FEDERAL COURT OF AUSTRALIA

SPKB v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1116

MIGRATION – application for order in the nature of a writ of habeas corpus – whether detention unlawful – where application for protection visa based on fear of persecution in Iran finally determined – where not ‘reasonably practicable’ to return applicant to Iran, but ‘reasonably practicable’ to return applicant to country of origin (Iraq) in ‘reasonably foreseeable future’ – whether officer obliged to consider fear of persecution in Iraq in determining whether removal to Iraq is reasonably practicable – whether applicant can rely on decision in Al Masri where applicant will not cooperate in removal – whether applicant can require Minister to determine refugee status once application for protection visa finally determined – whether definition of ‘vessel’ for purposes of s 218 Migration Act 1958 (Cth) is limiting or facultative – application dismissed. 

Migration Act 1958 (Cth) ss 48A, 48B, 196, 198(6), 218, 417

Evidence Act 1995 (Cth) s 144

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

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

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

SPKB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No S 573 of 2003

LANDER J

ADELAIDE

14 OCTOBER 2003              

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                     The applicant is presently detained in the Villawood Detention Centre in New South Wales.  He has made an application for an order in the nature of a writ of habeas corpus and an injunction pursuant to s 39B of the Judiciary Act 1903 in which he claims that his detention is unlawful.

2                     This is the applicant’s second application for the same orders.  The previous application was heard and refused by Mansfield J:  SPKB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 546. 

3                     The applicant is a citizen of Iraq who arrived in Australia on 16 December 1999 without any form of visa.  Thus he was an unlawful non-citizen and he was detained pursuant to s 189 of the Migration Act 1958 (‘the Act’) and has remained in detention since that time:  s 196.  He is detained because of his status as an unlawful non-citizen:  Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 197 ALR 241 at p 249 (Al Masri).  He must be kept in detention until he is removed from Australia under ss 198 or 199 or deported under s 200 or granted a visa:  s 196 of the Act.

4                     The applicant came to Australia from Syria where he had lived between 1996 and 1999.  On 21 March 2000 the applicant sought a protection visa claiming to have a well founded fear of persecution by the Iraqi authorities if he returned to that country.  He claimed that he was unable to return to Syria because he risked refoulement by Syria to Iraq.

5                     In these proceedings the applicant filed an affidavit in which he deposed to the truth and accuracy of a statement previously exhibited to another affidavit (Exhibit A to his affidavit of 26 March 2003) sworn in the proceedings before Mansfield J in which the applicant states that he fled from Iraq because of persecution of his family.

6                     He said his brother was accused of religious and political activities in Kuwait.  Because of his conduct the applicant became subject to the scrutiny of the authorities.

7                     The applicant was called up into the army in for national service 1982 and served until 1985.  A year after he was discharged he was taken by the authorities to a security office in Karbala’a where he was accused of being a member of the Al-Da’awa Party.  He said he was detained, interrogated and tortured for about a month before he was transferred to the security headquarters in Baghdad.  He was referred to a revolutionary court after he had been detained for two years.  He was acquitted and freed in 1988.

8                     His brother was arrested in 1987.  He was executed by the regime.  The applicant claimed that his brother’s death certificate said he was executed as a traitor.  He said that his crime had been ‘that he read a verse from the Qour’aan on the tomb of his friend who was also executed’.

9                     During the ‘Intifadha’ which took place in March 1991 the Iraqi army advanced to Karbala’a.  The applicant attempted to flee with his family but they were chased by helicopter.  The applicant was shot and his son was killed.

10                  The applicant regained consciousness in a hospital but was immediately removed to a prison in Al-Radhwaniya where he was detained for more than a year.  His health deteriorated as a result of his wound and he was transferred to a military hospital in Baghdad. 

11                  He was assisted by a Kurd to escape from the hospital to Erbil in the Kurdish area of Iraq.  Later that person also assisted his family to relocate to Erbil.

12                  On 31 August 1996 the Iraqi regime sent 40,000 of its troops to occupy the city of Erbil at the request of the Kurdistan Democratic Party.  The applicant and his family went into hiding until his escape from Iraq could be organised.  They escaped from Iraq into Syria.

13                  Eventually, because he feared that the Syrian authorities would return him and his family to Iraq, he arranged with smugglers to travel to Australia.

14                  The applicant’s case is that he fears that if he were to return to Iraq he would be persecuted for reason of his political opinions.

15                  The applicant argued that the above circumstances established that he has a well founded fear of persecution for a Convention reason and therefore he is a refugee and cannot be removed to Iraq pursuant to s 198(6).

16                  His application for protection visa was refused by a delegate of the Minister on 24 July 2000. 

17                  The delegate found:

‘Having assessed all of the claims and material provided by the applicant, including judicial interpretation, academic opinion, the UN Handbook and generally available country information, I find that the applicant has effective protection in Syria, which includes a right to enter and reside in that country.  On the basis of the country information I also find that Syria will not return the applicant to Iraq.

