FEDERAL COURT OF AUSTRALIA

SHFB v Goodwin & Ors [2003] FCA 294

MIGRATION – application for writs in the nature of habeas corpus, prohibition and mandamus – whether prolonged detention of unlawful non-citizen is unlawful.

Judiciary Act 1903 (Cth) s 39B

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

SHFB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 29 followed

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

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

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

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

Coco v The Queen (1994) 179 CLR 427 cited

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 cited

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

NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 224 followed

Cabal v United Mexican States (No 2) [2000] FCA 295 referred to

R v War Pensions Entitlement Appeal Tribunal, Ex parte Bott (1933) 50 CLR 228 cited

R v Bristol Corporation;  Ex parte Hendy [1974] 1 WLR 498 cited

SHFB v PHILIPPA GOODWIN, JULIE HELEN KEENAN & MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No S 19 of 2003

von DOUSSA J

ADELAIDE

3 APRIL 2003

THE COURT ORDERS THAT:

1.         Application dismissed against each respondent.

2.         Applicant to pay the respondents’ costs of the application.

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

REASONS FOR JUDGMENT

1                     This application, brought under s 39B of the Judiciary Act 1903 (Cth), seeks:  a declaration that the applicant is being unlawfully detained by the third respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister);  writs in the nature of mandamus directing the first and second respondents, who are officers of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA), to take various steps intended to facilitate the applicant’s removal from Australia;  a writ in the nature of prohibition against the Minister from continuing to detain the applicant if the first and second respondents are not able to remove him from Australia within twenty-eight days;  and a writ in the nature of habeas corpus releasing the applicant from immigration detention.

2                     This matter raises very similar issues to those in Action No S 20 of 2003 where applicant SHDB seeks orders to an identical effect.  The two applicants have previously brought proceedings in this Court for writs in the nature of habeas corpus.  The proceedings were heard together before Selway J.  Both applications failed, but observations made by his Honour prompted the present applications by both applicants.  Again their two matters have been heard together.  The parties have treated the application by SHFB as the lead application.  It is convenient to consider the common issues raised in the two applications in the Reasons for Judgment in this matter.

3                     The applicant, SHFB, claims to be a stateless Palestinian formerly resident in Jordan, Algeria and Gaza in the Israeli-occupied territories.  He arrived in Australia without a passport on 18 August 2001.  On that day he was placed in detention.  On 24 September 2001 he lodged an application for a protection visa under s 36(2) of the Migration Act 1958 (Cth) (the Act).  On 7 May 2002 a delegate of the Minister refused to grant a protection visa.  The applicant sought review of that decision by the Refugee Review Tribunal (the Tribunal).  On 16 October 2002 the Tribunal affirmed the decision of the delegate after noting that there was a “general lack of credibility in the applicant’s evidence”. 

4                     On 16 October 2002, after learning that the Tribunal had affirmed the decision not to grant a protection visa, the applicant advised the Minister that he wanted to be removed from Australia to Israel, Palestine or Egypt, preferably Palestine. 

5                     On 26 November 2002 officers from DIMIA provided SHFB with an Australian Certificate of Identity.  This document permits him to leave Australia, but will not authorise him to stay anywhere else without further visas or other travel authorities.  Without a further visa or other travel authority it is not possible to remove him from Australia. 

6                     The “Unauthorised Arrivals Section” of DIMIA made enquiries seeking authority from other countries, including Jordan and Algeria, to which the applicant might be removed.  On 18 November 2002 an email was sent to the Principal Migration Officer in Cairo, a reply to which was still outstanding in early January 2003.  On 30 December 2002 SHFB was advised to complete an application form for a Palestinian passport which he did, but to enable that application to be further processed, additional information was required from him about family contacts in Palestinian territories.

7                     Notwithstanding the enquiries and other steps made by departmental officers, it had not been possible to remove SHFB from Australia by 6 January 2003.  On that day proceedings were issued by him in this Court against the Minister seeking a declaration that he was being unlawfully held, a writ in the nature of habeas corpus directing the Minister to release him from detention forthwith, and a writ in the nature of mandamus requiring the Minister to comply with s 198 of the Act.  That application was heard by Selway J on 29 January 2003 and judgment was delivered on 30 January 2003:  SHFB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 29 (SHFB).  His Honour noted at [1] that at the time of the hearing it remained the view of DIMIA officers that “the removal of [SHFB] from Australia is achievable and a number of options are yet to be exhausted”.

