Cox v Minister for Immigration Multicultural
& Indigenous Affairs & Ors [2003] NTSC 111
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PARTIES: COX, Susan Jane (in her capacity as the Director of the NT Legal Aid Commission)
v
MINISTER FOR IMMIGRATION MULTICULTURAL & INDIGENOUS AFFAIRS
AND
CAPTAIN OF HMAS GEELONG
AND
COMMONWEALTH OF AUSTRALIA
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO: 172 of 2003 (20323795)
DELIVERED: 20 November 2003
HEARING DATES: 6 & 7 November 2003
JUDGMENT OF: MILDREN J
CATCHWORDS:
REPRESENTATION:
Counsel:
Plaintiff: C McDonald QC & M Cvjeticanin
1st & 3rd Defendants: D Bennett QC & B O'Donnell
Solicitors:
Plaintiff: NTLAC
1st & 3rd Defendants: Attorney General's Dept
Judgment category classification: A
Judgment ID Number:
Number of pages: 18
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Cox v Minister for Immigration Multicultural & Indigenous Affairs &
Ors
[2003] NTSC 111
No. 172 of 2003 (20323795)
BETWEEN:
SUSAN JANE COX (in her capacity as the Director of the NT Legal Aid Commission)
Plaintiff
AND:
MINISTER FOR IMMIGRATION MULTICULTURAL & INDIGENOUS AFFAIRS
First Defendant
AND:
CAPTAIN OF HMAS GEELONG
Second Defendant
AND:
COMMONWEALTH OF AUSTRALIA
Third Defendant
CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 20 November 2003)
[1] This is an application for a writ of habeas corpus ad subjiciendum made
pursuant to O 57 of the Supreme Court Rules against the first and third named
defendants only, the second defendant not having been served with the summons.
The plaintiff has standing
[2] The plaintiff brings this application in her capacity as Director of the
Northern Territory Legal Aid Commission. Section 8(h) of the Legal Aid Act provides
that in the performance of its functions the Commission shall make its services
available to persons eligible for legal assistance by establishing such local
offices, and by making such other arrangements, as it considers appropriate.
Legal assistance may be provided to a person if the person is in need of assistance
because the person is unable to afford the cost of obtaining from private legal
practitioners the legal services in which legal aid is sought and if it is reasonable
in all the circumstances to provide legal assistance: see s 26. The Commission
has a history of providing advice and assistance to asylum seekers who have
come to the Northern Territory.
[3] Under Legal Aid guidelines made pursuant to s 12 of the Legal Aid Act, priority
in the provision of legal assistance is given to those classes of persons whose
individual liberty is threatened by legal process. Second in order of priority
are persons who would be more severely disadvantaged than others if legal aid
is not provided (whether such disadvantage is expressed in terms of one or more
economic, linguistic, educational, geographic or other factors). Fifth in order
of priority are persons who have a special need for legal aid because they have
recently arrived in Australia and/or have difficulty in understanding the English
language or the content and effect of Australian or Territory laws.
[4] On Wednesday 5 November 2003 the plaintiff read a report in the Northern
Territory News that a fishing boat carrying asylum seekers from Turkey had arrived
on Melville Island on 4 November and that subsequently the Navy patrol boat
HMAS Geelong had been sent to the Island to take the asylum seekers to Nauru
or Papua New Guinea to be processed.
[5] At 10.29am on 5 November 2003 Ms Cox sent a facsimile letter to the Director
of the Darwin office of the Department for Immigration and Multicultural Indigenous
Affairs (DIMIA) requesting that the Commission be given immediate access to
the alleged asylum seekers. No response having been given, Ms Cox followed the
matter up with telephone calls and a further fax at 4.15pm on the same day.
As at the time of swearing her affidavit no response had been received.
[6] On 6 November 2003 the plaintiff arranged for a solicitor employed by the
Commission, Ms Jennifer Devlin, to contact the Department to obtain information
as to the location of the alleged asylum seekers and as to whether the Commission
would be allowed access to them in order to ascertain whether they wished to
obtain legal advice.
[7] Ms Devlin in her affidavit has sworn to the fact that she spoke to Angela
Nauman, the Deputy Director of the Darwin office of the Department who advised
her that she was not in a position to provide any information as to the whereabouts
of the alleged asylum seekers or of the Department's proposed course of action.
