Agha v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1512

FEDERAL COURT OF AUSTRALIA

Agha v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1512 MIGRATION – application for an interlocutory injunction restraining the continued detention of the applicant – whether detention unlawful – whether there is a real likelihood or prospect of removal from Australia in the reasonably foreseeable future Migration Act 1958 (Cth) s 91X Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 192 ALR 609 referred to Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 197 ALR 241 applied Minister for Immigration & Multicultural & Indigenous Affairs v VFAD (2002) 125 FCR 249 referred to SPKB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1116 cited WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625 referred to ZAMAN AGHA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1836 OF 2003 HELY J 18 DECEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1836 OF 2003

BETWEEN: ZAMAN AGHA

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 18 DECEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for interlocutory relief is refused. 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 1836 OF 2003

BETWEEN: ZAMAN AGHA

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE: 18 DECEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant claims to be a national of Afghanistan who was born in a village near Jalalabad in Nangarhar Province, where he lived until he escaped from Afghanistan in 2001. The applicant came to Australia by boat on 14 June 2001 without any valid travel documentation. He was placed in immigration detention, where he remains. 2 On 26 June 2001 the applicant applied for a protection visa. On 20 August 2002 the Refugee Review Tribunal ('the RRT') affirmed the decision of the Minister's delegate to refuse to grant to the applicant a protection visa. 3 Late in August 2002 the applicant told the Department of Immigration & Multicultural & Indigenous Affairs ('DIMIA') officers that he wanted to leave Australia. On 4 September 2002 the applicant met with a DIMIA officer and made enquiries about the progress of his leaving Australia. He was advised that he needed to complete a passport application, which he did on 5 September 2002. On the same day the passport application was sent to Canberra for transmission to the Afghanistan Embassy in Canberra. 4 On 9 September 2002 the applicant completed a Declaration of Voluntary Return in connection with an application for the Afghanistan Reintegration Package. Under the Afghanistan Voluntary Reintegration Program, Australia provides financial assistance to persons who return to Afghanistan on a voluntary basis. Included amongst the documents which the applicant executed on 9 September 2002 was a request that the Minister remove him from Australia as soon as reasonably practicable. 5 On 18 September 2002 a telephone interview took place between the applicant and an officer of the Afghanistan Embassy. During the course of this interview the applicant was told that his passport would not be available within the next four weeks. On 25 September 2002 a DIMIA officer was informed by the Afghanistan Embassy that the passport is 'still being processed'. The Embassy could not advise when it might be issued, and the applicant was advised to ring the Embassy directly. On 1 October 2002 DIMIA was informed that the applicant's passport had not been issued and may not issue for some time. 6 DIMIA was subsequently advised by the Afghanistan Embassy that it had doubts about the applicant's identity and had sent his documentation to the Ministry of Interior in Afghanistan. 7 On 29 October 2002 the applicant advised a DIMIA officer that he wished to apply for a passport himself directly from Kabul. On 30 October 2002 passport photographs were forwarded by DIMIA to Mr Mohammad Shafi Noori in Kabul at the request of the applicant. On 1 November 2002 DIMIA forwarded to the Embassy a letter from Mr Shafi Noori requesting assistance for the applicant in connection with his passport application. 8 On 6 November 2002 a DIMIA officer asked the applicant to provide as much identification to the Embassy as possible to assist the process of issuing his passport. 9 On 12 December 2002 DIMIA sent further passport photographs to Mr Shafi Noori at the request of the applicant. On 25 February 2003 the applicant made an international telephone call following which copies of the applicant's photos were sent to the addresses in Kabul provided by the applicant. 10 On 24 April 2003 the applicant informed a DIMIA officer that he had an Afghani passport which was held by a friend. On 28 April 2003 DIMIA wrote to the applicant requesting that he arrange for this passport to be sent to the applicant so that his visa and travel options could then be discussed. No such passport has been received from the applicant. 11 On 28 May 2003 an interview took place between the applicant and a DIMIA officer, in which the officer urged the applicant to enlist the assistance of his family and friends to get some documents or provide statements regarding where he lived, went to school and work in Afghanistan. 12 On 31 October 2003 the applicant's name was forwarded by DIMIA to the Afghanistan Embassy asking that the applicant be interviewed for the purpose of obtaining a one-way travel document. 13 On 13 November 2003 the Afghanistan Embassy advised DIMIA that 'the relevant authorities at the district levels of where these individuals (3 persons, including the applicant) have claimed to come from have not been able to verify the authenticity of their past residence in those areas'. On 17 November 2003 DIMIA asked the Embassy whether it would be possible to assess these people for one-way travel documents and then undertake further enquiries about their identity on arrival. On 19 November 2003 the Afghanistan Embassy advised DIMIA that interviews would be conducted for the purpose of issuing a one-way travel document with a number of Afghans held in Port Hedland and Baxter Detention Centre, but that no interview would be conducted with the applicant. 14 On 18 November 2003 DIMIA wrote to the applicant informing him of the Embassy advice that the relevant authorities at the district level in Afghanistan have been unable to verify his previous residence in the district where he claimed to have resided. Consequently, the Government of Afghanistan was unable to issue a passport to him at that time. DIMIA requested provision of further information or documentation which will enable the Government of Afghanistan, or another country where he may have the right to reside, to verify his identity and issue a passport or other travel document. 