IN THE SUPREME COURT OF NAURU
Civil Action No. 8 of 2004

Between

MOHAMMED ALI AMIRI
First Applicant

JAMILKHAN HASHIMI
Second Applicant

MOHAMMED ARIF RUHANI
Third Applicant

And

DIRECTOR OF POLICE
Respondent

Reuben Kun, Pleader, for Applicants
Lionel Aingimea, Barrister and Solicitor for Respondent

Hearing to show cause 28, 29 April 2004

DECISION

Grounds of Application

1.	The three Applicants for a writ of habeas corpus, Amiri, Hashimi, and Ruhani were granted by the Court an ex parte Order Nisi on 21 April 2004 whereby the Respondent was required to show cause why the Applicants have been kept in detention in the Topside Camp on Nauru since February 2003 or earlier, and why such detention should be continued. The Order Nisi was granted on the evidence of an affidavit sworn by Reuben Kun, together with an accompanying statement which stated the grounds of the application to be -

(i)	The Applicants are held in Topside Camp against their will by or on behalf of the Director of Police,
(ii)	None of the Applicants has applied for or consented to a Nauru visa of any sort,
(iii)	None of the Applicants has authorised any person to apply for a Nauru visa on their behalf.

The relief sought was habeas corpus.

2.	The return date to show cause was stated to be 26 April 2004 but the court granted an extension to 28 April 2004.

Background

3.	The three Applicants, Afghan nationals, were among a considerable number of asylum seekers brought to Nauru at the end of 2001 by Australian sea transport. The inter-governmental arrangements surrounding the asylum seekers were eventually settled in an Australia-Nauru Memorandum of Understanding, dated 9 December 2002, and further extended by a Memorandum of Understanding dated, 25 February 2004, with a due date for termination of 30 June 2005. The accommodation facilities for the asylum seekers were established at two localities in Nauru called 'Topside’ and 'Former State House’. During their stay on Nauru, the asylum seekers claims for refugee status have been or are to be processed and determined. The management of the accommodation facilities was in the hands of the International Organisation for Migration (IOM).

4.	Whilst the gates of the facilities are normally open, Chubb safety officers who are contracted by IOM monitor the access or egress of persons to and from the facilities. The overall security of the facilities is in the hands of the Nauru Police Force (NPF) who are assisted by the Australian Protective Service (APS) who have been appointed as reserve officers under the Nauru Police Force Act. If there is any contravention of the criminal law or breach of visa conditions then the NPF are responsible for enforcement of law and order. All asylum seekers are admitted and remain in Nauru by reason of the grant of special purpose visas. The nature of such visas is dealt with later in this decision.

First Applicant withdrawal

5.	Following the granting of the Order Nisi, I received a letter from the First Applicant enclosing an email that he had sent to an Australian barrister, which requested that his application be withdrawn. He stated in the letter that he had been granted refugee status and had no further interest in such an application and added, curiously, that perhaps the barrister might choose another asylum seeker to become representative of the people who had not been accepted as a refugee.

6.	I immediately asked that the First Applicant should come to the Supreme Court Chambers to confirm his request. At a Chambers hearing on 27 April 2004, with counsel for both the Applicant and Respondent present, together with an interpreter and the Registrar of the Court, the First Applicant confirmed he wrote the letter to me and the email to the Australian barrister, that it was written of his own free-will, and that he did not wish to participate further in the case. The First Applicant understood well the situation, spoke English well, and, as an observation, was both demonstrably articulate and intelligent. The Court allowed him to withdraw his application and he was assured that he no longer was required to participate in the case. From that point, the Applicants were only Hashimi and Ruhani. The affidavits in reply were drafted and filed thereafter by the Respondent with only the Second and Third Applicants in mind, neither of whom had, to this point of time, been granted refugee status.

