Federal Court of Australia

Save the Children Australia v Minister for Home Affairs [2023] FCA 1343

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    Within 14 days, the parties submit any agreed minute of orders on costs.

3.    If the parties cannot agree, then within 21 days, each party file and serve a written submission (of no more than three pages) on costs, and the issue of costs will be determined on the papers.

4.    The Court’s reasons for judgment be published, in the first instance, on a confidential basis to the parties, to enable them to consider whether to seek confidentiality orders with respect to any part of the judgment. Within two business days, the parties provide the Court with any submission on proposed confidentiality orders.

5.    Subject to further order, the Court’s reasons for judgment otherwise be and remain confidential for a period of seven days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    By this proceeding, the applicant, Save The Children Australia (STCA), a registered charity with the stated purpose of supporting children in need, seeks orders and declarations against the Minister for Home Affairs and the Commonwealth of Australia (the respondents), relating to certain Australian women and their children (34 people in total) who are being detained in North-East Syria in camps including the Al-Roj camp (the relevant women and children). It appears that the women are Australian citizens and that their children are either Australian citizens or eligible to become Australian citizens. The relevant women and children are being detained by the Autonomous Administration of North East Syria (AANES) and/or its military wing, the Syrian Democratic Forces (SDF). AANES and SDF are supported by a coalition of countries known as the Global Coalition against Daesh/ISIS (the Coalition), which includes the United States of America, the United Kingdom and Australia. ISIS refers to the Islamic State in Iraq and Syria. It is also known as Islamic State and as ISIL (Islamic State in Iraq and the Levant).

2    In practical terms, what STCA is seeking to achieve is to have the Australian Government repatriate (bring to Australia) the women and children who are the subject of this proceeding. The Australian Government did this in October 2022 for four Australian citizen women and their 13 children (a total of 17 people) in a similar plight. However, for reasons that are unexplained in the evidence, the Australian Government does not seem to be taking steps to repatriate the remaining Australian women and their children.

3    By its originating application, STCA seeks the following relief (in summary):

(a)    an order that a writ of habeas corpus issue against the respondents in respect of the relevant women and their children, alternatively in respect of certain women and their children (31 people in total) who have authorised STCA to act on their behalf (the STCA Women and Children);

(b)    on the return of the writ, an order that the relevant women and children (alternatively, the STCA Women and Children) be released;

(c)    alternatively to (a) and (b), a declaration that, in making a decision not to repatriate the relevant women and children, the Minister for Home Affairs or another officer of the Commonwealth took into account a prohibited consideration, acted for an ulterior purpose, or acted unreasonably;

(d)    alternatively to (c), a declaration that, in failing to make a decision to repatriate the relevant women and children, the Minister for Home Affairs or the Commonwealth acted for an ulterior purpose or acted unreasonably;

(e)    alternatively to (d), mandamus, alternatively an injunction, compelling the Minister for Home Affairs or the Commonwealth by an appropriate officer to properly consider certain letters from STCA (dated 19 May 2023 and 23 May 2023) and to decide whether or not to repatriate the relevant women and children.

4    The application proceeded on the basis that the Court was not dealing, at this stage, with the application for the relief set out in (b) above. The parties conducted the hearing on the basis that the relief sought in (b) above would be dealt with at a later stage, on the return of the writ (if the Court decided to issue the writ). The overwhelming focus of the oral submissions was on the application for a writ of habeas corpus. Very little time was spent in oral submissions on the application for the relief set out in (c), (d) and (e) above, with both sides largely relying on their written submissions.

5    There is no issue between the parties as to the Court’s jurisdiction in the present matter. I consider that the Court has jurisdiction in the present matter under s 39B(1) of the Judiciary Act 1901 (Cth), which refers to “any matter in respect of which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth”. There is no issue between the parties as to the Court’s power to issue a writ of habeas corpus. Given that the Court has jurisdiction in the matter, it has power to issue a writ of habeas corpus: see s 23 of the Federal Court of Australia Act 1976 (Cth) (“[t]he Court has power, in relation to matters in which it has jurisdiction, … to issue … writs of such kinds, as the Court thinks appropriate”) and McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 283 FCR 602 (McHugh) at [20]-[23] per Allsop CJ, [75] per Besanko J and [190]-[214] per Mortimer J (as her Honour then was).

6    The respondents accept that STCA has standing to bring the proceeding in respect of the STCA Women and Children. However, the respondents contend that STCA does not have standing to bring the proceeding with respect to the other relevant women and children (who have not authorised STCA to seek relief on their behalf).

7    There is no issue between the parties that the relevant women and children are being detained by AANES and/or SDF.

8    Further, there is no issue between the parties that the detention is prima facie unlawful: STCA contends that the detention is prima facie unlawful and the respondents do not put forward any argument as to the legality of the relevant women and children’s detention and do not seek to rely on the act of state doctrine. In circumstances where the relevant women and children are being detained, and there is no evidence that they have been charged with any crime, I accept that the detention is prima facie unlawful.

9    As discussed later in these reasons, the cases establish that actual physical custody of the relevant person is not essential (for a defendant or respondent to be amenable to a writ of habeas corpus); it is sufficient if the defendant or respondent has control over the person’s detention: R v Secretary of State for Home Affairs; ex parte O’Brien [1923] 2 KB 361 (O’Brien) at 398; Rahmatullah v Secretary of State for Defence [2012] UKSC 48; [2013] 1 AC 614 (Rahmatullah) at [43], [90]-[91], [109]. Further, it is established that it is sufficient if the control is de facto (as distinct from de jure) control: O’Brien at 398; Rahmatullah at [48]. There is no issue between the parties about these propositions.

10    STCA’s key contentions in support of its application for a writ of habeas corpus can be summarised as follows. STCA contends that, where it appears that the respondent has control over the detention of the relevant person or, at least, the Court entertains a doubt as to whether the respondent has control, the Court can use the “pressure of the writ” to test the truth of the respondent’s assertion of a lack of control. In support of that contention, STCA relies on a series of three decisions of the United Kingdom courts: Barnardo v Ford [1892] AC 326 (Barnardo); O’Brien; and Rahmatullah. STCA contends that, in the present case, it appears that the respondents have control over the detention of the relevant women and children or, at least, there is doubt as to whether the respondents have control. Accordingly, STCA contends, the writ should issue to test the respondents’ assertion that they do not have control.

11    The respondents contend, in summary, that the evidence establishes that they do not have control over the detention of the relevant women and children and, therefore, the writ of habeas corpus should not issue. The respondents contend that the three cases relied on by STCA are distinguishable. Further, the respondents rely on C3 v Secretary of State for Foreign, Commonwealth & Development Affairs [2023] EWCA Civ 444; [2023] 3 WLR 529 (C3), which they contend is factually more similar to the present case.

12    For the reasons that follow, I have decided, in summary:

(a)    I am satisfied (on the balance of probabilities) that the respondents do not have control over the detention of the relevant women and children. Accordingly, in my view, a writ of habeas corpus should not issue.

(b)    In relation to the application for judicial review of a decision not to repatriate (or seek the repatriation of) the relevant women and children, I am not satisfied that any such decision has been made. Insofar as STCA seeks relief in relation to a failure to make a decision (whether or not to repatriate, or seek the repatriation of, the women and children), this part of the application is premised on there being a requirement to make such a decision. However, I am not satisfied that there is any such requirement. Accordingly, the application for judicial review is rejected.

13    It follows that the application is to be dismissed.

The hearing and the evidence

14    The hearing took place over two hearing days: the evidence was dealt with on the first hearing day; and the second hearing day was devoted to closing oral submissions.

15    STCA relied on affidavits of the following deponents:

(a)    Mathew Tinkler, the Chief Executive Officer of STCA;

(b)    Joshua McDonald, a media advisor with STCA;

(c)    Gary Dabboussy;

(d)    Dr Anan Haidar, a Research Fellow at the Institute for International Peace and Security Law, Cologne University;

(e)    Professor Michael Newton, a Director of the International Legal Studies Program, Professor of the Practice of Law, and Professor of the Practice of Political Science at the Vanderbilt Law School in Nashville, Tennessee;

(f)    Peter Galbraith, a former US Ambassador; and

(g)    Professor Gregory Barton, a Research Professor in Global Islamic Politics at the Alfred Deakin Institute, Deakin University; a Scholar in Residence at Asia Society Australia; and a Senior Fellow at Hedayah, Abu Dhabi.

