court initially declined to grant a writ of habeas corpus because it considered that the evidence as to the extent of control was clear (that is, that there was no more than a possibility that the US would accede to a request by the UK for Mr Rahmahtullah’s release). Although the Court of Appeal and the Supreme Court ultimately reached a different conclusion, Lord Reed JSC did not consider that there was any error in principle in the Divisional Court’s approach: Rahmahtullah at [111].

53    In our opinion no legal error was made by the primary judge. His Honour’s reasons disclose he well understood (and indeed accepted) the legal principles for which the appellant contended, and how they were said to apply to the evidence. His Honour simply did not accept that the evidence engaged those principles.

54    There was no legal error and grounds 3, 4 and 5 of the notice of appeal are not made out.

55    That being the case, the true field of debate on the appeal was whether the primary judge’s factual conclusions concerning the existence of an arrangement or agreement between the Commonwealth and AANES, and in turn the Commonwealth’s control over the detention of the STCA women and children, disclosed error.

The factual error arguments (grounds 1 and 2)

56    Senior counsel for the appellant agreed that the way the appellant put its case at trial and on appeal is that the Commonwealth’s alleged control over the detention of the STCA women and children arose because of an overarching arrangement or agreement between the Commonwealth and AANES that Australians in Al-Roj camp will be repatriated on request by the Australian government. The appellant submits that, considered as a whole and applying the principles of how to approach circumstantial evidence, and the drawing of inferences, the evidence supported the existence of “some sense of mutuality”. It contended the evidence disclosed a relationship between the Commonwealth and AANES as the organisation with physical custody, of a kind that meant AANES was obliged to produce or hand over the STCA women and children if the Commonwealth sought for that to occur.

57    The appellant did not contend below or on appeal that, in the absence of any such overarching arrangement or agreement, an indication by AANES that it would release the relevant women and children (and facilitate their repatriation) upon a request being made by the Australian government would be sufficient of itself to support a finding that the Commonwealth had control over the custody of those women and children by AANES. Arguments to that effect were recently rejected by the UK Court of Appeal in C3.

58    The appellant identified eight (in substance, seven) strands or pieces of evidence which it submitted “comfortably create the requisite doubt for a writ to issue”: appellant’s written submissions at [8]. Alternatively, the same evidence was contended to prove control on the balance of probabilities (contrary to the express finding of the primary judge).

59    It can be accepted that the appellant’s case on the evidence is a circumstantial one. The question is what is the more probable inference from the circumstances established by the evidence, in terms of the allegation made: see Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5 (Dixon, Williams, Webb, Fullagar and Kitto JJ).

60    The High Court continued (at 5):

In questions of this sort where direct proof is not available it is enough [if] the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.

61    It can also be accepted that, in a case based on circumstantial evidence, the Court should be careful to ensure that:

all of the circumstances that are established by the evidence are … considered and weighed in deciding whether the circumstances raise a more probable inference in favour of what is alleged.

(Citations omitted.)

Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 at [169], citing a number of authorities about which there was no real debate.

62    We accept the Court should carefully consider the eight (or, in substance, seven) evidentiary threads identified by the appellant, and do so cumulatively. In considering the inferences that are properly available from the circumstantial evidence, the Court must also give careful consideration to the contended application of the principle in Blatch v Archer (1774) 98 ER 969, and the more specific principle in Jones v Dunkel [1959] HCA 8; 101 CLR 298, which is contended to apply to the failure to call Mr Innes-Brown as a witness. We also accept the relevant principles were recently summarised in Moore v Goldhagen [2024] VSCA 25 at [81]-[90], a summary with which we respectfully agree.

63    Before turning to the seven pieces of circumstantial evidence emphasised by the appellant, it should be noted that it was common ground between the parties that there was, at some point, some kind of arrangement between the Commonwealth and AANES. They differed on its nature and content, and whether it gave the Commonwealth control over the detention of the STCA women and children. But the Commonwealth accepted that by 27 October 2022 or 28 October 2022 there was an arrangement in place for the particular Australian women and children who were in “Cohort 1”. While the Commonwealth did not concede that after this date it had any control over the detention of the Australian women and children in Cohort 1, it did concede there was an arrangement to repatriate in effect and the circumstances had moved beyond a mere repatriation request by the Commonwealth.

