Tchoylak v Minister for Immigration & Multicultural Affairs

The decision of the AAT 7 The primary question before the AAT was whether, by virtue of Art 1F(a), and by reason of his acknowledged surveillance activities, there were serious reasons for considering that the applicant had committed a crime or a number of crimes against humanity. An alternative basis upon which the applicant was said to be ineligible for a protection visa was that there were serious reasons for considering that he had committed a serious non-political crime or crimes pursuant to Art 1F(b). 8 Mathews J approached the matter by noting that the substantial issues at the hearing were whether the applicant had participated in any assassination attempt and, if so, whether that was done as an isolated act, or part of a consistent pattern of activities. In either case, did his participation amount to the commission of a crime against humanity under Art 1F(a) or, a serious non-political crime under Art 1F(b)? 9 Her Honour was troubled by the fact that the applicant's account of his activities before the AAT differed significantly from the English translation of what he was alleged to have told the delegate. She observed that there were serious questions regarding the accuracy of that translation. 10 The English translation of the interview before the delegate suggested that the applicant had participated in approximately 20 to 25 assassination operations during the period of his membership of FIS. However, at the hearing before the AAT the applicant strongly denied ever having said anything to this effect. In particular, he denied that he had used the word "assassination" during the course of the relevant part of the interview. He claimed that he had only said that he had been involved in "20 to 25 operations". 11 Her Honour observed: "The most significant difference lies in the final portion of the quoted interview, after the applicant had returned from the toilet. The applicant was quite correct in saying that he never used the word "assassination" in that part of the interview. That the interpreter intruded this word in his translation of the applicant's answer is a matter of real concern." 12 In his account of his activities before the AAT the applicant said that he had at all times been aware that the FIS was involved in the killing of policemen. However, with one exception, he claimed that he was not involved in either the planning or implementation of these activities. His usual role was merely to carry letters and act as a messenger. On the occasion that he did participate in the planned assassination of a policeman, his cooperation had been procured by threats. Two of his friends and the family of a third had previously been killed by the group for refusing to participate in acts of violence, and he was told that if he did not cooperate he would meet the same fate. Moreover, the targeted policeman was a "bad man" who had killed the families of imprisoned FIS members. The applicant also claimed that the information which he passed back to the group had been a combination of true and false accounts as to the policeman's movements. He claimed that he did not know whether that particular policeman had later been assassinated. 13 Mathews J analysed in considerable detail the meaning of the phrase "serious reasons for considering" in Art 1F of the Convention. Her Honour concluded that, notwithstanding the difficulties arising from the unreliable nature of the translation of the applicant's interview with the delegate, there was only one conclusion to be drawn from what he had said, namely that there were "serious reasons for considering" that he had been involved in assassination operations involving police officers in Algeria. Her Honour said: "His role was to observe the target's movements and report them back to the group. He was not involved in selecting the target, nor in the actual killing. But his role was nevertheless integral to the assassination operation. 14 Her Honour also concluded, though not without some hesitation, that the Algerian police force was properly to be regarded as a "civilian population". As noted earlier Art 1F(a) refers to a crime against humanity as defined in the international instruments drawn up to make provision for such a crime. That the crime is directed at a civilian population is a prerequisite to a finding that there has been a crime against humanity in accordance with the definition in these instruments. 15 Her Honour held that the systematic killing of police officers by FIS constituted crimes against humanity under Art 1F(a). She concluded that it was unnecessary in the light of that determination to consider whether these killings also constituted serious non-political crimes under Art 1F(b). 16 The appeal to this Court was heard on 28 August 2000. Her Honour's finding that there were "serious reasons for considering" that the applicant had committed a crime or crimes against humanity was challenged. So too was her finding that the Algerian police was relevantly a "civilian population".

