FEDERAL COURT OF AUSTRALIA

WAIS v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1625

MIGRATION -  detention – mandatory detention of unlawful non-citizen pending removal from Australia – whether detention unlawful when no real likelihood or prospect of removal in reasonably foreseeable future – duty to remove as soon as reasonably practicable following written request for removal – whether request for removal may be conditioned – whether issues relevant to application for protection visa may inform such conditioning or withholding of consent to return to particular countries

Migration Act 1958 (Cth) s 5, s 189, s 195, s 196, s 198

Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs  (2002) 192 ALR 609 discussed

Vo v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 371 cited

Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450 cited

R v Governor of Durham Prison; Ex parte Hardial Singh [1984] 1 WLR 704 cited

Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 cited

Potter v Minahan (1908) 7 CLR 277 cited

Bropho v State of Western Australia (1990) 171 CLR 1 cited

Coco v R  (1994) 179 CLR 427 cited

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

WAIS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W272 of 2002

FRENCH J

23 DECEMBER 2002

PERTH

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant is to pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

Introduction

1                     The applicant, an Iraqi national, entered Australia without lawful authority in August 1999.  He has been in immigration detention since that time.  Following the failure of his application for a protection visa and successive applications for administrative and judicial review of the decision to refuse his application for a visa, he has asked to be removed from Australia.  His request for removal has been variously expressed as subject to conditions.  He will not consent to being removed to Southern Iraq.  He previously sought removal to Northern Iraq but now reserves his position on whether he will consent to removal to that part of Iraq.  His first formal written request for removal following the expiry of the appeals process in relation to his protection visa was made in April 2002.  The applicant now contends that having regard to the time which has expired and the lack of any reasonable likelihood that he will be able to be removed in the foreseeable future, the power to detain him is exhausted.  On 19 September 2002, he filed an application in this Court seeking an order in the nature of habeas corpus that he be released from immigration detention.  A claim for an order in the nature of mandamus requiring his removal from Australia to Iraq has been abandoned.  The hearing of the application proceeded on 17 October 2002 and 11 December 2002. 

Factual History – Evidence at Hearing on 17 October 2002

2                     The applicant was born on 1 July 1944 in Iraq.  He married in 1972.  He and his wife had nine children including triplets born between 1974 and 1985.  His wife and children still live in Iraq.  His mother, one brother and a sister live in Sweden.  The applicant says that he was imprisoned by Iraqi authorities between February 1987 and February 1991.  Following his release he fled to Northern Iraq and from 1991 until 1999 spent time in Northern Iraq, Turkey and Iran.  From Iran he obtained a false passport and all necessary exit permits from a smuggler and travelled to Australia by boat via Malaysia and Indonesia.  He arrived in Australia on Christmas Island on or about 13 August 1999. 

3                     On 14 September 1999, the applicant applied for a protection visa in Australia.  He asserted that he had a well-founded fear of persecution in Iraq by reason of his actual and/or perceived political opinion.  On 8 November 1999, a delegate of the Minister for Immigration and Multicultural Affairs refused his application for a protection visa.  He applied for a review of that decision to the Refugee Review Tribunal on 8 November 1999.  However, on 13 January 2000, the Refugee Review Tribunal affirmed the delegate’s decision not to grant him a protection visa.  The applicant then applied for review of the Tribunal’s decision in the Federal Court of Australia.  On 12 March 2001, the application was dismissed and the applicant ordered to pay the respondent’s costs of the application.  An appeal was lodged to the Full Federal Court but on 26 September 2001, the Full Court dismissed the appeal.

4                     While the Federal Court proceedings were pending, sometime towards the end of 2000, the applicant wrote a letter to an ACM officer at Port Hedland whom he referred to as “Sister Gail”.  In that letter he said, inter alia:

“Dear Sister,

I want to make clear that I don’t want to stay here in Australia any more, I repport my wiches to removal staff who visit the camp from Canberra last 2 weeks – I beged them to deport me the very quite possible – and not delay me as what some detaine are waiting aprost nine months without any succes to be deported – the idea of Suicide is chasing me because of the extreme suffranc of my soul and mind, consequences of injustice… the way I left involuntary my children and wife, the lot of love affection I want to give them, but not able to fulfil this noble mission by being detained.” (sic)

5                     However, in March 2001 the applicant’s mother wrote a letter entitled Emergency Appeal/Petition for Mercy apparently directed to the applicant’s lawyer in which it was said:

“I kindly ask you that my son be granted a residence permit otherwise I ask your Honor that he be deported to any other country so that I can see him before I pass away.  Please let me know what shall I do in this regard.  I am residing now at my son’s place.” (sic)

A copy was directed to the Minister for Immigration with the added statement:

“I hope that you take my request into consideration for humanitarian-based reasons, having mercy on my nine children who are residing in Iraq.  I kindly ask you again that my son be released due to his illness, giving him a chance to be treated as he still suffers from torture in the prisons of Iraq.  Twenty months has passed from the date of his application for immigration but his imprisonment in Iraq is being moved to Australia instead and I submit my thanks to you.”

6                     The applicant said in his affidavit that in April or May 2001 he attended a meeting at Port Hedland Detention Centre with Ms Helen Delondre from the Department of Immigration Multicultural and Indigenous Affairs (DIMIA).  He could not recall if any one else attended the meeting.  He said that at that meeting he told Ms Delondre he wanted to return to Iraq.  She said that she would contact the Turkish, Syrian and Iranian Embassies in the next couple of days and get back to him.  He could not recall what else was said at the meeting but according to the applicant Ms Delondre did not get back to him as promised.   The evidence was neither contradicted nor challenged and Ms Delondre was not called as a witness.  I accept it as correct in substance.  On the other hand, as appears from what follows, it is perhaps not surprising that there was no immediate response given as the appeal to the Full Federal Court was still pending.  There was still extant the recent request that he be granted a residence visa which appears to have been interpreted by the Minister’s officers as a request for consideration under s 417 of the Act, a consideration which was not to be undertaken before the appeal process was exhausted or abandoned. 

