SDAE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 959 (11 September 2003)

Last Updated: 22 September 2003

FEDERAL COURT OF AUSTRALIA

SDAE v Minister for Immigration & Multicultural & Indigenous Affairs 

[2003] FCA 959

IMMIGRATION - application to restrain removal of unsuccessful protection visa applicant - claim removal would constitute refoulement contrary to Art 33 of the Refugees Convention - application for summary dismissal of application - consideration of M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131 and NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 185 - significance of allegation that refoulement would contravene Art 3 of Convention against Torture - application summarily dismissed.

Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth)

SDAE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 111 cited

NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 761 considered

M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131 followed

SAAK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 921 cited

NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 185 considered

General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69; (1994) 112 CLR 125 followed

SDAE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 587 OF 2003

MANSFIELD J

11 SEPTEMBER 2003

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 587 OF 2003

BETWEEN:	SDAE APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	11 SEPTEMBER 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application is dismissed pursuant to Order 20 rule 2 of the Federal Court rules.

2. Upon the applicant through counsel undertaking to proceed with his proposed appeal from order 1, the applicant is given leave to appeal from order 1.

3. The respondent is restrained from removing the applicant from Australia until the hearing and determination of his proposed appeal or until the Court or a judge otherwise orders.

4. The respondent is given leave to appeal from order 3.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 587 OF 2003

BETWEEN:	SDAE APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	11 SEPTEMBER 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 On 14 July 2003 the applicant sought an order pursuant to s 39B of the Judiciary Act 1903 (Cth) restraining the respondent from returning the applicant to Iran. The statement of claim alleges that the return of the applicant to Iran would involve threat to his life or freedom by reason of his religion, membership of a particular social group or political opinion. Particulars are given. Consequently, it is alleged, his return to Iran would constitute refoulement of the applicant contrary to Australia's obligations under Art 33 of the Refugees Convention as amended by the Refugees Protocol (the Convention).

2 On 25 July 2003 the respondent applied under O 20 r 2 of the Federal Court Rules to have the application summarily dismissed as it disclosed no reasonable cause of action. Essentially, the ground of that application is that the applicant had unsuccessfully pursued a claim for a protection visa under the Migration Act 1958 (Cth) (the Act) following his arrival in Australia on 31 December 2000. He lodged an application for a protection visa on 13 February 2001. His application was refused by a delegate of the respondent on 16 March 2001, and subsequently by the Refugee Review Tribunal (the Tribunal) on 15 May 2001. He sought judicial review of that application or decision of the Tribunal. His application was refused: see SDAE v Minister for Immigration & Multicultural Affairs [2002] FCA 1583. An appeal from that decision was also dismissed: see SDAE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 111. The applicant has sought special leave to appeal to the High Court from the decision of the Full Court, by application made on 24 June 2003. The application has not yet been heard.

3 Consequently, it is contended by the respondent that the applicant's removal from Australia and his return to Iran will not constitute refoulement contrary to Art 33 of the Convention because, under the structures for decision-making provided under the Act, it has already been determined that he does not fall within the definition of refugee under the Convention, and his attempt to judicially review the decision of the Tribunal to that effect has been unsuccessful. It is also argued that, because the removal of the applicant from Australia is to be implemented under s 198(6) of the Act, there is no express or implied limitation on the obligation imposed by s 198(6) of the Act which would prevent its exercise in circumstances that might amount to refoulement. In particular, the respondent contends that Art 33 of the Convention does not impose any limitation upon the exercise of the power or the fulfilment of the obligation imposed by s 198(6) of the Act.

4 There are allegations in the amended statement of claim which have not been the subject of consideration by the Tribunal in its determination of whether the applicant is a refugee as defined under the Convention and so entitled to a protection visa under the Act, and so have not been considered in the context of whether therefore his return to Iran would constitute refoulement contrary to Australia's obligations under Art 33 of the Refugees Convention.

5 Since his arrival in Australia, the applicant has been charged, but not convicted, of criminal offences committed allegedly whilst in detention. It is alleged that his involvement in those matters was widely reported in Iran through the media, and that he had disgraced the Islamic nation of Iran. It is asserted that his family in Iran had been harassed, imprisoned and interrogated by the Sepah in Iran because of his activities, in part whilst in detention in Australia. It is also alleged that an Australian citizen of Iranian origin, in early 2001, visited Iran and was arrested as she attempted to leave Iran to return to Australia. She was then told that the Iranian police were aware of the applicant through the media in Iran and that he would be killed upon his return to Iran. It is further alleged:

`The Applicant, due to a combination of to [sic] his father's political profile, the incidents in Iran that caused him to be imprisoned and subsequently flee Iran and the high profile that he now has in Iran fears that should he be returned to Iran he would be persecuted and sentenced to imprisonment or death.

The return of the Applicant to Iran will constitute refoulement of that Applicant contrary to Australia's obligations under Art 33 of the Convention relating to the Status of Refugees in the 1967 Protocol Relating to the Status of Refugees.

Further the return of the Applicant to Iran will constitute refoulement of the Applicant contrary to Australia's obligations under Article 3 of the Convention Against Torture.'

