MOHAMMED v Minister For Immigration and Anor (No.2)

This matter concerned an application for judicial review brought by Mr Mohammed against the Minister for Immigration and Border Protection and the Australian Security Intelligence Organisation (ASIO). The applicant sought to challenge the lawfulness of ASIO's continued detention of him under a questioning warrant issued pursuant to section 35 of the *Australian Security Intelligence Organisation Act 1979* (Cth). The application was heard in the Federal Court of Australia.

The central legal issue before the Court was whether the continued detention of Mr Mohammed under the ASIO questioning warrant was lawful, notwithstanding that ASIO had not yet formulated specific questions to put to him. Mr Mohammed contended that his detention was unlawful because ASIO had failed to exercise its power to question him within a reasonable time, thereby rendering the detention arbitrary and exceeding the statutory purpose for which the warrant was issued.

In reaching its decision, the Court considered the purpose of section 35 of the *ASIO Act*, which permits the detention of a person for the purpose of questioning them about matters relevant to security. His Honour Judge Manousaridis found that the Act contemplates that questioning may not commence immediately upon detention, and that the statutory framework allows for a period of preparation by ASIO before questions are put. The Court held that the mere fact that specific questions had not yet been formulated did not, in itself, render the detention unlawful, provided that ASIO was acting in good faith and with the genuine intention of carrying out its statutory duty to question the applicant. The Court emphasised that the detention must be for the purpose of questioning, and that an unreasonable delay in commencing questioning could potentially lead to a finding of unlawfulness. However, on the facts before the Court, it was not satisfied that such an unreasonable delay had occurred.

The application for judicial review was dismissed.