Ms Nauman advised her that she would be in a position to give further advice
the following morning. On the morning of 6 November a number of telephone messages
were left by Ms Devlin for Ms Nauman to return her call. At approximately 9.15am
Ms Nauman rang Ms Devlin to advise that that matter was being looked after by
the central office in Canberra and she advised Ms Devlin to contact a Mr Walker,
the Secretary of the Visa Framework Division. As a consequence of that Ms Devlin
attempted to contact Mr Walker but was advised by his secretary that he was
not in his office. She was directed to call Mr Steven Larkin, the Director of
Policy. Ms Devlin then spoke to Mr Larkin and was advised by him that he was
not in a position to provide her with any information as to what the Department
intended to do. He suggested that Ms Devlin contact a Mr Jim Williams of the
Entry Operation Area. At approximately 9.30am she rang Mr Williams who advised
that he was not able to inform her as to the decision the Commonwealth had made
regarding its plan to manage the situation.
[8] At approximately 9.50am Ms Nauman telephoned Ms Devlin to state that the
contact person in Canberra had changed and that she was to contact Mr John Eyers,
Assistant Secretary of the Legal Services and Litigation Area. Ms Devlin left
a message with Mr Eyers to return her call. As at the time of swearing her affidavit
her call had not been returned.
[9] Ms Devlin also attempted to contact Mr Damon Hunt the Media Advisor for
the Minister for Immigration, but despite leaving two messages her calls were
not returned.
[10] It is plain from this and also from the evidence of Mr Eyers, as well as
other matters of evidence to which I will come, that the policy of the government
was to operate as clandestinely as possible and to provide no access to the
plaintiff or her officers and no information to the plaintiff or to the public
through the media to the extent that this could be avoided. Not only were the
plaintiff and her officers deliberately given the run around by the first and
third defendants, but attempts to prevent the media from coming anywhere near
the vessel were made by the imposition of a 3,000 metre exclusion zone over
the Island and the closing of the airport to prevent the media as well as others
from getting to the Island. Behaviour of this kind usually implies that there
is something to hide. Even to this Court the information provided by Mr Eyers
who was effectively the spokesman for the first and third defendants was quite
minimal. All evidence has to be judged according to who has the capacity to
call evidence. I bore that heavily in mind when considering my findings relevant
to the question as to whether or not I should order that the writ should issue.
[11] No challenge was made by the Solicitor-General for the Commonwealth, Dr
Bennett QC, who appeared for the 1st and 3rd defendants as to the plantiff's
standing to sue. There is no doubt that an application for a writ of habeas
corpus may be made by a person other than the person or persons allegedly imprisoned
unlawfully where the captor or captors are closely confined and cannot bring
their own application: see R J Sharpe, "The Law of Habeas Corpus",
2nd Ed, at pp 222-224; Halsbury, 4th Ed, Vol 11, para 1476; D Clark and G McCoy,
"Habeas Corpus", pp 138-140; 212-213; Supreme Court Rules, O 57.02(3)
and O 57.02(7). In Ex parte John Doe (1974) 46 DLR (3d) 547, an application
was brought by counsel who was not even able to determine the name of the detainee.
That is this case.
The Evidence
[12] As to the evidence before me in relation to the alleged illegal immigrants,
I am satisfied that at about 11.45am on Tuesday 4 November 2003 a twelve metre
type III Indonesian fishing boat named the Minasa Bone arrived at Snake Bay
on Melville Island with a crew of four Indonesians and 14 male passengers on
board claiming Turkish nationality. The vessel is registered in Ujung Pandang
and reportedly embarked its passengers from there.
[13] At a point about one kilometre away from the shore the vessel revved its
engines so as to enable it to pick up speed. When it was about 60 metres from
the shore the motor shut down and the vessel kept going until it struck the
shore. This was at exactly 12.24pm Northern Territory time.
[14] Six males alighted from the vessel onto the beach. They were approached
by a Mr Leslie Woodbridge who operates his own business as Top End Sport Fishing
Safaris at Snake Bay. He approached the men and asked them who they were and
what they were doing there. He said that they did not appear to understand him,
but instead pointed to their chests and said: "Turk, Turk, Turk".
According to Mr Woodbridge these men could not speak English and appeared disorientated
and kept pointing to their mouths. He ordered the men back onto the boat using
hand gestures. The men who appeared to be all Europeans returned to the boat.
Mr Woodbridge called out for the Captain. An Indonesian male came out from the
wheelhouse and said in broken English "The motor broken. Australia, Australia?"
Mr Woodbridge said, "Yes this is Australia". All on board the vessel
then cheered.
[15] At this time a Mr Brown, the CEO of the Snake Bay Council was passing by
in a small fishing boat. Mr Woodbridge instructed Mr Brown to tow the vessel
back into deeper water. In the meantime Mr Woodbridge obtained his own boat
and towed the vessel to a point about 400 metres offshore into eight fathoms
of water. He cast off the towline and told the others to drop anchor which they
did.