16    There are two affidavits of Mr Tinkler in evidence. The first affidavit (dated 5 June 2023) annexes a statement prepared by Mr Tinkler dated 18 May 2023 (the Tinkler Statement) that was provided to the Minister for Home Affairs before the commencement of the proceeding.

17    Each of Dr Haidar, Professor Newton, Ambassador Galbraith and Professor Barton gave expert evidence in the form of expert reports annexed to their affidavits.

18    None of the witnesses called by STCA were required to attend for cross-examination.

19    The respondents relied on affidavits of the following deponents:

(a)    Rear Admiral James Lybrand, who holds the rank of Rear Admiral in the Royal Australian Navy (RAN); he was the Director General Operations and Plans (J3) at Headquarters Joint Operations Command (in the Australian Defence Force (ADF)) from 6 December 2021 to 14 July 2023;

(b)    Kathleen Logan, who is currently the First Assistant Secretary of the Pacific Strategy Division (PSD) in the Department of Foreign Affairs and Trade (DFAT), a position she has held since 24 July 2023; she was the First Assistant Secretary of the Consular and Crisis Management Division (CCD) (within DFAT) from around July 2021 to July 2023;

(c)    Ciara Spencer, the First Assistant Secretary of the CCD, a position she has held since 31 July 2023;

(d)    Josefina Booth, a Principal Legal Officer/Director of the Character, Citizenship and Removal Litigation Section of the Migration and Citizenship Litigation Branch in the Legal Group of the Department of Home Affairs; and

(e)    Scot Wu, an officer in the Border Systems Support Section of the Australian Border Force (ABF); the ABF operates within the Department of Home Affairs.

20    Rear Admiral Lybrand and Ms Logan were cross-examined. Each of them gave evidence in a clear and straightforward manner and in a way that was designed to assist the Court. I accept their evidence.

21    The other witnesses called by the respondents were not required for cross-examination.

22    The respondents did not call Marc Innes-Brown. In 2022, he was the Australian Government’s Special Envoy to liaise with AANES to facilitate the return to Australia of Australians who were located in the Al-Roj camp. He led the Australian Government’s communications with AANES in relation to the repatriation of Australian women and children that took place in October 2022. STCA contends that an adverse inference should be drawn from the failure to call him, relying on Jones v Dunkel [1959] HCA 8; 101 CLR 298.

23    The respondents filed a lengthy list of objections to STCA’s evidence (marked as “MFI-1”). An earlier version of this document (dated 22 September 2023) included a section at the beginning headed “Global observations of the applicant”, which set out STCA’s submissions on a number of global issues raised by the respondents’ objections. The objections were dealt with on the first day of the hearing. I note the following in relation to two global issues raised by the respondents’ objections:

(a)    The first issue was whether the application (insofar as it concerned a writ of habeas corpus) was interlocutory or final. Many of the respondents’ objections were that the evidence was hearsay and therefore inadmissible. In response, STCA relied on (among other things) s 75 of the Evidence Act 1995 (Cth), which provides that, in an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source. The respondents contended in response that the application was final not interlocutory. Having regard to an observation in McHugh that the remedy of habeas corpus is “interlocutory in character” (see McHugh at [21] per Allsop CJ, a paragraph with which Besanko J (at [75]) and Mortimer J (at [199]) agreed), I said that I would proceed on the basis that the application was interlocutory and would admit the evidence, but I would give the parties the opportunity to make further submissions about the issue in closing submissions. I said that, if I formed the view that the application is final, then I would not have regard to the hearsay evidence (unless it were admissible on some other basis). The parties made submissions on the issue in final submissions. I accept that (as submitted by the respondents) there does not appear to have been a live issue in McHugh as to whether the application was interlocutory or final. Nevertheless, it remains the case that all three Judges in that case described habeas corpus as a remedy that is interlocutory in character. Ultimately, I do not consider it necessary to resolve the issue. This is because, if the application is final, I would consider it appropriate to exercise the discretion in s 190(3) of the Evidence Act to order that the provisions of the Act relating to hearsay evidence do not apply in relation to this category of evidence on the basis that the application of those provisions would cause or involve unnecessary expense and delay. Given the plight of the relevant women and children, the application is urgent. Further, obtaining evidence from the relevant women and children in their current circumstances would be difficult. I would therefore exercise the power in s 190(3) in relation to this category of evidence.

(b)    The second issue was concerned with evidence about international law. The respondents objected to this evidence (contained in some of the expert reports) on the basis that international law (as with domestic law) is not a matter for proof by evidence, citing Australian Competition and Consumer Commission v PT Garuda Indonesia (No 9) [2013] FCA 323; 212 FCR 406 at [32]-[48] per Perram J. I said that whether the evidence of international law was admissible raised a complex issue. I said that, given that complexity, I would admit the evidence and give the parties the opportunity to make submissions on the issue in closing submissions. I said that, if I was persuaded that the evidence was not a matter for proof by evidence, I would not have regard to it. In the event, neither party made submissions on the issue in closing submissions. I do not consider it necessary to resolve the issue because nothing turns on the evidence about international law for the resolution of the application.

Factual findings

General matters

24    In this section, I set out some general facts and matters that do not appear to be controversial between the parties. This section is based on evidence that was not the subject of objection and not challenged.

25    In paragraphs 37-39 of the Tinkler Statement, Mr Tinkler states that, based on his review, he believes that each of the relevant women is an Australian citizen and their children are either Australian citizens or eligible to become Australian citizens. He provides reasons for holding those beliefs. I will proceed on the basis that each of the women is an Australian citizen, and each of the children is, or is eligible to become, an Australian citizen. Mr Tinkler states at paragraph 25 of that statement, and I accept, that the relevant women and children are currently being detained in the Al-Roj camp because of their associations (voluntary or involuntary) with Islamic State. There is no evidence that any of the women or children have been charged with any crime.

26    Australia is a member of the Coalition, which was formed in 2014 to combat ISIS. The Coalition now comprises more than 80 countries including the United States of America and the United Kingdom. The Coalition now performs a role that includes supporting stability in North-East Syria.

27    AANES is the de facto governing authority over a region in North-East Syria that includes the Al-Roj camp. It is a non-state actor. SDF is the military wing of AANES and also a non-state actor.

28    AANES and SDF are reliant on support from the Coalition, including to improve security and ensure that the SDF has control of detention facilities.

29    AANES and/or SDF have control over detention facilities and camps in North-East Syria, including the Al-Roj camp. SDF guards the perimeter of the Al-Roj camp. Within the camp, most security is provided by the all-female YPJ (People’s Protection Force), a component of SDF. Ambassador Galbraith describes Al-Roj as a “prison camp”. As with any prison, the responsible authorities (in this case, SDF, YPJ and AANES) restrict the movement and activities of detainees. Conditions in the Al-Roj camp are described in the Tinkler Statement and the report of Ambassador Galbraith.

30    Australia funds a number of humanitarian organisations that provide assistance in the camps.

31    AANES and SDF leaders have stated publicly that they would like countries to repatriate citizens held in the camps. The camps are a major burden for them.

32    The United States has repeatedly called on countries to repatriate their citizens. When asked to do so, the US Government has assisted countries in repatriating their citizens.

33    Many countries have successfully repatriated some or all of their citizens from camps in North-East Syria. This includes the United States, Germany, Belgium, Sweden, Finland, the Netherlands, Denmark, Albania, Kosovo, Bosnia-Hercegovina, Russia and Indonesia.

The October 2022 repatriation

34    In October 2022, the Australian Government successfully effected the release from detention in Al-Roj and the repatriation of four Australian citizen women and their 13 children (the October 2022 repatriation).

35    The October 2022 repatriation was co-ordinated by a Joint Agency Taskforce (JATF) of the Australian Government. The JATF was led by the Department of Home Affairs and included (but was not limited to) National Intelligence Community Agencies, DFAT, the Attorney-General’s Department and the Australian Federal Police. Within the JATF, DFAT was responsible for the offshore consular aspects of the operation. The repatriation in 2022 required extensive preparation over several months, including detailed safety and security risk assessments based on continuous, real-time information monitoring, and the identification and implementation of appropriate risk mitigation measures; the operation was a sensitive and complex undertaking that required significant resources.

