FEDERAL COURT OF AUSTRALIA

SPKB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 546

Migration Act 1958 (Cth) ss 189, 196, 198, 417

Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543 followed

Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526 noted

Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1 noted

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

Re Minister for Immigration & Multicultural Affairs and Anor; Ex parte SE [1998] HCA 72 followed

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

Chahal v United Kingdom (1997) 23 EHRR 413 cited

SPKB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 426 of 2003

MANSFIELD J

5 JUNE 2003

ADELAIDE

THE COURT ORDERS THAT:

1.         The application is dismissed.

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

REASONS FOR JUDGMENT

1                     This is an application for an order in the nature of a writ of habeas corpus.  The applicant claims that his continued detention by the respondent is no longer lawful.

2                     The applicant is a 57 year old Iraqi who arrived in Australia on 16 December 1999.  He was placed in immigration detention as an unlawful non-citizen, pursuant to s 189 of the Migration Act 1958 (Cth) (the Act).  He has been in immigration detention since then.  He sought a protection visa on 21 March 2000.  He claimed to have a well-founded fear of persecution by the Iraqi authorities if he returned there, and to be unable to return to Syria (where he had lived from 1996 to 1999) and further that he risked refoulement by Syria to Iraq if he did return to Syria.  If the information about what had happened to the applicant and his family in Iraq is correct, it would have provided the basis for a well-founded fear of persecution on his part by reason of his perceived political beliefs if he were to return to Iraq.

3                     The application for a protection visa was first refused by a delegate of the respondent on 24 July 2000, and on review by the Refugee Review Tribunal (the Tribunal) on 5 October 2000.  The Tribunal found he could return to, and remain, in Syria without the risk of being refouled to Iraq.  Hence he was found not to be a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol:  see Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543; Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526; Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1.  His claim to have a well-founded fear of being persecuted if he were to return to Iraq was not addressed, as the Tribunal found it unnecessary to do so.  The delegate of the respondent had reached a decision upon the same basis, that is without addressing his claim to have a well-founded fear of persecution if he were to return to Iraq.

4                     The applicant sought judicial review of the Tribunal’s decision, but discontinued the proceeding on 30 May 2001.

5                     If the information in the Court book in this matter about the applicant’s circumstances since January 2001 is correct, it presents an extremely depressing picture.

6                     In about January 2001 the applicant learnt and believes that his wife and children, who he had left behind in Syria, had been sent back to Iraq and that they had there been imprisoned.  His 14 year old son, he believes, died from mistreatment in prison in Iraq.  He blames himself for what he perceives has befallen his family.  Therefore, he requested to be removed from Australia in the hope that he could assist his family’s predicament.

7                     The respondent was aware at least by March 2001 that the applicant wished to be removed from Australia.  Section 196(1) of the Act relevantly provides that the applicant was to be kept in immigration detention until he is removed from Australia under s 198 or s 199, or if granted a visa.  Relevantly for present purposes s 198(1) and (6) provides:

‘(1)      An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

…

(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;

(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.’

8                     On 10 May 2001, the applicant applied for a bridging visa Class E, so he could attempt to arrange his own departure from Australia.  After 30 May 2001, the respondent’s internal memoranda indicate that he was ineligible for such a visa, as he had no outstanding substantive visa application.  However, the application for a bridging visa was not determined until 5 May 2003.  It was refused.  The discontinuance on 30 May 2001 of the judicial review application was an attempt to remove an obstacle to the applicant’s removal from Australia.

9                     From early 2001, communications to the respondent indicated that the applicant had a significant depressive illness from his continued detention, especially in the light of what he believed happened to his family.  By September 2001, a clinical psychologist nominated by the respondent reported that the applicant was experiencing ‘moderate to severe clinical depression’.  His condition was deteriorating.  More recently, three independent consultant psychiatrists have examined him.  One was ‘extremely concerned’ about the applicant’s mental state.  He has been diagnosed consistently as suffering from a major depressive illness, with melancholic features, and suicidal ideation.  It has been recommended that he be removed from detention and be given treatment in a suitable mental health facility in the community.  His condition is chronic and deteriorating.

