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Cases

MIGRATION - removal of unlawful non-citizen from Australia - duty of officer to remove the non-citizen `as soon as reasonably practicable' - whether this qualification imposes an obligation on the officer to consider any prospective persecution or torture of the non-citizen in the country to which he or she is removed.

NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2

NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 (16 December 2003)
Last Updated: 16 December 2003


FEDERAL COURT OF AUSTRALIA
NATB v Minister for Immigration & Multicultural

& Indigenous Affairs [2003] FCAFC 292


MIGRATION - removal of unlawful non-citizen from Australia - duty of officer to remove the non-citizen `as soon as reasonably practicable' - whether this qualification imposes an obligation on the officer to consider any prospective persecution or torture of the non-citizen in the country to which he or she is removed.

Migration Act 1988 (Cth) ss 5, 14, 48B, 198, 351, 417

M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290 discussed and followed

NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 185 referred to

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 applied

Uebergang v Australian Wheat Board (1980) 145 CLR 266 discussed

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte SE (1998) 158 ALR 735 agreed with

Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24 discussed

NATB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS - N 1294 of 2003

SAAK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS - S 633 of 2003

SDAE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS - S 779 of 2003

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v SDAE - S 780 of 2003

WILCOX, LINDGREN AND BENNETT JJ

16 DECEMBER 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
N 1294 OF 2003







ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
NATB

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
WILCOX, LINDGREN AND BENNETT JJ


DATE OF ORDER:
16 DECEMBER 2003


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

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 633 OF 2003




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
SAAK

APPELLANT


AND:

AND BETWEEN:

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

CROSS-APPELLANT

SAAK

CROSS-RESPONDENT




JUDGES:
WILCOX, LINDGREN AND BENNETT JJ


DATE OF ORDER:
16 DECEMBER 2003


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The cross-appeal be dismissed.

3. The appellant pay the respondent's costs of the appeal.

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 799 OF 2003




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
SDAE

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
WILCOX, LINDGREN AND BENNETT JJ


DATE OF ORDER:
16 DECEMBER 2003


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

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 780 OF 2003




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

APPELLANT


AND:
SDAE

RESPONDENT




JUDGES:
WILCOX, LINDGREN AND BENNETT JJ


DATE OF ORDER:
16 DECEMBER 2003


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
N 1294 OF 2003




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
NATB

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
S 633 OF 2003




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
SAAK

APPELLANT/CROSS-RESPONDENT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT/CROSS APPELLANT




IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
S 799 OF 2003




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
SDAE

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
S 780 OF 2003




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

APPELLANT


AND:
SDAE

RESPONDENT




JUDGES:
WILCOX, LINDGREN AND BENNETT JJ


DATE:
16 DECEMBER 2003


PLACE:
SYDNEY





REASONS FOR JUDGMENT
THE COURT:

1 These four appeals, each involving the Minister for Immigration and Multicultural and Indigenous Affairs (`the Minister'), were heard together.

2 Three of the appeals were brought by persons who are, in the words of the Migration Act 1958 (Cth) (`the Act'), `unlawful non-citizens'. Those three persons are respectively named, pursuant to s 91X of the Act `NATB', `SAAK' and `SDAE'. Each of those appeals raises an issue as to the proper construction of subs 198(6) of the Act. That subsection casts upon an `officer' the duty to remove an unlawful non-citizen from Australia `as soon as reasonably practicable'.

3 The primary dispute between the parties concerns the extent (if any) to which those words allow an officer to consider the possibility (even certainty) that the unlawful non-citizen will suffer persecution or torture (even death) in the country to which he or she is removed.

4 The fourth appeal was brought by the Minister against an order made by Mansfield J restraining the Minister from removing SDAE from Australia pending determination of his appeal. No submissions were put to us about the order. It has now run its course. We will dismiss that appeal, with no order as to costs.

The statutory provisions

5 Section 198(6) of the Act is as follows:

`(6) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is a detainee; and

(b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c) one of the following applies:

(i) the grant of the visa has been refused and the application has been finally determined;

(ii) the visa cannot be granted; and

(d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.'

6 The word `officer' is widely defined for the purposes of the Act. Subsection 5(1), includes the following definition of the word:

`a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or
(b) a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or

(c) a person who is a protective service officer for the purposes of the Australian Protective Service Act 1987, other than such a person specified by the Minister in writing for the purposes of this paragraph; or

(d) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or

(e) a member of the police force of an external Territory; or

(f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or

(g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.'

