Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Gleeson CJ,McHugh J,Gummow J,Kirby J,Hayne J,Callinan J,Heydon J
• Judgment Date: 06 August 2004
• Neutral Citation: [2004] HCA 38,2004-0806 HCA C
• Docket Number: A254/2003
• Date: 06 August 2004

[2004] HCA 38

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan AND Heydon JJ

A254/2003

Minister for Immigration and Multicultural and Indigenous Affairs

Appellant

and

Abbas Mohammad Hasan Al Khafaji

Respondent

Representation:

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

S W Tilmouth QC with M B Manetta and H M Heuzenroeder for the respondent (instructed by Jeremy Moore & Associates)

Interveners:

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.

Cause removed under s 40 of the Judiciary Act 1903 (Cth)

Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji

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 allowed.

• 2. Orders 1, 2, 3, 4, 5, 6 and 8 of the Federal Court of Australia made 5 November 2002 set aside and in lieu thereof order that the application to that Court be dismissed.

• 3. The appellant to pay the respondent's costs in this Court.

1 Gleeson CJ. This appeal was heard at the same time as Al-Kateb v Godwin1.

2 The facts and issues are set out in the reasons of Gummow J. For the reasons I gave in Al-Kateb I consider that this appeal should be dismissed with costs.

3 McHugh J. Mr Abbas Mohammad Hasan Al Khafaji is an Iraqi national and unlawful non-citizen who was refused a protection visa in Australia on the grounds that he had not taken all reasonable steps to avail himself of a right to reside in Syria. However, attempts by the Australian government to remove him from Australia have been unsuccessful. In the Federal Court, Mansfield J found that there was no real prospect of successful removal in the foreseeable future. Mr Al Khafaji's case therefore raises the same issues concerning the legality of detaining an unlawful non-citizen in immigration detention as are raised in Al-Kateb v Godwin2. For the reasons that I give in that case, ss 189, 196 and 198 of the Migration Act 1958 (Cth) require that Mr Al Khafaji be kept in immigration detention until he is removed from Australia.

4 Tragic as this outcome is for Mr Al Khafaji, the Minister's appeal must be allowed. I agree with the orders proposed by Hayne J.

5 Gummow J. This appeal by the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) from the judgment and order of the Federal Court of Australia (Mansfield J) 3, which was pending in the Federal Court, was removed into this Court under s 40 of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) by order of this Court made on 14 August 2003. The appeal raises issues related to those in Al-Kateb v Godwin4 and this judgment should be read with my judgment in that case.

6 By application to the Federal Court filed on 10 September 2002, the respondent had sought against the Minister injunctive and other relief under s 39B of the Judiciary Act. The respondent was successful and on 5 November 2002 Mansfield J ordered that the Minister forthwith release the respondent from detention. At the time of this order, the respondent, as an unlawful non-citizen, had been detained under the provisions of the Migration Act 1958 (Cth) (‘the Act’) for two years and 10 months. Mansfield J followed the construction given the legislation by Merkel J in a case thereafter affirmed by the Full Court of the Federal Court 5.

7 The facts may be stated shortly. The respondent was born in Iraq on 5 January 1973 and is an Iraqi national. In about 1980, he fled Iraq with his family and went to Syria. The respondent grew up there and after completion of his schooling worked casually as a teacher. In November 1999, the respondent left Syria. He arrived in Australia without proper travel documents on 5 January 2000. He was then placed in immigration detention, where he remained until the order for his release was made by Mansfield J.

8 On 5 April 2000, the respondent applied for a protection visa within the meaning of s 36 of the Act as that section stood after the changes made by the Border Protection Legislation Amendment Act 1999 (Cth) 6 (‘the 1999 Act’). The delegate of the Minister accepted that the respondent satisfied the criterion for such a visa provided in s 36(2). This stated:

‘A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.’

The delegate accepted that the respondent had a well-founded fear of persecution if he were to return to Iraq, by reason of his political opinion or political opinion imputed to him. However, the respondent failed to obtain a protection visa.

9 This was by reason of the operation given by the delegate to s 36(3) with respect to Syria. The sub-section was inserted by the 1999 Act in a Part headed ‘Amendments to prevent forum shopping’. It stated:

‘Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’

The question posed in the concluding words of s 36(3), the country of nationality of a non-citizen, is to be determined solely by reference to the law of that country (s 36(6)). Section 36(3) would not apply in relation to Syria if the respondent had a well-founded fear of persecution there (s 36(4)). Nor would it apply to Syria if the respondent had a well-founded fear that Syria would return him to Iraq and that he would be persecuted there (s 36(5)).

10 However, the delegate concluded that the respondent had effective protection in Syria, including the right to re-enter and reside in Syria without the risk of refoulement to Iraq and that he did not have a well-founded fear of persecution for any Convention reason if he were to return to Syria. Hence s 36(3) operated, Australia was to be taken not to have protection obligations to the respondent and, as a result, he did not meet the necessary criterion in s 36(2) for a protection visa.

11 A review of the delegate's decision by the Refugee Review Tribunal (‘the Tribunal’) affirmed the decision on the footing that, without determining whether s 36(2) was satisfied, the delegate correctly had applied s 36(3).

12 The respondent was notified of the decision of the Tribunal on 4 December 2000. He took no steps to institute in the Federal Court an application for judicial review of the Tribunal's decision under the provisions of Pt 8 of the Act as it then stood 7. The decision of the Tribunal had been made under Pt 7 of the Act. The absence of any application for judicial review under Pt 8 produced the result that, on 1 January 2001, the application for the protection visa was ‘finally determined’ within the meaning of the definition

given that expression in s 5(9) of the Act. That state of affairs then called into play the obligation imposed by s 198(6) of the Act, that ‘[a]n officer must remove as soon as reasonably practicable an unlawful non-citizen’ where the grant of a substantive visa has been refused and the application ‘finally determined’. Further, s 198(1) of the Act stated:

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

13 On 9 February 2001, the respondent made a written request to the effect that he be returned to Syria from Australia as soon as possible and with suggestions of other countries to which he might be sent if arrangements could not be made to send him to Syria. He made a further formal written request on 16 April 2002. The Minister has been aware of the respondent's wish to be returned at least since the written request of 9 February 2001.

14 The evidence before Mansfield J was that the respondent was regarded by the Minister's Department as falling into a group of Iraqi nationals found to be at risk of persecution in Iraq but with effective protection in a third country. In an affidavit the subject of a confidentiality order, the director of the Unauthorised Arrivals Section of the Department explained steps taken to arrange for the return from Australia to Syria of...