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    Ruddock, the face of Australia's refugee treatment

Vale, Akram Al Masri!

Militant gunman kills Akram Al Masri, a man who left a gift to Australian Refugee Law

IMAGE: thanks to Peter Nicholson and The Australian

Friday August 1, 2008 - This afternoon we've been working frantically on the issue of an asylum seeker Australia deported to where he came from - correction, an asylum seeker who wanted to return to where he came from, the Gaza Strip.

Akram Al Masri came to find protection under the United Nations Convention for Refugees and didn't get what he came for. But his 2003 Full Federal Court case became a landmark ruling around the question whether or not Australia could lock an asylum seeker forever (yes, we could, and still can), and if we can do that if that person has asked to be removed from Australia and return to the country he came from while the Minister for Immigration is unable to make this happen in a timely fashion (no, we can't).

Through advocates the sad news came to us that Mr Al Masri had been killed at close range by a militant gunman in front of the magistrates court in Khan Yunis in the southern Gaza strip. The advocates told us:

"Akram's uncle and I had been working with Chris Evans office for some months to have him brought back but the department put the red flag up on us. ... We are all devastated. Akram has 4 little kids and a young widow stuck in Gaza now with no support. Last year his young brother was murdered as well."

So, Vale, Akram Al Masri. Thank you for helping to limit the power of our politicians, if only a little, in a period we needed to limit that power. May you rest in peace.

What's on this page

This page brings together all Australian media coverage around the death of Mr Al Masri, and finishes with a summary of the Full Federal Court case by David Bitel, the then President of the Refugee Council of Australia.

Media

Gunman shoots dead Karam Al Masri in Khan Yunis south of Gaza

Palestian Press Agency
2008-07-31 14:15:22

Ramallah, Pal Press - A militant shot dead a Palestinian citizen today after noon in Khan Yunis south of the Gaza Strip.

Eye witnesses said that Akram Al Masri was shot dead after a militant fired a number of bullets in his head at close range while he was getting out of the magistrate court under the control of Hamas lawless movement in Khan Yunis.

The witnesses confirmed that the murderer was not masked and expected the murder to have occurred against the background of a family dispute amid a status of chaos and insecurity which spread everywhere in Gaza in the light of Hamas lawless rule in the coastal Strip.

http://www.palpress.ps/english/index.php?maa=ReadStory&ChannelID=16087

Deported asylum seeker shot dead

ABC Radio Current Affairs - AM
AM - Saturday, 2 August 2008 08:00:00
Reporter: David Weber

Audio File:

  • ABC-AM: Deported asylum seeker shot dead - Refugee advocates are mourning the death of a man whose case changed the nature of immigration detention in Australia. Akram Al Masri has been shot dead in Gaza. He'd returned there after his request to stay in Australia failed. (Windows Media Audio File - loaded from ABC website)

ELIZABETH JACKSON: Refugee advocates are mourning the death of a man whose case changed the nature of immigration detention in Australia.

Akram Al Masri has been shot dead in Gaza. He'd returned there after his request to stay in Australia failed.

Before going back, Mr Al Masri's case was the subject of a battle between the Howard government and refugee advocates in the Federal Court. Mr Al Masri found himself in and out of detention until the Federal Court ruled that he couldn't be kept there indefinitely.

His death came as refugee advocates were trying to have him brought back to Australia.

David Weber reports.

DAVID WEBER: Akram Al Masri arrived in Australia in 2001 and was sent to the Woomera Detention Centre. He asked to go back to Gaza after his application to stay failed. But he couldn't because some Palestinians thought he'd been a spy for Israel.

The Federal Court found that keeping him in detention until his return was unlawful. The ruling was later upheld by the High Court.

Jack Smit of Project SafeCom says it was a landmark case.

JACK SMIT: Our Akram Al Masri, who we know of course through the high profile court case in Australia during the Ruddock years, if I may call them that; was shot dead. Shot dead at point blank range by a militant from the Hamas militant movement in Khan Yunis outside a court.

DAVID WEBER: It's been reported that the killer was unmasked and it's believed the shooting may have had something to do with a family dispute. Mr Smit says refugee advocates were seeking Mr Al Masri's return to Australia.

JACK SMIT: Over the last couple of months Australian advocates have been trying to get the ear of the Immigration Minister Chris Evans in the hope that we may return him to Australia. So it just comes as a sad note that we sent him back to a very violent environment and he was now shot dead.

