NAES v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 2

FEDERAL COURT OF AUSTRALIA

NAES v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 2 MIGRATION – application for declaration that applicant unlawfully detained and order for release from immigration detention – where alleged that no real likelihood of removal of applicant from Australia in foreseeable future – application dismissed. Migration Act 1958 (Cth) ss 5, 14, 194, 195, 196, 198 Judiciary Act 1903 (Cth) ss 39B(1), 39B(1A)(c)

Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 192 ALR 609 not followed NAKG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1600 cited Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 applied WAIS v Minister for Immigration & Multicultural & Indigenous Affairs[2002] FCA 1625 followed NAES v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NO. N 1253 OF 2002 BEAUMONT J 7 JANUARY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1253 OF 2002

BETWEEN: NAES

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE OF ORDER: 7 JANUARY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed, with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1253 OF 2002

BETWEEN: NAES

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE: 7 JANUARY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

Introduction 1 By his amended application, the applicant seeks, by way of permanent relief, orders in relation to his immigration detention. The application is made under ss 39B(1) and 39B(1A)(c) of the Judiciary Act 1903 (Cth). 2 The specific relief sought is first, a declaration that the applicant is unlawfully detained, and, secondly, an order in the nature of habeas corpus, directing the respondent Minister to cause the applicant to be released from immigration detention. 3 This relief is claimed on the basis of the allegations pleaded in the applicant's statement of claim, dated 25 November 2002, to the following effect: · The applicant, who was born in Iraq, and is an Iraqi citizen, arrived in Australia in February 2000 without a visa; as an "unlawful non-citizen" within the meaning of s 14 of the Migration Act 1958 (Cth) ("the Act") he was then taken into, and has since been held in, "immigration detention" (as defined in s 5 of the Act). · He has applied for, but the Minister has refused, the grant of a protection visa; and several attempts to review the Minister's decision have failed. · In November 2000, he requested removal by the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") "from Australia to any other country where he would be safe". · In April 2001, he requested removal from Australia "to Syria or any other country where he would be safe". · In April 2001, he was informed by the Department that "Syria had refused to permit [this]". · In April 2002, he made a further request to the Department for removal "to any other country where he would be safe". · In October 2002, he was provided with an Australian Certificate of Identity (ie a "one-way passport"); and he thereupon "requested a number of his friends to attempt to obtain a visa on his behalf from any country to which he could safely be removed". · In November 2002, the Department informed him that he "had to obtain a visa himself and that the Department would not make an application on his behalf or assist him in making the application". · Later in November 2002, one of his friends informed him that he had been unable to obtain any visa. · The Minister "has not been able to secure [his] removal". · Neither ss 196, 198 (see below), nor any other provision of the Act, authorises his continued detention.