WAJZ, WAKA, WAGF, WAKB, WAKE and WADX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 1332

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FEDERAL COURT OF AUSTRALIA

WAJZ, WAKA, WAGF, WAKB, WAKE and WADX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 1332

IMMIGRATION – unlawful non-citizen – detainee – removal from Australia – duty to remove ‘as soon as reasonably practicable’ – whether medical condition of detainee affects duty to remove – whether risk of significant deterioration of condition upon removal conditions duty to remove – whether risk of significant deterioration is mandatory relevant consideration affecting exercise of duty – psychiatric condition – major depressive disorder – post traumatic stress syndrome – risk of self harm – mandatorily relevant only to ability to undertake journey – no condition on duty or power to remove by reference to effect of removal on medical condition – no mandatory relevant consideration – applications for injunctive relief dismissed

Judiciary Act 1903 (Cth) s 39B, s 474

Migration Act 1958 (Cth) s 189, s 196, s 198

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

Plaintiff S157/2002 v The Commonwealth (203) 211 CLR 476 cited

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

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

NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 applied

Al-Kateb v Godwin (2004) 208 ALR 124 cited

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

WAKE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W125 of 2003

WADX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W127 of 2003

FRENCH J

14 OCTOBER 2004

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W119 OF 2003

BETWEEN:	WAJZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	14 OCTOBER 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W120 OF 2003

BETWEEN:	WAKA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	14 OCTOBER 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W121 OF 2003

BETWEEN:	WAGF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	14 OCTOBER 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W122 OF 2003

BETWEEN:	WAKB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	14 OCTOBER 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W125 OF 2003

BETWEEN:	WAKE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	14 OCTOBER 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W127 OF 2003

BETWEEN:	WADX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	14 OCTOBER 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W119 OF 2003

BETWEEN:	WAJZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
		W120 OF 2003
BETWEEN:	WAKA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
		W121 OF 2003
BETWEEN:	WAGF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
		W122 OF 2003
BETWEEN:	WAKB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
		W125 OF 2003
BETWEEN:	WAKE APPLICANT

AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
		W127 OF 2003
BETWEEN:	WADX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	14 OCTOBER 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1 This case concerns six Iranian nationals who came to Australia between 2000 and 2001. They came by boat without lawful authority, fleeing from conditions in Iran. Each of them applied for protection visas on the basis that they were refugees. Each was refused and each has exhausted his avenues of appeal. The applicants have spent a number of years in Australia’s immigration detention centres. They have all developed mental disorders. All suffer from depressive illness. Several also suffer from Post Traumatic Stress syndrome. All present with some risk of self-harm, including suicide. It is not disputed that the conditions of each of the applicants will worsen if they are returned to Iran and that there will be some enhanced risk of self-harm and, in some cases, suicide.

2 Because of the effect of their proposed removal upon their psychiatric conditions, the applicants seek to prevent that removal at the present time. They say that the Migration Act 1958 (Cth) (the Act) does not require or authorise their removal unless it is ‘reasonably practicable’ to remove them. They say that in deciding whether removal is ‘reasonably practicable’ the officers of the Department of Immigration and Multicultural and Indigenous Affairs (the Department) charged with the responsibility of arranging that removal must have regard to its effects upon their medical conditions. The Minister says that it is enough that they are able to undertake the journey.

3 For the reasons that follow and on the authority of a recent decision of the FullCourt of the Federal Court, I accept the submissions advanced on behalf of the Minister that her officers are not required to take into account the effect upon a detainee of removal from Australia to another country.

4 There are mechanisms of limited scope under the Act by which humanitarian considerations may be brought to bear upon the question whether a person should be removed from Australia after exhausting protection visa processes. There is also nothing to prevent officers of the Department from making arrangements for assistanceto be afforded to persons removed from Australia upon return to their country of destination. Indeed, there was evidence that on some occasions such arrangements are made. However the duties of officers of the Department and their incidental power to remove unlawful non-citizens from Australia when they have exhausted the visa application process is not diminished or limited by reference to the consequences of removal.

5 It is an inescapable fact that significant psychological damage can be suffered by people who find themselves in the situation of these applicants. It is no part of the Court’s function to rewrite the law to accommodate concerns about humanitarian considerations where the law will not yield such accommodation. However, there should be no false impression conveyed that those who are charged, as judges, with the responsibility of interpreting the law in this area, as in many others, are indifferent to the human realities which underlie the cases that come before them.

Factual History

6 The applicants, each of whom is an Iranian national, came to Australia by boat without lawful authority between July 2000 and March 2001. Each of them applied for a protection visa and was refused. Upon review of those decisions, the Refugee Review Tribunal (the Tribunal) affirmed them. Each of the applicants, other than WAKB, applied unsuccessfully to this Court for judicial review of the Tribunal’s decision. Their appeals to the Full Federal Court were dismissed. Each of them is in detention and the Minister has commenced steps to repatriate them to Iran.

7 A history of the proceedings relevant to each is set out in tabular form below:

Name	Arrival Date	Date of Refusal of Protection Visa Application	Date of Tribunal Decision	Date of Federal Court Decision	Date of Full Federal Court Decision
WAKA	10/7/2000	16/11/2000	19/12/2000	4/5/2001	30/11/2001
WAGF	October 2000	28/5/2001	27/7/2001	5/4/2002	22/9/2002
WAKB	25/3/2001	14/8/2001	5/12/2001	N/A	N/A
WAKE	October 2000	8/12/2000	20/2/2001	23/7/2001	8/11/2001
WADX	October 2000	14/6/2001	16/8/2001	18/12/2001	9/5/2002
WAJZ	October 2000	31/10/2000	27/2/2001	10/8/2001	7/3/2003

8 At the end of April 2003, an officer of the Department served each of the applicants with a set of documents entitled ‘Information Package for Iranian Returnees’. This contained a letter entitled ‘Offer of Voluntary Return to Iranian Nationals’. The letter advised that if the applicant accepted voluntary return to Iran the Australian Government would bear the expenses of that return and of domestic transfer to his place of residence. The letter also offered a ‘Reintegration Assistance Package’ with financial assistance comprising $2,000 per person or up to $10,000 for each family. Each applicant was invited to accept the offer within 28 days. The letter also advised that if the applicant should decide not to accept voluntary return within 28 days, then a program for involuntary departure would commence and repatriation from Australia would follow without the benefit of financial assistance.

