Federal Court Rejects Habeas Corpus Applications for Detained Immigrants

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[NAME_1] v [NAME_2] & Multicultural & Indigenous Affairs [2004] FCA 164 MIGRATION – habeas corpus – real likelihood or prospect of removal from Australia in the reasonably foreseeable future – burden of proof - satisfaction to a sufficient degree in the context of determining the personal liberty of the applicants – consideration of the expertise of persons responsible for the conduct of Australia's international relations - drawing inferences from expert opinion and communications between Australian government and government of a foreign state EVIDENCE – hearsay exception - where evidence relevant to another purpose – expert opinion – specialised knowledge based on experience COSTS - person detained should not be deterred by the prospect of a costs order from seeking his or her liberty Evidence Act 1995 (Cth) s 60 & 136 Migration Act 1958 (Cth) s 198 [NAME_1] v [NAME_2] Affairs [2003] FCA 1512 referred to Attorney General UK v Heinemann Publishers Australia Pty Limited (1988) 165 CLR 30 referred to [NAME_3] v [NAME_4] (No 6) (2000) 174 ALR 747 applied [NAME_5] v [NAME_2] Affairs [2003] FCA 1555 applied [NAME_6] v [NAME_2] Affairs [2003] FCA 1513 referred to Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241 applied Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth of Australia (2003) 197 ALR 461 referred to [NAME_7] v [NAME_2] Affairs [2003] FCA 1569 referred to R v Home Secretary; ex parte Khawaja [1984] 1 AC 74 applied [NAME_8] v [NAME_2] Affairs [2003] FCA 1573 referred to SHMB v Goodwin [2003] FCA 1053 referred to [NAME_9] v [NAME_2] Affairs [2003] FCA 546 referred to [NAME_9] v [NAME_2] Affairs [2003] FCAFC 296 referred to [NAME_9] v [NAME_2] Affairs [2003] FCA 1116 referred to [NAME_9] v [NAME_2] Affairs [2003] FCAFC 295 referred to [NAME_10] v [NAME_2] Affairs [2002] FCA 1625 referred to

[NAME_11]: Australia, New Zealand, The South Pacific, [COMPANY_15] 2000 [NAME_16] v [NAME_2] AFFAIRS N 1836 of 2003 [NAME_18] v [NAME_2] AFFAIRS N 1983 of 2003 [NAME_21] v [NAME_2] AFFAIRS N 1984 of 2003 [NAME_24] v [NAME_2] AFFAIRS N 1995 of 2003 JACOBSON J SYDNEY 2 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N

BETWEEN: [NAME_16] N 1836 of 2003

APPLICANT

AND: [NAME_2] AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 2 MARCH 2004

WHERE MADE: SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT: The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N

BETWEEN: [NAME_18] APPLICANT N 1983 of 2003

AND: [NAME_2] AFFAIRS RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 2 MARCH 2004

WHERE MADE: SYDNEY

MINUTES OF ORDER

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N

BETWEEN: [NAME_21] APPLICANT N 1984 of 2003

AND: [NAME_2] AFFAIRS RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 2 MARCH 2004

WHERE MADE: SYDNEY

MINUTES OF ORDER

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N

BETWEEN: [NAME_24] APPLICANT N 1995 of 2003

AND: [NAME_2] AFFAIRS RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 2 MARCH 2004

WHERE MADE: SYDNEY

MINUTES OF ORDER

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N

BETWEEN: [NAME_16] N 1836 of 2003

APPLICANT

AND: [NAME_2] AFFAIRS

RESPONDENT

BETWEEN: [NAME_18] APPLICANT N 1983 of 2003

AND: [NAME_2] AFFAIRS RESPONDENT

BETWEEN: [NAME_21] APPLICANT N 1984 of 2003

AND: [NAME_2] AFFAIRS RESPONDENT

BETWEEN: [NAME_24] APPLICANT N 1995 of 2003

AND: [NAME_2] AFFAIRS RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 2 MARCH 2004

WHERE MADE: SYDNEY

REASONS FOR

JUDGMENT Introduction: 1 These are four applications for relief in the nature of habeas corpus directed to the Minister to cause her to release the applicants from immigration detention. They raise common questions of fact and law and were heard together. 2 The applicants are young men who claim to be Afghan nationals. They have been in detention for approximately three years since their arrival in Australia without identification documents in 2001. I will refer to them by their surnames because, for reasons mentioned below, it is unnecessary to apply the provisions of s 91X of the Migration Act 1958 (Cth) ("the Act"). 3 [NAME_25] is detained in [NAME_26], [NAME_23] and [NAME_6] are in detention in [NAME_28]. Each of them requested voluntary return to Afghanistan during 2002, that is to say approximately 18 months ago. However, the Afghan authorities have informed the Department of Immigration Multicultural and Indigenous Affairs ("[NAME_29]") that they have not been able to identify the applicants as Afghan nationals.