The terms of Mr Innes-Brown’s appointment

64    It was common ground that around September 2022 Mr Innes-Brown was appointed as the “Australian Government’s Special Envoy”. There was no contextual evidence about the circumstances in which the Australian government might appoint a “Special Envoy”, as it appointed Mr Innes-Brown.

65    The parties differed about the nature and extent of his role, insofar as it could be gleaned from the documentary evidence. There was a small amount of affidavit and oral evidence about Mr Innes-Brown, but it threw no real light on the nature of his role. There was little contextual evidence adduced by the respondents about Mr Innes-Brown’s appointment, nor how he came to be involved in the return of Australians held in Al-Roj camp. Ms Kathleen Logan, the First Assistant Secretary of the Pacific Strategy Division in the DFAT, deposed (at [43]):

Australian officials led by Mr Marc Innes-Brown who was then the Australian Government Special Envoy and First Assistant Secretary of DFAT's Middle East, Africa and Afghanistan Division, liaised with AANES representatives via email and then met them in person to request the AANES to allow Australia to repatriate the women and children , to learn what AANES required of Australia before it would allow that to occur and to negotiate terms acceptable to both parties.

66    And in re-examination at trial Ms Logan gave the following evidence:

MR LENEHAN: Yes. Your Honour, I have some questions in re-examination. Ms Logan, you’ve been asked a number of questions about Mr Innes-Brown and his role as special envoy. Do you recall those questions?---Yes.

Do you know how it is that he came to be appointed to that role?---The joint agency taskforce was looking for a representative to perform that function and I proposed Mr Innes-Brown fulfill that function.

67    During oral argument on the appeal, it appeared to be common ground that Mr Innes-Brown still held a position in DFAT at the time of trial. There was no contention he was unavailable to give evidence. The respondents did not call him; the appellant did not seek to issue a subpoena to him. There was no evidence he had been actively involved in the discovery process. The respondents produced several documents of which Mr Innes-Brown was the sender or author, but the nature and extent of his involvement in the discovery process was not disclosed in the material filed by way of discovery.

68    We turn now to what the evidence does disclose, rather than what it does not. It is these pieces of documentary evidence on which the appellant relied.

69    The first communication from Mr Innes-Brown in evidence that related to his Special Envoy role was an email on 27 September 2022 to an AANES official, who was described as the “Head of the Office of External Relations, Autonomous Administration of North and East Syria”.

70    Again, it appeared to be common ground in the proceeding that AANES, while a non-state actor, was what the primary judge described as the “the de facto governing authority over a region in North-East Syria”: primary judgment at [27]. On the evidence, AANES presented itself and appeared to operate very much like a government with representatives and departments, as illustrated by the AANES official’s position description above. That is even more apparent from communications where Mr Innes-Brown addressed, on multiple occasions, AANES officials as “Your Excellency”.

71     Mr Innes-Brown’s email on 27 September 2022 relevantly stated (as annexed to the affidavit of Ms Logan):

I wish to my convey [sic] congratulations on your appointment as the Head of the Office of External Relations of the Autonomous Administration of North and East Syria. I wish you every success in this important role.

I am also writing to introduce myself and to advise you that I have been appointed as the Australian Government's Special Envoy to liaise with you and your Administration to facilitate the return to Australia of Australians that are currently located in Al Roj Camp. The Australian Government wishes to repatriate 4 women and 13 children from Al Roj camp to Australia in coming weeks, subject to appropriate checks. I would be grateful for your assistance in supporting and facilitating this proposal.

(Emphasis added in bold.)

72    The appellant placed emphasis on the words in bold. In substance, it contended that from the first communication by Mr Innes-Brown, it was apparent there was an overall arrangement proposed by the Australian government in relation to all Australian women and children in the camp, and not just the four women and 13 children referred to.