Documentary material before the Court

7.	The habeas corpus applications were conducted by affidavit evidence. The applications for the Order Nisi, as stated above in paragraph one, were based on an affidavit sworn by Reuben Kun, pleader for the Applicants, and an accompanying statement. In reply to show cause, affidavits were sworn with exhibits attached, by (i) Peter Charles Long (two affidavits), Acting Director, Operation Liaison and Repatriation Section, Offshore Asylum Seeker Management Branch employed by the Australian Department of Immigration and Multicultural and Indigenous Affairs ('DIMIA’), (ii) Robert Dean Wait, Liaison Officer employed by DIMIA, (iii) Mark Neil Kennedy, Officer in Charge of the Australian Protective Service, (iv) Ernest Stephen, Principal Immigration Officer of the Republic of Nauru, and (v) Cy Frederick Wynter, Chief of Mission employed by the International Organisation for Migration ('IOM’). Besides oral submissions from representatives of the Applicants and Respondent, written submissions were tendered to the Court by both sides.

Issues

8.	The grounds of the application were limited to three questions, namely, wrongful detention, lack of consent to the granting of the visa, lack of authorisation by the Applicants to a visa application on their behalf. In the course of the hearing, the Applicants sought to introduce argument involving Article 5 of the Constitution. I allowed this against the objection of the Respondent who was permitted a supplementary submission on the point. There had been a recent decision of the Court, Mahdi and ors. v Director of Police (Unreported 27 May 2003), which had ruled directly on the constitutional point in similar circumstances. I deal with this later.

9.	Much of the argument turned on the interpretation of the Immigration Act 1999 ('the Act’) and the Immigration Regulations 2000 ('the Regulations’). Both the Act and the Regulations were of comparatively recent origin, and replaced a hotch-potch of legislation of pre-independence Ordinances and an early adopted Immigration Act 1901-1920 of Australia. The new legislation enabled much more effective administration of the movement of citizens and non-citizens in and out of Nauru than had previously been the case. The Act and its Regulations came under considerable scrutiny in determining this case.

The asylum seekers present position in Nauru

10.	The asylum seekers, as non-citizens, could not enter Nauru from overseas without a valid permit (Section 8(2)). The only non-citizens who could enter Nauru without a permit were those who held a Nauruan official passport or 'a person or a member of a class of persons whom the Regulations may prescribe or the Minister may by order specify’. It was accepted that the asylum seekers did not fall into either of these two categories, although given the wording of Section 8(4) it would not be hard to contemplate that the asylum seekers may have been granted entry through ministerial order and subject to conditions under Section 8(4). However, that was not the case as a different route, the special purpose visa, was taken. It should be stated that without a permit, and a visa is a permit (Section 2), the asylum seekers would be prohibited immigrants (Section 10) and, as such, would be unlawfully in Nauru (Section 10(2)), and guilty of an offence and liable to a penalty not exceeding $3,000.00 or imprisonment for one year or both (Section 13).

Visas

11.	Section 9 of the Act reads as follows: -

“VISAS

9.	(1)	The Principal Immigration Officer may grant a non-citizen a permit, to be known as a visa, in accordance with this Act, to -

(a)	travel to, enter and remain in Nauru; or
(b)	enter and remain in Nauru; or
(c)	remain in Nauru,

according to its terms.

(2)	The classes, terms, conditions and fees of visas shall be as prescribed.

(3)	The Minister may, by notice in the Gazette, exempt a person or a class of persons to whom the notice applies from the payment of any prescribed fee.

(4)	The Regulations may provide for -

(a)	a visa being held by two or more persons; and

(b)	the exemption of any person or class of persons from the payment of a visa fee; and

(c)	extensions of visas.”

This section provides the power for the issuing of visas through the Principal Immigration Officer ('PIO’). Regulations made pursuant to Sections 9 and 19 of the Act spell out the various classes of visas issued by Nauru. There are five classes - residence, business, visitors, transit, and special purpose.

12.	The special purpose visa may be granted to persons as described in Regulation 8 of the Regulations. More particularly, under Regulation 8(1)(g) a special purpose visa may be granted to a person who enters Nauru without a passport, in accordance with Regulation 12(4). Regulation 12(4) reads as follows: -

“(4)	Notwithstanding sub-regulation (1), the Principal Immigration Officer may, on humanitarian or other grounds, permit a person who arrives in Nauru without a passport to enter and remain in Nauru, and for the purpose may grant to the person a special purpose visa, on such conditions as the Principal Immigration Officer thinks fit.”

