FEDERAL COURT OF AUSTRALIA

NAGA v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 224

MIGRATION – detention of unlawful non-citizens – application for writs of or orders in the nature of a writ of habeas corpus – whether detention unlawful – where Minister taking all reasonable steps to secure removal as soon as is reasonably practicable – where removal not reasonably practicable in the reasonably foreseeable future

The Constitution Ch III, s 51(xix)

Judiciary Act 1903 (Cth) s 39B, s 78B

Migration Act 1958 (Cth) ss 5, 13, 29, 31, 36, 46, 47, 48A, 48B, 65, 91X, 189, 196, 198, 199, 412, 414, 415

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

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

Applicant WAIW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1621 considered

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 cited

Chung Tu Quan, Re [1995] 1 HKC 566 referred to

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

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

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

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

Ruddock v Vadarlis (2001) 110 FCR 491 referred to

SHFB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 29 considered

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

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

Zadvydas v Davis 533 US 678 (2001) referred to

NAGA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1353 OF 2002

NAGB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1354 OF 2002

NAGC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1355 of 2002

NAGD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1356 OF 2002

NAGE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1357 OF 2002

NAGF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1358 OF 2002

EMMETT J

20 MARCH 2003

SYDNEY

THE COURT ORDERS THAT:

1.         the proceeding be stood over for mention on 11 April 2003.

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

THE COURT ORDERS THAT:

1.         the proceeding be stood over for mention on 11 April 2003.

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

THE COURT ORDERS THAT:

1.         the proceeding be stood over for mention on 11 April 2003.

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

THE COURT ORDERS THAT:

1.         the proceeding be stood over for mention on 11 April 2003.

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

THE COURT ORDERS THAT:

1.         the proceeding be stood over for mention on 11 April 2003.

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

THE COURT ORDERS THAT:

1.         the proceeding be stood over for mention on 11 April 2003.

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

N1353 OF 2002

N1354 OF 2002

N1355 OF 2002

N1356 OF 2002

N1357 OF 2002

N1358 OF 2002

REASONS FOR JUDGMENT

1                     There are six applications before the Court.  The applicants in each proceeding is in immigration detention under the Migration Act 1958 (Cth) (“the Act”).  The respondent in each of the proceedings is the Minister for Immigration & Multicultural & Indigenous Affairs (“the Minister”), who has responsibility for the administration of the Act. 

2                     The applicants claim orders that would have the effect of securing their release from detention.  They claim those orders on the basis that their detention is unlawful.  They accept that, when they were taken into detention, their detention was lawful.  However, they say that there is no real likelihood or prospect of their removal from Australia in the reasonably foreseeable future and that, as a consequence, detention that was previously lawful has become unlawful.

3                     Each applicant seeks a declaration that he is unlawfully detained and invokes the Court’s jurisdiction under s 39B(1A)(b) and s 39B(1A)(c) of the Judiciary Act 1903 (Cth) to claim a writ of habeas corpus or an order in the nature of a writ of habeas corpus (see Ruddock v Vadarlis (2001) 110 FCR 491 at 517).  The proceedings have been conducted on the basis that the elements necessary to found the grant of such relief are that:

• the Minister is responsible for a restraint on the liberty of the applicants; and

·        the restraint on the liberty of the applicants is unlawful.

Once the applicants have put the question of lawfulness of detention in issue, it would then be for the Minister to establish, on the balance of probabilities, that the detention is lawful.  The Minister relies upon the provisions of the Act as justifying the continuation of the detention and, indeed, requiring its continuation. 

STATUTORY FRAMEWORK

4                     Section 29(1) of the Act provides that the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:

• travel to and enter Australia;

·        remain in Australia.

Under s 31(2) there is to be a class of visas provided for by s 36.  Section 36(1) provides that there is a class of visas to be known as protection visas. 

5                     Under s 36(2) a criterion for the grant of a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention (as defined in the Act), as amended by the Refugees Protocol (as defined in the Act).  Section 36(3) provides that Australia is to be taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in any country apart from Australia. 

6                     Under s 13 of the Act, a non-citizen in the migration zone (defined, in general terms, as Australia and its territories), who holds a visa that is in effect, is a lawful non-citizen.  Section 14(1) provides that a non-citizen in the migration zone, who is not a lawful non-citizen, is an unlawful non-citizen.

