FEDERAL COURT OF AUSTRALIA Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1009 MIGRATION mandatory detention of an unlawful non-citizen pending removal from Australia whether detention is unlawful when there is no real likelihood or prospect of removal in the reasonably foreseeable future whether order for release should be made Migration Act 1958 (Cth) ss 189, 196, 198, 200 and 253 Federal Court of Australia Act 1976 (Cth) s 23 Lim v Minister for Immigration (1992) 176 CLR 1 considered Koon Wing Lau v Calwell (1949) 80 CLR 534 - cited NAMU of 2002 v Secretary, Department of Immigration, Indigenous and Multicultural Affairs [2002] FCA 907 - considered Perez v Minister for Immigration an Multicultural Affairs [2002] FCA 450 - cited Vo v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 371 - considered R v Governor of Durham Prison; Ex parte Hardial Singh [1984] 1 WLR 704 - applied Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 applied R v Home Secretary; Ex parte Khawaja [1984] AC 74 - cited Re Chung Tu Quan & Ors [1995] 1 HKC 566 - cited Zadvydas v Davis, 533 U.S. 678 (2001) - applied Jones v Dunkel (1959) 101 CLR 298 - applied Somerset v Stewart (1772) 98 ER 499 cited R v Langdon; Ex parte Langdon (1953) 88 CLR 158 cited Victorian Council of Civil Liberties v Minister for Immigration (2001) 110 FCR 452 cited Ruddock v Vadarlis (2001) 110 FCR 491 cited AKRAM OUDA MOHAMMAD AL MASRI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S135 OF 2002 JUDGE: MERKEL J DATE: 15 AUGUST 2002 PLACE: ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA GENERAL DISTRIBUTION SOUTH AUSTRALIA DISTRICT REGISTRY S 135 OF 2002 BETWEEN: AND: AKRAM OUDA MOHAMMAD AL MASRI APPLICANT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MERKEL J DATE OF ORDER: 15 AUGUST 2002 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The applicant be released from detention forthwith. 2. Within 24 hours of the applicant s release from detention the applicant give notice in writing to his solicitors Messrs Caldicott & Co, 333 Brighton Road, Brighton South Australia 5048 and to Marten Kennedy, C/- Australian Government Solicitor, Level 20, 25 Grenfell Street, Adelaide, South Australia 5000 of his address and contact details and thereafter notify his solicitors and the Australian Government Solicitor at the above addresses 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 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. 4. The respondent pay the applicant s costs of and incidental to the proceeding. 5. Reserve liberty to apply. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA GENERAL DISTRIBUTION SOUTH AUSTRALIA DISTRICT REGISTRY S 135 OF 2002 BETWEEN: AND: AKRAM OUDA MOHAMMAD AL MASRI APPLICANT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MERKEL J DATE: 15 AUGUST 2002 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The present case raises the question of whether the power of the respondent ( the Minister ) under the Migration Act 1958 (Cth) ( the Act ) to detain an unlawful non-citizen pending removal from Australia ceases when there is no real likelihood or prospect of the noncitizen s removal in the reasonable foreseeable future. 2 The applicant is a Palestinian from the Gaza Strip, which is under the control of the Palestinian Authority. He arrived in Australia on or about 5 June 2001 as an unlawful noncitizen. Since shortly after his arrival in Australia the applicant has been held in detention at the Woomera Detention Centre. 3 On 2 July 2001 the applicant lodged an application for a protection visa on the ground that he is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951 done at Geneva on 28 July 2001 as amended by the Protocol Relating to the Status of Refugees 1967 done at New York on 31 January 1967 ( the Refugees Convention ). A delegate of the Minister decided not to grant the applicant a protection visa and on 5 December 2001 the Refugee Review Tribunal affirmed the delegate s decision. 4 On the same day that the Refugee Review Tribunal made its decision the applicant decided to return to the Gaza Strip as soon as possible and not to apply for a review of the Tribunal s
- 2 - decision by the Court. Accordingly, on 5 December 2001 the applicant signed a written request to the Minister to be returned to the Gaza Strip. He was informed by an officer of the Department of Immigration and Multicultural and Indigenous Affairs ( the Department ) that he was required to produce a valid passport before arrangements could be made for him to return to the Gaza Strip. By 10 December 2001 the applicant was able to produce his passport. 5 The Department informed the applicant that arrangements had been made for his departure on 18 February 2002. On 18 February the applicant had packed his belongings and was ready to depart from the Woomera Detention Centre in order to return to the Gaza Strip. However, he was informed by Departmental officers that they were unable to return him to the Gaza Strip as they could not get permission for his entry. The applicant became extremely distressed at having to remain in the Woomera Detention Centre and at not being able to depart from Australia. 6 After 18 February 2002 officers of the Department continued with their endeavours to remove the applicant from Australia to enable his return to the Gaza Strip. Although Israel refused to permit the applicant to enter the State of Israel it accepted that his return to the Gaza Strip could be procured either through Jordan or Egypt. The Department continued with its endeavours to obtain permission from Egypt or Jordan for the applicant to transit those countries in order to return to the Gaza Strip but both Egypt and Jordan refused to accept the applicant. The Department then sought to obtain the permission of Syria for the removal of the applicant to Syria but Syria has also refused to accept the applicant. 7 The delay and uncertainty about his removal has caused the applicant to suffer anxiety and depression and also has led to self-harm resulting in his hospitalisation. On 21 May 2002 the applicant commenced a proceeding in the Court against the respondent ( the Minister ) seeking an order in the nature of habeas corpus to enable his release pending his removal from Australia. The applicant contends that, as there is no reasonable prospect of his removal from Australia, the Minister s power to detain him under the Act is at an end and, as a consequence, his detention has become unlawful. The Minister claims that he is under a statutory duty to keep the applicant in detention for so long as the detention is for the purpose of enabling the removal of the applicant from Australia in accordance with the provisions of the Act and, as his departmental officers are still seeking to procure the applicant s removal
- 3 - from Australia, the applicant s detention for the purpose of his removal remains lawful. 8 Detention of unlawful non-citizens is provided for in Div 7 of Pt 2 of the Act. Under s 189 an officer is required to detain a person in the migration zone if the officer knows or reasonably suspects that the person is an unlawful non-citizen. Section 5 defines detain as meaning: (a) take into immigration detention; or (b) keep, or cause to be kept, in immigration detention; and includes taking such action and using such force as are reasonably necessary to do so. 9 An unlawful non-citizen is defined in s 14 of the Act as a non-citizen in the migration zone who is not a lawful non-citizen. It is not in dispute that the applicant was a non-citizen in the migration zone who was not a lawful non-citizen when he was detained and placed in the Woomera Detention Centre. Accordingly, the applicant s original detention was lawful. 10 Section 196 of the Act provides as follows: (1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is: (a) removed from Australia under section 198 or 199; or (b) deported under section 200; or (c) granted a visa. (2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen. (3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa." 11 The applicant is required to be removed from Australia under s 198(1) which provides: An officer must remove as soon as reasonably practicable an unlawful noncitizen who asks the Minister, in writing, to be so removed. 12 Removal under the circumstances provided for in the other subsections of s 198 is also to be as soon as reasonably practicable. Section 5 defines remove as remove from Australia. It is common ground that, as the applicant made his request in writing to the Minister on 5 December 2001, the Minister s obligation under s 198(1) to remove the applicant from Australia as soon as reasonably practicable arose on that day.
- 4-13 The question arising under ss 196(1)(a) and 198 is whether the applicant s lawful detention has become unlawful because it is no longer authorised by the Act. Both the applicant and the Minister contend that ss 196 and 198 must be read together. However, they differ on the results of doing so. 14 The applicant claims the power to detain is impliedly limited to a reasonable time but terminates when there is no reasonable likelihood of removal. Accordingly, it is contended that ss 196(1)(a) and 198 do not permit indefinite detention. 15 However, the Minister claims that the applicant s detention is, and remains, lawful for so long as it is for the purpose of his removal from Australia. The Minister accepts that under s 196(1)(a) he is only entitled to detain the applicant pending the applicant s removal but contends: In the circumstances of the applicant, the obligation is to detain until it is reasonably practicable to remove as requested. The scheme of the provisions in sections 189, 196 and 198 of the Act does not admit of the possibility that the applicant can be released otherwise. The reference to reasonable practicability in section 198 denies any implication that the length of detention must be reasonable assessed independently of considerations of whether it is practicable to remove. 16 A different system is provided for under the Act for the deportation of non-citizens to whom Div 9 of Pt 2 of the Act applies. Such persons include non-citizens who have been in Australia for less than ten years and have been convicted of certain crimes or offences as well as non-citizens who are to be deported upon security grounds. Under s 200 the deportation of such persons is at the discretion of the Minister. Section 253 provides for the discretionary detention of persons who have been ordered to be deported. Thus, unlike ss 189, 196(1)(a) and 198 where detention pending removal of unlawful non-citizens is mandatory, the Act specifically provides for a discretionary decision by the Minister in respect of detention of deportees pending their deportation. 17 Finally, s 474 provides: (1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
- 5 - (2) In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). (3) A reference in this section to a decision includes a reference to the following: (a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination; (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); (c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument; (d) imposing, or refusing to remove, a condition or restriction; (e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; (g) doing or refusing to do any other act or thing; (h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation; (i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act; (j) a failure or refusal to make a decision. Section 474(4) provides that certain decisions are not privative clause decisions but is not relevant to the circumstances of the present case. 18 The Minister contended that s 474 precludes the grant of relief by the Court in the present case as the detention of the applicant is a privative clause