FEDERAL COURT OF AUSTRALIA Haney v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1555 INTERLOCUTORY APPLICATION - interlocutory application for release of applicant from detention - principles for grant of interlocutory order - balance of convenience - probability of success a relevant factor Migration Act 1958 (Cth) ss 189, 196, 198 Federal Court of Australia Act 1976 (Cth) s 23 Castlemaine Tooheys Limited v State of South Australia (1986) 161 CLR 148 Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241 Al Khafaji v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1369 Minister for Immigration and Multicultural and Indigenous Affairs v VFAD of 2002 (2002) 196 ALR 111 VFAD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 304 SHMB v Goodwin (No 2) [2003] FCA 1171 SHFB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 29 MUSLIM HANEY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 839 of 2003 SELWAY J 22 DECEMBER 2003 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 839 OF 2003 BETWEEN: MUSLIM HANEY APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SELWAY J DATE OF ORDER: 22 DECEMBER 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application for an interlocutory order for release from detention is dismissed. 2. The applicant to pay the respondent's costs of and relating to that interlocutory application. 3. The application for final orders be listed for hearing on 12 February 2004. 4. Parties be at liberty to file such further affidavits as they shall be advised. 5. Save for order 2 hereof, costs in the cause. 6. Liberty to apply. 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 839 OF 2003 BETWEEN: MUSLIM HANEY APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SELWAY J DATE: 22 DECEMBER 2003 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicant has applied to the Court for a declaration that he is unlawfully detained and for an order for habeas corpus directing that the respondent ('the Minister') cause the applicant to be released from detention forthwith. The application was listed for urgent hearing. By the time that the application came on for hearing the respondent had filed an affidavit from Ms Keenan, an officer of the Department for Immigration and Multicultural and Indigenous Affairs ('the Department'). That affidavit purported to explain the steps taken by the Department to remove the applicant from Australia. In that affidavit Ms Keenan also expressed her opinion that there was a real likelihood or prospect of the removal of the applicant from Australia in the reasonably foreseeable future. The applicant has sought to cross-examine Ms Keenan on her affidavit and the primary application has been adjourned for that purpose. In the interim, counsel for the applicant has made an oral application for an interlocutory order that the applicant be released from detention pending the final resolution of his application. These reasons deal with that interlocutory application. For the reasons given below that interlocutory application is refused. 2 The applicant arrived in Australia on 20 December 1999. He is an Iraqi citizen. He was and is an 'unlawful non-citizen' for the purposes of the Migration Act 1958 (Cth) ('the Act'). He was taken into detention. The applicant applied for a protection visa. That application was finally refused by the Refugee Review Tribunal on 22 January 2001. The applicant has not sought any review of that decision. The applicant has been liable for removal from Australia since that date: s 198 of the Act. 3 The applicant has lodged a number of requests seeking the exercise by the Minister of the Minister's power to substitute a different decision pursuant to s 417 of the Act. The last of those requests was made on 17 March 2003 and was not finally rejected until 6 October 2003. I note that it is at least implicit in the reasoning of the Full Court of this Court in NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ('NATB') at [52]-[59] and in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290 at 311-312, at [80] that the duty in s 198 of the Act is consistent with, and may accommodate, delay pending a review by the Minister under s 417 of the Act. However, on the information before me there is no evidence that suggests that the removal of the applicant has been delayed for this reason. Indeed, as is discussed below, it would appear that the Department did proceed to take some steps to secure the removal of the applicant pending the decision of the Minister in respect of the last request that he exercise his powers under s 417 of the Act. 4 It would appear from the affidavit material that in the period April 2002 - March 2003 little was done, or at least achieved in relation to the removal of the applicant. So far as the information reveals, he seems to have obtained little if any assistance or pressure from the Department. In March 2003, the applicant applied for an Australian Certificate of Identity ('COI'). At the start of May 2003, active hostilities by the 'Coalition of the Willing' against the former Iraqi Government ceased with the fall of that government. This obviously had some effect on the willingness of the applicant to return to Iraq. On 3 May 2003, the applicant issued an