9 The package included a statement of ‘Procedures for Involuntary Return to Iran’. That statement repeated the advice that there was a 28 day time limit within which to accept the offer of voluntary return. In the event that the offer was not accepted the procedure for involuntary return would be 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’

10 The package referred to a Memorandum of Understanding on Consular Affairs which was signed between the Islamic Republic of Iran and the Government of Australia on 12 March 2003. Pursuant to that memorandum, Iran and Australia had agreed to consider and implement bilateral programs for beneficial and legal travel of the nationals of both parties. Although the description of the memorandum did not set out its precise terms, it disclosed that Iran and Australia had agreed that their priority was to co-ordinate and encourage voluntary return of Iranians at reception centres. Australia had agreed to provide financial assistance directly to those nationals who voluntarily return to the Islamic Republic of Iran. Iran had agreed to accept its nationals who entered Australia illegally or were residing in Australia illegally if their Iranian nationality has been determined and Australia has repatriated them. The plans were to be implemented consistently with the internal laws of the two countries and their commitments to relevant international protocols such as the Vienna Consular Convention (1963) and the Refugee Convention (1951) as amended in 1967.

11 On 27 May 2003, each of the applicants and three others filed an application in this Court claiming an injunction restraining the respondent from returning him to Iran. The grounds relied upon were that the return of the applicants to Iran would constitute their refoulment contrary to Australia’s obligations under Art 33 of the Refugees Convention. It was also asserted that the return of the applicants would contravene Australia’s obligations under Art 3 of the Convention against Torture. Each applicant sought interlocutory relief restraining the respondent from returning him until the hearing and determination of the application. A similar application had been heard and the claim for final relief dismissed by Marshall J in Applicant M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 458 on 15 May 2003. The Full Court dismissed the appeal in M38 on 13 June 2003. An application for special leave to appeal against the decision of the Full Court in M38 was filed in the High Court. Special leave to appeal was refused on 12 December 2003.

12 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. Nicholson J made similar orders in all the other matters now before the Court and in some additional applications which are no longer proceeding.

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. Defences and similar motions were filed in the other five matters, together with three other matters not now proceeding, on 30 May 2003. The motions for dismissal of the applications came on for hearing on 27 August 2003. At the same time proposed amended statements of claim in common form were filed and were allowed with no objection. They raised, in each case, the additional contention that by reason of the personal circumstances of the applicant, which included post traumatic stress disorder and depressive disorder and by reason of conditions in Iran at the time, it was not reasonably practicable for the applicant to be returned to Iran. The motions for summary dismissal proceeded by reference to the amended statements of claim. The motions were dismissed albeit one paragraph of each of the statements of claim was struck out. In each case the paragraph struck out was that which asserted reliance upon an alleged breach of Art 33 of the Refugees Convention arising out of the proposed return of the applicant to Iran.

The Current Contentions

14 Each of the applicants has filed a further amended statement of claim. Each asserts that he is a citizen of Iran who is presently in Australia and is unwilling to return to Iran. That is admitted by the respondent.

15 Each of the applicants claims that the respondent threatens and intends to return him to Iran. The respondent says that by reason of each applicant’s status as an unlawful non-citizen and detainee, the refusal of his application for a protection visa and the ‘final determination’ of that refusal, s 198(6) of the Act ‘authorises and requires an officer to remove the applicant from Australia’.

16 The applicants allege that it is not reasonably practicable for them to be returned to Iran at this time because of their personal circumstances. They all claim, with some minor variations, to be suffering from mental illness in the form of depression, post traumatic stress disorder and other conditions. They say they are at risk of self harm as a result and fear that their lives or liberty will be harmed if they are returned to Iran. These allegations are denied in the defences. It is said that if the alleged personal circumstances exist, that does not make the removal of the applicants not reasonably practicable within the meaning of s 198(6) of the Act. Although the existence of the various claimed conditions is denied on the pleadings, the evidence relating to them at trial was admitted by consent and was not disputed.

17 Each applicant says that in the circumstances the respondent is neither required nor authorised to return him to Iran. This is denied and the respondent relies upon s 198(6) of the Act.

18 It is also pleaded that the respondent has failed to consider the personal circumstances of each of the applicants and that by reason of that failure any decision to remove any of them from Australia pursuant to s 198(6) of the Act will be made without jurisdiction. The failure to consider the personal circumstances is not admitted. The allegation that the respondent would lack ‘jurisdiction’ to decide to remove any of the applicants in the circumstances is denied.

The Issues at Trial

19 The evidence of the applicants’ personal circumstances, including psychiatric disorders suffered by each of them, was not disputed. There was also evidence about the approach taken by the respondent’s officers to the return of Iranian detainees from Australia. Although the subject of some cross-examination it was not substantially challenged. Accepting the personal circumstances of mental disorder and risk of self harm alleged, the issues in the case of each applicant reduced to:

1. Whether removal of the applicant was authorised and required by the Act.

2. Whether, in any event, the respondent’s officers were required to have regard to the personal circumstances of the applicant before deciding to remove him.

The resolution of these issues depends upon the construction of the removal requirement in s 198(6) of the Act. In particular it turns upon whether the requirement that the removal be ‘as soon as reasonably practicable’ after satisfaction of the conditions for removal set out in that subsection, operates as a limitation on the power to remove and, if so, what is the content of that limitation. Alternatively, there is a question whether the requirement of removal as soon as reasonably practicable imports, as a mandatory relevant consideration, the impact of removal upon the health of the detainee.

The Personal Circumstances of the Applicants - Evidence

20 Evidence was adduced in respect of each of the applicants about their personal circumstances and, in particular, psychiatric disorders from which it was said they suffered and their prognoses in respect of those disorders. The evidence was not disputed and was received without objection in the form of signed witness statements from each of the applicants and psychiatric reports exhibited to affidavits sworn by Mr Cox who appeared pro bono for them. A summary of the salient features of the evidence, relevant to the issues for determination in this case, follows:

1. WAKA

(a) Affidavits of Mark David Cox, sworn 26 August 2003 and 21 September 2004 exhibiting psychiatric reports of Dr Nathan Gibson dated 24 August 2003 and 20 September 2004.

(b) The applicant’s statement dated 14 January 2004.

21 Dr Nathan Gibson’s psychiatric report of 20 September 2004 was based upon an examination conducted on 15 September 2004 at the Baxter Immigration Detention Centre. He stated that the applicant ‘still meets the criteria for Post Traumatic Stress Disorder and Major Depressive Disorder’. Dr Gibson said:

‘[WAKA] has now been in detention for four years. There appears to be a stabilisation of his mental state since my last assessment but he remains significantly impaired. The trigger for his current post traumatic symptomatology appears to be predominantly the fear of death on return to Iran. Pharmacological treatment has been important and has provided some mitigation for his symptomatology without significantly relieving his impairment. He has shown some capacity to engage with counselling services. He still remains unlikely to fully successfully engage with psychological services in the context of detention. His social engagement appears superficial.