6 For the purposes of considering the application, the facts alleged in the statement of claim should be accepted. There is an affidavit from the Australian citizen referred to in the amended statement of claim confirming the events to which the amended statement of claim refers.

7 The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention) provides relevantly in Art 3:

`1. No state party shall expel, return (refouler), or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the state concerned of a consistent pattern of gross, flagrant or mass violations of human rights.'

Australia is a signatory to the Torture Convention from 10 December 1985 and that it `entered into force for Australia' on 7 September 1989.

8 In circumstances similar to the present in NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 761, Stone J summarily dismissed an application of like nature. Her Honour felt obliged to follow the decision of the Full Court in M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131. Her Honour described the effect of M38/2002 as determining that the obligation imposed on an officer under s 198(6) is not discretionary, so that the power to remove must be exercised as soon as reasonably practicable once the requirements of s 198(6) have been met. As her Honour noted the Full Court (Goldberg, Weinberg and Kenny JJ) in M38/2002 at [54] said:

`... s 198(6) does not give an officer a choice. He or she is obliged to remove a person from Australia if the conditions set out in the provision are satisfied ...'

and at [72]:

`... it is not open to an officer to consider whether an unlawful non-citizen is a "refugee" within the meaning of Art 1A(2) of the Refugees Convention. Nor is it open to an officer to consider whether his or her removal and return to a particular country is conformable with the obligation against non-refoulement in Art 33(1) of the Refugees Convention.'

Her Honour expressed herself as in agreement with the Full Court's analysis in M38.

9 In NATB the applicant attempted to avoid the apparent consequence of applying the decision in M38/2002 on the ground that he had applied to the respondent for the exercise of his discretion under s 48B of the Act, that is for permission in the public interest to permit the applicant to make a further application for a protection visa notwithstanding s 48A of the Act which precludes such an application. As her Honour noted, such an application had already been made and refused in M38/2002. In NATB an application had been made but not decided. Her Honour did not regard that circumstance as indicating that the ratio of the decision in M38/2002 did not apply.

10 In the present matter, there has been no application under s 48B or under s 417 seeking the Minister to substitute a decision more favourable to the applicant than the decision of the Tribunal.

11 Nevertheless, in respect of those provisions, the Full Court in M38/2002 said at [80]:

`The Act accommodates the possibility that there may have been some relevant change in the circumstances of the detainee vis a vis his country of origin in the time elapsing between the refusal of a visa, including a protection visa, and the time for his removal, by the provisions in ss 48B and 417 of the Act. In permitting the Minister to substitute a decision more favourable to a refugee claimant than the decision of the Tribunal, s 417 also allows the Minister to grant a visa upon humanitarian grounds, or to cure error on the Tribunal's part. The Act entrusts the discretionary powers referred to in ss 48B and 417 to the Minister personally, and stipulates that the Minister is under no duty to consider whether to exercise them (ss 48B(6) and 417(7)). In this context, it would be contrary to the evidence scheme of the Act to construe s 198(6) as enabling an officer to consider a detainee's claim for refugee status or whether his or her return to a country of origin would constitute a breach of an obligation against non-refoulement, arising under Art 33(1) of the Refugees Convention or elsewhere under international law.'

12 Consequently, in my judgment, the decision of the Full Court in M38/2002 is directly on point and should be followed by me. In that event, it would mean that the applicant, having had his application for a protection visa finally determined within the meaning of s 5(9) of the Act, is not entitled on this application to revisit the decision that he is not a refugee, and consequently he is not entitled to raise a factual issue that to return him to Iran would constitute refoulement in contravention of Art 33(1) of the Convention. I indicated my respectful agreement with the reasons of the Full Court in M38/2002 in SAAK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 921, although of course it is not for me to agree or disagree with their Honours' reasons as I am bound by them. Moreover, as in NATB, the requirement in s 198(6)(d) which requires that the non-citizen has not made another valid application for a substantive visa is also satisfied.

13 Accordingly, subject to one qualification, in my judgment the decision in M38/2002 is binding. There is no relevant difference between the circumstances before me and those before the Full Court in M38/2002.

14 Counsel for the applicant pointed out that leave to appeal from the decision of Stone J in NATB was given by the Full Court on 15 August 2003: NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 185. That leave to appeal having been given, I am informed that the appeal is listed for hearing on 24 October 2003.

15 The Full Court in NATB was not called upon to determine the proper construction of s 198(6) of the Act, but to consider whether the decision from which leave to appeal was sought is attended with sufficient doubt to grant leave, in circumstances where substantial injustice would result if leave were refused: see at [15]. Having considered the scope of the decision in M38/2002, their Honours said:

`Therefore, arguably at least, the distinction between M38/2003 and the present case is that in the latter there has not been the complete working out of the administrative and judicial decision making machinery provided for the determination of refugee status that occurred in M38/2003 and that, perhaps more importantly, the Full Court in M38/2003 did not consider the relevance of the Torture Convention (although it had been pleaded).