7                     Further representations were made on the applicant’s behalf on 25 July 2001 when the Organisation of Human Rights in Iraq Inc wrote a letter on his behalf to DIMIA noting that he was waiting for the Federal Court to decide on his fate.  The letter concluded:

“He arrived in Australia illegaly (sic) on 13/08/1999.  If there is anything possible you can do to release him on a bridging visa or any other means you may find it will be highly appreciated.”

On 24 August 2001, a Ministerial Intervention Officer wrote to the applicant on behalf of the Minister in the following terms:

“Thank you for your letter of 25 July 2001 to the Minister of Immigration and Multicultural Affairs, the Hon Philip Ruddock MP concerning your request that the Minister exercise his public interest power under section 417 of the Migration Act 1958. 

While it is correct that the Minister does have the power to intervene in your case, it would be inappropriate for him to do so at this time because the case is currently being considered by the Full Federal Court.  No further action will be taken on this request.”

The reference to the request that the Minister exercise his public interest power is evidently a reference to the letter of 25 July 2001 from the Organisation of Human Rights in Iraq Inc.

8                     On 19 September 2001, Ms Hardingham, the Ministerial Intervention Officer, again wrote to the applicant referring to a letter of 29 August 2001 to the Minister (which is not in evidence) which letter was said to concern the applicant’s request that the Minister exercise his public interest power under s 417 of the Migration Act.  Ms Hardingham repeated that it was inappropriate for the Minister to intervene in the applicant’s case at that time as it was currently under consideration by the Full Federal Court. 

9                     According to the applicant, between May and September 2001, he spoke to Kay Kannis, the DIMIA Manager at the Port Hedland Detention Centre and told her that he wanted to go home.  He said Ms Kannis told him that Ms Delondre would visit him sometime in the next two or three weeks to discuss this.  She did not visit him as discussed.

10                  On 3 December 2001, the Minister wrote to the applicant referring to the petition from the applicant’s mother dated 30 March 2001.  He characterised that petition as a request that he consider exercising his public interest power under s 417 of the Act.  He noted that under that section he could substitute for a decision of the Refugee Review Tribunal a decision more favourable to the applicant if he thought it in the public interest to do so.  However, he advised that he had decided not to consider exercising his power under s 417 of the Act in that case. 

11                  The applicant said that in February 2002 he wrote a ten page letter to DIMIA in Arabic asking to be deported.  He said he asked an ACM officer named Derek to have the letter translated for him.  The letter was translated to English by an interpreter who visited him at the Perth Detention Centre.  He received the English translation in person from the translator.  He said the manager of the Perth Detention Centre was present when the translator handed him the English copy.  The translation stated, inter alia:

“I am being attained against my WISH.  Please send me home or let me go.”

It also stated that he was willing to go and live in North Iraq if his safety were guaranteed.  However if that were difficult to do, he would go to Libya to live with his daughter or even to Sweden to live with his brothers and mother.  He asked what he called the “REMOVAL DEPARTMENT” to look into his request seriously and as soon as possible.  He threatened suicide unless something was done.

12                  On 5 April 2002, the applicant wrote two letters to the Officer in Charge of the Removal’s Branch of DIMIA at Belconnen in the ACT.  In these letters he again requested that he be removed.  The first paragraph of the first letter said:

“ I am [name supplied].  I arrived in Australia on 13 August 1999 and now and after 2 years and seven months I have been here in prison due to decisions that have been made, one after another starting from the Case Officer, Refugee Review Tribunal, Federal Court and Full Federal Court all of which assert and insist that it is possible to return me to the North of Iraq and for me to live and settle there and here I am, ready to be deported or returned on condition that I can be given some guarantee about my own personal safety there, living expenses, accommodation and health insurance, which is most important because I am elderly now and also ill.”

In his letter he again suggested that if it were not possible to deport him to Northern Iraq he be deported to Sweden to be with his mother, brother and sister or to a country close by, like New Zealand, or to Libya where one of his daughters lives with her husband and children.  Alternatively, he could be considered an Afghan and included with that group who were to be paid compensation and to be returned to their country.  He could even be returned, he said, to Lebanon for he had relatives and friends on whose help he could rely, or to Iran where he had lived for more than four years.  He said:

“I beg from the Deportation Department to hurry in looking into my request and finding a solution to my case and I beg that they put in front of their eyes my face and my children’s faces who depend on me and they should consider this as they would consider their own hopes and aspirations for their own children’s happiness and future.  I hope that what happened to me and my family will never happen to them.”

13                  The applicant said that in May or June 2002 he went to a meeting at the Perth Detention Centre at which Ms Delondre was present together with Marg Le Sueur, a migration adviser, who visited him regularly and had acted as his advocate with DIMIA.  Also present was another detainee who played the role of interpreter.  He could not recall if there was anyone else at the meeting although there could have been another DIMIA officer.  The applicant told Ms Delondre that he would like her to remove him from Australia whether it be to his home or anywhere else.  He told her he could not stay in detention any more.  Ms Delondre said words to the effect “I will see what I can do.  We are doing the best we can.  You’ll have to be patient.  It is difficult.”  Ms Le Sueur swore an affidavit in which she recalled also attending the meeting in May 2002 at the Perth Detention Centre.  She was present during the entire meeting.  On no occasion was the option of return to Iraq mentioned. They discussed the problems Ms Delondre was having in finding somewhere for the applicant to go.  Ms Delondre said at the meeting that the only option for the applicant was to go to Yemen, but she gave the impression that even that was difficult and was not being considered as a realistic option.  Subsequently, Ms Le Sueur contacted the Yemeni Embassy in London through the International Organisation of Migration and was informed that they would not allow entry to an Iraqi national with an Australian travel document.  She also contacted the Jordanian Embassy in Canberra and was told that no visa would be granted to an Iraqi national without an Iraqi passport. I accept the unchallenged evidence of Ms Le Sueur as reflecting in substance the content of conversation at that meeting.

14                  There was affidavit evidence from Alexis Goodstone, a solicitor employed by the Public Interest and Advocacy Centre which began acting for the applicant in June 2002.  She is the PIAC solicitor with carriage of his matter. 

