CATCHWORDS

 

 

IMMIGRATION - non-citizens - protection visas - failure to make application for visa prior to statutory preclusion - alleged failure to provide means to do so - whether trial judge in error in concluding applicants did not "engage" Australia's protection obligations - whether trial judge wrongly considered fear of persecution in China rather than Vietnam - whether he wrongly held applicants did not make "constructive" applications and were not assisted by estoppel - whether error in finding of no breach of rules of procedural fairness generally and in failure to notify right to apply or obtain access to legal advice - whether error in finding no loss of legitimate expectation.

 

Acts Interpretation Act 1901 (Cth), s.25C

Federal Court of Australia Act 1976 (Cth), s.21

Judiciary Act 1903 (Cth) s.39B

Migration Act 1958 (Cth), ss.5(1), 29, 31, 34, 36, 40, 45, 46, 47, s.189(2), 193, 194, 195, 196, 198, 256, 475, 476, 485

Migration Legislation Amendment Act (No. 4) 1994, ss.91A, 91B, 91C, 91D, 91E, 91F

Migration Legislation Amendment Act (No 2) 1995

Migration Regulations, rr2.03, 2.04, 2.07, Schedules 1, 2, 2.12A and 11

 

 

Convention Relating to the Status of Refugees 1951

Protocol Relating to the Status of Refugees 1967

 

 

 

Accident Compensation Commission v. Murphy [1988] VR 444

Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564

Ali v. Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 178

Amanyar v. Minister for Immigration, unreported, 22 December 1995, Judgment No. 1050/95

Annetts v. McCann (1970) 170 CLR 596

Attorney-General v. Times Newspapers Ltd [1974] AC 273

Azzopardi v. Tasman VEB Industries Ltd (1985) 4 NSWLR 139

Brunskill v. Sovereign Marine and General Insurance Company Ltd (1985) 62 ALR 53

Calvin v. Carr [1977] 2 NSWLR 308

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

Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1

Commonwealth v. Verwayen (1990) 170 CLR 394

Cooper & Dysart Pty Ltd v. Sargon (1991) 5 WAR 472

Director of Public Prosecutions v. Serratore (1995) 132 ALR 461

Elbourne v. Minister for Immigration, Local Government and Ethnic Affairs (1991) 22 ALD 211

Equal Opportunities Commission v. Secretary of State for Employment [1994] 1 All E.R. 910

Formosa v. Secretary, Department of Social Security (1988) 46 FCR 117

Gardner v. Dairy Industry Authority (1978) 18 ALR 55

Grant & Co Pty Ltd v. Westpac Banking Corporation (1995) 18 ACSR 225

Grunwick Ltd v. Acas [1978] AC 655

Guo Wei Rong v. Minister for Immigration and Ethnic Affairs (unreported, delivered 4 May 1995)

Hamilton v. Minister for Immigration (1994) 53 FCR 349

Hunter Resources v. Melville (1988) 164 CLR 234

Kioa v. West (1985) 159 CLR 550

Luu v. Renevier (1989) 91 ALR 39

Mabo v. Queensland (1992) 175 CLR 1

Makisi v. Minister for Immigration and Ethnic Affairs (1995) 37 ALD 420

McPhee v. S. Bennett Ltd (1934) 52 W.N. (NSW) 8

Minister for Immigration v. Ah Hin Teoh (1995) 128 ALR 353

Minister for Immigration, Local Government and Ethnic Affairs v. Buksh (1992) 26 ALD 399

Minister for Immigration and Ethnic Affairs v. Kurtovic (1990) 21 FCR 193

Minister for Immigration and Ethnic Affairs v. Polat (1995) 37 ALD 394

Minister for Immigration v. Teo (1995) 57 FCR 194

Oil Basins Ltd v. The Commonwealth (1993) 178 CLR 643

Perron v. Central Land Council (1985) 6 FCR 226

Raymond v. Honey [1983] AC 1

Re H.K. (An Infant) [1957] 2 QB 617

Re Pergamon Press Ltd [1971] Ch. 388;

R. v. The Gaming Board for Great Britain [1970] 2 QB 417

Rocklea Spinning Mills Pty Ltd v. Anti-Dumping Authority (1995) 56 FCR 406

Sydar Pty Ltd v. K Simmonds Finance Pty Ltd (1995) 13 ACLC 480

Tasker v. Fullwood [1978] 1NSWLR 20

Van Reesema v. Official Trustee in Bankruptcy (1983) 50 ALR 253

Victoria v. Commonwealth (1975) 134 CLR 81

Warren v. Coombes (1979) 142 CLR 531

Wu v. Minister for Immigration (1994) 48 FCR 294

 

 

WU YU FANG and 117 OTHERS v. THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and COMMONWEALTH OF AUSTRALIA

No. WAG 89 of 1995

 

 

 

JENKINSON, CARR & R.D. NICHOLSON JJ.

PERTH

28 FEBRUARY 1995

IN THE FEDERAL COURT                )

OF WESTERN AUSTRALIA             )

DISTRICT REGISTRY                        )           No. WAG 89 of 1995

GENERAL DIVISION                        )

 

B E T W E E N :                                              WU YU FANG and 117 OTHERS

 

                                                                                                Appellants

 

                                                                        and

 

                                                                        THE MINISTER FOR IMMIGRATION

                                                                        AND ETHNIC AFFAIRS

 

                                                                                                First Respondent

 

                                                                        and

 

                                                                        COMMONWEALTH OF AUSTRALIA

 

                                                                                                Second Respondent

 

 

CORAM:       Jenkinson, Carr & R.D. Nicholson JJ.

PLACE:          Perth

DATE:            28 February 1996

 

 

                                                     MINUTE OF ORDERS

 

THE COURT ORDERS THAT:

 

 

1.         The appeal be dismissed.

 

 

 

 

 

 

 

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

 

IN THE FEDERAL COURT OF AUSTRALIA    ) 

WESTERN AUSTRALIA DISTRICT REGISTRY  )    No. WAG 89 of 1995

GENERAL DIVISION                     ) 

On appeal from a Single Judge of the Federal Court of Australia

                    BETWEEN:      WU YU FANG and 117 OTHERS

                           

                                      Appellants

                                   AND:    THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

                           

                                      First Respondent

                        AND:      COMMONWEALTH OF AUSTRALIA   

                                      Second Respondent

CORAM:    Jenkinson, Carr and Nicholson JJ.

PLACE;    Perth

DATE:     28 February, 1996

                   REASONS FOR JUDGMENT

JENKINSON J.

     I have had the advantage of reading the reasons for judgment of Nicholson J. and those of Carr J.  Their Honours have set out the circumstances giving rise to the appeal and the contentions of the parties on the questions which the appeal raises.  Leave having been granted to the Human Rights and Equal Opportunity Commission to intervene in the proceeding out of which the appeal arises, the written submissions of the Commission on the appeal have been gratefully received and considered.  I do not think that any further grant of leave by this court is required.

     I agree with Nicholson J. that the appeal should be dismissed, for the reasons which his Honour gives.

          I certify that this and the preceding page is a          true copy of the Reasons for Judgment of the         Honourable Justice Jenkinson.

          Associate

          Dated:      28 February 1996

 

IN THE FEDERAL COURT                )

OF AUSTRALIA                                 )

WESTERN AUSTRALIA                    )

DISTRICT REGISTRY                        )   No. WAG 89 of 1995

GENERAL DIVISION                         )

 

B E T W E E N :                                              WU YU FANG and 117 OTHERS

 

                                                                                                            Appellants

 

                                                                        and

 

                                                                        THE MINISTER FOR IMMIGRATION

                                                                        AND ETHNIC AFFAIRS

 

                                                                                                            First Respondent

 

                                                                        and

 

                                                                        COMMONWEALTH OF AUSTRALIA

 

                                                                                                            Second Respondent

 

CORAM:        Jenkinson, Carr & R.D. Nicholson JJ.

PLACE:           Perth

DATE:             28 February 1996

 

                                               REASONS FOR JUDGMENT

 

                                                               Introduction

 

CARR J.

 

This is an appeal against a decision of a Judge of this Court (O'Loughlin J.) dismissing an application for various declarations and other relief. The relief sought is in respect of the administrative conduct of officers of the Department of Immigration and Ethnic Affairs following the appellants' arrival in Australian waters on a boat which was subsequently given the code-name "Albatross".  One of the declarations which the appellants seek is that they should be treated as persons to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol.  The matter involves judicial review of administrative action, not under the
Administrative Decisions Judicial Review Act (1977) Cth, but at common law.  The proceedings, including this appeal, have been conducted as a representative proceeding under Part IVA of the Federal Court of Australia Act in which Mr Wu Yu Fang is the representative party for 117 other group members.  At first instance and on appeal the Court granted leave to the Human Rights and Equal Opportunity Commission to file and serve written submissions.  The Commission's intervention in the proceedings was specifically so limited.  At the hearing of the appeal, we reserved the question whether the Commission required leave to make written submissions in the appeal and, if so, whether leave should be granted.  I am inclined to the view that, in the above circumstances, such leave is required because the extent of intervention in proceedings should be the subject of specific orders at each stage.  Depending upon what transpires at first instance in a particular case, there may or may not be a basis for further intervention by a non-party at the appellate level.  In this matter I would grant leave because the Commission's submissions (which supported the appellants' claims) were rejected at first instance.  I found them to be of considerable assistance and, like the other members of the Court, I am grateful for them.