application for habeas corpus in this Court. Perhaps coincidentally, the Department would seem to have become more active. The COI was provided to the applicant on 29 June 2003. On 1 July 2003, the applicant was informed by the Department that he could use the COI to apply for visas to third countries. He was also informed that he could return to Iraq via Jordan in a matter of weeks. On 3 July 2003, the applicant asked that his COI be sent to a friend who would apply on the applicant's behalf for visas to third countries. There is no information before me as to whether any such applications were made, or what the result was. On 22 July 2003, the applicant withdrew his application for habeas corpus. In his own affidavit he says that this was because of his understanding from what he had been told by the Department that he could be removed to Iraq. 5 It would seem fair to assume from the material before me that there was an expectation by the Department in early July 2003, that Iraqis could be removed to Iraq via Jordan within a reasonably short time frame. It is not clear what that time frame was, but it would seem that a period of about two weeks was contemplated. The expected process involved the assistance and participation of the International Organisation for Migration ('IOM'). The IOM is an international non-profit organisation. Whatever the expectation was, it would seem not to have been borne out by events. Rather, it would appear that it took until around September for the Australian Government to reach some administrative understanding with the IOM in relation to Iraq. 6 On 9 September 2003, the Department received written notice from the applicant that he wished to depart from Australia voluntarily. Apparently this notice should be understood as referring to the administrative understanding that Australia had reached with the IOM. In effect it was a request by the applicant to apply to the IOM for removal to Iraq via Jordan, and a request for a payment from the Commonwealth Government to assist the applicant's removal and resettlement. On 9 October 2003, the applicant signed the relevant application to the IOM. It was lodged on the same day. The IOM then made an application to Jordan for a transit visa. As at the date on which this interlocutory application was argued, the IOM is still awaiting the issue of that visa. Although there is some disagreement in the affidavits as to what the applicant may have been told, the applicant cannot dispute the statement in Ms Keenan's affidavit that Jordan has not refused the visa. 7 In her affidavit Ms Keenan says that she is of the opinion 'that there is a real likelihood or prospect of removal within the reasonably foreseeable future. Further, it is my assessment that there are very good prospects of success that his removal from Australia could be achieved in the very near future, especially with his continued cooperation.' In this regard I note that it was not alleged by the Minister, at least in relation to this interlocutory application, that the applicant has not cooperated with efforts to effect his removal. 8 There is no information before me as to the number of Iraqis awaiting removal to Iraq. However, Ms Keenan says in her affidavit that since May 2003, 'the Department has co-ordinated the return of two Iraqi nationals to Iraq. A further 1 Iraqi national has been successfully returned under the IOM's AVR [Assisted Voluntary Removal] program. Over 20 Iraqis have been returned with IOM's assistance from the Offshore Processing Centre on Nauru.' 9 Finally I note that the Department has been informed by the IOM that it is also seeking to arrange transit through Syria and the Department is hopeful that this can be arranged. 10 The application for a declaration and for habeas corpus is based upon the argument that the powers of the Minister to detain the applicant are limited. The relevant powers are contained in ss 189, 196 and 198 of the Act which relevantly provide: '189 Detention of unlawful non-citizens (1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person. (2) … 196 Period of detention (1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is: (a) removed from Australia under section 198 or 199; or (b) deported under section 200; or (c) granted a visa. (2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen. (3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa. 198 Removal from Australia of unlawful non-citizens (1) An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed. (2) An officer must remove as soon as reasonably practicable an unlawful non-citizen: … (c) who either: (i) ...; or (ii) has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.' 