Farah, Ex parte- Re Min for Immig & Multicultural Affairs

[1998] HCATrans 208

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M44 of 1998

In the matter of -

An application for a writ of prohibition and certiorari against         THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS,

First Respondent

DOMINIC CALABRO in his capacity
as a member of the REFUGEE
REVIEW TRIBUNAL

Second Respondent

Ex parte -

MOHAMED NASIR FARAH

Prosecutor/Applicant

HAYNE J   (in Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 9 JUNE 1998, AT 10.45 AM

Copyright in the High Court of Australia

______________________

HIS HONOUR:   Yes, call on the application.

MS D.S. MORTIMER:   If your Honour pleases, my name is Mortimer and I appear with my learned friend MR R.M. NIALL on behalf of Mr Farah, the Prosecutor (instructed by the Refugee Advice and Casework Service (Aust) Inc).

HIS HONOUR:   Yes, thank you, Ms Mortimer.

MR C.L. RAWSON:   If it please the Court, my name is Rawson and I appear on behalf of the Respondents (instructed by the Australian Government Solicitor).

HIS HONOUR:   Thank you, Mr Rawson.  Ms Mortimer.

MS MORTIMER:   Your Honour, this is an urgent application on behalf of Mr Farah to restrain the Minister for Immigration and Multicultural Affairs from removing Mr Farah today at 12.30 pm from Australia.  Has your Honour had a chance ‑ ‑ ‑

HIS HONOUR:   Is the removal to occur at 12.30?

MS MORTIMER:   That is what we understand, your Honour, and Mr Rawson is nodding, so we would assume that is the time the flight leaves.

HIS HONOUR:   Yes.  Mr Rawson.

MR RAWSON:   Your Honour, I have only had the briefest of an opportunity to get instructions in relation to this matter but those are my instructions, that the removal is scheduled for 12.30.

HIS HONOUR:   Thank you very much, Mr Rawson.

MS MORTIMER:   In view of the haste with which we make this application, your Honour - has your Honour had a chance to read the affidavit of Mr Clutterbuck at all?

HIS HONOUR:   I have read it once.  I do not pretend to be on top of it.  I have read the Tribunal's decision.  Again I do not pretend to be on top of that.  I have also read with a little care the letter from Refugee Advice and Casework Service of 7 June, that is exhibit 4 to Mr Clutterbuck.

MS MORTIMER:   Yes.  Your Honour, I have an affidavit from Mr Farah himself and I would seek leave to file that with the clerk now.

HIS HONOUR:   Yes.  Should I read this now?

MS MORTIMER:   Perhaps it is quicker if I take your Honour to the relevant parts of that and to Mr Clutterbuck's affidavit, just to explain the background.  The involvement of RACS has come at the last moment and it has come, according to paragraph 5 of Mr Clutterbuck's affidavit, by direct contact on Monday, 2 June, when he received a phone call.  There were then some inquiries made.  The most relevant one, paragraph 9 of Mr Clutterbuck's affidavit, where he says that he received a telephone call from the plaintiff at approximately 5 pm, advising that he had been told he was to be removed to Somalia via South Africa.

At that point, your Honour, it is probably best if your Honour does turn to Mr Farah's affidavit which explains the circumstances in which he was told and that appears at paragraph 7 on the second page.  He says that he was handed a letter rejecting his 417 application and that the manager then explained to him that:

This letter meant that my case was closed and I was going to be deported to Somalia.  She did not tell me when this was going to happen.  I told her that in Somalia I feared persecution and asked her not to send me there.   She did not respond.  On 6 June 1998 -

that's the Saturday -

the manager of the detention centre handed me an airline ticket.  It was a ticket to South Africa.  I told her that I am not a national of South Africa and asked her why she was sending me to South Africa.  She explained that I was being sent to South Africa just for a short time and that there were people there who would look after me and then arrange for me to be sent to Somalia after a few days.

That, your Honour, accords with what Mr Russell from Compliance told Mr Clutterbuck and that appears at paragraph 11 of Mr Clutterbuck's affidavit, where he deposes to a conversation with Mr Russell about organising the removal of Mr Farah via South Africa.

HIS HONOUR:   Or via a private South African agency.