[WAKA] is unlikely to have significant reduction in his mental illness in the context of detention.

Despite the reduction in acute self harm ideation since I last saw [WAKA] in August 2003, he remains at high risk of suicide with escalation of a deportation process to Iran.’

22 Dr Gibson then set out some recommendations. He recommended that a non-custodial setting would give WAKA the greatest likelihood of a successful therapeutic outcome. He recommended continued pharmacotherapy. He encouraged ongoing measured attempts to support WAKA through external psychological services and through his church contacts. He said:

‘Deportation to Iran would likely lead to a significant deterioration in [WAKA’s] mental state and would put him at acute, high risk of suicide. I would recommend against deportation based on these grounds.’

23 In WAKA’s own statement he described his mental state as ‘terrible’. He said he felt tiredness, despair and hopelessness and suffered from severe headaches, dizziness, shaking, sweating, chest tightness, numbness in his feet and hand and a stiff neck. He also sometimes had blurry vision. He said that he had attempted suicide by taking an overdose of medication. His statement was dated 14 January 2004.

2. WAGF

(a) Affidavits of Mark David Cox sworn 27 August 2003 and 21 September 2004 exhibiting psychiatric reports of Dr Nathan Gibson dated 26 August 2003 and 20 September 2004.

(b) The applicant’s statement dated 30 January 2004.

24 Dr Gibson’s report of 20 September 2004 was based upon an examination conducted at Baxter Immigration Detention Centre on 15 September 2004. He said that WAGF has persisting diagnoses of major depressive disorder and post traumatic stress disorder. He described his depression as ‘pervasive and entwined with an overt sense of frustration and a preoccupation with injustices against him’. He was anxious with a strong fear of deportation framed by the stated belief that he would be tortured and executed should he return to Iran. His function has been impaired and risk heightened by his social withdrawal although he received some support from his church. Dr Gibson said he remains at risk of self harm chronically although his ambivalence and his minimal history of self harm protect against this to a degree.

25 In his recommendations, Dr Gibson said that WAGF is unlikely to engage successfully with formal psychological therapies apart from supportive psychotherapy while remaining in a custodial setting. Psychopharmacology had been useful but was not sufficient on its own. He said that WAGF would be highly likely to experience significant deterioration in his mental state if deportation were proceeded with. With an intensification of depression and an acute heightening of anxiety, according to Dr Gibson, his risk of self harm, while not currently high, was likely to be significantly exacerbated in the context of deportation. He expressed the opinion that WAGF should not be deported to Iran as it represents an unacceptable risk to his mental state.

26 In his statement WAGF said that he had seen a psychiatric nurse a few times and a doctor organised by the Department who had prescribed anti-depressants. He had not received any counselling for his emotional state. He referred to helplessness and hopelessness about his health and his life. He said he thought death would be better but he did not want to end his life. There was nothing else to do in detention apart from worry. He said he has a ‘huge fear’ of being returned to Iran. He is terrified that if forced to return it will be ‘to hell’. He said he tolerates the mental pressures in detention because his fear of return is greater. He said he has no intention of returning to Iran. If forced to return, he would have no choice but to take drastic action.

3. WAKB

(a) Affidavit of Mark David Cox sworn 21 September 2004 exhibiting psychiatric report of Dr Nathan Gibson dated 20 September 2004.

(b) Statement of applicant dated 20 January 2004.

27 Dr Gibson examined WAKB at the Baxter Immigration Detention Centre on 16 September 2004. He expressed the opinion that applying the widely used diagnostic system of DSM IV, WAKB fulfilled the criteria for a Major Depressive Disorder. He described him as a 27 year old single Iranian man with syndromal depression in the context of lengthy detention, social isolation, prolonged uncertainty about his future and fear of death if deported. He said that WAKB had symptoms of anxiety associated with the stress around deportation and the course to death he described. While these anxiety symptoms were significant Dr Gibson could not make a definitive diagnosis of Post Traumatic Stress Disorder. It was possible that the symptoms could develop into that disorder with the passage of time and sensitising events within the detention/deportation process. WAKB had shown a capacity to maintain a supportive network and therapeutic activities which had been protective. His acute self harm risk was low but the increasing threat of deportation might increase his anxiety and anger which could be directed inward in the form of self harm. He noted that WAKB had stated that he saw no other option but suicide if deportation were inevitable.

28 Under the heading ‘Recommendations’ Dr Gibson said that, given his ongoing capacity to engage with friends and activities, it would be useful to again approach WAKB to consider supportive psychotherapeutic measures. This would not be fully effective within the environment of detention and would be more robust in a non-custodial setting. Anti-depressants would be useful although WAKB remained ambivalent about medication. They would only ameliorate and not more fully treat the depressive symptoms within a custodial setting. He said, in conclusion:

‘Given that there is a strong likelihood of [WAKB’s] mental state worsening with deportation to Iran, even to the point of suicide, I recommend on clinical grounds that he should not be returned to Iran.’

29 In his statement, WAKB said, inter alia, that it was very hard to get to see a doctor. He usually saw the departmental nurses but they had not been able to help him. He had not had any counselling and felt there was no one at the centre to listen or to help him. He threatened that if he were to be forcibly deported he would try to kill himself. He said it would be better to die in detention. He said that he had previously tried to kill himself with an overdose while in detention. His statement was made in January 2004.

4. WAKE

(a) Affidavit of Mark David Cox sworn 21 September 2004 exhibiting psychiatric report from Dr Nathan Gibson dated 20 September 2004.

(b) Statement of the applicant dated 23 January 2004.

30 Dr Gibson examined WAKE at the Baxter Immigration Detention Centre on 16 September 2004. He expressed the opinion that WAKE was suffering from a major depressive disorder. He said:

‘A 30 year old single man with a lengthy period in detention, social isolation and increasing declining function, [WAKE] appears to have worsening depressive symptoms in the context of significant anxiety surrounding deportation. The anxiety doesn’t clearly meet the criteria for Post Traumatic Stress Disorder. [WAKE] appears to have some capacity for introspection as evidenced by his previous symbolic writing. The picture of a man difficult to engage and rather concrete may relate to an increasing profundity of depression. There was a residual sense of entitlement and outrage, which characterised his previous psychiatric assessment.

...

While he had no acute wish or plan to commit suicide and no history of self harm he stated that he would not be taken alive back to Iran. Whether this is figurative or an indication of action is difficult to say. Suffice it to say that were he to become increasingly depressed or anxious, the risk of self harm would escalate.

There is a high likelihood that [WAKE’s] mental state would deteriorate if he was deported to Iran.’

