Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 20

Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 20

Sections 189 and 196 of the Migration Act 1958 (Cth) impose mandatory detention of an unlawful non-citizen until removal, deportation or grant of a visa, and the obligation in s 198 to remove the person as soon as reasonably practicable does not create an implied temporal limitation authorising release where removal is not reasonably foreseeable. Al Masri was plainly wrong and should not be followed. Because the applicant remained an unlawful non-citizen and sought unconditional release rather than mandamus to enforce any duty under s 198, the application was fundamentally misconceived and had to be dismissed.

Jurisdiction
Australia
Judgment Date
24 January 2003
Procedural Posture
Application for an Order of Release From Immigration Detention / Final Hearing Before a Single Judge of the Federal Court of Australia
Outcome
Application dismissed with costs.
Legal Topics
['detention of Unlawful Non Citizen' 'removal From Australia' 'implicit Temporal Limitation on Detention' 'construction of Migration Act 1958 (cth) Ss 189, 196 and 198']
['migration Law' 'administrative Law'] ['detention of Unlawful Non Citizen' 'removal From Australia' 'implicit Temporal Limitation on Detention' 'construction of Migration Act 1958 (cth) Ss 189, 196 and 198']

Case Brief

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Procedural Posture

Application for an Order of Release From Immigration Detention / Final Hearing Before a Single Judge of the Federal Court of Australia

Legal Issues

  1. 1 ["Whether the applicant's continued immigration detention was unlawfully prolonged because there was no reasonable likelihood of removal to Iraq within a reasonable time." 'Whether ss 196(1)(a) and 198 of the Migration Act 1958 (Cth) contain implicit purposive or temporal limitations of the kind recognised in Al Masri.' 'Whether the applicant was entitled to unconditional release from immigration detention.']

Ratio Decidendi

Sections 189 and 196 of the Migration Act 1958 (Cth) impose mandatory detention of an unlawful non-citizen until removal, deportation or grant of a visa, and the obligation in s 198 to remove the person as soon as reasonably practicable does not create an implied temporal limitation authorising release where removal is not reasonably foreseeable. Al Masri was plainly wrong and should not be followed. Because the applicant remained an unlawful non-citizen and sought unconditional release rather than mandamus to enforce any duty under s 198, the application was fundamentally misconceived and had to be dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application is dismissed.' 'The applicant is to pay the costs of the first and third respondents.']