FEDERAL COURT OF AUSTRALIA

WAJZ, WAKA,WAGF, WAKB, WAKC, WAKD, WAKE,WAKF, WADX and WAKG v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1028

MIGRATION – judicial review – protection visa – failed applications for protection visas – exhaustion of administrative and judicial review remedies – removal to home country – proceedings seeking to restrain removal – asserted fear of persecution for convention reasons in home country – alleged prospective breach of protection obligations by Australia in removing applicants – no reasonable cause of action disclosed in relation to Refugee Convention – alleged prospective breach of Convention against Torture – psychological and psychiatric conditions of applicants –  effect on officer’s duty to remove – requirement to remove ‘as soon as reasonably practicable’ – whether limitation on power – mitigation of duty – possible arguable case – statements of claim struck out as to Refugee Convention – summary dismissal motions otherwise dismissed.

Migration Act 1958 (Cth) s 189(1), s 196, s 198, s 13, s 14

M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290

Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241

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

Li v Minister for Immigration and Multicultural Affairs [2002] FCAFC 181

NTAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 761

SDAE v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 959

NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 185

WAJZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W119 OF 2003

WAKA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W120 OF 2003

WAGF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W121 OF 2003

WAKB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W122 OF 2003

WAKC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W123 OF 2003

WAKD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W124 OF 2003

WAKE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W125 OF 2003

WAKF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W126 OF 2003

WADX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W127 OF 2003

WAKG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W128 OF 2003

FRENCH J

26 SEPTEMBER 2003

PERTH

THE COURT ORDERS THAT:

1.         Paragraph 4 of the Statement of Claim is struck out.

2.         The respondent’s motion for summary dismissal of the application is dismissed.

3.         The respondent is to pay the applicant’s costs of the motion.

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

THE COURT ORDERS THAT:

1.         Paragraph 4 of the Statement of Claim is struck out.

2.         The respondent’s motion for summary dismissal of the application is dismissed.

3.         The respondent is to pay the applicant’s costs of the motion.

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

THE COURT ORDERS THAT:

1.         Paragraph 4 of the Statement of Claim is struck out.

2.         The respondent’s motion for summary dismissal of the application is dismissed.

3.         The respondent is to pay the applicant’s costs of the motion.

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

THE COURT ORDERS THAT:

1.         Paragraph 4 of the Statement of Claim is struck out.

2.         The respondent’s motion for summary dismissal of the application is dismissed.

3.         The respondent is to pay the applicant’s costs of the motion.

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

THE COURT ORDERS THAT:

1.         Paragraph 4 of the Statement of Claim is struck out.

2.         The respondent’s motion for summary dismissal of the application is dismissed.

3.         The respondent is to pay the applicant’s costs of the motion.

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

THE COURT ORDERS THAT:

1.         Paragraph 4 of the Statement of Claim is struck out.

2.         The respondent’s motion for summary dismissal of the application is dismissed.

3.         The respondent is to pay the applicant’s costs of the motion.

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

THE COURT ORDERS THAT:

1.         Paragraph 4 of the Statement of Claim is struck out.

2.         The respondent’s motion for summary dismissal of the application is dismissed.

3.         The respondent is to pay the applicant’s costs of the motion.

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

THE COURT ORDERS THAT:

1.         Paragraph 4 of the Statement of Claim is struck out.

2.         The respondent’s motion for summary dismissal of the application is dismissed.

3.         The respondent is to pay the applicant’s costs of the motion.

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

THE COURT ORDERS THAT:

1.         Paragraph 4 of the Statement of Claim is struck out.

2.         The respondent’s motion for summary dismissal of the application is dismissed.

3.         The respondent is to pay the applicant’s costs of the motion.

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

THE COURT ORDERS THAT:

1.         Paragraph 4 of the Statement of Claim is struck out.

2.         The respondent’s motion for summary dismissal of the application is dismissed.

3.         The respondent is to pay the applicant’s costs of the motion.

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

REASONS FOR JUDGMENT

Introduction

1                     Ten Iranian nationals have applied to this Court for orders preventing their removal from Australia to Iran.  Each of them has unsuccessfully applied for a protection visa on the basis that he is a refugee within the meaning of the Refugees Convention.  Each has exhausted the available administrative and judicial review remedies in respect of the refusal of his protection visa application. 

