FEDERAL COURT OF AUSTRALIA
Alsalih v Manager Baxter Immigration Detention Facility [2004] FCA 352
MIGRATION – Migration Act – Detention – Who has custody of detainees – Power to detain – Whether reasonable prospect of removal from Australia within a reasonable period – whether objective or subjective test – Evidence to be called – Habeas corpus – Whether Federal Court has jurisdiction to grant Habeas Corpus
Migration Act 1958 (Cth)
Judiciary Act, 1903 (Cth)SHFB v Minister for Immigration and Indigenous Affairs [2003] FCA 29
Kidman v Commonwealth (1925) 37 CLR 233
M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 290
SAAK v Minister for Immigration & Multicultural & Indigenous Affairs (No 4) [2004] FCA 104
NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292
M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290
Al Masri v Minister for Immigration and Multicultural Affairs (2002) 192 ALR 609
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
R v Home Department State Secretary;Ex parte Khawaja [1984] AC 74
Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97
Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36
Naumovska v Minister for Immigration and Multicultural and Indigenous (1982) 41 ALR 635
Re Stanbridge's Application (1996) 70 ALJR 640, 642-643
Phong v Attorney-General (Cth) (2001) 185 ALR 753, 761 [25]
Lloyd v Wallach (1915) 20 CLR 299
R v Carter Ex parte Kisch (1934) 52 CLR 221
Re Superintendent of Training Centre at Goulbourn and Anor Ex parte Pelle (1983) 48 ALR 225
Ex parte Walsh and Johnson; In Re Yates (1925) 37 CLR 36
Bateman's Bay v Aboriginal Fund (1998) 194 CLR 247
R v Transport Secretary Ex parte Factortame [1990] 2 AC 85
Rankin v Huskisson (1830) 4 Sim 13
Nireaha Tamiki v Baker [1901] AC 561
M v Home Office [1994] 1 AC 377
City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Prisoners A-XX Inclusive v State of New South Wales (1995) 38 NSWLR 633
Durham Holdings v NSW (2001) 205 CLR 399
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598
Park Oh Ho & Ors v Minister of State for Immigration and Ethnic Affairs (1989) 167 CLR 637
Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Richardson v Forestry Commission (1988) 164 CLR 261
South Australia v Tanner (1989) 166 CLR 1
Sportodds Systems v NSW (2003) 202 ALR 98
Te v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 497
Haney v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1555
Agha v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 164
SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC…
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- Case
- [2004] FCA 352
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the applicant was a Sudanese citizen and, if so, whether his detention remained lawful in light of his status and his cooperation with relevant authorities. The Court had to interpret the provisions of the Migration Act, particularly those concerning the detention of non-citizens and the circumstances under which such detention could be considered unlawful. Additionally, the Court needed to assess the applicant's cooperation with authorities and its relevance to his continued detention.
In delivering the judgment, the Court examined the evidence regarding the applicant's citizenship and his cooperation with authorities. It found that while the applicant had not satisfied officials from the Sudanese embassies that he was a Sudanese citizen, there was no evidence to suggest that he was uncooperative during those interviews. The Court noted that the applicant's status as a Sudanese citizen was a matter of objective fact, and the evidence did not establish that the applicant had intentionally misled the Sudanese officials. The Court also acknowledged the principle that detention may remain lawful if the non-citizen fails to cooperate in their removal, but found that this principle did not apply given the circumstances of the case.
Consequently, the Court dismissed the application for release from detention. The Court recognized the pro bono efforts of the legal representatives involved and expressed appreciation for the legal profession's support in providing representation to detainees in need. The Court indicated that it would hear submissions regarding costs at a later date.
Orders
Orders of the court
The application for release from detention be dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: SELWAY J
I do note, however, that what prospects there currently are may change quickly. If, for example, it became clear that the documents being sought from the Kuwaiti government do not exist or cannot be obtained in reasonably short order, or that the documents which are obtained do not confirm that the applicant is a Sudanese citizen then his continued detention thereafter might be questionable under the principles established in Al Masri. CO-OPERATION It is clear that the Full Court in Al Masri at 273 [137] accepted that detention which would otherwise be unlawful by reason of non compliance with the second limitation will remain lawful if the reason that the removal has not been effected is the failure of the applicant to co-operate in such removal. This has been accepted in later cases: see SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 295 at [16]. Given the conclusions I have reached above it is unnecessary for me to deal with this issue. However, as there were submissions made in relation to it I should record that it was accepted by Minister that as at the date of the hearing the applicant was relevantly co-operating. There is nothing before me to suggest that the situation has changed subsequently. As already discussed, a good deal of the correspondence between SMI and DIMIA related to whether or not the applicant was relevantly co-operating in seeking to satisfy the Sudanese government that he was a Sudanese citizen whilst he was in Dar Es Salaam and Johannesburg. Whatever the source of this duty to co-operate might be it is difficult to see what application it can have to events occurring in the transit lounges of the Dar Es Salaam and Johannesburg airports when the applicant was no longer in detention pursuant to the Act. There may also be some difficulties in applying the requirement that the applicant "co-operate" in a case like the present one - a case where the applicant has failed in his claim to be a refugee because he was not believed in his claim to be a citizen of a particular country, all grounds of review have been exhausted, but subsequently it has been agreed (and I have so found) that he is in fact a citizen of that country. Nevertheless, for the reasons given above, the issue before me involves a determination of objective facts. Whatever DIMIA officers may have concluded on the basis of the correspondence in Departmental files and of what they were informed by SMI, the admissible evidence before me does not establish that the applicant was unco-operative during the interviews with officials from the Sudanese embassies. In particular the evidence does not establish that he informed those officials that he was not a Sudanese citizen. It merely established that he did not satisfy the officials that he was a Sudanese citizen. For the above reasons the application for release from detention will be dismissed. The Court records the considerable assistance it received from Mr Ower who appeared pro bono for the applicant and from the solicitors who instructed him who also act pro bono. The profession is to be commended for the efforts it makes to ensure that those in detention who are unable to afford legal representation but nevertheless would be assisted by it are represented before the courts. I will hear the parties as to costs.