 

                                     Factual Background and History of Matter

 

The following summary of the factual background of the matter and a description of the relevant legislative framework are taken largely from the reasons for judgment of O'Loughlin J. 

 

The appellants, 49 men, 37 women and 32 children, are ethnic Chinese almost all of whom were born in Vietnam.  The older members were expelled from Vietnam in
about 1979 and were allegedly re-settled in China.  There was evidence that many of the appellants settled initially in provinces such as Hainan Island, Guangdong and Fujian.  At the time of their departure from China, all of the appellants lived in the port of Bei Hai.  In October 1994, the appellants acquired the "Albatross" and decided to sail it to Australia.  The "Albatross" was intercepted by HMAS "Gawler" on 12 November 1994.  On board HMAS "Gawler" were officers from three government departments, namely Immigration and Ethnic Affairs ("DIEA"), Customs and Quarantine.  One of the DIEA officials who boarded the "Albatross" was fluent in Cantonese and acted as an interpreter when the appellants were first questioned on board their vessel.  The DIEA officials, acting under s.189(2) of the Migration Act 1958 (Cth) ("the Act"), detained the appellants and caused them to be escorted by HMAS "Gawler" to Darwin.

 

The two boats arrived at Darwin on 13 November 1994.  The appellants were transported to a school at Berrima which served as a temporary detention centre. 

 

On 15 November 1994, the appellants were flown to the Immigration Reception and Processing Centre ("the Centre") at Port Hedland in Western Australia. 

 

On 13 February 1995 the Centre Manager at Port Hedland informed the appellants that they would be returned to China.

 

On 22 February 1995, the appellants filed an application in this Court seeking:

 

1.      Declarations under s.21 of the Federal Court of Australia Act 1976 (Cth) that:

         .      while the appellants were in immigration detention they were denied procedural fairness;

         .      the conduct and representations of the respondents by their servants and agents gave the appellants legitimate expectations that they would be allowed to lodge valid applications for protection visas before 30 December 1994;

 

         .      the appellants made constructive applications for protection visas before 30 December 1994; and

 

         .      the respondents, by the representations and conduct of their servants and agents were estopped from denying that the appellants made constructive applications for protection visas before 30 December 1994.

 

 

2.      A remedy in the nature of mandamus under s.39B of the Judiciary Act and s.21 of the Federal Court Act requiring the first respondent to determine formal valid applications for protection visas, lodged on behalf of the appellants, on the footing that those applications were constructively made before 30 December 1994.

 

The application was heard by the learned trial judge sitting in Perth and Port Hedland in June and July 1995.  The appellants' case was that from their very first contact with DIEA officials, one or more of the members of their group informed officers of the DIEA that they were refugees or that they were seeking asylum.  The appellants' evidence was that this happened before 30 December 1994, particularly while they were in detention at Port Hedland.  The significance of the date 30 December 1994 requires reference to certain amendments to the Act which are described below.  At this stage, it is sufficient to say that, subject to the relief sought in these proceedings,
those amendments would preclude the appellants from applying for protection as refugees.  His Honour, for reasons contained in a reserved judgment delivered on 27 July 1995, dismissed the application.  In summary, his Honour held that the appellants had not made claims to refugee status, either orally or otherwise.

 

On 16 August 1995 the appellants caused notice of appeal to be filed against that judgment.

 

                                                  The Legislative Framework

 

In addition to the usual reasons for setting out the legislative framework, it is necessary to do so in this matter because one of the appellants' contentions is that, if there is a requirement for a form to be completed when applying for a protection visa, any such requirement is not mandatory but directory.

 

Section 29 of the Act authorises the Minister to grant visas permitting non-citizens either to travel to and enter Australia or remain in Australia, or to do both of those things.  Section 31(1) provides that there are to be prescribed classes of visas.  The Act itself also provides for classes of visas. 

 

Section 36(1) of the Act provides for a class of visas to be known as protection visas.  Section 36(2) stipulates that a criterion for a protection visa is that the applicant be a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  By definition in s.5 of the Act, the "Refugees Convention" means the convention relating to the status of refugees done at Geneva on 28 July 1951 and the "Refugees Protocol" means the protocol relating to the status of refugees done at New York on 31 January 1967.  A "refugee" as defined in Article 1A(2) of the Convention (as so amended) is 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 is unable or, owing to such fear, is unwilling to return to it."

 

 

Article 1E of the Convention provides:

 

                "This Convention shall not apply to a person who is recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country".

 

 

 

Provisions Concerning the Manner in Which Visas May be Applied For

 

Section 40 of the Act authorises regulations which may provide that visas of a specified class may only be granted in specified circumstances.

 

Sections 45, 46 and 47 relevantly provide as follows:

 

                "Application for a visa

 

                45(1)  Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.

                   (2)  Without limiting subsection (1), the regulations may prescribe the way for making:

                       (a)      ...

                       (b)      an application for a visa of a specified class^*; or

                       (c)      ...

                   (3)  Without limiting subsection (1), the regulations may provide that, when an application for a visa of a specified class is made, the applicant:

                       (a)      must be outside Australia; or

                       (b)      must be in immigration clearance; or

                       (c)      must have been refused immigration clearance and not have subsequently been immigration cleared; or

                       (d)      must be in the migration zone and, on last entering Australia:

                                  (i)          have been immigration cleared; or

                                  (ii)         have bypassed immigration clearance and not have subsequently been immigration cleared.

 

                       [^*It seems clear, and was not in dispute, that a protection visa is a visa of a specified class.]

 

                Valid visa application

 

                46(1)  Subject to subsection (2), an application for a visa is valid if, and only if:

                       (a)      it is for a visa of a class specified in the application; and

                       (b)      it is made in the way required by subsection 45(2), including any way required by subsection 45(3);

                       ...

 

                Consideration of valid visa application

 

                47(1)  The Minister is to consider a valid application for a visa.

                  (2)  ...

                  (3)  To avoid doubt, the Minister is not to consider an application that is not a valid application.

                  (4)  To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa."

 

 

Regulation 2.07 of the Migration Regulations relevantly provides:

 

            "2.07(1)  For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:

                   (a)   the approved form (if any) to be completed by an applicant;

                   (b)   the fee (if any) payable on an application;

                   (c)   other matters relating to the application.

              (2)  ...

              (3)  An applicant must complete an approved form in accordance with any directions on it."

 

 

Schedule 1 to the Migration Regulations is headed "Classes of Visas".  Immediately below that heading is a note which reads:

 

                "NOTE:  This Schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class.  An application that is not made as set out in this Schedule is not valid and will not be considered: see the Act, ss45,
46 and 47.  If an item specifies that 2 or more persons may combine their applications, only 1 fee is payable: see r.2.07(2)]".

 

 

[Mr R.E. Lindsay, counsel (with Ms V. Moss) for the appellants, quite properly drew our attention to this note.  However, he described it as being only a note and one which relies upon ss.45, 46 and 47 for its contents.]  The relevant paragraph of Schedule 1 reads:

 

                "Protection (Class AZ+

 

                (1) Form:         866

                (2) Fee:           (a)   $30.

                                                (b)If the applicant is in immigration detention and has not been immigration cleared: Nil.

                (3) Other:        (a)   Application must be made in Australia.

                                                (b)Applicant must be in Australia.

                                                (c)Application by a person claiming to be a member of the family unit of a person who is an applicant for a Protection visa may be made at the same time and place as, and combined with, the application by that person.

                        (4) Subclasses:    866   (Protection)"

 

 

 

Provisions Concerning the Criteria for the Grant of a Visa

Section 31(3) of the Act provides that the regulations may prescribe criteria for visas of a specified class including (by reference to s.36) protection visas.

 

Regulation 2.03 of the Migration Regulations stipulates that for the purposes of s.31(3), the prescribed criteria for the grant of a visa of a particular class are those set out in a relevant part of Schedule 2 to the Migration Regulations.   Regulation 2.04 provides that for the purposes of s.40 and subject to the Regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part.

 

Clause 866.21 of the Second Schedule prescribes the criteria to be satisfied at the time of application for a Protection (Residence) visa in the following terms:

 

                "866.21  Criteria to be satisfied at time of application

 

            866.211  The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:

 

            (a)makes specific claims under the Refugees Convention; or

            (b)claims to be a member of the family unit of a person who:

                  (i)   has made specific claims under the Refugees Convention; and

                  (ii)   is an applicant for a Protection (Class AZ) visa."

 

 

 

Another criterion is that the Minister must be satisfied at the time of the decision that the applicant is a person to whom Australia has protection obligations under the Refugee Convention (866.221).