MS MORTIMER:   Yes, the details of which,  your Honour, are unclear to us but seem extraordinary, if I might say so, that somehow a person is removed and under the auspices of the Australian Government and delivered into the custody - and presumably it is some kind of custody - of a third party in South Africa and from there to be dealt with, one would assume in accordance with some instructions given by the Australian Government, but none of this is within the knowledge of the person concerned at all.  In my submission, it is quite right for Mr Farah to be saying that he does not want to go to South Africa and there is no evidence ‑ ‑ ‑

HIS HONOUR:   What is it, if anything, that regulates to what place a person in Mr Farah's position would be removed?

MS MORTIMER:   In our submission, your Honour, the only regulation is to be found in the Migration Act in section 198 in relation to the power or the duty to remove unlawful non-citizens.  Our submission is that that duty or power ought to be construed in a like manner with the construction placed upon the deportation power, because that is in effect what it is, and if that is right, then in our submission, on the authorities - and we have only had the chance this morning to look at one or two - then it is a power that must be exercised reasonably and it must be exercised for the purposes of the Migration Act and within the Commonwealth's powers to make laws on that subject matter.

So it may be - and the authorities seem to suggest - that the Minister is able to nominate a place to which a person can be removed, but in doing so, that must be exercised reasonably.  Your Honour, perhaps if I take you to section 198, it's not particularly informative of the manner in which the removal is to be undertaken and it is expressed in mandatory terms.  Section 198(6) is the relevant one in relation to Mr Farah.  He is a detainee under (6)(a).  He has made a valid application for a substantive visa that could be granted when he is in the migration zone, and (c)(i) applies.  The grant of the visa has been refused and the application has been finally determined and he has not made another valid application.  So that is the relevant paragraph.

I am reminded that "finally determined" is defined in section 5(9) of the Act where it is, for our purposes, no longer subject to any review process.

HIS HONOUR:   Yes.

MS MORTIMER:   Apart from what might, in the way the section is expressed, be construed as the imposition of a duty on an officer to remove a person, there does not appear to be any other meaning given within the context of the legislation.

HIS HONOUR:   And "remove" is defined as "remove from Australia".

MS MORTIMER:   Yes, your Honour, that is correct.  In our submission, although it is defined in that way, there must be an implication of removal to a place.  It would be an absurd construction of the legislation that a person could be removed and simply dumped in international waters.  The removal from Australia must imply, in our submission, the delivery to a place.  That is indeed the way that the deportation power has been construed. 

The only decision that we found that is really relevant, your Honour, is a decision of this Court called Znaty v the Minister of State for Immigration and Anor (1972) 126 CLR 1, and I have a copy for your Honour.

HIS HONOUR:   Thank you.

MS MORTIMER:   Your Honour, that was a case where the Applicant had become an unlawful non-citizen and was not challenging the validity of the deportation, but he wanted to go to Japan and he had a ticket to go to Japan, but the Minister wanted to send him to Morocco and indeed was proposing to detain him until he was to be sent to Morocco.  So the application came on and it came on first by way of an application for interlocutory relief, which was granted.  That appears, if your Honour looks at page 3, at the beginning of the judgment of Windeyer J, down the bottom, where his Honour says that:

The evidence disclosed sufficiently, at all events, to found an interlocutory injunction that the Minister chose the aircraft by which the plaintiff was to be deported and made the arrangements.

So the question that was in issue in that case was whether in the face of an express desire by the unlawful non-citizen to go to country A, the Minister could insist on sending him to country B, and by majority the High Court held that the Minister could insist on that. 

There is a passage, your Honour, that is relevant, which is an extract from a case called Ferrando v Pierce and it appears at page 12 of the judgment of his Honour Walsh J, where his Honour reports an argument put in that case:

It was argued that the Minister's power is simply to deport and not to send the alien to any particular place.  That is perfectly clear.  But it is equally clear that a person cannot well be deported in a ship bound nowhere.  The power is exhausted when the alien is placed outside the territorial limits of the deporting country, in this instance, Australia.

That, your Honour, is relevant to our argument - and this goes to the serious question issue - of whether it actually is within the Government's power to continue the exercise of its authority to what appear to be agents in South Africa, to carry out ‑ ‑ ‑

HIS HONOUR:   On a quick look, Znaty seems to stand for the proposition that the power under section 51(xxvii) is exhausted by deportation and the Parliament lacks power, when deporting, to insist that the deportee be taken to a particular place.  I read from the headnote.  But no matter.  The point you seek to make, as I understand it, is that the power to remove is a power that must be exercised, what, for the purposes of the Act?