	It was common ground that the asylum seekers, for one reason or another, were in the territorial area of Nauru without passports and, as Australia and Nauru through a Memorandum of Understanding signed on 9 December 2002 reached agreement that the asylum seekers would have their refugee claims processed on Nauru with a view to their eventual movement to the country of refuge or return to their country of origin, as the case may be, it was therefore necessary for Nauru to legitimise entry and stay on Nauru until their eventual removal. (Memorandum of Understanding between Australia and Nauru for cooperation in the management of Asylum-seekers and related issues 25 February 2004, paragraph 4.) Action was, therefore, taken by the PIO under Regulation 8(1)(g), to issue a special purpose visa to all the asylum seekers.

13.	The original special purpose visa was issued by the then PIO, Amos Cook, on 7 January 2002. This was extended from time to time, and the most recent extension was dated 28 January 2004 under the hand of the present PIO, Ernest Stephen. The special purpose visa was granted 'on such conditions as the Principal Immigration Officer thinks fit’ (see Regulation 12(4)). The conditions outlined in the visa extension under the hand of Ernest Stephen were the following:-

1.	Residence in Nauru shall be restricted to sites designated by the Government of Nauru for the accommodation of asylum seekers or as directed by the Office of the President of Nauru.
2.	Movement within Nauru shall be restricted to within the above-mentioned sites except with the consent of the Office of the President of Nauru.
3.	Movement within Nauru outside of the designated sites shall be under escort of security personnel, or other designated persons as authorised by the Office of the President.
4.	Residence and movement within Nauru shall be subject to compliance with lawful directions, which may be made by the PIO, the Director of Police, or any other person so authorised by the Office of the President of Nauru.
5.	Completion of humanitarian endeavours shall, for the purpose of this visa, be determined by the Office of the President of Nauru, through directions of the undersigned and shall constitute termination of such visa.

14.	It was the submission of the Respondent that it was within the power of the PIO to issue the special purpose visa to the asylum seekers and also that such visa could be subject to conditions as outlined in paragraph 13 above. On the other hand, the applicant submitted that the special purpose visa was granted without application by either applicant and that they did not consent to its granting or its extension, that the conditions imposed were of a restraining nature and not within the power of the PIO and amounted to an unlawful custody or detention.

The need either to make application or consent

15.	Once a non-citizen comes within the territorial borders of Nauru, which in Nauru’s case extend out over a belt of sea twelve miles adjacent to the coastline, that non-citizen becomes subject to the laws of Nauru, subject to rights of innocent passage through the territorial sea. In any event, once non-citizens have actually landed on the island of Nauru compliance with the requirements of the Act and its Regulations is required. Unless a visa is issued, the non-citizen, with limited exceptions, becomes a prohibited immigrant and may be imprisoned.

16.	The submission of the Applicants was that the issue of a visa by the PIO was invalid, as it did not arise as a result of an application required under Regulation 13. The short answer is that Section 9 of the Act is the source of power for the granting of a visa and neither Section 9 nor any other section provides that an application must be made before the granting of a visa. Furthermore, neither Section 9 nor any other section requires that a person granted a visa must otherwise consent to such a grant. In certain circumstances, a person may seek another class of visa (Regulation 13(3)) or, of course, may leave the country if he so wishes, something which a number of asylum seekers have done by voluntary return to their state of origin.

17.	If under Regulation 13 an application was to be considered mandatory, then such regulation may well be ultra vires, as the regulations cannot limit or qualify the powers already granted under the Act to the PIO. This is accepted principle in administrative law (see Delegated Legislation in Australia, Pearce and Argument, 2nd Edition, Butterworths pp. 203-204). However, I prefer the view that Regulation 13 merely allows the PIO to determine whether he requires an application or not. Indeed, such a requirement will depend on whether, in making his decision to grant a visa, he requires further information or documentation. The decision of the PIO to grant a visa would not be invalidated simply on the ground either that no application had been made or that consent had not been given by the grantee. I am fortified in this view by the existence of Regulation 10 where to cover various emergency situations, and the arrival of the asylum seekers could well come within 'other reasonable cause’, the PIO may grant a visa notwithstanding Regulation 13. It is noted that Regulation 10 is couched in broader language than Regulation 8(1)(i) and might well encompass those persons granted special purpose visas under Regulation 8(1)(g) and 12(4). The question of the visa extension is met by the same arguments. Once the visa is validly granted, there is a discretion of the PIO to grant an extension in terms of both the Act and Regulations notwithstanding Regulation 18. I, therefore, find that the action of the PIO in granting and then extending a special purpose visa to the Applicants was within power and a valid act.