15                  On 3 July 2002, Ms Goodstone wrote to DIMIA on the applicant’s behalf requesting his removal to Northern Iraq or to a country agreed between DIMIA and his representatives.  Alternatively, she sought his immediate release.  She said, inter alia:

“[the applicant] has requested that he be removed to Northern Iraq or to a country agreed between himself and the Department on numerous occasions.  In a letter to the Department dated 5 April 2002, he refers to requests made over a year previously (ie April 2001) to be removed.  In the letter dated 5 April 2002, he clearly reiterates his request to be removed.  A copy of the letter dated 5 April 2002 is attached. 

Pursuant to s 198(1) of the Act, officers of your Department have a statutory obligation to remove an unlawful non-citizen who requests in writing to be removed.  [the applicant] has made such a request, at least by his letter dated 5 April 2002 if not before. 

            We formally request, on [the applicant’s] behalf, that you provide us with:

(a)       information as to the steps which have been taken since 5 April 2002 to arrange his removal; and

(b)       an indication of how much longer you propose to detain him before effecting his removal; and

(c)        any information in your possession concerning the likelihood of his removal to Northern Iraq being achieved before the end of 2002.

If you cannot indicate to us that [the applicant’s] removal will be effected within a reasonable time (by which we refer to weeks, not months) of the date of this letter, we will be advising [the applicant] about his options in terms of issuing proceedings to compel the performance of the duty in section 198(1).”

16                  On 24 July 2002, Ms Goodstone wrote a further letter to DIMIA referring to the letter of 3 July 2002 and noting that she had received no acknowledgment or response.  Having regard to the fact that the applicant remained in detention and in deteriorating mental health she urged an immediate response to her request.  She said if a response were not received by Friday, 2 August 2002 she would commence proceedings on the applicant’s behalf as foreshadowed in her letter of 3 July 2002. 

17                  On 15 August 2002, Ms Goodstone rang Ms Delondre at the Unauthorised Arrivals and Detention Unit of DIMIA.  She asked Ms Delondre if she had received her letters on behalf of the applicant.  Ms Delondre said she had.  Ms Delondre said words to the effect “it is a high priority”.  Ms Goodstone asked Ms Delondre whether she could respond within the next week.  Ms Delondre said she would try.  By a fax dated 19 August 2002, Ms Goodstone wrote to Ms Delondre confirming their telephone conversation and referring her to the  decision of Merkel J in Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 192 ALR 609 which had been handed down on 15 August 2002.  At the date of swearing her affidavit, which was 17 September 2002, Ms Goodstone had not received a response to either of her letters dated 3 July or 24 July 2002. 

18                  In the meantime, on 11 June 2002 Ms Goodstone had made a freedom of information request on behalf of the applicant to DIMIA.  In that letter she requested copies of the following documents:

“1.       All documents relating to [the applicant] held by DIMIA including but not limited to:

            (i)         any branch and/or refugee files;

            (ii)        any medical records or reports;

            (iii)       correspondence between DIMIA and any other party.

2.         All documents relating to [the applicant’s] potential removal from Australia, including but not limited to correspondence between DIMIA and any other party; documents relating to any attempts by or on behalf of the Australian Government to obtain travel or identity documents for [the applicant], documents relating to removal or travel arrangement which might be made for [the applicant] in order to remove him to Iraq or to any other country.

3.         All documents relating to negotiations or communications by or on behalf of the Australian Government and/or DIMIA with the Iraqi Government, or persons acting on behalf of the Iraqi government, concerning the removal of Iraqi citizens in the same or a similar position to [the applicant] from Australia to Iraq, between 2000 and the present.”

19                  On 16 August 2002 DIMIA advised Ms Goodstone of its FOI determination and enclosed photocopies of documents released.  These did not include any documents relating to attempts by DIMIA to make any inquiries or any arrangements relating to the removal of the applicant from Australia.  On 23 August 2002, Ms Goodstone wrote again requesting an internal review of DIMIA’s FOI decision in relation to claimed exemptions for certain of the documents.  She expressed the opinion, which was not controverted, that from the list of exemptions relied upon by DIMIA none of the documents over which exemption had been claimed related to attempts to remove the applicant.  At 17 September 2002 she had not received a response to the letter seeking review of the FOI request.  The documents which she did receive under FOI included a great deal of material suggesting that the applicant had been and continued to be depressed and suicidal as well as suffering from various physical ailments.  The material showed that DIMIA had monitored his health and had received reports from numerous doctors, psychologists and health professionals during the period of his detention.

20                  In addition to the applicant’s own evidence and that of Ms Le Sueur and Ms Goodstone, affidavits were read from a number of persons of Iraqi nationality who were respectively designated Non-citizens 1 to 6.  Each of these persons was in immigration detention.  Each had made an application for a protection visa and had been refused.  Each had requested removal from Australia and had spent a lengthy period in detention without arrangements for their removal being concluded.  The table that follows summarises the effect of their evidence.

21                  It was a common theme of the non-citizen affidavits that DIMIA staff told them they were endeavouring to arrange for their return to Syria but that Syria would refuse to take Iraqis into the country who did not have a genuine Iraqi passport.  Non-citizen 1 said he was told by Greg Wallis, the DIMIA Manager of the Curtin Detention Centre that, “unless you get an Iraqi passport we cannot remove you”.  This non-citizen also said that Iraq would not issue passports to Iraqis in detention.  I consider it inherently unlikely that the statement attributed to Mr Wallis was in fact put as baldly as suggested by this witness. 

22                  Non-citizen 2 was told by DIMIA staff that he should try to obtain an Iraqi passport as he could then go to Yemen without requiring an entry permit.  But, according to him, Yemen would not accept Iraqis without visas.  He applied for a Syrian visa in January and February 2002 and was refused.  He tried to obtain a Jordanian visa in May or June 2002.  He was supplied with one, good for two months, but, he said, DIMIA did not remove him within the two month period and the visa then expired.  Attempts by himself and DIMIA to secure an Iraqi passport were also unsuccessful.

