Applicant WAIW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1621

FEDERAL COURT OF AUSTRALIA

Applicant WAIW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1621 Migration Act 1958 (Cth) s 189

Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1009 - followed Queensland v The Commonwealth (1977) 139 CLR 585 – applied Al Khafaji v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1369 – followed APPLICANT WAIW OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W 285 OF 2002 FINKELSTEIN J 23 DECEMBER 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 285 of 2002

BETWEEN: APPLICANT WAIW OF 2002

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent JUDGE: FINKELSTEIN J

DATE OF ORDER: 23 DECEMBER 2002

WHERE MADE: MELBOURNE

THE COURT:

1. Directs that the applicant should forthwith bring in short minutes of orders to give effect to these reasons.

2. Orders that the costs of this application be the applicant's costs in the cause.

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 285 of 2002

BETWEEN: APPLICANT WAIW OF 2002

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: FINKELSTEIN J

DATE: 23 DECEMBER 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant is an unlawful non-citizen who is being held in detention pursuant to s 189 of the Migration Act 1958 (Cth) pending his removal from Australia under s 198. The applicant is originally from Iraq, but he and his family had lived in Iran for four years and in Syria for about nine months before he arrived in Australia by boat in October 1999. He was immediately placed in immigration detention. Shortly thereafter the applicant applied for a protection visa, claiming he was a Convention refugee. The Minister was not satisfied that the applicant met the criteria for a protection visa. Nor was the Refugee Review Tribunal satisfied when it heard the applicant's case on review. Before the tribunal the applicant claimed that he had a well-founded fear of persecution if he were required to return to Iraq. The tribunal did not consider this claim. Instead it found that Australia did not owe any protection obligations to the applicant because he had been accorded effective protection by a third country, namely Syria, where he could be returned and remain indefinitely, with little risk of deportation to Iraq. The tribunal handed down its decision on 19 April 2000. The applicant did not seek to review the tribunal's decision. So from the time of the tribunal's decision, or perhaps from the passing of the time within which the applicant could apply to have the tribunal's decision reviewed (28 days) the Minister's department was required to remove the applicant "as soon as reasonably practical": s 198(6). 2 At present, however, the applicant remains in detention. This is causing his health to deteriorate. According to the evidence the applicant suffered from depression and he says that in July 2002 he attempted suicide but was saved by another detainee and guards at the detention centre. He is now taking the anti-depressants which have been prescribed for him. 3 The applicant says that he cannot be removed to Syria because that country will not take him. If this is true the applicant could remain in detention indefinitely. Accordingly he brings this application seeking an order in the nature of habeus corpus on the ground that his continued detention has become unlawful. Moreover the applicant wishes to be released from detention pending the hearing of his action, and seeks an order to that effect. This is the application which is presently before me. 4 The applicant bases his interlocutory application on Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1009, a decision of Merkel J. In that case Merkel J held that it is only permissible to detain a person until removal as soon as reasonably practicable. He explained that: "…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." According to Merkel J the relevant statutory provisions only authorise detention for so long as: "… the Minister is taking all reasonable steps to secure the removal from Australia of the 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." Merkel J concluded that if the Minister is not taking "all reasonable steps" or that removal is "not reasonably practicable", the continued detention of a non-citizen is no longer authorised by the Migration Act. 5 The Minister contends that Merkel J's construction of the relevant provisions of the Migration Act is clearly wrong and that his decision should not be followed. Indeed the decision itself is under appeal but the Full Court has not yet handed down its judgment. Nevertheless, the Minister submits that I should not follow Al Masri. The Minister contends that Merkel J's construction of the statute is not supported by its language and context. He says that Merkel J's interpretation defeats the object and clear purpose of the relevant provisions. In a detailed submission the Minister outlines why the cases to which Merkel J referred in support of his conclusion are not directly in point (a matter readily conceded by Merkel J) and thus distinguishable (a point which is tautologous). 6 I was also informed by the Minister that he has in other cases made submissions about the correctness of Al Masri and urged that the decision should not be followed. I am told that judgment in one such case will he handed down later. The Minister suggested that I should await that judgment before handing down my judgment in the present action. I do not propose to take that course for reasons which I will now explain. 7 The applicable principle which governs the present situation is clear. According to the doctrine of precedent I am required to follow Al Masri unless I am of the opinion that it is "plainly wrong". Obviously enough, a decision of one judge is not "plainly wrong" merely because another judge may disagree with it. Much more is required before a judge can escape his obligation to follow a precedent. In my view what is required is that the error in the judgment under challenge be manifest: see generally Queensland v The Commonwealth (1977) 139 CLR 585, 620-629. It will be manifest if, for example, the judge has overlooked a binding precedent or a relevant statute. It will also be manifest if the judge has overlooked a line of authority which, while not binding on him, establishes a principle which, if it had been considered by the judge, is likely to have produced a different result. It may also be manifest in those hopefully rare cases where a judge applies a line of reasoning which is unsound or illogical. It follows that the decision of a case in point may only be disregarded in the clearest of cases. Otherwise, the earlier decision should be followed whether or not it is correct. 