FEDERAL COURT OF AUSTRALIA

Alsalih v Manager Baxter Immigration Detention Facility [2004] FCA 352

MIGRATION – Migration Act – Detention – Who has custody of detainees – Power to detain – Whether reasonable prospect of removal from Australia within a reasonable period – whether objective or subjective test – Evidence to be called – Habeas corpus – Whether Federal Court has jurisdiction to grant Habeas Corpus

Migration Act 1958 (Cth)

Judiciary Act, 1903 (Cth)

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

Kidman v Commonwealth (1925) 37 CLR 233

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

SAAK v Minister for Immigration & Multicultural & Indigenous Affairs (No 4) [2004] FCA 104

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

Al Masri v Minister for Immigration and Multicultural Affairs (2002) 192 ALR 609

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

R v Home Department State Secretary; Ex parte Khawaja [1984] AC 74

Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97

Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36

Naumovska v Minister for Immigration and Multicultural and Indigenous (1982) 41 ALR 635

Re Stanbridge's Application (1996) 70 ALJR 640, 642-643

Phong v Attorney-General (Cth) (2001) 185 ALR 753, 761 [25]

Lloyd v Wallach (1915) 20 CLR 299

R v Carter Ex parte Kisch (1934) 52 CLR 221

Re Superintendent of Training Centre at Goulbourn and Anor Ex parte Pelle (1983) 48 ALR 225

Ex parte Walsh and Johnson; In Re Yates (1925) 37 CLR 36

Bateman's Bay v Aboriginal Fund (1998) 194 CLR 247

R v Transport Secretary Ex parte Factortame [1990] 2 AC 85

Rankin v Huskisson (1830) 4 Sim 13

Nireaha Tamiki v Baker  [1901] AC 561

M v Home Office [1994] 1 AC 377

City of Enfield v Development Assessment Commission (2000) 199 CLR 135

Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 633

Durham Holdings v NSW (2001) 205 CLR 399

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598

Park Oh Ho & Ors v Minister of State for Immigration and Ethnic Affairs (1989) 167 CLR 637

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

Richardson v Forestry Commission (1988) 164 CLR 261

South Australia v Tanner (1989) 166 CLR 1

Sportodds Systems v NSW (2003) 202 ALR 98

Te v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 497

Haney v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1555

Agha v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 164

SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 295

EDRISS MOHAMMED ABDUL RAHMAN ALSALIH v MANAGER BAXTER IMMIGRATION DETENTION FACILITY & MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 2 of 2004

SELWAY J

30 MARCH 2004

ADELAIDE

THE COURT ORDERS THAT:

The application for release from detention be dismissed.

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

REASONS FOR JUDGMENT

1                     The applicant claims "an order in the nature of habeas corpus" and damages for false imprisonment.  The damages claim is not currently before me.  It will need to be heard and determined in due course.  I have treated the application for an order in the nature of habeas corpus as one seeking a mandatory injunction for the release of the applicant from detention pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act") at the Baxter Immigration Detention Facility.  The applicant argues that his continued detention is unlawful because there is no real prospect of him being removed from Australia within a reasonable period.  For the reasons given below I find that presently there is such a prospect.  The application is dismissed.

2                     The first respondent is the officer of the Commonwealth who is currently responsible for the applicant's detention at the Baxter Immigration Detention Facility.  The nature of his powers and responsibilities has not been explained to me.  The first respondent has informed the Court that he will by abide the orders of the Court save as to costs and has not sought to be heard. 

3                     The second respondent ("the Minister") is the Minister responsible for the administration of the Act.  The Minister has appeared, has called witnesses and has put submissions.  The applicant has not objected to the Minister doing so.  Indeed, the applicant joined the Minister as a party.  In my view this was not an appropriate course.  The Minister is not an "officer" for the purposes of the Act: see SHFB v Minister for Immigration and Indigenous Affairs [2003] FCA 29 at [15].  There is no suggestion in this case that the Minister personally has the applicant in custody.  The Minister is not legally responsible for the acts of the officers in the Department.  Nor can the Minister stand in the shoes of the Commonwealth.  It is the Attorney General who represents the Commonwealth before the courts: see Kidman v Commonwealth (1925) 37 CLR 233 at 240.  The Minister has no statutory power to appear in these proceedings: contrast s 479 of the Act.  Statute aside, it would seem to me that "the Commonwealth" or the Attorney General of the Commonwealth could be proper parties to these proceedings.  It is not the Minister.  The Minister is accountable to the Parliament for the administration of this Act.  That accountability is quite distinct from a legal issue of who has the legal responsibility to detain the applicant or to release him from detention.

FACTUAL CONTEXT

4                     The background facts are not in dispute and can be shortly summarised.  The applicant arrived in Australia on 7 October, 2000.  He claimed to be a Sudanese citizen on the basis that his mother and father were Sudanese citizens.  He claimed to have been born in Kuwait.  He claimed to have lived in a number of different countries, most recently Syria although he claimed to have lived and worked in that country without lawful authority to do so. 

5                     The applicant did not have a visa to enter Australia.  It is accepted by both parties that he was an unlawful non-citizen and that he was lawfully taken into detention.  On 25 January, 2001 the applicant applied for a protection visa.  In order to obtain such a visa the Minister had to be satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 36(2)(a) of the Act.  In general terms the Minister had to be satisfied that the applicant was a “refugee” as defined in the Convention as being a person who:

‘… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.’

6                     The applicant claimed that he had a well-founded fear of persecution by reason of his imputed political beliefs.  He claimed that he had co-operated with the then Iraq government during the Gulf war and would face persecution if he returned to Kuwait; he claimed that he had avoided military service in the Sudan and that he would face persecution if he returned to the Sudan and he claimed that he was not lawfully in Syria and that he would face persecution if he returned there. 

7                     The applicant’s claims were first considered by a delegate of the Minister who rejected them.  The claims were then reviewed by the Refugee Review Tribunal ("the Tribunal").  On 10 October, 2001 it confirmed the decision of the delegate.  It is sufficient to set out the conclusion of the Tribunal: 

‘I am unable to accept the veracity and credibility of the applicant's evidence. I amsatisfied that the applicant has lived in Kuwait and Syria. I am not satisfied as to the applicant's identity, his nationality, that he lived in Sudan or the circumstances and vicissitudes of his life in Kuwait and Syria. As a consequence, I am not satisfied that the applicant has a well founded fear of persecution in Kuwait, Sudan or Syria or that he would face a well founded fear of persecution if he was to return to Kuwait, Sudan or Syria.’

For present purposes the interesting aspect of this conclusion is that the applicant was not believed by the Tribunal (or, indeed, by the delegate) in his claim to be a Sudanese citizen, although it was obviously in his interest to satisfy the Tribunal of his nationality.  It will be necessary to return to this issue later in these reasons.

8                     The applicant sought to have the decision of the Tribunal set aside pursuant to s 39B of the Judiciary Act, 1903 (Cth).  That application was dismissed by the Federal Magistrates Court on 10 May, 2002 ([2002] FMCA 77).  The applicant did not institute any appeal from that decision.  

