FEDERAL COURT OF AUSTRALIA

Al-Khazrajy v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1557

ALI ALSAJAD AL-KHAZRAJY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 841 of 2003

SELWAY J

22 DECEMBER 2003

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application for an interlocutory order for release from detention is dismissed.

2.                  The applicant to pay the respondent’s costs of and relating to that interlocutory application.

3.                  The application for final orders be listed for hearing on 12 February 2004.

4.                  Parties be at liberty to file such further affidavits as they shall be advised.

5.                  Save for order 2 hereof, costs in the cause.

6.                  Liberty to apply.

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

REASONS FOR JUDGMENT

1                     The applicant has applied to the Court for a declaration that he is unlawfully detained and for an order for habeas corpus directing that the respondent (‘the Minister’) cause the applicant to be released from detention forthwith.  The application was listed for urgent hearing.  It was heard at the same time as two similar applications - Haney v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1555 (‘Haney’)and      Al-Aadily v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1556. The application for principal relief was adjourned for further hearing.  Counsel for the applicant made an oral application for an interlocutory order that the applicant be released from detention pending the final resolution of his application.  These reasons deal with that interlocutory application.  For the reasons given below that application is dismissed with costs. 

2                     The applicant arrived in Australia on 16 December 1999.  He is an Iraqi citizen.  He was and is an ‘unlawful non-citizen’ for the purposes of the Migration Act 1958 (Cth) (‘the Act’).  He was taken into detention.  The applicant applied for a protection visa.  That application was finally refused by the Refugee Review Tribunal on 24 October 2000.  The applicant sought judicial review of that decision.  This Court dismissed that application on 3 August 2001.  An appeal to the Full Court of this Court was dismissed on 18 June 2002.  An application for leave to appeal to the High Court was commenced on 16 July 2002.  That application was subsequently discontinued on 20 September 2003.  The applicant has been liable for removal from Australia since that date: s 198 of the Act.

3                     On 11 October 2002, the applicant met with an officer from the Department for Immigration and Multicultural and Indigenous Affairs (‘DIMIA’) regarding the process of removal from Australia.  The applicant asked to be sent to Syria or any other country to which Australia could send him.  The applicant completed an application for an Australian Certificate of Identity (‘COI’).  The COI was issued on 4 November 2002 and provided to the applicant.  The applicant requested that the COI be sent to a nominated friend who he said would apply for visas to third countries on his behalf.

4                     On 17 March 2003, a DIMIA officer interviewed the applicant.  The applicant advised that he had not applied for a visa to Syria as previously indicated.  Other visa options were discussed at that time.

5                     The applicant subsequently met with another DIMIA officer on 16 June 2003 to further discuss repatriation options.  The applicant advised that he had unsuccessfully applied for third country visas to Syria, Turkey, Lebanon, Thailand, Dubai and other Arab Emirates.  The DIMIA officer asked the applicant whether he would consider returning to Iraq voluntarily.  The applicant hesitantly stated that he would consider this option.

6                     On 3 July 2003, a DIMIA officer again interviewed the applicant.  The applicant was advised that he was eligible for monetary assistance in the event that he was willing to return to Iraq.

7                     On 25 September 2003, the applicant requested to be returned to Iraq.  The applicant completed both a voluntary return declaration form and an application for the International Organisation for Migration’s (‘IOM’) Assisted Voluntary Return package to Iraq.

8                     At the applicant’s request another meeting was arranged between the applicant and a DIMIA officer to discuss the progress of his request to be removed from Australia.  The applicant was advised that the process usually takes about 4-5 weeks.  The applicant expressed an urgency to depart and asked that the powers in Canberra assist in that regard.  He was advised by the DIMIA officer that travel arrangements had been made and once everything had been confirmed he would be notified of his departure.

9                     On 2 December 2003, the applicant and two other Iraqi detainees were informed by a DIMIA officer that arrangements were underway for their return to Iraq, but that the IOM were awaiting transit approval from the Jordanian authorities.  The DIMIA officer explained that once transit approval was received their return arrangements would progress.

10                  On 10 December 2003, DIMIA made inquires of the IOM regarding progress towards removal.  DIMIA was advised that the IOM office in Canberra lodged a transit approval document with the IOM in Amman on 22 October 2003.  The next day the IOM office in Canberra made a tentative booking for the applicant to depart from Australia on 18 November 2003.  This booking was cancelled on 17 November 2003, on the basis that the transit approval had not come through.  A further tentative booking was made for departure from Australia on 6 December 2003.  On 4 December 2003, this booking was also cancelled, as the transit approval was still outstanding.  Another tentative date was then booked for early January 2004.

11                  The facts in this case are relevantly similar to those in Haney.  In particular, the applicant sought the assistance of the IOM in September 2003 for his removal to Iraq via Jordan and that request has not yet been determined.  For the reasons given in Haney, in my view the balance of convenience does not favour making an interlocutory order for the release of the applicant from detention.  The application is rejected with costs. 

Associate:

Dated:              22 December 2003