FEDERAL COURT OF AUSTRALIA

WADX v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 552

MIGRATION – unlawful non-citizen – in migration detention – failed applicant for protection visa – administrative and judicial review processes exhausted – apprehended removal from Australia to Iran – claim that life and liberty threatened – alleged apprehended breach of non-refoulement obligation under Article 33 of Refugee Convention – whether obligation affects construction of removal power in s 198(6) of the Migration Act – decision on similar issue reserved in Full Court – interlocutory restraint on removal claimed – balance of convenience favouring applicant – arguable case - injunction

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

WADX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W127 OF 2003

FRENCH J

29 MAY 2003

PERTH

THE COURT ORDERS THAT:

1.         The respondent is restrained from removing the applicant from Australia until the hearing and determination of the application or further order.

2.         The trial of the application will be on affidavit.

3.         The trial is set down provisionally on 4 July 2003.

4,         The application is relisted for directions on 13 June 2003 at 9.45am.

5.         There is liberty to apply.

6.         Costs today reserved. 

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Iran who arrived in Australia unlawfully on or about 1  October 2000 and in February 2001 lodged an application for a protection visa with the Department for Immigration and Multicultural Affairs.  That application was refused by a delegate of the Minister on 14 June 2001 and on 20 June 2001 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate's decision.

2                     The Tribunal affirmed the delegate's decision not to grant a protection visa on 16 August 2001.  Subsequently the applicant applied to the Federal Court seeking judicial review of the Tribunal's decision and on 18 December 2001 Carr J dismissed that application with costs.  An appeal from that decision was dismissed by the Full Court of the Federal Court on 9 May 2002.  Since that time the applicant has continued in detention and is presently held in the Port Hedland detention centre. 

3                     The applicant has been served by the respondent with an Information Package for Returnees which contains a document entitled "Contents of Agreement, 80B Assistance Package for Reintegration of Iranian Nationals" which contains an offer of financial assistance should he agree voluntarily to return to Iran.  It is said in the document that those who refuse to accept the reintegration assistance package and do not have any current application for visa under review will be sent from Australia to Iran at the first practical opportunity pursuant to a Memorandum of Understanding between the two countries.

4                     The applicant says that if he is returned to Iran his life or freedom would be threatened on account of his religion, his membership of a particular social group and his politician opinions.  He asserts that his return to Iran would constitute a refoulement contrary to Australia's obligations under Article 33 of the Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.  He also says that his return would be contrary to Australia's obligations under Article 3 of the Convention against Torture. 

5                     On 27 May 2003 the applicant filed an application in this Court in which he sought an injunction restraining the respondent from returning him to Iran and in which he claims interlocutory relief by way of an injunction restraining the respondent from returning him to Iran until the hearing and determination of his application.  The matter has come on today for hearing of his application for interlocutory relief.  The respondent has filed a motion seeking to dismiss the application as disclosing no reasonable cause of action.

6                     A similar application was heard and dismissed as to final relief by Marshall J in Applicant M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 458, judgment in which was delivered on 15 May 2003.  His Honour held, contrary to the submissions that had been put to him on behalf of the applicant in that case, who was in a similar position to the applicant in this case:

‘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.’

7                     An appeal was brought from his Honour's judgment and was heard last night by  a special sitting of the Full Federal Court.  The Full Court reserved its decision and granted leave for the appellant to file any further submissions within 14 days from 15 May.  It granted the respondent Minister leave to file any submissions in reply within 7 days thereafter.

8                     The transcript of the argument before the Full Court last night discloses that at the end of argument the presiding Judge, Goldberg J, on behalf of the Court said:

‘The court proposes to reserve its decision in this matter.  To enable the court to give proper consideration to the issues raised before it in argument this evening, the court orders:

(1)       That the respondent be restrained from removing the applicant/appellant from Australia until the determination of the matter before this Full Court or further order.’

The legal issues raised in the appeal which was before the Full Court are, so far as I can tell, identical to the legal issues raised in this case and the factual situations are closely similar. 

9                     The question whether interlocutory relief should be granted depends upon consideration of two criteria, firstly whether there is a serious question to be tried and, secondly, where the balance of convenience lies.  Those two questions are interdependent in the sense that the stronger the argument on the merits of the applicant's case the less the balance of convenience may need to swing in the applicant's favour.  Where the balance of convenience is strongly in the applicant' s favour, then the extent to which a serious question to be tried has to be shown will be varied accordingly.

10                  In the circumstances of this case I have no doubt, and it is not contested before me, that the balance of convenience favours the applicant, having regard to his contention that his life or freedom would be threatened if he were to be returned to Iran.  On the other hand, apart from public policy considerations, which I do not discount, there is no specific prejudice to which the respondent Minister can point arising out of a short-term restraint.

11                  The question whether there is a serious case to be tried does not require at this stage a close examination of the merits of the applicant's claim.  Suffice it to say that the Full Federal Court heard extensive argument on the matter yesterday and has reserved its decision.  I think in the circumstances I should regard that as an indication, and indeed I think in any event that it is the case, that there is an arguable case for the contention that the applicant puts.  I say nothing as to the strength of that case but that conclusion, coupled with the balance of convenience and the precedent set by the Full Court in its decision to grant interlocutory relief last night in a similar case, indicates that such relief is appropriate today.  The orders I will make are as follows:

1.         The respondent is restrained from removing the applicant from Australia until the hearing and determination of the application or further order.

2.         The trial of the application will be on affidavit.

3.         The trial is set down provisionally on 4 July 2003.

4,         The application is relisted for directions on 13 June 2003 at 9.45am.

5.         There is liberty to apply.

6.         Costs today reserved. 

Associate:

Dated:              3 June 2003