SAAK v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This application is made under s 39B of the Judiciary Act 1903 (Cth), seeking orders in relation to the threatened removal from Australia of the applicant. The relief sought is a permanent injunction restraining the respondent from returning the applicant to Iran and, at an interlocutory stage, restraining the respondent from removing him from Australia and from returning him to Iran pending the hearing and determination of the principal application. The nature of the principal application emerges from the statement of claim. 2 The applicant is a citizen of Iran who is present in Australia and who claims to be unwilling to return to Iran owing to a well‑founded fear of persecution in Iran. It is evident that the respondent proposes to return him to Iran in the immediate future. The application was made only when the applicant and his legal advisers learned that the applicant had been taken from the Baxter Immigration Detention Centre to the Perth Immigration Detention Centre, to the intent that he be removed from Australia forthwith. Arrangements were in place for him to be removed from Australia at 10.00 pm last evening. I made an order restraining that removal until today, so that argument in support of the application and, of course, in opposition to the application on behalf of the respondent, could be addressed in a more timely way. This ruling now is in respect of the interlocutory application which is made. 3 As the statement of claim indicates, the applicant claims that his life and liberty would be threatened if he is returned to Iran, on account of his involvement with the Mojahedin and his associated political beliefs. Details are set out in the particulars of the statement of claim. Consequently, it is claimed that the return of the applicant to Iran will constitute refoulement of him contrary to Australia's obligations under Art 33 of the Refugees Convention as amended by the Refugees Protocol. The statement of claim contains particulars as to his activities which attract that claim. He also acknowledges in his statement of claim that he has exhausted all his legal avenues in the Australian courts. 4 On the material before me, that is clearly the case. The material includes the adverse decision of the Refugee Review Tribunal (the Tribunal) concerning his claim for a protection visa under the Migration Act 1958 (Cth) (the Act), the judgment of O'Loughlin J and then of the Full Court dealing with judicial review of the determination of his claim. The applicant is an Iranian citizen who went to Syria in July 1999 and came to Australia in February 2000. He applied for a protection visa under the Act on 10 July 2000. His application was refused by a delegate of the respondent on 14 September 2000 and, on review, by the Tribunal on 11 December 2000. The nature of his claims are conveniently summarised in the decision of the Tribunal: 'The Tribunal accepts that the applicant's father may have been a member of SAVAK. However the applicant is now thirty one years of age and whilst his father may have suffered because of this the applicant was able to work consistently and without interference from the authorities. He has never been detained by them other than when he was young for two days when they were caught trying to escape the country and has not complained of having any other problems as a result of his father's background. It is also many years now since the Shah was deposed and the applicant himself was young at the time. As a result the Tribunal does not accept that there is any real chance his father's background will lead to any difficulties whatsoever for the applicant. The applicant's main claim revolves around his claimed association with the Mojahedin. However the Tribunal does not accept that the applicant has any such association for the following reasons. Firstly if the applicant was involved and had to leave Iran after a dramatic escape during which he lost his wallet and other papers together with some Mojahedin propaganda the Tribunal would have expected that the applicant would have raised this initially. However he made no mention in his initial statement of the Mojahedin or his dramatic escape. The Tribunal has considered his explanation that he was ill from his travel and had an Afghan interpreter. However the applicant confirmed that he said most of what is contained in the record of this statement. He gave detail about what he considered a low level family to be. In the Tribunal's view the details given by the applicant do not indicate he was in such a state as to be unable to answer questions. His answers also do not indicate any significant interpreter problem. The Tribunal also does not accept the applicant's assertion that he would have given his case for asylum if he had been provided with a proper form. The applicant was asked why he left his country and why he did not want to return. The absence of any mention of asylum does not explain why the applicant gave different reasons for leaving to the ones he has now given. The Tribunal also does not accept that having travelled all this way after having allegedly fled Iran that he would not initially reveal his claims because of political ramifications or confidentiality concerns. The Tribunal considers his failure to mention the Mojahedin or his escape from the police when he lost his personal papers indicates that he had no such involvement and made no such escape. Secondly the Tribunal notes from the country information above that the Mojahedin has been involved in bombing attacks. The applicant in the hearing stated that