2                     In April of this year the applicants were provided with Information Packages containing offers of reintegration assistance, including financial assistance, in the event of their voluntary return to Iran.  Each was invited to accept the offer within twenty-eight days.  The package also stated that if an applicant decided not to accept the offer, he or she would nevertheless be returned to Iran.

3                     In the proceedings which each of them has instituted in this Court, the applicants all say that if returned to Iran their life, safety and/or freedom would be threatened on account of their religion, membership of a particular social group and political activities and opinion.  Their return would be 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 and also in contravention of Article 3 of the Convention against Torture.  They say that in these circumstances the Minister for Immigration, Multicultural and Indigenous Affairs is neither required nor authorised to return them to Iran under the Migration Act 1958 (Cth). 

4                     Each of the applicants also claims to be suffering from post traumatic stress disorder and depressive disorder.  On this basis it is said that it is not reasonably practicable for them to be returned to Iran at this time.  They say that the Minister’s officers are obliged to have regard to those factors and conditions pertaining in Iran at the present time before they can lawfully be removed. 

5                     The Minister has moved to strike out the applications under O 20 of the Federal Court Rules on the basis that they disclose no reasonable cause of action.  The first limb of the applicants’ claims, to the extent that it is based upon their contention that the removal power is limited by Australia’s obligations under the Refugees Convention, is foreclosed by the decision of the Full Court of the Federal Court in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290.  The remaining elements of their claims relating to the Torture Convention and to their post traumatic stress disorder and depressive disorders depends upon an interpretation of the removal provisions of the Act which, in the light of the recent Full Court decision in NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 185, may be arguable. For these reasons I have decided to strike out so much of the statements of claim as refer to the Refugees Convention and otherwise dismiss the Minister’s motions with costs.

History of the Applications for Protection Visas

6                     The applicants, each of whom is an Iranian national, arrived in Australia without lawful authority by boat between February 1999 and March 2001.  Each applied for and was refused a protection visa.  Each sought review of that refusal by the Refugee Review Tribunal (‘the Tribunal’) and in each case the Tribunal affirmed the decision to refuse the grant of a protection visa.  All but two of the applicants (WAKB and WAKF) applied to the Federal Court for judicial review of the Tribunal decision.  The judicial review applications of all of those who applied to the Federal Court were dismissed save for the application of WAKC.  In that case consent orders were made remitting the matter to the Refugee Review Tribunal for reconsideration.  The protection visa refusal was again affirmed by the Refugee Review Tribunal and WAKC did not seek judicial review of that decision. 

7                     All those who applied to the Federal Court and failed at first instance then appealed to the Full Court save for WAKG.  Each of the appeals to the Full Court was dismissed.

8                     The history of proceedings in respect of each of the applicants is set out below.  Each of the applicants remains in migration detention.  The Minister has now initiated steps to return them to Iran.

* WAKB and WAFK did not seek judicial review of the RRT decision.

** WAKC Consent orders were signed and the matter was remitted back to the RRT for reconsideration.

The applicant did not seek judicial review of the decision dated 3/12/99.

*** WAKG did not appeal to the Full Court.

Proposals to Return the Applicants to Iran

9                     On or about 30 April 2003, an officer of the Department served on each of the applicants a set of documents entitled ‘Information Package for Iranian Returnees’.  The package contained a letter entitled ‘Offer of Voluntary Return to Iranian Nationals’.  It advised each applicant that if he accepted voluntary return to Iran the Australian Government would be responsible for the expenses of his return to Iran and domestic transfer to his place of residence.  It would also offer him a reintegration assistance package with financial assistance of A$2,000 per person or up to A$10,000 for each family.  Each applicant was invited to accept the offer within twenty-eight days.  The letter concluded:

‘Should you decide not to accept the voluntary return within the 28 days, then the programs for your involuntary departure will commence and you will be repatriated from Australia without the benefit of financial assistance.’

