Farah, Ex parte- Re Min for Immig & Multicultural Affairs
[1998] HCATrans 210
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M44 of 1998
In the matter of -
An application for a writ of prohibition and certiorari against
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS,
First Respondent
DOMINIC CALABRO in his capacity as a member of the REFUGEE REVIEW TRIBUNAL
Second Respondent
Ex parte -
MOHAMED NASIR FARAH
Prosecutor/Applicant
HAYNE J (in Chambers)
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON MONDAY, 15 JUNE 1998, AT 9.30 AM
(Continued from 9/6/98)
Copyright in the High Court of Australia
______________________
MS D.S. MORTIMER: If your Honour pleases, I appear with my learned friend MR R.M. NIALL for the prosecutor/applicant. (instructed by the Refugee Advice and Casework Service (Aust) Inc)
HIS HONOUR: Yes.
MR R.R.S. TRACEY QC: If your Honour pleases, I appear for the first respondent. (instructed by the Australian Government Solicitor)
HIS HONOUR: Yes, thank you, Mr Tracey. Just before I call on you, Ms Mortimer, what is the position, Mr Tracey? I have had no other material, nor outline of contentions from your side.
MR TRACEY: I apologise for that, your Honour. The problem was this: we had difficulty obtaining instructions without knowing precisely what it was that the applicant was going to ask your Honour to do. I can tell your Honour that having seen that material, which we did not get until it was too late on Friday night to do anything about it, that the Minister's position is that he would seek to advance argument before you that the matter is not arguable and that the Court should dismiss the matter, rather than take any of the courses that might otherwise be open, if your Honour pleases.
HIS HONOUR: Yes, thank you. Ms Mortimer?
MS MORTIMER: Your Honour, does your Honour have a copy of our outline of argument?
HIS HONOUR: Yes.
MS MORTIMER: Your Honour, we seek orders from your Honour today in the relief that is set out in paragraph 1 of that outline, that is, namely the continuation of an injunction and a grant of an order nisi. In support of that application, we rely on three affidavits. The first is the affidavit of Martin Clutterbuck that was sworn 9 June 1998 and was before your Honour on the first occasion; the affidavit of Mr Mohamed Farah which was also sworn on 9 June 1998 and was before your Honour on the last occasion, and we also rely on a further affidavit of Mr Clutterbuck which was sworn 14 June 1998. I believe it has been filed, your Honour.
HIS HONOUR: I have seen that.
MS MORTIMER: You have a copy of that?
HIS HONOUR: Yes.
MS MORTIMER: I formally tender all three of those affidavits, your Honour.
HIS HONOUR: Yes.
MS MORTIMER: Your Honour, the grounds for our order nisi attack essentially four decisions, the decision to remove the prosecutor under section 198 of the Migration Act, the decision of the second respondent, being the member of the Refugee Review Tribunal, the Minister's decision under section 48B of the Migration Act and the Minister's decision under section 417 of the Migration Act.
We have not, your Honour, in our outline, nor particularly in the draft order nisi developed our grounds in relation to the two latter ones. That is really, your Honour, because they are secondary to our argument. We do rely on them but we do not put them at prominence. We certainly do not put them as prominent in relation to the question about an injunction and the serious question issue. In order to be able to particularise those more, we need to obtain more documentation from the Minister in particular about the grounds of those decisions. So, your Honour, in submissions today I am going to concentrate on the first two decisions.
In addition to the grounds for the order nisi, we also submit to your Honour that your Honour should not make an order remitting this matter to the Federal Court and that is also dealt with in our outline and I will address your Honour on that in a moment. As to the evidence, unless your Honour requires me to, I do not propose to take your Honour to the two affidavits that were filed on the other occasion.
HIS HONOUR: No.
MS MORTIMER: I would like to take your Honour to the new affidavit of Mr Clutterbuck.
HIS HONOUR: Yes.
MS MORTIMER: It is really the exhibits, your Honour, that are important because they set out the process that was undertaken in relation to the removal or the proposed removal of Mr Farah and they are relevant for our contentions about the unlawful nature of that proposed removal. Your Honour, if I can take your Honour first to the exhibit that is MTC6 which is the letter which is the start of the process. Now, that is addressed to an organisation called Fidelity Guards and seeks a quote, in essence, about how much it is going to cost. The reply to that is exhibit MTC7 and that is actually a reply from a company called P & I Associates International Pty Ltd.
On the face of these documents it is not clear in my submission whether those are one and the same organisations, although the series of correspondence seems to imply that they are somehow related, in any event, or there are people who are common to both companies. In any event, it appears from that quotation that the contract to remove Mr Farah is one that is tendered for by P & I Associates Pty Ltd. According to my mathematics, it quotes a $12,000 amount, plus a daily amount for guarding and a daily amount for accommodation. The only significant matter I take your Honour to in that document which is MTC8 is the sequence of flights under the heading Air Tickets.
HIS HONOUR: In 8 or 7?
MS MORTIMER: I am sorry, your Honour, I have moved on to 8 - no, 7, your Honour.
HIS HONOUR: Yes.
MS MORTIMER: Your Honour sees it says, "One, by escort, Johannesburg, Addis Ababa, Dubai and Johannesburg," so that would imply that the escort - that is the person guarding Mr Farah - will go only as far as Dubai and then he or she will come back to Johannesburg. Mr Farah's tickets appears to be Johannesburg, Addis Ababa, Dubai, Djibouti and then Bosaso, which I am informed, your Honour, is in Somalia.
HIS HONOUR: And Djibouti? Forgive my ignorance.
MS MORTIMER: Djibouti is next to Somalia. So the proposal is that Mr Farah will travel presumably unaccompanied from Dubai onwards. Annexed to that document, your Honour, is a questionnaire which Compliance Melbourne has requested to have Mr Farah complete and which Mr Farah does in fact complete. The completed copy of the questionnaire is exhibit MTC8.
HIS HONOUR: That looks to be a Republic of South Africa document, is it, or is it a ‑ ‑ ‑
MS MORTIMER: I do not know that we can answer that question, your Honour. I presume Ministry of Home Affairs, Immigration Department - yes, Mr Niall suggests that - we believe that the language underneath the English is actually Somali but we cannot confirm that, your Honour. In my submission, we have to treat this as a document of unidentified origin in terms of whether it is from the South African Immigration Department or Somali, but in any event, Mr Farah has answered some of the questions and has done so where it is most relevant, your Honour, in what we would assume to be Somali but we do not know.
I want to draw your Honour's attention particularly to question 21 because in our submission the requirement that Mr Farah fill that out is capable of triggering in our submission a breach of the non‑refulment provisions of the treaty because that question requires Mr Farah to identify why he left Somalia. Now, if that document upon his return comes to the attention of the authorities there, then that in itself, the fact that he has left the country in order to claim refugee status, is likely to trigger a prospect of persecution in itself, that is, the forcible return of a person who has made a refugee claim. You see often, your Honour, in these cases where that proposition is put, it is unclear whether the country to which a person is being returned will ever know that the person has made a refugee application and indeed there are confidentiality provisions here, but those confidentiality provisions are by this document breached.
HIS HONOUR: How do I know that until I know what is said in answer to question 21?
MS MORTIMER: Exactly, your Honour, we do not know but in our submission ‑ ‑ ‑
HIS HONOUR: But it is your case.
MS MORTIMER: It is the asking of the question that is improper.
HIS HONOUR: Assume that to be so, assume the question is improper, it is bare asking maybe something that should not have happened, but unless or until the answer is understood, what significance do I attach to it for present purposes? I take the absurd example where in answer to question 21 the person questioned simply wrote "Mickey Mouse" or something absolutely unresponsive and completely nonsensical. What would then matter that the question was asked?
MS MORTIMER: Well, precisely, your Honour, in that circumstance it would not, but the problem for us all at the moment is that we do not know what he said in response and at the moment it is fair in my submission to assume that since from what we can read of the rest of it, he seems to have answered it accurately, when one compares the information that he has put down there with what is in his refugee application.
HIS HONOUR: At the moment I would not want you to be under any misunderstanding. At the moment I would take a deal of persuasion that when it is your client answering a questionnaire that it is not for your side to tell me what it is that is said there. Now, I may be quite wrong but I do not want you labouring under some misapprehension of the immediate reaction I have to the proposition so that you can address it as best you may.
MS MORTIMER: I understand that, your Honour. We do not cavil with the proposition that the onus is on us to prove what is said there. The point is that at the moment in an interlocutory application we are not in a position to do that and that will be a matter that if we seek to rely on it as an ultimate ground we will have to demonstrate, we will have to provide an authenticated translation of that and I do not cavil with the proposition, your Honour. The point is that having obtained these documents so recently we are not in a position to do that for your Honour today and I did not want to, in taking your Honour through the material, not draw your Honour's attention to the possible ground that we may be able to rely on in relation to this. I agree, your Honour, we cannot take it any further than that until we have the translation.
HIS HONOUR: Yes.
MS MORTIMER: Your Honour, the next document is exhibit MTC9 and that is a copy of an emergency travel document that was faxed to the compliance officer from the South African company and appears to have been obtained in Tanzania from the Italian Embassy and lists as Mr Farah's place of domicile Hodan which is in Somalia and appears to be some - well, it is a travel document. I do not know if one can actually call it a passport which I think it is referred to in some of the other documentation but it is clearly an authority issued on behalf of Italy for demonstrating that Mr Farah is able to travel as a Somali national. I do not pretend, your Honour, to understand at the moment how the Italian Embassy is still able to issue a document like that for another independent nation state but that is another matter that we will have to investigate and prove to the Court's satisfaction that there is something amiss about that. For the moment though, your Honour, in terms of your Honour assessing the strength of our case in relation to the Minister's decision to remove, the most important point of this is that it unequivocally identifies Mr Farah as a Somali national.
The next exhibit, your Honour, MCT10, is a request for the issue of an Australian certificate of identity and I draw your Honour's attention to that because in the findings of the Refugee Review Tribunal, not only was there a positive finding that Mr Farah was not a Somali national, there was also a positive finding that he was not who he said he was. That appears at page 11 of the decision, your Honour, where the member says, after saying the member has a positive state of disbelief that the applicant is from Somalia, he goes on to say:
I am also in a positive state of disbelief in regard to the applicant's identity.
Yet all these documents, including one that is issued under this Minister's authority, is predicated upon the assumption that he is who he says he is.
HIS HONOUR: What follows from that fact?
MS MORTIMER: One of our arguments about the power to remove, your Honour, is that it cannot be exercised in a manner that is inconsistent with the decision of the Refugee Review Tribunal unless it is going to be exercised in a manner that is inconsistent or otherwise authorised by the Migration Act. So that, for example, if the tribunal makes a decision that a person is not a Somali national and is not Mr Farah, Mr Farah then, as he does, applies under section 417 of the Act and on the production of more evidence, the Minister is satisfied that he is a national and that he is who he says he is. Then, although that is a decision that is inconsistent with the Refugee Review Tribunal, it is a discretion that is specifically conferred on the Minister by the Act and therefore he is able to do that. But in circumstances where that discretion or one of that kind is not exercised, in our submission it is not possible for the Minister to exercise another power - that is, the power of removal under the Act - in a manner that is inconsistent with the basis for that power of removal.
