FEDERAL COURT OF AUSTRALIA SHMB v Goodwin [2003] FCA 1053 Minister for Immigration & Multicultural Affairs v VFAD of 2002 [2002] FCAFC 390; (2002) 196 ALR 111 followed Minister for Immigration & Multicultural Affairs v Al Masri [2003] FCAFC 70; (2003) 197 ALR 241 followed SHMB v PHILLIPPA GOODWIN, FIRST ASSISTANT SECRETARY, UNAUTHORISED ARRIVALS AND DETENTION DIVISION, DEPARTMENT FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS and JULIE HELEN KEENAN, ACTING DIRECTOR OF THE UNAUTHORISED ARRIVALS SECTION IN THE UNAUTHORISED ARRIVALS AND DETENTION SERVICES BRANCH OF THE DEPARTMENT FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS and MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS S 411 of 2003 MANSFIELD J 13 AUGUST 2003 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 411 OF 2003 BETWEEN: SHMB APPLICANT AND: PHILLIPPA GOODWIN, FIRST ASSISTANT SECRETARY, UNAUTHORISED ARRIVALS AND DETENTION DIVISION, DEPARTMENT FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT JULIE HELEN KEENAN, ACTING DIRECTOR OF THE UNAUTHORISED ARRIVALS SECTION IN THE UNAUTHORISED ARRIVALS AND DETENTION SERVICES BRANCH OF THE DEPARTMENT FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS THIRD RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 13 AUGUST 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The notice of motion of the applicant for interlocutory relief is adjourned to a date to be fixed with liberty to call it on for further hearing on notice to the respondents. 2. Costs of the notice of motion to date be costs in the cause. 3. Paragraphs 12, 13, 14, 15 and 16 and Exhibit AD2 to the affidavit of Andrew Albert Durston sworn on 12 August 2003 not be published other than to counsel and solicitors for the parties. 4. Liberty to any party to apply to vary or discharge order 3. 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 411 OF 2003 BETWEEN: SHMB APPLICANT AND: PHILLIPPA GOODWIN, FIRST ASSISTANT SECRETARY, UNAUTHORISED ARRIVALS AND DETENTION DIVISION, DEPARTMENT FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT JULIE HELEN KEENAN, ACTING DIRECTOR OF THE UNAUTHORISED ARRIVALS SECTION IN THE UNAUTHORISED ARRIVALS AND DETENTION SERVICES BRANCH OF THE DEPARTMENT FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS THIRD RESPONDENT JUDGE: MANSFIELD J DATE: 13 AUGUST 2003 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for a declaratory order that the applicant is being unlawfully detained by the third respondent and for orders in the nature of mandamus against the respondents directing his release from immigration detention. The applicant has applied for interim relief directing the respondents to release him from immigration detention pending the hearing and determination of the principal application. 2 The applicant is a stateless person formerly resident in Gaza in Palestine. He came to Australia on 13 August 2001 and promptly applied for a protection visa under the Migration Act 1958 (Cth) (the Act). That application was refused by a delegate of the third respondent and then on 27 March 2002, on review, the decision of the delegate was affirmed by the Refugee Review Tribunal. The applicant has been in immigration detention, apparently in accordance with the Act, since his arrival in Australia. 3 On 19 November 2002 the applicant requested that he be returned to Palestine. As was then suggested to him by officers of the Department of Immigration and Multicultural and Indigenous Affairs (the Department), he applied for a Palestinian passport. His application was duly remitted by the Department to its offices in Tel Aviv for lodging with the Palestinian authorities on 2 January 2003. It was perceived that the issue of a Palestinian passport would facilitate the applicant's removal from Australia. It was then understood that, armed with a Palestinian passport, the applicant would be able to secure a transit visa to traverse Israel to gain entry into Palestine. 4 A Palestinian passport has still not been issued to the applicant. That is for a variety of reasons, to which I do not need to refer in detail. 5 The Palestinian authorities firstly required, in addition to the application for a passport, a power of attorney from the applicant to some family member in Palestine who would then appear to make a formal application for the passport to be processed. The Palestinian authorities then appear to have changed their requirements as to the nature and extent of documentation to be lodged in support of the application for a Palestinian passport. They also appear to have changed the rules as to the circumstances in which - and the places at which - the application for a Palestinian passport could be made. Some of those changes appear to have corresponded with changes in the senior personnel in the Palestinian authority. They have led to uncertainty on the part of the Department about the current requirements of the Palestinian authorities for the issue of a Palestinian passport to persons such as the applicant. It is also suggested that military activities in the Middle East in the early part of this year have somehow impacted upon the processing of Palestinian passport applications by the Palestinian authorities. 6 I do not need to comment upon or make findings about the rigour with which the application by the applicant for a Palestinian passport was promoted by officers of the Department. It is clear that his application for interim relief has corresponded with a significantly increased level of activity by Departmental officers to secure his departure from Australia. It will be necessary to look at those steps to make findings relevant to the present application, and I will do so shortly. 