9                     On 9 August, 2002 the applicant lodged a request for Ministerial intervention that he be given a visa to remain in Australia on humanitarian grounds: s 417 of the Act.  The applicant was advised in writing on 20 September, 2002 that the request was not acceded to.  Since that date the applicant has had no outstanding applications for an Australian visa and has had no applications for merits review, judicial review or for Ministerial intervention.  Section 198 (6) of the Act provides:

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

(a)       the non-citizen is a detainee; and

(b)       the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c)       one of the following applies:

            (i)    the grant of the visa has been refused and the application has been finally determined;

            (ii)   the visa cannot be granted; and

(d)       the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.’

That section casts an imperative duty upon "an officer": M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 290 [25] (M38/2002).The applicant argues that the Minister was under a duty to remove the applicant "as soon as reasonably practicable" after 10 May, 2002 when the Federal Magistrates court dismissed the judicial review application.  The Minister accepts that such a duty arose after the then Minister rejected the application on 20 September, 2002.  Although nothing much turns on the difference in relation to the issues in this judgment, it would seem that the applicant's submissions are correct: see SAAK v Minister for Immigration & Multicultural & Indigenous Affairs (No 4) [2004] FCA 104.  This does not mean that the duty (in contrast to the power) to remove had to be exercised prior to the exercise of the Ministerial discretion.  The duty applies "as soon as is reasonably practicable".  It is at least implicit in the reasoning of the Full Court of this Court in NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 (`NATB´) at [52]-[59] and in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290 at 311-312, at [80] that the duty in s 198 of the Act is consistent with, and may accommodate, delay pending a review by the Minister under s 417 of the Act.  These are issues that do not presently need to be determined, although they may be relevant if and when the applicant's claim for false imprisonment is determined.

10                  In the period from 20 September, 2002 until the end of May, 2003 the applicant made various attempts to seek visas to a number of countries.  Officers of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) took various steps to facilitate the attempts being made by the applicant.  These included, for example, arranging for the applicant to receive certificates of identity.  Nevertheless, during this period it was basically left to the applicant to seek to make his own arrangements for resettlement elsewhere.

11                  On 26 May, 2003 Ms Dundas, an officer of DIMIA who was at that time responsible for removals from Australia of persons in detention, directed another officer to commence steps to remove the applicant from Australia.  For reasons that remain unclear, at least to me, DIMIA seem to have accepted the applicant's claim that he is a Sudanese citizen.  There being no Sudanese embassy in Australia, the officer contacted a private South African security company, Snyman Migliore International Pty Ltd ("SMI") for assistance in arranging the return of the applicant to the Sudan.  SMI has had significant experience in assisting many countries including Australia, to deport or remove persons back to their countries of citizenship, particularly if those countries are in Africa.  There were various contacts between DIMIA and SMI over a number of months. 

12                  On 12 June, 2003 the applicant wrote to DIMIA requesting that he be removed from Australia.  From at least that date "an officer" was under a duty to remove the applicant "as soon as reasonably possible" pursuant to s 198 (1) of the Act, in addition to the duty to do so under s 198 (6) of the Act.  As already mentioned, although it is unclear who the relevant officer of officers were who were under this duty, it is clear that the Minister was not one of them.

13                  Finally, on 30 October, 2003 Ms Dundas again intervened contacting SMI directly.  This resulted in advice from SMI that the Sudanese government would not accept the return of persons without documents who claimed to be Sudanese citizens without first interviewing them.  SMI advised that the most appropriate place for the applicant to be interviewed by representatives of the Sudanese government was in Dar Es Salaam, Tanzania. 

14                  The applicant was then informed that DIMIA proposed to return him to the Sudan.  He informed the relevant DIMIA officer that he did not particularly want to return to the Sudan, but said he was prepared to do so.  Arrangements were then made between DIMIA and SMI to organise the applicant's travel, firstly to Dar Es Salaam and then (hopefully) to the Sudan.

15                  At that time the applicant was detained at Port Headland Detention Centre in Western Australia.  He was taken to Perth airport and departed from Australia on 12 December, 2003.  (I note that there is some confusion in the materials before me as to this date.  It makes no difference to the ultimate conclusion).  He was under "escort" from two SMI officers.  He travelled by airplane directly to Johannesburg international airport.  He was not permitted to leave the transit area of that airport.  On 13 December, 2003 the applicant departed from Johannesburg and travelled to Dar Es Salaam.  Whilst travelling he was under "escort" from one SMI officer.  On arrival at Dar Es Salaam he was accompanied by a person who was engaged by SMI.  On 14 December, 2003 the applicant was interviewed by a Sudanese official.  It is clear that the result of that interview was that the Sudanese government was not convinced that the applicant was a Sudanese citizen and refused to receive him in Sudan.  The applicant was then apparently held at the airport, but spent at least some period in a police detention centre in Dar Es Salaam.

16                  On 18 December, 2003 the applicant was returned to Johannesburg.  It appears he travelled alone.  At Johannesburg airport he was again detained in the transit area, apparently in the custody of South African security officers.  The applicant objected to being searched and to the removal of his property and he had to be subdued.  SMI arranged for him to be interviewed at the airport by an officer of the Sudanese embassy in South Africa.  Again it is clear that that officer was not convinced that the applicant was a Sudanese citizen.  It will be necessary to consider that interview in more detail later in these reasons.

17                  On 23 December, 2003 the applicant agreed to return to Australia.  The applicant returned to Australia on 25 December, 2003 under “escort” of a SMI officer.  He was detained at Baxter Immigration Detention Facility in South Australia where he still remains.

18                  The applicant issued these proceedings on 5 January, 2004.

19                  On 16 January, 2004 DIMIA requested that its officer situated in Dubai, United Arab Emirates make inquiries of the Kuwaiti embassy in Dubai in order to ascertain what documentary records were held in Kuwait as to the applicant's birth and as to the citizenship of his parents.  It would appear that the Kuwaiti government maintains extensive and detailed written archives.  These may well include copies of the passports of the applicant's family.

20                  On 4 February, 2004 the applicant was interviewed by Ms Dundas.  He informed her of relevant information as to his background, including details of his time in Syria and so on.  Further inquiries are being pursued in Syria as a result of these investigations.  As at 4 March, 2004 those investigations appeared to confirm the applicant's claims that he had been in Syria for several years unlawfully.

21                  On 29 February 2004 Ms Dundas received the following e-mail from the DIMIA officer in Dubai:

‘We have been dealing with the Consul at the Kuwaiti mission here who has stated that any foreign national who has been granted an ID card in Kuwait must also have a foreign passport, a copy of which is held by both the MFA and Ministry of Interior in Kuwait City. He has undertaken to obtain a copy of this Sudanese passport for us.

Unfortunately 2 weeks ago he went on leave and we are having great problems in getting anyone else at the mission to release this to us. Today his secretary undertook to contact him to get his approval to release this to us this week. I have asked if it would assist for me to travel to Kuwait City but he said it would do no good as it needs to be done by him through MFA channels based on my written request to him.

The Sudanese embassy here has also undertaken to obtain verification of his Sudanese nationality from the Sudanese Ministry of Interior.

So we are all waiting.I am sorry but we do follow up every few days, it is just that we are now in  the hands of the Sudanese and Kuwaiti bureaucracy.    

I do understand the urgency...as soon as  I get something I will be in touch.’

22                  Ms Dundas gave evidence that she was hopeful that the inquiries in Kuwait would not only confirm that the applicant is a Sudanese citizen, but also provide relevant documentary evidence as to his citizenship.  In this regard I note that the applicant's claims to be a Sudanese citizen were not accepted by the delegate or by the Tribunal or by two officers of the Sudanese government.  Nevertheless, the applicant still claims that he is a Sudanese citizen and DIMIA not only now accept that claim, but given the more recent information from Kuwait, they are now satisfied that it is correct.  More to the point, they believe that the information now being sought from Kuwait can prove it. 

