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[2004] FCA 235
Federal Court of Australia
1984-12-10
Lander J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an oral application by the respondent to discharge orders made by me on 22 August 2003, 8 September 2003 and 19 September 2003, and in particular those orders which restrained the respondent from removing the applicant from Australia. 2 The applicant commenced proceedings in this court on 21 August 2003 seeking an interlocutory and a permanent injunction restraining the respondent from returning the applicant to Iran. 3 The application was supported by a statement of claim which was filed on the same day. In that statement of claim, the applicant claimed that he was a citizen of Iran presently in Australia who was unwilling to return to Iran owing to a well-founded fear of persecution in that country. The applicant claimed that his return to Iran would constitute refoulement contrary to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 ('the Refugees Convention') and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ('the Refugees Protocol'). 4 The applicant made application to amend the statement of claim to also claim a fear of torture, and to seek relief restraining the respondent from returning the applicant to Iran on the basis that such would constitute refoulement contrary to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984 ('the Torture Convention'). 5 On 22 August 2003 I made interlocutory orders restraining the respondent, until 8 September 2003, from removing the applicant from the territory of Australia without first giving two days' notice and further orders, which need not be set out in their terms, providing for the procedure with which the respondent would have to comply with if the respondent wished to remove the applicant from Australia. 6 The matter came on before me again on 8 September 2003 when I allowed the applicant's application to amend the statement of claim to claim a well-founded fear of torture. The present application does not seek to discharge that order. At the time I also made an order granting an interlocutory injunction in the terms of paragraph 1 of the orders made on 22 August 2003 until seven days after the publication of the reasons for decision of the Full Court of the Federal Court of Australia in the matter of NATB v The Minister for Immigration and Multicultural and Indigenous Affairs. I later published reasons for my decision granting the interlocutory injunction and at that stage confirmed the orders made on 8 September: Shahrooie v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 996. A number of other matters of a similar or the same kind were listed before me on the two days and orders were made in the same terms in those other matters. I made some other orders which are again of no consequence. 7 The respondent now seeks to have the injunctions contained in paragraphs 1, 2 and 3 of my orders made on 22 August discharged. He also seeks to have the interlocutory injunction granted on 8 September discharged. 8 I understand that the respondent will, if successful in relation to this application, ask that those other matters be called on and those corresponding orders discharged. 9 When I gave my reasons confirming the orders made on 8 September, I said that I did not think that the applicant's reliance upon a claim that the applicant was a refugee could ever succeed. Such a contention had been rejected by the Full Court of the Federal Court in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290 ('M38'). 10 I had expressed that view during argument and it was for that reason that the applicant sought to amend his statement of claim to also claim a fear of torture and to rely upon the Torture Convention for the purpose of the interlocutory application. It was argued at the time the interlocutory injunction was made that M38 left open the question whether any officer, in discharging his or her duty under s 198(6) of the Migration Act 1958 (Cth) ('the Act'), had to consider the question whether the person to whom section 198 referred was likely to be subjected to torture. 11 Such an argument had also been put to the Full Court of the Federal Court in NATB v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 185 ('NATB'). In that case, an interlocutory injunction was granted restraining the Minister from removing the applicant from Australia. The Full Court allowed the injunction to continue pending further consideration of the argument relating to the Torture Conventionin the Full Court. That decision was given, of course, after the decision in M38. 12 In my reasons for decision given on 19 September, I said:
'54 In support of that contention the applicant relied upon the decision of the Full Court of this Court in NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 185 (NATB). That decision was given subsequent to the decision in M38/2002.
55 In NATB, the applicant was an unlawful non-citizen who was in detention. He sought orders restraining the Minister from removing him from Australia to Algeria.
56 He claimed (as the applicant has in the matter before me) that his return would constitute refoulement contrary to Australia's obligation under Article 33 of the Refugees Convention and moreover his return would constitute refoulement contrary to Australia's obligations under Article 3 of the Torture Convention. 57 The Minister filed a notice of motion seeking the summary dismissal of the applicant's application. The judge at first instance, after holding she was bound by the decision of the Full Court in M38/2002, dismissed the applicant's application. Subsequently another judge made an interlocutory order restraining the Minister from removing the applicant from Australia until further order to allow the applicant to appeal against the first judge's refusal to restrain the Minister. The applicant accordingly sought leave to appeal from that decision. The Full Court, on the application for leave to appeal, after discussing the reasons of the Full Court in M38/2002 said at [20]: "Therefore, arguably at least, the distinction between M38/2003 (sic) 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 (sic) and that, perhaps more importantly, the Full Court in M38/2003 (sic) did not consider the relevance of the Torture Convention (although it had been pleaded)."
58 In NATB the Full Court accepted the correctness of M38/2002 but concluded that M38/2002 did not decide that a person who might suffer torture on being removed from Australia and returned to another country could not argue that in those circumstances it was not reasonably practicable for the officer to remove that person from Australia. 59 In NATB the Full Court said at [22]: "In the passages already quoted, the Full Court in M38/2003 (sic) 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?"
