Shahrooie v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 On 21 August 2003 the applicant issued proceedings, supported by a statement of claim, against the respondent seeking an injunction restraining the respondent from returning the applicant to Iran. 2 The matter came on before me on 22 August 2003 and over the objection of the respondent I made an interim injunction until 2.15 pm on 8 September 2003 restraining the respondent from removing the applicant from Australia. 3 I gave directions relating to the filing of any affidavits upon which either the applicant or the respondent intended to rely and adjourned the hearing of the application for an interlocutory injunction until 8 September 2003. 4 On the returned hearing I made an order continuing the injunction until seven days after the hearing of an appeal to the Full Court of the Federal Court of Australia in NATB v Minister of Immigration and Multicultural and Indigenous Affairs. 5 These are my reasons for making that order. 6 On making the order I inquired of the parties whether either of them required reasons from me. The respondent, who was unsuccessful in resisting the applicant's application, did not require reasons but the applicant sought reasons because there are other matters of the same kind filed in this registry of the Court. 7 The applicant is a citizen of Iran who entered Australia illegally on 20 April 2001. He did not then (and does not now) hold a visa that was in effect and thus it is that he was an unlawful non-citizen: s 13 and s 14 Migration Act 1958 (the Act). 8 The applicant sought a protection visa (class XA) which application was refused by the Minister's delegate. 9 Section 36 of the Act allows for a class of visas known as protection visas. A person is entitled to a protection visa if that person can satisfy the Minister that the person is a non-citizen to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (the Refugees Convention) as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the Refugees Protocol). 10 The applicant sought a review of the Minister's delegate's decision but that application was dismissed by the Refugee Review Tribunal (RRT). 11 He applied to a single judge of this Court seeking a judicial review of the decision of the RRT but that application was dismissed: SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 767. An appeal from that decision to the Full Court of this Court was also dismissed: SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358. 12 There is presently no application for a substantive visa. The applicant remains an unlawful non-citizen. 13 The applicant is in detention: s 189 of the Act. He is liable to remain in detention until he is removed from Australia under s 198 or s 199 of the Act, or deported under s 200 of the Act, or granted a visa: s 196 of the Act. 14 Because he is in detention the applicant is a detainee. Detainee is defined in s 5 and means a person detained. Detain is defined in s 5: 'Detain means: (a) take into immigration detention; or (b) keep, or cause to be kept, in immigration detention; and includes taking such action and using such force as are reasonably necessary to do so.' 15 Section 198 of the Act imposes obligations upon officers of the Department of Immigration and Multicultural and Indigenous Affairs (the Department). Relevantly, s 198(6) 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.' 16 In s 5 of the Act 'officer' is widely defined and includes: '(a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or (b) … (c) … (d) … (e) … (f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or (g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.' 17 The applicant is not a refugee. A refugee is a person who can bring himself or herself within Article 1 of the Refugees Convention. In particular, a refugee is a person who can establish that he or she: "owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.' 18 The applicant was unable to bring himself within that definition in his application to the Minister for a protection visa. He has not been able to successfully challenge that decision in the RRT or this Court. Thus it is the applicant is not a refugee within the meaning of the Refugees Convention. 19 In the statement of claim accompanying the application the applicant claimed that he should not be returned to Iran because of a well founded fear of persecution. He does not expressly claim that his fear arises for Convention reasons nor does he expressly claim that he is a refugee, although he does claim that if returned to Iran 'his life or freedom would be threatened on account of his religion, membership of a particular social group or political opinion'. 20 On the returned hearing the applicant obtained leave to amend the statement of claim to also claim that he feared that he would be tortured if returned to Iran. 21 The applicant has claimed in his statement of claim: '36. The return of the Applicant to Iran will constitute refoulement of that 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.' 22 It is implicit in par 36 of the applicant's statement of claim that the applicant is a refugee. The Refugees Convention only relates to refugees. He has relied on art 33. 23 Article 33 of the Convention provides: '1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom will be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.' 