DAVID WEBER: Your understanding is that he was shot because of a family dispute?

JACK SMIT: Connected to it, yes. Some purported family dispute, but we don't know how that was blown up out of proportions by somebody who's got militant and radical intentions of course.

DAVID WEBER: Paul Boylan of the Woomera Lawyers Group was one of those who helped Mr Al Masri while he was in Australia. Mr Boylan was driving him from Woomera Hospital in August 2002 when they were pulled over by police and Mr Al Masri was taken into custody. Mr Boylan says he was very sad to hear Mr Al Masri was now dead.

PAUL BOYLAN: Akram came to Australia by boat seeking refugee status. When he came he actually had a bullet in him, he'd already been shot. People in Gaza thought that he had spied for Israel.

DAVID WEBER: What did you think of him as a person?

PAUL BOYLAN: Yeah, a good bloke. I spent one day with him, you know, almost socialising. He's a nice fella. He's married, he was married with four children. The youngest one's eight months old at the moment.

DAVID WEBER: How do you feel having heard the news that he'd been shot?

PAUL BOYLAN: It's dreadfully sad. You know, just that a person who'd gone through a hell of a lot. As with most of them they came here looking to get away from the persecution and hopefully their wives and children could join them. That's what he wanted, that's what he was hoping for. It's horrible.

ELIZABETH JACKSON: Port Pirie lawyer Paul Boylan speaking to David Weber.

And an Immigration spokesman this morning says that the Department has only heard unconfirmed reports of the death and wasn't aware of the circumstances surrounding Akram Al Masri's death.

http://www.abc.net.au/am/content/2008/s2322246.htm

Asylum seeker shot dead 6 years after deportation

ABC ONLINE NEWS
Posted Sat Aug 2, 2008 7:41am AEST
Updated Sat Aug 2, 2008 10:42am AEST

Refugee advocates say they were trying to bring back to Australia a Palestinian refugee before he was shot dead in the Gaza Strip.

Akram Al Masri was was deported from Australia six years ago.

He was killed as he was leaving a Magistrate's Court yesterday.

Jack Smit from the refugee advocacy group Project Safecom has told ABC Radio's AM they had been trying to talk to Federal Immigration Minister Chris Evans about Mr Al Masri.

"In the hope that we may return him to Australia, so it's just comes as a sad note that we've sent him back to a very violent environment and he is now shot dead," Mr Smit said.

An Immigration spokesman says the department has only heard unconfirmed reports and is not aware of the circumstances surrounding Akram Al Masri's death.

He also says the department does not keep track of people once they are deported.

Case history

In 2002 the Federal Court ruled that the then immigration minister did not have the power to detain Akram Al Masri prior to his deportation from Australia.

The case was seen as a blow to the Howard government's policy of detaining asylum seekers indefinitely and the Federal Court ruling was later upheld by the High Court.

Jack Smit says Mr Al Masri should have been granted asylum in Australia.

"It's a tragic story that could have been prevented if we were a bit more humane to asylum seekers who have a case," he said.

"He clearly had a case and if we hadn't have sent him away he could have been alive and well amongst us at the moment."

A Catholic welfare agency has warned dozens of refugees who were refused asylum by the Howard government are in dangerous situations like Mr Al Masri.

The director of the Edmund Rice Centre, Phil Glendenning, says there are many other refugees who are in a similar situation to Mr Al Masri.

"We have tracked down some 250 people in over 22 countries - for the majority of these people in particular those from Afghanistan who are on Nauru - they are living in dangerous circumstances," Mr Glendenning said.

Mr Glendenning says Mr Al Masri's death is a tragedy.

"Mr Al Masri told people in Australia that if he was sent back he would be killed. That has happened," he said.

"He said he would be killed, he has now been killed. He has a family of four that he leaves behind. This is an absolute tragedy."

http://www.abc.net.au/news/stories/2008/08/02/2322154.htm

Rejected asylum seeker shot dead

PerthNow / Sunday Times
August 01, 2008 08:05pm
Article from: AAP

A PALESTINIAN asylum seeker who told Australian authorities he was frightened to return to the Middle East has been killed in the Gaza Strip, refugee advocates say.

The Federal Court in 2002 ordered Akram Al Masri be released from immigration detention, ruling the Gederal Government did not have the right to detain him ahead of his deportation, despite his having been denied a temporary protection visa. He left Australia a short time later.

