Re: The Minister for Immigration and Multicultural Affairs and ANOR Ex parte SE M99/1998 [1998] HCATrans 415 (16 November 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M99 of 1998

In the matter of -

An application for a Writ of Prohibition against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

BRENDAN KISSANE, in his capacity as a member of THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

"SE"

Prosecutor/Applicant

For Judgment

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 16 NOVEMBER 1998, AT 9.35 AM

(Continued from 9/11/98)

Copyright in the High Court of Australia

HIS HONOUR: The applicant seeks orders nisi for prohibition and certiorari and an interlocutory injunction restraining the first respondent from removing him from Australia until the hearing and determination of the proceedings.

The applicant arrived in Australia on 2 October 1997 on a British Airways flight. He did not produce proper documents and he was refused immigration clearance. On the next day, 3 October 1997, a delegate of the Secretary of the Department of Immigration and Multicultural Affairs gave notice to British Airways pursuant to s 217(1) of the Migration Act 1958 (Cth) ("the Act") requiring British Airways to transport the applicant from Australia.

On 8 October 1997, the applicant applied for a protection visa as a refugee. In later documents the applicant provided to the Department he said that "If I am to return to Somalia, given that I am from the Chikal tribe, I will be probably killed by the rival more powerful tribes who now control Somalia". After an interview with officers of the Department, the application for a protection visa was refused. On 30 March 1998, the applicant applied to the Refugee Review Tribunal for review of the decision. He sought, and obtained, an oral hearing of his claim. Written submissions were provided by solicitors on his behalf but he was not represented at the oral hearing. On 21 May 1998, the Tribunal affirmed the decision not to grant a protection visa.

On 29 October 1998, the applicant was taken to Melbourne airport to board an aircraft bound for Perth where it was intended he should board an international flight bound for Johannesburg. The applicant refused to board the aircraft in Melbourne and he was eventually returned to the Immigration detention centre. On 30 October, the applicant was given a further notice of intention to remove him from Australia. Application was then made to this Court for an injunction temporarily restraining his removal and an order was made to that effect. That order has been extended from time to time.

The applicant contended that an order nisi should be granted which would give four grounds:

"1. The proposed removal by the Minister, his servant and agents of the prosecutor from Australia pursuant to s 198 of the Migration Act 1958 is unlawful in that:

(a) It involves the detention in custody of a non-citizen by a private contractor, where the detention is for the purpose of removing the non-citizen from Australia and delivering him or her to his or her country of nationality, and such detention is not authorised by the Migration Act , nor by any other law of the Commonwealth.

(b) The delivery of a non-citizen to a country which is in a state of civil war and lawlessness, and where there is a substantial likelihood that the person may be killed, detained arbitrarily, tortured or may disappear, is an unreasonable exercise of the power to remove a non-citizen from Australia.

2. The Second Respondent erred in construing the definition of "persecution" for the purposes of the Refugees Convention as not including communal violence within the framework of a civil war.

3. The findings of the Second Respondent that the experiences of the applicant and his family were not capable of constituting persecution for reasons of the applicant's membership of the Shikal clan and therefore his fear of persecution was not for a Convention reason, and was not well founded was so unreasonable that on the evidence before the tribunal no reasonable decision maker could have reached it.

4. The RRT erred in law in that it did not follow the procedures set out in s 420(2) of the Act and did not act according to substantial justice and the merits of the case."

It is convenient to deal first with the contentions that were made about the arrangements for removal.

The applicant submitted that there was sufficient material in the evidence adduced in the hearing before me to warrant granting an order nisi that would permit consideration of "the lawfulness of the removal of the [applicant] from Australia, where there is extraterritorial custodial restraint exercised over him (whether by an agent of the Minister and unlawfully because it is excessive or unreasonable; or whether by a person not the agent of the Minister and therefore unlawfully)". It was submitted that the evidence revealed a case for inquiry whether the removal of the applicant from Australia would involve delivery of him into the custody of a company called P & I Associates Pty Ltd (or some other private contractor) or his detention in custody otherwise than by an officer of the Commonwealth authorised under the Act to detain him.

The evidence to support the contention that the applicant would be detained by or in the custody of any person once he had boarded an aircraft bound out of Australia and that aircraft had been sealed for take-off, was, at best, exiguous. The applicant deposed that when he went to the airport on 29 October 1998 an officer of the Department introduced him to a man who would "escort" him to Johannesburg. When he refused to board the aircraft the man who had been introduced to him as the escort said that he would carry him on board the aircraft and that he would handcuff him. This threat of the application of forcible restraint was submitted to be the more significant when regard was had to an internal memorandum produced in evidence before me (and taken from the files of British Airways) that recorded that "P & I Associates in JNB, presumably Johannesburg, had been advised of the situation and that their response was to suggest sedation of the applicant". The memorandum records that the Department rejected this proposal and, it seems, did so with some asperity.

So far as the evidence before me goes, P & I Associates Pty Ltd or an associated organisation was asked by the Department, and agreed, to obtain travel documents for the applicant that would enable him to re-enter Somalia. There is, however, material which suggests that the role of P & I Associates Pty Ltd in relation to the applicant's travel may not be limited in that way. Thus, British Airways has written to the Department that P & I Associates Pty Ltd "will take responsibility" for the applicant on his arrival in Johannesburg and that "a South African national has been enlisted to escort [the applicant] up to Nairobi on South African Airways and from Nairobi, a Tanzanian national will be taking over". The document also says that the applicant would be accommodated in the transit hotel at Johannesburg after his arrival at that airport. A brochure tendered in evidence suggests that P & I Associates Pty Ltd is a company that

"specialises in offering a complete management service in the repatriation of inadmissibles, deportees, stowaways, unlawful non-citizens ("inadmissibles") to the individual's country of origin."