HIS HONOUR: Does that therefore mean that if the RRT decides this man is not Somalian and he is not who he says he is, he cannot be removed from this country, anywhere?
MS MORTIMER: No, your Honour, it does not.
HIS HONOUR: To where can he be removed?
MS MORTIMER: The authorities suggest, your Honour, that the government may remove him perhaps anywhere, if it is not inconsistent.
HIS HONOUR: Assume that to be so - assume a decision, not Somalian, not who he says he is - can they legitimately remove him to Somalia?
MS MORTIMER: No, we say, your Honour.
HIS HONOUR: Can they legitimately remove him to South Africa?
MS MORTIMER: Not under the process that they have adopted here, that is, delivery into the hands of a private third party.
HIS HONOUR: Are you not on Moreton's fork on this? It is a matter - I know I am taking you out of your way - but it is a matter that is at the core of the difficulty I feel at the moment about this man. As I understand your contention, it is that there are limits on the power to remove. Let us leave aside for the moment the expression of those limits, but there are limits. Some of those limits derive from what is decided by the RRT, and let us leave the derivation or the expression of what is derived again aside. But the tension to which you point is a tension between the tribunal saying, "Not Somali, not who he says he is," and yet removal, apparently with a view to getting him to Somalia. Now, it is not immediately apparent to me at the moment why the power to remove cannot be exercised by taking the man to where he says he belongs to, even if that is disbelieved, and it seems to me that that whole chain of argument is one that may be separate from anything that arises from the interposition of this private organisation in South Africa. That chain of argument may be altogether different.
MS MORTIMER: Yes, your Honour, they are, and we do not seek to merge them. We say that the method of removal via South Africa gives us one and one separate ground to challenge, but that even if that did not exist, we would be able to challenge his removal to Somalia.
HIS HONOUR: Let it be assumed that the removal were by provision of a ticket one way to Somalia and he would simply have to sit it out in the transit lounge in Johannesburg until the next aircraft went and they wouldn't let him in to the land side of Johannesburg airport. What is the challenge you make to that kind of process?
MS MORTIMER: There are probably at least two, your Honour. The first is that the method by which that is achieved, on the evidence that we now have, requires the obtaining of documents and the positive assertion by the Minister that this person is a Somali citizen, so that is one limb of the argument.
HIS HONOUR: What follows from that fact, that the Australian government says to other authorities, "This man claims to be a Somali and we propose for this purpose to treat him as if he is"?
MS MORTIMER: To propose to treat a person as a Somali national in order to achieve something that is likely to be to his detriment and yet to refuse to treat him as a Somali national where the outcome of that is to his advantage or to benefit him are inconsistent exercises of the power under this act. It cannot be a proper construction, your Honour, of Australia's fulfilment of its duty to afford protection obligations, that in the one breath we can say, "You are not who you claim you are and on that basis" - and that is the key to the RRT decision, "on that basis" - "we do not owe you protection obligations," and then to turn around in the next breath and say, "But in order that we can rid ourselves of you, we are going to say you are who you are."
HIS HONOUR: In effect as the next best available option, or otherwise are you not in the position where, if the tribunal do not believe him, then you cannot get rid of him? Put it as bluntly as that.
MS MORTIMER: That is why, your Honour, we say we have to challenge both decisions because part of this decision‑making process in this kind of situation, we say, imposes a duty to make other findings on the RRT or on the Minister. If the RRT is going to say, "You are not a Somali and you are not Mohamed Farah," then they have to make some positive findings as well. You see, part of our attack on the RRT is that it is not just that they ‑ ‑ ‑
HIS HONOUR: But how do they? As a matter of practical reality, you have got an RRT running a case where the applicant's case is wholly directed to saying, "I am Somali. I am Mohamed Farah." How can the tribunal go on and make some other finding when they have got to the point of saying, "No, I am sorry, we do not believe you. You are not who you say you are and you are not a Somali." What do they then do?
MS MORTIMER: They will be capable of doing that in my submission if they have approached their task of deciding who he is reasonably. You see, if they have approached that unreasonably, then they will not be able to decide. If they simply refuse to believe documents and not accept other evidence and there is a vacuum - there is nothing to suggest that he is anyone else and there is nothing to suggest that he is from anywhere else - he uses a Somali interpreter. So what is the product of that reasoning process is an unreasonable decision, so that if the tribunal had been undertaking its task in a judicial manner, in a way that required probative material, it would look at it and it would say, "Well, I have some identity documents and I have some claims. What counterbalances it? If I disbelieve this, what is there to suggest that he is anyone else or that he is not a Somali?" You see, the two findings do not necessarily go together. He may not be Mohamed Farah but he may still be a Somali. The argument hinges upon requiring some kind of findings either at the RRT level or, you see, your Honour, if none are made, then we say that there must be some obligation to make those inquiries before removal. That is part of deciding what is practicable. You see, under section 198 ‑ ‑ ‑
HIS HONOUR: How do you set about making those removals? As a matter of practical reality, you have got a man in detention who maintains vehemently, "I am Mohamed Farah. I am from Mogadishu." Where then do you go? How then do you set about saying, "Look, we do not believe you when you say that," or, "You are being disbelieved." What do they then do? What is the next port of call? It is that practicality that vexes me.
MS MORTIMER: Yes. The practicality, your Honour, is vexing because there is no rational basis to disbelieve him. You see, if there was a rational basis to disbelieve him, there would be some leads to follow up. If there is no rational basis to disbelieve him, that is where you get the vacuum. He does everything he can do. He provides letters from Somali organisations. He does everything he can do and it is simply - if it is not rational to disbelieve him - impossible to construct the kind of practical answer that your Honour seeks. That is the problem.
HIS HONOUR: I have, I know, taken you well out of your course of argument. I will desist for the time being at least, Ms Mortimer. I will not give you an ironclad guarantee of desistance.
MS MORTIMER: No, please do not, your Honour, because we are struggling with this as well. Your Honour, I will not take you through the rest of the exhibits to that affidavit, suffice to say that in my submission they are more of the same in that they provide more evidence of the treatment of Mr Farah as a Somali national and as nothing else, so that I will not take your Honour to those any more.
As to the argument, your Honour, what we say is this, that one must first turn to section 198 which deals with removal and I might add, your Honour - interpose at this moment - that so far as we have been able to ascertain, there has not been a decision that deals with the power to remove in the sense of saying whether there is a distinction between the power to remove and the power to deport and that those need to be construed differently. I do not know if my learned friend is aware of one; he may well be more aware than I am. We can proceed, your Honour, on what the statute says and our submission is that given the basis for removal - that is that it relates to an unlawful non‑citizen who essentially has no further right or potential right to stay in Australia - that it ought to be construed in the same manner as the deportation provision so that the same authorities can apply.
If one asks what does the power under section 198(6) comprise, we set it out in paragraphs 4 and 5 of our contentions, your Honour, that is, that subsection (6) requires that before an officer can remove a non‑citizen, the officer must first identify both the method by which the person is to be removed and the destination to which the person is to be sent, and in paragraph 5 we go on to explain why we say that is so. We say that is so because the identification of method and destination is essential to give practical effect to section 198, that is, if you are going to remove someone in order to give - or deport them on the old authorities - practical effect to that, you have to decide how you are going to do that and where you are going to send them.
The case that we refer to, your Honour, in paragraph 5(a), R v Home Secretary, that was approved in Ferrando, your Honour, at page 250, and in Znaty at page 12. When I was before your Honour on a previous occasion, I took your Honour to the passage from which we extract the proposition in paragraph 5(b):
The act or removal necessarily requires that the non‑citizen go somewhere.
So it may not matter what choice is made, but there is, in the exercise of that power, a choice to be made about where you send that person. It is only by reference to how you are going to get them there and where you are going to send them that the full obligation that is imposed by subsection (6) can be discharged. That is, in order in our submission to decide whether it is reasonably practicable to send someone somewhere, one has to assess how you are going to get them there and why you are sending them to that particular place.
We derive some support from that, your Honour, from an analogous provision in the deportation provisions. If I can just take your Honour briefly to the decision of Tam; this is a decision of his Honour Gummow J in 1989 on an interlocutory application to restrain the Minister from deporting the applicant. The passage that I want to take your Honour to is at page 5 of the Internet copy, actually starting on page 4, your Honour, where Gummow J sets out the contentions put forward by the applicant. It is paragraph 26 that I would like to draw your Honour's attention to, in particular where his Honour talks about the term "accordingly" and appears to endorse what is said by Asche CJ in Lewis v the Minister for Immigration that:
The word "accordingly" implies a restriction not only as to time but as to manner of execution.
We would say the same kind of consideration can be applied - although different words are used, the content is similar - that when one looks at those words in subsection (6), "as soon as reasonably practicable", they do import considerations of the manner in which the power is going to be exercised, both by the use of the word "practicable" which suggests that some things will not be practicable and also by the use of the word "reasonably".
When the Minister comes to exercise the power to remove a person from Australia, it is our submission that it must be done in a manner that is authorised by the Act, that is, it must be done in a manner that is consistent with the object and purpose of the Act. Although the Act contains separate sections about the determination of Australia's protection obligations to people and other sections about the removal of unlawful non-citizens, they are linked in sections like section 198 by the conditions which must be satisfied before the power to remove can be exercised. Those conditions relate to whether a person has a valid application for a substantive visa that has been finally determined.
So the Act specifically contemplates that in exercising the power under subsection (6), regard will be had to the operation of other sections of the Act in relation to the kinds of applications that people can make. So that if, as in my submission is incontrovertible, one of the objects of the Act is to bring in to Australian law the protection obligations that Australia has, and in turn an acknowledgment that those protection obligations are not triggered in a particular case becomes the basis for the exercise of the power to remove, then the power to remove must be undertaken in a way that is consistent with the object and purpose of deciding whether you owe protection obligations to someone.
HIS HONOUR: What is the inconsistency here?
MS MORTIMER: The inconsistency here is that for the purpose of deciding whether Australia owes protection obligations to Mr Farah, he is disbelieved about his identity and about his nationality. For the purposes of deciding whether he ought to be removed from Australia, his claims about his identity and his nationality are assumed to be true. They are believed. Assertions to that effect are made to representatives of other nations' states.
HIS HONOUR: How does that cut across any protection obligation?
MS MORTIMER: Because if in the latter circumstance, the assertion that he is right, that he is a Somali citizen is correct, then his claims to have a well‑founded fear of persecution have not been adjudicated on that basis.
HIS HONOUR: Yes, and the hypothesis from which we begin is that he has been disbelieved about those claims. How does transporting him to the country which he claims to be associated with, but that claim being disbelieved, cut across the protection obligations that this country may owe?