 

On 15 November 1994 (the day when the appellants were flown from Darwin to Port Hedland), the Act was amended by the Migration Legislation Amendment Act (No. 4) 1994 which introduced a new Subdivision A1, entitled "Certain non-citizens unable to apply for certain visas".  Subdivision A1 added ss.91A to 91F, made certain other amendments and provided a transitional period.  Section 91A explains the purpose of the Subdivision in these terms:

 

                "This Subdivision is enacted because the Parliament considers that certain non-citizens who are covered by the CPA, or in relation to whom there is a safe third country, should not be allowed to apply for a protection visa or, in some cases, any other visa.  Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8."

 

 

It is common ground that these proceedings are not concerned with the CPA which is defined in s.91B as meaning "the Comprehensive Plan of Action approved by the
International  Conference on Indo-Chinese Refugees, held at Geneva, Switzerland, from 13 to 14 June 1989".  However, the proceedings are materially concerned with Australia's recognition of the People's Republic of China ("the PRC") as a safe third country.

 

Australia did not recognise the PRC as a safe third country until 27 January 1995.  Accordingly, until then s.91C of the new Subdivision A1 did not apply to the appellants.  Section 91C provides that Subdivision A1 applies to a non-citizen at a particular time if the non-citizen is in Australia and is covered by the CPA or an agreement, relating to persons seeking asylum, between Australia and a country that is, at the relevant time, a safe third country in relation to the non-citizen.  The significance of the Subdivision applying to a non-citizen at a particular time is that if, at that time, the non-citizen applies for a protection visa then, subject to some presently immaterial exceptions, s.91E provides that such an application will not be a valid application.  A reference to s.47, and in particular s.47(3) (set out above) confirms that the Minister is not to consider an application that is not a valid application.

 

Section 91D(1) defines "a safe third country" in the following manner:

 

                "A country is a `safe third country' in relation to a non-citizen if:

                (a)      the country is prescribed as a safe third country in relation to the non-citizen, or in relation to a class of persons of which the non-citizen is a member; and

                (b)      the non-citizen has a prescribed connection with the country."

 

 

Subsection 91D(2) explains that a "prescribed connection" can include the person's presence in the country at a particular time or the person's right to enter and reside in the country.  Subsection 91D(3) requires the Minister to lay before the House a statement about the other country's compliance with relevant international law concerning the protection of persons seeking asylum and other related matters.  Any regulation made for the purpose of prescribing a country as a safe third country ceases to be in force at the end of two years after the regulation commences [s.91D(4)].

 

By an amendment (Statutory Rules 1995 No. 3) to the Migration Regulations, the PRC was prescribed "a safe third country".  This was done by inserting a new regulation 2.12A, (which came into effect on 27 January 1995) the relevant portions of which provided as follows:

 

                "2.12A (1)  For the purposes of paragraphs 91D(1)(a) and (b) of the Act:

                (a)      PRC is a safe third country in relation to a person who is, or has been, a Vietnamese refugee settled in PRC, or a person who is a close relative of, or is dependent on, a person who is, or has been, a Vietnamese refugee settled in PRC, as covered by the Memorandum of Understanding between Australia and PRC the English text of which is set out in Schedule 11; and

                (b)      a person referred to in paragraph (a) has a prescribed connection with PRC for the purposes of paragraph 91D(1)(b) of the Act if the person, or a parent of the person, resided in PRC at any time before the person entered Australia.

                  (2)  The use in subregulation (1) of the word `Vietnamese' is as a reference to nationality or country of origin and not as an ethnic description."

 

 

 

Set out below is a copy of the Memorandum of Understanding which now constitutes Schedule 11 to the Migration Regulations:

 

                "MEMORANDUM OF UNDERSTANDING

 

                Representatives of the Ministry of Civil Affairs of the People's Republic of China and the Department of Immigration and Ethnic Affairs of Australia met
in Beijing from January 20 to 25, 1995 on the issue of recent unauthorised arrivals in Australia of Vietnamese refugees settled in China.  The discussions were held in a friendly and cooperative atmosphere.

 

                Being concluding parties to the "1951 Convention Relating to the Status of Refugees" and the "1967 Protocol Relating to the Status of Refugees", both parties observed that since 1979 the Chinese Government has provided effective protection to over 280,000 Vietnamese refugees settled in China, including significant humanitarian assistance such as land, housing, medical care, education and employment.  Both parties also noted that the United Nations High Commissioner for Refugees has been closely involved in all matters relating to the refugees, with the active cooperation of the Chinese authorities, both centrally and locally.

 

                Both parties noted that the recent movement to Australia of some Vietnamese refugees settled in China was unauthorised.  Consistent with international practice, both parties expressed their opposition to the unauthorised flow of refugees to third countries from the country of first asylum where they enjoy protection.

 

                Both parties agreed that for the recent and possible future unauthorised arrivals in Australia of Vietnamese refugees settled in China they will, in the spirit of international cooperation and burden sharing and maintaining and further developing the friendly relations between China and Australia, and fulfilling international obligations consistent with international practice, engage in friendly consultations and seek proper settlement of the issue through agreed procedures.  To this end, Vietnamese refugees settled in China returned under agreed verification arrangements, will continue to receive the protection of the Government of China.

 

                On this basis both parties reached the following understandings on special arrangements for dealing with current unauthorised arrivals in Australia of Vietnamese refugees settled in China.

 

                1.      The Ministry of Civil Affairs agrees to accept those refugees settled in China, subject to verification procedures as agreed between the two parties, and will be responsible for their resettlement.  However, this will not constitute a precedent for China in its handling of similar cases with other countries and regions.

 

                2.      The Department of Immigration and Ethnic Affairs will provide the Ministry of Civil Affairs with Vietnamese refugee registration forms as agreed between the two parties to facilitate the verification by the Chinese side.  The Department of Immigration and Ethnic Affairs will be responsible for the return of the verified Vietnamese refugees to China by air and will meet all associated costs.  The refugees will be returned in groups as soon as possible as verification procedures are completed.

 

                3.      Both parties agree to keep the UNHCR informed of the outcome of the negotiations and progress in relation to the returns, and seek its assistance if necessary.

 

                Done in duplicate in Beijing on January 25, 1995 in Chinese and English, both texts being equally authentic.

 

 

 

 

 

 

 

 

 

 

 

On 17 February 1995 the Migration Legislation Amendment Act (No. 2) 1995 was assented to and commenced on that day.  So far as the appellants are concerned, if they had not earlier applied for protection visas, that amendment had the effect of preventing them from applying for refugee status on or after 30 December 1994.

 

The position, so far as it applies to the appellants, may be summarised broadly (as O'Loughlin J. did), in these terms:

 

       .    In November 1994, at about the time of the appellants' arrival in Australia, legislation was introduced which established the concept of a "safe third country", so that if a non-citizen was covered by an agreement between Australia and a safe third country, that person could not apply for a protection visa.  At that stage the new subdivision did not apply to the appellants;

 

       .    the PRC became a safe third country on 27 January 1995.  As from that date Vietnamese refugees who had been settled in the PRC prior to coming to Australia and who had resided in PRC at any time before entering Australia, could no longer apply for a protection visa; and

 

       .    the amendment to the Act in February 1995, by its reference to Statutory Rules 1995 No. 3, directly targeted the same Vietnamese people and pushed back the effective date for the lawful lodgment of applications for refugee status to 29 December 1994.

 

                                                   The Case at First Instance

 

The appellants maintained that by reason of communications made to DIEA officers before 30 December 1994, including the filling in of forms, the DIEA well knew that they were claiming refugee status and could not now be heard to deny their claim.  In the factual circumstances which formed the evidence at first instance, the appellants contended that even though none of them had completed a Form 866 (the appropriate form for a protection visa) they were entitled to a declaration that they had made constructive applications for protection visas before 30 December 1994.  In the alternative, the appellants put their case on the basis that the DIEA was estopped from denying that the appellants had made applications for protection visas prior to 30 December 1994.

 

The respondents' evidence was that the DIEA interviewing officers had been instructed to pay particular attention to the question whether any of the appellants used any expressions indicating that they claimed to be refugees or were seeking protection.  These were described by the first respondent's officers as being "key words" such as "humanitarian", "human rights", "refugee", "protection", "asylum", "freedom" or any other word which, to an interviewing officer, might suggest that the interviewee could "be seen to be invoking Australia's protection obligations".

 

Whether the Appellants Made Claims to Refugee Status While on Board the "Albatross"?

 

 

His Honour, in his reasons for judgment, scrutinised the evidence on the one hand of Messrs Liu Ren Hui and Wu Yu Fang, to the effect that they told the officers who boarded the "Albatross" on 12 November 1994 that their group had left China because they were refugees and were seeking asylum in Australia.  On the other hand, there was the evidence of those officers and in particular Mr Koh Ping Ang, an interpreter, that no words such as "refugee" or "asylum" had been used on the boat on that occasion.  His Honour found that he was not satisfied that any of the appellants used the word "asylum" or the term "refugee status" or any like words on board the "Albatross".  That finding was largely based on his Honour's assessment of the witnesses and there is no basis, in my opinion, for this Court to interfere with the finding. 

 

Whether the Appellants Claimed Refugee Status While in Darwin or Port Hedland?