It goes on to say:

"We render a comprehensive identification and documentation service, we assist and conduct all consular and diplomatic liaisons to ensure an accurate, efficient and expedient identification and documentation process.

We take care of, and manage, all travel arrangements, escort and security services to remove the inadmissible from its current location to the Republic of South Africa, (if appropriate) to be held in transit detention whilst the identification and documentation process is completed, and thereafter, to the individual's country of origin."

It was from material such as this that the applicant contended I should infer that there was a case for investigation whether the applicant's removal from Australia would involve his being restrained or held in custody by P & I Associates Pty Ltd, or some other private contractor, either in or outside Australia or would involve his restraint or detention in custody otherwise than by an officer of the Commonwealth authorised under the Act.

I would be prepared to find, to the limited level of satisfaction necessary for determining an application such as the present, that British Airways is unwilling to transport the applicant from Australia unless another person, who would be primarily charged with ensuring that there is no disturbance in flight, travels with the applicant. So far as the evidence goes, British Airways has retained P & I Associates Pty Ltd to provide such a person. I would also be prepared to find that British Airways had made some arrangement with P & I Associates Pty Ltd under which that company would provide a similar escort for the applicant on his flights from Johannesburg to Nairobi and from Nairobi to Mogadishu. In addition, I would be prepared to find that the arrangements made between British Airways and P & I Associates Pty Ltd extend to the provision by P & I Associates Pty Ltd of some kind of escort and supervision of the applicant during his time in Johannesburg.

There is, however, no basis revealed in the evidence before me for suggesting that any of the arrangements for escort or supervision have been made at the behest of the first respondent or his Department. Indeed, it was the submission for the first respondent that the removal of the applicant would be effected by his being placed aboard an aircraft bound from Australia to Johannesburg with papers sufficient to gain him entry to Somalia and that whatever steps were taken by British Airways, as the person bound to transport him from Australia, for ensuring that there was no disturbance on the flight or that he travelled onwards to Somalia were matters entirely for the carrier, not for the Minister or the Department. I should interpolate that the material suggests that Qantas Airways will provide at least some part of the carriage proposed, but nothing turns on this fact and I do not notice it further. Such evidence as there is, including the evidence of the departmental officers concerned, supports the submission that I have described. None of the material before me gives cause to doubt that what is intended is as the submission described it. If the airline, or those engaged by the airline, were to seek to exercise some restraint over the applicant, beyond the confinements that are the consequences of being in an aircraft in flight and of being in the transit area of an international airport with no papers permitting entry to the country concerned, there is nothing in the material to suggest that this additional restraint would be imposed by or on behalf of the first respondent or at his direction. It would be entirely a matter for the airline and those whom it has engaged and would be done with no authority - actual or pretended - given by the first respondent. There is, in my view, no factual basis established for the grant of an order nisi for prohibition or the grant of injunction restraining removal on the basis that the first respondent proposes removal of the applicant from Australia by a means which includes extraterritorial custodial restraint or his detention in custody by a private contractor.

There being no sufficient factual basis for the contention which it was sought to advance, it is unnecessary to consider the several questions about the ambit of the statutory power to remove an unlawful non-citizen that were debated in argument. The first respondent submitted that s 198(6) of the Act obliges officers of the Department to remove the applicant. That subsection provides:

"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."

It is not necessary to consider whether removal of an unlawful prohibited non-citizen is complete when the aircraft or vessel carrying that person travels beyond Australia or removal extends to the port at which that aircraft or vessel first calls outside Australia or some other, more distant place. The applicant accepted that the power to remove necessarily carried with it a power to exercise, in some circumstances, a degree of force to effect the removal. Reference was made in this connection to several deportation cases: Robtelmes v Brennan [1906] HCA 58; (1904) 4 CLR 395; Ferrando v Pearce [1918] HCA 47; (1918) 25 CLR 241, Znaty v Minister for Immigration [1972] HCA 14; (1972) 126 CLR 1. It was submitted that the present case required consideration of what degree of force might be applied to effect the removal of an unlawful non-citizen, and whether that force could be applied only until the person concerned had left Australia or could be applied to the applicant in the course of his journey: for example while he was in Johannesburg. It is not necessary to consider whether the obligation to remove an unlawful non-citizen carries with it a power to exercise any and, if so, what force or physical restraint over that person until arrival at the first port of call or ultimate destination. It is not necessary to consider those matters because there is no evidence to suggest that the Minister or his Department or any officer of it threatens or intends to assert such a power over the applicant.

Removal to Somalia unreasonable

It was submitted that on its true construction s 198(6) of the Act not only does not oblige an officer to remove the applicant to a destination that is unsafe for the person removed, the provision does not permit it. Thus, it was submitted that it is arguable that there is no power to remove the applicant to Somalia because his destination in that country, Mogadishu, is unsafe and he is at risk of death, arbitrary detention or other serious harm in that place.

Section 198(6), so far as presently relevant, provides that "an officer must remove as soon as reasonably practicable an unlawful non-citizen" if certain conditions are met. It may be noted that the subsection addresses the time of removal by specifying that time as being "as soon as reasonably practicable" but otherwise it imposes what, on its face, is an absolute obligation on an officer to remove an unlawful non-citizen. Remove is defined as meaning "remove from Australia", section5.