36    Australian officials led by Mr Innes-Brown liaised with AANES representatives via email and then met them in person in connection with the repatriation.

37    On 27 September 2022, Mr Innes-Brown sent an email to the Head of the Office of External Relations of AANES. Mr Innes-Brown’s email included:

I am also writing to introduce myself and to advise you that I have been appointed as the Australian Government’s Special Envoy to liaise with you and your Administration to facilitate the return to Australia of Australians that are currently located in Al Roj Camp. The Australian Government wishes to repatriate 4 women and 13 children from Al Roj Cap to Australia in coming weeks, subject to appropriate checks. I would be grateful for your assistance in supporting and facilitating this proposal.

The email included a list with the names of the four women and their 13 children who Australia was seeking to repatriate.

38    On 28 September 2022, an internal DFAT email reported on a meeting between a DFAT officer or representative and the External Affairs Office of AANES on the same day. The summary of the meeting included:

•    [name redacted] said he had received the email from Australia’s Special Envoy, Marc Innes-Brown. The AANES were fully prepared and willing to cooperate with the Australian Government to undertake the repatriation operation. AANES considered this a humanitarian operation, given the problems Northeast Syria was suffering from. There were currently citizens from around 50 countries in the camps, most of these were women and children. The were exposed to security risks and terrorism and it was not a favourable living environment. As a result, the AANES wanted to cooperate with any country to repatriate individuals as soon as possible.

•    We said we would appreciate AANES assistance to ensure our operation went smoothly.

•    [name redacted] said AANES were willing to facilitate all procedures. AANES would provide all security and protection on the ground. The AANES procedures were simple – some specific paperwork had to be completed and signed between the repatriating country and AANES. Also, every State had the option to make a statement thanking AANES – this would be a matter for the State.

39    The evidence includes an AANES document headed “Procedures Required for the Repatriation of Foreign Nationals”. The procedures were as follows:

The Autonomous Administration of North and East Syria (AANES) sets forth the following procedures for countries to repatriate their citizens from North and East Syria (NES).

1-    The country is expected to submit an official request to repatriate its citizens by sending an email from the official email address of its Foreign Ministry to the official email address of the Department of Foreign Relations (DFR) in the AANES, which is [email address redacted]. The two sides will arrange either an in-person or a virtual meeting to discuss the procedures.

2-    The country should provide the DFR with a list of names, photos, or any other relevant information about their nationals.

3-    The DFR will share the list with the Camps Administration and Rehabilitation Centres to identify them, check their conditions, and facilitate and arrange the repatriation process.

4-    The DFR will communicate with the country to set a convenient date, agreed upon by both sides, for repatriation. An official delegation representing the Ministry of Foreign Affairs is expected to visit NES to take back their citizens.

5-    The DFR will provide logistical support to facilitate the process, and will send the protocol officers to accompany the delegation from the border to the headquarters of the DFR in Qamishli, where the delegation will receive their citizens.

6-    The two sides will sign a repatriation document that is prepared by the DFR, and each party will get a signed copy.

7-    The head of the visiting delegation is expected to make a short media statement to thank the AANES for its cooperation and for facilitating the process of repatriation and providing care for their citizens during their presence in the AANES regions. They should kindly refer to and acknowledge the sacrifice of the Syrian Democratic Forces and their role in fighting against terrorism. Any further remarks can be added to the statement, if the delegation so desire.

8-    The repatriation is usually conducted [place details redacted]. However, the AANES is open to consider other options.

9-    We enclose a copy of the repatriation document.

40    A copy of the repatriation document (referred to in paragraph 9 of the procedures document) is included in the evidence. It is a pro forma document with certain details to be completed, including the name of the person to be repatriated. The document has a place for it to be signed by a representative of AANES and a representative of the repatriating country.

41    On 29 September 2022, the Department of Foreign Relations of AANES sent an email to Mr Innes-Brown, acknowledging receipt of his email and stating that they would start working on the list in his email.

42    On 29 September 2022, Mr Innes-Brown sent an email in reply, expressing his thanks for “this very welcome and prompt response”.

43    On 2 October 2022, Mr Innes-Brown sent an email to the Department of Foreign Relations of AANES. The email referred to the repatriation procedures document and stated that the formal request to repatriate the 17 people had been conveyed in his earlier email of 27 September 2022. The email set out the names again. The email also stated that the Australian Government “kindly wishes to propose that the requested repatriation of the above people take place approximately in the last week of October 2022”. The email stated that Mr Innes-Brown would travel to North-East Syria to meet with the Department of Foreign Relations to facilitate the “operation” and that he would be accompanied by a small number of Australian security personnel. The email stated that he was willing to sign a mutually agreed repatriation document, and that he was willing to make a short media statement as proposed in the repatriation procedures document.

44    On 3 October 2022, the Department of Foreign Relations of AANES sent an email to Mr Innes-Brown informing him that 27 October 2022 would be a suitable date for handing over the Australian nationals.

45    On 7 October 2022, Mr Innes-Brown sent an email to the Department of Foreign Relations of AANES. The email referred to the draft repatriation agreement and stated that the Australian Government proposed a minor change to one of the paragraphs. This change was agreed to in a subsequent email.

46    During October 2022, further emails were exchanged between Mr Innes-Brown and the Department of Foreign Relations of AANES regarding the details of the arrangements for the repatriation of the 17 people.

47    DFAT co-ordinated engagement with foreign governments and local authorities for the purpose of seeking clearance to travel through foreign territory with the women and children and co-operation on travel logistics. This was necessary because the women and children were to travel back to Australia through other territory rather than directly.

48    Commonwealth agencies took steps to obtain and document the informed consent of the four Australian women and their children. To provide informed consent, they needed to understand the nature of the proposed travel and the risks associated with that travel.

49    To effect the repatriation, DFAT officials were required to be deployed to, and undertake activities in, places with a dangerous security situation and which are designated by the Australian Government as Do Not Travel locations for this reason.

50    DFAT (specifically, CCD) had to arrange appropriate transportation for the women and children and accompanying Australian officials to Australia. This included ground transportation and a charter flight with medical professionals.

51    The evidence includes a DFAT file note of a meeting on 24 October 2022. This is a record of a meeting between a DFAT officer or representative and AANES. The file note records that the purpose of the meeting was “to co-ordinate arrangements for the repatriation of Cohort 1 on 27 October”, that is, the four women and their 13 children. The file note contains several further references to that group as “Cohort 1”. The file note includes:

… The Administration was eager to assist with a successful repatriation, but indicated they too had established a set of processes which they used with all countries conducting repatriation.

…

In closing the meeting [name redacted] stated that they saw the repatriation as a humanitarian activity and indicated that they look forward to future cooperation with Australia on foreign relation[s], humanitarian issues and the economy.

52    On 27 October 2022, Mr Innes-Brown met with AANES, signed the repatriation document as representative of the Australian Government and issued a short media statement on behalf of the Australian Government. On the same day, the four women and their children were released by AANES to the Australian Government. The women and children were then repatriated to Australia.

53    On 28 October 2022, Mr Innes-Brown sent an email to others at DFAT reporting on his meeting with AANES on the day of the repatriation (27 October 2022). He stated that the formalities “went smoothly” and that the meeting “was conducted in a positive tenor”. Attached to the email was a copy of the signed repatriation document. Mr Innes-Brown stated that he would write a full record when he returned the following week.

54    The evidence includes a file note prepared by Mr Innes-Brown of his meeting with AANES on 27 October 2022. The file note includes:

[name redacted] said AANES was appreciative of the efforts of the Australian Government to repatriate some women and children. At all times AANES had sought to play a facilitation role. They believed that women and children were victims of this war. For years AANES had been asking for a solution to ISIS families as the facilities of AANES were unable to deal with this challenge alone. Therefore they appreciated the Australian Government’s repatriation decision. He hoped this would lead to cooperation – not just on the repatriation – with AANES to support the establishment of security in the region.

…

I (Marc Innes-Brown) said the Australian Government was very appreciative of the cooperation of the Syrian Kurd authorities on repatriation arrangements. The cooperation had been very smooth. I also thanked them for the care they had provided to these Australian citizens over recent years. I also acknowledged the sacrifices made by the Syrian Kurds in the fight against Daesh (very similar to my public statement made at the conclusion of the meeting).