23                  In the case of Non-citizen 4, attempts by DIMIA to negotiate his removal to Syria failed as Syria would not accept him.  He told DIMIA, earlier this year, in answer to a question from one of its officers, that he was prepared to go to Northern Iraq but had not heard anything further about that option.

24                  Non-citizen 5 had spoken to DIMIA officers on numerous occasions since he first asked to be removed in June 2001.  So far no one was prepared to take him.  Non-citizen 6 had met with DIMIA officers about four times since his request for removal in October 2000.  They had mentioned Yemen and Syria but to the date of swearing his affidavit nothing had eventuated.  This non-citizen said he was advised by the Syrian consulate in Melbourne that they would consider approaches for Iraqis wanting to obtain visas to Syria.  However, applicants would need to provide information about their reasons for leaving Iraq.

25                  On behalf of the Minister affidavits were sworn by James Robert Williams, the Director of the Unauthorised Arrivals Section of DIMIA.  Mr Williams swore affidavits on 28 September, 30 September and 16 October 2002.  He also swore two confidential affidavits on 26 September 2002. 

26                  Mr Williams has the principal carriage of negotiations and arrangements for the return of detainees available for removal who are Iraqi nationals.  That group includes the present applicant. 

27                  As explained by Mr Williams the approach taken by DIMIA to the removal of Iraqis from Australia has a number of elements:

1.         Engagement with other countries in the region.  Negotiations have been instituted with several other countries to allow return or land transit for return to Iraq.

2.         Working with Iraqis in detention who are available for removal to identify feasible destination countries and arranging their travel to a third country.  This requires the active co-operation of the detainee.  In 2001/2002 twelve people obtained their own visas for return to third countries. 

3.         Engaging with other organising parties, including the United Nations High Commissioner for Refugees (UNHCR).  The Department has responded to an offer from the UNHCR to seek its assistance in the return of failed asylum seekers.  UNHCR assistance has been formally sought in cases such as that of the applicant.  This initiative is said to be still at an early stage.  The International Organisation for Migration is also able to assist with elements of return arrangements in some cases.

I accept this broad description of the approach taken by DIMIA in connection with Iraqi detainees.  

28                  Mr Williams did not dispute that on 5 April 2002, the applicant requested in writing that he be removed to Northern Iraq after having giving oral indications on a number of occasions in 2000 and 2001 to staff at Port Hedland Immigration Reception and Processing Centre that he wished to return there.  He had lived in Northern Iraq from 1992 to 1995.  He accepted that he was interviewed in May 2001 and May 2002 by Helen Delondre from the Unauthorised Arrival Section and options for his removal were discussed.  No third country options were identified.  In order to obtain a visa to enter a third country, the applicant would need a family member or another contact to obtain a visa on his behalf.  He has maintained that his family refused assistance.  One of his daughters is in a third country and he says he would like to join her but she will not talk to him to help make any arrangements.  His mother, sister and brothers have been accepted as refugees in another third country and are unwilling to help him.

29                  According to Mr Williams, the applicant’s removal is still achievable and the department is actively pursuing a number of avenues to effect this.  He based his assessment on the following factors:

1.         Ongoing negotiations with a third country to arrange transit for Iraqis to return to Northern Iraq.

2.         The existence of an agreement with another country in the region that will allow transit return to Iraq – as appears below this was evidently a reference to return to Southern Iraq.

3.         The fact that a number of Iraqi nationals have been able to obtain visas for other countries and the department has effected their removal.

4.         His experience that with persistence appropriate outcomes have been achieved for a number of people in a similar position to that of the applicant.

5.         His experience that while developing return/removal arrangements for groups and individuals can sometimes be protracted, the fact that they are protracted is not an indicator that they will not be successful.  He said he could point to a number of examples where protracted discussions had ultimately been successful.  Often, he said, success is achieved quickly at the end of lengthy discussions or numerous contacts.

30                  In cross-examination Mr Williams conceded that he had no direct knowledge of the applicant’s case.  He had probably met the applicant in group discussions on occasions when he had visited detention centres.  Asked about the visits to detention centres by his officers, he said they would visit them on average once every three or four months.  He was asked about the period between September 2001, when the applicant was available for removal following the dismissal of his Federal Court appeal, and May or June 2002 when Ms Delondre saw him.  On occasions DIMIA staff at detention centres were asked to talk to detainees where necessary.  However, he had no specific information about detention centre staff being required to speak to the applicant. He was referred to the letter sent by Ms Goodstone on 3 July 2002 on behalf of the applicant.  He said it would have been his normal practice to provide that to Ms Delondre’s unit and ask her to reply.  He could not explain the delay of five or six weeks in that case.

31                  Mr Williams was cross-examined about the department’s response to PIAC’s FOI request and accepted that there were unlikely to be on the department’s files documents relating to the applicant’s potential removal from Australia which would specifically identify him.  He said:

“Most of the activity of the department in this area has been in the nature of difficult bilateral discussions with countries in the region and there is, you know, information held by the department which is of a broad nature in that it covers a group of people, of which the applicant would be a member, but would not refer to him specifically by name and which would be, I might add material that would be sensitive because it relates to ongoing bilateral negotiations.” (T20)

32                  In a further affidavit sworn on 16 October 2002, Mr Williams said that from 1 July 2001 until 30 June 2002 the Unauthorised Arrivals Section of DIMIA returned twelve Iraqis who had obtained visas to a range of third countries.  From 1 July 2002 to October 2002 there had been three Iraqi removals.  At the time of swearing his affidavit, arrangements had been made for two Iraqis to be removed within the next ten days.  These figures, he said, demonstrated a consistent average return of one Iraqi voluntary removal each month where the individuals were able to arrange their own visas for entry to third countries using either Iraqi passport or Australian Certificates of Identity.  He referred to the contention by Non-Citizen witness 1 that he had been told by DIMIA that unless he obtained an Iraqi passport they could not remove him.  I have already observed that I regard it as inherently improbable that such a bald statement was made by the DIMIA officer to whom it was attributed.  Mr Williams said DIMIA worked on the principle that it was easier for an Iraqi  with an Iraqi passport to travel to other countries bearing in mind that an Australian Certificate of Identity is of limited duration, has no return facility and carries no right of entry to a foreign country.  DIMIA staff have consistently advised Iraqis that if they have a valid passport or an Australian Certificate of Identity and can obtain their own visa for Syria or another country with the assistance of family or friends either in Australia or overseas, then DIMIA would arrange their return based on those documents.  He acknowledged that Yemen which would formally receive Iraqi passport holders without visas now requires that they have visas for entry.  Mr Williams accepted that neither his officers nor the applicant were able to identify any specific third country options for him.  Most of the Iraqi nationals who had been successfully removed from Australia were persons who had had family members or other contacts obtain visas on their behalf. 

