NAGA v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 460
•17 APRIL 2003
FEDERAL COURT OF AUSTRALIA
NAGA v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 460MIGRATION – detention of unlawful non-citizens – application for orders in the nature of a writ of habeas corpus – where continued detention of applicant unlawful where no real prospect of removal in the reasonably foreseeable future – interlocutory relief granted
Migration Act 1958 (Cth) ss 196, 198
Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 192 ALR 609 cited
Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70 applied
NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 224 citedNAGA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1353 OF 2002
NAGB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1354 OF 2002
NAGC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1355 OF 2002
NAGD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1356 OF 2002
NAGE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1357 OF 2002
NAGF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1358 OF 2002
EMMETT J
17 APRIL 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N1353 OF 2003
BETWEEN:
NAGA
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
17 APRIL 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. the Minister for Immigration & Multicultural & Indigenous Affairs cause the applicant to be released from detention forthwith;
2. within 24 hours of the applicant’s release from detention the applicant by his solicitor give notice in writing to Hervée Dejean at the Australian Government Solicitor, Level 23, 133 Castlereagh Street, Sydney of his address and contact details and thereafter notify forthwith his solicitors and the Australian Government Solicitor at the above address of any change of address and contact details;
3. in the event that the applicant receives notice in writing from the Australian Government Solicitor or an officer of the Department of Immigration and Multicultural and Indigenous Affairs (‘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, he shall submit to the custody of the respondent for that purpose;
4. the applicant report to DIMIA in person two week days per week and by telephone on the other three week days per week between the hours of 9.00 am and 5.00 pm, or at a police station or any other place to be agreed between the parties by their solicitors on a daily basis between the hours of 9.00 am and 5.00 pm, or in such other manner as the parties by their solicitors may agree;
5. the applicant attend in person any hearing in the Federal Court of Australia or in the High Court of Australia appointed by the Court for the purpose of making orders of which he is given reasonable notice in writing by the Australian Government Solicitor provided that, if such attendance is required at a city in which the Applicant is not then residing, he may so attend by attending the Registry of the Court before which any such application is listed in the capital city in which he is then residing or nearest to the capital city in which he is then residing and if he is not then residing in a capital city, provided he is provided by the respondent at the time of notification with reasonable transport and accommodation expenses to travel to such capital city and remain there during any such hearing;
6. liberty to either party to apply or vary or discharge this order, including as to the reporting requirements in order 4 hereof;
7. the respondent file and serve no later than 9 May 2003 any further affidavits on which he wishes to rely in the proceeding together with any affidavits on which he wishes to rely in support of any application to reopen in order to rely on those first affidavits;
8. the proceeding be listed for directions on 16 May 2003.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N1354 OF 2003
BETWEEN:
NAGB
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
17 APRIL 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. the Minister for Immigration & Multicultural & Indigenous Affairs cause the applicant to be released from detention forthwith;
2. within 24 hours of the applicant’s release from detention the applicant by his solicitor give notice in writing to Hervée Dejean at the Australian Government Solicitor, Level 23, 133 Castlereagh Street, Sydney of his address and contact details and thereafter notify forthwith his solicitors and the Australian Government Solicitor at the above address of any change of address and contact details;
3. in the event that the applicant receives notice in writing from the Australian Government Solicitor or an officer of the Department of Immigration and Multicultural and Indigenous Affairs (‘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, he shall submit to the custody of the respondent for that purpose;
4. the applicant report to DIMIA in person two week days per week and by telephone on the other three week days per week between the hours of 9.00 am and 5.00 pm, or at a police station or any other place to be agreed between the parties by their solicitors on a daily basis between the hours of 9.00 am and 5.00 pm, or in such other manner as the parties by their solicitors may agree;
5. the applicant attend in person any hearing in the Federal Court of Australia or in the High Court of Australia appointed by the Court for the purpose of making orders of which he is given reasonable notice in writing by the Australian Government Solicitor provided that, if such attendance is required at a city in which the Applicant is not then residing, he may so attend by attending the Registry of the Court before which any such application is listed in the capital city in which he is then residing or nearest to the capital city in which he is then residing and if he is not then residing in a capital city, provided he is provided by the respondent at the time of notification with reasonable transport and accommodation expenses to travel to such capital city and remain there during any such hearing;
6. liberty to either party to apply or vary or discharge this order, including as to the reporting requirements in order 4 hereof;
