FEDERAL COURT OF AUSTRALIA

NATB v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 761

MIGRATION – summary dismissal of application for an injunction to restrain Minister for Immigration & Multicultural & Indigenous Affairs from refouling applicant – scope of the duty imposed by s 198(6) of the Migration Act 1958 (Cth)

Migration Act 1958 (Cth), s 198(6)

Federal Court Rules, O 20 r 2

M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131  followed

NATB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 807 OF 2003

STONE J

SYDNEY

18 JULY 2003

THE COURT ORDERS THAT:

1.         The proceeding be dismissed pursuant to O 20 r 2, as disclosing no reasonable cause of action. 

2.         The applicant pay the respondent’s costs of the application and the notice of motion. 

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

REASONS FOR JUDGMENT

1                     The respondent filed a notice of motion on 11 July 2003, seeking to have this proceeding dismissed pursuant to O 20 r 2 of the Federal Court Rules as disclosing no reasonable cause of action. 

2                     On 10 May 2001, the applicant applied to the Department of Immigration and Multicultural Affairs for a protection (class XA) visa under the Migration Act 1958 (Cth) (‘Migration Act’).  On 24 July 2001 a delegate of the respondent refused that application and on the same day a migration agent who had previously been acting for the applicant applied on his behalf to the Refugee Review Tribunal (‘Tribunal’) for review of the delegate’s decision. 

3                     The application to the Tribunal was apparently not authorised by the applicant and on 27 July 2001 the Tribunal was advised that the applicant, who had been in immigration detention as defined in s 5(1) of the Migration Act, had escaped from the detention centre on 22 July 2001, two days before the decision of the delegate was given.  On 15 August 2001 the applicant’s former migration agent wrote to the Tribunal and advised it that the application for review filed on 24 July 2001 was ‘lodged in error and should be withdrawn’. 

4                     In its reasons for decision the Tribunal stated that it had no jurisdiction to review the decision refusing to grant the applicant a protection visa because no valid application for review had been made.  The time for lodging a valid application for review of the delegate's decision has, as provided under s 412 of the Migration Act, now expired. 

5                     The applicant is now back in immigration detention.  On 7 July 2003 he lodged the application in this proceeding in which he states that on 2 July 2003 he was notified of the intention to remove him from Australia.  He seeks orders that the respondent be restrained from removing him from Australia and returning him to Algeria.  The grounds set out in the application are as follows:

‘1.       The Applicant is a citizen of Algeria who is at present in Australia and who is unwilling to return to Algeria owing to a well-founded fear of persecution in Algeria.

2.                  The Respondent threatens and intends to return the Applicant to Algeria.

3.                  If the Applicant is returned to Algeria, my life or freedom would be threatened on account of persecution by the government, and also by armed Islamic Militants who have kidnapped and tortured me.

4.                  The return of the Applicant to Algeria will constitute refoulement of the Applicant, 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.

5.                  Further, the return of the Applicant to Algeria will constitute refoulement of the Applicant, contrary to Australia’s obligations under Article 3 of the Convention Against Torture.

6.                  In the circumstances, the Respondent is neither required nor authorised to return the Applicant to Algeria.’

6                     These grounds are in essence the same as those relied on by the appellant in M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131 (‘M38/2002’) both before the primary judge in that matter and before the Full Court.  The claim in M38/2002 was dismissed before the primary judge and the appeal was rejected by the Full Court. 

7                     As was stated at the outset, the respondent has filed a notice of motion seeking summary dismissal of this proceeding under O 20 r 2 of the Federal Court Rules on the grounds that the application discloses no reasonable cause of action.  Counsel for the respondent submitted that I am bound by the Full Court’s decision in M38/2002 and that I must therefore dismiss the application.

8                     The power to remove the applicant from this country arises under s 198(6) of the Migration Act which provides that:

‘(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 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.’

9                     In M38/2002 the Full Court held unanimously that the obligation imposed on an officer under s 198(6) is not discretionary and that the power to remove must be exercised as soon as reasonably practicable once the requirements of the section have been met.  At [54] the Court said that:

‘s 198(6) does not give an officer a choice.  He or she is obliged to remove a person from Australia if the conditions set out in the provision are satisfied.’

10                  The Court, at [72], held that in relation to the obligation imposed by s 198(6): =

‘it is not open to an officer to consider whether an unlawful non-citizen is a “refugee” within the meaning of Art 1A(2) of the Refugees Convention.  Nor is it open to an officer to consider whether his or her removal and return to a particular country is conformable with the obligation against non-refoulement in Art 33(1) of the Refugees Convention.’

11                  However, it is not necessary for me to traverse the Full Court's reasons which are extremely detailed and very thorough.  With respect, I agree completely with the Full Court’s analysis, but in any event, even if that were not so, I would be bound by its decision.  In this case, the application has been finally determined, the time for review has expired under s 412 and no further application can be made under s 48A of the Migration Act. 

12                  The applicant has attempted to distinguish the decision in M38/2002 on the grounds that he has applied to the respondent for the exercise of the his discretion under s 48B of the Migration Act.  That section empowers the respondent, if he thinks it is in the public interest to do so, to permit a particular non-citizen to make another application for a protection visa, notwithstanding s 48A.  In M38/2002 such an application had already been made and refused.  As I understand it, no response has been received by the applicant in this proceeding in respect of the application made for the exercise of Ministerial discretion under s 48B.

13                  That circumstance does not in my view have any effect on the present applicability of s 198(6).  It may be that if the Minister were to exercise his discretion under s 48B in the applicant's favour, then a new application might be lodged by the applicant.  However,  I am required to decide the matter before me on the circumstances that now exist.  At present it is the case that the non-citizen has not made another valid application.  There is no guarantee that he will ever be in a position to do so.  Nevertheless, counsel for the applicant submitted that it is not possible to say that the applicant must fail, inter alia, as he has applied to the respondent for intervention pursuant to s 48B.  With respect, that circumstance is not relevant to the present application.  In any event, there is no apparent limitation on the number of applications that could be made to the respondent requesting that he exercise his discretion under s 48B.  If the applicant’s submission is correct, this fact alone would mean that it would never be possible to say that an application will fail, no matter how hopeless. 

14                  There is no relevant difference between the facts here and those considered in M38/2002.  The requirements of s 198(6) have been met.  The non-citizen is a detainee, he has made a valid application for a substantive visa, the grant of the visa has been refused and the application has been finally determined within the meaning of s 5(9), as was conceded by the counsel for the applicant.  Section 198(6)(d), which requires that the non-citizen has not made another valid application for a substantive visa, is also satisfied.

15                  The applicant attempted to cast doubt on the authority of M38/2002 because an application for leave to appeal that decision has been lodged with the High Court.  That submission must be rejected.  The decision in M38/2002 is binding unless and until it is overruled by the High Court.  There is no relevant difference between the circumstances before me and those before the Full Court in M38/2002.  For that reason alone it would be necessary to dismiss the application.  I might add that, even if there were no binding authority, I would come to the same conclusion.

16                  Accordingly, the orders of the Court will be that the proceeding be dismissed pursuant to O 20, r 2 of the Federal Court Rules, as disclosing no reasonable cause of action; and that the applicant pay the respondent's costs of the application and the notice of motion. 

Associate:

Dated:              23 July 2003