The discovery that the applicant had been removed from Australia 17 What happened next almost defies credulity. On the morning following the hearing of the appeal, it was discovered by Mr Siopis, pro bono counsel for the applicant, that his client had been removed by the Department of Immigration and Multicultural Affairs ("the Department") from Australia, apparently pursuant to s 198 of the Act, some three weeks earlier, on 3 August 2000. 18 The circumstances of that removal are set out in an affidavit of Gregory Paul Mills, the Director of the Unauthorised Arrivals Section (UAS) of the Department sworn on 31 August 2000. Mr Mills said that after the AAT had affirmed the decision under review, the applicant's case had been referred to UAS for removal action. Nothing of any consequence appears to have occurred for over a year. UAS became aware of the fact that the applicant had commenced proceedings in this Court on 10 November 1999, and that he was seeking an extension of time within which to file and serve a notice of appeal from the decision of the AAT. 19 On 10 July 2000, during a review of outstanding cases of Algerian citizens who entered the country without authorisation, a UAS officer had considered the applicant's eligibility for removal. The officer had searched the departmental database which disclosed that court action had been initiated by the applicant in November 1999. However, no other action was recorded. Mr Mills said that it appeared that there had been difficulties associated with the incorporation of compliance and detention related databases into the departmental database, and problems were being experienced in extracting reliable information. As the UAS officer was not satisfied that the departmental database was up-to-date, he caused a further enquiry to be made regarding the applicant to the Manager of the Port Hedland Detention Centre where the applicant was being detained. For reasons which are wholly inexplicable, the Manager responded to that inquiry advising that the applicant's Federal Court appeal had been dismissed on 11 May 2000. Mr Mills said: "That information, whilst appearing direct and unequivocal, is now known to be incorrect, and records within the Legal Services and Litigation Branch of the Department indicate that a directions hearing was held in the Federal Court on 11 May 2000 and that the applicant, although represented by his counsel, Mr Anthony Siopis, attended the hearing via telephone on that date." 20 Mr Mills said that the Manger of the Port Hedland facility could no longer recall the source of the information for his response to the UAS officer. Some documents which might have helped identify that source had been deleted from the records held by the Detention Centre following the applicant's removal. In any event, after receiving the Manager's advice, the UAS officer again checked the departmental database which still did not contain any information concerning litigation or other action which would indicate that the applicant was not available for removal. The UAS officer was satisfied that there was no impediment to the applicant's removal. He proceeded to make arrangements for his departure. 21 As the applicant was an Algerian citizen and an unauthorised boat arrival, arrangements were made for his removal to take place at Australian Government expense. This entailed utilising the services of a professional international escort removal service. An Australian certificate of identity was obtained for him and arrangements were made for his removal from Perth to South Africa and then to Abidjan on the Ivory Coast where he would obtain the appropriate re-entry documents to be returned to Algeria. 22 Mr Mills said that the applicant had been transferred from the Port Hedland facility to the Perth Immigration Detention Centre on the afternoon of 2 August 2000. He said that the applicant had been able to converse in limited conversational English and had made no comment to Port Hedland staff that he had any outstanding litigation. At approximately 8 pm on 2 August 2000 the applicant was advised of the impending action to remove him from Australia. After the decision record was read to him, the only matters raised by the applicant were to ask where he was going and to request that any documentation relating to what he had said about the Algerian Government be destroyed and not be given to the authorities. He was provided with that assurance. The applicant did not mention that he had any outstanding court proceedings and he did not make any request to speak with a lawyer. 23 Mr Mills said that a brief report had been received from the international escort removal service advising that the applicant had been repatriated to Algeria and claiming that he had appeared "very keen" to go there. Information that the applicant did in fact have outstanding litigation on foot was not received by UAS until after the hearing of the appeal on 28 August 2000. 24 Mr Mills said that as a result of the applicant's removal, and to avoid any similar reoccurrence, procedures had been put in place which required an inquiry to be made to the Legal Services and Litigation Branch of the Department, prior to removal, to check whether any proceedings were still on foot. 25 After the Court was informed of what had occurred the matter was listed for mention. On 31 August 2000 a brief hearing was held. The upshot of that hearing was that each party was given leave to file detailed written submissions as to what effect the applicant's removal from this country should have upon the outcome of the appeal.