7 The expression `unlawful non-citizen' is defined in subs 5(1), by reference to s 14, to mean any non-citizen in the migration zone who is not a lawful non-citizen. Section 13 defines `lawful non-citizen' as, relevantly, `[a] non-citizen in the migration zone who holds a visa that is in effect'. Accordingly, an unlawful non-citizen is a non-citizen in the migration zone who does not hold a visa that is in effect.

8 The word `detainee' is defined in subs 5(1) to mean `a person detained'. The verb `detain' is there defined to mean:

`(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention ...'.

The expressions `immigration detention' and `migration zone' are also defined in subs 5(1), but we need not discuss those definitions.

9 In substance, a `visa' is defined to mean a permission granted by the Minister to a non-citizen to travel to and enter Australia, to remain in Australia, or to do both: see subs 5(1), s 29. Since subs 198(6) is concerned with non-citizens who are in the migration zone, it is the permission to remain in Australia that is relevant.

10 A `substantive' visa is defined in subs 5(1) to mean a visa other than a bridging visa, a criminal justice visa or an enforcement visa. We need not discuss those three classes of visa.

11 The Act provides a regime for the making and determination of applications for visas (Division 3 of Part 2). Decisions about such applications are reviewable by the Migration Review Tribunal (Part 5 of the Act) or by the Refugee Review Tribunal (`RRT' - Part 7 of the Act). The decisions of both Tribunals are reviewable, on limited grounds, in a court.

12 Subsection 5(9) of the Act provides that, for the purposes of the Act, an application is finally determined when either:

`(a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or
(b) a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.'

13 The appeals concern the proper construction of the verb `remove', and, perhaps more importantly, its qualifier `as soon as reasonably practicable'. The appeals raise the issue whether death, torture, persecution or other mistreatment of an unlawful citizen which is likely, or even almost certain, to occur after he or she is removed from Australia to another country, is to be taken into account for the purpose of determining whether it is `reasonably practicable' to `remove' him or her from Australia. For the reasons given below, in our opinion, those matters are not to be taken into account for that purpose.

THE PROCEEDINGS

The appeal of NATB

14 NATB is a national of Algeria. He arrived in Australia on 4 May 2001. On 10 May 2001, he applied to the Department of Immigration and Multicultural Affairs (`the Department') for a protection visa under the Act. On 24 July 2001, a delegate of the respondent, the Minister, refused to grant a protection visa. On the same day, a migration agent, who had been acting for NATB, applied on his behalf to the RRT for review of the delegate's decision. He was apparently unaware that, two days earlier, NATB had escaped from the detention centre where he had been detained.

15 On 15 August 2001, the migration agent wrote to the RRT stating that the application for review lodged on 24 July 2001 had been lodged in error and should be withdrawn. On 27 August 2001, the RRT, accepting that the application for review had been lodged without NATB's authority, decided, by reference to s 414 of the Act, that it did not have jurisdiction to review the delegate's decision.

16 On 6 February 2003, NATB was returned to immigration detention. He has remained in detention since that date.

17 On 2 July 2003, NATB was notified of the Department's intention to remove him from Australia.

18 On 7 July 2003, NATB lodged an application in this Court seeking an injunction restraining the Minister from removing him from Australia and returning him to Algeria. The form of application stated the grounds of the application as follows:

`1. The Applicant is a citizen of Algeria who is at present in Australia and who is unwilling to return to Algeria owing to a well-founded fear of persecution in Algeria.
2. The Respondent threatens and intends to return the Applicant to Algeria.

3. If the Applicant is returned to Algeria, my life or freedom would be threatened on account of persecution by the government, and also by armed Islamic militants who have kidnapped and tortured me.

4. The return of the Applicant to Algeria will constitute refoulement of the Applicant, contrary to Australia's obligations under Article 33 of the Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.

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

6. In the circumstances, the Respondent is neither required nor authorised to return the Applicant to Algeria.'

19 The last three grounds refer to the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the 1967 Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously `the Refugees Convention'), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984 (`the Torture Convention'). Australia acceded to the Refugees Convention on 22 January 1954, with effect on 22 April 1954, and to the Refugees Protocol on 13 December 1973, with effect on and from that date. Australia acceded to the Torture Convention on 10 December 1985 with effect on and from 7 September 1989.

20 On 10 July 2003 the Minister filed a notice of motion seeking an order under O 20 r 2 of the Federal Court Rules dismissing the proceeding as disclosing no reasonable cause of action.

21 On 18 July 2003, Stone J made that order: see [2003] FCA 761. Her Honour thought she was bound to do so by the Full Court decision in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290 (`M38'), with which, in any event, she expressed her agreement. Her Honour noted that, in M38, the Full Court had observed (at [54]) that subs 198(6) does not give an officer a choice and obliges him or her to remove an unlawful non-citizen provided the conditions set out in the subsection are satisfied. Her Honour quoted M38 (at [72]) as follows:

`... 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.'
22 Stone J noted that the 28-day period allowed, by s 412 of the Act, for NATB to apply to the RRT for review of the delegate's decision had expired; and that, by reason of s 48A of the Act, it was not open to NATB to make a further application for a protection visa while in the migration zone.

