Applicant P66-2003, Ex parte - Re Hutchinson & Ors
[2003] HCATrans 414
[2003] HCATrans 414
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P66 of 2003
In the matter of -
An application for Writs of Certiorari and Mandamus against COLIN HUTCHINSON, MINISTERIAL INTERVENTION OFFICER, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
In the matter of -
An application for Writs of Certiorari and Mandamus against JOSE ALVAREZ, STATE DIRECTOR (WA), DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
In the matter of -
An application for an Injunction against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondents
Ex parte –
APPLICANT P66 OF 2003
Applicant
HEYDON J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON TUESDAY, 21 OCTOBER 2003, AT 9.04 AM
Copyright in the High Court of Australia
__________________
MR C.G. COLVIN, SC: If your Honour pleases, I appear with my learned friend, MR A.R. BEECH, for the prosecutor applicant. (instructed by Global Immigration Services)
MR M.T. RITTER: May it please, your Honour, I appear with my learned friend, MS T.C.P. LING, for the respondents. (instructed by Australian Government Solicitor)
HIS HONOUR: You want orders in terms of the amended draft order nisi that was filed yesterday?
MR COLVIN: Yes, your Honour.
HIS HONOUR: And you rely on, apart from your written submissions that were filed yesterday, the affidavit of Stella Koya of 2 October 2003 and the exhibits to it?
MR COLVIN: Yes, your Honour.
HIS HONOUR: Do you have any objection, Mr Ritter?
MR RITTER: No, I do not, your Honour.
HIS HONOUR: Well, that affidavit will be taken as read and the exhibits will be received into evidence with the respective markings. Is there any other evidence you admit?
MR COLVIN: There are two affidavits of 2 October, I am reminded by my junior. There is a shorter affidavit of Ms Koya, which goes solely to the injunction questions. I think, if your Honour has the larger affidavit, the second affidavit is really a formal affidavit in support of the injunction application. I do not think it – the difficulty of ‑ ‑ ‑
HIS HONOUR: I have a larger affidavit. Well, I have an affidavit of five pages. Is that the shorter affidavit?
MR COLVIN: Yes, that is the longer affidavit, your Honour.
HIS HONOUR: Very well. It sounds as though the shorter affidavit is not going to be decisive. Yes, I have found the shorter affidavit and I take it, Mr Ritter, you have no objection to that either?
MR RITTER: No, I do not, your Honour.
HIS HONOUR: That will be received into evidence together with the exhibits. That is your evidence, Mr Colvin?
MR COLVIN: It is, your Honour.
HIS HONOUR: Mr Ritter, you rely on two affidavits of Teresa Chew Ping Ling?
MR RITTER: Yes, I do.
HIS HONOUR: Do you have any objection, Mr Colvin?
MR COLVIN: No, your Honour.
HIS HONOUR: They, together with their exhibits, will be received into evidence also. I think one slight hiccup is that your original draft order nisi was, in one respect, different from the current amended draft order nisi.
MR COLVIN: Yes.
HIS HONOUR: I think I understand your arguments as set out in the written submissions, but I am not sure what the approach of the respondents
is, in particular, to the second aspect of that amended draft order nisi. But perhaps we might proceed in this way. Is there anything you want to add to what is in your written submissions?
MR COLVIN: No, your Honour, we have fully put the argument in – we are content to deal with any other matters that might need to be addressed, but we have put the matter fully in the written submissions.
HIS HONOUR: A time point is taken against you. I understand it so far as certiorari is concerned in relation to the decision of the first respondent, but is there any time limit in relation to mandamus?
MR COLVIN: Not in our submission, your Honour, and if there is it has been adequately explained in paragraph 16 of the affidavit of Ms Koya, which explains that advice as to the sending on of the application ‑ ‑ ‑
HIS HONOUR: Just one moment, paragraph 16?
MR COLVIN: Yes, paragraph 16.
HIS HONOUR: Right. I see, thank you.
MR COLVIN: The letter in respect of the decision is dated 19 March, but this paragraph explains why things were not done until more recently, namely, that letter was not received until an FOI application. That is the position so far as the applicant personally and those informing the applicant are concerned.
HIS HONOUR: I see. So what that paragraph is seeking to communicate is that the letter of 19 March 2003 was not received on or about the date it bore, but rather on 21 July, or soon thereafter?