I am also satisfied that the applicant does not have a well-founded fear of persecution for a Convention reason in Syria.

I find that Australia does not owe any protection obligations to the applicant under section 36 of the Act.’

18                  His application for a review by the Refugee Review Tribunal (‘the Tribunal’) was refused on 5 October 2000.  The Tribunal also found that the applicant could return to Syria and remain in that country without the risk of being refouled to Iraq.  For that reason the Tribunal dismissed his application for review because it concluded that he was not a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (Refugees Convention) as amended by the Protocol relating to the Status of Refugees  done at New York on 31 January 1967 (Refugees Protocol). 

19                  It was not necessary for the purposes of the delegate’s or the Tribunal decision to address the applicant’s claim that he had a well founded fear of being persecuted if he were to return to Iraq.

20                  Thus it is that the applicant is an Iraqi national who claims that he has a well-founded fear of persecution if returned to Iraq but there has been no adjudication on that claim.  The two administrative decisions have established that the applicant does not have a well-founded fear of persecution if returned to Syria and that he is not at risk of being refouled to Iraq. 

21                  Because his application for a review was dismissed by the Tribunal, the applicant continued to be an unlawful non-citizen and as such has remained in immigration detention:  s 196 of the Act.  That section provides that whilst he remains an unlawful non-citizen detained under s 189 he must be kept in immigration detention until he is removed from Australia under s 198 or s 199, or deported under s 200, or granted a visa. 

22                  The applicant brought proceedings in this Court seeking a judicial review of the Tribunal’s decision but discontinued those proceedings on 30 May 2001.  The applicant discontinued his judicial review proceedings in order to remove an obstacle to his removal from Australia.  On 10 May 2001 shortly before discontinuing those proceedings, he applied for a bridging visa so that he could attempt to arrange his own departure from Australia.  Unfortunately the application for the bridging visa was not determined until March 2003 when it was refused.  On 5 March 2003, the Director of Detention Operations wrote to the applicant’s solicitor advising that the applicant did not meet the requirements of s 72 of the Act and was not, therefore, an ‘eligible non-citizen’ and not eligible to apply for a bridging visa. 

23                  The evidence supports a finding that the applicant discontinued his proceedings so that he might return to Iraq.  The applicant claims that in January 2001 he learnt that his wife and children, whom he had left in Syria, had been sent back to Iraq and had been imprisoned.  He claims that he learnt that his 14 year old son died as a result of mistreatment whilst in prison in Iraq.  Indeed, in a letter translated to English and dated 6 January 2001, this was the information provided to the applicant by a relative. 

24                  Mansfield J found that the applicant blamed himself for what he perceived to have befallen his family and he therefore requested to be removed from Australia in the hope that he could assist his family’s predicament.  No precise finding was made as to exactly when the applicant sought to be removed from Australia but the application to be removed must have been some time between January and March 2001 because Mansfield J found that the respondent has been aware since March 2001 that the applicant wishes to be removed from Australia. 

25                  Mansfield J did not need to decide whether the applicant did have a genuine desire to be removed from Australia because he was able to dispose of the application on other grounds. 

26                  The applicant attempted to reinstate his application for judicial review on 24 September 2002 but on 14 October 2002 that application was refused:  V852/OOA v Minister for Immigration & Multicultural Affairs [2002] FCA 1338.  He appealed from that refusal but the appeal was not pursued and on 7 May 2003 it was dismissed by consent.

27                  On 20 May 2003 he was notified that action would be commenced to effect his removal from Australia.

28                  The application before Mansfield J was heard after the decision of the Full Court of this Court in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 197 ALR 241. 

29                  When the applicant first came before Mansfield J the applicant did not argue that his detention had been unlawful at any time prior to 20 May 2003, the date upon which he was informed that steps would be taken to effect his removal from Australia.

30                  He argued before Mansfield J that his continued detention after 20 May 2003 was unlawful.  The issue before Mansfield J was ‘whether as a matter of fact there was no realistic prospect of the applicant being removed from Australia within the reasonably foreseeable future’. 

31                  The applicant’s case before his Honour was that there was no realistic prospect of the applicant being removed from Australia within the reasonably foreseeable future because there was no prospect of the applicant being removed from Australia to either Syria or Iraq.  He argued that as a matter of fact he could not be returned to Syria because Syria was ‘no longer accepting back Iraqis’.  The applicant further argued before Mansfield J that he could not be returned to Iraq because it was unsafe for him to be returned to that country.  He argued that he had a well founded fear of persecution and therefore could not legitimately be returned to Iraq.  The argument presented to Mansfield J was that because he had that well founded fear the Minister was not entitled to remove him to Iraq pursuant to s 198 of the Act.  In those circumstances it was submitted there was no realistic prospect of the applicant being removed from Australia within the reasonably foreseeable future.

32                  The applicant says that argument does not contradict the findings of the respondent’s delegate and the Tribunal.  Neither the delegate nor the RRT needed to make a finding that the applicant had a well-founded fear of persecution if he were returned to Iraq.

