Al Alewa v Minister for Home Affairs & Anor

[2021] HCATrans 175

[2021] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P10 of 2021

B e t w e e n -

FAWAZ AL ALEWA

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO SYDNEY

ON THURSDAY, 28 OCTOBER 2021, AT 9.31 AM

Copyright in the High Court of Australia

HIS HONOUR:   I dismiss with costs the application for a constitutional or other writ.  I publish my reasons and I direct that those reasons be incorporated into the transcript.

Before me is an application for a constitutional or other writ filed in the original jurisdiction of the High Court which I propose to dismiss under r 25.09.1 of the High Court Rules 2004 (Cth) on the basis that it does not disclose an arguable basis for any of the relief sought.

The plaintiff is a citizen of Lebanon who arrived in Australia in 2013.  He held a series of visas, the last of which expired in 2018.  He was soon afterwards taken into immigration detention where he remains.  The defendants are the Minister for Home Affairs and the Commonwealth of Australia.

By the application, the plaintiff seeks writs of prohibition and habeas corpus, a declaration that his detention was, and continuing detention is, unlawful, together with damages for false imprisonment on an aggravated and exemplary basis.

The plaintiff bases his claim for that relief on a single ground to the effect that his immigration detention under s 189(1) of the Migration Act 1958 (Cth) was and is unlawful. That is because, he argues, the Minister and other officers of the Commonwealth are “either unwilling or unable” to remove him from Australia to Lebanon within “the foreseeable future”.

To the extent the plaintiff relies on circumstances related to the COVID-19 pandemic to establish an inability to remove the plaintiff from Australia to Lebanon in the foreseeable future, the ground is unsupported by the evidence on which he relies.

To the extent the plaintiff seeks to rely on an inference of unwillingness on the part of the Minister and other officers of the Commonwealth to remove him from Australia to Lebanon, the relief he seeks is foreclosed by The Commonwealth v AJL20 (2021) 95 ALJR 567; 391 ALR 562.

The application will be dismissed.  There being no reason why costs should not follow the event, the plaintiff must pay the costs of the defendants.

AT 9.31 AM THE MATTER CONCLUDED