NATB v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant seeks leave to appeal from a judgment of a judge of this Court which upheld a motion by the respondent Minister seeking to have the applicant's proceeding dismissed pursuant to O 20 r 2 of the Federal Court Rules as disclosing no reasonable cause of action: NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 761. 2 At issue is the nature of the duty imposed on an officer by s 198(6) of the Migration Act 1958 (Cth) (the Act) which provides "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: (ii) the grant of the [visa] has been refused and the application has been finally determined; (iii) 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." 3 At the time of the hearing before the primary judge the applicant was an unlawful non - citizen held in immigration detention. 4 The applicant is a male Algerian citizen. He arrived in Australia by boat and was detained. On 14 May 2001 he applied for a protection visa under s 36 of the Act. On 22 July 2001 he escaped from detention. 5 On 24 July 2001 a delegate of the Minister rejected the application for a visa. 6 A Government-appointed migration agent, who had assisted the applicant in his initial application, lodged an application for review of the delegate's decision by the Refugee Review Tribunal (the Tribunal). 7 The agent later withdrew the application on the basis that he had not had instructions to file it. On 27 August 2001 the Tribunal determined that it had no jurisdiction to entertain a review as the applicant had not made the application personally. 8 In January 2003 the applicant surrendered to officers of the Immigration Department and has been in detention ever since. 9 On 2 July 2003 the Minister notified the applicant of the Minister's intention to remove him from Australia to Algeria pursuant to s 198(6). 10 On 7 July 2003 the applicant lodged an application in the New South Wales District Registry of this Court seeking orders restraining the Minister from returning him to Algeria and from removing him from Australia. The grounds of the application were stated to be: "1. The Applicant is a citizens [sic] 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 refoulemet 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 not authorised to return the Applicant to Algeria." 11 The Refugees Convention referred to is the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967. The Torture Convention referred to is the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment made in New York on 10 December 1984. 12 On 10 July 2003 the Minister filed a notice of motion seeking that the proceeding be dismissed pursuant to O 20 r 2. That application was heard by the primary judge on 18 July 2003 and dismissed on the same day. Her Honour held that she was bound by the decision of a Full Court of this Court in M38/2002 v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131. 13 To a person whose proceeding is dismissed under O 20 r 2 the decision must seem rather final. However, by something of a legal fiction, such an order is treated as interlocutory and not final and thus leave is necessary under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). But as the High Court said in Ex parte Bucknell (1936) 56 CLR 221 at 225, where the interlocutory order has the practical effect of finally determining the rights of the parties, though it is interlocutory in form, a prima facie case exists for granting leave to appeal. 14 The test for summary judgment in Australian courts is a strict one. High authority establishes a palisade of adjectives through which a party seeking summary judgment must penetrate. That party has to show that the claim or defence is "so obviously untenable that it cannot possibly succeed", "manifestly groundless", "so manifestly faulty that it does not admit of argument", "discloses a case which the Court is satisfied cannot succeed", "under no possibility can there be a good cause of action", or "be manifest that to allow (the pleadings) to stand would involve useless expense": General Steel Industries Inc. v Commissioner for Railways (NSW) (1964)112 CLR 125 at 129. 15 An applicant for leave to appeal does not have to show conclusively that the order of the court below was wrong, only that it is attended with sufficient doubt and that substantial injustice would result if leave were refused. Leave will more readily be granted when substantive rights, rather than points of practice, are at issue: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In effect the applicant's case before us is that a decision that he had no arguable case, where a heavy onus lay on the Minister, was arguably wrong. The applicant is two removes away from having to establish conclusively that his substantive case should be accepted. 16 In M38/2002 the appellant had been refused a protection visa. He claimed that because of his previous association with a political organisation in Iran he had a well-founded fear of persecution should he be returned to that country. The Tribunal affirmed the decision of a delegate refusing his application and an application for judicial review was dismissed by a single judge of this Court. There was no appeal against that decision. A further application to the High Court for writs of prohibition, mandamus and certiorari was remitted to the Federal Court and dismissed. Again the appellant did not appeal. He brought a further application in this Court pursuant to s 39B of the Judiciary Act 1993 (Cth) on grounds very similar to those in the present case. 17 The Full Court held that s 198(6) imposed an imperative duty on the officer in question, as opposed to a discretion of the kind considered in Minister for Immigration and Ethnic Affairs v Teoh (1995) 138 CLR 273. The Full Court said (at [62]) that since the provision imposed a duty the decision-maker "has no choice but to act if circumstances have arisen requiring performance of the duty". However, the Full Court made it clear (at [64]) that the duty to remove an unlawful non-citizen is "not absolute, in the sense that it does not arise as soon the conditions in pars (a) to (d) are satisfied, but as soon thereafter as is 'reasonably practicable' for the officer to remove the non-citizen". Their Honours said (at [65]) that the word "reasonably" in the expression "reasonably practicable" "limits or qualifies what would otherwise be an almost absolute obligation". Whether the removal of an unlawful citizen will be "reasonably practicable" in a particular case will "depend upon all the circumstances considered by reference to the statutory duty in s 198(6)": at [67]. Their Honours said (at [67]) that s 198(6) "leaves it to the officer on whom the duty to remove would otherwise fall to consider whether removal is reasonably practicable in the circumstances of the case. The officer has to weigh these circumstances in order to decide the issue for itself or herself". Their Honours then said: "As the decision in [Minister for Immigration and Multicultural and Indigenous Affairs v] Al Masri [[(2003)197 ALR 241]] also shows, whether, in