At the time, Mr Al Masri said he feared for his life if forced to return to Israel but said he'd rather be returned home than go back to the detention centre.

Sydney-based Social Justice Network spokesman Jamal Daoud tonight said Al Masri was shot dead in the Gaza Strip yesterday. He said confirmation had come from Australian-based friends and family of the dead man.

"Our information is he was shot at 12 noon, 7pm Sydney time," Mr Dauod said. "There was a fight between two families and, we understand, he was shot dead by a member of one of the families."

Al Masri's fight for asylum became a high profile showdown with former immigration minister Philip Ruddock after the Federal Court ordered his release from the detention.

Mr Dauod said the Howard government had blood on its hands.

"The previous Australian government is responsible for another terrible crime by forcing refugees to be sent back to Gaza when they knew the situation there," he said.

"This guy had problems with Israel and the Palestinian Authority. He claimed to have been tortured and the previous government knew all that and still forced him out.

"It is a tragedy because we have lost another young person who who could have been a good Australian citizen."

Jack Smit, of Project SafeCom, said Mr Al Masri had been shot in the head.

"It's a tragic story that could have been prevented if we would have been a bit more humane to asylum seekers who have a case," Mr Smit told ABC Radio.

"And if we wouldn't have sent him away he may well be alive and well amongst us at the moment."

http://www.news.com.au/perthnow/story/0,21598,24115114-5005361,00.html

Deported refugee shot dead

Sydney Morning Herald
Paul Bibby, Jason Koutsoukis in Gaza, Mark Metherell and Jordan Baker
August 1, 2008 - 10:10PM

with Penelope Debelle and AAP

A PALESTINIAN refugee deported by the Howard government and denied sanctuary in Australia again this year has been shot dead in Gaza, leaving behind a wife and four children.

Akram al Masri, who was sent back to Gaza in September 2002 despite refuge advocates winning his release from Woomera detention centre, applied for a visitor's visa in February after the murder of his brother, fearing he and his family would be killed.

His plea was rejected.

Refugee advocates who supported Mr Masri said the killing, outside a courthouse near the Khan Yunis refugee camp, might have been carried out by the Palestinian political party Fatah, which wrongly believed he was an Israeli collaborator.

But sources in Gaza suggested the 31-year-old was killed to avenge his alleged involvement in the deaths of two members of a rival clan 18 months ago, part of a long feud.

A refugee advocate, Marilyn Shepherd, told the Herald last night she and Mr Masri's uncle, who lives in Adelaide, had submitted the application for a visitor's visa through the office of the Labor senator Linda Kirk in February, soon after the murder of Mr Masri's brother, "but the department put the red flag up on us".

"He said all along that his life was in danger but they never believed him - when the Masri name came up, the shutters at the department went down.

"He was gunned down in broad daylight in cold blood. His mother was killed before he claimed refugee status here, his brother was killed last year, and he was gunned down yesterday like a dog on the side of the road."

A spokesman for the Department of Immigration said last night the welfare of a person removed from Australia was the "responsibility of the country to which he has been removed. Anybody who has applied for protection from Australia is not removed if we believe that person will be persecuted."

Mr Masri first arrived in Australia in 2001, suffering a bullet wound to the leg, but was detained at the Woomera detention centre after his asylum claim was rejected.

In 2002 Mr Masri, then 25, was twice released from detention by order of the Federal Court. The court ordered his second release from custody after the government detained him again near Port Augusta because he did not have a visa.

The then immigration minister, Philip Ruddock, said that Mr Masri would be deported because he did not have a visa. Mr Ruddock could not be contacted for comment last night.

As a result of the Masri case, which was taken to the High Court, six immigration detainees were released. The court found the Government had no power to detain them. The full bench of the Federal Court ruled that the immigration minister had no power to detain asylum seekers before they were deported.

A South Australian lawyer, Paul Boylan, said last night Mr Masri was a genuine refugee who should have been allowed to stay but was instead sent back and assassinated. "He told his story and notwithstanding he had already been shot once, he wasn't believed," Mr Boylan said. "We sent him back to a place where he was assassinated."

The Jesuit priest Frank Brennan, a refugee advocate and author of a book on the immigration system, Tampering With Asylum, said it was clear that Mr Masri "like his brother, was a marked man".