18.	In fact, an application, dated 15 January 2004, had been made by the Australian Consulate-General, on behalf of the then 283 asylum seekers, resident at the two offshore processing centres, by third person Note No. 003/2004 to the Department of Foreign Affairs of Nauru for an extension for a further six months from the date of the then visa extension expiry. By Note No. 018/2004FA, dated 30 January 2004, the Department of Foreign Affairs of Nauru notified the Australian Consulate-General that the special purpose visa had been extended for six months and enclosed with the Note the visa extension. The applicants in this matter challenged the granting of this extension as neither of them had asked for the extension nor had they authorised anyone to act for them. I do not find it necessary to take up this matter further for it is my clear view that the PIO had the power to grant the original special purpose visa without the need for application or consent and, similarly, the power to grant the extension.

The imposition of conditions

19.	The conditions imposed on the Applicants by the special purpose visa granted by the PIO are stated in paragraph 13 above. These were imposed by the PIO in accordance with Regulation 12(4). The submissions advanced by the Applicants were that such conditions were conditions of restraint and beyond the power of the PIO under the Act and, therefore, void. The Applicants described such conditions as 'a form of extra-curial imprisonment’.

20.	The power of the PIO to grant a visa and impose conditions is 'confined, as is every statutory power, by the subject matter, scope and purpose of the legislation under which it is conferred.’ See Te v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 497, 507, and the cases there cited.

21.	The PIO has wide powers under the Act, see Sections 3, 5 and 9. Indeed, with reference to visas, it is the PIO who may determine whether or not to grant a visa permit, in particular, to enter and remain in Nauru according to its terms. In relation to a person who arrives on Nauru without a passport the PIO may grant to the person a special purpose visa, 'on such conditions as the Principal Immigration Officer thinks fit’. (Regulation 12(4)). The regulation is expressed broadly allowing wide discretion to apply the appropriate conditions.

22.	The Act makes provision for entry of persons into Nauru, the presence of non-citizens in Nauru, and the departure and removal of persons from Nauru. The PIO has a determining role in regard to the Act. It was acknowledged that it was not the intention of Nauru either to settle permanently the asylum seekers in Nauru or necessarily settle them for any length of time within the community. They were to be present in Nauru whilst their cases for refugee status were investigated and determined by officers so authorised from the IOM, UNHCR, or the DIMIA. The numbers of asylum seekers were not insignificant and considerable time would necessarily be taken before determinations were finally made. The fact of arrival without any travel documents added considerably to the time taken in investigation of claims. The special purpose visa under Regulation 8 and 12(4) was designed to allow for such a task and left the way open for the PIO, taking account of the circumstances, to impose appropriate and suitable conditions.

23.	Regulation 12(4) is not inconsistent with the wide powers given him under Section 9 of the Act. It is odd of the Applicants to put such emphasis in their submissions upon the word 'restraint’. A condition by its nature is often restraining. A condition in this context is something demanded or required as a prerequisite for the granting of something else, in other words, a stipulation. There is, in fact, a statutory stipulation imposed on Applicants for special purpose visas for legal proceedings in Regulation 9. A transit visa almost always imposes a locality restriction. In relation to Nauru, a small but relatively heavily populated island, it is not uncommon to have locality restrictions for overseas workers, and tourists, particularly, in regard to accommodation. In this instance, asylum seekers are being accommodated for the express purpose of having claims for refugee status investigated and determined, and then moved on either to countries of refuge or to countries of origin as the case may be. The imposition of the conditions for the period of the operation of the visa related to specific areas where the asylum seekers were accommodated and fed, where their claims could be investigated through interviews, and where specific arrangements could be made for their recreation and provision of facilities for communication, but with sufficient flexibility to provide outside activity such as children’s education and religious observance.