Accordingly, the [NAME_30] has not issued passports or travel documents to enable the applicants to travel to Afghanistan. 4 These proceedings were commenced by applications filed in November 2003. Each of the applications seeks the applicant's release from detention upon the basis that although his detention in 2001 was lawful, he was unlawfully detained at the date of filing the application. 5 The question which arises in each case is whether there is a real likelihood or prospect of the applicant's removal from Australia to Afghanistan in the reasonably foreseeable future. This is the second limitation on the power of detention referred to by the [ADDRESS] in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241 ("[NAME_32]") at [136]. The first limitation to which the [ADDRESS] referred at [135], namely that the Minister's purpose must be the bona fide purpose of removal is not in issue in these proceedings. 6 The [NAME_30] has informed [NAME_29] that on the basis of information supplied by [NAME_33], [NAME_20] and [NAME_6], it has been unable to identify them at the national or district levels in Afghanistan. It has therefore informed [NAME_29] that, in the absence of further investigation, it will not issue passports or documents known as one-way travel documents which would enable them to return to Afghanistan. 7 [NAME_34]'s position is slightly different because in December 2003 the [NAME_31] informed [NAME_29] that his case might fall within the criteria for which he could be considered to qualify for the issue of a one-way travel document. 8 However, these applications do not turn upon the precise state of the negotiations between the Australian Government and the Government of Afghanistan for the repatriation of the applicants to that country. This is because there was a body of evidence which I admitted under s 60 of the Evidence Act 1995 (Cth) of communications between [NAME_29] and the [NAME_30] (and also communications between [NAME_29] and the [NAME_35]) about the establishment of an Afghan identity checking unit known by the acronym [NAME_36]. 9 [NAME_29] has been informed by the [NAME_31] that the [NAME_36] will be fully operational by early February 2004 and that it will have the facilities to be able to conduct on the ground enquiries to verify the identities of the applicants in the villages of Afghanistan in which they claim to have lived. 10 The question of whether the [NAME_32] condition has been satisfied depends upon whether I am prepared to infer from the communications between officers of [NAME_29] and the [NAME_31] (and also communications between [NAME_29] and the [NAME_35] to which I refer later) that there is a real likelihood or prospect of the applicants' removal in the reasonably foreseeable future. [NAME_37], an officer of [NAME_29] gave evidence that, based upon those communications, there was such a likelihood or prospect. The application also turns upon whether I accept [NAME_37]' opinion. Another officer of [NAME_29], [NAME_39], gave evidence of his opinion that there was a real likelihood that [NAME_34] would be returned. There was also evidence from another [NAME_29] officer, [NAME_41], of his communications with the [NAME_31] about each of the applicants.