MR COLVIN: Yes.
HIS HONOUR: Very well. Mr Ritter, I understand what you have to say about the orders against the first respondent which appear in paragraph 1 of the amended draft order nisi. Is there anything you want to add to what you have put in writing about that?
MR RITTER: In relation to draft order 1?
HIS HONOUR: Yes.
MR RITTER: Effectively, we say that there are two problems with the application with respect to draft order 1. One is that the factual matters underpinning the application are not established on the evidence, and the second is that the writs of mandamus and certiorari do not go to the first respondent because of the contents of section 48B(6) of the Act.
HIS HONOUR: I understand what you say, but, by itself, that might actually be a reason for granting the order nisi, because it is quite an interesting question. Is there anything more to add about that?
MR RITTER: Well, there is elaboration on that that one could go through, but I am guided by your Honour in understanding what the argument is. Your Honour will appreciate our submissions were drafted prior to the amendments.
HIS HONOUR: Yes, quite. It is slightly unfortunate, but these things happen.
MR RITTER: Yes, therefore go to the detail of what was proposed order 2, but that is clearly not applicable.
HIS HONOUR: No.
MR RITTER: I should say that, having reviewed the particular rules relevant to the time issue in certiorari and mandamus, we accept that on their face they do not apply, because the time ‑ ‑ ‑
HIS HONOUR: Certiorari, because of the lateness with which the decision was communicated.
MR RITTER: No, because of the nature of the decision not being covered by the particular terms of the rule. The rule refers to the removal of a judgment, order, conviction or other proceeding for the purpose of its being quashed.
HIS HONOUR: Not a proceeding? I think, perhaps, we need not bother too much about it, but ‑ ‑ ‑
MR RITTER: No. Ultimately, it is a matter of discretion. In any event, your Honour has discretion to enlarge time. It is certainly not at the forefront of our argument, and I thought I should clarify that point.
HIS HONOUR: Now, what about this second issue ‑ ‑ ‑
MR RITTER: Yes, about 198(6).
HIS HONOUR: Yes.
MR RITTER: On our submission, that argument is not open, because it would involve a construction of the Act that does not pay sufficient regard to the contents of section 48B(6) and section 417(7) as to the limited circumstances where the Minister has a duty or a discretion to consider the exercise of his discretion to allow a further application or to allow a decision contrary to the decision of the Refugee Review Tribunal.
The state of play is that by the time one reaches removal pursuant to section 198(6), an applicant has made his application to the Minister or delegate of the Minister, had that refused, applied to the Refugee Review Tribunal and had that application refused as well. Section 198(6) has a condition on it, but it is simply a condition as to time, “as soon as reasonably practicable” effecting removal.
The Act contemplates a situation where, after refusal by the delegate and by the Tribunal, a different decision could be made on the merits, but the limits of that discretion are contained within section 48B(6) and section 417. To create an additional duty with respect to 198(6) would be contrary to those provisions of the Act. That is, in substance, what Justice Hayne found in SE and held was therefore not arguable as an application for an order nisi which came before his Honour at that stage.
HIS HONOUR: Now, let us just pause there. Justice Hayne in which case?
MR RITTER: SE. The citation of that case is Re Minister for Immigration and Multicultural Affairs and Another; Ex parte SE (1998) 158 ALR 735. We have filed a copy, I understand, your Honour.
HIS HONOUR: Is that in the folder of authorities?
MR RITTER: Yes, it is. If it assists, in that folder, I think it is No 10 in that list of authorities.
HIS HONOUR: This is not numbered in any way. Yes, it is near the end.
MR RITTER: If I could refer your Honour to page 739 of that authority and the argument commencing at the bottom of the page, where the submission is referred to:
that on its true construction s 198(6) of the Act not only does not oblige an officer to remove the applicant to a destination that is unsafe for the person removed, the provision does not permit it. Thus, it was submitted that it is arguable that there is no power to remove the applicant to Somalia because his destination in that country, Mogadishu, is unsafe and he is at risk of death, arbitrary detention or other serious harm in that place.
The submission is further elaborated by Justice Hayne at paragraph [18] on that page:
The applicant submitted that s 198(6) should be read as limited to obliging removal only when to do so is reasonable. It was submitted that to remove to a place where the applicant’s human rights may be violated was not reasonable and that the Act should be construed as not permitting or requiring action that would violate Australia’s obligations under various international instruments concerning human rights.
