FEDERAL COURT OF AUSTRALIA Hussain v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1513 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 MOHAMMAD HUSSAIN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1995 OF 2003 HELY J 18 DECEMBER 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1995 OF 2003 BETWEEN: MOHAMMAD HUSSAIN 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 an 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 1995 OF 2003 BETWEEN: MOHAMMAD HUSSAIN 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 fled Afghanistan. The applicant arrived in Australia on 30 January 2001 by boat from Indonesia without any valid travel documentation. He was placed in immigration detention, where he remains. 2 The applicant applied for a protection visa on 28 February 2001. On 17 January 2002 the Refugee Review Tribunal ('the RRT') affirmed the decision of the Minister's delegate not to grant a protection visa to the applicant. An application for judicial review of that decision was dismissed by a judge of this Court on 17 June 2002. 3 On 10 July 2002 the applicant was offered and agreed voluntarily to return to Afghanistan under the Afghanistan Voluntary Reintegration Program. Under that program Australia provides financial assistance to persons who return to Afghanistan on a voluntary basis. 4 On 12 July 2002 an application for a passport was lodged on behalf of the applicant by the Department of Immigration & Multicultural & Indigenous Affairs ('DIMIA') with the Embassy of Afghanistan. On 16 July 2002 the applicant was interviewed by an Embassy official in connection with this passport application. The applicant disclosed the name of his wife and of his daughter and his father at that interview. The applicant was told that his application had been sent to the Ministry of the Interior in Kabul. 5 In his protection visa application, the applicant disclosed the names, places and years of birth for his father, mother, and his three brothers (one of whom was killed). All were born in the applicant's village. This information does not appear to have been conveyed to the Afghani Embassy at this point, by either the applicant or DIMIA. 6 On 26 September 2002 the applicant made enquiries of a Deputy Manager at Baxter Detention Centre about the progress of his passport application, and about leaving Australia. He was told that the Afghan consulate (sic) had full responsibility and control for issuing travel documents and passports to facilitate travel to Afghanistan. 7 By 6 November 2002 DIMIA came to learn that the Afghani Embassy held reservations about the applicant's identity. The applicant was interviewed by a DIMIA officer on 6 November 2002 in relation to allegations which had been made that the applicant was a Pakistani national who had grown up in Karachi. The applicant denied those allegations. 8 On 14 January 2003 the applicant requested the Deputy Manager at Baxter Detention Centre to initiate the process to return him to Pakistan, but on 15 January 2003 he indicated that he wants to be returned to Afghanistan. He was provided with a further passport application form. On 1 August 2003 the applicant expressed frustration to a Baxter Detention Centre officer about the time taken to process his Afghan passport. In response to an enquiry whether he would consider applying to go to Pakistan, the applicant said that he would try anything, but he was told that it was useless to apply for a Pakistan passport if he was born in Afghanistan, and did not have a Pakistan National Identity Card number. 9 DIMIA made an appointment for the applicant to meet with a representative from the Afghanistan Embassy on 4 August 2003. The applicant was told that the Embassy was waiting for an answer from the Ministry of the Interior in Kabul. On 14 October 2003 the applicant was advised by an Embassy officer that there was delay because of problems establishing his identity in Kabul, and that the Embassy was awaiting confirmation from Kabul. 10 On 30 October 2003 DIMIA requested the Embassy to arrange a 'one-way travel document' interview for the applicant. 11 On 11 November 2003 DIMIA was advised that the Embassy had received correspondence from Kabul about the applicant and others to the effect that 'the relevant authorities at the District levels of where these individuals have claimed to come from have not been able to verify the authenticity of their past residence in those areas'. DIMIA was informed by the Embassy that the record checks conducted in Kabul and at district level did not contain details of the applicant or the relatives whose names had been given to the Embassy. 12 On 20 November 2003 a further interview of the applicant was conducted by an Embassy official regarding the issue of one-way travel documents/passport applications. The official sought details of relatives or friends living in Afghanistan who would know the applicant. The applicant gave his uncle's name, and the names of two villagers (Exhibit 2). 13 On 2 December 2003 DIMIA wrote to the applicant advising that the authorities at the district level in Afghanistan have been unable to verify his previous residence in the district where he claims to have resided. Consequently, the government of Afghanistan was unable to issue a passport to him at this time. DIMIA requested further information, including details of contacts in Afghanistan, or documentation which will enable the Government of Afghanistan or another country where the applicant may have the right to reside to verify his identity and issue him a passport or other travel document. 