a particular case, removal is "reasonably practicable" may depend on whether there is another country that will admit the unlawful non-citizen. If there is no such country, then his or her removal from Australia will not be reasonably practicable. As French J said in WAIS [v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625], at [58]: 'The term 'as soon as reasonably practicable' in s 198 is an evaluative term which is to be assessed by reference to all the circumstances of the case. What is reasonable is to be determined, inter alia, by reference to the practical difficulties that may lie in the way of making arrangements for removal which involve the cooperation of other countries whether in respect of the particular applicant or generally in relation to the class of applicants of which he is a part.' Doubtless, there will be other factors that, from time to time, will lead an officer to conclude that, at the time removal is contemplated, removal would not be reasonably practicable in the circumstances of the case. If, for example, the only country willing to receive an unlawful non-citizen were suffering from some severe natural disaster or were in a state of utter civil anarchy, the officer may well be entitled to conclude that his or her removal would not be reasonably practicable until the effects of the disaster had dissipated or some degree of order had been restored. … The physical condition of a person facing removal may also lead an officer to conclude that his or her removal in that condition would not make the removal reasonably practicable: cf Liang Wei Li [v Minister for Immigration and Multicultural Affairs [2002] FCA 181], at [7] per Merkel J (with whom Heerey and Conti JJ agreed)." 18 The decision in M38/2002 has to be understood in light of the way the appellant's case was there put. Their Honours said (at [70]): "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." 19 Their Honours pointed out (at [73]) that the task of determining whether a person is a refugee is a "difficult and complex one" and that issues of this kind are not appropriately resolved by an officer on whom the duty to remove under s 198(6) falls. It was partly on account of the complexity of the issues arising when a person claimed refugee status that the Act provided for a specialised administrative regime for the determination of claims for refugee status. 20 Therefore, arguably at least, the distinction between M38/2003 and the present case is that in the latter there has not been the complete working out of the administrative and judicial decision making machinery provided for the determination of refugee status that occurred in M38/2003 and that, perhaps more importantly, the Full Court in M38/2003 did not consider the relevance of the Torture Convention (although it had been pleaded). 21 It is to be noted that the operation of s 198(6) is not confined to unlawful non-citizens who have unsuccessfully applied for a protection visa; such persons may have applied for any substantive visa. M38/2003 turned on the fact that the appellant had applied for a protection visa, had exhausted the special administrative and judicial remedies available to unsuccessful applicants for protection visas, but was arguing that the s 198(6) officer should not remove him from Australia because he was a refugee within the meaning of the Refugees Convention. That the Full Court rejected his appeal does not deny that there may be judicial review remedies for persons claiming that removal is not reasonably practicable on grounds which do not amount to a re-run of a protection visa application. 22 In the passages already quoted, the Full Court in M38/2003 makes it clear that what is "reasonably practicable" is not confined literally to the capacity of the officer to put the unlawful non-citizen on an aircraft or ship leaving Australia. What is likely to happen at the destination may be relevant. Therefore, it might be said, if misfortune such as earthquakes, plague and anarchy are relevant, why not torture? 23 This argument does not involve giving the Torture Convention operation in Australian domestic law. Rather the argument would be that the prospect of torture or inhumane treatment so bad that it would contravene the Convention is a relevant consideration for an officer determining whether it is reasonably practicable to deport a person to a country where that may occur. It is accepted, as the Full Court in M38/2003 pointed out, that the present case is not, as Teoh was, a case of a discretionary decision. Nevertheless the officer has to make a human judgment as to what are relevant factors and exercise an evaluation of those factors in coming to a conclusion as to what is or is not reasonably practicable. Administrative law remedies are not entirely foreign to such a function, as for example in the application of the doctrine of Wednesbury unreasonableness. 24 On the other hand, it might be argued that s198(6) is only concerned with the practical arrangements for removing a person from Australia to some other country. 25 While it was accepted that a decision under s 198(6) is a privative clause decision and subject to s 474, arguably at least an administrative law defect of the kind referred in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 at [76] would render the purported decision not a "decision" within the meaning of s 474. 26 A strike-out application must proceed on the assumption that the facts alleged by the applicant are true. Since the consequences for the applicant are so serious, and the case the applicant seeks to make if those facts are true is, in our view, reasonably arguable, we would without expressing any final view on its merits consider this is an appropriate case for the grant of leave to appeal. 27 We note that the Minister did not argue that the s 198(6) duty was imposed on the relevant officer personally with the consequence that the Minister himself was not a proper party. Nor, it would seem, was such an argument advanced in M38/2002. 28 On 26 July 2003 a Judge of this Court (not the primary Judge) granted an injunction restraining "the Minister and his servants and agents from removing the applicant from Australia until further order". Her Honour reserved liberty to apply on short notice. We do not make any further order in that regard and thus the injunction continues, until further order of the Court or a Judge. Any application pursuant to the liberty to apply may be made to a single Judge. 29 We think there should be an expedited hearing of the appeal. The potential effect of the question raised on the orderly administration of the Act warrants early attention being given to this matter. 30 We therefore order on the applicant's notice of motion dated 29 July 2003: 1. The applicant have leave to appeal from the judgment given on 18 July 2003. 2. There be an expedited hearing of the appeal. 3. The applicant file and serve a notice of appeal within 14 days. 4. The costs of the motion be costs in the appeal. I certify that the preceding Thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Finn and Conti .