FEDERAL COURT OF AUSTRALIA WAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1639 MIGRATION – detention of an unlawful non-citizen – application for 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 48, 189, 196, 417 Federal Court of Australia Act 1976 (Cth) s 23 Minister for Immigration & Multicultural & Indigenous Affairs v VFAD (2002) 125 FCR 249 approved Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 126 FCR 54 applied Preston v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 420 approved WAKX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W301 OF 2002 LEE J 6 AUGUST 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W301 OF 2002 BETWEEN: WAKX APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LEE J DATE OF ORDER: 6 AUGUST 2003 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. On the undertaking of the applicant filed on 15 July 2003 and to be read as referring to the Minute of Conditions attached, and subject to the performance of the conditions in that Minute of Conditions, the applicant is to be released from detention until further order. 2. The costs of the motion to 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 W301 OF 2002 BETWEEN: WAKX APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LEE J DATE OF ORDER: 6 AUGUST 2003 WHERE MADE: PERTH MINUTE OF CONDITIONS OF RELEASE 1. The applicant will reside at 11 Clinton Avenue, St James in the State of Western Australia and shall not live elsewhere without the prior written consent of an officer of the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA"). 2. In the event that the applicant receives notice in writing from the Australian Government Solicitor or an officer of DIMIA as to the arrangements made for his removal from Australia in accordance with s 198 of the Migration Act 1958 (Cth), he shall take all reasonable steps in his power to comply with those arrangements in order to facilitate his removal and, in the event of specific arrangements being made for his removal from Australia at a specified time, that he submit to the custody of DIMIA officers for that purpose. 3. The applicant shall take all reasonable steps in his power to comply with any request in writing from AGS or an officer of DIMIA for the provision of any information or documents which the respondent reasonably considers may facilitate his removal from Australia. 4. The applicant will report in person to the office of DIMIA at 411 Wellington Street, Perth in the State of Western Australia during ordinary working hours on Tuesday and Thursday of each week, excluding only public holidays, to such officer or officers as the respondent may, from time to time nominate. 5. The applicant will report by telephone during ordinary working hours on Monday, Wednesday and Friday of each week, excluding only public holidays, to Mr James Petcov of DIMIA on telephone number 9415 9164 or such other officer as the respondent may, from time to time nominate. 6. The applicant is to deposit with the District Registrar of the Western Australia District Registry of the Federal Court a bond by way of bank cheque in the sum of $3,000 or otherwise in a form acceptable to the Registrar which may be forfeited to the Respondent by order of the Court in the event of any breach by the applicant of the conditions imposed upon him by these orders. 7. The applicant will attend Court in person on the occasion of the delivery of judgment in this application, unless so excused from so doing by an order of this Court. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W301 OF 2002 BETWEEN: WAKX APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LEE J DATE: 6 AUGUST 2003 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an application for orders in the nature of mandamus and habeas corpus in which the applicant, by notice of motion, seeks an interlocutory order by way of an injunction to restrain the respondent from continuing to keep the applicant in detention. 2 The applicant arrived in Australia on 9 September 1998 by "boat" and whilst not being the holder of a visa issued under the Migration Act 1958 (Cth) ("the Act"). Pursuant to ss 189 and 196 of the Act the applicant, as an "unlawful non-citizen", was placed in "immigration detention" and has been kept there ever since apart from a day in April 1999 when he escaped from the place of detention in Port Hedland. 3 The applicant applied for a protection visa on 24 September 1998 on the ground that he feared persecution at the hands of Indian authorities for political opinion imputed to him as a person perceived by such authorities to be a sympathiser or activist in the Kashmiri separatist cause. A delegate of the respondent refused the application on 20 October 1998. That decision was affirmed by the Refugee Review Tribunal ("the Tribunal") on 11 January 1999. The Tribunal found that the applicant's perceived participation in the activities in the Jammu Kashmir Liberation Front would not prevent the applicant locating himself safely in India if he were returned to that country and accordingly the applicant was not a person to whom Australia had "protection obligations" under the "Refugees Convention". 