7                     Section 46 of the Act provides for the circumstances in which an application for a visa is valid.  Under s 47(1) the Minister is required to consider a valid application for a visa.  Under s 65, after considering a valid application for a visa, the Minister must, if satisfied as to certain matters, grant the visa.  If not so satisfied, the Minister must refuse to grant the visa.

8                     Section 48A provides that a non-citizen who, while in the migration zone, has made an application for a protection visa, where the grant of a visa has been refused, may not make a further application for a protection visa while in the migration zone.  However, under s 48B(1), if the Minister thinks it is in the public interest to do so, the Minister may determine that s 48A does not apply to prevent an application for a protection visa in some circumstances. 

9                     Part 7 of the Act provides for review of protection visa decisions.  Under s 412, which is in Part 7, an application may be made to the Refugee Review Tribunal (“the Tribunal”) for review of, inter alia, a decision to refuse to grant a protection visa.  Under s 414, if a valid application is made under s 412, the Tribunal must review the decision.  Under s 415 the Tribunal may affirm the decision, vary the decision, set the decision aside and substitute a new decision or, in some circumstances, remit the matter for reconsideration.

10                  Division 7 of Part 2 of the Act is concerned with detention of unlawful non-citizens.  Section 189(1), which is in Division 7, provides that if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.  Section 196(1) relevantly provides that an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is:

• removed from Australia under s 198 or s 199; or
• deported under s 200; or

·        granted a visa.

Section 196(3) provides that, to avoid doubt, s 196(1) prevents the release, even by a court, of an unlawful non-citizen from detention, otherwise than for removal or deportation, unless the non-citizen has been granted a visa.

11                  Division 8 of the Act is concerned with removal of unlawful non-citizens.  Section 198(1), which is found in Division 8, provides that an officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.  Section 198(6) provides that an officer must remove as soon as reasonably practicable an unlawful non-citizen if:

• the non-citizen is a detainee; and
• the non-citizen made a valid application for a substantive visa; and
• the grant of the visa has been refused and the application has been finally determined; and

·        the non-citizen has not made another valid application for a substantive visa.

Under s 5(9) an application under the Act is finally determined when either:

• a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 7; or
• a decision that has been made in respect of the application was subject to some form of review under Part 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.

12                  In the present context, an application for a protection visa will be finally determined, where an application has been made to the Tribunal for review of a decision of the Minister or the Minister’s delegate, when the decision of the Tribunal is made.  The decision made by the Minister or the Minister’s delegate will then no longer be subject to any form of review under Part 7.  Each of the applicants in these proceedings made an application for a protection visa.  Each application was refused and the decision to refuse to grant a protection visa was affirmed in each case by the Tribunal, following applications made to the Tribunal for review. 

13                  Each of the applicants has been in immigration detention for in excess of two years since the Tribunal made its decision in respect of that applicant.  While the applicants accept that each of them was lawfully detained by officers of the Minister’s department pursuant to the provisions of the Act just summarised, they claim that their detention is now unlawful, notwithstanding those provisions, because there is, at the present time, no real likelihood or prospect of their removal from Australia in the reasonably foreseeable future.  The Minister, on the other hand, maintains that the continued detention of the applicants is not only lawful but is required by those provisions.

FACTUAL BACKGROUND

14                  I shall refer to the six applicants by the pseudonyms NAGA, NAGB, NAGC, NAGD, NAGE, and NAGF.  They are the pseudonyms assigned to them by the Court in order to ensure compliance with s 91X of the Act.  Section 91X relevantly requires that the Court not publish, in relation to a proceeding concerning a person in his capacity as an applicant for a protection visa, the name of that person.  The factual background in relation to the applicants can be conveniently described by reference to four categories, although the circumstances of NAGA fall into two of the four categories. 

15                  The first category consists of Kuwaiti Bidoons.  NAGA claimed, upon his first arrival in Australia, that he was a Kuwaiti Bidoon and the Minister has considered him as a possible Bidoon from Kuwait.  NAGC is accepted to be a Kuwaiti Bidoon. 

16                  NAGA now claims that he was born in Iraq and is an Iraqi citizen, having left Iraq at the age of 5 to live in Iran.  He arrived in Australia on 27 June 1999, then aged 23.  He has been in immigration detention since that time in Port Hedland, Perth and Baxter detention centres.

