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 '[i]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.