SPKB v Minister for Immigration & Multicultural & Indigenous Affairs

4 Lander J then found there was no reasonable prospect that the appellant might be involuntarily removed to Iraq. This was because Mr Durston was of the view that there was no real prospect of involuntary returns commencing before the beginning of 2004. 5 His Honour then turned to whether there was a reasonable prospect that the appellant might be voluntarily returned to Iraq. Mr Durston was of the opinion that there were very good prospects of the appellant being removed from Australia in the near future if he volunteered to return to Iraq. Lander J noted, in reliance on Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241 at 273, that in determining whether there is a real likelihood or prospect of removal regard must be had to an applicant's co‑operation in effecting that removal. It is only if an applicant is prepared to co‑operate that the implied limitation that the detention can only continue when there is a real likelihood or prospect of removal of the person from Australia exists. It was common ground at first instance that the appellant was under a duty to cooperate in his removal from Australia. 6 Lander J reviewed the events that had occurred since 5 October 2000, when the Tribunal dismissed the application for review, in order to determine whether the appellant had exhibited any degree of cooperation in relation to his return to Iraq. His Honour set out passages from the transcript of exchanges between the applicant's counsel and his Honour bearing on this issue. On the basis of those exchanges his Honour made this finding at [94]: "I find that the applicant will not cooperate in his removal from Australia to Iraq. He will not cooperate because he asserts that he has a well founded fear of persecution if returned to Iraq for reasons of his political opinions. He will not cooperate until such time as the Minister determines that he does not have a fear of persecution, or if he has a fear it is not for a Convention reason or it is not well founded. In other words he will not cooperate until the Minister determines that he is not a refugee from Iraq." 7 His Honour concluded that the appellant was not entitled to make his cooperation for removal to Iraq conditional upon the Minister first determining that he is not a refugee. His Honour referred to the Full Court's decision in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290 (M38/2002) in which it was held that the Minister plays no part in the removal process under s 198(6) of the Migration Act 1958 (Cth), that the imperative duty to act under that provision is cast upon an officer, that the officer is not empowered to determine whether a person in detention who is to be removed is a refugee, and that the only persons who may make that determination are the Minister or his delegate and the Refugee Review Tribunal. His Honour concluded this part of his judgment at [108]‑[110] as follows: "The applicant was found not to be a refugee because he could be returned to Syria. Circumstances have since changed as my earlier finding shows. However that does not entitle the applicant to make a further application for a protection visa. Nor does it entitle the applicant to require the Minister to make a determination about his refugee status qua Iraq before the officer exercises his power under s 198(6). His status has been determined adversely to him." In those circumstances the applicant is not entitled to rely upon the benefit of the Al Masri decision because he has not cooperated and will not cooperate in his removal to Iraq. The applicant's claim to be entitled to a protection visa was finally determined, for the purposes of s 198(6) of the Act, when the RRT affirmed the delegate's decision (s 5(9) of the Act) and the applicant abandoned his application for judicial review from that decision. Section 48A of the Act precludes the applicant from making a further application for a protection visa."

Section 48A(1) of the Act, referred to in the above passage, provides:

"Subject to section 48B, a non-citizen who, while in the migration zone, has made: (a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or (b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined); may not make a further application for a protection visa while in the migration zone." 8 Lander J then dealt with an argument based on s 218 of the Act which provides: "(1) Subject to section 217, if a person is to be removed or deported, the Secretary may give the controller of a vessel or vessels a written notice requiring the controller to transport the person from Australia to a destination of the vessel or one of the vessels specified in the notice. (2) Subject to sections 219 and 220, the controller must comply with the notice within 72 hours of the giving of the notice or such further time as the Secretary allows."

The word "vessel" is defined in s 5 to include an aircraft. The argument based on s 218 was that the power of removal can only be lawfully exercised by placing a person aboard an aeroplane or ship bound for an international port, and there was no reasonable prospect of the appellant's removal to Iraq in this way in the foreseeable future. The contention was that s 218 must be construed in accordance with the expressio unius rule, so that removal can be effected only pursuant to that section.

9 Lander J first observed that there was no basis for the contention that s 218 requires removal in a vessel whose destination is an international port. His Honour rejected the expressio unius argument at [120] as follows: "Section 218 does not mean that a person may only be removed by a vessel as defined in s 5. Section 218 enables the secretary to give instructions to the controller of a vessel. The section is facultative. It has been enacted to assist the Secretary and the officers in the department to effect the removal of a person from Australia. It does not limit the way in which persons may be removed. For example, there is nothing in the Act which would prevent a person being removed from Australia on a military aeroplane. In those circumstances the Secretary would not need to give a notice under s 218." 10 Lander J dismissed the application. 11 There are four grounds of appeal. The first is that the primary judge erred in law in holding that the appellant can be lawfully removed to Iraq pursuant to s 198 of the Act without his claim to have a well‑founded fear of persecution in that country being first determined and rejected on the merits. Section 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: (i) 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."