73    The names of the Australian women and children referred to were then set out in Mr Innes-Brown’s email.

74    Mr Innes-Brown continued:

Given the sensitivity of this matter I would be grateful if you could keep this proposal confidential and without publicity.

I am available by email, zoom call/webex or telephone call (numbers below) to discuss any of the details. As part of this process I would also be willing to travel to Qamishli for discussions with you on this proposal. You can contact me at any time.

I look forward to working with you[.]

75    We accept the appellant’s written submissions that the:

terms … [of the communication] are not supplicatory, and did not seek permission to repatriate; they express Australia’s “wish” to do so, and sought the AANES’ “assistance in supporting and facilitating”.

(Original italics.)

76    We accept that to some extent the language used reinforces language used later, with such terms as “cohorts” and “Cohort 1” and the term “plan”. We discuss these below. They are not enough to justify the factual conclusions urged by the appellant.

The nature and form of the AANES “Procedures Required for the Repatriation of Foreign Nationals”

77    The next day, 28 September 2022, an email reported a meeting between a DFAT officer or representative and the External Affairs Office of AANES. That email was in evidence and is quoted, in part, by the primary judge at [38]. It was in this meeting that AANES informed the Australian officials about the “procedures” they had created to facilitate and effect repatriation. In this email there are several references to a repatriation “operation” by the Australian government, in the singular. The respondents sought to make something of the use of the singular on repeated occasions. We would hesitate to read too much into the use of the singular. It is equally capable of covering a description of an overall arrangement to repatriate all Australian women and children or only an arrangement to repatriate the four women and 13 children in what came to be described as “Cohort 1”. The same is true of an email sent by the AANES Department of Foreign Relations on the next day, 29 September 2022, which referred to the “repatriation process” and a visit to North-East Syria (in the singular) by Australian officials. It also referred to an attached document which included the “procedures” to be followed when conducting “repatriation processes” (emphasis added in bold). The language is equivocal.

78    The “procedures” referred to in this meeting and communication were in evidence. In nature, they were a stand-alone document addressed to all countries who may have nationals in the North-East Syrian camps whom they sought to repatriate. The primary judge set the procedures document out in full at [39] of the primary judgment:

The evidence includes an AANES document headed “Procedures Required for the Repatriation of Foreign Nationals”. The procedures were as follows:

The Autonomous Administration of North and East Syria (AANES) sets forth the following procedures for countries to repatriate their citizens from North and East Syria (NES).

1-    The country is expected to submit an official request to repatriate its citizens by sending an email from the official email address of its Foreign Ministry to the official email address of the Department of Foreign Relations (DFR) in the AANES, which is [email address redacted]. The two sides will arrange either an in-person or a virtual meeting to discuss the procedures.

2-    The country should provide the DFR with a list of names, photos, or any other relevant information about their nationals.

3-    The DFR will share the list with the Camps Administration and Rehabilitation Centres to identify them, check their conditions, and facilitate and arrange the repatriation process.

4-    The DFR will communicate with the country to set a convenient date, agreed upon by both sides, for repatriation. An official delegation representing the Ministry of Foreign Affairs is expected to visit NES to take back their citizens.

5-    The DFR will provide logistical support to facilitate the process, and will send the protocol officers to accompany the delegation from the border to the headquarters of the DFR in Qamishli, where the delegation will receive their citizens.

6-    The two sides will sign a repatriation document that is prepared by the DFR, and each party will get a signed copy.

7-    The head of the visiting delegation is expected to make a short media statement to thank the AANES for its cooperation and for facilitating the process of repatriation and providing care for their citizens during their presence in the AANES regions. They should kindly refer to and acknowledge the sacrifice of the Syrian Democratic Forces and their role in fighting against terrorism. Any further remarks can be added to the statement, if the delegation so desire.

8-    The repatriation is usually conducted [place details redacted]. However, the AANES is open to consider other options.

9-    We enclose a copy of the repatriation document.

