FEDERAL COURT OF AUSTRALIA SPKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 181 SPKB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S570 of 2003 SPKB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 816 of 2003 CARR, FINN and SUNDBERG JJ 8 JULY 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 570 OF 2003 BETWEEN: SPKB APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: CARR, FINN and SUNDBERG JJ DATE OF ORDER: 8 JULY 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The notice of motion which was filed on 23 April 2004 be dismissed. 2. The appellant pay the respondent's costs of and incidental to the motion. 3. The orders made in the appeal on 18 December 2003 be entered forthwith. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 816 OF 2003 BETWEEN: SPKB APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: CARR, FINN and SUNDBERG JJ DATE OF ORDER: 8 JULY 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The notice of motion which was filed on 23 April 2004 be dismissed. 2. The appellant pay the respondent's costs of and incidental to the motion. 3. The orders made in the appeal on 18 December 2003 be entered forthwith. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 570 OF 2003 BETWEEN: SPKB APPELLANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 816 OF 2003 BETWEEN: SPKB APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: CARR, FINN and SUNDBERG JJ DATE: 8 JULY 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT THE COURT: 1 The Full Court handed down its decisions in these appeals on 18 December 2003. Both were dismissed with costs. On 24 March 2004 the appellant filed in each proceeding a notice of motion for an order that "the orders embodying the judgment pronounced herein by the Full Court … not be sealed until further order". On 23 April 2004 the appellant filed in each proceeding a notice of motion for orders that the Full Court "recall the judgment pronounced herein on 18 December 2003. Substitute a judgment that: (a) the appeal be allowed; (b) that the judgment below be set aside and in lieu thereof there be substituted a declaration that the appellant's detention by the respondent was unlawful; (c) that the respondent pay the appellant's costs of the appeal and below." On 27 April 2004 Selway J ordered in each proceeding that the Registrar refrain from entering the Full Court's orders pending that Court's consideration of the motion filed on 23 April 2004. His Honour referred the 23 April motions to the Full Court for such further consideration as the Court thought appropriate. Subsequently the Full Court directed by consent that the motions be dealt with on the basis of written submissions. Submissions were in due course filed. 2 At [5] of its reasons in S816 of 2003 the Court recorded the primary judge's conclusions on whether there was a reasonable prospect that the appellant might be voluntarily returned to Iraq. The Court said: "Lander J noted, in reliance on Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri(2003) 197 ALR 241 at 273, that in determining whether there is a real likelihood or prospect of removal regard must be had to an applicant's co-operation in effecting that removal. It is only if an applicant is prepared to co-operate that the implied limitation that the detention can only continue when there is a real likelihood or prospect of removal of the person from Australia exists. It was common ground at first instance that the appellant was under a duty to cooperate in his removal from Australia." The Full Court then noted the primary judge's conclusion from the transcript of exchanges between the appellant's counsel and his Honour, that "the applicant will not co‑operate in his removal from Australia to Iraq". In those circumstances, his Honour said, the appellant was not entitled to the benefit of Al Masri "because he has not cooperated and will not cooperate in his removal to Iraq". 3 The basis for the appellant's case for the relief sought in its motions derives from what the Full Court said at [15] of its reasons in S816 of 2003. The opening sentences are as follows: "The third ground of appeal is that the primary judge erred in law in holding that the unwillingness of the appellant to return to Iraq without an assurance that he would no longer be at risk of persecution in that country constituted a material lack of co-operation so as to disentitle him to release in accordance with Al Masri . It was said that on the facts as found by the primary judge, the appellant's attitude in this regard did not relevantly cause or contribute to the inability of the respondent to remove him to Iraq. The primary judge's finding is set out at [6]. It is supported by what was put to his Honour by the appellant's counsel, which is set out at [92]-[93] of his reasons. That exchange amply justifies the finding." The Court could have rejected the third ground of appeal on the basis of the passage just set out. It was common ground that the appellant was obliged to cooperate in his removal as a condition of it being found that his detention was unlawful. See Al Masri at 273. Later the Court quoted with approval the observations of French J in WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 at [60]‑[61], which included this passage: "A detainee cannot, in effect, create a circumstance which negatives any reasonable likelihood that he can be removed in the foreseeable future by withholding his consent or cooperation to a particular avenue for removal and specifically to removal to the country from which he came." 4 After the passage set out at [3] the Court rejected a submission that the appellant's attitude did not relevantly cause or contribute to the respondent's ability to remove him to Iraq. This submission was misconceived because the duty in s 198(6) of the Migration Act 1958 to remove an unlawful non‑citizen in the circumstances there described is imposed on an "officer" (as defined in s 5) and not on the respondent. The Court had already referred to the Full Court's decision in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 290 to this effect. The Court continued: "In any event, there is no substance in the claim that the appellant's attitude did not cause or contribute to the officer's inability to remove him to Iraq. What was in issue was the appellant's voluntary return to Iraq. No question arose of this involuntary return. See [4]. It is clear that in order for the appellant to be voluntarily returned to Iraq, he would have to set in train or agree to the various steps required in order that he reach Iraq and be admitted to the country. The appellant claimed he had signed all documentation required of him for his removal to Iraq. The only evidence in this regard is that he completed an application for an Australian Certificate of Identity and returned it to the Department, whereupon a Certificate was issued." 5 Then follow the sentences to which objection was taken by the appellant: "After the issue Mr Durston directed his officers that an application for a visa to enter Iraq be provided to the appellant. There is no evidence that the appellant has completed the application and lodged it with the Iraqi authorities. Every indication is that he has not done so. Whether he has done so is within his knowledge, but he has remained silent. That he has done so is inconsistent with his counsel's statement of the appellant's attitude that led to the primary judge's finding set out at [6]. The causal or contributory connection is established." It is submitted that the first sentence in this passage is not supported by the evidence. For the purposes of dealing with the issue raised by the motions we will assume that to be so. However the assumed error has no effect on the conclusion we reached in our reasons at [15]. The question was whether the primary judge's finding that the appellant will not cooperate in his voluntary removal from Australia to Iraq was supportable. On the basis of his Honour's exchange with counsel, we concluded that the "exchange amply justifies the finding". Accordingly, the appellant was not entitled to the benefit of Al Masri. We could have left the matter there. However, we went on to reject the causation/contribution submission on three grounds. The first was that it confused the respective roles of the officer and the respondent, as M38/2000 makes clear. The second was that it confused involuntary and voluntary return, only the latter being in question before the primary judge. The confusion is inherent in the submission that the appellant's attitude did not cause or contribute to the inability of the respondent to remove him to Iraq. The third was that there was "in any event" a causal/contributing link, if one was required, between the appellant's attitude and the (assumed) officer's inability to remove him to Iraq. The Court's affirmation of the primary judge's finding that the appellant will not cooperate in his removal to Iraq is unaffected by the assumed factual error. Similarly, the causation/contribution submission was effectively disposed of by the first two above reasons. The lack of a factual basis for the third reason had no effect on the rejection of the submission. 6 The motions notices of which were filed on 23 April 2004 are dismissed with costs. In view of the unfortunate delay in entering the orders made on 18 December 2003, the Court will direct the Registrar to enter them forthwith. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Carr, Finn and Sundberg. Associate: Dated: 8 July 2004 Counsel for the Applicant: M B Manetta Solicitor for the Applicant: Michaela Byers Counsel for the Respondent: S Maharaj Solicitor for the Respondent: Australian Government Solicitor Date of Final Submissions: 22 June 2004 Date of Judgment: 8 July 2004