23 Finally, her Honour declined NATB's invitation to distinguish M38 on the basis that there was an unresolved application by NATB to the Minister, under s 48B of the Act, for a determination that s 48A not apply to him. In M38, a similar application had been made and refused.

24 NATB applied for leave to appeal. On 26 July 2003 Branson J made directions in relation to that application and granted an injunction restraining the Minister from removing NATB until further order.

25 On 15 August 2003, a Full Court (Heerey, Finn and Conti JJ) granted NATB leave to appeal against Stone J's summary dismissal of his application: see NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 185. The Full Court noted (at [22]) that, in M38, it had been made 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, and that what is likely to happen at the destination point may be relevant. The Full Court asked rhetorically (at [22]):

`Therefore, it might be said, if misfortune such as earthquakes, plague and anarchy are relevant, why not torture?'
Their Honours thought that M38 was arguably distinguishable on two grounds: first in that case, there had been a complete working out of the administrative and judicial decision-making machinery; and, second, the Full Court in that case did not consider the relevance of the Torture Convention. Noting that:

* NATB's case was no more than that the primary judge was arguably wrong in holding that NATB had no reasonable cause of action ;

* NATB was two removes away from having to establish conclusively that his substantive case should be accepted (at [15]); and

* the consequences for NATB were serious,

their Honours granted leave to appeal. They stated they were not expressing any final view on the merits of NATB's case.

The appeal of SAAK

26 SAAK is a citizen of Iran. He arrived in Australia on 14 February 2000. On 10 July 2000, he lodged with the Department an application for a protection visa. On 14 September 2000, a delegate of the Minister refused this application. On 25 September 2000, SAAK applied to the RRT for review of the delegate's decision. On 11 December 2000, the RRT affirmed that decision.

27 On 9 January 2001, SAAK sought judicial review of the RRT's decision. On 8 May 2001 a judge of the Court dismissed that application ((2001) 110 FCR 416). SAAK appealed against that dismissal but, on 28 March 2002, a Full Court dismissed his appeal ([2002] FCAFC 86).

28 On 26 August 2003, SAAK's solicitor learned that the Department intended to remove SAAK from Australia. On the same day, SAAK commenced in the Court a proceeding, under s 39B of the Judiciary Act 1903 (Cth), seeking a permanent injunction preventing his removal from Australia. SAAK also sought an interlocutory injunction restraining the Minister from removing him from Australia and returning him to Iran, pending hearing and determination of his substantive application.

29 The application for the interlocutory injunction was heard and determined by Mansfield J on 27 August 2003 ([2003] FCA 921). His Honour refused to grant interlocutory relief but granted SAAK leave to appeal from that decision. On an undertaking by SAAK, through his counsel, to institute and prosecute the appeal with all due expedition, his Honour granted an injunction restraining the Minister from removing SAAK from Australia until the hearing and determination of the appeal. SAAK remains in immigration detention.

30 SAAK's notice of appeal was filed on 5 September 2003. On 26 September 2003, the Minister filed a notice of cross-appeal against the primary judge's grant of the interlocutory injunction precluding SAAK's removal from Australia pending the hearing and determination of the appeal.

The appeals involving SDAE

31 SDAE is also a citizen of Iran. He also is in immigration detention. SDAE arrived in Australia on 31 December 2000. On 13 February 2001, he lodged an application with the Department for a protection visa. On 16 March 2001, a delegate of the Minister refused to grant such a visa. On 20 March 2001, SDAE applied to the RRT for review of that decision. On 15 May 2001, the RRT affirmed the delegate's decision.

32 On 4 June 2001, SDAE applied for judicial review of the RRT's decision. On 20 December 2002, a judge of the Court dismissed SDAE's application ([2002] FCA 1583). SDAE appealed against that dismissal but, on 28 May 2003, a Full Court dismissed the appeal ([2003] FCAFC 111). On 24 June 2003, SDAE filed in the High Court an application for special leave to appeal to that Court. The application for special leave is still pending.

