FEDERAL COURT OF AUSTRALIA WAKW v Minister For Immigration & Multicultural & Indigenous Affairs [2003] FCA 1638 MIGRATION – detention of an unlawful non-citizen pending removal from Australia – whether interlocutory orders should be granted for release from detention – where no real likelihood or prospect of removal in the reasonably foreseeable future Migration Act 1958 (Cth) ss 189, 196, 196(1)(a), 198, 200, 501(2) Judiciary Act 1903 (Cth) s 39B Federal Court of Australia Act 1976 (Cth) s 23 Minister for Immigration & Multicultural & Indigenous Affairs v VFAD (2002) 125 FCR 249 cited Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 126 FCR 54 applied VKAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 483 referred to WAKW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W131 of 2003 LEE J 27 JUNE 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W131 OF 2003 BETWEEN: WAKW APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: LEE J DATE OF ORDER: 27 JUNE 2003 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. Subject to the applicant complying with the undertaking filed in court on 27 June 2003; and conditional upon the applicant complying with any conditions, directions or requirements of the parole officer assigned to the applicant and to the applicant presenting himself to the respondent if required to do so for the purpose of effecting his removal from Australia as an unlawful non-citizen; the applicant be released from detention until further order. 2. There be liberty for the respondent to apply on short notice to revoke the order. 3. The directions hearing be adjourned to the 10 October 2003 at 12 noon. 4. Costs be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W131 OF 2003 BETWEEN: WAKW APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: LEE J DATE: 27 JUNE 2003 PLACE: PERTH REASONS FOR JUDGMENT LEE J: 1 The applicant was born in Burma (now Myanmar) on 11 August 1959 and migrated to Australia with his parents on 10 June 1971 at the age of 12. The applicant's parents became Australian citizens. At all times since emigration from Myanmar the applicant has been a "permanent resident" in Australia. He did not become an Australian citizen. The applicant lost citizenship of Myanmar by reason of his emigration. It follows from the foregoing that the applicant has lived in Australia for 32 years, has been educated here, and the whole of his immediate family lives in Australia. He has not been a model member of the community, however, and established an extensive record of convictions for various crimes from a youthful age. In the circumstances, and having regard to international comity, it may be thought that the applicant is an Australian problem and not a burden to be transferred by Australia to some other nation. Indeed s 200 of the Migration Act 1958 (Cth) ("the Act") does not empower the Minister to deport the applicant. 2 On 23 February 2003, however, the respondent cancelled the applicant's BF (Transitional) Permanent Residence visa pursuant to s 501(2) of the Act on the ground that the applicant "did not pass the character test". The applicant thereupon became an "unlawful non-citizen". From 5 March 2003, the applicant has been held in "immigration detention" pursuant to ss 189 and 196 of the Act pending removal from Australia "as soon as reasonably practicable" pursuant to s 198(2A) of the Act. 3 On 6 March 2003, the applicant signed a request that he be removed from Australia as soon as reasonably practicable. 4 On 30 May 2003, the applicant commenced a proceeding in this Court, under s 39B of the Judiciary Act 1903 (Cth), seeking an order in the nature of mandamus requiring the respondent to remove the applicant from Australia or, alternatively, an order in the nature of habeas corpus directing the respondent to release the applicant from detention. On this interlocutory application the applicant seeks an order that the respondent be restrained from detaining the applicant pending the hearing and determination of the substantive application. 5 Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) the Court has a discretionary power to make an interlocutory order for the release of persons in immigration detention. (See: Minister for Immigration & Multicultural & Indigenous Affairs v VFAD (2002) 125 FCR 249). 6 In Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 126 FCR 54, a Full Court of this Court held that the power to detain an unlawful non-citizen under s 196(1)(a) of the Act must be exercised for the bona fide purpose of removing a detainee from Australia and further that the power is subject to an implied limitation that there be a real likelihood or prospect of the removal of a detainee from Australia being effected in the reasonably foreseeable future. A conclusion that there is no real likelihood or prospect of the removal of a detainee in the reasonably foreseeable future is one "that will not be lightly reached". 7 The interlocutory motion came on for hearing on 19 June 2003. In addressing the likelihood or prospect of removal of the applicant in the reasonably foreseeable future the respondent relied on an affidavit sworn by an officer of the respondent's department on 18 June 2003. That affidavit stated that: "7. On or about 4 April 2003, DIMIA received a letter dated 1 April 2003 from the Embassy [of Myanmar] advising that the applicant is no longer a citizen of Myanmar and as such, a travel document would not be issued to him.... 8. On 22 May 2003, DIMIA requested the Australian Ambassador-designate to Myanmar to make representations to the Myanmar government with regards (sic) to the return of the applicant to Myanmar. It is expected that these representations will be made by the Ambassador to the Myanmar government in about 4 weeks time when he has an opportunity to present his credentials to the Myanmar government. 9. DIMIA is making enquiries through the Australian High Commission in London to determine if there is any record that the applicant acquired British nationality by registration or naturalisation." 8 The hearing of the motion was adjourned to 27 June 2003 to allow time for those enquiries to crystallise and for the respondent to file further affidavits accordingly. When the hearing resumed on 27 June 2003 the respondent provided two further affidavits sworn by the officer on 26 and 27 June 2003 respectively. 