he had no involvement in violence, although those that he associated with were armed. The Tribunal was not satisfied with the applicant's explanation as to why he would be involved in such a group. The applicant stated that the group's aim was to achieve democracy through mass demonstrations, education and distributing information to social groups. He stated that a demonstration was planned for 9 July 1999. He stated that he supported them because he believed in democratic systems. These statements do not satisfy the Tribunal that the applicant would support an outlawed group in circumstances where the likely penalty if such support is discovered is death or a long prison term. The Tribunal notes that the applicant claimed he supported the propaganda wing and not the military wing. He did not want to become officially involved by joining the organisation because he did not want to be involved in violent activities or did not want it to interfere with his social engagements. The latter explanation is not in the Tribunal's view consistent with the level of commitment required for such an organisation. Further being involved in the organisation in the Tribunal's view necessarily involves at least support for violent activities. If he did not want to be involved in violent activities even indirectly the Tribunal would have thought he would have avoided such a group. In the Tribunal's view, given the likely outcome if support is discovered, the applicant would need to have a high level of commitment to be involved in such a group. The Tribunal is not satisfied that the applicant had such a level of commitment. Taking all of these matters into account the Tribunal does not accept that the applicant was a member or supporter of the Mojahedin or that he had any of the problems he claimed to have had because of such support. The applicant stated in the hearing that he will be harassed because he left Iran illegally. The Tribunal does not accept that the applicant would have any difficulties sufficiently serious to amount to persecution because of his illegal departure or his application for refugee status in Australia. The country information above indicates that neither of these circumstances leads to punishment serious enough to amount to persecution. The Tribunal is satisfied that the applicant's reason for departure was not because he has a well-founded fear of persecution but was, as he stated initially, because of his lack of prospects in Iran.' 5 The applicant sought judicial review of the decision of the Tribunal. On 8 May 2001, O'Loughlin J declined to set aside the decision of the Tribunal: SAAK v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1057. An appeal was brought to the Full Court of this Court. On 23 March 2002, that appeal was dismissed: SAAK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 86 (North, Goldberg and Hely JJ). Consequently, the applicant was and remained an illegal non‑citizen in Australia and in immigration detention. 6 The respondent was then obliged under s 198(1) of the Act, by an officer, to remove the applicant from Australia as soon as reasonably practicable if the applicant requested to be removed, or relevantly for present purposes as provided in s 198(6). It 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: (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.' 7 Subject to the argument as to the proper construction of s 198(6) which has been advanced on his behalf today, including the meaning of the expression 'as soon as reasonably practicable', the applicant acknowledges that he otherwise meets subclauses (a) to (d) of subs (6). 8 Evidence has been adduced on this application to which I need not refer in detail. I note that the evidence includes information as to a conviction recorded against the applicant in Iran in December 1999 after he left Iran (which, I am told, was not before the Tribunal) and some recent independent country information of 31 March 2003 which includes the following: 'The Government's human rights record remained poor, and deteriorated substantially during the year, despite continuing efforts within society to make the Government accountable for its human rights policies. The Government denied citizens the right to change their government. Systematic abuses included summary executions; disappearances; widespread use of torture and other degrading treatment, reportedly including rape; severe punishments such as stoning and flogging; harsh prison conditions; arbitrary arrest and detention; and prolonged and incommunicado detention. … The Constitution forbids the use of torture; however, there were numerous credible reports that security forces and prison personnel continued to torture detainees and prisoners. Some prison facilities, including Tehran's Evin prison, were notorious for the cruel and prolonged acts of torture inflicted upon political opponents of the Government. Common methods included suspension for long periods in contorted positions, burning with cigarettes, sleep deprivation, and most frequently, severe and repeated beatings with cables or other instruments on the back and on the soles of the feet. Prisoners also reported beatings about the ears, including partial or complete deafness, and punching in the eyes, leading to partial or complete blindness. Stoning and flogging are prescribed expressly by the Islamic Penal Code in the country as appropriate punishments for adultery. … The Constitution prohibits arbitrary arrest and detention; however, these practices remained common. There was reportedly no legal time limit for incommunicado detention, nor any judicial means to