Alternative Law Journal
NATALIE BUGALSKI[*] reports on the Al Masri case where lawyers successfully argued that because there was no prospect of the asylum seeker being returned to his country of origin his continuing detention in Woomera was unlawful.
Mr Al Masri is a 24-year-old Palestinian from the Gaza Strip, a 360 square kilometre strip of land, controlled by the Palestinian Authority. Al Masri lodged an application for a protection visa on 2 July 2001 claiming that he fled the Gaza strip in fear for his life following allegations that his family had collaborated with Israel and family members were tortured and murdered as a result.
Following the rejection of Al Masri’s application by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) and the affirmation of that decision by the Refugee Review Tribunal, Al Masri signed a written request to the Minister to be returned to the Gaza Strip. Al Masri’s affidavit stated that he would ‘go back and die with [his] family rather than die in the detention centre’.
Although the Department of Immigration and Multicultural and Indigenous Affairs (the Department) informed Al Masri that arrangements had been made for his deportation on 18 February 2002, the Department had been unable to secure permission from Israel, Egypt or Jordan to allow his entry or transit to the Gaza Strip. The Department also unsuccessfully sought permission from Syria to accept Al Masri. Al Masri therefore remained in Woomera in a kind of limbo: there was no prospect of him being accepted by Australia as a refugee and no likelihood of him being returned to the Gaza Strip.
On 21 May 2002 Al Masri’s lawyers, the Refugee Advocacy Service of South Australia (RASSA), brought a proceeding in the Federal Court against the Minster for an order in the nature of habeas corpus to enable his release pending his removal from Australia. An order in the nature of habeas corpus is a common law remedy which requires the release of a person who has been detained without lawful authority. Lawyers for Al Masri successfully argued that as there is no reasonable prospect of his removal from Australia, the Minister no longer has any power to detain him under the Migration Act 1958 (the Act) and therefore his detention was unlawful.
Under s.196(1) of the Act, an unlawful non-citizen, such as Al Masri, must be kept in detention until he or she is either granted a visa; removed from Australia under ss.198 or 199 of the Act; or deported under s.200 of the Act. Subsection (3) states that ‘[t]o 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 had been granted a visa’.
According to s.198(1), when Al Masri requested in writing that the Minister return him to the Gaza Strip, the Department was required to remove him from Australia, and therefore from detention, ‘as soon as reasonably practicable’.
Justice Merkel interpreted these provisions as requiring that detention continue only until removal, as soon as reasonably practicable. In other words s.196(1) and s.198 should be read together placing a temporal as well as a purposive limitation on the detention power under the Act. Furthermore, detention is authorised under the Act for only so long as there is a reasonable likelihood or prospect of removal in ‘the reasonably foreseeable future’.
Justice Merkel considered United Kingdom, Hong Kong and United States authority on analagous statutory provisions. In similar challenges to detention, where orders in the nature of habeas corpus were sought, the Privy Council and the US Supreme Court both found that there were implicit limitations on the detention power of the executive arm of government and that an alternative construction of the legislation would raise ‘serious constitutional concerns’ in the US and would be an unreasonable interference with ‘individual liberty’ in the UK.
Interestingly, counsel for the Minister initially argued that as a result of the privative clause in s.474 of the Act, the Court was precluded from granting relief as the fact of Al Masri’s detention was a privative clause decision under the Act. Had this argument been successful, according to the Full Federal Court decision of NAAV v Minister for Immigration & Multicultural & Indigenous Affairs, that was handed down on the same day, the decision to continue Al Masri’s detention or the refusal to end Al Masri’s detention would be unreviewable other than on very limited grounds. However, as conceded by counsel for the Minister, the privative clause provision cannot prevent the Court from granting relief in the nature of habeas corpus. Citing Lim v Minister for Immigration and Koon Wing Lau v Calwell  Justice Merkel correctly stated that ‘under the Australian Constitution the legislature cannot confer an unreviewable power on the executive to unlawfully detain any person in Australia’.
