Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION – Tribunal found that appellant is not Afghani and has never resided in Afghanistan – application for one-way travel document to Afghanistan – appellant contends that Minister is bound by the decision of the Tribunal and cannot now rely on evidence contrary to its findings – distinction between the evidence before the Tribunal and evidence which is later provided to the Afghani government by the appellant – finding by primary judge that there was a real prospect of removal of the appellant in the reasonably foreseeable future

Rahmatullah v Minister for Immigration & Multicultural & Indigenous Affairs

Rahmatullah v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 200 (17 August 2004)
Last Updated: 17 August 2004

FEDERAL COURT OF AUSTRALIA


Rahmatullah v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 200



MIGRATION – Tribunal found that appellant is not Afghani and has never resided in Afghanistan – application for one-way travel document to Afghanistan – appellant contends that Minister is bound by the decision of the Tribunal and cannot now rely on evidence contrary to its findings – distinction between the evidence before the Tribunal and evidence which is later provided to the Afghani government by the appellant – finding by primary judge that there was a real prospect of removal of the appellant in the reasonably foreseeable future



Migration Act 1958 (Cth) ss 189, 196, 198


Al-Kateb v Godwin [2004] HCA 37 referred to
M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003)
199 ALR 290 followed
Minister for Immigration & Multicultural & Indigenous Affairs v Al Khafaji [2004] HCA 38 referred to
Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003)
197 ALR 241 referred to
NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 292 referred to
SPKB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 295 followed
Ullah v Minister for Immigration & Multicultural Affairs [2002] FCA 60 cited








RAHMATULLAH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 17 OF 2004



SPENDER, STONE AND BENNETT JJ
BRISBANE (HEARD IN ADELAIDE)
17 AUGUST 2004

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S17 OF 2004


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: RAHMATULLAH
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: SPENDER, STONE AND BENNETT JJ
DATE OF ORDER: 17 AUGUST 2004
WHERE MADE: BRISBANE (HEARD IN ADELAIDE)


THE COURT ORDERS THAT:



1. The appeal is dismissed with costs.















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 S17 OF 2004


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: RAHMATULLAH
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: SPENDER, STONE AND BENNETT JJ
DATE: 17 AUGUST 2004
PLACE: BRISBANE (heard in Adelaide)


REASONS FOR JUDGMENT

THE COURT:

1 The appellant arrived in Australia on 1 January 2001 without any valid travel documentation. He was taken into detention. He lodged an application for a protection visa (class XA) on 17 February 2001. He claimed to be an Afghani national and to have a well founded fear of persecution in Afghanistan by reason of being a member of the Hazara minority in that country.

2 The appellant’s application for a protection visa was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’). On 20 August 2001, the Refugee Review Tribunal (‘the Tribunal’) affirmed that decision. The Tribunal did not accept that the appellant was an Afghan national, nor that he has ever resided in that country. The Tribunal was not satisfied that he had a well-founded fear of persecution if he returned to Afghanistan. The Tribunal considered the possibility that the appellant is a national of Pakistan but found that there was insufficient evidence to make a finding that he has rights of residence or citizenship in relation to that country.

3 The appellant sought a review of the Tribunal’s decision in this Court. The application for review was dismissed by Mansfield J on 8 February 2002 in Ullah v Minister for Immigration & Multicultural Affairs [2002] FCA 60. There was no appeal. The appellant has been liable for removal from Australia since that time.

4 The appellant applied to this Court seeking a declaration that he is unlawfully detained and an order in the nature of habeas corpus directing that he be released from detention. On 24 December 2003, Selway J dismissed the application. This is an appeal from that decision.

5 As noted by Selway J, notwithstanding that the appellant was not believed by the Tribunal, he still maintains that he is an Afghani citizen.

6 It is relevant to set out what happened after the decision of Mansfield J. As noted by Selway J, these facts were not in dispute. On 17 June 2002, the appellant was offered and accepted a voluntary reintegration package to return to Afghanistan. He also lodged an application for an Afghani passport. He was interviewed by the Afghani embassy on 19 June 2002. On 7 November 2002 he withdrew that acceptance and his passport application. On 25 March 2003, he completed a new application for an Afghani passport. Apparently there was no need for him to be re-interviewed for the passport. Despite a number of communications between the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’) and the Afghani embassy, the Afghani embassy had not issued a passport to the appellant, apparently because the Afghani Government will not issue such a passport until it is satisfied as to the appellant’s identity.