[name redacted] said he wished to reassure me that AANES was ready to cooperate with Australia to achieve humanitarian outcomes. …

Noting the plan to repatriate further groups of women and children and the long distance from Australia, I asked whether it would be necessary to travel to North and East Syria as part of this process. [name redacted] said yes – they preferred to have a senior Government official attend to take responsibility.

Additional notes: At no point did I make any commitment to undertake wider cooperation and/or provide funding for AANES. …

55    On the basis of the facts and matters, and evidence, set out above, I find that:

(a)    it was necessary for the Australian Government to make an official request to repatriate the four Australian women and their children before they would be released;

(b)    AANES agreed to the request for repatriation of the women and children, subject to compliance with its procedural requirements;

(c)    AANES imposed certain procedural requirements in connection with repatriation of the women and children, including that a repatriation document be signed by a representative of the Australian Government and that the head of the visiting delegation make a short media statement as set out in paragraph 7 of the repatriation procedures document (see [39] above);

(d)    the Australian Government was willing to accept the procedural requirements in order to repatriate the women and children; and

(e)    AANES co-operated fully with the Australian Government to repatriate the women and children.

56    To the extent that the email dated 28 September 2022 (see [38] above) may suggest that a media statement was not a requirement and was merely optional, the evidence as a whole suggests that it was a requirement.

57    Although the file note of the meeting on 24 October 2022 (see [51] above) describes the group of four women and their children as “Cohort 1” and Mr Innes-Brown’s file note of his meeting on 27 October 2022 (see [54] above) refers to “the plan to repatriate further groups of women and children”, I am not satisfied that any agreement or arrangement was reached at that time between the Australian Government and AANES regarding the repatriation of the remaining Australian women and their children in the Al-Roj camp. A process of discovery has taken place in this proceeding and the respondents have not produced any document resembling (or evidencing) an agreement or arrangement between the Australian Government and AANES regarding the repatriation of the remaining Australian women and their children. The description “Cohort 1” is consistent with there being an expectation or proposal that further repatriations would be requested. It does not establish that there was an agreement or arrangement to repatriate the remaining Australian women and children. Read in context, the word “plan” indicates that, at that time, the Australian Government was planning to request more repatriations. However, this falls short of an agreement or arrangement between the Australian Government and AANES for that to occur. The repatriation procedures document (see [39] above) and the whole process undertaken in connection with the October 2022 repatriation makes clear that it would be necessary for the Australian Government to make a request for repatriation in relation to some or all of the remaining women and children and that any such request would then be considered by AANES; it would also be necessary for the Australian Government to agree to the procedural requirements stipulated by AANES in relation to any such future repatriation. For these reasons, and notwithstanding that Mr Innes-Brown and the other Australian Government officials referred to by STCA in its closing submissions were not called, I am not satisfied that there was an agreement or arrangement to repatriate the remaining Australian women and their children.

Further repatriations

58    Based on the evidence before the Court, the Australian Government does not seem to be taking steps to repatriate the remaining Australian women and their children in the Al-Roj camp. The evidence does not explain why the Australian Government is not doing so (in circumstances where it seems that, in October 2022, it was planning to do so).

59    I infer from the facts and matters set out above and the affidavit evidence of Ms Logan (at paragraph 69) and Ms Spencer (at paragraph 13) that, if the Australian Government were to request the repatriation of some or all of the Australian women and their children held in the Al-Roj camp, it is likely that AANES would agree to their repatriation, and co-operate fully to achieve their repatriation, subject to compliance with its procedural requirements. The evidence establishes that AANES wants countries such as Australia to repatriate their citizens and that keeping them in camps is a burden on AANES. The evidence relating to the October 2022 repatriation shows that AANES co-operated fully with the Australian Government to achieve the repatriation of the four women and their children.

Consideration

Habeas corpus

60    As set out in the Introduction, STCA contends that, where it appears that the respondent to an application for a writ of habeas corpus has control over the detention of the relevant person or, at least, the Court entertains a doubt as to whether the respondent has control, the Court can use the “pressure of the writ” to test the truth of the respondent’s assertion of a lack of control. STCA relies on Barnardo, O’Brien and Rahmatullah in support of that contention. STCA contends that, in the present case, it appears that the respondents have control over the detention of the relevant woman and children or, at least, there is doubt as to whether the respondents have control.

61    I will put to one side, at this stage, the issue of standing. There is no issue that STCA has standing in relation to the STCA Women and Children. The issue whether a writ of habeas corpus should issue therefore needs to be considered in any event in relation to those women and children.

62    I will start by considering the three cases relied on by STCA. I approach these cases on the basis that, while not binding on me, they are persuasive authority as to the principles applicable to the writ of habeas corpus.

63    The first of the three cases, Barnardo, a judgment of the House of Lords, concerned an application by a parent for a writ of habeas corpus in respect of a child. The application was directed to Dr Barnardo, who was the head of an institution for destitute children in which the child has been placed. Dr Barnardo filed an affidavit stating that, before the commencement of the proceeding, he had handed over the child to another person (a Mr William Norton), an American, and that he (Dr Barnardo) believed that the boy had been taken by Mr Norton to Canada. Dr Barnardo further deposed that he had not, since he handed over the child, heard from the child or Mr Norton, that he did not know where the child or Mr Norton was, and that he had no means of communicating with either of them.

64    The House of Lords affirmed the decision of the Court of Appeal that a writ of habeas corpus should issue. All members of the House of Lords agreed in the result. Separate judgments were delivered by each of the Law Lords, namely Lord Halsbury LC, Lord Watson, Lord Herschell, Lord Macnaghten, Lord Morris and Lord Hannen. Lord Morris agreed with the reasons given in the Queen’s Bench Division and in the Court of Appeal. Lord Hannen agreed with the reasons of Lord Herschell.

65    Lord Halsbury referred (at 332) to the fact that, late in the argument, it became apparent that the parties (or, at least, one of them) did not consider that all the facts had already been ascertained, and desired a return to the writ so that, upon the return, further questions of evidence might be raised. Lord Halsbury stated (at 333) that where a Court is satisfied that illegal detention has ceased before the application for the writ was made, the writ ought not issue “as it is not the appropriate procedure for punishing such conduct”. However, treating the facts of the present case as still open to inquiry, he held that the appeal should be dismissed (i.e. the writ should issue) on the ground that “the respondents have a right to the return”.

66    Lord Watson’s judgment was similar to that of Lord Halsbury. Lord Watson stated (at 333) that the remedy of habeas corpus “was not meant to afford the means of inflicting penalties upon those persons by whom they were at some time or other illegally detained”. Lord Watson stated (at 335) that, where it is shown to the satisfaction of the Court that the person charged with unlawfully detaining a child or adult had de facto ceased to have any custody or control, the writ should not issue. However, he agreed (at 336) with the opinion of the other Law Lords that the present case “may be more conveniently disposed of after a return has been made to the writ”.

67    Lord Herschell stated (at 338) that he could not feel satisfied that it is not a good return to the writ that the person to whom it relates was not at the time it was issued in the custody, power or control of the person on whom it is served. His Lordship stated (at 339-340):

Where any tribunal believes that a person is or may be under detention in unlawful custody, and issues a writ of habeas corpus accordingly, no Court of Appeal ought lightly to interfere with the issue of the writ. The order for its issue ought only to be set aside if there be, beyond question, no ground for it. If, for example, in the present case it had been an admitted fact that before notice of the application for the writ the appellant had ceased to have the custody of or any control over the boy alleged to be detained, that might have been ground for reversing the order of the Queen’s Bench Division. But where the Court entertains a doubt whether this be the fact, it is unquestionably entitled to use the pressure of the writ to test the truth of the allegation, and to require a return to be made to it. Now, it is impossible to read the judgment of the Lord Chief Justice without seeing that he did entertain such a doubt, and that he was not prepared upon the affidavits to accept as conclusive the statements of the appellant. At your Lordships’ bar the counsel for the respondent contended that they had a right to cross-examine the appellant, and that the proper occasion on which to try the question was when he had returned to the writ that he was not detaining the child, and that it was not, at the time the writ was issued, in his custody, power, or control. I think this view is the correct one; the truth of the return may, no doubt, be put in issue, and I feel myself unable to advise your Lordships that the Queen’s Bench Division were not in point of law justified in issuing the writ.

(Emphases added.)