The Applicants 11 Each of the applicants claims to have lived in a village remote from Kabul. [NAME_25] and [NAME_43] claim to have come from Nangarhar province, [NAME_44] from Uruzgan province and [NAME_34] claims to have come from Ghazni province. 12 Each of the applicants arrived in Australia by boat. [NAME_25] arrived in June 2001, [NAME_44] and [NAME_34] arrived in March 2001 and [NAME_43] arrived in January 2001. As I have said, they arrived without travel documents. 13 Shortly after arrival in Australia, each of the applicants applied for a protection visa but each application was unsuccessful before the delegate and the Refugee Review Tribunal ("the RRT"). [NAME_25] did not seek judicial review and the applications for judicial review brought by [NAME_26], [NAME_23] and [NAME_6] were ultimately unsuccessful. 14 During 2002 the Australian Government established the Afghanistan Voluntary Reintegration Program ("the Program") under which Australia provides financial assistance to Afghanis who return to their country voluntarily. Each of the applicants has requested voluntary return to Afghanistan pursuant to this program. Each has signed a request that the Minister remove him from Australia as soon as reasonably practicable. 15 [NAME_26], [NAME_23] and [NAME_6] signed their requests for removal to Afghanistan in July 2002. [NAME_25] signed his request in September 2002. The Applicants' attempts to obtain travel documents 16 At the time of their requests for voluntary return to Afghanistan, that is in July 2002 in the cases of [NAME_26], [NAME_23] and [NAME_6], and in September 2002 in the case of [NAME_25], each applicant applied to the [NAME_30] for the issue of a passport. 17 Between that time and about November 2003 officers of [NAME_29] tried to facilitate communication between the applicants and the [NAME_31] to check their passport applications. They also made suggestions to the applicants as to the steps they might take to provide information to the [NAME_31] which would improve their prospects of obtaining passports. 18 Each of the applicants was interviewed by an officer of the [NAME_30] within about a week of the date on which the passport application was lodged. Since then there have been many communications between [NAME_29] and the [NAME_31] but it is unnecessary to record all of the details. 19 It is plain that there has been substantial delay in dealing with the position of the applicants and of other similarly placed persons. The issue of one way travel documents in lieu of passports was put forward as a possible solution to the impasse between the Australian authorities, who wish to secure repatriation, and the Afghan Government which did not accept that the detainees were entitled to Afghan nationality. [NAME_37] gave evidence of her understanding that this solution was agreed to by the Afghan Refugees Affairs Minister following a visit to Australia and Nauru in June 2003. 20 [NAME_37]' evidence was that the one way travel document, which falls short of evidence of citizenship, was designed by the Afghan authorities to speed up the return of failed asylum seekers claiming to be nationals of Afghanistan. The document would be issued to people who claimed to be from Afghanistan but whose identity could not be positively verified because of incomplete records in an area, so long as they met a security check. However, the document would not be issued to persons whose claimed identity was not supported by or was contrary to records which were intact when it was expected that the records would confirm their identity. 21 On 9 October 2003 [NAME_37] wrote to [NAME_39] and others referring to discussions she had held with the [NAME_31] about further interviews to be undertaken by the [NAME_31] with persons in detention who were awaiting travel documents. [NAME_37]' email requested [NAME_39]'s assistance in arranging the interviews. The email stated that [NAME_45], who is the First Assistant Secretary of the [NAME_31], would conduct the interviews by phone. It also said that a priority list of detainees in [NAME_28] had been identified. 22 On 30 October 2003 [NAME_41] sent an email to [NAME_45] requesting interviews with a list of eleven detainees at [NAME_28]. The list included [NAME_26] , [NAME_23] and [NAME_6]. [NAME_45] was asked to provide [NAME_41] with the dates and times of interviews for the purpose of considering the grant of one-way travel documents. 23 On 31 October 2003 [NAME_41] sent a similar letter to [NAME_45] requesting an interview of [NAME_25] at Port Hedland. 24 On 11 November 2003 [NAME_45] sent an email to [NAME_41] stating that the [NAME_31] had received correspondence from Kabul about [NAME_25] and [NAME_43]. The email stated that the [NAME_31] had been informed that the authorities at the "District levels" where [NAME_25] and [NAME_43] claimed to have lived were not able to verify the authenticity of their past residence in those areas. 25 On 13 November 2003 [NAME_45] agreed to interview [NAME_26], [NAME_23] and [NAME_43] at [NAME_28] but he indicated that [NAME_25], who was at Port Hedland, would not be interviewed. 26 On 17 November 2003 [NAME_37] sent an email to [NAME_45] thanking him for letting [NAME_29] know about the difficulty in verifying the identities of [NAME_25] and [NAME_43]. She asked whether the [NAME_31] had decided that those persons had not met the requirements for the grant of Afghan passports. She also asked whether it would be possible to assess them for one-way travel documents with further enquiries then being undertaken on their arrival in Afghanistan. 27 On 19 November 2003 [NAME_45] sent an email to [NAME_37] stating that the cases of three individuals had been closed and the investigation as to their Afghan nationalities had been halted. The list included [NAME_25]. It does not appear to have included [NAME_26], [NAME_23] or [NAME_6]. 28 Entries on the [NAME_29] data base indicate that on 20 November 2003 [NAME_45] held interviews with [NAME_44], [NAME_34] and [NAME_43]. 29 On 20 November 2003 [NAME_41] sent an email to [NAME_45] asking whether [NAME_25] had mentioned in his initial passport interview that he had a sister in Jalalabad and whether the authorities in Afghanistan had investigated the claim. 