Applicant M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs

· If the applicant is returned to Iran, his life or liberty would be threatened on account of his religion, membership of a particular social group and political opinion.

· The Minister threatens and intends to return the applicant to Iran.

· The applicant's return to Iran would constitute refoulement contrary to Australia's obligations under: - Article 33 of the Convention Relating to the Status of Refugees ("the Refugees Convention"), and - Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("the Torture Convention").

The motion 7 On 24 March 2003 the Minister filed a motion seeking that the proceeding be dismissed under O20 r2 of the Federal Court Rules, as it disclosed no reasonable cause of action. 8 The motion was heard by the Court on 23 April 2003. Mr J Burnside QC appeared with Mr K Farouque, of counsel, for the applicant and Mr C Horan, of counsel, appeared for the Minister. 9 It was common ground between the parties that for the purposes of a motion of summary dismissal it is appropriate for the Court to assume that allegations of fact pleaded by the applicant will be established by the evidence at trial. However, in a supplementary written submission Mr Horan stressed that the Court could not depend on the allegation that the return of the applicant to Iran would constitute refoulement in determining whether the Act authorises the removal of a non-citizen. 10 Mr Burnside contended that the application of Art 33 of the Refuges Convention merely required the Court to accept that, as pleaded, the applicant is a refugee. I see no reason why the Court should not assume the applicant, as pleaded, is a refugee for the purpose of the strike out application. For the purposes of this judgment, I am prepared to assume that all facts alleged in the Statement of Claim are accurate. 11 Further, it was not in dispute that: · the applicant is a detainee · the applicant had made a valid application for a protection visa · the grant of the visa had been refused · the applicant had not made another application for a substantive visa · the applicant is subject to removal from Australia in accordance with s198(6) of the Act.

12 Mr Burnside submitted that the Act does not authorise removal of the applicant from Australia when the removal amounted to refoulement, as it must in the circumstances of the motion. Mr Horan submitted that the application is untenable, as s198(6) of the Act clearly authorises the applicant's removal irrespective of whether such removal amounts to refoulement.

Legislative and International Context 13 Section 198(6) of the Act provides: "An Officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(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

(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." (emphasis supplied) 14 Article 33 of the Refugees Convention provides: "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. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."

15 Article 3 of the Torture Convention provides: "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." 16 Mr Burnside contended that the word "remove" in s198(6) was ambiguous because it was silent about where a person might be removed to. As a result of that ambiguity, s198(6) of the Act must be read consistently with Australia's obligations under the Refugees Convention and the Torture Convention. Consequently, removal under s198(6) should be limited to the extent that it prohibits refoulement. Mr Burnside referred to the definition of "remove" in s5 of the Act as being "remove from Australia". He stressed that the Minister intended to do more than remove the applicant from Australia, that is, he intended to remove him to the one place in the world where the applicant's life or liberty would be threatened. He contended that the power to remove did not include a power to take a person to a place of persecution in breach, inter alia, of Art 33 of the Refugees Convention, and that removal need not result in refoulement. 17 Mr Horan submitted that the proceeding was bound to fail because s198(6) of the Act is plain and unambiguous. He contended that all the constituent elements of the subsection had been made out with respect to the applicant. Mr Horan emphasised that s198(6) is not to be interpreted as if it were governed by the Refugees Convention, given the clear words contained in the subsection. 18 Mr Horan contended that the obligation to remove a person from Australia is not limited by reference to the destination to which the person may be removed.

Consideration 19 The Refugees Convention and the Torture Convention have not been incorporated into Australian municipal law by statute. As Mason CJ and Deane J said in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287: "…a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law." 20 Also at 287, their Honours dealt with the significance for Australian law of the ratification by Australia of international treaties, saying: "Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party… . It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law…If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction…".