 

 

His Honour also carefully analysed the evidence from either side on the question whether any of the appellants indicated that they were seeking refugee status while they were in Darwin.  Once again, his Honour found that they had not done so and made credibility findings which, in my view, should not be interfered with.  The same applies in respect of the period prior to 30 December 1994 during which the appellants were detained in Port Hedland.  His Honour's review of the evidence included an examination of the information given by the appellants in a questionnaire called a "Bio-data" form, and also during interviews at the Centre at Port Hedland.  Time and again the individual appellants' evidence, as his Honour put it, "fell away" in cross-examination.  However, his Honour weighed up the fact that there were some eight witnesses from among the appellants who were unshaken in cross-examination.  His Honour said that he was satisfied that no member of the DIEA had used any of the key
words such as "refugee status" during the interview stage at Port Hedland.

 

The primary Judge came to the conclusion, after reviewing all of the evidence and in particular the answers given during what were described as "compliance interviews", that there was no evidence that would justify a finding that any of the appellants made known to any Australian official that he or she was seeking to engage Australia's protection obligations to refugees.  His Honour said that he was satisfied "that no key words were used by the applicants that would have constituted the necessary trigger to force DIEA to regard them as such refugees".  His Honour further concluded that nothing that any of the appellants said or did could have amounted to a constructive application for a protection visa, even assuming that it would have been sufficient if there had been substantial compliance with the relevant provisions.  Finally, his Honour, on the basis of the findings of fact made by him, held that there was no evidence which suggested procedural unfairness or the denial of a legitimate expectation.  His Honour found that the appellants did not request legal assistance and held that there was no statutory obligation of DIEA officers to inform the appellants of their rights to legal advice.

 

His Honour rejected the appellants' assertion that the DIEA officials on board the "Albatross" (or indeed the officers at Darwin or Port Hedland) were obliged, under s.193 of the Act or otherwise, to inform the appellants that they might apply for a visa.  His Honour expressly rejected the proposition advanced before him, and also before us on appeal, that the exemption from that obligation [an exemption expressed in s.193(1)(c)] is subject to any temporal limitation.

The appellants contended that the exemption expressed in s.193(1)(c) should be construed as referring only to the periods which are referred to in ss.194 and 195 of the Act.  In other words, so it was put, to the extent that an obligation might otherwise arise as a short term obligation under s.194 then it does not extend to persons, such as the appellants, who have been arrested under s.189(2).  The appellants say that these provisions say nothing about the first respondent's obligations thereafter to make the appellants aware of the provisions of ss.195 and 196.  Thereafter, so it was put, the normal rules applied - for example to act fairly towards persons, to observe the rule under the Convention which requires people to be given information which is central to their well-being, the need for equal access to the courts and so forth.

 

                                                 The Appellants' Contentions

 

Appeal Grounds 1, 1A, 2, 2A and 2B

In grounds 1 and 1A of their Amended Notice of Appeal the appellants claim that the primary Judge erred in law in holding that they were obliged to use certain key words before the DIEA was required to regard them as refugees.  Concentration on whether key words such as "protection", "asylum", "refugee status" and "persecution" led, so it was put in the appellants' expanded written submissions, to a preoccupation with form and not substance.  The primary Judge had thus erred in law by misconstruing and unnecessarily restricting the manner in which Australia's protection obligations may be engaged.  In ground 2 of the Amended Notice of Appeal the appellants say that the learned trial Judge erred in law in finding that there was no evidence to justify a finding that any of the appellants made known to the DIEA officials that they were seeking to engage Australia's protection obligations to refugees.  Grounds 2A and 2B
amount, in my view to extensions of that complaint by particular reference to two paragraphs of his Honour's reasons at pages 58 and 65.

 

The primary declaration sought by the appellants was that they had applied for refugee status before 30 December 1994.  The appellants contended that they had sufficiently fulfilled the prescribed criteria contained in the Act and regulations.  Therefore they were entitled to be regarded as applicants who had applied for protection visas before the legislative amendments were introduced proscribing the making of such applications by persons such as the appellants. 

 

The starting point for the appellants' submissions was that they had made claims prior to 30 December 1994 which fulfilled the criteria prescribed by the regulations, namely that they were persons to whom Australia has protection obligations under the Convention.  We were referred to what was said on board the "Albatross" by reference to the first respondent's accounts as accepted by the primary Judge, and to what was contained in the Bio-data forms and in the compliance entry forms ("the Compliance Forms"). 

 

In my opinion a fair reading of his Honour's reasons for judgment on this point is that he was not, as the appellants allege, preoccupied with form rather than substance.  This was a complaint originally made at first instance against the DIEA officers and their manner of interviewing the appellants.  His Honour specifically considered and rejected that complaint in coming to the opposite conclusion.  At page 29 of his Honour's reasons he said:

 

                "In my opinion, it brings about the opposite result: the Department is looking for any word which could properly act as a trigger."  [His Honour then referred to para 46 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status which he accepted as being reasonable.]

 

 

At page 30 his Honour describes the questions asked of the appellants as being "searching" and "pertinent" and affording them every reasonable opportunity to state their reasons for coming to Australia.

 

I agree with the submission, made on behalf of the respondent, that his Honour did not rule or hold that certain "key words" had to be used.  His Honour was speaking generally of any words which might have indicated that any one of the appellants might have a possible claim to be recognised by Australia as a refugee.

 

I think it is appropriate at this stage to say something on the subject of "claims to be recognised by Australia as a refugee" and "engaging Australia's protection obligations to refugees", both of which phrases were fairly frequently employed on behalf of the appellants.  In my opinion it is most important to keep in mind the difference between, on the one hand, Australia's obligations under the Convention in terms of international law (which have the influences on our domestic law described in cases such as Mabo v. Queensland (1992) 175 CLR 1 at p.42, Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1 at p.35 and Minister for Immigration v. Ah Hin Teoh (1995) 128 ALR 353) and, on the other hand, rights and obligations having their origin in the Convention but which are created and conditioned by the terms upon which, by statute, they are incorporated into Australian municipal law.  I accept the respondents' submission that the mere use of key words does not of itself create the protection
obligation.  The right to be treated as a refugee in Australia does not, in my opinion, arise out of the use of the key words referred to or any similar words.  It arises when a person whose circumstances fall within the Convention definition of a refugee makes an application in accordance with the legislation (the Migration Act and the regulations made under that Act) for that status to be recognised.  In my view, grounds 1 and 1A do not raise any relevant point of law.  Nor was it established that the primary Judge erred in the manner alleged.

 

Grounds 2, 2A and 2B which claim to identify errors of law, in my opinion, do not do so.  Although his Honour used the words "no evidence", it is quite clear from the context that his Honour was concluding after a review of the evidence, that there was insufficient evidence to justify a finding that any of the appellants made known to the immigration officials that he or she was seeking to engage Australia's protection obligations to refugees.  The appellants sought to demonstrate error by taking us to various pieces of undisputed evidence which was said to be "ample or at least sufficient evidence that would justify a finding that the appellants had engaged or sought to engage Australia's protection obligations".  The respondents contended that it was for the trial judge to determine the facts and if he decided that the particularised evidence did not make out this point then his Honour's finding was conclusive.  The respondent relied on McPhee v. S. Bennett Ltd (1934) 52 W.N. (NSW) 8 at p.9 and Azzopardi v. Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at pp.143-151 and 155-157.  However, those cases involved appeals from the Workers Compensation Commission and the Compensation Court respectively, which were limited to questions of law.  The proper approach in the present matter is, in my view, to follow the
principles discussed in Warren v. Coombes (1979) 142 CLR 531.  I have already expressed my opinion that those of his Honour's findings which depended upon the credibility of the witnesses should be left undisturbed.  The evidence to which counsel for the appellants took us was in a different category.  It comprised, largely, documentary evidence such as records of interviews and in particular Exhibits 8 and 9 being the Compliance Forms and Bio-data forms respectively.  This Court is in as good a position as the primary Judge to draw inferences from that evidence.  I have looked at that evidence and in my opinion it does not show or suggest that the appellants were subjected to persecution for a reason falling within the Convention.  Not only was it open for his Honour to come to the conclusion of which the appellants complain but, with respect, I consider that it was the correct conclusion.  The common thread running through all the documentary evidence was that economic conditions in China were harsh, but one seeks in vain for complaints that the appellants' situation was made worse or that they had been persecuted or were likely to be persecuted for any of the reasons stated in the Convention.  I deal below (Ground 5) with the specific cases of Mr Zhao Gui Fang, Mrs Feng Xue Xin and Mr Chen Jin.  These grounds of appeal were not, in my view, made out.

 

Grounds 3 and 4 - Whether Vietnam or China was the Relevant Country?

 

The appellants submitted that, on the undisputed evidence before the primary Judge, the question whether they had sought refugee status should have been assessed as against Vietnam rather than China.  This resulted from the evidence which showed that they did not fall within Article 1E of the Convention because during their time in China they did not have the rights and obligations which are attached to the position of
nationality of that country.  In fact, so it was submitted, it was common ground that the appellants were refugees from Vietnam in that they had been persecuted in Vietnam.  The amending legislation would not apply to them otherwise.  Furthermore, the information in the Bio-data forms, completed by the appellants at the request of the respondent, showed that they had been persecuted in Vietnam.  Alternatively, it was submitted on behalf of the appellants that there was uncontradicted evidence that they had been persecuted in China and were seeking acceptance in Australia.  The answers to the questions in the Bio-data forms and the Compliance Forms were said to  disclose what amounted to persecution within the meaning of that term in Chan Yee Kin v. Minister for Immigration and Ethnic Affairs (1990) 169 CLR 379 at pp.429-430. 