Father Brennan, who knew Mr Masri well, described him as a young man who fled to a safe country in the hope that his family could follow. "He had a deep love of his wife and children, he wept for Palestine, and despite the dreadful adversity of Woomera, he always had a sense of humour."

A spokesman for the Social Justice Network, Jamal Daoud, said the Howard government had blood on its hands. "The previous Australian government is responsible for another terrible crime by forcing refugees to be sent back to Gaza when they knew the situation there," he said.

"This guy had problems with Israel and the Palestinian Authority. He claimed to have been tortured and the previous government knew all that and still forced him out. It is a tragedy because we have lost another young person who could have been a good Australian citizen."

http://www.smh.com.au/news/world/deported-refugee-killed/2008/08/01/1217097536265.html

Australian asylum seeker 'killed in Gaza Strip'

ABC NEWS ONLINE
Posted Fri Aug 1, 2008 7:29pm AEST
Updated Fri Aug 1, 2008 7:34pm AEST

A refugee advocate says he has confirmed that an asylum seeker at the centre of a landmark Australian case has been shot dead in the Gaza Strip.

In 2002 the Federal Court ruled that the immigration minister did not have the power to detain Akram Al Masri prior to his deportation from Australia.

The case was seen as a blow to the Howard government's policy of detaining asylum seekers indefinitely and the Federal Court ruling was later upheld by the High Court.

Jack Smit from the refugee advocacy group, Project SafeCom, says Mr Al Masri was shot dead as he was leaving a Magistrates Court in the Gaza Strip yesterday.

Mr Smit says Mr Al Masri should have been granted asylum in Australia.

"It's a tragic story that could have been prevented if we were a bit more humane to asylum seekers who have a case," he said.

"He clearly had a case and if we hadn't have sent him away he could have been alive and well amongst us at the moment."

http://www.abc.net.au/news/stories/2008/08/01/2322021.htm

Immigration to probe refugee's death

news.com.au
August 02, 2008 02:41pm
Article from: AAP

THE Immigration Department is to investigate the reported death of a Palestinian refugee previously denied a visa to stay in Australia.

But a department spokesman said today it could not be responsible for every deportee who had spent time in Australia.

Akram Al Masri was killed two days ago in the Gaza Strip, refugee advocates say.

The Federal Court in 2002 ordered Akram Al Masri be released from immigration detention, ruling the Federal Government did not have the right to detain him ahead of his deportation, despite his having been denied a temporary protection visa.

He left Australia a short time later.

At the time, Mr Al Masri said he feared for his life if forced to return to Israel. Even so, he said he would rather be returned home than go back to the detention centre.

"We are sad to hear of the apparent death of this gentleman, Mr Al Masri, and we extend our condolences to his family," the Immigration spokesman told AAP.

"I say that because we have not completely established the circumstances or the facts of what's happened here.

"The death of a father and husband is a tragedy for all those people who are left behind.

"However, we emphasise the fact that even if the person has spent some time in Australia, this does not mean that Australia is responsible for all events that may befall them in the future."

He said people could face generalised dangers, hardships and uncertainty to varying degrees in different countries.

"However, we are not going to discuss this in further detail until we have properly investigated all the facts, which we will conduct as soon as possible," the spokesman said.

http://www.news.com.au/story/0,23599,24116882-29277,00.html

Minister for Immigration v Al Masri [2003] FCAFC 70

MINISTER FOR IMMIGRATION v AL MASRI [2003] FCAFC 70, delivered 15 April 2003 - summary by David Bitel

Found through http://www.parishpatience.com.au/immigration/refcases.htm

Download:

Full case transcript: http://www.austlii.edu.au/au/cases/cth/FCAFC/2003/70.html

This summary was prepared for the Refugee Council of Australia. David Bitel is Managing Partner of Parish Patience Immigration and the President of the RCOA.

The Full Bench constituted by Chief Justice Black and Justices Sundberg and Weinberg delivered a joint decision on 15 April dismissing the Minister's appeal with an order for costs against him.

The Court noted the central issue in the appeal to be whether the power and duty of the Minister to detain an unlawful citizen who has no entitlement to a visa but who was asked to be removed from Australia continues during a time when there is no real likelihood or prospect of that person's removable in the reasonably foreseeable future. Alternatively the question may be put as whether the Act authorizes and requires the indefinite and possibly even permanent administrative detention of such a person. The Court noted that the appeal involved consideration of important questions of constitutional law and the application of common law principles to the interpretation of statutes where fundamental rights and freedoms, in this case the right to personal liberty, are involved.

