//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[1998] HCA 72
respondent. Application for order nisi refused with costs; interlocutory injunction restraining the applicant’s removal discharged; certificate for counsel.
Hayne J refused to let the applicant's judicial review challenge proceed. The evidence did not show that the Minister had arranged private contractors to restrain him during removal. The Court also rejected, as not arguable, the claim that the removal duty should be read as preventing removal to an unsafe destination. It concluded that the Tribunal had considered the claimed clan-based fear and had asked the applicant why he feared return. The Court did not decide broader questions about the use of force or restraint during removal.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,447 words · generated 05/10/2026
Hayne J considered an application by a Somali applicant for orders nisi for prohibition and certiorari, together with an interlocutory injunction restraining his removal from Australia. The order nisi would have allowed the proposed grounds of judicial review to proceed for further consideration. The Court refused the application with costs and discharged the existing injunction.
No linked legislation citations have been extracted yet.
The applicant arrived in Australia on 2 October 1997 without proper documents and was refused immigration clearance. On 3 October, a Departmental delegate gave British Airways notice under s 217(1) of the Migration Act 1958 (Cth), requiring it to transport him from Australia ([2]). He applied for a protection visa on 8 October. In his application, he said that if returned to Somalia, his membership of the Chikal, more commonly spelled Shikal, tribe meant that he would probably be killed by rival, more powerful tribes ([3]).
The protection visa application was refused after a Departmental interview. The Refugee Review Tribunal affirmed that decision on 21 May 1998 following an oral hearing. The applicant had written submissions from solicitors but was not represented at the hearing ([3]). His case before Hayne J challenged both the proposed removal arrangements and the Tribunal's reasoning.
The removal challenge followed an attempt to place him on a flight at Melbourne airport on 29 October 1998, for travel via Perth and Johannesburg. He refused to board and was returned to detention. The next day, he received a further notice of intention to remove him. An injunction was made temporarily restraining removal ([4]).
The applicant proposed four grounds. In summary, he argued that removal would involve unauthorised detention by a private contractor; that removal to Somalia would be unreasonable because of the risk there; that the Tribunal misconstrued persecution and unreasonably rejected his claim; and that it failed to comply with s 420(2)(b), which required it to act according to substantial justice and the merits ([5]).
The Court dealt first with the arrangements for removal. The evidence referred to P & I Associates, a private company involved in arranging documents, travel and escort services. A British Airways document said the company would take responsibility for the applicant on arrival in Johannesburg and that people would escort him on onward flights. Its brochure described services that could include transit detention while travel documents were obtained ([9]). There was also evidence that an escort had threatened to carry the applicant onto the aircraft and handcuff him if he refused to board ([8]).
Hayne J accepted, to the limited level of satisfaction relevant to the application, that P & I Associates had some role in escort and supervision arrangements. But the crucial question was whether those arrangements were made at the Minister's or Department's behest. The evidence did not establish that link. On the material, the Department's position was that removal would be effected by placing the applicant on a flight with papers sufficient for entry to Somalia, while any steps taken by the airline or its contractors to prevent disturbance or facilitate onward travel were matters for the carrier ([11]-[12]). The Court therefore found no factual basis for treating the proposed removal as a Ministerial plan involving extra-territorial custodial restraint ([12]).
That finding meant the Court did not decide the broader legal questions argued about the reach of the removal power. Hayne J expressly left open whether removal ended when a person crossed Australia's boundary, whether it continued to another port, and whether the obligation to remove carried any power to use force or restraint during the journey ([13]). The judgment is therefore not authority resolving those questions.
The second removal argument concerned s 198(6). That provision required an officer to remove an unlawful non-citizen “as soon as reasonably practicable” when specified conditions were met ([13], [15]). The applicant argued that it should be read as neither requiring nor permitting removal to an unsafe destination. Hayne J rejected that as an arguable construction. The statutory text addressed timing and, on its face, imposed an obligation to remove. Further, the Act separately gave the Minister discretionary powers under ss 48B and 417 to allow a person in the applicant's position to remain, without imposing a duty to consider using those powers ([16], [19]).