24 Article 33 only provides protection for refugees. Thus the applicant is asserting that he is a refugee in that he comes within Art 1 of the Refugees Convention notwithstanding that he was unable to establish that claim before the delegate or on review before the RRT and this Court. 25 Although the wording in Article 1 and Article 33 of the Refugees Convention is not precisely the same it has been accepted that there is no distinction between refugee status and entitlement to non-refoulement. In M38/2002 v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131 the Full Court said at [38]: 'Article 33 states the principle of non-refoulement, which applies to persons who are refugees within the meaning of Art 1. Although the definition of "refugee" in Art 1 and the identification of persons subject to the non-refoulement obligation in Art 33 differ, it is clear that the obligation against non-refoulement applies to persons who are determined to be refugees under Art 1: see R v Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958, at 1001 per Lord Goff. Goodwin-Gill (op cit, at 138) says: The travaux préparatoires do not explain the different wording chosen for the formulations respectively of refugee status and non-refoulement; but neither do they give any indication that a different standard of proof was intended to be applied in one case, rather than in the other. In practice, the same standard is accepted at both national and international levels, reflecting the sufficiency of serious risk, rather than any more onerous standard of proof, such as the clear probability of persecution. At the international level, no distinction is recognized between refugee status and entitlement to non-refoulement. [Citations omitted] We note that whilst the Refugees Convention attributes refugee status to a person who satisfies the definition in Art 1, it is left to each contracting state to implement procedures for determining whether or not a person is a refugee as he or she claims: see below [40] - [42]. By virtue of Art 33(1) of the Refugees Convention, a contracting state undertakes an obligation couched in negative terms. It is an obligation not to expel from its territory a person who is determined to be a refugee within Art 1 to the frontiers of a territory in which there is a threat to his or her life or freedom for a Convention reason. If a contracting state removes a person from its territory, there can be no breach on its part of Art 33 if the person is not a refugee (as defined in Art 1) or, if a refugee, the removal does not involve the return to a place where there is a risk to his or her life or freedom on account of his or her race, religion, nationality, membership of a particular social group or political opinion: cf Al-Rahal, at 75-76 per Spender J and 97 per Tamberlin J; and V 872/00A, at 274 per Hill J and 286 per Tamberlin J.' 26 There are two insurmountable difficulties confronting the applicant, in relying on his contention that his removal to Iran would constitute refoulement under art 33 of the Refugees Convention, when seeking an interlocutory injunction of the kind now sought. The applicant's first difficulty is that he has been found not to be a refugee. Therefore he is not entitled to the benefit of Article 33 or indeed any other article of the Refugees Convention. That finding would be itself enough to dismiss that contention. 27 Secondly, he has been detained under s 189 and s 196 of the Act. The applicant is a detainee who made a valid application for a substantive visa which has been refused and finally determined. He has not made another valid application for a substantive visa. 28 In those circumstances an officer of the Department is under an obligation to remove the applicant as soon as 'reasonably practicable': s 198(6) of the Act. The applicant is not entitled to have those officers who have responsibility for removing unlawful non-citizens from Australia consider his claim to be a refugee. 29 In M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131 (M38/2002) the applicant was also an Iranian national who had entered Australia unlawfully. Like the applicant in this matter the applicant in M38/2002 had applied unsuccessfully for a protection visa and had been unsuccessful before the RRT in his application for a review of the Minister's delegate's decision. He also had applied to this Court for judicial review but like this applicant had been unsuccessful. 30 He brought proceedings against the Minister seeking permanent and interlocutory injunctions restraining the Minister from returning him to Iran. Like the applicant in this case he claimed that he was a refugee and that returning him to Iran would constitute refoulement contrary to Art 33 of the Refugees Convention. 31 In M38/2002 the applicant also claimed that returning him to Iran would constitute 'refoulement contrary to Australia's obligations under Article 3 of the Torture Convention'. 32 The Court held that the Refugees Convention does not purport to confer a right of asylum on a refugee in a contracting state. The Refugees Convention is concerned with the 'status and civil rights of refugees in the contracting states': M38/2002 at [35]. Article 33 is a part of the Refugees Convention which provides refugees with a civil right by limiting the circumstances in which a refugee might be removed from this country. It deals with the principle of refoulement. 33 The Act recognises the Refugees Convention by giving effect to some of the provisions of the Refugees Convention. A protection visa is one instance of the Act's recognition of Australia's obligation under the Refugees Convention. 