NAQK v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1360

FEDERAL COURT OF AUSTRALIA

NAQK v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1360

NAQK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N607 of 2003

MADGWICK J
11 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N607 of 2003

BETWEEN:	NAQK APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	11 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Insofar as the principal proceedings depend on an alleged breach of Australia's international obligations under Article 33 of the Refugees Convention, they are dismissed.

2.Otherwise the notice of motion is dismissed.

3.The parties are to submit to chambers draft short minutes of directions in relation to the final hearing and the remaining issues.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N607 of 2003

BETWEEN:	NAQK APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	11 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. In this matter the respondent in the principal proceedings has sought to have those proceedings dismissed on the basis that no reasonable cause of action is disclosed.  The principal proceedings claim, among other things, an injunction restraining the respondent from returning the applicant to Iran.  The statement of claim alleges that the applicant is a citizen of Iran who is present in Australia and whom the respondent threatens and intends to return to Iran.  It is also said that his return to Iran would involve Australia being in breach of Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.  Opened for signature at New York, 10 December 1984 (entered into force in Australia 7 September 1989).  That Article provides:

   ‘1.No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he [sic] would be in danger of being subjected to torture.

   2.For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.’

2. The essence of the respondent’s argument is that ss 200 and 206 of the Migration Act 1958 (Cth) (‘the Act’) and associated legislation comprise a statutory scheme, such that the sole time and place for a consideration of:

   (a)whether the claim to fear torture having any substance;  and

   (b)any purported breach of Australia’s obligations under international law is when the Minister makes his decision to order or not to order deportation under s 200 or makes the decision contemplated by s 206, or declines to make it, to revoke an order of deportation which he or she has previously made. Section 206, it is said, is in mandatory non-discretionary terms and simply provides for the carrying into effect of the Minister’s deportation decision. The Minister draws comfort from M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 290 (‘M38’).

3. The applicant in the principal proceedings, whom I will call the applicant, says that an order for deportation is one thing, and deportation to a particular destination is another; there has necessarily been a decision by somebody (on the facts that I am to assume, namely that the allegations in the statement of claim have been made out) to deport the applicant back to Iran where he will face Convention-banned torture.  The applicant says that in NATB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 185, a decision given after M38, it was thought that the very provisions in consideration in M38, namely ss 196 and 198(6), would arguably have a different operation in the case of the Torture Convention, than in the case of the Refugees Convention. 

4. The Minister responds that, even if that were so, s 198(6) removal does not imply an earlier administrative procedure in which questions of contravention of the Torture Convention might be considered, whereas ss 200 and 206 do.

5. As presently advised, it seems to me that the Minister has a strong argument but it may be that the law is still in the process of being worked out in this area and I do not feel that the applicant is without an argument worthy of engaging the Court in a final hearing, even if as presently advised, that argument appears slender. 

6. Accordingly the notice of motion will, to that extent, be dismissed.  I understand that the principal proceedings are now to proceed only on the question of contravention of the Torture Convention.  Nothing else has been suggested before me to be arguable, nor does it appear to me to be arguable, in spite of M38.  While the submissions made in support of a distinction from M38 in relation to the Refugees Convention were not resolved, I think they are unarguable and I accordingly strike out the statement of claim insofar as it is based on anything other than the Torture Convention. 

7. The costs of the notice of motion are reserved.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             2 December 2003

Solicitor for the Applicant:	Mr Hodges
Counsel for the Respondent:	Mr Wigney
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 November 2003
Date of Judgment:	11 November 2003