MS MORTIMER: Because it appears, your Honour, that he has not been disbelieved. It can't be possible, your Honour, to assert to third parties that this person is a national and to ask them to issue immigration documents or travel documents that allow a person, first, to enter into a third country and then to enter into, well, several other countries by the sounds of it. In each stage of which you are asking the nation states of - it seems to be - South Africa, Dubai and Djibouti to afford this person passage on the basis of an assurance from the Australian government that he is a Somali national and in fact, your Honour, you see what the evidence discloses is they are going to - they propose to - let him loose in Dubai, so that Dubai authorities have accepted him into that country on the basis of an assurance ‑ ‑ ‑
HIS HONOUR: There is no basis, is there, for concluding that he can enter Dubai? He will transit Dubai but is there any basis for concluding he will be allowed on the land side of the airport at Dubai or Djibouti?
MS MORTIMER: No, we do not know that, your Honour.
HIS HONOUR: No.
MS MORTIMER: No, that is true. Yes, I withdraw that. It is difficult to articulate, your Honour, because it seems in my submission to be so obvious that where you have two powers that are linked in the one piece of legislation, one to be exercised for the benefit of a person and one to be exercised to their detriment, that where it is to be exercised for their benefit they can be disbelieved and yet that disbelief can be ignored and not acted upon in order to justify the exercise of another power to their detriment. That in my submission is a peculiar construction of the powers that affect the liberty of a person in legislation such as this and it ought not to be one that is allowed to stand, at least not without scrutiny of the High Court.
HIS HONOUR: Does the proposition come down to a proposition that the power to remove cannot be exercised in a way that will remove the person to any country except a country that it is positively believed that person is associated with?
MS MORTIMER: Yes, your Honour. That is consistent with the ‑ ‑ ‑
HIS HONOUR: Thus leave aside the refugee case. Assume the entrant to this country who never claims refugee status but says, "I am from Ruratania," and the authorities examine that and say for whatever reasons, "We do not believe that you are who you say you are and we do not believe you are from Ruratania. You are therefore a prohibited non‑citizen. You have no further live applications. We are going to remove you." Where do they remove this person in the hypothetical that I have just created? No refugee claim made or advanced; claims to be Ruratanian positively disbelieved. Where do you take him or her?
MS MORTIMER: There are two things, your Honour. The first is that it is perhaps just as well to put aside the refugee situation because that may introduce specific considerations.
HIS HONOUR: Yes.
MS MORTIMER: So if one puts that aside, one comes back to the question, how can one be rationally and properly reasonably satisfied that a person is not who they say they are and is not from a particular country? That is, how can one come to a positive state of disbelief unless there is some kind of alternative hypothesis? There must be something that triggers that positive state of disbelief and if it is to be something that is rational and reasonable and probative, then the decision‑maker in my submission is capable of making a corresponding finding. Now, it may not be a finding about nationality but it may be a finding about residence or connection, and you see in the Refugees Convention that is specifically catered for.
If we go back to the refugee situation - because the test is whether a person has a well‑founded fear of persecution in the country of his or her nationality or in the country in which he or she is habitually resident, so they are expressed in the alternative - so it is contemplated, your Honour, even in the refugee situation, that one may not be able to determine nationality but one may only be able to determine habitual residence.
HIS HONOUR: Yes, but assume the case of the entrant to this country who says, "I am from Hollywood in the United States and I will tell you the following 47 features about my place of birth, place of residence," etcetera, "in Hollywood," and it is self‑evident that it is a pile of nonsense, this story. The person who is charged with the decision‑making says, "Look, this is a load of nonsense. I just cannot believe that this person has any real connection with the United Sates of America." That is all the information they have. They know they are from somewhere. They know they have some residence and they probably have some nationality. But how do they then go ahead and say, "Well, look, I know you are not from Hollywood but I think it is really likely you are from Upper Tooting in London." They have got no clue at all. Is not that the position with Mr Farah? His case was, "I am from Mogadishu," and rightly or wrongly he is disbelieved by those who have seen him. What is it that enables the decision‑maker to say, "He is not from Mogadishu but he may be from Kenya," or wherever?
MS MORTIMER: Indeed, your Honour, it must be something that is rational and reasonable and that is where we come back to the reasoning process and why that is so important. If there is no probative material - in my submission it cannot be done on a hunch or it cannot be done on a, "I do not like the look of you, your eyes are too close together," or whatever. There has to be something probative about it. In going through that reasoning process in my submission it is most unlikely that there will be no indication of an alternative. One might take this case, your Honour, because there was evidence on the applicant's own case that he had lived in Kenya for a long time. I might not be able to be standing up in front of you today, your Honour, if there had been a finding at the RRT that he was habitually resident in Kenya and that he was sent back to Kenya. That may not have been susceptible to attack. So in our submission that process is required to be undertaken.
One of the things that some of the authorities say is that the place to which he or she is removed - and I believe this is said in Znaty - must be a place which is willing to accept him or her. So in that process, in organising that process of removal, there will be some inquiries of the place to which you propose to remove this person about whether they are going to be let in. If they are, then one has a basis for saying, "All right, perhaps we have guessed rightly," or, "We are close," and they are willing to let this person in.
That is where we come back to the problem with this case because if that is right and the Somali authorities are willing to let this person in, the natural and logical explanation for that is that he is a Somali citizen and there falls the whole basis of the RRT decision.
Your Honour, if I might turn for a moment to the other limb of our attack which is really the proposal to remove Mr Farah to South Africa because as I submitted to your Honour, we say that is a separate ground upon which we can attack this particular proposed removal. We can attack that, your Honour, because we say, for a start, it is unreasonable. There is no connection with South Africa. Mr Farah, as soon as he was informed about it, expressed a concern about going to South Africa. There is nothing in the Act which would authorise the delivery of him to South Africa.
Your Honour, if I can take your Honour again to the precise terms of section 198, there is a statutory authorisation on an officer - and the word "officer" is specifically defined in section 5 of the Act - and it is that person who has the authority to remove an unlawful non-citizen. There is nothing to suggest that that power can be assigned or delegated to someone who is unconnected with the Australian government, other than by way of a contract.
HIS HONOUR: What is different between the arrangement now made or proposed to be made and the putting of a prohibited non‑citizen on board an aircraft without escort in this sense: the airline physically removes the person from this country and the airline officers and so on have the carriage of that person to the destination? What is different between the present arrangements proposed and simply putting him on board an aircraft?
MS MORTIMER: The difference, your Honour, is the element of custody or restraint and the infringement of his liberty to leave. He may have a physical restraint in the sense that he is not able to jump off the aircraft once he is on it, but wherever that aircraft stops - let us say it stops in transit at Kuala Lumpur - although he may not get very far, he is free to leave that aircraft.
HIS HONOUR: But he would be in transit?
MS MORTIMER: Yes, but the airline staff have no power to stop him and in my submission would not stop him. He could walk up to the Malaysian immigration authorities and say, "I want to claim refugee status." It may be a hopeless application but he can do it, whereas what is proposed here is to detain him and to keep him in custody, not only on a flight from Melbourne to Johannesburg, but then to keep him in custody in the hands of South African individuals and to then assign a particular individual to guard him - and that is the expression used in the quote, that is one of the things that the organisation was quoting for, the cost of guarding Mr Farah - and to have him accompanied by that guard to Johannesburg to Dubai, at least. One can infer, your Honour, that if Mr Farah attempted to escape, he would be forcibly restrained. There is no other construction, your Honour, in my submission that can reasonably be put on the word "guarded".
If one looks at the terms of what the company is asked to quote for, they are asked to quote for the movement of people from Australia to their countries of origin, so it is specifically contemplated that the control of these people will be given, delivered over. There are in my submission, your Honour, real questions about whether that kind of purported extraterritorial exercise of the power to detain someone is lawful.
HIS HONOUR: What is different between that arrangement and the man having a one-way ticket that would leave him in the transit lounge at each of the intervening airports?
MS MORTIMER: The difference is that there is a purported exercise of a custodial power over him and his otherwise unfettered right to liberty and security of his person is purported to be constrained as an incident of Australia's sovereign power to remove someone. It is said that an incident of that - it must be in order to sustain this proposal - is a power to confer on a private individual in South Africa the right to keep this person under 24-hour guard in a hotel and to restrain them from leaving.
I might just take your Honour to a couple of authorities about that. What Znaty says, your Honour - does your Honour have a copy of Znaty with you?
HIS HONOUR: Yes, I do.
MS MORTIMER: At page 12, your Honour, towards the bottom, what his Honour Walsh J says there is that:
There may be that the statutory regulation of deportation may include provisions for extraterritorial constraint because these may be necessary in order that the power to deport may be rendered effective.
That is in our submission as far as it goes and when one is deciding what is necessary in order for the power to be effective, a Court ought to adopt a cautious approach, your Honour, because one is talking about the liberty of a person. It may be easier for the government to sustain an argument that an escort or a guard on a plane from A to B is necessary in order for the removal to be effective and to ensure that the person does not at the other end turn around and try and come back. But whether it can be said that the delivery into the hands of a private third-party organisation in a third country completely unamenable to the supervision of the Australian government is necessary in order to render the power to remove effective, in my submission that is a completely different question and that is a question that this Court ought to answer as well.
It is clear from the exhibit, your Honour, that this is not simply a mechanism that was proposed to be used for Mr Farah and Mr Farah alone. It is clear that at least from the original letter of inquiry to the South African company that this is a method that the government proposes to use for at least several people, it says, in that letter. So that is a question in my submission of some significant public importance about whether that is a lawful mechanism by which the power to remove can be exercised.
Your Honour, we also attack as part of our case the decision of the Refugee Review Tribunal. We set out in paragraphs 13, 14 and 15 the grounds on which we make that attack. They are normal kinds of review grounds. I gather your Honour has read it, so I will not take your Honour through it, except to point out to your Honour that some of the grounds that we claim - for instance, the failure to take relevant considerations into account and the unreasonable ground - and we say that on its face when one looks at the decision, it is a perverse decision - those grounds are not grounds that are available to us in the Federal Court.
HIS HONOUR: I understand that. What weight, if any, should I give to the fact that the RRT decision was as long ago as it is? What is it, over a year?
MS MORTIMER: Weight in exercising which of the discretions that your Honour has to consider?
HIS HONOUR: It is a year ago that the RRT made its decision.
MS MORTIMER: Yes.
HIS HONOUR: Why should these challenges now be entertained so long after that decision?
MS MORTIMER: One of the reasons, your Honour, as I have attempted to explain, it is necessary to challenge that decision in order to properly and fully challenge the removal because the two are linked because the decision of the RRT provides the basis upon which the removal was triggered. That is in addition to the rejection of section 48B and 417; they can follow only after the RRT decision. That is one reason, your Honour.
The other reason is that you have an affidavit from Mr Farah about his lack of access to legal advice and about the circumstances which led to him not challenging the decision and it is open to your Honour in my submission to conclude from that that it is not through any fault of his own and that because this is such a serious matter for him, if he is right, then he is to be returned to a situation where his life will be in danger.
HIS HONOUR: Assume those hurdles of time are surmountable. Is the challenge to the RRT decision more than a challenge to findings of credibility?
MS MORTIMER: Yes, your Honour.
HIS HONOUR: How?
MS MORTIMER: It is a challenge to the reasoning process in terms of, we say, that the RRT erred in its construction of its task in the sense that the failure to make findings about nationality or habitual residence is in large part, your Honour, what has resulted in this ludicrous situation and that if the RRT had properly construed its task as including a requirement to make findings of fact about where the prosecutor was a national of or where he was habitually resident, then a lot of the problems that flowed for Mr Farah since then would not have arisen.
