FEDERAL COURT OF AUSTRALIA Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1099 MIGRATION – order for release from detention of an unlawful non-citizen where there is no real likelihood or prospect of removal from Australia in the reasonably foreseeable future – whether further detention is lawful when there is a real likelihood or prospect of removal in the reasonably foreseeable future Migration Act 1958 Cth ss 189, 196(1)(a) and 198 Acts Interpretation Act 1901 (Cth) s 33(1) Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1009 - considered Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1037 - cited Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 - considered Plenty v Dillon (1991) 171 CLR 635 - cited Coco v The Queen (1994) 179 CLR 427 - cited R v Durham Prison Governor; Ex parte Hardial Singh (1984) 1 W.L.R. 704 - considered AKRAM OUDA MOHAMMAD AL MASRI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S135 OF 2002 MERKEL J 6 SEPTEMBER 2002 MELBOURNE (HEARD IN ADELAIDE) IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 135 OF 2002 BETWEEN: AKRAM OUDA MOHAMMAD AL MASRI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MERKEL J DATE OF ORDER: 6 SEPTEMBER 2002 WHERE MADE: MELBOURNE (HEARD IN ADELAIDE) THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. 3. The interlocutory order restraining the Minister from detaining the applicant without giving 24 hours prior notice of his intention to do so be discharged. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 135 OF 2002 BETWEEN: AKRAM OUDA MOHAMMAD AL MASRI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MERKEL J DATE: 6 SEPTEMBER 2002 PLACE: MELBOURNE (HEARD IN ADELAIDE) REASONS FOR JUDGMENT 1 The issue in the present case is whether a power has been conferred on the Minister under the Migration Act 1958 Cth ("the Act") to further detain the applicant, an unlawful non-citizen who has been released from detention because the Court found there was no reasonable likelihood or prospect of his removal from Australia in the reasonably foreseeable future, when circumstances change so that there is a reasonable likelihood of the applicant's removal from Australia in the immediate future. 2 In Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1009 ("Al Masri") I concluded at [38]-[39] that the Minister's power to detain the applicant under the Act was subject to certain limitations: "38. …In [ss 196(1)(a) and 198] the legislature, in conferring the power to interfere with individual liberty by providing for detention pending removal as soon as reasonably practicable, must be taken to have intended that the power to detain be limited to the period during which the Minister is taking reasonable steps to secure the removal and be exercisable only for so long as removal is reasonably practicable. Accordingly, in my view ss 196(1)(a) and 198 are to be construed as authorising detention only for so long as: · the Minister is taking all reasonable steps to secure the removal from Australia of a removee as soon as is reasonably practicable; · the removal of the removee from Australia is "reasonably practicable", in the sense that there must be a real likelihood or prospect of removal in the reasonably foreseeable future. 39. If a court is satisfied that the Minister is not taking "all reasonable steps" or that removal is "not reasonably practicable" the implicit limitations on the detention power will not have been complied with or met and continued detention of the removee will no longer be authorised by the Act." 3 I stated at [53]: "53. …at the present time there is no real prospect or likelihood of the Minister being able to remove the applicant from Australia in the reasonably foreseeable future. Accordingly, I have concluded that the Minister has failed to discharge the burden imposed upon him to prove that the continued detention of the applicant is lawful. Consequently, the applicant's continued detention is unlawful." 4 On 15 August 2002 I made the following orders: "1. The applicant be released from detention forthwith. 2. Within 24 hours of the applicant's release from detention the applicant give notice in writing to his solicitors Messrs Caldicott & Co, 333 Brighton Road, Brighton South Australia 5048 and to Marten Kennedy, C/- Australian Government Solicitor, Level 20, 25 Grenfell Street, Adelaide, South Australia 5000 of his address and contact details and thereafter notify his solicitors and the Australian Government Solicitor at the above addresses of any change of address and contact details. 3. In the event that the applicant receives notice in writing from the Australian Government Solicitor or an officer of the Department of Immigration and Multicultural and Indigenous Affairs as to the arrangements made for his removal from Australia in accordance with s 198 of the Migration Act 1958 (Cth) he shall take all reasonable steps in his power to comply with those arrangements in order to facilitate his removal. 4. The respondent pay the applicant's costs of and incidental to the proceeding. 5. Reserve liberty to apply." 