The relevant facts briefly were that Al Masri, having arrived in Australia unlawfully, was detained at Woomera and his protection visa application was refused by the RRT on 5 December 2001. He then completed and signed a written request to the Minister to be returned to the Gaza Strip, he being a Palestinian from the Gaza Strip. Notwithstanding his written request the Department have been unable to effect his removal. There was no suggestion that he had sought permission to remain in Australia at any time after he had asked to be returned to the Gaza Strip.

Justice Merkel delivered a judgment on 15 August 2002 which was the subject of the appeal. The grounds of appeal were that Justice Merkel had erred in:

  1. holding that detention under s 196 of the Act was lawful only if the Minister was taking all reasonable steps to secure removal of an unlawful non-citizen as soon as was reasonably practicable, and that there was a real prospect of removal;

  2. holding that in conformity with English, Hong Kong and United States authorities, implicit statutory limitations read into the detention powers in the equivalent legislation of the said jurisdictions ought to be read into s 196;

  3. misconstruing s 196 as it interacts with s 198;

  4. failing to hold that, as a matter of law, s 196 imports no limitation on the detention of an unlawful non-citizen other than that the detention be bona fide for one of the purposes identified in s 196(1).

The relevant statutory provisions are Sections 196 and 198 of the Migration Act. Reference was also made to Section 189. The Court referred to the recent decision of the Full Court in MIMIA v VFAD of 2002 (2003) 196 ALR 111 and noted that the effect of Section 189 and 196 is that no decision under the Act is required as a pre-condition to the power and duty to detain an unlawful non citizen. Detention depends upon the status of the person and in that sense the detention regime is clearly administrative, mandatory, indefinite and could be permanent. It was further noted that there is a distinction between detention for the purpose of removal and detention for the purpose of deportation of non-citizens who have committed serious crimes under Section 200.

The Court first looked at applicable constitutional principles and the presumption against exceeding the bounds set by the Constitution. It noted that given the importance of constitutional limitations and the strength of the presumption, the starting point for discussion is whether the statutory scheme for mandatory detention in its application to a person in the respondent's position would exceed the limits on the legislative power if it were not subject to a temporal limitation of the type the trial judge found to be implied (para. 49).

It is well settled that the Parliament has the power to legislate for the detention of aliens for the purpose of their expulsion. See Lim's case ((1992) 176 CLR 1). The Court there held that Chapter III of the Constitution may operate to impose limits upon the power to detain by reason of its insistence that the judicial power of the Commonwealth is vested exclusively in the courts that Chapter III designates. The judges then referred to comments of Justices Brennan, Deane and Dawson at pp. 30-32 in Lim:

"The power of the Parliament to make laws with respect to aliens includes not only the power to make laws providing for the expulsion or deportation of aliens by the Executive, but extends to authorizing the Executive to restrain an alien in custody to the extent necessary to make the deportation effective".

And at p. 33:

"(The law is valid) if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. On the other hand, if the detention which those sections require and authorize is not so limited, the authority which they purportedly confer upon the Executive cannot be properly be seen as an incident of the Executive powers to exclude, admit and deport an alien. In the event, they will be of a punitive nature and contravene Chapter III's insistence that judicial power of the Commonwealth be vested exclusively in the courts which it designates."

Thus, if the power to keep a person in detention is an incident of the Executive powers of exclusion, admission and deportation of aliens and is not by its nature part of the judicial power of the Commonwealth, it will be constitutionally valid.

The Court then referred to the earlier judgment of the High Court in Lau v Calwell (1949) 80 CLR 533 where the Court rejected a contention that indefinite or unlimited detention was valid. Chief Justice Latham noted that "if it were shown that detention was not being used for these purposes, the detention would be unauthorized and a writ of habeas corpus would provide an immediate remedy." Dixon J noted at 581: "It appears to me to follow that unless within a reasonable time he is placed on board a vessel, he would be entitled to his discharge on habeas." Williams and Rich noted that "if it appeared that a deportee was being kept in custody not with a view to his deportation but simply with a view to his imprisonment for an indefinite period, the custody would be illegal."