determine the legality of detention. In the period immediately following arrest, many detainees were held incommunicado and denied access to lawyers and family members. Suspects may be held for questioning in jails or in local Revolutionary Guard offices.' It indicates that the applicant, if he is returned to Iran and if the conviction record is correct, may face mistreatment which would amount to persecution under the Convention. I do not think that that evidence advances the present position very far, except to indicate (as indeed he claimed before the Tribunal), that there is material which, if accepted, would support his claims to be a person who has a well‑founded fear of persecution in Iran if he were to return there. For present purposes, I am prepared to find that there is a serious question to be tried that, as a matter of fact, the return of the applicant to Iran would involve a not insignificant threat to his life and liberty on account of his involvement with the Mojahedin and his associated political beliefs, and so may constitute refoulement contrary to Art 33 of the Convention. 9 It seems to me, however, that the issue as to whether I should grant the interlocutory relief which is now sought turns specifically upon the proper construction of s 198(6) of the Act in its terms and in its context within the Act. Before I turn to that question, I record my views briefly as to why I am satisfied that the Court has jurisdiction to hear and determine the application generally, including the application for interlocutory relief. 10 The jurisdiction of the Court primarily arises under s 39B of the Judiciary Act, in particular s 39B(1A)(c). I do not think that the jurisdiction is limited by s 476 of the Act, because the decision in question (if it is a decision) to implement the removal of the applicant from Australia under s 198(6) is not a primary decision as defined in s 476(6). It does not fall into either of the two categories of 'privative clause' decisions referred to in that subsection. As I understood the respondent's position, he accepted that that is the case. 11 Nevertheless, subject to the applicant's argument that what is being sought to be restrained is not the implementation of a decision but is simply conduct which is proposed to be engaged in under the Act but is not entitled to be engaged in under the Act, the decision under s 198(6) is, in my view, 'a privative clause' decision within the meaning of s 474(2) of the Act. To the extent that it is necessary to refer to any clause of s 474(3), in my view it falls within subs (3)(g). So much is consistent with the decision of the Full Court in M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 131) (M38/2002). Being a privative clause decision, the court is not entitled to interfere in such a decision, having regard to the terms of s 474(1) in the absence of jurisdictional error, as explained by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2. 12 The applicant's argument is that a decision under s 198(6) of the Act to remove a person - that is, the power to remove cannot be exercised under s 198(6) - if the person making the decision knows that the proposed removee will be persecuted upon the removee's return to the country where that person is intended to be removed to - in this case, Iran. It is alternatively put that the power to remove without the making of a decision is preconditioned upon the existence of the absence of the fact that the person being removed will be persecuted upon that person's return to the country to which that person is proposed to be removed for a Convention reason. 13 Whether a decision is involved to which s 474 applies, or whether the attack is more properly described as an attack upon the conduct of removal without the making of any decision at all, the same argument applies to the construction of s 198(6). If it is a privative clause decision, and if the construction urged by the applicant is given to s 198(6) is correct (or arguably so), in my view there would be little doubt that it would constitute a jurisdictional fact which must exist before the removal decision could be made, or the removal action could be taken, and so the case would fall within those circumstances which, notwithstanding s 474 of the Act, the Court could properly interfere. 14 I turn then to consider whether, on this application, there is made out an arguable case that s 198(6), properly construed, involves the requirement that removal not be effected if the decision-maker, or the person effecting the removal, knows that the proposed removee will be persecuted upon that person's return. It is argued that, as a matter of objective fact, the proposed removee should then have the opportunity to have determined in this Court (or, I might add, in the High Court, unless the matter were remitted to this Court if the application were brought in the High Court) to establish the fact that person would be persecuted upon return to the country to which that person is proposed to be removed. 15 The nature of a serious question to be tried does not have a fixed content. There is discussion in Spry 'The Principles of Equitable Remedies', 5ed, LBC, 1997 pp 450-451. Nevertheless, there must be at least some arguable basis for maintaining the contention. 