HIS HONOUR: That is, on your contention the question for the RRT was not, "Is Mr Farah Somali?" the question was, "Where does Mr Farah come from?"
MS MORTIMER: In our submission, your Honour, it is a two-step process because Australia's protection obligations are triggered by the claim. The claim is based on Somali nationality and possibly by inference on habitual residence, so initially his claim is assessed as against Somalia and his nationality there. But if he is disbelieved as to who he is and the country of which he is a national, then it still falls in our submission to the RRT to make some decision about whether he has a well-founded fear or persecution anywhere else.
HIS HONOUR: Though that is not a claim he has ever made.
MS MORTIMER: He is not able to make that claim until he has ‑ ‑ ‑
HIS HONOUR: It is a very difficult proposition, is it not, Ms Mortimer? He comes forward saying, "I am a Somali," having a particular claim. If that is disbelieved, it is a fairly heroic step to say, is it not, that the RRT must then go on and consider claims that he has never made? Is that not the abyss that is looming ahead of your steps at the moment?
MS MORTIMER: Your Honour, it is an abyss for Mr Farah once those findings are made.
HIS HONOUR: Yes, it is.
MS MORTIMER: But until those findings are made, he has no reason to make any claim. He says he is who he says he is.
HIS HONOUR: And he is disbelieved.
MS MORTIMER: And if he was to make a claim beforehand saying, "In the alternative," then that would turn into the ground on which he was disbelieved.
HIS HONOUR: Yes.
MS MORTIMER: So a person in that situation is in a no-win situation and the cases ‑ ‑ ‑
HIS HONOUR: But so too is the decision‑maker. The decision‑maker is confronted by a particular claim that he has made and the decision‑maker either believes it or in this case does not believe it. What then is the decision‑maker to go on to do?
MS MORTIMER: The decision‑maker in our submission, your Honour, is incontrovertibly, on the authorities, an inquisitorial tribunal.
HIS HONOUR: Yes.
MS MORTIMER: And there is no onus on the applicant in that sense. So if the decision‑maker is undertaking his or her task in a way that is rational and reasonable and probative, then it is going to be possible for the decision‑maker to make findings in the alternative. You see, usually, your Honour, in my submission when a person is not believed, the alternative finding is obvious, even if it is by inference; that is, if a person says, "I had a green light," and a finding is made, "No, you did not," or, "I do not believe you had a green light," then the inference is they had a red light, so usually the opposite inference is obvious. The problem is in this case, it is not. When one considers the reasons for the existence of protection obligations and the inquisitorial nature of this tribunal, the difficulties that a person has in proving their claims, all of which are matters that these decision‑makers have to take into account, in those circumstances we say it is nothing other than reasonable to require a tribunal, if it is going to make positive findings of disbelief, to make some findings in the opposite, because there must be something upon which that disbelief is based. We point to that, your Honour, as one error of law.
We then say that if one looks at the actual terms of the decision, the tribunal clearly misconstrued its task altogether. If I take your Honour to exhibit MTC5, which is the tribunal's decision - if I take your Honour to page 8 of the decision, under the heading Discussion of Claims and Findings, the tribunal commences by saying:
No claim was made by the applicant and no information was available nor ascertainable by the tribunal to support a claim of fear of persecution for reason of religion, nationality or membership of a particular social group.
If that is intended to be a summary of what the applicant did not claim, then in my submission it is about as clearly wrong as it can be because his entire claim was based upon membership of a clan, that is, membership of a social group.
HIS HONOUR: I must say I had read that as a somewhat inelegant but intendedly general denial and what then followed -
The tribunal finds there was not a fear of persecution on these grounds -
is the grounds for an apparently intended general adverse finding introduced in that way. It is not written perhaps in a way that is crystal clear but there we are.
MS MORTIMER: Your Honour, I have just been reminded that what is conspicuously absent from that little summary at the start is the ground of political opinion. In my submission that is what the tribunal goes on to consider and it assesses his claims as against the ground of political opinion, whereas in fact ‑ ‑ ‑
HIS HONOUR: Not a membership of social group case?
MS MORTIMER: We say it was, your Honour, but we say that ‑ ‑ ‑
HIS HONOUR: But is not the later treatment directed to the social group kind of inquiry, membership of the clan etcetera, and that what the tribunal decided was:
Because I do not believe him to be Somali or who he says he is, therefore his claim of membership of the clan which will lead to persecution is a claim which I reject.
Perhaps I misread it but that was the impression I was left with from the document.
MS MORTIMER: In my submission it is unclear, your Honour, as against which ground it is being assessed, that is, the correct process in my submission would have been for the claim to be identified and then the Convention reason to be identified. If the tribunal was properly construing its task, in my submission there would have been an identification of the claim, an identification of the Convention reasons and then an assessment of that and unless it is done in that way, in my submission, the tribunal falls into error because there are particular tests that have to be met in relation to whether something is a social group or what does constitute a political opinion before one even gets to the question of whether the fear is subjectively held and is well‑founded.
Your Honour, just on that point, if it is of any persuasion to your Honour, I refer your Honour to exhibit MTC1 which is the Internet copy of the decision where the catchwords say "imputed political opinion". I do not know whether that is something that your Honour can pose any weight on, other than that is a ‑ ‑ ‑
HIS HONOUR: That somebody read it in that fashion.
MS MORTIMER: Somebody read it and thought that, your Honour, I suppose, yes.
HIS HONOUR: I think it might be described as not quite the strongest point you have made this morning.
MS MORTIMER: No, that is a fair comment, your Honour. There are two other matters that I will mention to your Honour as what we say are significant challenges of the RRT decision. The first is that there was a failure to take into account relevant considerations. Aside from the evidence that Mr Farah put in himself that he was a Somali national, there were apparently about 12 separate pieces of evidence that went to his Somali nationality, including letters.
Now, it may be said, your Honour, that that is really a question of weight, not one of whether the matter was in fact taken into account, but the more important consideration in my submission which seems to have been entirely overlooked by the tribunal was the fact that Mr Farah gave evidence through a Somali interpreter and there was no questioning in the decision that he spoke any other language, that there was anything to suggest that that was not his mother tongue. If that is so, your Honour, then that was a relevant consideration that the tribunal had to weigh, particularly in a case where there were many pieces of evidence which individually may not have taken much weight. If one adds a consideration of that kind, then in my submission the omission to consider that is significant.
The other breach, your Honour, and this relates to really the unreasonableness ground, is that in our submission the tribunal member made what is an impermissible use of a previous decision. The decision in Mr Farah's case was made on 22 May 1997 and this same tribunal member had decided another case about a Somali national on 12 May 1997. When one looks at the terms of the two decisions - and I will hand the other decision up to your Honour - we say that there are enough similarities - in fact they are not simply similarities, they are repetitions of findings about credibility - to say that there has been an improper use of an earlier decision or at the very least to say that it is a situation where Mr Farah ought to have been informed that the tribunal proposed to make findings in exactly the same way that it did in an earlier case. I will hand a copy of that up to your Honour. Your Honour, the relevant parts are - on the copy that I have just handed up - page 7 and page 8. At the bottom of page 7 under Discussion of Claims and Findings, one will see verbatim the repetition of the claims made.
The more important one in my submission, your Honour, is on page 8, the second‑last paragraph from the bottom where the findings are expressed in precisely the same terms. These are the central findings on credibility and they are found in the tribunal's decision on page 11, your Honour. That is of MTC5.
HIS HONOUR: Yes.
MS MORTIMER: That in our contention, your Honour, is where it concerns credibility findings. We do not cavil because it is common in RRT decisions to repeat verbatim country situations and propositions of law and that is one thing, your Honour. But we say when it comes to findings of credibility it is an unreasonable exercise of the decision‑making power to make those findings in terms that are identical with claims made by a different person. That is not within the bounds of reasonable decision‑making, your Honour, in our submission. Those are the bases, your Honour, on which we would attack the RRT decision so we would say, your Honour, that the attack is much more than an attack on the merits of that decision. On the question of remittal, your Honour ‑ ‑ ‑
HIS HONOUR: Well, if I remit, there is at least a risk that the RRT challenge would be adversely affected.
MS MORTIMER: Yes, your Honour, there is.
HIS HONOUR: If I remit any question on the removal, there would be no such adverse effect, would there, if it can be separated from the RRT challenge?
MS MORTIMER: If that is so, your Honour, although it might depend what one means by "adverse effect", your Honour, because to some extent this depends on the attitude taken by the Minister, and if the proposition that the Federal Court's jurisdiction in relation to the removal question is not affected, if that proposition is conceded, then there is no adverse effect.
HIS HONOUR: But the removal decision is not a judicially reviewable decision under Division 8 or Part 8 or whatever it is. Is that right?
MS MORTIMER: That is our contention. If that is conceded that ‑ ‑ ‑
HIS HONOUR: Well, I can understand you wanting to verbal your opponent but for the moment he is not willing to be verballed and I am just concerned to identify your submission, Ms Mortimer.
MS MORTIMER: I understand that.
HIS HONOUR: Your submission is at the moment that division 8, or whatever it is, is not enlivened?
MS MORTIMER: Yes, your Honour, and what I wanted to submit to your Honour and what I do submit is that, when your Honour comes to consider the exercise of the discretion and whether there is an adverse effect, if the applicant is to be put to the time of - time is to be occupied in the Federal Court hearing with argument about that, then that is an adverse effect. If he is exposed to a risk of an adverse decision in relation to that, then that is an effect.
HIS HONOUR: Yes, I understand that.
MS MORTIMER: The only other thing, your Honour, that we would put - and we put this in paragraph 20 of our outline in relation to remittal - is that we say that this is a matter which is proper for the determination of the High Court in its original jurisdiction because it is a matter on which there is very little judicial authority and none in relation to removal and ‑ ‑ ‑
HIS HONOUR: All the more reason why this Court ought to have the benefit of the views of the intermediate Courts perhaps, Ms Mortimer. Points can then be the better refined. But it is not special leave day, is it?
MS MORTIMER: No.
HIS HONOUR: So I refrain from making comments like that.
MS MORTIMER: Thank you very much, your Honour. I might just point out to your Honour in relation to whether it is a question of public importance that there does appear to be some conflict between two decisions of this Court. That is the decision in Znaty, the majority judgment by Walsh J, and the decision of Ferrando about the extraterritorial limits of those powers. They may be capable of being reconciled. I took your Honour to the passage in Znaty where Walsh J says that the power can be exercised extraterritorially to the extent that it is necessary for it to be effective, but there are many references in Ferrando, your Honour, which might be seen to suggest the contrary. If I might just take your Honour ‑ ‑ ‑
HIS HONOUR: But again are those not matters which, if a case for order nisi is made out and if the case were otherwise proper to remit, it can be wrestled with by a Federal Court and if needs be on appeal to a Full Federal Court?
MS MORTIMER: In my submission it is probably more appropriate that a conflict between two decisions of this Court or potential conflict be resolved by this Court because it is likely to end up here anyway.