34 In M38/2002, the Full Court held, following Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 278, that the Refugees Convention is not part of the Australian domestic law except insofar as it has been incorporated by statute. 35 In particular the Full Court concluded that Art 33 of the Refugees Convention is not incorporated by implication in the Act such that it impacts upon the duties imposed upon an officer under s 198(6) of the Act. 36 The Court decided that an unlawful non-citizen who had exhausted his administrative rights and judicial review options was not entitled to claim to be considered as a refugee on an application to prevent the Minister from removing him from Australia pursuant to s 198(6): [71]. The Full Court concluded that s 198(6) imposed an imperative duty upon the officer which required the officer to act to remove the applicant as soon as 'reasonably practicable' after the events in s 198(6) had occurred. The Full Court said that in those circumstances no duty was imposed upon the officer to examine the applicant's contention that he was a refugee: [72] - [78]. 37 For those two reasons the applicant's claim to be entitled to the protection of Art 33 of the Refugees Convention had to fail. 38 However, the Court in M38/2002 noted that the officer's duty, whilst imperative, was not absolute 'in the sense that it does not arise as soon as 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': [64]. 39 In considering the expression 'reasonably practicable' the Court said: '65. The use in legislation of the expression "reasonably practicable" is not novel, and the authorities that discuss its use are numerous. In the authorities and in the Shorter Oxford English Dictionary, the word "practicable" has the meaning "capable of being carried out in action; feasible": see eg, Uebergang v Australian Wheat Board (1980) 145 CLR 266 ("Uebergang") at 305 per Steven and Mason JJ; also Adsett v K & L Steelfounders & Engineers Ltd [1953] 2 All ER 320 at 321 per Singleton LJ; and Lee v Nursery Furnishings Ltd [1945] 1 All ER 387, at 389 per Lord Goddard. Whether or not the removal of an unlawful non-citizen is practicable seems to be largely, if not entirely, concerned with whether the removal is possible from the officer's viewpoint. The word "reasonably" in the expression "reasonably practicable" limits or qualifies what would otherwise be an almost absolute obligation: cf Marshall v Gotham Co Ltd [1954] AC 360 ("Marshall v Gotham") at 373 per Lord Reid. The removal of a non-citizen may be practicable in the sense that it is feasible, but not "reasonably practicable" as required by s 198(6) of the Act. In the context of s 198(6) of the Act, practicability and reasonableness may, on occasion, operate in opposing senses: cf Uebergang, at 306 per Stephen and Mason JJ. Whether the removal of a non-citizen is "reasonably practicable", as distinct from merely "practicable", may direct attention to a range of considerations, including factors relating to the unlawful non-citizen facing removal, and the interests of third parties who may be directly affected (such as, for example, the interests of third party states).' 40 The Court, after referring to the need for another country to admit the unlawful non-citizen, in circumstances where the absence of such a country may make that person's removal not 'reasonably practicable', said at [69]: 'Doubtless, there will be other factors that, from time to time, will lead an officer to include that, at the time removal is contemplated, removal will 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. (We interpolate here that this was not the situation under consideration in SE: see SE, at 739 - 740.) 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, at [7] per Merkel J (with whom Heerey and Conti JJ agreed).' 41 Whilst the Court was of the opinion that any claim that s 198(6) was subject to a consideration of Australia's obligation not to refoule a refugee was misconceived, and although the Court had earlier noted that the applicant also claimed that his return to Iran would constitute a refoulement contrary to Australia's obligations under Art 3 of the Torture Convention, nothing else was said about that second matter in the Court's reasons for judgment. 42 Of course I am bound by the decision in M38/2002 and therefore the applicant's case as framed in the statement of claim, in its unamended form, was bound to fail. 43 The decision in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs is currently the subject of an application for special leave to appeal to the High Court of Australia. That application, I am told from the bar table, is to be heard on 12 December 2003. 44 The applicant contended when the applicant was first before me that because M38/2002 was to be considered by the High Court an interlocutory injunction should be granted pending the disposal of that appeal. 45 If that had been the only matter before me on the returned hearing, I would not have made the order which I did. 46 However, as I have already said, the applicant obtained leave to amend his statement of claim to allege that he had a fear that if removed to Iran he would be subject to torture. In support of that argument the applicant's counsel relied upon the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984 (the Torture Convention). 