12 The following propositions relating to s 198(6) emerge from M38/2002:

· If, in a particular case, the conditions in pars (a) to (d) are satisfied, then an officer has an imperative duty to remove the unlawful non‑citizen from Australia, when it is reasonably practicable to do so.

· The sub‑section is concerned with the removal of detainees who have failed in their visa applications and have no valid visa application on foot.

· It is for the officer on whom the duty would otherwise fall to consider whether removal is reasonably practicable in the circumstances of the case.

· The sub‑section is not susceptible of the construction that it does not authorise the removal of a refugee to a place where he faces a real risk of imprisonment or punishment for Convention reasons.

· By the time an officer is called upon to discharge the duty imposed by the sub‑section, any claim by a detainee for refugee status has been refused, or is taken to have been refused, in accordance with the processes established under the Act.

· It is not open to an officer to consider whether an unlawful non‑citizen is a "refugee" within the Convention.

· In discharging the duty under the sub‑section, an officer proceeds on the basis required by the provision, namely that the detainee is an unlawful non‑citizen who is not entitled to a protection visa, because any application for such a visa has failed, and there is no current application on foot.

· Whether the sub‑section authorises the Minister to return a detainee to a place where his life or freedom will be threatened does not arise, and the Court cannot embark on a consideration of it; facts bearing on the threat to life or freedom are not relevant to the duty imposed by the sub‑section.

· Sections 48B and 417 of the Act enable the Minister to consider the position of a detainee who claims his life or freedom is under threat in his country of origin.

See also Re Minister for Immigration and Multicultural Affairs; Ex parte SE (1998) 158 ALR 735 at [14]‑[19] per Hayne J.

