ARGUMENT BASED ON NON-REFOULEMENT PRINCIPLE
1. The Minister threatens and intends to remove the Applicant from Australia and return him to Country A. If the applicant is returned to Country A, or to a Country B where he will be given only temporary protection, his life or freedom will be threatened.
Construction of s. 198
2. 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.
3. The Minister contends that Article 33 of the Refugees Convention cannot affect the construction of section 198 of the Migration Act (“the Act”). The submission pre-supposes that removal and refoulement are identical concepts. They are not.
4. “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.
5. 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].
6. 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).
7. 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.”
8. 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 freedom will be threatenedon account of his race, religion, nationality, membership of a particular social group or political opinion
9. 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.
10. 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], 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.
11. In addition, the court should be slow to dismiss an action where the law may develop so as to permit the claim to succeed: Wickstead v Browne (1992) 20 NSWLR 1 per Kirby P at pages 5-6.
[if estoppel is raised:
12. The question to be answered by the RRT is different from that raised in this case[4]. The RRT answers the question whether the Applicant was entitled to a protection visa. A subsidiary question which arose was whether, at the time of the application, the RRT was satisfiedthat the Applicant is a person to whom Australia owes protection obligations. In this Application, the question is whether, at the time of this hearing, the forcible return of Applicant to Iran would constitute refoulement; a subsidiary question is whether the Applicant is a refugee.
13. In any event, even if the same question arose in this court as arose in the RRT, a decision of the RRT will not give rise to an issue estoppel.
14. In Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 Fisher and Lockhart JJ said at 359
"Issue estoppel, generally but not universally seen as a rule of evidence, cannot have any place in proceedings of the Tribunal and is, to the extent that it is a rule of evidence, expressly excluded by the provisions of s 33 of the Administrative Appeals Tribunal Act 1988 ["the AAT Act"]. Section 33 (1) (b) directing that proceedings should be conducted with little formality and technicality and s 33 (1) (c) to the effect that the Tribunal is not bound by the rules of evidence would appear conclusively to point to exclusion of the doctrine. It is our opinion that the Tribunal is entitled to consider all evidence.
15. In Commonwealth v Sciacca (1988) 17 FCR 476 a Full Court of this Court referred to the above passages from Daniele and held at 480:
"If the view is taken that issue estoppel is a rule of law (which may now be the more acceptable view), that would not conclude the matter, as is apparent from what was said by their Honours, because of the administrative nature of the Tribunal and the provisions of s 33 (1) (b) of the Administrative Appeals Tribunal Act which directs the Tribunal to conduct its proceedings, so far as possible, without formality and technicality. A finding by an administrative tribunal will not give rise to an issue estoppel."
16. In Midland Metals Overseas Ltd v Comptroller General of Customs (1991) 30 FCR 87, Hill J discussed the applicability of the doctrine of issue estoppel to the AAT at 96 - 98:
"... it is clear that the proceedings of the Tribunal, and in particular its findings of fact, do not constitute an issue estoppel on any issue... The Administrative Appeals Tribunal is an administrative body. When its jurisdiction is enlivened it is empowered to review an administrative decision made under some other enactment: s 25(4) of the[AAT Act]. In matters before it, its proceedings are to be conducted with a minimum of formality and with due expedition. It is not bound by the rules of evidence: s 33 of the AAT Act. In reviewing decisions referred to it, the Tribunal is empowered to exercise itself all the powers and discretions conferred upon the decision-maker: s 43(1) of the AAT Act. If the Tribunal so decides after hearing the review, it may affirm the decision under review, vary it or set aside the decision and either itself make a decision or remit the matter back to the original decision-maker for reconsideration: s 43(1).
...
The Tribunal's function, like that of the Taxation Boards of Review which it, inter alia, replaced, is ... merely to do over again what the decision-maker himself did; not to give a decision which affects the legal situation of the person dissatisfied with the decision but to work out, as a step in administration, what the Tribunal considers that position to be.
In relation to the Taxation Boards of Review, Kitto J in W J & F Barnes Pty Ltd v Commissioner of Taxation (Cth) (1957) 96 CLR 294 at 315 said:
'The Board's decision was not, of course, an adjudication; it was administrative in character and could not create an issue estoppel.'
The Full Court of this Court in Commonwealth v Sciacca (1988) 17 FCR 476 at 480 had no hesitation in saying: 'A finding by an administrative tribunal will not give rise to an issue estoppel.'
... the question arises whether the process by which an administrative tribunal ... may ever involve an adjudication in the strict sense of that word. ... No doubt, if the exercise by an administrative tribunal did involve an adjudication, a question would arise as to whether that would involve an impermissible exercise of Commonwealth judicial power ...
...
No doubt, if the Administrative Appeals Tribunal makes a determination to a particular effect and the time for appeal expires without an appeal, the parties to its proceedings will be bound by the decision reached, which is a final decision. However, it does not follow in my view that the decision created an issue estoppel."
17. In Sun Zhan Qui v Minister for Immigration & Ethnic Affairs [1997] FCA 324 (6 May 1997) Lindgren J considered whether the principles of issue estoppel prevented the RRT (constituted by Member Schmidt) from making findings of fact inconsistent with prior findings of a differently constituted RRT (constituted by Member Fordham).
18. Lindgren J reviewed the authorities in relation to issue estoppel and tribunals including the above mentioned authorities. His Honour ultimately held that an issue estoppel could not arise from a decision of the RRT. Lindgren J observed as follows:
Like the AAT, the RRT is an administrative body. Decisions of the RRT are not adjudications in the strict sense of the word. Decisions of the RRT are merely a "step in administration". The RRT must "review" RRT-reviewable decisions: sub-s 414 (1). It is empowered to exercise all powers and discretions conferred on the original decision maker: sub-s 415 (1). It may affirm or vary the original decision, remit the matter to the original decision maker for reconsideration, or set aside the original decision and substitute a new decision: sub-s 415 (2). If the RRT varies the original decision or sets it aside and substitutes a new decision, "the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister": sub-s 415 (3). The RRT is required to pursue the objective of providing an economical and informal review mechanism: sub-s 420 (1). It is not bound by technicalities, legal forms, or the rules of evidence and must act according to substantial justice and the merits of the case: sub-s 420 (2). Subject to two matters yet to be mentioned, I would treat the RRT as being on all fours with the AAT in the present respect, and would therefore, like O'Loughlin J in Comcare Australia v Murphy, supra, treat the Full Court decisions mentioned as binding me to treat the doctrine of issue estoppel as inapplicable.
19. Lindgren J’s decision was successfully appealed in Sun Zhan Qui v Minister for Immigration & Ethnic Affairs [1997] 1488 FCA (23 December 1997). However His Honour’s finding on the issue estoppel point was not the subject of appeal and was not the basis upon which the appeal was upheld.