23                  The conclusions that can be drawn from this evidence are in dispute.  However, Ms Dundas gave evidence that in her view there now were reasonable prospects of removing the applicant from Australia in the near future.  As she said in her evidence:

‘----The additional information received from both principal migration officers compliance in Dubai and Beirut has, in fact, given us great hope that we will be able to obtain a travel document for Mr Alsalih and effect his removal. The only stumbling block at this point in time is the delay in getting the copies from the Kuwaiti officer but, given that we have an excellent working relationship with the authorities in Kuwait, I believe the delay is only because the relevant official is on leave and that as soon as he returns from leave he will make copies of those documents available to us.

HIS HONOUR: Ms Dundas, given the response you've received thus far, with the Kuwaitis confirming that he is Sudanese, does that suggest to you that these other documents- copy of his mother's passport or whatever - must be on the Kuwaiti file?---Yes. They are excellent record-keepers and as I was saying I am assuming they will also be able to check his residency file because he would have had to file supporting documentation to renew his residency.

So your expectation is, not just that this all confirms that he is Sudanese as he claims, but that there will be documents forthcoming?--- Yes.’

JURISDICTION - HABEAS CORPUS

24                  The claim with which I am currently concerned is the claim for an order "in the nature of habeas corpus".  Such a claim was successful in Al Masri v Minister for Immigration and Multicultural Affairs (2002) 192 ALR 609, a decision which was confirmed on appeal in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241 (Al Masri).  The reasoning of the Full Court in Al Masri has been challenged in an appeal to the High Court 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 has been argued before the High Court and a decision is reserved. That is not appropriate in a case involving mandatory 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.  Unfortunately, given the complexity of the factual situation presented by this case, and the submissions that have been made to me, the fact that I am bound by that Full Court decision does not obviate the need for me to analyze and reflect on the reasoning in Al Masri in some detail. 

25                  Al Masri 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 could only be arranged through Israel. DIMIA 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. 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.

26                  In Al Masri the Full Court confirmed the jurisdiction and power of this Court to make orders "in the nature of habeas corpus" (at 240-241 [170]-[172]):

‘It has also been said that an application for relief in the nature of habeas corpus, such as was made here, is fundamentally misconceived and that the appropriate way to proceed was by way of application for mandamus to compel an officer to perform the duty of removing an applicant or removing an applicant as soon as reasonably practicable: see, for example, Beaumont J in NAES v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 2 at [11]; Whitlam J in Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 196 ALR 52 at [37]; Selway J in SHFB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 29 at [18]; Emmett J in NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 224 at [68]). We are unable to agree with this criticism. In Lau v Calwell , considered earlier, some of the applications considered by the High Court were for habeas corpus which had been sought on the basis that the provision justifying detention in custody pending deportation was invalid. The applications were dismissed, but Latham CJ expressly referred to habeas corpus as providing an immediate remedy (at 556):

"The power to hold [a deportee] in custody is only a power to do so pending deportation and until he is placed on board a vessel for deportation and on such a vessel and at ports at which the vessel calls. If it were shown that detention was not being used for these purposes the detention would be unauthorized and a writ of habeas corpus would provide an immediate remedy ." [Emphasis added.]

Dixon J proceeded on the same basis (at 581); see also Williams J at 586. And see generally Park Oh Ho v Minister for Immigration & Ethnic Affairs (1989) 167 CLR 637.

It would seem, too, that Mason CJ had the same view about possible remedies when, in Lim (at 11-12) he observed that what initially began as lawful custody might " cease to be lawful by reason of the failure of the Executive to take steps to remove a designated person from Australia" in conformity with the relevant part of the Act. A failure to remove a designated person from Australia " as soon as practicable" pursuant to s 54P(1) would, in the view of Mason CJ, have deprived the Executive of legal authority to retain that person in custody (see at 12). This is not the language of mandamus; the remedy that this language suggests is, to recall the language of both Latham CJ and Dixon J in Lau v Calwell, habeas corpus to provide an immediate remedy.’

27                  The issue of jurisdiction to make such orders, and what is meant in doing so, requires some consideration in this case, if only because the applicant has argued that the onus of proof in these proceedings rests upon the Minister.  The applicant has relied upon comments to that effect in Al Masri at 282 [176] which supported the approach of Merkel J (at (2002) 192 ALR 609, 619 [41]) that "it is for the applicant to adduce evidence that puts in issue the legality of detention, and then the burden shifts to the respondent to show that detention is lawful, and may be discharged on the balance of probabilities".  For this conclusion Merkel J (at 616 [26]) relied upon the comments of the House of Lords in R v Home Department State Secretary; Ex parte Khawaja [1984] AC 74, (Khawaja) and of the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 (Lam).

28                  In Khawaja the proceedings were for certiorari and for declarations.  Habeas corpus was not sought.  Lord Wilberforce at 105 and Lord Bridge at 123-124 held that the burden of proof rested upon the immigration authorities to justify their detention of a person when that detention was challenged by habeas corpus.  Each treated this principle as applicable to the judicial review proceedings that were before them.  Lord Scarman at 111-112 held that the procedure, including the burden of proof, in judicial review proceedings involving the liberty of the subject, should be treated as equivalent to those applicable in habeas corpus proceedings.

29                  Lam was a case involving habeas corpus. 

30                  The applicant also relied upon the comments in Clark and McCoy, Habeas Corpus: Australia, New Zealand The South Pacific (2000) (Clark & McCoy) at 227-228.  Those comments are specifically made in the context of the habeas corpus procedure, but would appear to be based upon a broader proposition related to the "presumption in favour of liberty".  The cases cited by the authors are primarily habeas corpus cases and the relevant comments are clearly made in that context: see Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 79.  The cases relied upon by the authors which are not habeas corpus cases, such as the comments of Sheppard J in Naumovska v Minister for Immigration and Multicultural and Indigenous (1982) 41 ALR 635 at 644 rely upon cases which are habeas corpus cases.

31                  Plainly enough the procedure, including the onus of proof, in habeas corpus proceedings was and is quite specialised.  Historically there were a number of writs of habeas corpus each specifically designed to bring a prisoner before a court in particular circumstances.  They each developed from a procedural step in the criminal process which was first introduced in the 12^th century.  By the 16^th century the writ of habeas corpus ad subjiciendum had developed to the stage where it was commonly used to test the reason and validity of the imprisonment or detention of a person (see Dallin Oaks "Legal History in the High Court - Habeas Corpus"(1965-1966) 64 Mich L Rev 451, 460-461.  The writ was available on application to the Courts of Kings Bench or Common Pleas by a private individual (see Standish Grady & Colley Scotland Law and Practice on the Crown Side of the Queen's Bench (1844) at 203; 3 William Blackstone Commentary *131).  Although often sought against a public official who was holding a person in prison usually pending trial, the writ could also be used against a private individual to test the legality of any private incarceration (Rex v Viner (1675) 2 Levinz 128; 83 ER 482; Rex v Johnson (1723) 2 Ld Raym 1333; 92 ER 370).

