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Letter to the Minister advising not to deport a client
Dear Minister
Re: XXX
I act for XXX, an YYY national currently held in ZZZ detention centre.
I understand from recent news reports that you have reached agreement with the government of YYY to repatriate YYY nationals to YYY against their will.
XXX is a person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is unwilling to return to Iran. If he is returned there, his/her life or freedom will be threatened on account of his/her race, religion, nationality, membership of a particular social group or political opinion. [modify previous paragraph to accord with circumstances]
If you return XXX to YYY, it will amount to refoulement contrary to Australia’s obligations under the Convention Relating to the Status of Refugees 1951 and the 1967 Protocol. Please give your written undertaking within 3 business days that you will not return XXX to Iran. Unless I receive that undertaking, I will seek injunctive relief without further notice.
IN THE FEDERAL COURT ) OF AUSTRALIA ) ) DISTRICT REGISTRY ) GENERAL DIVISION ) . of 2004
B E T W E E N :
* Applicant - and -
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
SUBMISSIONS IN SUPPORT OF APPLICATION FOR JUDICIAL REVIEW (JURISDICTIONAL ERROR) Remedy sought:
The applicant seeks judicial review of the decision made on * by a delegate of the Respondent to refuse to grant the applicant a visa in * class, a decision made on * to *.
In the meantime the applicant seeks an injunction against the respondent to preserve the status quo pending determination of her application. 1 History of the matter … If the injunction is not granted the applicant will be forced to *. The decisions On * a delegate of the respondent made a decision to refuse to *. Pursuant to that decision on * a delegate of the respondent *.
Jurisdiction of Federal Court:
Section 474 of the Migration Act 1958 (Cth) defines a “privative clause decision” to mean “a decision of an administrative character made … under this Act … other than a decision referred to in subsection (4) or (5)”. Subsections (4) and (5) do not appear to be applicable to the applicant’s case.
Accordingly the decision that was made concerning the applicant was a “privative clause decision” if made under the Migration Act. Section 474(1) provides that a privative clause decision is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called in question in any court, and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. Section 474 of the Migration Act 1958 (Cth) does not preclude from judicial review a decision that involves a failure to exercise jurisdiction, acting in excess of jurisdiction conferred by the Act, or failure to comply with the principles of natural justice: Plaintiff S157/2002 -v- Commonwealth of Australia (2003) 195 ALR 24. Further, section 474 cannot oust the jurisdiction conferred on the High Court by section 75(v) of the Constitution.
Section 75(v) confers upon the High Court, as part of its original jurisdiction, jurisdiction in all matters in which a writ of mandamus, or prohibition, or an injunction, is sought against an officer of the Commonwealth. Section 39B(1) of the Judiciary Act 1903 (Cth) confers upon the Federal Court jurisdiction that is identical to the jurisdiction vested in the High Court by section 75(v).
Limits on the Federal Court’s jurisdiction under section 39B(1) of the Judiciary Act 1903 are imposed by section 476 of the Migration Act 1958. The Court does not have jurisdiction over a privative clause decision that is reviewable by the Migration Review Tribunal.
The Federal Court has jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth if the matter concerns a decision that was not made “under” the Migration Act 1958 by reason of failure to exercise jurisdiction, acting in excess of jurisdiction conferred by the Act, or a failure to comply with the principles of natural justice. See eg WAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 93.
Jurisdiction Error:
There may be a jurisdictional error that invalidates a decision where the decision maker identifies a wrong issue, asked the wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion: Craig v- South Australia (1994) 184 CLR 163, 179.
Whether there is any evidence at all of a particular fact is a question of law: Australian Broadcasting Tribunal -v- Bond (1990) 170 CLR 321, 355. Making a decision without evidence may amount to a breach of the rules of natural justice. The power of review extends to decisions made by the Respondent or his delegate: cf Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte applicants S134/2002 [2003] HCA 1.
The Federal Court has jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth if the matter concerns a decision that was not made “under” the Migration Act 1958 by reason of failure to exercise jurisdiction, acting in excess of jurisdiction conferred by the Act, or a failure to comply with the principles of natural justice. See eg WAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 93.
Review error:
Decision of * The decision in the applicant’s case was that *. In reaching that conclusion the respondent’s delegate applied this test: “*”. This is not the correct test, and hence the delegate asked the wrong question. The correct question was *. The delegate should have inquired into the correct issue. The delegate of the Minister made a decision that *. The delegate did not have evidence to support that conclusion. The delegate of the Minister failed to have regard to evidence to the contrary – namely, *.
Applicant - and - MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
APPLICANT’S SUBMISSIONS ON DISMISSAL MOTION
Construction of s. 198 1. The power to remove a person from Australia arises under s. 198 of the Migration Act. In this case, the relevant provision is section 198(6): 198 (6) An officer must remove as soon as reasonably practicable an unlawful non citizen if: (a) the non citizen is a detainee; and (b) the non citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and (c) one of the following applies: (i) the grant of the visa has been refused and the application has been finally determined; (iii) the visa cannot be granted; and (d) the non citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
2. Removal and refoulement are not identical concepts.
3. “Remove” is defined in the Act as meaning “remove from Australia” (see s. 5). This plainly means nothing more than taking a person beyond the territorial limits of Australia. The Minister threatens and intends to do more than remove the Applicant from Australia: he threatens to take him to the one place in the world where his life or liberty would be threatened. Section 198 does not expressly authorise such a step. It would be surprising if it did. The question arises whether, by implication, the power to remove includes a power to take a person to a place of persecution.