13 The propositions set out in [12] show that the primary judge made no error in holding that the appellant, having been found not to be a refugee and having abandoned his application for judicial review of the Tribunal's decision, is not entitled to require the Minister to make a determination about his refugee status qua Iraq before the officer exercises the power under s 198(6). The first ground of appeal fails. 14 The second ground is that the primary judge misapplied M38/2002. It was submitted that that case stands for the proposition that there is no superadded duty in international law to prevent refoulement once a claim of persecution has been rejected on the merits according to domestic law. The present case is said to be distinguishable in that the appellant's claim of persecution has not been rejected on the merits under domestic law. In M38/2002 the Minister's delegate refused the application for a protection visa of an applicant who claimed a fear of persecution on return to Iran. The Tribunal affirmed the delegate's decision. This Court dismissed an application for review of the Tribunal's decision. There was no appeal against that decision. The applicant claimed in a fresh proceeding that an officer could not under s 198(6) of the Act "refoule" him to Iran contrary to Article 33 of the Convention. The fact situation in the present case is different in that while the Minister's delegate and the Tribunal have refused, on the merits, the appellant's claim to a protection visa because he has effective protection in Syria and Syria will not return him to Iraq, his claim to fear persecution in Iraq has not been determined. Nevertheless, the decision in M38/2002 depended on the proper construction of s 198(6), and as the propositions in [12] show, that provision, so construed, operates to produce the result set out in [13]. 15 The third ground of appeal is that the primary judge erred in law in holding that the unwillingness of the appellant to return to Iraq without an assurance that he would no longer be at risk of persecution in that country constituted a material lack of co‑operation so as to disentitle him to release in accordance with Al Masri. It was said that on the facts as found by the primary judge, the appellant's attitude in this regard did not relevantly cause or contribute to the inability of the respondent to remove him to Iraq. The primary judge's finding is set out at [6]. It is supported by what was put to his Honour by the appellant's counsel, which is set out at [92]‑[93] of his reasons. That exchange amply justifies the finding. The claim that the appellant's attitude did not relevantly cause or contribute to the respondent's inability to remove him to Iraq is misconceived as M38/2000 shows. Section 198(6) imposes a duty on the officer, not the Minister. In any event, there is no substance in the claim that the appellant's attitude did not cause or contribute to the officer's inability to remove him to Iraq. What was in issue was the appellant's voluntary return to Iraq. No question arose of his involuntary return. See [4]. It is clear that in order for the appellant to be voluntarily returned to Iraq, he would have to set in train or agree to the various steps required in order that he reach Iraq and be admitted to the country. The appellant claimed he had signed all documentation required of him for his removal to Iraq. The only evidence in this regard is that he completed an application for an Australian Certificate of Identity and returned it to the Department, whereupon a Certificate was issued. After the issue Mr Durston directed his officers that an application for a visa to enter Iraq be provided to the appellant. There is no evidence that the appellant has completed the application and lodged it with the Iraqi authorities. Every indication is that he has not done so. Whether he has done so is within his knowledge, but he has remained silent. That he has done so is inconsistent with his counsel's statement of the appellant's attitude that led to the primary judge's finding set out at [6]. The causal or contributory connection is established. 16 The appellant complained that the primary judge had not observed the onus of proof observations in Al Masri at [176]. There it was said it is for an applicant for release to adduce evidence that puts the legality of detention in issue, whereupon the burden shifts to the respondent to show that the detention is lawful. It was said that his Honour had ignored questions of onus, having moved directly to the question of cooperation. His Honour was aware of what had been said in Al Masri about onus. The transcript of proceedings at first instance was before us. Al Masri at [176] was drawn to his Honour's attention and read to him. The appellant's lack of cooperation made questions of onus irrelevant. It was common ground that he was obliged to cooperate in his removal as a condition of it being found that his detention was unlawful. 17 We agree with the following observations of French J in WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 at [60]‑[61]: "It may be said in the present case that there have been delays on the part of the Department in dealing with the applicant's request for removal. In my opinion, however, there has never been a stage at which that request has been unconditional or unequivocal. I do not accept the submission made by counsel for the applicant that the fact that the applicant withholds his consent to being removed to some specific country or makes that consent conditional does not have a bearing on the question of what is 'as soon as reasonably practicable' under s 198(1) or (6). I would go so far as to say the written request for removal contemplated by s 198(1) which is so conditioned is not a request of the kind contemplated by that section. In particular, it is not open to the applicant to argue that he can condition or limit his request for removal by excluding the possibility of removal to the country from which he had fled …. There is nothing in the terms of s 198(1) to suggest that a detainee's request to be removed from Australia may be expressed to be subject to conditions including conditions which exclude removal to specified countries and yet still attract the duty to remove him which is created by that section. In particular there is no implication that the applicant requesting removal may reasonably withhold his consent to be removed to a particular country where that consent would be necessary to effect that removal. A detainee cannot, in effect, create a circumstance which negatives any reasonable likelihood that he can be removed in the foreseeable future by withholding his consent or cooperation to a particular avenue for removal and specifically to removal to the country from which he came." Lander J's finding set out at [6] brings the case within the last sentence of the above passage. The appellant seeks to create a situation where there is no reasonable likelihood of his removal in the foreseeable future by withholding his cooperation to his removal to Iraq. This he cannot do. 18 The fourth ground of appeal is that the primary judge erred in holding that s 218 of the Act is facultative, and that his Honour ought to have held that the section limits the power and duty of removal under s 198 to removal by means of a vessel as defined and that, as there was no prospect of the appellant being removed to Iraq by vessel in the reasonably foreseeable future, he was entitled to be released. There is no substance in this contention. The expressio unius aid to construction is to be applied with caution: Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250. Section 198 requires an officer to remove from Australia the various people to which it applies. There is no reference to the manner in which the removal is to be effected. The matter is at large. Division 10 of Part 2 of the Act, which consists of ss 207 to 224, deals with "Costs etc of detention, removal and deportation". Section 210 makes a non‑citizen who is removed from Australia liable to pay the Commonwealth the costs of the removal. The word "costs" is defined in s 207 as "the fares and other costs to the Commonwealth of transporting the non‑citizen … from Australia to the place outside Australia to which the non‑citizen is removed …". Again there is no reference to any particular mode of transportation. The vehicle by which the non‑citizen is conveyed will depend on what is arranged between the officer and the non‑citizen or by the officer. Section 218 is not a provision dealing with the mode of removal at large. It confers a power on the Secretary to require the controller of a vessel to transport the person, and makes it an offence for the controller not to comply with the notice containing the requirement. There is no implication in the section that the officer is not at liberty to discharge the duty imposed by s 198 by making some consensual arrangement with an airline or shipping company to effect the removal, or as the primary judge said, effecting the removal by military aeroplane. 19 Section 48A of the Act is set out at [7]. It is expressed to be subject to s 48B, sub‑s (1) of which provides: "If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given. This power may only be exercised by the Minister personally: sub‑s (2), and she does not have a duty to consider whether to exercise it: sub‑s (6). The present case is unusual. Unlike the position in M38/2002 and WAIS, there has been no consideration by a Ministerial delegate as to whether the appellant has a well‑founded fear of persecution if he were to return to Iraq. The power in s 48B is the Minister's. All we are concerned to do is to ensure that the Minister is aware of the unusual feature of the case. 20 The appeal must be dismissed. 21 A confidentiality order relating to parts of Mr Durston's affidavit filed in the proceedings before Mansfield J and to an affidavit sworn by James Robert Williams in S210 of 2002 was made by his Honour. A similar order was made by Lander J in relation to a further affidavit sworn by Mr Durston in the proceedings before his Honour. As appears from paragraph 3 of the orders made herein, we have expanded those orders so as to cover relevant parts of the transcript of the appeal hearing. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Carr, Finn and Sundberg.

Counsel for the Appellant: G F Barrett QC and M B Manetta

Counsel for the Respondent: A Cavanough QC and S Maharaj

Solicitor for the Respondent: Australian Government Solicitor