47 It was not suggested before me that the provisions of the Torture Convention form part of the Australian law. As in M38/2002 counsel recognised that the Torture Convention was not part of the Australian law because it had not been incorporated into the Australian law by statute: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. 48 The applicant's argument was that even if M38/2002 had been correctly decided, it had left open the question of the application of the Torture Convention to s 198(6). 49 I think that submission is correct. It is clear enough that M38/2002 did not address directly the question of the application of the Torture Convention to s 198(6). 50 The applicant's contention was that the officer, when complying with his or her duty under s 198(6) and when considering whether it was reasonably practicable to remove the applicant to Iran, would have to have regard to the prospects of the applicant being tortured on the applicant's return to Iran. 51 If one is to assume that M38/2002 was correctly decided, and that is an assumption that of course I must make sitting at first instance, it is difficult to see how the Torture Convention would affect an officer's obligation under s 198(6) if the Refugees Convention did not. 52 The same arguments which appealed to the Full Court in M38/2002 that the Refugees Convention did not impact on an officer's obligation under s 198(6) would seem to be available and carry the same force in relation to the Torture Convention. 53 However, the applicant contended that that is still a matter to be decided. 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. 61 The Full Court in NATB therefore allowed the second judge's order restraining the Minister from removing the applicant from Australia until further order to stand, pending the hearing of an appeal to the Full Court. It gave the applicant leave to appeal and made an order expediting the hearing of the appeal. 62 If there is no relevant distinction between the Refugees Convention and the Torture Convention's impact on s 198(6), it might have been expected that the Full Court would have said so in NATB. However the Full Court has left the matter open and the matter is still to be considered. In those circumstances the Full Court must have thought that it was at least arguable that there was a distinction between the two Conventions and their impact on s 198(6). 63 The applicant therefore was able to contend before me that the decision of the Full Court in NATB left open the question whether an officer had an obligation, in relation to that officer's consideration of whether the applicant's removal from Australia was reasonably practicable, to have regard to the applicant's fears of torture in Iran. 64 I am unable to distinguish the decision in NATB. The same claim as made in this case was made in that case. That claim was enough to give leave to appeal even accepting the correctness of M38/2002. 65 In those circumstances it appeared to me that the applicant has demonstrated that there is a serious question to be tried if the applicant has a right to have the officer's decision to remove him from Australia reviewed judicially by this Court. 66 There can be no question but that the balance of convenience favoured the granting of an injunction. If the applicant were now removed from Australia, the applicant would lose all rights which accrued to the applicant even though the applicant is an unlawful non-citizen. 67 The respondent advanced one further argument in opposition to the orders sought. The respondent submitted that I should follow a later decision of a judge of this Court in this registry in SAAK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 921 (SAAK). 68 In that case the Judge refused to grant an injunction restraining the Minister from removing an Iranian national who was an unlawful non-citizen from Australia and to Iran. The applicant in that case claimed that his removal would amount to a refoulement contrary to Australia's obligations under Art 33 of the Refugees Convention. The decision in NATB was brought to the Judge's attention. I think the argument put to the judge was that NATB questioned the correctness of M38/2002. 69 In that case the Judge said at [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.' 70 I agree with those remarks. I do not read NATB as questioning the correctness of M38/2002. NATB is authority for the proposition that perhaps two matters were left open in the decision in M38/2002 in relation to a consideration of an officer's obligation under s198(6). NATB does not suggest, contrary to the decision in M38/2002, that an officer must have regard to the Refugees Convention when exercising the officer's obligations under s 198(6). 71 The only matter before the Judge in SAAK was a claim by the applicant in that case that his return to Iran would constitute refoulement contrary to Australia's obligations under Art 33 of the Refugees Convention. I have already indicated that if that had been the only matter before me I would have arrived at the same decision. 72 However in the case before me the applicant has also claimed, as the applicant did in NATB, that he would also suffer torture and his return would constitute a refoulement contrary to Australia's obligations under Art 3 of the Torture Convention. 73 That is the point of distinction on the facts between my decision and the decision in SAAK. 74 For those reasons I made the order to which I have earlier referred.