Federal Court rejects application relating to the repatriation of 34 women and children from North-East Syria
Save the Children Australia v Minister for Home Affairs [2023] FCA 1343
Save the Children Australia v Minister for Home Affairs (No 2) [2023] FCA 1542
Summary
The Federal Court dismissed an application made by Save the Children Australia for habeas corpus of 34 women and children held in camps in North-East Syria finding that the Minister for Home Affairs and the Commonwealth of Australia did not have control over their detainment. However, the Court in a separate decision made no order as to costs, in an important decision on costs in public interest litigation.
Facts
On 16 June 2023, the applicant, Save the Children Australia (STCA), commenced proceedings against the respondents, the Minister for Home Affairs and the Commonwealth of Australia, regarding 34 women and their children detained in North-East Syria in camps (including the Al-Roj camp) by the Autonomous Administration of North East Syria (AANES) and/or its military wing the Syrian Democratic Forces (SDF). STCA is a registered charity described as "supporting children in need". The women and children are all Australian citizens, or eligible to become Australian citizens, who are related to, or wives and widows of, Islamic State fighters who are now dead or jailed.
The applicant's position was that the Australian government has the power, and an obligation, to remove the 34 women and children from the detainment camps and repatriate them to Australia.
The applicant sought a writ of habeas corpus to be issued against the respondents regarding the women and children, or alternatively, in respect of 31 of the 34 women and children who had authorised STCA to act on their behalf. The applicant argued that under such a writ, where it appears that the respondents have control over the detention of the relevant persons, or the Court entertains a doubt as to whether the respondents have control, the Court can use "the pressure of the writ" to test the truth of the respondent's assertion of a lack of control. The Federal Court has the power under section 23 of the Federal Court of Australia Act 1976 (Cth) to make such an order.
The respondents contended that the applicant did not have standing to bring the proceeding on behalf of the women and children who had not authorised STCA to act on their behalf.
The proceeding brought by the applicant was heard by the Federal Court of Australia on 26 and 28 September 2023. The Court handed down its judgement on 3 November 2023.
The proceeding focused on the applicant's assertion that the respondents had de facto control over the detention of the women and children (per R v Secretary of State for Home Affairs; ex parte O'Brien [1923] 2 KB 361 at 398; Rahmatullah v Secretary of State for Defence [2012] UKSC 48; [2013] 1 AC 614). There was no question between the parties that AANES and/or SDF were detaining the women and children, and that the detainment was prima facie unlawful as none of the women or children had been charged with a crime.
The applicant relied on three decisions of the United Kingdom courts; Bernardo v Ford [1892] AC 326; O'Brien and Rahmatullah. The Federal Court, in applying the above cases, found that the following propositions existed and applied them in its consideration of the proceeding before it (at [103]):
For a defendant or respondent to be amenable to a writ of habeas corpus, actual physical custody of the relevant person is not essential. It is sufficient if the defendant or respondent has control over the detention of the relevant person (O'Brien at [398]; Rahmatullah at [43], [90]-[91] and [109]);
The question of control is concerned with whether control exists in fact (as distinct from existing in law) (O'Brien at [398], Rahmatullah at [48]);
Control may be established where there is an agreement or arrangement between the person who is detaining the relevant person and the defendant/respondent whereby the relevant person will be handed over upon demand (O'Brien at [398]-[399]);
If the Court is satisfied that the relevant person is not in the custody or control of a defendant or respondent, a writ of habeas corpus should not be issued (Bernardo at [335], O'Brien at [391] and Rahmatullah at [109]); and
Where a defendant or respondent contends that they do not have custody or control over the relevant person, and the Court is left in doubt on the matter, it is open to the Court to use the "pressure of the writ" to test whether the defendant's or respondent's contention is correct (Barnardo at [339], O'Brien at [381], [392] and [399], Rahmatullah at [45], [60], [63]-[64], [92] and [110]).