decision. In particular, the Minister contended that the detention falls within the extended definition of a privative clause decision in s 474(3)(g), which includes doing or refusing to do any other act or thing. However, in the course of his oral submissions senior counsel for the Minister appeared to concede that, if upon the proper construction of ss 196(1)(a) and 198 the statutory authority for the applicant s detention has ceased and his detention has become unlawful, s 474 could not prevent the Court from granting relief in the nature of habeas corpus (see T 33-36). Any such concession is plainly correct as under the Australian Constitution the legislature cannot confer an unreviewable power on the executive to unlawfully detain any person in Australia: see Lim v Minister for Immigration (1992) 176 CLR 1 ( Lim ) at 10, 36-37, 57-58, 63 and 65-66. As was pointed out by Latham CJ in Koon Wing Lau v Calwell (1949) 80 CLR 534 at
- 6-556, if it were shown that detention is unauthorised a writ of habeas corpus would provide an immediate remedy. 19 In Lim the High Court considered the constitutional validity of the Minister s power under the Act (as it stood in 1992) to detain an alien pending the alien s deportation from Australia. Although the detention power under the Act at that time differed in significant respects from the detention power presently contained in ss 196(1)(a) and 198, certain observations made concerning the nature of the power remain relevant. Lim establishes that the power conferred under the Act to detain an alien is valid so long as it is properly characterised as an incident of the executive power to exclude, admit and deport aliens. In recently upholding the validity of s 196 in NAMU of 2002 v Secretary, Department of Immigration, Indigenous and Multicultural Affairs [2002] FCA 907 ( NAMU ) Beaumont J observed at [9]-[12]: 9. Lim s Case, in my view, establishes, as was submitted on behalf of the respondents, first, that the question of validity in this context is to be determined by the proper characterisation of the law which authorises detention, so that, if the law is properly characterised as incidental to the executive power to process visa applications and to remove and deport unlawful non-citizens, it necessarily follows that such a law is not punitive or penal in character. 10. Lim s Case secondly establishes, in my view, as the respondents submitted, that the character of the statutory authority to detain is determined by the particular statutory context and the purpose of that authority; that is to say, the crucial question is whether the authority is tied, in point of time, to that which is reasonably incidental to deportation or the processing of an application for an entry permit. 11. Thus, the characterisation of the statutory authority to detain, which was considered in Lim s Case, as not to be penal or punitive, followed as a consequence from the statutory limitations that were imposed upon that authority and, in particular, flowed from the requirement that a person be removed from Australia as soon as possible: first, after refusal of entry application and finalisation of any appeal; secondly, after failing to make a visa application within a prescribed period; or thirdly, upon a request by the detainee to be removed. 12. In the present statutory context, the obligation and authority to detain, conferred by the provisions of s 189, are, in essential respects, limited in the same manner as occurred in Lim s Case, in the case of those provisions of the Act there held to be valid (that is to say, s 54L and 54N). It follows, in my view, that the detention of the applicant pursuant to the Act is valid, and that the issue of validity cannot, in the constitutional sense, depend upon conditions which may be personal to a particular applicant. Such factual matters are not constitutional facts, to be taken into account in determining the validity of a provision such as s 196, because they cannot affect the characterisation of the statutory authority to detain, under a rule incidental to the executive power to process visa applications and to deport and thus being
- 7 - a law which does not authorise a punitive or penal detention. 20 In Lim one of the factors that supported validity was the statutory requirement for deportation as soon as practicable after a request by an alien for his or her removal. Mason CJ observed at 12: a failure to remove a designated person from Australia as soon as practicable pursuant to s. 54P(1), after that person has asked the Minister in writing to be removed, would, in my view, deprive the Executive of legal authority to detain that person in custody. At 33-34 Brennan, Deane and Dawson JJ regarded the statutory time limitations on the Minister s power to detain and the obligation to deport aliens as soon as practicable as precluding: a conclusion that the powers of detention which are conferred upon the Executive exceed what is reasonably capable of being seen as necessary for the purposes of deportation or for the making and consideration of an entry application. See also Toohey J at 46-47, Gaudron J at 58 and McHugh J at 72 and 74. 21 Standing alone s 196(1)(a) might appear to authorise indefinite detention. However, when s 196(1)(a) is read together with s 198 it is clear that detention is only to be until removal as soon as reasonably practicable. While the Minister s submission was that a purposive, rather than a temporal, limitation was imposed on the detention power under ss 196(1)(a) and 198, his senior counsel accepted that under s 198 there was a possibility of some cross-over between purpose and time. He contended, however, that whatever that cross-over might be it is not such as to import either an obligation to remove within a reasonable time or a counterpart limitation on the power to detain limiting detention to a reasonable time. 22 In Perez v Minister for Immigration and Multicultural Affairs [2002] FCA 450 ( Perez ) at [84]-[112] Allsop J considered whether there is a time limit on the Minister s power to detain for the purposes of deportation under ss 200 and 253(8) of the Act. Section 253(8) does not impose any time requirement for deportation but, rather, provides that a deportee may be kept in detention pending deportation. Allsop J (at [104]-[112]) regarded himself as bound to apply the decision of the Full Court in Vo v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 371 ( Vo ) to hold that the length of detention of a deportee under s 253(8) cannot of itself destroy the legal validity of the detention. In Vo the Full Court stated at 374:
- 8 - In our view, the statutory scheme is explicitly to the contrary: as has been noted, s 206(2) squarely addresses the question of delay. This is not to say that no other avenues of approval are open. For one thing, the Minister may revoke the deportation order under s 206(1). For another, the Minister (or the Secretary) may order release under s 253(9). It is true that the power to detain is available only whilst the deportation order is in force (s 253(1)); and that this criterion is reflected in the reference to the position pending deportation in s 253(8)(a). But there is every reason to suppose that this was intended to refer to the state of affairs existing between the time of the making of the deportation order and its execution (unless previously revoked). These are all matters of formal record which are readily ascertainable by all concerned. If the test were otherwise, that is a test of a question of degree, whereby the authority to detain is lost after the lapse of a particular amount of time, serious practical difficulties would arise: it would not be possible to identify the exact point of time when the authority is to be treated as having lapsed, in the absence of any formal process to determine when the lapse did occur. On the other hand, as we would understand it, the plain object of the present statutory scheme is to avoid these difficulties by defining the relevant events in which the authority to detain will lapse, as the execution of the deportation order or its earlier revocation. Short of their occurrence, the deportation order is in force for the purposes of s 253(1), and the deportation is pending for the purposes of s 253(8)(a). Until one of these events occurs, the authority to detain will subsist. 23 The discretionary scheme concerning deportation considered in Vo, which was regarded by the Full Court as structured to deal with the special circumstances in which deportation is to apply, has no counterpart in respect of the mandatory duty to remove unlawful non-citizens from Australia as soon as reasonably practicable under ss 196(1)(a) and 198. Nonetheless, the question remains whether ss 196(1)(a) and 198 are to be construed as authorising indefinite detention provided the Minister s purpose is to remove (as is contended by the Minister), or as authorising detention for a reasonable period, but in any event for only so long as there is a reasonable likelihood of removal (as is contended by the applicant). 24 A consideration of the approach taken by the courts in respect of analogous statutory provisions in England, Hong Kong and the United States is helpful. As was pointed out by Allsop J in Perez, the Full Court in Vo was not referred to relevant English or Hong Kong decisions which pre-dated its decision in Vo. 25 R v Governor of Durham Prison; Ex parte Hardial Singh [1984] 1 WLR 704 ( Hardial Singh ) concerned the Immigration Act 1971 (UK) which authorised detention after the making of a deportation order pending [the deportee s] removal or departure. Mr Singh,
- 9 - who was detained pending his removal, challenged his continuing detention before Woolf J on a writ of habeus corpus. Although the power to detain pending removal was not subject to any express limitation of time, Woolf J stated at 706: as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time. At 708-709 Woolf J stated that if the implicit limitations on the power are not complied with it is appropriate for a writ of habeas corpus to issue or for an order to be made for the detainee s release. 26 The principles stated by Woolf J in Hardial Singh were subsequently applied by the courts in Hong Kong and were approved by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 ( Lam ). Lam concerned the operation of the Immigration Ordinance (Hong Kong), which conferred a power to detain pending removal from Hong Kong. The judgment of the Privy Council, which was delivered by Lord Browne- Wilkinson, stated (at 111): Section 13D(1) confers a power to detain a Vietnamese migrant pending his removal from Hong Kong. Their Lordships have no doubt that in conferring such a power to interfere with individual liberty, the legislature intended that such power could only be exercised reasonably and that accordingly it was implicitly so limited. The principles enunciated by Woolf J. in the Hardial Singh case [1984] I W.L.R. 704 are statements of the limitations on a statutory power of detention pending removal. In the absence of contrary indications in the statute which confers the power to detain pending removal their Lordships agree with the principles stated by Woolf J. First, the power can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal. Secondly, if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised. Thirdly, the person seeking to exercise the power of detention must take all reasonable steps within his power to ensure the