The Court approached the safety argument on stated assumptions: that the applicant was not entitled to a protection visa, that the Minister's discretionary powers had not resulted in permission to remain, and that the evidence did not show he could travel to and be admitted by another country ([16]). The Court did not decide the factual safety of Mogadishu. Rather, it held that the proposed interpretation of s 198(6) would effectively require the Minister to exercise a discretionary power to permit the applicant to remain, and that construction was not arguable ([19]-[20]).
The Tribunal challenge turned on whether it had asked itself the right question. The Tribunal accepted that the applicant was Somali, Shikal, formerly a goldsmith, and that his father and brother were killed in 1991 and his sister committed suicide. It also found that he had moved to avoid fighting, but considered this to be fleeing the general civil war, rather than persecution for a Convention reason ([21]). The Tribunal concluded that the applicant had not been targeted because of his clan or another Convention reason and that there was no real chance of such persecution in the reasonably foreseeable future ([21]).
Hayne J read the Tribunal's reasons alongside the oral hearing transcript. When asked who he feared, the applicant referred to people who had taken his possessions and shops and whom he feared might see him as seeking revenge or his rights ([23]). The Court considered that response did not itself disclose a fear of persecution because of clan membership. It also recognised that written materials on the applicant's behalf had advanced a clan-based claim. Taken together, the reasons and hearing showed that the Tribunal had considered that claim ([22]-[23]).
The Court additionally concluded that there was material before the Tribunal capable of supporting its decision. The alleged error was therefore not established as an arguable failure to address the right issue or an unreasonable conclusion on the evidence ([23]-[24]). On the procedural fairness-type argument under s 420(2)(b), Hayne J considered it enough that the Tribunal had asked the applicant to explain why he feared return. The claimed failure to investigate more fully was not arguable ([25]).
The judgment records the statutory framework applicable to this case, rather than giving a comprehensive account of the law before or after it. Under s 198(6), the relevant duty was to remove an unlawful non-citizen “as soon as reasonably practicable” if the statutory conditions were met. “Remove” was defined as “remove from Australia” ([13], footnote 6). The Court rejected the applicant's proposed reading that would add a safety-based qualification to the removal obligation in the circumstances presented ([17]-[20]).
The Court's reasoning also distinguished that removal duty from the Minister's powers under ss 48B and 417. Those sections allowed the Minister, in the circumstances described, to permit a person to remain despite not being entitled to refugee protection. They were discretionary, and neither imposed a duty on the Minister to consider using the power ([16], [19], footnote 7). The judgment did not hold that the Minister had to exercise those powers, or decide the applicant's entitlement to their exercise.
For Tribunal review, s 420(2)(b) required the Tribunal to “act according to substantial justice and the merits of the case” ([25]). Hayne J found no arguable breach on these facts because the Tribunal had asked the applicant why he feared return ([25]). The judgment does not set out a general test for the intensity of inquiry required in every Tribunal hearing.
The reasons refer to earlier authorities, including Applicant A, Abdalla, Adan, and Eshetu, but the court's treatment is limited to the issues before it. Hayne J cited Applicant A in describing the Tribunal's reasoning ([21]). He distinguished Abdalla on the facts ([23]). He expressly did not decide whether Adan was wrong ([23]). He declined to canvass issues associated with Eshetu because the procedural ground was not arguable ([25]). The judgment therefore should not be read as resolving those authorities' broader questions.
No subsequent cases or later treatment are provided in the judgment text. The “after” position that can be stated from this source alone is limited: this decision refused the applicant's proposed grounds, left the scope of removal-related force unresolved, and did not determine the broader questions it considered unnecessary.
At [12], Hayne J said there was “no factual basis” for finding that the Minister proposed removal by a means involving extra-territorial custodial restraint or private-contractor detention. In plain English, evidence of a contractor's involvement was not enough by itself. The applicant needed evidence connecting the restraint arrangements to the Minister or Department.
