FEDERAL COURT OF AUSTRALIA WAEW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 124 WAEW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 815 of 2003 MANSFIELD J 25 FEBRUARY 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 815 OF 2003 BETWEEN: WAEW APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 25 FEBRUARY 2004 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 815 OF 2003 BETWEEN: WAEW APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE: 25 FEBRUARY 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The respondent has applied to summarily dismiss the application under O 20 r 2 of the Federal Court Rules on the ground that it discloses no reasonable cause of action. For the reasons which appear below, I accede to the respondent's claim and consider the application itself should be dismissed. In reaching that conclusion, I am mindful that I should reach such a view only in the clearest of cases. 2 The application was commenced on 31 October 2003. It sought an order restraining the respondent from removing the applicant from Australia and sending him to Iran. According to the statement of claim filed with the application, the applicant is a citizen of Iran who is present in Australia and who does not wish to return to Iran owing to a well-founded fear of persecution in Iran. It is claimed that returning him to Iran in the circumstances would constitute refoulement contrary to the Refugees Convention as amended by the Refugees Protocol (the Convention). 3 As the statement of claim discloses, the applicant made a claim for a protection visa under the Migration Act 1958 (Cth) (the Act) asserting that, by reason of his political and religious beliefs, he would be vulnerable to, and he has a well-founded fear of, persecution if he were to return to Iran. That application was made on 7 January 2001. A delegate of the respondent rejected it on 28 February 2001. The applicant sought review of the delegate's decision. On 1 June 2001 the Refugee Review Tribunal (the Tribunal) affirmed the decision of the delegate of the respondent not to grant to the applicant the protection visa for which he had applied. 4 The Tribunal's decision has been subject to the full range of judicial review. On 5 February 2002, Nicholson J rejected the application and declined to make an order setting aside the Tribunal's decision: W244/01/A v Minister for Immigration & Multicultural Affairs [2002] FCA 52. On 22 August 2002 the Full Court (Marshall, Weinberg and Jacobson JJ) dismissed an appeal from that decision: WAEW v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 260. The applicant sought special leave to appeal to the High Court from the decision of the Full Court of this Court. On 3 October 2003 the application for special leave to appeal was refused: WAEW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCATrans 390. Gleeson CJ and Hayne J indicated that they did not consider that the proposed appeal had sufficient prospects of success to warrant the granting of special leave to appeal. As the statement of claim then asserted, the applicant had exhausted all his legal avenues in the Australian courts to assert his status as a refugee under the Convention. 5 Despite that, the applicant in the statement of claim re-asserted the facts by reason of which he claimed that, through his political or perceived political opinion, his religion, and the fact of him having fled Iran illegally and having made an application for a protection visa in Australia, he had a well-founded fear of persecution if he were to return to Iran. He therefore asserted that the return of the applicant to Iran by the respondent following his removal from Australia would constitute refoulement contrary to Australia's obligations under Art 33 of the Convention. For the same factual grounds, he asserted that it would constitute refoulement contrary to Australia's obligations under Art 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention). His contention was that, notwithstanding the terms of s 198(6) of the Act, which obliges the respondent by his officers to remove the applicant from Australia as soon as reasonably practicable once the grant of the visa has been refused and the application has been finally determined, the respondent should be permanently restrained from doing so. That was because, having regard to the facts which he asserted, it was not reasonably practicable that he be removed from Australia because of those consequences. 6 As I have found in SAAK v Minister for Immigration & Multicultural & Indigenous Affairs (No 4) [2004] FCA 104 (SAAK) that contention is foreclosed by the decisions of the Full Court of this Court in M38/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131, (2003) 199 ALR 290 (M38/2003) and in NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 292 (NATB). I note that the High Court (Gleeson CJ and McHugh J) on 12 December 2003 refused special leave to appeal to the High Court from the decision in M38/2002 on the grounds that there were insufficient reasons to doubt its correctness. The former case determined that, once a protection visa has been rejected and the judicial processes of review exhausted, s 198(6) obliges an officer of the respondent to 'remove as soon as practicable an unlawful non-citizen' in the circumstances to which it refers. The applicant was precluded from re-asserting in substance that he was a refugee as defined under Art 1A(2) of the Convention, or that his removal and refoulement would contravene Art 33(1) of the Convention so that s 198(6) did not apply. If there were any doubt as to the scope of that decision, NATB exhausted it. NATB made it explicit that, in addition to s 198(6) operating where there had been a rejection of a claim to be a refugee under the Convention, it also operated notwithstanding a claim that refoulement would contravene Art 3 of the Torture Convention where the claim was made on the same basis as that upon which the protection visa application had been made and the status of refugee asserted. 7 I do not consider those decisions can be distinguished from the allegations in the present statement of claim. Were the statement of claim to stand in its present form, I would therefore dismiss the application. 8 However, at the hearing, counsel for the applicant sought leave to amend the statement of claim. Instead of alleging that the applicant had exhausted all avenues of legal review available to him, it is now sought to be alleged: 'The applicant has not exhausted all of the avenues available to obtain a visa under the Migration Act 1958. PARTICULARS An application for the Minister for Immigration & Multicultural & Indigenous Affairs to exercise her discretion under s 417 of the Migration Act 1958 was sent on 24 December 2003. The application has not yet been determined.' The respondent opposed leave to so amend the statement of claim. It was opposed firstly on the ground that it would produce no useful effect, and secondly on the basis that it was belated. 9 If the proposed amendment might give rise to an arguable case that the application might succeed, and so provide a foundation to avoid summary dismissal of the application, I would grant it notwithstanding the delay in the making of the application. Under O 11 r 7 of the Federal Court Rules, it is permissible to amend an application to allege facts which have occurred since the commencement of the proceeding. On the other hand, if the proposed amendment does not give rise to any arguable case that the application might succeed, I would not allow the amendment as it would be pointless. 10 For the reasons given in SAAK, in my judgment the proposed amendment cannot give rise to an arguable cause of action on behalf of the applicant to maintain the relief which he seeks. The argument by the applicant is that, by reason of the 'application' made to invite the Minister to exercise her discretion under s 417 of the Act to substitute a decision on the visa application more favourable to the applicant than the decision of the Tribunal, in effect to grant him a protection visa, the application for a protection visa has not been finally determined. Consequently, the argument runs, the application for the protection visa has not been finally determined so s 198(6) is not enlivened. I see no reason why the reasoning in SAAK rejecting the applicant's argument, would not apply in the present matter. Counsel for the applicant did not suggest any additional considerations which might attract it. I therefore refuse leave to amend the application in the terms sought. 11 It follows that I also dismiss the application. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 24 February 2004 Counsel for the Applicant: P Charman Solicitor for the Applicant: Refugee Advocacy Service of South Australia Counsel for the Respondent: S Maharaj Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 28 January 2004 Date of Judgment: 25 February 2004