Counsel for the first respondent contended that the evidence revealed that although Mogadishu was once the scene of bitter civil war fighting, that has now been resolved and Mogadishu is a safe destination for the applicant. There was, however, other evidence which suggested that this was not so and it is arguable that Mogadishu is an unsafe destination for the applicant in the sense that he may be at risk in the way he described. This aspect of the applicant's case must, however, be approached on the assumption that he is not entitled to a protection visa. It must also be approached on the basis that the Act makes explicit provision for the Minister, in his or her unfettered discretion, to permit persons such as the applicant to remain in Australia despite their not being entitled to protection as refugees, see sections 48B, 417. Each section provides that the Minister does not have a duty to consider whether to exercise the power. Indeed the applicant has unsuccessfully sought the exercise of such powers. It must also be approached on the basis that there is nothing in the evidence to suggest that the applicant could travel and be admitted to some country other than Somalia.

I do not accept that it is arguable that the apparently general obligation cast on officers to remove unlawful non-citizens is limited in the particular way for which the applicant contended.

The applicant submitted that s 198(6) should be read as limited to obliging removal only when to do so is reasonable. It was submitted that to remove to a place where the applicant's human rights may be violated was not reasonable and that the Act should be construed as not permitting or requiring action that would violate Australia's obligations under various international instruments concerning human rights. (Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273)

To read the provisions of s 198(6) of the Act as limited in the way for which the applicant contends would, in effect, require the first respondent to exercise his power to permit the applicant to remain in Australia despite his having been refused refugee status. The power under sections 48B and 417 to permit persons such as the applicant to remain in this country are powers that are expressed as discretionary powers which the Minister is not under a duty to consider using, sections 48B(5), 417(7). That being so, the construction of s 198(6) for which the applicant contends is not arguable.

I am therefore not prepared to grant an order nisi on either part of the first of the stated grounds.

The decision of the Refugee Review Tribunal

Although the applicant put the matter in a number of slightly different ways, the essence of the attack made on the decision of the Refugee Review Tribunal was that it had not asked itself the right question when it considered the applicant's case. It is as well to set out part of the Tribunal's decision. Under the heading "Findings and Reasons" the Tribunal said that it accepted "that the Applicant is Somali, a member of the Shikal clan and was formerly a goldsmith". It went on to say:

"The Tribunal accepts that the Applicant's father and brother were killed in 1991 at the start of the war. The Tribunal also accepts that the Applicant's sister committed suicide. However the Applicant clearly states that his clan has remained outside the conflict that has plagued Somalia since 1991. He describes his clan as the victims of war. He makes no claim that his clan has been targeted or the subject of any persistent harassment. He states his delay leaving Somalia was because he did not have the money at hand to leave and desired to assemble his family before he departed. None of this suggests that the Applicant was targeted or in any way feared that he may be targeted because of his clan. He has no doubt had to move from place to place to avoid the fighting but this has been in the context of fleeing war."

After referring to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and the decision of this Court in the decision of Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, the Tribunal went on: "It is apparent that fleeing war or other civil disturbances does not bring an Applicant within the Convention. In this case the Tribunal is satisfied that the Applicant has at times had to flee the civil war or disturbance. The Tribunal is also satisfied that neither the Applicant nor his family were the specific targets of any instances of harassment serious enough to amount to persecution on account of the Applicant's membership of his clan, which the Tribunal considers to be a particular social group, or on account of his ethnic origin or for any other convention reason.

Given that the Applicant has not been the target of harassment in the past, and given that there is no country information available to the Tribunal which indicates that members of the Applicant's clan face problems, other than those that have occurred in the context of the general breakdown of law and order, the Tribunal is satisfied that if the Applicant returns there is no real chance that in the reasonably foreseeable future he will face persecution for a Convention reason. As a result the Tribunal finds that the Applicant does not have a well-founded fear of persecution for a Convention reason."

It was submitted that this reveals that the Tribunal did not consider whether the applicant had a well-founded fear of persecution on account of his membership of the Shikal clan but instead considered only whether the various events that had occurred to members of his family had occurred as the result of civil war or disturbance. That is, it was submitted that the Tribunal had fallen into the kind of error identified by the Full Court of the Federal Court in Abdalla v Minister for Immigration and Multicultural Affairs, unreported 20 August 1998. I do not accept that this argument is open.

Properly understood, the reasons reveal that the Tribunal did consider what would happen to this applicant if he returned to Somalia and did consider whether the fears he said that he held were well-founded fears of persecution on account of his membership of the Shikal clan. That view is reinforced by consideration of the transcript of the oral hearing before the Tribunal. In the course of that hearing the applicant was asked what he thought would happen to him if he went back to Somalia and he replied that he would be killed. The Tribunal asked him "Who by? Who is after you in Somalia" and this elicited the answer "Yes, the people who already took my possessions and my shops, they are still there. If they saw me hanging around, they would see that I am first seeking for revenge, or I am seeking my rights to get my shops back and my ... so I have to get away from their family and away from them and that ...". Making, as one must, generous allowance for the fact that the transcript of the oral hearing is obviously imperfect and that the oral hearing was conducted through an interpreter, the answer which the applicant gave to the direct question asked of him does not reveal fear of persecution on account of his membership of a clan. As counsel for the applicant pointed out, the various documents that had been submitted on behalf of the applicant all sought to make such a case. It would, then, be surprising if the Tribunal did not consider it. Both the reasons given and the course of the hearing reveal that the Tribunal did so. There is, in my view, no basis for concluding either that the Tribunal did not address the question raised by the applicant or that it reached a decision which was not reasonably open to it. The Tribunal dealt with the question in its reasons for determination and there was material before it upon which it could reach the conclusion that it did. In my opinion this case is very different from that considered by the Full Court of the Federal Court in Abdalla. It is, therefore, unnecessary to examine whether it is arguable that the decision of the House of Lords in Adan v Secretary of State for the Home Department [1998] UKHL 15; (1998) 2 WLR 702 is wrong.