The Court states that the judgments in Lau v Calwell all appear to involve an underlying assumption that deportation would in fact be capable of being affected within some foreseeable time frame (para. 70). Thus, unless the power and duty of detention conferred by 196 were subject to an implied temporal limitation broadly of the nature of the second limitation found by the trial judge, a serious question of invalidity would arise. Without such a limitation, it may well be that the power to detain would go beyond what the High Court in Lim considered to be reasonably capable of being seen as necessary for the purposes of deportation. (para. 71) In the absence of such an implied limitation, the elements that save sections under challenge in Lim from going beyond what was constitutionally permissible would seem to be absent from the present general scheme of mandatory detention. These elements are a section with a practical capacity to bring about release from detention and the specific time limit on detention provided for in the scheme and under consideration. That element is wholly absent in the scheme first? mandatory detention currently in place.

The Court then referred to comments made by Justice Gummow in Kruger v Commonwealth (1997) 190 CLR 1 that Lim is authority for the proposition that whether a power to detain persons or to take them into custody was to be categorized as punitive in nature so as to attract the operation of Chapter III depended on whether those activities were reasonably capable of being seen as necessary for a legitimate, non-punitive objective. He noted that the categories of non-punitive involuntary detention were not closed. Thus, punitive detention is unlawful.(para. 74). In the absence of any real likelihood or prospect of removal being effected in the reasonably foreseeable future, the connection between the purpose of removing aliens and their detention becomes so tenuous as to change the character of the detention so that it becomes essentially punitive in nature.

The Court then discusses the possibility that the mandatory detention scheme may be invalid under the Aliens Power (Section 51) (XIX) of the Constitution in certain situations. Although the Aliens Power is of wide amplitude, see MIMA ex parte Te (2002) 193 ALR 37, there was no suggestion that merely because a particular provision could be described as a law with respect to aliens, it could operate to require their detention for reasons unconnected with their removal from Australia. There is a clear distinction between detention directed in a genuine and realistic sense towards removal and detention in the hope that at some unknown point in the future, removal will be possible.

The conclusion is that constitutional considerations point strongly to the need and foundation for a limitation such as those found by Justice Merkel. However, the Court then notes it is unnecessary to decide whether without such a limitation, the provisions would be offensive to the Constitution because the central issue in the appeal can be determined by the application of the well-established principle of statutory construction concerning fundamental rights and freedoms.

Statutory Construction - The Presumption against the Curtailment of Fundamental Freedoms

The Court quotes Chief Justice Gleeson in S157/202 v Commonwealth Australia (2003) 195 ALR 24 at p. 30 that:

"Courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question and has consciously decided upon abrogation or curtailment. ... In the absence of express language or necessary implication, even the most general words are taken to be 'subject to the basic rights of the individual'."

The Court then gives various examples of this principle in Australian law and in other common law countries and then at para. 86 notes that there can be no question that the right to personal liberty is amongst the most fundamental of all common law rights and universally recognized human rights. The court quotes various authorities for this principle stressing the common law's concern for the liberty of individual extends to those who are within Australia unlawfully (para. 89 - Kioa v West (1985) 159 CLR 550) and applying the English authority of R v Home Secretary, ex parte Khawaja [1984] AC 74 where Lord Scarman notes: "Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others".

The more serious the interference with liberty, the clearer the expression of intention to bring about that interference must be. Detention that is indefinite is especially onerous if for no other reason than it is detention with no end in sight. (para. 92) The Court then notes that indefinite detention is rarely invoked in sentencing regimes and is seen as oppressive even in the context of punishment.

In considering the issue, the Court then refers to authorities from other common law countries and in particular, the Hardial Singh principles where Justice Woolf noted:

"I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case ... I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time."

This doctrine was recently approved by the House of Lords in R v Secretary of State of the Home Department, ex parte Saadi (2002) 4 All ER 785. See also the Hong Kong Court of Final Appeal in Lam's case where the Court stated, "The Hardil Singh principles represent the proper approach to the statutory construction of any statutory power on administrative detention." The court then refers to a recent American authority.

Quoting Justice Deane in Kiowa v West:

"An alien who is unlawfully within this country is not an outlaw. Neither public officer not private person can physically detain or deal with his person ... without his consent except in accordance with the positive authority of the law".

The Court confirmed that since aliens who are unlawfully within Australia are not outlaws but enjoy in common with every other person in Australia the equal protection of Australia's laws, the principle of construction is not excluded because the subject matter of a statute is the detention of aliens. It is a principle of universal application (para. 114).