MS MORTIMER:   For the purposes of the Act and reasonably - and we would add, your Honour, unless there is something to indicate to the contrary in the legislation in a manner that is consistent with Australia's international obligations.

HIS HONOUR:   Yes.  Then out of Znaty, where do I find the best reference for the proposition that you advanced, you say - in this quote out of Ferrando?

MS MORTIMER:   No, your Honour.  If I might just take your Honour to the headnote, it is actually rather misleading because the part in brackets by the Chief Justice, his Honour Barwick CJ, and Windeyer J, is actually their dissenting opinion.  So the majority held for the contrary proposition, your Honour.  The best part is on pages 7 and 8 of Walsh J's decision, where down the bottom his Honour says:

On the material before the Court I think that the inference is open that the Minister or his agent decided that the course which ought to be taken in relation to the Plaintiff was to make arrangements that he go to Morocco.  It appears I think that the choice of the particular flight was not made at random or because it was the first flight.  It was made because the Minister, no doubt for reasons which seemed good to him, preferred the plaintiff should go to Morocco.

Further down in the next paragraph:

In my opinion, the Minister may determine the way in which a deportation order is to be carried out and may choose the vessel or aircraft in which the deportee is to leave the country.

So what that suggests, your Honour, is that there is some content to the power to remove and that there is a variety of ways in which it might be exercised and that therefore, in our submission, if that is so and the Minister has some choice about the manner in which he is to exercise his statutory power, then it is to be done reasonably in accordance with the purposes of the Act and in accordance with Australia's international obligations.

HIS HONOUR:   If you go to page 9 of Walsh J's judgment, at about point 3 of the page his Honour says:

The intention is here disclosed by the Act that the authorities may select a place to which the deportee is to go and may then take steps designed to produce the result that he goes to that place.  Like section 39, this provision is in no way limited by any exception making it unavailable if the deportee offers a different arrangement for his departure.

The argument then apparently went on that if, as in Znaty's case, the deportee was willing to go, it had been contended that that willingness should be in effect enforced.  But Walsh J seems in the passage I have referred to and the passage appearing later down the page, to say that the Minister has power to make his own decision and to give effect to the deportation order in a way which seems to him proper, including the selecting by him at the time at which and the manner in which the deportee should leave the country.

MS MORTIMER:   Yes, your Honour, and that is confirmed at the bottom of page 9 and the top of page 10, where what his Honour says is that:

The Minister has a power to accede to the request if he thinks fit and has a power to give effect to his own decision if he does not see fit.

HIS HONOUR:   Yes.  The contention you wish to make at trial would be a contention that the power conferred in apparently general terms by the section to which you earlier took me, 198(6), is hedged about by a requirement - how would you express it?

MS MORTIMER:   That it be exercised in a manner which is consistent with the purpose and object of the legislation; that it be exercised in a manner which is reasonable, and that it be exercised in a manner which is consistent with Australia's international obligations.

HIS HONOUR:   Yes.

MS MORTIMER:   Before we leave Znaty's case, your Honour, there is one thing I want to make clear and that is that although it is not quite on point, what it does demonstrate is that within the decision to deport there is room for choice for the Minister.  If that is so, your Honour, it is our submission that it must be a decision that is reviewable by this Court.  There must be manners in which it can be exercised which are lawful and manners in which it can be exercised which are unlawful.

HIS HONOUR:   Yes.

MS MORTIMER:   The grounds on which we say that this particular exercise is unlawful are set out in our draft order, your Honour, and perhaps it is convenient if I take your Honour to that.

HIS HONOUR:   This may lead to a further question, understanding as I do that you have come here:  why is this a matter, subject to whatever interim relief I give, that should not be remitted?  I understand if interim relief is to go it either goes from me or it doesn't go and this man is out of the country.

MS MORTIMER:   Yes.

HIS HONOUR:   But subject to interim relief, if I were to grant it, why should I not simply grant interim relief pending hearing and determination of an application for order nisi to the Federal Court and remit the proceeding to the Federal Court?  Is this one of the matters that falls within Division 8?

MS MORTIMER:   No, it's not, your Honour, in the sense there are several aspects to the challenge.  We challenge the decision of the Minister to remove.  That, we say, is not a judicially reviewable decision under Part 8 of the Migration Act.  So that is not affected by the ouster clause and could be the subject to proceedings in the Federal Court.

