A Taste of Freedom from Limbo in Woomera

Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] 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 [1984] 1 WLR 704; Tan Te lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97; Re Chung Tu Qan & Ors [1995] 1 HKC 566; and Zadvydas v Davis, 533 U.S. 678 (2001).

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] 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 (1772) 98 ER 499 at 510; R v Langdon; Ex parte Langdon (1953) 88 CLR 158 at 161, Victorian Council of Civil Liberties v Minister for Immigration (2001) 110 FCR 452 at 468–9 and Ruddock v Vadarlis (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’.