33                  Mansfield J did not decide whether the applicant’s argument in respect to his claimed well-founded fear of persecution was tenable because his Honour was unable to conclude, as a matter of fact, that there was no realistic prospect of the applicant being removed to Syria within the reasonably foreseeable future.

34                  Mansfield J said:

‘I have reached the view that the present detention of the applicant under the Act is not lawful (sic).  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.’

35                  The applicant has again argued on this appeal that there is no realistic prospect of him being removed from Australia within the reasonably foreseeable future.  He has tendered a body of evidence, to which I will shortly refer, to establish that Syria will not allow him to return to that country.  It was submitted that whether there was a reasonable prospect of him being removed to a country outside Australia, must be tested by reference to the prospects of him being returned to Syria, because it was not permissible for the Minister to remove him to Iraq because he did have a well founded fear of persecution if returned to Iraq.

36                  The respondent has contended that there are three possible ways in which the applicant will be removed from Australia in the foreseeable future;  first, he may be removed voluntarily to Iraq;  secondly, he may be removed involuntarily to Iraq;  and thirdly he may be removed voluntarily to Syria.

37                  It is the respondent’s contention on this application that the applicant cannot bring himself within the decision of the Full Court of this Court in Al Masri.

38                  The applicant failed before Mansfield J because Mansfield J was not satisfied that there was no realistic prospect of the applicant being removed to Syria in the reasonably foreseeable future.  Mansfield J accepted the evidence of Mr Durstan, the Assistant Director in the Unauthorised Arrival Section of the respondent’s department.  In particular Mansfield J accepted his evidence that there was then a realistic prospect of the applicant securing an entry visa to Syria within the next several weeks.  The applicant’s application was heard by Mansfield J on 23 May 2003 and his reasons were published on 5 June 2003. 

39                  I shall deal first with the respondent’s assertion that the applicant may be returned to Syria.

40                  On this application the applicant has adduced further evidence from his solicitor, Ms Byers, and a friend, Ms McLallen, as to their enquiries on behalf of the applicant to obtain permission to enter the Syrian Arab Republic.  Ms McLallen made a visa application which she lodged with the Consulate of the Syrian Arab Republic in Sydney which was rejected on 17 June 2003.  The application was incomplete.  Most of the information required to be provided on the typewritten form was omitted.  However the grounds for refusal were that the applicant did not have a passport and that Syria would not accept the applicant as an Iraqi refugee.  That rejection was communicated to the unauthorised arrival section of the respondent’s department by Ms Byers who received a communication from that department that a visa might be able to be secured by approaching the Consulate of the Syrian Arab Republic in Melbourne.

41                  The applicant’s solicitor telephoned the Honorary Consul of the Syrian Arab Republic in Melbourne and spoke to a person who identified himself as George Zarybi.  He said he would make enquiries and communicate with her.

42                  On 19 June 2003 Ms Byers received a communication from the Honorary Consulate of the Syrian Arab Republic in Melbourne in the following terms:

‘Please be advised that our current official position states that we are not to issue a Syrian Visa to Iraqi Nationals.

Iraqi Nationals must make a written request for a Syrian visa through our consulate and approval will take between 6 – 8 weeks.’

43                  On 4 July, apparently at the direction of the applicant’s counsel, Ms Byers sent a facsimile to the Honorary Consulate of the Syrian Arab Republic in Melbourne to clarify the need for a “written request” ‘when it is stated in the first paragraph that it is the current official position not to issue Syrian visa to Iraqi Nationals’. 

44                  She received a reply that day in much the same terms as the previous reply except on this occasion she was advised of the documents which needed to be produced ‘for Iraqi nationals requesting a Syrian visa’.

45                  In a second affidavit Ms McLallen has affirmed that she took the applicant’s certificate of identity to the Syrian Consulate in Sydney and received an advice in writing that the certificate had been produced.  At the same time the applicant’s application for a visa was endorsed ‘visa denied’.

46                  She exhibited to that affidavit a communication she had with the United Nations High Commission for Refugees in Geneva.  In response to her communication, she was advised by UNHCR that, since 14 April 2003, the Syrian Government had effectively closed its borders to the entry of any Iraqi nationals and that only those Iraqis who had some business reason for being in Syria were being admitted.

47                  Ms McLallen exhibited a further communication from UNHCR in which the UNHCR has advised countries including Australia ‘that asylum seekers from Iraq should not be returned to countries in the region where they might have stayed or through which they might have transitted before applying for asylum in countries further afield’.

48                  Further UNHCR bulletins, which describe the fluid situation in Iraq, recommend that there be a complete ban on forced returns to Iraq between March and July 2003. 

49                  On 10 July 2003 Ms Keenan, the Acting Director of the Unauthorised Arrival Unit in the Minister’s Department, wrote to the deponent advising that the department had not returned an Iraqi to Syria since the end of April 2003, shortly after hostilities had broken out in Iraq. 