We also, however, seek to challenge the decision of the Refugee Review Tribunal and we seek certiorari to quash that decision.

HIS HONOUR:   Yes, on what basis?

MS MORTIMER:   On the basis of errors of law in construction of the relevant test to be applied.  Our grounds in relation to that are set out at paragraph 7, 8, 9 and 10.

HIS HONOUR:   And are those bases excluded under Part 8, if it is remitted?

MS MORTIMER:   Yes, your Honour, they are.

HIS HONOUR:   Where are they excluded?

MS MORTIMER:   There is a time clause, your Honour, in the Migration Act, section 478, which prescribes the time in which an application may be made to the Federal Court.

HIS HONOUR:   Yes, I understand that.  But if it is remitted ‑ ‑ ‑

MS MORTIMER:   If it is remitted, then the argument is that the Court is invested with the jurisdiction of this Court and therefore those ouster provisions would not apply.

HIS HONOUR:   The time provision may not apply but the ouster provision, there may be a lively question about that.  But why isn't this a 476(1)(e) issue, namely, a decision involving an error of law?  If it is, is not that something that the Federal Court can look at?  I come to this with a pretty clean slate, Ms Mortimer, and you should not accept the gift that is offered from the Bench without the closest possible examination of it.

MS MORTIMER:   I will attempt to do that, your Honour.  I would say two things and they are matters - since this is perhaps a matter for your Honour's discretion, they are relevant.  The first is that the way that section 478(2) is expressed, is that the Federal Court must not make an order allowing or which has the effect of allowing an Applicant to lodge an application outside the period.  Now, whether in exercising jurisdiction on remitter from this Court and ultimately determining the matter, the Federal Court is making an order which has the effect of allowing an application out of time, would no doubt be a matter that would be agitated in the Federal Court and would be a matter that need not trouble this Court if it were to remain in this Court.

The second point, your Honour, is that although I have put to your Honour our submission that this is not a judicially reviewable decision and is not affected in that sense by the constraints upon the Federal Court's jurisdiction, I have no doubt that will also be a matter of challenge and that again raises another question in relation to jurisdiction.  These are difficult issues of jurisdiction that will prolong the matter.

HIS HONOUR:   Complicated further by the fact that Abebe is pending in this Court.  Abebe is to be returned before a Full Court.  We have no date yet for Abebe and the issues of relationship between the split of jurisdiction may - they may not - be dealt with in Abebe.

MS MORTIMER:   Your Honour, the question of remitter is a matter that ought, in my submission, be the subject of a full and considered argument and that's, in my submission, not an impediment to your Honour making an order today.  We would seek your Honour to ‑ ‑ ‑

HIS HONOUR:   At the moment, Ms Mortimer, my present inclination is to consider the matter in this framework:  that either I give or withhold interim relief.  If I withhold it, then that will be an end of the matter, the man will have gone.  If I give it, the question then arises, for how long do I give it and does it come back in this Court or in the Federal Court?  If I give interim relief, my present inclination would be to give it for a limited time - limited by days, if that is possible - to allow both parties to have an opportunity to consider, amongst other questions, questions of remitter.

I am not at the moment minded to grant any order nisi, but only to consider the grant of interim relief, so that the parties might then be in a position where they can present argument - and do not understand this in any way as critical of you, it is not - but present argument where they have had a chance to think about it, rather than do everything on the tear.

MS MORTIMER:   Yes.

HIS HONOUR:   Which I rather suspect all of you have been doing a bit.

MS MORTIMER:   Large tears, your Honour.  Yes, your Honour, we are perfectly content with that course of action and we certainly wouldn't seek - because we acknowledge that the Minister has been very lately served with these and we certainly wouldn't seek to argue the order nisi.

HIS HONOUR:   I obviously need to hear what Mr Rawson has to say, but there is this further complicating factor, Ms Mortimer.  I am back in Canberra next week and in Brisbane the week following.  That suggests to me that there is, if it is possible, much to be said for bringing this matter back on before me in Melbourne, say, on Friday.  The alternative is it has got to come on pre or post Court during fairly heavy sittings next week and that, (a) involves parties an expense of pulling everybody up to Canberra, and (b) delays the thing further.  That is the time constraint that exists.

MS MORTIMER:   Yes, I understand.

HIS HONOUR:   I am not minded to set this thing over for a fortnight or anything of that kind.  I think we have got to deal with it a little quicker than that.

MS MORTIMER:   Yes.