HIS HONOUR: All the more reason why the problem ought to be refined before it gets here.
MS MORTIMER: Perhaps, your Honour, except that I ought to add this: if that is so, there will be a restraining order on the Minister so that the time during which the Minister ought to be restrained from otherwise removing Mr Farah is a consideration and if the matter is remitted, heard, appealed, then that time is extended.
HIS HONOUR: Well, that may lead to a further matter which I am presently minded to leave over until after I have heard Mr Tracey. If I were otherwise persuaded that order nisi should go - and on its face then there would seem to be much to be said for the proposition that injunction should go - there may be a question whether injunction should go restraining removal simpliciter or injunction should go restraining removal by this means. That in turn is affected by whether order nisi goes, if it goes, on what I might call power to remove generally or power to remove by this method. But all of those are perhaps issues that are second-level issues that are better addressed after I have heard from Mr Tracey and better able to form a view about whether it is productive to debate them.
MS MORTIMER: Yes, your Honour, in my submission it would be more appropriate for your Honour to hear from Mr Tracey respecting that.
HIS HONOUR: Because at the moment the lively question in my mind is does order nisi go or not?
MS MORTIMER: Yes, I understand that. Your Honour, there is very little that I would want to say about the injunction but perhaps I ought to leave that also until after your Honour has heard from Mr Tracey, if your Honour pleases.
HIS HONOUR: Yes, Mr Tracey, just on that last point of injunction, are you content if I leave it over until we have had argument from you about order nisi or not?
MR TRACEY: Yes, perfectly convenient, your Honour, thank you. Your Honour, the submission of the Minister is that on neither limb of this case - that is the section 198 limb and the challenge to the tribunal decision limb - is there a fairly arguable case made out and accordingly it is the Minister's submission that no orders should issue and that the application should be dismissed, and if that occurs, of course the interlocutory injunction which your Honour has granted would fall with it.
HIS HONOUR: The interlocutory is, I think, only until 4.15 today or further order in any event.
MR TRACEY: Indeed, your Honour. Your Honour, can I come to the 198 point first. As I understand it, the core of the submission is that there is a fundamental inconsistency between the decision of the tribunal and the arrangements made by the Minister for removal. There is a subsidiary argument that seeks to challenge - we are not quite sure what - but it may be, for present purposes, best described as "arrangements" made for the applicant's transit in South Africa. I will look at those matters sequentially.
Your Honour, we start with the proposition that there is in section 198(6) a positive duty imposed on officers responsible for the administration of this Act to remove unlawful non‑citizens in a range of circumstances, all of which apply to the present prosecutor. The situation that is required to exist before the duty to remove arises exists and it is said that there is a linkage between what the tribunal decided and paragraph (b) of subsection (6) which is the one that says that the non‑citizen made a valid application for a substantive visa that can be granted and that having failed, the situation is that the non‑citizen has not made another valid application and the applicant remains in the migration zone.
It is said, as we understand it, that because the tribunal was unable positively to be satisfied that this person was a Somali national that somehow or other that constrains the Minister in his choice of destination when the power of removal is exercised under section 198.
HIS HONOUR: It was I think put rather differently. It was that the RRT was positively satisfied he was not Somali and that that constrains the manner of execution of the duty.
MR TRACEY: Yes. Your Honour, without conceding that that is what the tribunal decided, I am more than happy to address the matter on the basis that it was. But the tribunal just did not decide that; as your Honour has seen, there was also a finding that the applicant was not a person who had a well‑founded fear of being persecuted in Somalia. Your Honour, that finding appears at the last page of the reasons, immediately above the heading Conclusion and immediately below it.
HIS HONOUR: Yes, I have that.
MR TRACEY: So that it is not just simply a case of the tribunal finding that this person was not a Somali national, it is a case of a positive finding by the tribunal that the person had no subjective fear of persecution if the person went to Somalia.
HIS HONOUR: No, I think that is not right. They found that he - I see:
while the applicant does not have a subjective fear of returning to Somalia.
I rather wonder whether that is a typo. It is an odd - it finds that while the applicant does not have a subjective fear of returning -
and as such, his fear is not well‑founded.
MR TRACEY: Your Honour, there is the paragraph immediately above, where it is also said:
I also find that he does not have a well-founded fear of being persecuted in Somalia.
HIS HONOUR: That I thought was the objective, rather than the subjective.
MR TRACEY: I see, yes.
HIS HONOUR: I thought it was a finding of no objective basis, and I must say I had read it as a whole as perhaps consistent with subjective fear.
MR TRACEY: Yes.
HIS HONOUR: I acknowledge there are difficulties in the test.
MR TRACEY: Yes. Your Honour, it is perhaps sufficient for present purposes for me to submit that the tribunal went further than merely finding that this man was not a Somali national. It went past there. In those circumstances, your Honour, we say that, (a) there is no linkage in any sense that would constrain the exercise of power under 198(6), and further, that there is no inconsistency, even if we are wrong about that, in the Minister deciding that this man ought to be deported to Somalia. The logical and sensible place to deport somebody who says that he comes from that place is to that place. If that country is prepared to receive him, then so be it.
There is nothing in that process of reasoning that is in any way inconsistent with the tribunal's view that he is not a Somali national. There are many nations in this world that will accept people who are not their nationals within their borders. There is no inconsistency in that regard. The principal problem that the Minister faces of course is that there is no direct airline flight that goes from Australia to Somalia, so there has to be a staged process of repatriation and the Minister could very simply say, "We will put you a plane bound for South Africa and when you get there, you are on your own, but I have removed you." The Minister in this case has taken what we would submit are very practicable and sensible steps to ensure that this person does not end up stranded somewhere between Australia and Somalia and he is criticised for having done it.
HIS HONOUR: I must say, I am struck by the notion of employing private arrangements in South Africa, Mr Tracey, although I should say to you also that at the earlier hearing, I did mention the fact that one can now go to gaol in this state and be dealt with by private organisations; but there we are.
MR TRACEY: Your Honour, the organisation concerned is used by the South African government itself to facilitate the ‑ ‑ ‑
HIS HONOUR: What do I know about them? I know very little.
MS MORTIMER: Yes, I object, your Honour. None of this is in evidence.
HIS HONOUR: All right, Ms Mortimer. I know nothing of them, this organisation, on the evidence.
MR TRACEY: But what your Honour does know on the evidence is that this is an arrangement designed to facilitate transit in South Africa. There is no suggestion on the evidence that he is going to be admitted to South Africa and ‑ ‑ ‑
HIS HONOUR: Except this: he is going into a hotel? Does not the evidence reveal that?
MR TRACEY: Yes, your Honour. Your Honour, there is nothing inconsistent with what I have submitted and going into a hotel - there is such a facility at Perth airport that is there for just such a purpose in this country, so that people who are not a couple of hours between flights but may be there for some days between flights are not in a cell. It is a humanitarian matter and it does not involve admission into the territory of the country.
MS MORTIMER: There is no evidence of that.
MR TRACEY: Nor is there to the contrary.
HIS HONOUR: All right. I will have the submissions directed at me and one at a time, if I may.
MS MORTIMER: Sorry, your Honour.
MR TRACEY: Your Honour, for present purposes what is being attacked in any event is the exercise of the power under 198(6) which is a power of removal. Even if he was to stop in South Africa when he got there, we would submit that would not be a basis for attacking the validity of the exercise of power under 198(6) which is a power to remove from Australia.
HIS HONOUR: Is there any limit on that power?
MR TRACEY: Your Honour, it is difficult to think of one offhand, given that the concern is to get somebody who ought not to be here out of here. Your Honour, I suppose if it was proposed to remove them by putting him on a rocket directed to Mars, then there may be some sort of argument that that is not quite what was intended.
HIS HONOUR: Or the disguised extradition is the obvious case of, "Well, we know he is wanted in country X and we will just happen to deport him to country X."
MR TRACEY: Yes. But subject to those very remote examples - and we would submit nothing of similar characterisation arises in the present matter ‑ ‑ ‑
HIS HONOUR: Save this: this man on the evidence said, "Look, I am fearful of going to South Africa. I am fearful of detention there," and on the material as it now stands which is all from him, albeit including material obtained from the files of your client, what do I conclude about the matter?
MR TRACEY: Your Honour concludes that there is an assertion that he is fearful if he gets to South Africa and does not transit South Africa but stays there, that he might be put into detention. But, your Honour, that would be detention as an unlawful entrant, not for persecution or anything of that kind. Your Honour, a mere subjective fear to that effect ought not to be able to constrain the exercise of Ministerial power to remove from Australia. There is no suggestion that he is wanted in South Africa or that if he goes to South Africa, he will be sent somewhere else where he is wanted; no suggestion of anything of that kind.
HIS HONOUR: And if he were simply transiting South Africa - if he were simply transiting - that may be much less of a fear. I understand what you say about it being much more humane to take the man out of those barren transit lounges which every traveller abhors, putting him somewhere where he can have a sleep and a shower and a bite to eat, but I am struck by the oddity of those arrangements being made with a private organisation. At the moment, I have only a pretty limited account of those arrangements or what they involve and what effect they may have on this man.
MR TRACEY: Your Honour does know on the material that it is a transit arrangement because your Honour has seen the ongoing steps that pass well beyond South Africa that will get him back to Somalia.
HIS HONOUR: Yes.
MR TRACEY: So the only thing that perhaps is different from what one has struck as normal procedure in things past is that there is a private supervision of him as distinct from government supervision of him in transit in South Africa. We would say that that is a neutral consideration, your Honour. There is no suggestion that he is going to be treated any differently than he would have been treated had the supervisory authority been the government of South Africa or some of its employees. There is no suggestion that this particular organisation in any sense mistreats people in its care or anything of that kind. On the contrary ‑ ‑ ‑
HIS HONOUR: I must say I would feel a little more comfortable if somebody had actually pledged his or her oath to all of that and had provided a little information about who these people are, but perhaps these are matters that you say I should not be fussed about.
MR TRACEY: For the purposes of 198(6), your Honour, we would say that is right. Our submission is that there is just nothing remarkable about those arrangements in any event.
HIS HONOUR: I should make explicit also the fact that if at the end of all this I thought I was right to remain fussed about it, the consequence may be that the one-way ticket is issued which leaves him in transit all the way through and, "Take the transit lounges as you find them," even though that may be for three, four, five days sitting in Johannesburg, waiting for a connecting flight via Addis Ababa, etcetera.
MR TRACEY: Which would be, in our submission, a good deal worse.
HIS HONOUR: It is a Pyrrhic victory.
MR TRACEY: Then what confronts him, your Honour, is a transit stay in a hotel.
HIS HONOUR: I will refrain from exploring other urban myths about what the government is here to do for you, Mr Tracey.
MR TRACEY: If your Honour pleases. So the case insofar as it is based on 198 is summarised in paragraph 11 of our friend's submission. It is said that the arrangements that have been made would frustrate the purpose of the Act. We would submit it is precisely the opposite, your Honour. The purpose of the Act is to have removed from Australia people who have no lawful business being here and that is exactly what is being facilitated. It then says that it is not open to the Minister to act in a manner which is inconsistent with the basis on which the protection visa was refused and I have submitted to your Honour that there was no inconsistency, but in any event, it does not matter.