His Honour answers that submission in the subsequent paragraph:
To read the provisions of s 198(6) of the Act as limited in the way for which the applicant contends would, in effect, require the first respondent to exercise his power to permit the applicant to remain in Australia despite his having been refused refugee status. The power under ss 48B and 417 to permit persons such as the applicant to remain in this country are powers that are expressed as discretionary powers which the minister is not under a duty to consider using. That being so, the construction of s 198(6) for which the applicant contends is not arguable.
We rely on that decision of Justice Hayne, your Honour.
HIS HONOUR: So what you say is this, section 198(6), in effect, applied to these facts, says that the prosecutor is an unlawful non‑citizen. He is a detainee.
MR RITTER: Yes.
HIS HONOUR: He made a valid application for a substantive visa. The grant of the visa has been refused and the application has been finally determined, because Justice Emmett declined to interfere with the Refugee Review Tribunal’s upholding of the decision of the Minister’s delegate.
MR RITTER: Yes, although I think section 5(9) defines “finally determined” as occurring at a slightly anterior point, being the determination by the Refugee Review Tribunal or the expiration of the time limited for applying to the RRT, but that point does not matter so far as the argument goes.
HIS HONOUR: And having satisfied subparagraph (i) of subsection (6)(c), one need not look at subparagraph (ii)?
MR RITTER: Correct.
HIS HONOUR: Now, can it be said that “the non‑citizen has not made another valid application for a substantive visa”?
MR RITTER: Yes, it can. The applicant has not made another application for a substantive visa. The applicant has applied to the Minister to exercise a discretion under 48B(1) to allow him to make another application. That has been refused. That was a similar situation, I think, as occurred in SE, that there had been section 48B applications to the Minister, but that had been rejected.
HIS HONOUR: Does that exhaust what you wish to say?
MR RITTER: I do not think it exhausts it, your Honour. I could make a couple of additional points to that.
HIS HONOUR: Certainly.
MR RITTER: Your Honour, the same point, for completeness, was accepted by the Full Court of the Federal Court in M38, at paragraph [80]. In relation to the reference by my learned friend to the non‑refoulement provisions of the Refugees Convention ‑ ‑ ‑
HIS HONOUR: Do you want me to look at M38?
MR RITTER: In substance, I do not think it adds to the argument that was accepted by Justice Hayne and, in fact, there is a citation at one point of Justice Hayne’s judgment in SE.
HIS HONOUR: Very well. I interrupted you. You were going to say ‑ ‑ ‑
MR RITTER: Yes, my learned friend refers to the non‑refoulement provisions of the Refugees Convention, Article 33.
HIS HONOUR: Just let us have a look at that. Yes, paragraph 30 of his written submissions.
MR RITTER: Yes, which is what the contention of the applicant is centred upon. There are a number of things I would say about that. Firstly, although the Convention deals with non‑refoulement, it refers to non‑refoulement of refugees. The Convention does not specify the way in which a treating party is to determine or is to have the process of determining who is and who is not a refugee.
Under the Australian Migration Act, the process is an application which is determined by the Minister or the delegate. There is a process of review to the Refugee Review Tribunal, and then there is the prospect of judicial review in the Federal Courts.
Post those decisions being made, there can be some review of that decision on the merits, if you like, but that is limited to the circumstances of section 48B and section 417. The reason that section 198(6) does not refer to refoulement, but refers to removal, is because it is directed to a time frame past the time period when the issue of refoulement has been determined, which has been determined by the Minister and the Tribunal.
The matter of statutory construction that my learned friend refers to Teoh’s Case on, which is to say that if the language of the legislation is susceptible to a construction consistent with treaty obligations, then that should prevail – we say that section 198(6) is not, in its language or in its structure, in the context of the Act, consistent with an obligation to not remove somebody who is arguably a refugee, because that issue has already been determined in accordance with the Act.
Secondly, unlike Teoh’s Case, where a discretionary power was being considered, section 198(6) involves an imperative duty saying that the officer “must” do something, as opposed to “may” do something. A person in the position of an applicant such as this one is accommodated in the Act, but to the very limited degree set out in 48B and 417, as I have said.
