Save the Children Australia v Minister for Home Affairs

Save the Children Australia (STCA), a registered charity, sought judicial review and a writ of habeas corpus in relation to Australian women and their children detained by a non-state actor in camps in North-East Syria. The respondents, the Minister for Home Affairs and the Commonwealth, did not have custody of the detained individuals. The key legal issues were whether the respondents had control over the detention of the women and children and if the respondents were required to decide on their repatriation. The court examined the authority of STCA to bring the application, the application for habeas corpus, and the application for judicial review.

The court found that STCA had standing to apply for habeas corpus concerning the women and children in question but rejected the application on the grounds that there was insufficient evidence to suggest the respondents had control over the detainees. The court noted that the Autonomous Administration of North and East Syria (AANES) likely would agree to the repatriation of Australian citizens if requested by the Australian Government, as it considered the detainees a burden. Regarding the application for judicial review, the court found no evidence of a decision by the respondents not to repatriate the women and children. The court also concluded that the respondents were not under a legal obligation to decide on the repatriation of the women and children. Therefore, the application for judicial review was dismissed.

The court ordered that the application be dismissed, the parties submit any agreed minute of orders on costs within 14 days, and if the parties could not agree, submit written submissions on costs within 21 days. The issue of costs was to be determined on the papers. The court's reasons for judgment were to be published on a confidential basis initially, with the parties able to seek confidentiality orders. The reasons for judgment were to remain confidential for seven days, subject to further order.