32                  The jurisdiction to grant the writ and the procedure related to it were significantly affected by statute, particularly the Habeas Corpus Act, 1640  (16 Cha 1 c 10); the Habeas Corpus Act, 1679 (31 Cha 2 c 2) and the Habeas Corpus Act 1816 (56 Geo 3 c 100) (“the 1816 Act”).  Although in terms all of these Acts would seem to be directed to acts and events in the United Kingdom, it is generally accepted that all of them were received into South Australia upon settlement in 1836. 

33                  The procedure for release from unlawful detention pursuant to the writ involved initially an application for the issue of the writ (see Short & Mellor, The Practice of the Crown Office (2nd ed, 1908) at 319).  The application was supported by an affidavit usually made by the person detained.  The application came before the Court of Kings Bench or the Court of Common Pleas which could order that the writ be issued to the person alleged to be unlawfully detaining the applicant.  Strictly, the "order" for habeas corpus was not an order at all, but a summons requiring the person to whom it was directed to bring the person in detention before the Court and to make a "return" on the writ.  The return set out in some detail the legal justification for the detention.  The Court then determined whether or not the person detained should be released from custody, whether the writ should be discharged or whether the return should be quashed as containing insufficient detail. 

34                  Historically the court could not go behind the return (see Standish Grady & Colley Scotland Law and Practice on the Crown Side of the Queen's Bench (1844) at 213; Dallin Oak Legal History in the High Court - Habeas Corpus (1969-1966) 64 Mich L Rev 451, 453-456; RJ Sharpe The Law of Habeas Corpus (2nd ed; 1989) (Sharpe) at 23).  Unless the return disclosed on its face that the imprisonment was unlawful, the court could not determine, for example, whether a judicial order for imprisonment was invalid.  Other procedures, such as certiorari, were necessary for that purpose: see Seers v Turner (1704) 2 Ld Raym 1102; 92 ER 230; Re Stanbridge's Application (1996) 70 ALJR 640, 642-643; Phong v Attorney-General (Cth) (2001) 185 ALR 753, 761 [25].  This would still seem to be the law in Australia in relation to a person detained upon a criminal process, although it is suggested in The King v Bevan Ex parte Elias and Gordon (1942) 66 CLR 452 at 475 per Starke J, that if the return even in relation to a criminal process is obviously false then commitment for contempt may be available to force a true return.  I note, however, that in Re Governor Goulburn Correctional Centre Ex parte Eastman (1999) 200 CLR 322 the High Court inquired into the validity of the appointment of the Judge who had issued the relevant warrant.  The case would seem to have been a habeas corpus case, although it is not clear from the report what procedure was adopted to bring these issues before the Court.  In any event, that case involved constitutional questions which might raise different considerations: see Gerhardy v Brown (1985) 159 CLR 70 at 141-142.

35                  Whatever the situation may now be in criminal matters, the 1816 Act did permit the Court to go behind the return in civil matters.  However, the terms of the 1816 Act would seem to limit any evidence before the court, to evidence given by affidavit: see Lloyd v Wallach (1915) 20 CLR 299, 305, 308-309, 313 (Lloyd); R v Board of Control Ex parte Rutty [1956] 2 QB 109, 119, 124.  In more recent times English courts have taken a much broader view of the effect of the 1816 Act (see R v Secretary of State for the Home Department, Ex parte Iqbal [1979] 1 All ER 675, 684) and of the availability of the writ as an alternative to the more usual judicial review procedures: see HRW Wade "Habeas Corpus and Judicial Review"(1997) 113 LQR 55.  In Khawaja, for example, Lord Scarman at 110 not only accepted that the 1816 Act authorised the Court to go behind the return and to hear oral evidence, but that section 3 of that Act "is the beginning of the modern jurisprudence the effect of which is to displace, unless Parliament by plain words otherwise provides, the Wednesbury principle in cases where liberty is infringed by an act of the executive."  Of course that "modern jurisprudence" has not been accepted in Australia: see Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36, whether or not the source of it can be laid at the door of the 1816 Act.

36                  There is some Australian authority that would seem to support the approach taken by the English courts: see Clark & McCoy at 215-216. In particular, it would appear that Justice Evatt would have permitted cross examination upon the affidavits filed in R v Carter Ex parte Kisch (1934) 52 CLR 221, see at 227-228.  His Honour did not refer to Lloyd; nor did he refer to the terms of the 1816 Act. 

37                  These procedural aspects of the writ are reflected in the various Rules of Court of those Courts which have jurisdiction to grant the writ, either because they have the jurisdiction formerly exercised by the Kings Bench and by Common Pleas (such as the Supreme Court of South Australia) or because the jurisdiction has been conferred expressly: see s 33(1)(f) of the Judiciary Act, 1903 (Cth) which confers such jurisdiction on the High Court.  Of course, the High Court can only grant habeas corpus as an incident to the exercise of original or appellate jurisdiction conferred on that Court under Chapter III of the Constitution: see Re Superintendent of Training Centre at Goulbourn and Anor Ex parte Pelle (1983) 48 ALR 225 at 226.  Order 55 Rule 38ff of the High Court Rules reflects the procedural background to the writ as discussed above. 

38                  History aside, there are two reasons why the writ might still be used in practice.  One is its expedition: see Ex parte Walsh and Johnson; In Re Yates (1925) 37 CLR 36 at 76-77.  Indeed, the procedural difficulties referred to above are the direct result of the summary and expeditious features of the writ.  But they have the effect that if there is likely to be a factual dispute that cannot be resolved at least on affidavit evidence alone, then different procedures should be adopted.  The other reason why it might still be used is that it can be applied for by a stranger (see R v Waters [1912] VLR 372, 375).  However, with the greater flexibility in the rules relating to locus standi in more recent times this is not as important an issue as it once was even in relation to equitable relief: see Bateman's Bay v Aboriginal Fund (1998) 194 CLR 247, 267-268.   The reality is that the habeas corpus procedure is rarely used in practice even in those courts which have jurisdiction to grant it.

39                  The most obvious alternative procedure that might be adopted in cases where there are complex factual issues requiring determination is to apply for an injunction against the person having the custody of the person in detention.  Historically there may have been some reason to be cautious about the availability of an injunction in these circumstances.  There was at least some authority to suggest that injunctions were not available against the Crown or against a public officer acting in an official capacity: see R v Transport Secretary Ex parte Factortame [1990] 2 AC 85, 145.  For my part, I am not certain that that was ever a correct statement of the liability of public officers to equitable relief.  Injunctions would seem to have been available against public officers even when acting "officially": see Rankin v Huskisson (1830) 4 Sim 13; 58 ER 6; Nireaha Tamiki v Baker  [1901] AC 561, 573-574.  In particular, injunctive remedies were granted by the Court of Exchequer against public officers.  In any event, such an immunity from injunctive relief (if it ever existed) did not survive the enactment of s 64 of the Judiciary Act, 1903 (Cth) in relation to suits in federal jurisdiction.  It may be noted that whatever limitations there may have been upon the jurisdiction to grant injunctions against public officers in England no longer exist even there: see M v Home Office [1994] 1 AC 377.

