FEDERAL COURT OF AUSTRALIA

Rahmatullah v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1573

MIGRATION -application for release of applicant from detention - whether detention unlawful - whether a real likelihood or prospect of removal of applicant from Australia in the reasonably foreseeable future - whether lack of co-operation by applicant in facilitating removal

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

Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241

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

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

SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1116

NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292

M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290

RAHMATULLAH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 837 of 2003

SELWAY J

24 DECEMBER 2003

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicant is to pay the respondent’s 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                     The applicant has applied to this Court seeking a declaration that he is unlawfully detained and an order in the nature of habeas corpus directing that he be released from detention.  For the reasons given below that application is dismissed with costs.

2                     The applicant arrived in Australia on 15 January 2001.  He was and is an ‘unlawful non-citizen’ for the purposes of the Migration Act 1958 (Cth) and he was taken into detention.  In 26 February 2001, he applied for a protection visa.  That application was refused, ultimately by the Refugee Review Tribunal (‘the Tribunal’).  The reason for that refusal was because the Tribunal did not believe his claim that he was an Afghani citizen and consequently did not find that he had a well-founded fear of persecution if he returned to Afghanistan (as he claimed).  The applicant sought a review of the Tribunal’s decision in this Court.  The application for review was dismissed by Mansfield J on 8 February 2002 in Ullah v Minister for Immigration and Multicultural Affairs [2002] FCA 60.  The applicant has been liable for removal from Australia since that time.

3                     Notwithstanding that the applicant was not believed, the applicant still maintains that he is an Afghani citizen. 

4                     The respondent filed an affidavit of Ms Keenan, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’).  That affidavit reveals that on 17 June 2002, the applicant accepted an offer from DIMIA for a voluntary reintegration package to return to Afghanistan.  He later withdrew that acceptance, but nevertheless did apply for an Afghani passport.  His application was sent by DIMIA to the Afghani embassy.  He was interviewed by the Afghani embassy on 19 June 2002.  On 25 March 2003, the applicant completed another application for an Afghani passport.  Apparently there was no need for him to be re-interviewed for the passport.  Despite a number of inquiries between DIMIA and the embassy the position remains that the Afghani embassy has still not issued a passport to the applicant.  It would appear that the Afghani Government will not issue such a passport until it is satisfied as to the applicant’s identity.  DIMIA are currently making attempts to provide further information which would serve to verify the applicant’s claimed identity.

5                     In addition to the issue of a passport, there is apparently a procedure by which the Afghani embassy will issue a one-way travel document.  In relation to that document the embassy does not need to be satisfied that the relevant person is an Afghani citizen.  DIMIA arranged for the applicant to be interviewed on 20 November 2003 by embassy staff in relation to the issue of such a document.  Ms Keenan says in her affidavit that the application is still being processed by the Afghani embassy and that DIMIA have not been advised that the application is refused.

6                     Ms Keenan’s affidavit also reveals that DIMIA has some information to suggest that the applicant is, in fact, a Pakistani citizen.  On 20 March 2003, the Department suggested that the applicant complete an application for a Pakistani passport.  The applicant commenced to do so, but was stopped when he inserted the word ‘Afghanistan’ in the ‘born in’ and ‘nationality’ fields of the form.

7                     None of these facts are disputed by the applicant.

8                     Ms Keenan says that she is of the opinion that there is a real likelihood or prospect of removal within the reasonably foreseeable future.  She says that there are ‘very good prospects that his removal from Australia could be achieved in the very near furture, especially with his continued co-operation.  For example, by proving the “birth certificate” or ID card he claims to have access to in Afghanistan’.  Mr Manetta, who appeared for the applicant, argued that there was no such likelihood and that the applicant’s detention was unlawful.

9                     The application for a declaration and for habeas corpus is based upon the argument that the powers of the Minister to detain the applicant are limited.  The relevant powers are contained in ss 189, 196 and 198 of the Act which 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.

(2)   …

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                  In determining the extent and breadth of those powers of detention I am bound by the decision of the Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241 (‘Al Masri’).  That case involved a Palestinian citizen who was in detention pending removal to Palestine.  It was accepted that he was entitled to reside in Palestine if he could get there.  However, access to Palestine was only via Israel.  The Department had been attempting for a period of some six months to arrange such access, but without any success.  Nor was there any obvious basis for assuming that that situation was likely to change.  Merkel J, at first instance, held that the continued detention in these circumstances was unlawful and he ordered that the detainee be released (see (2002) 192 ALR 609).  However, his Honour also held that the detainee was liable to be taken into detention again when that detention could be justified (see [2002] FCA 1099).  The Full Court affirmed the orders made by Merkel J.  The critical aspects of its decision are to be found in Al Masri at 272-273, at [133]-[137]:

‘The first of the two limitations found by the trial judge was that s 196 was limited in operation to such time as the minister was taking all reasonable steps to remove a detained person from Australia as soon as reasonably practicable. This limitation emerged from a reading of the power to detain in s 196(1) as subject to the duty imposed upon the minister by s 198(1) to remove as soon as reasonably practicable. Although the two provisions are part of the same scheme, we would not read them together in this way. If the minister were not fulfilling his duty under s 198(1) to remove as soon as reasonably practicable the detention would, in our view, still be lawful and the appropriate remedy would be an order in the nature of mandamus to compel the minister to take the steps required for the performance of his duty.