11 In determining the extent and breadth of those powers of detention I am bound by the decision of the Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241 ('Al Masri'). That case involved a Palestinian citizen who was in detention pending removal to Palestine. It was accepted that he was entitled to reside in Palestine if he could get there. However, access to Palestine was only via Israel. The Department had been attempting for a period of some six months to arrange such access, but without any success. Nor was there any obvious basis for assuming that that situation was likely to change. Merkel J, at first instance, held that the continued detention in these circumstances was unlawful and he ordered that the detainee be released (see (2002) 192 ALR 609). However, his Honour also held that the detainee was liable to be taken into detention again when that detention could be justified (see [2002] FCA 1099). The Full Court affirmed the orders made by Merkel J. The critical aspects of its decision are to be found in Al Masri at 272-273, at [133]-[137]: 'The first of the two limitations found by the trial judge was that s 196 was limited in operation to such time as the minister was taking all reasonable steps to remove a detained person from Australia as soon as reasonably practicable. This limitation emerged from a reading of the power to detain in s 196(1) as subject to the duty imposed upon the minister by s 198(1) to remove as soon as reasonably practicable. Although the two provisions are part of the same scheme, we would not read them together in this way. If the minister were not fulfilling his duty under s 198(1) to remove as soon as reasonably practicable the detention would, in our view, still be lawful and the appropriate remedy would be an order in the nature of mandamus to compel the minister to take the steps required for the performance of his duty. The minister's purpose in detaining, however, must be the bona fide purpose of removal. Otherwise the detention would not be lawful. If the minister were to hold a person in detention without such a purpose, then the detention would be unlawful and the person entitled to relief in the nature of habeas corpus. This conclusion is consistent with the decision of the High Court in Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637, where the court held that s 39(6) of the Act (the legislative precursor to s 196(1)) authorised the detention of a deportee during such time as was required for the implementation of the deportation order, but not for any ulterior purpose such as keeping him available to be a witness in a pending criminal prosecution. The court held that a declaration that the detention was unlawful ought to have been granted. It was not necessary to consider whether an order for habeas corpusshould have been made since the detainees had been released prior to their application to the Federal Court. It would seem, however, from the orders made by the court that habeas corpus would have been granted if required. The second limitation found by the trial judge, a limitation upon the power to detain under s 196(1)(a) to circumstances where there is a real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future, is of course temporal in nature. His Honour formulated the limitation in the light of the duty imposed by the parliament on the minister in s 198(1) to effect removal "as soon as reasonably practicable". Although we consider that this provision does not, of itself, limit the power in any purposive way, it does inform the content of the limitation the principles we have discussed would point to. Some such limitation is, in our view, required by these principles and the second of the limitations found by the trial judge has support from the language of an integral part of the scheme, and it maintains, clearly, the connection between the power to detain and the purpose of removal. We see no reason to disagree with it. We should add that we do not intend our observations to give any support to a contention that a person who has made a request in writing under s 198(1), might by their own act in frustrating the process of removal, make their continued detention unlawful. For the purposes of the implied limitation, if such a person were, for example, to refuse to sign a consent required by a country otherwise prepared to take him, that person would not (ordinarily at least) be held in circumstances where there was no reasonable likelihood of his removal.' 12 In this case there is no present allegation that the applicant has been uncooperative (contrast SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1116).For present purposes the practical effect of the decision of the Full Court in Al Masri is that the power of detention for the purposes of removal is limited to 'circumstances where there is a real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future'. 13 I note that the reasoning and conclusion of the Full Court has been questioned in an appeal from the judgment of Mansfield J in Al Khafaji v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1369. The decision of the High Court on that appeal is currently reserved. In many situations it would be appropriate to adjourn proceedings where the applicable law depended upon a reserved decision of the High Court in a matter under appeal to it. That is not appropriate in a case involving detention. There is no choice but to proceed on the basis that Al Masri is good law at least for what that case actually decides. 