I am not persuaded that either the second or third proposed ground is arguable.

Failure to comply with procedures

Section 420(2)(b) obliges the Tribunal in reviewing a decision to "act according to substantial justice and the merits of the case". It was submitted that the Tribunal did not sufficiently investigate the case that the applicant sought to make and that it did not sufficiently inquire as to whether he had a well-founded fear of persecution because he is a member of the Shikal clan. It is enough to say that the Tribunal asked the applicant to explain why he feared death on his return to Somalia. It is not arguable that the Tribunal erred in fulfilling its obligations under s 420(2)(b) of the Act. It is therefore unnecessary to canvass issues of the kind that are dealt with in Eshetu's Case[1997] FCA 603; , (1997) 71 FCR 300. An appeal to this Court has been heard but not determined.

The application for order nisi is refused. The interlocutory injunction restraining the applicant's removal is discharged.

Is there any other application?

MR GUNST: I make an application for costs.

HIS HONOUR: Is there any point to that application, Mr Gunst?

MR GUNST: I understand the force of what your Honour says. I make the application. The application has been brought consistent with - and the first respondent has been successful. In the ordinary course, as your Honour well understands, the successful litigant is not to be deprived of his costs.

HIS HONOUR: I understand. Is there anything you can say against it, Ms Mortimer?

MS MORTIMER: No, your Honour.

HIS HONOUR: The application will be dismissed with costs, including reserved costs. I will certify for the attendance of counsel. The interlocutory injunction granted by Justice Kirby and extended by orders made by me on 4 and 9 November 1998 is discharged.

MS MORTIMEKR: Your Honour, I make application under Order 70 rule 10 of the High Court Rules for a stay of your Honour's orders, pending an appeal.

HIS HONOUR: Yes.

MS MORTIMER: I do so on the basis of the submission that, although that is an extraordinary exercise of jurisdiction, it is necessary in this matter to preserve the subject matter of the litigation because if the order is not made, this applicant will be removed immediately.

HIS HONOUR: What rights of appeal have you? Is it by leave only?

MS MORTIMER: It is by leave, your Honour, yes.

HIS HONOUR: It seemed to me that it was by leave, but you do not dispute that.

MS MORTIMER: No.

HIS HONOUR: Does it then follow that considerations of the kind considered by Justice Brennan as he then was in Burgundy Royale are the appropriate kinds of consideration to take to account in determining - I think it would not be a stay. It would, I think, probably be in the form of injunction pending appeal that would be what you would need, I think, to - - -

MS MORTIMER: I was not sure, your Honour, what would be the appropriate orders. I was looking at a decision of his Honour Justice Toohey, was the only relevant one I could find in a case called Re Media Entertainment and Arts Alliance, Ex parte Hoyts Corporation. It is a decision in 1993. That was, your Honour, a similar situation in the sense that that was an appeal from an interlocutory order where the applicants needed leave to appeal. In that case, what his Honour Justice Toohey did was to grant a stay.

HIS HONOUR: A stay of what, though?

MS MORTIMER: That was a stay for proceedings, yes.

HIS HONOUR: I suspect - and I rather suspect nothing turns on this in that it may be the same principles apply, but I rather suspect that it may be injunction pending appeal would be what would be required, injunction of the kind spoken of by Vice-Chancellor Megarry in Erinford Properties v Cheshire County Council, somewhere round 1975 Chancery. But that, Wilson v Church and related cases are the ones that come to mind.

But leave aside for the moment whether it is injunction or stay for, as I say, I do not think that is the real problem. If you have only an appeal by leave, what do you say are the principles that should govern whether I grant or refuse relief of the kind you seek?

MS MORTIMER: Your Honour, in my submission your Honour need only turn your mind to whether it is essential to preserve the subject matter of the litigation. I say that, your Honour, because my submission is that the application for an injunction, a fuller injunction, is one properly made to the Full Court. Given that your Honour has given judgment that there is no arguable case then, in my submission, all we need seek from your Honour today is a very short injunction - if that be the appropriate one - or a stay so that application - and perhaps, your Honour, it would be a convenient way for it to be dealt with and, of course, I am in the Court's in this, but there be an application for leave to appeal in combination with an application for an injunction and that that be made to the Full Court and that there be a very interim one given.

HIS HONOUR: It would be interim in the sense that it would preserve the position until the first available special leave day or motions day on which that could be returned, and that would be some time next year. But assume for the moment that that is the subject matter for debate. Upon what principles do I decide whether I should or should not grant such relief?