7. the respondent file and serve no later than 9 May 2003 any further affidavits on which he wishes to rely in the proceeding together with any affidavits on which he wishes to rely in support of any application to reopen in order to rely on those first affidavits;
8. the proceeding be listed for directions on 16 May 2003.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N1355 OF 2003
BETWEEN:
NAGC
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
17 APRIL 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. the Minister for Immigration & Multicultural & Indigenous Affairs cause the applicant to be released from detention forthwith;
2. within 24 hours of the applicant’s release from detention the applicant by his solicitor give notice in writing to Hervée Dejean at the Australian Government Solicitor, Level 23, 133 Castlereagh Street, Sydney of his address and contact details and thereafter notify forthwith his solicitors and the Australian Government Solicitor at the above address of any change of address and contact details;
3. in the event that the applicant receives notice in writing from the Australian Government Solicitor or an officer of the Department of Immigration and Multicultural and Indigenous Affairs (‘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, he shall submit to the custody of the respondent for that purpose;
4. the applicant report to DIMIA in person two week days per week and by telephone on the other three week days per week between the hours of 9.00 am and 5.00 pm, or at a police station or any other place to be agreed between the parties by their solicitors on a daily basis between the hours of 9.00 am and 5.00 pm, or in such other manner as the parties by their solicitors may agree;
5. the applicant attend in person any hearing in the Federal Court of Australia or in the High Court of Australia appointed by the Court for the purpose of making orders of which he is given reasonable notice in writing by the Australian Government Solicitor provided that, if such attendance is required at a city in which the Applicant is not then residing, he may so attend by attending the Registry of the Court before which any such application is listed in the capital city in which he is then residing or nearest to the capital city in which he is then residing and if he is not then residing in a capital city, provided he is provided by the respondent at the time of notification with reasonable transport and accommodation expenses to travel to such capital city and remain there during any such hearing;
6. liberty to either party to apply or vary or discharge this order, including as to the reporting requirements in order 4 hereof;
7. the respondent file and serve no later than 9 May 2003 any further affidavits on which he wishes to rely in the proceeding together with any affidavits on which he wishes to rely in support of any application to reopen in order to rely on those first affidavits;
8. the proceeding be listed for directions on 16 May 2003.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N1356 OF 2003
BETWEEN:
NAGD
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
17 APRIL 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. the Minister for Immigration & Multicultural & Indigenous Affairs cause the applicant to be released from detention forthwith;
2. within 24 hours of the applicant’s release from detention the applicant by his solicitor give notice in writing to Hervée Dejean at the Australian Government Solicitor, Level 23, 133 Castlereagh Street, Sydney of his address and contact details and thereafter notify forthwith his solicitors and the Australian Government Solicitor at the above address of any change of address and contact details;
3. in the event that the applicant receives notice in writing from the Australian Government Solicitor or an officer of the Department of Immigration and Multicultural and Indigenous Affairs (‘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, he shall submit to the custody of the respondent for that purpose;
4. the applicant report to DIMIA in person two week days per week and by telephone on the other three week days per week between the hours of 9.00 am and 5.00 pm, or at a police station or any other place to be agreed between the parties by their solicitors on a daily basis between the hours of 9.00 am and 5.00 pm, or in such other manner as the parties by their solicitors may agree;
5. the applicant attend in person any hearing in the Federal Court of Australia or in the High Court of Australia appointed by the Court for the purpose of making orders of which he is given reasonable notice in writing by the Australian Government Solicitor provided that, if such attendance is required at a city in which the Applicant is not then residing, he may so attend by attending the Registry of the Court before which any such application is listed in the capital city in which he is then residing or nearest to the capital city in which he is then residing and if he is not then residing in a capital city, provided he is provided by the respondent at the time of notification with reasonable transport and accommodation expenses to travel to such capital city and remain there during any such hearing;
6. liberty to either party to apply or vary or discharge this order, including as to the reporting requirements in order 4 hereof;
7. the respondent file and serve no later than 9 May 2003 any further affidavits on which he wishes to rely in the proceeding together with any affidavits on which he wishes to rely in support of any application to reopen in order to rely on those first affidavits;
8. the proceeding be listed for directions on 16 May 2003.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N1357 OF 2003
BETWEEN:
NAGE
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
17 APRIL 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. the Minister for Immigration & Multicultural & Indigenous Affairs cause the applicant to be released from detention forthwith;