5 I explained the reasons for the third order set out above at [57]: "57. Notwithstanding an order for the applicant's release from detention, the Minister's duty to remove the applicant under s 198(1) remains extant. In the circumstances it appears to be appropriate for the Court to order that the applicant take steps to ensure the Minister is able to be informed of his whereabouts and, if circumstances change and the applicant's removal can be secured, that the applicant take reasonable steps to facilitate his own removal. Although the Minister did not apply for such orders in my view they are appropriate to ensure that the orders made for the applicant's release both recognise and facilitate the continuing obligation of the Minister to remove the applicant if he is able to do so. As it is not suggested that there is a real risk of abscondment or that the applicant presents any danger to the community I regard the above requirements, which will facilitate his removal, as adequate and appropriate in the present case." 6 The Minister's application for a stay of my orders pending appeal was refused: see Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1037. I stated at [7] of that decision: "7. I have reserved liberty to apply to enable the parties to apply to the Court in respect of any matter that might arise as a result of the orders made by the Court in this matter, including varying the reporting conditions in the event that they give rise to difficulties the parties are unable to resolve." 7 Since 15 August 2002 the circumstances concerning the applicant's removal have changed. The Minister is now in a position to effect the removal of the applicant, together with a number of other Palestinians in a similar position to the applicant, from Australia to their homeland. On Friday, 30 August 2002 the Minister caused the applicant to be taken into detention once again pending his removal from Australia. After an urgent application by the applicant made on Saturday, 31 August 2002, pursuant to the liberty to apply reserved in my earlier orders, the Court ordered that the Minister be restrained from detaining the applicant pending the matter coming before the Court on Monday, 2 September 2002. The order for release was made on the basis of the limited submissions and evidence before the Court on that day. 8 On 2 September 2002 the applicant applied for orders restraining the Minister from further detaining him under the Act and from removing him from Adelaide without his consent. With the agreement of the parties the application was heard as an urgent matter on a final basis. 9 The applicant contends that his further detention breached the third order made by the Court on 15 August 2002 which, so it was said, constitutes the only lawful mechanism available to the Minister to effect the applicant's removal from Australia. He also contends that the power to detain him under the Act had come to an end upon his release and cannot be revived. Thus, it was argued that the applicant's removal from Australia must be in accordance with the third order. 10 The Minister contends that the third order is not, and was not intended to be, the sole repository of his power to procure the removal of the applicant from Australia in accordance with the Act. Rather he contended that, assuming the correctness for present purposes of my decision in Al Masri, the power to detain existed whenever the removal of an unlawful non-citizen is reasonably practicable in the sense there is a real likelihood or prospect of removal in the reasonably foreseeable future. It was said that, as such a likelihood or prospect has now been demonstrated, the Minister is entitled to once again lawfully detain the applicant for the purpose of his removal to the Gaza Strip. In the alternative, the Minister submitted that if the order of the Court diminished the Minister's power to detain the applicant under the Act then, pursuant to the liberty to apply, the Court should vary the order to enable the further detention of the applicant pending his removal from Australia. 11 The submissions of both parties relied upon ss 189, 196(1) and 198 of the Act which provide for the detention of unlawful non-citizens pending their removal from Australia. Under s 189 an officer is required to detain a person in the migration zone if the officer knows or reasonably suspects that the person is an unlawful non-citizen. Section 5(1) defines "detain" as meaning: "(a) take into immigration detention; or (b) keep, or cause to be kept, in immigration detention; and includes taking such action and using such force as are reasonably necessary to do so." 12 "Immigration detention" is defined in s 5(1) to mean, inter alia, "being in the company of, and restrained by" an officer (as defined in the Act) at a detention centre established under the Act or a police station or watch house. 13 An unlawful non-citizen is defined in s 14 of the Act as a non-citizen in the migration zone who is not a lawful non-citizen. It is not in dispute that the applicant was a non-citizen in the migration zone who was not a lawful non-citizen when he was detained and placed in the Woomera Detention Centre. 14 Section 196 of the Act provides: '(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." 15 Section 198(1) provides: "An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed." 16 Section 5(1) defines "remove" as meaning "remove from Australia". 17 It is appropriate first to deal with the applicant's submission concerning the third order made on 15 August 2002. While it is clear that the order afforded the Minister a mechanism to enable the applicant's voluntary removal from Australia without the need to resort to further detention pending removal, it does not provide or state that it is the only mechanism or power available to the Minister to effect the applicant's removal. The orders made by the Court on 15 August 2002 did not deny, were not intended to deny, and could not properly deny, to the Minister any power he is entitled to lawfully exercise under the Act to detain the applicant for the purpose of effecting his removal. 18 Thus, if the Act enables the exercise of a power by the Minister to further detain the applicant pending his removal when there is a real likelihood or prospect of removal in the reasonably foreseeable future, there is no reason why the Minister cannot rely on and exercise that power provided that he does so for the purpose of complying with his statutory obligation to effect the applicant's removal from Australia. The evidence demonstrates that that is the Minister's purpose and that he is now able to effect the applicant's removal. 