CATCHWORDS

 

 

 

 

ADMINISTRATIVE LAW - Migration Act 1958 - Refugee Review Tribunal - whether error of law - evidence to support finding that detention was not by reason of political activities - failure by Tribunal to mention evidence - does not necessarily indicate unreasonableness or failure to take into account relevant considerations - Tribunal's assessment of credit of witness not unreasonable - Court cannot substitute its view of a witness' credibility for that expressed by the Tribunal in the absence of an error of law - procedural fairness - no denial of procedural fairness where applicant for refugee status not immediately informed of entitlement to seek legal advice and representation - extent of entitlement to representation before Tribunal - no reasonable apprehension of bias on the part of the Tribunal.

 

 

 

IMMIGRATION LAW - Refugee status - well-founded fear of persecution - a "real chance" of persecution - factual finding not disturbed.

 

 

IMMIGRATION LAW - Withdrawal of children's application for refugee status - effect on other proceedings in which children are nominated as dependants - procedural fairness - obligation to give opportunity to argue the effect of the withdrawal.

 

 

 

Administrative Decisions (Judicial Review) Act 1977, ss 5(a),(e),(f),(h), (2)(b),(g).

 

Migration Act 1958, ss 22AA, 54L, 54P, 96, 166DD(6), 166E(1).

 

Convention Relating to the Status of Refugees, Art. 1A(2).

 

 

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 379

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1

Dornan v Riordan (1990) 24 FCR 564

Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648

Huntley v Attorney-General for Jamaica [1995] 1 All ER 308; [1995] 2 WLR 114

Independent FM Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 3 BR 458

Kioa v West (1985) 159 CLR 550

Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 395

Minister for Immigration, Local Government and Ethnic Affairs v Immigration Review Tribunal (1993) 41 FCR 71

Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 127 ALR 223

New South Wales v Canellis (1994) 124 ALR 513

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465

Premalal v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 117

Rees v Crane [1994] 2 AC 173

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GUO WEI RONG & ORS v MINISTER FOR IMMIGRATION, ETHNIC AFFAIRS & ORS

 

 

Nos. AG 48, 52, 56 and 57 of 1994

 

 

 

 

 

 

Sackville, J.

4 May 1995

Sydney.

 

FEDERAL COURT OF AUSTRALIA               )      No. AG 48 of 1994

NEW SOUTH WALES DISTRICT REGISTRY        )      No. AG 52 of 1994

GENERAL DIVISION                         )      No. AG 56 of 1994

                                    )   No. AG 57 of 1994

 

 

 

 

 

 

                             BETWEEN:

                             GUO WEI RONG

                                           Applicant

 

                             AND:

                             MINISTER FOR IMMIGRATION AND

                             ETHNIC AFFAIRS

                                           First Respondent

 

                             AND:

                             MS S. McILLHATTON,

                             Member constituting the Refugee Review Tribunal

                                           Second Respondent

 

 

 

                             BETWEEN:

                             PAN RUN JUAN

                                           Applicant

 

                             AND:

                             MINISTER FOR IMMIGRATION AND

                             ETHNIC AFFAIRS

                                           First Respondent

 

                             AND:

                             MS S. McILLHATTON,

                             Member constituting the Refugee Review Tribunal

                                           Second Respondent

 

 

                             BETWEEN:

                             MARION ROSE LE as next friend/guardian for LIN YAN and LIN JING

                                           Applicant

 

 

                             AND:

                             MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

                                           First Respondent

 

                             AND:

                             Mr G. WALLIS,

                             Manager, Port Hedland Immigration Reception and Processing Centre

                                           Second Respondent

 

                             AND:

                             MS S. McILLHATTON,

                             Member constituting the Refugee Review Tribunal

                                           Third Respondent

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CORAM:        SACKVILLE J.

PLACE:        SYDNEY

DATE:              4 MAY 1995        

 

 

 

 

                      MINUTES OF ORDER

 

 

THE COURT:

 

 

1.   Orders that the applications in proceedings numbered AG 48 of 1994 and AG 52 of 1994 be dismissed.

 

2.   Directs the applicants, in proceedings numbered AG 56 of 1994 and AG 57 of 1994, to submit short minutes of order in accordance with this judgment.

 

 

 

 

NOTE:         Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

FEDERAL COURT OF AUSTRALIA              )       No. AG 48 of 1994

NEW SOUTH WALES DISTRICT REGISTRY       )       No. AG 52 of 1994

GENERAL DIVISION                        )  No. AG 56 of 1994

                                   )    No. AG 57 of 1994

 

                             BETWEEN:

                             GUO WEI RONG

                                           Applicant

 

                             AND:

                             MINISTER FOR IMMIGRATION AND

                             ETHNIC AFFAIRS

                                           First Respondent

 

                             AND:

                             MS S. McILLHATTON,

                             Member constituting the Refugee Review Tribunal

                                           Second Respondent

 

 

                             BETWEEN:

                             PAN RUN JUAN

                                           Applicant

 

                             AND:

                             MINISTER FOR IMMIGRATION AND

                             ETHNIC AFFAIRS

                                           First Respondent

 

                             AND:

                             MS S. McILLHATTON,

                             Member constituting the Refugee Review Tribunal

                                           Second Respondent

 

 

                             BETWEEN:

                             MARION ROSE LE as next friend/guardian for LIN YAN and LIN JING

                                           Applicant

 

                             AND:

                             MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

                                           First Respondent

 

                             AND:

                             Mr G. WALLIS,

                             Manager, Port Hedland Immigration Reception and Processing Centre

                                           Second Respondent

 

                             AND:

                             MS S. McILLHATTON,

                             Member constituting the Refugee Review Tribunal

                                           Third Respondent

 

 

 

 

 

 

CORAM:        SACKVILLE J.

PLACE:        SYDNEY

DATE:              4 MAY 1995

 

 

 

 

                    REASONS FOR JUDGMENT

 

I.   INTRODUCTION

 

The Parties

These are four proceedings in which applicants seek review of certain decisions made by or on behalf of the Minister for Immigration and Ethnic Affairs ("the Minister") and by the Refugee Review Tribunal, constituted by Ms S. McIllhatton.  The applicants in proceedings numbered AG 48 and AG 52 of 1994 are, respectively, Guo Wei Rong ("Mr Guo") and Pan Run Juan ("Ms Pan").  Mr Guo and Ms Pan are husband and wife.  In proceedings numbered AG 56 and AG 57 of 1994 Mrs Marion Rose Le is the applicant as next friend for Lin Yan (No. AG 56 of 1994) and Lin Jing (No. AG 57 of 1994).  Lin Yan and Lin Jing, who are now aged, respectively, 13 and 10, are nieces of Mr Guo and Ms Pan.  I shall refer to Mr Guo, Ms Pan and the two nieces collectively as "the applicants". 

 

There was some dispute as to the appropriate designation for the Tribunal, which was the second respondent to the proceedings

 instituted by Mr Guo and Ms Pan, and third respondent to the proceedings instituted by the nieces.  Ultimately the parties agreed that the designation should be "Ms S. McIllhatton, Member constituting the Refugee Review Tribunal".  In any event, the Tribunal submitted to any order of the Court, save as to costs.  The Tribunal member, Ms McIllhatton, did, however, give evidence in the proceedings.

 

The Proceedings

The four applicants arrived in Broome, Western Australia, on 5 December 1993, on board a boat designated by the Department of Immigration as the "Quokka".  Mr Guo and Ms Pan were accompanied by two of their three children.  The group travelling on the Quokka also included Mr Guo's brother, Guo Wei Zhi and Ms Pan's brother, Pan Run Fu.  Mr Guo Wei Zhi and Mr Pan Run Fu have lodged their own applications in this Court for review of determinations of the Refugee Review Tribunal denying them refugee status, but these applications are to be heard separately from the present proceedings. 

 

The applicants were detained in custody on arrival, pursuant to s.54B of the Migration Act 1958 ("the Act") and have remained in custody since that time.  Since none of the applicants has been granted an entry permit, none is taken to have "entered" Australia: s.54B(2).  An unusual feature of the case is that Mr Guo and Ms Pan had previously travelled to Australia in 1992 on a boat known as the "Jeremiah", together with one of their children.   Their applications for refugee status were denied at that time, and Mr Guo and Ms Pan were deported to China in October 1992.  On 11 December 1993, after their second arrival in Australia, Mr Guo and Ms Pan made fresh applications for refugee status.

 

On 31 January 1994 the Minister's delegate refused applications by Mr Guo and Ms Pan for a determination that they were refugees.  The delegate, at the same time, refused the application by each of Mr Guo and Ms Pan for a Domestic Protection (Temporary) Entry Permit ("DPTEP") and for a Domestic Protection (Temporary) Visa ("DPTV").  Mr Guo and Ms Pan each applied to the Refugee Review Tribunal for review of the Minister's decision.  On 19 May 1994 the Tribunal affirmed the decision of the delegate that neither of the applicants was a refugee under the Convention Relating to the Status of Refugees signed at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees signed at New York on 31 January 1967 ("the Convention").  The Tribunal also affirmed thedelegate's decision to refuse a DPTEP or a DPTV to Mr Guo and Ms Pan.

 

The applications filed on behalf of Mr Guo and Ms Pan rely on the Administrative Decisions (Judicial Review) Act 1977 (the "ADJR Act") and s.39B of the Judiciary Act 1903.  Among other things Mr Rares SC, who appeared with Ms Sofroniou and Mr Lawler for all four applicants, attacked the decisions made by the Minister's delegate and the Tribunal on the grounds (among others) that they were affected by errors of law and, in the case of the Tribunal, by a failure to accord Mr Guo and Ms Pan procedural fairness. 
Mr Rares also contended that the conduct of the Tribunal gave rise to a reasonable apprehension that it was biased against Mr Guo and Ms Pan.

 

As will be seen from the remainder of this judgment, Mr Rares raised a very large number of issues for consideration.  The Tribunal's decisions concerning Mr Guo and Ms Pan depended very largely on findings of fact.  These, in turn, were based on the Tribunal's assessment of the credit of Mr Guo and Ms Pan, both of whom gave evidence before the Tribunal.  It is necessary to remember that the power of the Court to review Tribunal decisions is limited to cases involving errors of law or any of the other grounds specified in the ADJR Act.  The Court does not conduct hearings de novo for the purpose of trying afresh factual questions determined by the Tribunal.  This point was sometimes overlooked, or at least given insufficient attention, in the submissions.

 

The Nieces

The history of applications and determinations made in relation to the two nieces is somewhat confusing.  The two nieces were included as dependants in the applications of Mr Guo and Ms Pan for refugee status.  However, the older niece, Lin Yan, also signed an application for refugee status on 11 December 1993, nominating her sister, Lin Jing, under the heading "Other Family members".  No separate application was lodged by, or on behalf of, Lin Jing.

 

On 31 January 1994, the same day that the Minister's delegate refused the applications of Mr Guo and Ms Pan, the delegate  refused Lin Yan's application.  Lin Yan immediately applied for review of the decision refusing her refugee status, nominating Mrs Le as her adviser in relation to the application for review.  An application for review was also lodged by Lin Jing. 

 

Mrs Le is a migration agent.  In April 1994, in circumstances to be explained later, Mrs Le wrote letters on behalf of both nieces withdrawing their applications for review, on the ground that each had been listed as a dependant of Mr Guo and Ms Pan and that it was inappropriate that they should have applications in their own right.  The Tribunal ruled, in dealing with the applications of Mr Guo and Ms Pan, that there was no jurisdiction to consider the claims of the nieces, since the delegate had not considered their status as dependants of Mr Guo or Ms Pan.  In the meantime, the separate application of Lin Jing was treated by the Tribunal as having been withdrawn.

 

On 18 July 1994 the nieces were served with notices of removal, with a view to their deportation from Australia the following day.  The notices relied on s.54P(3) of the Act, which required a "designated person" to be removed from Australia as soon as practicable, in circumstances where an entry application had been refused and all appeals or reviews had been exhausted.  Following urgent hearings before Gallop J. on 20 and 21 July 1994 and the Full Court on 22 July 1994, undertakings were given not to deport the nieces, pending the determination of the current proceedings.

The proceedings brought on behalf of the nieces in this Court attack the delegate's decision to deny refugee status to Lin Yan and/or Lin Jing and the Minister's decision to remove them from Australia pursuant to s.54P(3) of the Act.  The proceedings also seek relief in relation to the decision of the Tribunal to treat the nieces' applications for review as having been withdrawn by the actions of Mrs Le.  As will be seen, it emerged that there was more common ground between the representatives of the Minister and of the nieces than the pleadings or, indeed, the interlocutory proceedings, might have suggested.  In the end it has not been necessary to deal with all issues raised on behalf of the nieces.

 

It should be noted that another unusual feature of the present case, relevant to the nieces' application, is that their mother, Mrs Guo Xiu Juan, arrived in Darwin on 22 November 1994, on a boat codenamed "Cockatoo".  Mrs Guo, who had no entry permit or visa, lodged an application for refugee status on 27 November 1994.  No determination of that application apparently had been made by the time the hearing before me had concluded.  As will be seen, the existence of Mrs Guo's application is relevant to the position of the nieces.

 

 

II.  THE LEGISLATION

The Statutory Framework

There was no dispute that the relevant statutory provisions were contained in the Act, as it stood prior to the enactment of the Migration Legislation Amendment Act 1994, which came into force on 1 September 1994.  Section 22AA of the Act, in that form, provided as follows:

 

     "22AA  If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee".

 

 

"Refugee" was given the same meaning as it has in the Convention: s.4(1).  Article 1A(2) of the Convention defines a refugee as a person who,

 

     "...owing to well-founded fear of being persecuted for reasons of race, religion,  nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

 

 

 

An application for determination of refugee status had effect also as an application for a DPTEP and a DPTV: Migration (1993) Regulations, reg. 2A.5.

 

As I have said, each of the applicants was detained upon arrival in Australia, pursuant to s.54B of the Act.  Under that section, a so-called "unprocessed person" was taken not to have entered Australia unless he or she was granted an entry permit: s.54B(2)(a).  Since none of the applicants had "entered Australia", none was eligible to receive a DPTV unless he or she had been determined by the Minister to have refugee status: Migration (1993) Regulations, reg. 2.2(1); Schedule 2, Part 784, cl.784.332(a).  Similarly, a DPTEP could not be granted to any of the applicants unless that person was the holder of a valid visa: see s.43(a) of the Act.

 

Section 166BB of the Act provided that, if a valid application was made to the Refugee Review Tribunal for review of an "RRT-reviewable decision", the Tribunal was required to review the decision.  An RRT-reviewable decision included (subject to an irrelevant exception) a decision, made before 1 September 1994, that a non-citizen was not a refugee under the Convention: s.166B(1)(a).  It also included a decision, made before the same date, to refuse to grant a visa or entry permit, a criterion for which was that the applicant for the visa or permit was a non-citizen who had been determined to be a refugee under the Convention: 166B(1)(b).

 

The Tribunal itself was established by the Act: s.166J.  Its members were appointed by the Governor-General and held office for a term not exceeding five years: s.166JB(1); s.166JD(1).   Members enjoyed the same immunity as members of the Administrative Appeals Tribunal: s.166G(1).   In this connection, I should note that, during the hearing, on 13 February 1995, I gave a ruling concerning questions Mr Rares proposed to ask Ms McIllhatton relating to her conduct as a Tribunal member and to certain events occurring outside the Tribunal hearing room.  I ruled that, by reason of the immunity, certain classes of questions could not be addressed to Ms McIllhatton.

The Tribunal, for the purposes of reviewing an RRT-reviewable decision, was entitled to exercise all the powers and discretions conferred by the Act on the person who made the decision: s.166BC(1).  The Tribunal, among other things, could affirm or vary the decision, or set it aside and make a new decision (although it could not make a decision not authorised by the Act or regulations): s.166BC(2), (3), (4).  The Tribunal's method of operation was prescribed by s.166C:

 

     "166C (1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

 

     (2)  The Tribunal, in reviewing a decision:

 

     (a)  is not bound by technicalities, legal forms or rules of evidence; and

 

     (b)  must act according to substantial justice and the merits of the case."