10                  It is unclear what efforts to remove the applicant from Australia were made during 2001, despite his request, or what was done in response to information about his mental state.

11                  The respondent apparently took the view that some communication of 5 June 2001 (or according to certain information of 21 May 2001 or 16 August 2001) constituted a request under s 417 of the Act for the respondent to substitute a more favourable decision on his visa application.  The applicant was told by letter of 21 March 2002 that his request had been rejected, but other documents suggest that within the department the request was still under consideration.  Indeed, apart from the letter of 21 March 2002, there does not appear on the material before the Court to be any formal response to the perceived request.  The respondent regards an unresolved request under s 417 as precluding the respondent from removing an unlawful non-citizen in immigration detention from Australia.

12                  Moreover, it appears that the foundation for the Tribunal’s decision (and for the delegate’s decision) had by then been removed - at least from September 2001.  A source dated 19 March 2001 is referred to in a minute to the respondent of 4 April 2002 which records that ‘it appears reasonable to conclude that the client no longer has effective protection in Syria’.  The respondent by his officers was aware that there was a group of Iraqi citizens, including the applicant, who had been found to have effective protection in Syria, but that Syria was ‘no longer accepting back Iraqis.

13                  The applicant, apparently to promote some response to his circumstances, on 24 September 2002 applied to reinstate his application for judicial review of the decision of the Tribunal (discontinued on 30 May 2001).  That application was refused on 14 October 2002.  The applicant appealed from the refusal to reinstate his judicial review application, but has not pursued it and it was dismissed by consent on 7 May 2003.  On 20 May 2003 he was then notified that steps to effect his removal from Australia would commence.

14                  I note that not all of the above events referred to, based on the material before the Court, are accepted by the respondent either as accurate or as comprehensive.  Counsel for the applicant did not seek to argue on this application that the detention of the applicant had become unlawful at any time prior to May 2003, or to pursue any claim based upon any alleged failure on the part of the respondent to have acted in respect of his removal from Australia prior to May 2003.  Hence, the letter of 20 May 2003 from the respondent to the applicant, which refers to the withdrawal of his application to reinstate his appeal to the Full Court on 6 May 2003, is to be treated as the date from which the applicant now contends that his continued detention under s 196 of the Act is unlawful.

15                  Counsel are agreed that the issue is whether as a matter of fact there is no realistic prospect of the applicant being removed from Australia within the reasonably foreseeable future:  Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70 at [115] and [136].  Counsel for the applicant contended that there is no realistic prospect of the applicant now being removed from Australia within a reasonably foreseeable period, and that therefore his continued detention is unlawful.  He submitted that there was no prospect of the applicant being removed from Australia to Syria, that there was no prospect of him being removed from Australia to Iraq, and in any event the question of his removal to Iraq is irrelevant because the applicant in the circumstances could not legitimately be removed to Iraq by the respondent.

16                  In Re Minister for Immigration and Multicultural Affairs and Anor; Ex parte SE [1998] HCA 72 (the SE case), a visa applicant sought an interlocutory order to restrain the Minister from removing him from Australia before the proceedings.  The visa applicant had arrived in Australia without proper documents, and sought a protection visa.  The Tribunal rejected the application on 21 May 1998.  The visa applicant nevertheless resisted arrangements to forcibly remove him from Australia.  One issue that arose in the proceeding was whether, despite the finding of the Tribunal to the contrary, the visa applicant who was from Somalia could not safely return there for a Convention reason (his tribal ethnicity).

17                  The applicant in the SE case submitted that s 198(6) should be read as limited to enabling removal only when to do so is reasonable.  It was submitted that to remove an unlawful non-citizen to a place where the person’s human rights may be violated was not reasonable, and that the Act should be construed as not permitting or requiring action that would violate Australia’s obligations under various international instruments concerning human rights.  Hayne J at [16] noted the contention and stressed that the claim must be approached upon the assumption that the applicant is not entitled to a protection visa.  His Honour in response to the argument that, on its true construction, s 198(6) of the Act does not permit the respondent to remove a visa applicant to a destination that is unsafe for the person removed (even in the face of a Tribunal decision rejecting the application for a protection visa) said at [17]-[19]:

‘I do not accept that it is arguable that the apparently general obligation cast on officers to remove unlawful non-citizens is limited in the particular way for which the applicant contended.