At [13], the Court said it was “not necessary to consider” whether the removal obligation included power to use force or restraint until a person reached a first port of call or ultimate destination. This is an express reservation, not a ruling that such a power existed or did not exist.
At [19], Hayne J said the applicant's proposed construction of s 198(6) would “in effect” require the Minister to exercise a power to permit him to remain. The point was that the applicant's interpretation would turn a discretionary ministerial power into a practical requirement in the circumstances. The Court found that result inconsistent with the statutory provisions, which did not oblige the Minister to consider those powers.
At [23], the Court concluded that the Tribunal had considered the clan-based claim, having regard to both its written reasons and what occurred in the hearing. This shows the Court's assessment was not confined to the wording of the Tribunal's final reasons; the transcript was also relevant to whether the claim had been addressed.
At [25], the Court treated the Tribunal's question asking why the applicant feared return as sufficient to defeat the particular allegation that it had failed to investigate the claim. That conclusion was about arguability on this record, not a statement that one question will invariably satisfy s 420(2)(b).
The judgment is most directly relevant where a person challenging removal relies on evidence that an airline or private contractor has proposed escort, supervision or restraint during travel. It illustrates the importance, in this kind of application, of evidence connecting those arrangements to the Minister or Department. Here, the Court accepted that P & I Associates had a role in travel arrangements, but found no evidence that the Department had requested or directed restraint ([11]-[12]).
It is also relevant where an applicant argues that the statutory duty to remove should be read as preventing return to a destination alleged to be unsafe. The case concerned a person whose protection visa had been refused and who argued that Mogadishu exposed him to death, arbitrary detention or other serious harm ([14]-[16]). The Court rejected the proposed statutory construction in the setting of the particular Act and discretionary ministerial powers. It did not determine the factual safety of Mogadishu or establish a general rule for all removal decisions.
For challenges to Tribunal reasoning, the case illustrates that the reasons, hearing transcript and material submitted on the applicant's behalf may all be relevant to whether the Tribunal addressed the asserted Convention reason. Here, the Tribunal discussed clan membership and future risk, while the applicant's oral answer about who he feared referred to people associated with his lost property ([21]-[23]). The Court found the Tribunal had addressed the claim and had material supporting its conclusion.
Finally, the case concerns an application seeking leave to pursue proposed grounds, rather than a final merits determination after a fully developed trial. Its conclusions are expressed in terms such as “not arguable” and “no factual basis” for the proposed relief. The procedural setting is important when describing what the judgment decided.
The judgment text contains no information about later judicial treatment of this decision. It is therefore not possible, on this source alone, to say whether later courts followed, applied, distinguished or criticised Re Minister for Immigration and Multicultural Affairs; Ex Parte SE.
The authorities discussed by Hayne J are not later treatment of this judgment. They are authorities cited within it. The Court cited Applicant A in the Tribunal's discussion, distinguished the Full Court's decision in Abdalla, left open whether Adan was wrong, and said it was unnecessary to consider issues of the kind addressed in Eshetu ([21]-[25]). Those references describe the reasoning in this judgment, not what later courts subsequently did with it.
Any assessment of the decision's current precedential status or later judicial reception would require sources beyond the judgment supplied here.
The judgment expressly left unresolved the geographical and temporal scope of removal under the Act. It did not decide whether removal was complete once an aircraft crossed beyond Australia, when it reached a first foreign port, or only at a more distant destination ([13]). Nor did it decide whether the obligation to remove carried an implied authority to use physical force or restraint, or how far any such authority might extend during travel ([13]).
It also did not determine the lawfulness of any restraint that might actually be imposed by an airline or contractor independently of the Minister. Hayne J's conclusion was narrower: the evidence did not establish that the Minister or Department proposed or directed that conduct ([12]). The judgment's reasoning leaves a different case, supported by evidence of Ministerial direction or involvement, unexamined.
