FEDERAL COURT OF AUSTRALIA

SHMB v Goodwin (No 2) [2003] FCA 1171

SHMB v PHILLIPPA GOODWIN, FIRST ASSISTANT SECRETARY, UNAUTHORISED ARRIVALS AND DETENTION DIVISION, DEPARTMENT FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS & JULIE HELEN KEENAN, ACTING DIRECTOR OF THE UNAUTHORISED ARRIVALS SECTION IN THE UNAUTHORISED ARRIVALS AND DETENTION SERVICES BRANCH OF THE DEPARTMENT FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS & MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS

S 411 of 2003

MANSFIELD J

3 OCTOBER 2003

ADELAIDE

THE COURT ORDERS ON AN INTERLOCUTORY BASIS THAT:

1.                  Pursuant to Section 39B of the Judiciary Act 1903 (Cth) the Minister for Immigration & Multicultural & Indigenous Affairs (MIMIA) cause the applicant to be released from detention forthwith.

2.                  Within 24 hours of the applicant’s release from detention the applicant give notice in writing to his solicitors Hamdan Lawyers, 32 Gosfield Crescent, Hampstead Gardens, South Australia 5086 and to Mr Rodger Prince at the Australian Government Solicitor, Level 20, 25 Grenfell Street, Adelaide, South Australia of his address and contact details and thereafter notify forthwith his solicitors and the Australian Government Solicitor at the above addresses of any change of address and contact details.

3.                  In the event that the applicant receives notice in writing from the Australian Government Solicitor or an officer of the Department of Immigration & Multicultural & Indigenous Affairs (DIMIA) as to the arrangements made for his removal from Australia in accordance with s 198 of the Migration Act 1958 (Cth) he shall take all reasonable steps in his power to comply with those arrangements in order to facilitate his removal, and in the event of specific arrangements being made for his removal from Australia at a specified time that he submit to the custody of the respondent for that purpose.

4.                  In the event that the applicant receives any request in writing from the Australian Government Solicitor or an officer of the DIMIA to complete any documents to facilitate his removal that he promptly complete and submit to any department of the Australian Government any application or applications for travel documents as the respondent reasonably considers may facilitate his removal from Australia.

5.                  The applicant report each week day to DIMIA at 55 Currie Street, Adelaide, South Australia between the hours of 9.00 am and 5.00 pm and on each of each weekend to the South Australian Police at a Police Station to be agreed between the parties by their solicitors.  The parties may agree in writing, through their solicitors, to variations to these reporting arrangements.

6.                  The applicant attend in person the hearing in the Federal Court of Australia at 2.15 pm 13 October 2003 and any hearing in the Federal Court of Australia or in the High Court of Australia of which he is given reasonable notice in writing by the Australian Government Solicitor provided that, if such attendance is required at a city in which the Applicant is not then residing he may so attend by attending the Registry of the Court before which any such application is listed for hearing in the capital city in which he is then residing or nearest to the capital city in which he is then residing, and if he is not then residing in a capital city, provided he is provided by the respondent at the time of notification with reasonable transport and accommodation expenses to travel to such capital city and remain there during any such hearing.

7.                  Costs of this interlocutory application be costs in the cause.

8.                  Liberty to either party to apply to vary or discharge this order, including as to the reporting requirements in order 5 hereof.

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

REASONS FOR JUDGMENT

1                     On 13 August 2003 I gave reasons for refusing an application for interlocutory relief directing that the applicant be released from immigration detention, pending the hearing and determination of his application under s 39B of the Judiciary Act 1903 (Cth) for a declaratory order that he is being unlawfully detained in immigration detention and for orders directing his release from immigration detention:  SHMB v Goodwin [2003] FCA 1053.

2                     The application for final relief was listed for hearing today.  It has been adjourned to 13 October 2003 for reasons to which I do not presently need to refer.  There has been certain evidence given on the hearing of the principal action today.  Following the adjournment of the principal application to 13 October 2003, counsel for the applicant renewed the application for interlocutory relief.  It is agreed that on that application the evidence given on the previous application for interlocutory relief and the evidence given thus far in the principal action should be treated as evidence on the interlocutory application.