7 The respondents accept that the Court has power in appropriate cases to make an interlocutory order for release of a person in immigration detention if it is established that there is a serious question to be tried regarding the lawfulness of that immigration detention. So much was decided in Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390; (2002) 196 ALR 111 by the Full Court (Black CJ, Sundberg and Weinberg JJ). It is also accepted by the parties that the usual tests applicable to determining whether to grant interim or interlocutory relief apply to the present application. 8 In my judgment, and as accepted by counsel for both parties, the first step is to consider whether there is a serious question to be tried that the applicant's continued immigration detention is unlawful. They also accept that that question is to be answered by reference to whether there is a serious question to be tried that there is no real likelihood or prospect of the applicant being removed from Australia in the reasonably foreseeable future. That is the formulation of the Full Court (Black CJ, Sundberg and Weinberg JJ) in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 197 ALR 241 at [115] and [136] (Al Masri). 9 As the Full Court in Al Masri explained, the detention of the applicant under s 189 of the Act, as an unlawful non-citizen, is for the period specified in s 190 of the Act. Relevantly for present purposes, s 196(1)(a) provides that the unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is removed from Australia under s 198 or s 199. 10 Section 198(1) obliges officers of the Department to remove as soon as reasonably practicable an unlawful non-citizen who asks the third respondent in writing to be so removed. Such a request was made by the applicant on 19 November 2002. Al Masri decided that, if the point were reached where there was no real likelihood or prospect of a person held in immigration detention under ss 189 and 196 of the Act being removed from Australia in the reasonably foreseeable future, the authorisation to maintain immigration detention under those sections ceases and the detention becomes unlawful. 11 The second question, of course, is the balance of convenience. There is little doubt in my mind where the balance of convenience lies in this case. The right to be free from arbitrary and unlawful detention is as fundamental a freedom as our system of values recognises. As the Full Court said in VFAD at [159] 'It is of such paramount importance that it would be remarkable if this court, in which is vested the judicial power of the Commonwealth, could not, in an appropriate case, order the release of a person from detention, at least on an interlocutory basis.' 12 The matters which the third respondent drew to my attention as going to the balance of convenience - in particular, securing the applicant's availability for removal from Australia whilst any interim order directs his release from immigration detention - can be substantially secured by the reporting and notification obligations which the applicant has agreed to submit to, and the obligation to reside at a particular address, which the applicant has also agreed to submit to, if an interim order is made. 13 The balance of convenience, if a serious question to be tried is established, is clearly in favour of making the orders sought. 14 I turn, therefore, to consider if, on the evidence, there is a serious question to be tried that there is no real likelihood or prospect of the applicant's removal from Australia in the reasonably foreseeable future. It is understandable, given the lapse of time from November 2002 to the present and the extent to which the applicant is, until now apparently, not fully aware of what has been done by the respondents to comply with s 198(1), that he firmly asserts that such a state of affairs exists. 15 The respondents contend to the contrary. The evidence relied upon, apart from the documents comprising its records which have been put into evidence, is from Andrew Albert Durston, Assistant Director in the Unauthorised Arrivals Section of the Detention Services Division of the Department. His evidence is, in part, based on what he has been told by officers in his section and, in part, based upon what officers of the Australian Embassy in Tel Aviv have reported to him. There is no direct challenge to his evidence, but counsel for the applicant contends that, on the basis of it and having regard to what has happened in the past, there is a real question to be tried on the matter identified. 16 There are, according to Mr Durston, four avenues presently available for the removal of the applicant from Australia and upon which he believes that there is a real likelihood or prospect of the applicant being removed from Australia in the reasonably foreseeable future. Three of those avenues, on the evidence, have come to light - somewhat surprisingly - only after the notice of motion for an interim order that the applicant be released from immigration detention. To discuss them in detail would involve the disclosure of information which Mr Durston says is confidential, because its disclosure would be likely to prejudice the removal of the applicant and others from Australia and would prejudice Australia's diplomatic standing with other countries. 17 I do not need to refer to them in detail. Those three avenues - that is, the three which have more recently been identified by Mr Durston in his evidence - do not, in my view, amount to avenues which demonstrate any real likelihood or prospect of the applicant being removed from Australia in the reasonably foreseeable future. In each instance, I think the evidence shows that the avenue which he addresses is one which may take some considerable time - and perhaps an indefinite time - to explore and where the outcome of that exploration is uncertain. 