 

I agree with the respondents' submissions in respect of these grounds.  His Honour did not embark on this task.  It is apparent from his Honour's reasons (see pp.56-57) that counsel for the appellants had raised this question of their status as "Vietnamese refugees".  It is true that his Honour saw this matter as bearing on the likely operation of Article 1E of the Convention and referred only to the appellants' return in terms of their return to China.  However his Honour stated (at p.57):

 

         "But as I have said, these are matters for another day.  It is not for me to decide whether the applicants can invoke Australia's protection obligations but whether they did prior to 30 December 1994 attempt to invoke them."

 

 

His Honour examined the evidence on this point and, in my view, correctly concluded that the appellants had not done so.

 

Ground 5 - The Cases of Mr Zhao Gui Fang, Mrs Feng Xue Xin and Mr Chen Jin

 

The appellants claim that the primary Judge erred in law and fact in finding that certain key words such as "refugee" and "human rights" were not used by the appellants and point to the fact that all three of the abovenamed appellants referred, in their Compliance Forms to the term "refugee".  Rather than paraphrase those portions of the evidence, I set out below the summary of the information from the three respective Compliance Forms:

_________________________________________________________________________________________

   Name                                  How                               Whether                            When Planned                     Reason for                  Reason                               Why Not

    &                                                                                Characterised                   Lived                                      to Leave                      Coming to            for                                Want to

 Nom Roll No.                 Nationality                     Elsewhere                         China                                      Australia                    leaving                              Return to

                                                                                                                                                                                                                                                           China                          China

 

                                            (Q.5 What is your                    (Q.6 Have you                      (Q.1 When did you                      (Q.8 Why did        (Q.9 Why did                                                     (Q.10 What are

                                            country of nationality?)            ever lived in                          plan to leave                               you come to              you leave                                you reasons for

                                                                                                                                       any other country                        China to come      Australia?)                                    China?)                                     not wishing to

                                                                                                                                       other than China                         to Australia?)                                                                                    return to China?)

                                                                                                                                       or Vietnam?)

____________________________________________________________________________________________________________________________________________________________

 

ZHAO                       - in Vietnam                                     No                               - since they                              - no house to             - under the                  - no human

Gui Fang                  overseas Chinese                                                                demolished paper                   live                            circumstances              rights in China

AA006                                                                                                                      huts sometime in                                                          we took the               

                                                                                                                                                                                   June 1993                                                              chance to come

                                                                                                                                                                                                                                                                 to Australia       

 

                                                                  - in China they                                                                                                                                - paper house          because of the

                                                                  call me refugee                                                                                                                                 demolished                reasons given at                     - my point of

                                                                                                                                  - thought about                                                                                                    Q.8 (i.e. no       view is that

                                                                  - I do not know                                     leaving for some                     - high costs of           house to live,            there is no way

                                                                                                                                  country, not                                                                     rents             paper house                     for me to live

                                                                                                                            particularly                                                                                                                  demolished, high                   in China

                                                                                                                            Australia 1 week                                                                                                        cost of rents)   

                                                                                                                            before leaving                                                                                                                 - very hard

                                                                                                                                                                                                                                                                      conditions

                                                                                                                                                                                                                             

                                                                                                                                                                                                                                                                      - 2-3 yrs ago

                                                                                                                                                                                                                                                                      we used to get

                                                                                                                                                                                                                                                                      wages but now

                                                                                                                                                                                                                                                                      only covers

                                                                                                                                                                                                                                                                      living expenses

_____________________________________________________________________________________________________________________________

 

FENG                       - born in Vietnam                          No                        - don't know                          - when we lived               - we only have             - no way to live

Xue Xin                                                                                                                                                               in Bei Hai they                temporary shelter        or earn a living

AA007                     - in China I was                                                           - followed husband              demolished our

                                                  considered as a                                                                                                house                                  - I want to give

                                                  refugee                                                                                                                                                             my son a better

                                                                                                                                                                                                                              place to live

                                                                                                                                                                                         - no where to live   

 

_____________________________________________________________________________________________________________________________

 

CHEN                       - stateless                                       No                         - when paper huts                 heard that from                 - life difficult                     - since the

Jin                                                                                                                                                                         were demolished             several hundred               in Vietnam, went to           paper huts were

AA109                     - Vietnam called                                                          by the government               years ago, Chinese          China in the hope           demolished by

                                                  Chinese, in China                                         decided to leave,                   have been granted           life would be better          Bei Hai

                                                  called Vietnamese                                         15 June 1993                         permanent residence                                                     authorities

                                                  refugees, therefore                                                                                           in Australia

                                                  stateless                                                                                                                                                          - however, since              - rent is

                                                                                                                            - at first did not                                                                                           demolition of paper              expensive,lack

                                                                                                                            know where to go -                                                           huts life has been              of money,

                                                                                                                            aunt told about                                                                  bad                                                              taxes are high,

                                                                                                                            Australia human                                                                                                                                     not much left

                                                                                                                            rights/freedom                                                                                                                                         to survive

                                                                                                                                                                                                                                                    - hope to survive

                                                                                                                                                                                                                                                    in another country

 

                                                                                                                                                                                                                                                    - survival in China

                                                                                                                                                                                                                                                    is difficult, bad

                                                                                                                                                                                                                                                    conditions

_____________________________________________________________________________________________________________________________

From his Bio-data form it appears that Mr Zhao Gui Fang had arrived in China in 1979 and stayed at Shing Xing Overseas Chinese Farm in Tun Chang County on Hainan Island.  He then lived in a shed at the entrance of the Overseas Chinese High School in Qiao Gang Town before moving to Bei Hai in 1986 to look for a job.  Mr Zhao was issued with a temporary identification card in that year.  I have read the transcript of Mr Zhao's oral evidence and his affidavit which was admitted into evidence.  Neither add to the above information.  Mrs Feng also arrived in China in 1979 and spent an unspecified time in Hainan Dao before moving to Bei Hai.  Mrs Feng does not appear to have sworn an affidavit or to have given any oral evidence.

 

Mr Chen's Bio-data form shows that after his arrival in China (also in 1979) he was given temporary registration as a resident.  He lived on a farm in Si Hui Xian county before moving to Qiao Gang Town in Bei Hai in 1982.  Neither his oral evidence nor his affidavit shed any further light on these matters.

 

Although all three of these persons mentioned the word "refugee", that was in the context of describing how they were characterised in China after leaving Vietnam.  Both Mr Zhao and Mr Chen mentioned human rights; the former stating as one of his
reasons for not wanting to return to China "no human rights in China" and the latter stating that an aunt had told him about "Australia human rights/freedom".

 

It should be remembered that there were 118 appellants.  The very fact that only these three persons used such words is, in my view, quite significant.  Furthermore, on close examination of this evidence no claim of persecution emerges as having taken place either in Vietnam or in China.  I do not consider that this ground of appeal has been established.

 

Grounds 6, 7 and 7A - Whether What the Appellants Said and Did Amounted to Constructive Applications for Protection Visas?

 

As mentioned above, in my view, the primary judge's findings that the appellants made no oral claims to refugee status, based as they were on credibility assessments made by him, should not be disturbed.  These particular grounds of appeal should be approached on that basis i.e. that no such oral claims were made by the appellants.  This then leaves the question whether the appellants by causing the Bio-data forms and the Compliance Forms to be completed had sufficiently complied with the requirements of the Act?  The appellants, in part, rely upon s.25C of the Acts Interpretation Act 1901 (Cth) which provides:

 

       "Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient."

 

 

In my view, the statutory scheme applicable to this matter does disclose a contrary intention.  A visa is required for a person (being a non-citizen) either to travel to and enter Australia or remain in Australia.  Section 45 provides that a non-citizen who
wants a visa must apply for a visa of a particular class.  Section 47 provides that the Minister is not to consider an application for a visa that is not a valid application.  Section 46 provides that an application for a visa is valid if and only if (amongst other things) it is made "in the way required by sub-section 45(2)".  It is true that the requirement for a form, and certain other requirements, arise out of regulations made under s.45(3).  However, no distinction should, in my opinion, be drawn in the context of the present matter between "the way required by sub-section 45(2)" and the way required by regulations made under that sub-section.  Otherwise s.46(1)(b) would not make sense.