30 On 21 November 2003 [NAME_45] responded to this enquiry stating that [NAME_25] had mentioned his sister and another close relative. However, he stated that the authorities in Afghanistan had checked the registers without success. He said that the only further investigation option with [NAME_25]'s case and other similar cases would be to initiate "an extensive foolproof investigation" which would involve interviews with local people on the ground by the proposed [NAME_36]. [NAME_45] also stated that the process of checking through normal Interior Ministry channels for [NAME_25] had come to an end and the case could only be reactivated through the [NAME_36] whenever it was established. 31 On 4 December 2003 [NAME_45] sent an email to [NAME_41] stating that the Afghan authorities had not been able to trace the identities of [NAME_33], [NAME_20] and [NAME_6]. The email stated that this meant that the relevant authorities had "already and exhaustively" gone through the process of identity checking in the conventional way. The email continued as follows:- "Investigation, with a fair bit amount realistic hope of conclusive results, on the cases of these men could only be reinitiated through the proposed ID checking unit whose mandate is envisaged to be extensive enough to include wider ranging measures than the hitherto conventional and normal ones have been administratively entrusted to undertake. At this stage, we cannot conclusively rule out, only as much as we cannot rule in, their Afghan nationality because the existing system in Afghanistan inherently is not designed to undertake the level of investigation due to these cases." 32 Later on 4 December 2003 [NAME_45] sent a further email to [NAME_41] stating that the [NAME_31] had not received a communication from Kabul about [NAME_34] and that his case might fall within the criteria for consideration of the issue of a one-way travel document. 33 On 5 December 2003 [NAME_45] sent an email to [NAME_41] stating that the recent interviews which he conducted at [NAME_28] were not about nationality but were about "security profiles" which were to be provided to security agencies in Afghanistan. 34 On 10 December 2003 [NAME_37] sent an email to [NAME_45] setting out her understanding of the present position about travel documents for [NAME_25], [NAME_44] and [NAME_43]. She said that her understanding was that the authorities in Kabul were not able to identify them and that the [NAME_31] was concerned that the information provided by the applicants may not have been correct. [NAME_37] also said it was her understanding that [NAME_45] would be prepared to send further information about those persons to Afghanistan and that if this allowed the authorities to identify them, a travel document would be issued. 35 [NAME_45] replied by email on the same day confirming [NAME_37]' understanding of the position concerning [NAME_33], [NAME_20] and [NAME_6]. He also said that while acknowledging that [NAME_34] could qualify for a one-way travel document, he could not put a timeline on the process. He said that it was likely that the process of enquiries about a one-way travel document would be overtaken by the establishment of the [NAME_36] which would expedite the process. 36 On 13 January 2004 [NAME_39] sent an email to [NAME_45] referring to a meeting of 9 January 2004 at which [NAME_45] said he would like to further interview [NAME_25] about his passport application. 37 The meeting of 9 January 2004 to which [NAME_39] referred seems to have been a meeting at the [NAME_31] attended by [NAME_45], [NAME_37], [NAME_39], [NAME_41] and another [NAME_29] officer. Counsel for the applicants tendered a written record of the meeting which I admitted as a confidential exhibit. 38 The record of the meeting of 9 January 2004 refers to the process for verifying the identities of passport applicants. I will refer to it again to the extent necessary when dealing with the evidence relating to the [NAME_36]. 39 On 14 January 2004 [NAME_39] sent an email to [NAME_45] stating that, as agreed at the meeting of 9 January 2004, a list of persons regarded as top priority for the [NAME_36] was attached. The list contains the names of 22 persons. The applicants are numbered 1 to 4 on the priority list. 40 Since 14 January 2004 each of the applicants has provided new material to facilitate his identification. This includes fingerprints and photographs. The [NAME_36] 41 [NAME_37] gave evidence that the proposal for the establishment of the [NAME_36] was first discussed with Afghan officials in September 2002 during a visit by [NAME_29] officials to Afghanistan. The effect of her evidence was that it was agreed between the governments that the [NAME_36] would be established to facilitate the return of failed asylum seekers to Afghanistan and that Australia would provide funding. 42 On 14 November 2002 the then Minister, [NAME_47], approved a submission which was prepared by [NAME_37] recommending the commitment of AUD 200,000 to fund a dedicated unit within the Afghan Interior Ministry to undertake identity and nationality checking required to support the assessment of passport applications by failed Afghan asylum seekers in Australia and Nauru. 43 [NAME_37]' evidence was that, in February 2003, documents were provided to [NAME_29] by the Government of Afghanistan outlining the possible structure of the [NAME_36]. However, she said that the documents were difficult to interpret and that there were difficulties for [NAME_29] to respond to the proposal. 44 It is clear that, for whatever reason, the cases of the present applicants and the question of the establishment of the [NAME_36] were not advanced in communications with the Afghan authorities until about October 2003. 45 On 27 October 2003 [NAME_49], the Afghan Ambassador to Australia, sent an email to [NAME_52] and [NAME_55] of [NAME_29]. Mr [NAME_54] was [NAME_37]' superior officer and [NAME_58] was [NAME_37]' predecessor in her current position in [NAME_29]. 46 [NAME_59] set out a list of immediate needs for the [NAME_36]. The list consisted of items of equipment such as cars, computers, mobile phones, satellite phones and faxes and also salaries and travel allowances for 27 people for a period of six months. Estimates of the costs of these items were stated in US dollars. The total was USD 140,000 which at the then current exchange rate was approximately AUD 200,000. 47 On 30 October 2003, [NAME_60], Chief of Mission of the [NAME_35] ("[NAME_63]") in Afghanistan sent an email to [NAME_58] agreeing to assist [NAME_29] with the establishment of the [NAME_36]. 