33 Apparently SDAE learned of a proposal to remove him to Iran. On 14 July 2003, SDAE lodged an application for an order, pursuant to s 39B of the Judiciary Act 1903 (Cth), restraining the Minister from doing so. He also sought similar relief on an interlocutory basis, pending the hearing and determination of the substantive application. In his amended statement of claim, SDAE alleged that, by reason of certain facts pleaded therein, he fears that, if he should be returned to Iran, he would be persecuted and sentenced to imprisonment or death. He claims his return to Iran would constitute refoulement, contrary to Australia's obligations under Art 33 of the Refugees Convention and Art 3 of the Torture Convention, so that `n the circumstances [the Minister] is neither required nor authorised to return [him] to Iran.'

34 On 28 July 2003, the Minister filed a notice of motion under O 20 r 2 of the Federal Court Rules seeking summary dismissal of the application on the ground that it disclosed no reasonable cause of action. On 11 September 2003, Mansfield J dismissed SDAE's application ([2003] FCA 959). However, upon SDAE, through counsel, undertaking to proceed with his proposed appeal from the order of summary dismissal, his Honour granted SDAE leave to appeal against that order. As well, his Honour granted an injunction restraining the Minister from removing SDAE from Australia until the hearing and determination of his proposed appeal, or until the Court or a judge should otherwise order. His Honour also gave the Minister leave to appeal against that interlocutory injunction.

35 On 18 September 2003, SDAE filed a notice of appeal against the summary dismissal of his substantive application (S 779 of 2003). On the same day, the Minister filed a notice of appeal (S 780 of 2003) against the grant of the interlocutory injunction pending the hearing and determination of SDAE's appeal. We do not know why the Minister commenced a separate proceeding rather than cross-appeal in proceeding S 779 of 2003.

REASONING

The issues raised by the three appeals

36 As noted earlier, NATB's and SDAE's applications were dismissed summarily. Summary dismissal of a proceeding is supportable only if the application cannot possibly succeed (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129). See also Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 and Webster v Lampard (1993) 177 CLR 598 at 602. It follows that the Minister can succeed in NATB and SDAE only if the facts alleged cannot possibly make it not reasonably practicable for NATB and SDAE to be removed from Australia.

37 NATB, in his application, and SDAE, in his amended statement of claim, alleged the return of him to, respectively, Algeria and Iran, will constitute refoulement within Art 33 of the Refugees Convention and Art 3 of the Torture Convention. Art 33(1) of the Refugees Convention is as follows:

`1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.'

38 Article 3 of the Torture Convention is as follows:

`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.'


`Torture' is defined in Art 1 of the Torture Convention but we need not set out the definition here.

39 Counsel for SAAK referred in submissions to a `true refugee'. We take this to be a reference to a person who is a `refugee', as defined in the Refugees Convention and to whom Art 33 of the Refugees Convention therefore applies, even though the person has not satisfied the Minister, in accordance with the r�gime provided in the Act, that he or she is a refugee. Because we are concerned with orders for summary dismissal, we must assume that, given the chance, NATB and SDAE would be able to prove, on the balance of probabilities, that the terms of Art 33 of the Refugees Convention and Art 3 of the Torture Convention are engaged in their cases, that is, in the case of the Refugees Convention, that they are `true refugees'.

40 SAAK sought interlocutory orders restraining the Minister from removing him from Australia. The primary judge dismissed that application on the ground that there was no arguable prospect of success of SAAK's substantive application. His Honour said that, if he had thought otherwise, he would have granted interlocutory relief. Since there is no notice of contention by the Minister, SAAK's appeal will succeed if there was a serious question to be tried as to whether SAAK's substantive proceeding at first instance would have succeeded.

The proper construction of s 198(6)

41 Paragraphs (a) to (d) of subs 198(6) make it plain that the subsection is concerned with an unlawful non-citizen who

* is a detainee;

* has made a valid application for a substantive visa (not limited to a protection visa) that can be granted when the applicant is in the migration zone; and

* does not have available any further administrative procedures provided by the Act for the obtaining of such a substantive visa.

42 Once the conditions specified in paras (a) (b) (c) and (d) of subs (6) are satisfied, the duty to remove as soon as reasonably practicable arises. However, unless removal is already reasonably practicable, there is not an immediate and absolute duty actually to effect the removal; the duty to remove becomes absolute only once removal becomes reasonably practicable.

43 The word `remove' is defined, in subs 5(1) of the Act, to mean `remove from Australia'. The word `remove' commonly means to move somebody or something `from', or `away from', some place. However, sometimes it also carries the notion of moving somebody or something `to' a place; particularly in contexts in which it is necessarily implied there will not be a `moving from' without a `moving to'.

44 On one view, the present is such a case, that is, the word `remove', in subs 198(6), incorporates the notion of moving a person, not only `from Australia', but also to another country. After all, it cannot have been Parliament's intention to oblige or permit an officer to remove an unlawful non-citizen from Australia's territorial boundaries by dumping that person in the sea beyond those boundaries.