 

 

An applicant could give the Registrar a statutory declaration relating to matters of fact and written argument relating to the issues arising on the application: s.166D(1).  Similarly, the Secretary of the Department of Immigration and Ethnic Affairs could give the Registrar written argument relating to the issues: s.166D(2).  If, after considering the written material, the Tribunal was prepared to make the decision on review "most favourable to the applicant", the Tribunal could make the decision without taking oral evidence: s.166DA(1).  Where such a decision was not made, s.166DB(1) provided that the Tribunal

 

     "(a)must give the applicant an opportunity to appear before it to give evidence; and

 

      (b)may obtain such other evidence as it considers necessary".

 

 

However, subject to s.166DB(1)(a), the Tribunal was not required to allow any person to address it orally about the issues arising in relation to the decision under review: s.166DB(2).  But the Tribunal was required to notify the applicant that he or she was entitled to appear before the Tribunal to give evidence: s.166DC(1).  The applicant, in turn, could give the Tribunal written notice that he or she wished the Tribunal to obtain oral evidence from particular persons: s.166DC(2).  Section 166DC(3) provided that the Tribunal

 

     "must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice".

 

 

 

The Tribunal's powers included taking evidence on oath or affirmation; requiring the Secretary to arrange for the making of any investigation or medical examination the Tribunal considered necessary; and summonsing a person to give evidence or produce documents: S.166DD(1)(a),(1)(c), (3)(a),(3)(b).  Section 166DD(6) provided as follows:

 

     "A person appearing before the Tribunal to give evidence is not entitled:

 

     (a)  to be represented before the Tribunal by any other person; or

 

     (b)  to examine or cross-examine any other person appearing before the Tribunal to give evidence."

 

 

If a person appearing before the Tribunal to give evidence was not proficient in English, the Tribunal could direct that communication with that person during his or her appearance proceed through an interpreter: s.166DD(7).

 

The Tribunal's hearing of an application for review was to be conducted in private and the Tribunal was not to publish any statement which might identify an applicant or any relative or dependant of an applicant: s.166DF, s.166EA(2).  Section 166E(1) provided that, where the Tribunal made a decision on review, it was obliged to prepare a written statement setting out the decision, the reasons for the decision and the findings on any material questions of fact.  The statement also had to refer to the evidence on which the findings of fact were based:  s.166E(1)(d).

 

Section 54L and s.54P dealt, respectively, with the custody and removal from Australia of "designated persons".  There was no dispute between the parties that, at all material times, the applicants were within the definition of a "designated person" in s.54K.  Section 54L provided as follows:

 

     "54L (1)  Subject to subsection (2), after commencement, a designated person must be kept in custody.

 

     (2)  A designated person is to be released from custody if, and only if, he or she is:

 

          (a)  removed from Australia under section 54P; or

          (b)  given an entry permit....

 

     (3)  ....

 

     (4)  To avoid doubt..., if subsection 54P(3) applies to a designated person, the person must be kept in custody until the person is removed from Australia under that subsection."

 

The constitutional validity of s.54L was upheld by the High Court in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.

 

Section 54P, insosfar as relevant, provided as follows:

 

     "54P. (1)An officer must remove a designated person from Australia as soon as practicable if the designated person asks the Minister, in writing, to be removed.

 

     ...

 

     (3)  An officer must remove a designated person from Australia as soon as practicable if:

 

     (a)  there has been an entry application for the person; and

     (b)  the application has been refused; and

 

     (c)  all appeals against, or reviews of, the refusal (if any) have been finalised.

 

     ...

 

     (6)  If:

 

     (a)  2 designated persons are liable to be removed from Australia under this section; and

 

     (b)  they have the care and control of another designated person in Australia who:

 

          (i)  is under 18; and

          (ii)does not have a parent who is a designated person;

 

     the other designated person is to be removed from Australia.

 

     (7)  If:

 

     (a)  a designated person is liable to be removed from Australia under this section; and

 

     (b)  he or she is the only person who has the care and control of another designated person in Australia who:

 

          (i)  is under 18; and

          (ii)does not have a parent who is a designated
person;

 

     the other designated person is to be removed from Australia."

 

 

 

The phrase "entry application", as used in s.54P(3), was defined to mean an application for a determination by the Minister that the person was a refugee, or an application for an entry permit: s.54K.

 

Section 96 created an entitlement for persons in custody to have access to legal advice, in the following terms:

 

 

     "96. Where a person is in custody under this Act, the person having his or her custody shall, at the request of the person in custody, afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her custody."

 

 

 

III  GUO WEI RONG

Background

Mr Guo was born in Vietnam on 29 March 1960.  He travelled with his parents to the People's Republic of China (the "PRC") and attended primary school in Bei Hai, in the autonomous region of Guang Xi.  He is a Chinese national.  The Tribunal referred to Mr Guo having both a primary and secondary education, but in evidence before me Mr Guo said that he had had only three years at school.  He could read a little Chinese, but could write only simple words.  

In 1987 Mr Guo married Ms Pan.  They have three children, born in 1988, 1990 and on 27 October 1993.  The two youngest children travelled with their parents on the Quokka (the youngest being a week old when the Quokka left the PRC), while the oldest remained with Mr Guo's parents in Bei Hai.

 

In late 1985 Mr Guo was employed by a fishing company .  He and other members of the crew assisted Vietnamese wishing to leave the PRC, by towing their boats to Hong Kong.  Payments made by the Vietnamese were divided among the crew.  At that time Mr Guo himself travelled to Hong Kong, although it is not entirely clear whether it was in the course of one of these voyages.  In interviews with the Department of Immigration he stated that he was the organiser of the particular voyage that took him to Hong Kong, in which he was accompanied by eight other persons.  In any event, he was returned from Hong Kong to the PRC, where he spent some time in labour camps or detention centres.  He and other members of his family were also fined.

 

Mr Guo was released from the labour camps after his family paid a bribe to the superintendent.  After his release, his family borrowed money to enable him to purchase a small fishing boat.  In about 1989 he sold the boat and used savings and moneys borrowed by him and his family to purchase a larger boat for some 250,000 yuan.  He employed seven workers on the larger boat to conduct his fishing operations.

 

In March 1992, Mr Guo purchased the boat that came to be known as the Jeremiah, in order to sail to Australia.  The Jeremiah left the PRC on 1 April 1992 and arrived in Australia on 10 May 1992.  Mr Guo was accompanied by his wife and one of his (then) two children.  On 16 May 1992 Mr Guo lodged an application for refugee status, which was rejected on 28 May 1992.  An application for internal review was rejected on 3 September 1992 and Mr Guo and his wife were deported from Australia in October 1992.

 

While in Australia in 1992, Mr Guo was detained at the Port Hedland detention centre.  During this period Mr Guo, along with others from the Jeremiah, participated in a hunger strike and rooftop protests at the centre.  The protesters carried banners complaining about the processing of their applications for refugee status and expressing fears about their fate if returned to the PRC.  Some of the banners stated that the protesters would rather die in Australia than be returned.  The protests, which resulted in serious injuries to two protesters who jumped from the centre's roof, received wide publicity in Australia.

 

There was a factual dispute before the Tribunal as to what happened to Mr Guo upon his return to the PRC in October 1992.  The Tribunal accepted that Mr Guo was arrested and imprisoned upon his return for two periods totalling 28 days.  This comprised a period of 5 days custody at a prison near the airport, followed by a period of 23 days at Bei Hai prison.  During this time Mr Guo claimed that he was physically mistreated.  The Tribunal also accepted that he "may have been questioned" by the authorities about his refugee application, rooftop protest and other matters relating to his period in Australia, including a business card from an Australian official found in his possession.  I shall refer to this finding again later.  Following Mr Guo's release on about 22 November 1992 he was fined 3,000 rmb and required to pay costs associated with his transfer to Bei Hai prison.  The Tribunal rejected other claims made by Mr Guo, including his evidence that he was imprisoned for a further period of nearly four months, from 5 June 1993 to 29 September 1993.

 

Whatever the truth of these matters, it is clear that Mr Guo travelled from Bei Hai to Guangzhou in early October 1993 and left the PRC on the Quokka on 6 November 1993.  As I have noted, the passengers in the boat included his wife, his two younger children, his two nieces, his brother, Guo Wei Zhi and his brother-in-law, Pan Run Fu.  There was no dispute that Mr Guo was one of the organisers of the sea journey; in the Departmental records he is referred to as the "captain" of the vessel.  The vessel arrived at Broome on 5 December 1993, after it had been intercepted at sea two days earlier by the Australian Navy.  On 6 December 1993 the Quokka arrivals were transferred to Port Hedland.

 

On 7 December 1993, at Port Hedland, Mr Guo participated in a so-called "compliance interview" conducted by an officer within the Compliance Branch of the Department.  A transcript of this interview was in evidence.  On 9 December 1993, Mr Guo participated in a second compliance interview.  A handwritten summary of the second interview, prepared by the interviewer, was in evidence, but no tape recording or transcript was apparently prepared.  On 11 December 1993, Mr Guo signed his application for refugee status, nominating as dependants his two younger children and his two nieces.  The application states that Mr Guo received assistance in completing the form from a migration agent, Ms P. Martin.

 

On 13 December 1993, a facsimile message in the Chinese language was sent on behalf of Mr Guo, Ms Pan and Guo Wei Zhi to Mrs Le in Canberra, requesting her services to assist them in applying for refugee status.  Mrs Le received some documents from the Department in Canberra and further documents shortly after her arrival in Port Hedland on 11 January 1994.

 

On 13 January 1994, Mr Guo was interviewed by a departmental officer who was a member of the task force responsible for making determinations of refugee status (a process known as "DORS").  Mrs Le was present at this interview.  A transcript of the interview was in evidence.  On 17 January 1994 a second interview took place, again with Mrs Le present.   A transcript of this interview was also in evidence.

 

On 31 January 1994 the DORS officer, who was a delegate of the Minister, advised Mr Guo that his application for refugee status had been refused, as had his applications for a DPEP and DPTV.  On the same day, Mr Guo applied for review of this determination by the Tribunal.  Mr Guo's application for review was not in evidence.  However, Ms Pan's application was, and I infer that Mr Guo's was in the same form.  Ms Pan's application described the decision to be reviewed as "refusal of refugee status". 

 

The Tribunal hearings took place at Port Hedland, before Ms McIllhatton as the presiding member, on Monday, 11 April 1994 and Wednesday, 13 April 1994.  On each of those occasions Mr Guo was represented by Mrs Le (who was erroneously referred to by the Tribunal member at the hearing as "a legal representative").  A transcript of the proceedings before the member was in evidence before me.  The transcript indicates that Mrs Le was given the option of making oral submissions at the conclusion of the hearing on 13 April 1994, or to make written submission by the end of the following week.  Mrs Le chose the latter course and did make quite detailed written submissions to the Tribunal following her return to Canberra.

 

The Tribunal member handed down her decision on Mr Guo's review application on 19 May 1994.  She affirmed the delegate's decision that Mr Guo was not a refugee within the meaning of the Convention.  The conclusions reached by the Tribunal were summarised as follows:

 

 

     "On the credible evidence before the Tribunal there is no connection between the Convention grounds and the punishment the Applicant fears for illegal departure and or as an organiser.  As the Tribunal has found that the Applicant's refugee application and political activities in Australia in 1992  were not connected to the penalty he received on return to China in October 1992, the Tribunal finds that these matters will not
result in persecution to the Applicant for Convention reasons if returned to China.

 

     If returned to China the Applicant may receive a severe penalty because he is a repeat offender and an organiser of the boat journey, but such punishment is not for a Convention reason.  In view of this finding, it is not necessary to make a determination as to whether the treatment amounts to persecution or is well-founded.

 

     ...

 

     It follows that although the Applicant may suffer personal hardship by return to the country of his nationality, he does not have a well founded fear of persecution for Convention reasons and cannot be regarded as a refugee for Convention purposes."

 

 

 

On 29 June 1994, Mr Guo lodged an application in this Court seeking review of the Tribunal's decision and the earlier decisions of the delegate. 

 

Submission: Persecution on Grounds of Political Opinion

Mr Rares challenged the finding of the Tribunal that Mr Guo did not have a well-founded fear of being persecuted for reasons of political opinion.  The challenge was made on a number of grounds, not all of which were stated with precision.  However, the main focus of attack was the Tribunal's finding that the detention of 28 days and fine imposed on Mr Guo were not related to his activities in Australia, including the hunger strike, rooftop protest and his expressed fears of mistreatment on his return to PRC.  Mr Rares submitted that the finding should be set aside.  Indeed, he argued that the evidence before the Tribunal was so compelling that the Court should make a declaration or order compelling the Tribunal to determine that Mr Guo is a refugee.  Mr Rares relied on s.16(1)(d) of the ADJR Act 1976 as
the source of the power to make such an order.  That sub-section empowers the Court, on an application for an order to review, in its discretion, to make

 

 

     "(d)an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties."

 

 

 

Section 16(1)(d) is intended to allow flexibility in the framing of orders so that the issues in review proceedings can be disposed of so as to achieve what is necessary to do justice between the parties and to avoid unnecessary litigation: Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637, at 644.  As the High Court said in Park Oh Ho v Minister, at 644, the scope of the power is not to "be constricted by undue technicality".  Mr Rares' submissions proceeded on the basis that, once it was accepted that Mr Guo had been imprisoned, fined and interrogated by reason of his political activities in Australia, it inevitably followed that he had a well-founded fear of persecution in the PRC because of his political opinions.

 

The Tribunal's Findings

The Tribunal's findings on this issue were expressed as follows:

 

     "The Tribunal accepts that the Applicant was arrested and imprisoned on his return to China from Australia in October 1992.  The Tribunal also accepts that the Applicant may have been questioned by the authorities about his activities in Australia including his refugee application, the rooftop protest and the card from an Australian official.  However, the Tribunal does not accept that the Applicant's treatment on return was related to these activities.  In the
Tribunal's view if the authorities had been concerned about his activities or application for refugee status in Australia he would have been detained for a longer period.  The period of imprisonment and fines the Applicant received is within the range and consistent with the independent evidence before the Tribunal in relation to the penalties for illegal departure.  The Applicant's claims concerning adverse treatment because of these matters is not supported by the evidence.  The Tribunal prefers the independent evidence to the Applicant's unsupported assertions.  The Tribunal finds the treatment the Applicant received on return to China in October 1992 to be reflective of punishment for illegal departure and not because of his political activities, application for refugee status or contact with Australian officials.

 

     ...

 

     The punishment the Applicant received on his return to China in 1992 was within the range of penalties for illegal departure provided for in Article 176 of the Criminal law of the PRC.  The Applicant's punishment was unrelated to any political profile ascribed to him by the authorities as a result of illegal departure.  In these circumstances the Tribunal finds that the Applicant's illegal departure in 1993 will not result in an imputed political profile."

 

 

Before returning to the particular submissions made by Mr Rares in his challenge to those findings, it is useful to refer to some of the Tribunal's reasons in support of the findings.  The Tribunal heard evidence from Mr Guo and found "the overall credibility of [his evidence to be] in many respects unsatisfactory".  Nonetheless, the Tribunal essentially accepted Mr Guo's account of events up to his return to the PRC, prior to the period of detention alleged to have occurred from June 1993. The Tribunal specifically recorded that Mr Guo had stated that the detention and fines were imposed because of his alleged departure.  Mr Rares did not suggest that the Tribunal had erred in recording this statement.

 

There was some debate about the status of the Tribunal's statement that it accepted that the applicant "may have been questioned by the authorities about his activities in Australia".  I interpret this statement as a finding that the Tribunal was prepared to accept Mr Guo's evidence that he had been questioned on these matters, but not as a finding that those were the only issues on which Mr Guo was questioned.

 

The Tribunal quoted Article 176 of the Criminal Law of the PRC, which provided a term of one year's imprisonment, criminal detention or control for a person who violated the laws and regulations that control leaving the country "when the circumstances are serious".  The Tribunal also referred to Article 177 which provided for a sentence of five years imprisonment and a fine for a person who, for the purpose of reaping profits, organised or transported other person secretly to cross the national boundary.  A letter from Amnesty International to the Refugee Status Review Committee, cited by the Tribunal, stated that attempts to leave the PRC were punishable under Article 176 (which was typed in the letter incorrectly as "167").  The letter also stated (although the passage was not specifically quoted by the Tribunal) that people who return to the PRC after unsuccessfully seeking asylum overseas

 

     "receive variable treatment according to their personal background, police record, the circumstances in which they left the country and, to an extent, their willingness to admit they have done something wrong."