48 During November 2003 there were discussions between [NAME_29], the [NAME_63] and the Afghan authorities about the establishment of the [NAME_36]. A draft document apparently considered by the [NAME_63] in late November 2003 was tendered by the applicants. 49 The draft document states that the purpose of the [NAME_36] is to enhance the capacity of the Afghan authorities to identify persons for the issue of travel documents. The first draft of the document stated that the [NAME_63] would provide interim financial reports on the expenditure of funds. It would appear from the draft that the [NAME_63] did not want to have a role in providing authoritative reports to [NAME_29] on the expenditure of the funds. 50 On 17 December 2003 the Australian Government transferred AUD 200,000 to the [NAME_63] for the establishment of the [NAME_36]. 51 On 9 January 2004 at the meeting to which I referred at [37] above, [NAME_45] explained the process of verification of identity. The record of the meeting indicates that the [NAME_29] officials were informed of procedures which would provide additional capacity of the [NAME_36] to verify the identity of passport applicants. 52 On 13 January 2004 [NAME_64] of the [NAME_63] in Kabul sent an email to [NAME_37] attaching minutes of a meeting between [NAME_63] and [NAME_36] officials in Afghanistan. The minutes included a list of the names of 17 persons comprising the [NAME_36] unit and gave the status of items purchased as at 13 January 2004. The list indicated that cars, computers and printers had been purchased but satellite phones and faxes and mobile phones were yet to be acquired. 53 The minutes stated that the [NAME_36] administrative director had assured the [NAME_63] that the [NAME_36] would be up and running by early February and that the [NAME_36] was awaiting "a couple of cases" from Australia to "test" the operations of the [NAME_36]. 54 On 15 January 2004 [NAME_45] sent an email to [NAME_37] attaching a document explaining the operations of the [NAME_36]. The document states that the [NAME_36] is a new establishment within the Interior Ministry of the Government of Afghanistan. It states that a joint commission of five Members oversees the daily operation of the [NAME_36] and provides further information about the administration of that unit. 55 The document also states that office space had been made available within the Interior Ministry, that the office is furnished and that four vehicles have been purchased. It states that the communication equipment had not yet been purchased but that the joint commission was looking forward to seeing the [NAME_36] fully operational by February 2004. 56 The document also contains information about identity checking procedures. A confidentiality order was made in respect of that part of the document. It is sufficient to say that the document includes a statement as to what will be done to trace the identity of persons who have lived outside Afghanistan for a period of time. 57 On 20 January 2004 [NAME_66] sent an email to [NAME_37] stating that the [NAME_63], as an intergovernmental organisation established under international law, has immunity from jurisdiction in Australia. The email states that the [NAME_63] will not appear before the Court in these proceedings but it consents to the information provided to [NAME_29] on 13 January 2004 being submitted to the Court, (i.e. as evidence). [NAME_37]' Evidence 58 [NAME_37] is the Acting Director Middle East & Africa section of [NAME_29]. She was an Assistant Director of that section from June 2002 to November 2003. Her primary responsibility since mid 2002 has been to develop arrangements with the Afghan Government for the return to that country of failed asylum seekers. In that capacity, she has had discussions with officials of the Afghan Government about measures to expedite the return of nationals. 59 [NAME_37] has first-hand knowledge of the steps which were taken to establish the [NAME_36]. She has liaised with the [NAME_63] and personally arranged for the transfer of the sum of $200,000 to the [NAME_63] in December 2003. 60 She gave evidence that her discussions with the [NAME_31], the [NAME_63] and the officials responsible for the [NAME_36] indicate to her that they have a strong commitment to the [NAME_36] working effectively. She believes that the [NAME_36] has the equipment to carry out its functions and that it will be able to meet its objectives. 61 [NAME_37] was not familiar with the files of the applicants. Thus she did not know their personal details and was unaware which provinces in Afghanistan they claimed to come from. She had not therefore considered whether there might be security issues in those provinces which might prevent the [NAME_36] from being able to conduct enquiries in that region. 62 Nevertheless, [NAME_37] saw no reason why the [NAME_36] would not be able to carry out enquiries in areas where there had been concerns about security. She referred in particular to Ghazni and said that the [NAME_63] had returned asylum seekers to that province in December 2003 and January 2003. 63 In [NAME_37]' opinion the information she has been provided by the Afghan authorities about the establishment of the [NAME_36] will allow "remaining doubts" about the identity of the applicants to be resolved and they will be issued with travel documents in "the near future" if their claims about their identities are correct. This opinion was based on her written communications with the Afghan authorities which I have set out above. She also relied on oral discussions with the [NAME_63] officials which she referred to in her oral evidence. 64 [NAME_37] gave evidence that about 500 persons have returned voluntarily from Australia to Afghanistan since about mid-2002. Based upon this, it is her opinion that if the applicants' identities can be verified, they will be able to return to Afghanistan. She is of the view that, upon the basis of what she has been told about the imminent establishment of the [NAME_36], verification should be able to be made "within the reasonably foreseeable future". 65 [NAME_37]' evidence was that the sum of AUD 200,000 provided to the [NAME_63] is expected to last for six months. The email from [NAME_59] of 27 October 2003 is to the same effect because the budget for salaries is calculated for a six month period. 66 Although the funds have been placed in the hands of the [NAME_63], [NAME_37]' opinion is that the Australian Government will be able to exercise influence over the work of the [NAME_36] because Australia has provided the funding for the project.