3                     I will not repeat what is contained in the reasons for decision of 13 August 2003.  The critical question for the purposes of the interlocutory application as I identified in [8] of the reasons given on 13 August 2003, is whether there is a serious question to be tried that there is no real likelihood or prospect of the applicant being removed from Australia in the reasonably foreseeable future.  My observations about the balance of convenience being firmly in favour of the grant of interlocutory relief, if a serious question to be tried did exist, stand.

4                     I have reached the view now that there is a serious question to be tried that there is no real likelihood or prospect of the applicant being removed from Australia in the reasonably foreseeable future.  I shall not say much about the reasons for reaching that view as I will need to address the evidence on the principal application, and any further evidence which is forthcoming when the principal application is further heard.  I will note simply the changes in the factual material now before me which have led me to that conclusion. 

5                     At the time of the previous application for interlocutory relief, I considered that the prospects of the applicant securing a Palestinian passport had been confronted and potentially resolved.  The resolution involved the application for a Palestinian passport, supported by a duly authorised relative with the necessary power of attorney.  Despite the efforts to secure a duly authorised relative with the necessary power of attorney to support the application for a Palestinian passport, it is now nowhere near so clear that such support will be forthcoming.  I do not need to go into the reasons why that is so. 

6                     The respondents however have adduced evidence of an alternative means by which a Palestinian passport may be secured by the applicant and, if secured, steps by which he can then regain entry to the Gaza Strip.  That involves the application for a Palestinian passport supported by an officer of the Australian Embassy in Tel Aviv, who has been granted a power of attorney limited to that purpose by the applicant. 

7                     The evidence indicates that if such an application were made to the principal centre in which passports issue, namely Hebron, the application would not be received or be successful.  That is apparently because at Hebron the requirement continues to exist that the application for a Palestinian passport be supported by a duly authorised relative with a power of attorney to do so.  As I have said, the prospect of that avenue being adopted has faded somewhat since my previous decision.  The option of securing a Palestinian passport supported by a duly authorised officer of the Australian Embassy, who has a power of attorney limited to that purpose, can on the evidence be pursued only through a local office of the Ministry of the Interior.  Apparently the officer from the Australian Embassy at Tel Aviv charged with the investigations to secure the applicant a passport has had a telephone conversation with a person who has been identified as a commanding officer in a (or the) police station in the applicant's town of Khan Younis, who has said that an application supported by the Australian Embassy official with a power of attorney would be entertained.  The acceptance of the forms in the remote locality may not indicate that the application itself would be successful. 

8                     Ultimately I may need to determine whether that evidence accurately sets out the position.  At present, the question is whether, in the light of that evidence, there is a serious question to be tried that there is no real likelihood or prospect of the applicant being removed from Australia in the reasonably foreseeable future.  To restate the question, it is whether there is a serious question to be tried that there is no real likelihood or prospect of the applicant securing a Palestinian passport as a step in facilitating his removal from Australia in the reasonably foreseeable future.

9                     Despite the evidence about that option, I have reached the view that there is a serious question to be tried that that option may be or will be unsuccessful.  If it is unsuccessful, then the applicant will be in a position where his prospects of securing a Palestinian passport to facilitate his removal from Australia will not have the immediacy which previously I found to exist.  Despite that evidence, I think there is a serious question to be tried (in substance) that his prospects of getting a Palestinian passport to facilitate his removal from Australia are not significant.  The reason is simply because, given the sensitivity in the circumstances in which Palestinian passports are issued (I interpose, a sensitivity which Mr Durston clearly acknowledged), in my view there must be significant doubt whether a local office of the Ministry of Interior would adopt the procedure and exercise the power of issuing a Palestinian passport in circumstances when, and on material on which, the principal office at Hebron would not do so.  The sensitivity to which I have referred leads me to the view that there is at least a significant prospect that there is a consistent national policy within those responsible for issuing Palestinian passports about those requirements and about the circumstances in which a Palestinian passport might issue.

10                  That is not to say that I do not accept Mr Durston's evidence on that topic.  Indeed further evidence might indicate that the option to which I have referred is indeed a real one.  It is simply to say that, on the material presently before me, I think there is a serious question to be tried on the issue, and therefore also a serious question to be tried that there is no real likelihood or prospect of the applicant being removed from Australia in the reasonably foreseeable future. 

11                  I accordingly propose to make an order directing the release of the applicant from Immigration detention.  I will make that order upon conditions which are contained in the draft order which was handed to me by counsel for the respondent. 

Associate:

Dated:              23 October 2003