The respondent's submissions 26 It was submitted on behalf of the respondent that nothing in the relevant statutory or regulatory regime could enable the applicant to be restored to the legal status in this country which he held before his removal. Reference was made to s 42(1) of the Act which provides: "42. (1) Subject to subsections (2), (2A) and (3), a non-citizen must not travel to Australia without a visa that is in effect." 27 It was submitted that the effect of this provision was that the applicant could only travel to, enter and remain in Australia at some stage in the future if he was the holder of a visa permitting him to do so. It was acknowledged that s 42(1) made provision for limited exceptions allowing for entry to this country without a visa. The only exception which could conceivably be relevant was s 42(2A)(e) which provides: "(2A) Subsection (1) does not apply to a non-citizen in relation to travel to Australia …. (e) if (i) the non-citizen has been removed under s 198; and (ii) before the removal the High Court or the Federal Court made an order in relation to the non-citizen; or the Minister had given an undertaking to the High Court or the Federal Court in relation to the non-citizen; and (iii) the non-citizen's travel to Australia is required in order to give effect to the order or undertaking; and (iv) the Minister has made a declaration that this paragraph is to apply in relation to the non-citizen's travel; and (v) the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen." (emphasis added) 28 It was submitted that s 42(2A)(e) did not apply in the present case. Moreover, there was nothing to suggest that he was eligible for any visa of the type prescribed in Sch 1 or Sch 2 of the Migration Regulations. 29 It was submitted that assuming the applicant was ineligible for any class of visa, the only means by which he could lawfully return to Australia would be if the respondent personally exercised his power under s 33(2)(b)(i) of the Act to grant him a temporary visa known as a "special purpose visa". However, the respondent was not willing to exercise his discretion under that section. Accordingly, the applicant could not enter this country lawfully. It would follow, it was submitted, that he could not meet the requirements for the grant of a protection visa, one of which is that he be "a non-citizen in Australia": see s 36(2) of the Act. 30 It was further submitted on behalf of the respondent that the Department had no knowledge of where in Algeria the applicant was now living. It was possible that he was living with his family and although the departmental file contained an address for the family, it was not considered appropriate to write to him at that address because of the risk that any letter might come to the notice of the Algerian authorities. 31 The respondent indicated to the Court that Australia did not have any diplomatic or consular presence in Algeria. It was therefore not possible for Australian diplomatic or consular officials to make inquiries as to where the applicant now resided. Nor could it be ascertained whether the applicant wished to return to this country in order that he might be able to take advantage of a successful outcome of his appeal, and press his application for a protection visa. 32 Finally, the respondent submitted, the only course now open to the Court was to dismiss the appeal because it had now become moot: Mayne Nickless Ltd v Transport Workers' Union of Australia (unreported, Full Court of Federal Court, 16 July 1998). It was acknowledged that it was the Department's own actions which had brought about that result, and it was indicated that an order that the respondent pay the applicant's costs would not be resisted.

The applicant's submissions 33 It was submitted on behalf of the applicant that s 42(2A)(e)(ii) of the Act provided the statutory basis for the applicant's return to this country without a visa. It was submitted that he fell within the scope of that section because he had filed an application for review with the Registry of this Court on 18 November 1999, and the respondent had filed a notice of appearance the very next day. Thereafter the respondent had been represented by counsel at all subsequent directions hearings. It was submitted that by actively participating in the proceedings without advising the Court, or the applicant's representatives, of his intention to remove the applicant prior to the hearing of the appeal, or, indeed, reserving his rights to do so, the respondent had impliedly "given an undertaking" to the Court, within the meaning of that expression in s 42(2A)(e)(ii), that the applicant would not be removed until the final hearing and determination of the appeal. 34 Counsel for the applicant also complained of the respondent's refusal to take any steps to overcome the consequences of the Department's actions to enable the applicant, if he wished, to return to Australia. He foreshadowed that there might eventually be an application for an order in the nature of mandamus to compel the respondent to grant a "special purpose visa" pursuant to s 33 of the Act which would enable the applicant to enter Australia. He indicated that the applicant's representative had been in touch with Amnesty International who had advised that they would, through their International Secretariat, seek to contact the applicant in order to ascertain whether that was his wish. 35 It was submitted that it could not properly be said that the appeal was now moot. If the applicant were to succeed in overturning the finding of the AAT that, by reason of Art 1F of the Convention, he was ineligible for a protection visa, he might one day, after being permitted by whatever means to enter Australia, take advantage of that outcome in support of a claim to refugee status. 36 Finally, it was submitted that even if the appeal were otherwise moot, the issues raised on behalf of the applicant were of substantial public importance, and should for that reason alone be determined by the Court: Hope Downs Management Services Pty Ltd v Hammersley Iron Pty Ltd [1999] FCA 1652.