14 Both parties submitted to me that the Al Masri test is not a test based upon the length of detention as such. This is clearly true. Obviously, the circumstances of a particular detainee may be such that it is clear from the time he or she is first taken into detention that there is no real likelihood of removal in the reasonably foreseeable future so that the person should immediately be released. Similarly, the circumstances may show that in relation to a person who has been in detention for a very protracted period there is nevertheless a real likelihood of removal in the near future. Nevertheless, the length of time of detention will usually be relevant to the test. Where the question (as in this case and as in Al Masri) depends upon whether the Department's optimism that there is a real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future is justifiable or not, evidence of the period of detention and the efforts made during that period to secure the applicant's removal are likely to be very relevant. 15 Whatever the effect of Al Masri may be on the final disposition of the application for declaration and habeas corpus, my immediate concern is the applicant's interlocutory application for release pending that final disposition. It would seem that this Court does have a power pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) to make an interlocutory order for the release of a person from detention notwithstanding that it has not made any final decision that the detention is unlawful: see Minister for Immigration and Multicultural and Indigenous Affairs v VFAD of 2002 (2002) 196 ALR 111 at 118, 125-127 ('VFAD 1'). That power is not abrogated or limited by the provisions of s 196 of the Act: see VFAD 1 at 128-129, at [113] and see VFAD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 304 ('VFAD 2'); SHMB v Goodwin (No 2) [2003] FCA 1171 ('SHMB'). 16 It would seem that the tests to be applied as to whether such an order for release should be made are the same as would apply in relation to the grant of an interlocutory injunction, namely whether there is a serious issue to be tried and whether the balance of convenience favours the release of the applicant: see VFAD 1 at 126-127, at [99]-[102]; VFAD 2 at 307, at [11]-[12]. It is clear, however, that these tests are not separate and distinct, at least in circumstances such as the present. As Mason ACJ pointed out in Castlemaine Tooheys Limited v State of South Australia (1986) 161 CLR 148 ('Castlemaine Tooheys') at 155: 'In arriving at the balance of convenience the Court will take into account the seriousness of the conduct enjoined by the statute and the damage to the public interest that may be caused by restraining its enforcement. And in some cases the balance of convenience may be affected by the Court's perception or evaluation of the strength of the plaintiff's case for invalidity.' That case concerned an argument that a law should not be enforced pending the determination whether or not it was invalid. Although the acting Chief Justice accepted that there was a serious question to be tried, his Honour held that it was inappropriate to grant an interlocutory injunction restraining the enforcement of the law pending the determination of its invalidity. 17 A similar analysis can be made here. In my view there is a 'serious question to be tried'. On the current authorities that is not an onerous test. However, even if there is a serious question to be tried that does not mean that the applicant must be released pending that hearing on the basis that the balance of convenience will always favour a release from detention or on the basis that conditions can be imposed which will enable the applicant to be again taken into detention if he is ultimately unsuccessful. In considering the balance of convenience it is necessary to consider the statutory duties imposed upon Commonwealth officers by s 196 and s 198 of the Act: see SHFB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 29 at [15]-[16]. In determining where the 'balance of convenience' lies in a case like the present the Court must have regard to those statutory duties, including the duty that unlawful non-citizens be detained and (in appropriate circumstances) removed. At this stage there has been no determination that the detention is unlawful. At best there is a serious question to be tried. The consequence, at least in this case, is that the interlocutory release of the applicant could only be justified if, on the material currently before the Court, I conclude that the applicant's prospects of success at trial are such that his continued detention cannot be justified. To adapt the words of Mason ACJ in Castlemaine Tooheys at 154, the applicant will need to show a 'probability, even a distinct probability of success' in order to obtain an order for release. Indeed, in circumstances where the balance of convenience can be otherwise accommodated (such as an expedited hearing) an even higher level of comfort in the likely success of the applicant's case may be required. 18 This conclusion does not seem to me to be surprising in circumstances where there has been no determination that the detention is unlawful. The argument to the contrary, if accepted, would have the practical result that all detainees who argue that their detention is unlawful should be released on an interlocutory basis if they can show that there is a serious question to be tried. Indeed, if the argument were sound it would not be limited to detainees. Presumably all persons imprisoned who alleged in appropriate proceedings that their detention or imprisonment was unlawful would be entitled to an interlocutory order for release so long as they could show that there was a serious question to be tried as to the validity of their imprisonment. In my view such an argument is plainly wrong. 