FEDERAL COURT OF AUSTRALIA

Applicant M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 458

MIGRATION – obligation to remove an unlawful non-citizen – ambiguity as to where a person is to be removed to – whether removal is permitted where it would constitute refoulement

INTERNATIONAL TREATIES – incorporation of treaties into Australian municipal law – construction which accords with Australia’s treaty obligations where legislation ambiguous

PRACTICE & PROCEDURE – orders striking out a proceeding only where inevitable the proceeding will fail – assumed accuracy of the facts pleaded by the applicant

WORDS & PHRASES – ‘remove’

Migration Act 1958 (Cth) s198(6)

Judiciary Act 1903 (Cth) s39B

Convention relating to the Status of Refugees (1951)Article 33

Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (1967)Article3

Applicant M38/2002 v Refugee Review Tribunal [2003] FCA 58 referred to

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 applied

Minister for Immigration Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70 distinguished

Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 applied

Re Minister for Immigration and Multicultural Affairs; ex parte SE [1998] HCA 72 applied

Chahal v United Kingdom (1996) 23 EHRR 413 discussed

Webster v Lampard (1993) 177 CLR 598 applied

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 applied

APPLICANT M38/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V143 OF 2003

MARSHALL J

MELBOURNE

15 MAY 2003

THE COURT ORDERS THAT:

1.                  The substantive proceeding be dismissed.

2.                  The applicant pay the respondent's costs of the proceeding, including the costs of the motion; such costs to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The matter the subject of these reasons for judgment is a motion by the respondent Minister for summary dismissal of the proceeding. The issue requiring resolution is whether s198(6) of the Migration Act 1958 (Cth) (“the Act”) authorises the refoulment by the Minister of the applicant to Iran.

Background

2                     These reasons for judgment should be read together with the reasons for judgment in Applicant M38/2002 v Refugee Review Tribunal [2003] FCA 58 (“the previous judgment”). In the previous judgment the history of the applicant's claim for a protection visa and its rejection was discussed in detail. The previous judgment rejected a challenge to the decision of the Refugee Review Tribunal (“RRT”),which had dismissed the applicant's request for a protection visa. The previous judgment was given in relation to the first aspect of the application challenging the RRT’s decision, being that the RRT had failed to take into account relevant considerations in the exercise of its power under the Act.  Pursuant to O29 r2 of the Federal Court Rules the second part of the application challenging the RRT’s decision was to be heard separately.

3                     The second part of the application was whether the Minister should “be prohibited from repatriating the applicant to Iran”.

4                     At a directions hearing held on 21 March 2003, counsel for the applicant accepted that the second issue was not the subject of remittal to this Court from the High Court. Consequently, the proceeding V696 of 2002 was dismissed. On the same day the instant proceeding was filed.

5                     The instant proceeding is an application made pursuant to s39B of the Judiciary Act 1903 (Cth) in which the applicant seeks an injunction restraining the Minister from returning him to Iran.

6                     The statement of claim alleges that:

·                    The applicant is a citizen of Iran who is present in Australia and who is unwilling to return to Iran owing to a well founded fear of persecution in Iran.

·                    If the applicant is returned to Iran, his life or liberty would be threatened on account of his religion, membership of a particular social group and political opinion.

·                    The Minister threatens and intends to return the applicant to Iran.

·                    The applicant's return to Iran would constitute refoulement contrary to Australia's obligations under:

-         Article 33 of the Convention Relating to the Status of Refugees ("the Refugees Convention"), and

-         Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("the Torture Convention").

The motion

7                     On 24 March 2003 the Minister filed a motion seeking that the proceeding be dismissed under O20 r2 of the Federal Court Rules, as it disclosed no reasonable cause of action.

8                     The motion was heard by the Court on 23 April 2003. Mr J Burnside QC appeared with Mr K Farouque, of counsel, for the applicant and Mr C Horan, of counsel, appeared for the Minister.

9                     It was common ground between the parties that for the purposes of a motion of summary dismissal it is appropriate for the Court to assume that allegations of fact pleaded by the applicant will be established by the evidence at trial.  However, in a supplementary written submission Mr Horan stressed that the Court could not depend on the allegation that the return of the applicant to Iran would constitute refoulement in determining whether the Act authorises the removal of a non-citizen.

10                  Mr Burnside contended that the application of Art 33 of the Refuges Convention merely required the Court to accept that, as pleaded, the applicant is a refugee.  I see no reason why the Court should not assume the applicant, as pleaded, is a refugee for the purpose of the strike out application.  For the purposes of this judgment, I am prepared to assume that all facts alleged in the Statement of Claim are accurate.

11                  Further, it was not in dispute that:

·        the applicant is a detainee

·        the applicant had made a valid application for a protection visa

·        the grant of the visa had been refused

·        the applicant had not made another application for a substantive visa

·        the applicant is subject to removal from Australia in accordance with s198(6) of the Act.

12                  Mr Burnside submitted that the Act does not authorise removal of the applicant from Australia when the removal amounted to refoulement, as it must in the circumstances of the motion. Mr Horan submitted that the application is untenable, as s198(6) of the Act clearly authorises the applicant’s removal irrespective of whether such removal amounts to refoulement.