79    The respondents contend the only “official request” for present purposes was the one submitted in October 2022. The appellant submitted that is readily explained because the October 2022 cohort was only “Cohort 1” of a wider arrangement.

80    On any view of the evidence, the repatriation of Australian women and children was proposed to be undertaken in stages. So much is apparent from the language of “cohorts”. The procedures document is, in our opinion, aimed at each repatriation operation undertaken by a country — whether there is one, or more than one. That is hardly surprising as what is occurring is the release of identified individuals from custody. The procedures will be specific to who is being released, and the timing and logistics of that particular release.

81    The respondents sought to make something of the repeated use of the term “repatriation”, to submit that the procedures concerned return of nationals to their countries of nationality and not simply giving those nationals their freedom. This was said to undermine the appellant’s case that the Commonwealth had control of the custody of the STCA women and children, because the procedures were about more than giving the STCA women and children their liberty.

82    In the context of the nature and purpose of the camps, it is unsurprising that the emphasis from AANES in its dealing with foreign governments is on repatriation. Dr Anan Alsheikh Haider, Research Fellow, Institute for International Peace and Security Law, University of Cologne Albertus-Magnus-Platz, Cologne, provided evidence that these individuals are regarded as foreigners and immigrants who are unlawfully in Syrian territory. We infer the AANES is likely in those circumstances to focus the attention of foreign governments on taking their nationals back to their countries of nationality. Again, this emphasis in the procedures says little or nothing in our opinion about whether there was an arrangement sufficient to justify a finding that the Commonwealth controlled the custody of the STCA women and children. For example, there is nothing specifically in the evidence to suggest that AANES would have any objection, or even turn its mind to, whether the individuals taken from the camps in fact went to their country of nationality or to a safe third country. AANES was, we infer, concerned with the individuals being removed from North-East Syrian territory, and there was an assumption such individuals were being repatriated to their countries of nationality. An expectation that the unlawful presence of the relevant women and children in North-East Syrian territory would be brought to an end as an incident of their release is not of itself inconsistent with the existence of an arrangement under which the Australian Government can require that release.

83    The appellant submitted (at [14] of its written submissions):

His Honour’s characterisation of the Procedures (J[55], [56], [106]) as requirements “imposed” by the AANES is inapt. They are not an imposition by the AANES upon a supplicant Australia, but show cooperative “support and facilitation” of Australia’s “wish.” Their pro forma nature and portability help show an ongoing understanding or arrangement.

(Original italics.)

84    We do not consider his Honour was in error to use the term “imposed”. While the procedures might be functional, as the appellant contended, they set out a process for all countries to follow if they wished to take their nationals from North-East Syria. There is no suggestion in the evidence that there was any way to remove individuals other than by following the procedures AANES had set out. Whether each and every step was a strict precondition (eg a media statement) is beside the point. The point is that the entity with physical and direct custody of these individuals, the entity who was in every practical and physical sense detaining these individuals, had given some thought to the steps it considered appropriate before releasing those individuals from its custody.

References in correspondence to “cohorts” of detainees

85    The appellant contended, and the respondents did not dispute, that the term “Cohort 1” was used to describe the four women and 13 children repatriated in October 2022. This is said, by the appellant, to imply a wider arrangement, of which this repatriation was but the first part. A “Record Overview for [redacted] Foreign Relations confirm repatriation…” in respect of a meeting on 24 October 2022 (annexed to the affidavit of Professor Gregory Barton) uses this term, for example:

The purpose of the meeting was to coordinate arrangements for the repatriation of Cohort l on 27 October.

86    The appellant also relied on the following evidence from Ms Logan during cross examination at trial:

See? All right. Now, just to be clear, I just want to ask a couple of things about that particular email there. Do you agree with me that the people who are named in that – in the column there are the ones who are referred to in other correspondence as cohort 1?---Yes.

And the term “cohort”, was that a term that you coined or somebody else?---It was a word used in the Joint Agency Task Force.

Yes. And it – so that wasn’t the first time – sorry. Well, well, it had been used – it had been used in earlier planning, correct?---Correct.

