FEDERAL COURT OF AUSTRALIA

SHMB v Goodwin (No 3) [2003] FCA 1444

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 AND INDIGENOUS AFFAIRS

S 411 of 2003

MANSFIELD J

10 DECEMBER 2003

ADELAIDE

THE COURT ORDERS THAT:

1.         The application by the respondents to discharge the interlocutory injunction made on 3 October 2003 be refused.

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

REASONS FOR JUDGMENT

1                     This is the third occasion upon which the Court has been asked to address interlocutory relief in this matter. 

2                     The principal application is for an order under s 39B of the Judiciary Act 1903 (Cth) declaring that the applicant is being unlawfully detained by the third respondent, and for orders in the nature of mandamus against the respondents directing his release from immigration detention.  The principal application was on 7 May 2003 directed to be listed for an early hearing, but the option of an early hearing was not pursued as the solicitor for the applicant was informed in early June 2003 by an officer of the respondent that the applicant’s application for a Palestinian passport had been sent to Palestine for processing and would be available within three to four weeks, so that he would then be promptly removed from Australia.  That expectation did not come to pass.

3                     On 13 August 2003 I heard an application for interlocutory relief.  I refused that relief:  see SHMB v Goodwin [2003] FCA 1053.  That judgment recites the background to the applicant’s claim, and the relevant legal principles applicable to the application for interlocutory order for release of the applicant from immigration detention.  They were as follows:

‘The respondents accept that the Court has power in appropriate cases to make an interlocutory order for release of a person in immigration detention if it is established that there is a serious question to be tried regarding the lawfulness of that immigration detention.  So much was decided in Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002[2002] FCAFC 390; (2002) 196 ALR 111 by the Full Court (Black CJ, Sundberg and Weinberg JJ).  It is also accepted by the parties that the usual tests applicable to determining whether to grant interim or interlocutory relief apply to the present application.

In my judgment, and as accepted by counsel for both parties, the first step is to consider whether there is a serious question to be tried that the applicant's continued immigration detention is unlawful.  They also accept that that question is to be answered by reference to 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.  That is the formulation of the Full Court (Black CJ, Sundberg and Weinberg JJ) in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 197 ALR 241 at [115] and [136] (Al Masri).

As the Full Court in Al Masri explained, the detention of the applicant under s 189 of the Act, as an unlawful non-citizen, is for the period specified in s 190 of the Act.  Relevantly for present purposes, s 196(1)(a) provides that the 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.

Section 198(1) obliges officers of the Department to remove as soon as reasonably practicable an unlawful non-citizen who asks the third respondent in writing to be so removed.  Such a request was made by the applicant on 19 November 2002.  Al Masri decided that, if the point were reached where there was no real likelihood or prospect of a person held in immigration detention under ss 189 and 196 of the Act being removed from Australia in the reasonably foreseeable future, the authorisation to maintain immigration detention under those sections ceases and the detention becomes unlawful.’

4                     The applicant is a stateless person formerly resident in Gaza in Palestine.  He arrived in Australia on 13 August 2001, and until 3 October 2003 has been in immigration detention.  His application for a protection visa under the Migration Act 1958 (Cth) (the Act) has been unsuccessful.  On 19 November 2002 he requested that he be returned to Palestine.  To facilitate his removal, at the suggestion of officers of the respondent, he has sought a Palestinian passport.  The principal (but not the only) avenue by which the respondent proposes to have him return to Palestine is by him acquiring a Palestinian passport, and then securing permission for him to transit to Palestine across Israel.  There are other options which the respondent has been considering to effect his removal to Palestine, but the discussion of them involves the disclosure of information which is sensitive.  It is not presently suggested that those other options are immediately relevant to the present application.

5                     On 13 August 2003 I formed the view that there was no serious question then to be tried that there was no real likelihood or prospect of the applicant being removed from Australia in the reasonably foreseeable future.  He remained in immigration detention.  The events which, at that time, the respondent gave evidence about through an officer of the department as likely to result in the applicant’s removal to Palestine did not come about.

6                     The principal application was then listed for hearing on 3 October 2003.  It was adjourned to 13 October 2003, but then further adjourned to 24 November 2003.  It has been further adjourned.  In the meantime, on 3 October 2003, the applicant renewed his application for an interlocutory order that he be released from immigration detention.  I ruled in his favour on that application:  SHMB v Goodwin (No.2) [2003] FCA 1171.  At that time, the option of securing a Palestinian passport supported by a duly authorised relative with the necessary power of attorney had become less realistic.  The respondent was exploring, with the applicant, him applying for a Palestinian passport supported by an officer of the Australian Embassy in Tel Aviv who had been granted a power of attorney limited to that purpose.  There was conflicting evidence as to whether such an application would be accepted for processing by the Palestinian authorities, and if accepted for processing would result in the issue of a Palestinian passport to him.  I noted at the time that 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, could on the evidence be pursued only through a local office of the Ministry of the Interior.  The evidence was that the principal issuing office for passports at Hebron would not accept or grant a Palestinian passport for which the application was made supported only by a duly authorised officer of the Australian Embassy, with such a power of attorney.  It required a power of attorney granted to and an application supported by a close relative of the applicant.