50                  On 11 July Ms McLallen received the following communication from the Syrian Arab Republic in Melbourne:

‘Friday, July 11, 2003

To Whom It May Concern:

Re:  Syrian Visa for Iraqi Nationals

This letter confirms my previous letter dated Thursday, June 19, 2003.

Please be advised that our current official position states that we are not to issue a Syrian Visa to Iraqi Nationals.

The only Iraqi Nationals that are currently allowed, exceptionally, to enter Syria are those that have evidence to show they have some business there.

Should you have any further queries regarding this matter, please contact me on the number above.

Yours faithfully,

Antonios Araybi

Honorary Consul of the Syrian Arab Republic’

51                  I think that communication is plain enough if the others were not.

52                  The applicant could not show that he had business in Syria. 

53                  Mr Durston, who continues to hold the position and undertake the duties of Assistant Director of the Unauthorised Arrival Section of the Detention Services Division, has filed an affidavit in this application in which he has referred to his affidavit in the hearing before Mansfield J.

54                  He has deposed:

‘I remain of the opinion that there is a real likelihood or prospect of removal of the applicant within the reasonably foreseeable future, and also maintain my assessment that there are very good prospects that his removal from Australia could be achieved in the very near future especially with this cooperation.  Further, it is my assessment that the prospects of removing the applicant from Australia by way of his volunteering to return to Iraq has improved since I swore my May affidavit.’

55                  Mr Durston’s evidence is that there are three avenues by which the applicant might be removed from Australia.  First, the international organization for migration has formulated protocols for the voluntary return of individual Iraq nationals.  The program is known as the IOM Assisted Voluntary Return Program.  His evidence is that the applicant holds the necessary identity documents for participation in the IOM Voluntary Repatriation Program.  In those circumstances he could be returned to Iraq through that program.

56                  Secondly he says that the United Nations sanctions on commercial air traffic have been lifted and regular chartered flights are now arriving at Baghdad International Airport.

57                  He says that at present the Minister’s department would not require Iraqi nationals to return to Iraq against their will but ‘there is a real prospect of involuntary returns commencing in the foreseeable future, although such returns are unlikely to commence before the beginning of 2004’.

58                  His evidence is that the department’s participation in the enforced return of Iraqi nationals is not contingent on receiving the sanction of UNHCR because UNHCR mandate does not apply to failed asylum seekers.

59                  Thirdly, Mr Durston says that the applicant may be returned to Syria and that opportunity could arise if he were to make a valid and complete application as identified in the correspondence from the Syrian Consulate in Melbourne.  However, Mr Durston accepts that any decision on whether or not a Syrian visa would be granted to the applicant is a matter for the Syrian authorities.

60                  I shall deal with the third matter first because that addresses the applicant’s evidence to which I have referred.  In my opinion the applicant has made out a case that there is little prospect of his removal from Australia to Syria in the reasonably foreseeable future.  I am satisfied that at present he has little or no prospect of obtaining a visa to enter Syria.  There is no evidence of any prospective change in the Syrian Government’s attitude in relation to the grant of a visa.

61                  I am satisfied that circumstances have changed since Mansfield Js decision and that the prospects now of an Iraqi national entering Syria are limited and are limited to those Iraqis who are entering Syria for the purpose of conducting business.  The applicant is not one of those persons and therefore, in my opinion, is unlikely to obtain a visa to enter Syria in the foreseeable future.  There is nothing, in my opinion, to support Mr Durston’s continuing optimism. 

62                  That leaves the question whether there is any reasonable prospect that the applicant might be removed to his country of nationality, Iraq. 

63                  The policy of the department does not presently include the involuntary return of Iraqi nationals.  As I have said Mr Durston is of the opinion that there is a no real prospect of involuntary returns commencing before the beginning of 2004.

64                  I am satisfied that there is no reasonable prospect that he will be returned involuntarily to Iraq in the reasonably foreseeable future.  That leaves for consideration the applicant’s voluntary return. 

65                  Mr Durston has expressed his opinion in his affidavit that ‘there are very good prospects of the applicant being removed from Australia in the very near future should he volunteer to return to his country of nationality’. 

66                  It was conceded by the applicant that the applicant was under a duty to cooperate in his removal from Australia.  Indeed the applicant says that he has done everything within his power to facilitate his return to Syria.  The evidence supports a finding that he has cooperated at least to the extent necessary in an attempt to have him removed to Syria.  The attempt has been unsuccessful.

67                  However, his cooperation in his removal to Iraq is another thing.

68                  It is necessary to refer to events since 5 October 2000 when the Tribunal refused the applicant’s application for a review to determine whether the applicant has exhibited any degree of cooperation about his return to Iraq. 

69                  The applicant has deposed that after the Tribunal affirmed the delegate’s decision he was told he had 28 days in which to appeal to the Federal Court and for 26 of those days he was looking for a way to leave Australia.  On 1 November 2000 he brought proceedings in this Court seeking a review of the RRT decision.  He said that he did not wish to appeal but did so because he was advised that was the only way in which he would be released from detention.  He met with officers of the Department on a number of occasions seeking information as to how he could leave the country. 