- 10 - removal within a reasonable time. Although these restrictions are to be implied where a statute confers simply a power to detain pending removal without more, it is plainly possible for the legislature by express provision in the statute to exclude such implied restrictions. Subject to any constitutional challenge (which does not arise in this case) the legislature can vary or possibly exclude the Hardial Singh principles. But in their Lordships view the courts should construe strictly any statutory provision purporting to allow the deprivation of individual liberty by administrative detention and should be slow to hold that statutory provisions authorise administrative detention for unreasonable periods or in unreasonable circumstances. Their Lordships also held at 112-114 that the facts relevant to the legality of detention pending removal were precedent or jurisdictional facts which in the case of deprivation of liberty had to be proved to exist before the power to detain was exercisable. Accordingly, unless those facts are expressly committed by the legislature for determination by the executive, they were for the court to determine. In reliance upon R v Home Secretary; Ex parte Khawaja [1984] AC 74 ( Khawaja ) their Lordships stated that the burden lay on the Executive to prove to the Court on the balance of probabilities the precedent or jurisdictional facts necessary to warrant the conclusion that the detention complied with the statutory limitations on the power. 27 In Re Chung Tu Quan & Ors [1995] 1 HKC 566 Keith J, who applied the Hardial Singh principles and whose decision was upheld by the Privy Council in Lam, also discussed the burden of proof (at 583): Before I examine the cases of the four remaining applicants, there is one other matter I must address. That is the burden of proof in habeas corpus proceedings. Two cases have been cited to me in connection with the burden of proof in such proceedings: R. v. The Governor of Risley Remand Centre ex p. Hassan [1976] 1 WLR 971 and Khawaja v. The Secretary of State for the Home Department [1984] A.C. 74. I have also read R. v. The Governor of Brixton Prison ex p. Ahsan [1969] 2 Q.B. 222, and the discussions on the topic in Sharpe, The Law of Habeas Corpus (2nd ed.) pp. 85-91, and Wade and Forsyth, Administrative Law (7th ed) pp. 335-337. In the light of these materials, my conclusions are as follows. The initial evidential burden is undoubtedly on the applicants. It is for them to produce the evidence to put the legality of their detention in issue. That has been done. Apart from anything else, the length of their detention is such as to raise obvious questions as to its legality. However, once the legality of their detention has been put in issue, the legal burden is on the respondents. It is for the respondents to establish that the applicants' detention is lawful. That
- 11 - means that if the legality of the applicants' detention is dependent on facts which are in dispute or are not admitted by the applicants, it is for the respondents to prove those facts. And if the legality of the applicants' detention is dependent on what is reasonable in all the circumstances, it is for the respondents to prove its reasonableness. 28 In Zadvydas v Davis, 533 U.S. 678 (2001) ( Zadvydas ), the United States Supreme Court considered whether a United States statute providing for detention of aliens pending their removal authorised the Attorney General to indefinitely detain a deportee who no other country would accept. In a 5-4 decision the Supreme Court construed the statute as limiting the power to detain the aliens to a period reasonably necessary to bring about the aliens removal from the United States and as not permitting their indefinite detention. The court held that deportable aliens held for removal must be released if a reviewing court finds no significant likelihood of removal in the reasonably foreseeable future. 29 In Zadvydas the statute, which authorised further detention if the Government fails to remove an alien during the 90 day period after a final order for removal had been entered, provided: An alien ordered removed [1] who is inadmissible [2] [or] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision 8 U.S.C. 1231(a)(6) (1994 ed., Supp. V) 30 The majority opinion, written by Justice Breyer, framed the question raised by the case (at 682): whether this post-removal statute authorizes the Attorney General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien s removal. and answered that question as follows: Based on our conclusion that indefinite detention of aliens in the former category would raise serious constitutional concerns, we construe the statute to contain an implicit reasonable time limitation, the application of which is subject to federal court review. 31 Interpreting the statute to avoid constitutional concerns under the due process clause in the 5 th Amendment, and having regard to the purpose for which the alien is detained, Justice Breyer stated (at 699): once removal is no longer reasonably foreseeable, continued detention is
- 12 - no longer authorized by statute. See 1 E. Coke, Institutes *70b ( Cessante ratione legis cessat ipse lex ) (the rationale of a legal rule no longer being applicable, that rule itself no longer applies). Specifically, Justice Breyer stated at 699-700: Whether a set of particular circumstances amounts to detention within, or beyond, a period reasonably necessary to secure removal is determinative of whether the detention is, or is not, pursuant to statutory authority. In answering that basic question, the habeas court must ask whether the detention in question exceeds a period reasonably necessary to secure removal. It should measure reasonableness primarily in terms of the statute s basic purpose, namely assuring the alien s presence at the moment of removal. Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no longer authorized by statute. In that case, of course, the alien s release may and should be conditioned on any of the various forms of supervised release that are appropriate in the circumstances 32 The constitutional concerns in Zadvydas, and the individual liberty concerns in Lam, resulted in the Supreme Court and the Privy Council respectively discerning similar implicit statutory limitations on the detention power of the Executive arm of government. 