The Court did not decide whether the asserted risk in Mogadishu was factually made out. It treated the argument as a proposed limit on the statutory removal duty and rejected that construction as not arguable in the circumstances ([16]-[20]). Questions about how other statutory provisions, facts or legal obligations might bear on a different removal case are not resolved by this judgment.
Nor did the Court decide whether the reasoning in Adan was correct. It found that the applicant's case differed from Abdalla and therefore did not need to examine that question ([23]). The precise standard for the extent of a Tribunal's inquiry under s 420(2)(b) was likewise not comprehensively explored. The Court held only that the alleged failure to inquire was not arguable where the Tribunal had asked the applicant why he feared returning to Somalia ([25]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
HAYNE J
In the matter of an application for a Writ of Prohibition
against the MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS FIRST RESPONDENT
AND
BRENDAN KISSANE in his capacity
as a member of the REFUGEE REVIEW
TRIBUNAL SECOND RESPONDENT
Ex Parte SE PROSECUTOR/APPLICANT
Re Minister for Immigration and Multicultural
Affairs & Anor; Ex Parte SE (M99-1998) [1998] HCA 72
Date of Order: 16 November 1998
Date of Publication of Reasons: 25 November 1998
ORDER
Application for order nisi refused with costs.
Interlocutory injunction restraining the applicant's removal discharged.
3. Certify for counsel.
Representation:
D S Mortimer for the applicant (instructed by Refugee and Immigration Legal Centre)
C Gunst QC for the first respondent (instructed by Australian Government Solicitor)
No appearance for the second respondent
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Immigration – Refugee – Protection visa – Refugee Review Tribunal affirmed decision to deny protection visa – Whether decision of Refugee Review Tribunal unreasonable – Whether failure to take relevant considerations into account – Whether Refugee Review Tribunal followed statutory procedure – Whether proposed removal unlawful.
Administrative Law – Application for prerogative relief – Application for interlocutory injunction restraining removal.
Migration Act 1958 (Cth) – ss 48B, 198(6), 417, 420(2)(b).
HAYNE J. The applicant seeks orders nisi for prohibition and certiorari and an interlocutory injunction restraining the first respondent from removing him from Australia until the hearing and determination of the proceedings.
The applicant arrived in Australia on 2 October 1997 on a British Airways flight. He did not produce proper documents and he was refused immigration clearance. On the next day, 3 October 1997, a delegate of the Secretary of the Department of Immigration and Multicultural Affairs gave notice to British Airways pursuant to s 217(1) of the Migration Act 1958 (Cth) ("the Act") requiring British Airways to transport the applicant from Australia.
On 8 October 1997, the applicant applied for a protection visa as a refugee. In later documents the applicant provided to the Department he said that "[i]f I am to return to Somalia, given that I am from the Chikal tribe1, I will be probably killed by the rival more powerful tribes who now control Somalia". After an interview with officers of the Department, the application for a protection visa was refused. On 30 March 1998, the applicant applied to the Refugee Review Tribunal for review of the decision. He sought, and obtained, an oral hearing of his claim. Written submissions were provided by solicitors on his behalf but he was not represented at the oral hearing. On 21 May 1998, the Tribunal affirmed the decision not to grant a protection visa.
On 29 October 1998, the applicant was taken to Melbourne airport to board an aircraft bound for Perth where it was intended he should board an international flight bound for Johannesburg. The applicant refused to board the aircraft in Melbourne and he was eventually returned to the Immigration Detention Centre. On 30 October, the applicant was given a further notice of intention to remove him from Australia. Application was then made to this Court for an injunction temporarily restraining his removal and an order was made to that effect. That order has been extended from time to time.
The applicant contended that an order nisi should be granted which would give four grounds:
"1. The proposed removal by the Minister, his servant and agents of the prosecutor from Australia pursuant to s 198 of the Migration Act is unlawful in that:
(a) It involves the detention in custody of a non‑citizen by a private contractor, where the detention is for the purpose of removing the non‑citizen from Australia and delivering him or her to his or her country of nationality, and such detention is not authorised by the Migration Act 1958, nor by any other law of the Commonwealth.
