SPKB v Minister for Immigration & Multicultural & Indigenous Affairs

The application 5 On 10 April 2003 the appellant applied for an order that he be removed from detention forthwith on the ground that his detention under s 196 was unlawful. In the course of proceedings it became apparent that the appellant's precise contention was that his detention has been unlawful since 20 May 2003, the date on which he was notified as aforesaid. The primary judge observed that it was common ground that the question for decision was whether there was no realistic prospect of the appellant being removed from Australia within the reasonably foreseeable future. See Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70 at [115] and [136]. At first instance the appellant contended that there was no such prospect, and that his continued detention was unlawful. He submitted that there was no prospect of his being removed to Syria or Iraq, and that because of his fear of persecution in Iraq he could not legitimately be removed there. The primary judge noted that if the information before the Court as to what had happened to the appellant and his family in Iraq was correct, it would have provided the basis for a well‑founded fear of persecution by reason of his perceived political beliefs if he were to return there. 6 The primary judge concluded that there was a realistic prospect of the appellant securing an entry visa to Syria "within the next several weeks", and that his detention was accordingly not unlawful. His Honour based this conclusion on the evidence to that effect of the Assistant Director in the Unauthorised Arrivals Section of the Department, Mr Durston. He noted that Mr Durston had been "cross‑examined carefully", was "honest, careful and reliable in the evidence he gave", and had not attempted to "overstate the present position". 7 His Honour noted that while the material before him indicated that during part of 2001 a previous facility to remove some Iraqi nationals to Syria had ceased, a number of Iraqi nationals who, like the appellant, had arrived in Australia by boat without entry papers had been voluntarily removed to Syria between July 2002 and March 2003. Their removal was voluntary based upon their securing an Australian Certificate of Identity and then applying for and obtaining a Syrian entry visa. The appellant's application for such a certificate had been granted on 28 May 2003. The respondent had provided him with the necessary documents for him to apply for a Syrian entry visa. 8 The primary judge accepted that from about April 2003 some Syrian entry visas had not been honoured. However he regarded that as "probably a consequence of the Syrian authorities determining to alter the security checking system on potential visa grantees (or existing visa holders)" rather than a changed attitude on the part of the authorities to the grant of visas to [Iraqis] wishing to enter Syria. Because there was nothing to suggest that the Syrian authorities would consider the appellant a security risk, the fact that some visas had not been honoured did not lead his Honour to conclude that the appellant had no real prospect of securing a Syrian visa in the reasonably foreseeable future. 9 The primary judge took into consideration the fact that the entry visas under which the Iraqis departing Australia and gaining entry to Syria since July 2002 were short term entry visas in the nature of tourist visas, and he assumed that the appellant also had prospects, at least in the first instance, of securing only a short term visa. He added that he did not know what would be the appellant's longer term prospects in Syria or whether there was a risk he would be refouled to Iraq. His Honour did not consider the appellant's prospects of securing entry to Syria were minimal by reason of any lack of earlier connection with Syria. The evidence did not indicate that the Iraqis who had secured entry to Syria from Australia in the past had any greater connection with Syria than the appellant, who had lived there for some years. 10 His Honour then said the risk of the appellant being refouled from Syria to Iraq did not alter his finding on the critical Al Masri fact. The evidence did not show that the appellant may be refouled. He said: "The evidentiary material on the question at present is limited to the applicant's fears, his belief about what happened to his family while they were in Syria, and to the extent it is current the information cited by the Tribunal and by the delegate of the respondent in their respective reasons for decision. The evidence of Mr Durston did not support the claim that Syria would, or might, refoule the applicant to Iraq and the only additional material which might have touched on the topic (a press release of 7 March 2003) did not do so. Whilst there is some material which suggests that Syria will no longer accept Iraqi returnees from Australia or did not do so for some time, it does not take the extra step of suggesting Syria would refoule Iraqi returnees such as the applicant to Iraq." 11 The primary judge added that the decision of Hayne J in Re Minister for Immigration and Multicultural Affairs; Ex parte SE [1998] HCA 72 precluded him from having regard to what may be a change in circumstances in Syria since the Tribunal's decision. The Tribunal found the appellant could be removed to Syria and would not be refouled by Syria to Iraq. His Honour noted that on an application such as that before him, the Court does not have access to the range of evidence to which the Tribunal may have regard in deciding such questions. He said: "For the reasons given by Hayne J, and by Marshall J in Applicant M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 458, s 198(6) does not contain any implied restriction that removal to a third country may be effected only when it is reasonable to do so, or when (after the Tribunal had found that the applicant may return to the third country and safely remain there) circumstances may have changed to suggest there is a risk of refoulement to the applicant's country of origin where there is, or may be, a risk that he might be persecuted for a Convention reason." 12 In view of his conclusion that there was a realistic prospect of the appellant securing an entry visa to Syria in the reasonably foreseeable future, his Honour did not need to consider whether his removal to Iraq without his consent was an option available to the respondent, and if it was, whether there was no real prospect of his being removed from Australia to Iraq within the reasonably foreseeable future. His Honour dismissed the application.

Grounds of appeal 13 The appellant's grounds of appeal assert that the primary judge:

· erred in finding that there was a realistic prospect of the appellant securing an entry visa to Syria

· ought to have found that the respondent is not lawfully entitled to remove the appellant to Iraq without first having heard and determined his application for refuge from that country

· ought to have found that there was no reasonable prospect of the appellant being removed to Iraq in the foreseeable future

· ought to have found that the continued detention of the appellant was unlawful.

14 The primary judge (and the Tribunal) had relied on Thiyagarajah for the conclusion that Australia did not have protection obligations to the appellant because he could return to, and remain in, Syria without the risk of refoulement to Iraq. As was accepted by a majority of the Full Court in NAGV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 144, reconsideration of Thiyagarajah could only be undertaken by the High Court, and unless and until that occurs it is to be applied in this Court. 15 We are not persuaded that the primary judge erred in finding that there was a realistic prospect of the appellant securing an entry visa to Syria in the reasonably foreseeable future. Mr Durston's evidence formed the basis for his Honour's finding. His Honour was impressed with that evidence, noting that the witness had been cross‑examined carefully, and came across as honest, careful and reliable, and did not attempt to overstate the present position. 16 In Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 Brennan, Gaudron and McHugh JJ said: "a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'."

His Honour's finding was based on Mr Durston's evidence. There is nothing to suggest he failed to use the advantage given him by the fact that he heard the evidence as it was given. As appears above, his Honour gave close attention to the cross‑examination and formed a favourable view of the witness for the reasons he gave. The evidence was not inconsistent with facts incontrovertibly established by other evidence. Nor was the finding glaringly improbable. Mr Durston's evidence was in competition with a hearsay account of a telephone conversation between the appellant's solicitor and a person at the Syrian consulate in Sydney, who said a visa to enter Syria could be granted only to the holder of a Syrian passport. The informant's status within the consulate was not disclosed, nor was his authority to speak about Syria's policy as to the return of people such as the appellant. His Honour was entitled to prefer Mr Durston's evidence to this unsatisfactory hearsay material. His Honour's conclusion, based on Mr Durston's evidence, is supported by the evidence that between July 2002 and March 2003 a number of Iraqis in the position of the appellant were able to obtain Syrian visas after having obtained Australian Certificates of Identity. The appellant has obtained such a Certificate. In those circumstances we should not interfere with the primary judge's finding that there was a realistic prospect of the appellant securing an entry visa to Syria. The first ground of appeal fails. It follows that there was no error in his Honour's finding that there was a real prospect of the appellant being removed from Australia to Syria within the reasonably near future. It also follows that the appellant was not unlawfully detained. The fourth ground of appeal fails. So do the second and third. In view of the primary judge's conclusion that there was a real prospect of the appellant being removed from Australia to Syria within the reasonably near future, it was unnecessary for him to consider the two issues the subject of those grounds, and he did not do so.

Conclusion 17 This appeal was heard together with an appeal from the decision of Lander J who dismissed a later application for the appellant's release from detention. In the course of his reasons his Honour concluded, on the basis of evidence that was not before the primary judge on the instant appeal, that there was no realistic prospect of the appellant being removed to Syria within the reasonably foreseeable future. He went on to hold that the appellant's detention was not unlawful because he "has not cooperated and will not cooperate in his removal to Iraq". The relationship between the two appeals has given rise to considerable uncertainty as to the basis upon which the appellant wished the Court to proceed in the instant appeal. In his written submissions the respondent's counsel said he understood the appeal was confined to the question of costs. The assumption appears to have been that the appeal would be dismissed. The appellant's written submissions on this point were as follows: "The appeal … is confined to the question of costs. The appellant contends that, if it is successful in the substantive appeal, it follows that the earlier appeal should be allowed, for reasons given below. … Events occurring shortly after the judgment of Mansfield J demonstrated (as found by Lander J) that his Honour's favourable prognosis of the prospects of removal to Syria was erroneous. In light of the true position, the costs order should not stand. The appeal should be allowed and the costs order below reversed. It may be that his Honour's findings were justifiable on the evidence then before the Court. The appellant challenges them in his notice of appeal but, in light of supervening events such an enquiry would now be an arid exercise. It may be that the appellant's first habeas application was premature in this respect, but that should not affect the appellant's entitlement to costs of the first application (a) because the respondent would have resisted that application in any event and (b) the evidence, transcript and submissions on the first application were admitted in evidence and relied on at the hearing of the second application and to [that] extent the effort was not wasted or unnecessarily duplicated." All that was said on this issue in oral argument was counsel for the appellant's statement that if the appellant was successful on the second appeal, "it follows that we ought to be successful on the appeal from Mansfield J", and that the costs orders ought to be reversed in both cases. There is no distinct advertence to the position that should obtain if the later appeal is dismissed, as it has been. In the light of that, we must deal with the appeal, which should be dismissed. Accordingly we do not need to deal with the submission as to the costs order before Mansfield J. In any event, there is no reason to disturb that order. The appellant's "Syrian evidence" was poorly solicited and presented. His advisers could easily have made proper enquiries of the local Syrian representatives, and presented to the primary judge the material that was later put before Lander J. Confidentiality 18 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 eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Carr, Finn and Sundberg.

Associate: Dated: 18 December 2003 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