The third basis, it is put, is that there is no statutory power to assign or delegate that power to a third party. That has not been done, your Honour. We take it that that is a reference to arrangements made in South Africa and that happens long after removal has been effected from Australia under 198. Then (d), unreasonable ‑ ‑ ‑
HIS HONOUR: Is it, or is the process of the return of this man to Somalia a single continuous process of removal?
MR TRACEY: No.
HIS HONOUR: That is, does removal cease at the territorial limit or at the aerobridge?
MR TRACEY: It ceases at the territorial limit, save this: that there is the practical reality to which Walsh J referred in Znaty's case, that you do not put someone on a ship bound to nowhere. You know when you put the person on the ship that if all goes according to plan, then its first port of call will be so‑and‑so. In the case of a plane, it is going to be South Africa. The plane might have mechanical problems and have to put down at Mauritius or something of that kind that was wholly unexpected. One would not say in those circumstances that removal from Australia had not been effected because the plane has gone somewhere other than where it was anticipated when it has left. What is critical is that the person be taken beyond Australian territorial limits.
What happens thereafter is a matter that plainly has a linkage to the original departure from Australia but is not necessarily linked in such a way, such that if something goes wrong at one of those later stages that it can be said that the exercise of power under 198 has miscarried.
Your Honour, that leaves the suggestion of unreasonableness and we simply do not understand that that advances a separate ground. Insofar as it has got any bearing on the matter, it is presumably a catch‑all proposition, but we have not heard anything agitated that would suggest it is put on a basis other than what has gone before. So we submit that there is simply not a fairly arguable case in respect to the 198 point; a fortiori, that argument is made in respect of the attack on the tribunal.
The tribunal decision, as your Honour has noted, was handed down over a year ago. The applicant was represented by a firm of solicitors before the tribunal and was in receipt of legal advice at the time, so there is in our respectful submission no basis for submitting that the delay is attributable to a lack of legal advice.
The attack that is made on the tribunal is, we would submit, an attack on its factual findings which, as this court has held in many cases, is not an appropriate course. I would simply refer your Honour to Wu Shan Liang and to what his Honour, the recently retired Chief Justice said in Quinn's case as to the inappropriateness of the court allowing such attacks to be made. The attacks are identified at paragraph 14 of our friend's submissions. There is said to be a failure to find necessary facts and we understand that to be an attack on the inability of the tribunal on the evidence before it to identify a country of nationality or habitual residence. Your Honour, the tribunal of course had to act on that evidence that was before it and it did not accept what the applicant had to say in relation to those matters. It had nothing else to assist it. Our friend's complaint really amounts to a suggestion that it should have guessed and that would not have been appropriate. It made those findings as it was able, on the facts before it.
It is then said that the tribunal failed to exercise jurisdiction under section 414 of the Act and that is said to arise from the fact that the tribunal did not deal with the membership of a particular social club, namely a clan issue. Your Honour, a fair reading of the tribunal's reasons show that it did just that because immediately below the paragraph that introduced the findings which really summarised the findings, the tribunal went on immediately to deal with the clan issue and did so over onto the following page. Not only that, but the tribunal had earlier acknowledged those claims as having been made on behalf of the applicant, so there was no overlooking that issue, much less a failure of jurisdiction in dealing with it.
It is then said that there was a failure to take relevant considerations into account - and the list does not purport to be comprehensive - but includes, so it is said, evidence which established that the prosecutor was a Somali national. That is the evidence, we are told, that he spoke Somali and that is acknowledged in the reasons. It was not overlooked, it just did not lead to the conclusion that the applicant would have wished the tribunal to make. Next, that the applicant spoke Somali - that is the same point, put somewhat more specifically - was taken into account.
Then there is the suggestion that there was the adoption of findings made as to credibility from an earlier decision. Now, your Honour will make the comparison but we are much puzzled by that submission. As we understand it, it is a complaint that points to some similarity of language used in the decision under present consideration at the penultimate page of the reasons - my copy is not numbered - but it is the third full paragraph on the penultimate page and it starts:
That is, in this case, the tribunal has a positive state of disbelief.
That comparison is then made with page 8 of 10. That was a decision in which the same member dealt with another application some fortnight or so earlier which starts in the same way but finishes very differently. The applicant is said in each case to have provided claims which were vague and inconsistent with the information that had been provided to the department at interviews in the case with which comparison is being made. The inconsistency is said to arise in the present matter between information that had been provided to the department and to the tribunal; no reference to interviews.
Then there is specific reference in both matters to the type of detail that the applicant was unable to recall which is case specific and has no commonality at all. So we are much perplexed to see how it can be put to your Honour that because the tribunal member had used words - and your Honour will bear in mind that the opening words of the paragraphs flow from what had been said where he had directed himself consistently with what had been said by Foster J in Guo Wei Rong. He paraphrases that in directing himself and then becomes case specific. How in those circumstances it can be put that in the present case, that necessitated the member to say to the applicant, "Look, I am going to make a finding in your case like this one that I made a fortnight ago," and give him the opportunity to comment on it is, in our respectful submission, to put it mildly, a submission that would have difficulty finding favour with the Court.
Your Honour, that is the basis of the attack on the tribunal and its findings and our respectful submission is that there is nothing in it. Nothing is said to your Honour in relation to the other two points that are raised by the draft order nisi, the 48B and the 417 points. Your Honour, with respect, that is hardly surprising, given that both those provisions specifically contain within them the provision that the Minister does not have a duty to consider any application made under those provisions. So if he says, "I am not going to exercise my powers," there is hardly any scope, if any, for it to be put that he has erred in doing exactly what the legislation contemplates that he is entitled to do.
Your Honour, that leaves us with the remittal matter. Our principal submission is that there is nothing to remit, that these matters ought to be terminated this morning by an order of your Honour dismissing the application. Your Honour, the alternative submissions are that there should be remittal, rather than retention in this Court. The reason for that is that firstly, the matter is something that can properly and adequately be dealt with in the Federal Court, at least insofar as the 198 point is concerned.
HIS HONOUR: Do you make any submission about whether remitter of the 198 point would lead to any curtailment of powers in the Federal Court?
MR TRACEY: Yes, your Honour. The submission is that the Court would not be constrained and there is therefore no detriment that would be occasioned by remitting that part of the matter.
HIS HONOUR: Other considerations would arise if I were to remit the RRT aspect of the matter?
MR TRACEY: Yes, there would be difficulties there, your Honour, on Abebe. Your Honour, it would nonetheless not be an unprecedented step for a judge of this Court to split a matter and leave the part that is associated with the difficulty in the Court on a holding basis whilst the part of it that could be argued without disability to the applicant was proceeded with in the Federal Court. His Honour Gummow J has done that on at least two occasions.
The only other submission that we would make is that if your Honour was against us on those matters, that the appropriate order would be an order of the kind that was made in Abebe; rather than your Honour making orders nisi, your Honour making an order that an application be made on notice to a Full Bench of the Court. Unless there are any other matters, your Honour, they are the submissions for the Minister.
HIS HONOUR: Thank you, Mr Tracey. Ms Mortimer?
MS MORTIMER: Your Honour, I will just hop out of order a little bit. In relation to my learned friend's submission about the prospect of the matter being split as between this court and the Federal Court, I can indicate to your Honour we do not object to that course if your Honour is minded to undertake that.
Your Honour, my learned friend put it to your Honour that the RRT had made findings other than those in relation to identity and nationality. Our submission is that there is nothing more in this decision in relation to well‑founded fear than a bare finding. There is no analysis of that at all. The whole decision stands or falls on the identity and nationality issues and all that the tribunal member has done at the end is to round it off by saying that there is no well‑founded fear of persecution. In fact, it is difficult, your Honour, to see how that finding can consistently be made if there has been a denial of identity and nationality because the question in relation to well‑founded fear of persecution has to be asked in relation to one's country of nationality and habitual residence and if there has been a finding that a person is not a national of country X, it is difficult to see how any findings about well‑founded fear of persecution, in accordance with the way the Convention is to be approached, can actually be made. So our submission is that no notice can be taken of that finding. It is illogical.
In relation to what my learned friend said about the arrangements to remove Mr Farah to South Africa, our submission, your Honour, is that there is absolutely no evidence before your Honour at all about that. There is no evidence about what kind of hotel he is going to. There is no evidence about the kind of custody that he is going to be in, but there is evidence, your Honour, that he is going to be in some kind of custody. There is no evidence about whether the person that is guarding him is military or police or is armed. That is an important consideration. There is no evidence to contradict Mr Farah's fear about what is going to happen to him in South Africa and there is evidence that there does not appear to be any constraint in a practical sense that is exercised over what the South African company does. There is nothing in the correspondence that indicates any conditions in the contract between the Australian government and this organisation about what it can and cannot do. There are no conditions about minimum treatment or where Mr Farah is to be kept or what is to happen to him. So there does not appear to be any contractual constraints on how he is to be treated at all.
My learned friend put to your Honour that there is no suggestion of mistreatment. Our answer to that is that we are not in a position to provide that evidence and the Minister is. My learned friend put to your Honour that there is no inconsistency between the decision of the RRT and the process proposed to be undertaken to get Mr Farah back to Somalia. In our submission there is a clear inconsistency and that derives from the positive assertions that have been required to be made that this man is a Somali national.
In my primary submissions, I put to your Honour that there is a fundamental problem between, in a beneficial aspect of the Act, making a finding against a person and - in a part of the Act that affects the person detrimentally and possibly as a threat to his personal safety - making the opposite finding and making a positive assertion that he is a Somali national. In my submission, that is a fundamental inconsistency that ought not be allowed to stand and if there is a preference, then it has to be in our submission one that will assist in the fulfilment of the protection obligations that Australia has; because the opposite, to allow the inconsistency to stand, is one that exposes people like Mr Farah to danger.
My learned friend put to your Honour, I believe in answer to your Honour's question, that the removal ceases at the territorial limit. If my friend is correct about that, then our question is, "How is there after that a power to detain or an assertion of a delegation or an assignment of the power to detain to private individuals in South Africa?"
My learned friend also put to your Honour that the removal power is almost unlimited, aside from examples about delivery into outer space. In my submission, again that is not a proposition that your Honour ought to accept. The manner in which the power has to be exercised again is constrained by the adoption by Australia of the Refugees Convention and other human rights instruments, so that if one were to posit a different kind of example from this, it is equally open in my submission to argument that delivery of a person into the middle of a war zone - that is, literally dropping a person into a place where he or she will get shot as soon as they hit the ground - could not possibly be construed as the lawful exercise of a power to remove because the probability of infringing a person's right to life and liberty is so high that that can't possibly be a lawful exercise of the power to remove. So in my submission the constraints that might go with that power have to be viewed in the context of 1998 and the obligations internationally that Australia has undertaken.
My learned friend put to your Honour that Mr Farah had had legal advice at the RRT and that that, as I understood it, somehow imposed a legitimacy on the decision that ought to weigh on your Honour's discretion or that he had his chance and had his chance, legally represented.
HIS HONOUR: No, I understood the argument to be that the delay was then inexcusable because he had been advised during and immediately after the RRT.