(b) The delivery of a non‑citizen to a country which is in a state of civil war and lawlessness, and where there is a substantial likelihood that the person may be killed, detained arbitrarily, tortured or may disappear, is an unreasonable exercise of the power to remove a non‑citizen from Australia.
The Second Respondent erred in construing the definition of 'persecution' for the purposes of the Refugees Convention as not including communal violence within the framework of a civil war.
The findings of the Second Respondent that the experiences of the applicant and his family were not capable of constituting persecution for reasons of the applicant's membership of the Shikal clan and therefore his fear of persecution was not for a Convention reason, and was not well founded was so unreasonable that on the evidence before the tribunal no reasonable decision maker could have reached it.
The RRT erred in law in that it did not follow the procedures set out in s 420(2) of the Act and did not act according to substantial justice and the merits of the case."
It is convenient to deal first with the contentions that were made about the arrangements for removal.
The applicant submitted that there was sufficient material in the evidence adduced in the hearing before me to warrant granting an order nisi that would permit consideration of "[t]he lawfulness of the removal of the [applicant] from Australia, where there is extra‑territorial custodial restraint exercised over him (whether by an agent of the Minister and unlawfully because it is excessive or unreasonable; or whether by a person not the agent of the Minister and therefore unlawfully)". It was submitted that the evidence revealed a case for inquiry whether the removal of the applicant from Australia would involve delivery of him into the custody of a company called P & I Associates Pty Ltd (or some other private contractor)2 or his detention in custody otherwise than by an officer of the Commonwealth authorised under the Act to detain him.
The evidence to support the contention that the applicant would be detained by or in the custody of any person once he had boarded an aircraft bound out of Australia and that aircraft had been sealed for take-off, was, at best, exiguous. The applicant deposed that when he went to the airport on 29 October 1998 an officer of the Department introduced him to a man who would "escort" him to Johannesburg. When he refused to board the aircraft the man who had been introduced to him as the escort said that he would carry him on board the aircraft and that he would handcuff him. This threat of the application of forcible restraint was submitted to be the more significant when regard was had to an internal memorandum produced in evidence before me (and taken from the files of British Airways) that recorded that "P & I Associates in JNB" [presumably Johannesburg] had been "advised of the situation" and that their response was to suggest sedation of the applicant. The memorandum records that the Department rejected this proposal (and, it seems, did so with some asperity).
"specialises in offering a complete management service in the repatriation of inadmissibles, deportees, stowaways, unlawful non‑citizens ("inadmissibles") to the individual's country of origin."
It goes on to say:
"We render a comprehensive identification and documentation service, we assist and conduct all consular and diplomatic liaisons to ensure an accurate, efficient and expedient identification and documentation process.
We take care of, and manage, all travel arrangements, escort and security services to remove the inadmissible from its current location to the Republic of South Africa, (if appropriate) to be held in transit detention whilst the identification and documentation process is completed, and thereafter, to the individual's country of origin."
It was from material such as this that the applicant contended I should infer that there was a case for investigation whether the applicant's removal from Australia would involve his being restrained or held in custody by P & I Associates (or some other private contractor), either in or outside Australia, or would involve his restraint or detention in custody otherwise than by an officer of the Commonwealth authorised under the Act.
I would be prepared to find, to the limited level of satisfaction necessary for determining an application such as the present, that British Airways is unwilling to transport the applicant from Australia unless another person, who would be primarily charged with ensuring that there is no disturbance in flight, travels with the applicant. So far as the evidence goes, British Airways has retained P & I Associates to provide such a person. I would also be prepared to find that British Airways had made some arrangement with P & I Associates under which that company would provide a similar escort for the applicant on his flights from Johannesburg to Nairobi and from Nairobi to Mogadishu. In addition, I would be prepared to find that the arrangements made between British Airways and P & I Associates extend to the provision by P & I Associates of some kind of escort and supervision of the applicant during his time in Johannesburg.
