Applicant

-AND-

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Applicant’s outline of submissions

Background

The applicant is in immigration detention. He is an unlawful non-citizen, within the meaning of the Migration Act 1958. He was taken into immigration detention, under section 189 of the Migration Act, on his arrival in Australia, in 1999. During most of the term of his detention, he has been at ……… Detention Centre.

The applicant applied for a protection visa when he arrived in Australia. His application was refused by the Minister’s delegate on [date 1]. He applied to the Refugee Review Tribunal for review of that decision. His application was dismissed by the Tribunal on [date 2].

The applicant did not seek judicial review of the Tribunal's decision. The applicant made no other application for a substantive visa. By [date 3], DIMIA had concluded that the time within which the applicant could apply for judicial review of the Tribunal's decision had expired[1]. Therefore, certainly by [date 3], the applicant’s application for a protection visa had become finally determined.

Sections 198, and 196(1)

As a consequence, by virtue of section 198 of the Migration Act, the Applicant became liable to be removed from Australia as soon as reasonably practicable, because the his circumstances then satisfied the criteria set out in sub-sections (a), (b), (c)(i) and (d) of section 198(6). Those sub-sections read:

(6) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:

(a) the non‑citizen is a detainee; and

(b) the non‑citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c) one of the following applies:

(i) the grant of the visa has been refused and the application has been finally determined;

………….and

(d)the non‑citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

Section 196(1) of the Migration Act prescribes the circumstances in which an unlawful non-citizen can be kept in immigration detention. It reads:

(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.

Al Masri

In Al Masri –v- MIMIA [2], Justice Merkel considered the interaction of sections 198 and 196(1). His Honour construed those sections as implicitly limiting the circumstances in which unlawful non-citizens might be held in detention. His Honour said:

38…..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:

* 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.

The applicant, Mr Al Masri, was a Palestinian from the Gaza strip. He had arrived in Australia in June 2001, an unlawful non-citizen. He was taken into immigration detention. He sought a protection visa. He was refused. He applied to the Tribunal for review. In December 2001, his application was dismissed. He then requested that he be removed from Australia and taken back to Gaza. He made no further application for a substantive visa.

The Minister was unable to secure the transit visas necessary to return Mr Al Masri to Gaza. Israel, Egypt, Jordan and Syria all refused him permission to pass through their territory. Mr Al Masri remained in detention. He commenced proceedings to secure his release.

At issue was the proper construction of sections 198 and 196(1). The Minister argued that the only limitation on the power to detain is a purposive one[3]. So, the Minister argued, as long as the purpose of detention is the proper one[4], questions of reasonableness cannot come into the matter. Thus, a person in the situation of Mr Al Masri could be detained for however long it might take to effect his or her removal from Australia: be that weeks, months or years.

In his reasons, Justice Merkel observed that if this argument were correct, the statute would effectively authorize indefinite detention pending removal. His Honour said that it would be difficult to conceive of a situation - absent bad faith - in which the requisite purpose could be said to have ceased[5].

In so saying, Justice Merkel recognised the Minister’s argument for what it was: an argument that the power to detain is virtually unlimited. Justice Merkel rejected this argument. His Honour held that the power to detain pending removal is implicitly limited by considerations of reasonableness[6].

Finding that there appeared to be no real prospect of Mr Al Masri being removed from Australia in the reasonably foreseeable future, his Honour concluded that the Migration Act did not authorize his further detention. His Honour ordered Mr Al Masri to be released.

Al Masri affirmed on appeal

On 15 April 2003, the Full Federal Court (Black CJ, Sundberg and Weinberg JJ) unanimously affirmed Merkel J’s decision: see MIMIA v al Masri [2003] FCAFC 70.

Interlocutory release

The applicant in this proceeding seeks a final order that he be released from detention. He also seeks an interlocutory order to restrain further detention pending the trial of the action.

Before commencing this proceeding, the applicant obtained, by FOI request, all documents on his DIMIA file post-dating 19 April 2002 (ie., the date of the Tribunal’s decision in his case) [7]. Certain of the documents record the applicant’s availability for removal from Australia [8]. None of the documents record, or even suggest, any attempt to actually remove the applicant from Australia.

Through his lawyer, the applicant wrote to DIMIA about the fact that nothing had apparently been done to return him to Syria. He put it to DIMIA that either he had been forgotten, or it was impossible for him to be returned to Syria. The applicant asked DIMIA to tell him if there were some other explanation. DIMIA did not respond [9].

On the evidence, no steps have ever been taken to remove the applicant from Australia. On the basis of Al Masri, therefore, the applicant has been unlawfully imprisoned for more than two years. During that unlawful imprisonment, the applicant:

[set out details of particular hardship suffered by applicant in detention]

The interlocutory order sought by the applicant is in the nature of a prohibitive injunction. It is not in the nature of a mandatory injunction. But even if it were in the nature of a mandatory injunction, the order would be warranted on the material. There is a high degree of assurance that the applicant will succeed at trial for relief, on a permanent basis, akin to that which is presently sought [10].

The balance of convenience favours the making of the order. The Applicant has been held in detention without the prospect of release or removal for 2 and a half years. He is willing to consent to such orders as to residence and reporting as may be reasonable. Three Australian citizens have offered to give him accomodation if he is released from detention. All have have been corresponding with him and phoning him during much of his time in detention. He is willing to present himself for removal from Australia.

DATED

[1] Applicant’s affidavit sworn September 2002, paragraphs 8, 14 and annexure G.

[4] The relevant purpose in Al Masri being the purpose to effect removal from Australia as soon as reasonably practicable

[7] Applicant’s affidavit sworn September 2002, paragraph 13, and annexure D.

[8] Applicant’s affidavit sworn September 2002, paragraph 14, and annexures G, H and I.

[9] Applicant’s affidavit sworn September 2002, paragraph 15, and annexure J.

[10] Queensland –v- Australian Telecommunications Commission (1985) 59 ALR 243, per Gibbs J.