Because you had to envisage the scenario of different cohorts, correct?---Correct.

87    We accept that this evidence should be considered in particular with the evidence describing what was occurring as a “plan”. Again, however, we are not persuaded this results in a conclusion favourable to the appellant’s case about the existence of an overarching arrangement that in fact gave the Commonwealth control over the custody of the STCA women and children while they were in Al-Roj camp.

The “plan” and the exchange on 28 October 2022

88    A few days after the successful repatriation of the four women and 13 children from Al-Roj, on 1 November 2022, Mr Innes-Brown reported, by way of file note, on his conversation on 27 October 2022 with the AANES official who held the position of the Deputy Co-Chair of Foreign Relations of the AANES. In that file note, Mr Innes-Brown recorded that in the conversation, the AANES official described AANES’ role as one of “facilitation”, the women and children in the camps being viewed by them as “victims of war”. Mr Innes-Brown also recorded a statement by the official that AANES was “ready to cooperate with Australia to achieve humanitarian outcomes”. The appellant emphasised this conversation was occurring after the successful repatriation of the four women and 13 children. In that context, the appellant places particular emphasis on what Mr Innes-Brown records himself as then stating:

Noting the plan to repatriate further groups of women and children and the long distance from Australia, I asked whether it would be necessary to travel to North and East Syria as part of this process. [name redacted] said yes - they preferred to have a senior Government official attend to take responsibility.

(Emphasis added in bold.)

89    Contrary to the respondents’ contention, we consider that the words in bold record part of what Mr Innes-Brown said to the AANES official. Read in context with the rest of the paragraph, which refers to future visits, that is the correct interpretation. We find it is probable that at the time of the conversation Mr Innes-Brown understood the Australian government planned further repatriations, with AANES facilitating the release of the Australian women and children from the Al-Roj camp in the same way it did with the first cohort, and that he mentioned the existence of this plan to the AANES official.

90    It does not follow, however, that the “plan” being discussed here constituted an agreement or arrangement entered into between the Australian government and AANES. The more natural interpretation of the file note is that Mr Innes-Brown informed the AANES official that the Australian government envisaged repatriating further groups of women and children and sought clarification of the steps that would be necessary to bring that about.

Documents concerning the commitment of the AANES to repatriation

91    Some of the evidence we have extracted to this point supports the proposition that the AANES has a commitment to repatriating foreign nationals held in the camps. The respondents did not seriously dispute that proposition and the proposition is comfortably established by the material before the Court.

92    The appellant criticised the primary judge’s finding at [106] that the agreement of the AANES to repatriation “cannot be assumed”. The respondents faintly sought to support this finding by reference to the evidence about an assessment capable of being carried out by AANES concerning whether any of the individuals they are detaining were involved in activities AANES might consider unlawful. Dr Haider’s report had a statement to this effect. However, and with respect, we do not consider the evidence as a whole supports this particular statement by the primary judge at [106], at least if it is understood as a statement concerning AANES’s future behaviour.

93    In our opinion the evidence is clear that on the balance of probabilities AANES will cooperate and facilitate any repatriation of women and children in the circumstances of the STCA women and children. Other hypothetical scenarios are just that. The chronology produced by the appellant, supported by the evidence, shows a clear pattern of regular repatriations by a large number of countries, all assisted and facilitated by AANES. The procedures document supports the inference that AANES is committed to repatriating foreign nationals like the STCA women and children held in the Al-Roj camp. Other evidence makes it clear it is resource intensive to continue to detain them in the camps, and that AANES are conscious of the humanitarian situation. Further, evidence established that the Australian women and children are detained unlawfully under AANES’ own governing principles, Syrian law and international law.