14 On 4 December 2003 an email exchange occurred between DIMIA and the Afghanistan Embassy confirming that the district level authorities in Afghanistan have not been able to identify the applicant or any of his named relatives in official records. Whilst the applicant may still be issued with travel documents should further information come to light, the Afghanistan authorities will not pursue any further investigatory avenues in the absence of further information. This function may be undertaken by the Identity Checking Unit ('the IDCU') which is being established in Afghanistan, and which is expected to include a mobile group able to look beyond the records, and make enquiries 'on the ground'. At the moment, this is not a function that the Afghanistan authorities perform. 15 On 4 December 2003 the applicant filed an affidavit in these proceedings listing the names of relatives and friends who were living in the village at the time of his departure. Included are the names of his two brothers, and a villager which had not previously been disclosed to the Afghanistan Embassy. DIMIA provided those names to the Embassy on 9 December 2003, but there is no evidence as to whether this information will lead to a reactivation of the applicant's passport application. 16 On 10 December 2003 DIMIA sought the applicant's permission to obtain and give the applicant's fingerprints and photograph to the Afghanistan authorities in order to assist in establishing his identity. 17 The applicant does not have any documents which might establish his identity. He is concerned that should he be returned to Afghanistan without a passport that it will not be possible to contact his relatives or others to arrange for his identification and transportation to his village. 'Country information' current as at July 2003 suggests that bandits and terrorists are active in the countryside around Jalalabad, and that 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. 18 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. 19 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 six to eight weeks. As earlier indicated, the IDCU is expected to have the capacity to make enquiries 'on the ground' as to a person's identity. The Acting Director, Middle East 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. 20 These proceedings were instituted by an application filed on 21 November 2003 which seek the applicant's release from detention upon the basis that although the applicant's detention in early 2001 was lawful, as at the date of filing of the application he is unlawfully detained. 21 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 an 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. 22 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 continue 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]. 23 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 very 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]. 24 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]. 25 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 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]. 26 The applicant contends that he is a citizen of Afghanistan, and that the relatives and villagers whose names he has given to the Embassy would be able to identify him as such if they are able to be contacted. For the purposes of this application, those contentions should be accepted at face value. The IDCU is intended to have a mobile capacity to go to a local village to verify identities 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, and upon whether the relatives and villagers whose names he has given are alive and living in the village, or otherwise contactable. 27 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. As recently as 4 December 2003 he supplied more names of persons who can identify him, and on 10 December 2003 DIMIA requested the applicant's permission to obtain and give his fingerprints and photographs to the Afghanistan authorities to assist in establishing his identity. The fact that this request was not made before may say something about the vigour with which the respondent has attempted to obtain a passport for the applicant, but that is not the issue which falls for determination. If the applicant is able to be identified, then his removal from Australia will probably follow. 28 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. 29 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, but I make the following brief observations in relation to it. It is true that the provision of names of relatives and friends who could identify the applicant has been a gradual process, but (so far as the evidence goes), it is only in recent times that the importance of the provision of this information was brought home to the applicant. If the applicant were otherwise entitled to relief, I would not have refused it on this account. 30 The application for interlocutory relief should be refused. 31 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 as 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-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 18 December 2003 Counsel for the Applicant: Mr Wilkins, Mr Gormly Solicitor for the Applicant: Ray Balding Solicitor Counsel for the Respondent: Mr Lloyd Solicitor for the Respondent: Sparke Helmore Solicitors Date of Hearing: 11 December 2003 Date of Judgment: 18 December 2003