FEDERAL COURT OF AUSTRALIA NAQK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1626 NAQK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N607 of 2003 17 DECEMBER 2003 MADGWICK J 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: 17 DECEMBER 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Judgment for the respondent. 2. Applicant to pay the respondent's costs. 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: 17 DECEMBER 2003 PLACE: SYDNEY REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 In this matter the applicant has purported to invoke the Court's jurisdiction under ss 39B(1) and 39B(1A) of the Judiciary Act 1903 (Cth). The relief sought includes an injunction restraining the respondent from returning the applicant to Iran and an extension of time for the lodgment of an appeal from the decision of the Administrative Appeals Tribunal ("the Tribunal") handed down on 13 August 1999. 2 The applicant with his then wife and children, arrived in Australia on 29 September 1991, and it was accepted that the applicant was a refugee entitled to asylum in Australia and to the issue of the appropriate visa reflecting that status. However, in July 1992, the applicant travelled to India and returned to Australia on 23 September 1992. Shortly after his return he was arrested in relation to a number of drug-related offences arising out of his having taken possession of a package posted from India which contained opium. Further, in late 1994, after the applicant and his wife separated, the applicant was convicted of assaults on his wife and daughter. In 1995, he pleaded guilty to the drug offences and was sentenced to an effective term of imprisonment of two years and three months, with a minimum term of six months. He was ultimately released from prison in 1997. On 9 June 1997, a delegate of the respondent signed a deportation order under s 200 of the Migration Act 1958 (Cth), which permits such an order to be made in circumstances which encompass those of the applicant. 3 In July 1997, the applicant lodged an application for a review of the deportation order with the Tribunal and on 13 August 1999, the Tribunal gave a decision affirming the deportation order. In October 2000, the applicant filed an application in this Court seeking an extension of time in which to file a notice of appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from the Tribunal's decision, and also applied for leave to bring an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of the delegate's decision to sign the deportation order. On 1 November 2000, Emmett J dismissed that application. 4 The applicant then applied for an extension of time to appeal from the judgment of Emmett J, and that application was refused by Stone J on 7 February 2001. 5 The current proceedings were commenced on 20 May 2003. In consequence of interlocutory proceedings, there is for determination before me today one of the final issues in the proceedings, which issue is in two parts. The issue is: (a) whether on the correct interpretation of the Act, it is a relevant factor in the execution of a deportation order that return of the applicant to the country of his nationality might involve Australia in breach of an international law obligation under the Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment ("Torture Convention") done at New York on 10 December 1984, and to which Australia effectively became a party as from 7 September 1989 and; (b) whether there are any other discretionary considerations which, absent an application to the Minister to revoke the deportation order, the Minister is obliged to consider in or before the execution of a deportation order. 6 If, as the Minister contends, the answer to those questions should be 'No', then in consequence of the earlier interlocutory proceedings, there would be no other issue in the case and the applicant's application for principal relief should be refused. 7 Article 3 of the Torture Convention provides: '(1) No State Party shall expel, return ... or extradite a person to another State where there are substantial grounds for believing that he 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.' 8 The argument for the applicant is, in effect, that a decision resulting in an order for deportation does not necessarily determine the destination to which the deportation will occur although of course in practice it usually does. Thus, the respondent's intention, by his officers, to deport the applicant back to Iran necessarily means that there has been a decision by somebody that that will be the destination to which he would be deported. It is the applicant's allegation that, conformably with the decision to claim refugee status, if returned, there are substantial grounds for believing that he would be in danger of being subjected to mistreatment which would qualify as torture within the meaning of the Torture Convention. 9 In my opinion, however, the respondent's submissions are correct. Indeed, in consequence of developments since I left open the present argument of the applicant as 'arguable', if barely so, it is now clear that that is not so. 10 M38 v Minister for Immigration and Multicultural [2003] FCAFC 131 concerned an application to restrain the Minister from removing a person under s 198(6) of the Act. The applicant in that case contended that the power of removal under s 198(6) must be read consistently with Australia's obligations under, among other conventions, the Torture Convention. The Full Court rejected the application, holding, among other things, that there was no ambiguity in s 198(6); therefore it was not susceptible to a construction which would require the removal to be consistent with the obligation against non-refoulement, and which would not authorise the removal of the refugee to a place where he faced a real risk of imprisonment or punishment for Refugee Convention reasons. That was in the context, as the Court noted, that s 198(6) creates an imperative duty on the part of officers of the respondent to act and does not give any officer whose duty it is to remove a person caught by that provision a discretion. 11 The respondent argues that exactly the same considerations apply to s 206 of the Act which is the relevant provision in this case. Section 206 provides: '(1) Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly. (2) The validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order. 12 Section 206 thus recognises that the Minister has a power to revoke an order for deportation if he or she considers it appropriate to do so. Like s 198(6), s 206(1) creates an imperative duty upon relevant officers of the Minister to deport a person such as the applicant who is the subject of an unrevoked deportation order. 13 Indeed the construction of s 206 in the way contended for is, as the Minister argues, a fortiori. Firstly, the scheme of the Act is such as to provide opportunities for an applicant to urge that Australia's international obligations should influence the Minister's course. The first opportunity to do this is pursuant to ss 200 and 201 whereby the Minister is empowered, by way of being given a discretion, to order or not order the deportation of a person who falls within Division 9. The entire legislative scheme envisages that a high level appeal can be made from an adverse decision to the Tribunal. 14 Secondly, lest the matter not have been considered or have been in some way inadequately considered or, perhaps, where events may have occurred which made any earlier consideration in the matter inappropriate, the Minister has the power to revoke an earlier decision to deport. In this case, the Minister, and on review the Tribunal, had regard to Australia's international obligations including under the Torture Convention in exercising the s 200 discretion. 15 In NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 292, the Full Court considered by way of an appeal from a judgment of Stone J, a point virtually identical with that taken in the present case. The Court upheld her Honour's summary dismissal of the application on the basis of the severally constituted Full Courts' expressed agreement with M38. In particular, in NATB the Court rejected a submission that M38 was distinguishable on the basis that the Torture Convention had not been considered to finality in that case. The Court pointed out that, even if a person removed under s 198 would be killed if removed to his country of nationality, that is not a practical consideration going to the ability to remove from Australia, so that the reference in s 198(6) to the duty remove being one that must be executed 'as soon as reasonably practicable' would be unaffected even by such a circumstance. It was held that Parliament had sought by other means to guard against such a situation and the Full Court referred to ss 48B, 351 and 417 of the Act. 16 As the Minister submits, while none of those sections are apposite to the case of deportation under s 200, the s 200 discretion itself and the administrative review available therefrom and the Minister's power to revoke a s 200 decision, serve the same purpose in the case of deportations, or intended deportations under s 200. 17 It is not strictly necessary to answer question (b) but, as the Minister may not be restrained once an administrative review of the s 200 discretion has been exhausted, and absent an application to revoke the deportation order, even where death or near death under the Torture Convention, may ensue, it is difficult to know what other kinds of discretionary considerations might as a matter of legal analysis be able to be taken into account. 18 I make it clear that in the applicant's present position, as far as I can see, the only avenue that might avail him is an application to the Minister for revocation of the deportation order. 19 The proceedings should therefore be dismissed as unarguable. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 29 January 2004 The Applicant appeared in person. Counsel for the Respondent: Mr Wigney Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 December 2003 Date of Judgment: 17 December 2003