 

In my opinion Parliament has made it clear, in the statutory and regulatory scheme which I have set out earlier in these reasons, that there must be a written application for a protection visa in the form prescribed.  Parliament has seen fit to use what I consider to be clear language both conferring and limiting the authority of the first respondent in his decision-making in respect of visas, in the manner to which I have referred above.  Even if the language of s.46 had not contained the expression "... if, and only if" and had used language such as "only if" it would, in my view, have been correct to characterise Parliament's requirement as being a mandatory one - see David Grant & Co Pty Ltd v. Westpac Banking Corporation (1995) 18 ACSR 225 at p.232.  When Parliament has chosen to use even more stringent language, that conclusion becomes even clearer.  These provision are "quite unambiguous" (the expression used by Brennan, Deane and Dawson JJ in Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1 at p.38) or at least sufficiently unambiguous as not to permit a relaxed construction of what is required under Australian municipal law to engage
Australia's protection obligations.  Mr Lindsay sought to rely on the following passage in Lord Diplock's speech in Grunwick Ltd v. Acas [1978] AC 655 at p.690:

 

               "A court is less reluctant to treat "shall" as being directory rather than mandatory in a provision in which all that is involved is a mere matter of machinery for carrying out the undoubted purposes of the Act."

 

 

In my view, the language used in the Act precludes such an approach to the matter.  The language used is the only true guide: Tasker v. Fullwood [1978] 1 NSWLR 20 at p.24.

 

The application required of the applicants in this matter falls into the same category as that considered by the majority of the Full Court of this Court in Formosa v. Secretary, Department of Social Security (1988) 46 FCR 117 at pp.120-124.  In circumstances in which an application form was partially completed (which are not the present circumstances) it might be necessary to consider whether there has been substantial compliance of the type considered by the Full Court in Hamilton v. Minister for Immigration (1994) 53 FCR 349.

 

In my opinion, his Honour did not err in law in holding that the appellants had not made a "constructive" application for protection visas in this matter.  In those circumstances it is not necessary to consider the appellants' contention that the statutory amendments in late 1994 and early 1995, described above, did not refer to relevant pre-30 December 1994 applications as "valid" applications and thus did not affect the standing of "constructive" applications made prior to that date.

 

Ground 8 - Estoppel

The appellants say that the primary Judge erred in finding that the first respondent, by the representations and conduct of his servants and agents, was not estopped from denying that the appellants made constructive applications for protection visas before 30 December 1994.  I think it is correct, as the respondents assert, that such a finding although not express, is implicit in the learned trial Judge's reasons and his Honour's refusal to make the declaration to that effect.

 

It is not necessary to decide whether the first respondent's servants took steps to induce the appellants to assume that the acts of filling in the Bio-data forms and undertaking the Compliance interviews constituted the making of applications for protection visas.  This is because, even if they had done so, in my opinion no estoppel could arise.  In my view, Parliament has required that an application must be made in accordance with s.45.  In those circumstances an estoppel may not arise to cure non-compliance with a requirement of an act of Parliament: Formosa at p.124 and Minister for Immigration and Ethnic Affairs v. Polat (1995) 37 ALD 394 at p.399.

 

Grounds 9, 10, 11, 12, 15 and 16 - Procedural Fairness

There is a degree of overlap and repetition in these grounds.  They have in common the basic complaint that his Honour erred in law in finding that there was no procedural unfairness or denial of legitimate expectation to the appellants by the respondents in failing to inform them of their rights to obtain a lawyer on request and to apply for a protection visa.

 

I have formed the view that the appellants are correct.  Initially, it is necessary for me to deal with what may be described as two threshold submissions made on behalf of the respondents.  First the respondents say that there was no relevant administrative decision and that a duty to accord procedural fairness only arises in the context of making such a decision.  Secondly, the respondents say that if there is a relevant decision, the appellants are not challenging its correctness.

 

In my opinion, the evidence discloses that there was a series of decisions being made which affected the appellants in ways which attracted a common law duty to extend procedural fairness.  It started, at the latest, with the decision to take the appellants into detention under s.189(2) of the Act.  Then decisions had to be made about what to do with them in the short, medium and long term.  For example, as they had no visas were they to be deported forthwith?  A decision was made to fly them to Port Hedland, to keep them there in quarantine, then to release them from quarantine.  Their liberty and in fact their whole lives became the subject of administrative supervision and decisions of varying importance.  Then there was the matter of the "Albatross" itself.  The evidence was that the appellants paid $80,000 for this boat in China.  It is a fair inference that this was the group's only substantial asset.  On 17 December 1994 their representative told Mr Lai of the DIEA that if the appellants were not allowed to stay in Australia then they would like to have their boat back "... and we will go away".  This was in the context of two interviews to discuss the cost of maintaining the boat.  The DIEA was asking for $1200 per day, having sought $250 per day only the day before at the first interview, but that is by the by.  Interestingly, Mr Lai's response to the appellants' representative's request was "The application to
stay in Australia is one issue.  The disposal of the boat is another issue".  The DIEA was clearly involved in making a decision about disposing of the appellants' major asset, an asset which was their intended means of departure from Australia if they were not allowed to stay.  The respondents say that these were not decisions which were relevant to the claims, which are now made on their behalf, that as part of that process they should have been accorded procedural fairness.  The relevance of the decisions can, in my opinion, be demonstrated by reference to one small but extremely important incident to which the primary Judge referred in another context.  On 24 November 1994, while the appellants were still in quarantine in Port Hedland, Mr Ross McDougall, a solicitor employed by an organisation called "Refugee Advice & Casework Service", wrote a letter, which was delivered by hand, to the Centre Manager which, omitting most of its formal parts read as follows:

 

                "RE "ALBATROSS" ARRIVALS

 

                We hereby formally request that the Department Of Immigration and Ethnic Affairs furnish our Lawyers with access to all persons that arrived in Australia on the boat code-named "Albatross" and whom are currently detained at the Immigration Reception and Processing Centre, Port Hedland.

 

                Access to these persons is required in order that they can be provided with legal advice and assistance immediately.

 

                Should the Department Of Immigration and Ethnic Affairs not be amenable to the provision of prompt access to these persons, we request that the Department's reasons for non-provision of access be provided to ourselves, in writing, at your earliest convenience.

 

                Please contact Mr Ross McDougall of our office with any queries in regard to this matter."

 

 

The Acting Director of Litigation (the level at which the request was dealt with suggests that the request was not treated as an unimportant matter) of Section 1 DIEA
Canberra faxed a reply to Mr McDougall on the same day in these terms:

 

                "Your fax to the Manager of the Immigration Reception and Processing Centre at Port Hedland has been referred to me for response.

 

                No decision has been made for the Government to fund legal assistance for the persons from the boat codenamed `Albatross'.

 

                None of the persons from that boat have requested the provision of reasonable facilities for obtaining legal advice.

 

                Accordingly, the Department formally declines to furnish your lawyers with access to the persons from the `Albatross'."

 

 

If the respondents had informed the appellants of the approach and request made by Refugee Advice & Casework Service and had asked the appellants whether they had any objection to their names being supplied to that organisation it is, in my view, a reasonable inference that at least some of the 118 people in the group would have asked to be put in touch with the lawyer who was showing an interest in their plight.  Such a request would have triggered their statutory rights under s.256 of the Act which reads:

 

                "Persons in immigration detention to have access to legal advice

 

                256.   Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, 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 immigration detention."

 

 

[*It may be noted that the words which I have underlined appear in the third paragsaph of the above DIEA letter].

 

It is also a reasonable inference that once some of the members of the "Albatross"
group started to receive legal advice, word of this would have spread and others would make similar requests.  By its response to Mr McDougall's request and its failure to inform the appellants of his approach, the DIEA very significantly reduced the likelihood or prospect that at least some of the appellants would make a valid application for a protection visa.  That in turn meant that those people were effectively deprived of even the chance of being granted such a visa.  The very fact of such applications being made would have impacted in a direct way on the course of administrative decision-making which was then going on concerning what was to be done with the appellants.  In my view, there were sufficiently relevant decisions being made which required procedural fairness to be extended to them.  I have some difficulty in under-standing the reference to government funding of legal assistance in the DIEA's response.  There was no mention of money in the letter from Refugee Advice & Casework Service, only a request for access to the appellants.

 

The first respondent's press release dated 30 December 1994 announced a series of new measures effective from that date to prevent people from applying, without valid reasons, to stay in Australia.  There were also statements that the great majority of the recent arrivals were Sino-Vietnamese people and that "These measures will stop such people from abusing our procedures and using up a large amount of public resources".  It may well have been the case that none of the appellants would, after proper assessment, have turned out to be entitled to refugee status as a matter of law and that to establish such to be the case might have used up considerable public resources.  [Even on that matter - there was evidence that Mr McDougall had acted for those on the boat code-named "Unicorn" comprising 51 Sino-Vietnamese all of whom were held, after review, to be refugees].  However, the question is whether, having arrived some six weeks before this legislative change, designed specifically to shut out their applications for Protection Visas, the appellants were entitled to procedural fairness and, if so, what was the content of that entitlement?

 

In my view, the fact that Australia has ratified the Refugees Convention, the Refugees Protocol (and indeed incorporated key definition provisions from those instruments into our domestic law), and the International Covenant on Civil and Political Rights ("the ICCPR") has relevance to the degree of procedural fairness to which the appellants were entitled.  Article 10(1) of the ICCPR provides:

 

       "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."