10                  The package also contained a statement of ‘Procedures for Involuntary Return to Iran’.  This statement was in the following terms:

‘From the date you receive the formal offer of Reintegration Assistance Package for Iranian nationals, you have 28 days to accept the offer about your voluntary return to Iran.  If you decide not to accept this offer, the procedure for your involuntary return to Iran is as follows:

.           Upon expiry of the 28 days, the offer to you will expire and you will no longer be eligible to receive the Reintegration Assistance Package

.           Your name, date of birth and personal particulars will be given to the Iranian Embassy in Canberra.  They will be in contact with the Ministry of Foreign Affairs in Iran to identify you

.           Upon identification, the Embassy will deliver your travel documents to the Unauthorised Arrival Section.  They will arrange the necessary requirements for your travel

.           You will be returned to Iran at the first logical opportunity’

11                  The package made reference to a ‘Memorandum of Understanding on Consular Affairs’ (‘MOU’) signed between the Islamic Republic of Iran and the Government of Australia on 12 March 2003.  According to that MOU, Iran and Australia  have agreed to consider and implement bilateral programs for beneficial and legal travel of the nationals of both parties.  The description of the MOU did not disclose its precise terms.  However, according to that description, Iran and Australia have agreed that their priority is to coordinate and encourage voluntary return of Iranians who are at reception centres.  To facilitate this Australia has agreed to provide financial assistance directly to those nationals presently at the reception centres who voluntarily return to the Islamic Republic of Iran.  Iran in turn has agreed to accept those who entered Australia illegally or were residing in Australia illegally if their Iranian nationality were determined and Australia repatriated them.  These plans are to be implemented in accordance with the internal laws of the respective countries and their commitments to relevant international protocols such as the Vienna Consular convention (1963), the Refugee Convention (1951) and the relevant Protocols to that Convention (1967).

The Present Proceedings

12                  On 27 May 2003, each of the applicants filed an application in this Court claiming an injunction restraining the respondent from returning him to Iran.  Each also sought interlocutory relief restraining the respondent from returning him until the hearing and determination of the application.  On 15 May 2003, a similar application had been heard and the claim for final relief dismissed by Marshall J in Applicant M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 458.  An appeal from that judgment was heard by an urgently convened sitting of the Full Federal Court on 28 May 2003.  The Full Court reserved its decision and granted leave to the appellant in that case to file any further submissions within fourteen days from 15 May.  I made an order on 29 May 2003 in WADX restraining the respondent from removing the applicant from Australia until the hearing and determination of the application or further order.  On 30 May 2003, Nicholson J made similar orders in the other nine matters. On 13 June 2003, the Full Court dismissed the appeal in M38.  An application for special leave to appeal against the decision of the Full Court was filed in the High Court.  Following a motion for expedition of the hearing of the special leave application, that application has been listed for hearing on 12 December 2003 in Melbourne.

13                  The respondent filed a defence to the statement of claim in WADX on 29 May 2003 and a notice of motion seeking summary dismissal of the proceeding.  Defences and similar motions were filed in the other nine matters on 30 May 2003.  In the event all the motions for dismissal of the applications came on for hearing before me on 27 August 2003.  That day had been set down for the hearing of the applications.  I determined however to proceed on the basis that the motions could be heard and decided and that if the applications were still on foot after the motions were decided, further directions for their substantive hearings could be made.  Counsel indicated they were content to proceed on that basis.   

14                  Proposed amended statements of claim in common form were filed in each of the matters and on 27 August the amendments were allowed with no objection from counsel for the respondent.  The motions for summary dismissal then proceeded by reference to the amended statements of claim.

The Amended Statements of Claim

15                  The amended statements of claim are brief in their terms and it is convenient to set  out in full that which was filed in WADX:

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

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

3.         If the Applicant is returned to Iran, his life, safety and or freedom would be threatened on account of his religion, membership of a particular social group and political activities and opinion.

4.         The return of the Applicant to Iran 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 Iran 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 Iran under section 198(6) of the Migration Act 1958 or otherwise.