MS MORTIMER: Your Honour ought to be, in my submission, guided essentially by the kind of principle in Tait, that if this applicant is not granted some kind of interim relief the subject matter - the whole point of the litigation, the subject matter of it, will disappear because he will be removed from Australia and the case taken away from under him, so to speak. So that - - -

HIS HONOUR: That I can understand more readily if there is a right of appeal. If there is a statutory right of appeal, then that right should not be set at naught, in effect, say, for cause shown. But where, as here, there is appeal only by leave, I wonder - and I invite submission on - whether some different set of principles should apply, in particular whether principles of the kind spoken of in the Burgundy Royale Case ought to be applied, that is yes, there is jurisdiction, there is power to grant these orders, but their grant is unusual. Now, I perhaps do not summarise Burgundy Royale sufficiently accurately, but you are, I think, familiar with it.

MS MORTIMER: Your Honour, that is, in my submission, precisely the kind of test that Justice Toohey applied in....., that the test may be more or less the same in principle, and in a case where one is dealing with the removal of an individual to a dangerous situation and the removal completely from Australia, in a sense, where he is not permitted to come back, then that is an unusual kind of situation. This is not a commercial dispute, this is not a question of money, it is not a question of rights that can subsequently be pursued in some other forum; it has none of the attributes of, in my submission, almost any other interlocutory application. In other interlocutory applications, a lot of money may be lost as a result of an unsuccessful application; a property may be destroyed; but it is very unusual, your Honour, to have the result of an interlocutory application being dismissed being a real likelihood that someone may be killed or may suffer serious harm. Put aside whether it is for a Convention reason or not, whatever the reason, that that kind of prospect on an unsuccessful interlocutory application, in my submission, is extraordinarily unusual and ought to persuade your Honour that this is the kind of situation where the applicant ought to have a right to agitate his case before the Full Court.

I say that, your Honour, in the circumstances of this being a situation that has had to be brought on very quickly, argued quickly, and the case gathered together quickly. Now, it has had to proceed at a rate that may have meant that some of the issues have not been able to be explored as fully as they would. Why I say that, your Honour, is that we may well be able to persuade a Full Court that there is something arguable in what we have said that we have not been able to expound properly before your Honour. That is a secondary side to the submission, your Honour.

The primary thrust of the submission is that unless such an application is granted, the consequences are likely to be - and your Honour need be satisfied no more than likelihood - and what your Honour needs to be satisfied about is two sets of consequences: one, which is beyond doubt, and that is that this man will be removed from Australia, that he will be taken out of the jurisdiction with no right to come back. So that that side of his case will disappear. Then there is the other aspect, your Honour, which my submission on the evidence, even before your Honour in this case, was likely and that is that he may suffer serious harm. Put aside why. But that is not a proposition, in my submission, that can be properly contradicted by the Minister. There is enough evidence that Somalia is one of the most lawless, most violent countries in the world and, your Honour, has had intervention by Amnesty International and is a case that is an extremely unusual step. And it is my submission it is something your Honour is entitled to take into account.

Now, what we are hampered by, your Honour, is that because of the time of year that this is being heard, there will be a considerable gap before the next special leave.

HIS HONOUR: For the moment, at least, without hearing from Mr Gunst, Ms Mortimer, the intervening time is not something that weighs on me at all. If you were to persuade me that you should have injunction or stay, then the fact that it might get on before a Full Court next week - and that is just the pressure of business on the Court - the fact that it may not be able to come on until next year does not seem to me to weigh at all in the balance. Either you are entitled to injunction or stay or you are not. When we can get it on depends on the pressures that are on the Court.

MS MORTIMER: Your Honour, I put that only in the sense that I anticipate it might be put against me that, in the circumstance where we have not been successful in resisting a removal, that that gives the applicant some kind of advantage that your Honour ought not to take into account.

HIS HONOUR: Leave time out of it for the moment, that is leave the intervening time - perhaps Mr Gunst will persuade me I should not - but leave that out. Am I entitled to, should I take any account of the prospects of your succeeding in obtaining leave?

MS MORTIMER: That requires your Honour, in my submission, to be, with respect, somewhat schizophrenic and to divorce your Honour from - - -

HIS HONOUR: Precisely what Vice-Chancellor Megarry said in Erinford. It is engraved on my heard, Ms Mortimer, "No human being is infallible", and for none are there more public demonstrations of fallibility than judges. It is a problem, yes, but - - -

MS MORTIMER: That is why, your Honour, it had been - ordinarily, your Honour, perhaps, say, in the Federal Court, that an applicant has a choice between applying to the single judge who made the order for leave or applying to the Full Court. This applicant's intention had been to apply to the Full Court. Now, because of what your Honour said about the gap between today and the next special leave hearing, that application would to some extent be pointless because then the application for leave to appeal could be heard.

HIS HONOUR: There are leave days in Melbourne and Sydney next Friday but both of those are, as I would understand it, well and truly allocated. As I say, for the moment the intervening time is not what troubles me. I might well be persuaded otherwise presently, for the moment not.

MS MORTIMER: Having heard your Honour's reasons, my submission would focus in relation to leave to appeal primarily on three grounds: the two grounds of the removal and the what I should call the Eshetu ground in relation to the - no, I withdraw that. The failure to follow proper procedures - and that was the matter that we addressed your Honour about about the nature of the questioning and the nature of the role of the Tribunal - that is a matter that we would wish to argue on appeal and, in my submission, from what I heard of your Honour's judgment, it is not a matter that has been dealt with in a great deal of depth. With respect, your Honour, it is very difficult to make these submissions..... gave the order in.

HIS HONOUR: No human being is infallible and the Full Court at the moment is examining one of my pieces of fallibility in Canberra. So, you know, these things do not come to a Judge in a great and abiding shock, Ms Mortimer. My last civil judgment in the Court of Appeal is presently the subject of hearing in Canberra.