68    Lord Macnaghten stated (at 340) that he could not say that this is a case in which there ought not be an opportunity of further inquiry into the circumstances under which Dr Barnardo parted with the child, and “ascertaining beyond all doubt whether the child is or is not still under Dr Barnardo’s control or within his reach”.

69    The second case relied on by STCA is O’Brien, a judgment of the English Court of Appeal. An appeal to the House of Lords was dismissed on jurisdictional grounds (see below).

70    The background facts were as follows. Regulation 14B of the Restoration of Order in Ireland Regulations 1920 (UK) gave the Secretary of State for Home Affairs (the Home Secretary) power to order the internment in a place in the British Islands of any person suspected of acting, or having acted, or being about to act, in a manner prejudicial to the restoration or maintenance of order in Ireland. On 5 December 1922, the Irish Free State Constitution Act 1922 (UK) was passed. By the Act, the Irish Free State was given a distinct and independent executive. On 7 March 1923, the Home Secretary made an order under reg 14B that Mr O’Brien, who was then residing in England, should be interned in such place in the Irish Free State as the Irish Free State Government should determine. Mr O’Brien was arrested in London under that order and conveyed to Dublin, where he was interned in Mountjoy Prison. There was an agreement between the Home Secretary and the Irish Free State Government that, if a certain advisory committee reported that Mr O’Brien ought not to have been interned, the Irish Free State Government would release him. Mr O’Brien applied to a Divisional Court for a rule nisi for a writ of habeas corpus directed to the Home Secretary.

71    In his affidavit, the Home Secretary stated that Mr O’Brien was in the custody and control of the Governor of the Mountjoy Prison and that the Governor of the prison was an official of the Irish Free State Government and was not subject to the orders or directions of the Home Secretary or the British Government.

72    The Divisional Court refused the rule nisi. Mr O’Brien applied to the Court of Appeal, which granted a rule nisi. At the subsequent hearing before the Court of Appeal, the Home Secretary contended (among other things) that the application was directed against the wrong person. It was contended that any writ of habeas corpus should be directed to the person who has control of the applicant’s body, who in this case was the Governor of Mountjoy Prison. It was contended that the fact that the Home Secretary ordered the arrest did not make him a proper person to whom to direct the writ.

73    The Court of Appeal held that the rule nisi be made absolute (in effect, that a writ of habeas corpus issue against the Home Secretary). There are two aspects to the Court’s reasoning. First, the Court held that reg 14B was inconsistent with the Irish Free State Constitution Act 1922, and was impliedly repealed by it, and that the order of internment was consequently invalid. Secondly, the Court held that the application was properly made against the Home Secretary. It is the Court’s reasoning on the second aspect that is relevant for present purposes.

74    Separate judgments were delivered by Bankes LJ, Scrutton LJ and Atkin LJ.

75    Bankes LJ considered (at 381) the Home Secretary’s contention that, as Mr O’Brien had been deported to and was interned in the Irish Free State, the Home Secretary no longer had any power or control over him (except insofar as the Irish Free State Government had agreed that, in the event the advisory committee decided that Mr O’Brien ought not to have been deported and interned, they would release him). Bankes LJ referred to statements made by the Home Secretary in the House of Commons to the effect that he had not lost control over persons who, by his orders, had been interned in the Irish Free State. Bankes LJ stated (at 381):

In his affidavit he [i.e. the Home Secretary] states that the Governor of the Mountjoy Prison is an official of the Free State Government, and is not subject either to his orders or to those of the British Government. This is no doubt an accurate statement in reference to the Governor of the prison, but it leaves the question in doubt how far, if at all, by arrangement with the Free State Government the body of the applicant is under the control of the Home Secretary. This question cannot, I think, be satisfactorily disposed of unless the rule is made absolute which will give the Home Secretary the opportunity, if he desires to take advantage of it, of making the position clearer than at present it appears to be. This was the course taken in Barnardo v. Ford, and is, in my opinion, the appropriate course to take in the present case. The order, therefore, is made absolute.

(Footnote omitted.)

76    Scrutton LJ considered (at 391-392) the question whether a writ of habeas corpus was the appropriate remedy for the illegality of the order and detention. Scrutton LJ stated (at 391):

Now it has been laid down by the House of Lords in Barnardo v. Ford that if the Court is satisfied that the body whose production is asked is not in the custody, power or control of the person to whom it is sought to address the writ, a writ of habeas corpus is not the proper remedy, though there was an original illegal taking and detention. The object of the writ is not to punish previous illegality, but to release from present illegal detention. I do not wish to tie myself to the exact degree of power over the body which justifies the issue of the writ, for various high authorities have used different words. Lord Herschell’s language is “custody, power or control”; Lord Macnaghten’s “under control or within reach”; Lord Halsbury’s “wrongful detention by himself or his agent.”

(Footnotes omitted.)

77    After referring to the Home Secretary’s statement in the House of Commons that he had not lost control over internees in the Irish Free State, and the Home Secretary’s affidavit evidence that Mr O’Brien was in the custody or control of an Irish official who was not subject to the orders or directions of the Home Secretary, Scrutton LJ stated (at 392):

On this conflicting evidence, all proceeding from the Home Secretary himself, it appears to me quite doubtful whether or not, if an order is made for the production of the body, the Home Secretary can or cannot produce that body. Under these circumstances I think the proper course to follow is that affirmed by the House of Lords in Barnardo v. Ford.

(Footnote omitted.)

78    Atkin LJ considered (at 398-399) the question whether the writ should go to the Home Secretary. In relation to this issue, Atkin LJ stated in part (at 398-399):

I think that the question is whether there is evidence that the Home Secretary has the custody or control of the applicant. Actual physical custody is obviously not essential. “Custody” or “control” are the phrases used passim in the opinions of the Lords in Barnardo v. Ford, and in my opinion are a correct measure of liability to the writ.

…

In testing the validity of the order the question is as to the legal right to control; in testing the liability of the respondent to the writ the question is as to de facto control. In all cases of alleged unjustifiable detention such as arise on applications for the writ of habeas corpus the custody or control is ex hypothesi unlawful; the question is whether it exists in fact. In the present case there may be some doubt. The Home Secretary by the Attorney-General alleged that he has no control; on the other hand the applicant by his affidavit submits reasons for supposing that the Home Secretary is in a position by agreement to cause him to be returned to England, while the answer of the Home Secretary does not in terms deny that he is in such a position; and refrains from stating that he has no control.

The affidavit states that the applicant is in the control of the governor of the prison, and is not subject to the Home Secretary’s orders, but this is by no means inconsistent with an agreement with the Free State Government to return on request. I think moreover that the applicant strengthens his case by the reference to the debate in Parliament on Monday, March 19, 1923, a report of which was put in. But without further explanation it seems to me that much support for the contention that the Home Secretary retains de facto control is afforded by the words of the order itself, a copy of which is served on the applicant. The order is that the applicant shall “be interned in the Irish Free State . . . . and shall remain there until further orders.” It was conceded that the ordinary interpretation of those words would be until further orders by the Home Secretary, though it was said that in fact he had no power to give such orders. I cannot without further explanation accept this.

…

I cannot explain these provisions on the footing that there is no de facto control. In this case it is plain that the applicant was at one time in the custody and control of the Home Secretary by an order which we have held to be illegal. There is, to say the least, grave doubt whether he is not still in the custody or control of the Home Secretary. The case of Barnardo v. Ford appears to me to afford ample ground for the conclusion that this Court should order the writ to go addressed to the Home Secretary in order that he may deal fully with the matter, and if he has in fact parted with control show fully how that has come about. The rule must be made absolute.

(Footnotes omitted.)

79    As noted above, an appeal to the House of Lords was dismissed on jurisdictional grounds: Secretary of State for Home Affairs v O’Brien [1923] AC 603. Lord Atkinson dissented on that issue. It appears from a passage at 624 that he approved of the Court of Appeal’s analysis.

80    The third case relied on by STCA is Rahmatullah, a judgment of the Supreme Court of the United Kingdom. The background facts were as follows. Mr Rahmatullah, a national of Pakistan, was captured by British Forces in Iraq in 2004 and handed over to United States forces, who transferred him to Afghanistan, where he was detained at a United States airbase. At that time, a memorandum of understanding between the Governments of the United States, the United Kingdom and Australia (the 2003 MoU) was in place. The 2003 MoU provided that it was to be implemented in accordance with the Geneva Convention relative to the Treatment of Prisoners of War (GC3) and the Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC4), as well as customary international law. Clause 4 of the 2003 MoU provided:

Any prisoners of war, civilian internees, and civilian detainees transferred by a detaining power [the UK] will be returned by the accepting power [the US] to the detaining power without delay upon request by the detaining power.