31 In his recommendations Dr Gibson observed that both anti-depressant medication and psychological support were indicated for WAKE but his ambivalence to engage at many levels would make this difficult to implement. The therapies would not only be difficult to implement but would be relatively ineffective with a detention centre disposition. He said:

‘Given the clinical picture I am of the opinion that [WAK’s] mental state would deteriorate in the context of deportation, and thus I recommend that he not be deported on clinical grounds.’

32 In WAKE’s statement he said that he was not on any medication except Panadol for headaches. He was told he could have sleeping pills but they would adversely affect him. He said that he had not seen any counsellor although he had occasionally seen nursing staff and was interviewed by a Doctor Pascu for a psychiatric report for his case. He said he was terrified of going back and was sure he would be sent to gaol, lashed or killed. He said that when he thought about being returned his whole body trembled. He would do anything in his power to prevent his departure.

5. WADX

(a) Affidavit of Rosemary Miller sworn 21 September 2004.

(b) The applicant’s statement dated 20 January 2004.

(c) A psychiatric report from Dr Victoria Pascu dated 8 September 2003

33 Ms Miller is a consultant with the Social Justice Unit of the Western Australian Synod of the Uniting Church in Australia. She was involved in arranging follow up psychiatric assessments for the six applicants presently before the Court. Dr Gibson, who was acting pro bono, was unavailable to assess WADX as time constraints and flight times to and from Baxter would not allow. Ms Miller had subsequently requested a psychiatrist at the Port Augusta Hospital to assist. She requested permission from the South Australian Health Department to complete the assessment and she was awaiting the outcome of that request. It had proved impossible to obtain an updated psychiatric report for WADX by 21 September 2004. Nevertheless, she referred to a previous report by Dr Pascu filed together with WADX’s witness statement on 29 January 2004. She exhibited various documents by way of medical record progress notes relating to the applicant and covering the last four years or so. She observed that WADX had never seen a psychiatrist or received any psychiatric or psychological treatment before coming to Australia. He denied having any history of depressive symptoms before coming to Australia. Since he had been in Australia he was investigated on a number of occasions for left arm numbness and chest pains, but no organic pathology was identified. He had no history of illicit drug or alcohol use. There was no history of psychiatric illness in his family of origin.

34 According to Dr Pascu:

‘[WADX] has developed significant depressive and some anticipatory post-traumatic symptoms in the context of prolonged detention and persisting fear of deportation. Even though my role was not to establish the veracity of any specific political or social events which lead (sic) to his arrival to Australia, his current mental state revealed high level of distress, sadness and fear which would be consistent with an existing underlying fear for his freedom and even for his life should he return to Iran.

The ongoing detention and the associated psychological sequelae for this man regarding hopelessness, helplessness and uncertainty mean that there is significant likelihood that [WADX’s] Depressive Disorder will be sustained. Persisting detention acts as an ongoing stimulus for his anticipatory Post Traumatic Stress symptoms. Prolonged traumatic stimuli can be linked to damaged personality structure, poor psychosocial adjustment, increased suicide risk and other mental illnesses. While [WADX] remains in detention there is minimal chance of recovery from his depressive and post traumatic stress symptoms.

I am also of the view that [WADX’s] mental state will be significantly compromised were he to be deported to Iran. There would be a high likelihood of persistence of his post traumatic stress symptoms given his experiences in escaping from Iran. This would be exacerbated by returning to the same political regime. A compounding factor is his conversion to Christianity which I believe would only increase the propensity for his ongoing persecution.’

The last sentence of that passage is an observation about external circumstances which might or might not affect the applicant upon his return to Iran. It is not evidence of the fact.

35 On psychiatric grounds based upon the likelihood of deterioration in his mental state if he were forcibly removed from the country, Dr Pascu recommended that WADX not be deported to Iran.

36 In his statement, WADX described his own emotional state as bad because of the stress of being returned to Iran and because he had been incarcerated for four years. He said he had bad headaches and took tablets which didn’t really help and didn’t do anything about his emotional state. He said he had been seeing medical staff from the Department for three years but that they did not look after his mental and emotional state and so his hand and his arm had got worse. He was taking two types of pain killer tablets for all complaints. He usually took two tablets a day. He said he lived in fear that at any minute the Department might take him and send him back to Iran and most of his nightmares were because of that fear. He was terrified of going back. The thought caused him terrible anxiety and he did not know what he might do about the fear but thought he might do something terrible.

6. WAJZ

(a) The affidavit of Mark David Cox sworn 21 September 2004 exhibiting the report of Dr Nathan Gibson dated 20 September 2004.

(b) The applicant’s statement dated 20 January 2004.

37 Dr Gibson’s psychiatric report was based, inter alia, upon an examination of WAJZ conducted at the Baxter Immigration Detention Centre on 15 September 2004. He pointed out that WAJZ had been in detention since his arrival in Australia almost four years ago. He had been seen by Dr Pascu in 2003 but claimed that his condition had worsened and that he was not very optimistic about his future. Dr Gibson said, inter alia:

‘[WAJZ] is a single 37 year old Iranian man who has been in detention for nearly four years. Without the full benefit of collateral history there was evidence of depressive and post-traumatic anxiety symptomatology in his current clinical presentation. Given his minimisation of previous threatening behaviour and dismissiveness of family and other support in the context of preoccupation with injustices against him, he has features suggestive [of] anti social personality traits.

Following the widely accepted and established categorical system on DSM IV [WAJZ] meets the criteria for Major Depressive Disorder and Post Traumatic Distress Disorder.

While there was no acute evidence of risk of self harm [WAJZ] may represent a possible risk or self harm in the context of deportation.

It is my opinion that [WAJZ’s] mental state would deteriorate in the context of pending deportation. I would also suggest that [WAJZ] would likely have a worsening of his mental state with actual deportation.’

38 Dr Gibson observed that it was highly unlikely that WAJZ would receive significant amelioration of his symptomatology in the context of a detention centre. Given his personality structure and his mental state over recent years there might be some difficulty in engaging him in formal therapy even in a non-custodial setting. There would still be an indication to attempt to engage him in that situation. He might be more willing to accept psychopharmacological treatment in a non-custodial setting and this would also be indicated. On clinical grounds, Dr Gibson said he strongly recommended that WAJZ should not be deported to Iran and that he be given therapy in a non-custodial out patient setting.

39 In his statement, WAJZ spoke of having nightmares about guards or departmental people knocking at his door telling him to pack his things to go back to Iran. He said he woke with great relief to find he was still in Australia but would get depressed at his situation. He said he suffered from headaches every other day and was only given Panadol. He said aches could get so bad that he felt sick and nauseous. He said his concentration was shattered. After 10 minutes of focussing his eyes would water and he would lose concentration. He claimed his eye sight had deteriorated badly. He felt like he was disintegrating.