MS MORTIMER: We may be in good company then, your Honour.

HIS HONOUR: That is right. It will not be alone.

MS MORTIMER: Your Honour, so we put it on the basis that our argument would probably be, and as I formulated now, that we would say that there was sufficient factual basis. Now, that will be very difficult for us to get up on appeal, but seeing it is mostly a factual basis and documentation, we would say that that would be an error. The other question, your Honour, is the question of when removal starts and finishes.

HIS HONOUR: Does that not stand or fall, though, on the factual basis?

MS MORTIMER: Your Honour, no, our submission is the contrary. Our submission is that removal - one has to decide that question of law and where one defines that removal finishes at the aeroplane, then one assesses the facts against that.

When one decides that removal finishes at Mogadishu airport, then one decides the facts against that. Having heard your Honour's reasons, at the moment, I submit, that is probably likely to be our major ground of appeal. If your Honour is minded not to grant any kind of interlocutory relief, then I would at least seek some leave perhaps to come back and argue more fully the way that we would put it because, in my submission, it would be - - -

HIS HONOUR: Do you want more time? If you do, now is the time to ask for it, Ms Mortimer, and if you do want more time, how much more time do you want?

MR MORTIMER: I would like first an indication whether your Honour thinks it is inappropriate that this matter be listed in relation to interlocutory relief before the Full Court on Friday?

HIS HONOUR: Look, I have not made inquiries of the Registrars in Melbourne and Sydney but I know for a fact that the leave days are assigned a long time ahead.

MR MORTIMER: Because our preferred position, your Honour, is that this application ought to be made to the Full Court.

HIS HONOUR: All that assumes that I would give you a stay or injunction until Friday.

MR MORTIMER: Yes, your Honour.

HIS HONOUR: As I say, at the moment, the length of it - - -

MR MORTIMER: Yes, I understand that.

HIS HONOUR: - - - is not appreciably - as I say, I may be quite wrong about that and my errors may well be demonstrated by Mr Gunst, but the length of the time does not trouble me. What troubles me at the moment is should you have any relief and, at the moment, it seems to me that the principal hurdle you have to surmount is the hurdle of persuading me that appeal has prospects. Now, accepting, as I do, the difficulty of persuading a judge who has said a case is unarguable, that an appeal from that is arguable, and trying as best I may to confront that difficulty square on, for the moment that is the difficulty that I see you facing.

Now, buried in that is an assumption about the principles to be applied. At least, as I understand your submissions for the moment, you have not disputed that I may take account of that. As at present advised, it would seem to me I ought to take account of that. But if you are asking for time, I want to know, and how much time, and when?

MR MORTIMER: All right, your Honour. Your Honour, what I would ask for at the moment is five minutes just to consult with my instructor. Your Honour, I do not have my client here.

HIS HONOUR: I understand.

MR MORTIMER: Now, that is a matter that I do wish to raise with your Honour, particularly in this circumstance: we asked last week, quite clearly, and it was refused. Now, your Honour, this is a matter - it has happened again before your Honour the first time in this case. Now that I am faced with this situation and I have my client's instructions to appeal but I do not have my client's instructions any further than that. Now, it is a most unsatisfactory situation that the Minister will not allow a man whose appeal has been dismissed or application has been dismissed and is about to be sent back to be actually present in Court to hear that.

So, at the moment, your Honour, I ask for five minutes to consult with my instructor and to see whether we think it is necessary at least to call the client, and ask for no more time than that at the moment, your Honour.

HIS HONOUR: Well, it is about 10.22 am, Ms Mortimer. I will come back at 10.35 am.

MR MORTIMER: If your Honour pleases.

AT 10.22 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.40 AM:

HIS HONOUR: Ms Mortimer.

MS MORTIMER: I am grateful for the time, your Honour. Your Honour, I do want to address your Honour a little bit more about the principles and what I have been looking at and a number of the decisions in relation to the granting of interlocutory relief pending an application for special leave. One in particular I refer you to is - I do not have a copy with me in Court, but it is Smith Kline & French Laboratories v Secretary of Department of Community Services and Health [1991] HCA 13; (1991) 99 ALR 417. In the decision of Chief Justice Mason what his Honour said in that case was that no doubt the High Court had inherent jurisdiction to grant an injunction to preserve the subject matter of the litigation pending determination of the application for special leave but that it was extraordinary jurisdiction and should only be exercised in exceptional circumstances.

Now, the matters that his Honour considered in that case were these: that the applicants for special leave had been unsuccessful at each stage in the courts below. Now here, your Honour, apart from the RRT, which was a merits review, there has only been one stage and that is the proceeding before your Honour. This is not an applicant that has gone through single judge in the Federal Court, Full Federal Court and then some how, as has happened in some other cases in this jurisdiction, to your Honour. So that does not apply. The Chief Justice then looked at the fact that the applicants would need to overturn adverse findings of fact by the primary judge. Now, we are not in that situation relevantly - - -

HIS HONOUR: Why not?

MS MORTIMER: Relevantly to the matters that I am going to direct your Honour to three grounds of appeal, and we say that we are not in that situation. Where the applicants could not demonstrate that the intermediate appeal court had applied substantive principles different from those applied by the primary judge. That is not one that would apply particularly in this case because we do not have those two levels but it is relevant in that one of the matters that I am going to draw to your Honour's attention does relate to, we would say, an arguable substantive principle. That is the last matter that his Honour considered.