4 The applicant did not seek judicial review of the Tribunal's decision but made direct application to the respondent for the exercise of a discretion in favour of the applicant under ss 48 and 417 of the Act. In September 2002, the respondent declined to exercise the discretion as requested. 5 On 16 October 2002, the applicant commenced the proceeding in this Court in person seeking orders requiring the respondent to remove the applicant from Australia. Subsequently pro bono representation was obtained for the applicant pursuant to Order 80 of the Rules of the Federal Court. Pro bono counsel prepared the motion for interlocutory relief and addressed the Court thereon. 6 Under s 23 of the Federal Court of Australia Act 1976 (Cth) the Court has a discretionary power to make an interlocutory order by way of an injunction restraining the respondent from continuing to keep a person in immigration detention. (See: Minister for Immigration & Multicultural & Indigenous Affairs v VFAD (2002) 125 FCR 249). 7 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 a person pursuant to s 196 of the Act must be exercised for the bona fide purpose of removing that person from Australia and is subject to the implied limitation that there be a likelihood that the removal will be able to be effected in the reasonably foreseeable future. In the absence of circumstances demonstrating that there is a real likelihood or prospect that the removal of a detainee from Australia can be effected in the reasonably foreseeable future it becomes arguable that continued detention of a person so confined is beyond power. A conclusion that there is no real likelihood or prospect of such removal being effected in the reasonably foreseeable future is not a conclusion that is to be reached lightly. 8 The motion came on for hearing on 16 July 2003. At that stage, Indian authorities had indicated by letter dated 28 March 2003, that India was not in a position to issue the applicant with travel documents. India was not satisfied that there was sufficient evidence to show that the applicant was an Indian national. On 16 July 2003, the respondent sought adjournment of the motion to allow further inquiries to be made to establish the applicant's identity. The hearing of the motion was adjourned to 6 August 2003 for those inquiries to be made and for further affidavits to be filed accordingly. 9 On resumption of the hearing the respondent presented a further affidavit sworn by an officer of the respondent's Department on 30 July 2003. The affidavit stated: "3. On 17 July 2003 I discussed the applicant's case with the Acting Secretary of DIMIA, Edward Killesteyn. I am informed by Mr Killesteyn and believe that: (a) on 17 July 2003 he personally spoke to the Indian High Commissioner, his Excellency Mr Rajendra Singh Rathore, who agreed to look into the matter; (b) the Indian High Commissioner called Mr Killesteyn on 18 July 2003 and advised him that he would issue a reminder to the Chief Secretary of the Kashmir region to follow up the original request for a travel document for the applicant; (c) the Indian High Commissioner did indicate that the Chief Secretary may be focused on other issues of concern in relation to the conflict in Kashmir; and (d) Mr Killesteyn again called the Indian High Commissioner on 23 July 2003 to request a response from the Indian authorities. 4. As at the time of swearing this affidavit, no further response has been received from the Indian authorities in relation to the request for a travel document for the applicant." 10 Having regard to the totality of evidence before the Court, including the number of years that have passed since the applicant was placed in detention and the lack of imminence, or prospect of, any arrangements being made for the removal of the applicant from Australia, I am satisfied that an interlocutory order should be made that the applicant be released from detention subject to appropriate conditions. On the material before the Court there is an arguable case that continued detention of the applicant does not meet the purposes of the Act and accordingly it is appropriate for the Court to consider exercising its jurisdiction to make an interlocutory order pending determination of the substantive issues of the application. The starting point must be that a person is entitled to be at liberty where there is a real argument that continued deprivation of liberty would be unlawful. (See: Preston v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 420 per French J at [27]). 11 I am prepared to make an order on appropriate conditions. The respondent is satisfied by the terms of an undertaking offered by the applicant and filed in Court on 15 July 2003. I am satisfied that the terms of the undertaking would constitute appropriate conditions of the order. An order will be made accordingly. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 14 September 2004 Counsel for the Applicant: JL Cameron (pro bono publico) Counsel for the Respondent: MT Ritter Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 July 2003, 6 August 2003 Date of Judgment: 6 August 2003