7 However, as was set out by Selway J at [5]:

‘In addition to the issue of a passport, there is apparently a procedure by which the Afghani embassy will issue a one-way travel document. In relation to that document the embassy does not need to be satisfied that the relevant person is an Afghani citizen. DIMIA arranged for the applicant to be interviewed on 20 November 2003 by embassy staff in relation to the issue of such a document. Ms Keenan says in her affidavit that the application is still being processed by the Afghani embassy and that DIMIA have not been advised that the application is refused.’

Ms Keenan is an officer of DIMIA.

8 Those facts were not disputed. Accordingly, the contention in ground five of the amended notice of appeal (‘the notice of appeal’), that ‘the learned judge erred in fact in appearing to act under the assumption that the appellant had requested to be removed to Afghanistan’ cannot stand. Neither can ground six, which relies upon an alleged inconsistency between a finding that the appellant is not Afghani and a conclusion that he may be granted Afghani travel documents.

9 On 20 March 2003, DIMIA suggested that the appellant complete an application for a Pakistani passport. DIMIA had some information to suggest that the appellant is, in fact, a Pakistani citizen. As recorded by Selway J at [6], ‘The applicant commenced to do so, but was stopped when he inserted the word "Afghanistan" in the "born in" and "nationality" fields of the form’.

10 Before Selway J, Ms Keenan said in an affidavit that she was of the opinion that there was a real likelihood or prospect of removal within the reasonably foreseeable future. Counsel for the appellant argued that there was no such likelihood.

11 Selway J recognised that he was bound by the decision of the Full Court of this Court in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 197 ALR 241 (‘Al Masri’). His Honour also determined that, as the appellant was in detention, it was not appropriate to await the reserved decision of the High Court in that case. At [14] he correctly identified the question before him as whether there was currently a real likelihood or prospect of the removal of the appellant from Australia in the reasonably foreseeable future and, if not, whether the reason for that is some lack of co-operation by the appellant.

12 His Honour noted the Tribunal’s finding and the appellant’s lack of success in obtaining a passport and concluded that ‘it would not seem to me that there is currently a real likelihood or prospect that he will obtain such a passport in the reasonably foreseeable future’.

13 Selway J was not prepared to find, however, that the appellant may not be able to obtain a one-way travel document. That document was only applied for in November 2003, the request had not been rejected and was still under consideration. His Honour held that there was "currently" a real prospect of the removal of the appellant from Australia in the reasonably foreseeable future.

14 His Honour concluded that, if the appellant is not an Afghani citizen but a citizen of some other place such as Pakistan, he had not provided the relevant degree of cooperation in achieving his return.

15 Counsel for the appellant, Mr Manetta, relies upon the finding by a delegate of the Minister that the appellant is not an Afghani national and submits that, as a consequence, there can be no reasonable basis for supposing that there is any reasonable prospect for removal to Afghanistan. This ignores the application for the one-way travel document that does not necessitate Afghani citizenship. As noted by Selway J, the respondent was not required separately to determine if the place to which the appellant wished to be removed was in fact the country of his citizenship (NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 292 (‘NATB’); M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 290 (‘M38’)).

16 The appellant also relies on the fact that the Minister has taken no steps to have the appellant removed to Pakistan. However, as noted by Selway J, DIMIA did suggest to the appellant that he complete an application for a Pakistani passport.

17 Contrary to Mr Manetta’s submissions, Selway J did not proceed on the basis that the appellant is an Afghani national. In the light of the Tribunal’s decision that the appellant is not an Afghani and not a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees (‘the Refugees Convention’), the question of refoulement to Afghanistan within Article 33 of the Refugees Convention does not arise.