17                  NAGA applied for a protection visa.  The Minister’s delegate refused to grant a protection visa and the Tribunal affirmed that decision on 9 February 2001.  Since then, NAGA has made regular requests to be removed to any country other than Iraq.  In September or October of 2002, NAGA received an Australian Certificate of Identity, which he used to apply for a visa for NAGA to enter Syria.  That application was refused.

18                  NAGC is a stateless Bidoon born in Kuwait in December 1949.  He went into hiding in Kuwait during the Gulf War.  NAGC arrived in Australia on 14 April 1999 and has been in immigration detention at the Villawood detention centre ever since that time.  NAGC applied for a protection visa.  The Minister’s delegate refused to grant a protection visa.  The Tribunal affirmed that decision on 11 January 2000. 

19                  Direct return of NAGA to Iraq is not possible because of international sanctions in relation to Iraq. Kuwait will not accept the return of NAGC or NAGA and there is no real prospect of their being returned to Kuwait. 

20                  The second category consists of Iraqis in respect of whom the Tribunal has made a finding that they have a well-founded fear of persecution in Iraq for a Convention reason but could seek third country protection.  The circumstances of NAGB and NAGF fall into the second category.

21                  NAGB was born in Iraq and is an Iraqi citizen.  He fled Iraq at the age of 37 because he feared persecution as a Shiite Muslim.  He arrived in Australian on 13 August 1999 aged 46.  He has been in detention at the Port Hedland and Maribyrnong detention centres since that time.

22                  NAGB applied for a protection visa.  The Minister’s delegate refused to grant a protection visa and the Tribunal affirmed that decision on 17 May 2000.  The Tribunal found that, while there was a real chance that NAGB may face harm for a Convention reason if he returned to Iraq, he could avail himself of protection in Syria.  However, NAGB’s attempts to be removed to Syria have been unsuccessful.  His applications for a Syrian visa have been rejected in both Sydney and Melbourne.  He says that he has been told at least three times that nothing can be done for him. 

23                  NAGF was born in Iraq in 1974 and is an Iraqi citizen.  He served in the Iraqi army for three years between the ages of 18 and 21, at which time he defected.  He then lived in Jordan and Syria and arrived in Australia on 7 November 1999.  He has been in immigration detention since 18 November 1999. 

24                  NAGF applied for a protection visa.  A delegate of the Minister refused the application and the Tribunal affirmed that decision on 6 July 2000.  The Tribunal was satisfied that NAGF has a well-founded fear of persecution in Iraq for a Convention reason but found that NAGF could avail himself of third country protection in Syria. 

25                  In about January 2002, NAGF received an Australian Certificate of Identity, which he sent to a friend in Sydney for the purpose of applying for a visa to enter Syria.  That application was unsuccessful.  An officer of the Minister’s department subsequently told NAGF that he could not be sent anywhere and would have to wait until everything was settled in Iraq.  He was told again in April 2002 that the Minister could not do anything for him.  An approach by NAGF to the Syrian consulate in Melbourne for a visa to enter Syria has also been rejected. 

26                  The third category consists of those who have been held not to have a well-founded fear of persecution in Iraq for a Convention reason.  The circumstances of NAGA and NAGD fall into the third category.

27                  NAGD is an Iraqi citizen born in Iraq.  He arrived in Australia on 23 May 1999 and has been in immigration detention since that time in the Villawood, Woomera and Curtin detention centres.  He applied for a protection visa.  The application was refused by a delegate of the Minister.  The Tribunal affirmed that decision on 19 August 1999.

28                  In November 1999 NAGD was told by an officer of the Minister’s department that Iraqis could not be removed at that time because it would be too dangerous and that he would have to wait.  He has contacted the Jordanian embassy and has been told that entry visas could not be issued to people like him.  He has no family or friends in Syria and there is no basis for thinking he would obtain a visa there.

29                  The fourth category consists of NAGE, who is either an Afghan national or a person of unspecified nationality.  NAGE’s parents were born in Afghanistan but fled that country before he was born because of fear of persecution as members of the Hazara ethnic group.  NAGE was born in Iraq where his parents settled on a temporary basis.  His parents were deported from Iraq under the regime of Saddam Hussein in 1979, when NAGE was aged three.

30                  NAGE arrived in Australia on 1 September 1999 and applied for a protection visa.  A delegate of the Minister rejected his application and the Tribunal affirmed that decision on 9 November 2000.

31                  If NAGE is an Afghan national, there may be some prospect for his return to Afghanistan, if he is able to obtain an Afghan passport or travel documents.  NAGE has exhausted options available to him to date for obtaining such necessary documentary evidence. 

32                  The Minister has adduced evidence of a confidential nature concerning the steps that have been taken, and may be taken in the future, with a view to securing the removal of each of the applicants from Australia.  The applicants do not assert that the Minister has not taken or is not taking all reasonable steps to secure their removal as soon as is reasonably practicable.  However, they assert, and the assertion is not disputed by the Minister, that their removal from Australia is not reasonably practicable at the present time, in the sense that there is not a real likelihood or prospect of their removal in the reasonably foreseeable future.  In the light of the attitude taken by the applicants and the Minister, it is unnecessary to make findings in relation to the confidential evidence concerning the steps that have been taken, and that the Minister and his department propose to take, in order to secure the removal of the applicants from Australia. 

CONFLICTING AUTHORITIES

33                  The applicants rely on the proposition that the power of the Minister to detain an unlawful non-resident pursuant to the Act subsists only so long as:

• the Minister is taking all reasonable steps to secure the removal from Australia of the person as soon as is reasonably practicable; and

·        the removal of the person from Australia is reasonably practicable in the sense that there must be a real likelihood or prospect of removal in the reasonably foreseeable future.

34                  They rely on the decision of the Court in Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 192 ALR 609 at 618[38] as authority for that proposition.  In the light of the attitude taken by the Minister and of the fact that the applicants do not assert that the Minister is not taking all reasonable steps to secure the removal of the applicants from Australia as soon as it is reasonably practicable, the applicants’ entitlement to the relief they claim depends upon the correctness of that proposition. 

35                  The Minister appealed to the Full Court from the decision of Merkel J in Al Masri.   While the appeal has been heard, it has not yet been decided.  Nevertheless, sine these proceedings have been brought on with a degree of urgency, the applicants and the Minister have requested that I proceed to decide the applications forthwith. 

36                  In the interests of certainty in the administration of justice, I would ordinarily follow the decision of the Court in Al Masri unless I were persuaded that the decision was plainly wrong.  In the context of a question that involves statutory construction, I would not be persuaded that a decision of the Court was clearly wrong if the construction adopted by the earlier Court was reasonably open according to ordinary principles of statutory interpretation. 

37                  However, the decision of the Court in Al Masri has been the subject of consideration by other judges of the Court on a number of occasions.  On most of those occasions, the Court doubted the correctness of the decision in Al Masri.

38                  In Al Khafaji v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1369, where the same question arose, the Minister contended that the decision in Al Masri was wrong and should not be followed.  Mansfield J considered (at [32]) that “there is much to be said for the position adopted by the [Minister]”.  However, his Honour was not persuaded that the decision in Al Masri was plainly wrong and therefore adopted Merkel J’s approach to the construction of the relevant provisions. 

39                  In NAKG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1600, Jacobson J expressed the view that there was considerable force in the similar submissions put by counsel for the Minister.  Jacobson J had real difficulty in seeing how the plain words of the Act could lend themselves to the implied limitation imported by the decision in Al Masri.  His Honour did not see how the obligation to remove “as soon as reasonably practicable” in s 198 cut down the obligation under s 196(1) to keep an unlawful non-citizen in immigration detention until one of the conditions in s 196(1) had been satisfied.  Despite those reservations, however, Jacobson J considered that it was not possible to conclude that the decision of Merkel J was plainly wrong and, accordingly, followed Merkel J’s approach.

40                  In Applicant WAIW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1621, Finkelstein J granted interlocutory relief on the basis that there was at least a serious question to be tried as to whether the decision in Al Masri was correct.  His Honour considered (at [8]) that there was no manifest error in the reasons of Merkel J and that the result reached by his Honour was “supportable by the analogical use of cases”. 

41                  In WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625, French J expressed serious reservations as to the correctness of Al Masri.  His Honour characterised the language of s 196 as “intractable” because the detention prescribed is ended only by one of the terminating events.  Since the Parliament has specified precise criteria by reference to particular events, upon which detention would terminate, French J found it difficult to see how the Court could, in effect, legislate another limiting condition. 

42                  In NAES v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 2, Beaumont J agreed (at [17]) with the criticism of the reasons in Al Masri expressed by Jacobson J and French J.  In Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 20, Whitlam J also found that criticism of the reasons in Al Masri compelling and entirely convincing.  His Honour considered that the decision in Al Masri was wrong.  His Honour did not consider that the construction of s 190(6) adopted by Merkel J was reasonably open on its face and concluded that the decision in Al Masri was plainly wrong.

