FEDERAL COURT OF AUSTRALIA NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 559 MIGRATION – detention of unlawful non-citizens – application for orders in the nature of a writ of habeas corpus – whether final orders to be made – where continued detention of applicant unlawful where no real prospect of removal in the reasonably foreseeable future – where interlocutory relief granted – where application for special leave to appeal to High Court from Full Court decision Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70 cited NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 224 cited NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 460 cited NAGA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N1353 OF 2002 NAGB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N1354 OF 2002 NAGC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N1355 of 2002 NAGD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N1356 OF 2002 NAGE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N1357 OF 2002 NAGF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N1358 OF 2002 EMMETT J 16 MAY 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1353 OF 2002 BETWEEN: NAGA APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 16 MAY 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the proceeding be stood over for further directions generally on 19 December 2003 at 9.30 am before Emmett J. 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 N1354 OF 2002 BETWEEN: NAGB APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 16 MAY 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the proceeding be stood over for further directions generally on 19 December 2003 at 9.30 am before Emmett J. 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 N1355 OF 2002 BETWEEN: NAGC APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 16 MAY 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the proceeding be stood over for further directions generally on 19 December 2003 at 9.30 am before Emmett J. 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 N1356 OF 2002 BETWEEN: NAGD APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 16 MAY 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the proceeding be stood over for further directions generally on 19 December 2003 at 9.30 am before Emmett J. 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 N1357 OF 2002 BETWEEN: NAGE APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 16 MAY 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the proceeding be stood over for further directions generally on 19 December 2003 at 9.30 am before Emmett J. 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 N1358 OF 2002 BETWEEN: NAGF APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 16 MAY 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the proceeding be stood over for further directions generally on 19 December 2003 at 9.30 am before Emmett J. 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 N1353 OF 2002 BETWEEN: NAGA APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT N1354 OF 2002 BETWEEN: NAGB APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT N1355 OF 2002 BETWEEN: NAGC APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT N1356 OF 2002 BETWEEN: NAGD APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT N1357 OF 2002 BETWEEN: NAGE APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT N1358 OF 2002 BETWEEN: NAGF APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE: 16 MAY 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The history of this matter is somewhat chequered and the history is apparent from reasons that I have delivered on earlier occasions: see NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 224 and NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 460. Put shortly, I heard applications by six individuals for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of their alleged unlawful detention by the Minister for Immigration & Multicultural & Indigenous Affairs ('the Minister') under the Migration Act 1958 (Cth) ('the Act'). 2 After the hearing of those applications, I formed the view that the detention was not unlawful. However, before I made final orders, the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70 reached a different conclusion. In consequence, I indicated to the parties that I would not make formal orders for the time being. Rather, I ordered the release of the applicants on conditions. Those orders were made on an interlocutory basis pending the final resolution of the proceedings. 3 At that stage, the Minister indicated that he would seek leave to file further evidence showing changes in circumstances that may have the consequence that the detention, even if it had been unlawful, was no longer unlawful. The evidence foreshadowed was along the lines that circumstances in Iraq were such that it was now possible to remove the applicants pursuant to the Act. 4 When the matter was called on today, senior counsel for the Minister indicated that the Minister no longer wished to seek leave to adduce further evidence. Counsel for the applicants therefore moved the Court for final orders but indicated that she wished to make submissions concerning the power of the Court to impose conditions on making a final order for release. Senior counsel for the Minister indicated that the Minister would wish to press for the imposition of conditions as a term of release. Accordingly, it will be necessary for further argument to be had before any orders of a final nature could be made. 5 Senior counsel for the Minister has also indicated that, if final orders were made, it is the intention of the Minister to file a notice of appeal to preserve his rights pending the final determination of an application for special leave from the Full Court's decision in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri. The date for the hearing of that application has not yet been fixed but it is expected it will be some months away. If leave were given, it might be as long as 12 months before a final decision was forthcoming from the High Court. 6 Since, if final orders were made, further costs are likely to be incurred and since counsel for the applicants could not point to any prejudice to the applicants by reason of the absence of final orders, it seems to me that the interests of justice are best served by standing these proceedings over for a considerable period of time to await the outcome of the special leave application to the High Court. If leave were refused, then I would make final orders and would hear argument on the question of conditions. If leave were granted, it would be appropriate to stand the proceedings over further pending the outcome of the appeal. 7 In the meantime, the regime for reporting, which was the subject of the orders made on 17 April 2003, will be continued. I have indicated to the parties that, if they wish to approach the Court for variation of those orders, and the variation proposed is disputed, then that can be done urgently if need be. In the circumstances, I think it is appropriate to stand the matter over to 19 December 2002 for directions with a view to determining whether final orders should then be made or whether there should be a further adjournment depending upon the outcome of the special leave application. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 5 June 2003 Counsel for the Applicants: L McCallum Solicitor for the Applicants: Public Interest Advocacy Centre Counsel for the Respondent: J Basten QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 May 2003 Date of Judgment: 16 May 2003