WACM v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The respondent has applied for the discharge of an interlocutory injunction made by me on 22 August 2003 to restrain the respondent ('the Minister') from removing the applicant from Australia. 2 Soon after his arrival in Australia, the applicant applied under the Migration Act 1958 (Cth)('the Act') for a protection visa on the basis that he had a relevant well-founded fear of persecution. That application was rejected. It is agreed that that application has been finally determined. 3 The applicant has been informed that the Department for Immigration and Multicultural and Indigenous Affairs ('the Department') intends to remove the applicant from Australia to Iran. The relevant power of removal is s 198(6) of the Act. That subsection provides: '(6) 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.' 4 The argument of the applicant on the primary proceedings is that s 198(6) of the Act is ambiguous in that it does not identify the place to which a non-citizen may be removed. Given this ambiguity, the applicant says that the relevant provision should be read in light of Article 33 of the Refugees Convention as amended by the Refugee Protocol, in particular, the non-refoulement principle. The practical effect of that principle is that a person cannot be returned to a place where that person has a relevant well-founded fear of persecution. 5 If this argument were correct then the effect would be that an unlawful non-citizen, having exhausted all rights of appeal and review in relation to an application for a visa, could then relitigate many of the same issues in relation to the place to which the person could be removed from Australia. 6 This argument was rejected by the Full Court of this Court in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290 ('M38'). Special leave from the High Court to appeal that decision has now been refused. As the Full Court observed (at [42]) the Act is not concerned to implement all of the obligations under the Refugees Convention. The Full Court held that the obligation upon an officer by virtue of s 198(6) of the Act was not limited by the non-refoulement principle (see at [72]). The Full Court held that, to the extent that the non-refoulement principle was reflected in the domestic law of Australia, it was integrated into the procedure for the granting of a visa (see at [75]). 7 Against this background the respondent has applied for an order that the proceedings be dismissed pursuant to O 20 r 2 of the Federal Court Rules as disclosing no cause of action. Given the Full Court decision in M38 it would seem very likely that the respondent's application will succeed: see Stone J in NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 761; confirmed on appeal [2003] FCAFC 292 ('NATB'). However, that issue has not yet been finally argued before me and I make no final determination in relation to it. 8 Mr Manetta, who appeared for the applicant on the initial strike out application, argued then that the respondent's application to strike out the proceedings should be adjourned pending the decision of the High Court on whether to grant leave to appeal in M38. He sought an interlocutory injunction restraining the removal of the applicant in the interim. Mr Lyons, who appeared today to oppose the discharge of the interlocutory order, put a similar argument. 9 There are a number of problems in granting an interlocutory injunction in these circumstances, not least those identified by Mansfield J in SAAK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 921. I also refer in particular to the decision of Mason ACJ in Castlemaine Tooheys Limited v State of South Australia (1986) 161 CLR 148 and of Kirby J in Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460. These require that, in determining the balance of convenience for the grant of an interlocutory injunction in circumstances such as the present, the ultimate prospects of success may need to be considered. In relation to the application originally made by Mr Manetta, in the absence of an interlocutory injunction any adjournment of the proceedings would be futile. Nevertheless, the Full Court of this Court, in granting leave to appeal in NATB at [28] appeared to support the continuation of an interlocutory injunction that had already been granted in that matter. On the basis of the approach taken by the Full Court in that case, I granted an interlocutory injunction in this case and adjourned the proceedings pending the decision of the High Court in M38 and of the Full Court of this Court in the substantive hearing in NATB. 10 The High Court refused leave to appeal in M38 on 12 December 2003. The Full Court of this Court dismissed the appeal in NATB on 16 December 2003. Whatever justification there may have been for the continuation of an interlocutory injunction in this matter has now disappeared. Even if, as Mr Lyons foreshadowed, leave to appeal to the High Court will be sought in the decision in NATB, it does not seem to me that this can justify the grant or continuation of an interlocutory injunction in the circumstances as outlined above. 11 In this matter I note that an interlocutory injunction was granted by Nicholson J on 30 May 2003, apparently pending the decision of the Full Court of this Court in M38. That injunction was discharged by the order of Lander J on 8 September 2003. 12 All orders made by me on 22 August 2003 are vacated. The applicant is to pay the costs of the respondent in relation to the grant of the orders made on 22 August 2003 and the vacation of those orders. The respondent's strike out application is adjourned until 16 January 2004 at 10.15am. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.