9 The affidavit sworn 26 June 2003 stated: "3. In relation to paragraph 8 of my earlier affidavit, I believe that liaison through diplomatic channels could progress the Department's efforts for the applicant to be returned to Myanmar. I based this belief on the fact that the Department returns a large number of unlawful non-citizens to their country of nationality or habitual residence each year and liaison through diplomatic channels has led to successful return outcomes in some cases. In 2001-02 the Department removed 9,984 persons from Australia. Of those, 27 persons were nationals of Myanmar. In 2002-03, the Department expects that approximately 12,000 persons will be removed from Australia. In the period from 1 July 2002 to 31 May 2003, 45 nationals of Myanmar have been removed from Australia. ... 7. In relation to paragraph 9 of my earlier affidavit, it appears that the applicant's father was born in British India. Assuming that this is so, it appears that the applicant's father would on 1 January 1949 have been classified as a "British subject without citizenship" on account of his "potential" citizenship of India (ss.13(1) and 32(7) British Nationality Act 1948). This status he was incapable of passing on to any children, although Schedule 3 to the British Nationality Act 1948 provided that if he later became a citizen of the United Kingdom and Colonies (e.g. by registration under s6 of the British Nationality Act 1948), any children that had been born to him whilst he remained a British subject without citizenship would thereupon likewise become subjects of the United Kingdom and Colonies. I am advised and believe that the Australian High Commission in London has contacted the British Home Office to determine if there is any record that the applicant had acquired British nationality by registration or naturalisation. The Department is presently awaiting a response, and at this stage, I am unable to give an estimate as to when a response is likely to be received by the Department." 10 The affidavit sworn 27 June 2003 added: "1. I refer to my two earlier affidavits sworn 18 and 26 June 2003, and in particular to those paragraphs deposing to the Departments request to the Department of Foreign Affairs and Trade for diplomatic representations to be made to the Myanmar government for the return of the applicant to Myanmar. I am not aware of any such similar approaches being made in the past to the Myanmar government. 2. I refer to paragraph 3 of my affidavit sworn 26 June 2003, where I stated that 72 persons had been returned to Myanmar over the period 2001-03. I do not know how many of these persons, if any, were persons the Myanmar government had initially denied were citizens of that country. Ascertaining this would involve the examination of 72 files and would require a considerable amount of time. Without examination of the files, I also cannot say how long the persons returned had been absent from Myanmar prior to their return." 11 The respondent conceded that I was bound to apply the reasoning of the Full Court in Al Masri although the respondent reserved the contention that Al Masri had been wrongly decided. 12 The respondent informed the Court that an order of the type sought by the applicant on this interlocutory motion had been made by R D Nicholson J in relation to a relative of the applicant in respect of circumstances that were indistinguishable in relevant respects from those applicable to the applicant. (See: VKAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 483). 13 The Court was also informed that if an order were made in the terms sought on the motion, conditions similar to those imposed in VKAC v MIMIA should attach to the order. 14 Having considered the totality of the evidence submitted on the motion, I am satisfied that there is a real argument that continued detention of the applicant will be unlawful. An interim order should be made that the applicant be released from detention. The respondent has conceded, in effect, that it is not possible for the applicant to be removed from Australia as soon as is reasonably practicable. Return of the applicant to Myanmar has been refused by the authorities in that country on the ground that the applicant is not a citizen of that country. It is unlikely that any other country will entertain a request, if made by Australia, that it accept the applicant if he were removed from Australia. Although prospects for the removal of the applicant continue to be assessed by officers of the respondent's Department there is no material before the Court that shows that there is a real likelihood that removal could be effected in the reasonably foreseeable future. All that can be shown at the moment is that requests will continue to be made to the country of his former nationality that he be received, but the requests will be on no more than a precatory basis. 15 Accordingly, in the foregoing circumstances the argument arises that continued detention of the applicant would be unlawful. As far as the balance of convenience is concerned the balance may be taken to fall in favour of restoration of liberty where it is shown that it is clearly arguable that continued deprivation of liberty by Executive act would be beyond power. Appropriate conditions may be attached to an interlocutory order for release to ensure that all interests are duly addressed. 16 It is to be remembered, of course, that if it becomes reasonably practicable to remove the applicant at some time in the future and the applicant remains an unlawful non-citizen, an officer of the respondent's Department may take the applicant into "immigration detention" to give effect to the terms of s 196 of the Act. That power remains irrespective of the terms of an interlocutory order made by the Court on this motion. That order is made in regard to the present circumstances only. 17 The respondent accepts that the terms of the undertaking offered by the applicant as appropriate conditions for the order. The applicant undertakes to live at a nominated address, to report to the respondent regularly, and not to leave the Perth metropolitan area without the consent of the respondent. 18 In addition I consider that the following conditions should be imposed. First, the interim order for release should be conditioned by compliance by the applicant with any conditions, directions or requirements of the parole officer assigned to the applicant and by the applicant presenting himself to the respondent, if required to do so, for the purpose of effecting his removal from Australia as an unlawful non-citizen. There should be liberty to the respondent to apply at short notice to revoke the order. 19 Orders will be made accordingly. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 8 September 2004 Counsel for the Applicant: HNH Christie Solicitor for the Applicant: Christie & Strbac Counsel for the Respondent: MT Ritter Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 and 27 June 2003 Date of Judgment: 27 June 2003