[NAME_41]'s evidence 67 [NAME_41] holds the position of Removals Officer in the Removals Policy and Operations Section of the Unauthorised Arrivals and Detention Operations Branch of [NAME_29]. He has held this position since August 2003. 68 [NAME_41] did not express an opinion as to the likelihood of the applicants' return to Afghanistan. He gave evidence of his communications with the [NAME_31] and with the applicants about the grant of travel documents to the applicants. He gave evidence of his knowledge of the identification system which will be carried out by the [NAME_36]. However he has not been personally involved in the steps taken to establish that unit. [NAME_39]'s evidence 69 [NAME_39] is the Assistant Director of the Removals Policy and Operations Section in the Unauthorised Arrivals and Detention Operations Branch of [NAME_29]. He manages the return of failed Afghan asylum seekers to Afghanistan. He has held this position for eight months. During that time he and his staff have handled the removal of 31 Afghanis to Afghanistan. 70 He gave evidence that in his opinion there is a real likelihood or prospect of removal of [NAME_34] to Afghanistan within "the reasonably foreseeable future". His opinion was based upon his personal knowledge of the return to Afghanistan of persons who claimed to be Afghan nationals. This included 21 cases where one-way travel documents were issued. He was also aware that the Afghan Government has issued a total of about 500 passports or travel documents to failed asylum seekers. 71 It was put to [NAME_39] in cross-examination that he did not express a similar opinion in relation to the cases of [NAME_33], [NAME_20] and [NAME_6]. He said he held his opinion about [NAME_34] because the [NAME_31] had advised that it was still considering a one-way travel document. 72 Nevertheless, he said in re-examination that it was his understanding that the [NAME_36] will look at the other three cases to determine what conclusion the Afghan Government should reach as to whether [NAME_33], [NAME_20] and [NAME_6] are Afghan nationals. The [NAME_32] 73 As the [ADDRESS] observed in [NAME_32] at [86] the right to personal liberty is among the most fundamental of common law rights and it is also among the most fundamental of universally recognised human rights; see also [NAME_11]: Australia, New Zealand, The South Pacific, [COMPANY_15] 2000 at 16 – 17. 74 Their Honours were aware that the limitation on the detention power which is in issue in the present case depends upon an assessment of external circumstances but they considered that these difficulties could be addressed by the Court having appropriate regard, inter alia, to the expertise of those persons who are responsible for the conduct of Australia's international relations; see at [129] – [130]. 75 I have referred above to the two limitations on the detention power which the Court expressed at [135] and [136] and it is unnecessary to state them in further detail. 76 Their Honours, on two occasions in the judgment pointed out that the second limitation on the detention power cannot be availed of by a detainee who does not cooperate with the authorities in the process of removal; see at [137] and [176]. See also [NAME_10] v [NAME_2] Affairs [2002] FCA 1625 (French J) ("[NAME_10]"). This exception does not apply in the present cases because it is conceded by the Minister that the applicants are now cooperating with the authorities. [ADDRESS] observed at [175] that the second limitation on the detention power is not likely to have frequent application. As their Honours stated, the conclusion that there is no real likelihood or prospect of removal in the reasonably foreseeable future is one that will not be lightly reached. 78 Their Honours noted at [176] that it is for an applicant to adduce evidence which puts in issue the legality of the detention and the evidentiary burden then shifts to the Minister. Their Honours said that this burden may be discharged on the balance of probabilities. 79 I accept that the degree of probability must be such that the Court is satisfied to a sufficient degree bearing in mind that what is in issue is the personal liberty of the applicants; see R v Home Secretary; ex parte Khawaja [1984] 1 AC 74 ("Khawaja") at 113-114. Recent authorities on the application of the [NAME_32] principle 80 Most of the recent decisions are interlocutory. However Mansfield J's decision in [NAME_9] v [NAME_2] Affairs [2003] FCA 546, affirmed on appeal [2003] FCAFC 296, appears to be a final decision. In it, Mansfield J was satisfied upon the basis of evidence of a departmental officer that there was a realistic prospect of removal in the next few weeks; at [23] – [24]. See also [NAME_9] v [NAME_2] Affairs [2003] FCA 1116; [NAME_9] v [NAME_2] Affairs [2003] FCAFC 295; SHMB v Goodwin [2003] FCA 1053; [NAME_7] v [NAME_2] Affairs [2003] FCA 1569; [NAME_8] v [NAME_2] Affairs [2003] FCA 1573; [NAME_6] v [NAME_2] Affairs [2003] FCA 1513 and [NAME_1] v [NAME_2] Affairs [2003] FCA 1512. 81 In [NAME_5] v [NAME_2] Affairs [2003] FCA 1555 ("[NAME_5]"), Selway J said at [14] that the question which arises is whether the Department's optimism that there is a real likelihood or prospect of removal from Australia in the reasonably foreseeable future is justifiable. 82 His Honour stated at [21] that in [NAME_5] the applicant had been liable for removal for nearly three years. He observed that the evidence indicated that there had not been a real likelihood of removal at all times during that period. Thus, the [NAME_32] condition had not been satisfied at all times during the period. But, as his Honour said, that was not the question before him. The question was, as in this case, whether his detention was presently unlawful. "As soon as reasonably practicable" 83 The requests for removal signed by each of the applicants in 2002 triggered the obligation under s 198(1) of the Act to remove the applicants as soon as reasonably practicable. 84 As French J said in [NAME_10] at [58] what is reasonable is to be determined, inter alia, by reference to the practical difficulties involved in the necessary arrangements which require the cooperation of other countries. His Honour observed that:- "Provided arrangements are being sought generically or specifically by reference to the applicant with reasonable expedition it is difficult to see how delays beyond the control of the Minister and his officers can be taken into account in determining what period for removal falls outside the scope of the term "as soon as reasonably practicable" in s 198." Decision in the present cases 85 Counsel for the Minister accepted, without necessarily admitting, that the applicants' evidence was probably sufficient to put in issue the legality of the detention so that the evidentiary burden shifted to the Minister. I am satisfied in each of these proceedings that the Minister has discharged the evidentiary burden that there is a real likelihood or prospect that the applicant will be removed from Australia to Afghanistan in the reasonably foreseeable future. In coming to that view I have applied the standard of proof referred to in Khawaja. The reasons I have come to this view are two-fold. 86 First, I accept the opinion of [NAME_37] that upon the basis of what she has been told about the establishment of the [NAME_36], the work to be carried out by this body will allow remaining doubts about the identity of the applicants to be resolved well before the expiration of the six month period for which funding has been made available. Thus, if the applicants are who they say they are, their identities will be able to be verified and travel documents will be issued. 87 Second, it seems to me that this inference is to be drawn, to the requisite standard, from the communications between [NAME_29] and the [NAME_31] and [NAME_29] and the [NAME_63]. 88 In my opinion [NAME_37] clearly had specialised knowledge of the steps which have been taken to establish the [NAME_36] and the likelihood that it will be able to carry out its function upon the basis of her close involvement in the setting up and funding of this body. Her opinion was not displaced by any of the matters which were put to her in cross-examination. I accept that in giving her evidence she was doing her best to assist the Court. 