The Personal Circumstances of the Applicants – Findings

40 I accept the medical evidence tendered by the applicants in so far as it relates to the psychiatric condition of each of them and the statements by the applicants of their own states of mind. As indicated below, I do not make any findings as to the adequacy of the medical services provided to the applicants in detention. The evidence is not sufficiently detailed for that purpose and, in any event, is at best of peripheral relevance to the issues to be determined in this case.

41 I find, on the uncontested evidence, that the applicants suffer from the following disorders:

WAKA	Post Traumatic Stress Disorder Major Depressive Disorder
WAGF	Post Traumatic Stress Disorder Major Depressive Disorder
WAKB	Major Depressive Disorder
WAKE	Major Depressive Disorder
WADX	Depressive Disorder
WAJZ	Post Traumatic Distress Disorder Major Depressive Disorder

42 It is at least probable that the depressive condition suffered by each of the applicants would worsen by reason of, and following, their return to Iran. The extent of the deterioration was not defined with great particularity in the evidence. The evidence indicates, however, and I find, that the return of the applicants to Iran is likely to have the following effects for each of them:

WAKA	Significant deterioration in mental state and acute high risk of suicide
WAGF	Significant deterioration in mental state. Significant exacerbation of the risk of self harm.
WAKB	Mental state worsening even to the point of suicide.
WAKE	Mental state deterioration and increased risk of self harm.
WADX	Mental state significantly compromised. Persistence of Post Traumatic Stress symptoms.
WAJZ	Worsening of mental state.

In each case the reporting psychiatrist recommended, on medical grounds, that the applicant not be returned to Iran.

43 The evidence does not indicate that the applicants or any of them would be physically incapable of undertaking the journey from Australia to Iran. It has not been shown that there is any risk of self harm or harm to others in connection with the return journey that would not be overcome by suitable arrangements for protection escorts.

The Respondent’s Procedures with Respect to Removal - Evidence

44 James Roberts Williams, who is the Assistant Secretary in the Unauthorised Arrivals and Detention Operations Branch of the Unauthorised Arrivals and Detention Division of the Department, gave evidence about procedures relating to the removal of unlawful non-citizens from Australia. He has held his present position since 17 February 2003. Prior to that time he was the Director of the Removals Policy and Operations Section within his branch. That section was then called the Unauthorised Arrivals Section.

45 The branch of the Department which Mr Williams heads is responsible for arranging the removal of unlawful non-citizens. This involves arranging identity documents, travel and logistics and conducting negotiations with officials of foreign countries to ensure the entry requirements of those countries are met. When officers of the branch consider that all necessary arrangements are in place for the removal of an unlawful non-citizen, those arrangements are put into effect. The branch arranges the removal of unlawful non-citizens who co-operate with the removal process as well as those who do not co-operate.

46 Mr Williams’ current duties include the development of policy applicable to the branch and the management of its operations. In his previous position as Director of the Unauthorised Arrivals Section, his duties included developing policy relating to the removal of unlawful non-citizens. He performed operational work in that regard handling some cases personally and supervising the work of his colleagues. As Assistant Secretary, he continues to oversee the departmental functions in relation to the removal of unlawful non-citizens. Sensitive or complex matters are brought to his attention by officers working on particular cases. He is regularly briefed by officers on particular matters.

47 None of Mr Williams’ evidence to this point was disputed, and I accept it and find accordingly.

48 Mr Williams described the Memorandum of Understanding between the governments of Australia and Iran and the Reintegration Assistance Package referred to earlier in these reasons.

49 In relation to the medical treatment of detainees, Mr Williams said that the Department accepts a common law duty of care to all persons in immigration detention. It engages the services and assistance of appropriate organisations particularly in the fields of general and mental health. Where the mental illness of a detained person is confirmed or suspected the Department’s contracted Detention Services Provider and the health services provider contracted to its Detention Services Provider are charged with obtaining a diagnosis and designing and implementing an appropriate management and/or treatment program for the person. In addressing mental health issues the Department seeks to ensure that the detainees are able to reside in an environment where an appropriate level of care may be provided, including within an immigration detention facility or, in certain circumstances, in a secure or open hospital specialising in psychiatric care. On admission to detention facilities, detainees undergo an initial health assessment followed, as soon as practicable, by a comprehensive health assessment. Further medical assessments, including those addressing mental health issues, were made periodically or as required, or requested, within the detention environment.

50 There was some material in statements from the applicants themselves that indicated their dissatisfaction with the nature and extent of medical services provided in the detention facilities. It would be unsatisfactory to endeavour to resolve, on the basis of the general evidence from Mr Williams and the Department and the evaluative statements offered by the applicants, whether they are subject to satisfactory ongoing assessment and treatment of any psychiatric illnesses or disorders. That factual question is peripheral to the outcome of this case which turns upon the approach taken to the removal of persons suffering from mental disorders or illnesses.

51 In his evidence-in-chief relating to the removal of detainees with mental health issues, Mr Williams said that, prior to removal, an assessment of the detainee’s medical condition, including mental health if relevant, is always provided for the guidance of the Department and other bodies involved in the removal process. That assessment is obtained as a result of direct contact with a detainee by appropriate medical professionals including psychiatrists or through review of their medical records. Where such an assessment is made any special arrangements deemed necessary for removal are made after a travel document has issued or when the Department is in the position to obtain a travel document.

52 When a detainee is available for the removal the Department obtains a Security Risk Assessment from its Detention Services Provider. That assessment addresses issues of the following nature:

1. Whether the person is in a mental state requiring special attention.

2. Whether the person is required to take prescribed medication.

3. Whether the person is likely to self harm.

4. The overall attitude of the person to removal from Australia.

Based on the Security Risk Assessment, an appropriate course of action is determined by departmental officers on a case by case basis and in accordance with guidance provided by a Migration Series Instruction issued within the Department and designated ‘MSI-376: Implementation of Enforced Departure’.

53 Section 9.2 of the MSI-376 is entitled ‘Medical conditions and medical escorts’. It provides that where a person has a mental disability the services of a medical practitioner or psychiatric nurse may be required to accompany him or her (9.2.3). It also requires that the carrier be informed of the mental condition of the removee to ensure acceptable arrangements can be made for his or her carriage together with an attendant (9.2.4).

54 In relation to arrangements with the country of destination, Mr Williams said:

‘Where requested by the detainee, or if the medical condition requires it and it is considered appropriate, relevant officials, including medical or consular, in the destination country may be advised of the removal and the particular medical issues in order to assist with arrival and future treatment arrangements. The assessment as to whether to notify officials in the destination country is made by DIMIA, where possible in consultation with the detainee, on the basis of medical advice and with attention to relevant duty of care considerations.’

