SPKB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 546

FEDERAL COURT OF AUSTRALIA

SPKB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 546 Migration Act 1958 (Cth) ss 189, 196, 198, 417 Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543 followed Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526 noted Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1 noted Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70 followed Re Minister for Immigration & Multicultural Affairs and Anor; Ex parte SE [1998] HCA 72 followed Applicant M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 458 followed Chahal v United Kingdom (1997) 23 EHRR 413 cited SPKB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 426 of 2003 MANSFIELD J 5 JUNE 2003 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 426 OF 2003

BETWEEN: SPKB

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 5 JUNE 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 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 426 OF 2003

BETWEEN: SPKB

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 5 JUNE 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application for an order in the nature of a writ of habeas corpus. The applicant claims that his continued detention by the respondent is no longer lawful. 2 The applicant is a 57 year old Iraqi who arrived in Australia on 16 December 1999. He was placed in immigration detention as an unlawful non-citizen, pursuant to s 189 of the Migration Act 1958 (Cth) (the Act). He has been in immigration detention since then. He sought a protection visa on 21 March 2000. He claimed to have a well-founded fear of persecution by the Iraqi authorities if he returned there, and to be unable to return to Syria (where he had lived from 1996 to 1999) and further that he risked refoulement by Syria to Iraq if he did return to Syria. If the information about what had happened to the applicant and his family in Iraq is correct, it would have provided the basis for a well-founded fear of persecution on his part by reason of his perceived political beliefs if he were to return to Iraq. 3 The application for a protection visa was first refused by a delegate of the respondent on 24 July 2000, and on review by the Refugee Review Tribunal (the Tribunal) on 5 October 2000. The Tribunal found he could return to, and remain, in Syria without the risk of being refouled to Iraq. Hence he was found not to be a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: see Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543; Rajendran v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 526; Minister for Immigration and Multicultural Affairs v Gnanapiragasam (1998) 88 FCR 1. His claim to have a well-founded fear of being persecuted if he were to return to Iraq was not addressed, as the Tribunal found it unnecessary to do so. The delegate of the respondent had reached a decision upon the same basis, that is without addressing his claim to have a well-founded fear of persecution if he were to return to Iraq. 4 The applicant sought judicial review of the Tribunal's decision, but discontinued the proceeding on 30 May 2001. 5 If the information in the Court book in this matter about the applicant's circumstances since January 2001 is correct, it presents an extremely depressing picture. 6 In about January 2001 the applicant learnt and believes that his wife and children, who he had left behind in Syria, had been sent back to Iraq and that they had there been imprisoned. His 14 year old son, he believes, died from mistreatment in prison in Iraq. He blames himself for what he perceives has befallen his family. Therefore, he requested to be removed from Australia in the hope that he could assist his family's predicament. 7 The respondent was aware at least by March 2001 that the applicant wished to be removed from Australia. Section 196(1) of the Act relevantly provides that the applicant was to be kept in immigration detention until he is removed from Australia under s 198 or s 199, or if granted a visa. Relevantly for present purposes s 198(1) and (6) provides: '(1) An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed. … (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; (ii) 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.' 8 On 10 May 2001, the applicant applied for a bridging visa Class E, so he could attempt to arrange his own departure from Australia. After 30 May 2001, the respondent's internal memoranda indicate that he was ineligible for such a visa, as he had no outstanding substantive visa application. However, the application for a bridging visa was not determined until 5 May 2003. It was refused. The discontinuance on 30 May 2001 of the judicial review application was an attempt to remove an obstacle to the applicant's removal from Australia. 9 From early 2001, communications to the respondent indicated that the applicant had a significant depressive illness from his continued detention, especially in the light of what he believed happened to his family. By September 2001, a clinical psychologist nominated by the respondent reported that the applicant was experiencing 'moderate to severe clinical depression'. His condition was deteriorating. More recently, three independent consultant psychiatrists have examined him. One was 'extremely concerned' about the applicant's mental state. He has been diagnosed consistently as suffering from a major depressive illness, with melancholic features, and suicidal ideation. It has been recommended that he be removed from detention and be given treatment in a suitable mental health facility in the community. His condition is chronic and deteriorating. 10 It is unclear what efforts to remove the applicant from Australia were made during 2001, despite his request, or what was done in response to information about his mental state. 11 The respondent apparently took the view that some communication of 5 June 2001 (or according to certain information of 21 May 2001 or 16 August 2001) constituted a request under s 417 of the Act for the respondent to substitute a more favourable decision on his visa application. The applicant was told by letter of 21 March 2002 that his request had been rejected, but other documents suggest that within the department the request was still under consideration. Indeed, apart from the letter of 21 March 2002, there does not appear on the material before the Court to be any formal response to the perceived request. The respondent regards an unresolved request under s 417 as precluding the respondent from removing an unlawful non-citizen in immigration detention from Australia.