MS MORTIMER: I would direct your Honour's attention to paragraph 4 of Mr Farah's affidavit where he specifically deposes to the fact that he was not advised of his right to appeal the decision to the Federal Court, that he was told he could write to the Minister and ask him to intervene on humanitarian grounds or lodge a second application and that he was not told until around July 1997 that perhaps he could appeal and he was then later told that it was too late.
HIS HONOUR: July 1997 he is told of a right of appeal and we are now at June 1998.
MS MORTIMER: That was a right of appeal to the Federal Court which is specifically constrained in the legislation. Your Honour, my learned friend put an argument to you about the effect of section 48B and section 417 in relation to what the Minister's obligations are under that. Of course it is obvious from the terms of those sections that the Minister specifically does not have a duty to consider, but we say in this case he did consider and that is apparent from the terms of his letter, that he had considered it and he rejected it. So that we are one step on from the exception, the statutory exception, and in those circumstances it is our submission that if the Minister decides in his complete discretion to undertake a reconsideration, then he must do so lawfully and he must do so reasonably and all the other consequences that flow from that. So we say that what my learned friend put to your Honour is not to the point because we are one step further down the track from that. Does your Honour require me to address you in relation to the injunction?
HIS HONOUR: I want to give some thought to what I do in this matter. At the moment I am minded to put the matter over until 3 o'clock this afternoon but it would assist me to know the attitude of the prosecutor in these circumstances. If I were of the view that the particular method of removal that is chosen, including as it does the South African component, was a matter about which an arguable challenge might be made, but if I were of the view that no arguable case had been made out which would preclude the removal of this man to Somalia so that we were concerned only with the particular method and not the outcome, would you press for injunction, for a consequence of pressing for injunction may be that the man is given a one‑way ticket and left in transit for as long as it takes. Those are matters that it would assist me to know.
MS MORTIMER: Your Honour, may I just clarify? Does that scenario contemplate that no order nisi would be made?
HIS HONOUR: It contemplates that an order nisi would go challenging the particular method chosen to remove the man. It would say nothing about the fact of removal generally but the method of removal would be that which gave rise to the challenge and it may leave open the possibility then of the adoption of other means of removal to the same effect. If that is not something that you would wish to countenance, then it would help me to know it. If you are going to tell me, "Look, I do not want an injunction that goes only to this particular method because the alternatives are too horrid to contemplate, I will take this method rather than the alternatives," that is one case.
MS MORTIMER: Yes, I will take some instructions, your Honour.
HIS HONOUR: Yes. Those are matters on which you may wish to have a little time to obtain instructions. I think the best course would be if I say that I will stand it over until 3 pm and I would hope that I will be in a position to give judgment then. But before I do so it may be of help if you could tell me what your then instructions are on that question I have just raised.
MS MORTIMER: Yes, your Honour, if your Honour pleases.
HIS HONOUR: Stand the matter over until 3 pm and adjourn until that time.
ADJOURNED [11.45 am]
RESUMED [3.05 pm]
HIS HONOUR: Ms Mortimer, I understand you wanted to add something?
MS MORTIMER: Yes, if your Honour pleases, I would like to make a very brief submission about whether an injunction should go, just to address your Honour very briefly on the serious question issue because I do not believe I actually put it in those terms this morning.
Your Honour, our submission is that in relation to the issue about section 198, the issue about the construction of that section and the width of the discretion is, as a whole, a serious question because whether one looks at the issue in terms of whether the particular method employed in this case is lawful or not, even the determination of that question will, your Honour, involve a consideration of the width of section 198, that is, what is a Minister able to do in exercising the power to remove. So in our submission it is appropriate that the whole question of the construction of section 198 be considered as the serious question to be tried in relation to our application for an injunction and that it be considered as having two limbs; that is, first, the existence of the method of removal and secondly, the inconsistency.
In relation to the inconsistency, I did want to draw your Honour's attention - and I am sure your Honour is familiar with it - but with what his Honour Brennan J said in Drake about inconsistency. I have a copy here but perhaps I do not need to hand it up to your Honour.
HIS HONOUR: No, if you could please.
MS MORTIMER: That was a case about deportation but it was concerned with policy and guidelines. But what his Honour said at the bottom of page 639 was:
Inconsistency is not merely inelegant. It brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with the commonly accepted notions of justice.
His Honour goes on to say how in the case of deportation, inconsistency ought to be reduced as far as possible. That in our submission suggests that not only is it undesirable, but it might be demonstrative of an error of law. The problem in this case is that at the moment it is impossible to tell, because this decision or these decisions suffer from a lack of positive findings. There is a lack of positive findings in the RRT and there is a lack of positive findings in particular in relation to the Minister, so that as the matter stands before your Honour, there is no explanation for the inconsistency. On that basis in our submission we are able to demonstrate that the mere fact that there is an inconsistency on such a fundamental issue as this person's nationality means that there is an arguable case and a serious question to be tried about whether the existence of that inconsistency can be said to be demonstrative of an error of law. We would urge on your Honour that the whole of the question about section 198 be considered as a serious question and if there is any question about remittal, that the matter be remitted as a whole in relation to section 198 to the Federal Court.
HIS HONOUR: But that presupposes, does it not, that order nisi goes on several grounds? Unless the grounds are specified in the order nisi in a way that raises what you have described as being the whole of the section 198 issue, there is nothing to remit.
MS MORTIMER: That is so.
HIS HONOUR: You have to make out your grounds. If, for example, I was satisfied of the existence of an arguable basis for one ground but not another, why should I remit on that other ground as well as the former? Is that not, in essence, what you are contending I should do?
MS MORTIMER: My submission, your Honour, is that it is very difficult in looking at section 198, devoid of any authority on that provision, to determine that there is an arguable question in relation to the exercise of the discretion as to method and yet to determine that there is no arguable question in relation to the existence of an inconsistency. In my submission, your Honour, the threshold we have to meet today before your Honour is comparatively low. It need only be arguable. If it is arguable as to one, we say it should be arguable as to both.
HIS HONOUR: I understand that, yes.
MS MORTIMER: If your Honour pleases.
HIS HONOUR: Mr Tracey, do you have a reply?
MR TRACEY: Two short matters in reply, if I may, your Honour. The first is that our friend's submission rather sounds like an invitation to the Court to do something that it has steadfastly set its face against doing, namely, providing an advisory opinion on what 198(6) means and what its limits are. We would submit that whatever may be a vehicle that might induce the Court to do that, this is not it.
The second point, your Honour, relates to the inconsistency argument. Your Honour, the inconsistency argument that was dealt with by his Honour Brennan J in Drake was merits inconsistency and the context was whether or not it was permissible for the Minister to lay down policy guidelines for the benefit of his delegates in order to achieve a measure of consistency in decisions. It was in that context that his Honour said:
Inconsistency is not merely inelegant.
He was not talking about legal error and he was not suggesting - nor one imagines would he have been disposed to, given his observations in Quinn - to say that even if there was merits inconsistency between two cases, that would have constituted an error of law; on the contrary. But for present purposes, it is enough to submit to your Honour that the context was not a context in which his Honour was suggesting that inconsistency was a legal error; rather, he was justifying the existence of a policy which was designed to overcome that problem, if your Honour pleases.
HIS HONOUR: Thank you. Mohamed Nasir Farah applies for orders nisi for writs of prohibition and certiorari directed to the Minister for Immigration and Multicultural Affairs and to Dominic Calabro in his capacity as a member of the Refugee Review Tribunal.
Mr Farah seeks to challenge four decisions, a decision made under section 198(6) of the Migration Act 1958, "the Act", to remove him from this country, a decision of the Refugee Review Tribunal made on 22 May 1997 that it was not satisfied that he is a refugee and affirming the decision not to grant him a protection visa, a decision of the Minister not to exercise his powers under section 44B of the Act and a decision of the Minister not to exercise his powers under section 417 of the Act.
Before dealing with the grounds on which it is sought to challenge these decisions, it is as well to say something further about the history of the matter. Mr Farah arrived in Australia on a false passport in early 1996. He applied for refugee status on 18 April 1996. That application was rejected on 12 December 1996 and on 31 December 1996 he applied to the Refugee Review Tribunal for review. That application was refused on 22 May 1997.
He asked the Minister to exercise his powers under section 48B of the Act and under section 417 of the Act but the Minister has refused to do so. On 5 June this year, Mr Farah was told that on 9 June, he was to be removed to Somalia via South Africa. On 9 June, he instituted proceedings seeking orders nisi and he sought injunctions preventing his removal pending determination of his application for orders nisi. I granted an injunction preventing his removal before 4.15 pm today or further order.
Mr Farah claims to be a Somali national who was born in Mogadishu. The Refugee Review Tribunal found that it had "a positive state of disbelief" that Mr Farah is from Somalia and found "that any claims he had made in regard to the country are not credible". The tribunal said also that it was "in a positive state of disbelief in regard to the applicant's identity". It went on to say:
The applicant provided claims which were vague and inconsistent with the information he had provided to the department and to the tribunal. His inability to recall details of his clan affiliations are not as a result of any injury or trauma he claims to have sustained but are as a result of his lack of credibility. The applicant was unable to provide any great detail as to his clan or clan connections to the primary decision-maker. The applicant was also unable to provide any credible or plausible explanation on how he came to Australia, what passport he travelled on and what airline he came here on. While this information on how he came to Australia etcetera is not necessarily relevant to an applicant's claim for protection, it is relevant in the sense that it provides the decision-maker with some information and can lead to a finding about the applicant's credibility.
The tribunal concluded its reasons, saying amongst other things that:
Having regard to my findings above, I find that the applicant is not who he says he is. I also find that he does not have a well-founded fear of being persecuted in Somalia. The applicant has not put forward any claims in regard to a well‑founded fear of any other country.
Accordingly, the tribunal concluded that there is not a real chance that he will be persecuted for a convention reason should he return to Somalia. Of the four decisions which it is sought to challenge, attention was directed principally to the decision to remove and to the decision of the tribunal. I will deal with those in turn.
The decision to remove
Two aspects of this decision were challenged, the decision to remove to the destination of Somalia and the decision to effect that removal by the particular methods that have been foreshadowed. In support of the first contention it was submitted that there was an inconsistency between deciding to remove Mr Farah to Somalia and doing so on a basis that the Refugee Review Tribunal had decided that he is not entitled to protection as a refugee because he is not who he says he is and is not a Somali national.
The argument advanced in this respect has several elements which should be identified. First, it was submitted that a decision to remove an unlawful non‑citizen under section 198(6) of the Act necessarily involves a decision identifying a method of removal and a destination for the removal. Secondly, so the argument went, those decisions must be taken reasonably and having regard to Australia's various obligations. Thirdly, it was contended that to remove a person to a place with which it had been found he was not connected was a decision that was unreasonable and would in this case breach Australia's obligations to afford protection to refugees.