70                  On 8 January 2001 the applicant wrote to an officer of the department:

‘Dear Sir

Please, I want to inform you that I contacted my family in Iraq on Dec 27-00 to congratulate them for our Islamic festival and to aske them whether they get any news about my missing wife and children whom I lost contact with them for more than six months they told me that my wife and children have been deported from Syria to Iraq and they are now in an Iraqi preson, one of my sons passed away in preson.  I already informed the red cross about my missing family and I lost contact with them and I requested a help from them on June 16-00.

Dispite I informed my case officer on Jun 18-00 and my RRT member on Sep 14-00 about my missing family and I forword a letter to DIMA regarding the same matter, there is no response from all of them.

Please, add this statement to my file.

If the immigration department refuse to grant me protection visa, please either deport me to Iraq on condition that the Iraqi government release my wife and children or deport me to any country except Syria because deportation to Syria means that certainly I will spend a long period of time in an Syrian preson befor my deportation to Iraq via the Syria authority and due to this long period of time I will stay there definitely I will lose another members from my family.

Your faithfully

SPKB’

71                  On 20 February 2001 he wrote to the Department and, after referring to his family’s plight in Iraq, asked to be deported to anywhere but Syria or Jordan because those countries would deport him to Iraq. 

72                  An internal email of the respondent’s department dated 8 March 2001 claims that the applicant had stated that ‘he would like to get a travel document and travel to a third country’. 

73                  On 4 May 2001 the applicant wrote to the Minister and again after referring to his family’s plight in Iraq asked to be moved to where he could support his family overcoming ‘their dilemma’. 

74                  A departmental fax of 22 May 2001 speaks of the applicant being ‘anxious to return home’.  A further internal email on 31 May 2001 from the same author refers to the previous email and that the applicant ‘wished to return to Iraq’.  Further internal emails in the following days evidence the applicant’s repeated request to return home. 

75                  On 28 May 2001 von Doussa J gave leave to discontinue the proceedings in this Court and on 31 May 2001 the proceedings were discontinued. 

76                  On 6 June 2001 it is reported that the applicant was seeking a bridging visa (application lodged on 10 May 2001) while his request to the Minister was being considered.  It is not clear exactly what that request was.  In an internal departmental email dated 5 June, departmental staff indicated that they considered ‘[SPKB’s] request of 5/06/01’ as ‘a s417 intervention request’.  It was reported on 6 June 2001 that the applicant had said ‘if the Minister refuses me, then deport me.’

77                  Correspondence in September shows the applicant’s health suffering as a result of his concerns about his family and his own conditions. 

78                  On 29 October 2001 the applicant wrote to the Minister seeking a more favourable decision under s 417 of the Act.  In this letter, the applicant referred to ‘a letter to your Honour under s 417 in April 2001’.  Neither the ‘request of 5/06/01’ nor any letter of April 2001 were before me.

79                  On 24 January 2002 he wrote asking the Minister to respond promptly.  On 21 March 2002 an officer of the department replied advising that the applicant had raised matters which were not new and that he had already failed to meet the Minister’s guidelines for intervention under s 417. 

80                  On 12 June 2002 Refugee Advice and Casework Service (Australia) Inc wrote to the Minister concerning the applicant.  After referring to the likely treatment that the applicant would suffer in Iraq, it wrote ‘it is submitted that SPKB would suffer treatment that would be persecutory in nature despite not being for a Convention reason’.

81                  In the same letter the author wrote:  ‘Although SPKB does not have a Convention based reason for fearing return to Iraq …’

82                  The applicant’s counsel objected to the respondent referring to the two statements of the applicant’s agent.  It was never made clear what the ground of objection was.  I think I was asked to infer, because of the applicant’s evidence, that the agent’s statements were self evidently wrong.  But that could not be a ground of objection.

83                  The statements provide the basis for a finding that when they were made the respondent’s agent did not assert that the applicant claimed a fear of persecution for a Convention reason and I find accordingly. 

84                  On 14 October 2002 Whitlam J dismissed an application to have the proceedings reinstated.

85                  The applicant filed a notice of appeal from that decision but did not proceed with the appeal.

86                  On 17 December 2002 the applicant was advised by the Minister’s intervention officer that whilst the Minister had power to intervene in his case it would be inappropriate for him to do so while the matter was before the Full Federal Court. 

87                  The evidence then suggests a period of inactivity on the part of all parties.  I think that inactivity is explained by the applicant’s request to the Minister pursuant to s 417 and his concurrent applications for judicial review and for the grant of a bridging visa. 

88                  It was submitted by the applicant’s counsel that the applicant had made repeated requests over time to be removed from Australia.  That submission is not supported by the evidence. 

89                  The evidence supports a finding that the applicant expressed a wish to be removed from Australia in March 2001 and that was still his wish up to and including June 2001.  He discontinued his application for judicial review to facilitate his return.