81    In 2008, a revised memorandum of understanding was concluded between the Governments of the United States and the United Kingdom (the 2008 MoU). (This was not signed until 2009.)

82    An application was made on behalf of Mr Rahmatullah for a writ of habeas corpus directed to the Secretary of State for Defence and the Secretary of State for Foreign and Commonwealth Affairs. The Divisional Court of the Queen’s Bench Division refused the application. On appeal, the Court of Appeal allowed the appeal and held that the writ of habeas corpus should issue: Rahmatullah v Secretary of State for Defence [2011] EWCA Civ 1540; [2012] 1 WLR 1462. The United Kingdom Government then requested the United States authorities to return Mr Rahmatullah. In response, the United States authorities stated that Mr Rahmatullah’s detention was proper and consistent with the international law of armed conflict. A further hearing took place before the Court of Appeal. In a second judgment, the Court of Appeal held that the United Kingdom authorities had made a sufficient return to the writ.

83    The Secretaries of State appealed against the first judgment and Mr Rahmatullah appealed against the second judgment. The United Kingdom Supreme Court dismissed both appeals. In relation to the first judgment of the Court of Appeal, all members of the Supreme Court were of the view that the appeal should be dismissed. In relation to the second judgment of the Court of Appeal, a majority were of the view that the appeal should be dismissed (with Baroness Hale of Richmond and Lord Carnwath JJSC dissenting).

84    Reasons for judgment were delivered by Lord Kerr of Tonaghmore JSC (with whom Lord Dyson MR and Lord Wilson JSC agreed), Lord Phillips of Worth Matravers and Lord Reed JSC. A joint judgment was delivered by Lord Carnwath and Baroness Hale JJSC. For present purposes, it is sufficient to focus on the parts of the judgments dealing with the appeal from the first judgment of the Court of Appeal.

85    Lord Kerr JSC (at [17]) noted evidence (on behalf of the Secretaries of State) that the 2008 MoU was designed to replace and supersede the 2003 MoU. Lord Kerr JSC stated that he was not disposed to accept that claim (for reasons he gave). He also stated that, even if the 2008 MoU did indeed supersede the 2003 MoU, there was no reason to conclude that it had done so for prisoners already transferred under the earlier arrangements. He therefore considered that the UK Government remained entitled to have recourse to the 2003 MoU to demand Mr Rahmatullah’s release to them. Lord Kerr JSC stated (at [17]):

This provides a sufficient basis for the finding that there was at least uncertainty as to whether the UK could exert control over Mr Rahmatullah. That uncertainty was enough to justify the issue of the writ.

86    Lord Kerr JSC set out some general principles regarding habeas corpus at [41]-[44]. This section included (at [43]):

The effectiveness of the remedy would be substantially reduced if it was not available to require someone who had the means of securing the release of a person unlawfully detained to do so, simply because he did not have physical custody of the detainee—“actual physical custody is obviously not essential” per Atkin LJ in Ex p O’Brien [1923] 2 KB 361, 398 and Vaughan Williams LJ in R v Earl of Crewe, Ex p Sekgome [1910] 2 KB 576, 592, stating that the writ “may be addressed to any person who has such control over the imprisonment that he could order the release of the prisoner”.

87    The next section of the judgment, at [45]-[64], concerned “control”. Lord Kerr JSC stated (at [45]):

At the heart of the cases on control in habeas corpus proceedings lies the notion that the person to whom the writ is directed has either actual control of the custody of the applicant or at least the reasonable prospect of being able to exert control over his custody or to secure his production to the court. Thus in Barnardo v Ford [1892] AC 326 where the respondent to the writ had consistently claimed to have handed the child, who was the subject of the application, over to someone whom he was no longer able to contact, the courts nevertheless ordered that the writ should issue because they entertained a doubt as to whether he had indeed relinquished custody of the child. There was therefore a reasonable prospect that the respondent, despite his claims, either had or could obtain custody of the child.

(Emphasis added.)

88    Lord Kerr JSC discussed O’Brien, stating (at [48]) that “there was at least a reasonable prospect that the Home Secretary could procure Mr O’Brien’s return to England”. Lord Kerr JSC stated (at [48]):

This highlights the factual nature of the inquiry that must be made as to whether a sufficient degree of control exists. It is not simply a question of the legal enforceability of any right to assert control over the individual detained. The question is, as Atkin LJ put it, whether control “exists in fact”.

89    At [52], Lord Kerr JSC stated that a critical, if not the central, issue in O’Brien was “that there was reason to conclude that the Home Secretary had control over Mr O’Brien’s release”. Lord Kerr JSC stated (at [52]):

Habeas corpus was issued in his case not simply because it was held that he had been deported and interned on foot of an order which, it was found, had not been lawfully made. The issue of the writ depended crucially on the finding that it was likely that the Home Secretary could procure Mr O’Brien’s release.

90    At [55]-[57], Lord Kerr JSC discussed Ex parte Mwenya [1960] 1 QB 241, noting that there was a clear distinction between the facts of that case and those of O’Brien. Lord Kerr JSC stated (at [57]): “Whereas in O’Brien there were “strong grounds” for believing that the Home Secretary had not lost control over Mr O’Brien’s detention, in Mwenya no such grounds existed.”

91    In the course of rejecting an argument that the writ in the present case had the effect of requiring the Secretaries of State to engage at a diplomatic level with the custodian state, the US, Lord Kerr JSC stated (at [60]):

… In the first place, the Court of Appeal’s decision [i.e. in the present case] does not amount to an “instruction” to the Government to demand Mr Rahmatullah’s return. Its judgment merely reflects the court’s conclusion that there were sufficient grounds for believing that the UK Government had the means of obtaining control over the custody of Mr Rahmatullah. On that basis the court required the Secretaries of State to make a return to the writ. The essential underpinning of the court’s conclusion was that there was sufficient reason to believe that the Government could obtain control of Mr Rahmatullah. It might well prove that the only means of establishing whether in fact it could obtain control was for the Government to ask for his return but that remained a matter for the ministers concerned. The Court of Appeal’s judgment did not require the Secretaries of State to act in any particular way in order to demonstrate whether they could or could not exert control. What it required of them was that they show, by whatever efficacious means they could, whether or not control existed in fact.

92    At [61]-[62], Lord Kerr JSC discussed In re Sankoh (2000) 119 ILR 386. Lord Kerr JSC concluded his discussion of “control” as follows:

63    For the reasons that I have given at para 60 above, I do not consider that the effect of the Court of Appeal’s decision in the present case is to require the British Government to engage in a process of persuasion. It does not involve an attempt to “dictate to the executive government steps that it should take in the course of executing Government foreign policy”. Rather it requires the Government to test whether it has the control that it appeared to have over the custody of Mr Rahmatullah and to demonstrate in the return that it makes to the writ that, if it be the case, it does not have the control which would allow it to produce the body of [Mr Rahmatullah] to the court.

64    An applicant for the writ of habeas corpus must therefore demonstrate that the respondent is in actual physical control of the body of the person who is the subject of the writ or that there are reasonable grounds on which it may be concluded that the respondent will be able to assert that control. In this case there was ample reason to believe that the UK Government’s request that Mr Rahmatullah be returned to UK authorities would be granted. Not only had the 2003 MoU committed the US armed forces to do that, the Government of the US must have been aware of the UK Government’s view that Mr Rahmatullah was entitled to the protection of GC4 and that, on that account, it was bound to seek his return if (as it was bound to do) it considered that his continued detention was in violation of that Convention.

(Emphasis added.)

93    I turn now to the other judgments. Lord Phillips of Worth Matravers stated (at [90]-[91]):

90    Habeas corpus will lie not merely against a defendant who is himself detaining the prisoner, but against a defendant who holds the prisoner in his custody or control through another.

91    Typically habeas corpus lies against a defendant who is detaining the prisoner within the jurisdiction of the court. Where a defendant, who is within the jurisdiction, has unlawfully detained the prisoner within the jurisdiction and unlawfully taken him out of the jurisdiction, where he still holds him in his custody or control, habeas corpus will also lie.