8 I have given close consideration to the Minister's submission and have examined the cases upon which Merkel J has relied to found his decision. I frankly concede that it is possible to reason to a different conclusion. On the other hand, there appears to me to be no manifest error in Merkel J's reasons and the result he reached is supportable by the analogical use of cases to which he referred. In those circumstances the only principle of approach is for me to follow Al Masri. Were I to act otherwise I would ignore the requirement of judicial reticence referred to by Justice Hayne in his address at the Fourth Fiat Justitia Lecture at Monash University on 21 March 2001. (The lecture appears in (2001) 27 MULR 12). So even if another judge were to express the opinion that Al Masri was "plainly wrong" that would not deter me from what I see to be my obligation in this case. 9 This brings me to the facts. Do they demonstrate sufficiently for the purposes of an interlocutory order that there is no likelihood or prospect of the applicant being removed to Syria (or indeed any other country) in the reasonably foreseeable future. If so then his detention is prima facie unlawful. 10 On this question the applicant based his case substantially on the fact that he has been held in detention for a considerable period with no indication that he will be returned to Syria. He also claims to have requested the Manager of the detention centre to arrange for his return to Syria although this is disputed. What cannot be disputed, however, is that on 29 July 2002 the applicant's solicitor, Mr Christie, wrote to the Minister's department after he had obtained the Department's files relating to the applicant following a freedom of information request. Mr Christie stated that after looking at the file he was "deeply concerned that the documents show that nothing has been done to effect the return of [the applicant] to Syria since the decision of the RRT on 19 April 2002". Mr Christie said that this suggested two possibilities. One possibility was that it is not possible to return the applicant to Syria and the other was that the applicant had been forgotten for over two years. Mr Christie asked to be advised of the true position. Inexplicably, his letter has been ignored. I treat the lengthy period of detention and the Minister's failure to respond to Mr Christie's letter as, at least, prima facie evidence that it is not possible for the applicant to be returned to Syria. 11 The Minister has not remained silent in the proceeding. He relies on two affidavits sworn by Mr Williams a senior officer in the Minister's department. Mr Williams is the Director of the Unauthorised Arrivals Section. In one of the affidavits Mr Williams gives details of negotiations between Australia and three countries concerning the return of detainees to those countries. Mr Williams has expressed his opinion that as a result of these negotiations the "applicant's removal is still achievable and [that the department] is actively pursuing a number of avenues to effect this". Unfortunately I cannot in these reasons make detailed reference to the efforts being undertaken by the Australian Government because Mr Williams says that if this information is released to the public it is likely to prejudice the removal of the applicant and others, as well as prejudice Australia's diplomatic standing, both with the countries concerned and more generally. 12 What I can say is that the evidence that Mr Williams gave in this case is substantially the same as that which he gave in Al Khafaji v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1369 a case decided by Mansfield J on 5 November 2002. The facts of that case were remarkably similar to the instant case. Despite Mr Williams' evidence Mansfield J found that there was nothing to indicate any real prospect of the applicant being returned to Syria and nothing to indicate that he could successfully be removed to another country in any measurable time frame. Mansfield J was prepared to accept that "with persistence" there was some prospect of the applicant being removed to a third country, possibly Syria, after "protracted" steps were taken. But, according to Mansfield J, the material before him did not suggest the applicant's removal from Australia might be effected within any particular time span. Those findings led his Honour to make an order that the applicant be immediately removed from detention. 13 It would be strange indeed if, on substantially similar facts, two judges of this Court arrived at different results. If nothing else, that would tend to suggest a breakdown in the rule of law in favour of idiosyncratic law making, a concept much discussed in recent times. Of course there will be some occasions when it is necessary for one judge to reach a conclusion which is different from another although the facts of both cases are similar. But that would be a rare case and this is not one of them. In any event, I have reached the same conclusion on the facts in this case as Mansfield J reached in his. 14 It is also necessary to have regard to the balance of convenience. In this case that issue presents few difficulties. Having established a prima facie case of unlawful detention it would be monstrous to refuse the order sought and keep the applicant in detention unless there was a risk that he might abscond. The Minister has not suggested that there is such a risk. 15 It follows that the applicant is entitled to the interlocutory relief that he seeks. In the course of submissions the applicant indicated that if an order for his release were made, he would abide by certain conditions which the Minister regards as satisfactory in the circumstance. I suggested that certain changes be made to those conditions. 16 I will direct the applicant to bring in short minutes of orders to give effect to these reasons. The orders should incorporate the conditions. They should also make provision for the speedy trial of this action.