Save the Children Australia v Minister for Home Affairs

This appeal concerns an application by Save the Children Australia (STCA) for a writ of habeas corpus to be issued to the Commonwealth, requiring the Commonwealth to take steps to return Australian women and children from the Al-Roj camp in North-East Syria to Australia. The appeal was heard by the Full Court of the Federal Court of Australia. The legal issues before the Court were whether the writ of habeas corpus should issue to the Commonwealth and whether the Commonwealth has control over the custody or detention of the Australian women and children in the Al-Roj camp. The Court also considered whether the writ should issue to test the asserted lack of control.

The Court found that the primary judge did not err in concluding that the Commonwealth did not have control over the custody or detention of the STCA women and children in the Al-Roj camp. The Court held that there was no evidence to support the proposition that the Commonwealth had a de facto arrangement with the Autonomous Administration of North-East Syria (AANES) that gave the Commonwealth control over the custody of the STCA women and children. The Court also found that the evidence did not support the proposition that the Coalition had de facto authority over the camps. The Court concluded that the writ of habeas corpus should not issue to the Commonwealth as there was no evidence to support the proposition that the Commonwealth had control over the custody or detention of the STCA women and children in the Al-Roj camp.

The Court dismissed the appeal and ordered that the parties file any agreed proposed orders as to costs by 25 June 2024. In the absence of any agreement as to costs, the parties are required to file and serve any written submissions on an appropriate form of orders as to costs by 2 July 2024. The proposed orders or any submissions in accordance with these orders will be determined on the papers.