Legislative and International Context

13                  Section 198(6) of the Act provides:

“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;

(ii)        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.” (emphasis supplied)

14                  Article 33 of the Refugees Convention provides:

“1.  No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2.  The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

15                  Article 3 of the Torture Convention provides:

“1.  No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2.  For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”

16                  Mr Burnside contended that the word “remove” in s198(6) was ambiguous because it was silent about where a person might be removed to. As a result of that ambiguity, s198(6) of the Act must be read consistently with Australia's obligations under the Refugees Convention and the Torture Convention. Consequently, removal under s198(6) should be limited to the extent that it prohibits refoulement. Mr Burnside referred to the definition of “remove” in s5 of the Act as being “remove from Australia”. He stressed that the Minister intended to do more than remove the applicant from Australia, that is, he intended to remove him to the one place in the world where the applicant’s life or liberty would be threatened.  He contended that the power to remove did not include a power to take a person to a place of persecution in breach, inter alia, of Art 33 of the Refugees Convention, and that removal need not result in refoulement.

17                  Mr Horan submitted that the proceeding was bound to fail because s198(6) of the Act is plain and unambiguous. He contended that all the constituent elements of the subsection had been made out with respect to the applicant. Mr Horan emphasised that s198(6) is not to be interpreted as if it were governed by the Refugees Convention, given the clear words contained in the subsection.

18                  Mr Horan contended that the obligation to remove a person from Australia is not limited by reference to the destination to which the person may be removed.

Consideration

19                  The Refugees Convention and the Torture Convention have not been incorporated into Australian municipal law by statute. As Mason CJ and Deane J said in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287:

“…a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.”

20                  Also at 287, their Honours dealt with the significance for Australian law of the ratification by Australia of international treaties, saying:

“Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party… . It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law…If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction…”.

21                  See also Minister for Immigration Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70 at [138] and Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at [34] and [35].

22                  The language of s198(6) of the Act does not permit a construction which incorporates into the subsection a prohibition on removal which would constitute refoulement under Art 33 of the Refugee Convention or Art 3 of the Torture Convention.

23                  Section 198(6) is unambiguous. It imposes a duty on an “officer”, as defined in s5 of the Act, to remove from Australia a person in the position of the applicant being:

·                    a detainee

·                    the maker of a valid application for a substantive visa

·                    a person whose application for a substantive visa has been finally determined adversely to him

·                    a person who has not made another valid application for a substantive visa.

24                  The duty to remove is subject to the qualification that it must be exercised bona fide for the purposes of the Act. It would not be a bona fide fulfilment of the duty to remove a person such as the applicant to a rock in the Pacific Ocean, to use an example raised by Mr Burnside. Ordinarily an officer would consider removal, as a matter of practicality, to the non-citizen’s country of origin. Where a protection visa application has been refused, as was the case with the applicant, an officer acting under s198(6) would be fortified by that refusal in removing the non-citizen to the country of origin.  The officer would also be fortified in removing the non-citizen by the lack of a requirement in s198 for him or her to make further enquiries concerning whether the removal contemplated would amount to refoulement. Circumstances in the country of origin may have changed in the meantime and what was not refoulement at the date of the RRT decision may come to be refoulement. However, there is no basis for limiting or qualifying the duty imposed on an officer under s198(6) by an importation of Art  33 of the Refugees Convention and Art 3 of the Torture Convention into the Act.

25                  In Re Minister for Immigration and Multicultural Affairs; ex parte SE [1998] HCA 72, Hayne J at [18] to [19] rejected a construction of s198(6) which limited its operation to allowing removal “only when it is reasonable to do so”. It had been contended that removal in breach of international obligations was not permitted. His Honour described that contention at [19] as “not arguable”. Hayne J's approach in SE is consistent with the view that s198(6) is clear in its terms and not affected by any canon of construction which would invoke the provisions of any international instrument to which Australia is a party.

26                  The position in Australia can be contrasted with that applying in Europe; see Chahal v United Kingdom (1997) 23 EHRR 413. In Chahal the European Court of Human Rights found at [107] that there was a real risk that Mr Chahal would be subjected to treatment contrary to Art 3 of the Torture Convention if returned to India. The Court ordered that his deportation to India, if effected, would give rise to a violation of Art 3.

27                  In application for summary dismissal, orders striking out a proceeding should only be made where it is inevitable that the proceeding will fail; see Webster v Lampard (1993) 177 CLR 598 at 611, per Mason CJ, Deane and Dawson JJ. The power to order summary dismissal should be exercised with exceptional caution, especially where the ultimate outcome depends on the resolution of disputed facts; see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130, per Barwick CJ.

28                  Counsel in the instant proceeding were content, notwithstanding that the motion was one for summary dismissal, to have the Court finally determine the proper construction of s198(6) of the Act. I have no difficulty with such a course, considering that I share the view of Hayne J in SE that a construction of s198(6) which seeks to import considerations of compliance with international obligations is not arguable.

29                  In Al Masri, the Full Court addressed whether there was a limitation to the power under s196 of the Act to detain, on the basis an unlawful non-citizen should be removed as soon as reasonably practicable. In considering the construction of s196(3), concerning the prevention of release from detention, the Court took into account provisions in conventions ratified by Australia and, in particular, Art 9(1) of the International Covenant on Civil and Political Rights.  It did this on the basis that s196 should, so far as the language permits, be interpreted in a manner which accords with Australia’s treaty obligations.  In Al Masri it was held that there was an ambiguity created by the operation of s196 and s198, which lead to an implied limitation on the period of detention. No such ambiguity is present in s198(6) in the context of the meaning of “remove” in that subsection.

Orders

The Court will make the following orders on the Minister's motion dated 24 March 2003.

1.                  The substantive proceeding be dismissed.

2.                  The applicant pay the respondent's costs of the proceeding, including the costs of the motion; such costs to be taxed in default of agreement.

Associate:

Dated:              15 May 2003