HIS HONOUR:   What do you say about my considering the question in terms of possible interim relief, say, until Friday, to enable the parties to come back on Friday and at least state their then positions?

MS MORTIMER:   The only matter that I could say to that, your Honour, is it would depend on the parties' ability to gather their counsel together to do that.  Mr Farah has no Legal Aid and so this has been done on a pro bono basis on his part.

HIS HONOUR:   I understand that.

MS MORTIMER:   For myself, I will be in Darwin doing a case until Friday and I do not know about my learned friend, and we would obviously want to see if we could get hold of Senior Counsel as well, and I do not know what Mr Rawson's counsel's availability would be.  My submission would be I would hate to see it not well argued for the sake of holding it over the weekend, your Honour, that's all.

HIS HONOUR:   I understand that, but I am then back up in Canberra.  I cannot remember the proposal for next week, whether I have got a full book next week or not.  I am not sitting Monday.  I had intended go to Canberra early Monday morning.  I could, if needs be, push it over so that there would be time to hear this thing Monday morning, but understanding, as I do, the pressures that are coming from your side, Ms Mortimer, and not downplaying them, perhaps if I hear from Mr Rawson about what attitude the Respondent has on the strength of - what shall we say - 20 minutes' notice the Respondent has had, Ms Mortimer?

MS MORTIMER:   Yes, if the Court pleases.

HIS HONOUR:   So with all of that time to consider your position, Mr Rawson, 20 minutes at the top.

MR RAWSON:   Thank you, your Honour.  I have been instructed quite late in this matter and I haven't had the opportunity to gain full instructions.  I have had some of my instructions updated during the hearing of this matter.  The Respondent's first position would be that this Court ought to decline any interim relief and the removal should go ahead as scheduled.

HIS HONOUR:   Ordinarily one would ask a private party what hardship would you suffer if an injunction goes.  That is a rather quaint question to direct to a person in the position of the Minister.  What difficulty or other features do you think I should bear in mind in considering where lies the balance of convenience, Mr Rawson?

MR RAWSON:   In this matter, both practical and legal matters, your Honour.  Practically the arrangements have been made.  They would have to be remade.  I appreciate in the scheme of things in this matter that may not be a significant matter of itself, but the overriding reason the Respondent would say interim relief ought to be declined is that the Respondent is legally obliged under section 198(6) of the Migration Act to remove this Applicant, on my instructions, in the present circumstances.

HIS HONOUR:   As things presently stand of course, there is a positive statutory duty on whoever is referred to as an officer, to remove this man.

MR RAWSON:   Yes, your Honour.

HIS HONOUR:   The lively question at the moment is, remove him where?  I have no view at the moment beyond the view that there may be a case for investigation, there may not, about whether removal can take place to a country which the person removed asserts is a country with which he has no connection.  There are about 12 steps involved in that, not least being the assertion by the person being removed that he has no connection with South Africa.  Reading the Tribunal decision, there was a lively issue there, whether this man is or is not a Somali, resolved against him by the Tribunal which has the advantage of seeing him.  Things might, they might not have, been different if he were about to be removed directly to Somalia.  It might be a bit difficult too as a matter of practical reality.

MR RAWSON:   As a matter of practical reality, your Honour, I am not aware of any direct flights that would enable that to occur.  There are probably a number of responses I can make to that, your Honour, the first being, on my very brief reading of the case referred to by my learned friend, there does not appear to be anything in the majority judgments inconsistent with the course proposed to be taken by the Minister - on my brief reading admittedly of that decision.

HIS HONOUR:   I would think you would place emphasis on the fact that Walsh J rejects the argument that the Minister is without power to make his own decision and to give effect to the deportation order in a way which to him seems proper, etcetera.

MR RAWSON:   Indeed I would, your Honour.  I cannot pretend that I have read the other two majority judgments but I would place emphasis on that.

HIS HONOUR:   There is the practical difficulty that arrangements made have to be unmade.  There is the legal point which you make that there is positive obligation to remove.  What other features are there that you say I should take into account, Mr Rawson?

MR RAWSON:   In my submission, your Honour ought to take into account whether or not there is a triable issue in this matter.  On the material put forward on the affidavits it is by no means clear, in my submission, that one exists.  If your Honour will just bear with me for a moment.  The arrangements, as I understand it, that have been made for the Applicant's removal, on my instructions, are consistent with what is deposed to in paragraphs 11 and 12 of Mr Clutterbuck's affidavit and in my submission, there is nothing been put forward today as to why those arrangements would be inappropriate to return the Applicant to Somalia. 