…

To read the provisions of s 198(6) of the Act as limited in the way for which the applicant contends would, in effect, require the first respondent to exercise his power to permit the applicant to remain in Australia despite his having been refused refugee status.  The power under ss 48B and 417 to permit persons such as the applicant to remain in this country are powers that are expressed as discretionary powers which the Minister is not under a duty to consider using.  That being so, the construction of s 198(6) for which the applicant contends is not arguable.’

18                  A similar view was reached by Marshall J in a slightly different context in Applicant M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 458, especially at [22]-[24].  In that case, the visa applicant claimed to be a refugee from Iran, and feared persecution for a Convention reason if he were returned to Iran.  However, his application for a protection visa on that basis had been dismissed.  He nevertheless contended that to return him to Iran would constitute refoulement contrary to Australia’s obligations under Art 33 of the Convention.

19                  Marshall J held that the language of s 198(6) of the Act did not permit a construction which incorporates a prohibition on removal which would constitute refoulement under Art 33 of the Refugees Convention because his Honour regarded s 198(6) as unambiguous.  His Honour said at [24]:

‘Where a protection visa application has been refused, as was the case with the applicant, an officer acting under s 198(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 a non-citizen by the lack of a requirement in s 198 for him or her to take further inquiries 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 s 198(6) by an importation of Art 33 of the Refugees Convention … into the Act.’

20                  An appeal from that decision was heard by a Full Court of this Court on 28 May 2003.  Judgment has been reserved.

21                  I do not need to decide whether those cases mean that removal under s 198(6) may be to the country where a visa applicant fears persecution in circumstances where there has been no determination whether the visa applicant is a refugee from that country.  To that extent, the circumstances being addressed in each of those decisions was different from the present circumstances. The Tribunal had decided in those cases that the visa applicant did not have a well-founded fear of persecution  in the country to which it was proposed to remove him.  There would seem to me to be much to be said for the view that the respondent cannot (at least without the consent of the visa applicant) remove a visa applicant to the country of origin if that person has been found to be a refugee from that country, but has a right of entry to, and to remain in, a safe third country.  See e.g. Chahal v United Kingdom (1997) 23 EHRR 413 discussed by Marshall J in Applicant M38/2002 at [27].  It would also follow that such a limitation may apply in circumstances such as the present, where there has been no decision as to whether the visa applicant is a refugee from the country of origin.  What is clear is that there is power to remove an unlawful non-citizen under s 198(6) to a country to which the Tribunal has found the applicant can safely return and there remain.  It is not open to contend, in the light of those decisions, that s 196 obliges the respondent to consider whether there has been a change of circumstances in the country to which it has already been determined that the applicant may either safely return, or from which the applicant has been found not to be a refugee, notwithstanding that circumstances may have changed and notwithstanding that there may now be a risk of refoulement from that safe third country. 

22                  For reasons which appear below, my understanding of the effect of those cases is not critical to the determination of the present application.  I have reached the view that the present detention of the applicant under the Act is not lawful.  That is because I am not of the view that there is no realistic prospect of the applicant being removed from Australia to Syria within the reasonably foreseeable future.  It is not necessary to address whether he can be removed to Iraq, or whether his removal to Iraq would be reasonable or would now expose him to persecution for a Convention reason.