21 See also Minister for Immigration Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70 at [138] and Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at [34] and [35]. 22 The language of s198(6) of the Act does not permit a construction which incorporates into the subsection a prohibition on removal which would constitute refoulement under Art 33 of the Refugee Convention or Art 3 of the Torture Convention. 23 Section 198(6) is unambiguous. It imposes a duty on an "officer", as defined in s5 of the Act, to remove from Australia a person in the position of the applicant being: · a detainee · the maker of a valid application for a substantive visa · a person whose application for a substantive visa has been finally determined adversely to him · a person who has not made another valid application for a substantive visa.

24 The duty to remove is subject to the qualification that it must be exercised bona fide for the purposes of the Act. It would not be a bona fide fulfilment of the duty to remove a person such as the applicant to a rock in the Pacific Ocean, to use an example raised by Mr Burnside. Ordinarily an officer would consider removal, as a matter of practicality, to the non-citizen's country of origin. Where a protection visa application has been refused, as was the case with the applicant, an officer acting under s198(6) would be fortified by that refusal in removing the non-citizen to the country of origin. The officer would also be fortified in removing the non-citizen by the lack of a requirement in s198 for him or her to make further enquiries concerning whether the removal contemplated would amount to refoulement. Circumstances in the country of origin may have changed in the meantime and what was not refoulement at the date of the RRT decision may come to be refoulement. However, there is no basis for limiting or qualifying the duty imposed on an officer under s198(6) by an importation of Art 33 of the Refugees Convention and Art 3 of the Torture Convention into the Act. 25 In Re Minister for Immigration and Multicultural Affairs; ex parte SE [1998] HCA 72, Hayne J at [18] to [19] rejected a construction of s198(6) which limited its operation to allowing removal "only when it is reasonable to do so". It had been contended that removal in breach of international obligations was not permitted. His Honour described that contention at [19] as "not arguable". Hayne J's approach in SE is consistent with the view that s198(6) is clear in its terms and not affected by any canon of construction which would invoke the provisions of any international instrument to which Australia is a party. 26 The position in Australia can be contrasted with that applying in Europe; see Chahal v United Kingdom (1997) 23 EHRR 413. In Chahal the European Court of Human Rights found at [107] that there was a real risk that Mr Chahal would be subjected to treatment contrary to Art 3 of the Torture Convention if returned to India. The Court ordered that his deportation to India, if effected, would give rise to a violation of Art 3. 27 In application for summary dismissal, orders striking out a proceeding should only be made where it is inevitable that the proceeding will fail; see Webster v Lampard (1993) 177 CLR 598 at 611, per Mason CJ, Deane and Dawson JJ. The power to order summary dismissal should be exercised with exceptional caution, especially where the ultimate outcome depends on the resolution of disputed facts; see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130, per Barwick CJ. 28 Counsel in the instant proceeding were content, notwithstanding that the motion was one for summary dismissal, to have the Court finally determine the proper construction of s198(6) of the Act. I have no difficulty with such a course, considering that I share the view of Hayne J in SE that a construction of s198(6) which seeks to import considerations of compliance with international obligations is not arguable. 29 In Al Masri, the Full Court addressed whether there was a limitation to the power under s196 of the Act to detain, on the basis an unlawful non-citizen should be removed as soon as reasonably practicable. In considering the construction of s196(3), concerning the prevention of release from detention, the Court took into account provisions in conventions ratified by Australia and, in particular, Art 9(1) of the International Covenant on Civil and Political Rights. It did this on the basis that s196 should, so far as the language permits, be interpreted in a manner which accords with Australia's treaty obligations. In Al Masri it was held that there was an ambiguity created by the operation of s196 and s198, which lead to an implied limitation on the period of detention. No such ambiguity is present in s198(6) in the context of the meaning of "remove" in that subsection. Orders The Court will make the following orders on the Minister's motion dated 24 March 2003.

2. The applicant pay the respondent's costs of the proceeding, including the costs of the motion; such costs to be taxed in default of agreement.

I certify that the preceding twenty nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Dated: 15 May 2003 Counsel for the Applicant: Mr J Burnside QC with Mr K Farouque

Solicitor for the Applicant: Maurice Blackburn Cashman

Solicitor for the Respondent: Australian Government Solicitor