8                     After reviewing the relevant provisions in ss 189, 196 and 198 of the Act, and a number of decisions of single Judges of this Court commencing with the decision of Merkel J in Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1009 (Al Masri) and concluding with the decision of Whitlam J in Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 20 (Daniel), Selway J held that the continued detention of the applicant was not unlawful, and dismissed the application for a writ in the nature of habeas corpus:  [13].  In arriving at this decision his Honour noted that there are two contradictory lines of authority in the single Judge decisions to which he referred.  His Honour preferred the analysis of Whitlam J in Daniel and French J in WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625 (WAIS) to the reasoning of Merkel J in Al Masri.  In Al Masri, Merkel J (at [39]) held that:

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

Selway J concluded that such a construction of the relevant provisions of the Act was in error, primarily because the reasoning in Al Masri seems largely to be based on an attempt to discern analogies from previous cases, rather than seeking to interpret the plain words of the Act:  [10].  His Honour considered that the relevant provisions of the Act are clear and obvious and did not give rise to implicit limitations upon the detention power.  As Selway J construed the Act, an “unlawful non-citizen” must be detained (s 189 of the Act), and Commonwealth officers remained under a duty to do so.  He considered that the detention was to continue until the unlawful non-citizens were removed from Australia, deported or granted a visa (s 196(1) of the Act):  [10].

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

“189 Detention of unlawful non-citizens

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

            …

196 Period of detention

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

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

(b)        deported under section 200; or

(c)        granted a visa.

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

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

…

198 Removal from Australia of unlawful non-citizens

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

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

            ...

(c)        who either:

(i)        ...; or

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

10                  Section 5 of the Act defines “remove” as “remove from Australia”. 

11                  At [14] – [16] Selway J said:

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

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

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

12                  As Selway J considered that the duty imposed by s 198 was imposed upon officers, not the Minister, he held that the application before him was not an appropriate vehicle for consideration of whether DIMIA was complying with s 198:  [19].  His Honour concluded his judgment by observing at [20]:

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

13                  The applicant has taken up the challenge implicit in this observation, and these proceedings were commenced on 12 February 2003.

14                  The first respondent, Philippa Goodwin, is the Deputy Secretary of DIMIA.  The second respondent, Julie Helen Keenan, is the Acting Director of the Unauthorised Arrivals Section in the Unauthorised Arrivals and Detention Division of DIMIA.  The present application seeks relief as follows:

“A.      A Declaration that the Applicant is unlawfully detained.

B.                 A Writ in the nature of Mandamus directing the First respondent or her delegate to remove the Applicant from Australia within 21 days. 

C.                A writ in the nature of Mandamus directing the Second Respondent or her delegate to remove the Applicant from Australia within 21 days.

D.                A writ in the nature of Mandamus directing the Second Respondent or her delegate to inquiry, within 2 days, with the United Nations Relief and Work Agency if the applicant was ever registered as a Palestinian Refugee with access to Jordanian travel documents, to facilitate the removal from Australia of the Applicant.

E.                A writ in the nature of Mandamus directing the Second Respondent to inquire, providing all the necessary information, within 2 days with the relevant authorities regarding the Applicant’s eligibility for entry documents to Algeria to facilitate his removal from Australia.

F.                A writ in the nature of Mandamus directing the Second Respondent to inquire, providing all the necessary information, within 2 days, of both the Palestinian and the Israeli authorities, regarding the Applicant’s eligibility for residency in Gaza to facilitate his removal from Australia.

G.               A writ in the nature of Mandamus directing the Second Respondent to make the appropriate inquiries, providing all the necessary information, of the Jordanian authorities within 2 days, of the applicants eligibility to reside in Jordan for the applicant to facilitate his removal from Australia.

H.                A writ in the nature of Mandamus directing the Second Respondent to inquire, providing all the necessary information, within 2 days with the relevant authorities regarding the Applicant’s eligibility for entry documents to Syria to facilitate his removal from Australia.

I.                   A writ in the nature of Mandamus directing the second respondent to make the appropriate inquiries, providing all the necessary information, of any authority within 2 days, of the applicants eligibility to reside in any third country to facilitate his removal from Australia.

J.                  A writ in the nature of prohibition against the third respondent from continuing to detain the applicant if the first and second respondents are not able to remove the applicant from Australia within 28 days.

K.                A writ in the nature of Habeas Corpus releasing the applicant from immigration detention.

L.                 An order that the respondent pay the applicant’s costs.

M.               Such other orders as the court thinks fit.”

15                  The relief claimed in pars A, J and K again seek to raise claims for relief that were determined by Selway J less than two weeks before.  The present application, however, also seeks specific orders in the nature of mandamus against the first and second respondents. 

16                  In presenting the case of the applicant in the present proceedings, his counsel, Ms Claire O’Connor, based the claims for relief upon the reasoning of Merkel J in Al Masri, and contended first, that the respondents are not taking “all reasonable steps” to effect his removal from Australia, and secondly, that in any event removal is not reasonably practicable because no country will grant him the requisite visa or travel authorities.  In support of the second limb of the argument the applicant filed affidavits deposing to reasons for his belief that he is not eligible to obtain entry to Palestine, Israel, Egypt, Algeria, Jordan or Syria, being countries in respect of which he or members of his family have had some connection in the past, or to whom he had made unsuccessful applications for appropriate authorities to live there.

17                  On behalf of the respondents evidence was given by the second respondent, Ms Keenan.  I accept her evidence that the directions in respect of which a writ in the nature of mandamus is sought in pars D, E, F and G of the application have already been complied with so far as she is able, and that none of the enquiries which have been made have obtained travel documents or authorities that would permit the applicant’s removal from Australia.  I also accept Ms Keenan’s evidence as to her reasons why enquiries of the kind envisaged by par H would be futile, and her evidence that she has so far been unable to identify any specific third country to which enquiries of the kind envisaged by par I could usefully be made.  However, she and officers of DIMIA are continuing their efforts to identify a country, and enquiries have recently “escalated” to ministerial level.  Confidential evidence was given about these enquiries at the ministerial level that are still proceeding. 

18                  Where enquiries escalate to the ministerial level it is for the Minister to decide if and when further diplomatic approaches should be pursued, and with which countries.  In the present case, the level of enquiries, and the kinds of diplomatic approaches that may be considered, are influenced by the present unrest in the Middle East, and this is likely to extend the time which it may take before removal becomes possible. 

19                  In Ms Keenan’s opinion, the position remains as it was at the time of the hearing before Selway J, namely that removal from Australia will be achievable, but may take time, and there remain a number of options which are yet to be exhausted, including negotiations at a ministerial level between the Minister and his counterparts in third countries.

20                  Criticism was made by counsel for the applicant that DIMIA officers have not pursued enquiries as vigorously as they could have done.  However, as Ms Keenan pointed out, the department has many other people besides the applicant whose removal from Australia must be arranged. 

21                  I am not satisfied on the evidence that the Minister and DIMIA, including the first and second respondent, are not taking all reasonable steps to secure the removal of the applicant from Australia.  On the other hand, I consider the evidence does establish, and I so find, that removal from Australia is not reasonably practicable at the present time as there is no real likelihood or prospect of removal in the reasonably foreseeable future.  If I were to apply the construction given to s 196(1)(a) in Al Masri I would therefore hold that the Minister is no longer entitled to detain the applicant pending his removal, and that he should be released on appropriate conditions until the Minister is able to establish that his removal from Australia has become reasonably practicable, e.g. because a third country has granted the necessary visa or travel authorities.  Even though, on the Al Masri construction, s 196(1)(a) would not authorise detention during periods when removal of the removee from Australia is not “reasonably practicable” the obligation to remove an unlawful non-citizen under s 198(1) and (2) would remain in force.

22                  Counsel for SHFB in the course of her detailed submission took the Court to the Reasons for Judgment of Merkel J in Al Masri, and to the authorities upon which Merkel J relied.  The decision in Al Masri has been appealed.  The appeal has been heard, but judgment has not yet been delivered.  Counsel contended that the Court should follow Al Masri, notwithstanding that other single Judges of this Court have not done so.  Counsel argued that the conclusion reached in Al Masri is correct as Parliament, in drafting s 196, could not have intended that a person could be detained indefinitely;  and in any event indefinite detention would be punitive or penal in character and beyond the Constitutional limits on the legislative power to make laws in respect of aliens:  see s 51(xix) of the Constitution and Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.  Counsel argued that as s 196(1) contemplates that detention under s 189 will continue until the unlawful non-citizen is (a) removed from Australia, (b) deported, or (c) granted a visa, it should be inferred that Parliament did not address the situation of a stateless person who has no country of nationality to which he can be returned.  As Parliament had not legislated for such a case, counsel argued that the Act should not be construed to fill the gap in a way that would uphold a power to detain an unlawful non-citizen beyond the point where it becomes clear that removal is not reasonably practicable in the reasonably foreseeable future.  To so construe the Act would be contrary to the principle that courts should not impute to the legislation an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifest by unmistakable and unambiguous language:  Coco v The Queen (1994) 179 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ, and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 at [30] per Gleeson CJ.

23                  The alternative construction of the provisions of the Act dealing with the detention of unlawful non-citizens is explained by French J in WAIS at [46] – [49].  His Honour concluded at [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.”

That construction was agreed with by Beaumont J in NAES v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 2 (NAES)and by Whitlam J in Daniel. 

24                  Other cases where the construction of the relevant provisions of the Act has been considered have very recently been reviewed by Emmett J in NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 224 (NAGA).  I see no good reason for repeating that review.  The decision in NAGA concerned six applicants who were unlawful non-citizens who had been in detention for long periods as the Minister was unable to arrange their removal.  Whilst confidential enquiries were still on foot that might in the future result in authorities to travel elsewhere, there was no real likelihood or prospect of them being removed from Australia in the reasonably foreseeable future.

25                  In light of the conflicting single Judge decisions, Emmett J did not consider he was bound to follow Al Masri, but should form his own view as to the correctness of the construction placed on relevant provisions of the Act by Merkel J:  [46].  In the result Emmett J declined to follow Al Masri, and adopted a construction which accorded with the reasoning and decisions in WAIS, NAES, Daniel and SHFB.  His Honour concluded at [64]:

“ … 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 and 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.”

26                  In the present case, whilst the evidence has led me to conclude that there is at present no real likelihood or prospect of removal of SHFB in the reasonably foreseeable future, enquiries by the Minister and DIMIA officers continue, and it remains possible that removal will be arranged.  The evidence establishes that his continued detention is for the purpose of his removal from Australia.

27                  I propose to follow the line of decisions which hold that Al Masri was wrongly decided.  I do so for two reasons.

28                  First, I do so because I share the views expressed by the Judges in those decisions. 

29                  The second reason is based on the fact that Selway J has in proceedings between the applicant and the Minister held that Al Masri should not be followed.  In substance, what the applicant has argued before me is not that new facts and circumstances warrant a different conclusion, but that Selway J got the law wrong.  Even if it be accepted that successive applications to the Court may be made for orders in the nature of writs of habeas corpus (as to which see Goldberg J in Cabal v United Mexican States (No 2) [2000] FCA 295 at [30], dealing with the analogous situation of successive applications for bail), in the circumstances of the present case, if I were to follow and apply Al Masri the practical effect would be that a single Judge would have overturned the decision of another single Judge which is presently the subject of an appeal to the Full Court, and done so on a question of law.  An appeal having been lodged against Selway J’s judgment in SHFB, it is for the Full Court, not another single Judge, to determine whether Selway J fell into error.

30                  I consider that ss 189, 196 and 198 of the Act should be construed in the way they were construed in WAIS, NAES, Daniel, SHFB and NAGA.  In my opinion there is no lacuna in the legislative scheme for the detention of unlawful non-citizens of the kind contended for by counsel for the applicant.  Given the clear words of the sections, I do not consider there is room for an implication that Parliament overlooked the plight of a stateless person who has no country of nationality to which he can be readily returned. 

31                  I consider that the applicant is not being unlawfully detained, and that a writ in the nature of habeas corpus should not issue.  In these circumstances it is unnecessary to consider whether the applicant was at liberty to again seek the orders claimed in pars A, J and K of the application notwithstanding the earlier decision of Selway J. 

32                  Mandamus does not issue except to command the fulfilment of a duty of a public nature which the respondent has refused or failed to perform, and which remains unperformed:  R v War Pensions Entitlement Appeal Tribunal, Ex parte Bott (1933) 50 CLR 228 at 242.  The public duty which the applicant has a specific right to have performed is that which arises under s 198 of the Act, namely a duty resting on officers of DIMIA to remove the applicant from Australia “as soon as reasonably practicable”.

33                  Selway J in SHFB at [16] said that the duty contains within it “all the necessary preparatory steps that must be taken in order to achieve the relevant removal”.  Assuming that purportion to be correct, the evidence does not establish a failure to perform the steps in respect of which directions are sought in pars D, E, F and G of the application.  On the contrary, Ms Keenan has carried out the steps described.  The relief sought in these paragraphs must therefore be refused.

34                  I have indicated my acceptance of the evidence of Ms Keenan that there would be no utility in ordering the enquiries described in par H of the application.  The Court in exercise of its discretion should not make an order in the nature of mandamus directing a respondent to perform a duty where the performance would be futile or pointless. 

35                  Further, mandamus does not issue to compel the performance of the impossible:  R v Bristol Corporation;  Ex parte Hendy [1974] 1 WLR 498 at 503.  As Ms Keenan has not been able to identify any third country to whom she could usefully direct further enquiry for a visa or travel authority for the applicant, and as the applicant has not been able to identify one, an order in terms of the relief claimed in par I, on the evidence presently available, would be impossible to perform, and should not be made.

36                  The relief claimed in pars B and C is to the effect that the first or second respondents, or their delegates remove the applicant from Australia within 21 days.  On the evidence, at present the applicant could not be removed from Australia as no third country has issued the necessary visa or travel authority.  Further, there is no likelihood that this will occur in the foreseeable future.  The evidence indicates that there is no present basis for finding that orders in the terms sought would be capable of performance.  For this reason the orders should not be made.

37                  For these reasons I consider the application should be dismissed.  Costs should follow the event. 

Associate:

Dated:              3 April 2003