Case: Abbasi v Secretary of State [2002] EWCA Civ. 1598
Outcome: distinguished
is a clear line of authority that Mr Hicks is at present entitled to the benefit of this conclusion: see, as discussed above, Abbasi v Secretary of State [2002] EWCA Civ. 1598. Deprivation of liberty is prima facie unlawful, and until this is rebutted by evidence of lawful authority, the unlawfulness can be accepted. There is at present no such rebuttal evidence before me. Authorities support the proposition that in habeas corpus applications, the detaining party bears the onus of showing the lawfulness of that detention: Abbasi v Secretary of State [2002] EWCA Civ. 1598 at [66] (and cases cited therein); The King v Carter; Ex parte Kisch [1934] HCA 50 ; (1934) 52 CLR 221 at 227 per Evatt J; Regina v Governor of Brixton Prison; Ex parte Ashan (1969) 2 QB 222 at 233, 237, and 248; R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62; and, regarding the need for evidence, Greene v Home Secretary [1942] AC 824. See also Aronson, Dyer and Groves, Judicial Review of Administrative Action (3 rd ed., 2004) at 777-779. In answer to this, Mr Hicks submits that under the Australian Constitution , and in particular s 61 , the federal executive government owes a duty of protection to a citizen in the predicament of Mr Hicks. Although this protective duty cannot be enforced by Mr Hicks, it is a duty of imperfect obligation which must be taken into account in the respondents' consideration as to whether to make a request. It would be inconsistent with this duty of protection to take into account that Mr Hicks would not be prosecuted if returned. Due to this inconsistency, an inability to prosecute Mr Hicks in Australia or the likelihood that he may go free if returned cannot be relevant in the respondents' consideration as to whether the applicant should be protected by a request to the United States authorities to repatriate him from Guantanamo Bay back to Australia. Likewise, it is said, the respondents' purpose of further co-operating with the United States authorities in relation to the continued detention and prosecution of Mr Hicks in Guantanamo Bay is not consistent with the Executive's duty to protect a citizen. Therefore, the applicant submits, both of these considerations are extraneous to the protective duty. The function of the Executive under s 61 is to protect against and not enable the punitive detention and prosecution of an Australian citizen in a 'legal black hole', to use the terminology of the English Court of Appeal in Abbasi . Special attention should be given to a case which is similar in some respects to the current matter, and to which counsel for both Mr Hicks and the respondents gave attention. It considers many of the relevant principles and issues considered in this case. In Abbasi v Secretary of State [2002] EWCA Civ 1598 , the English Court of Appeal considered an application for relief by an English citizen detained at Guantanamo Bay naval base. Mr Abbasi was transported to that detention centre in January 2002 and by the time of the appeal hearing he had been in detention for eight months. He sought judicial review and an order to require the Foreign Office to make representations his behalf to the United States. Their Lordships at [66] and [107] twice expressed deep concern that in apparent contravention of fundamental principles of law, Mr Abbasi may be subject to indefinite detention by the United States authorities with no opportunity to challenge the legitimacy of his detention before any recognised court or tribunal. Their Lordships referred to what appeared to be 'a clear breach of a fundamental human right'. This latter expression echoes the language in Kuwait Airways . The Abbasi circumstances can be distinguished from the present case in the following respects. In the present case it is apparent that the position of Mr Hicks has not been advanced by these considerations of appellate review or intervention by the Commission which were outstanding at the time of the Court of Appeal decision. In this case, Mr Hicks has been in detention for over five years at the present time, and the original charges against him were invalid, as was the Military Commission. In Abbasi , the Court had the benefit of evidence from the Deputy Under Secretary of State for Foreign and Commonwealth Affairs as to the relationship between the British and United States governments. There is no evidence from the respondents on the present application to this effect. In this case, the application is to set aside the decision of the respondents not to make any request to intervene whereas in Abbasi the application sought an order that a specific representation should be made. In the present case, there is also an application for habeas corpus. In Abbasi , there was not; although their Lordships did acknowledge at [59]-[63] the great importance of the writ of habeas corpus as affording a swift remedy to all cases of illegal restraint or confinement. The grounds of the application for judicial review in this case are based on the irrelevant considerations ground. In Abbasi , this was not the basis of the review application. In this case, a submission is based on the meaning and reach of s 61 of the Australian Constitution . In Abbasi , of course, the principle of separation of powers in the concept of a written federal Constitution was not relevant. The Court at [57] observed that it did not need a statutory context in order to express a view in relation to what it conceived to be a clear breach of international law, particularly in the area of human rights. At [60] their Lordships affirmed the fundamental principle that in English law every imprisonment is prima facie unlawful and that the executive cannot interfere with the liberty of a British citizen except on the condition that it is possible to support the legality of the detention before a court of justice. This statement is important in the present case because it lends some support to the habeas corpus application by Mr Hicks. The Court said at [64]: 'For these reasons we do not find it possible to approach this claim for judicial review other than on the basis that, in apparent contravention of fundamental principles recognised by both jurisdictions and by international law, Mr Abbasi is at present arbitrarily detained in a "legal black hole.".' At [106], their Lordships note that while the discretion of the Foreign Office is a wide one there is no reason why its decision or inaction should not be reviewable where it can be shown to be 'irrational' or 'contrary to legitimate expectations'. However, they said that the expectations of a citizen to protection are limited and the discretion is a very wide one. Their Lordships referred to the existence of a 'forbidden area' which included the decisions affecting foreign policy. Nevertheless, they expressed the view that there was an obligation to consider the position of a particular British citizen, and that it seemed unlikely that such consideration of the extent to which some form of action might be taken on his or her behalf would impinge on any 'forbidden area'. The general way in which a decision could impact on foreign relations in this case could be the subject of evidence, as it was in Abbasi . The concept of a 'forbidden area' arguably states the position far too generally to be applied at face value, and such a broad proposition will not readily apply in Australia where executive power is vested by and subject to the limitations spelt out in s 61 of the Australian Constitution . These observations lend support to the case of Mr Hicks insofar as they refer to the consideration by the Secretary of State as involving all relevant factors being thrown into the balance. In Abbasi, the extent of the injustice was considered by their Lordships to be substantial, even where the internment had been a period of eight months and there appeared some prospect of alleviation of Mr Abbasi's predicament as a consequence of possible appellate review in United States courts and because of representations of the Inter-American Commission. In contrast, the injustice in this case could be seen to be substantially greater than that in Abbasi , given the internment of the applicant for over five years and the fact that there has been no alleviation of his predicament as a result of appellate review or representations by the Commission. It is common ground that if the respondents' summary judgment application is refused on the present pleading, it will be necessary to amend the current pleading to take account of significant new developments that have occurred since the Statement of Claim was filed on 6 December 2006. I agree that some wording in the Statement of Claim is imprecise and in other instances unclear. The defects as outlined in the submissions of the respondents are, however, capable of clarification and more precision. In particular, the introductory phrase in a number of crucial paragraphs, "there is no reason to suppose", is unclear. I would read those words, in the context of the paragraphs in which they appear, as indicating "it is likely that" or "there is a reasonable expectation that" Mr Hicks will be returned if a request is made.