Justice Merkel found that ‘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’. Justice Merkel noted that eight months had passed since the Minister had become obliged to procure Al Masri’s removal from Australia as soon as reasonably practicable. Further, adverse inferences were drawn from the fact that the Minister failed to provide the Court with the ‘most recently available information’ and the Court inferred that there was no prospect or likelihood that Al Masri would be returned to the Gaza Strip in the reasonably forseeable future.
Therefore, for the purposes of an order in the nature of habeas corpus, Al Masri had successfully adduced evidence that put into issue the legality of his continued detention and the Minister was unable to discharge the burden consequently imposed on him to establish, on the balance of probabilities, that Al Masri’s continued detention was lawful. Once this was established, the doctrine of habeas corpus gives the court no discretion to refuse an order for release.
The Court therefore ordered that Al Masri be released from detention immediately and with that, on 16 August 2002, Al Masri finally found himself outside the gates of Woomera Detention Centre after 14 months in detention. His new found freedom in the Australian community, however, was to be short lived.
Al Masri was released from detention with certain conditions imposed, such as regular reporting to the Department. However, Al Masri was not issued with a visa and, in this respect, on his release he was a legal anomaly. While in the community, he had no work rights and no access to social security payments or Medicare. Without a visa Al Masri’s freedom was tenuous.
By court order, Al Masri was required to comply with arrangements made by the Department for his removal from Australia. In fact, two weeks after his release Al Masri was arrested in South Australia following an arrangement made by the Department with a Middle Eastern country for his return. Subsequently the Federal Court made an interim order that his arrest and detention were unlawful as they were contrary to the conditions of his initial release. However, in the full hearing of the matter, Justice Merkel found that the Minister ‘has power to once again detain the applicant for the purpose of his removal’. His Honour found ‘there appears to be no reason in principle why the statutory power to detain under the Act in order to effect removal should not exist whenever it is apparent that the unlawful non-citizen to be detained is able to be removed from Australia in the reasonably foreseeable future’. The interlocutory order was therefore discharged and Al Masri was detained pending his deportation to the Gaza Strip a few days later.
There are currently many other detainees in immigration detention centres in a similar situation of ‘limbo’ that Al Masri was in when he was refused a protection visa and requested to return home but Australia could not send him back.
There are currently at least 31 Palestinian and Iraqi people in Australia’s detention centres who, if ultimately refused refugee status, could be affected by the Federal Court decision. Should these detainees sign a written request to return to their home, an obligation immediately arises on the Department to return them, and therefore release them from detention, as soon as reasonably practicable. The Department would probably face difficulties in arranging for their transit and/or entrance in the necessary countries and consequently will not be able to return them to their home. All of these detainees could potentially be conditionally freed from detention if they bring a habeas corpus claim to the court.
Jeremy Moore, of the Woomera Lawyers group had lodged applications in the Federal Court on behalf of two other Palestinian men; however these men have since been deported along with Al Masri. So far, applications have been lodged in the Federal Court on behalf of three Iraqi men who are in detention and who have agreed to return to their home after having their applications for refugee status rejected. The Department has been unable to secure permission from Iraq to allow them to return.
The Department had indicated that it would lodge an appeal against Justice Merkel’s decision to the Full Federal Court. It would be interesting to see whether a Full Bench would take a different approach to that of Justice Merkel. It seems, however, that His Honour’s decision is consistent with Australia’s obligations under international law and in particular Article 9 of the International Covenant on Civil and Political Rights which proscribes arbitrary detention. As the Migration Act does not authorise detention in the circumstances where a protection visa has been refused, no appeal is pending and the detainee has requested to be returned home but there is no reasonable prospect of that occurring, the continuance of detention in those circumstances is not sanctioned by any law and is therefore illegal and, in any case, ‘arbitrary’ within the meaning of Article 9 of the Convention.
In such cases where the deprivation of liberty is at risk the Courts must ensure that, wherever possible, statutory provisions that vest such power in the authorities are construed so that there are limits on the powers to detain. Furthermore access to the courts to review detention that may otherwise be arbitrary and indefinite must be ensured. A detainee’s right to bring a proceeding before a court of law for an order in the nature of habeas corpus should not be restricted by any legislative provisions such as a privative clause. Otherwise there is a danger that the vulnerable and politically demonised, those who are most in need of protection, are deprived of their basic rights to freedom and justice.
