FEDERAL COURT OF AUSTRALIA Rahmani v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 125 MIGRATION – application seeking orders permanently restraining the applicant from being removed from Australia by Minister – proposed removal under s 198(6) Migration Act 1958 (Cth) – whether condition of exercise of power under s 198(6) that removal could constitute refoulement contrary to Australia's obligations under the Refugees Convention or the Torture Convention – whether a potential application for special leave to appeal to the High Court means that an application is not 'finally determined' - meaning of 'finally determined' under s 198(6) Migration Act 1958 (Cth) – whether application for protection visa finally determined – whether 'application' to Minister under s 417 of Act means application for protection visa not finally determined – whether Minister's discretion under s 417 is a form of review under Pt 7 of the Act. Migration Act 1958 (Cth) ss 5, 198, 417, 474 Judiciary Act 1903 (Cth) s 39B Rahmani v Minister for Immigration & Multicultural Affairs [2001] FCA 1367 referred to WABE v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 168 referred to SAAK v Minister for Immigration & Multicultural & Indigenous Affairs (No 4) [2004] FCA 104 applied M38/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131; (2003) 199 ALR 290 applied NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 292 applied Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 317 referred to NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228; (2002) 123 FCR 298 referred to MOHAMMAD HASSAN RAHMANI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 797 of 2003 MANSFIELD J 25 FEBRUARY 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 797 OF 2003 BETWEEN: MOHAMMAD HASSAN RAHMANI 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 797 OF 2003 BETWEEN: MOHAMMAD HASSAN RAHMANI 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 consider the respondent's contentions are correct so the application itself should be dismissed. In reaching that conclusion, I am mindful that I should make such an order only in the clearest of cases. 2 The application was commenced on 30 September 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 The statement of claim discloses that 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 16 November 2000. A delegate of the respondent rejected it on 2 January 2001. The applicant sought review of the delegate's decision. On 7 May 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 18 September 2001, Finn J rejected the application and declined to make an order setting aside the Tribunal's decision: Rahmani v Minister for Immigration & Multicultural Affairs [2001] FCA 1367. On 31 May 2002 the Full Court (Whitlam, North and Stone JJ) dismissed an appeal from that decision: WABE v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 168. The statement of claim asserted that the applicant had exhausted all his legal avenues in the Australian courts to assert his status as a refugee under the Convention. 5 Despite having failed in his application for a protection visa, 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 facts that he fled Iran illegally and 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. On 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 oblige 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 injunction should be permanently granted. That was because, having regard to the facts which he asserted, it was not reasonably practicable that he be removed from Australia. 6 I decided in SAAK v Minister for Immigration & Multicultural & Indigenous Affairs (No 4) [2004] FCA 104 (SAAK) that 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 M38/2003 on the ground 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 allege: 'The applicant has not exhausted all of his legal avenues for judicial review in the Australian courts. PARTICULARS The decision of the Full Court if [sic] of the Federal Court WABE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] [sic] [2002] FCAFC 168, 31 May 2002, was a decision prior to S 157 being delivered in the High Court. A decision as to the merits of an application for Leave to Appeal to the High Court is to be made shortly. The applicant has not exhausted all of the avenues available to obtain a visa under the Migration Act 1958. PARTICULARS An [sic] further application for the Minister for Immigration Multicultural & Indigenous Affairs to exercise her discretion under s 417 of the Migration Act 1958 is being prepared.' 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 seeking to rely upon a potential request to the respondent to exercise her discretion under s 417(1) of the Act to substitute a decision to grant the applicant a protection visa cannot give rise to an arguable cause of action on behalf of the applicant that he may be entitled to the relief which he seeks. The applicant's argument 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 would not apply in the present matter. Counsel for the applicant did not suggest any additional considerations which might attract it. 11 Indeed, the present application highlights the point made in SAAK at [36]. The contention requires that it is the potential making of a request to the respondent to exercise her power under s 417(1) which leads to the claim that the application for a protection visa is still subject to a form of review under Part 7, and so is not finally determined. There is no time limit within which such a request may be made, nor any limit upon the number of requests which may be made. The potential for serial requests to be made without any time limitation means, if the argument is correct, that an application for a protection visa will never be finally determined. That outcome is not one which is consistent with the legislative intent expressed in s 5(9). It is intended that a point will be reached when an application for a protection visa will be finally determined and the duty imposed by s 198(6) enlivened. 12 The alternative route to an arguable case put forward by the proposed amendment is through the potential application for special leave to appeal to the High Court from the decision of the Full Court. Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 317 (Plaintiff S157/2002), it is clear that, notwithstanding the apparently wide terms of s 474 of the Act, a decision of the Tribunal may be quashed if it involves jurisdictional error. That decision is perceived as limiting the scope of operation of s 474 of the Act upon its proper construction compared to the earlier decision of the Full Court of this Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228; (2002) 123 FCR 298. It is understandable that, in the light of the decision in Plaintiff S157/2002, the applicant may perceive his prospects of securing special leave to appeal to the High Court as being somewhat better than previously. However, Order 69A r 3 of the High Court Rules 1952 prescribes a 28 day period after the judgment within which special leave to appeal may be sought, although O 69A r 3(2) contemplates the possibility of that time restriction being dispensed with. If the prospect of an application for special leave to appeal, even out of time, were to be sufficient to lead to the conclusion that the application for the protection visa had not been finally determined, a similar inappropriate consequence would arise as discussed in the preceding paragraph of these reasons. An unsuccessful protection visa applicant who did not seek special leave to appeal to the High Court could rely upon the potential for a belated application to do so as the reason why the protection visa application was not finally determined. 13 The short answer to the contention is that an application to the High Court for special leave to appeal from the decision of the Full Court of this Court, whether actually made or in prospect, is not a form of review under Parts 5 or 7 of the Act. The jurisdiction of the High Court is under s 75(v) of the Constitution. It is not dependent upon, or derived from, the Act. It is not addressed in Parts 5 or 7 of the Act. Accordingly, notwithstanding the making or the potential making of an application for special leave to appeal to the High Court, for the purposes of the Act, the application for a protection visa is finally determined in accordance with the definition in s 5(9). The decision to refuse to grant to the applicant a protection visa is no longer subject to any form of review under Parts 5 or 7 of the Act. By the definition, it is therefore finally determined. Section 198(6) is therefore enlivened. 14 It is not necessary to determine whether an application to the High Court (or to this Court by application made under s 39B of the Judiciary Act 1903 (Cth) for an order quashing a decision of the Tribunal for jurisdictional error, and for an interlocutory order to prevent the respondent from removing the applicant from Australia until the primary application is determined, results in the review by the Tribunal being kept alive in some way. That issue does not arise here. The proposed amendment is confined to the possibility of the applicant seeking special leave to appeal to the High Court from the decision of the Full Court. 15 For those reasons, I do not propose to allow the applicant to amend the statement of claim. The proposed amendment would not give rise to any arguable case so as to avert the respondent's request for summary judgment. On the existing statement of claim, for the reasons already given, I consider the applicant has no arguable prospects of success. The application for summary judgment therefore succeeds. 16 I accordingly dismiss the application. I certify that the preceding sixteen (16) 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