94    Lord Phillips stated (at [92]) that the English courts had issued the writ of habeas corpus in two cases “where the defendant had unlawfully removed the prisoner from the jurisdiction and where it was uncertain whether the defendant retained sufficient control over the prisoner to procure his release”, referring to Barnardo and O’Brien. In these cases, the “object of the issue of the writ was to put that question to the test”. Lord Phillips stated that the principal issue was whether what he called “the O’Brien approach” should be adopted on the facts of the present case.

95    Lord Phillips referred to an “unexplored issue”, namely, that no one had suggested that the UK forces acted unlawfully in detaining Mr Rahmatullah in Iraq or in then transferring him to the custody of the United States forces. Putting to one side the unexplored issue, Lord Phillips agreed (at [98]) with the judgment of Lord Kerr JSC.

96    Lord Reed JSC stated (at [108]) that he agreed with the conclusion that the appeal by the Secretaries of State should be dismissed, but he reached that conclusion for reasons that he would express “more narrowly” than Lord Kerr JSC. Lord Reed JSC stated (at [109]-[110]):

109    As Lord Phillips of Worth Matravers has explained, the writ of habeas corpus requires a respondent who is detaining a person (“the prisoner”) to produce him before the court and to justify his detention. If the respondent cannot justify his detention of the prisoner, he will be ordered to release him. His failure to comply with such an order will fall within the scope of the court’s jurisdiction to deal with contempt. It follows that the appropriate respondent to the writ is in principle the person who has custody or control (or, as it has sometimes been put, actual custody or constructive custody) of the prisoner: that is to say, either the actual gaoler, or some other person who has “such control over the imprisonment that he could order the release of the prisoner”: R v Earl of Crewe, Ex p Sekgome [1910] 2 KB 576, 592, per Vaughan Williams LJ. As Scrutton LJ said in R v Secretary of State for Home Affairs, Ex p O’Brien [1923] 2 KB 361, 391, if the court is satisfied that the body whose production is asked is not in the custody, power or control of the person to whom it is sought to address the writ, a writ of habeas corpus is not the proper remedy.

110    Cases can arise in which it is uncertain whether the respondent has sufficient control of the prisoner’s detention to be required to justify his detention and to be ordered to release him. In such a case, the court can issue the writ so that it can determine the question of control on the return, with a fuller knowledge of the facts. Barnardo v Ford [1892] AC 326 and Ex p O’Brien are examples.

97    At [112], Lord Reed JSC stated that the Court of Appeal, on the basis of its analysis of the evidence, concluded “that there was sufficient uncertainty to justify the issue of the writ”. Lord Reed JSC stated that this appeared to have been a “reasonable conclusion”. He then set out the relevant facts that supported that conclusion.

98    Lord Reed JSC stated, at [115], that he considered it important that Mr Rahmatullah was initially detained by British forces, with the consequence that the question was whether the Secretaries of State’s control over him had been relinquished. Otherwise, there may be insufficient connection with the jurisdiction. Lord Reed JSC also stated that, like Lord Phillips, he would wish to reserve his opinion on the unexplored issue.

99    Lord Carnwath and Baroness Hale JJSC stated (at [118]) that, on the issue of control, “the effect of the two MoUs concluded in 2003 and 2008 is crucial”. They considered it doubtful whether provisions of an international treaty (GC4) could on their own be relied on as giving control for the purposes of the domestic law of habeas corpus. They considered (at [119]) clause 4 of the 2003 MoU to be “crucial” because, on the evidence, “it was designed specifically to ensure that the United Kingdom did retain control over the continuing legality of the detention”. They noted (at [120]) the possible issue as to whether the 2008 MoU, which did not contain an equivalent clause, was intended to alter the position in relation to those already detained. They said that the evidence was equivocal on this point and the document did not in terms have that effect. Lord Carnwath and Baroness Hale JJSC stated (at [121]) that they were not unduly concerned by the unexplored issue identified by Lord Phillips and Lord Reed JSC, explaining their reasons for holding that view. Lord Carnwath and Baroness Hale JJSC stated (at [123]):

As to the authorities, we accept of course that there are factual differences from O’Brien, in particular because in that case, unlike the present, the original detention was itself unlawful. However, habeas corpus is equally applicable where detention, originally lawful, later becomes unlawful. It is true also that in this case the illegality of the detention arose through the actions of the US, rather than the UK, and at a time when the UK no longer had actual custody. However, it is difficult to see why this should make a difference in principle. Since illegality of detention is presumed in favour of the applicant, it should not be a defence for the UK to say that it arose from someone else’s actions, if the UK has the practical ability to bring it to an end.

100    I note that O’Brien and Rahmatullah were referred to by Gageler J in Plaintiff M68/2015 v Minister for Immigration and Broder Protection [2016] HCA 1; 257 CLR 42 at [165]. His Honour stated:

Amenability to the writ is determined solely as a question of whether the person to whom the writ is addressed has de facto control over the liberty of the person who has been detained, in relation to which actual physical custody is sufficient but not essential.

In support of that proposition, Gageler J cited O’Brien at 391 and 398 and Rahmatullah at [43] and [109].

101    The principles discussed in O’Brien and Rahmatullah were considered by the England and Wales Court of Appeal in C3. STCA submits that aspects of the reasoning of the Court of Appeal express the principles more narrowly than the judgments in Rahmatullah. For present purposes, it is sufficient to focus on the three cases relied on by STCA.

102    I do not consider it necessary to discuss the judgment in Hicks v Ruddock [2007] FCA 299; 156 FCR 574 (Hicks), as this concerned a strike-out application rather than a judgment on whether the writ of habeas corpus should issue.

103    The following propositions emerge from the cases discussed above:

(a)    For a defendant or respondent to be amenable to a writ of habeas corpus, actual physical custody of the relevant person is not essential; it is sufficient if the defendant or respondent has control over the detention of the relevant person: O’Brien at 398 per Atkin LJ; Rahmatullah at [43] per Lord Kerr JSC, at [90]-[91] per Lord Phillips of Worth Matravers, at [109] per Lord Reed JSC.

(b)    The question whether a defendant or respondent has control over the detention of the relevant person is concerned with whether control exists in fact (as distinct from in law): O’Brien at 398 per Atkin LJ; Rahmatullah at [48] per Lord Kerr JSC.

(c)    Control may be established, for example, where there is an agreement or arrangement (whether or not legally enforceable) between the person who is detaining the relevant person and the defendant/respondent whereby the relevant person will be handed over upon demand: O’Brien at 398-399 per Atkin LJ.

(d)    If the Court is satisfied that the relevant person is not in the custody or control of a defendant or respondent, a writ of habeas corpus ought not issue: Barnardo at 335 per Lord Watson; O’Brien at 391 per Scrutton LJ; Rahmatullah at [109] per Lord Reed JSC.

(e)    Where a defendant or respondent contends that he or she does not have custody or control over the relevant person, and the Court is left in doubt about the matter, it is open to the Court to use the “pressure of the writ” to test whether the defendant’s or respondent’s contention is correct: Barnardo at 339 per Lord Herschell; O’Brien at 381 per Bankes LJ, at 392 per Scrutton LJ, at 399 per Atkin LJ; Rahmatullah at [45], [60], [63]-[64] per Lord Kerr JSC, [92] per Lord Phillips of Worth Matravers, [110] per Lord Reed JSC.

104    Applying these propositions in the present case, I am satisfied (on the balance of probabilities) that the relevant women and children are not in the custody or control of the respondents.

105    Plainly, they are not in the custody of the respondents; they are in the custody of the AANES and/or the SDF.

106    As for control, there is no agreement or arrangement between the Australian Government and AANES relating to the release or repatriation of the relevant women and children. Thus, the Australian Government does not have the power to effect their release or repatriation. All that the Australian Government has is the ability to request repatriation of the relevant woman and children. While it is likely that any such request will be agreed to by AANES (subject to compliance with procedural requirements), it cannot be assumed that AANES will agree. That is a decision for AANES to make upon receipt of a request. The ability to request the release or repatriation of the relevant women or children, in the absence of an agreement or arrangement that any such request will be agreed to, does not amount to control over the detention of the relevant women and children. For these reasons, in my view, the respondents do not have control over the detention of the relevant women and children. To the extent that the expert evidence expresses a contrary opinion, I do not accept that opinion, for the reasons I have given.