 

 

The letter went on to advise that punishment could vary from a few months' detention to long terms of imprisonment.  The Tribunal quoted from a letter of 11 February 1994, from the Department of Foreign Affairs and Trade, commenting that it was implicit in the recent comments of a Chinese official that the government "is likely to start getting tough on repeat offenders".

 

Was There Evidence to Support the Findings?

Mr Rares submitted that the Tribunal's conclusion that the imprisonment and fining of Mr Guo were not related to his political activities in Australia in 1992, was made without any evidence to support it.  Indeed, Mr Rares went so far as to submit that the evidence before the Tribunal was all the other way.  By that I took him to mean that the evidence pointed inevitably to the conclusions, first, that the punishment inflicted on Mr Guo was beyond the range of penalties for illegal departure from China and, secondly, that the only explanation for the imposition of penalties beyond the range was that Mr Guo was being punished by reason of his political activities in Australia in 1992.  In the alternative, Mr Rares contended that the findings were so unreasonable that no reasonable person could have made them: ADJR Act s.5(1)(f), s.5(2)(g). 

 

Mr Basten QC, who appeared with Mr Williams for the Minister and the manager of the Immigration Reception and Processing Centre, did not dispute that, if there was no evidence to support the findings, the decision was liable to be set aside.  See ADJR Act, s.5(1)(h); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 355, 358.  I shall return to the unreasonableness submission later.

 

In my opinion, the submission that there was no evidence to support the conclusion that the penalties imposed on Mr Guo in 1993 were not related to his political activities in Australia, cannot be sustained.  The Tribunal specifically referred to the terms of Article 176 of the Criminal Law and to the other material which I have outlined earlier, to support the proposition that the penalties imposed on Mr Guo were within the range imposed for those who illegally departed the PRC.  Mr Rares sought to discount the Tribunal's reference to Article 176, because it had not been shown that Mr Guo had been punished by a court pursuant to a prosecution.  But Article 176 does not address the procedure by which a penalty can be imposed on those who leave the PRC illegally.  Indeed, it refers not only to imprisonment, but "criminal detention or control".  In the absence of material suggesting that, under the law of the PRC, Article 176 could not have been the source of authority for Mr Guo's imprisonment or detention, it was at the very least open to the Tribunal to regard the Article as justifying imprisonment for a period of 28 days, if the circumstances could be described as "serious".

 

Furthermore, there was material before the Tribunal suggesting that repeat offenders (in the eyes of the Chinese authorities) or those who receive money for assisting persons to leave the PRC were dealt with more severely than first offenders.  For example, in addition to the Amnesty International letter, a Department of Foreign Affairs and Trade cable of 6 July 1992 stated specifically that Mr Guo's actions in accepting payment for transporting other persons illegally out of the PRC made him liable under Article 177 to up to five years imprisonment detention or control.  This cable was not referred to in the Tribunal's reasons, but it was put specifically to Mr Guo by the Tribunal member in the course of his evidence before her.

 

There was also evidence that Mr Guo had participated in activities that made it likely that he would be treated as a repeat offender upon his return from Australia in 1992.  The Tribunal found that, in 1985, Mr Guo, along with others, had received payment for towing boats containing Vietnamese to Hong Kong and that he had been identified at the time by the Public Security Bureau (the "PSB") as the instigator of the incident.  Mr Guo was told at the time that he was to be fined.  Fearing gaol if he did not pay, he escaped to Hong Kong.  Mr Guo was deported to the PRC in early 1986 and, on his return, was held in custody for three months and sentenced to two years' imprisonment in a labour camp.  In evidence before the Tribunal, Mr Guo claimed that the penalties imposed in 1986 amounted to persecution.  But, as the Tribunal noted, Mr Guo later conceded that the penalties were severe because the incident had occurred in the course of his employment and because he had sought to evade the fine that had been imposed.  Thus, independently of Mr Guo's journey to Australia in 1992, there was ample material before the Tribunal to suggest that he could be regarded by the Chinese authorities as a repeat offender.

 

Mr Rares' submissions on this point appeared to include a contention that there was no evidence to support the conclusion that the fines imposed on Mr Guo in 1993 were within the normal range of penalties for illegal departure.  Yet Mr Guo himself acknowledged to the Tribunal that the fines were imposed as a result of his illegal departure.  The fact that Article 176 of the Criminal Law does not refer specifically to fines is hardly a basis for concluding that fines were not imposed on people illegally leaving the PRC.  A minute from the Australian Embassy in Beijing, dated 17 June 1993, stated that fines were imposed on "returnees" under unpublished administrative guidelines.  While returnees from Hong Kong were fined only 10 to 50 rmb, the  United States Embassy had advised that returnees from a vessel known as the "Eastwood" had been fined 5,000 rmb.  It will be necessary to return to the Embassy minute for the purpose of dealing with another submission.  At present it is enough to say that there was material on which the Tribunal could conclude that the fines imposed on Mr Guo upon his return to the PRC in 1993 were within the normal range for returnees, particularly those with his history of infringing the laws of the PRC governing illegal departure.

 

The Assurances to the Australian Government

Mr Rares drew attention to a letter dated 12 March 1993 from the then Minister for Immigration, Local Government and Ethnic Affairs to Senator Harradine.  That letter recorded that the Australian Government had received verbal assurances from authorities in the PRC, to the effect that failed asylum seekers would not be punished as the result of their illegal departure from Australia.  The letter recorded that, in December 1992, the Chinese Vice Foreign Minister had said that he could

 

     "guarantee that after [failed asylum seekers] come back they will not be persecuted and not mistreated".

 

 

 

The letter went on to state that the Chinese Foreign Minister had told the Australian Ambassador that there was "no persecution of returnees if their only action had been illegal departure from China".  Rather, the Government's concerns lay with those who organised and profited from illegal departures.  The Chinese Foreign Minister had advised that the financial loss already suffered by the returnees was "more than sufficient punishment".  The Australian Embassy in the PRC recorded its assessment that these assurances could be relied upon. 

 

The letter also noted advice from the PRC Ministry of Foreign Affairs concerning the seven Jeremiah returnees (including Mr Guo and his brother, Guo Wei Zhi) as follows:

 

 

     "The official confirmed that these people were returned to their families after six days of detention.  While in detention they had been questioned about the circumstances of their departure from China, the objective being to learn more about the organisation that had arranged the departures.

 

     This short period of detention was not inconsistent with our expectations of what might happen, and with Chinese government statements that illegal emigrants
will not be mistreated on return to China."

 

 

The advice concerning the treatment of the Jeremiah group was, of course, inconsistent with the findings made by the Tribunal concerning Mr Guo's detention upon his return.  The advice was also inconsistent with findings made by the Tribunal in connection with Guo Wei Zhi's separate application for refugee status, namely, that he had also been imprisoned for 28 days and fined on his return from Australia in 1992. 

 

As Mr Rares' submissions were ultimately formulated, he relied upon this letter, which was not referred to in the Tribunal's reasons, as demonstrating that the Tribunal had failed to take into account a relevant consideration on the question of whether Mr Guo was punished in 1992 by reason of his political opinions.  As I understood him, Mr Rares said that the assurances recorded in the letter suggested that the usual period for imprisonment for returnees was not more than about six days and that heavy fines and interrogation about activities in the country of refuge were not within the usual range of treatment accorded to returnees.  It followed that the Tribunal had failed to take into account the assurances given by the representatives of the government of the PRC concerning the treatment of failed asylum seekers.   Mr Rares also contended that the Tribunal had failed to comply with the obligation, imposed by s.166E(1)(c) of the Act, to make findings on material facts.  Specifically, he contended that the Tribunal had failed to make findings as to whether the assurances received by the Australian government from Chinese officials showed that penalties were imposed upon Mr Guo
by reason of his political activities in Australia.

 

The assurances contained in the letter were relevant in assessing the credibility of Mr Guo's evidence that he had been imprisoned for 28 days, rather than the period of six days referred to in the letter.  The assurances could also have been relevant to the question of whether Mr Guo had been questioned about his activities when seeking refugee status in Australia.  If the assurances recorded in the letter relating to the Jeremiah returnees were accurate, Mr Guo's evidence on these points could not have been correct.  But on these matters, the Tribunal, despite its reservations about Mr Guo as a witness, substantially accepted his evidence.  There was therefore no need, as a matter of fairness, to refer to the letter on this issue.  Indeed, the Tribunal's findings of fact relating to the punishment imposed on Mr Guo, imply that the assurances concerning the Jeremiah returnees, recorded if the letter, were not reliable.

 

Similarly, the assurances could have been relevant to Mr Guo's claim to have been imprisoned for three months from June 1993.  The Tribunal rejected Mr Guo's evidence on this issue.  However, in its reasons, the Tribunal placed no reliance on the assurances contained in the letter, resting its conclusion on other considerations, notably its assessment of Mr Guo as a witness.  The Tribunal's approach was consistent with it having regarded the assurances contained in the letter, both general and specific, as being unreliable.

The critical factual questions, to which Mr Rares contended that the assurances contained in the letter were relevant, were whether the treatment meted out to Mr Guo on his return to the PRC in 1993 was beyond the norm for returnees, and, if so, whether the penalties imposed upon him were attributable to his political activities in Australia.  There was a considerable volume of evidence for the Tribunal to consider in relation to these questions.  Not all of it was referred to explicitly in the reasons.

 

The Tribunal's statutory obligation to state its findings and reasons does not require it to refer expressly to every argument and all evidence that might be relevant to its determination of factual issues.  As the Full Court said in Dornan v Riordan (1990) 24 FCR 564 (FCA/FC), at 567:

 

     "[t]he duty must be sensibly interpreted and applied with a view to achieving good and effective administration."

 

 

In general, it is enough that the "findings and reasons deal with the substantial issues upon which the decision turned": Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 (FCA/Wilcox J.), at 481.  Similarly, a failure by a judge to refer to some of the evidence adduced in a case does not mean that he or she has failed to discharge the judicial duty to consider the evidence.  The extent of the duty depends upon the circumstances and, in particular, whether it can be inferredthat evidence critical to the case has been ignored: Mifsud vCampbell (1991) 21 NSWLR 725 (NSW CA), at 728.  (As to the basis of the rule requiring the judicial tribunal to give reasons, see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (NSW CA), at 278-281, per McHugh JA.).  In the absence of specific legislation, a Tribunal's obligations cannot be more onerous. 

 

The making of a finding of fact, or the failure to make such a finding, can be attacked on the ground that the finding (or the failure to make the finding) was simply arbitrary or defied the evidence to the extent that no reasonable person could have reached the same conclusion.  Taking into account a fact unreasonably found, or the failure to take into account a fact that, on any reasonable view, should have been found, can provide a basis for relief under s.5(1)(e) of the ADJR Act (improper exercise of power): Minister of State for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1981) 18 ALD 77 (FCA/FC), at 80; Independent FM Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 3 BR 458 (FCA/Davies J.), at 477-479.  Nonetheless, in dealing with an argument that a Tribunal has failed to take into account relevant considerations in deciding factual issues, care must be exercised to ensure that the applicant is not simply saying that the Tribunal has wrongly assessed the facts: Brunetto v Collector of Customs (1984) 4 FCR 92 (FCA/Toohey J.), at 97.  There is no error of law in making a wrong finding of fact, and unless there is perverseness, or something very close to it, the duty of the Court is to leave the determination of the facts to the Tribunal to whichParliament has entrusted the task: Independent FM Radio v Australian Broadcasting Tribunal, at 477, citing Puhlhofer v Hillingdon London Borough Council [1986] AC 485 (HL), at 518.

 

The absence of any reference in the reasoning of a Tribunal to a specific item of evidence does not necessarily mean either that the Tribunal has not considered that evidence, or that it has acted unreasonably or perversely in making its findings of fact.  Nor does it necessarily mean that the Tribunal has failed to comply with its statutory obligations to make findings on material facts.  Whether there is an error of law, or a failure to comply with statutory obligations, must depend upon the circumstances.  These include the nature of the evidence, its relationship to the critical issues to be determined by the Tribunal and the reliance placed upon the material by the applicant before the Tribunal.

 

In the present proceedings, Mrs Le represented Mr Guo and prepared written submissions on his behalf.  Perhaps not surprisingly, given Mrs Le's heavy workload and the difficult circumstances prevailing in Port Hedland, her written submissions (prepared after her return to Canberra) are not always entirely easy to follow.  They do refer, however, on two occasions, to the letter of 12 March 1993.  The first reference is to the "(so-called) assurances received by the Australian Government...apparently related to non-punishment of returnees for illegal departure".  The second reference is to "Chinese officials, purportedly acting for the Chinese Government [who] are said to have" given the assurances in the letter. 

 

This language does not suggest that Mrs Le was intending to place reliance upon the assurances in order to support Mr Guo's claim that he had suffered more severe punishment than the norm for returnees in his position.  The submissions, on my reading, seek to downgrade the reliability of the "so-called" assurances, for the legitimate forensic purpose of enhancing Mr Guo's claim to have been in prison for periods totalling several months, and to have suffered other penalties on his return to China.  Indeed, as I have indicated, the Tribunal does not appear to have regarded the assurances as reliable for the purposes of assessing the truthfulness of Mr Guo's evidence.  In any event, it is certainly not apparent that the submissions were intended to rely upon the assurances contained in the letter for the forensic purpose identified by Mr Rares.

 

In these circumstances, I do not think the Tribunal, by reason of its failure to refer specifically to the assurances recorded in the letter, acted unreasonably or perversely in determining that Mr Guo's treatment was within the norm for returnees and was not attributable to his political activities in Australia.  The letter recording the assurances was before the Tribunal.  It was one piece of evidence to be considered, along with a considerable volume of other evidence, in making the factual determinations upon which the Tribunal's decision ultimately depended.  Having regard to the submissions made on Mr Guo's behalf and the specific factual findings made by the Tribunal (some of which were inconsistent with the assurances contained in the letter), it is, in my opinion, not surprising that the Tribunal did not
consider it necessary to refer specifically to the letter in its reasons.  Thus I do not think it can be said that the Tribunal failed to take a relevant consideration into account, in the manner suggested by Mr Rares, in making its findings of fact.  Nor do I think that the failure to refer to the letter in the Tribunal's reasons involved any breach of its obligations under s.166E(1) of the Act, requiring it to set out the reasons for the decision and findings on any material questions of fact.

 

The Embassy Minute

Mr Rares contended that the Tribunal, in determining the applications by Mr Guo and Ms Pan, had improperly failed to take into account a minute dated 17 June 1993 from the Australian Embassy in Beijing to the DORS Program Support Branch.  This minute was headed "Fines Imposed on Illegal Emigrants Returned to the PRC" and was said to be in response to a cable requesting "information about fines which may be imposed on people who depart China illegally".  The minute was not referred to by the Tribunal in its reasons relating to Mr Guo and Ms Pan, but was referred to in the reasons relating to Mr Pan Run Fu (Mr Guo's brother in law).  Mr Pan's case was also determined by Ms McIllhatton, as a member of the Tribunal, but his application for review is not before me.

 

Mr Rares' argument concerning the use of the minute was as follows:

 

l    In Mr Pan's case, the Tribunal relied on the minute to support the conclusion that the people illegally leaving the PRC would incur only a fine and no other penalties.  The minute played a part in the Tribunal's finding that any financial penalties faced by Mr Pan on his return to the PRC did not amount to persecution in a Convention sense.

 

l    In the cases of Mr Guo and Ms Pan, the Tribunal found that the ordinary range of penalties facing returnees included not only fines, but imprisonment.  The Tribunal reached this conclusion despite having the minute before it and despite the fact that the minute suggested otherwise.

 

l    The failure to give Mr Guo or Ms Pan (or Mrs Le) an opportunity to comment on the significance of the minute was procedurally unfair.  It is incumbent on a decision-maker to draw to a person's attention the critical factors on which the decision is likely to turn, so that he or she has an opportunity of dealing with those factors: Kioa v West (1985) 159 CLR 550, at 587, per Mason J; Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648.