89 As I said above, in [NAME_32] at [130] the [ADDRESS] noted that where a Court has to determine the question of whether there is a real prospect it can have regard to the expertise of persons who are responsible for the conduct of Australia's international relations. [NAME_37] did not have the ultimate responsibility for decisions taken by the Australian Government to fund the [NAME_36]. She acted on instructions from the Minister or under delegated authority. But she held discussions with senior Afghan officials and senior [NAME_63] officers about the establishment of the [NAME_36] and it is plain that she had close involvement with the Afghan authorities and the [NAME_63] in putting in place the necessary steps. Thus, in my opinion, she had a sufficient degree of responsibility for Australia's relations with Afghanistan on this topic to fall within the type of expertise envisaged by the [ADDRESS]. 90 [NAME_39] is not as well qualified as [NAME_37] but I do give his opinion some weight and have taken it into account in reaching the view that there is the necessary likelihood or prospect of removal. 91 It seems to me that the view expressed by Selway J in [NAME_5] is correct and that the question which arises is whether the Minister has a proper basis for considering that there is a real likelihood or prospect of removal taking place in the reasonably foreseeable future. In my view, the Minister does have such a basis, firstly, because of [NAME_37] opinion and, secondly, because this conclusion must in any event flow from the information which has been provided to [NAME_29] by the [NAME_31] and the [NAME_63]. 92 The [NAME_32] limitation has two conditions each of which involves an element of speculation. The first is that there must be a "real likelihood or prospect". This does not mean that removal will happen. Nor does it mean that removal must be more likely than not. In my opinion all that is required is that there be a likelihood which is not remote and which is not far fetched or fanciful. 93 The second condition is that there must be a likelihood of removal in the reasonably foreseeable future. This is not a fixed period. It must be determined according to the facts of each particular case. Here, [NAME_37] initially expressed a view in terms of the ultimate question, that is, "the reasonably foreseeable future". But in cross-examination she said that she expected the verification checks to be completed well within six months. Given the practical considerations involved in travel and communications in Afghanistan, a period of at least three to four months would be within the reasonably foreseeable future. 94 Moreover, [NAME_37] pointed to instances where passports or travel documents had been issued within a period of 6 weeks after identity had been verified. When this is added to the period which may be taken to conduct on the ground enquiries in Afghanistan, [NAME_37]' views as to the reasonableness of the period satisfy the [NAME_32] test. 95 In any event, it is an inescapable inference from the communications between [NAME_29] and the [NAME_31] and the [NAME_63] that there is a real likelihood or prospect of the removal of the applicants within the requisite period provided they are who they claim to be. The [NAME_31] and the [NAME_63] have informed [NAME_29] that the [NAME_36] will be fully operational by the present time. [NAME_29] was told that by 13 January 2004 some of the necessary equipment had been purchased and 17 persons had been engaged as staff. A senior [NAME_36] officer is recorded as having assured the [NAME_63] that the [NAME_36] would be up and running by early February 2004. 96 Moreover, the [NAME_31] has informed [NAME_29] that the applicants have been given top priority on the list of 22 persons who will be processed by the [NAME_36]. 97 As I said at [8], I admitted the communications between [NAME_29] and the [NAME_31] and [NAME_29] and the [NAME_63] under s 60 of the Evidence Act. Ordinarily, the effect of this would be that the representations made in the communications, other than second hand or more remote hearsay, would be evidence of the facts which the maker of the representation intended to assert. 98 I was not asked to make a direction under s 136 limiting the use to be made of the evidence. However, the case was conducted on the basis that the communications were not proof of the facts stated but only of the communications themselves. The communications were relevant to a fact in issue, namely, whether there was a reasonable prospect of removal. Thus, although I did not make a formal direction under s 136, I have proceeded upon the basis that the communications are not evidence of the facts stated. Nevertheless, the communications provide a sufficient basis for me to draw the inference which I have that there was a real prospect. As the [ADDRESS] said in [NAME_32] at [175], the contrary conclusion is one that will not be lightly reached. 99 It is true that the authorities in Kabul have previously closed the cases of [NAME_33], [NAME_20] and [NAME_6] but those applicants have now provided fresh information including fingerprints and photographs. The Afghan authorities have stated that they are willing to make on the ground enquiries based on the additional information. There is nothing to suggest that they will not. 100 The applicants did not object to or challenge the evidence that the sum of AUD 200,000 has been remitted to the [NAME_63]. There is nothing to suggest that the [NAME_36] in cooperation with the [NAME_63] will not, or has not used the funds and the equipment and staff acquired with it to seek to verify the identify of each of the applicants. Nor is there anything to suggest other than that the steps to verify their identities will not occur expeditiously, subject to the practicalities of the situation. On the evidence before me, I would infer that the steps are already underway. 101 Counsel for the applicants submitted that the security concerns in Afghanistan, particularly in the regions in which the applicants say they lived, are so great that serious doubts exist as to whether the [NAME_36] will be able to make enquiries in those areas. 102 [NAME_67], counsel for the applicants, pointed to country information about the rule of the warlords in areas outside Kabul and to other evidence of lawlessness in Afghanistan. He also referred me to a UNHCR information sheet dated 15 January 2004 which stated that as a result of increased insecurity for UN staff, the UNHCR had temporarily suspended the facilitation of returns from Pakistan. The document also stated that UNHCR field monitoring in Uruzgan, Ghazni and Nangarhar (ie the provinces from which the applicants claim to come) had been suspended. 103 There was also evidence that a UNHCR worker had been killed in Ghazni toward the end of 2003. 104 However, it should be noted that the UNHCR document deals with the facilitation of returns from Pakistan. In any event it stated that so long as the security situation stabilised then facilitated returns will resume in early 2004. 105 Moreover, [NAME_37] gave evidence that there have been returns of asylum seekers to Ghazni province in December 2003 and January 2004. I would infer from this that there are reasonable prospects that security concerns will not stand in the way of the return of the applicants. 106 Nor in my opinion does the evidence support a finding that security concerns will seriously impede the ability of the [NAME_36] to conduct on the ground enquiries. [NAME_37] suggested that it is westerners who have the most to fear from the remnants of the Taliban or from other lawless groups operating in Afghanistan. In any event, the evidence before me is that [NAME_29] has been informed that the [NAME_36] will have satellite phones and satellite faxes. [NAME_37]' evidence, which I accept, is that the [NAME_36] will be able to use this equipment if it is unable to send personnel to the areas in vehicles to conduct on the spot enquiries. 107 [NAME_67] also submitted that the [NAME_36] would not be able to carry out its tasks because there are no proper records in Afghanistan of birth registrations. Nor was there, in his submission, any proper currently operating system of ID cards. He relied upon country information referred to in a decision of the RRT dated 25 November 1998. 108 However, it seems to me that the short answer to this submission is that the information provided to [NAME_29] about the manner of operation of the [NAME_36] is that on the ground enquiries, coupled if necessary with satellite communications, are designed to overcome any deficiencies in the written records of identification. 109 Finally, [NAME_67] submitted that in the cases of [NAME_1], [NAME_20] and [NAME_6] the Afghan authorities had prejudged their applications for Afghan nationality.