In the alternative to arguing for the issue of a writ of habeas corpus, STCA sought judicial review on two bases:
That the Minister for Home Affairs, or another officer of the Commonwealth, had made a decision not to repatriate (or not seek to repatriate) the relevant women and children; and
As an alternative to the first argument, that the respondents had not made a decision whether or not to repatriate (or seek to repatriate) the relevant women and children in circumstances where they were required to make such a decision.
Decision
The Court found that, on the balance of probabilities, the relevant women and children were not in the custody or control of the respondents.
The Court gave considerable deliberation to the process followed by the respondents in 2022 when 17 Australian citizen women and children were repatriated from the Al-Roj camp. The process in 2022 involved:
The Australian Government, through a co-ordinated Joint Agency Taskforce led by the Department of Home Affairs (DFAT) making an official request to the Head of the Office of External Relations of AANES to repatriate the women and children;
AANES agreeing to the request for repatriation of the women and children, subject to compliance with procedural requirements;
AANES imposing certain procedural requirements, which the Australian Government agreed to and complied with, including that a repatriation document be signed by a representative of the Australian Government and that the head of the visiting delegation make a short media statement as set out in the repatriation procedures documents thanking the AANES for its cooperation and for facilitating the process of repatriation and providing care for its citizens during their presence in the AANES region;
DFAT and the External Affairs Office of AANES liaising via meetings and email correspondence regarding the details of the arrangements for the repatriation; and
DFAT officials meeting with AANES who released the 17 women and children to the Australian Government for repatriation to Australia.
These women and children were described as 'Cohort 1', suggesting an expectation or proposal that further repatriations would be requested, and certain meeting notes in the above process referred to 'the plan to repatriate further groups of women and children'. Despite this, the Court found that the women and children who were the subject of the current proceedings were in the custody of AANES and/or SDF, and that there was no agreement or arrangement reached by AANES and the Australian Government regarding the repatriation of other women and children from the Al-Roj camp. Accordingly, the Government had no control over the detainment.
The Court found that the respondents did not seem to be taking steps to repatriate the women and children remaining in the Al-Roj camp and that AANES and SDF leaders have publicly stated they would like countries to repatriate citizens held in camps under their control. However, the Court accepted that the evidence also established that if the respondents made a request for the repatriation of some or all of the Australian women and children held in the Al-Roj camp, it is likely that AANES would agree to their repatriation and co-operate to achieve that repatriation, subject to compliance with its procedural requirements. The Court did however warn against assuming that the AANES would agree to such a request.
The Court further considered the applicant's alternative submissions for judicial review:
On the first basis, the Court considered correspondence between the applicant and the Minister for Home Affairs in which the applicant asked that the Commonwealth executive make a decision to repatriate the remaining women and children, equivalent to the 2022 repatriation decision. The Court found that, although the Minister had responded to this request informing the applicant that it was unable to respond to the request, and that the Australian Government did not seem to be taking steps to repatriate the remaining women and children in the Al-Roj camp, there was no evidence that a decision not to repatriate the women and children was made. The Court accepted evidence in an affidavit of Ms Ciara Spencer, the First Assistant Secretary of the Consular and Crisis Management Division within DFAT, which stated that:
"I haven't been directed on the timing of any possible or future repatriation of the remaining Australian women and children. Nor have I been informed that a decision not to repatriate the remaining Australian women and children has been made."
On the second basis, STCA contended that the respondents failed to make a decision regarding whether or not to repatriate (or seek to repatriate) the relevant women and children in circumstances where they were required to make such a decision. STCA sought a mandamus or injunction compelling the Minister for Home Affairs, or an appropriate officer of the Commonwealth, to consider STCA's letter which requested that the respondents decide whether or not to repatriate the relevant women and children on the authority that, in principle, Australian citizens have a right to return to Australia. The applicant referred to Hicks v Ruddock [2007] FCA 299, C3 v Secretary of State for Foreign, Commonwealth & Development Affairs [2023] EWCA Civ 444; [2023] 3 WLR 529 and R (Abbasi) v Secretary of State for Foreign & Commonwealth Affairs [2002] EWCA Civ 159 in support of its contention that it is incumbent on the respondents to make such a decision. The Court found that Abbasi merely established that the Foreign Secretary had to give due consideration to a request for consular assistance, and that the respondents were not under a legal obligation to make a decision regarding whether or not to repatriate the relevant women and children.