 

l    In any event, the Tribunal was bound to take the minute into account in determining the usual range of penalties applicable to returnees and in deciding whether the penalties imposed on Mr Guo were within that range.  No reasonable decision-maker could have resolved these issues without taking into account such a critical document: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 (FCA/Wilcox J.), at 169-170.

 

In my opinion, these arguments are based on a misinterpretation of the Embassy minute and on an incorrect view of the purposes for which it was used by the Tribunal in Mr Pan's case.  The minute simply does not address the question of non-monetary penalties imposed on returnees after illegal departure from the PRC.  The document was clearly prepared in response to a specific request to provide information about the fines imposed on those leaving the PRC illegally.  The document reports on the fines imposed on returnees from, respectively, Hong Kong, Japan, Australia and the United States, and identifies the national legislation in the PRC authorising fines or other monetary penalties.  The minute does not purport to consider other penalties that might be imposed on returnees; nor does it consider the legislation authorising other forms of punishment.  In my opinion, the minute cannot be read as stating, or even implying, that non-monetary penalties are not imposed on returnees to the PRC.

 

The reason the minute was significant in Mr Pan's case, as Mr Basten pointed out, was that Mr Pan's representatives, the Refugee Council of Australia, submitted to the Tribunal that arrivals on the Quokka would be treated more harshly upon their return to the PRC because they had journeyed to the West, as opposed to Hong Kong or Macau.  That submission was not made by Mrs Le on behalf of either Mr Guo or Ms Pan.  The minute provided
some support for the submission put on behalf of Mr Pan, because it did suggest that heavier fines were imposed on returnees from the United States and Australia than on returnees from Asian destinations.  However, the Tribunal ultimately rejected Mr Pan's submission, substantially on the grounds that the variations in financial penalties did not amount to persecution in the Convention sense, and were not so severe as to suggest that the laws themselves served a political purpose.  There is nothing in the Tribunal's reasons in Mr Pan's case to indicate that it acted on the basis that fines or monetary penalties were the only form of punishment visited on returnees.  Indeed the reasons refer specifically to Articles 176 and 177 of the Criminal Law of the PRC, as well as the Amnesty International correspondence, both of which showed that returnees were liable to suffer imprisonment or detention in the PRC.

 

In my opinion, having regard to the way Mr Guo's case was conducted before the Tribunal, the minute was not critical to any of the issues requiring determination in that case.  The minute could have been relevant to the issue of whether (as he claimed) Mr Guo had been fined 3,000 rmb on his return to the PRC in 1993.  The document provided some support for Mr Guo's evidence on this point, since it referred to "unconfirmed reports of a fine of 3,000 rmb imposed on some returnees from Australia".  But the Tribunal accepted Mr Guo's evidence that he had been fined in this amount.  The case is very different, for example, to the circumstances in Haoucher v Minister.  There it was held that a deportee was entitled to be informed of matters which constituted "exceptional circumstances", or "strong evidence", sufficient to take the case out of the Minister's expressed general policy that he would accept recommendations of the Administrative Appeals Tribunal.  In the present case, in my opinion, there was no obligation on the Tribunal, as a matter of fairness, to put the contents of the minute to Mr Guo or his representative.  Similarly, having regard to the purpose and meaning of the minute, the Tribunal's conclusions were not deprived of rational force by reason of the failure to refer to the document in the reasons.

 

The Credit of Mr Guo

I have referred to the Tribunal's observation that the "overall credibility" of Mr Guo's evidence was, in many respects, unsatisfactory.  In support of this observation the Tribunal referred to three particular matters:

 

     "On his own evidence he has not been entirely frank in his dealings with the Department in relation to his applications for refugee status lodged in 1992 and 1993.  His oral evidence before the Tribunal about the differing accounts provided by him relating to his household registration was evasive and unconvincing.  The Tribunal also found his oral evidence evasive concerning his personal contact with the family planning authorities."

 

 

Later, the Tribunal outlined additional considerations that supported the rejection of Mr Guo's evidence that he was arrested and imprisoned for a period of three months from June 1993.  These included a finding that his failure to mention his arrest and imprisonment in June 1993 in the compliance interview of 7 December 1993 "undermines his credibility". 

Mr Rares acknowledged that it is difficult to attract relief by way of judicial review in relation to an assessment of an applicant's credibility, especially (he might have added) where the decision-maker has had the opportunity of observing the applicant give evidence.  Nonetheless, Mr Rares attacked the findings on credit as being the result of an improper exercise of the powers conferred on the Tribunal: ADJR Act, s.5(1)(e).  The basis of this submission appeared to rest on the contention that the Tribunal had taken into account irrelevant considerations (s.5(2)(a)) or had exercised its power unreasonably: s.5(2)(g).

 

Household Registration

First, Mr Rares argued that there was no basis for the assertion that Mr Guo's oral evidence relating to his household registration was "evasive and unconvincing".  Mr Rares pointed out that the Tribunal relied on what was said to have been Mr Guo's statement, in the compliance interview of 7 December 1993, that his household registration had expired about ten years earlier, after he failed to renew it.  Such a statement, if true, would have been inconsistent with the explanations given by Mr Guo, in the course of his application for refugee status in 1992, for the absence of household registration.  The statement also would have been difficult to reconcile with the explanation given by Mr Guo to the Tribunal in the present proceedings, namely, that his household registration lapsed while he was in a labour camp following his assistance in transporting people illegally to Hong Kong.

Mr Rares observed, correctly, that no such statement had in fact been made by Mr Guo in the course of the compliance interview of 7 December 1993.  He complained of the unfairness of the following exchange in the Tribunal hearing between Ms McIllhatton and Mr Guo:

 

    

     "Q.   I want to know why you did not mention to the person from the Department of Immigration at the very first interview that you had when you came back to Australia the second time, you mentioned to that person about the penalty that you got in the labour camp of two years and you told him why, but all you said about your household registration was that it lapsed 10 years ago and you failed to renew it.   You didn't tell him that it was related to the labour camp, why not?

 

     A.    So actually I lost the household registration when I was sent to the labour camp, so all, before all those permit for going to sea was authorised by the work unit.

 

     Q.    Yes, but why didn't you tell the compliance interviewer that?

 

     A.    At the time I did not have opportunity to tell everything in detail."

 

 

In fact the Tribunal member was mistaken, in that the reference to the lapse of the household registration was made, not in the first compliance interview, but in the second, on 9 December 1993.  What was put to Mr Guo in the exchange quoted by Ms McIllhatton above accords with the handwritten summary in the file of the compliance interview of 9 December 1993.  Although Mr Rares pointed out that the handwritten summary had not been endorsed or approved by Mr Guo, no substantial challenge was made to its accuracy. 

 

Mr Guo gave no evidence that he had been misled by the erroneous reference made by the Tribunal member.  In the absence of such evidence, I think it is very unlikely that Mr Guo was misled by the reference in the question to "the first interview", rather than to the second interview.  Mr Guo gave an explanation to the Tribunal for his failure to mention the lapsing of the registration in the labour camp similar to that given by him on a number of other issues, namely, that he had not been given an opportunity to tell his story.  The fact is that Mr Guo had given different accounts relating to the household registration.  In my opinion, it was clearly open to the Tribunal to conclude that Mr Guo's explanation for his differing accounts was evasive and unconvincing.  I do not think there is any substance in Mr Rares' complaint.

 

Failure to Mention Imprisonment

Secondly, Mr Rares contended that it was not open to the Tribunal to find that Mr Guo's credit was "undermined" by reason of his failure to mention his arrest and imprisonment in the compliance interview.  Mr Rares said that an examination of the transcript of the 7 December 1993 compliance interview revealed that Mr Guo was telling the truth as to the lack of opportunity afforded him to raise further matters at the compliance interview.  Among other things, this submission takes it as self-evident that the transcript of the compliance interview demonstrates that Mr Guo had no opportunity to raise the question of his detention.  Yet the Tribunal member stated in her reasons that she had listened to the tape of the compliance interview and had formed the view that sufficient opportunity was given to him to provide details concerning his reasons for leaving China and the adverse treatment he claimed to have experienced in June 1993.  The Tribunal member also stated that the second compliance interview, of 9 December 1993, while it was recorded only by means of handwritten notes, provided a further opportunity for Mr Guo to refer to his alleged imprisonment in June 1993.

 

I have already referred to the circumstances in which findings of fact can be challenged on review.  In my opinion, it was far from unreasonable for the Tribunal to conclude that unfavourable inferences could be drawn from Mr Guo's failure to mention the period of three months' imprisonment from June 1993 in the compliance interviews.  As the Tribunal noted, according to Mr Guo's own evidence, this period of imprisonment was substantially longer than the other periods of detention, which totalled 28 days, and was the last example of adverse treatment towards him by the authorities before his departure from China in November 1993. 

 

The transcript of the interview of 7 December 1993 reveals that there were occasions where an observer could reasonably conclude that Mr Guo had an opportunity to refer to his lengthy imprisonment from June 1993.  Two extracts, although not notable for the clarity of translation, illustrate the point:

 

 

     "Q.    Right.  Whose idea was it to get another boat to come to Australia?

 

     A.   My idea.

 

     Q.   Sorry?

 

     A.   It was my idea.

 

     Q.   Why?

 

     A.   I have to go.  I could not give boat any more.  I have to - they find me and everything.  I don't have anything with me now.

 

     Q.    Do you mean with you now in Australia or you didn't have anything when you were in Beihai?

 

     A.   I was under the investigate for the illegal departure.  The PSB accuse me of illegally departure and I was under investigation and that's why I have to leave China.

 

     Q.   Was that from his first trip to Australia, was it, that he was under investigation?

 

     A.   Right after I return to China they did accuse me anything, so but later on there was a movement and the meeting - after the meeting they want to beat all the illegal departure.

 

     Q.   So, does that mean that they were going to fight him, does it?  What happened at the meeting?  Tell me that.

 

     A.   At the later stage the newspaper advertisement and according to order from the superior, then every city, every town have to try against those who had political departure record before, or have to clean up to prevent illegal departure.  So because he has a record, then they were - the employee was accused."

 

     ...

 

     Q.   Well, what do you think is going to happen to you this time?

 

     A.   If I'm sent back to China I will be in prison.

 

     Q.   That doesn't answer my question.  What do you think is going to happen?

 

     A.   He'll be sentenced.

 

     Q.   What, is that for leaving the country illegally again, is it?

 

     A.   As they advertise in newspapers saying that they will punish all the - seriously punish those who left the country illegally, and because I have left the country, so they will punish me seriously.  I myself
have left the country illegally many times.

 

     Q.   But you had already been punished for those times.

 

     A.   Then fine me and then ask me to burn all the papers.  I borrow money to pay the fine."

 

 

While there was no verbatim transcript of the interview of 9 December 1993, as I have indicated, there was no challenge to the  substantial accuracy of the handwritten notes taken by the Minister's delegate recording its proceedings.   No reference was made in that interview to the three months' period of imprisonment, although Mr Guo did refer to the two shorter periods of detention.  Indeed, although the Tribunal does not refer to this evidence, part of the summary records information given by Mr Guo that is inconsistent with his having been in prison or detention from June to September 1993.

 

The point of this material is not to conclude that the Tribunal was bound to disbelieve Mr Guo's account concerning the length of his imprisonment, nor that other decision-makers would necessarily have reached the same conclusion.  It is to show that it was neither unreasonable nor arbitrary for the Tribunal to draw the inference it did.  The Tribunal's concerns about the absence of any reference to the longer period of imprisonment in the compliance interviews were put to Mr Guo in the course of his evidence.  The matters put to Mr Guo specifically includedhis failure to mention the longer period of custody during thesecond compliance interview.  The Tribunal member heard andconsidered the explanation given by Mr Guo and rejected it.  The Tribunal
did so having regard to other relevant evidence, including the absence of any reference by other members of Mr Guo's family in their compliance interviews to his alleged period of imprisonment.

 

The Tribunal also specifically took account of the fact that applicants for refugee status often do not amplify their claims to that status in compliance interviews, but noted that Mr Guo was familiar with the refugee processing systems from his previous experience and that he had been represented at that time.  He was aware (as the Tribunal found) of the importance of disclosure of relevant information and had been warned at the beginning of the compliance interview of 7 December 1993 that, if information given at subsequent interviews was different from that provided to the interviewer, it could raise doubts about his credibility.  In these circumstances, I do not think that there is any reviewable error in the Tribunal's finding concerning the significance of Mr Guo's failure to refer, in the compliance interviews, to his arrest and imprisonment in mid-1993.

 

The Family Planning Authorities

Thirdly, Mr Rares took issue with the Tribunal member's observation that she found Mr Guo's oral evidence concerning his personal contact with the family planning authorities in the PRC to be evasive.  Mr Guo's evidence before the Tribunal concerning claimed threats of sterilisation occupies some ten pages of the transcript.  The Tribunal member's observation was based on her assessment of that evidence, including a judgment as to Mr Guo's demeanour.  In the course of his evidence Mr Guo was questioned, among other topics, about why he did not refer to threats of sterilisation at the time of his 1992 application for refugee status and why the PSB would not have sought to sterilise him or his wife during the period each was in custody.  The Tribunal member was able to assess Mr Guo's credit on those issues and to bring that assessment to bear on the general question of Mr Guo's credit.  I cannot see any error of law in the Tribunal's approach on this issue.

 

The Compliance Interviews

Mr Rares raised a number of complaints flowing from the fact that the compliance interviews for Mr Guo took place without legal representation being offered to him.  Although the precise import of the submissions was not entirely clear, as I followed the argument it was to this effect:

 

l    The provision of Commonwealth funding to allow lawyers to assist arrivals at Port Hedland to make refugee claims created a legitimate expectation in Mr Guo that he would be provided with legal assistance at "the first available opportunity" and, in any event, prior to compliance interviews.  This expectation was supported by the terms of the Handbook on Procedures and Criteria for Determining Refugee Status (the "Handbook"), issued by the Office of the United Nations Commissioner for Refugees.  It was also supported by s.96 of the Act.

 

l    Mr Guo was not offered access to a lawyer until 9 December 1993, after the first and, probably, after the second compliance interview had taken place.  Nor was Mr Guo informed prior to that date that he had a right to consult a lawyer.  These omissions breached the duty of procedural fairness owed to Mr Guo.

 

l    Reliance by the Tribunal on Mr Guo's apparent failure to disclose information during the compliance interviews, for the purpose of impairing his credit, was a denial of procedural fairness.  The unfairness was not ameliorated by the warning given at the outset of the first compliance interview that he might be disbelieved if his accounts involved discrepancies, bearing in mind that he was told that he was obliged to answer questions.

 

l    The procedural unfairness could not be cured by any course of action adopted by the Tribunal, since Mr Guo was forced to explain apparent omissions which resulted from the refusal to afford him legal assistance at the outset.  By analogy with the rules allowing improperly obtained confessional material to be excluded in criminal cases, the evidence reflecting adversely on Mr Guo's credit should not have been used against him.

 

Before turning to the argument, the important facts should be recorded briefly.  Mr Guo arrived at Broome, on the Quokka, on 5 December 1993.  He had previously applied for refugee status
in 1992 after his arrival on the Jeremiah.   At that time he had undergone compliance interviews and a DORS interview.  His case had been determined by the Refugee Status Review Committee.  He had been legally represented before the Committee. 

 

On 6 December 1993 Mr Guo and the other Quokka arrivals were flown by chartered aircraft to the Immigration Reception and Processing Centre at Port Hedland.  The first compliance interview with Mr Guo on this occasion took place on the next day, 7 December 1993.  At the outset of the interview, the interviewer made the following statement:

 

 

     "The information you give in this interview is needed to establish your personal details and matters relating to your arrival in Australia.  You are expected to give true and correct answers to the questions I ask to the best of your knowledge.  You should understand that if the information you give at any future interview is different from what you tell us now this will raise doubts about your credibility.

 

     You should also know that it is an offence under section 167 of the Migration Act to instruct him to deceive or mislead me in the exercise of my powers with the performance of my duty.  Do you understand what I have said?"