Accordingly, he said that there was no reasonable prospect of their return. However, in my opinion, that finding would be contrary to the evidence before me. The evidence is that the authorities in Afghanistan are prepared to re-open the cases with new information provided by those applicants. Indeed, the fact that [NAME_29] has been informed that the [NAME_36] has been established with funds provided by the Australian Government negatives any suggestion of prejudgment. So too does the fact that the applicants have been placed at the top of the priority list. 110 In any event, the submission that the Afghan Government has prejudged the issue, is probably not justiciable; see Attorney General UK v Heinemann Publishers Australia Pty Limited (1988) 165 CLR 30 at 40; Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth of Australia (2003) 197 ALR 461 (per Black CJ and Hill J) at [46] ff.

S 91X of the Act 111 The applicants do not contend that s 91X applies to these proceedings and do not seek to have their identities suppressed. These proceedings do no relate to the applicants in their capacity as persons who applied for protection visas or to any of the other capacities referred to in s 91X(1).

Accordingly, I do not require them to be identified by a pseudonym. Hely J took the same course in the interlocutory applications brought by [NAME_25] and [NAME_43]. Orders 112 It follows that I propose to order that the applications in each of these proceedings be dismissed. 113 Although the Minister has been successful, it seems to me that it is not appropriate to order the applicants to pay the costs. In my view, the following statement of principle made by Goldberg J in [NAME_3] v [NAME_4] (No 6) (2000) 174 ALR 747 at [22] is apt:- "Although an order for costs is made to compensate a successful party for the expenses incurred in responding to an application or proceeding, that principle of compensation should yield in favour of the principle that a person detained by authority of the State should not be deterred by a potential costs order from seeking his or her liberty. There is a public interest in ensuring that persons detained against their will should not have any impediment put in their way which will inhibit them in seeking their liberty. In my view that public interest outweighs the general rule that a successful party is to be compensated for its costs by the unsuccessful party. In particular is this so where the costs are incurred by the State under whose authority the person is detained." 114 In any event, I would not have made a costs order against the applicants in the exercise of my discretion because it seems to me that at the time when these proceedings were commenced and, indeed, up to the time when the Minister filed the affidavits of [NAME_37], [NAME_41] and [NAME_39] on 22 January 2004, there was insufficient evidence to support a finding on a final basis that there was a real likelihood or prospect of the applicants' return to Afghanistan. 115 Indeed, in light of the considerable delay on the part of [NAME_29] in taking the necessary steps to support the establishment of the [NAME_36], it seems to me to be likely that it was the commencement of these proceedings by the applicants which prompted [NAME_29] to take the necessary steps to fund the [NAME_36] and to put the applicants at the top of the priority list. I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate: Date: 2 March 2004 Counsel for the Applicants: [redacted]

Solicitor for the Applicants: [redacted]

Counsel for the Respondent: [redacted]

Solicitor for the Respondent: [redacted]

Date of Hearing: 4 - 6 February 2004

Date of Judgment: 2 March 2004