FURTHER OR IN THE ALTERNATIVE:

7.         The Respondent threatens and intends to return the Applicant to Iran.

8.         If the Applicant is returned to Iran, his life or freedom would be threatened on account of his religion, membership of a particular social group and or political activities and opinion.

9.         The Applicant fears that his life, safety and or liberty will be harmed if he returns to Iran.

10.       By reason of the personal circumstances of the Applicant which include suffering from Post Traumatic Stress Disorder and Depressive Disorder, and conditions pertaining in Iran at the present time, it is not reasonably practicable for the Applicant to be returned to Iran at this time.

11.       The Respondent has failed to consider the personal circumstances of the Applicant, including the Applicant’s state of health, the current situation in Iran relevant to the Applicant, and the subjective fears of the Applicant.

12.       By reason of the Respondent’s failure set out in paragraph 11 above, any decision of the Respondent to remove the Applicant pursuant to s198(6) of the Migration Act or otherwise will be made without jurisdiction.’

16                  Each of the amended statements of claim is identical in its wording save for that of WAKC in respect of which the differences are immaterial for present purposes.  That amended statement of claim omits the words ‘safety and or’ and ‘activities and’ from par 3, the words ‘or’ and ‘activities and’ in the last line of par 8 and the reference to ‘safety’ in par 9.  In par 10 of the amended statement of claim in WAKC the words ‘severe chronic’ are added before ‘Post Traumatic Stress Disorder’.

Statutory Framework

17                  Each applicant was taken into immigration custody upon arrival in Australia.  This was done pursuant to s 189 of the Migration Act which provides in the relevant part:

‘189(1)  If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.’

18                  Section 196 sets out the period of detention thus:

‘196(1)  An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:

(a)       removed from Australia under section 198 or 199; or

(b)       deported under section 200; or

(c)        granted a visa.

   (2)  To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.

   (3)  To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has made a valid application for a visa and he or she has been granted a visa.’

19                  Section 198 deals with the removal from Australia of unlawful non-citizens.  Relevantly for present purposes it provides:

‘198(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.’

20                  The term ‘unlawful non-citizen’ is defined by ss 13 and 14 of the Act thus:

‘13(1)  A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.

    (2)  An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen.

14(1)  A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.

   (2)  To avoid doubt, a non-citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non-citizen.’

The word ‘remove’ used in s 198 is defined in s 5 of the Act to mean ‘remove from Australia’.

The Relevant International Conventions

21                  The amended statements of claim each refer to and rely upon Australia’s international obligations under Article 33 of the Refugees Convention 1951 and Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

22                  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.’

23                  Article 3 of the Torture Convention prohibits refoulement to a country where an individual faces a real chance of torture.  The Article 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.’

Whether the Applications Should Be Dismissed Summarily

24                  The first six paragraphs in each of the amended statements of claim raise the same issues as were raised in M38.  Indeed the language of those paragraphs is almost word for word that of the statement of claim filed in M38 at [11].  The application in that case was summarily dismissed at first instance and that summary dismissal was upheld on appeal.

25                  The operation of s 198(6) which is put in issue in the amended statement of claim was considered by the Full Court in Minister for Immigration, Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241 at [35]:

‘There is no power under the Act to decide against the removal of an unlawful non-citizen and so that where a subsection of s 198 applies to an unlawful non-citizen the removal of that person would occur by force of law.’

26                  As the Full Court said in M38 at [28]:

‘Broadly speaking, therefore, the Act contemplates that an unlawful non-citizen must either be granted a visa or removed from Australia.’

27                  The Full Court in M38 referred to the provisions of Article 33 of the Refugees Convention and to the provisions of the Migration Act relating to protection visas whereby Australia gives effect to its obligations under the Convention.  Subject to those specific provisions the terms of the Refugees Convention and indeed the Convention against Torture do not form part of Australian municipal law – see at [51].  That observation is subject to the effect of the decision in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 relating to the requirements of procedural fairness where an administrative decision-maker exercising a statutory discretion intends not to apply or to depart from a relevant Convention to which Australia is a party.