2. within 24 hours of the applicant’s release from detention the applicant by his solicitor give notice in writing to Hervée Dejean at the Australian Government Solicitor, Level 23, 133 Castlereagh Street, Sydney of his address and contact details and thereafter notify forthwith his solicitors and the Australian Government Solicitor at the above address of any change of address and contact details;
3. in the event that the applicant receives notice in writing from the Australian Government Solicitor or an officer of the Department of Immigration and Multicultural and Indigenous Affairs (‘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, he shall submit to the custody of the respondent for that purpose;
4. the applicant report to DIMIA in person two week days per week and by telephone on the other three week days per week between the hours of 9.00 am and 5.00 pm, or at a police station or any other place to be agreed between the parties by their solicitors on a daily basis between the hours of 9.00 am and 5.00 pm, or in such other manner as the parties by their solicitors may agree;
5. the applicant attend in person any hearing in the Federal Court of Australia or in the High Court of Australia appointed by the Court for the purpose of making orders of which he is given reasonable notice in writing by the Australian Government Solicitor provided that, if such attendance is required at a city in which the Applicant is not then residing, he may so attend by attending the Registry of the Court before which any such application is listed in the capital city in which he is then residing or nearest to the capital city in which he is then residing and if he is not then residing in a capital city, provided he is provided by the respondent at the time of notification with reasonable transport and accommodation expenses to travel to such capital city and remain there during any such hearing;
6. liberty to either party to apply or vary or discharge this order, including as to the reporting requirements in order 4 hereof;
7. the respondent file and serve no later than 9 May 2003 any further affidavits on which he wishes to rely in the proceeding together with any affidavits on which he wishes to rely in support of any application to reopen in order to rely on those first affidavits;
8. the proceeding be listed for directions on 16 May 2003.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N1358 OF 2003
BETWEEN:
NAGF
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
17 APRIL 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. the Minister for Immigration & Multicultural & Indigenous Affairs cause the applicant to be released from detention forthwith;
2. within 24 hours of the applicant’s release from detention the applicant by his solicitor give notice in writing to Hervée Dejean at the Australian Government Solicitor, Level 23, 133 Castlereagh Street, Sydney of his address and contact details and thereafter notify forthwith his solicitors and the Australian Government Solicitor at the above address of any change of address and contact details;
3. in the event that the applicant receives notice in writing from the Australian Government Solicitor or an officer of the Department of Immigration and Multicultural and Indigenous Affairs (‘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, he shall submit to the custody of the respondent for that purpose;
4. the applicant report to DIMIA in person two week days per week and by telephone on the other three week days per week between the hours of 9.00 am and 5.00 pm, or at a police station or any other place to be agreed between the parties by their solicitors on a daily basis between the hours of 9.00 am and 5.00 pm, or in such other manner as the parties by their solicitors may agree;
5. the applicant attend in person any hearing in the Federal Court of Australia or in the High Court of Australia appointed by the Court for the purpose of making orders of which he is given reasonable notice in writing by the Australian Government Solicitor provided that, if such attendance is required at a city in which the Applicant is not then residing, he may so attend by attending the Registry of the Court before which any such application is listed in the capital city in which he is then residing or nearest to the capital city in which he is then residing and if he is not then residing in a capital city, provided he is provided by the respondent at the time of notification with reasonable transport and accommodation expenses to travel to such capital city and remain there during any such hearing;
6. liberty to either party to apply or vary or discharge this order, including as to the reporting requirements in order 4 hereof;
7. the respondent file and serve no later than 9 May 2003 any further affidavits on which he wishes to rely in the proceeding together with any affidavits on which he wishes to rely in support of any application to reopen in order to rely on those first affidavits;
8. the proceeding be listed for directions on 16 May 2003.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N1353 OF 2003
BETWEEN:
NAGA
APPLICANT
AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTN1354 OF 2003
BETWEEN:
NAGB
APPLICANT
AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTN1355 OF 2003
BETWEEN:
NAGC
APPLICANT
AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTN1356 OF 2003
BETWEEN:
NAGD
APPLICANT
AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTN1357 OF 2003
BETWEEN:
NAGE
APPLICANT
AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTN1358 OF 2003
BETWEEN:
NAGF
APPLICANT
AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
EMMETT J
DATE:
17 APRIL 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
In these six proceedings, the applicants claim orders that would have the effect of securing their release from detention under the Migration Act 1958 (Cth) (‘the Act’). The respondent in each of the proceedings is the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’). On 20 March 2003, I published my reasons for concluding that the applicants were not entitled to the relief that they sought: see NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 224. I was not persuaded that the continued detention of any of the applicants was unlawful.