[*] Natalie Bugalski is a solicitor at Deacons lawyers currently seconded to the Public Interest Law Clearing House (PILCH).
©2002 Natalie Bugalski
 Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs  FCA 1009 (Merkel J, 15 August 2002) (Al Masri v MIMIA).
 Al Masri v MIMIA, paras 38-39.
 Al Masri v MIMIA, paras 24-37, where his Honour considered the cases of R v Governor of Durham Prison; Ex parte Hardial Singh  EWHC 1;  1 WLR 704; Tan Te lam v Superintendent of Tai A Chau Detention Centre  UKPC 5;  AC 97; Re Chung Tu Qan & Ors  HKCFI 493;  1 HKC 566; and Zadvydas v Davis,  USSC 16; 533 U.S. 678 (2001).
 NAAV v Minister for Immigration & Multicultural & Indigenous Affairs  FCAFC 228 (Black CJ, Beaumont , Wilcox, French and Doussa JJ, 15 August 2002) (NAAV).
 The majority view was that the privative clause leaves ‘little scope for judicial review (in the sense that although the amendments to the legislation do not prevent access to the courts, they leave little scope for an applicant to argue successfully that the decision affecting him/her was invalid on legal grounds).’ NAAV, Judgment Summary, para 8.
 Lim v Minister for Immigration (1992) 176 CLR 1 paras 10, 36-37, 57-58, 63 and 65-66.
 Lau v Calwell (1949) 80 CLR 534, per Latham CJ, para 556.
 Al Masri v MIMIA, above, ref 1, para 18.
 Al Masri v MIMIA, para 38.
 Al Masri v MIMIA, para 51-52.
 Al Masri v MIMIA, para 56. On this point Merkel J cites Somerset v Stewart  EngR 57; (1772) 98 ER 499 at 510; R v Langdon; Ex parte Langdon  HCA 66; (1953) 88 CLR 158 at 161, Victorian Council of Civil Liberties v Minister for Immigration  FCA 1297; (2001) 110 FCR 452 at 468-9 and Ruddock v Vadarlis  FCA 1329; (2001) 110 FCR 491 at 514. His Honour noted that the Court does has power to make orders appropriate to the circumstances of the case as per s.23 of the Federal Court of Australia Act 1976 (Cth).
 Al Masri v MIMIA, para 24.
 Al Masri v MIMIA, para 22. Merkel J found that the Court orders made on 15 August 2002 could not deny the Minister ‘any power he is entitled to lawfully exercise under the Act to detain’ Al Masri for the purposes of his deportation and that the powers under the Act to detain could be exercsied more than once (see paras 15 and 23).
 Al Masri told the media that, although he feared he would be killed on return to Israel, he preferred that option then being returned to Woomera Detention Centre (See, for example, <http://news.ninemsn.com.au/National/story_38311.asp> , accessed 1 September 2002.
 This figure was provided in a letter from Fr Frank Brennan SJ, Director of the Uniya Jesuit Social Justice Centre to the Minister on 20 August 2002. The decision may also effect Bedon people who cannot be returned to Kuwait and asylum seekers who unsuccessfully claimed to be Afghani nationals and consequently their nationality is unknown.
 No diplomatic agreement exists between Australia and Iraq to allow for such action and in attempting to return the Palestinians the Department is likely to encounter the same obstacles from Israel, Egypt and Jordan as it did in the Al Masri matter.
 International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force generally 23 March 1976, entered into force for Australia 13 November 1980).
 The Human Rights Committee in its General Comment on Article 9 extends the scope of Article 9 to cases of immigration control. The term ‘arbitrary detention’ is interpreted in the Views of the Committee on communication No. 305/1988, Van Alphen v the Netherlands: Views adopted on 23 July 1990, paragraph 5.8 as not merely being against the law, but as including elements of ‘inappropriateness, injustice and lack of predictability’.