There is, however, no basis revealed in the evidence before me for suggesting that any of the arrangements for escort or supervision have been made at the behest of the first respondent or his Department. Indeed, it was the submission for the first respondent that the removal of the applicant would be effected by his being placed aboard an aircraft bound from Australia to Johannesburg with papers sufficient to gain him entry to Somalia, and that whatever steps were taken by British Airways (as the person bound to transport him from Australia) for ensuring that there was no disturbance on the flight, or that he travelled onwards to Somalia, were matters entirely for the carrier, not for the Minister or the Department3. Such evidence as there is (including the evidence of the departmental officers concerned) supports this submission. None of the material before me gives cause to doubt that what is intended is as the submission described it. If the airline, or those engaged by the airline, were to seek to exercise some restraint over the applicant, beyond the confinements that are the consequences of being in an aircraft in flight and of being in the transit area of an international airport with no papers permitting entry to the country concerned, there is nothing in the material to suggest that this additional restraint would be imposed by or on behalf of the first respondent or at his direction. It would be entirely a matter for the airline and those whom it has engaged and would be done with no authority - actual or pretended - given by the first respondent. There is, in my view, no factual basis established for the grant of an order nisi for prohibition or the grant of injunction restraining removal on the basis that the first respondent proposes removal of the applicant from Australia by a means which includes extra‑territorial custodial restraint or his detention in custody by a private contractor.
"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."
It is not necessary to consider whether removal of an unlawful prohibited non‑citizen is complete when the aircraft or vessel carrying that person travels beyond Australia or whether removal extends to the port at which that aircraft or vessel first calls outside Australia or some other, more distant place. The applicant accepted that the power to remove necessarily carried with it a power to exercise, in some circumstances, a degree of force to effect the removal. (Reference was made in this connection to several deportation cases4.) It was submitted that the present case required consideration of what degree of force might be applied to effect the removal of an unlawful non‑citizen, and whether that force could be applied only until the person concerned had left Australia or could be applied to this applicant in the course of his journey: for example while he was in Johannesburg. It is not necessary to consider whether the obligation to remove an unlawful non‑citizen carries with it a power to exercise any (and, if so, what) force or physical restraint over that person until arrival at the first port of call or ultimate destination. It is not necessary to consider those matters because there is no evidence to suggest that the Minister or the Department or any officer of it threatens or intends to assert such a power over the applicant.
Removal to Somalia unreasonable
It was submitted that on its true construction s 198(6) of the Act not only does not oblige an officer to remove the applicant to a destination that is unsafe for the person removed, the provision does not permit it. Thus, it was submitted that it is arguable that there is no power to remove the applicant to Somalia because his destination in that country, Mogadishu, is unsafe and he is at risk of death, arbitrary detention or other serious harm in that place.
Section 198(6), so far as presently relevant, provides that "[a]n officer must remove as soon as reasonably practicable an unlawful non‑citizen" if certain conditions are met. It may be noted that the sub‑section addresses the time of removal by specifying that time as being "as soon as reasonably practicable" but otherwise it imposes what (on its face) is an absolute obligation on an officer to remove an unlawful non‑citizen. (Remove is defined as meaning "remove from Australia"5.)
Counsel for the first respondent contended that the evidence revealed that although Mogadishu was once the scene of bitter civil war fighting, that has now been resolved and Mogadishu is a safe destination for the applicant. There was, however, other evidence which suggested that this was not so and it is arguable that Mogadishu is an unsafe destination for the applicant in the sense that he may be at risk in the way he described. This aspect of the applicant's case must, however, be approached on the assumption that he is not entitled to a protection visa. It must also be approached on the basis that the Act makes explicit provision for the Minister (in his or her unfettered discretion) to permit persons such as the applicant to remain in Australia despite their not being entitled to protection as refugees6. Indeed the applicant has unsuccessfully sought the exercise of such powers. It must also be approached on the basis that there is nothing in the evidence to suggest that the applicant could travel and be admitted to some country other than Somalia.