94    Although all of this evidence favours the factual proposition advanced by the appellant that AANES was agreeable to repatriation of individuals in the camps, it does not result in a conclusion favourable to the appellant’s case about the existence of an arrangement that in fact gave the Commonwealth control over the custody of the STCA women and children while they continue to be in Al-Roj camp. It goes no further than providing a probative basis for the proposition that if the Australian government were to continue with the plan that we have found on the evidence existed in late 2022, AANES would cooperate and facilitate the repatriation of the STCA women and children. To the extent the primary judge intended to convey that AANES’ cooperation should not be regarded as overwhelmingly likely, we respectfully disagree. However, in the context of our overall findings against the appellant’s case, it is certainly not appropriate to describe that as an “error” by his Honour.

Evidence about the Coalition

95    The appellant then relied on the existence, purpose and function of the Coalition, which the primary judge described at [26] and [28] of the primary judgment:

Australia is a member of the Coalition, which was formed in 2014 to combat ISIS. The Coalition now comprises more than 80 countries including the United States of America and the United Kingdom. The Coalition now performs a role that includes supporting stability in North-East Syria.

…

AANES and SDF are reliant on support from the Coalition, including to improve security and ensure that the SDF has control of detention facilities.

96    The appellant submitted (at [26] of its written submissions) that:

Lay evidence shows Australian officials have access to the camps as needed, Logan likewise. Ambassador Galbraith states that if Australia requests the release and repatriation of women and children, the AANES will agree and the USA will assist. The USA wants repatriation, wants Australia to do so, and offers assistance to do so. Thus, any Australian repatriation proposal will enjoy support of the USA.

(Citations omitted.)

97    The respondents did not challenge this submission at a factual level.

98    However, the respondents did dispute the following opinion by Professor Michael Newton, in his expert evidence set out at [29] of the appellant’s written submissions:

Australian officials, along with the broader Coalition enjoys the practical ability, by virtue of exercising de facto authority, to make arrangements for ending the extended detention of Australian women and children in Northeastern Syria. As a logical corollary, Australian officials have the means, in my expert opinion, of securing the release and subsequent return, of the Australian women and children in Northeastern Syria.

99    Professor Newton was at the time of his report the Director of the International Legal Studies Program, Professor of the Practice of Law, and Professor of the Practice of Political Science at the Vanderbilt Law School in Nashville, Tennessee. Senior counsel for the respondents also submitted Professor Newton seems to have based some of his opinions on hearsay evidence.

100    That weakness might be accepted, but the greater difficulty for the appellant with this kind of opinion evidence, even if accepted, is that it is more consistent with the existence of a plan or intention by the Australian government to make arrangements for the repatriation of individuals held in the Al-Roj camp. It is through such a plan, together with the facilitation and cooperation role played by AANES, that the release of the STCA women and children could be secured. However, that is quite a different proposition from the one the appellant sought to prove, which is that there is a mutual arrangement involving a level of obligation recognised by AANES which is sufficiently certain that it can be said the Commonwealth has control over the continuing detention of these families.

101    As Professor Newton suggests, the Commonwealth may well have a “means” to end the detention of the STCA women and children. In our opinion that much is amply proven on the material. But that is distinct from a finding that the Commonwealth exercises control over them and their custody while they are detained in the Al-Roj camp. We agree with the Commonwealth’s submission (in answer to an example put in oral argument) that, if AANES were to decide to move the relevant women and children (including the STCA women and children) to a different location, perhaps to worse conditions, the Commonwealth has not been proven to have a level of control over the families that would enable it to prevent that move occurring, or to interfere with that move occurring. The Commonwealth might well, one would hope, make representations to AANES and attempt to assist the STCA women and children, but there is nothing in the evidence to suggest it could prevent or interfere with the organisation that has physical custody of the families moving them elsewhere in Syria. That is a difficult reality for all those trying to support these families.