33 In his dissent in Zadvydas Justice Kennedy (with whom Chief Justice Rehnquist joined and with whom Justice Scalia and Justice Thomas joined in part) at 706-707 disagreed with the majority stating that the Court s imputation of an implied, nontextual limitation has no basis in the language or structure of the [statute] and in fact contradicts and defeats the purpose set forth in the express terms of the statutory text. Justice Kennedy considered that the key to the aliens due process protection is the existence of adequate procedures for deciding on release and to review their cases. Justice Scalia (with whom Justice Thomas, joined) expressed the view that the statute clearly left the post-order detention question entirely to the political branches without any constitutional impediment. 34 The principles acted upon in the minority decision in Zadvydas are similar to those acted upon in the Full Court s decision in Vo. However, unlike the deportation provisions considered in Vo, ss 196(1)(a) and 198 do not provide for any Executive decision or discretion as to detention pending removal. 35 Absent a clear contrary indication in the statute, the courts in Hardial Singh, Lam and Zadvydas were not prepared to construe general statutory provisions providing for Executive
- 13 - detention pending removal or deportation as authorising detention where there is no longer a reasonable likelihood or prospect of deportation or removal. 36 In Hardial Singh and Lam the issue was approached purely as one of construction but on the basis that, in conferring a power to interfere with individual liberty, the legislature must be taken to have intended that such power could only be exercised reasonably and that, accordingly, it was implicitly so limited: see Lam at 111. The limitations embodied in the resulting Hardial Singh principles, which were approved in Lam at 111, were that: the power can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal; if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised; the person seeking to exercise the power of detention must take all reasonable steps within his or her power to ensure the removal within a reasonable time. 37 In Zadvydas the majority opinion accepted a similar implicit limitation on the power to detain, namely an implicit reasonable time limitation, which required that where there is no significant likelihood of removal in the reasonably foreseeable future continued detention is no longer authorised by the statute. 38 In my view the kind of considerations that led the Privy Council to approve the Hardial Singh principles in Lam, and the analogous considerations that led the majority to the view that there were implicit limitations on the detention power in Zadvydas, can be applied to detention pending removal under ss 196(1)(a) and 198 of the Act subject, however, to appropriate modification to give effect to the purposive and a temporal limitations on the power to detain in ss 196(1)(a) and 198. In those sections the legislature, in conferring the power to interfere with individual liberty by providing for detention pending removal as soon as reasonably practicable, must be taken to have intended that the power to detain be limited to the period during which the Minister is taking reasonable steps to secure the removal and be exercisable only for so long as removal is reasonably practicable. Accordingly, in my view ss 196(1)(a) and 198 are to be construed as authorising detention only for so long as:
- 14 - the Minister is taking all reasonable steps to secure the removal from Australia of a removee as soon as is reasonably practicable; the removal of the removee from Australia is reasonably practicable, in the sense that there must be a real likelihood or prospect of removal in the reasonably foreseeable future. 39 If a court is satisfied that the Minister is not taking all reasonable steps or that removal is not reasonably practicable the implicit limitations on the detention power will not have been complied with or met and continued detention of the removee will no longer be authorised by the Act. 40 For the above reasons I do not accept the Minister s submission that the only implicit limitation on the power is purposive. As explained above, ss 196(1)(a) and 198 introduce implicit purposive and temporal limitations and, in accordance with the approach in Hardial Singh, Lam and Zadvydas, those provisions should be construed as being subject to the limitations set out above. I would add that, notwithstanding his counsel s concession that where the Minister no longer had the requisite purpose of removal the power to detain is at an end, the Minister s purposive limitation would almost certainly authorise indefinite detention. That is because s 198(1)(a) imposes a mandatory duty on the Minister to deport as soon as reasonably practicable with the consequence that, absent bad faith, it is difficult to conceive of a situation where the requisite purpose would cease. 41 In the present case the applicant has adduced evidence that puts in issue the legality of his continued detention. Accordingly, the question is whether the Minister has discharged the burden cast upon him to establish on the balance of probabilities that the all reasonable steps and reasonably practicable limitations set out above have been complied with or met. 42 The evidence establishes that the Minister is detaining the applicant for the purpose of his removal and appears to have taken all reasonable steps within his power to secure that outcome but, notwithstanding those steps, has been unable to remove the applicant. The substantive issue raised by the evidence is whether there is no real likelihood or prospect of the applicant s removal in the reasonably foreseeable future.