33                  At this point in the course of his cross-examination it emerged from Mr Williams’ evidence that it would be possible for the applicant to return to Iraqi via a specific neighbouring country (the identity of which was covered by an order of confidentiality).  However the agreement between Australia and this transit country was subject to a condition that returns via this country had to be voluntary.  Initially Mr Williams said in his cross-examination that a return could be arranged “within a matter of weeks of the relevant documents being obtained if the applicant gave his consent to removal on that basis”.  However it was his understanding that the applicant had refused to consent to that option.  This was on the basis of meetings he had had with Ms Delondre.  He agreed that no inquiry had been made of the applicant or his advisers since May 2002 as to whether that was still his position.  Indeed, he was not sure whether such inquiries had even been made of him in May 2002.  He said, however:

“If he were to agree to return to Iraq through the country that we have talked about, then he would be able to do so within a matter of weeks.  If he doesn’t agree to that, then the next option that would appear to be most viable is to await the outcome of negotiations with the country neighbouring Northern Iraq and any further option might depend on the willingness of his relatives in other countries to perhaps assist him, which to date, I understand, they have declined to do.”

He was unable to give a specific time within which the applicant could be removed, absent his consent to removal to Iraq.

34                  In regard to other pending negotiations with a transit country, he was understandably unable to give a time within which those negotiations would be concluded.

35                  At the conclusion of Mr Williams’ evidence on 17 October, counsel for the applicant expressed her concern that the applicant might not fully understand the choices that he had having regard to Mr Williams’ evidence.  In the event, the proceedings were adjourned and the hearing resumed on 11 December. 

Factual History – Evidence on 11 December 2002

36                  When the hearing resumed, a further affidavit had been filed sworn by the applicant on 3 December 2002.  He asserted that in all the time he had been held in detention since his legal options were exhausted, DIMIA had never told him directly or indirectly that he could be removed back to Iraq.  He said that during all of his discussions with DIMIA about his removal, referred to in his earlier affidavit of 19 September 2002, the option of returning to Iraq had never been mentioned.  The first time he ever heard of this option was during the hearing of the matter on 17 October.  He said:

“I have now instructed my solicitors and through them, told DIMIA, that I will not consent to return to Iraq.  I believe that I would face serious threats to my human rights, and torture or possibly even death, if I returned to Iraq because

(i)        I wrote articles for the “Al-Taaki” newspaper during the 1970s.

(ii)       My cousin… is a suspected opponent of the regime.

(iii)      I refused to join the Ba’ath Party.

(iv)      I was detained for four years and then escaped from gaol with the assistance of the rebels.

(v)       I assisted the rebels during the 1991 uprising.

(vi)      I am a Shia Muslim.

(vii)     I left Iraq illegally.

(viii)    I have been out of Iraq for a long period of time (since 1991).

(ix)      I have applied for refugee status in Australia; and

(x)       My travel papers and my method of return would indicate I am being sent back from Australia.”

The applicant asserted that these factors together meant that he would be regarded as an opponent of the Iraqi regime.  He believed he would be arrested, punished and probably killed if he returned to Iraq.  The balance of his affidavit expanded upon these points which really went to his claimed status as a refugee under the Refugees Convention. 

37                  In a further outline of submissions filed in Court on 11 December 2002 and reflecting the terms of an open letter which preceded those submissions, the applicant’s position was stated thus:

“i)       He refuses to consent to being returned on a voluntary basis to Southern Iraq through the third country identified in Mr Williams’ first confidential affidavit.

ii)         He asserts that he has genuine and reasonable grounds to withhold his consent to that option.  They are the grounds he put forward to the Refugee Review Tribunal and which that Tribunal rejected, including the ‘sur place’ issues which might arise because he is returning as a failed asylum seeker from Australia.”

38                  A further affidavit was filed, sworn 19 November, by another non-citizen witness designated Non-Citizen Witness No 7.  He said he first asked DIMIA to remove him from Australia to any country including Iraq on 15 April 2002.  He recalled telling Mr Williams on 15 April 2002 at the Woomera Detention Centre that he would like to be deported anywhere including Iraq and Northern Iraq.  He had a Federal Court appeal then pending but was told that he could still sign to be removed and that if his appeal failed his request would be actioned.  He was told by Mr Williams he would have to prove he was an Iraqi national.  He then signed a form indicating that he agreed to be returned to Iraq.  Two other Iraqi detainees signed similar forms on the same day.  He also faxed to DIMIA in Canberra copies of his Iraqi Citizenship Certificate and his Iraqi ID card.  In mid-July 2002 he was informed by Ms Nagle, a DIMIA officer based at Woomera that it was proving difficult to organise his return to Iraq or Northern Iraq via a neighbouring country.  In the event it was not until October that the witness obtained a one way Iraqi travel document from the Iraqi Embassy.  DIMIA had assisted him with this by providing him with the phone number of the Embassy, by taking photographs of him and by sending them to the Embassy on his behalf.  That witness rang the Embassy himself and told them that he was an Iraqi national and wanted to return to Iraq.