15 On 19 November 2003 DIMIA was advised by the Embassy that the applicant's case had been closed and investigation as to his Afghanistan nationality halted, but that the Embassy could contact the relevant Afghanistan authorities for further advice. On 20 November 2003 a DIMIA officer told the Embassy that the applicant claimed to have a sister living in Jalalabad and requested advice as to whether the Embassy was aware of this, and whether the authorities in Afghanistan had investigated this claim. The Embassy responded that it was aware that the applicant claimed that both his sister and his uncle were based in Jalalabad, that this information had been passed onto Kabul for verification, but that the local branch of the Directorate of Population Registration had been unable to trace anyone in their register books who could be identified with the applicant, his father, his uncle or his sister. The only further verification option with this and similar cases would be to initiate an extensive 'foolproof' investigation that would involve, among other things, interviews with local people on the ground by the proposed ID Checking Unit ('IDCU') that is to be established within the Ministry of the Interior. The process of ID checking through the normal Interior Ministry channels with respect to the applicant has come to an end. It can be reactivated only through the IDCU whenever it is established. On 1 December 2003 the Embassy of Afghanistan wrote to DIMIA confirming that the Embassy remained ready to communicate to the relevant Afghanistan authorities any additional information which the applicant would be willing to divulge in order to support his claim of Afghan nationality. The Embassy might also be able to provide DIMIA with more conclusive statements about this after the proposed IDCU is established and fully functional. 16 On 1 December 2003 DIMIA wrote to the applicant requiring his assistance to obtain a passport or other travel document from the country of his nationality or a country where he has the right to reside. The letter requested the applicant's permission to forward to the Embassy the name and address of a person to whom the applicant's passport photographs were forwarded between October 2002 and February 2003, so that the authorities in Afghanistan could contact this person for assistance in confirming the applicant's identity. DIMIA also asked that the applicant provide the details of any other contacts in Afghanistan, including the person who he wanted to contact by telephone, so that the authorities in Afghanistan could contact these persons for assistance in confirming his identity. 17 On 5 December 2003 the applicant provided an affidavit for use in connection with these proceedings. In that affidavit the applicant provided the last known address of his mother, his sister and her husband. He also listed the names of two relatives (an uncle and the uncle's son) and of five other persons living in and around the applicant's village, who also know him. In evidence the applicant said that his family owned a number of shops and houses in the village where he lived and he confirmed that if the authorities made enquiries in the village they would quite easily be able to verify his identity. His older sister lives in the village with her husband. The applicant claims that he left his taskera (his identity document) and his driver's licence with his sister when he escaped to Australia. 18 On 10 December 2003 DIMIA sought the applicant's permission to obtain and give the applicant's fingerprints and photographs to the Afghanistan authorities to assist in establishing his identity. In evidence before me, the applicant stated that he would give this permission. 19 The vast majority of unauthorised arrivals from Afghanistan do not have any identity documents with them. Nonetheless the Afghanistan Embassy has issued passports to many whose identities have been verified. 20 About twelve months ago Australia agreed to a commitment of $200,000 to fund the IDCU. Evidence as to the IDCU was given in confidence, but it is expected to be operational within about six to eight weeks. As earlier indicated, the IDCU is expected to have the capacity to make enquiries as to a person's identity 'on the ground'. The Acting Director, Middle Eastern and Africa Section of DIMIA has deposed that based on the numbers of Afghans who have been able to return to Afghanistan, if the applicant is verified to be from Afghanistan, there is no reason presently known to her why his return could not be effected once this has occurred. 21 These proceedings were instituted by an application filed on 12 November 2003, which seeks the applicant's release from detention upon the basis that although the applicant's detention in mid-2001 was lawful, as at the date of the filing of the application he is unlawfully detained. 22 The application which is now before me is for an interlocutory injunction to restrain the respondent from continuing to detain the applicant in immigration detention pending the final hearing of these proceedings. It is common ground that the Court has power to grant interlocutory relief where there is a serious question to be tried regarding the lawfulness of the applicant's detention: Minister for Immigration & Multicultural & Indigenous Affairs v VFAD (2002) 125 FCR 249. The usual tests applicable to determining whether to grant interlocutory relief apply to the present application. 23 In Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 197 ALR 241 a Full Court of this Court concluded that the power under the Migration Act 1958 (Cth) ('the Act') to detain a person in the position of the applicant is subject to two limitations. First, the detention must be bona fide for the purpose of removal. Second, the power is to detain in circumstances where there is a real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future. The Court, however, noted that the failure of a person liable for removal to co-operate may affect the characterisation of whether the circumstances reveal a real likelihood of removal. It is only if the applicant is prepared to co-operate in effecting his removal that the implied limitation that the detention can only operate where there is a real likelihood or prospect of removal of the person from Australia exists: SPKB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1116 at [99]. 