The Applicant, as deposed here, is to be returned to South Africa, where his arrangement is he will be placed in the hands of a private agency with a view to him being repatriated to Somalia.

HIS HONOUR:   Ordinarily I would be struck by the fact that the agency concerned is a private rather than governmental agency.  Perhaps I should be less struck by that fact, given that these days you can go to gaol and be in custody of private organisations, rather than governmental organisations; but there we are.

MR RAWSON:   Indeed, your Honour.  I think that is a feature of the 1990s, your Honour.  I am certainly not instructed as to the particulars of this organisation but I do not think that there is anything of itself that should be taken to be abnormal about that arrangement.

HIS HONOUR:   If I were to conclude that the parties should have an opportunity at least to take a breath and consider whether there is or is not an argument that might be more fully developed, what do you say about my granting interim relief only until, say, Friday or Monday, pending further argument?

MR RAWSON:   Yes, if your Honour were to take that view, I think our position would be that the interim relief should be for as short a period as is practicable, for the reason that the Minister would be desirous of being able to, first of all, know as soon as possible whether the arrangements were to be remade, and if they were, to remake them.

HIS HONOUR:   Yes.

MR RAWSON:   As far as availability of counsel goes, the Respondent has received notice of this matter this morning so late that it was not possible to obtain counsel and I do not think we would refuse a hearing at the earliest opportunity simply for reason of choosing particular counsel, your Honour.

HIS HONOUR:   Yes.  If I were to appoint 9.30 Monday as the time for return of the application and to order interim relief until 4.15 Monday or further order, I would be minded to allow half a day for argument on Monday morning.  Whether that will prove sufficient is something that we can look at then.  But the logically anterior question is, does any interim relief go?  As I understand it, Mr Rawson, legal duty, practical difficulty of undoing and remaking - any other feature I should take into account - and strength of case is, you say, at the core of it.

MR RAWSON:   The only other issue would be the explanation for the delay but I guess in this situation it cannot be said that there is a delay in response to the notice of removal.  But the Applicant's case history, on my instructions, is one that does show that every avenue has been exhausted - some avenues more than once by this particular Applicant.  Certainly the Tribunal of which a writ of certiorari is sought, was a Tribunal decision of over 12 months ago.

HIS HONOUR:   Yes.

MR RAWSON:   The Minister has had a request under two different powers to consider humanitarian intervention since then and those requests have been determined - one I believe from the affidavit material put forward by the Applicant in February and one 1 June.  So it could not be said that all avenues had not been exhausted, your Honour.

HIS HONOUR:   Yes, thank you, Mr Rawson.  Ms Mortimer, what form of order do you say I should make?  I am minded to make an order restraining removal until 4.15 pm Monday next, 15 June, or further order.  What form should that order take?

MS MORTIMER:   Yes - that the first Respondent, his servants and agents, be restrained until 4 pm on Monday, 15 June 1998, or further order, from removing or attempting to remove Prosecutor from Australia.  That, your Honour, corresponds fairly closely to the order that was made by Kirby J in Abebe.  I have a copy of that, your Honour.

HIS HONOUR:   Yes, I have looked at that.  What other directions, if any, do you say I should make?

MS MORTIMER:   That the Respondent file any material in opposition to the material filed by the Prosecutor on or before perhaps close of business on Thursday, 11 June, and that, as I understood your Honour, the matter otherwise be adjourned until 9.30 am on Monday.

HIS HONOUR:   Is there any possibility that counsel can put in outlines of submissions by 4 o'clock Friday?

MS MORTIMER:   Of course, your Honour.

HIS HONOUR:   I am not minded to bind the Respondent about the time for preparation of material, Ms Mortimer.  I think that the Respondent is coming in with a few green stamps in the book and the Respondent can put on its material as and when, I think.  If that leaves you in a difficulty, there we are.

MS MORTIMER:   That perhaps makes us even, your Honour, then.

HIS HONOUR:   Not simply to make things even but ‑ ‑ ‑

MS MORTIMER:   Yes, I understand, your Honour; of course.  So the outlines by close of business but the Respondent simply has leave to file any material.

HIS HONOUR:   Just no direction about that.

MS MORTIMER:   Yes.  The costs of the application be reserved, your Honour.