The success of the October 2022 repatriation

102    We have accepted that overall the evidence demonstrates a considerable number of successful repatriations of families from North-East Syria, by a considerable number of countries. The October 2022 repatriation by the Commonwealth is one such example. On the evidence it was organised and carried out over a short period of time, in a remarkably smooth way. That is the strong inference arising from Mr Innes-Brown’s file note after the repatriation. There is no evidence of any refusal by AANES to any country seeking to repatriate their nationals. There is no evidence of any failed repatriations because of the conduct of AANES. Whilst Ms Logan deposed that the October 2022 repatriation required extensive preparation from the Australian government, including detailed safety and security risk assessments and monitoring, the material before the Court contains statements from AANES about the procedures being straightforward. The account of the October 2022 repatriation conveys the impression it was straightforward. Other evidence suggests a relatively straightforward process is involved, and does not sit entirely conformably with Ms Logan’s description, Ms Logan on the evidence never having been to North-East Syria. Ultimately, the proposition that detailed planning is required is not inconsistent with AANES having a cooperative attitude and repatriation being able to be achieved when the Australian government seeks it.

103    For example, former US ambassador, Mr Peter Galbraith’s evidence was that he had made more than 20 trips to North-East Syria. He also stated:

I have witnessed transfers at the border between [location redacted] and [location redacted] by Germany and the United Kingdom. I have personally participated in a transfer involving three German children, their German mother, and an American orphan. With no government involvement, I personally brought out a Canadian child in March 2021 and her mother in June 2021.

….

I personally arranged and brought out of NE Syria 29 children and two adult women. These include 24 children born as a result of ISIS rapes of young Yazidi women, three German children, one American orphan, and a Canadian child. In addition, I found and arranged the rescue of another American child. I also brought the German mother of the three German children (with her children) and the Canadian mother three months after I brought out her five year old daughter. In the case of the the [sic] children born to Yazidi mothers, the American orphan, the Canadian child and the Canadian mother, I. signed documents taking custody of the persons. German diplomats at the border signed for the German mother and her children.

104    In reproducing this extract, we have redacted the locations as we are aware that the parties have made similar redactions in other parts of the evidence.

105    As to the logistics and safety for Australian officials, Mr Galbraith stated:

Australian officials may have to cross [location redacted] and enter 100 meters into NE Syria. They would then meet their citizens at the border facility that the AANES built. It is completely secure.

…

The AANES may require Australian officials to travel to Qamishli to arrange the repatriations with local officials. I have made this trip more than 20 times. The SDF/AANES provides armed security and an armored vehicle for their VIP guest.

…

Roj camp is located in open country side a one hour’s drive from the border with [location redacted] in the most secure part of Kurdish held NE Syria. There is no significant city or town close to the camp. The border is... guarded on the [location redacted] side by the [redacted] and on the Syrian side by the SDF. I judge the crossing to be very safe.

…

(Details redacted.)

106    While this evidence makes the question of why no further repatriations have occurred loom even larger, it has little or no probative value towards the inference of an arrangement giving rise to mutual obligations, or obligations on AANES.

107    It simply demonstrates that if the Commonwealth has the political will to bring the STCA women and children back to Australia, on the evidence before the Court, it would be a relatively straightforward exercise.

The failure to call Mr Innes-Brown

108    We are satisfied the failure to call Mr Innes-Brown resulted in much less contextual clarity around the documents on which both parties relied, and the competing inferences they sought to have the Court draw from them. There is no doubt Mr Innes-Brown was likely to have been able to add fuller context to the language used in the communications, including his own language. Some of the debates between the parties (eg over what the use of the singular in “operation” meant) are likely to have been readily resolved by evidence from Mr Innes-Brown.

109    Despite this, we do not consider the principal inference the appellant seeks to have drawn can be more readily drawn in the absence of Mr Innes-Brown. The factual inference for which the appellant contends is that there is an overarching arrangement or agreement between the Commonwealth and AANES, as a matter of obligation, that Australians in Al-Roj camp will be repatriated on request by the Australian government, and this in turn delivers to the Commonwealth control over the continuing detention of (at least) the STCA women and children.

110    We do not accept, considering all of the evidence on which the appellant relies, singly and cumulatively, that it is reasonably probable this fact exists (Carr v Baker (1936) 36 SR (NSW) 301 at 306, cited in Roberts-Smith at [169]). The evidence does not render the existence of such an overarching arrangement, involving mutual obligations, seriously possible. With respect, it remains at the level of mere conjecture. The absence of Mr Innes-Brown does not enable the Court to draw the contended inference with any greater confidence, because the inference is not available to start with.