Now, we do have to satisfy your Honour that there are some prospects and the kinds of descriptions that are used in the cases, in my submission, are things like "a real chance" or "a substantial prospect" but we do not have to persuade your Honour that we will succeed, but we do have to persuade your Honour there is "a real chance" and in this jurisdiction we are all familiar with what that phrase means.

Now, the three errors at the moment that I put to your Honour that we would seek to attack would be, firstly, in relation to the removal questions. We would say that there was an error in the judgment in not determining whether, as a matter of law, removal is complete when a person boards a plane or where the plane leaves territorial waters or whether, in fact, it is not complete until a person arrives at a chosen destination. That is a construction of the removal power, the extent of - construction of the point at which a removal is complete under this legislation is necessary before one can go and look at the facts in relation to the question of in whose custody a person is and whether someone is acting as an agent or not as an agent. We say all those bear on the question of when a removal is complete. That would be the first ground, your Honour.

The second would be the Eshetu ground, the improper procedures. That is, whether the RRT failed to conduct the hearing in a manner which enabled the RRT itself properly to ascertain the nature of this man's claims and we say that that is an obvious failing on the transcript when one reads it. That would be our second ground.

The third ground, your Honour, would be the reasonableness of the removal. Again, what we would highlight, your Honour, is really an error in construction, that is, the question being does one construe the nature of the power by reference to the consequences? That is, if one is contending that a power must be exercised reasonably and the consequences are either a significant change in the status quo for the person who exercises the power or are inconvenient for the person who exercises the power, are those matters that ought to bear on whether the power needs to be exercised reasonably? That is, are those matters that ought to determine that it can be sustained that a power need not be exercised reasonably?

So, in this situation, although, in fact, imposing a reasonableness construction on the power of removal may produce the consequences that there is some kind of secondary protection regime that results in Australia because people who have been refused protection visas may get to stay anyway or that the Minister is compelled to exercise something. We say that addressing those consequences is not an appropriate way of construing whether a power needs to be exercised reasonably or not. So, that would be the third ground.

We say in relation to those, your Honour, and particularly in relation to the first one, that there is a real chance, because that is a question that has not been the subject of any judicial determination and, in my submission, has not been the subject in your Honour's judgment of any determination and it is one that we say is necessary before one can go on and construe how removal is properly or lawfully affected. If your Honour pleases.

HIS HONOUR: Yes. Mr Gunst.

MR GUNST: Your Honour, I wish to make three points in response. The first two are not particularly important and I will state them briefly and put them to one side, and the third is of fundamental importance.

The first point is this: it relates to the form of any order your Honour might make. The form is not important. In my submission, in fact it would be injunction not stay. There is no deportation order in force. This is a removal by force of statute. So, it is not that your Honour would grant a stay in the way one stays a judgment or some other form of order. Now, that is the first point.

The second point relates to time. Time is not particularly important even if the next available special leave day was, let us say, a date in February. That would be a delay of some three months. There is a cost to the Australian taxpayer of detention. I mention that but say nothing more about it. In the scheme of things, your Honour ought place little or no weight on the question of the delay.

HIS HONOUR: The latter.

MR GUNST: The third point, however, is an important point and it is the question of principle. The applicant must show some substantial prospect of success of a successful appeal against your Honour's judgment and that means a successful application for leave to appeal and then a substantial prospect of success of the appeal because, as your Honour rightly observed earlier, there is no right of appeal here.

May I remind your Honour that the applicant sought refugee status and was unsuccessful before a departmental delegate. He was unsuccessful before the Refugee Review Tribunal. He contemplated an appeal against the RRT's decision to the Federal Court but was apparently advised, as your Honour recalls on the evidence, by his then legal advisers that he had no prospects of success of an appeal against the RRT's decision. He then, many months later, came before your Honour and the matter has been argued over two partial days since then. A number of grounds were put forward in a very seemingly compelling and attractive way. In the end and on analysis, there was no merit whatsoever in the application made to your Honour and your Honour has rightly dismissed it.

There was no merit in the application to your Honour. There is no merit or, to put it the other way, no prospect of success of an application for leave to appeal. In that event, it would not be appropriate for your Honour to make an order in the form of an injunction restraining removal, in effect, forthwith.

The alternative consequence, of course, your Honour, would be injunction for the asking in this Court where one has a claim that is meritless at each stage of the review but, nonetheless, one is entitled to come to a Judge of this Court and seek an injunction just for the asking, in the end. There were no prospects of success of this application. There are no prospects of success of an application for leave to appeal and there are no prospects of success of the appeal. Your Honour's judgment was right and there must be, in the end, an end to matters such as this in this Court. If your Honour pleases.

HIS HONOUR: Yes. Ms Mortimer.

MR MORTIMER: I have no reply, your Honour.

HIS HONOUR: Does it matter, Ms Mortimer, that the issue before me on an application for an order nisi was - in effect, is there a case for inquiry? It is a rather different issue from the issue that we are more used to in litigation which is does A win or B win. This was: is there a case for inquiry? Do you say that anything turns on that either for you or neutrally?

MR MORTIMER: Yes, your Honour, in the sense that that ought to set a lower threshold. Now, my learned friend will say, of course, "Well, you haven't even managed to get over that." We would say, your Honour, as we did say in submissions to your Honour during this case, that there are a number of extremely novel issues surrounding the power of removal. Now, put to one side your Honour's findings about there being no factual basis, in my submission, it is very difficult to come to a conclusion that there is no case for inquiry in a sense that no factual basis is made out when the principles of law are so uncertain. They must be, your Honour, uncertain because there have been no cases about removal. We are always arguing by analogy at the moment. That is all we have: analogy with deportation; old deportation cases, your Honour, many of them pre the Refugees Convention; many of them pre the assumption by Australia of a great deal of supposedly significant human rights obligations.