39                  A further affidavit was also sworn by Mr Williams dated 13 December 2002.  In that affidavit he said that Non-citizen Witness No 7 was eventually removed, together with another person, on 7 December 2002 to another country in the vicinity of Iraq.  This country had been issuing visas to Iraqis where they presented with an Australian Certificate of Identity.  Since his last affidavit dated 27 September 2002, he claimed that eight Iraqi detainees had departed Australia.  Six of them had departed to that country, the other two to a different third country.  The applicant could be given an Australian Certificate of Identity for him to present to the same consulate that Non-citizen Witness No 7 did in an application for a travel document if he were willing to apply for a visa himself.  At the date of swearing the affidavit on 13 December 2002, the applicant had not agreed to apply for a visa to that country.

40                  Mr Williams was further cross-examined on the resumed hearing in December.  He was referred to the evidence of Non-citizen Witness No 7 and the fact that it took some six months from the time he requested removal, to his removal.  Mr Williams accepted that his estimate of a few weeks on the previous occasion he gave evidence may have been overly optimistic.  It is worth noting however that that estimate was based upon the assumption that travel documents had been arranged.  Asked why DIMIA had not procured an Australian Certificate of Identify for the applicant, Mr Williams said the applicant had expressed no interest in that option.

Factual Conclusions

41                  Most of the factual history set out above is not contentious.  It is however convenient to enumerate the findings of fact which are of principal significance in the case:

1.         The applicant, who is an Iraqi national, arrived in Australia by boat on or about 13 August 1999 without lawful authority. 

2.         The applicant is, and has been at all times since his arrival in Australia, an unlawful non-citizen for the purposes of the Migration Act.

3.         The applicant was detained under the provisions of s 189 of the Migration Act from at or about the time of his arrival and has been kept in immigration detention pursuant to s 196 of the Act since that time.

4.         The applicant applied for a protection visa on 14 September 1999, was refused on 8 November 1999, sought review of that decision on 8 November 1999 and was refused by the Refugee Review Tribunal on 13 January 2000.  He applied to the Federal Court for judicial review, which application was dismissed on 12 March 2001.  An appeal from that decision was dismissed by the Full Court of the Federal Court on 26 September 2001. 

5.         The applicant wrote to an officer of Australian Correctional Management at the Port Hedland Immigration Detention Centre towards the end of 2000 stating his desire to be removed from Australia.

6.         In April or May 2001 the applicant orally informed an officer of DIMIA, a Ms Delondre, that he wished to return to Iraq.  The officer said she would contact the Embassy of neighbouring countries and get back to him.  She did not contact him.  There is no evidence that any contact with embassies was made as promised.

7.         Between May and September 2001 the applicant told the DIMIA manager at Port Hedland Immigration Detention Centre that he wished to be returned to Iraq.  The manager told him Ms Delondre would visit him subsequently but this did not occur.

8.         Notwithstanding the preceding request, the applicant’s judicial challenges to the refusal to him of a protection visa were still on foot and representations were being made on his behalf for the grant of a visa under s 417 of the Migration Act.

9.         Prior to September 2001, there was no request from the applicant in writing to the Minister that he be removed from Australia.  The oral statements which the applicant says he made were not consistent with his pursuit of administrative and judicial review and the ongoing request for the grant of a visa under s 417.

10.       The applicant wrote a letter in Arabic to the Department in February 2002 which was translated and in which he said he wished to be sent home and was willing to go and live in Northern Iraq if his safety were guaranteed.  Alternatively, he wanted to be sent to Libya or Sweden. 

11.       On 5 April 2002, the applicant wrote a letter addressed to Mr Williams, the officer in charge of the Unauthorised Arrivals Section of DIMIA, asking that he be removed to Northern Iraq.  That request was expressed to be conditional upon some guarantee about his personal safety, the provision of living expenses, accommodation and health insurance.  The request was not, in terms, an unconditional request for removal.  He suggested also that Sweden, New Zealand, Afghanistan and Lebanon would be acceptable alternatives to Northern Iraq.  He also suggested that he be removed to Nauru.  The applicant did not indicate that he would consent to being sent to Southern Iraq.

12.       There is no country to which the applicant may presently be removed without his consent and cooperation.

13.       The possibility of removal to Northern Iraq depends upon the outcome of negotiations between the Australian government and a third transit country.  It is not presently possible to say when, and if, those negotiations will be concluded so as to allow for the transit of the applicant through that country to Northern Iraq. 

14.       Return to Southern Iraq is possible provided the applicant consents to it.  Such removal could take some months to arrange depending on the time taken to secure travel documents. 

15.       The applicant was not aware of the Southern Iraq option until after the commencement of these proceedings.

16.       The applicant does not want to return to Southern Iraq and does not consent to doing so.

17.       The applicant now reserves his position on whether he would consent to being removed to Northern Iraq and maintains that removal to Northern Iraq is not able to be implemented in the foreseeable future or at all, even if he were to consent to it.

18.       The applicant is prepared to accept removal to Syria, Libya, Lebanon, Yemen, Jordan or Sweden.

19.       There does not appear to be any likelihood at present that the applicant can be returned to any of the countries mentioned in par 18.

20.       The applicant has been in an unstable and potentially suicidal state since May 2001. 

Statutory Framework

42                  Section 189 of the Migration Act 1958 (Cth) appears in Division 7 of Part 2 of the Act which Division is entitled “Detention of unlawful non-citizens”.  Section 189 provides for officers of DIMIA to take into custody persons whom such officers know or reasonably suspect are unlawful non-citizens:

“189(1)  If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

     (2)  If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a)       is seeking to enter the migration zone (other than an excised offshore place); and

(b)       would, if in the migration zone, be an unlawful non-citizen;

the officer must detain the person.

     (3)  If an officer knows or reasonably suspects that a person in an excised offshore place is an unlawful non-citizen, the officer may detain the person.

     (4)  If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a)       is seeking to enter an excised offshore place; and

(b)       would, if in the migration zone, be an unlawful non-citizen;

the officer may detain the person.

     (5)  In subsection s(3) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.”

43                  The term “detain” is defined in s 5 as:

“(a)     take into immigration detention; or

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

The term “unlawful non-citizen” is defined in s 14 which must be read in the light of the definition of “lawful non-citizen” in s 13.  Relevantly that latter definition extends to a non-citizen in the migration zone who holds a visa that is in effect.  An unlawful non-citizen is a non-citizen in the migration zone who is not a lawful non-citizen. 