The proceedings on 10 November 2000 37 There was extensive oral argument before the Court on 10 November 2000. Orders were made on that day that the appeal be stood over until 10 May 2001 on the basis that if the applicant had not, by that date, indicated in writing, either personally or by his representative, to the Court that he wished to proceed with the appeal with a view to re-entering Australia, judgment would be deemed to be reserved on the question whether the appeal was moot, as well as on the matters already reserved. 38 It was further ordered that if the applicant gave an indication of the type referred to above he would have leave as soon as practicable thereafter to file and serve a motion for a mandatory injunction to issue against the respondent requiring him to grant a special purpose visa of the class referred to in s 33 of the Act. It was ordered that the respondent pay the applicant's costs of the appeal to date to be taxed forthwith, if not agreed, on an indemnity basis. Such costs were to be paid directly to counsel for the applicant. Finally, it was ordered that the respondent file and serve an affidavit relating to a suggestion made by Amnesty International, in an email dated 12 October 2000, and annexed to the applicant's written submissions, that the applicant's removal from Australia had not been an isolated incident.

Conclusions on the appeal 39 It is perhaps not altogether surprising that nothing further has been heard from the applicant in the intervening months since November 2000. The Court is not in a position to know whether he wishes to be permitted to re-enter this country in order to prosecute his appeal, or whether, for whatever reason, his current situation is acceptable to him. 40 In our view s 42(2A)(e)(ii) of the Act does not provide any basis upon which the applicant would be entitled to re-enter this country without a visa. Prior to his removal no order of the type contemplated by that section had been made by this Court. Nor, in our opinion, had the respondent in any relevant sense "given an undertaking" to this Court "in relation to" the applicant. 41 It is true that the respondent filed an appearance in relation to the applicant's appeal, and that he attended through his counsel at subsequent directions hearings. However, in our view, these actions did not of themselves give rise to an implied undertaking to the Court that the applicant would not be removed from Australia until after the final hearing and determination of his appeal. That is not to say that the removal by the respondent of an applicant from this country in circumstances where it is known that he has an application for review pending before the Court challenging the respondent's right to remove him could not constitute a contempt of court - plainly, in some circumstances, it could. 42 We have reached this conclusion cognisant of the fact that there have been occasions when the respondent, through his counsel, has given undertakings to this Court not to remove a particular applicant who has legal proceedings pending. Such undertakings would not be necessary if the filing of an appearance and the attendance by the respondent through his counsel at directions hearings gave rise to an implied undertaking of the type for which the applicant contends. 43 In any event, we consider that even if an undertaking of this type could be implied, s 42(2A)(e)(ii), upon its proper construction, would have no application. The words "the Minister had given an undertaking to the High Court or the Federal Court" in s 42(2A)(e)(ii) strongly suggest undertaking expressly given to the Court by counsel for the Minister, on his behalf, and not an implied undertaking. 44 We consider that the fact that the applicant is no longer in this country, and has no realistic prospect of being permitted to return in the future, renders his appeal moot. The respondent has made it plain that even if the applicant were to indicate a desire to return to Australia in order to pursue his claim for refugee status, he would not be granted a visa enabling him to do so. Had the applicant indicated such a desire, serious consideration would have been given by the Court as to whether the respondent should be ordered to permit the applicant to enter Australia for that purpose. However, that is not the position. 45 Counsel for the applicant claims that if the appeal is not decided in his client's favour, the applicant may be deprived of a legitimate basis upon which to make application at some future date for a protection visa assuming, of course, that he is ever in a position to do so. In theory that may be so, although it would always be open to the applicant to rely upon the circumstances of his removal in support of any future application to re-enter this country. 