Al-Kateb v Godwin

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ.,McHugh J.,Gummow J.,Kirby J.,Hayne J.,Callinan J.,Heydon J.
• Judgment Date: 06 August 2004
• Neutral Citation: [2004] HCA 37,2004-0806 HCA A
• Court: High Court
• Docket Number: A253/2003
• Date: 06 August 2004

[2004] HCA 37

HIGH COURT OF AUSTRALIA

Glesson CJ McHugh, Gummow, Kirby, Hayne Callinan And Heydon JJ

A253/2003

Ahmed Ali Al-kateb

Appellant

and

Philippa Godwin, Deputy Secretary, Department of Immigration And Multicultural And Indigenous Affairs & Ors

Respondent

Representation:

C M O'Connor with A Hamdan for the appellant (instructed by Hamdan Lawyers)

D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and S J Maharaj for the respondents (instructed by Australian Government Solicitor)

Intervener:

D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and S J Maharaj intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

D S Mortimer SC with J K Kirk intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by Human Rights and Equal Opportunity Commission)

Constitution, Ch III.

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

Al-Kateb v Godwin

Immigration — Unlawful non-citizens — Detention pending removal from Australia — No real prospect of removal from Australia in reasonably foreseeable future — Whether detention lawful under Migration Act 1958 (Cth) — Whether detention is temporally limited by purpose of removal — Whether requirement to remove as soon as reasonably practicable implies time limit on detention.

Statutes — Acts of Parliament — Construction and interpretation — Where meaning ambiguous or uncertain — Presumption of legislative intention not to invade personal common law rights.

Constitutional law (Cth) — Judicial power of the Commonwealth — Unlawful non-citizen in immigration detention — No real prospect of removal from Australia in reasonably foreseeable future — Whether provision for indefinite detention without judicial order infringes Chapter III of the Constitution — Whether detention involves an exercise of judicial power of the Commonwealth by the Executive — Whether detention is for a non-punitive purpose.

Constitutional law (Cth) — Construction and interpretation — Whether Constitution to be interpreted to be consistent with international law of human rights and fundamental freedoms.

ORDER

1. Appeal dismissed.

2. The respondents to pay the appellant's costs in this Court.

1 Gleeson CJ. The Migration Act 1958 (Cth) (‘the Act’) provides for administrative detention of unlawful non-citizens. For present purposes, unlawful non-citizens are aliens who have entered Australia without permission, or whose permission to remain in Australia has come to an end. In this context, alien includes a stateless person, such as the appellant. Detention is mandatory, not discretionary. It is not a form of extra-judicial punishment. It exists ‘in the context … of executive powers to receive, investigate and determine an application by [the] alien for an entry permit and (after determination) to admit or deport’ 1. It is an incident of the exercise of those powers. The Act envisages that the detention will come to an end, by the grant of a visa which entitles the alien to enter the Australian community, or by removal of the alien from Australia, either at the request of the alien, or following the conclusion of an unsuccessful attempt to obtain a visa. Applications for visas may involve a lengthy process of decision-making, and administrative and judicial review. The time taken by the process may be difficult to predict. In that respect, the period of administrative detention may be uncertain. Similarly, the process of removal may take some time to arrange. In the ordinary case, however, the period, although uncertain, is finite. Furthermore, as was pointed out in Chu Kheng Lim v Minister for Immigration, in the ordinary case, the detention can be brought to an end upon the alien making a request to be removed 2. There are, however, exceptional cases, where a visa application has been determined adversely to an alien, or an alien has requested removal, but removal is not possible in the circumstances which prevail at the time and which are likely to prevail in the foreseeable future. What happens then? Is the consequence indefinite, perhaps permanent, detention? The Act does not, in express terms, address that problem 3.

2 The appellant, a stateless person, arrived in Australia without a visa. He was taken into immigration detention, and applied for a visa. His application failed. He wrote to the Minister requesting to be removed. Removal did not take place, not because of any want of trying on the part of the Australian authorities, or because of any personal fault of the appellant, but because attempts to obtain the necessary international co-operation were unsuccessful. The Federal Court found that there was no real likelihood or prospect of removal of the appellant in the reasonably foreseeable future.

3 In a similar case, Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri 4, the Full Court of the Federal Court held that a person in the position of the appellant is entitled to be released from immigration detention, if and when the purpose of removal becomes incapable of fulfilment. For the reasons that follow, I agree with that conclusion. A similar problem has arisen, and a similar answer has been given, in the United Kingdom 5, the United States 6, and Hong Kong 7. However, in each country the constitutional and statutory context is controlling, and differs. In particular, while in those jurisdictions provision is made for administrative detention of aliens, such detention is discretionary rather than mandatory, and the courts are concerned with powers, rather than obligations, to detain. Questions of reasonableness in the exercise of administrative powers may give rise to considerations that are not directly relevant to a system of mandatory detention.

4 In Australia, the constitutional context is as follows. The Parliament, subject to the Constitution, has power to make laws with respect to naturalization and aliens (s 51(xix)), and immigration and emigration (s 51(xxvii)). The qualification, subject to the Constitution, directs attention to Ch III, concerning judicial power and courts, and the separation of powers which is part of the structure of the Constitution. Parliament has no power to make laws with respect to aliens which confer judicial power on the Executive. The Act's scheme of mandatory administrative detention is a valid law with respect to aliens on the basis earlier stated, that is to say, that a limited authority to detain an alien in custody is conferred as an incident of the exercise of the executive powers of excluding and removing aliens, and investigating, considering and determining applications for permission to enter Australia 8. So characterised, the power is not punitive in nature, and does not involve an invalid attempt to confer on the Executive a power to punish people who, being in Australia, are subject to, and entitled to the protection of, the law.

5 The history of the relevant provisions of the Act, and of earlier legislation on the subject, is set out in the reasons of Gummow J and of Hayne J. The critical provisions are ss 189, 196, and 198 which are contained in Pt 2 dealing with ‘Control of arrival and presence of non-citizens’. Division 7 of Pt 2, which

contains ss 189 and 196, deals with ‘Detention of unlawful non-citizens’ — those without visas. Division 8 of Pt 2, which contains s 198, deals with ‘Removal of unlawful non-citizens’

6 Section 198 provides:

‘(1) An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

…

(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) …

  • (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 …’

7 Both sub-ss (1) and (6) apply in the case of the appellant. Removal is not necessarily limited to removal to an unlawful non-citizen's country of nationality. However, it does not include simply ejecting a person physically from Australian territory, and therefore, in a given case, may require international co-operation as mentioned above.

8 Section 189 provides that, if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.

9 Section 196, dealing with the period of detention, provides:

‘(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.’

10 The word ‘detention’ in sub-s (3) means ‘lawful detention’. If it were otherwise, the provision would constitute an unconstitutional interference with judicial power 9. Parliament cannot deprive the courts of the power to order the release of a person from unlawful detention. Consequently, it is the meaning of sub-s (1), understood in its constitutional and statutory context, that is in question.

11 The appellant was taken into detention under s 189, and was to be kept in detention under s 196 until he was removed from Australia under s 198 or granted a visa. He was not granted a visa, and he...