7                     The principal application came on for hearing on 24 November 2003, but has again been adjourned.  The respondent has, however, applied for the interlocutory order made on 3 October 2003 and varied on 13 October 2003 that the applicant be released from immigration detention be discharged.  It is contended, on the material now before the Court, that there is no longer a serious question to be tried that the applicant’s continued immigration detention is unlawful.  That is because, it is contended, on the material now before the Court, there is no serious question to be tried that there is a real likelihood or prospect of the applicant being removed from Australia in the reasonably foreseeable future. 

8                     The additional material is, in essence, contained in the affidavit of Abdullah Azar the office manager of the Department of Immigration and Multicultural and Indigenous Affairs in Tel Aviv in Israel.  He has occupied that position for a considerable period.  He has been directly involved in the attempts to obtain a Palestinian passport for the applicant since early 2003. 

9                     Much of what Mr Azar conveys in his affidavit is sensitive, and would prejudice the relationship between Australia and other countries if it is published, it is necessary to be somewhat circumspect in explaining the nature of that material.  The brevity of these reasons is to give effect to the respondent’s sensitivity about publication of that material.  I will reserve to myself the right to publish, at least on a confidential basis, more extensive reasons for my decision if it becomes necessary.

10                  The end result of my consideration of that material is that, at present, I am still of the view 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.  Accordingly I decline to discharge the interlocutory order which I previously made.  My decision does not reflect the acceptance or non-acceptance of any of the evidence of Mr Azar.  That is a matter which would need to be addressed on a final hearing.  It takes his evidence at its face value, together with other material evidence.  I do not consider Mr Azar’s affidavit advances the position beyond that as I assessed it on 3 October 2003.  It has not been suggested that his evidence demonstrates that there was not a serious question to be tried at the time of the earlier order.  The argument is that his evidence now demonstrates there is no longer a serious question to be tried.  I do not think it has that effect, although if his expectation is correct the applicant will have been issued with a Palestinian passport by early December 2003.

11                  In my judgment, the material shows that there is still a serious question to be tried that, notwithstanding that the application for a Palestinian passport may be lodged, supported by a duly authorised officer of the Australian Embassy who has a power of attorney limited to that purpose, through the Khan Younis Office of the Ministry of the Interior, the acceptance of such an application may not successfully result in the grant of a passport.  There is material which indicates that any such application may be or would be sent to a central processing office in Hebron for determination, and that the previously existing legal and policy requirements, including that the application for a passport be made or supported by a close relative with an appropriate power of attorney, may be or would be applied.

12                  It is true that there is information which is inconsistent with that factual possibility, but the source of that other information is not the same as the source to which I have previously referred.  The fact of conflicting information does not lead me to the view that there is no serious question to be tried on the issue.  Once that step is taken, in my judgment the application by the respondent should be refused.

13                  The second step in successfully effecting the applicant’s removal to Palestine involves him, duly armed with a Palestinian passport, being permitted to transit across Israel to access Palestine.  That involves a separate approval process.  Although the process was the subject of some contention, the evidence of the applicant does not seriously join issue with that of the respondent.  The respondent’s evidence is that, although such transit cannot be guaranteed, it has been granted in circumstances similar to those of the applicant on other occasions.  It involves a decision by the Israeli authorities on a case by case basis.  Generally speaking, nothing has been identified which would indicate that the Israeli authorities would not give effect to the applicant’s Palestinian passport if it is issued, and would not facilitate his transmission across Israel so that he may gain access to Gaza.  Accordingly, I do not think that the transit issue is itself a reason to be satisfied that there is a serious question that the applicant would not be able to be removed from Australia through Israel to Palestine, once his Palestinian passport is issued, within a reasonable period.

14                  On 24 November 2003, the application to discharge the interlocutory order of 3 October 2003 was adjourned to 10 December 2003 for judgment.  Leave was given to the parties to file and serve such further evidence as they may wish in relation to the outcome of the present processes for the issuing of a Palestinian passport to the applicant.  The application for a Palestinian passport was lodged on 4 November 2003, and a necessary supporting piece of information was provided on 13 November 2003.  The evidence was that the processing time thereafter would be some two to three weeks.  No further evidence has been adduced by the parties.  I am confident I would have been informed if, as anticipated, the application for a Palestinian passport had been successful.

15                  For the reasons given, I am still of the view 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.  The further application by the respondents did not seek to revisit the issue as to the balance of convenience.  Accordingly, I decline to discharge the interlocutory injunction made on 3 October 2003.

Associate:

Dated:              9 December 2003