45 The alternative view, however, is that the definition of `remove' in subs 5(1), `remove from Australia', shows that, in subs 198(6), the word carries only the notion of `from', and that it is left to the words `as soon as reasonably practicable' to accommodate the legislative intention to which we have just referred; as well as a legislative intention that the officer not be at liberty to place the unlawful non-citizen within the territorial boundaries of a country which is not willing to admit him or her; cf Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 197 ALR 241; WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625 at [58]; M38 at [68].

46 We do not think the distinction referred to is of importance in the determination of these appeals.

47 The word `practicable' has been defined to mean:

`[c]apable of being put into practice, carried out in action, effected, accomplished or done; feasible.'
(Oxford English Dictionary online)

and:

`capable of being put into practice, done, or effected, esp with the available means or with reason or prudence: feasible.'
(The Macquarie Dictionary, 2nd Revised Edition, 1987)

48 In M38, the Full Court discussed the meaning of the expression `reasonably practicable', and, in particular, the meaning of the word `reasonably' in that expression (at [65]--[69]. Subject to one qualification, we agree with their Honours' observations. The qualification concerns their statement at [66] that `n the context of 198(6) of the Act, practicability and reasonableness may, on occasion, operate in opposing senses.' As the word `feasible' in both of the dictionary definitions suggests, at least some element of reasonableness is inherent in the notion of `practicable'. We find it difficult to accept, for example, that removal would be regarded as practicable, even without the qualifier `reasonably', where no country was willing to admit the unlawful non-citizen.

49 Their Honours cited, in support of their statement, Uebergang v Australian Wheat Board (1980) 145 CLR 266 at 306, per Stephen and Mason JJ. But Stephen and Mason JJ (at 304--306) were addressing the two words `practicable' (actually `practical', which they accepted had been used in the sense of `practicable') and `reasonable' in the expression `practical and reasonable manner of regulation' used by the Privy Council in Commonwealth v Bank of New South Wales (1949) 79 CLR 497 at 641 - a quite different context.

50 Contrary to the statement in M38 at [66], we do not think the word `reasonably' operates in an `opposing sense' to the word `practicable' in subs 198(6); although it is conceivable that it may, in particular circumstances, operate to extend the reasonableness notion, already inherent in the word `practicable', further along what may be described as `the continuum of reasonableness'.

51 We think it undesirable to attempt a definition of the expression `reasonably practicable' in the present context. It is impossible to foresee all circumstances which may arise. The expression requires a process of evaluation of the facts in each case.

52 However, some observations may be made. First, it is possible to say that determination about reasonable practicability is not necessarily limited to physical considerations, such as the health of the person to be removed, or the availability of an operating airport in the country of destination. The willingness of another country to allow the person to enter its territorial boundaries is at least one non-physical factor relevant to reasonable practicability. Second, without attempting an exhaustive statement, it is possible to identify some limitations on the matters relevant to determination of reasonable practicability. They arise out of the words themselves. The relevant considerations are practical considerations, as is indicated by the dictionary definitions of `practicable' set out at [47] above, Moreover, the context for determining reasonable practicability is the proposed physical removal of the person from Australia.

53 This second limitation is of critical importance to the resolution of the appellants' principal argument. In our opinion, the reference to reasonable practicability in the subsection does not require an officer to take into account what is likely, or even virtually certain, to befall the unlawful non-citizen after removal is complete; and removal is complete, at the latest, once the person has been admitted by, and into, the receiving country. Even if it is virtually certain that he or she will be killed, tortured or persecuted in that country, whether on a Refugees Convention ground or not, that is not a practical consideration going to the ability to remove from Australia. Rather, it is a consideration about a likely course of events following removal from Australia.

54 Counsel for the appellants argued that it is unthinkable that Parliament intended to make an officer an executioner or torturer at one remove, and so Parliament must have intended the expression `as soon as reasonably practicable' to do the work of relieving the officer of the obligation to send an unlawful non-citizen to death, torture or persecution.

55 We agree that Parliament cannot be supposed to have intended that persons would be removed from Australia to a country where they would be likely to suffer death, torture or persecution. But we are unable to accept that Parliament intended to avert this result by use of the expression `as soon as reasonably practicable' in subs 198(6). If Parliament had intended to guard against this possibility, we would have expected it to do so expressly; for example, by adding to subs 198(6) an additional paragraph requiring the officer to be satisfied that the non-citizen would not be likely to suffer death, torture or persecution in the country to which he or she is to be removed.

56 It seems to us that Parliament sought, by other means, to guard against the situation contemplated by counsel. In the case of a claim of persecution on a Convention ground, there is provision for the issue of protection visas, including the possibility of review by the RRT of an adverse initial decision on an application for such a visa. If such an application fails, other provisions of the Act may be available.