The other problem with the applicant’s approach is that it would then involve the Court in assessing the merits and strength of the so‑called fresh evidence as against the decision of the Refugee Review Tribunal, and bearing in mind the fact that some period of time may have elapsed since the decision of the Refugee Review Tribunal and the conditions in the country at issue may have changed significantly. That is particularly relevant, of course, in this case, where the applicant is from Afghanistan and was alleging that there was a risk of persecution at the hands of the Taliban if he had returned. The country circumstances in Afghanistan have changed considerably.
To allow the applicant’s approach, then, would involve potentially this Court or the other Federal Courts in an assessment of the strength of fresh evidence and therefore having to take into account and have regard to changing country circumstances as well.
HIS HONOUR: Yes, I do not quite follow that last point. Order 2 seeks an order that the Minister show cause:
why a writ of prohibition should not be issued against him prohibiting him from causing or permitting any officer of the Commonwealth from removing the applicant pursuant to s 198 unless and until the Minister or an officer of the Minister’s department has decided that, taking into account the fresh evidence identified by the applicant in his agent’s letter of 20 November 2002, the grant of a protection visa to the applicant should be refused.
That does not involve this Court looking into the merits of the fresh evidence. All it says is, the officer or the Minister must look into the fresh evidence.
MR RITTER: Yes. The submissions, I think, though, made a submission about the significant new information.
HIS HONOUR: Your point is that in deciding whether, if this matter went to a Full Court, there is, as it were, fresh evidence sufficient to justify making the order final, the Court will get itself involved in a factual inquiry.
MR RITTER: Yes. That would mean, then, that there would be a great lacuna within the Act, that whenever an applicant came to this Court and said, “I have fresh evidence”, whatever it may be, “somebody who knows me from the particular country”, then, in all of those circumstances, the Minister would be obliged to consider the matter again. We say the Act simply does not contemplate that.
HIS HONOUR: Yes, I understand, I think.
MR RITTER: That point can be illustrated with respect to the evidence which is before the Court in the form of the statutory declaration from somebody who says he knew the applicant in Afghanistan. That statutory declaration can be conveniently found at page 53 of Ms Ling’s affidavit of 17 October.
HIS HONOUR: Is that the statutory declaration of Khalig Nawrozi which was made on 6 August 2002?
MR RITTER: That is correct.
HIS HONOUR: Yes, I have that.
MR RITTER: Your Honour will see that in that statutory declaration the deponent says very limited things about the applicant, and, in particular, about whether the applicant would face persecution if he now returned to Afghanistan. He simply says, in paragraph 4, that he has known him “for a great number of years”. He says, in paragraph 6, that he is of the opinion that the applicant has “integrity”, but the statutory declaration does not extend in any way to the question of whether the applicant had faced persecution when in Afghanistan, and, more relevantly, whether he faces a real chance of persecution if he were to now return to Afghanistan.
So that if one is considering the cogency of the fresh evidence before the Court, it does not reach the mark, we would say, of evidence which would cause the Court to go on and consider the matter further if the order nisi was granted.
HIS HONOUR: You seem to have drifted from the proposition that the Court must not get involved in assessing fresh evidence to an adverse assessment of the fresh evidence.
MR RITTER: Yes, it is a secondary point, but it illustrates the problem as well. It illustrates the problem to say we have evidence from somebody who says he knew the applicant in Afghanistan. If this Court accepts my point and says this Court is not in the position of assessing fresh evidence, then one is left – in every case where somebody says that, the matter has to go back to the Minister for determination. The alternative is that the Court has to assess the strength of the fresh evidence. If the Court does that, in this case, then the fresh evidence is substantively lacking in relation to the applicant’s past experiences in Afghanistan and what he may face if he were to return to Afghanistan.
HIS HONOUR: Very well.
MR RITTER: There is an element within the Act, we say, of a finality of decision making, which allows the process of consideration of an application, the process of review and limited judicial review, and then the non‑compellable discretions in 48B and 417. We would say that the application before the Court and the principle which the applicant intends to rely on would undermine that decision‑making process and finality of decision making under the Act.
Your Honour, could I simply make one other point in relation to the 48B argument. I think I said earlier that I did not want to add specifically to the written submissions, but could I add one reference, which is the reference to Justice Gaudron’s decision in S170, which again should be in the book of authorities. Your Honour has it, I think, in the form of a print‑out of the transcript of the proceedings before the High Court and her Honour’s short decision appears on page 13 of that transcript.