111    As Besanko J explained in Roberts-Smith at [177], the rule in Jones v Dunkel operates where:

a party is required to explain or contradict something and so will almost always have an operation where a party bears the burden of proof on a matter.

(Citations omitted.)

112    In the present case, as explained above at [50], the appellant bore the onus of proving that the Commonwealth had physical control over the STCA women and children (or, if the UK authorities are correct, that there were reasonable grounds for concluding that it could assert such control). This was in substance the only contested issue in the case, because the Commonwealth would not have attempted to prove that the detention of the women and children was lawful if it had been called on to do so. The main issue was thus a factual one. In the context of the situation in Al-Roj, the Commonwealth had no legal or evidentiary burden at this initial stage when, as we have found, the overarching arrangement was on the evidence nothing more than conjecture.

113    It might be accepted that the conditions described by Besanko J in Roberts-Smith at [178] for the operation of Jones v Dunkel were met in relation to Mr Innes-Brown. Given his ongoing employment with DFAT, Mr Innes-Brown was clearly in the camp of the respondents. The difficulty for the appellant, in our respectful opinion, is that on the admitted evidence as it stood, there was no more than a hope that Mr Innes-Brown might re-cast or expand upon all the other evidence in a way that could elevate the evidentiary position to a reasonable probability of the alleged overarching arrangement.

114    In contrast, in our opinion the existing evidence makes reasonably probable a different inference. Namely that the Australian government in fact planned to repatriate more Australian women and children than the four women and 13 children who were repatriated in October 2022. We consider the evidence comfortably establishes this. That does not mean the Australian government had a firm overarching and ongoing agreement or arrangement with AANES, and certainly not one which gave it any control over the detention of the STCA women and children. Rather, at least in late 2022, we consider the existing facts as proven make it reasonably probable that the Australian government planned further repatriations from late 2022. In other words, this was a plan held by those within the Australian government with responsibility to take decisions about bringing these further Australian women and children to Australia. We draw that inference with more confidence in the absence of Mr Innes-Brown, but in our opinion the inference is clear without any need to rely on Jones v Dunkel.

115    It is plain those repatriations have not eventuated. Why that is the case is a matter the respondents have chosen not to explain in the evidence. Mr Innes-Brown may know why. If called, he may have been asked about such matters, and may (or may not) have been required to answer. Either way, not calling Mr Innes-Brown inevitably left these topics unexplored.

116    Nevertheless, any inference about the existence of a plan to return all of the Australian women and children, or even the STCA women and children, does not assist the appellant in making out its case on habeas corpus based on the Commonwealth’s control over the detention of the Australian women and children in the AANES camps. The appellant, correctly, did not contend that the existence of such a plan would be sufficient to prove control. The evidentiary burden lying where it does, the respondents were entitled to put the appellant to its proof.

117    No different conclusion is available if one looks at the state of the evidence through the prism of the wider principle in Blatch v Archer. While it is a principle operating against a party where the party fails to give evidence, it can be accepted here that the Commonwealth as a party operates through the conduct of human beings who are its officers, and Mr Innes-Brown might be said to be such an officer of the Commonwealth in the current situation. Even accepting that as the correct starting point, as we have explained, the contended inference is not available and is nothing more than conjecture. There is no “evidence against” the Commonwealth on which the principle in Blatch v Archer could operate. The analysis would be different, again as we have explained, if the inference relied upon was the existence of a plan by the Commonwealth to repatriate all the Australian women and children. But that is not a case which would be sufficient for the remedy of habeas corpus, as the conduct of the appellant’s case implicitly acknowledged.

118    For these reasons, there was no factual error in the findings of the primary judge and grounds 1 and 2 must be rejected. Accordingly, and in the light of the rejection of grounds 3 to 5 above, ground 6 must also fail.

Conclusion

119    The appeal must be dismissed. The parties should be given an opportunity to agree on appropriate orders as to costs.

Associate:

Dated:    18 June 2024