57 First, there is the power granted to the Minister, by s 48B of the Act, to permit an unsuccessful applicant for a protection visa to make a fresh application for one. This applies, where the Minister thinks it is in the public interest to give that permission, notwithstanding the general prohibition, by s 48A, of the making of a second protection visa application while the non-citizen is in the migration zone. That Ministerial power might be exercised, for example, where, since the refusal of the earlier application for a protection visa, there has been a relevant change of circumstances in the unlawful non-citizen's country of nationality; and also where it has since become apparent that the decision to refuse the first application was wrong.

58 Secondly, s 417 of the Act gives power to the Minister, where the Minister thinks it is in the public interest to do so, to substitute for a decision of the RRT another decision more favourable to an applicant, whether or not the RRT had the power to make that other decision. This is a general humanitarian power. The power would be available to the Minister where, for example, a person had a well-founded fear of loss of life or liberty, or of torture or other mistreatment, but for a reason which is not a Convention reason. Section 351 of the Act gives the Minister the same power in relation to decisions of the Migration Review Tribunal under Pt 5 of the Act.

59 The relevance of ss 48B, 351 and 417, for present purposes, is that they demonstrate that Parliament appreciated the possibility of a non-citizen being removed to a country where he or she might face the prospect of death, torture of persecution. Parliament sought to avert that possibility by including specific provisions, each with its own pre-conditions. There may be room for debate about the adequacy of the provisions. However, doubts about adequacy cannot gainsay the apparent legislative intention. It is not to be supposed, in the context of such detailed provisions, that Parliament intended also to confer an overriding discretion on anybody who fell within the Act's wide definition of `officer' (see [6] above). That definition includes persons outside the Department who would have little or no capacity to form a reliable judgment about the prospective fate of a non-citizen upon return to his or her country of nationality.

The decision in M38

60 The conclusion we have reached is consistent with the decision in M38. In that case, a Full Court dismissed an asylum seeker's application for leave to appeal against the summary dismissal of his application for an injunction restraining the Minister from returning him to Iran. In coming to its conclusion, the Full Court analysed the place of the duty to remove in the scheme of the Act; the Refugees Convention, and, in particular, its refoulement provision found in Art 33(1); various provisions of the Act, and, in particular, subs 36(2); the legislative history of subs 198(6); and previous judicial discussions of the expression `reasonably practicable'. Their Honours stated as follows (at [70]--[73]):

`The appellant's contentions on this appeal did not rely on any conception of reasonable practicability. Rather, the appellant's argument was that, in providing for a detainee's removal from Australia, s 198(6) was ambiguous. This was because s 198(6) required a detainee to be taken out of Australia but said nothing about his or her destination. Because of this ambiguity, s 198(6) was, so the appellant said, susceptible of a construction which was consistent with the obligation against non-refoulement. The appellant submitted that s 198(6) was to be construed as not authorising the removal of a refugee to a place where he faced a real risk of imprisonment or punishment for Convention reasons.
For the reasons about to be stated, s 198(6) is not susceptible of this construction. The appellant's submission is misconceived, for by the time an officer is called upon to discharge the duty imposed by s 198(6) of the Act, any claim by a detainee for refugee status has been refused, or is taken to have been refused, in accordance with the processes established under the Act.

In considering what the law may require of an officer, on whom the duty to remove under s 198(6) may fall, it is necessary to have regard to the practical context in which the officer must discharge his or her duty. This factor, taken with the scheme of the Act, makes it clear that 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.

First, the task of determining whether a person is a refugee is a difficult and complex one. As Gaudron J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 76; 179 ALR 238 at 252, the Convention definition of "refugee":

...looks both to the position of the individual and to the conditions which pertain in the country of his or her nationality. More precisely, the question whether a person has a well-founded fear of persecution is one that has both subjective and objective elements and necessitates consideration of the mental and emotional state of the individual and, also, the objective facts relating to conditions in the country of his or her nationally. [citation omitted]

Issues of this kind are not appropriately resolved by an officer on whom the duty to remove under s 198(6) falls. It is partly on account of the complexity of the issues arising when a person claims refugee status that the Act provides for a specialised administrative regime for the determination of claims for refugee status.'

After referring to ss 48B and 417, their Honours (at [80]) held that it would be:

`contrary to the evident 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.'
Later (at [83]) their Honours stated similarly in relation to the Court:

` ... the Act establishes a specialised administrative regime for determining matters of refugee status. It is not open to the Court to substitute its own decisions on these matters for the decisions made by those to whom the Act entrusts responsibility.'

