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.