16 The contention has previously been addressed, and decided adversely to the applicant, in the Full Court decision in M38/2002, in particular at [72]. It reads: 'In considering what the law may require of an officer, or 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.' That decision was applied by Stone J in NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 761 in summarily dismissing an application in terms similar to the present application. The decision of Stone J would have led to the removal of the applicant in that case. However, Branson J, on 25 July 2003, made an order restraining the respondent from removing that applicant from Australia until further order, but to the intent that the order would be pending the hearing of an application for leave to appeal from the decision of Stone J. The application for leave to appeal from the decision of Stone J was heard by a Full Court and determined on 15 August 2003 in NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 185 (NATB). 17 In NATB, leave to appeal was given and an order was made for an expedited hearing of the appeal. The reasons for the grant of leave to appeal are relatively brief, but in my view critically are contained in [21] and [22] of the reasons for decision of the Full Court in NATB. Their Honours (Heerey, Finn and Conti JJ) said: '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. 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?' It may be observed that the Full Court in [21] accepted that the earlier decision in M38/2002 did not exclude the capacity for 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'. Their Honours considered that it was arguable that the expression 'reasonably practicable' in s 198(6) involved consideration of what might happen at the proposed destination of the proposed returnee, including having regard to matters such as earthquakes, plague and anarchy, and rhetorically 'Why not torture?' However, reading those two paragraphs together, it seems to me that the Full Court in NATB did not intend to go behind or to qualify what was decided by the Full Court in M38/2002. It decided that where there is an application of the present nature, which amounts to an attempt to re-run a protection visa application, s 198(6) does not admit of the sort of argument which is presently being addressed. 18 I am, of course, bound to follow the decision of the Full Court in M38/2002. Having considered the subsequent Full Court decision in NATB (which I am also bound to follow), I do not think it says anything which qualifies in a relevant way the decision of the Full Court in M38/2002. It is apparent from the statement of claim in this matter that the applicant seeks to establish that if he is returned to Iran as a returnee he will be persecuted on account of his involvement with the Mojahedin and associated political beliefs. These are the same reasons that he claimed to be a refugee under the Convention and upon which he relied in applying for a protection visa under the Act. 19 It is common ground that an application for special leave to appeal to the High Court from the decision of the Full Court in M38/2002 has been instituted. I am told it is likely to be heard in early November 2003. That is about 10 weeks away. It is in that context that I am asked to determine that there is a serious question to be tried that s198(6) of the Act has the meaning for which counsel for the applicant contends. 20 As I have said, I am bound to follow the decision of the Full Court in M38/2002. I am therefore required to adopt the view that the proper meaning of s 198(6) does not have the meaning which the applicant contends. I should say that, with respect, I agree with that decision and with the reasons which their Honours expressed for it. I add that, if the meaning for which the applicant contends is a correct one, a consequence would be that those who are unlawful non‑citizens and who are subject to a proposed removal to their country of citizenship, even without applying for a protection visa, would be entitled by proceedings such as the present to seek to permanently restrain the respondent from removing them and, in the light of the decision in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70, might then be entitled to an order to be released from immigration detention because, in the light of such a determination in the principal claim that I have identified, there would be no prospect of the respondent removing that person from Australia within the reasonably foreseeable future. That would similarly apply in the case of a person whose application for a protection visa had been refused for one or more of the reasons to which Art 1F of the Convention applies. 21 Consequently, in my judgment, if I were called upon to decide this matter at present or if I were called upon to consider the summary dismissal of this matter, I would do so adversely to the applicant. However, that is not necessarily the correct test which I should apply on this application, having regard to its nature, to the arguments which have been addressed and to the consequences to the applicant if I were to decline the interlocutory relief which is sought. 22 The consequences are obvious. If I decline the interlocutory relief which is sought, it is apparent that the respondent proposes to proceed with the removal of the applicant and, as I understand it, in the immediate future from Australia. The purpose of these proceedings would effectively be frustrated and, if he is right in his claims about what might happen to him upon his return to Iran, the consequences would be significantly adverse to him. 23 What then might demonstrate a serious question to be tried, given that the answer to that question might require, in the present circumstances, very little? I do not think the mere fact of an application for special leave to appeal to the High Court from the decision of the Full Court in M38/2002 is itself sufficient to demonstrate a serious question to be tried. I think it is necessary to be persuaded that there is some arguable prospect of special leave to appeal being granted or of the argument as to the proper construction of s 198(6) being correct. 