However, at the time of publishing those reasons, I was mindful of the fact that the Full Court’s decision in the Minister’s appeal from the judgment of Merkel J in Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 192 ALR 609 was imminent. I therefore stood the proceedings over for further directions without making any orders. When the matters came before me on 11 April 2003, I stood the matters over again, the decision of the Full Court not yet having been given.
However, on Tuesday, 15 April 2003, the Full Court published its reasons for dismissing the Minister’s appeal from the decision of Merkel J: see Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70. The Full Court, in short, expressed a view that as to the construction of the relevant provisions of the Act, such that the continued detention of the applicants would not be authorised in circumstances where there is no real prospect of their removal from Australia in the reasonably foreseeable future. The Full Court considered that the language of s 196 of the Act does not suggest that the Parliament turned its attention to the curtailment of the right to liberty of an asylum seeker in circumstances where detention might be for a period of potentially unlimited duration and, possibly, even permanent. The Full Court considered, rather, that the textual framework of the scheme of the legislation suggested an assumption by the Parliament that the detention authorised by s 196 will necessarily come to an end.
Their Honours considered that the language of s 198 supports the conclusion that Parliament proceeded on an assumption that detention would in fact end rather than upon an understanding that detention might possibly be of unlimited duration. Their Honours further considered that the contention that it could never have been intended that an unlawful non-citizen could be released from detention otherwise than by removal and that, therefore, indefinite detention must have been intended, loses force if the assumption upon which the Parliament proceeded was that the scheme would always operate to bring detention to an end.
The Full Court concluded (at [132]) that an intention to curtail the right of personal liberty to the extent contemplated had not been clearly manifested by the provisions of the Act through the use of unmistakable or unambiguous language. Their Honours considered that there was no indication by clear words or by necessary implication that the Parliament had directed its attention to or that it had consciously decided upon the curtailment of a fundamental common law right to the extent contended for by the Minister.
In reaching its conclusions, the Full Court expressly considered (at [169], [170] and [172]) the reasons that I had earlier published. In so doing, their Honours indicated that my conclusions were inconsistent with those reached by the Full Court. In the light both of the state of the evidence presently before me and of the concessions made by the Minister in the course of the hearing of the applications, the Full Court’s decision in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri would be determinative of the outcome of these proceedings.
It would follow that, notwithstanding that I had previously indicated my conclusion that each of the applications should be dismissed, I should now grant relief along the lines sought by the applicants. The matter was therefore restored to today’s list for directions as a matter of urgency to enable an application to be made on behalf of the applicants for orders for release from detention.
Counsel for the applicants has moved orally for orders for release from detention and has proffered terms to which the applicants are prepared to submit if orders for release are made. Senior counsel for the Minister has indicated that the Minister does not wish to be heard in opposition to the making of such orders on an interlocutory basis.
While the Minister did not advance any submissions in opposition to the terms of the proposed interlocutory orders, the Minister sought a stay of the orders. Having regard to the unequivocal nature of the reasons in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri, and the fact that the evidence before me indicates that the Full Court decision in that case is decisive of each of these applications, I do not consider that any case is made out for any stay of those orders at this stage.
The Minister, however, indicated that, since the hearing, circumstances had changed and that the Minister wished to seek leave to re-open to adduce further evidence as to the current state of affairs concerning the likelihood of removal of the applicants from Australia. I assume from matters that are notorious that those circumstances are related to the present conflict in Iraq. Nevertheless, it is a matter for the Minister to adduce such evidence as he is advised in support of any application for leave to re-open. That evidence would, of course, also include the further evidence that he wishes to adduce on any further hearing of the applications.
In light of the decision of the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri, I consider that it is appropriate that interlocutory relief be granted to the applicants pending the final determination of these proceedings. Accordingly, I propose to make orders for the release of the applicants, subject to terms that each of the applicants notify the Minister’s representative of contact details and undertake to co-operate in the making of arrangements in order to facilitate his removal if that becomes possible. The terms would also require each of the applicants to report regularly to the Minister or in accordance with arrangements made by the Minister and to attend at court in the event that final orders were made that would result in removal.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 14 May 2003
Counsel for the Applicants: L McCallum with G R Kennett Solicitor for the Applicants: Public Interest Advocacy Centre Counsel for the Respondent: J Basten QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 April 2003 Date of Judgment: 17 April 2003
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