IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
No. of 2003
B E T W E E N:
XXXX
Applicant
MINISTER FOR IMMIGRATION AND MULTICULTURAL
AND INDIGENOUS AFFAIRS
Respondent
APPLICANT’S SUBMISSIONS ON DISMISSAL MOTION
Construction of s. 198
- The power to remove a person from Australia arises under s. 198 of the Migration Act. In this case, the relevant provision is section 198(6):
198 (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;
(iii) 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.
- Removal and refoulement are not identical concepts.
- “Remove” is defined in the Act as meaning “remove from Australia” (see s. 5). This plainly means nothing more than taking a person beyond the territorial limits of Australia. The Minister threatens and intends to do more than remove the Applicant from Australia: he threatens to take him to the one place in the world where his life or liberty would be threatened. Section 198 does not expressly authorise such a step. It would be surprising if it did. The question arises whether, by implication, the power to remove includes a power to take a person to a place of persecution.
- That question is to be answered by considering Australia’s international obligations under the Refugees Convention (Art 33) and the Torture Convention[1] (Art 3). The Minister apparently accepts that the relevant principle of construction is that a statute should be interpreted and applied, so far as its language admits, in a manner which accords with Australia’s treaty obligations[2].
- Removal is quite different from refoulement, which is the act of returning a refugee to a place where there is a real risk to their life or liberty. Whilst any act constituting refoulement will begin with removal, it is clear that not every removal must end in refoulement. Furthermore, removal does not require removal to a particular place: it involves only removal from a particular place (Australia).
- Article 33 of the Refugees Convention prohibits refoulement:
“1. No contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. (emphasis added)
2. The benefit of the present provision may not, however, be claimed by a refugee when there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
- The ingredients of refoulement are:
a) a threat to return to their country of origin;
b) a person who is unwilling to go there
c) because of a well-founded fear of persecutionon account of his race, religion, nationality, membership of a particular social group or political opinion;
d) a risk that the person’s life or liberty will be threatenedon account of his race, religion, nationality, membership of a particular social group or political opinion
- If those elements are established by the Applicant, then his forcible return to Iran would amount to refoulement contrary to Australia’s obligations under Art 33.
- Article 3 of the Torture Convention (to which Australia is a party), also prevents refoulement to a country where an individual faces a real chance of torture: see E v Australia[3] (copy attached), at [6.4, 6.5, 7]. This provides an independent basis for restraining the return of the Applicant to Iran where he faces the risk of torture.
- On a strike out application, the court must assume that the facts pleaded will be established. The Court therefore has to determine whether the Act requires that a person be returned to Iran who is in fact a refugee (albeit not granted a protection visa) and who will be persecuted on Convention grounds if returned to Iran.
- It is important to distinguish between 2 different positions:
· First, where the Minister knowingly returns a person who is in fact a refugee and whose life or freedom will be threatened on convention grounds if the refugee is returned; and
· Second, where the Minister returns a person who is in fact a refugee and whose life or freedom will be threatened on convention grounds if the refugee is returned but relies on the findings of the RRT and believes that the person is not a refugee.
- The only distinction between those two cases is whether the person has the opportunity to demonstrate the facts in court. If the person demonstrates that they are a refugee in fact, and face torture, death or imprisonment if returned, a return thereafter would be a return of the first sort.
- If a knowing removal would be beyond power, section 75(v) of the Constitution entrenches the right to establish in Court the facts which demonstrate an excess of power. Accordingly, cases of the second sort are justiciable.
- Further and alternatively the Act requires that a person be removed from Australia as soon as reasonably practicable. It is not “reasonably practicable” to remove a person from Australia if the removal involves, as a matter of fact, the return of a refugee to the place of persecution. If the place of persecution is the only place to which that person can be sent upon removal from Australia, then their removal is not reasonably practicable and is neither required nor authorized.