40                  Injunctive proceedings to test the lawfulness of detention and, if found to be unlawful, to order release, are clearly available in cases where there are procedural or jurisdictional difficulties in using habeas corpus: see City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 145-146, 157-158; David Wright, "The Role of Equitable Remedies in the Merging of Private and Public Law" (2001) 12 PLR 40.  In relation both to injunctive proceedings (see Application Des Gaz SA v Falks Veritas Ltd [1974] 1 Ch 381 at 399) and to habeas corpus proceedings (see Clark & McCoy at 225; Sharpe at 179) the entitlement to final orders is determined as at the date the question falls to be decided, rather than the date the application is issued.  Indeed, Dobbs, Law of Remedies (2nd ed, 1993) treats habeas corpus (and prohibition and mandamus) as injunctive remedies that could be issued by Kings Bench.  Save for the procedural or jurisdictional limitations in relation to habeas corpus and the more limited standing rules in relation to injunctions, there is no reason why the same result would not be reached using injunctive procedures, rather than habeas corpus. Admittedly an application for injunctive relief is not necessarily as expeditious as is the procedure in relation to habeas corpus, but this does not mean that an expeditious hearing can not be facilitated.  Given that the orders that can be made in a habeas corpus proceedings are limited to the release or the continued detention of the person, similar results can be achieved using injunctive relief.  Indeed, one of the advantages of an injunction is that it is a more flexible remedy which can also be used where it is the conditions of detention that are unlawful and not only the detention itself – this could not be done in habeas corpus proceedings:  see Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 633.

41                  In my view this Court does not have the jurisdiction to grant a writ of habeas corpus.  I respectfully agree with and adopt what Beaumont J said on this topic in Ruddock v Vadarlis (2001) 183 ALR 1, 28-29 [101]-[107] contrast Victorian Council for Civil Liberties v Vadarlis (2001) 182 ALR 617 per North J.  This Court does not have the jurisdiction historically exercised by the Courts of the Kings Bench or of Common Pleas.  Nor has it had the jurisdiction conferred by statute.  However, this Court does have jurisdiction in any matter where an injunction is sought against an officer of the Commonwealth: Judiciary Act, 1903 (Cth) (Judiciary Act) s 39B(1).  It also has jurisdiction in any matter "arising under a law made by the Parliament": Judiciary Acts 39B(1A)(c).  This would necessarily include the lawfulness or otherwise of the detention of a person pursuant to the Act.  Plainly enough, this Court does have jurisdiction to inquire into the lawfulness of that detention.  In this case both parties agree that if the applicant’s detention is lawful, the source of that legal authority is the Act.  In relation to a matter in which the Court has jurisdiction, it has the power to grant "all remedies to which the parties may be entitled": Federal Court of Australia Act, 1976 (Cth) (FCA) s 22.  Plainly this Court has jurisdiction in relation to a claim which alleges that an officer of the Commonwealth who purports to detain an applicant pursuant to the Act, has no lawful authority to do so.  If the Court is satisfied that the detention is unlawful the Court can order the officer of the Commonwealth to release that person. 

42                  Having regard to the above I do not think that the holding by the Full Court in Al Masri that this Court can make orders "in the nature of habeas corpus" should be understood as suggesting that this Court has jurisdiction to issue a writ of habeas corpus.  Rather, it seems to me that the correct understanding of the Full Court's reasons and analysis is that this Court has jurisdiction to determine the legal validity of detention under the Act and that it has the power to order the release of the person detained if it finds that the detention is not lawful.  Nor does it seem to me that the Full Court's reasons should be understood as requiring this Court to comply with the historical procedural limitations applicable to the writ of habeas corpus. 

43                  In my view, if relief were warranted, it would be injunctive relief, but the practical effect would be the same as if the detention were found to be unlawful upon a writ of habeas corpus.  Of course, given the breadth and flexibility of injunctive relief and of the powers of the Court under FCA s 22 the possibility exists that any final injunction, including one requiring the release of a person in detention, could be subject to conditions.  Save, perhaps, for orders specifying the place of release of persons who are not physically before the court, I doubt that such conditions can be imposed upon a final order for release in habeas corpus proceedings, at least in the absence of legislation authorising such conditions (contrast, for example, 28 USC §2243 authorising US federal courts to give such relief "as law and justice require": In re Bonner 151 US 242, 261 (1894); Richmond v Lewis 506 US 40, 52 (1992)).  In Al Masri conditional orders were made requiring the person unlawfully detained to report to the government and to comply with arrangements for his removal from Australia (see 192 ALR 609 at 624).  It is not clear to me whether the power to make such orders was raised on the appeal before the Full Court.  Nevertheless, the Full Court confirmed in Al Masri at 270[128] that conditional orders could be made.  The orders actually made in Al Masri confirm that the Court was not purporting to exercise jurisdiction to grant habeas corpus, but was doing what the Full Court said it was doing - making orders "in the nature of habeas corpus".  The relevant jurisdiction was that conferred under s 39B the Judiciary Actand the orders made were mandatory injunctions. 

44                  Against this background, the question that needs to be determined is not some procedural or evidentiary issue derived from the peculiarities of the habeas corpus procedure and turning on the burden of proof.  Rather the issue is the substantive one of whether, on the evidence before me, I am satisfied that the applicant is unlawfully detained. 

45                  The procedure that was adopted in this case bears no relationship with those in habeas corpus proceedings.  The applicant sought and obtained orders for discovery and both parties have filed such affidavits as they proposed to rely upon; both parties have led oral evidence from such witnesses as they wished to call and were available (including two witnesses who gave evidence by video link from South Africa) and both parties have cross examined the witnesses called by the other.  Technical procedural questions relating to the obligations of a respondent to a writ of habeas corpus and of the sufficiency of a return to such a writ have no application to the proceedings before me, whatever assistance they may give in other proceedings where it has not been possible to explore the evidence in the detail that was done in this case. 

The Limits of the Power and Duty of Detention

46                The parties were in initial agreement that the relevant power of detention of the applicant was contained in s 189(1) of the Act:

‘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.’

However, in Al Masri at 249 [30] the Full Court held that the powers conferred by s 189 of the Act were complete once the person was taken into detention and that thereafter the power of detention was conferred by s 196 of the Act. That section provides:

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.’

47                  Given that s 189 is based upon the subjective knowledge or suspicion of the officer concerned, rather then any objective fact, there may be good reason to read it in the limited way that the Full Court did.  However, it is not clear that s 196 of the Act overcomes that problem by imposing any objective requirements, other then the three specified in subs (1).  In any event, s 196 clearly assumes that the person is in lawful detention.  At the very least it would seem to be necessary to prove that the detention was initially lawful and this would involve proof that the particularly officer who initially took the person into detention in the first place had the requisite knowledge and belief. 

48                  These are not merely technical or procedural issues.  The duties and obligations of persons responsible for the detention of others are very onerous.  Those duties can be enforced not merely by judicial review, but also by the personal liability of the officers involved, both criminal and tortious.  The relevant statutory powers discussed above are not adequate to identify precisely what the powers are or who is responsible for them.  On one view the officer who first takes the unlawful non citizen into detention has the continuing responsibility for that detention thereafter.  On another, it is the officer who is in charge of the detention centre.  On another, it is the person who has the actual physical control over the detainee from time to time.  And, of course, all of this is confused by the presence of private companies having a role in the management and administration of detention centres.  A comparison between the provisions relating to the powers of detention contained in the Act, and the provisions of other statutory schemes which provide for mandatory detention such as in relation to prisoners or those suffering mental or infectious diseases, is instructive in this regard. 

