Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1009
In Al Masri, Merkel J had to deal with the peremptory words of section 196 of the Migration Act:
"(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 198or 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."
Al Masri had been refused a protection visa, but could not be returned to Palestine. No other country would take him. Merkel J decided that the language of the section had to yield to the constitutional basis for administrative detention, namely, that it is justified only so long as it serves the relevant administrative purposes of assessment and (where relevant) deportation. He said at [38]-[39]:
“[38] …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 case is on appeal, and has been followed by some judges but not followed by others.