19 The issue, therefore, is whether the Act empowers the Minister to exercise a further power to detain the applicant pending his removal from Australia. The applicant contends that the courts should construe strictly any statutory provision purporting to allow deprivation of liberty by administrative detention (Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 ("Lam") at 111) and should not allow inconvenience in carrying out an object authorised by legislation to be a ground for eroding a fundamental common law right (Plenty v Dillon (1991) 171 CLR 635 at 648-649) which, in the present case, was said to be the right not to be deprived of liberty without lawful process. Thus, it was argued that just as the courts have not been prepared to imply as an incident of a statutory power to authorise use of a listening device, a power to authorise entry on to property (which would otherwise constitute a trespass) in order to enable effective use of the device (Coco v The Queen (1994) 179 CLR 427 ("Coco") at 437-441), the courts should not be prepared to imply as an incident of a statutory power of removal, a power to detain a person which otherwise would constitute a trespass to that person. Thus, the applicant contended that the specific power to detain under s 189(1) and 196(1)(a), having now been exhausted, should not be construed as having been revived to facilitate removal under s 198. 20 The statutory duty of the Minister under s 198 is to remove an unlawful non-citizen from Australia. To comply with his duty to "remove" the non-citizen the Minister must "send away", "move" or "shift" (see the Macquarie Dictionary meanings of "remove") the non-citizen from one place, Australia, to another, which is outside of Australia. It is implicit in the concept of a mandatory and involuntary removal under the Act that there is a need for trespass to the person to compel his or her departure from Australia. Indeed, the statutory scheme for removal specifically authorises trespass to the person to enable his or her detention and removal when the Minister is obliged to detain and remove an unlawful non-citizen. In particular, the definitions of "detain" and "immigration detention" in s 5(1) specifically authorise the use of force to detain a person pending removal. 21 In Coco the relevant statute was silent on the question of trespass and the High Court concluded that the use of listening devices did not necessarily involve trespass to property. However, as explained above the Act is not silent on trespass to the person or on detention pending removal. Rather, the Act specifically mandates detention for the purpose of removal: see ss 189, 196(1)(a) and 198(1) and Al Masri at [38]. Thus, the reasoning in Coco is distinguishable and is not of assistance to the applicant. 22 Further, the authorities upon which I relied in Al Masri to imply limitations on the power to detain where removal is not able to be effected, do not suggest that the power to detain cannot be revived when removal can be effected. Rather, the observations made were to the effect that it would be wrong for the authority responsible for removal to seek to exercise the power of detention for that purpose where it is apparent that the person detained is not able to be removed (R v Durham Prison Governor; Ex parte Hardial Singh (1984) 1 W.L.R. 704 at 706) and that the power to detain can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal (Lam at 111). Thus, there appears to be no reason in principle why the statutory power to detain under the Act in order to effect a removal should not exist whenever it is apparent that the unlawful non-citizen to be detained is able to be removed from Australia in the reasonably foreseeable future. 23 There is nothing in the language of ss 189, 196(1)(a) and 198 to suggest that the power to detain cannot be exercised more than once. As explained above, it is consistent with the legislative intent that detention is necessary to effect the mandatory and involuntary removal provided for under the Act. If any doubt could arise on that issue it is removed by s 33(1) of the Acts Interpretation Act 1901 (Cth), which provides: "Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires." 24 Finally, a corollary of the cessation of the power to detain when removal is not reasonably practicable is that the power exists or revives, as the case may be, whenever removal is reasonably practicable. Put another way, the implicit limitations on the power discussed at [38]-[39] in Al Masri only apply in the circumstances there set out. Thus, when there is a real likelihood or prospect of removal in the reasonably foreseeable future the Minister has power under the Act to detain the unlawful non-citizen pending, and for the purpose of, removal notwithstanding that the power to detain the non-citizen had previously ceased because at that earlier time the removal was not reasonably practicable. 25 For the above reasons I have concluded that the Minister has power to once again detain the applicant for the purpose of his removal. Accordingly, the applicant has not made out the grounds upon which his claims for relief are founded and, as a consequence, his application is to be dismissed with costs and the existing injunction against the Minister must be discharged. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 5 September 2002 Counsel for the Applicant: Mr SW Tilmouth QC Solicitor for the Applicant: Caldicott & Co Counsel for the Respondent: Mr H Burmester QC with Ms S Maharaj Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 2 September 2002 Date of Judgment: 6 September 2002