 

 

 

On the same day Mr Guo signed a document, in the English language, to the same effect as the interviewer's statement.  The document was also signed by an interpreter.  (I should record that Mr Guo claimed he could not remember signing the document, but I find that he did sign it.)

 

On 9 December 1993 a second compliance interview took place between a different interviewer and Mr Guo. 

The purpose of compliance interviews, as explained by Mr Adcock, an officer of the Compliance section, was:

 

     "essentially to establish who the people are, where they're from...whether they have been to Australia before, whether they have relatives, friends or contacts in Australia, why they have come and by what route they came".

 

 

 

Mr Adcock rejected the suggestion, put to him by Mr Rares, that one of the purposes of the compliance interview was to commit the individual to a story before he or she could see a lawyer.  I accept Mr Adcock's evidence on this point.

 

On 9 December 1993 Mr Adcock, who was the senior officer of the Compliance section then present at Port Hedland, caused a Notice of Prescribed Period to be given to each of the Quokka arrivals.  This document advised, in formal language, that if each individual did not apply for an entry permit within 7 days, s.54D of the Act rendered him or her liable to deportation.  A Cantonese interpreter was present when this occurred.  At about the same time the Quokka arrivals were told, for the first time, that they could have access to a lawyer.  This advice was given as the result of a telephone direction to Mr Adcock from his central office, although the direction appears to have been a general one to follow the same procedure as had been adopted for another group of arrivals the previous week.  In any event, Mr Guo had made no request for a lawyer before 9 December 1993.

 

Mr Guo seems to have declined the offer of legal assistance.  However, on 13 December 1993 a facsimile was sent to Mrs Le requesting her services in connection with refugee applications to be lodged by Mr Guo, Ms Pan, Mr Pan and Guo Wei Zhi.  This message was written in Chinese, by Guo Wei Zhi.  On 23 December 1993 the DORS Branch wrote to Mr Guo, Ms Pan and Guo Wei Zhi notifying them that Mrs Le had forwarded a copy of the request to the Branch.  The letter advised that they could seek assistance from any registered migration agent, but that government funding would be provided only through the Refugee Advice and Casework Service.  The letter went on to advise that they could avail themselves of this source of legal assistance if they wished.  On the same day the DORS Branch wrote to Mrs Le stating that she was welcome to attend the DORS interviews to be held later in January 1994.  In the event, Mrs Le arrived at Port Hedland on 11 January 1994 and participated in the DORS interviews subsequently held for Mr Guo and Ms Pan.

 

There is no doubt that Mr Guo was entitled to procedural fairness in the processing of his application for refugee status, if only because the consequence of rejection was to expose him to deportation from Australia.  A deportation order would "adversely and directly affect [his] rights, interests, status and legitimate expectations": Haoucher v Minister, at 653, per Deane J.  But Mr Guo's entitlement to procedural fairness does not mean that he was entitled to legal representation at public expense at every stage of the process of investigating and considering his claim to refugee status.  In Dietrich v The Queen (1992) 177 CLR 292, the High Court held that a person charged with a serious criminal offence has a right to a fair trial and that the trial
of an unrepresented person, who is unable to afford legal representation, would generally be unfair, save in exceptional circumstances.  In New South Wales v Canellis (1994) 124 ALR 513, the High Court emphasised that the principle in Dietrich was concerned with the rights to a fair trial of a party to criminal proceedings in respect of a serious offence.  There was no suggestion that a court could exercise a similar jurisdiction in civil proceedings: New South Wales v Canellis, at 522, per Mason CJ, Dawson, Toohey and McHugh JJ.  A fortiori, it is difficult to see how a requirement of procedural fairness can embrace an entitlement to publicly funded legal assistance at the early stages of investigation of a claim to refugee status.

 

In support of his argument, Mr Rares referred to a passage from Wade and Forsyth, Administrative Law (7th ed., 1994), at 566, cited with approval in the judgment of the Privy Council in Huntley v Attorney-General for Jamaica; [1995] 1 All ER 308, at 318; [1995] 2 WLR 114, at 123:

 

 

     "preliminary steps, which in themselves may not involve immediate legal consequences, may lead to acts or orders which do so.  In this case the protection of fair procedure may be needed throughout, and the successive steps must be considered not only separately but also as a whole.  The question must always be whether, looking at the statutory procedure as a whole, each separate step is fair to persons affected."

 

 

But immediately prior to that passage, the Privy Council quoted from the judgment of Lord Slynn of Hadley in Rees v Crane [1994] 2 AC 173, at 191:

     "It is clear from the English and Commonwealth decisions which have been cited that there are many situations in which natural justice does not require that a person must be told of the complaints made against him and given a chance to answer them at the particular stage in question.   Essential features leading the courts to this conclusion have included the fact that the investigation is purely preliminary, that there will be a full chance adequately to deal with the complaints later, that the making of the inquiry without observing the audi alteram partem maxim is justified by urgency or administrative necessity, that no penalty or serious damage to reputation is inflicted by proceeding to the next stage without such preliminary notice, that the statutory scheme properly construed excludes such a right to know and to reply at the earlier stage.

 

 

Although the Privy Council in Rees v Crane decided that, in the particular circumstances of the case, a sitting judge was entitled to know the allegations against him before a formal complaint was made, the passage cited shows that the procedural safeguards that are appropriate to the decision-making stage are not necessarily required at the investigative stage.  Ultimately, the question is whether the overall process is fair, having regard to the legislative requirements, the nature of the interests at stake, the nature of the inquiry and the opportunities for making representations in the course of the process: National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296; South Australia v O'Shea (1987) 163 CLR 378.

 

I find it difficult to understand how the invocation of "legitimate expectations" can advance Mr Guo's case.  As Mason CJ observed in Attorney-General (NSW) v Quin (1990) 170 CLR 1, at 20,

 

     "[i]t is the presence of a legitimate expectation which conditions the existence of a claimant's right to procedural fairness and the corresponding duty of the decision-maker to observe procedural fairness in the treatment of the claimant's case.  The content of that duty is dependent upon the circumstances of the particular case, but its existence is determined by reference to legal principle."

 

 

 

See also Dawson J., at 55.  The critical question in the present case is the content of the duty to afford procedural fairness in the circumstances.

 

The fact that the Commonwealth funds legal assistance for applicants for refugee status cannot, of itself, expand the content of procedural fairness to include a requirement to provide legal assistance for arrivals as soon as it is known that they are likely to apply for refugee status.  There is nothing in the evidence to suggest that the purpose of public funding was to allocate funds to enable lawyers to sit in on compliance interviews.  Even if assistance of this kind was provided to some applicants at public expense (as to which there was no evidence), I do not think it would carry the consequence that a failure to extend like assistance to all applicants would necessarily deny them fair play.

 

The submission gains no additional force from s.96 of the Act.  As Drummond J. said in Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs, unreported, 19 August 1994 (FCA/Drummond J.), at 15, digested at (1994) 35 ALD 395, the section goes no

 

     "further than proscribing the denial to a person of access to the courts or the denial to a person of full opportunity to obtain for himself legal advice and assistance.  [It does] not impose a positive obligation on the decision maker or anyone else to ensure that the applicants are provided with such advice and assistance at public expense."

 

 

 

(An appeal from Drummond J. was allowed in part, but these observations were not questioned: Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs, (1994) 35 ALD 225 (FCA/FC)).

 

Furthermore, in my opinion, the section does not impose an affirmative obligation on the custodian to give advice as to the applicant's entitlement to seek legal assistance.  The section imposes an obligation, at the request of the person in custody, to afford all reasonable facilities for obtaining legal advice or taking legal proceedings in relation to his or her custody.  The emphasised words, which limit the scope of the section, cannot simply be ignored.

 

I do not rule out the possibility that, in the circumstances of a particular case, the general principles of procedural fairness might require that, at some point in the process, the applicant be told that he or she is entitled to seek legal advice.  But I do not think that that point had been reached in the present case.  The advice that legal representation could be sought, and was available, was given on 9 December 1993, four days after Mr Guo arrived at Broome and three days after he arrived at Port Hedland.  As it happens, Mr Guo was aware (I infer) from his previous experience as an applicant for refugee status in Australia, that it was open to him to seek legal assistance if he wished. 

 

The compliance interviews, which took place on and before 9 December 1993, were conducted for legitimate purposes and a warning was given to Mr Guo as to the likely consequences of giving inconsistent accounts.  Legal assistance was available to him at all stages after the compliance interviews and, indeed, by his own choice, he was represented by Mrs Le (a migration agent, not a legal practitioner) at the DORS interviews and at the hearing before the Tribunal.  Furthermore, it was obviously important that the compliance interviews should be conducted shortly after the arrival of the Quokka group, bearing in mind the information sought to be obtained.  If the compliance interview could not have been conducted without the arrivals being told of their right to see a lawyer, it would seem to follow that the interviews could not have taken place until the arrivals had a genuine opportunity to engage and consult with their lawyers.  This would both delay the process and create serious difficulties for orderly administration.  As the Full Court recognised, in a slightly different context, in Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 (FCA/FC), at 601, care should be taken when seeking to impose, in the name of procedural fairness, detailed rules of practice in an area of high volume decision-making (and, I would add, high volume processing of claims).

 

Mr Rares referred to sub-paragraphs 192(i) and (ii) of the Handbook.  These sub-paragraphs provide as follows:

 

 

     "(i)The competent official (e.g. immigration officer or border police officer) to whom the applicant addresses himself at the border or in the territory of a Contracting State should have clear instructions for dealing with cases which might come within the purview of the relevant international instruments.  He should be required to act in accordance with the principle of non-refoulement and to refer such cases to a higher authority.

 

     (ii)The applicant should receive the necessary guidance as to the procedure to be followed."

 

 

Paragraph 192 of the Handbook is not concerned with the interpretation of the Convention.  It records a recommendation made by the Executive Committee of the High Commissioner's Programme in 1977.  The recommendation concerns the procedures that should be followed, having regard to the fact that the Convention (para. 189)

 

 

     "does not indicate what procedures are to be adopted for the determination of refugee status".

 

 

The recommended procedures do not address the question of legal representation for applicants for refugee status.  The recommendations refer to the desirability of giving the applicant "the necessary facilities, including the services of a competent interpreter, for submitting his case to the authorities concerned" (para. 192(iv)).  This falls well short of recommending that legal assistance be provided, or that applicants be told of the availability of legal assistance, prior
to the conduct of any compliance interviews.  I do not think that the Handbook assists Mr Guo (or Ms Pan) in relation to the extent of the obligation to afford procedural fairness at the early stages of processing of applicants.  The decision of the High Court in Minister of State for Immigration and Ethnic Affairs v Teoh, not yet reported, 7 April 1995, which was handed down after argument in the present case, does not address the significance of the Handbook, as opposed to the terms of a Convention.

 

There is an additional important factor in determining the extent of the obligation to accord procedural fairness to Mr Guo at the early stages of dealing with his arrival in Australia.  The Act entitles the applicant to an opportunity to appear before the Tribunal and to give evidence: s.166DB(1)(a).  In the present case Mr Guo appeared before the Tribunal and gave evidence.  He selected his own representative, who made written submissions on his behalf.  Mrs Le also represented him at the DORS interviews.  In the course of his evidence Mr Guo was given an opportunity to explain the apparent failure to mention the arrest and period of imprisonment in the course of the compliance interviews.  Other evidence relevant to that claim was taken into account.

 

It must be borne in mind that, in discharging its statutory duties, a Tribunal cannot simply ignore "adverse information that is credible, relevant and significant to the decision to be made": Kioa v West (1985) 159 CLR 550, at 629, per Brennan J.  What is critical is that the applicant have an opportunity to deal with that information.  The opportunity was provided to Mr Guo in the present case.  The Tribunal entrusted with the task of assessing the facts disbelieved his account: compare Twist v Randwick Municipal Council (1976) 136 CLR 106, at 113-117, per Mason J; The Queen v Marks; ex parte Australian Building Construction Employees and Builders Labourers' Federation (1981) 147 CLR 471, at 485, per Mason J.  In my opinion, having regard to the procedure as a whole, Mr Guo was not subject to procedural unfairness by reason of the fact that he was neither provided with a legal representative nor advised of his rights to seek legal advice prior to 9 December 1993.

 

Representation

On 24 March 1994 the Deputy Registrar of the Tribunal sent a letter to Mr Guo.  A letter (in similar terms with variations to take account of different circumstances) was sent to Ms Pan and to the two nieces, with copies in all cases to Mrs Le.  The relevant portions of the letter are as follows:

 

 

     "I refer to your application for the review of a decision refusing you refugee status.  Although the Tribunal has considered all of the documentation relating to your case, it is unable to make a decision on this information alone.  I therefore advise that you are entitled to appear before the Tribunal to give evidence and to name in writing any person from whom you wish the Tribunal to take evidence.

 

     If you choose to give evidence at a hearing, you may be accompanied at the hearing by an adviser or a friend.  However, this person does not have the right to make oral submissions at the hearing.   Further, you should note that although the Tribunal will consider the reasons for which you wish to call a witness it is not obliged to take evidence from any of the witnesses nominated by you.  The Tribunal Member hearing your case has advised, however, that should you wish to proceed to hearing they (sic) will also require Run Juan PAN and Zhi Gou WEI (sic) to attend and give evidence.

 

     ...

 

     You must...complete and return the enclosed form to this office within seven (7) calendar days of this letter.  The form requires you to confirm in writing whether:

 

     [1]  you wish to give evidence to the Tribunal at a private hearing;

 

     [2]  you wish to nominate any witnesses;

 

     [3]  another person will accompany you at the hearing;

 

     [4]  an interpreter will be required for you or for any witnesses named by you;

 

     [5]  you wish to withdraw your application."

 

 

Mr Rares contended that the terms of the letter created procedural unfairness in the decision-making process.  Mr Rares interpreted the letter as informing the applicants that they were not entitled to be represented, although they could have a friend or adviser present.  He submitted that there was no statutory authority for this course and that s.166DB of the Act, although providing that the Tribunal was not required to allow any person to address it orally, did not exclude the right of an applicant to be represented.  Similarly, he submitted that s.166DD(6), which stated that a person appearing before the Tribunal to give evidence, was not entitled to be represented or to cross-examine any other witness, did not preclude an applicant from being legally represented before the Tribunal.

 

It is, in  my view, correct to say that nothing in the Actnecessarily precluded an applicant from being legally represented in proceedings before the Tribunal.  Nor did the legislation necessarily prevent an applicant from adducing evidence and making oral submissions.  Section 166DB(1) required the Tribunal to give the applicant an opportunity to appear before it to give evidence and empowered the Tribunal to obtain such other evidence as it considered necessary.  Section 166DC(2) permitted the applicant to request the Tribunal to obtain oral evidence from specified persons.  The Tribunal was bound to have regard to the applicant's wishes, but was not required to obtain evidence from the specified persons: s.166DC(3).  Section 166DD(6) provided that a person appearing "to give evidence" was not entitled to be represented by another person, or to examine or cross-examine any other person appearing before the Tribunal.

 

In Minister for Immigration, Local Government and Ethnic Affairs v Immigration Review Tribunal (1993) 41 FCR 71 (FCA/Keely J.), Keely J. considered the equivalent of these provisions in Part 3, Division 4 of the Act.  His Honour expressed the view (at 77) that

 

 

     "the provisions in the Act demonstrate an intention by Parliament to confer upon the Tribunal extremely wide powers to decide what method of conducting the hearing will provide 'a mechanism of review that is fair, just, economical, informal and quick' [cf s.166C(1)], and to do so in its discretion although it must act according to substantial justice and the merits of the case' [cf s.166C(2)(b)]."

 

 

 

His Honour also accepted (at 78) a submission that it was open to the Tribunal to

 

 

     "(i)      conduct the proceedings in an adversarial, as distinct from inquisitorial, way...;

 

     (ii)      permit...the solicitors for the applicants, on behalf of his clients, to open his case, call evidence and to cross-examine witnesses...;

 

     (iii)     ask leading questions of persons giving evidence before it."

 

 

 

Keely J. expressed the view that it was open to the Tribunal to adopt one or more of these courses if, as a reasonable body, it considered that such a course was likely to assist it in meeting its duties under s.166C.  However, it was not obliged to follow any of these three courses.  I respectfully agree with this analysis of the provisions governing the conduct of Mr Guo's hearing.