43                  In SHFB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 29, Selway J accepted the possibility that opinions may reasonably differ on the meaning and effect of statutory provisions.  His Honour accepted that, where several different interpretations are reasonably open, it is important to follow previous authority, even if not binding and even if an arguably better interpretation appears to be available.  Such an approach helps to ensure consistency, which is a fundamental requirement of the rule of law and of maintaining public confidence.  On the other hand, his Honour observed that, where the interpretation of a statute is clear and obvious and the alternative non-binding interpretation plainly wrong, to follow the latter interpretation notwithstanding its apparent error would also have the effect of subverting the rule of law.  It would be to give greater weight to the reasoning of a judge than to the words made by the Parliament. 

44                  In the light of the contradictory authorities to which I have referred, Selway J concluded that it was not necessary to decide whether one or other of the lines of authority was “plainly wrong”.  His Honour characterised his task as choosing which of the two lines of authority was correct.  His Honour preferred the approach adopted by Whitlam J in Daniel.  His Honour considered that the relevant provisions are clear and obvious and that the approach in Al Masri was in error because the reasoning was based on an attempt to discern analogies from previous cases rather than seeking to interpret the plain words of the Act. 

45                  Thus, I am faced with a situation where there is one decision of the Court, Al Masri, which, if I followed, would resolve these proceedings in favour of the applicants.  On the other hand, apart from the decision in Applicant WAIW, where no final view was expressed by the Court, having regard to the interlocutory nature of the proceeding, every other judge of the Court who has considered the question has doubted the correctness of the decision in Al Masri.  Further, two of those judges have expressly declined to follow that decision. 

46                  The applicants did not advance any authority for the propositions upon which they rely other than Al Masri and the authorities relied upon by Merkel J in reaching the conclusion that he reached in that case.  In the circumstances, I consider that I am not bound to follow the decision in Al Masri and that I should form my own view as to the correctness of the proposition relied on by the applicants. 

THE LAWFULNESS OF THE DETENTION

CONSTITUTIONAL VALIDITY OF THE PROVISIONS

47                  On 4 March 2003, the applicants gave notice pursuant to s 78B of the Judiciary Act that they would contend that, in the light of limits to the relevant heads of legislative power that arise from the exclusive vesting of the judicial power of the Commonwealth in the courts referred to in Chapter III of the Constitution, s 196 must be construed as authorising detention only to the extent that it is reasonably necessary for the purpose of, relevantly, removal from Australia.  None of the Attorneys-General has indicated a desire to be heard in relation to that question. 

48                  In effect, each applicant contends that, in the circumstances presently applying to him, his continued detention is not capable of being authorised by legislation of the Commonwealth.  The applicants say that, if s 196 authorise such continued detention, it is invalid as being beyond the legislative power of the Commonwealth because it is not reasonably necessary for the purpose of their removal from Australia.  They say that, to avoid that consequence, s 196 must be read down so as not to authorise continued detention in their present circumstances. 

49                  Each of the applicants, being an unlawful non-citizen, is an alien.  Section 51(xix) of the Constitution authorises the Parliament to make laws with respect to aliens and the validity of the relevant provisions of the Act depends upon that provision.  If the provisions authorise detention for a purpose that can properly be characterised as being a purpose with respect to aliens, they will be valid. 

50                  The power of the Parliament to make laws with respect to aliens includes, not only the power to make laws providing for the removal or deportation of aliens by the Executive, but also the power to authorise the Executive to detain an alien in custody to the extent necessary to effect removal or deportation: see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 30-31.  Thus, the provisions presently under consideration will be valid if they are reasonably appropriate and adapted for the purposes of processing and securing deportation or removal of unlawful non-citizens. 

51                  It is beyond the legislative power of the Commonwealth to invest the Executive with an arbitrary power to detain persons in custody.  That is because detention is normally a punitive measure.  The function of judging and punishing criminal guilt is a judicial one reserved to the Courts referred to in Chapter III of the Constitution.  However, immigration detention of an alien for the purposes of expulsion or deportation is not punitive in nature and, therefore, does not trespass on the judicial power of the Commonwealth: see Chu Kheng Lim at 32. The detention of an unlawful non-citizen for the purpose of his or her removal from Australia, to ensure that the person will be available for removal, is not punitive in character.  Accordingly, the power to detain for such purposes can be conferred on a person or body other than a Court exercising the judicial power of the Commonwealth. 

52                  The applicants contend that a provision authorising continued detention of a person when there is not a real prospect of removing that person to another country in the foreseeable future is not appropriate or adapted for the purpose of securing removal or deportation.  They say that detention cannot properly be seen as appropriate and adapted to securing such removal at any given time if, at that time, there is no real prospect of removal in the reasonably foreseeable future.  Thus, the question is whether a person can properly be regarded, at a given time, as being detained for the purpose of removal from Australia if, at that time, there is no a real prospect of removing him or her from Australia in the foreseeable future. 

53                  Whether administrative detention of a person is properly seen as being for the purpose of ensuring that person’s removal from Australia will depend upon objective considerations and not upon the subjective purpose that the Minister or an officer has, or claims to have, in a particular case.  Similarly, the factual consequences of detention of an individual cannot render s 196 invalid.  The length of the detention cannot, of itself, destroy its validity so long as the purpose of the detention is the furtherance of an object that is within the legislative power of the Parliament. 

54                  Section 196, read with s 198, does not provide for indefinite detention, in the sense of detention unconstrained by any purpose.  It provides, relevantly, for detention for the purpose of effecting removal of an unlawful non-citizen.  Once it is accepted that the Parliament may make laws authorising the Executive to restrain an unlawful non-citizen in custody to the extent necessary to make the deportation effective, there is no constitutional limit on the power to authorise detention indefinitely, so long as the detention is for the purpose, ultimately, of securing the removal of the unlawful non-citizen.  Thus, there is no constitutional reason why s 196(1) cannot be read as conferring an unqualified power to keep an unlawful non-citizen in immigration detention until one of the events specified in the section occurs, however uncertain the event may be, so long as the purpose of the detention is removal. 

55                  The political situation in various parts of the world changes from time to time.  It is possible to conceive of circumstances where, by reason of political upheavals in other parts of the world, the practicability of removal of an unlawful non-citizen to such parts of the world could change very quickly.  The change might either facilitate or impede the removal.  While humanitarian considerations may render very distasteful the indefinite detention of an unlawful non-citizen, simply because Australia is unable to find a country to whom that person may be removed, that, of itself, does not detract from the fact that continued detention is for the purpose of achieving that object. 

56                  That is to say, the possibility always remains that it will be practicable to remove the applicants to another country at some time in the future.  It may not be feasible at the present time.  However, there is a possibility that, at some stage in the future,  political circumstances will change such that it will be practicable to remove them.  The events contemplated by s 196(1) can still occur at some time in the future. 

57                  The position could well be different if the events specified in s 196 were such that circumstances could render them incapable of coming about.  For example, a provision could provide that an unlawful non-citizen who travels to Australia on board a vessel may be kept in detention until the departure of the vessel from Australia.  In such a case, the termination of the detention would be predicated upon the departure of a specified vessel from Australia.  If that vessel were to be destroyed, the event upon which termination of detention is predicated could then never occur. 

58                  It may therefore be possible to read into such a provision a qualification that the period of detention authorised was a transitory one, pending the departure of the relevant vessel.  Once it became apparent that the relevant vessel could never depart, the temporary period pending departure, in which a person could lawfully be held in detention pursuant to the provision, would come to an end.  The provision would no longer authorise the detention of the person.  Those were the circumstances that arose in Chu Kheng Lim: see at 21-22. 

59                  Such circumstances are to be contrasted with those contemplated by s 196.  As I have said, the events upon which detention is to terminate can still occur at some time in the future, albeit that the occurrence might be in the remote future.  The position might be different if circumstances arose such that none of the events referred to in s 196(1) could ever occur.  In those circumstances, if the true construction of s 196(1) was to authorise continued detention even after the events became impossible of occurrence, there may be some constitutional invalidity.  That question, however, simply does not arise in the present case.

60                  I do not consider that any constitutional invalidity arises from construing the relevant provisions as authorising continued detention of an unlawful non-citizen at a time when there is no real prospect of removing that person from Australia in the foreseeable future.  Accordingly, there is no need to read down the provisions, in the way as claimed by the applicants, in order to ensure constitutional validity.  That being so, there is no reason why the provisions should not be given the effect that their clear unequivocal meaning requires. 