61 Although, perhaps, some of their observations were obiter, we should decide inconsistently with their Honours in the earlier Full Court only if `compelled to the conclusion that the earlier decision is wrong' (Nguyen v Nguyen (1990) 169 CLR 245 at 269), `convinced that that is wrong' (Chamberlain v R (1983) 46 ALR 493 at 498), and only after exercising `great care' and if persuaded that the earlier decision was `clearly erroneous' (Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 560); and cf, to a similar effect, Repatriation Commission v Gorton (2001) 110 FCR 321 at [25] per Heerey J, and [56]--[57] per Allsop J (with whom Emmett J agreed); Brooks v Commissioner of Taxation (2000) 100 FCR 117 at 121; and Jeffrey James Prebble Pty Ltd v Commissioner of Taxation [2003] FCAFC 165 at [9]--[13] per Hill and Hely JJ. Far from thinking that the decision in M38 was wrong, with respect, we think it was right. Their Honours' understanding, of the scheme of the Act accords with ours, and their understanding of the words `remove as soon as reasonably practicable' was consistent with ours as explained above.

62 NATB accepts that M38 is not clearly wrong, but seeks to distinguish it. SAAK and SDAE, while also submitting that M38 is distinguishable, submit, in the alternative, if necessary, that it should not be followed. The facts of SAAK and SDAE are not relevantly distinguishable from those of M38.

63 NATB submits that M38 addressed the question whether an officer was entitled to take into account whether the unlawful non-citizen in question was a `refugee', and that `this is not the question'. But the Full Court, at [80], held it would be contrary to the scheme of the Act to construe subs 198(6) as enabling an officer to consider:

`a detainee's claims for refugee status or whether his or her return to a country of origin would constitute a breach of an obligation against refoulement, arising under Art 33(1) of the Refugees Convention or elsewhere under international law.'

It will be noted that this passage encompasses, not only a detainee's claims for refugee status, but also refoulement as referred to in Art 33 of the Refugees Convention, and Art 3 of the Torture Convention.

64 The appellants further submit that M38 is distinguishable because, while their Honours addressed the Refugees Convention, they did not address the Torture Convention. However, the claim that return of M38 to Iran would `constitute refoulement ... contrary to Australia's obligations under Art 3 of the Torture Convention' was made in par 5 of his statement of claim, which their Honours set out (at [11]). In describing the appellant's substantive case, and the Minister's case for summary dismissal, their Honours referred (at [12] and [37]) to the Torture Convention as well as to the Refugees Convention. At [80] their Honours used the words `elsewhere under international law'. These words must have been intended to include reference to the Torture Convention.

65 The only factual difference between NATB and M38 is that there was no valid application by NATB to the RRT for review of the delegate's decision. Therefore, the RRT did not deal substantively with NATB's application for a visa. While the Full Court, in granting NATB leave to appeal, cited this (at [20]) as a possible point of distinction, upon consideration it is not. What matters is the statutory scheme which was available to NATB, not whether he availed himself of it. The Act afforded NATB, as it did SAAK and SDAE, the opportunity of a merits review by a specialist tribunal. It is unlikely, in these circumstances, that the legislature intended that subs 198(6) permit an officer to make the same inquiry into such a complex issue as refugee status after the individual has exercised, or chosen not to exercise, that right of review. It is true of each of NATB and M38 that he made an application for a protection visa, he was not recognised as a refugee, and no means of review of that decision remained available to him.

66 Support for M38 is also to be found in the wide definition of `officer' in subs 5(1) of the Act (set out at [6], and referred to in [59], above). It is unlikely that the legislature would have intended to burden any one of such the wide range of persons, on whom the s 198(6) obligation might fall, with the specialised task of identifying the fate awaiting the unlawful non-citizen after removal from Australia. By contrast, the conditions referred to in pars (a), (b), (c) and (d) of subs 198(6), and the practical exigencies touching removal, raise issues of a kind which would be susceptible of resolution by any person falling within the definition.

67 While the judgment of Hayne J in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte SE (1998) 158 ALR 735 is not binding on us, we note that his Honour's observations (at [14]--[19]) in relation to subs 198(6) conform with the views later expressed by the Full Court in M38, and with our own views expressed above.

The non-refoulement obligation

68 In substance, the non-refoulement obligation undertaken by States in Art 33 of the Refugees Convention does not apply to the appellants because, under Australian municipal law, they applied in accordance with the Act for recognition as refugees but did not satisfy the Minister or the RRT that they were refugees as defined in the Refugees Convention. This reasoning does not apply however to the non-refoulement obligation in Art 33 of the Torture Convention.