 

[The ICCPR is set out in Schedule 2 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)]

 

That is Australia's obligation as a matter of international law, but what does it mean?  First, as an aid to interpretation, one may have regard to the relevant part of the travaux preparatoires for the ICCPR comprising the 1958 report (dealing with Article 10 in its draft form) of the Third Committee of the General Assembly of the United Nations.  That report stressed that, in interpreting Article 10, a body of rules known as the "Standard Minimum Rules" should be taken into account.  Apparently, some States called for an express reference to those rules to be inserted in Article 10, but this did not happen.  The Standard Minimum Rules, although adopted by the First U.N. Congress on the Prevention of Crime and the Treatment of Offenders in 1955 and endorsed by the U.N. Economic and Social Council in 1957, are not themselves legal instruments in the sense of U.N. legislation.  For present purposes, that does not matter, because the question is how they may help in interpreting Article 10 of the ICCPR.  Standard Minimum Rule 95 states that persons arrested or imprisoned without charge shall have the same protection as that accorded by various Rules including Rule 93 which reads:

 

                "93.  For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence..."

 

 

Another document to which recourse may be had, as an aid to interpretation for the purposes of defining the relevant obligations under international law, is a document whose contents were adopted by a resolution of the United Nations General Assembly on 9 December 1988 and entitled "Body of Principles for the Protection of all Persons Under Any Form of Detention or Imprisonment" ("The Body of Principles").  Principles 13, 15, 17 and 18 read as follows:

 

                                                                      "Principle 13

 

            "Any person shall, at the moment of arrest and at the commencement of detention or imprisonment, or promptly thereafter, be provided by the authority responsible for his arrest, detention or imprisonment, respectively with information on and an explanation of his rights and how to avail himself of such rights.

 

                                                                      "Principle 15

 

            "Notwithstanding the exceptions contained in principle 16, paragraph 4, and principle 18, paragraph 3, communication of the detained or imprisoned person with the outside world, and in particular his family or counsel, shall not be denied for more than a matter of days.

 

 

                                                                      "Principle 17

 

            "1.  A detained person shall be entitled to have the assistance of a legal counsel.  He shall be informed of his right by the competent authority promptly after his arrest and shall be provided with reasonable facilities for exercising it.

 

 

                                                                      "Principle 18

 

            "1.  A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel."

 

 

 

All of this means, in my opinion, that the appellants had a legitimate expectation that the provisions of Article 10 of ICCPR would be observed; Minister for Immigration v. Teoh (1995) 128 ALR 353.  If those provisions had been observed in accordance with the interpretative guidance of the Standard Minimum Rules and the Body of Principles then the appellants would have been given reasonable access to legal advice.  In Teoh (at p.365) Mason C.J. and Deane J. said:

 

            "The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way.  That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law.  It incorporates the provisions of the unincorporated convention into our municipal law by the back door.  ...

 

            But, if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course.  So, here, if the delegate proposed to give a decision which did not accord with the principle that the best interests of the children were to be a primary consideration, procedural fairness called for the delegate to take the steps just indicated."

 

[See also Director of Public Prosecutions v. Serratore (1995) 132 ALR 461 at p.466 per Kirby P.]

 

It is not necessary, in my view, to consider the "Joint Statement on International
Treaties and the High Court Decision in Teoh" by the Minister for Foreign Affairs and the Attorney-General because that was made on 10 May 1995, several months after the events which took place in this matter.

 

I should mention that the respondents did not submit that s.485 of the Act (which limits this Court's jurisdiction in respect of judicially-reviewable decisions) applied to the present matter.  This was consistent with their primary submission that there were no relevant decisions.  Perhaps the respondents also considered that if there were any decisions then they did not fall within the definition of "judicially-reviewable decision" which has the meaning given by s.475 (see s.474).  The respondents may well have taken the view that at least some of the decisions which I have identified would not fall within that definition.  As will be seen below, I have come to the conclusion that the respondents were obliged to extend procedural fairness to the appellants even in the absence of the making of a relevant decision.  Accordingly, it is not necessary for me to consider this jurisdictional point.  The application of s.485 was considered, in another context, by Jenkinson J. in Amanyar v. Minister for Immigration, unreported, 22 December 1995, Judgment No. 1050/95.

 

The legitimate expectation to which I have referred above, its international law source and the content of that ratified international obligation all provide assistance in defining what the common law requires by way of procedural fairness.  Furthermore, the nature of the administrative decisions being made, as described above, and the importance of them to the appellants also give rise, in my opinion, to a duty to accord procedural fairness. 

In the present circumstances the literal application of the above passages from Teoh presents some logical problems.  The respondents could hardly be required to say, for example, "You have a legitimate expectation to be told by us that you have the right of access to legal advice.  We do not intend to tell you that.  However, you are to have an opportunity to persuade us against deciding not to tell you."  The answer to those problems is to recognise that the content of procedural fairness varies from case to case, that such content is not necessarily modelled on curial procedures and is a matter of what is appropriate in the circumstances of the case: Kioa v. West (1985) 159 CLR 550 at p.584-585.  In the present case, procedural fairness has to be assessed, in my opinion, on an overall basis without focusing unduly on the matter which (for treaty-based reasons) is the subject of reasonable expectation.  The question is whether the respondents exercised their public powers fairly?  Those powers affected the appellants' personal liberty (including their liberty to leave Australia on their boat), their status and their only major possession.  Section 196 of the Act prohibited the release of the appellants, even by a court, from detention (otherwise than for removal or deportation) unless they were granted visas.  In my opinion, as a matter of common law, procedural fairness required the respondents: 

 

    1.     To let the appellants know, after the compliance interviews, what the DIEA's initial impressions were concerning the appellants' prospects of remaining in Australia, on the material provided to date.  In Re H.K. (An Infant) [1967] 2 QB 617 a court comprising Lord Parker C.J., Salmon L.J. and Blain J. considered whether an immigration offices at London Airport had to observe the requirements of procedural fairness and, if so, what would that requirement involve?  The context was one of a Pakistani person who was entitled to enter the United Kingdom and to bring with him any of his children under the age of sixteen years.  The immigration official formed the opinion that the young man was well over fifteen years of age and referred him to the airport medical officer whose opinion was that the young man's age was seventeen years plus.  There were further interviews culminating in an order that
the young man be returned to Pakistan.  At p.630 Lord Parker C.J. said:

 

                      "... I doubt whether it can be said that the immigration authorities are acting in a judicial or quasi-judicial capacity as those terms are generally understood.  But at the same time, I myself think that even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him.  That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly."

 

            Re H.K. was referred to with approval by Mason J. in Kioa at p.587 and by Lord Denning M.R. in R. v. The Gaming Board for Great Britain [1970] 2 QB 417 at p.430 (in the context of the issue of a gaming licence consent), who applied the principle in these terms:

 

                      "They [the Gaming Board] must give the applicant an opportunity of satisfying them of the matters specified in the sub-section.  They must let him know what their impressions are so that he can disabuse them."

 

            Lord Wilberforce and Phillimore LJ agreed.

 

            As Mr Lindsay correctly pointed out, both of these cases were cited with approval in Perron v. Central Land Council (1985) 6 FCR 226 at p.231.  Mr Tracey sought to distinguish Re H.K. on the basis that there had been an application to enter the United Kingdom which was rejected.  In case it matters, I do not think that statement is correct.  It appears from p.624 of the report that the young man had been issued with a United Kingdom passport by the High Commission in Rawalpindi and arrived at London Airport tendering that passport as evidencing his right to enter the country.  It was then that the question of his age arose and it was necessary only to satisfy the immigration officer that he was the child of a Commonwealth citizen (Mr Abdul Rehman Khan who was accompanying him) and was under sixteen years of age.  In my view, there is a strong analogy between the existence of those facts and the question whether the facts in the present matter would warrant according refugee status to the appellants. The critical aspect of the administrative procedures by which the respondents were dealing with (and proposed to deal with) the appellants was whether the appellants were applying for or claiming refugee status.  This was critical to whether they would be allowed, as they had asked, to remain in Australia.  In Kioa, Mason J. stressed (at p.587):

 

                      "the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing
with it"

 

            [See also Brennan J. at p.628 and Deane J. at p.634]

 

 

    2.     To inform the appellants that a lawyer had expressed an interest in helping them;

 

    3.     To inform the appellants that if they so requested, they were entitled to all reasonable facilities for obtaining legal advice.  In Elbourne v. Minister for Immigration (1991) 22 ALD  211 at p.212 Davies J. observed (in a passage expressly approved by the Full Court of this Court in Minister for Immigration v. Buksh (1992) 26 ALD 399 at p.404):

 

                      "... it must be kept in mind that good administration does not preclude the giving of help and assistance when it appears to be needed.  But the principles of procedural fairness do not require that, in the generality of cases, the circumstances of a person seeking to make an application for a permit should be considered in detail and advice given as to the application that can best be made".

 

            However, this is not the general case. The appellants were in a particularly disadvantageous position due to language difficulties and being held largely incommunicado.  In making this assessment I have not overlooked the bilingual notice in D Block.  It is one thing to be told how to ask for a lawyer in a foreign language by pointing to a phrase in a notice.  It is quite another thing to be informed of a right, upon request, to all reasonable facilities for obtaining legal advice.