HIS HONOUR:   Yes.  Mr Rawson, are there any terms or proposals that you would make about the form of an order?

MR RAWSON:   No, your Honour, I think with respect it is probably an appropriate order, given the view your Honour has taken.

HIS HONOUR:   Yes.  For the reasons which I will give shortly, there will be an order that the First-Named Respondent, by himself, his servants or agents, or otherwise howsoever, is restrained until 4.15 pm, 15 June 1998, or further order, from removing or attempting to remove the Prosecutor, Mohamed Nasir Farah, from Australia.

I direct that the Prosecutor's application be adjourned for further hearing before me at 9.30 am, Monday, 15 June 1998.  I direct that the Prosecutor and the Respondent file and serve on the opposite party outlines of their contentions on or before 4 pm, 12 June 1998.  The costs of today will be reserved and there will be a certificate for the attendance of counsel.

Mr Rawson, the order having now been made, it may be that those instructing you will wish to communicate that order to those who are affected by it.  I would propose to give some very brief reasons for giving those orders, but those orders are made now.

Mohamed Nasir Farah has applied for orders nisi for prohibition and certiorari directed to the Minister for Immigration and Multicultural Affairs and to Dominic Calabro, in his capacity as a member of the Refugee Review Tribunal.  Prosecutor/Applicant is due to be removed from this country at 12.30 pm today.  Application was made to me this morning for interim relief restraining his removal, pending the hearing and determination of the application for order nisi.

The present application has been brought on very quickly.  The Prosecutor/Applicant arrived in this country in 1996 and in April 1996 applied for refugee status.  That application failed.  He has since made a number of applications to the Refugee Review Tribunal and to the Minister, seeking in effect to overturn that refusal.  All of those applications have failed.

On 6 June 1998, the Prosecutor/Applicant was handed by the manager of the detention centre in which he was held, an airline ticket to South Africa.  The manager told him that he was being sent to South Africa for a short time and that there were people there who would look after him and then arrange for him to be sent on to Somalia after a few days.  Other material filed suggests that the Prosecutor/Applicant is to be removed to South Africa and there handed into the care or perhaps custody of a private South African agency that would organise for his travel to Somalia.

The Prosecutor/Applicant seeks to challenge, amongst other things, the decision to remove him from Australia to South Africa.  He seeks to contend that although there may be a duty imposed by section 198(6) of the Migration Act on officers to remove him as soon as reasonably practicable, that duty must be exercised in a manner consistent with the purpose of the legislation, in a fashion that is reasonable, and in a way that is consistent with Australia's international obligations.

It is sought to contend that a decision to remove the Applicant to a country other than the country of which he claims to be a citizen is unreasonable, or alternatively, that a decision to remove him to another country where he is then to be handed into the care of a private as opposed to government organisation, is unreasonable, not consistent with the purpose of the legislation and not consistent with Australia's international obligations.

In the very short time that counsel has had in which to prepare the matter for argument, and in the shorter time which I have had available to me to consider the matter, I am not persuaded that the argument which it is sought to mount cannot be described as raising a case for inquiry.  That being so, I considered that it was a case in which interim relief should be granted, notwithstanding the countervailing features relied on by the Respondents, which were, chiefly, the apparent weakness of the claim made, the statutory duty on officers to remove and the practical difficulty that would follow from unmaking and later remaking arrangements for removal.

Since the matter is to return for fuller argument on 15 June 1998, it is I think unnecessary and undesirable that I say more.  In the course of argument today I raised with counsel the question whether this was a matter which in any event should later be remitted for hearing by the Federal Court of Australia.  No doubt those are matters which can and ought to be explored further on the return of the application for interlocutory relief.

Similarly, on the return of that application for interlocutory relief, it may be that consideration will have to be given to the course that is taken, given the pendency of the proceedings in the matter of Abebe.  They are, however, as I have said, matters for another day.  I have already pronounced the orders that should be made today.  Might I thank counsel for their assistance.  Are there any other matters?

MS MORTIMER:   Your Honour, perhaps we ought to just inform the Court that the orders have been communicated and Mr Farah was still at the detention centre and so the orders have been communicated there.

HIS HONOUR:   Thank you very much, Ms Mortimer.  This matter will stand adjourned until Monday next at 9.30 am.

MATTER ADJOURNED AT 11.40 AM
UNTIL MONDAY 15 JUNE 1998