23                  The applicant’s solicitor has deposed to a telephone conversation with a person at the Syrian consulate in Sydney.  That person said it is not possible for a visa to be granted to the applicant to enter Syria, as only those holding Syrian passports could do so.  The status of the person to whom the solicitor spoke is not identified.  The evidence is, of course, hearsay.  The conversation appears to have been brief.  I do not think the evidence is of such weight as to lead me to reject the evidence of the Assistant Director in the Unauthorised Arrivals Section of the respondent’s department (Mr Durston).  His evidence has provided the basis of my conclusion that there is a real prospect of the applicant being removed from Australia to Syria within the reasonably near future.  He was cross-examined carefully.  I thought he was honest, careful and reliable in the evidence he gave.  As one would expect, I did not think he attempted to overstate the present position.

24                  I accept his evidence that there is, at present, a realistic prospect of the applicant securing an entry visa to Syria within the next several weeks.

25                  The material in the Court book indicates that, at least during part of 2001, the previous facility to remove some Iraqi nationals to Syria had ceased.  I have referred briefly to that material above.  However, the evidence is that between July 2002 and March 2003 a number of Iraqi nationals who (like the applicant) had arrived in Australia by boat without entry papers were voluntarily removed to Syria.  Their ‘removal’ was, in each instance, voluntary based upon each of those persons securing an Australian Certification of Identity and then applying for a Syrian entry visa.  Whilst the respondent facilitated their applications for Syrian entry visas, he did not directly made the applications.

26                  The applicant completed an application form for an Australian Certificate of Identify on 27 May 2003.  It was granted on 28 May 2003.  The respondent has also provided to the applicant the necessary documents for him to apply for a Syrian entry visa.

27                  I accept that from about April 2003, some visas previously issued for entry to Syria were not honoured.  I also accept that was 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 consequence of a changed attitude on the part of the Syrian authorities to the grant of visas to Iranians wishing to enter Syria from Australia (and presumably from other places).  Consequently, that circumstance does not lead me to the view that the applicant, having now been granted an Australian Certificate of Identity, has no real prospect of securing a visa to enter Syria in the reasonably foreseeable future.  There is nothing to suggest the applicant would fail to satisfy the Syrian authorities that he is a security risk in Syria.

28                  I have also had regard to the fact that the entry visas under which those Iraqis departing Australia and gaining entry to Syria since July 2002 have been short term entry visas (equated, in the evidence, to a form of tourist visa).  There is nothing to indicate what has happened to those persons upon the expiration of their short term entry visas to Syria.  They may, or may not, then have sought more extended visas.  I assume that the applicant also has prospects only of securing a short-term entry visa to Syria, at least in the first place.  I do not know what his longer term prospects are in Syria, or whether (as contended on his behalf) there is a risk now that he would be refouled by Syria to Iraq.  I do not consider the applicant’s prospects of or securing entry to Syria are minimal by reason of any lack of earlier connection with Syria.  The evidence does not indicate that those Iraqis who have secured entry to Syria from Australia in the past had any greater connections with Syria than the applicant, who had lived there for some years.

29                  I do not consider that the risk of the applicant being refouled from Syria to Iraq is one which alters my finding on the critical fact.  In the first place, I do not think the evidence shows now that the applicant may be refouled by Syria to Iraq.  On an application such as the present, the Court does not have access to the range of evidence to which the Tribunal may have regard in deciding such questions.  It is limited to the material adduced by the parties.  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.

30                  In addition, in my judgment, the decision of Hayne J in the SE Case precludes me from having regard to what may be a change of circumstances in Syria since the Tribunal’s decision.  The Tribunal found the applicant could be removed to Syria and would not be refouled by Syria to Iraq.  For the reasons given by Hayne J, and by Marshall J in Applicant M38/2002, 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 has 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.

31                  In view of my conclusion that the present detention of the applicant is not in circumstances where there is no real prospect of him being removed from Australia to Syria within the reasonably foreseeable future, it is not necessary to further consider whether his removal to Iraq without his consent is an option available to the respondent.  It is also not necessary to decide whether, even if his removal to Iraq were a lawful option available to the respondent, as a matter of fact there is no real prospect of the applicant being removed from Australia to Iraq within the reasonably foreseeable future.  For the reasons given, I think the present application must be dismissed.

Associate:

Dated:              5 June 2003