4. That question is to be answered by considering Australia’s international obligations under the Refugees Convention (Art 33) and the Torture Convention [1] (Art 3). The Minister apparently accepts that the relevant principle of construction is that a statute should be interpreted and applied, so far as its language admits, in a manner which accords with Australia’s treaty obligations [2].
5. Removal is quite different from refoulement, which is the act of returning a refugee to a place where there is a real risk to their life or liberty. Whilst any act constituting refoulement will begin with removal, it is clear that not every removal must end in refoulement. Furthermore, removal does not require removal to a particular place: it involves only removal from a particular place (Australia).
6. Article 33 of the Refugees Convention prohibits refoulement: “1. No contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. (emphasis added) 2. The benefit of the present provision may not, however, be claimed by a refugee when there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
7. The ingredients of refoulement are: a) a) a threat to return to their country of origin; b) b) a person who is unwilling to go there c) c) because of a well-founded fear of persecution on account of his race, religion, nationality, membership of a particular social group or political opinion; d) d) a risk that the person’s life or liberty will be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion 8. If those elements are established by the Applicant, then his forcible return to Iran would amount to refoulement contrary to Australia’s obligations under Art 33. 9. Article 3 of the Torture Convention (to which Australia is a party), also prevents refoulement to a country where an individual faces a real chance of torture: see E v Australia [3] (copy attached), at [6.4, 6.5, 7]. This provides an independent basis for restraining the return of the Applicant to Iran where he faces the risk of torture. 10. On a strike out application, the court must assume that the facts pleaded will be established. The Court therefore has to determine whether the Act requires that a person be returned to Iran who is in fact a refugee (albeit not granted a protection visa) and who will be persecuted on Convention grounds if returned to Iran. 11. It is important to distinguish between 2 different positions: • • First, where the Minister knowingly returns a person who is in fact a refugee and whose life or freedom will be threatened on convention grounds if the refugee is returned; and • • Second, where the Minister returns a person who is in fact a refugee and whose life or freedom will be threatened on convention grounds if the refugee is returned but relies on the findings of the RRT and believes that the person is not a refugee.
12. The only distinction between those two cases is whether the person has the opportunity to demonstrate the facts in court. If the person demonstrates that they are a refugee in fact, and face torture, death or imprisonment if returned, a return thereafter would be a return of the first sort.
13. If a knowing removal would be beyond power, section 75(v) of the Constitution entrenches the right to establish in Court the facts which demonstrate an excess of power. Accordingly, cases of the second sort are justiciable.
14. Further and alternatively the Act requires that a person be removed from Australia as soon as reasonably practicable. It is not “reasonably practicable” to remove a person from Australia if the removal involves, as a matter of fact, the return of a refugee to the place of persecution. If the place of persecution is the only place to which that person can be sent upon removal from Australia, then their removal is not reasonably practicable and is neither required nor authorized.
Effect on privative clause of decision of High Court in Plaintiff S157 [2003] HCA 2 Gleeson CJ in S157 said: “[3] The first step in the plaintiff's argument, in support of the contention that s 474 is invalid, is an assertion that the section means what it says. It is argued that, in their ordinary and natural meaning, the words of s 474 purport to prevent any applicant from seeking, and any court, including this Court, from granting, any relief with respect to any application for review of a decision of an administrative character (save for some minor exceptions) under the Act. Therefore, the section purports to oust the jurisdiction conferred upon this Court by s 75(v) of the Constitution. The Parliament has no power to do that. …. [37] The principles of statutory construction stated above lead to the conclusion that Parliament has not evinced an intention that a decision by the Tribunal to confirm a refusal of a protection visa, made unfairly, and in contravention of the requirements of natural justice, shall stand so long as it was a bona fide attempt to decide whether or not such a visa should be granted. Decision-makers, judicial or administrative, may be found to have acted unfairly even though their good faith is not in question. People whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness. If Parliament intends to provide that decisions of the Tribunal, although reached by an unfair procedure, are valid and binding, and that the law does not require fairness on the part of the Tribunal in order for its decisions to be effective under the Act, then s 474 does not suffice to manifest such an intention..” The joint majority judgment of Gaudron, McHugh, Gummow, Kirby, Hayne JJ contains the following: “[76] Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression "decision[s] ... made under this Act" must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all"[78]. Thus, if there has been jurisdictional error because, for example, of a failure to discharge "imperative duties"[79] or to observe "inviolable limitations or restraints"[80], the decision in question cannot properly be described in the terms used in s 474(2) as "a decision ... made under this Act" and is, thus, not a "privative clause decision" as defined in ss 474(2) and (3) of the Act[81]. [77] To say that a decision that involves jurisdictional error is not "a decision ... made under [the] Act" is not to deny that it may be necessary to engage in the reconciliation process earlier discussed to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction. [78] The effect of s 474 is to require an examination of limitations and restraints found in the Act. There will follow the necessity, if s 474 is constitutionally valid and if proceedings are brought by the plaintiff in accordance with the draft Order Nisi, to determine, in those proceedings, whether, as a result of the reconciliation process, the decision of the Tribunal does or does not involve jurisdictional error and, accordingly, whether it is or is not a "privative clause decision" as defined in s 474(2) of the Act.”
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