[16] He then gave them water filled with ice and a number of cold soft drinks.
[17] Also present at this time was Mr Gibson Farmer, the Chairman of the Milikarpiti
Community Council who reported the landing to Customs.
[18] According to the affidavit of Mr Eyers, once Customs were advised they:
"… initiated a response by border control agencies comprising, Customs,
Australian Federal Police (AFP), DIMIA and Australian Quarantine and Inspection
Service (AQIS) to fly to Melville Island to confirm the information and determine
the status of the vessel. That team arrived at Melville Island at approximately
1645 Canberra time on 4 November 2003. No member of this team boarded the vessel
or spoke with any of the passengers or crew of the vessel."
[19] A boarding party from HMAS Geelong boarded the vessel in Australian waters
on 4 November 2003 and a detention notice under s 245F of the Migration Act
1958 (Cth) was served on the Master of the vessel in English and Indonesian
at or about 2110 Darwin time. The detention notice was issued by Lieutenant
A P Staker, an officer of the Royal Australian Navy and alleged to be an "officer"
for the purposes of s 245 of the Migration Act 1958. At some stage the vessel
was taken in tow to a holding position 14 nautical miles north, northeast of
Cape Laury with HMAS Launceston in support. The power which allegedly authorised
this was s 245F(8) of the Migration Act. There the vessel remained for the next
37 hours until about 0100 hours on the morning of 7 November 2003 when HMAS
Geelong commenced towing the vessel away from Australia. At the time of the
hearing the vessel was under tow and on the high seas.
[20] Whilst the vessel was in the holding position, members of the Royal Australian
Navy assessed the vessel as being seaworthy although some sabotage had apparently
occurred with both engines and the steering had been damaged. That damage was
repaired by the Navy on the early afternoon of 5 November. The vessel was assessed
as being seaworthy and had the required safety gear, food and water on board.
The passengers and crew had been checked by a Defence Force medical officer
and on 5 November an Australian Federal Police/DIMIA team went on board and
conducted interviews with the crew and passengers to "elicit intelligence
information regarding possible people smuggling".
[21] In cross-examination Mr Eyers confirmed that so far as he knew all 14 Turks
and the four Indonesian crew were still on board the vessel and were not under
arrest. The vessel at the time of the hearing had a boarding party from HMAS
Geelong on board to ensure no further sabotage took place on the vessel.
[22] Mr Eyers in his affidavit said this:
"14. If the person or persons in charge of the vessel requested to be detached
from the towline in order to proceed anywhere in the world except Australia,
subject to the Commander of the HMAS GEELONG being satisfied of the bona fides
of that intention and subject to his being satisfied in relation to his obligations
concerning the safety of life at sea, the towline will be detached and the vessel
permitted to leave.
15. No person has been arrested under section 245F(3)(f) of the Migration Act
1958 or otherwise."
[23] Mr Eyers was not able to confirm that this information had been conveyed
to anyone on board the vessel. Nor was Mr Eyers able to advise whether or not
any interpreters in either Turkish or Indonesian had been employed at any time
either by the Navy or by the Australian Federal Police/DIMIA team.
[24] Mr Eyers was asked specifically why Ms Cox's request to seek access to
those on board the vessel was not acceded to. He replied that it was normal
procedure that unless a person requested legal assistance it is not provided.
He said that he did not know whether any of the persons concerned had asked
for legal assistance or not and did not know whether any of them had asked for
asylum. Even allowing for the urgency under which this affidavit was sworn I
found it incredible that the 1st and 3rd defendants' principal witness could
not answer these questions.
Procedure
[25] The position of Dr Bennett QC for the first and third defendants was that
the application was untenable and should be dismissed forthwith. Initially it
was put that because the men were on the high seas the court had no jurisdiction
to issue habeas corpus in respect of them, secondly that in any event the writ
would not issue in respect of an illegal immigrant who was not in Australia,
and thirdly, they were not in any event in detention. Following some preliminary
submissions I adjourned the proceedings until the following day to enable the
defendants to place some evidence before me.
[26] The position of counsel for the plaintiff was that there was a prima facie
case that those on board the vessel were illegally detained, and that I should
order the writ to issue (see O 57.03(1)(a)) and determine the issues finally
on the return of the writ: see O 57.07.
[27] I have a discretion to deal with the matter if it can be disposed of without
ordering the writ to issue: see Owen v South Australia (1996) 85 A Crim R 28
at 33 per Debelle J. However, I would only refuse to issue the writ if the plaintiff's
claim was untenable and must be dismissed.