I will come to that shortly, but it can be seen from page 3, from the opening comments by Mr Dean for the applicant, that this is an application which raised similar issues to the current one. He announced that it was:
an application for an order nisi directed to the respondent to show cause why writs of mandamus, certiorari and prohibition should not issue in relation to a determination made by the Ministerial Interventions Unit that the applicant did not meet certain criteria in relation to an application pursuant to section 48B of the Migration Act 1958. An amended draft order –
et cetera. So that puts the flavour of what her Honour was considering. Her Honour dismissed ex tempore the application for an order nisi and gave brief reasons on page 13. It is clear from what her Honour says there that that application raised additional issues to those before the Court here, but her Honour says:
Further, I am not satisfied that there is an arguable case that prohibition would serve any useful purpose in relation to the decisions of the Ministerial Interventions Unit. Finally, I am not satisfied if there an arguable case that mandamus lies in the face of subsection (6) to compel the Minister to consider whether or not to exercise the power under section 48B(1) –
There then appears to be some sort of a typographical error, because the sentence repeats what her Honour had already said, but it should go on:
to compel the Minister to consider whether or not to exercise the power under section 48B(1) of the Migration Act (Cth).
Essentially, that encompasses to some extent what we say in this application.
HIS HONOUR: Except this is dealing with the Minister, not dealing with some officer who may or may not pass on an application to the Minister.
MR RITTER: Yes, although that appears to be the framework of what had happened, if one looks to how Mr Dean announced the case.
HIS HONOUR: I have quickly read as far as page 7. I am just not at all sure that Justice Gaudron and Mr Dean are focusing on the precise issue which Mr Colvin’s submissions raise. There are a few red herrings, but it looks as though Mr Dean was trying to, in effect, somehow or other steamroller subsection (6) – crash his way through subsection (6) – and Justice Gaudron ended up by saying that could not be done.
MR RITTER: Yes.
HIS HONOUR: I am not sure that this helps you, or anyone, much.
MR RITTER: We would say it does, in this way. Firstly, the application was clearly directed to a decision which had been made by what is described as the “Interventions Unit”. Here it is the particular officer who made the decision, but nothing turns on that. We say it assists in this way, that the Minister has a non‑compellable discretion, we would say, under section 48B(6).
If the Minister had made guidelines saying, “I will consider whether to exercise my discretion in all applications which come before me, and these are the guidelines on which I will determine that point”, and then a matter came before the Minister and said, “I’ve looked at this matter, I’ve considered my guidelines. It doesn’t meet the guidelines, so I am not going to consider further whether to consider to exercise my discretion”, we would say that decision would be unimpeachable because of section 48B(6). What we say is, the situation does not change at all because there is a departmental officer who is, in effect, making that decision for the Minister, or in accordance with directions made by the Minister.
HIS HONOUR: Yes, okay, I understand. Time is trickling by, I am afraid. Is there anything more you want to say?
MR RITTER: No, thank you, your Honour.
HIS HONOUR: Mr Colvin, I need not trouble you with what has been said in relation to ground 1, but what has been said in relation to ground 2 is probably new, as far as you are concerned. Is there anything you want to say in answer to that?
MR COLVIN: Yes, your Honour. Briefly, we say that in relation to the decision of her Honour Justice Gaudron in S170, the orders sought there were ‑ sorry, your Honour, that bears upon the other issue.
HIS HONOUR: Yes, that does.
MR COLVIN: On the 198 point, your Honour, it needs to be borne in mind, in our submission, that the applicant failed because of an assessment of his truthfulness. That appears in the decision of his Honour Justice Emmett at paragraph 26. It is not necessary, therefore, for the applicant, in raising new evidence, to have to restate the entirety of the applicant’s case.
The record before the Minister, as it were, establishes all of the claims and they have failed because of an assessment of his truthfulness about where he came from, whether he came from Pakistan or Afghanistan. The evidence that has been put on – the new evidence – is of a person at least, possibly two people, who can say where he came from and that his claims are true.
That then brings and enlivens all of his claims in respect of his persecution. In our submission, it would never be the case, in the context of the way in which we contend section 198 should be construed, that there would be a need to re‑present the entirety of the case at the point of deportation, as it were.