The minister’s purpose in detaining, however, must be the bona fide purpose of removal. Otherwise the detention would not be lawful. If the minister were to hold a person in detention without such a purpose, then the detention would be unlawful and the person entitled to relief in the nature of habeas corpus. This conclusion is consistent with the decision of the High Court in Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637, where the court held that s 39(6) of the Act (the legislative precursor to s 196(1)) authorised the detention of a deportee during such time as was required for the implementation of the deportation order, but not for any ulterior purpose such as keeping him available to be a witness in a pending criminal prosecution. The court held that a declaration that the detention was unlawful ought to have been granted. It was not necessary to consider whether an order for habeas corpusshould have been made since the detainees had been released prior to their application to the Federal Court. It would seem, however, from the orders made by the court that habeas corpus would have been granted if required.

The second limitation found by the trial judge, a limitation upon the power to detain under s 196(1)(a) to circumstances where there is a real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future, is of course temporal in nature. His Honour formulated the limitation in the light of the duty imposed by the parliament on the minister in s 198(1) to effect removal “as soon as reasonably practicable”. Although we consider that this provision does not, of itself, limit the power in any purposive way, it does inform the content of the limitation the principles we have discussed would point to. Some such limitation is, in our view, required by these principles and the second of the limitations found by the trial judge has support from the language of an integral part of the scheme, and it maintains, clearly, the connection between the power to detain and the purpose of removal. We see no reason to disagree with it.

We should add that we do not intend our observations to give any support to a contention that a person who has made a request in writing under s 198(1), might by their own act in frustrating the process of removal, make their continued detention unlawful. For the purposes of the implied limitation, if such a person were, for example, to refuse to sign a consent required by a country otherwise prepared to take him, that person would not (ordinarily at least) be held in circumstances where there was no reasonable likelihood of his removal.’

11                  I note that the reasoning and conclusion of the Full Court in Al Masri has been questioned in an appeal from the judgment of Mansfield J in Al Khafaji v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1369.  The decision of the High Court on that appeal is currently reserved.  In many situations it would be appropriate to adjourn proceedings where the applicable law depended upon a reserved decision of the High Court in a matter under appeal to it.  That is not appropriate in a case involving detention.  There is no choice but to proceed on the basis that Al Masri is good law at least for what that case actually decides.

12                  Both parties submitted to me that the Al Masri test is not a test based upon the length of detention as such.  This is clearly true.  Obviously, the circumstances of a particular detainee may be such that it is clear from the time he or she is first taken into detention that there is no real likelihood of removal in the reasonably foreseeable future so that the person should immediately be released.  Similarly, the circumstances may show that in relation to a person who has been in detention for a very protracted period there is nevertheless a real likelihood of removal in the near future.  Nevertheless, the length of time of detention will usually be relevant to the test.  Where the question depends upon whether the Department’s optimism that there is a real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future is justifiable or not, evidence of the period of detention and the efforts made during that period to secure the applicant’s removal are likely to be very relevant.

13                  It is clear that the detention of a detainee is not unlawful where the reason for any delay in that person’s removal from Australia is the failure of that person to co-operate in facilitating their removal.  As it was put by French J in WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 at [61]: ‘A detainee cannot, in effect, create a circumstance which negatives any reasonable likelihood that he can be removed in the foreseeable future by withholding his consent or co-operation to a particular avenue for removal and specifically to removal to the country from which he came’.  Similar comments were made by the Full Court in Al Masri.  See also SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1116.

14                  The question before me is whether there is currently a real likelihood or prospect of the removal of the applicant from Australia in the reasonably foreseeable future and, if not, whether the reason for that is some lack of co-operation by the applicant. 

15                  If the applicant is an Afghani citizen it may be that he could provide further information to establish his status.  However, I do not think that there can be any reason to be optimistic that he could establish that he is an Afghani citizen and obtain an Afghani passport.  Given the findings of the Refugee Review Tribunal and his lack of success to date in obtaining such a passport then it would not seem to me that there is currently a real likelihood or prospect that he will obtain such a passport in the reasonably foreseeable future. 

16                  On the other hand, even if he is unable to establish that he is entitled to an Afghani passport this does not mean that he may not be able to obtain a one-way travel document from Afghanistan.  That document was only applied for in November 2003.  Ms Keenan says in her affidavit that that request has not yet been rejected.  Nor has sufficient time elapsed to draw the conclusion that there is not a real likelihood that he will obtain those travel documents in the reasonably foreseeable future. 

17                  If he is not an Afghani citizen, but is a citizen of some other place (such as Pakistan) then plainly enough he has not co-operated in achieving his return.  He will not have provided the relevant degree of co-operation unless and until he identifies where he is from and actively assists in facilitating his return to that place.

18                  Mr Manetta argued that the Minister could not rely upon the possibility that the applicant may obtain an Afghani passport or Afghani travel document given the finding by the Tribunal that the applicant was not an Afghani citizen.  He argued that the Department had done nothing to remove the applicant to some country other than Afghanistan and that consequently he should be released from detention.  The failure of the applicant to co-operate in identifying the country of his citizenship is a sufficient answer to this argument.  However, the respondent does not currently argue that the applicant is not co-operating.  Presumably the respondent is content to remove the applicant to wherever the applicant wishes (including Afghanistan) so long as that can be facilitated.  The respondent is not required separately to determine if the place to which the applicant wishes to be removed is, in fact, the country of his citizenship:  see NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 and M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290.  However, the fact that the respondent is not currently arguing that the applicant is not co-operating, does not prevent the respondent, if it wishes to do so at some future time, from relying upon the findings by the Tribunal to argue that the applicant is not a citizen of Afghanistan and that consequently his failure to reveal his country of citizenship means that he has been relevantly unco-operative.

19                  For the present it is sufficient to say that the application in November 2003 to the Afghani embassy for one-way travel documents which application remains under consideration means that currently there is a real prospect of the removal of the applicant from Australia in the reasonably foreseeable future.  Whether that prospect is realised or not, and what should happen if it is not, will need to await further developments.

20                  The application is dismissed with costs.

Associate:

Dated:              24 December 2003