SHDB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 30

FEDERAL COURT OF AUSTRALIA

SHDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 30

MIGRATION - detention of unlawful non-citizen - whether detention subject to implicit temporal limitation - duty to arrange removal from Australia - "as soon as reasonably practicable" - how duty enforced

Migration Act 1958 (Cth) - ss 189, 196, 198

Al Khafaji v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1369 cited

Al Masri v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCA 1009 not followed
Applicant WAIW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 621 cited

Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 20 followed

NAES v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 2 cited

NAKG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1600 cited

SHFB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 29 followed

VFAD v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1062 cited

WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625 followed

SHDB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NO S3 of 2003

SELWAY J
30 JANUARY 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S3 OF 2003

BETWEEN:	SHDB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	30 JANUARY 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

The application seeking:

a.a writ in the nature of mandamus, and

b.a declaration that the Applicant is unlawfully obtained, and

c.an order in the nature of habeas corpus for the release of the Applicant from detention

be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S3 OF 2003

BETWEEN:	SHDB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	30 JANUARY 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The parties are in agreement that the applicant is an “unlawful non-citizen”.  Most other is relevant facts are not in dispute.  They are:

   (a)The applicant was born in Kuwait.  He is of Palestinian ancestry.  He has lived most of his life in Kuwait, but has also lived in Jordan.  The applicant arrived in Australia without a passport on 23 December, 2000 and was detained.  That detention has continued to the present;

   (b)On 6 January, 2001 he lodged an application for a protection visa.  That application was refused by a delegate of the Minister on 22 February, 2001.  The applicant sought a review of that determination by the Refugee Review Tribunal.  In its decision of 16 May, 2001 the Tribunal concluded that it was not satisfied that Australia had protection obligations to the applicant and affirmed the decision not to grant a protection visa.

   (c)On 5 November, 2001 the applicant applied to this court to review the decision of the Tribunal.  That application was dismissed on 23 October, 2001.  His subsequent appeal to the Full Federal Court was dismissed on 21 May, 2002.

   (d)About June, 2002 the applicant informed a Departmental officer that he wished to be sent back “home”.  He requested to be sent back to “Kuwait and if you cannot, please send me to Gaza.”  On 30 August, 2002 he signed a form addressed to the Respondent whereby he advised that “I wish voluntarily to depart Australia and ask the Minister to remove me from Australia as soon as reasonably practicable.”

   (e)The applicant has made his own inquiries about returning to Kuwait.  Apparently he has been informed by the Kuwaiti Government that he cannot return there.

   (f)In response to the intimation from the Applicant, Departmental officers seem to have done the following:

   (i)they have provided him with a travel document which will permit him to leave Australia, but which will not authorise him to stay anywhere else without further visas or other travel authorities.

   (ii)the “Unauthorised Arrivals Section” of the Department has been involved in seeking the applicant’s removal since 20 June, 2002.  High level inquiries have been made with at least one foreign Government.  A response from that Government has been awaited since September, 2002.   There have also been internal queries as to the possibilities for removal of the applicant.  These have identified various possibilities, but it would not appear that any action has been taken in relation to those since October, 2002. 

   (g)It remains the view of Departmental officers that “[the applicant’s] removal can still be achieved with the co-operation of the applicant.”  It is not suggested that the applicant has not co-operated.

2. The result of all this is that the applicant has been in detention for over five months since August, 2002 notwithstanding that since that date he and the Minister are in complete agreement that he should leave this country as soon as possible.  On current indications it would seem likely that the applicant will continue in detention for many months yet.

3. In these circumstances it is perhaps not surprising that the applicant seeks various orders against the Minister. Most particularly he seeks a declaration that he is unlawfully held, a writ in the nature of habeas corpus directing the Respondent to release the Applicant from detention forthwith and a writ in the nature of mandamus requiring the Respondent to comply with s 198 of the Migration Act, 1958 (Cth) (“the Act”).

4. Save that the Department’s efforts to effect the applicant’s removal from Australia may have been more extensive and focussed at least in the early months than seems to have been the case in relation to the applicant in SHFB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 29, the facts of this case are indistinguishable from that case. The parties have not argued otherwise. The relief sought in this case is the same as was sought in that case.

5. My reasons in SHFB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 29 are also applicable to this case. For those reasons the application in this case will also be dismissed.

6. I will hear the parties as to costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway

Associate:

Dated:             30 January, 2003

Counsel for the Applicant:	Ms C O'Connor with Ms A Hamdan
Solicitor for the Applicant:	Hamdan Lawyers
Counsel for the Respondent:	Mr P Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 January, 2003
Date of Judgment:	30 January, 2003