All we contend for is that, in the scheme of the Act, if the discretion of the Minister is not being exercised so as to grant opportunities to bring fresh applications where there is new evidence available at that time – new evidence which may or may not result in the grant of an application – if that is the manner in which the discretion is being exercised, that is a matter which bears upon the construction of section 198, because it means that the scheme of the legislation will operate in a way where one gets one opportunity to apply for a protection visa, time passes, by the time of the exercise of the statutory power or duty under 198 there are new circumstances, but there is no mechanism in the Act by which a party will be assured of further consideration of any new material or any change in circumstances.
That does not require this Court to consider those materials as part of its consideration of a proper construction of 198, because all we are asking this Court to do is to say that if a party can demonstrate that it has put forward new evidence or material sufficient to justify a question arising as to whether there will be refoulement at that point, then part of 198 requires there to be an assessment undertaken by the Minister or his officers at that time.
Now, that assessment may be favourable or unfavourable. As my learned friend puts, it may be that circumstances have changed in Afghanistan and that may be a matter that is brought to account as well. The fact is that, in our submission, 198 does not authorise refoulement. It is to be constrained, in our submission, by the terms of the treaty, in terms of the approach to construction, and is confined to authorising removal, and Parliament should not be assumed to have intended to authorise removal that would affect refoulement.
All of that flows and is affected by what one identifies as the nature of the power conferred by section 48B. Is it held up – and that is the reason why, in our submissions, we put the two grounds as being interrelated. If it is the case that we fail in the first application and there is no duty, then that is a material matter that bears upon the construction of section 198, because when the Full Court of the Federal Court came to consider this issue in M38 it took account of submissions that referred to the prospect of new developments being brought to account by the Minister in the exercise of his powers under section 48. Can we refer your Honour to just two paragraphs in M38 – does your Honour have our copy?
HIS HONOUR: Yes, I have.
MR COLVIN: Paragraphs [79] and [80]. There is an application for special leave, we understand, pending in respect of this decision, but, in any event, we raise as an arguable ground that the court was wrong and was not informed by the prospect made apparent by this case, that the non‑enforceable duty and the guidelines established under it may not capture parties who would have a proper Convention basis to support an application at the time of their deportation.
Now, in that context, it is very material, in our submission, that the guidelines themselves express the fact that they are to be applied so as to uphold the Convention obligations of Australia. It would be most convenient to go to the further affidavit of Ms Ling, which identifies that aspect. At page 27 of the affidavit, your Honour will see a paragraph numbered 109.1 and heading “Not a complete re‑assessment”. Consistently with our case on the first issue, this is not a decision that has been invited under these guidelines. It is just a consideration as to whether the Minister’s decision should be implemented and certain types of requests sent on to the Minister, but then the statement is made that parties:
should ensure that their consideration is consistent with Australia’s international obligations to prevent refoulement.
So these guidelines are the mechanism by which Australia complies with its obligations. If it is the case that the guidelines are being administered in a way which does not effect that, if there is no duty or obligation recognised to forward requests, then the consequence is that by the time deportation arises there may well be cases – this case, in our submission, being evidence of one – where refoulement would occur.
It is for that reason and in that context that we contend for a construction of 198(6) that would be limited to circumstances where a decision had been made at that time to deal with any issues of new evidence or changing circumstances that had arisen.
Of course, if the guidelines had been properly applied and the Minister had considered, one would not be in that position. We are only in
that position in cases where it is demonstrated that the guidelines are not being applied. That is why, in our submission, the cases are interrelated.
HIS HONOUR: Yes.
MR COLVIN: I should refer to the decision of his Honour Justice Hayne in SE. His Honour, in that decision, is dealing with an argument, evident at paragraph [18], based upon issues of reasonableness and then, at paragraph [19], an argument in the context of an applicant who had been “refused refugee status”, not an applicant like the applicant in this case who has been refused, but is contending that there has been a change in circumstances because of new evidence.
In other words, his Honour faced a record in which no contention was made that there was new material that should bear upon the refugee status of the applicant. Ours is a much more confined argument in relation to the construction. It does not raise, in our submission, any evidentiary issues. It is a straight construction point. Thank you, your Honour.
HIS HONOUR: Thank you, Mr Colvin.