49                  In this case the applicant's detention pursuant to the Act came to an end when he departed from Australia on 12 December, 2003.  It may be that he was, in fact, in some sort of detention during most, if not all of the period from 12 December until he returned to Australia on 25 December 2003, but that was not detention authorised by the Act.  At least for the period that the applicant was in South Africa and Tanzania any detention of him could only have been justified under the respective laws of those countries.  It is not clear if he was detained in the aircraft in which he travelled to and from Australia and to and from Johannesburg and Dar Es Salaam.  This would depend upon the proper characterisation of the role of the "escorts".  However, if their role did involve detention the authority for it at least once the aircraft was no longer in Australian airspace, was not Australian law, and in particular was not the Act.  The Minister properly conceded that the powers of detention (whatever their source) came to an end upon the applicant being removed from Australia: see s 196(1)(a) of the Act. 

50                  The question then arising is whether there was power and authority to detain the applicant upon his return to Australia on 25 December, 2003.  The applicant did not require a visa to re-enter Australia: s 42(2A)(d) of the Act.  His return to Australia following the refusal of the Sudan to permit him entry did not affect his status in Australia thereafter as an unlawful non citizen: s 42 (4) of the Act.  Although there was no evidence before me in relation to it, it has been assumed in these proceedings that upon his return to Perth an officer of the Commonwealth "knew or reasonably suspected" that he was an unlawful non-citizen and again took him into custody pursuant to s 189 of the Act.  The applicant has remained in custody since that time.

51                  What this means is that there are two separate periods of detention.  The first was from the time of the applicant's arrival in Australia until the time of his departure on 12 December, 2003.  That departure brought that period of detention to an end.  The second period of detention commenced on 25 December, 2003.

52                  The issue argued by the applicant in these proceedings was whether the continued detention of the applicant upon his return was unlawful because there is not a "real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future".  The applicant relies upon the decision of the Full Court in Al Masri.  The critical aspects of the reasoning of the Full Court are at 272-273, at [134]-[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 corpus should 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.’ (my emphasis)

53                  It is clear that the Full Court has identified two limitations upon the powers of detention in the Act having regard to the purposes of that power.  First, it is said that "the Minister" must exercise the power bona fide for the purpose of removal or of ascertaining whether the person is entitled to enter Australia.  Second, it is said that the power of detention only subsists for so long as there is a "real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future".

54                  This case involves the second limitation.  That limitation raises an issue as to what evidence can be called in relation to that limitation.  Having identified that the detention power in the Act is purposive, there are three possible meanings that can be attributed to the relevant purpose.  First, the purpose can be a subjective purpose.  If so, then evidence can be called as to what the purpose of the relevant person was in fact.  The requirement under the first limitation that the Minister exercise the power bona fide for the purpose of removal is a subjective test of purpose.  What is relevant is what the purpose actually was. The surrounding facts are only relevant as a means of testing that subjective purpose.  Plainly enough, it is only the facts that are known to the Minister that can have any real bearing on that question.  The second possibility is that the purpose is an objective purpose, but that purpose is to be ascertained only on the information that was before the decision maker.  Such a purposive test might be appropriate where the decision maker was constrained on what information could be taken into account.   Finally there is the objective test of purpose where it is the objective facts as found by the Court that are relevant, not the facts as known by the decision maker or by the person subject to the relevant duty.  In the latter case the Court can take into account facts that were not known to the decision maker.  On the other hand, particularly in this area, there may be some difficulties in the Court ascertaining what the facts truly are, even though it might be reasonably simple to ascertain what information was available to DIMIA.  As discussed below, that is a problem that directly arises in this case. 

55                  In my view the inquiry under the second limitation referred to by the Full Court is an objective inquiry as to the objective facts.  There are two reasons for this.  First, it seems to me to be clear that the inquiry is an objective inquiry.  The provisions of ss 189 and 196 of the Act impose a duty upon the relevant person, whoever that might be.  There is an important distinction in this context between powers and duties.  Save for the grant of plenary powers to Legislatures (see Durham Holdings v NSW (2001) 205 CLR 399, 408-409), the grant of a discretionary power must be exercised bona fide for the purposes for which the power was given: see R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598, 615.  Otherwise the grant of the power would involve an unlawful abdication of legislative power by the body granting it.  The relevant power could also be conditional upon the existence of objective criteria in addition to the requirement for a subjective purpose, but this will depend upon the relevant statute.

56                  In contrast to the exercise of a discretionary power, there is no necessary requirement that a statutory duty be exercised bona fide and for the purpose for which the power was given.  To give a simple example, if a Sheriff has a warrant to hold a prisoner in gaol the duty to do so exists no matter whether the Sheriff is bona fide and no matter what his or her purpose might be.  Otherwise, an officer could avoid a statutory duty merely by disagreeing with it.  In relation to a statutory duty the question of whether there is any objective or subjective purpose is a matter of statutory interpretation.

57                  In this regard it is important to note what was decided by the High Court in Park Oh Ho & Ors v Minister of State for Immigration and Ethnic Affairs (1989) 167 CLR 637 (Park) (a decision cited in Al Masri).  In that case the Minister exercised a discretionary power to make a deportation order.  It was found at trial that the order had been made "for the impermissible purpose of detaining the particular appellant in Australia so that his evidence would be available in the criminal proceedings" (see at 641).  On the face of it this would seem to be an evidentiary finding as to the Minister's subjective purpose in the exercise of a discretionary power.  The relevant provision authorising the Minister to make a detention order (set out in the headnote to Park) would appear to have conferred a discretionary power, rather than a duty.  Even so, the High Court at 643 commented that the detention power was only "during such time as is required for the implementation of the deportation order."  On the face of it this would seem to be an objective test of purpose, in addition to the subjective one

58                  In this case the combined effect of ss 189 and 198 of the act is to impose a duty upon someone (presumably an officer) to detain an unlawful non-citizen.  It is not obvious to me that the subjective purpose of that officer has much to do with that duty.  In my view any inquiry in relation to the purpose of the statutory provision is an inquiry as to objective purpose.

59                  As to the question of whether that objective inquiry depends upon the information available to DIMIA, or to the objective facts as found, it seems to me that it must be the latter.  In Al Masri (at 260 [81]) the Full Court did not find it necessary finally to determine whether the constitutional power of the Commonwealth Parliament to enact ss 189 and 196 of the Act was limited by the purposive nature of the aliens power in s 51(xix) of the Constitution, particularly as understood in the context of Chapter III of the Constitution.  Nevertheless, the Full Court did refer to the comments in the joint judgment in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (Lim) at 32 that the aliens power "encompasses the conferral of an alien in custody for the purpose of expulsion or deportation".  The purpose referred to in Lim is not the subjective purpose of the Commonwealth Parliament.  It is an objective purpose.  The test for that objective purpose is whether the relevant law is "capable of being considered as reasonably appropriate and adapted to the enabling power": see Richardson v Forestry Commission (1988) 164 CLR 261 at 289, 300, 311-313, 324, 342-345; South Australia v Tanner (1989) 166 CLR 1 at 164-165, 175-179; Lim at 57.   If the powers of the Commonwealth Parliament to authorise detention are limited to the objective purpose identified in Lim then it must follow that the powers that it has conferred in ss 189 and 196 of the Act are similarly limited.  Indeed, the Full Court in Al Masri would seem to accept that that would be the case: see at 260[80].  However, that limitation involves an objective test for purpose based upon objective facts as found.  Assuming that the power to detain is read down so as to encompass the full extent of the legislative power of the Commonwealth Parliament, then the test for that objective purpose would be a test of "reasonably capable of being considered as reasonably adapted" to the constitutional purpose as understood in the context of the objective facts as found by the Court.