 

There is an unresolved question of interpretation arising out of provisions in this form.  This is whether an applicant is entitled, if he or she wishes, to be represented by a lawyer (or any other person), or whether it is up to the Tribunal to determine whether such representation is to be permitted.  It is arguable that s.166DD(6), which was concerned with the position of a "person appearing before the Tribunal to give evidence", applied to an applicant when appearing to give evidence, as well as to a person appearing only for the purpose of giving evidence: Xiang Sheng Li v Refugee Review Tribunal, unreported, 14 December 1994, (FCA/Moore J.), at 21.  I am prepared to assume for present purposes that s.166DD(6) did not apply to an applicant in his or her capacity as such.

 

None of this means, however, that the letter was substantially inaccurate.  It specifically stated that Mr Guo was entitled to appear at the hearing by an "adviser", if he gave evidence.  This was not entirely accurate, if the correct interpretation of the Act was that the applicant was entitled to be legally represented regardless of whether he gave evidence.  But Mr Guo did give evidence and there was no suggestion that he did so because of the letter.  The letter did not say that the adviser appearing on behalf of an applicant giving evidence could not be legally qualified.  The letter stated that the adviser did not have the right to make oral submissions, but this was an accurate enough paraphrase of s.166DB(2) of the Act.  The letter also advised of Mr Guo's entitlement to nominate witnesses, but correctly pointed out that the Tribunal was not obliged to take evidence from those witnesses.  At the time the letter was received, and at all material times thereafter, Mr Guo was represented by Mrs Le, who was a migration agent.

 

No request was ever made to the Tribunal by Mr Guo or Mrs Le that Mr Guo should be legally represented at the hearing.  Mr Guo had been offered legal assistance on 23 December 1993 but he preferred, as was his entitlement, to be represented by Mrs Le. No evidence was led before me to demonstrate that Mr Guo had been misled by the letter.   No application was made to the Tribunal to vary its procedure, for example, so as to adduce evidence in chief from Mr Guo or to cross-examine other witnesses. There was no evidence that the Tribunal declined to call any witnesses nominated by or on behalf of Mr Guo.  Despite the terms of
s.166DB(2), the Tribunal offered Mrs Le the opportunity of making oral submissions at the hearing on 13 April 1994, but Mrs Le preferred the course of making written submissions.

 

In these circumstances, I reject the submission that the letter created a procedural unfairness in the conduct of the hearing before the Tribunal.

 

Tape of 7 December 1993 Interview

In January 1994, Dr Barker was Acting Director of DORS 51, a task force established to interview and make determinations of refugee status with respect to passengers on the Quokka and another vessel, designated as the Roger.  On 7 January 1994, Dr Barker provided to Mrs Le the DORS files relating to her clients, including Mr Guo.  On 12 January 1994, Dr Barker provided to Mrs Le, at Port Hedland, all compliance files that he believed the case officers considered relevant to the various cases.  Inadvertently, the compliance material handed to Mrs Le did not include a tape recording of the interview of 7 December 1993, although it did include the handwritten notes of the interview of 9 December 1993.  Dr Barker also inadvertently neglected to give Mrs Le certain documents that had been referred to in the interview of 7 December 1993, including receipts in respect of fines paid by Mr Guo upon his return from Hong Kong in 1986.  It follows, therefore, that Mrs Le did not have the tape recording of the first compliance interview at the time of the DORS interviews relating to Mr Guo, which took place on 13 January 1994 and 17 January 1994, respectively. 

On 17 January 1994, Mrs Le complained about the failure to give her the tape and she duly received it, together with the other material not previously provided to her.  The tape recording was therefore available to Mrs Le, as Mr Guo's representative, at the time of the Tribunal's hearing and determination.

 

Mr Rares' submissions did not address in any detail the consequences that were said to flow from the failure to provide the tape of the interview of 7 December 1993, until after Mr Guo's DORS interviews.  However, if Mr Rares was intended to suggest that the failure created an irremediable unfairness, I do not think that this suggestion can be made good. 

 

The Tribunal's reasons place no reliance on any suggested failure by Mr Guo to refer to his arrest and imprisonment in mid-1993 in the course of the DORS hearings.  The Tribunal attributed significance only to Mr Guo's failure to mention the matter in the course of his compliance interviews.  Mr Guo, with the assistance of Mrs Le, had an opportunity at the Tribunal hearing to address the significance of his failure to mention the arrest and imprisonment in the course of the compliance interviews.  At that stage, of course, Mrs Le had all of the relevant information, including a tape recording of the compliance interview of 7 December 1993.  As I have noted, Mrs Le had received, by 12 January 1994, the handwritten notes of the meeting of 9 December 1993.  In these circumstances, I do not think that the belated provision to Mrs Le of the tape recording and associated documentation created a relevant procedural
unfairness in the decision-making process applicable to Mr Guo.

 

Unreasonableness

Mr Rares argued that the Tribunal's determination that Mr Guo did not have a well-founded fear of persecution for a Convention reason was so unreasonable that no reasonable person could have reached such a conclusion.  In making this submission Mr Rares relied on arguments to which I have already referred and, in substance, rejected.  These arguments relate to what was said to have been the failure of the Tribunal to take account of the assurances given by officials of the PRC to the Australian Government and of the minute of 17 June 1993; the conclusions as to credit said to have been improperly reached by the Tribunal; and the irremediable prejudice to Mr Guo in what was said to have been the unfair assessment of his credit based on omissions in the information provided by him the compliance interviews.

 

In addition to these contentions Mr Rares seemed to rely on several other matters as supporting the conclusion that the Tribunal's decision should be set aside for unreasonableness.  As I followed them, these were the following:

 

l    The evidence before the Tribunal demonstrated, even on the facts found by the Tribunal, that the official Chinese Government range of punishment was "very much exceeded in every way".  For this purpose Mr Rares referred to a number of documents that were before the Tribunal but were not mentioned in its reasons.

l    The Court should make its own assessment of Mr Guo's credit, both on the basis of the material before the Tribunal and the evidence given by Mr Guo before me.  That assessment, according to Mr Rares, would inevitably lead to the conclusion that Mr Guo was telling the truth.

 

l    The Tribunal's finding that Mr Guo had been interrogated necessarily meant that his punishment was for his political activities in Australia.

 

In Premalal v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 117, at 136-142, Einfeld J. pointed out that a submission that a decision is unreasonable requires an examination of the role of the court in reviewing administrative decision-making.  In the course of that examination, his Honour said this (at 137):

 

 

     "Certainly the comment of Sir Anthony Mason in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42, viz that -

 

          '[a] court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits-'

 

 

     weighs even more heavily on a judge's mind when considering an applicant's submissions as to unreasonableness.  On the other hand, that statement should not lead to the other equally apparent danger of abandoning the judicial function to the often arbitrary will of administrative bodies.  To do so would be to remove the intended protective bulwark for citizens and others claiming to be oppressed by a democratic state.  In this context it is apposite to take into account Dworkin's distinction between policy and principle.  Policy is executive decision-making based on popular mandate.  Principle, with which the judicial function is directly involved, is the body of legal rules and principles having their roots in human rights and respect for individual dignity that form the moral foundation of a particular society: R. Dworkin, Taking Rights Seriously (1986), Ch.4.  It is in this respect inextricably tied in with the continuity that forms the basis of the rule of law."

 

 

 

Later in his judgment his Honour quoted the observation of Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, at 410, that "Wednesbury unreasonableness"

 

 

 

     "applies to a decision [which] is so outrageous in its defiance of logic or of expected moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

 

 

 

Einfeld J. expressed the view (at 140) that

 

 

     "an unreasonable decision may therefore be seen as something quite irrational or unprincipled."

 

 

Despite the fervour with which Mr Rares put his submissions I think the Tribunal's reasons, which are essentially concerned with fact finding, cannot fairly be characterised as "irrational or unprincipled".

 

Mr Rares asserted that there was "not one piece of paper" containing a report of anything like the penalties of 28 days imprisonment and the fine of 3,000 rmb that were imposed on Mr Guo.  I have already referred, in the context of the no evidence submission, to material before the Tribunal that supported the
finding that the penalties were within the range that could be expected for persons leaving the PRC illegally.  The additional material referred to by Mr Rares is insufficient to deprive the Tribunal's finding of rational force.  For example, Mr Rares quoted a cable from the Australian Embassy, dated 9 February 1993, which stated that the Chinese authorities would regard claims to asylum by boat people as improper,

 

 

     "but in the absence of more serious factors would not regard it as requiring adverse consequences beyond the Article 14 ten-day detention period."

 

 

 

This cable does not refer to Articles 176 or 177 of the Criminal Law, which were before the Tribunal.  It also explicitly acknowledges that "more serious factors" might result in a detention period longer than ten days.  There was evidence before the Tribunal to suggest that Mr Guo's case could have been regarded by the Chinese authorities as being in the "more serious" category.

 

Another cable, dated 9 February 1994, asserted simply that

 

 

     "[m]ost deportees from Australia have been detained for a short period for questioning and subsequently released."

 

 

 

A statement of this generality can hardly provide a sound basis for characterising the Tribunal's findings as irrational or beyond the realms of judgment open to a reasonable decision-maker.

Mr Rares' submissions on credit seemed to assume that any finding other than that Mr Guo was truthful and credible was wholly untenable.  I have already said that it was open to the Tribunal member to make the findings it did on the question of Mr Guo's general credit.  Mr Rares stressed that there was no reason for Mr Guo to invent a story between 9 December 1993 and the DORS interview of 13 January 1994.  But it was open to the Tribunal, having heard evidence from Mr Guo, to form the view that his account was untruthful; it can hardly be suggested that Mr Guo had no conceivable motive for exaggerating the duration of his period of imprisonment in 1993.

 

Mr Rares invited me to form my own view of Mr Guo's credit on the basis of his evidence before me.  In my opinion that is not an appropriate course.  The issue is not whether I consider Mr Guo to be a witness of truth, but whether the Tribunal erred in the decision it reached on his application for refugee status.  I do not think there is any substance in the contention that, because Mr Basten cross-examined Mr Guo on whether he had changed his account of events after the compliance interviews, the Court has a jurisdiction conferred upon it that would otherwise not be available.  Accordingly, I decline Mr Rares' invitation.  However, in doing so, I do not mean to imply that I would necessarily accept Mr Guo as a reliable witness.

 

Mr Rares contended that the Tribunal found that Mr Guo was interrogated about his refugee application and the protest.  He interpreted the finding as meaning that the Tribunal had concluded that Mr Guo was interrogated "not about other things but about the political grievance that he had with China".  On this basis he argued that it was "perverse" to conclude otherwise than that the punishment meted out to Mr Guo must have been because of his political activities, his application for refugee status or his contact with Australian officials.

 

In my opinion Mr Rares' argument overstates the significance of the finding made by the Tribunal.  The Tribunal accepted, although in somewhat equivocal terms, that Mr Guo was questioned about his activities in Australia, including his refugee application, the rooftop protest and a card he had received from an Australian official.  It was not, however, Mr Guo's case that he was questioned only about these matters.  The Tribunal's summary of Mr Guo's case, as presented to the Tribunal, referred to him being questioned at length about his journey to Australia, as well as the other matters.  The Tribunal did not find that Mr Guo had not been questioned about the journey to Australia.  Mr Guo, in his evidence before the Tribunal, stated that he had first been asked by the authorities questions concerning his reasons for going to Australia.  It is implicit in the Tribunal's findings that the questioning of Mr Guo by the authorities in China dealt with issues other than his activities in Australia.

 

The finding that Mr Guo was questioned about his activities in Australia is clearly consistent with Mr Guo's claim that his imprisonment for a total of 28 days was related to those activities.  But the finding does not lead inevitably to that
conclusion.  The Tribunal had evidence before it that returnees were questioned as a matter of course.  For reasons that have already been given, it was open to the Tribunal to conclude that the arrest and imprisonment suffered by Mr Guo were within the range of penalties imposed for illegal departures from the PRC.  It was also open to the Tribunal to conclude that, had the authorities been concerned about Mr Guo's activities in Australia, he would have been detained for longer than 28 days.  It does not seem to me that, in those circumstances, it was irrational or unreasonable for the Tribunal to conclude that, despite the questioning, the penalties imposed on Mr Guo were related to his illegal departure from the PRC rather than to his political activities in Australia, including his application for refugee status and contact with Australian officials.  To use the language in Mahon v Air New Zealand Ltd [1984] AC 808, at 821, the decision was based on material tending logically to show the existence of facts consistent with the findings and the reasoning in support of the findings was not logically self-contradictory.

 

Test of Persecution

Mr Rares argued that the Tribunal had failed to apply the test laid down by the High Court of whether a fear of persecution is well-founded for the purposes of the Convention.  That text requires "a real chance that the refugee will be persecuted if he returns to his country of nationality": Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 379, at 389 per Mason C.J; see also at 398, 407, 429; Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 127 ALR 223 (FCA/FC), at 250-254, per Sheppard J.  According to Mr Rares, the statement by the Tribunal in its reasons that it preferred "the independent evidence [of the penalties applied to persons illegally departing the PRC] to the applicant's unsupported assertions", indicates that it undertook an incorrect balancing process.

 

It is clear, however, that the Tribunal applied the test laid down in Chan.  The language of Mason C.J. in Chan is specifically quoted in the Tribunal's reasons as the test to be applied.  The reasons expressly acknowledged that a real chance of persecution could exist notwithstanding that there is less than a 50 percent chance of persecution occurring.  The Tribunal specifically found that Mr Guo did "not face a real chance of forcible sterilisation on return to China" and that he did "not face a real chance of persecution as a result of the evidence he [had] given in other proceedings".  In finding that Mr Guo's refugee application and political activities in Australia in 1992 would not result in his persecution for Convention reasons, the Tribunal was clearly intending to apply the same test.

 

The Tribunal's preference for the independent evidence was expressed in the context of the fact finding process which the Tribunal was obliged to undertake.  The question for the Tribunal was whether, in the light of the facts found, there was a real chance of Mr Guo being persecuted on his return to China. As Mr Basten submitted, there is nothing to suggest that, contrary to the express statements in the Tribunal's reasons, the Tribunal applied an incorrect test in assessing the significance of the findings of fact.  Minister for Immigration v Mok, relied on by Mr Rares, was quite a different case.  The decision-maker there assessed the chance of persecution by reference to the language of a person deciding an issue on the balance of probabilities.  Sheppard J. acknowledged (at 253) the appropriateness of such language to findings about past events, although not in relation to the assessment of a chance. 

 

For the reasons I have given, I do not think that the Tribunal applied the wrong test of whether a fear of persecution is well-founded for the purposes of the Convention.

 

Apprehension of Bias

Mr Rares submitted that the Tribunal, in dealing with Mr Guo's case, had acted in a manner that would cause the parties or the public to entertain a reasonable apprehension that the decision-maker, Ms McIllhatton, might not have brought an impartial and unprejudiced mind to the resolution of the matter before her.  The authorities governing the relevant principles have recently been reviewed by the Full Court, in the context of an application for refugee status, in Minister for Immigration, Local Government and Ethnic Affairs v Mok.  There is no occasion to revisit those principles here.

 

The submission was essentially based on the proposition that the Tribunal had ignored evidence, in particular the Embassy minute to which I have already referred in detail, and had employed reasoning that was irrational and internally inconsistent.  In my view, the submission raised nothing of significance beyond arguments that I have already considered and rejected.  I do not think that, in the light of the rejection of those arguments, the reasoning process employed by the Tribunal, or the manner in which the evidence was dealt with, could justify a conclusion that the parties or the public could entertain a reasonable apprehension that the Tribunal member did not bring an impartial and unprejudiced mind to the difficult questions before her.

 

Summary: Mr Guo

It follows from what I have said that none of the grounds relied upon by Mr Guo to set aside the Tribunal's decision has been established.

 

 

IV   PAN RUN JUAN

Background

Some of the background to Ms Pan's application to this Court has already been given.  I provide only a brief sketch here.  Although Ms Pan swore an affidavit, those portions of it that were admitted into evidence did not deal with any issues of substance.  Ms Pan did not give oral evidence before me.