Where appropriate, additional supplies of medication will be provided to persons being removed for the ongoing treatment of their medical or psychiatric condition in the immediate to short-term future following arrival at their destination. Information about any medical or psychiatric condition would be provided to assist in its ongoing treatment. Consideration is given to engaging the services of agencies such as the International Committee of the Red Cross and Red Crescent, International Social Services and the International Organisation for Migration. Where appropriate, those organisations are engaged to provide assistance with the removal of detainees depending on the circumstances of the case and the destination country.

55 In the event that the injunctions presently in place in respect of the applicants are discharged, officers of the Department will apply the removal procedures described in Mr Williams’ evidence-in-chief. The matters raised by the applicants would be taken into consideration by those officers in so far as they were relevant to the practical arrangements to be made for their removal.

56 Mr Williams’ evidence about departmental practices in relation to the removal of persons with mental disorders or diseases was not substantially challenged. I accept it.

57 The Department’s removal procedures are directed to practical aspects of transportation and delivery to the country of return. There was no indication in Mr Williams’ evidence-in-chief or in MSI-376 that the decision to remove a detainee would be affected by the possibility that he or she was suffering from a psychiatric disease or disorder which might deteriorate by reason of removal from Australia and return to the country of origin.

58 In cross-examination, Mr Williams was asked whether, in his experience, there had ever been a case where arrangements for a detainee’s removal had been delayed on account of mental illness. He said:

‘Yes, I think there are probably cases where people have been under some form of treatment and we’ve held off on removal until that has been resolved but usually it’s a matter of – I mean, the judgment is whether the person can sit on a plane for the time it takes to get from Australia to their country of destination, so it’s around that sort of consideration – again pretty rare.’

He further said:

‘... usually in a case where we might delay arrangements, it might be because the person is simply not available to us. They might be perhaps under treatment in perhaps a psychiatric institution at the time and therefore, under close care and treatment by a mental health professional and that might delay things, you know, for a short time while that takes its course. That usually occurs at times when people find themselves in crisis and that isn’t usually an extended event.’

59 Mr Williams was also asked:

‘Q. So the only occasions on which mental illness would actually be a reason for not making arrangements or cancelling arrangements would be where you have a medical professional that says, “this person is not fit to travel”?’

He said:

‘A. I think it’s in the situation where we have medical professional saying, “this person cannot travel from A to B for the period expected to sit on the plane, so you know, the person might have, you know, a general medical condition of a wide variety that might require further treatment but does that mean that the person can sit on a plane to get to their country of destination? That’s the question we ask.”’

60 It did not appear from Mr Williams’ evidence that there was any procedure in place by which the Department would expressly raise the question of a person’s mental disease or disorder before removal. This was evidently subsumed in the general assessment of a removee’s medical condition which he referred to in his evidence-in-chief. He said:

‘I don’t believe we have a pro forma for it. It’s simply a question of the doctor recording things in the normal way that they would do. So, you know, many people being discharged or transferred have no issues that need to be dealt with so it would simply be a fairly quick process. Those that had more complex issues they would make a report.’

He accepted that there is no reference in the MSI to a requirement that a medical professional provide a certificate of fitness to travel before a person can be removed. He accepted that the procedures referred to in his evidence-in-chief dealing with the removal of detainees with mental health issues were directed almost in their entirety to ensuring that the detainee could be physically placed on to a seat on the plane and that the safety of other passengers and of the aircraft was assured. He said:

‘Yes, our approach to this is that our responsibility is to ensure that a person can, as I say, sit in a plane seat for the period required, that they can be suitably supervised, if necessary, that the person themselves are able to be returned in safety, that other passengers and the airline, the aircraft, remain safe, that we will have a reasonable prospect of the person being admitted at the country of destination and those sorts of factors.’

He added in cross-examination that he and his officers made an effort to ensure that any conditions for which a person was being treated could continue to be treated in the initial period after their arrival in their country of destination. The Department would endeavour to ‘point the person in the right direction’ by way of directing them to an assisting organisation in the country of destination.

61 In relation to the present applicants, Mr Williams was asked whether his officers would have regard to the matters raised in these proceedings. He said:

‘I think it’s fair to say we will take into account anything that will be relevant to the person’s removal. If there is material provided in the course of this proceedings then we will look at it. If there is material coming from other sources that might help us to achieve the outcome we are obliged to achieve under the Act we will take it into account. That is why, I guess, you know, I don’t want to imply that we rely on one piece of information or one document only. We will take into account anything that we are aware of and assess its relevance and apply it if necessary.’

62 In re-examination Mr Williams was asked whether, in the case of the present six applicants, his officers would obtain medical advice before making a decision whether it was reasonable to remove them. He said:

‘Yes, again when we come to removal, as I say, we will go through our normal policy of having a medical professional assess them for fitness to travel.’

The Respondent’s Evidence as to Procedures for Removal – Findings

63 I accept the facts set out in Mr Williams’ undisputed evidence-in-chief. I find that in the application of the respondent’s present practices and procedures to these applicants:

1. the respondent’s officers will have regard to information relating to their mental states including evidence of psychiatric diseases and disorders before removing them from Australia;

2. the respondent’s officers will only have regard to any mental diseases or disorders suffered by the applicants for the purpose of determining whether they are fit to travel to the country of destination. This consideration would include an assessment of whether they would constitute a danger to themselves or others in the course of that travel;

3. in determining whether to remove the applicants the respondent’s officers will not have regard to the effect of removal upon the progress of their psychiatric diseases or disorders and in particular will not have regard to the possibility that their removal may lead to a worsening of those diseases or disorders;

4. the respondent’s officers may take steps in appropriate cases to facilitate ongoing treatment or assistance for a removee in the country of destination but the availability of such assistance will not affect the decision to remove.

Statutory Framework – Detention and Removal of Unlawful Non-citizens Detained under the Act

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

‘(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.’

65 Section 196 sets out the period of detention thus:

‘(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.’

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

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

…

(6) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a) the non-citizen is a detainee; and

(b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c) one of the following applies:

(i) the grant of the visa has been refused and the application has been finally determined;

(ii) the visa cannot be granted; and

(d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.’

67 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’.

Statutory Framework – Jurisdiction of the Court

68 The jurisdiction of this Court to entertain an application for the issue of prohibition or mandamus or certiorari or for injunctive or declaratory relief in matters arising under the Migration Act is conferred by s 39B of the Judiciary Act 1903 (Cth), which provides in the relevant parts:

‘(1) Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a) in which the Commonwealth is seeking an injunction or a declaration; or

(b) arising under the Constitution, or involving its interpretation; or

(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.’

69 The jurisdiction conferred by s 39B is subject to the limitations imposed by s 476 of the Act, none of which is relevant for present purposes, and to the constraints imposed by s 474 of the Act. That section provides, in the material parts:

‘(1) A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2) In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a direction or not), other than a decision referred to in subsection (4) or (5).

(3) A reference in this section to a decision includes a reference to the following:

...

(g) doing or refusing to do any other act or thing;

...’

Subsections (4) and (5) are not material for present purposes.

70 The definition of ‘privative clause decision’ includes proposing to do an act under the Act. So proposing to remove a person from Australia under s 198(6) is a privative clause decision, albeit it involves the discharge of a non-discretionary statutory duty. Section 474 however is to be construed in accordance with the judgment of the High Court in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476. On that construction s 474 does not preclude challenge to a purported decision on the basis of jurisdictional error. If such error is made out there is no ‘decision’ under the Act. The same principle will apply to allow the enjoining of an act which would, if done, be beyond power. To do an act which is beyond power for want of compliance with a necessary condition upon that power is to make a jurisdictional error. The latter taxonomy, it may be conceded, is somewhat circular. It is probably sufficient to say that a proposed act which is beyond power for want of compliance with a necessary condition or other requirement is not an act under the statute and is therefore not a decision made under the statute.

71 If the terms of a statute conferring the power to do an act require prior consideration of some factor relevant to the act, failure to consider that factor will mean that the person proposing to do the act lacks the power to do it. Alternatively, it may be put that a person proposing to do an act and disregarding a mandatory relevant consideration in so doing is proposing to commit jurisdictional error.

72 In the present case the Court is concerned with a statutory duty to remove unlawful non-citizens from Australia. The duty necessarily implies that the officer upon whom it is imposed is clothed with the power to do it. No other source of power to remove the applicants was invoked in this case.

The Duty to Remove

73 The duty to remove non-citizens from Australia is imposed by s 198 upon officers of the respondent. The duty is imposed in various circumstances. Section 198(6) is one of the subsections of s 198 which apply to non-citizens who are detainees – see also ss 198(5) and 198(7) to (9). It comes into existence when an unlawful non-citizen, who is a detainee, has applied for and been refused the grant of a substantive visa, the application for which has been ‘finally determined’. It is not disputed that the circumstances set out in s 198(6) apply to each of the applicants in this case.

74 The duty to remove a non-citizen from Australia cannot arise before a point in time ‘as soon as reasonably practicable’ after the time at which all of the circumstances giving rise to the duty have occurred. In this case that would be upon the final determination of the visa application. The power to remove a non-citizen under s 198(6) comes into existence only with the duty to remove. It is parasitic upon that duty and so only arises when it becomes ‘reasonably practicable’ to remove the non-citizen.

75 The Full Court in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290 at 307 [64], described the duty to remove as ‘not absolute, in the sense that it does not arise as soon as the conditions in paras (a)-(d) are satisfied, but as soon thereafter as is “reasonably practicable” for the officer to remove the non-citizen’. The Court discussed the content of the words ‘reasonably practicable’ by reference to dictionary definitions and authority – at 308 [65]. Their Honours made a number of propositions which, omitting references, were to the following effect:

1. Whether or not the removal of an unlawful non-citizen is practicable seems to be largely, if not entirely, concerned with whether the removal is possible from the officer’s viewpoint. The word ‘reasonably’ in the expression ‘reasonably practicable’ limits or qualifies what would otherwise be an almost absolute obligation. The removal of a non-citizen may be practicable in the sense that it is feasible, but not ‘reasonably practicable’ as required by s 198(6) of the Act – 308 [65].

2. In the context of s 198(6) of the Act, practicability and reasonableness may, on occasion, operate in opposing senses. 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) – 308 [66].

3. Whether the removal of an unlawful non-citizen will be ‘reasonably practicable’ in a particular case will depend upon all the circumstances considered by reference to the statutory duty in s 198(6) – 308 [67].

4. Section 198(6) of the Act leaves it to the officer on whom the duty to remove would otherwise fall to consider whether removal is reasonably practicable in the circumstances of the case. The officer has to weigh these circumstances in order to decide the issue for himself or herself – 308 [67].

5. The term ‘as soon as reasonably practicable’ is an evaluative term to be assessed by reference to all the circumstances of the case. What is reasonable is to be determined, inter alia, by reference to the practical difficulties that may lie in the way of making arrangements for removal which involve the cooperation of other countries whether in respect of the particular applicant or generally in relation to the class of applicants of which he is a part – 309 [68].

6. Other factors that may lead an officer to conclude that removal would not be reasonably practicable in the circumstances of the case may include severe natural disaster or a state of utter civil anarchy in the country of destination or the physical condition of a person facing removal – 309 [69].

76 The Full Court rejected a submission that s 198(6) would not authorise the removal of a refugee to a place where he faced a real risk of imprisonment or punishment for Convention reasons. The Court held that it was not open to an officer to consider whether an unlawful non-citizen was a refugee within the meaning of the Refugees Convention nor whether his or her removal and return to a particular country was conformable with the obligation against non-refoulment in Art 33(1) of the Refugees Convention. Those complex issues were not appropriate for resolution by an officer on whom the duty to remove fell under s 198(6). There was, in any event, a specialised administrative regime for the determination of claims for refugee status under the Act.

77 The decision in M38 left open the possibility that an officer, considering the removal of an unlawful non-citizen detainee from Australia, could have regard to the physical condition of the detainee in determining whether removal was reasonably practicable. The observation of the Court in that respect was not exhaustive of factors to which an officer could have regard. There is no reason in principle why the mental condition of a person might not lead to a similar conclusion. It could be the case that a person’s psychiatric disease or disorder might preclude travel for practical reasons. In the case of a person undergoing a temporary but acute phase of a mental disease or disorder it might be assessed that the security risk associated with his travel and the cost of providing a suitable escort at a particular time would render it not ‘reasonably practicable’ to remove him at that time. This would be an essentially evaluative decision on which different minds might come to different conclusions consistently with the requirements of the legislation.

78 In an earlier Full Court decision in Li v Minister for Immigration & Multicultural Affairs [2002] FCAFC 181, Merkel J said (at [7]):

‘Of course, if a person who is to be removed under sub-s 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.’

In that case the applicant sought leave to appeal against refusal of an interlocutory injunction against removal. He had argued that it was not reasonably practicable to remove him prior to the healing of a knee injury which he had suffered. Heerey and Conti JJ relevantly agreed with Merkel J.