The critical question therefore is whether there is a clear indication that the legislature has directed its attention to the right of liberty and has consciously decided upon its curtailment. In other words, whether there is disclosed a clearly manifested intention to keep in detention a person who has sought liberty by taking the only course provided to him/her by the law to do so (a request in writing to the Minister to be removed) but for whom there is nevertheless no realistic prospect of removal and thus no real likelihood or prospect of any end to detention at any time in the reasonably foreseeable future. (para. 115).

The manifestation of such an intention for detention to continue without foreseeable and irrespective of the age, gender, personal or family circumstance of the person, irrespective of the unlikelihood of a person absconding and irrespective of the absence of any threat presented to the Australian community of a person detained, must be established. In assessing this, general language is rarely sufficient to demonstrate such an intention to abrogate fundamental rights and the Court concludes that the terms of Section 196 taken alone or in context of the legislative scheme as a whole, does not suggest that Parliament did turn its attention to the curtailment of the right to liberty in circumstances where detention may be for a period of potentially unlimited duration and possibly even permanent. (para. 120) The Court notes that the fact that a duty is placed on the Minister to remove an unlawful noncitizen as soon as reasonably practicable after request in writing by that person, gives a strong indication that there is an assumption that detention will come to an end. The intention to curtail the right of personal liberty has not been manifested by any unmistakable or unambiguous language in the legislation (para. 132).

The Court refers to Park Oh Ho v MIEA (1989) 167 CLR 637 to note that the Minister's purpose in detaining must be for the bona fide purpose of removal, otherwise the detention would not be lawful.

Construction in accordance with International Obligations

Interestingly, the Court then seeks justification for its decision in established rules of international law and notes that the Act should so far as language permits, be interpreted and applied in a manner consistent with established rules and international law and in a manner which accords with Australia's treaty obligations. Reference is then made to Article 9 of the International Covenant on Civil and Political Rights (ICCPR) and the view of the Human Rights Committee in A v Australia which considered the issue of arbitrary detention. Whilst the Court notes that the views of the Committee lack precedential authority in an Australian court, it is legitimate to have regard to them as the opinions of an expert body established by the treaty to further its objects by performing functions that include reporting and receiving reports conciliating and considering claims that a State Party is not fulfilling its obligations. The Court also notes that it is appropriate to consider opinions expressed in works of scholarship and in the field of international law and then considers the jurisprudence of the European Court of Human Rights. Finally, in the section the Court refers to Article 37(b) of the Convention on the Rights of the Child 1989.

The Court then considers other Federal Court decisions. The cases of Vo and Perez v Minister for Immigration which relate to deportation are distinguished on the facts as is Luu v MIMA [2002] FCAFC 369. Other first instance decisions of judges since the consideration of Justice Merkel of the language of Section 196 are not followed. Four lines of such authority are noted:

  1. The cases which consider that the language of Section 196 is intractable and that the power of detention can only come to an end by the occurrence of one of the 3 terminating events specified in the provision, namely removal, grant of a visa or deportation.

  2. That it is inappropriate to rely on authority from other common law countries.

  3. That an application for relief in the nature of habeas corpus is not available and that the appropriate way to proceed is an application for mandamus to compel an officer to perform the duty of removal.

  4. That no constitutional invalidity arose.

In conclusion, the Court expressed some limitation to the implications of its decision, noting that it is for the applicant to adduce evidence that puts in issue the legality of the detention and when this is done, the burden shifts to the respondent minister to show that the detention is lawful, which burden may be discharged on the balance of probabilities. Further, the decision has no application to persons who seek to frustrate by their own act the process of removal and also does not relate to the circumstances of detention for the purpose of deportation, where the Minister retains a discretion to be exercised in accordance with the law to release a person from detention.

Thus, the implications of the decision may be less significant than the press would have the public believe. Clearly, as it is unlikely that the High Court would grant leave to consider an appeal given the fact that Al Masri is now out of Australia, unless the matter comes to the High Court through some other case, the government will be left with the only alternative of overcoming the ratio of the decision by legislation. In so doing, of course it must bear in mind the Constitutional issues which were the subject of considerable discussion in the case.

Found through http://www.parishpatience.com.au/immigration/refcases.htm

Full case transcript: http://www.austlii.edu.au/au/cases/cth/FCAFC/2003/70.html

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