Ultimately, the Court ordered the application be dismissed and the parties agree on costs. When the parties were unable to agree on costs, the matter returned to the Federal Court on 7 December 2023 (in Save the Children Australia v Minister for Home Affairs (No 2) [2023] FCA 1542). On this occasion, STCA sought an order that each party bear its own costs, and the respondents sought an order that STCA pay the respondents' costs, to be fixed on a lump sum basis if not agreed.
The submissions made by the parties were as follows:
the applicant submitted that due to discretionary factors, including that the proceeding raised a novel and important question of law concerning de facto control in proceedings for a writ of habeas corpus, there was substantial public interest in bringing the case and that the application was brought for an entirely altruistic purpose. The applicant relied on Ruddock v Vadarlis (No 2) [2001] FCA 1865; 115 FCR 229 at [9] and [28], and sought to distinguish from Te v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 15; 204 ALR 497 at [81]; and
the respondents submitted there was no general rule that those who institute proceedings involving a matter of public interest are exempted from the usual order as to costs per Animals Angels' eV v Secretary, Department of Agriculture [2014] FCAFC 173; 228 FCR 35 at [130] and Australian Vaccination-Risks Network Incorporation v Secretary, Department of Health (No 2) [2022] FCA 706 at [9]. Additionally, the respondents argued that there is no test or exhaustive set of considerations that govern where an applicant may avoid costs orders in pursuit of "public interest" litigation, and referred to authorities collected in DBE17 v Commonwealth (No 2) [2018] FCA 1793 at [22].
The applicant was unsuccessful in its claim, and the usual position would be that it had to pay the costs of the respondents. However, the Court found that there were discretionary factors akin to those relied on in Ruddock v Vadarlis (No 2) [2001] at [28]-[29]. These included that:
the proceeding raised novel and important questions of law concerning the liberty of the individual and amenability of a respondent to the writ of habeas corpus;
the oral and written submissions of the parties demonstrated that the legal questions were difficult;
the case was brought on behalf of certain Australian women and children who are being detained in camps in North-East Syria in circumstances where the Australian Commonwealth had previously repatriated women and children in similar circumstances, establishing a factual foundation for the applicant's proceeding;
there was no financial gain to the applicant in bringing the proceeding. STCA is a charitable organisation and had STCA not brought the case, it was extremely unlikely that the women and children would be in a position to bring the application in their own right given their current circumstances;
the applicant brought the claims in good faith following an extensive period of correspondence with the Commonwealth; and
the legal representation for STCA was provided free of charge or (in the case of junior counsel) on the basis of a conditional costs agreement.
In light of the above, the Court ordered that each party bear its own costs of the proceeding.
Commentary
This case reiterates the authority in R (Abbasi) v Secretary of State for Foreign & Commonwealth Affairs [2002] EWCA Civ 159 that the Foreign Secretary may be required to give due consideration to a request for consular assistance, but there is no obligation on the Commonwealth to decide whether or not to repatriate citizens.
Significantly, this case provides guidance for future considerations of habeas corpus applications relating to Australian citizens being detained overseas. In similar circumstances, special attention should be given to any promises or agreements that the Australian Government has made in relation to repatriation, as these are likely to aid an application. In circumstances where no agreement exists, and no promises have been made, it is unlikely that the Government will be 'in control' of the detainment, or could be said to have made a decision in relation to repatriation, and an application for a writ of habeas corpus will fail.
The full decision in Save the Children Australia v Minister for Home Affairs [2023] FCA 1343 can be read here.
The full decision in Save the Children Australia v Minister for Home Affairs (No 2) [2023] FCA 1542 can be read here.