24 Counsel for the applicant has urged that every litigant is entitled to have his case heard and the court should avoid forestalling the litigation by preserving, in effect, the availability of the rights to which the litigant asserts an entitlement. An analogy was drawn with the preservation of the subject matter of litigation so as not to usurp the Court's jurisdiction. Even in those circumstances, the Court does not make an order as of right, but requires there be something in the way of arguable facts or arguable contentions before making an order to preserve the subject matter for litigation. 25 In a reverse way, the Court will not order a stay of a judgment pending the hearing and determination of an appeal, or pending the hearing and determination of an application for special leave to appeal to the High Court, as a matter of right, but will only do so where there is some argument shown to have some prospect of success on the proposed appeal or on the proposed application, and where the order sought, if not granted, would result in the purpose of the proposed appeal or proposed application becoming entirely fruitless. If I apply those tests by way of analogy, clearly to refuse the injunction would frustrate the purpose of the proceedings. I have, however, come to the view that the construction of s 198(6) of the Act for which the applicant contends simply does not have sufficient foundation to warrant the grant of interlocutory relief on this application as it is currently expressed in the statement of claim. 26 As I have said, I find the reasons of the Full Court in M38/2002 compelling. I have endeavoured to adopt as sympathetic a view as I can of the argument advanced on behalf of the applicant, in the light of my own view which is adverse to the construction contended for. The fact that I have reached a contrary view in my own mind does not mean that I should routinely decide that there is no arguable prospect of the argument being right. I have endeavoured to address the arguments in that light. However, I have come to the conclusion that there is simply not a sufficient basis for the argument being maintainable to warrant the grant of interlocutory relief in this matter. 27 I accordingly propose to refuse the order which is presently sought. 28 I should say that if I were satisfied that there was a serious question to be tried, even one which overcame the relatively slight hurdle of satisfaction, I would have no hesitation on the balance of convenience in making the order which is sought. Counsel for the respondent, despite the steps which have been taken to procure the removal of the applicant from Australia and the expense involved, did not seriously contend to the contrary, and the contrary proposition is clearly not maintainable, given the present circumstances. 29 I do not say that the balance of convenience would not be so resolved in every case. There may be circumstances where the respondent has given notice of a proposed removal to an applicant and, where appropriate, to that applicant's legal advisers and no action has been taken until the very last minute to restrain the removal from Australia. This is not such a case. The applicant was given relatively little notice of his proposed removal from Australia. He was taken from Adelaide to Perth in circumstances where, on the material before me, he had little or no opportunity to consult his legal advisers and, for their part, the applicant's legal advisers were not notified of that action. 30 Accordingly, but for the view I have taken on whether there is a serious question to be tried, I would have no hesitation in making the orders which are sought. For the reasons which I have given, I propose to refuse the application. 31 [Counsel for the applicant then sought leave to appeal. Counsel for the respondent opposed that leave.] In the light of the Full Court decision in NATB, and the subtlety which has been expressed in submissions as to how the decision in NATB fits with the decision in M38/2002, it seems to me that the interaction of those decisions may warrant further clarification. There are cases where, despite being sufficiently confident to refuse an application for interlocutory relief, leave to appeal was given by the judge who made that order and the judge also thought it right to preserve the status quo by granting a stay or an injunctive order pending the hearing of the appeal: see Erinford Properties v Cheshire [1974]Ch 261and Chartered Bank v Daklouche [1980] 1 All ER 205. 32 I propose to grant leave to appeal from the decision which I have made today. I make an order giving the applicant liberty to appeal to the Full Court. The following orders are made: 1. Upon the undertaking made today of the applicant by his counsel to institute and prosecute the proposed appeal from the decision to refuse interlocutory relief, such appeal being by leave given this day, with all due expedition, until the hearing and determination of that appeal or such earlier date as the Court or a judge may otherwise order, the respondent is restrained from removing the applicant from the Territory of Australia. 2. Liberty to apply on two days' notice is given, including liberty to the respondent to apply to vary or discharge the restraining order made this day. 3. The costs of the application for interlocutory relief are reserved to the Full Court. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.