- 15-43 Earlier in these reasons I summarised the steps taken by the Department to secure the applicant s removal to Israel, Jordan, Syria or Egypt. It is now necessary to consider those steps in greater detail. 44 On 10 January 2002 the Department received a facsimile from the Israeli consulate stating: [The applicant] can ONLY enter the Palestinian Territories through Allenby Bridge (coming from Jordan), or alternatively, from Rafiah Border Control checkpoint (coming from Egypt). In both cases, entry can be conducted only by land. Any entry to Israel through any international border control checkpoint (air or sea ports) will be refused. Please ensure [the applicant] clearly understands his options. 45 As a result of the Department being unable to procure Jordan s permission, arrangements that had been made for the applicant s proposed removal on 18 February had to be cancelled. Subsequently, the Department endeavoured to gain the permission of Jordan or Egypt for the applicant s entry into those countries to enable him to transit to the Gaza Strip. By 2 April 2002 the Department had ruled out the applicant s removal via Jordan due to difficulties in obtaining the required transit visas. By 15 April 2002 Jordan had not only declined to grant permission for the applicant s entry into Jordan but was now not answering any correspondence. On 21 May 2002 the Embassy of the Republic of Egypt advised the Department that the request for a transit visa for the applicant had been rejected. The Department also sought to secure the applicant s removal via Syria but was unable to gain permission for his entry into Syria. 46 On 13 June 2002 the Secretary of the Department met with the Israeli ambassador to discuss the return to Israel of people in the applicant s position. Following the meeting a list of names of persons seeking transit approval, including the applicant, was to be provided to the Israeli government. In an affidavit sworn on 5 June 2002 an officer of the Department stated that if the endeavours to secure Israel s permission for the applicant to return to the Gaza Strip via Tel Aviv failed, the Department will request the head of mission at the Australian Embassy in Cairo, Egypt, to meet with Egyptian authorities to request transit visas. 47 On 25 July 2002, the date on which the trial commenced, the following affidavit was sworn by a solicitor acting for the Minister:
- 16-2. I am instructed in this matter by a legal officer of the Department of Immigration and Multicultural and Indigenous Affairs ( DIMIA ) in Canberra, Ms Samantha Boyle. I have also spoken with Ms Kate Pope, Assistant, Secretary, Unauthorised Arrivals and Detention Services Branch of DIMIA. 3. I am informed by Ms Pope and verily believe that following the meeting of 13 June 2002 between the Secretary of the Department, Mr Farmer, and the Israeli Ambassador to Australia referred to in the affidavit of Mr Kennedy dated 17 June 2002, the Secretary of DIMIA wrote to the Israeli Ambassador to Australia on 3 July 2002 in relation to removal of the Applicant to Gaza via Tel Aviv. I am further informed by Ms Pope that she telephoned and spoke with the Ambassador on 16 July 2002, that a tasking cable was sent from Canberra to the Australian Embassy in Tel Aviv on 16 July 2002 and that a further letter was sent from the Secretary of the Department to the Ambassador, supplying further information, on 17 July 2002. 4. I am informed by Ms Pope and verily believe that if the Australian Government were to reveal full details of the communications with relevant governments referred to in this and previous affidavits, this may prejudice the chances of successfully negotiating the return of the Applicant to Gaza. The return of other Palestinians currently in Australia to Gaza may also be affected. 48 In the course of the hearing (at T 29) I put to senior counsel for the Minister that the affidavit gave no indication of whether there is a real prospect or likelihood of the Minister being able to secure the applicant s removal. Senior counsel for the Minister replied that he did not demur from that and added: MR BURMESTER: I think there are rejections by Syria, Egypt and Jordan that at this stage are not being pursued by further action, as far as we're aware, and that at present priority and efforts are certainly being put into removing the applicant through Israel. I agree and concede that there's nothing in the material that expresses a view or seeks to hazard a view as to the likelihood of prospects, but in our submission the fact is there are these high-level communications taking place, there's been a flurry of activity in the last few days since the meeting on 13 June - for the last month - with letters going to the ambassador, cables to the embassy, and the last paragraph of this last affidavit which refers to not disclosing it because this may prejudice the chances of successfully negotiating. I agree there's no expression as to whether it's likely, but in our submission it would be contrary to the evidence - given the active negotiations that are clearly taking place, it would not be open in our submission for your Honour to conclude at present that there is no reasonable prospect or no likelihood of this person being removed. It is not as if the stage has been reached where all efforts have failed, no efforts are being made and nothing further can be done. That is certainly not the position, in our submission. In our submission there are active efforts