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

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

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

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

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

Section 196 of the Act, headed “Period of detention” provides:

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

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

(b)       deported under section 200; or

(c)        granted a visa.

    (2)  To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.

    (3)  To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen had made a valid application for a visa and he or she has been granted a visa.”

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

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

.

.

.

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

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

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

(c)        one of the following applies:

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

            (ii)        the visa cannot be granted; and

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

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

The Power to Keep An Unlawful Non-citizen in Detention

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

47                  Section 196 requires that an unlawful non-citizen detained under s 189 “must be kept in immigration detention” unless removed from Australia, deported or granted a visa.  The section reads as though it creates an obligation, albeit it does not specify the repository.  The obligation which it creates is unqualified and in terms unlimited in time except by reference to the three terminating events.  That is emphasised by subs 196(3).  When read with s 189 it may be that s 196, properly construed, imposes an obligation on the Minister and his officers to maintain the detention referred to.  Less directly, it may be said that the section imposes a liability on the person who is an unlawful non-citizen and who has been detained under s 189.

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

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

50                  In Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs (supra), it was held that “… 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” (at 614).  Merkel J distinguished the position with respect to the power of the Minister to detain under s 253 pending deportation which was discussed by the Full Court in Vo v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 371 and by Allsop J in Perez v Minister for Immigration and Multicultural Affairs [2002] FCA 450.  The point of distinction which his Honour made was expressed thus:

“The discretionary scheme concerning deportation considered in Vo, which was regarded by the Full Court as structured to deal with the special circumstances in which deportation is to apply, has no counterpart in respect of the mandatory duty to remove unlawful non-citizens from Australia ‘as soon as reasonable practicable’ under ss 196(1)(a) and 198.”

Nevertheless his Honour said the question remained whether those provisions were to be construed as authorising indefinite detention provided the Minister’s purpose was to remove – which was the Minister’s contention or, as authorising detention for a reasonable period but in any event for only so long as there was a reasonable likelihood of removal which was the contention for the applicant in that case. 

51                  His Honour referred to the decision of Woolf J in R v Governor of Durham Prison; Ex parte Hardial Singh [1984] 1 WLR 704 which was approved by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97.  The Hardial Singh case concerned the authority to detain a person under the Immigration Act 1971 (UK) following the making of a deportation order with respect to that person.  Woolf J held that although the power to detain pending removal was not subject to any express limitation of time it was impliedly limited to a period which was “reasonably necessary for that purpose”.  In Lam the Privy Council was concerned with the Immigration Ordinance (Hong Kong) which conferred a like power.  Lord Browne-Wilkinson, applying the principles enunciated by Woolf J in Hardial Singh, said at 111:

“First, the power can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal.  Secondly, if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised.  Thirdly, the person seeking to exercise the power of detention must take all reasonable steps within his power to ensure the removal within a reasonable time.”

These propositions were constructional and based upon an implied legislative intention in relation to the power that it “… could only be exercised reasonably and that accordingly it was implicitly so limited” (at 111).  Lord Browne-Wilkinson accepted that it was plainly possible for the legislature by express provision to exclude such implied restrictions:

“But in their Lordships’ view the courts should construe strictly any statutory provision purporting to allow the deprivation of individual liberty by administrative detention and should be slow to hold that statutory provisions authorise administrative detention for unreasonable periods or in unreasonable circumstances.”

52                  Merkel J also referred to a decision of the United States Supreme Court in Zadvydas v Davis 533 US 678 (2001).  The Court there considered whether a United States statute providing for detention of aliens pending their removal authorised the Attorney-General indefinitely to detain a deportee who no other country would accept.  It held by majority that the statute was to be construed as limiting the power to detain aliens for a period reasonably necessary to bring about their removal from the United States and as not permitting their indefinite detention.  Importantly however, constitutional considerations relating to the Due Process clause of the United States Constitution informed the reasoning of the majority.  So Justice Breyer delivering the judgment of the Court described it as a “cardinal principle” of statutory interpretation that when an Act of Congress raises a serious doubt as to its constitutionality the Court would first ascertain whether a construction of the statute was fairly possible by which the question might be avoided:

“We have read significant limitations into other immigration statutes in order to avoid their constitutional invalidation. … For similar reasons, we read an implicit limitation into the statute before us.  In our view, the statute, read in light of the Constitution’s demands, limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States.  It does not permit indefinite detention.”

53                  Australia’s Constitution does not contain any equivalent to the Due Process clause which would provide equivalent protection to its citizens or others who may be subject to administrative detention.  In Australia’s representative democracy, reliance is placed upon parliamentary restraint and respect for common law rights and freedoms.  There is also the long established tradition that the courts will not lightly construe statutes as invading common law rights and freedoms.  Clear language is expected as an indication of parliamentary intention to abridge or extinguish fundamental rights and liberties. See in particular Potter v Minahan (1908) 7 CLR 277 at 304; Bropho v State of Western Australia (1990) 171 CLR 1 at 18 and Coco v R (1994) 179 CLR 427 at 437.  Nevertheless, if the language of the statute is clear, the legislative will expressed in that language is not to be frustrated by reading in limitations that the language will not reasonably bear. 

54                  In Al Masri, Merkel J held that ss 196(1)(a) and 198 are to be construed as authorising detention only for so long as:

“.         the minister is taking all reasonable steps to secure the removal from Australia of a removee as soon as is reasonable practicable;

.           the removal of the removee from Australia is “reasonably practicable”, in the sense that there must be a real likelihood or prospect of removal in the reasonably foreseeable future.”

The case is under appeal but judgment is reserved in the Full Court of the Federal Court.