90                  Some time, probably early June 2001, the applicant sought the Minister’s intervention pursuant to s 417 of the Act.  That request, of course, is inconsistent with a stated wish to return to Iraq [see par 11 of Mansfield J’s reasons]. 

91                  I find that the applicant’s primary objective throughout the period between his arrival in Australia and May 2003 has been to stay permanently in Australia.  I accept that during that period he has held fears and concerns for his family’s safety.  However, he has viewed it as more important that he obtain a visa to remain in Australia than to return to Syria or Iraq.  I do not, by that finding, mean to be thought to be criticising the applicant.  He may believe that if he obtains a visa his family may be allowed to join him.  He might see that to be in their best interests.  Whatever the reason I find that the applicant had no wish to return to Syria or Iraq whilst he had an opportunity of obtaining residence in this country. 

92                  His counsel said at the hearing of this application that the applicant would return to Iraq ‘if he can have an assurance that it is safe for him to do so’.  He said that the respondent would not give that assurance and does not consider that he is obliged to do so.  A reasonably lengthy exchange followed and counsel said that the applicant ‘will go to Iraq if it is safe for him to go there’.  The transcript records the closing part of the exchange:

‘His Honour:               I understand all of that, but all I want to know is what his position is.

Mr Manetta:               He will go to Iraq if it is safe for him to go there.

His Honour:                Is that a different position than he will go to Iraq if the respondent assures him it’s safe to go there, or is that the same position?

Mr Manetta:               No, I think that’s the same position.

His Honour:                Right.  Well, the respondent won’t give that assurance apparently.

Mr Manetta:               No.

His Honour:                So he doesn’t want to go to Iraq.

Mr Manetta:               No, in those circumstances I suppose that’s right.’

93                  Later in his submissions a further exchange took place:

‘His Honour:               Okay.  I suppose I should put this to you directly.  I’m to decide this case upon the basis that your client will not return to Iraq until he’s assured by the minister that it’s safe for him to do so.

Mr Manetta:               Yes.

His Honour:                Not because he’s got a well-founded fear of persecution. 

Mr Manetta:               No – yes, your Honour, because when I say “safe”, I mean it as a shorthand that his fear of persecution has passed.

His Honour:                The minister can’t do anything about his fear.  That’s a matter for him.

Mr Manetta:               His fear of persecution has ceased to be well grounded.

His Honour:                Well, perhaps just tell me exactly what the term is that he will return to Iraq on.

Mr Manetta:               Well, when I say “safe”, I don’t simply mean that it’s a war-torn country.

His Honour:                What do you mean?

Mr Manetta:               I mean that either the applicant’s fear of persecution in Iraq is not well founded, either because whatever fears he may have had the danger has now passed, or because the minister doesn’t think his fears were genuine in the first place, or were reasonably based in the first place.  So effectively the minister has to make the same decision as he would have made if he had assessed the merits of the claimed persecution.

His Honour:                And until he does that your client will not return.

Mr Manetta:               Yes.

His Honour:                So to put it another way, your client will not return to Iraq until the minister has assessed your client’s claim of a well-founded fear of persecution and reached the conclusion that it is, or was never, well founded.

Mr Manetta:               It either is well founded, in which case he gets a visa – well, no - - -

His Honour:                No - - -

Mr Manetta:               No, sorry, your Honour.  It either is well founded - - -

His Honour:                That’s not relevant, because if he ever reaches that conclusion he’s not going to do it, is he?

Mr Manetta:               Yes, either it is not now, and never was, well founded, or it may have been well founded, but the danger has passed. 

His Honour:                Is not now a - - -

Mr Manetta:               And is not now.

His Honour:                - - - well-founded fear.

Mr Manetta:               Yes.

His Honour:                All right.

Mr Manetta:               That’s what I mean when I say “safe”.  Not whether it’s externally safe, as just a matter of pure fact.

His Honour:                And your client would cooperate in that assessment?

Mr Manetta:               Yes, indeed, your Honour.

His Honour:                Yes.’

94                  I find that the applicant will not cooperate in his removal from Australia to Iraq.  He will not cooperate because he asserts that he has a well founded fear of persecution if returned to Iraq for reasons of his political opinions.  He will not cooperate until such time as the Minister determines that he does not have a fear of persecution, or if he has a fear it is not for a Convention reason or it is not well founded.  In other words he will not cooperate until the Minister determines that he is not a refugee from Iraq.

95                  The question in this case is whether such an attitude means that he could claim the benefit of the decision in Al Masri. 

96                  The applicant argued that until the Minister determines that he does not have a well founded fear of persecution he cannot be removed to Iraq.  Because he cannot be removed to Iraq and because as a matter of fact he cannot be removed to Syria, then he argues that there is no reasonable prospect of him being removed in the reasonable foreseeable future to any other country and therefore his detention under s 198(6) is unlawful.