19 I note that my conclusion is not consistent with the approach of Mansfield J in SHMB, particularly at [11]-[12]. In that case his Honour appeared to accept that the balance of convenience will always favour a release from detention at least where conditions can be imposed which will enable the applicant to be again taken into detention if he or she is ultimately unsuccessful. In doing so his Honour would seem to have applied the two tests for making an interlocutory order for release (that is, whether there was a serious question to be tried and whether the balance of convenience favours the exercise of the interlocutory power) on the basis that the two tests were distinct and unrelated. It would not appear that his Honour was referred to the reasoning in Castlemaine Tooheys. On that basis I am of the view that the reasoning in SHMB, to the extent that it differs from the analysis above, is plainly wrong. This does not mean, however, that the decision in that case was in error. On the facts in that case it may well be that the applicant's case was sufficiently compelling that the balance of convenience did justify an order for the interlocutory release of the applicant. 20 The question then is whether, on the facts currently before me, the applicant has shown a 'probability, even a distinct probability of success' in relation to his application for a declaration and habeas corpus. Plainly it is not appropriate in considering that question to carry out a mini-trial. It is appropriate to consider the affidavit evidence that is before the Court and to take a broad view of whether, on that material, I have reached the relevant satisfaction. It is not appropriate that I make any assumption as to what the future cross-examination of Ms Keenan may reveal. It is not appropriate that I make any detailed analysis of what inferences may be drawn from the material assuming that I have received full submissions in relation to it. 21 The applicant has been liable for removal for nearly three years. On the current affidavit material there has not been a real likelihood of the removal of the applicant from Australia in the reasonably foreseeable future at all times during those three years. It may well be that on the Al Masri test there have been periods during those three years when his detention has been unlawful. However, that is not the question in these proceedings. The question in these proceedings is whether his detention is presently unlawful because there is presently no real likelihood of his removal from Australia in the reasonably foreseeable future. In relation to that question the material currently before me is that the Australian Government have an arrangement with the IOM for that organisation to assist in the voluntary return of Iraqis to Iraq; that on 9 October 2003, the applicant signed the relevant documents seeking the assistance of the IOM for his removal to Iraq and that the Department is optimistic that the applicant will be returned to Iraq in the very near future probably via Jordan or (perhaps) Syria. Given that the period of time from the date the applicant signed the relevant documents is only two months I am not satisfied, at least on the affidavit evidence currently before me that that optimism is misplaced. 22 Limited as I am in the nature and extent of the inquiry that it is appropriate to undertake on an interlocutory application I am not satisfied that there is a probability, much less a distinct probability that the applicant will ultimately be successful in these proceedings. Consequently the balance of convenience does not justify an interlocutory order for his immediate release. This does not mean, of course, that the application for final orders is doomed to failure. That application will have to be tested on the evidence and information then before the Court, including the cross-examination of Ms Keenan and whatever has occurred (or not occurred) in the interim in terms of the attempts to remove the applicant from Australia. 23 Since this matter was argued and the reasons first drafted the Court has been informed by the solicitors for the respondent that arrangements have now been completed for the return of the applicant to Iraq. This has not been proved in evidence. I do not take that matter into account in granting the orders that I do make in this matter. 24 The interlocutory application for the release of the applicant from detention is dismissed. The applicant is to pay the extra costs occasioned to the Minister by reason of the argument on the application for an interlocutory order for release. Otherwise costs in the cause. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway. Associate: Dated: 22 December 2003 Counsel for the Applicant: C O'Connor Solicitor for the Applicant: Hamdan Lawyers Counsel for the Respondent: S Maharaj Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 December 2003 Date of Judgment: 22 December 2003