28                  Their Honours said, relevantly for present purposes, at [54]:

‘Unlike the statutory discretion considered in Teoh, 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.  If the language of the various provisions of the Act are compared and contrasted, it is apparent that the Act draws a sharp distinction between provisions that confer a power to act, exercisable in the decision-maker’s discretion (for example, ss 48B and 417) and provisions that impose a duty to act, the performance of which is imperative.  Considered as a whole, the Act does not leave open the possibility that the word “must” in s 198(6) merely confers a power, rather than a duty, to act, although such a conclusion may be open in other statutory contexts: cf Re Davis (1947) 75 CLR 409 at 424 per Dixon J.’

29                  Their Honours discussed the officer’s duty under s 198(6) to remove an unlawful non-citizen where the necessary conditions have been fulfilled as ‘not absolute in the sense that it does not arise as soon as the conditions in pars (a)-(d) are satisfied, but as soon thereafter as is “reasonably practicable” for the officer to remove the non-citizen’.  They observed at 308 [65] that the question whether or not the removal of an unlawful non-citizen is practicable is largely, if not entirely, concerned with whether the removal is practicable from the viewpoint of the officer concerned.  Their Honours said at [66]:

‘Whether the removal of a non-citizen is “reasonably practicable”, as distinct from merely “practicable”, may direct attention to a range of considerations, including factors relating to the unlawful non-citizen facing removal, and the interests of third parties who may be directly affected (such as, for example, the interests of third party states).’

30                  Relevantly for present purposes their Honours went on to say at [69]:

‘Doubtless, there will be other factors that, from time to time, will lead an officer to conclude that, at the time removal is contemplated, removal would not be reasonably practicable in the circumstances of the case.  If, for example, the only country willing to receive an unlawful non-citizen were suffering from some severe natural disaster or were in a state of utter civil anarchy, the officer may well be entitled to conclude that his or her removal would not be reasonably practicable until the effects of the disaster had dissipated or some degree of order had been restored… The physical condition of a person facing removal may also lead an officer to conclude that his or her removal in that condition would not make the removal reasonably practicable.’

Reference was made to Li v Minister for Immigration and Multicultural Affairs [2000] FCAFC 181 at [7] per Merkel J (Heerey and Conti JJ agreeing).

31                  The central contention in M38 was that s 198(6) was to be construed as not authorising the removal of a refugee to a place where he faced a real risk of imprisonment or punishment for Convention reasons – at [70].  The Court rejected that construction.  In so doing it had regard to the practical context in which an officer must discharge his or her duty under s 198(6).  That factor together with the scheme of the Act made it clear that an officer cannot consider whether an unlawful non-citizen is a ‘refugee’ within the meaning of the Refugees Convention.  Nor can an officer consider whether the proposed removal and return to a particular country is conformable with the obligation against non-refoulement in Article 33 of the Refugees Convention.  Issues of that kind cannot appropriately be resolved by an officer on whom the duty to remove under s 198(6) falls.  The Act itself establishes a specialised administrative regime for determining these questions.  It would not be open to the Court to substitute its own decisions on those matters for the decisions made by those to whom the Act entrusts responsibility – at [83].

32                  Having regard to the decision of the Full Court and its evident ratio in M38, I am bound to conclude that the first six paragraphs of the amended statements of claim in each case do not disclose any reasonable cause of action insofar as they rely upon the Refugees Convention.  A similar position was adopted by Mansfield J in SDAE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 959.  His Honour said at [12]:

‘Consequently, in my judgment, the decision of the Full Court in M38/2002 is directly on point and should be followed by me.  In that event, it would mean that the applicant, having had his application for a protection visa finally determined within the meaning of s 5(9) of the Act, is not entitled on this application to revisit the decision that he is not a refugee, and consequently he is not entitled to raise a factual issue that to return him to Iran would constitute refoulement in contravention of Art 33(1) of the Convention.’