- 17 - being made at the highest of levels. Therefore, it is properly open to you an inference that there is still some reasonable prospect and one certainly couldn't conclude that this person had been left to languish. 49 In the course of his final submissions the Minister sought leave to tender a further Affidavit, which was objected to by counsel for the applicant. The objections to the affidavit, which contained hearsay, expressed an opinion which was conclusionary without qualifying the deponent s competence or stating the facts on which the opinion was based and was not in an appropriate and admissible form for a final hearing, were upheld. 50 I have set out what occurred at trial as it is relevant to whether I should accede to the submission of senior counsel for the Minister that it is open to me to infer there is a reasonable prospect of the applicant s removal. 51 I regard the failure of the Minister to place the most recently available information before the Court to enable a view to be formed as to the prospects for the applicant s removal in the foreseeable future, as significant. It is some eight months since the Minister was first obliged to procure the applicant s removal from Australia as soon as reasonably practicable. The final affidavit of the solicitor acting for the Minister suggested that revealing to the Court the full details of factual information as to the prospects for the applicant s removal would be likely to prejudice his removal to Gaza. No basis was put forward for that view. In any event, something less than the full details of the relevant communications may well have sufficed. Accordingly, I do not regard the Minister as having provided a sufficient explanation for the absence of evidence as to the present prospects of the applicant s removal. 52 In the above circumstances Jones v Dunkel (1959) 101 CLR 298 at 308, 312 and 321-322 can be relied upon to infer that the information available to the Department as to the present prospects for the applicant s removal would not have assisted the Minister s case and I can also more readily and confidently draw the adverse inferences available to be drawn against the Minister s case on that issue. 53 The situation is that each of the countries to which the Minister seeks to remove the applicant: Israel, Jordan, Egypt and Syria, have refused to accede to the Department s requests for permission for the applicant s entry. Notwithstanding continuing communications between the Department and Israeli officials there is no indication that there is a real prospect or likelihood of Israel agreeing to alter its unequivocal refusal to permit the
- 18 - applicant to enter Israel. In all the circumstances I am prepared to more readily and confidently infer that at the present time there is no real prospect or likelihood of the Minister being able to remove the applicant from Australia in the reasonably foreseeable future. Accordingly, I have concluded that the Minister has failed to discharge the burden imposed upon him to prove that the continued detention of the applicant is lawful. Consequently, the applicant s continued detention is unlawful. 54 I do not regard ss 196(1)(a) and 196(3) as operating to prevent an order for the applicant s release from detention. In my view the sub-sections only apply to a detention that is lawful under the Act. As was observed by Beaumont J in NAMU at [15]: it is clear on the face of subs (3) that it is not intended to direct or control the manner of exercise of any judicial power; rather, it makes it clear that there is no jurisdiction in a court to direct the release of a person lawfully detained. But this is not to say that the question whether or not a person is an unlawful non-citizen is not justiciable or not examinable by a court; it would be open to a court to order, for example, that a person judged not to be an unlawful non-citizen, be released; that is to say, the ability of the courts to determine the lawfulness of any detention remains unaffected by the provisions of Division 7. 55 If, contrary to my view, ss 196(1)(a) and (3) were construed as preventing the courts from granting relief in respect of unlawful detention they would be invalid as transgressing the constitutional protections of the judicial power in Ch III discussed in Lim. 56 Upon the conclusion being reached that the applicant s detention is unlawful it is clear there is no discretion to refuse an order for release: see Somerset v Stewart (1772) 98 ER 499 at 510, R v Langdon; Ex parte Langdon (1953) 88 CLR 158 at 161, Victorian Council of Civil Liberties v Minister for Immigration (2001) 110 FCR 452 ( VCCL ) at 468-469 and Ruddock v Vadarlis (2001) 110 FCR 491 ( Ruddock v Vardarlis ) at 514. The Court has power, however, to make orders appropriate to the circumstances of the case: see s 23 of the Federal Court of Australia Act 1976 (Cth), VCCL at 477-478 and Ruddock v Vadarlis at 514. 57 Notwithstanding an order for the applicant s release from detention, the Minister s duty to remove the applicant under s 198(1) remains extant. In the circumstances it appears to be appropriate for the Court to order that the applicant take steps to ensure the Minister is able to be informed of his whereabouts and, if circumstances change and the applicant s removal can be secured, that the applicant take reasonable steps to facilitate his own removal. Although