60                  If it is accepted on the basis of Lim that there is a constitutional limit to the otherwise unqualified duty to detain in ss 189 and 196 of the Act then those sections must be read down so as to come within the legislative power: see Sportodds Systems v NSW (2003) 202 ALR 98, 106-107 [16]-[21].  This does not mean that the sections must be read so as to maximize the available authority to detain.  As the Full Court made clear in its reasons there were other reasons for limiting the powers of detention and it was not necessary for the Full Court to rely upon the limitations of constitutional power.  However, if the relevant detention power was only limited by a requirement for subjective purpose, or if it was only limited by a requirement for objective purpose dependent only upon facts that were known to DIMIA then the power would or, at least, could exceed the limits identified in Lim. 

61                  Against this background, I return to the consideration of Al Masri.  What the Full Court did do was to identify the two particular limitations upon the duty of detention which are referred to above.  True it is that the first limitation identified by the Full Court relating to the bona fide exercise of power by the Minister for the relevant purpose plainly refers to a subjective purpose and that being a purpose apparently of the Minister; see also Te v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 497, 511-512 [57]-[62].  I am bound by the decision of the Full Court in that regard if that issue should arise.

62                  In relation to the second limitation identified in Al Masri the Full Court at 270 [129] seems to adopt "reasonableness", as the test for the purpose of detention under ss 189 and 196 of the Act, apparently in reliance upon English authority.  This is a much broader test for invalidity than the test adopted by the High Court to determine a constitutional purpose.  In apparent application of that "reasonableness" test the Full Court identified the second limitation as a practical test to be applied in determining whether the continued detention was reasonable having regard to the relevant purpose: "whether there is a real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future".  That practical test plainly is a test of objective purpose.  However, the test as stated does not expressly identify whether the relevant facts to be considered in the determination of it are those as known to DIMIA or those as objectively found, although it may be implicit in the Full Court's comments on "reasonableness" at 270 [129] that what is meant is facts as objectively found.  In any event there is nothing in the reasons of the Full Court which would prevent the test being based upon the facts as objectively found.  For the reasons given above I think that is the correct basis for the test.  Otherwise the criteria specified by the Full Court may not be within the constitutional power as explained in Lim.

63                  This conclusion may be different from comments I made in Haney v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1555 (Haney).  That case concerned an application for interlocutory release pending final hearing.  In considering the prospects of success of the applicant upon the final hearing I referred to the issue (at [14) of "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".  This may have been taken as suggesting that the Department's attitude is a relevant issue in relation to the second limitation.  For the reasons given above, the relevant test is an objective test based upon objective facts.  The beliefs or expectations of DIMIA, be they optimistic or not, are not relevant at least to the second limitation identified by the Full Court in Al Masri: contrast Agha v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 164 at [81] and [91]-[97].  This does not deny that the evidence of DIMIA officers as experts may be highly relevant in determining the objective facts: see Al Masri at 271 [130].

 WHETHER THERE IS A REAL LIKELIHOOD OR PROSPECT OF REMOVAL IN THE REASONABLY FORESEEABLE FUTURE

64                  Leaving aside the applicant's journey to Tanzania and back in December, 2003 the applicant has been continuously in detention since 11 October, 2000.  An officer or officers were under a legal duty to remove him from Australia "as soon as reasonably practicable" after 10 May, 2002.  Nevertheless, he remains in detention.  

65                  However, in my view Al Masri stands for the proposition that continued detention for the purpose of removal is only lawful if the two limitations discussed above are met.  It does not stand for the proposition that detention at a point in time when the limitations are met is nevertheless unlawful if, at some previous time, the two limitations could not have been met.  The power to detain in s 189 of the Act can plainly be exercised from time to time.  This is made clear by the Full Court at 270 [128].  Indeed, the power to detain was again exercised in this case on the applicant's return from Tanzania and South Africa.  Once there is a real likelihood or prospect of removal in the reasonably foreseeable future there is no basis upon which the duty in s 189 of the Act to detain could be read down so as to be inapplicable.  It follows that the issue before me is whether the applicant is currently unlawfully held because there is now no real likelihood or prospect of removal in the reasonably foreseeable future.  Whether or not he has been unlawfully held in the past is not the issue that I currently need to determine: see Haney at [21].  This does not mean, of course, that what has happened in the past is irrelevant.  The past may well provide a guide as to the future.

66                  There is no evidence before me to suggest that there is any real prospect that the applicant can be removed to any country other than the Sudan.  Given the time that has passed since the duty to remove him arose, the various attempts that have been made since then to find a country that would accept him and the other facts referred to above I am satisfied that there is no real prospect of his being removed to a country other than the Sudan within a reasonable period.  Reference was made by Ms Dundas in her evidence to there being some chance that he could be removed to Syria, but given that there seems to be a general agreement that he was last in that country illegally I do not think that there is currently a real prospect of his being removed to that country.

67                  Consequently the lawfulness of his continued detention depends upon whether there are real prospects that he can be returned to the Sudan in the reasonable future.  In this case both parties are in agreement that the applicant is a Sudanese citizen who has a right of return to that country under international law.  The applicant explained that his parents were born in the Sudan and that he believed that that entitled him to Sudanese citizenship.  Ms Dundas gave evidence that under Sudanese law a child born outside the Sudan is a Sudanese citizen if the child's father is a citizen.  I accept Ms Dundas evidence as to that fact.  I rely upon the agreement of the parties to find that the applicant is a Sudanese citizen.

68                  There is no evidence before me to suggest that the Sudanese government will not comply with its obligations at international law and accept a Sudanese citizen into its territory.  Indeed, on the evidence before me the Sudanese officials in Dar Es Salaam and in Pretoria went out of their way to interview the applicant at the respective airports in order to  ascertain if he was a Sudanese citizen.  In my view I am entitled to presume, in the absence of any such evidence, that the Sudanese government will accept for re-settlement a person that it is satisfied is a Sudanese citizen.  

69                  Ms Dundas' evidence of the practice of the Sudanese government establishes that that government requires that a person claiming to be Sudanese citizen and seeking to return to the Sudan satisfy it that he or she is a Sudanese citizen.  I accept her evidence that where there is documentation to establish that citizenship, the Sudanese government may be prepared to rely upon that documentation.  Otherwise, the Sudanese government would require the relevant person to present themselves at a Sudanese embassy to satisfy a Sudanese official that the person was a Sudanese citizen.

70                  The problem in this case is that the applicant has been through the procedure of being interviewed by Sudanese embassy officials in both Tanzania and South Africa and was unable to satisfy them that he was Sudanese.

71                  There is no evidence before me as to the first interview in Dar Es Salaam, save for some e-mail and telephone reports provided by Mr Migliore of SMI to Ms Dundas informing her of what he had been told apparently by someone who may not themselves have been present at the interview.  The question of what occurred in Dar Es Salaam was contentious and objections were made to the use of this material.  Of course, that material would be relevant and admissible if the question before me was whether the actions of DIMIA were reasonable having regard to the information available to it.  However, given that the question I have to determine involves one of objective fact, those reports have no evidentiary value and are unfairly prejudicial.  I take no notice of them.  Consequently the only evidence before me as to what happened at the interview in Dar Es Salaam is that of the applicant.  His evidence was that he was interviewed for a short period of 5 or 10 minutes.  He was asked questions about his parents and about the records that he had with him.  At the conclusion of the interview the embassy official said "he is not from Sudan".