69 The two non-refoulement obligations are similar and there is substantial overlap between the circumstances to which they respectively apply. It is theoretically possible, though unlikely, that a person who feared torture would refrain from applying for a protection visa because the fear was not for a Convention reason. In such an unlikely situation the Minister's discretionary power under s 417 (like the Minister's similar power under s 351) would not be enlivened. If this is regarded as a `gap' in the legislative coverage, we think it is one for the legislature's attention, and does not warrant the giving of an unnatural and strained meaning to the expression `as soon as reasonably practicable' in subs 198(6).

70 The appellants submitted that the expression `as soon as reasonably practicable' should be construed in conformity with two principles enunciated by Gleeson CJ in Plaintiff S157 v Commonwealth of Australia (2003) 195 ALR 24 at [29] and [30]. They were as follows:

`First, where legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity a court should favour a construction which accords with Australia's obligations.
Secondly, courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.'

71 The appellants submitted that these passages apply to Australia's obligations under the non-refoulement provisions of the Refugees Convention and the Torture Convention. However, in our opinion, the proper construction of subs 198(6) is clear. There is no ambiguity to be resolved by reference to the first principle enunciated by Gleeson CJ. In relation to the second principle to which the Chief Justice referred, we do not think subs 198(6) itself can be said to `abrogate or curtail fundamental rights or freedoms': unlawful non-citizens of the very special and limited class described in that subsection (detainees who made a valid application for a substantive visa and to whom the other conditions referred to in the subsection apply - see [5] earlier) have no fundamental right or freedom to absolute protection in Australia from death, torture or persecution in the country to which they are to be removed.

DISPOSITION

72 The appeals of NATB, SAAK and SDAE should each be dismissed with costs. It will follow that, in each of NATB and SDAE, the primary judge's order of dismissal has effectively disposed of the proceeding. In SAAK, Mansfield J's dismissal of the application for interlocutory relief stands. The substantive proceeding will remain to be disposed of by him in conformity with our reasons above.

73 The cross-appeal in SAAK and the Minister's appeal in SDAE should each be dismissed with no order as to costs.

74 (Since the preceding 73 paragraphs were written, the High Court, on 12 December 2003, refused an application by the unsuccessful appellant in M38 for special leave to appeal to that Court from the decision of the Full Court of this Court (Applicant M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs in High Court application M216/2003). In refusing leave, Gleeson CJ and McHugh J said that there were insufficient reasons to doubt the correctness of this Court's decision to warrant the granting of special leave.)


I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.




Associate:

Dated: 16 December 2003

Appeal N 1294 of 2003 - NATB v Minister for Immigration and Multicultural and Indigenous Affairs

Counsel for the Appellant:
Mr J Basten QC and Mr S Prince






Solicitor for the Appellant:
Stephen Blanks & Associates






Counsel for the Respondent:
Mr N J Williams SC, Ms S Maharaj and Mr G Kennett






Solicitor for the Respondent:
Australian Government Solicitor






Date of Hearing:
24 October 2003






Date of Judgment:
16 December 2003




Appeal S 633 of 2003 - SAAK v Minister for Immigration and Multicultural and Indigenous Affairs

Counsel for the Appellant/

Cross Respondent:
Mr JWK Burnside QD and Mr SD Hay






Solicitor for the Appellant/

Cross Respondent:
Refugee Advocacy Service of South Australia






Counsel for the Respondent/

Cross Appellant:
Mr N J Williams SC, Ms S Maharaj and Mr G Kennett






Solicitor for the Respondent/

Cross Appellant:
Australian Government Solicitor






Date of Hearing:
24 October 2003 (in Sydney)






Date of Judgment:
16 December 2003




Appeal S 779 of 2003 - SDAE v Minister for Immigration and Multicultural and Indigenous Affairs

Counsel for the Appellant:
Mr PC Charman






Solicitor for the Appellant:
Refugee Advocacy Service of South Australia






Counsel for the Respondent:
Mr N J Williams SC, Ms S Maharaj and Mr G Kennett






Solicitor for the Respondent:
Sparke Helmore






Date of Hearing:
24 October 2003 (in Sydney)






Date of Judgment:
16 December 2003




Appeal S 780 of 2003 - Minister for Immigration and Multicultural and Indigenous Affairs v SDAE

Counsel for the Appellant:
Mr N J Williams SC, Ms S Maharaj and Mr G Kennett






Solicitor for the Appellant:
Sparke Helmore






Counsel for the Respondent:
Mr PC Charman






Solicitor for the Respondent:
Refugee Advocacy Service of South Australia






Date of Hearing:
24 October 2003 (in Sydney)






Date of Judgment:
16 December 2003


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