It is to be noted that the operation of s 198(6) is not confined to unlawful non-citizens who have unsuccessfully applied for a protection visa; such persons may have applied for any substantive visa. M38/2003 turned on the fact that the appellant had applied for a protection visa, had exhausted the special administrative and judicial remedies available to unsuccessful applicants for protection visas, but was arguing that the s 198(6) officer should not remove him from Australia because he was a refugee within the meaning of the Refugees Convention. That the Full Court rejected his appeal does not deny that there may be judicial review remedies for persons claiming that removal is not reasonably practicable on grounds which do not amount to a re-run of a protection visa application.

In the passages already quoted, the Full Court in M38/2003 makes it clear that what is "reasonably practicable" is not confined literally to the capacity of the officer to put the unlawful non-citizen on an aircraft or ship leaving Australia. What is likely to happen at the destination may be relevant. Therefore, it might be said, if misfortune such as earthquakes, plague and anarchy are relevant, why not torture?'

16 It is of course necessary to consider and give effect to that decision, to the extent to which it is relevant to the present application. Their Honours said in the passage at the end of the penultimate paragraph cited in the preceding paragraph that M38/2002 did not exclude judicial review remedies on grounds which `do not amount to a re-run' of a protection visa application.

17 They then went on to point out that the concept of what is `reasonably practicable' may extend beyond the capacity of the officer in Australia to remove the applicant, and may involve consideration of what may or is likely to happen at the proposed destination. As can be seen, their Honours then asked the rhetorical question (on the basis that it may be arguable) that if misfortune at destination such as earthquakes, plague and anarchy are relevant: `why not torture?'

18 Their Honours concluded that, because the strike out application proceeded on the assumption that the facts alleged by the applicant are true, and having regard to the consequences if those facts are proved, it was reasonably arguable, without expressing any final view on the merits, to consider that it was an appropriate case for the grant of leave to appeal. The available argument is that referred to in the ultimate paragraph of the quotation in [14] above.

19 It is axiomatic that the Court should not grant the summary relief sought unless the claim is obviously untenable: see General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69; (1994) 112 CLR 125 at 129. In my judgment, following the decision of the Full Court in M38/2002 it is not permissible to seek on an application such as the present to `re-run' a protection visa application. In large measure that is what the applicant is seeking to do. To the extent to which his application by his statement of claim alleges facts which go to events which occurred subsequent to the hearing and determination of his protection visa application, I do not think the position is any different. It is claimed from the statement of claim that the applicant's concern is that due to some one or more of his father's political profile, the incidents in Iran that caused him to be imprisoned and subsequently flee Iran, and/or the high profile that he now has in Iran (because of misconduct or alleged conduct whilst he has been in detention in Australia), should he be returned to Iran, he would be persecuted and sentenced to imprisonment or death. His claim is expressed in terms of Art 33 of the Convention, and is not independent of it. Moreover, the Full Court in M38/2002 has rejected the claim that there is some difference where the bases upon which it is claimed that the applicant is a refugee, so that refoulement might contravene Art 33(1) of the Convention, is not material addressed when the protection visa application was considered. Their Honours held that the decision-maker under s 198(6) is not entitled to consider whether the claim of contravention of Art 33 of the Convention, whether it is based upon events which have already been the subject of consideration by a delegate of the respondent or the Tribunal, or relates to events which might warrant an application for the respondent under s 48B to make a further protection visa application notwithstanding s 48A of the Act, or which might warrant an application to the Minister under s 417, even if those events are said to have occurred after the determination of the protection visa application.

20 As the present claim is clearly expressed in terms which, if made out, involve refoulement of the applicant contrary to Art 33 of the Convention, I think the reasons of the Full Court in granting leave to appeal in NATB must be read as relating to circumstances relevant to reasonable practicability remote from circumstances relevant to the existence or otherwise of an entitlement to a protection visa, or to circumstances which, if established, would entitle the applicant to a protection visa. I accept that there is scope for a contrary argument to be derived from the concluding part of the reasons of the Full Court in NATB to which I have referred but, as counsel for the applicant acknowledged, the argument he seeks to present is that s 198(6) requires the decision-maker effecting the removal to have regard to the conditions in the country of proposed removal including conditions which would (if established) render the applicant a refugee under the Convention. In my judgment M38/2002 has decided that such considerations are not ones which can be addressed by the officer determining whether it is reasonably practicable to remove a person under s 198(6) of the Act.

21 Accordingly, I consider that the motion to summarily dismiss the application should succeed and the application itself be dismissed.

22 However, for reasons which attracted themselves to the Full Court in NATB, and as counsel for the applicant indicated that he had instructions to seek leave to appeal in the event of such a determination, I propose to grant leave to appeal from the decision which I have just announced. I will do so upon the condition that the applicant, through counsel, undertakes to pursue with all due expedition the proposed appeal. Moreover, following the practice of the Court in similar matters, I make an order restraining the respondent from removing the applicant from Australia pending the hearing and determination of the proposed appeal or until the Court or a judge may otherwise order. I will also give leave to the respondent to appeal from the restraining order just made.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 11 September 2003

Counsel for the Applicant:	Mr P Charman
Solicitor for the Applicant:	Refugee Advocacy Service of South Australia
Counsel for the Respondent:	Ms S Maharaj
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 September 2003
Date of Judgment:	11 September 2003