97                  He argues that because the Minister’s delegate and the Tribunal did not determine that matter he cannot be removed to Iraq until the matter is determined. 

98                  In Al Masri the Full Court determined that the Minister’s purpose in detaining a detainee must be for the removal of that detainee otherwise the detention would be unlawful:  Al Masri at 272.  Moreover, the Minister could only detain to effect a removal as soon as ‘reasonably practicable’.  In those circumstances there must be ‘a real likelihood or prospect of the removal of a person from Australia in the reasonably foreseeable future’:  Al Masri at 272. 

99                  In determining whether there is a real likelihood or prospect of removal regard must be had to the applicant’s cooperation in effecting that removal.  It is only if the applicant is prepared to cooperate that the implied limitation that the detention can only continue where there is a real likelihood or prospect of removal of the person from Australia exists.  In Al Masri, the Court said at 273: 

‘We should add that we do not intend our observations to give any support to a contention that a person who has made a request in writing under s 198(1), might by their own act in frustrating the process of removal, make their continued detention unlawful.  For the purposes of the implied limitation, if such a person were, for example, to refuse to sign a consent required by a country otherwise prepared to take him, that person would not (ordinarily at least) be held in circumstances where there was no reasonable likelihood of his removal.’

100               The Full Court said at 281 that a conclusion that there is no real likelihood or prospect of removal in the reasonably foreseeable future is one that will not be lightly reached.

101               In my opinion the applicant is not entitled to make his cooperation for removal to Iraq conditional upon obtaining the Minister’s assurance about his safety or having the Minister first determine that he is not a refugee.  The Minister plays no part in the removal process under s 198(6).  The imperative duty to act is cast upon an officer:  M38/2002 v Minister for Immigration, Multicultural & Indigenous Affairs (2003) 199 ALR 290 [25] (M38/2002). 

102               Section 198(6) of the Act does permit an officer to determine whether the person in detention who is to be removed is a refugee:  M38/2002 [54] and [72].  The Act provides for a separate and specialised regime to determine those persons who are entitled to refugee status [73].

103               Section 198(6) operates in its terms as soon as the conditions within the subsection have been satisfied.

104               The applicant argued that this Court could not make a determination whether the applicant had a well founded fear of persecution in Iraq in these proceedings.  I agree with the applicant that it is not for this Court to determine, on an interlocutory application such as this, whether the applicant has a well founded fear of persecution.  Whether the applicant is a refugee is for an administrator to decide in accordance with the procedures under the Act.

105               In M38/2002 the Full Court said at [74]:

‘Under the Act, a decision to grant a protection visa may be made by the minister (or his or her delegate) or by the Refugee Review Tribunal (whose decision is taken to be that of the minister).  By virtue of the Act, the effect of a decision to grant a protection visa is that the recipients (and, in the circumstances set out in the Act, their family members) have permission to enter and remain in Australia for the period set out in the visa.  The Act does not give this effect to a decision of any other person.’

106               Not only is it not appropriate for this Court to decide whether the applicant is a refugee nor is it for anyone else other than the Minister’s delegate or the RRT. 

107               M38/2002 recognises that circumstances might change from the time when a delegate or the Tribunal has determined that a person to whom s 198(6) applies is not a refugee.  If those circumstances change the Minister might, in his own discretion, exercise his personal powers under s 417 or s 48B.

108               The applicant was found not to be a refugee because he could be returned to Syria.  Circumstances have since changed as my earlier finding shows.  However that does not entitle the applicant to make a further application for a protection visa.  Nor does it entitle the applicant to require the Minister to make a determination about his refugee status qua Iraq before the officer exercises his power under s 198(6).  His status has been determined adversely to him.

109               In those circumstances the applicant is not entitled to rely upon the benefit of the Al Masri decision because he has not cooperated and will not cooperate in his removal to Iraq. 

110               The applicant’s claim to be entitled to a protection visa was finally determined, for the purposes of s 198(6) of the Act, when the RRT affirmed the delegate’s decision (s 5(9) of the Act) and the applicant abandoned his application for judicial review from that decision.  Section 48A of the Act precludes the applicant from making a further application for a protection visa.  There is no vehicle therefore before the Minister which would allow the Minister to make a determination of the applicant’s claim that he has a well founded fear of persecution for a Convention reason if returned to Iraq.

111               The applicant argued that the Minister could exercise the power given to the Minister under s 48B and determine that s 48A does not apply to the applicant.  Even if the Minister exercised that power that would not require the applicant to make an application for a protection visa under s 36(2) of the Act. 

112               It was suggested by the applicant’s counsel that the Minister could require the applicant to make a further application for a protection visa and, if the applicant failed to do so, treat the applicant’s failure as evidence of his failure to cooperate in his removal under s 198(6).