None of those cases have dealt with these issues in the context of the position of Australia internationally today, that is, in the 1990s and the obligation that has assumed, the impact of the Refugees Convention and, also, your Honour, the state of civil war that these people are fleeing, if that be all that they are fleeing. Now, all those matters are not even debated in the deportation cases, let alone there being any authority in relation to removal. So that when one is driven to ask, "Is there a case for inquiry?", my submission is that it cannot be looked at simply on the basis of saying, "Well, there may not be enough facts." I am not persuaded of that without more emphasis being given in this kind of situation to the uncertainty of the principles that are to be applied, and come to a conclusion that there is no factual basis when the state of the law and the state of the principles are still so uncertain, in my submission, is an error. If your Honour pleases.

HIS HONOUR: Yes, thank you.

For the reasons which I gave earlier I have ordered that the applicant's application for orders nisi be dismissed and that the interim injunction restraining his removal from Australia be discharged.

The applicant wishes to appeal from those orders. It is accepted that no appeal lies as of right and that leave to appeal would be necessary. It was submitted that I should now grant a stay pending application for leave to appeal but, on further examination of the matter in the course of argument, it emerged that the application amounts to one for injunction pending hearing and determination of the application for leave to appeal. I do not doubt the Court's jurisdiction to grant such an order. The question is not one of whether the Court can make such an order but whether such an order should be made in this particular case.

In Erinford Properties Ltd v Cheshire County Council (1974) Ch 261 Justice Megarry said at 267-268 that:

where the application is for an injunction pending an appeal, the question is whether the judgment that has been given is one upon which the successful party ought to be free to act despite the pendency of an appeal. One of the important factors in making such a decision, of course, is the possibility that the judgment may be reversed or varied. Judges must decide cases even if they are hesitant in their conclusions; and at the other extreme a judge may be very clear in his conclusions and yet on appeal be held to be wrong. No human being is infallible, and for none are there more public and authoritative explanations of their errors than for judges. A judge who feels no doubt in dismissing a claim to an interlocutory injunction may, perfectly consistently with his decision, recognise that his decision might be reversed, and that the comparative effects of granting or refusing an injunction pending an appeal are such that it would be right to preserve the status quo pending the appeal.

His Lordship's comments were made in the context of pursuit of an appeal as of right. As his Lordship said, the question that he had to consider was whether the judgment that had been given was "one upon which the successful party ought to be free to act despite the pendency of an appeal". Other considerations therefore intrude in a matter such as the present where there is no appeal as of right.

The application which has been heard and now determined was an application for orders nisi for prerogative relief. I have held in effect that no case for inquiry has been made out and that the application for orders nisi should be dismissed. There being no appeal as of right from that decision the question is not whether the successful party, in this case the Minister, should be free to act on the decision despite the pendency of an appeal. The question is whether the Minister, and more relevantly the officers of the Department, are to give effect to their statutory obligation to remove the applicant notwithstanding the applicant's expressed desire to test the decision which I have given.

In these circumstances, considerations of a kind not markedly different from those that have been considered in connection with applications for stay pending hearing of application for special leave to appeal may apply, see Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] [1986] HCA 84; (1986) 161 CLR 681, particularly at 684 to 685. The analogy with such cases is of course imperfect. As counsel for the applicant pointed out, in a matter such as the present the applicant has not had the case considered by successive courts in the judicial hierarchy. Nevertheless I did not understand the applicant to dispute that in considering whether to grant injunction pending appeal consideration should be given, amongst other things, to the prospects of that leave being given.

It is clear that if injunction is not granted the application for leave cannot, and will not, be pursued. I approach the determination of the present matter on the further assumption that any consideration of the balance of convenience is wholly tipped in favour of the applicant. For present purposes I assume that if there is any competing factor in the other pan of the balance, it is so slight as to be discarded from consideration. Attention then must focus upon whether there is a sufficient prospect of success on the application for leave to appeal to warrant the grant of injunction. In considering that I must keep at the forefront of my mind the injunctions described by Justice Megarry that "No human being is infallible, and for none are there more public and authoritative explanations of their errors than for judges."

Counsel for the applicant said that as at present advised she would seek to agitate three areas in the application for leave to appeal, namely questions concerning the power of removal and, in particular, when removal from Australia is complete, questions concerning the procedures adopted by the Tribunal of a kind that may conveniently be described as the Eshetu point and questions about the reasonableness of removing the applicant to a destination which he contends is not safe for him. I am not persuaded that any of these grounds enjoys a sufficient prospect of success to warrant interruption of the statutory procedure that will now follow.

In my opinion the application for injunction should be refused.

MS MORTIMER: If your Honour pleases.

MR GUNST: If your Honour pleases.

HIS HONOUR: In addition then to the orders which I earlier pronounced, there will be a further order.

Refuse application for injunction pending hearing and determination of application for leave to appeal restraining removal of applicant from Australia.

The other orders will be as I have pronounced.

Is there any other matter which counsel desire to raise?

MR GUNST: No, your Honour.

MR MORTIMER: No, your Honour.

HIS HONOUR: I will adjourn.

AT 11.07 AM THE MATTER WAS CONCLUDED