I do not accept that it is arguable that the apparently general obligation cast on officers to remove unlawful non‑citizens is limited in the particular way for which the applicant contended.
The applicant submitted that s 198(6) should be read as limited to obliging removal only when to do so is reasonable. It was submitted that to remove to a place where the applicant's human rights may be violated was not reasonable and that the Act should be construed as not permitting or requiring action that would violate Australia's obligations under various international instruments concerning human rights7.
The decision of the Refugee Review Tribunal
"The Tribunal accepts that the Applicant's father and brother were killed in 1991 at the start of the war. The Tribunal also accepts that the Applicant's sister committed suicide. However the Applicant clearly states that his clan has remained outside the conflict that has plagued Somalia since 1991. He describes his clan as the victims of war. He makes no claim that his clan has been targeted or the subject of any persistent harassment. He states his delay leaving Somalia was because he did not have the money at hand to leave and desired to assemble his family before he departed. None of this suggests that the Applicant was targeted or in any way feared that he may be targeted because of his clan. He has no doubt had to move from place to place to avoid the fighting but this has been in the context of fleeing war."
After referring to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and the decision of this Court in Applicant A v Minister for Immigration and Ethnic Affairs9, the Tribunal went on:
"It is apparent that fleeing war or other civil disturbances does not bring an Applicant within the Convention. In this case the Tribunal is satisfied that the Applicant has at times had to flee the civil war or disturbance. The Tribunal is also satisfied that neither the Applicant nor his family were the specific targets of any instances of harassment serious enough to amount to persecution on account of the Applicant's membership of his clan, which the Tribunal considers to be a particular social group, or on account of his ethnic origin or for any other Convention reason.
Given that the Applicant has not been the target of harassment in the past, and given that there is no country information available to the Tribunal which indicates that members of the Applicant's clan face problems, other than those that have occurred in the context of the general breakdown of law and order, the Tribunal is satisfied that if the Applicant returns there is no real chance that in the reasonably foreseeable future he will face persecution for a Convention reason. As a result the Tribunal finds that the Applicant does not have a well-founded fear of persecution for a Convention reason."
It was submitted that this reveals that the Tribunal did not consider whether the applicant had a well‑founded fear of persecution on account of his membership of the Shikal clan but instead considered only whether the various events that had occurred to members of his family had occurred as the result of civil war or disturbance. That is, it was submitted that the Tribunal had fallen into the kind of error identified by the Full Court of the Federal Court in Abdalla v Minister for Immigration and Multicultural Affairs10. I do not accept that this argument is open.
Properly understood, the reasons reveal that the Tribunal did consider what would happen to this applicant if he returned to Somalia and did consider whether the fears he said that he held were well‑founded fears of persecution on account of his membership of the Shikal clan. That view is reinforced by consideration of the transcript of the oral hearing before the Tribunal. In the course of that hearing the applicant was asked what he thought would happen to him if he went back to Somalia and he replied that he would be killed. The Tribunal asked him "Who by? Who is after you in Somalia?" and this elicited the answer "Yes, the people who already took my possessions and my shops, they are still there. If they saw me hanging around, they would see that I am first seeking for revenge, or I am seeking my rights to get my shops back and my … so I have to get away from their family and away from them and that's …". Making, as one must, generous allowance for the fact that the transcript of the oral hearing is obviously imperfect and that the oral hearing was conducted through an interpreter, the answer which the applicant gave to the direct question asked of him does not reveal fear of persecution on account of his membership of a clan. As counsel for the applicant pointed out, the various documents that had been submitted on behalf of the applicant all sought to make such a case. It would, then, be surprising if the Tribunal did not consider it. Both the reasons given and the course of the hearing reveal that the Tribunal did so. There is, in my view, no basis for concluding either that the Tribunal did not address the question raised by the applicant or that it reached a decision which was not reasonably open to it. The Tribunal dealt with the question in its reasons for determination and there was material before it upon which it could reach the conclusion that it did. In my opinion this case is very different from that considered by the Full Court of the Federal Court in Abdalla. It is, therefore, unnecessary to examine whether it is arguable that the decision of the House of Lords in Adan v Secretary of State for the Home Department11 is wrong.