60 The Full Court also left open whether any decision made by an officer in those circumstances was subject to review having regard to the provisions of s 474 as explained in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.' 13 I could not distinguish NATB from the case which I was then considering, so I made an order in the same or similar terms as the order which the Full Court of the Federal Court allowed to continue in NATB. 14 At the time that I made those orders, the application by the applicant in M38 for special leave to appeal to the High Court had not been heard. That application was heard and refused on 12 December. Gleeson CJ said there was insufficient reason to doubt the correctness of the decision of the Full Federal Court. I must therefore assume, as I previously did, that the decision in M38 was correct. 15 The appeal in NATB was dismissed by the Full Court of the Federal Court on 16 December 2003 (NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ('NATB2')) and I assume that as a consequence the interlocutory injunctions in that case were discharged. 16 Because the orders which I made required the Minister to give two days' notice prior to removing the applicant, the respondent wishes, for the avoidance of any doubt, to have those orders discharged. The respondent has also sought dismissal of the proceedings themselves on the ground that no cause of action is disclosed in the statement of claim. I have adjourned that application until 16 February 2004 to enable the applicant to give instructions to counsel. 17 I am presently concerned only with the question of the discharge or otherwise of the interlocutory injunctions. 18 The applicant in NATB has applied to the High Court for special leave to appeal and therefore opposes the discharge of these orders. The applicant argues that these orders should not be discharged until such time as the High Court has had the opportunity of considering the application for special leave to appeal in NATB. 19 In the alternative, the applicant has sought further orders in the nature of injunctions restraining the Minister from removing the applicant from Australia pending the hearing of the application by NATB for special leave to appeal. 20 I think it is clear that the present orders cannot stand because they contemplate an end in their operation after the hearing of the appeal to the Full Court of the Federal Court in NATB. The Full Court has delivered its reasons in NATB2, so the order should be discharged as it was contemplated that it would come to an end at that time. 21 The question on this application is really whether I should put in place some other orders which would restrain the Minister from removing the applicant from Australia pending the application for special leave to appeal in NATB being heard in the High Court. The applicant has argued that the orders should be made because there is an application for special leave. Counsel has argued that if the orders were discharged and the applicant were removed prior to the hearing of the application for special leave to appeal and special leave was given, the applicant's rights would be lost. 22 The applicant has argued that in a case such as this, where the applicant is liable to be removed from Australia, I should approach the matter upon the basis that the orders should stand until such time as the application for special leave to appeal has been determined. 23 The applicant relied upon a decision of the High Court in Tait v The Queen (1962) 108 CLR 620. In that case the High Court made an order that the execution of the applicant in that case fixed for the next day be not carried out but stayed pending the disposal of his application for special leave to appeal to the High Court and any appeal to the High Court as a consequence of that application. 24 Mr Charman, counsel for the applicant, argued that that case establishes that the High Court was prepared to grant a stay in circumstances where the applicant would have been executed if such a stay had not been granted. 25 That case is no more than a stark example of the Court preserving the subject matter of an appeal. Where the subject matter of the appeal will be lost if a stay order is not made or some other order is not made to preserve the subject matter of the appeal, a court is often willing to make such an order. 26 There are other examples in the civil jurisdiction such as Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681where the High Court made an order preserving the subject matter of the appeal to ensure that the appeal was not rendered nugatory pending the hearing of the appeal. 27 That is not the case in this case. In this case the applicant has sought an order restraining the Minister from exercising the Minister's power under s 198(6) of the Act pending the disposal of an application in another case for leave to appeal to the High Court. 28 The application for special leave to appeal to the High Court will be considered in circumstances where the High Court has refused special leave in M38 because there was insufficient reason to doubt the correctness of the decision of the Full Court of the Federal Court in that case. 29 It seems to me that if the applicant is entitled to an order of the kind presently sought, the applicant needs to show that there is some prospect that the application for special leave to appeal in those other proceedings might succeed. I do not put the test any higher than that. If I was satisfied that there was some prospect that the High Court would be likely to grant special leave to appeal in NATB then, having regard to the consequences which would otherwise flow to the applicant by being removed from Australia in the meantime, I would be disposed to make the order. 30 However, the applicant in NATB faces the formidable prospect of convincing the High Court that the construction the Full Federal Court gave to s 198(6) of the Act (the correctness of which the High Court has recently said there was insufficient reason to doubt), is now incorrect. 31 In my opinion there is no point of distinction between M38 and NATB. However, more importantly, the Full Court of the Federal Court itself in NATB was not able to distinguish M38 from the case before it. If there is no point for distinction then it is highly unlikely that the High Court would grant leave to appeal in NATB when it refused leave to appeal in M38. 32 In my opinion, therefore, it is highly unlikely that the High Court will grant special leave to appeal in NATB. That means that the construction of s 198(6) given by the Full Court in M38 will stand as it was explained in NATB2. In my opinion, therefore, the orders made on 22 August and 8 September should be discharged and no other order should be put in place. 33 It was suggested by Mr Charman that I should reserve my decision on these applications until such time as the High Court had heard the application for special leave to appeal in NATB. Whilst that might have been a practical result, to adopt such a procedure would have been to deny the Minister's right to seek the discharge of the injunctions and, in effect, would be to allow the applicant a result to which I believe the applicant is not entitled to. 34 In those circumstances, the orders will be: 1. Paragraphs 1, 2 and 3 of the orders of 22 August 2003 are discharged. 2. Paragraph 1 of the order made on 8 September 2003 in which an interlocutory injunction was granted is discharged. 3. In this particular case, to avoid any doubt, paragraph 1 of the order made on 19 September 2003 confirming the order made on 8 September 2003 is also discharged. 4. Adjourn the applicant's and the respondent's application for costs until 16 February. 5. Order dismissing the applicant's application for orders in the nature of injunctions restraining the respondent from removing the applicant from Australia pending the hearing of the application for special leave to appeal in the matter of NATB. I certify that the preceding thirty four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.
Solicitor for the Applicant: Refugee Advocacy Service of South Australia
Solicitor for the Respondent: Australian Government Solicitor
Shahrooie
Minister for Immigration and Multicultural and Indigenous Affairs
(2003) 199 ALR 290
(1962) 108 CLR 620
(1986) 161 CLR 681
(2003) 195 ALR 24