18 That is not to say that they are avenues which should not be explored or that, by further exploration, they - or some one or more of them - may not emerge as giving rise to the real likelihood or prospect of the applicant being removed from Australia in the reasonably near future. However, as I have said, I am satisfied that, in respect of those three options, there is a serious question to be tried that they do not demonstrate a real likelihood or prospect of the removal from Australia of the applicant in the reasonably foreseeable future. 19 There remains the option, which the respondent has been exploring since November 2002, of the applicant himself securing of a Palestinian passport and then a transit visa across Israel to enable the applicant to gain entry to the Gaza Strip. That option has been utilised by others wishing to return to Palestine in the past, but not apparently during the last nine months or so. 20 In my view, the evidence at present shows that, whatever problems there may have been in the past nine months with respect to the applicant securing a Palestinian passport, those problems have now been confronted and potentially resolved. 21 The evidence shows that, following a meeting between the representatives of the Australian Embassy in Tel Aviv and the Director-General of the Palestinian Ministry of the Interior on 10 August 2003, the Palestinian requirements for the grant of a passport to the applicant have now been clarified. The required documentation is - and has been - available for some time, or at least on the evidence that may be the case. There is evidence which shows that the applicant, if he attends by a duly authorised relative with the necessary power of attorney, may be granted a Palestinian passport. The evidence indicates that may occur within the next two weeks. 22 There is evidence that the applicant's brother, despite what has been reported as his experience when he tried to get a Palestinian passport for the applicant earlier this year - independently of the steps being taken at the direction of the respondents - will now assist in that process, provided he has the support of officers of the Australian Embassy. There is evidence that officers of the Australian Embassy will provide that support. Further, there is evidence that, once a Palestinian passport is issued to the applicant, the Israeli authorities may provide him with the necessary transit authority to enter and traverse Israel to gain entry to the Gaza Strip through Israel. 23 Some one or more of those steps may not come to pass or may not come to pass within the time frames nominated by Mr Durston in his evidence. Indeed, if one or more of those steps does not happen as he anticipates, or does not happen within the time frame which he anticipates, it would not be surprising if he were no longer of the belief - as he presently says he is - that the applicant's removal from Australia can be secured, or that there is a real likelihood or prospect of the applicant being removed from Australia, in the reasonably near future. 24 However, in the light of the evidence presently available, I have formed the view that there is no serious question to be tried at present that there is no real likelihood or prospect of the applicant being removed from Australia in the reasonably foreseeable future. Accordingly, I do not propose to grant the interim injunction at this point. I have taken into consideration what counsel for the applicant urged as to the significance of the past unsuccessful efforts to have the applicant removed from Australia in the last nine months or so. I have also taken into account that the assessment as to what amounts to 'the reasonably foreseeable future' is one which must be made in all the circumstances of the case and upon all the evidence in this case, including what has occurred in the past. 25 The assessment I have made of the evidence in this instance is made in the light of the very recent developments to which Mr Durston referred in his evidence and the time estimates which he placed upon the steps which are, according to his evidence, now available to secure a passport from Palestine in the name of the applicant and then to secure a transit visa for him to move through Israel to gain entry to the Gaza Strip. 26 If the steps which Mr Durston says are now available to the respondents to have the applicant removed from Australia - or any of the sequential steps to which he refers - do not come to pass or do not come to pass in the timely manner to which he referred in his evidence, that might well indicate that a different factual conclusion on the critical question might well be reached. At present I refuse the application for interlocutory relief. 27 I propose to adjourn the notice of motion to a date to be fixed, with liberty to call it on for further hearing on notice to the respondents. I will also hear the parties as to what directions, if any, they now seek to progress the principal application. 28 I order that the costs of the notice of motion to date be costs in the cause. In respect of the affidavit of Mr Durston sworn on 12 August 2003, without opposition, I order that paragraphs 12, 13, 14, 15 and 16 and Exhibit AD2 to that affidavit not be published other than to counsel and solicitors for the parties. I give liberty to any party to apply to vary or discharge that order. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 3 October 2003 Counsel for the Applicant: Ms C M O'Connor with Ms A Hamdan Solicitor for the Applicant: Hamdan Lawyers Counsel for the Respondents: Ms S J Maharaj with Mr M Kennedy Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 13 August 2003 Date of Judgment: 13 August 2003