107    The facts of the present case are quite unlike those of Barnardo, O’Brien and Rahmatullah. In Barnardo, Dr Barnardo had previously had custody of the child and it was unclear on the evidence whether he had ceased to have control. In O’Brien, Mr O’Brien had previously been in the custody or control of the Home Secretary and there was evidence that suggested that the Home Secretary retained de facto control. In particular, the order stated that Mr O’Brien was to “be interned in the Irish Free State … and shall remain there until further orders”. In Rahmatullah, clause 4 of the 2003 MoU provided that any prisoners of war, civilian internees and civilian detainees transferred by a detaining power (the UK) would be returned by the accepting power (the US) to the detaining power “without delay upon request by the detaining power”. This appeared to give the United Kingdom the ability to effect the release of Mr Rahmatullah.

108    I accept that, in some circumstances, where the Court is left in doubt as to whether a respondent has custody or control over the relevant person, it is open to the Court to use the “pressure of the writ” to test whether the respondent’s contention (of lack of custody or control) is correct. However, I do not consider this approach to be appropriate in the circumstances of the present case. The question of control has already been the subject of extensive evidence led by both sides. I consider that this evidence makes clear that there is no agreement or arrangement between the Australian Government and AANES regarding release or repatriation of the relevant women and children and that the Australian Government does not otherwise have control over the detention of the relevant women and children. In these circumstances, a further hearing on the return of the writ is not necessary to ascertain the true position or to test whether the respondents’ contentions are correct. Therefore, I do not consider the approach adopted in Barnardo, O’Brien and Rahmatullah to be appropriate in the circumstances of this case.

109    Given the above, it is unnecessary to consider the issue of standing (in relation to the relevant women and children who are not STCA Woman and Children).

110    For these reasons, I conclude that a writ of habeas corpus should not issue.

Judicial review

111    In the alternative to the application for the issue of a writ of habeas corpus, STCA seeks judicial review. STCA’s judicial review case is put on two alternative bases: the first basis is that the Minister for Home Affairs or another officer of the Commonwealth has made a decision not to repatriate (or not to seek the repatriation of) the relevant women and children; the second basis is that the respondents have not made a decision whether or not to repatriate (or seek the repatriation of) the relevant women and children. Each will be considered in turn.

112    Again, I will put the issue of standing to one side initially, given that the issues need to be determined in any event as regards the STCA Women and Children.

First alternative basis: a non-repatriation decision has been made

113    In its amended concise statement, STCA sets out the following factual contentions in support of the proposition that a non-repatriation decision has been made. STCA contends that:

(a)    On 19 May 2023, following much correspondence between STCA and the respondents about the repatriation of the remaining Australian women and children, STCA wrote to the Minister for Home Affairs to ask that the Commonwealth executive make a decision about them equivalent to the decision to repatriate the four women and their 13 children that had been made in 2022 (referred to by STCA as a “further repatriation decision”). The request attached: (1) the Tinkler Statement; (2) an expert report prepared by Professor Newton; (3) an expert report, and supplementary expert report, prepared by Dr Haidar; and (4) an expert report prepared by former Ambassador Galbraith. Noting the long period of time the executive had had to consider making a further repatriation decision, STCA requested that a decision be made by 26 May 2023. STCA stated that if the Minister for Home Affairs failed by 26 May 2023 to make, or to decide to not make, a further repatriation decision, STCA would infer, having regard to the time the executive had had to make a further repatriation decision, that the executive had decided to not make a further repatriation decision. STCA sent the Minister for Home Affairs a supplementary letter on 23 May 2023.

(b)    On 26 May 2023, an officer of the Commonwealth wrote to STCA, informing it that he was unable to respond to the request. The only reasons provided in the 26 May 2023 letter for not having made a further repatriation decision were “[r]epatriations are a complex undertaking and at all times the focus is on the safety and security of all Australians as well as the safety of those who would be involved in any operation”.

(c)    In all the circumstances, it may be inferred that the Minister for Home Affairs or another officer of the Commonwealth has decided not to make a further repatriation decision for the remaining Australian women and children.

114    While it is true that, as noted above, the Australian Government does not seem to be taking steps to repatriate the remaining Australian women and their children in the Al-Roj camp, there is no evidence that establishes that a decision has been made not to repatriate (or not to seek the repatriation of) the women and children. There is no documentary evidence of such a decision. I am not prepared to infer from the letters sent by STCA to the Minister for Home Affairs dated 19 May 2023 and 23 May 2023, and the time that has elapsed since then without a positive decision having been made to seek to repatriate the women and children, that a decision has been made not to do so. Further, I note that, in paragraph 9 of her affidavit, Ms Spencer gives evidence:

I haven’t been directed on the timing of any possible or future repatriation of the remaining Australian women and children. Nor have I been informed that a decision not to repatriate the remaining Australian women and children has been made.

115    I accept the evidence of Ms Spencer, which was not challenged.

116    Having regard to the above facts and matters, I am not satisfied that a decision has been made not to repatriate (or not to seek the repatriation of) the relevant women and children. It follows that the application for judicial review on this basis must be rejected.

117    It is therefore unnecessary to consider the grounds of review relied on by STCA. It is also unnecessary to consider the issue of standing.

Second alternative basis: a decision has not been made

118    The alternative basis for STCA’s judicial review case is that a decision whether or not to repatriate (or seek the repatriation of) the relevant women and children has not been made. In light of the above, I accept that no decision has been made.

119    STCA contends that the respondents have failed to make a decision whether or not to repatriate (or seek the repatriation of) the relevant women and children, in circumstances where they are required to make such a decision: see the amended concise statement, paragraph 25; STCA’s outline of submissions, paragraph 105. It is on this basis that STCA seeks mandamus or an injunction compelling the Minister for Home Affairs or an appropriate officer of the Commonwealth to consider STCA’s letters dated 19 May 2023 and 23 May 2023 and to decide whether or not to repatriate the relevant women and children (see [3(e)] above).

120    The difficulty with that contention is that it is not established that the respondents were or are required to make a decision whether or not to repatriate (or seek the repatriation of) the relevant women and children. Insofar as STCA relies on authorities regarding citizenship at paragraphs 15-18 of its amended concise statement, these establish that, in principle, Australian citizens have a right to return to Australia. However, that is a very different proposition from the Australian Government being under a legal obligation to undertake repatriation of Australian citizens who are overseas. In STCA’s outline of submissions at paragraph 105, footnote 191, it cites Hicks at [61] and C3 at [59] in support of the proposition that it is incumbent on the respondents to make such a decision. However, Hicks at [61] merely sets out Mr Hicks’s submissions (to the effect that the executive has a duty to protect citizens) rather than reasoning of the Court. In C3 at [59], Underhill LJ stated that he believed that the only proper vehicle for the appellants’ case was a claim for judicial review, in which the Court would consider the lawfulness of the Foreign Secretary’s refusal of assistance in accordance with the principles in R (Abbasi) v Secretary of State for Foreign & Commonwealth Affairs [2002] EWCA Civ 159 (Abbasi). That case was discussed at [43] of the judgment of Underhill LJ in C3. It appears from that summary that Abbasi merely establishes that the Foreign Secretary may be required to give due consideration to a request for consular assistance. It does not establish that, in the present circumstances, it is incumbent on the respondents to decide whether or not to repatriate (or seek the repatriation of) the relevant women and children.

121    Insofar as STCA seeks a declaration that, in failing to make a decision to repatriate the relevant women and children, the Minister for Home Affairs or the Commonwealth acted for an ulterior purpose or acted unreasonably (see [3(d)] above), STCA did not develop this in its written or oral submissions. It appears that the application for this relief is also premised on there being a requirement to make a decision whether or not to repatriate (or seek the repatriation of) the relevant women and children. For the reasons given above, it is not established that there is any such requirement. In any event, there is no material to suggest that the respondents have acted for an ulterior purpose or acted unreasonably.

122    For these reasons, the application for judicial review on the second basis is not made out. It is therefore unnecessary to consider the issue of standing.

Conclusion

123    It follows that the application is to be dismissed. In relation to costs, I will give the parties a period of time to provide any agreed minute of orders on costs. I will make an order that, if they cannot agree, each party file and serve a short outline of submissions on costs, with the issue of costs to be determined on the papers.

Associate:

Dated:    3 November 2023