CONSTRUCTION OF THE PROVISIONS

61                  There are several general considerations that lead to the conclusion that the Parliament did not intend that an unlawful non-citizen should be released from detention at a particular time simply because, at that time, there is not a real prospect of removing him from Australia in the foreseeable future.  First, it would be a curious result if an unlawful non-citizen could secure unconditional release from detention into the Australian community.  In such a case, there would be no restrictions on the right to work of the kind that might be imposed upon a lawful non-citizen who entered Australia and remained in Australia pursuant to a visa granted under the Act.  Such a person could be removed upon the expiration of the visa.  A refugee to whom a protection visa was granted on conditions would be bound by the conditions.  An unlawful non-citizen would be bound by no such restrictions. 

62                  Secondly, the criteria for determining whether there is, at any given time, a real likelihood or prospect of removal of a person in the reasonably foreseeable future are vague and uncertain in the extreme.  In order to determine whether, at any given time, such circumstances had arisen, it would be necessary to investigate and inquire into diplomatic relations between Australia and foreign countries that could be of an intensely sensitive nature.  There would be uncertainty as to the time at which circumstances had changed, either in favour of, or against, the prospects of removal.  A particular characteristic of the Act is the specificity and precision with which rights and duties are stated.  It would involve an unacceptable element of uncertainty to require the investigation of the state of diplomatic relations between Australia and foreign countries with respect to the practicability of removal of unlawful non-citizens in order to determine the lawfulness of detention under the Act. 

63                  Thirdly, if the provisions were construed as the applicants claim they should be, there could be considerable practical difficulties for the enforcement of the obligations to remove an unlawful non-citizen, which are imposed by the Act on the Minister and officers of his Department when it became reasonably practicable to do so.  The purpose of detention is to ensure that removal can be effected as soon as practicable.  If, as the applicants contend, their detention is unlawful, each would be entitled to be released from detention unconditionally until it became reasonably practicable to remove him.  It is unlikely that the Parliament intended that, at some indeterminate and uncertain time, an unlawful non-citizen could be released unconditionally from detention for an indefinite and uncertain period. 

64                  Those considerations point inevitably to a conclusion that the provisions should be construed in accordance with their clear and unequivocal meaning.  Thus, s 189(1) requires that, if an officer knows that a person in Australia is an unlawful non-citizen, the officer must detain that person.  Section 196(1) relevantly requires that each of the applicants, as an unlawful non-citizen detained under s 189, must be kept in immigration detention until he or she is removed from Australia under s 198 or s 199 or is granted a visa.  Neither of those events has occurred, although it is still possible that such an event could occur.  Unfortunate though it may be from a humanitarian point of view, the Act is clear in providing that the applicants, being unlawful non-citizens, must be kept in detention until one of those events specified in s 196 occurs. 

65                  The applicants endeavoured to derive some support for the proposition for which they contended from several overseas cases relied on by Merkel J in the decision in Al Masri:

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

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

·        Re Chung Tu Quan & Ors [1995] 1 HKC 566;

·        Zadvydas v Davis 533 US 678 (2001).

66                  The statutory provisions that arose for construction in those cases, however, are in significantly different terms from the provisions of the Act presently under consideration. 

67                  It is significant that the provisions of s 196 and s 198 are mandatory, as is clear from the use of the word “must” as indicated above.  It may be that, if the taking of an unlawful non-citizen into detention or the maintaining of detention in respect of an unlawful non-citizen were a discretionary power that may or may not be exercised, the fact that there is not a real likelihood or prospect of removal of the unlawful non-citizen in the reasonably foreseeable future may be a factor that should be taken into account by the officer in deciding how to exercise the discretion.  Quite clearly, however, that is not the scheme of the relevant provisions of the Act. 

68                  In so far as applications for protection visas have been finally determined, the onerous duty imposed by s 198 has arisen in relation to each of the applicants.  The performance of that duty can no doubt be compelled by writs of Mandamus, or orders in the nature of Mandamus, directed to the Minister or officers of his department.  However, the applicants do not seek relief of that nature.  As I have indicated, it is not suggested that the Minister is not taking all reasonable steps to secure removal as soon as is reasonably practicable of each of the applicants.  In the present proceedings, therefore, it is not necessary to consider whether, if the Minister were not discharging the duty imposed by s 198(1), relief of the nature presently sought would be available.

CONCLUSION

69                  I am not persuaded that the continued detention of any of the applicants is unlawful.  Accordingly, each of the applications should be dismissed. 

Associate:

Dated:              27 March 2003