113               The applicant has not made an application to the Minister under s 48B seeking to have the Minister determine that s 48A does not apply so as to allow the applicant to make a further application for a protection visa.  It must be noted of course, however, that no such application need be made before the Minister exercises the power under s 48B.  The Minister could exercise the power of his own motion if he thought the exercise of the power was in the public interest.  The power is one to be exercised by the Minister personally:  s 48B(2).  The Minister does not have a duty to consider whether to exercise the power even if requested by an applicant:  s 48B(6).

114               It is a matter for the Minister whether he will exercise his personal powers under s 417 and s 48B. 

115               Next the applicant argued that the respondent is not entitled to remove the applicant ‘by depositing him at, or smuggling him over the border – the power of removal can only be lawfully exercised by placing him aboard an aeroplane or ship bound for an international port – and there is no reasonable prospect of the applicant’s removal to Iraq in this way in the foreseeable future’.  In support of that submission the applicant relied upon s 218 which provides:

‘Vessels required to convey deportees or other removees

(1)       Subject to section 217, if a person is to be removed or deported, the Secretary may give the controller of a vessel or vessels a written notice requiring the controller to transport the person from Australia to a destination of the vessel or one of the vessels specified in the notice. 

(2)       Subject to sections 219 and 220, the controller must comply with the notice within 72 hours of the giving of the notice or such further time as the Secretary allows.

                        Penalty:  100 penalty units.

            (3)        An offence against subsection (2) is an offence of strict liability.’

116               This argument of course assumes that if the applicant were removed he would be removed in the manner described above. 

117               The argument ran that s 218 had to be construed by application of the expressio unius rule and that the only way in which a person may be removed is by means of a vessel ‘whose destination is an international port’.

118               Vessel is defined in s 5 to include an aircraft or an installation.

119               It is not self evident to me why s 218 requires removal in a vessel ‘whose destination is an international port’.  I think the argument was that the vessel, i.e. an aircraft only flies to international ports, but that of course is an assumption which is wrong. 

120               Section 218 does not mean that a person may only be removed by a vessel as defined in s 5.  Section 218 enables the secretary to give instructions to the controller of a vessel.  The section is facultative.  It has been enacted to assist the Secretary and the officers in the department to effect the removal of a person from Australia.  It does not limit the way in which persons may be removed.  For example, there is nothing in the Act which would prevent a person being removed from Australia on a military aeroplane.  In those circumstances the Secretary would not need to give a notice under s 218.

121               Next it was argued that if the Minister contemplated removing the applicant to Iraq by flying him to Jordan and then driving him from Jordan to Iraq such a removal would be so unreasonable as to make his present detention ‘unconstitutional’.

122               I think it was the applicant’s argument that that particular method of removal would not be ‘reasonably practicable’. 

123               I think it is implicit by reason of the relationship of detainer and detainee that in effecting the applicant’s removal to Iraq the Minister and the officer must have regard to his safety.  It would not be permissible to effect his removal from Australia in an unsafe manner.  Such a removal would not be reasonably practicable.

124               However, in my opinion if the Minister were to remove the applicant by flying him on a commercial airline to Jordan and then driving him from Jordan to Iraq that would not be necessarily unsafe. 

125               The applicant’s counsel argued that it would be unsafe to drive him on a 12 hour trip on a main arterial road through the middle of a country in the midst of a guerrilla war.  There is no evidence before me that Iraq is in the midst of a guerrilla war or that it would be unsafe for the applicant to be driven into Iraq from Jordan.  It was submitted that I should take judicial notice of the fact that there is a guerrilla war in existence in Iraq.  I am not satisfied that that is a matter which I can notice judicially.  In my opinion, the existence or otherwise of a guerrilla war in Iraq is not common knowledge in Australia, and the existence of any such war is not capable, as far as I am aware, of ‘verification by reference to a document the authority of which cannot reasonably be questioned’:  s 144 Evidence Act 1995 (Cth).  At the hearing, the applicant sought to tender a newspaper article of 12/13 July 2003.  The article referred to a ‘highly trained assassin’ who was ‘stalking American soldiers on the streets of Baghdad’.  As I pointed out at the hearing, this article could not prove the existence of a guerrilla war of the kind alleged by the applicant and was inadmissible for other reasons.  It was certainly not a document the authority of which could not reasonably be questioned.  The document was not admitted into evidence and does not support my taking judicial notice of the existence of a guerrilla war in Iraq.  Certainly, in circumstances where I am not myself aware of a guerrilla war in Iraq, I would not be disposed to regard such a war’s existence or otherwise as a matter of common knowledge in Australia. 

126               In any event, I think it is unlikely that the Minister would effect the applicant’s removal in the manner suggested because I think it is unlikely that the Minister could make arrangements to have the applicant driven from Jordan to Iraq. 

127               In any event because the applicant may be moved in a particular way could not effect his present detention.  His detention is either presently unlawful or not.  It is unlawful, as Al Masri shows, if he cannot be removed in the reasonably foreseeable future.  His detention is not unlawful because of the method by which the Minister may remove him. 

128               All of the applicant’s arguments fail and in those circumstances the application must be dismissed.

Associate:

Dated:              14 October 2003