[28] Having heard the evidence on 7 November and the submissions of the parties,
I dismissed the summons. I said that I would provide reasons at a later time.
These are those reasons.
Excised off shore places
[29] On November 2003 an amendment was made to the Migration Amendment Regulations
by Migration Amendment Regulation 2003 (No 8). The effect of that Regulation
was to prescribe inter alia all islands that form part of the Northern Territory
as an "excised offshore place" as defined by s 5(1) of the Migration
Act 1958. The purpose of that regulation was clearly intended to effect the
question of whether or not the Turkish non-citizens had to be placed into immigration
detention. Counsel for the plaintiff, Mr McDonald QC submitted that the regulation
had no application to the facts of this case because the regulation did not
operate retrospectively. It is in my view unnecessary for me to decide this
question in order to dispose of this application. However, I was prepared to
accept that Mr McDonald QC's argument was probably correct for the purposes
of deciding whether to in effect summarily dismiss the application.
[30] Mr McDonald QC submitted that s 5(1) of the Act provided that the regulation
had the effect of excising the islands as from the time when the regulation
commenced: see the definition of "Excision time" in s5(1). The regulation
was gazetted in Special Gazette No S408 on 4 November 2003 and came into effect
on that date. Pursuant to s 3(2) of the Acts Interpretation Act 1901 (Cth),
the effect of the gazettal is that the amending regulation came into operation
immediately on the expiration of 3 November 2003. Section 48(2) of the Acts
Interpretation Act 1901 provides that a regulation has no effect if it would
take effect before the date of notification and as a result affect the rights
of any person to the disadvantage of that person as at the date of notification.
[31] The plaintiffs' argument was that at the time of landing those who actually
landed on the shore at Snake Bay did so at a time when the regulation had no
effect. Therefore they were not then in "an excised offshore place".
[32] Consequently, so the submission went, there was a requirement by the Commonwealth
under s 189(1) of the Migration Act 1958 to detain those persons. That in turn
gave rise to the right to be told of the provisions of ss 195 and 196 of the
Act and that in turn meant that the detainee had to be told that he had the
right to apply for a visa. Furthermore, so the argument went, the detainees
were then entitled under s 256 of the Migration Act 1958 to:
"all reasonable facilities for … obtaining legal advice or taking legal
proceedings in relation to his or her immigration detention".
[33] However, as Dr Bennett QC submitted, s 193 of the Migration Act 1958 provides
that ss 194 and 195 do not apply to a person who entered Australia after 30
August 1994 and has not been immigration cleared since last entering.
[34] Furthermore, s 193(2) provides that apart from s 256 nothing in the Act
required the Minister or any officer to give a person covered by s 193(1) an
application form for a visa or to advise that person as to whether or not he
may apply for a visa or to give that person an opportunity to apply for a visa
or to allow such a person access to advice whether legal or otherwise in connection
with applications for visas.
[35] Mr McDonald QC submitted that the government's attempt to affect the outcome
by the passage of the Migration Amendment Regulations 2003 (No 8) was an attempt
to thwart the ordinary process as contemplated by the Act. In my opinion the
correctness or otherwise of Mr McDonald's submission has no relevance to whether
or not the writ should lie. Whether or not unlawful non-citizens should have
been detained under the Act is not a question which is relevant to the relief
sought. On the contrary, the question which I have had to determine is whether
or not there was evidence that the immigrants had been unlawfully detained or
unlawfully arrested or imprisoned or in some other way had their freedom of
movement unlawfully restricted such as to warrant the issue of the writ.
Have the crew and passengers on board the Minasa Bone been unlawfully detained
or arrested?
[36] Leaving aside the provisions of s 245F(8) of the Migration Act 1958, there
was ample evidence to show a prima facie case that the occupants of the vessel
had been detained. They were on a vessel which was under tow by a ship from
the Royal Australian Navy. There were crew members from HMAS Geelong on board.
The vessel was also guarded by another Navy patrol boat. An inference can be
drawn from the cheering when the vessel arrived and those on board were told
that they had arrived in Australia, the fact that a number of persons on board
came ashore together with the fact that efforts had been made to damage the
vessel's motor and steering, that the passengers on the vessel at least had
sought to enter Australia for the purposes of applying for a protection visa
of some kind.
[37] There is in my view no doubt that a writ of habeas corpus may lie where
the form of detention involves no more than that a person has been detained
upon a ship: see Somerset's case (1772) 20 St Tr 1; re Klimowicz (1954) unreported,
cited in 11 Halsbury (4th Ed) par 1482 footnote 2; Chin Yow v United States
(1908) 208 US 8.