The applicant arrived in Australia on or about 15 May 2000. He applied for a temporary protection visa, but that application was rejected on or about 11 September 2000. The Refugee Review Tribunal affirmed that decision on 31 January 2001. Justice Emmett, sitting in the Federal Court of Australia, rejected an application for review of that decision on 3 August 2001. After that time, various letters were sent to the Minister on behalf of the applicant, requesting that the Minister exercise his powers under section 48B of the Migration Act 1958.
This is an application for orders nisi. The orders comprised in the first paragraph of the amended draft order nisi relate to the first respondent, the Ministerial Intervention Officer in the Department of Immigration and Multicultural and Indigenous Affairs. The applicant seeks a writ of certiorari to quash a decision made by the first respondent on or about 19 March 2003 not to refer a request by the applicant for favourable exercise of ministerial discretion under section 48B of the Act. That request was made by a letter of 20 November 2002. The applicant also seeks mandamus to compel the first respondent to refer the request to the Minister.
Two grounds are advanced in relation to the orders sought against the first respondent. The first ground is:
In deciding that the Request did not meet the Minister’s guidelines, and so should not be referred to the Minister, the decision maker failed to take into account relevant considerations, namely the additional information in the letter of 20 November 2002 and the matters referred to in a letter of 20 August 2001 from Mr Colvin on behalf of the applicant/prosecutor.
The written submissions and, to a degree, the oral submissions advanced on behalf of the applicant were detailed. It is accepted that relief could not lie against the Minister because of section 48B(6), which negates the existence in the Minister of any duty to exercise the section 48B power. The complaint relates rather to the first respondent’s decision not to send the applicant’s request to the Minister, even though the Minister’s guidelines were said to require this.
Without any disrespect to the detail of the arguments advanced, it is sufficient to concentrate on one matter. The ground raises a factual question. That question is, did the respondent fail to take into account the information and the matters referred to? In my opinion the ground is not made out, since there is no evidence that the first respondent failed in this respect. Indeed, there is positive evidence that he did not fail.
The letter of 19 March from the first respondent was addressed to Konstandinos Karapanagiotidis. Mr Karapanagiotidis was the author of the letter of 20 November 2002 requesting action by the Minister under section 48B. That letter of 19 March 2003 refers to the letter under reply as being dated “20 November 2001”. That is an obvious slip for 20 November 2002.
The letter said that the case of the applicant had been reassessed in the light of that letter, that is to say, the letter of 20 November 2002, and the letter of 19 March 2003 also said that, in the opinion of the writer, the case of the applicant still did not fall within the Minister’s guidelines. That is evidence that the first respondent did take into account the whole of the letter of 20 November 2002, including the additional information in it, which, it was said, was not taken into account.
So far as the letter of 20 August 2001 is concerned, while the matter is not entirely clear, that appears to be referred to in Mr Karapanagiotidis’ letter of 20 November 2002 in the second paragraph. That paragraph speaks of the fact that “An application has previously been made and refused”. That would appear to encompass the letter of 20 August 2001, which the ground under analysis contends was not considered by the first respondent.
The second ground advanced in support of the orders appearing in paragraph 1 of the draft amended order nisi is as follows:
the decision that the request did not meet the Minister’s Guidelines, and so should not be referred to the Minister, was so unreasonable that no reasonable decision maker could have reached that decision.
That type of contention is not a contention which is easy to succeed in. At all events, it has not been demonstrated to be valid in this particular case. The first respondent’s letter showed that he had purported to apply the guidelines. His decision not to refer the matter to the Minister, on the face of the material before the Court, cannot be said to be so unreasonable that no reasonable decision‑maker could have made it.
The second paragraph of the draft amended order nisi, while interconnected with the issues arising under the first, approaches them from a different aspect. The order sought is an order that the Minister show cause why a writ of prohibition should not be issued against him, prohibiting him from causing or permitting any officer of the Commonwealth from removing the applicant pursuant to section 198 unless and until the Minister or an officer of the Minister’s Department has decided that, taking into account the fresh evidence identified in the letter of 20 November 2002, the grant of a protection visa to the applicant should be refused.
The particulars of that ground contend that the “power or duty” of removal in section 198(6), in cases where significant new information has become available, cannot be exercised:
without there first being a determination of whether the person proposed to be removed is in fact entitled to protection under the Convention.
The second particular given is that the power or duty under section 198(6):
does not authorise the deportation of a non‑citizen to a place of persecution; on Convention grounds.