For the purposes of argument I am content to assume, without deciding, that the first two steps in the argument are well‑founded. But even accepting that that is so, the third step in the argument is one which in my opinion is not capable of being made out. It is, in my view, not unreasonable to send an unlawful non‑citizen to a country with which that person claims connection even if the claim of connection is disbelieved. At that level, the question of connection becomes more a matter for the receiving country than it is for Australia as the country from which the removal is to be effected. There is here, in my opinion, no inconsistency of the kind adverted to by Brennan J in Re Drake (No 2) (1979) 2 Administrative Law Decisions 634. Nor, in my view, is it arguable that there was some obligation on the tribunal or on the migration authorities more generally to seek to make some positive finding of what was the nationality of Mr Farah once his assertion about nationality was disbelieved.
There is no lack of logic in concluding that an assertion made by Mr Farah is not to be accepted, even if there is no competing specific hypothesis that is advanced or falls for consideration, and yet in the end that was a critical step in the applicant's contention. In my view, it was open to the tribunal to disbelieve what Mr Farah said about his place of birth, even though no other possible candidate as place of birth or residence was mentioned in the proceedings before the tribunal.
That being so, it is, in my view, not arguable that it was not open to the removing authorities to remove him to a country with which he claims to have a connection, even though that claim is disbelieved. Indeed, to conclude otherwise would mean that a person in the position of Mr Farah could not be removed at all until some finding is made about his true country of origin. Nor do I accept that it is arguable that there is some relevant inconsistency in the authorities seeking and obtaining travel documents to facilitate the removal of Mr Farah which are documents that are predicated upon his claim to be a Somali. Those documents owe their form to the claim which he has made, not to any attitude adopted by Australian authorities. Thus, insofar as the challenge is sought to be mounted to Somalia as a destination for removal, I regard the challenge as one which is not arguable.
Method of removal
The question of method of removal is more troubling. The evidence about what is proposed in this respect is all from the applicant and is at best exiguous. That that is so, is not to be seen as attributing in any way fault to the applicant or to those advising him. It is the circumstance in which he finds himself. No further evidence or explanation has yet been advanced on behalf of the Minister and accordingly this application must fall for determination on the basis of the evidence thus far advanced. That evidence (which consists mostly of material obtained from inspection of departmental files) shows, amongst other things, that on 10 February 1998 an officer of the Minister's department wrote to "The Manager, Fidelity Guards, Johannesburg, South Africa," seeking assistance:
Following the successful movement of several people from Australia to their countries of origin in Africa by your company -
the letter sought a quotation for the cost of repatriating Mr Farah to his country of origin:
If he was to be flown to Johannesburg on an Australian certificate of identity using our own escorts -
this inquiry appears to have provoked a response from a company called P & I Associates International Pty Ltd. Omitting the financial details, that letter reads:
1. I refer to your fax of 12 February 1998 in the above regard, and would like to thank you for considering our services.
2. In connection with the documentation of a Somali citizen we need the deportee to complete a questionnaire supplied by us as well as two passport photo's. This will enable us to procure his emergency travel documents before his arrival in Johannesburg. Attached to this memo is a copy of such a questionnaire. It would be appreciated if Mr Farah could complete the questionnaire as comprehensively as possible. When completed could you courier the document as well as two passport photo's to our address.
3. Our quotation for the total repatriation exercise, procurement of documentation etcetera is as follows:-
Direct Expenses
Procurement of travel document
Air tickets
1 x Escort - JHB-ADDIS ABABA-DUBAI-JHB2 x Deportee - JBH-ADDIS ABABA-DUBAI-DJIBOUTI
BASASOAccommodation/Meals 1x Escort Addis Ababa-Dubai
Medical Insurance 1 x Escort
Facilitation
Transit Hotel : Accommodation/Meals 1 x deportee and JBH
International Airport - Min 6 days - Max 14 days @ ... per 24 hoursGuarding of deportee at Transit Hotel @ ... per 24 hours
Assistance at aircraft upon arrival and departure
Office administration/Telecommunications (regional and international)
Management and escort fees
6% Airport licence fee
4. The quotation above does not include any unforseen expenses ie: Medical attention for the deportee or in the case of medical assistance being required during deportation, or any changes made to the route of flights to his final destination. Any rebate on air tickets, guarding or accommodation will be passed on to you. The quotation is in Australian dollars.
Although the evidence reveals the giving of this quotation, it does not reveal what, if any, terms have been agreed between the company and the department, nor does it reveal the exact nature of the arrangements that are proposed. It may be noted, however, that the language of the quotation is consistent with Mr Farah being taken in the custody of a private organisation into South Africa and being held there in custody pending his travelling on to Somalia via Addis Ababa and Djibouti. Such evidence as there is does suggest that the services of this company have been retained and will, unless the respondent is restrained, be used to effect the removal of Mr Farah from Australia to Somalia.
In my opinion, an order nisi should go on the third of the grounds proposed by the applicant in the draft order nisi, namely that:
The proposed exercise by the Minister, his servants and agents of the duty to remove the prosecutor from Australia pursuant to section 198 of the Migration Act and to direct that (a) the prosecutor be delivered into the custody of a third party in South Africa and (b) from there be sent to Somalia, is unlawful in that it is an unreasonable exercise of the power, alternatively duty, to remove non-citizens under section 198 of the Act. Alternatively, the directions are ultra vires the power conferred by section 198.
Injunction should also go to preclude his removal by this method. It is, however, important to note that the challenge being one about the lawfulness of the method of removal, the injunction would be limited to restraining removal in the way now proposed or in ways similar to that effect.
The challenge to the tribunal decision
The challenge that it is now sought to mount is instituted more than one year after the decision was given. The decision was given in a matter in which the applicant had the benefit of advice, advice which continued, so it seems, until after the decision had been given, for his evidence is that he was advised about his rights after the giving of the decision. Even if the applicant were able to surmount the difficulties that this tardiness now presents, the proposed grounds of challenge are, in my opinion, not grounds that are arguable.
It is suggested that the decision of the tribunal was unreasonable and was made without taking account of relevant matters. As I have already held, I do not consider that unreasonableness is shown by pointing out that the rejection of Mr Farah's claim that he is a Somali national was made in the absence of some specific competing hypothesis. In the end, the reasons of the tribunal, when read as a whole, reveal a decision based on an assessment of the credibility of Mr Farah. It was a decision that was made, taking account of matters such as his use of the Somali language, a matter on which his counsel now sought to place some emphasis.
I do not accept that it is arguable that the tribunal made some impermissible use of an earlier decision that it had made. Although some similarity of language, perhaps identity of language, can be detected in the two decisions, it is, in my view, not arguable that there was some unthinking transposition of findings on the credibility of one applicant to the case of Mr Farah. I will not grant an order nisi to challenge the decision of the Refugee Review Tribunal, nor in all the circumstances do I consider that a case is made out to challenge the Minister's decisions under sections 44B or 417.
Given then that the order nisi which I would be minded to grant is an order confined to a decision which is not a judicially reviewable decision under Part 8 of the Act, I see no reason not to remit further proceedings in the matter to the Federal Court. Indeed, as I understood it, counsel for the Minister accepted that the limitations which Part 8 seeks to impose on the review of certain decisions are limitations that would not apply to the proceeding constituted in the fashion that I have indicated.
Subject then to anything that counsel may say about the form of the orders, I would propose orders in the following terms:
The Minister, whether by himself, his servants or agents or howsoever otherwise, is restrained until the hearing and determination of the order nisi or further order by a judge of the Federal Court of Australia from removing Mohamed Nasir Farah from Australia by means which include delivering him into the custody of Fidelity Guards, P & I Associates International Pty Ltd or any other third party outside Australia.
There be an order nisi directed to the Minister in common form on the single ground that I have earlier mentioned.
Further proceedings be remitted to the Federal Court of Australia.
The costs to date be costs in the proceeding.
I would certify for counsel.
Ms Mortimer, do you wish to be heard on the form of the orders that I have proposed?
MS MORTIMER: Just in relation to one matter, your Honour. In my submission, given the injunction is not complete in relation to removal, it would be appropriate for the order to include an order to the effect that the Minister give 72 hours' notice to the solicitors of the applicant in relation to any proposed removal from Australia.
HIS HONOUR: Let me just see if I can formulate what you are asking so we can then hear usefully from Mr Tracey.
MS MORTIMER: Yes, your Honour.
HIS HONOUR: That the Minister give not less than 72 hours' notice in writing to the solicitor for the prosecutor of his intention to remove the prosecutor from Australia, specifying the method of removal proposed. Does that capture what you contend for?
MS MORTIMER: Yes, it does, your Honour. Thank you very much. Yes, that is what I submit ought to be included.
HIS HONOUR: Mr Tracey, what do you say, firstly, about the orders in the form I had proposed and then, secondly, as to Ms Mortimer's proposed addition?
MR TRACEY: We would not suggest any amendments to your Honour's proposed orders. In respect to our learned friend's application, your Honour, I am instructed that it is the normal course - as indeed your Honour has seen in this case - for 48 hours' notice to be given to an applicant, not only of the proposed removal, but as to the manner in which that is to be effected. So on my instructions, we would not raise any objection to such an order, provided it was confined to 48 hours.
HIS HONOUR: We are not going to break our hearts over 48 or 72, are we, Ms Mortimer, or are we?
MS MORTIMER: We might lose a bit of sleep, your Honour, that is all.
HIS HONOUR: It is at that stage a judge should intervene and say, "Yes, that is what counsel do," is it not, Ms Mortimer?
MS MORTIMER: I suppose so, your Honour, yes.
HIS HONOUR: Yes, but that suggests that I have forgotten what it was like and I regret to say I have not.
MS MORTIMER: Does that mean I get 72 hours, your Honour?
HIS HONOUR: No, Ms Mortimer, I regret to tell you. It just means you get 48, but my sympathy, and I am sure you will feel much better for that.
MS MORTIMER: Thank you very much, your Honour.
HIS HONOUR: There will then be orders in the terms I have proposed, but just so that people might have an opportunity to note them again, I will read them again:
The Minister, whether by himself, his servants or agents or howsoever otherwise, is restrained until the hearing and determination of the order nisi or further order by a judge of the Federal Court of Australia from removing Mohamed Nasir Farah from Australia by means which include delivering him into the custody of Fidelity Guards, P & I Associates International Pty Ltd or any other third party outside Australia.
Might I interject, Mr Tracey. Is there any difficulty about directing this order about timing to the Minister? Is it better that it go to the Minister or his officers or ‑ ‑ ‑
MR TRACEY: No, I think the Minister, your Honour, that would embrace ‑ ‑ ‑
HIS HONOUR: You raise no difficulty about my directing it in that form?
MR TRACEY: No, your Honour.
HIS HONOUR: Yes, very well.
The Minister give not less than 48 hours' notice in writing to the solicitor for the prosecutor of any intention to remove the prosecutor from Australia, specifying the method of removal proposed.
There will be an order nisi directed to the Minister in common form on the single ground that I have mentioned in my reasons which is ground 3 in the proposed form.
Further proceedings remitted to the Federal Court.
Costs to date costs in the proceeding.
Certify for counsel.
Counsel will no doubt understand if I say that the reasons that I have given orally are subject to revision when I see the transcript.
MS MORTIMER: If your Honour pleases.
HIS HONOUR: Subject to that, I will adjourn.
MATTER ADJOURNED AT 3.40 PM INDEFINITELY
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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