24 In the present case, it was not suggested that the first limitation is enlivened. Submissions were confined to the application of the second limitation. The applicant has been in detention for a long period of time. But the question is whether the point has now been reached where there is no real likelihood or prospect of his removal from Australia being effected in the reasonably foreseeable future. As the applicant has adduced evidence that puts in issue the legality of his detention, the burden shifts to the respondent to show that continued detention of the applicant is lawful: Al Masri (supra) at [176]. 25 Whether there is a real likelihood or prospect of the removal of the applicant from Australia in the reasonably foreseeable future is to be assessed in the light of any real world difficulties which attach to such removal. Practical difficulties that may lie in the way of making arrangements for removal which involve the co-operation of other countries are to be taken into account: WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625 at [58] – [59]. A conclusion that there is no real likelihood or prospect of removal in the reasonably foreseeable future is one that will not be lightly reached: Al Masri (supra) at [175]. 26 The second limitation was described by the Full Court in Al Masri (at [175]) as being one which is not likely to have frequent operation. This limitation is not encountered merely by length of detention and it is not grounded upon an assessment of the reasonableness of the duration of the detention: Al Masri (supra) at [175]. However, indefinite detention cannot be sustained on the basis that 'someday something must surely turn up to allow detention to come to an end': Al Masri (supra) at [74]. 27 The applicant contends that he is a citizen of Afghanistan and that relatives and friends whose names he has given to the Embassy would be able to identify him as such if they were able to be contacted. For the purposes of this application, those contentions should be accepted at face value. In addition, the applicant claims that he left his identity document (taskera) and driver's licence with his sister, who resides with her husband in the village where the applicant formerly lived. The applicant also claims that his family owned a number of shops and houses in the village. The IDCU is intended to have a mobile capacity to go to a local village to verify identification by 'on the ground' enquiries in cases such as the present, and it will shortly commence operations. Whether the applicant will be identified by that process depends upon a number of considerations, but in particular upon whether the IDCU in fact makes 'on the ground' enquiries in relation to the applicant, upon whether the relatives and villagers whose names he has given are alive and living in the village, or otherwise contactable. Country information current as at July 2003 suggests that bandits and terrorists are active in the countryside around Jalalabad, and attacks on coalition forces and other organisations have taken place. Even so, local authorities claimed on 26 May 2003 that the security situation in Nangarhar Province was 'very calm' and that they have established peace. 28 The situation in relation to the applicant is a fluid one, both in terms of the flow of information which might lead to verification of his identity, as well as in terms of the establishment of the IDCU. If the applicant is able to be identified, then his removal from Australia will probably follow. 29 In an email from the Embassy of Afghanistan (Exhibit 1) on 4 December 2003 an Embassy officer states that investigation, with a 'fair bit amount realistic hope of conclusive results' could only be reinitiated through the proposed IDCU whose mandate is envisaged to be extensive enough to include wider ranging measures than those normally undertaken: 'At this stage we cannot conclusively rule out, only as much as we cannot rule in, their Afghan nationality because the existing system in Afghanistan inherently is not designed to undertake the level of investigation due to these cases.' 30 Given the applicant's claims, and the establishment and imminent operation of the IDCU with the capability of verifying such claims by 'on the ground' enquiry at the village level, I am not satisfied, even on an interlocutory basis, that there is no real likelihood or prospect of the applicant's removal from Australia in the reasonably foreseeable future. The only real impediment to removal is identification, and there is a real likelihood or prospect that the applicant's identity will be established in the reasonably foreseeable future, assuming that he is who he claims to be. That being so, I am not satisfied at this point that 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. 31 The respondent submitted that relief should be refused by reason of the applicant's failure to co-operate in effecting his removal. In view of the conclusion which I have reached, it is not necessary to determine that question. The applicant asserts that he enlisted the assistance of friends of his who left the detention centre to contact his mother and sister when they returned to Afghanistan, but that he had not heard anything from them. He also asserts that he asked Mr Shafi Noori for assistance in contacting his mother and sister, but he said that he was busy, it was too far, the roads were not safe and that it was dangerous. The applicant also asserts that he told the Afghanistan Embassy that his taskera and driver's licence were at his home. The applicant also denies that he had told DIMIA officers that he has a passport which is held by a friend, possibly in Turkey. Whether or not the applicant's contentions in these respects should be accepted are matters for determination at the final hearing. If the applicant had otherwise made out a prima facie case for the relief which he seeks, I would not have refused it upon the ground that it is conduct and lack of co-operation on the part of the applicant which stands in the way of him being removed. 32 The application for interlocutory relief should be refused. 33 Section 91X of the Act requires that the Court not publish, in relation to a proceeding concerning a person in his capacity as an applicant for a protection visa, the name of that person. The applicant does not contend that s 91X applies to these proceedings, and does not seek to have his identity suppressed. Whilst it is a matter of historical fact the applicant applied for a protection visa, these proceedings do not relate to the applicant in that capacity. I therefore would not require the applicant to be identified by a pseudonym, particularly given the applicant's objection to the adoption of that course. Merkel J adopted the same approach in Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 192 ALR 609 at [64]. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.