 

Ms Pan was born in Bei Hai, in the PRC, on 9 January 1960.  As I have already noted, she arrived in Australia on 10 May 1992 on the Jeremiah, in the company of her husband and one of her (then) two children.  On 15 May 1992, Ms Pan lodged an application for refugee status, but her application was rejected on 28 May 1992.  A further application for internal review was made, but refused by the Department on 3 September 1992.  She was deported from Australia in October 1992.

 

After arriving in Australia on board the Quokka, Ms Pan participated in a compliance interview on 7 December 1993.  However, no claim relevant to the present proceedings arises out of that interview.  On 11 December 1993 she signed an application for refugee status.  A DORS interview took place on 15 January 1994, at which Mrs Le was present.  On 31 January 1994 Ms Pan's application for refugee status was refused.  On the same day Ms Pan, with the assistance of Mrs Le, completed an application for review of that decision.

 

Ms Pan gave evidence to the Tribunal, on 13 April 1994, in connection with her husband's application for review of the decision to deny him refugee status.  On the same day Ms Pan gave evidence to the Tribunal on her application.   The Tribunal member stated in her reasons that, to avoid unnecessary repetition of oral evidence, she had had regard to Ms Pan's evidence in her husband's hearing.  This was done with Ms Pan's consent and no point was taken by Mr Rares about this procedure.  Mr Guo also gave evidence to the Tribunal in relation to his wife's case.

 

The Tribunal's Decision

The main claim made by Ms Pan for refugee status in her own right was that she feared that she would be subjected to forcible sterilisation upon her return to China, and that this would amount to persecution by reason of her membership of a "particular social group".  Ms Pan claimed in her oral evidence before the Tribunal that, between April 1991 and her departure for Australia on the Jeremiah, she went into hiding to avoid the family planning authorities.  She also claimed that she came to Australia in 1992 because of problems she had experienced with the family planning policy.

 

The Tribunal identified the critical question as whether Ms Pan's fear of forcible sterilisation was well-founded.  The Tribunal found Ms Pan's "overall credibility" to be unsatisfactory in many respects, and her evidence in relation to forcible sterilisation to be "vague, evasive and internally inconsistent".  The Tribunal attached no weight to her claims to have been personally threatened with sterilisation by local officials.  However, the Tribunal accepted that, a few months after the birth of her second child, a threat of forcible sterilisation was made to her husband.  But the Tribunal also found that the lack of interest by the authorities after her return to China in 1992 was inconsistent with the level of interest she portrayed in her evidence.  In these circumstances the Tribunal found her account to be "implausible" and that her fears of harm were not well-founded.  It was therefore unnecessary to decide whether the treatment feared amounted to persecution and, if so, whether it would be imposed for a Convention reason.

Submissions

Mr Rares did not clearly distinguish in his submissions between arguments intended to relate to Mr Guo's case and those concerning Ms Pan.  To the extent that the submissions I have considered already were intended to relate to Ms Pan, there is no need to repeat my reasoning.  However, Mr Rares seems to have relied on two further matters in relation to the Tribunals findings on Ms Pan's application for refugee status.

 

One-Child Policy

Mr Rares submitted that the Tribunal had omitted any reference to Ms Pan's third child, who had been born only a few days before Ms Pan and Mr Guo left for Australia.  He submitted that the absence of any such reference indicated that a relevant consideration had not been taken into account in determining whether Ms Pan had a well-founded fear of forcible sterilisation on her return to the PRC.

 

It is clear that the Tribunal was well aware that Ms Pan had three children.  The Tribunal's reasons record the birth of her third child on 27 October 1993 and note the proximity of this event to the family's departure for Australia eleven days later.  The Tribunal member questioned Ms Pan as to why the authorities had made no attempt to sterilise her after the birth of her third child, which had taken place in hospital.  The written submissions to the Tribunal put no argument that the birth of her third child, assuming Ms Pan's account of events in 1991 and 1992 were to be rejected, was likely to attract the interest of the population control authorities, leading to a real chance of persecution upon her return to the PRC.  The significance to the family planning authorities of the birth of a third child had been referred to briefly in the written submissions made to the delegate in Ms Pan's case.  However, Mr Rares did not point to any objective evidence before the Tribunal suggesting that the birth of a third child, without a prior history of sustained interest by the authorities, would create a real chance of forcible sterilisation or other persecutory conduct directed at Ms Pan.

 

In these circumstances, I do not think that the Tribunal can be said to have failed to take into account a relevant consideration.  The Tribunal had to make an assessment of the factual issues presented by Ms Pan's case.  The Tribunal rejected the major portion of Ms Pan's account and found that there was no sustained interest by the population control authorities in Ms Pan or her family.  The Tribunal concluded that Ms Pan's claims were not plausible.   Part of the evidence the Tribunal considered was that concerning the birth of the third child.  Accordingly, this ground fails.

 

Apprehension of Bias

Mr Rares submitted that the "content and tone" of the Tribunal member's questioning of Ms Pan, on the issue of whether she feared forcible sterilisation because of China's one-child policy, demonstrated a reasonable apprehension of bias on the part of the Tribunal.  Mr Rares contended that the questioning showed that the Tribunal member regarded forcible sterilisation as "perfectly acceptable" and not giving rise to any rational basis for complaint by Ms Pan.

 

No evidence was given of the "tone" of questioning undertaken by the Tribunal member.  In the absence of any such evidence, a reading of the transcript of the proceedings does not suggest that the Tribunal member brought to bear a prejudiced mind, or one that was incapable of fairly assessing the evidence before her: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, at 101, per Gaudron and McHugh JJ.  In accordance with what appears to be the usual course followed at Tribunal hearings, the Minister was not represented.  The Tribunal member herself conducted the questioning of the applicant, although Mrs Le was given an opportunity (which she declined) to ask further questions of Ms Pan.   This procedure reflects a desire to adopt what is often described as an "inquisitorial" approach, as opposed to an "adversarial" approach.  The Tribunal member at the outset of the hearing described it as "non-adversarial" in nature.  See also the extract from the Parliamentary Debates cited in Minister for Immigration v Immigration Review Tribunal, at 77.  As Keeley J. recognised in that case, it is open to the Tribunal to ask leading questions of witnesses, including an applicant.  Indeed, where the credit of a witness is an issue to be resolved, it is inevitable that questions will be asked which are designed to test the veracity of assertions made by the witness.  In this case, many of Ms Pan's answers invited more detailed and probing questions, a course the Tribunal was entitled to follow.  Given that the legislation authorises such a procedure, the fact that the Tribunal member asks leading questions does not, without more, establish the reasonable apprehension of bias on the part of the Tribunal.

 

In my view, there is nothing in the transcript to support the contention that the Tribunal member was trivialising the significance of forcible sterilisation or other intrusive compulsory medical procedures.  The Tribunal did ask Ms Pan why she did not wish to undergo voluntary sterilisation, having regard to her evidence that she did not wish to have any more children.  Such a topic is delicate and might well cause distress to a witness (as the Tribunal member recognised when inviting Ms Pan to take a break in her evidence).  But the questions were relevant to the factual issues the Tribunal member was required to resolve, notably whether Ms Pan had a well-founded fear of compulsory sterilisation upon her return to China.  The questions do not give rise to a reasonable apprehension of bias on the part of the Tribunal member.

 

 

Summary: Ms Pan

In my view the additional arguments raised by Mr Rares on behalf of Ms Pan cannot succeed.  Accordingly, I conclude that there are no grounds for setting aside the Tribunal's determination relating to Ms Pan.

 

 

V    THE NIECES

The Applications

As I have already said, the history of the nieces' dealings with the Department reveals a somewhat confused picture.  On 11 December 1993 Lin Yan, then aged 12, signed an application for refugee status, although the body of the form, subject to one exception, was not completed.  The exception was that, under the heading of "About Your Family" and under the sub-heading "Other Family Members", she wrote the name of her sister, Lin Jing. 

 

Lin Jing, then aged 9, did not complete a form in her own right, nor was a separate form submitted on her behalf.  However, on the same day, Mr Guo signed an application for refugee status.  Under the heading "About Your Family" and under the sub-heading "Your Children/other dependents (sic)", the names of his two nieces were included.  Mr Guo also indicated on his form that his two nieces were included in his application.  Ms Pan completed her application for refugee status in identical fashion at the same time.

 

At that time, the Migrant (1993) Regulations made provision for members of the family of an applicant for refugee status.  The relevant provisions were in Part 2A of the Regulations:

 

     "2A.2(1) A refugee status application must be made in accordance with approved form.

 

          (1A)A refugee status application by a member of the family unit of an applicant for a determination of refugee status may be combined with, and lodged at the same time as, the application by that other
applicant."

 

 

 

"Member of a family unit" was defined as follows:

 

 

 

     "1.8(1)   ...a person is a member of the family unit of another person (in this sub-regulation called the "family head") if the person is:

 

              (a)  a spouse of the family head...; or

              (b)  a dependent child of the family head or of a spouse of the family head; or

              (c)  ...

              (d)  a relative of the family head or of the spouse of a family head, who:

 

                   (i)  does not have a surviving spouse or any other relative...able to care for that relative in the relevant country; and

 

                   (ii)is usually resident in the family head's household; and

 

                  (iii)is dependent on the family head...".

 

 

    

The term "dependent child" was also defined, in reg.1.3:

 

 

     "'Dependent Child' means the natural or adopted child of a person (other than a child who is a spouse or engaged to be marred), being a child:

 

     (a)  who

          (i)  has not turned 18; and

          (ii)is wholly or substantially in the daily care and control of that person...."

 

 

 

Plainly neither of the nieces was a dependent child of Mr Guo and Ms Pan.  Whether they were members of Mr Guo's family unit depended upon whether they satisfied the terms of reg.1.8(1)(d).

 

In December 1993 and January 1994 Dr Barker was Acting Director of the task force known as DORS 51.  At some time in December 1993 he sought advice from the Refugee Law Section of the Department as to the manner in which the nieces should be assessed for refugee status.  He was advised that they should be assessed separately from the application made by their uncle and aunt, and not as their dependants.  This advice was reiterated by Dr Barker to Mrs Le at meetings which took place on 12 and 13 January 1994, at Port Hedland.  Dr Barker maintained this position, notwithstanding a statement to him at the time by Mrs Le (who at this stage was representing the two nieces) that she wished to have them included as Mr Guo's dependants in his application for refugee status.

 

In his oral evidence Dr Barker accepted that the usual practice followed by the Department was that an applicant nominated the persons who were to be included in the application as dependants.  The practice was that the Department made a determination, after investigation, as to whether the nominated person was a dependant.  In this case, however, no decision was ever made by the Department as to whether the nieces were dependants of Mr Guo or Ms Pan, primarily because Dr Barker had received the advice that their claims should be assessed separately.

 

In a statutory declaration of 17 January 1994, Mr Guo declared that, in April 1993, the nieces' parents had asked him to assume the care of their daughters if anything should happen to them.  He also declared that he did not know the present whereabouts of the parents and that he had instructed Mrs Le that the nieces were to be included as his dependants on his application for refugee status.

 

The evidence does not suggest that a compliance interview was held with either of the nieces.  However, on 17 January 1994 a DORS interview was held with Lin Yan, the older niece, in the presence of Mrs Le and a Cantonese interpreter.  A transcript of the interview, which was brief, was in evidence.  On 31 January 1994 Lin Yan was advised that her application for refugee status had been refused.  There was no indication on the letter of refusal, or on the "decision record" relating to Lin Yan's application, that her younger sister was to be treated as her dependant, nor that the rejection of Lin Yan's application had the consequence that Lin Jing's claim to remain in Australia was also rejected.  Dr Barker, in his evidence, conceded that there was no documentation recording a decision to reject any claim by Lin Jing to remain in Australia.  However, Dr Barker's understanding was that Lin Jing's fate would rest with that of her sister.

 

On 31 January 1994 Lin Yan lodged an application for review of the refusal of her application for refugee status.  The application indicated that she was assisted by Mrs Le and gave as the reason for disagreeing with the decision that her case had been "improperly assessed".  On the same day, an application for review of a refugee decision was lodged for Ling Jing.  The form, which again indicated that the applicant was assisted by Mrs Le, described the decision to be reviewed as "refusal of refugee status".

 

The Withdrawal of the Nieces' Applications

On 15 April 1994, a conversation took place between Mrs Le and Ms McIllhatton, the Tribunal member hearing Mr Guo's application for review, concerning the position of the nieces.  The contents of that conversation, and whether it was the only conversation dealing with that topic, were disputed in the evidence given in this Court by Mrs Le and Ms McIllhatton.  In any event, Mrs Le sent a handwritten letter to the Refugee Review Tribunal, on 15 April 1994, while she was in Port Hedland, concerning Lin Yan.  The text of the letter is as follows:

 

 

     "The above child is listed as a dependant on the application of her uncle (Guo Wei Rong) and her aunt (Pan Run Juan) and was so "determined" by the Department of Immigration and Ethnic Affairs regarding refugee status in Australia.

 

     It is considered therefore to be inappropriate at this time that she have an application for review before the Tribunal.

 

     On her behalf I wish to withdraw her application at this time whilst she awaits with her younger sister, the outcome of the applications of her uncles and aunt for refugee status."

 

 

 

On 17 April 1994 Mrs Le signed a typed letter, on behalf of Lin Jing, stating that she wished "to withdraw the application to the RRT for a review of a decision regarding refugee status in Australia".  The letter noted that the girl was listed as a dependant of her uncle and aunt and was not assessed by the Department in her own right.

It is clear from the terms of these letters that Mrs Le, when withdrawing the separate applications of the two nieces, assumed that they would be assessed as dependants of their uncle and aunt.  At that time Ms McIllhatton had not made a decision in relation to the nieces' claim to be dependants of their uncle and aunt, and did not do so until some time later.

 

The Tribunal's Decision

On 2 May 1994 Ms McIllhatton completed a "case management action request" in which she noted that the file of Lin Jing should not have been made up as there was no "RRT-reviewable decision" in respect of her.  The request also noted that Lin Yan's file recorded instructions that her application was to be withdrawn.  On the same day Ms McIllhatton completed draft decisions concerning Mr Guo and Ms Pan.  At the same time a letter was sent on behalf of Ms McIllhatton to Mrs Le, drawing to her attention certain articles of the Criminal Law and Criminal Procedure Law of the PRC.  The letter did not alert Mrs Le to the possibility that the Tribunal might consider that it lacked jurisdiction to determine the children's applications to be dependants of Mr Guo and Ms Pan.  On 13 May 1994, the Deputy Registrar of the Tribunal wrote to the Secretary of the Department, informing him that the nieces had withdrawn their applications and that, accordingly, their applications could be finalised.

 

The Tribunal's decisions on the applications of Mr Guo and Ms Pan were given on 19 May 1994.  In her reasons on Mr Guo's application, Ms McIllhatton said this:

 

     "Guo Wei Rong (the Applicant) lodged the primary applications, which by written request dated 17 January purported to include his two nieces Lin Jing and Lin Yan, with [the Department] on 14 December 1993.

 

     ...At the conclusion of the oral hearing before the Tribunal on 13 April 1994 the Applicant's representative made a submission that the Applicant's wife, his two children, his brother and two nieces who travelled with the Applicant to Australia be included in the Application for refugee status.  However, the primary decision before the Tribunal in this case did not refer to these persons.  As the Tribunal's jurisdiction is limited to "RRT-reviewable decisions" the Tribunal has no jurisdiction in respect of these persons."

 

 

 

The transcript of proceedings before the Tribunal on 13 April 1994 shows that Mrs Le simply informed the member that Mr Guo wished to include his two nieces in his application, and did not make a submission to that effect.  Be that as it may, the reasons do not explain why Ms McIllhatton described Mr Guo as "purporting to" include the nieces in his application.  Nor did Ms McIllhatton advise Mrs Le, as the representative of the nieces, that she was contemplating holding that there was no jurisdiction to deal with the nieces' claim to be dependants of Mr Guo and Ms Pan.

 

Attempt to Deport the Nieces

On 18 July 1994 notices of removal of the two nieces were served upon them and upon Mrs Le.  The notices (the form of which was amended before service) were identical:

 

 

     "You are being held in custody under Division 4B of the Migration Act 1958 as a designated person.  Section 54P(3) requires that an officer must remove a
designated person from Australia as soon as practicable where an entry application has been refused and all appeals against, or reviews of, the refusal (if any) have been finalised.