79 In NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292, the Full Court heard four appeals together which raised the construction of the words ‘as soon as reasonably practicable’ in s 198(6). The issue in those appeals was whether death, torture, persecution or other mistreatment of an unlawful non-citizen which was likely or even almost certain to occur after that person’s removal from Australia to another country was to be taken into account for the purpose of determining whether it was ‘reasonably practicable’ to remove him or her from Australia. The Court decided that those matters were not to be taken into account for that purpose.

80 The Court in NATB agreed with the propositions emerging from M38 with one qualification. That qualification concerned the statement that, in the context of s 198(6) of the Act, practicability and reasonableness might on occasion operate in opposing senses. Their Honours said (at [48]):

‘As the word ‘feasible’ in both of the dictionary definitions suggests, at least some element of reasonableness is inherent in the notion of ‘practicable’. We find it difficult to accept, for example, that removal would be regarded as practicable, even without the qualifier ‘reasonably’, where no country was willing to admit the unlawful non-citizen.’

Their Honours regarded it as undesirable to attempt a definition of the expression ‘reasonably practicable’. They said (at [51]):

‘The expression requires a process of evaluation of the facts in each case.’

They went on, at [52], to identify two limitations on the range of factors relevant to the determination of reasonable practicability. These were limitations arising out of the words themselves. First, the relevant considerations are practical considerations as indicated by the dictionary definitions of ‘practicable’. Secondly, the context for determining reasonable practicability is the proposed physical removal of the person from Australia. Their Honours described this second limitation as of critical importance to the resolution of the principal argument before them (at [53]):

‘In our opinion, the reference to reasonable practicability in the subsection does not require an officer to take into account what is likely, or even virtually certain, to befall the unlawful non-citizen after removal is complete; and removal is complete, at the latest, once the person has been admitted by, and into, the receiving country. Even if it is virtually certain that he or she will be killed, tortured or persecuted in that country, whether on a Refugees Convention ground or not, that is not a practical consideration going to the ability to remove from Australia. Rather, it is a consideration about a likely course of events following removal from Australia.’

81 The Full Court agreed with the appellants’ submission that Parliament could not be supposed to have intended that persons would be removed from Australia to a country where they would be likely to suffer death, torture or persecution. However they were unable to accept that Parliament intended to avert that result by use of the expression ‘as soon as reasonably practicable’ in subs 198(6) – at [55]. The mechanisms by which Parliament sought to guard against the situation hypothesised included its provision for the issue of protection visas. Then there was the power granted to the Minister under s 48B of the Act to permit a fresh application for a protection visa and the power conferred by s 417 of the Act which could be exercised on general humanitarian grounds. The Court said (at [59]):

‘The relevance of ss 48B, 351 and 417, for present purposes, is that they demonstrate that Parliament appreciated the possibility of a non-citizen being removed to a country where he or she might face the prospect of death, torture or persecution. Parliament sought to avert that possibility by including specific provisions, each with its own pre-conditions. There may be room for debate about the adequacy of the provisions. However, doubts about adequacy cannot gainsay the apparent legislative intention. It is not to be supposed, in the context of such detailed provisions, that Parliament intended also to confer an overriding discretion on anybody who fell within the Act’s wide definition of ‘officer’. That definition includes persons outside the Department who would have little or no capacity to form a reliable judgment about the prospective fate of a non-citizen upon return to his or her country of nationality.’

82 It follows that if an officer is not required to take into account, under the rubric of ‘reasonable practicability’, the likelihood of persecution or death in the country of destination it can hardly be contended that he or she must take into account the possibility that removal would lead to the deterioration of a person’s mental disease or disorder.

83 Some of the judgments in the recent decision of the High Court in Al-Kateb v Godwin (2004) 208 ALR 124, made reference to the words ‘as soon as reasonably practicable’ in s 198(6). Al-Kateb was a case in which the unlawful non-citizen was a stateless person whom no other country would accept. The question was whether, absent any practical possibility of his removal in the foreseeable future, the authority to detain him was exhausted.

84 The word ‘practicable’ in s 198(6) was seen by Gummow J as referring to ‘that which is able to be put into practice and which can be effected or accomplished’. The qualification ‘reasonably’ introduced ‘an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme.’ – 155 at [121].

85 Hayne J, with whom Heydon J agreed, referring to ‘as soon as reasonably practicable’ said (180-181 at [226]):

‘That compound temporal expression recognises that the time by which the event is to occur is affected by considerations of what is “[c]apable of being put into practice, carried out in action, effected, accomplished, or done”. In particular, the expression recognises that the cooperation of persons, other than the non-citizen and the officer, will often (indeed usually) be necessary before the removal can occur.’

And further (181 at [227[):

‘It may be accepted that “as soon as reasonably practicable” assumes that the event concerned can happen, and that, if there is any uncertainty, it is about when the event will happen, not whether it will.’

The focus of the Court’s consideration was on the circumstance in which removal was not practicable in the foreseeable future. The question of reasonableness of a proposed removal did not fall for consideration. The case says nothing about s 198(6) which is inconsistent with the approaches taken in M38 and NATB.

Conclusion

86 Having regard to the judgment of the Full Court in NATB, I am bound to accept that the duty and power to remove an unlawful non-citizen from Australia pursuant to s 198(6) is not conditioned upon the non-existence of any medical condition that would deteriorate upon that person’s removal. This is subject to the proviso that the person is capable of undertaking the journey and is not, by reason of any medical condition, a danger to himself or others on it. Nor is the existence of such a medical condition a mandatory relevant factor to be considered before a person can be removed provided that the person can undertake the journey in a practical sense without danger to himself or to others. These conclusions are fatal to the applicants’ contentions. It follows that the applications must be dismissed.

87 The result may appear, and indeed, may be harsh on the person who is to be removed. It reflects the limited function conferred upon officers by s 198(6) as construed by the Full Court in NATB. It does not mean that such officers cannot take such measures as are appropriate to mitigate or reduce the risk of harm to removees by reason of their return. Indeed, the endeavour to put in place some such measures would be a humanitarian imperative for any nation that adheres to generally accepted community standards of common decency. But it is not an imperative which finds its expression in s 198(6) of the Act.

88 In my opinion none of the present applications can succeed and they must be dismissed with costs. I express the thanks of the Court to Mr Cox for his careful preparation and presentation of the case which was done on a pro bono basis.

I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated: 14 October 2004

Counsel for the Applicants:	Mr MD Cox (pro bono)
Solicitor for the Applicants:	MD Cox
Counsel for the Respondent:	Mr L Tsaknis

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	28 and 29 September 2004

Date of Judgment:	14 October 2004

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