Habeas Corpus

24.	In terms of Nauru, habeas corpus remains as a remedial writ through section 4(1) of the Custom and Adopted Laws Act 1971. Both the common law with respect to habeas corpus and the early English habeas corpus Acts are part of the adopted law of Nauru. Whilst the procedure available under Article 5(4) of the Constitution is to the same effect as the remedy of habeas corpus, there is no inconsistency, in terms of Article 2(2), between what is accorded by Article 5(4) and the adopted common law remedy with the result that the ancient remedies of the common law and the modern complaint procedure under the Constitution may co-exist. From a practice point of view, however, it may be thought more satisfactory and procedurally easier to proceed by way of Article 5(4). The initial chosen course by the Applicants was through the writ of habeas corpus, by which the Applicants were seeking release from illegal detention.

Was there a detention?

25.	The Respondent was at pains to submit that there was no deprivation of liberty. The argument ran along the lines that as the asylum seekers arrived within the boundaries of Nauru without passports or entry permits, the PIO, in permitting the asylum seekers to enter and stay within a specified location of Nauru, did not deprive the Applicants of any liberty that they otherwise had - an anything is better than nothing rule! However, once the non-citizens have been admitted to Nauru, they each become subject to Nauruan law and part of that law is the prevailing common law with respect to habeas corpus and the rights provisions of the Constitution both of which apply to citizens and non-citizens alike.

26.	The Respondent also pressed that the conditions imposed by the PIO did not in themselves amount to custody or detention of the asylum seekers. Some of the English cases are with respect a trifle ambivalent and speak sometimes of the need for 'total’ deprivation of freedom before there is a detention that could attract habeas corpus. (See, for example, R v Secretary for State for the Home Department; ex parte Mughal [1973] 1 WLR 1133). Whilst close custody involving prison incarceration is clearly a situation where habeas corpus lies, the custody requirement includes other forms of restriction short of imprisonment. In Eatts v Dawson 93 FLR 497 at 506, the Australian Federal Court explored cases involving 'police custody’ and quoted without criticism, the United States Supreme Court in Jones v Cunningham (1963) 371 US 236. After the Court had made reference to authorities in the United States and in England, the Supreme Court said at 240 -

“History, usage and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man’s liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.”

27.	Later in the same judgment of Morling and Gummow JJ. in Eatts’ case, the broader view of custody is taken up again where they state (at 510) - “Elements in the lexical meanings of 'custody’ include the notion of dominance and control of the liberty of the person , and the state of being guarded and watched to prevent escape”. I have no difficulty in finding that, for the purposes of habeas corpus, the Applicants were in a custodial situation. They were confined to a particular location (Yasmin Ali Shah v Attorney-General [1988] SPLR 144), and that location had certain restraints such as perimeter fencing, controlled entrance and exit, and an overall police control. However, given the detention, the issue at stake was whether it was legal or not.

Do the conditions imposed on the visa result in a wrongful detention of the Applicants?

28.	Once the Applicants, both non-citizens, entered Nauru without a passport, the granting of a special purpose visa was the manner by which they could remain unless they were arrested and detained as prohibited immigrants. As Lord Atkinson stated in Attorney-General (Canada) v Cain and Gilhula [1906] AC 542 at 596 quoting the eminent international jurist, Vattel, 'one of the rights possessed by the supreme power in any State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests’. In this instance, the delegation of these powers of the State has been bestowed by statute on the PIO. Indeed, the exercise of that statutory delegation by the PIO was in conformity with the wishes of the Nauruan government as revealed in its Agreement with the Australian government (see the current Memorandum of Understanding dated 25 February 2004). The administrative arrangements are described in the Affidavit of Mark Neil Kennedy dated 21 April 2004.