It is convenient to begin with the arguments advanced on behalf of the respondents in this respect. In essence, it was contended that the structure of the legislation entails a regime which brings about some finality. It compels and permits an examination of the circumstances of the person who is claiming refugee status, first by a delegate of the Minister, and then by the Refugee Review Tribunal, followed by a right of review before the Federal Court and the Full Federal Court.
It contemplates that if fresh information comes to light which was not available for consideration before the Minister’s delegate and the Refugee Review Tribunal, that can be considered, but only in applications under section 48B and section 417.
It was pointed out that by the time when the question of deportation arises, that is, the time when section 198(6) operates, applicants, and, in particular, this applicant, will have made applications to the Minister’s delegate and to the Tribunal. The respondents contended that there was a decision of Justice Hayne which was adverse to the arguments advanced on behalf of the applicant. That decision is Re Minister for Immigration & Multicultural Affairs; Ex parte SE (1998) 158 ALR 735, particularly in paragraphs [13], [18] and [19].
It was submitted that while Australia is under a treaty obligation not to return refugees to countries where they might be persecuted, the structure of the legislation did comply with that treaty obligation, and, in particular, section 198(6), in the construction preferred by the respondents, was not inconsistent with any treaty obligation.
There were other arguments advanced on behalf of the respondents with which it is not necessary to deal. The applicant argued that he had failed before the Minister and before the Refugee Review Tribunal because of an adverse assessment of his truthfulness. He had now located persons who were prepared to support the truthfulness of his claims. That fact re‑enlivened, as it were, the validity of all his claims.
It was submitted that if section 48B was to be construed in such a way as, in effect, to prevent persons in the position of the applicant from having their arguments in relation to fresh material even considered by the Minister, that pointed to a construction of section 198(6) which would permit deportation to be delayed until those fresh claims were, in fact, considered either by the Minister or by an appropriate officer of the Minister. It was in that sense that the applicant pointed to a synchronisation or mutuality between the arguments supporting each of the two grounds.
It was argued that Justice Hayne’s decision was no authority against the applicant’s present contentions. It was pointed out that the argument advanced to Justice Hayne appeared to be a wide one, in the sense that it was that section 198(6) should be read as limited to obliging removal only when to do so is reasonable. It was also pointed out that there was nothing to suggest in SE’s Case that the applicant there was contending that there was some fresh material which had not been properly considered. In short, the applicant argued that its contentions were relatively narrow and that Justice Hayne’s rejection of wider contentions was not adverse to them.
It was also contended that the decision of the Full Federal Court in the case of M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290, particularly paragraphs [79] and [80], was wrong and that the source of the error was that the Full Federal Court was unaware of the prospect, which is raised in the case presently before the Court, of parties falling outside section 48B.
In my opinion, while it is true that the arguments advanced to Justice Hayne in SE’s Case were not identical with those advanced here, there is no reason to doubt that the construction adopted by Justice Hayne of not reading words into section 198(6) or reading the subsection as though it had some qualification sufficiently broad to accommodate the present applicant’s position is sound. His construction is inconsistent with that which the present applicant would seek.
So far as the present applicant contended that there was some weakness in section 48B which called for a wider construction of section 198, I would reject that. The present applicant has failed factually in relation to his section 48B case. He has not demonstrated any intrinsic weakness in the section 48B process. It is appreciated that it is not easy for persons seeking judicial review of officers of the Immigration Department who have responsibilities in relation to the Minister to demonstrate reviewable error, but that fact, of itself, does not show that section 48B is so defective as to justify a wider reading of section 198.
For those reasons, the application for an order nisi is dismissed. Is there any other order that needs to be made?
MR RITTER: Your Honour, I am instructed to seek costs.
HIS HONOUR: Strictly speaking, it is an ex parte application, is it not? I appreciate your assistance. It has been valuable, as the assistance of those appearing on behalf of the Department and its officers usually is, but, strictly speaking, it is an ex parte application. What do you say, Mr Colvin, about costs?
MR COLVIN: Nothing more than your Honour has already said.
HIS HONOUR: You do not see any flaw in it?
MR COLVIN: No, your Honour.
HIS HONOUR: No order as to costs will be made. The Court will adjourn.
AT 10.06 AM THE MATTER WAS CONCLUDED
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