 

     You have been found not eligible for refugee status in Australia by a delegate of the Minister for Immigration and Ethnic Affairs and your application for review was withdrawn.

 

     You have no lawful authority for continuing to remain in Australia and the Department is therefore obliged to effect your removal.

 

     The Embassy of the People's Republic of China has provided you with a travel document.  Arrangements have been made for you to fly to China, to Guang Zhou, on the morning of Tuesday 19 July 1994.  You will be given $US50 to help with bus fares and other incidental expenditure on your return to China."

 

The nieces, through Mrs Le as their next friend, applied for orders to restrain their removal from Australia.  These applications were made in conjunction with applications to review the Minister's decision to remove them from Australia pursuant to s.54P(3) of the Act.  Those applications led to a delay in the proposed departure date, but were dismissed by Gallop J. on 21 July 1994, although his Honour's reasons were not delivered until 1 September 1994:  Le as next friend for Lin Yan v Minister for Immigration and Ethnic Affairs, digested at (1994) 35 ALD 388.  The argument put on behalf of the Minister, and accepted by Gallop J, was that all the requirements of s.54P(3) of the Act had been satisfied.  In particular, it was submitted that

 

l    each of the nieces was a "designated person" (a proposition which has never been in contest in these proceedings);

 

l    Mr Guo's application to the Federal Court seeking review of
the Tribunal's determination, filed on 29 June 1994, although not finalised, did not relate to the nieces; and

 

l    the nieces' separate applications had been withdrawn by Mrs Le on their behalf and the withdrawal could not be regarded as ineffective or capable of being rescinded.

    

On 22 July 1994 the Full Court heard argument on an application for leave to appeal from the decision of Gallop J.  As has already been noted, the Minister and the second respondent to the nieces' applications (the manager of the Port Hedland Immigration Reception and Processing Centre) gave undertakings on that day that they would not, until further order of the Court, cause the nieces or either of them to be removed from Australia.

 

According to a statement of agreed facts filed by the parties, on 18 July 1994 (the date the notices of removal were served) Mrs Le lodged separate applications on behalf of each of the nieces for refugee status.  On 31 August 1994, the Minister's delegate rejected the nieces' refugee applications and, on 6 September 1994, applications for review by the Tribunal were filed.  On 10 January 1995, the Tribunal adjourned the nieces' applications until completion of the current proceedings before the Court.

 

Conflict of Evidence

I have noted that the evidence revealed a conflict between the accounts of Mrs Le and Ms McIllhatton concerning the content and timing of certain conversations that took place between them.   I have formed that view that is not necessary to resolve the conflict in order to determine the position of the nieces.  However, in the course of Ms McIllhatton's evidence, Mr Rares put to her, not only that her recollection as to conversations was faulty, but that she was fabricating part of her evidence.  Mr Rares also submitted that some portions of Ms McIllhatton's account should be rejected.  In these circumstances, I think it appropriate to make some observations on the conflict of evidence. 

 

On Mrs Le's account, a conversation occurred in the course of the hearing of Mr Guo's application for review, on 13 April 1994, while the tape recorder was switched off.  During the conversation, Mrs Le said that she asked Ms McIllhatton for advice as to the correct word to use to ensure that the nieces' applications would await the outcome of the review applications by their uncle and aunt.  According to Mrs Le, she used the word "withdraw" in the correspondence because Ms McIllhatton advised her to do so.  Furthermore, Mrs Le said that, while the tape was switched off, there was discussion concerning the persons included in Mr Guo's application. 

 

Ms McIllhatton gave evidence that the significant conversation took place outside the building in Port Hedland where the hearings were conducted.  She said the conversation occurred on 15 April 1994, shortly after the oral hearing concerning Guo Wei Zhi had concluded.  On Ms McIllhatton's account, Mrs Le informed her that she (Mrs Le) wished to withdraw the nieces' applications.  Ms McIllhatton was concerned about whether Mrs Le understood the legal position correctly, but did not give Mrs Le advice as to the course of action she should pursue.  Ms McIllhatton denied that a conversation to the effect alleged by Mrs Le occurred when the tape was switched off during the hearing of 13 April 1994.  There was, however, some common ground between Mrs Le and Ms McIllhatton.  In particular, Mrs Le, in cross-examination, accepted that some of Ms McIllhatton's account of the conversation was accurate.  She agreed, for example, that Ms McIllhatton had expressly declined to give advice as to the course of action Mrs Le should adopt. 

 

To the extent that their accounts were in conflict I clearly prefer the evidence of Ms McIllhatton to that of Mrs Le.  I consider that Ms McIllhatton was a reliable and careful witness, at pains to give an accurate account in difficult circumstances.  She was prepared to acknowledge that her account might require modification in certain minor respects, but was clear and firm in her recollection of the important events.  She also had the advantage of having had read to her a portion of the transcript of Mr Guo's hearing on 13 April 1994, in order to assist her memory prior to swearing her affidavit.

 

Mrs Le, quite plainly, felt, and continued in the witness box to feel, a strong sense of responsibility for the welfare of the two nieces.  In my opinion, Mrs Le's emotional commitment to the case coloured to some extent her recollection of events, although not necessarily consciously.  Mrs Le swore her affidavit without having access to transcripts or tapes of recorded interviews or hearings.  Her account of events occurring in interviews or hearings when compared with the transcripts, revealed significant inaccuracies and a tendency to attribute, without objective justification, unsympathetic attitudes and practices on the part of interviewers and Tribunal members towards applicants or those assisting them.  My impression of Mrs Le in the witness box was that she was prone to recall events in a manner that allowed them to correspond with her view that the procedures employed in relation to her clients were unfair.  However, to be fair to Mrs Le, as I have already pointed out, she conceded in cross-examination at least part of Ms McIllhatton's version of the conversation was or could have been accurate. 

 

Thus, were it necessary to do so, I would have accepted Ms McIllhatton's account of events.  I reject the suggestion that she fabricated any part of her evidence.

 

The Minister's Attitude

The Minister's attitude in the proceedings before me was very different to that adopted by him in the proceedings heard by Gallop J.  In response to Mr Rares' opening, Mr Basten stated that the nieces were "being given the best of all possible worlds at the moment". By that he meant, as I understand it, that the Minister would impose no barriers on the nieces pursuing their independent claims to refugee status presently before the Tribunal and adjourned pending the outcome of these proceedings.  The Minister's attitude, therefore, was that, despite the submissions made on behalf of the Minister to Gallop J, the nieces would be permitted to claim that they were dependants of Mr Guo and entitled to an entry permit as members of his family unit.  Mr Basten did not explain why the Minister's attitude to the status of the nieces had changed.  However, the change reduced, if not eliminated, the issues in dispute between the parties as far as the nieces were concerned.  Nonetheless, Mr Rares contended that the circumstances in which Mrs Le withdrew the nieces' application still required analysis.  This was because, as I understood his argument, the circumstances were relevant to the nieces' contention that they were entitled to be released from custody, because the operation of s.54P(3) had been exhausted and there was no other authority for retaining them in custody.

 

In his final submissions, Mr Rares contended, among other things, that the conduct of the Tribunal, in permitting withdrawal of the nieces' claim to dependency status, constituted a denial of procedural fairness, because the course of action ultimately taken by the Tribunal was never foreshadowed to Mrs Le.  Mr Rares also submitted that the Minister had elected to treat the withdrawal of the nieces' application as effective and thus the Minister must be taken to have accepted that all the requirements of s.54P had been complied with.  Since no steps had been taken to process the removal of the two nieces from Australia until late June 1994, the power of removal was spent.  In other words, since the Minister did not act "as soon as [was] practicable", the power to detain the nieces under s.54P was exhausted and
(presumably) the Minster could rely on no other source of authority to retain the nieces in custody.  As Mr Rares pointed out, in the absence of valid statutory authority for the detention of an alien, even one who has entered the country unlawfully, that person cannot be detained by an officer of the Commonwealth.  Moreover, an alien who is unlawfully detained has standing to seek relief from a domestic court of competent jurisdiction: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, at 19-20, per Brennan, Deane and Dawson JJ.

 

In their final submissions, Mr Basten and Mr Williams summarised the Minister's position as follows:

 

 

     "The position of the Respondent is that if there be any ground for reconsidering the applications of Mr Guo and Mrs Pan (which is not conceded) and if they obtain a successful decision, that decision will enure for the benefit of members of their family unit.  Whether the Applicants are members of their family unit will in turn be given full consideration.  If the older Applicant wishes to pursue her withdrawn complaint before the RRT it is accepted that she will be able to do so.  The mother of the Applicants is now in Australia.  She has sought refugee status.  If she seeks to include her daughters as dependants in her application (which she does) and if she is successful and can properly establish that they are members of her family unit, again the Applicants will obtain the consequences of her success."

 

 

 

This formulation did not in terms concede that the Tribunal was in error in determining that it lacked power to consider whether the nieces were members of Mr Guo's family unit, for the purposes of the Migration (1993) Regulations.  However, it is difficult to see how the Tribunal's determination on this issue is
consistent with the Minister's current position.  Mr Basten suggested that the Tribunal may have intended simply to defer the question of dependency until after the applications of Mr Guo and Ms Pan had finally been decided.  Beyond this, he did not seek to uphold the Tribunal's determination concerning the nieces.

 

Denial of Jurisdiction

In my view, the Tribunal's determination relating to the nieces should be set aside.   In my opinion, the Tribunal was in error in ruling that it had no jurisdiction to make a determination in respect of the nieces, at least without deciding whether they were members of Mr Guo's family unit.  The nieces were included in Mr Guo's initial application as his dependants.  The Migration (1993) Regulations permitted a refugee status application by the nieces to be combined with an application by Mr Guo, provided that each of the nieces could demonstrate that she was a "member of [Mr Guo's] family unit" as defined in reg.1.8(1).  Mr Guo never withdrew his request that the nieces should be included in his application.  Nor did Mrs Le ever withdraw the nieces' application to be considered as dependants of Mr Guo.  (Presumably the form of application for refugee status should be read as using the term "dependent" (sic) as the equivalent of "member of a family unit", as defined in the Regulations.)  The Department's decision to treat the nieces ashaving made separate applications was made on internal advice and was not assented to by Mrs Le as their representative.  On the contrary, on any view of the facts, Mrs Le made known to theTribunal her intention that the nieces should be considered as dependants of Mr Guo. 
The Tribunal never addressed the question of whether the nieces could demonstrate that they were members of Mr Guo's family unit, within the meaning of reg. 1.8(1) of the Migration (1993) Regulations.

 

Alternatively, in my view, the Tribunal denied the nieces procedural fairness, by failing to advise Mrs Le, as their representative, that it was contemplating ruling that it had no jurisdiction to deal with their applications as members of Mr Guo's family unit.  I accept Ms McIllhatton's denial of the claim that she consciously adverted to the possibility that such a ruling would expose the nieces to deportation under s.54P(3) of the Act.  However, the objective fact was that the nieces' application for refugee status in their own right had been withdrawn.  It is true that the nieces' applications to be considered as members of Mr Guo's family unit could not succeed if Mr Guo's own application failed.  But Mr Guo's application might be (and indeed was) taken further by way of an application for judicial review.

 

The Tribunal's ruling exposed the nieces to the risk of swift deportation action pursuant to s.54P(3), notwithstanding any application for review to this Court that was brought by Mr Guo himself.  Because Mrs Le was not told that the Tribunal was considering ruling against the nieces on the jurisdictional question, she was deprived of the opportunity, as the nieces' representative, of addressing the jurisdictional issue in her written submissions.  She was not entitled to address the Tribunal orally (s.166DB(2)), but I infer that she undoubtedly would have sought to address the jurisdictional question had she been aware of the course the Tribunal was considering.  Had she been given that opportunity, the Tribunal may well have reached a different conclusion on that issue.  Accordingly, I consider that the nieces were denied procedural fairness on the jurisdictional question.

 

Of course, setting aside the Tribunal's ruling on the jurisdictional issue is of no long-term practical assistance to the nieces unless Mr Guo or Ms Pan succeed in their applications.  I have given my reasons elsewhere for concluding that the applications of Mr Guo and Ms Pan must fail.  If, however, one or both successfully appeal from my decision, the nieces should be entitled to the opportunity of demonstrating that they are members of the family unit of Mr Guo or (if the occasion arises) of Ms Pan.  In the meantime, setting aside the Tribunal's determination on this issue means that not all appeals against, or reviews of, the refusal of the nieces' entry applications have been finalised, within the meaning of s.54P(3)(c) of the Act.  Thus the occasion for their removal from Australia (independently of any other applications they have made) has not yet arisen.

 

Habeas Corpus

There is no doubt that the Minister relied on s.54P(3) of the Act in taking steps to remove the nieces from Australia in June and July 1994.  However, as Mr Rares recognised in argument, that does not mean that there was and is no statutory authority for retaining the nieces in custody.  The fact that the Minister erroneously relied on s.54P(3) as the authority for the removal of the nieces from Australia, does not determine whether the Minister is or is not obliged or entitled to keep them in custody pending the determination of their entry applications.

 

Section 54L(1) (now s.178) of the Act provides that, subject to s.54L(2), a designated person must be kept in custody.  There is no dispute that the nieces, at all material times, satisfied the definition of a "designated person" in s.54K of the Act.  Section 54L(2) provides that a designated person is to be released if and only if he or she is removed from Australia under s.54P or is given an entry permit.  Neither of those events has occurred.  There is nothing in the peremptory language of s.54L (described in Lim v Minister, at 32, as the "pivotal section" of Division 4B) to suggest that misplaced reliance by the Minister on the duty to remove a designated person imposed by s.54P(3) terminated the requirement imposed by s.54L(1) that the designated person be kept in custody pending the specified events.  There has been no suggestion in the present case that the nieces are being kept in custody otherwise than pending the determination of their various applications for entry permits or for refugee status.  Accordingly, whatever views one might have about the desirability of two children, now aged 13 and 10, who have spent at least 16 months in custody, facing yet further periods in custody, the terms of s.54L authorise, and indeed compel, that state of affairs.  Accordingly, the application for habeas corpus fails.

 

Summary: the Nieces

The result is that the nieces are entitled to pursue their claims to be dependants of Mr Guo and Ms Pan, although the occasion for this will only arise if Mr Guo or Ms Pan successfully appeal from my decision on their applications.  The Minister has accepted that there is no barrier to the nieces pursuing their independent claims to refugee status, should they be able to make out their cases before the Tribunal.  I do not understand the Minister to be drawing any distinction between the two nieces as far as this is concerned.  The Minister also accepts that the nieces may pursue claims to be dependants of their mother, should her claim to refugee status be successful.  The occasion for the nieces' deportation from Australia has not yet arisen.  However, the basis for an application to secure their release from custody has not been made out.

 

 

VI.  CONCLUSION

The applications for relief by Mr Guo and Ms Pan should be dismissed.  The nieces are entitled to relief giving effect to the conclusions I have reached in the summary of their cases.  I think the appropriate course is to direct the legal representatives of the nieces to bring in short minutes of order reflecting those conclusions.

 

Having regard to the circumstances, including the Minister's change of position relating to the nieces, I am inclined to the
view that no order for costs should be made.  However, I shall hear any party wishing to argue the question of costs.

 

                   I certify that this and the preceding 100 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

 

                   Associate:

 

 

 

 

                   Dated:  4 May, 1995 

 

Heard:             6-10 February, 1995 and 21 March 1995

 

Place:             Sydney

 

Decision:          4 May, 1995

 

Appearances:       Mr S. Rares SC with Ms R. Sofroniou and Mr M. Lawler, instructed by Walsh James Solicitors, appeared for the Applicants.

 

                   Mr J. Basten QC with Mr N.J. Williams, instructed by the Australian Government Solicitor, appeared for the Minister for Immigration and Ethnic Affairs and for Mr G. Wallis, Manager, Port Hedland Immigration Reception and Processing Centre.

 

                   Mr A. Markus of the Australian Government Solicitors filed a submitting appearance for Ms S. McIllhatton, Member constituting the Refugee Review Tribunal.