55                  In Al Khafaji v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1369, Mansfield J was of the view that he should follow the decision of Merkel J in Al Masri unless of the view that it was plainly wrong.  After reviewing his Honour’s reasoning in that case and accepting that there was much to be said for the position adopted by the Minister’s counsel, Mansfield J was not persuaded that the decision in Al Masri was plainly wrong.  He said:

“I have resisted the temptation of first reaching my own view as to the proper scope and operation of ss 196(1)(a) and 198.  Were I to do so… it is a small and attractive step then to conclude that a contrary decision (assuming for the moment that I had come to a conclusion contrary to that in Al Masri) is plainly wrong.  In my judgment, the approach of Merkel J in Al Masri is the result of his Honour’s careful consideration of the relevant provisions.  His analysis of the issues and reasons for decision in the cases of Hardial Sing, Lam and Zadydvas is not shown to be erroneous, and I am not persuaded that he misunderstood the textual or contextual differences between those cases and the legislation and circumstances he was addressing in Al Masri.”

56                  With respect to the careful judgment of Merkel J in Al Masri, I have serious reservations as to its correctness.  Were a constructional choice available which would allow me to adopt the limitation which his Honour found in the obligation to detain under s 196, I would have little hesitation in adopting it consistently with the general approach I have already outlined to the construction of statutes impinging on fundamental rights and freedoms and, in particular, the liberty of the individual.  The language of  s 196 however seems to me to be intractable.  The detention there prescribed is ended only by one of the terminating events.  The removal obligation for which s 198 provides does not seem to have been enacted for any purpose protective of the rights of  detainees.  Rather it facilitates the expeditious removal from Australia of unlawful non-citizens.  The remedy for a failure in the discharge of that duty may be mandamus, possibly directed to the Minister.  And it may be that, as an incident of such a mandatory order, the Court might direct conditions of detention which are calculated to minimise the harm suffered by the detainee as a consequence of the delay in effecting removal.  The uncertainty of the criteria adopted in Al Masri illustrates their difficulty.  Absent a specification of some precise period by the court the judgment that a lawful detention has expired and become unlawful, on the Al Masri criteria, is a matter of evaluation as to which minds might differ.  The Parliament has specified precise criteria by reference to particular events, upon which detention under s 196 will terminate.  It is difficult to see how the Court can in effect legislate another limiting condition.  Had the Parliament sought so to limit the power it could be expected, in the context of this particular statutory scheme, to have done so.  That is not to undercut the general principle that clear words are required to justify interference with common law rights and freedoms.  Rather, it is based upon a consideration of the specificity with which Parliament has identified the conditions upon which a detention under s 196 expires. 

57                  However, while my reservations are considerable, it is not necessary for present purposes to reach a concluded position on the matter.  Whatever my views, they will in any event be overtaken by the decision of the Full Court on appeal from Merkel J.  In my opinion the application in this case must be dismissed, even on the assumption that the Al Masri criteria apply to limit the power of detention.

Whether the Power to Detain has been Exceeded on the Facts of this Case

58                  The term “as soon as reasonably practicable” in s 198 is an evaluative term which is to be assessed by reference to all the circumstances of the case.  What is reasonable is to be determined, inter alia, by reference to the practical difficulties that may lie in the way of making arrangements for removal which involve the cooperation of other countries whether in respect of the particular applicant or generally in relation to the class of applicants of which he is a part.  Provided arrangements are being sought generically or specifically by reference to the applicant with reasonable expedition it is difficult to see how delays beyond the control of the Minister and his officers can be taken into account in determining what period for removal falls outside the scope of the term “as soon as reasonably practicable” in s 198. 

59                  In my opinion the applicant has not established in this case that the Minister is not, and has not, taken all reasonable steps to secure his removal from Australia as soon as reasonably practicable.  That such steps may be subsumed in generic negotiations with third countries relating to modes of return to Iraq does not render them less applicable to facilitating the removal of the applicant for the purposes of s 198.  It is not to be expected or imposed as a requirement of the duty under s 198 that negotiations necessary to facilitate the removal of one member of a class of returnees should be conducted on a case by case as distinct from a generic basis.   It is appropriate to have regard to the practical difficulties in the way of making removal arrangements in deciding what is “the reasonably foreseeable future” on the Al Masri criteria.  In my opinion, absent the applicant’s own reservations and conditions on his removal from Australia, he has not demonstrated that there would not be a real likelihood of his removal from Australia in the reasonably foreseeable future, assessed in the light of the real world difficulties that attach to such removal. 

60                  It may be said in the present case that there have been delays on the part of the Department in dealing with the applicant’s request for removal.  In my opinion, however, there has never been a stage at which that request has been unconditional or unequivocal.  I do not accept the submission made by counsel for the applicant that the fact that the applicant withholds his consent to being removed to some specific country or makes that consent conditional does not have a bearing on the question of what is “as soon as reasonably practicable” under s 198(1) or (6).  I would go so far as to say the written request for removal contemplated by s 198(1) which is so conditioned is not a request of the kind contemplated by that section.  In particular, it is not open to the applicant to argue that he can condition or limit his request for removal by excluding the possibility of removal to the country from which he had fled.  The statutory scheme contains no such implication even on the Al Masri approach.  The lawfulness of his continuing detention cannot be defined by reference to issues relating to whether he has a well-founded fear of persecution if returned to Iraq, that having already been the subject of the administrative and judicial review process that extended from the end of 1999 until September 2001. 

61                  There is nothing in the terms of s 198(1) to suggest that a detainee’s request to be removed from Australia may be expressed to be subject to conditions including conditions which exclude removal to specified countries and yet still attract the duty to remove him which is created by that section.  In particular there is no implication that the applicant requesting removal may reasonably withhold his consent to be removed to a particular country where that consent would be necessary to effect that removal.  A detainee cannot, in effect, create a circumstance which negatives any reasonable likelihood that he can be removed in the foreseeable future by withholding his consent or cooperation to a particular avenue for removal and specifically to removal to the country from which he came.  No issue as to the reasonableness of his withholding of consent thus arising, there is no requirement for any further evidence to be considered on that issue as was foreshadowed by counsel for the applicant.   

62                  In my opinion even assuming an implied limitation on the detention power by reference to the requirement in s 198 that the applicant be removed “as soon as reasonably practicable” following his written request or the final completion of the visa application process (including review and judicial review), the power to detain him has not been exhausted and the application must be dismissed.

Acting Associate:

Dated:              23 December 2002