Failure to comply with procedures
Section 420(2)(b) obliges the Tribunal in reviewing a decision to "act according to substantial justice and the merits of the case". It was submitted that the Tribunal did not sufficiently investigate the case that the applicant sought to make and that it did not sufficiently inquire as to whether he had a well‑founded fear of persecution because he is a member of the Shikal clan. It is enough to say that the Tribunal asked the applicant to explain why he feared return to Somalia. It is not arguable that the Tribunal erred in fulfilling its obligations under s 420(2)(b) of the Act. It is therefore unnecessary to canvass issues of the kind that are dealt with in Eshetu v Minister for Immigration and Multicultural Affairs12.
The application for order nisi is refused. The interlocutory injunction restraining the applicant's removal is discharged.
The name of the tribe is more often spelled "Shikal" in the papers. ↩
It is not entirely clear what is the proper name of the contractor concerned. Nothing turns on this. I will refer to it simply as "P & I Associates". ↩
The material suggests that Qantas Airways will provide at least some part of the carriage but, again, nothing turns on this fact and I do not notice it further. ↩
Robtelmes v Brenan (1906) 4 CLR 395; Ferrando v Pearce (1918) 25 CLR 241; Znaty v Minister for Immigration (1972) 126 CLR 1. ↩
s 5. ↩
See ss 48B, 417. Each section provides that the Minister does not have a duty to consider whether to exercise the power. ↩
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. ↩
ss 48B(6), 417(7). ↩
(1997) 190 CLR 225. ↩
Unreported, 20 August 1998. ↩
[1998] 2 WLR 702; [1998] 2 All ER 453. ↩
(1997) 71 FCR 300; an appeal to this Court and related applications for prerogative relief have been heard but not determined.
(1998) 158 ALR 735
(1998) 73 ALJR 123
(1906) 4 CLR 395
(1918) 25 CLR 241
(1972) 126 CLR 1
(1995) 183 CLR 273
(1997) 190 CLR 225
(1997) 71 FCR 300
Application for order nisi refused with costs; interlocutory injunction restraining the applicant’s removal discharged; certificate for counsel.
So far as the evidence before me goes, P & I Associates or an associated organisation was asked by the Department (and agreed) to obtain travel documents for the applicant that would enable him to re‑enter Somalia. There is, however, material which suggests that the role of P & I Associates in relation to the applicant's travel may not be limited in that way. Thus, British Airways has written to the Department that P & I Associates "will take responsibility" for the applicant on his arrival in Johannesburg and that "a South African national has been enlisted to escort [the applicant] up to Nairobi on South African Airways and from Nairobi, a Tanzanian national will be taking over". The document also says that the applicant would be accommodated in the transit hotel at Johannesburg after his arrival at that airport. A brochure tendered in evidence suggests that P & I Associates is a company that
There being no sufficient factual basis for the contention which it was sought to advance, it is unnecessary to consider the several questions about the ambit of the statutory power to remove an unlawful non‑citizen that were debated in argument. The first respondent submitted that s 198(6) of the Act obliges officers of the Department to remove the applicant. That sub‑section provides:
To read the provisions of s 198(6) of the Act as limited in the way for which the applicant contends would, in effect, require the first respondent to exercise his power to permit the applicant to remain in Australia despite his having been refused refugee status. The power under ss 48B and 417 to permit persons such as the applicant to remain in this country are powers that are expressed as discretionary powers which the Minister is not under a duty to consider using8. That being so, the construction of s 198(6) for which the applicant contends is not arguable.
I am therefore not prepared to grant an order nisi on either part of the first of the stated grounds.
I am not persuaded that either the second or third proposed ground is arguable.