46 The submissions advanced on behalf of the applicant assume firstly that he may one day be found, and secondly that he may signify a desire to return to this country in order to pursue his claim for refugee status. These assumptions are at best questionable and involve a large measure of conjecture. The likelihood that they will be borne out is insufficient, in our view, to justify a conclusion that the appeal would not be moot or futile. We note that in Hope Downs Management Services Pty Ltd v Hamersley Iron Pty Ltd (supra) the Full Court noted that there was ample authority for the existence of a discretion in the Court to stay an appeal in circumstances where there was nothing to be gained by the appeal proceeding. 47 As regards counsel's contention that even if the appeal be otherwise moot, it raises matters of substantial public importance which should be resolved, it is clear that this submission cannot be accepted. There is a real doubt as to whether, if the Court were to proceed to determine the appeal, it would do so in the exercise of the judicial power of the Commonwealth. 48 The futility of the appeal proceeding as matters presently stand is easily demonstrated by reference to s 36 of the Act. That section provides: "36 (1) There is a class of visas to be known as protection visas. (2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." (emphasis added) 49 The applicant is not a non-citizen in Australia. As noted above, there is no realistic prospect of his being permitted to enter this country again. Even if it be assumed that Mathews J erred in some way in construing Art 1F of the Convention (and we expressly refrain from any consideration of that issue) all that could be achieved were this Court to decide the appeal in the applicant's favour would be to have his application for a protection visa reconsidered. However, that application would be clearly foredoomed to fail because the applicant could not meet the criteria for the grant of such a visa, as set out in s 36(2) of the Act. 50 Although we consider that we must dismiss this appeal, we cannot allow the situation to pass without expressing our disquiet at what has occurred. The material filed on behalf of the applicant suggested that there may have been several other recent instances where applicants for review in this Court have been removed from Australia by officers of the Department while their applications were pending. Amnesty International claims that Mr Tchoylak's case was the third occasion in recent times in which the Department had pre-empted the Court by deporting an applicant while his or her case was pending. When pressed by the respondent for particulars, Amnesty International referred specifically, inter alia, to Kopiev v Minister for Immigration and Multicultural Affairs [2000] FCA 1831 per Sackville J. There the applicant was removed from this country three days before the first directions hearing by the Court. 51 The respondent has filed extensive affidavit material which casts doubt upon whether at least some of Amnesty International's claims are justified. It is neither necessary nor appropriate that this Court determine whether Mr Tchoylak's case represents an isolated instance, now never likely to be repeated, or whether it is but one of a number of cases where the Department has failed properly to discharge its responsibilities. 52 The respondent has offered an apology to the Court and, it may be inferred, to the applicant, for what has occurred. There is no suggestion, in the present case, that the applicant's removal from Australia was the result of anything other than a series of misunderstandings on the part of officers within the Department. That, of course, is little comfort to the applicant. 53 The respondent must take responsibility for ensuring that no one is removed from this country while there are proceedings pending in this Court challenging the validity of that removal. We do not accept that any of the various subsections of s 198 of the Act, which impose a duty in the circumstances there specified to remove a non-citizen "as soon as reasonably practicable" can be invoked by the respondent to justify what occurred in the present case. 54 As we indicated when this matter was last before the Court on 10 November 2000, notwithstanding that the appeal must be dismissed, the respondent should pay the applicant's costs. Those costs should be paid to the applicant's pro bono counsel, on an indemnity basis. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, Carr and Weinberg JJ.

Counsel for the Applicant: Mr A N Siopis appeared pro bono

Counsel for the Respondent Mr P R Macliver (28 August 2000):

Counsel for the Respondent Mr R.E. Le Miere QC (31 August 2000):

Counsel for the Respondent Mr R.R.S. Tracey QC (10 November 2000):

Solicitor for the Respondent: Australian Government Solicitor

Dates of Hearing: 28 and 31 August and 10 November 2000