33                  Stone J also adopted a similar position in NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 761.  However leave to appeal against her decision was given by the Full Court in  NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 185.  In that case the Court identified an arguable distinction between M38 and the case before it.  The distinction was that in the case before the Full Court there had not been the complete working out of the administrative and judicial decision-making machinery provided for in the definition of refugee status which had occurred in M38 and, perhaps more importantly, that the Full Court in M38 did not consider the relevance of the Torture Convention (although it had been pleaded).

34                  The Full Court in NATB interpreted the judgment of the Full Court in M38 as making it clear that ‘… what is “reasonably practicable” is not confined literally to the capacity of the officer to put the unlawful non-citizen on an aircraft or ship leaving Australia.  What is likely to happen at the destination may be relevant.  Therefore, it might be said, if misfortune such as earthquakes, plague and anarchy are relevant, why not torture.’  Their Honours went on to say at [23]:

‘This argument does not involve giving the Torture Convention operation in Australian domestic law.  Rather the argument would be that the prospect of torture or inhumane treatment so bad that it would contravene the Convention is a relevant consideration for an officer determining whether it is reasonably practicable to deport a person to a country where that may occur.  It is accepted, as the Full Court in M38/20003 pointed out, that the present case is not, as Teoh was, a case of a discretionary decision.  Nevertheless the officer has to make a human judgment as to what are relevant factors and exercise an evaluation of those factors in coming to a conclusion as what is or is not reasonably practicable.  Administrative law remedies are not entirely foreign to such a function, as for example in the application of the doctrine of Wednesbury unreasonableness.’

Their Honours accepted on the other hand that it could be argued that s 198(6) is only concerned with the practicable arrangements for removing a person from Australia to another country.  It was also accepted that s 198(6) is a privative clause decision and is subject to s 474.  But arguably, at least an administrative law defect of the kind referred to in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 at 76 would render the purported decision not a ‘decision’ within the meaning of s 474.  Importantly for the present motions, their Honours said at [26]:

‘A strike-out application must proceed on the assumption that the facts alleged by the applicant are true.  Since the consequences for the applicant are so serious, and the case the applicant seeks to make if those facts are true is, in our view, reasonably arguable, we would without expressing any final view on its merits consider this is an appropriate case for the grant of leave to appeal.’

35                  In addition to the reference to the Torture Convention in pars 1-6, pars 7 through to 12 of the amended statements of claim rely upon the proposition that the term ‘reasonably practicable’ in s 198(6) limits the power conferred by that section by reference, inter alia, to the personal circumstances of an applicant.  Personal circumstances relevant in this context are post traumatic stress disorder and depressive disorder. 

36                  There is much force in the view that, as a matter of ordinary language, the words ‘as soon as is reasonably practicable’ define the time within which the officer referred to in s 198(6) must remove an unlawful non-citizen who satisfies the criteria in that subsection.  On that basis they are not words of limitation upon a power.  They mitigate the officer’s duty so that it is not absolute and immediate.  It has been said by Merkel J in Li at [7]:

‘Of course, if a person who is to be removed under subs 198(5) proffers expert medical evidence or material that the removal would expose that person to a real or serious risk to their health then that would raise a serious issue as to whether the power of removal should be exercised, as it may not be reasonably practicable to remove the person in those circumstances.’

There is much to be said also for the view that if the words ‘reasonably practicable’ apply to the power to remove they do not identify a justiciable condition upon that power.  Whether removal is reasonably practicable would seem to be a matter of administrative judgment.  The fact that a person is suffering from post traumatic stress disorder and a depressive disorder would not, on that view, mandate a judgment that the removal would not be reasonably practicable.  Such a judgment would necessarily involve a multi-dimensional evaluative assessment necessarily based upon a variety of factors.

37                  As to the allegation in par 11 of a failure by the Minister to consider the personal circumstances of each plaintiff, to the extent that that is a relevant consideration, such consideration does not appear to be mandated by the section.   

38                  Having regard however to what has been said by the Full Court in NATB, I must accept that there may be an arguable case capable of sustaining the applicants’ claims if the pleaded facts are made out.  In the circumstances I propose to strike out so much of the statements of claim as refer to the Refugees Convention and otherwise dismiss the Minister’s motions with costs.

Associate:

Dated:              26 September 2003