29.	The situation achieved by the conditions imposed by the PIO is very similar to that as described by McHugh J, with reference to the Australian Migration Act 1958, as amended, in Chu Kheng Lim v Minister for Immigration 176 CLR 1 at pp. 70-72. More particularly, McHugh J. states, 'Although detention under a law of the Parliament is ordinarily characterized as punitive in character, it cannot be so characterized if the purpose of the imprisonment is to achieve some legitimate non-punitive object’. Further he goes on to say in relation to a deprivation of a right to asylum seekers to seek release from custody, 'they have been deprived of that right not because the Parliament wishes to punish them but because it wishes to achieve the non-punitive object of ensuring that aliens who have no entry permit or visa are kept under supervision and control until their claims for refugee status or entry are determined’. On the non-punitive character of the detainment power also see Chu Kheng Lim v Minister of Immigration 176 CLR1 at p. 32.

30.	The facts disclosed by the affidavits indicate that there has been a more or less continuous process of determination over the past two years with more than one review. Affidavit evidence was given that the two Applicants were currently under a further review at the time of these applications as to their qualification for refugee status. It is acknowledged that without passports or other proper identity papers the process of inquiry is both painstaking and time-consuming by those who have such tasks. Nevertheless, it has always been open for those of the asylum seekers, who so wish, to leave Nauru. To that end, numbers have taken up offers of assistance to resume residence in their countries of origin. On this point, McHugh J. in Chu Kheng Lim’s case stated at p. 72, 'It is true that a designated person, having regard to his or her claim for refugee status, might regard the choice between detention and leaving the country as not a real choice. But for the purpose of the doctrine of the separation of powers, the difference between involuntary detention and detention with the concurrence or acquiescence of the “detainee” is vital. A person is not being punished if, after entering Australia without permission, he or she chooses to be detained in custody pending the determination of an application for entry rather than to leave the country during the period of determination’.

31.	The conditions imposed by the PIO in the special purpose visa were made within contemplated statutory limits pursuant to Section 9 of the Act, and Regulations 8(1)(g) and 12(4) given the subject matter, scope and purpose of the legislation. The conditions were not punitive. They were imposed for the better administration of refugee evaluation and in accordance with the wish of the Nauru government that the asylum seekers be not granted unlimited access to the Nauruan community but such access as may be accorded from time to time through the administration of the Office of the President. The conditions imposed by the PIO did not constitute a wrongful detention of the Applicants.

Article 5 of the Constitution

32.	At the Chambers hearing and at the hearing to show cause, I permitted the Applicants to reopen the question whether the Applicants had been illegally detained in terms of Article 5 of the Constitution although an earlier decision of mine, Mahdi and Ors. V. Director of Police (Unreported, 6 June 2003), had found that the conditions in the special purpose visa did not constitute an illegal detention. Though reticent to follow the course of reopening with such a recent and considered decision, I decided to accede to the Applicants in order to allow the development of full argument by the Applicants relating to their application grounds. As both the questions of habeas corpus and the Constitutional provision were addressed by the Applicants, I allowed supplementary submissions by the Respondent with reference to the Constitutional question.

33.	It was quite clear to me after hearing the submissions of both the Applicants and Respondent that there was no substance in the complaint, orally raised in argument, by the Applicants under Article 5(4) of the Constitution and I see no reason to reconsider my earlier decision that the asylum seekers entered and were accommodated on Nauru in accordance with the conditions contained in the special purpose visa and were not illegally detained in terms of Article 5(4). This view is strengthened by this decision in relation to the application for a writ of habeas corpus.

Conclusion

34.	Are the Applicants unlawfully detained now? This is the issue so far as habeas corpus is concerned.

The Applicants, arriving without passports or entry permits, were granted special purpose visas, which have been extended from time to time. The last extension, valid for six months, was issued on 28 January 2004 and at this present juncture, is the legal entitlement for the asylum seekers to remain in Nauru. The consent of or application by the Applicants was not a necessary requirement for the granting by the PIO of the visa. The conditions imposed by the PIO in the current extension of the special purpose visa did not constitute an illegal detention either for the purposes of the issue of a Writ of habeas corpus or a complaint under Article 5(4) of the Constitution.

The applications are dismissed and the Order Nisi is discharged.

I shall hear the parties on costs.

Barry Connell
CHIEF JUSTICE

31/05/2004