18 In grounds one and two of the notice of appeal, the appellant asserts that the learned primary judge was obliged first to determine his claim to refuge from Afghanistan ‘on the merits’. As recognised in the notice of appeal and in written submissions, this proposition is contrary to the decision of the Full Court of this Court in SPKB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 295 (‘SPKB’). It is submitted that this decision is clearly wrong and should not be followed. It is also the appellant’s contention that M38 is distinguishable. We agree with the proposition in SPKB and M38 that the appellant, having been found, on the merits, not to be a refugee by the Tribunal, and having had his appeal from that decision dismissed and not having appealed that decision, is not entitled to require the Minister or the primary judge to make a fresh determination about his refugee status.

19 Accordingly, those grounds in the notice of appeal, which assert in various ways that removal by refoulement is not reasonable and that the Minister must reconsider the appellant’s claim afresh, are not made out.

20 This is also consistent with NATB. An officer acting under s 198(6) of the Migration Act 1958 (Cth) (‘the Act’), is not required to take into account for the purposes of reasonable practicability what is likely, or even virtually certain, to befall the unlawful non-citizen after that person has been admitted by and into the receiving country.

21 Ground three of the notice of appeal alleges that the primary judge erred in law in not finding that the words "reasonably practicable" in s 198 of the Act required removal within a reasonable time and by reasonable means. This ground of appeal was based on the decision in Al Masri, that a limitation upon the power to detain under s 196(1)(a) of the Act is found in s 198(6), in the duty to effect removal ‘as soon as reasonably practicable’. The formulation approved at [136] was ‘circumstances where there is a real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future’. That is the test applied by Selway J and we see no error in his Honour’s conclusion that there was a current real prospect of removal of the appellant from Australia in the reasonably foreseeable future.

22 While judgment in this case was reserved, the High Court handed down the decisions in Al-Kateb v Godwin [2004] HCA 37 (‘Al-Kateb’) and Minister for Immigration & Multicultural & Indigenous Affairs v Al Khafaji [2004] HCA 38 (‘Al Khafaji’). As a result, there is no limitation on the requirement to keep Mr Rahmatullah in detention until he is removed from Australia. Sections 189, 196 and 198 ‘require the indefinite detention of [Mr Rahmatullah] notwithstanding that it is unlikely that any country in the reasonably foreseeable future will give him entry to that country’ (per McHugh J in Al-Kateb at [33]). The detention continues until it is reasonably practicable to remove the person or the person is given a visa. The test in Al Masri, has been disapproved (per Hayne J in Al-Kateb at [234]-[237] with whom McHugh and Heydon JJ agreed; per Callinan J at [300]).

23 This does not affect the result of the decision of the primary judge. Accordingly, there was no need to invite the parties to make further submissions.

24 The appellant contends that the Minister cannot rely upon any suggestion that the appellant may have resided in Afghanistan, that she is bound by the decision of the Tribunal that the appellant is not Afghani and has never resided in Afghanistan.

25 The Tribunal made a decision on the evidence before it. There is a distinction between the evidence before the Tribunal and evidence which may be later provided, for example to the Afghani government by the appellant. Although the primary judge referred to evidence relevant to the likelihood of the appellant being accepted by the Afghani authorities, that was not the basis of his Honour’s decision, nor was it necessarily inconsistent with the Tribunal’s finding that the appellant was not Afghani. In any event, the travel document on which his Honour’s conclusion was based, does not require Afghani citizenship.

26 The appellant has not established any error on the part of the primary judge in coming to his conclusion. The only matter put to his Honour as to reasonable practicability was the fact that the appellant had been found not to be Afghani and, possibly, the fact that the Afghani embassy had not yet determined the appellant’s application. To the extent that the notice of appeal seeks to canvass other matters that may be relevant to a consideration of reasonable practicability, they were not put to his Honour and not elucidated before us.

27 The grounds of appeal have not been made out.

28 It follows that the appeal is dismissed with costs.


I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Stone and Bennett.



Associate:

Dated: 16 August 2004




Counsel for the Appellant: Mr M Manetta



Solicitor for the Appellant: Refugee Advocacy Service of South Australia



Counsel for the Respondent: Ms S Maharaj



Solicitor for the Respondent: Australian Government Solicitor



Date of Hearing: 3 August 2004



Date of Judgment: 17 August 2004
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia