SPKB v Minister for Immigration & Multicultural & Indigenous Affairs

The Full Court then noted the primary judge's conclusion from the transcript of exchanges between the appellant's counsel and his Honour, that "the applicant will not co‑operate in his removal from Australia to Iraq". In those circumstances, his Honour said, the appellant was not entitled to the benefit of Al Masri "because he has not cooperated and will not cooperate in his removal to Iraq".

3 The basis for the appellant's case for the relief sought in its motions derives from what the Full Court said at [15] of its reasons in S816 of 2003. The opening sentences are as follows: "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 Court could have rejected the third ground of appeal on the basis of the passage just set out. It was common ground that the appellant was obliged to cooperate in his removal as a condition of it being found that his detention was unlawful. See Al Masri at 273. Later the Court quoted with approval the observations of French J in WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 at [60]‑[61], which included this passage:

"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." 4 After the passage set out at [3] the Court rejected a submission that the appellant's attitude did not relevantly cause or contribute to the respondent's ability to remove him to Iraq. This submission was misconceived because the duty in s 198(6) of the Migration Act 1958 to remove an unlawful non‑citizen in the circumstances there described is imposed on an "officer" (as defined in s 5) and not on the respondent. The Court had already referred to the Full Court's decision in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290 to this effect. The Court continued: "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 this 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." 5 Then follow the sentences to which objection was taken by the appellant: "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."

It is submitted that the first sentence in this passage is not supported by the evidence. For the purposes of dealing with the issue raised by the motions we will assume that to be so. However the assumed error has no effect on the conclusion we reached in our reasons at [15]. The question was whether the primary judge's finding that the appellant will not cooperate in his voluntary removal from Australia to Iraq was supportable. On the basis of his Honour's exchange with counsel, we concluded that the "exchange amply justifies the finding". Accordingly, the appellant was not entitled to the benefit of Al Masri. We could have left the matter there. However, we went on to reject the causation/contribution submission on three grounds. The first was that it confused the respective roles of the officer and the respondent, as M38/2000 makes clear. The second was that it confused involuntary and voluntary return, only the latter being in question before the primary judge. The confusion is inherent in the submission that the appellant's attitude did not cause or contribute to the inability of the respondent to remove him to Iraq. The third was that there was "in any event" a causal/contributing link, if one was required, between the appellant's attitude and the (assumed) officer's inability to remove him to Iraq. The Court's affirmation of the primary judge's finding that the appellant will not cooperate in his removal to Iraq is unaffected by the assumed factual error. Similarly, the causation/contribution submission was effectively disposed of by the first two above reasons. The lack of a factual basis for the third reason had no effect on the rejection of the submission.

6 The motions notices of which were filed on 23 April 2004 are dismissed with costs. In view of the unfortunate delay in entering the orders made on 18 December 2003, the Court will direct the Registrar to enter them forthwith. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Carr, Finn and Sundberg.

Solicitor for the Respondent: Australian Government Solicitor