[38] It was submitted, however, that the detention in this case was plainly
lawful. Dr Bennett QC referred me to s 245F(8A) of the Migration Act 1958 which
provides as follows:
"If an officer detains a ship or aircraft under this section, any restraint
on the liberty of any person found on the ship or aircraft that results from
the detention of the ship or aircraft is not unlawful, and proceedings, whether
civil or criminal, in respect of that restraint may not be instituted or continued
in any court against the Commonwealth, the officer or any person assisting the
officer in detaining the ship or aircraft."
[39] Notwithstanding the latter part of that section, I consider that it is
open for this Court to decide whether or not the officer has detained a ship
under the section and that of course must mean whether or not the detention
of the ship under the section was a lawful one. The difficulty I have is that
it seems to me that s 245F may not apply to the circumstances of this case.
[40] Section 245F(1) provides:
"(1) This section applies to a ship that is outside the territorial sea
of a foreign country if:
(a) a request to board the ship has been made under section 245B; or
(b) the ship is a foreign described in subsection 245C(3) (which allows foreign
ships on the high seas to be chased); or
(c) the ship is an Australian ship.
However, this section does not apply to a ship if a request to board the ship
has been made under subsection 245B(6) or (7) (certain ships on the high seas),
unless an officer is satisfied under subsection 245G(3) that the ship is an
Australian ship."
[41] I am prepared to accept that there is evidence that the ship is outside
the territorial sea of a foreign country. There is, however, no evidence that
a request to board the ship had been made under s 245B. There is no evidence
that the ship is a foreign ship described in s 245C(3). Such evidence, if it
was available, was peculiarly within the knowledge of the 1st and 3rd defendants.
There is evidence that the ship is a foreign ship and not an Australian ship.
That being so, I am far from satisfied that the detention was lawful because
it was a detention by an officer "under this section" (to quote the
wording of s 245F(8A)).
Jurisdiction
[42] It was submitted initially that I did not have jurisdiction to issue a
writ of habeas corpus because none of the persons in respect of whom the writ
is sought to be issued were within Northern Territory waters. I do not consider
that this is a valid answer to the question of jurisdiction. The court has got
jurisdiction over the first and third defendants and it is alleged that they
are the persons ultimately responsible for the custody of the persons concerned.
I consider that this is sufficient to grant jurisdiction for the granting of
a writ in this case: see R J Sharp, "The Law of Habeas Corpus", 2nd
Ed at p 199.
The persons are aliens
[43] There is no doubt that a writ will issue in favour of an alien where the
alien is being unlawfully held by someone who is subject to the court's jurisdiction.
Indeed there are many cases where the validity of immigration detention has
been tested by way of habeas corpus: see Halsbury supra at par 1467; Clark and
McCoy, "Habeas Corpus" at p 145; R J Sharpe, "The Law of Habeas
Corpus" 2nd Ed at p 172 - 173 and Chin Yow v The United States (1908) 208
US 8.
[44] However, there is a distinction in immigration cases between those aliens
who are already physically within the jurisdiction of the court and those who
are not. On the one hand an applicant may claim to have a lawful right of entry.
In such a case there is authority that the writ will lie whether or not the
appellant is physically within the jurisdiction and notwithstanding that the
immigration authorities are claiming that he has no lawful right of entry: see
Chin Yow v The United States, supra. However, that is not this case. In the
instant case there is no suggestion that any of the persons on board the vessel
claim a right of entry under the Migration Act 1958 either because they are
Australian citizens or have been already granted Australian residency or for
any other just cause.
[45] That being so, as Dr Bennett QC submitted, the writ cannot lie for three
reasons. First because the courts will not allow its processes to be used to
cause those who plainly have no right of entry to be brought into the country;
secondly because the moment the persons concerned are brought into the country
they would be placed in immigration detention anyway; and thirdly because the
relief that is being sought is not release from custody but the issue of a writ
so as to enable the plaintiff to obtain instructions as to whether or not the
applicants wish to apply for visas as refugees. In Ruddock v Vadarlis (2001)
110 FCR 491 the majority of the Full Court of the Federal Court held that in
such circumstances the writ will not lie: see at 519 - 521 per Beaumont J and
at p 548 per French J.
[46] In my opinion I consider that I ought to follow the decision of the majority
in Ruddock v Vadarlis on this issue (which I respectfully consider to be correct).
It is well established that the purpose of the writ is to secure the release
of those unlawfully detained: see, for example, Halsbury, 4th Ed, Vol 11, para
145Z. As this is not sought and cannot be achieved in the circumstances of this
case, the writ does not lie.
[47] These are the reasons for rejecting the plaintiff's application and for
the dismissal of the summons. I will hear the parties as to costs.
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