72                  The interview in Johannesburg was conducted in Arabic.  Mr Milanzi of SMI was present at the interview, but he does not speak Arabic so he was unable to assist as to what occurred.  The applicant gave evidence that the interview lasted for some 10 to 15 minutes.  He said that the embassy official asked him what had happened to him.  It would appear that the applicant seized the opportunity to tell the embassy official of his recent unhappy experiences.  The official also asked various questions.  At the end of the interview the official said to Mr Milanzi that the applicant was not from the Sudan, but from Algeria or Somalia. 

73                  The embassy official also provided a letter to SMI dated 23 December, 2003[bms1] 

‘With reference to our telephone conversation Mr Idres Abdelrahman Salih is not a Sudanese citizen.  He has documents from the Kuwait embassy stating that he is Sudanese.  We have under gone an investigation and there is no documents stating that Mr Salih is a Sudanese citizen.  He has never been to the country, nor does he have any relatives or roots in Sudan.  He does not have an ID or passport confirming that he is from the Republic of Sudan.’

In my view I can rely upon that letter as evidence of what the embassy official did as a fact.  Given that my inquiry is an objective inquiry and given that I have not heard from the embassy official it would be unfairly prejudicial for me to rely upon the letter for the truth of what is stated in it.  Indeed, both parties are in agreement that the embassy official is wrong in his conclusion that the applicant is not Sudanese.

74                  Mr Milanzi also gave evidence that the applicant said to him that he was not "from Sudan".  This is denied by the applicant, but I am satisfied that something like that may have been said.  In fact such a statement would be true - he was "from" Kuwait, if anywhere.  That was where he was born and where he lived most of his early years.  I am not satisfied, however, that the applicant told Mr Milanzi or the embassy officials that he was not a Sudanese citizen.  I am also not satisfied that Mr Milanzi knew enough of the details of Sudanese law to be aware of the possible differences for the purposes of that law between the country where the applicant was born and the country of his citizenship.  This issue was simply not explored in the evidence.  I am also not satisfied that Mr Milanzi and the applicant had a sufficient mutual understanding or rapport to assume that they did not misunderstand each other.

75                  There was also evidence put before me as to what Mr Migliore of SMI was told by the embassy official, by Mr Milanzi and by others and as to what he, in turn, informed Ms Dundas.  At the very least that evidence is unfairly prejudicial to the applicant.  It cannot be relied upon for the purpose of establishing, as an objective fact, either what occurred in Johannesburg or what the current prospect of the return of the applicant to the Sudan might be.

76                  The factual conclusion that can be drawn from all this is non contentious.  It is simply that the applicant was unable to satisfy the Sudanese embassy officials in either Tanzania or South Africa that he was a Sudanese citizen.  It does not seem to me that this is particularly surprising.  There is no doubt that he was unable to convince the Minister's delegate or the Refugee Review Tribunal that he was a Sudanese citizen even though he was, in fact, a Sudanese citizen and even though it was clearly in his interest to convince them of it.  Ms Dundas (who has interviewed the applicant) said that he was a difficult person to interview.  It seems to me that the relevant fact to be drawn from all this is that the applicant is unlikely to be accepted by the Sudanese government if the only basis for establishing that he is Sudanese is his own assertions, notwithstanding that they are true.  Indeed, given the past history of this matter I am satisfied that there would not be a real prospect of his removal to Sudan unless sufficient documentary evidence can be obtained so as to satisfy the Sudanese officials of the applicant's citizenship without need to rely only upon the applicant's powers of persuasion. 

77                  The issue of whether such documentary evidence can be obtained turns on the current inquiries being made in Kuwait and the responses to those inquiries.  The evidence in relation to those inquiries consists of e-mails and facsimile communications from the DIMIA officer in Dubai, some of which annex communications from the Kuwaiti embassy in Dubai.  That evidence was received without objection and appeared to be non contentious.  There is no reason to doubt the accuracy of the information provided to Ms Dundas by the DIMIA official in Dubai and the applicant was correct not to have disputed it.  On the other hand as the issue is one of objective fact the Minister may have had some difficulty proving the fact if it was disputed.  At the very least an affidavit from the officer in Dubai may have been required.  The material that is not disputed clearly suggests that there is a real prospect that information will become available in the short term which will show that one or both of his parents held a Sudanese passport.  Relying upon the evidence of Ms Dundas (whom I accept as an expert for this purpose) as to the meaning and significance of that information, I am satisfied that there is presently a real prospect of his being removed from Australia within a reasonable period. 

78                  I do note, however, that what prospects there currently are may change quickly.  If, for example, it became clear that the documents being sought from the Kuwaiti government do not exist or cannot be obtained in reasonably short order, or that the documents which are obtained do not confirm that the applicant is a Sudanese citizen then his continued detention thereafter might be questionable under the principles established in Al Masri.

Co-operation

79                  It is clear that the Full Court in Al Masri  at 273 [137] accepted that detention which would otherwise be unlawful by reason of non compliance with the second limitation will remain lawful if the reason that the removal has not been effected is the failure of the applicant to co-operate in such removal.  This has been accepted in later cases: see SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 295 at [16].

80                  Given the conclusions I have reached above it is unnecessary for me to deal with this issue.  However, as there were submissions made in relation to it I should record that it was accepted by Minister that as at the date of the hearing the applicant was relevantly co-operating.  There is nothing before me to suggest that the situation has changed subsequently.

81                  As already discussed, a good deal of the correspondence between SMI and DIMIA related to whether or not the applicant was relevantly co-operating in seeking to satisfy the Sudanese government that he was a Sudanese citizen whilst he was in Dar Es Salaam and Johannesburg.  Whatever the source of this duty to co-operate might be it is difficult to see what application it can have to events occurring in the transit lounges of the Dar Es Salaam and Johannesburg airports when the applicant was no longer in detention pursuant to the Act. 

82                  There may also be some difficulties in applying the requirement that the applicant "co-operate" in a case like the present one - a case where the applicant has failed in his claim to be a refugee because he was not believed in his claim to be a citizen of a particular country, all grounds of review have been exhausted, but subsequently it has been agreed (and I have so found) that he is in fact a citizen of that country. 

83                  Nevertheless, for the reasons given above, the issue before me involves a determination of objective facts.  Whatever DIMIA officers may have concluded on the basis of the correspondence in Departmental files and of what they were informed by SMI, the admissible evidence before me does not establish that the applicant was unco-operative during the interviews with officials from the Sudanese embassies.  In particular the evidence does not establish that he informed those officials that he was not a Sudanese citizen.  It merely established that he did not satisfy the officials that he was a Sudanese citizen. 

84                  For the above reasons the application for release from detention will be dismissed.  The Court records the considerable assistance it received from Mr Ower who appeared pro bono for the applicant and from the solicitors who instructed him who also act pro bono.  The profession is to be commended for the efforts it makes to ensure that those in detention who are unable to afford legal representation but nevertheless would be assisted by it are represented before the courts.  I will hear the parties as to costs.

Associate:

Dated:              29 March 2004