 

    4.     To provide the appellants with the relevant Form 866.

 

 

To require this degree of procedural fairness is not to impose an onerous task on the decision-maker.  These steps can be carried out simply and quickly as part of the normal administrative procedures.  Furthermore, in my view, they form part of "a reasonable and fair procedure" which the repository of a power has to adopt before exercising that power: Kioa v. West (1985) 159 CLR 551 at p.627 per Brennan J.

 

It is necessary to consider whether there is any provision in the Act which, either
expressly or by necessary implication, excludes any of these requirements which I consider to be part of the procedural fairness which the respondents were required to accord to the appellants in this matter.  In fairness to his Honour, the procedural fairness requirements of the type referred to in Re H.K., Gaming Board and Perron do not appear to have been urged upon him by the appellants at first instance.  On the question of any obligation to inform the appellants of their rights to legal advice, his Honour, in rejecting a proposition that the DIEA officials were obliged to inform the appellants that they may apply for a visa, referred to the decision of Sackville J. in Guo Wei Rong v. Minister for Immigration and Ethnic Affairs (unreported, delivered 4 May 1995) to the effect that the precursor to s.256 did not require officers of the DIEA to inform a detainee of his rights to seek legal advice.  Much later in his reasons for judgment, O'Loughlin J. returned to that subject in the context of procedural fairness and said at p.65 of his Honour's reasons:

 

               "I have found that the applicants did not request legal assistance; I am also of the opinion that there is no statutory obligation of DIEA officers to inform applicants of their rights to legal advice.  Thus, on this subject there was no procedural unfairness nor the denial of any legitimate expectation."

 

 

While I respectfully agree with his Honour's conclusion (and that of Sackville J.) that the section does not impose an affirmative obligation on the custodian to give advice as to the applicant's entitlement to seek legal assistance, I disagree, equally respectfully, with the conclusion that in the present circumstances there was no procedural unfairness.

 

I accept Mr Lindsay's submission that the case of Guo Rong is to be distinguished on the facts.  In Guo the applicants had arrived in Australia on 5 December 1993 (at Broome) and by 9 December 1993 or thereabouts had been told that they could have access to a lawyer.  In that case Sackville J. was dealing with the question of publicly funded legal assistance "at the early stages of investigation of a claim to refugee status" (see p.52).  At p.55 his Honour said:

 

 

               "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."

 

I accept also the appellants' submission that s.256 does not deal with the question whether officers of the DIEA are under an obligation to inform detainees that they may request legal assistance under s.256 of the Act.  In my view there is nothing expressed or implied by s.256 to exclude such a duty at common law.  The question is whether common law procedural fairness required the respondents to inform the appellants of their rights to activate s.256.  In my opinion, particularly given the linguistic barriers and the different cultural environment from which the appellants came, the very circumstances of their being in detention and the legitimate expectations arising out of the treaty obligations, common law procedural fairness did require them to be informed of their rights to apply for legal assistance.  What the first respondent's officers did, in this matter, was to have regard to the requirements of s.256 at the same time as denying access to the appellants by a lawyer who was anxious to assist them.  This all occurred at a time when the DIEA knew that negotiations were proceeding with China which would have the consequence of denying the appellants even the right to make an application for refugee status.  There is room for an inference that the first respondent's officers conducted themselves very carefully in a
manner which would have the result, in practical terms, of giving effect in advance to the amending legislation by a period of some six weeks.  Commendable as that course may have been perceived by those responsible, in terms of preserving public resources, they were in my opinion denying the appellants their common law rights to procedural fairness.

 

I should not be taken to have ignored the practical realities of the situation in which the DIEA officers were placed.  They were faced with boatload after boatload of arrivals, totalling several hundreds of people within afairly short period.  Processing even one refugee application consumes a great deal of time and resources.  Multiplied by several hundred this might well have appeared to be an administrative nightmare.  Nevertheless, recent cases in this Court have demonstrated that the DIEA can, when required, quickly mobilise and, by employing well-organised and co-ordinated procedures, rise to such an occasion or series of occasions - see, for example Wilcox J's description in Wu v. Minister for Immigration (1994) 48 FCR 294 at p.295.

 

In the present matter the respondents' officers may, when they finished their work, have felt that they had dealt with the appellants efficiently and expediently (probably on instructions from more senior officers in the DIEA's Canberra office).  I doubt that they would have felt that the appellants had been treated fairly.

 

It is also necessary to consider whether the group of sections comprising sections 193, 194, 195 and 196 expressly or by necessary implication exclude from the content of procedural fairness, any obligation on the DIEA's part to provide the appellants with a Form 866 or to advise them that they might apply for a protection visa.  It was common ground that s.189(2) required the first respondent to detain the appellants.  His Honour summarised ss.193, 194, 195 and 196 in the following terms:

 

           "Section 194 of the Act states that as soon as reasonably practicable after an officer detains a person under s.189 the officer must ensure that the person is made aware of the provisions of ss.195 and 196.  Those sections deal respectively with the time limits within which a detainee may apply for a visa and the period during which an unlawful non-citizen must be kept in immigration detention.  But par 193(1)(c) provides that ss.194 and 195 do not apply to persons (such as these applicants) who have been detained under ss.189(2)."

 

 

In my opinion those sections work, in respect of the appellants, in the following manner:

 

        .    there was no obligation, which would otherwise arise under s.194, for the detaining officer "as soon as reasonably practicable" after such detention to ensure that the appellants were made aware of the provisions of ss.195 and 196;

 

        .    s.195 imposed a time limit on detainees for applying for visas, but was not a section which concerned the appellants.  This was because s.195(2) expressly provides that the time limit does not govern an application for a protection visa.  No other class of visa was suggested as being relevant to the appellants;

 

        .    s.196 (to which I have referred above) had the effect that the appellants must be detained until removed, deported or granted a visa.

 

 

There was a suggestion that s.193(2) might have a bearing on the matter.  S.193(2) in its application to the appellants simply states that nothing in s.193(1) requires the Minister or any officer to advise them whether they may apply for a visa or to give them any opportunity to apply for a visa or to allow them access to advice (whether legal or otherwise) in connection with applications for visas.

 

An ordinary reading of s.193(1) would not, in my view, suggest the requirements which are expressly excluded from it by s.193(2).  That subsection would appear to have been inserted out of an excess of caution, which in itself makes it necessary to consider whether Parliament, by implication, was seeking to exclude those particular aspects from the content of common law procedural fairness to be accorded to the appellants.  I do not read s.193(2) as doing this.  In my opinion the bracket of sections (ss.193, 194, 195 and 196) confers, through s.194, an obligation on a detaining officer to ensure that the detainee is made aware of the provisions of s.195 and 196 as soon as reasonably practicable after he detains that person, except in the case of various categories of persons entering Australia or seeking to enter the migration zone without authority.  There is also a time limit imposed which, as I have said above, does not apply to the appellants.  In my view s.193(2) denied the appellants any statutory right to be made aware of the provisions of ss.195 and 196 as soon as reasonably practicable after their detention.  It is silent on the content of procedural fairness to be accorded to the appellants at a later stage when they have been interviewed and further processed.  Accordingly, it does nothing to prevent what I consider to be a common law requirement of procedural fairness being extended to them in the form of providing to them a form of application for refugee status.  Furthermore such a construction accords with Australia's international obligations discussed above: Chu Kheng Lim v. Minister for Immigration;  Rocklea Spinning Mills Pty Ltd v. Anti-Dumping Authority (1995) 56 FCR 406.

 

I have had the advantage of reading Nicholson J's draft reasons for judgment in this matter.  His Honour expresses the opinion that ss.198(4) as well as s.193(2) are contrary statutory provisions which negate any possibility of the applicants' expectations being reasonable.  I differ, most respectfully, with his Honour's conclusion in respect of both sub-sections.  I have already expressed my opinion in relation to the effect of s.193(2).  The respondents placed considerable reliance, in the alternative, upon s.198(4).  The presumption is that the legislature intends the principles of natural justice to be observed in the exercise of legislative powers in the absence of a clear contrary intention: Kioa at p.609.  The technique used in s.193(2) and 198(4) of declaring that nothing in s.193(1) and s.198(2) respectively requires certain specific steps to be taken is, in my view, not a sufficiently clear or unambiguous expression of a contrary intention to exclude all procedural fairness from the exercise of the powers conferred by the sections which are the subject of the declarations.  When the draftsperson wants to exclude procedural fairness or natural justice as a ground for relief by way of judicial review, that is done by express reference; see for example s.476(2).  Furthermore, the source of the obligation to extend procedural fairness is not the particular statutory provision but the common law.  Kioa established that.  Section 193(2) and 198(4) are expressed in terms which, in my respectful opinion, are not sufficiently clear to modify duties which are imposed by the common law.  Given the volume of legislative amendments passing through Parliament now, if and when the Executive decides to ask Parliament to abrogate a common law right, our legislators are entitled to have that spelled out without any room for ambiguity at all.  The case for a strict, literal interpretation of these subsections, in the present circumstances, seems to me to be a strong and compelling one.

 

All of the above is on the basis, as I have concluded, that there were on-going relevant decisions being made which attracted the common law requirements of procedural fairness discussed above.  They fall, in my view, within what was described by the Full Court of this Court in Minister for Immigration v. Teo (1995) 57 FCR 194 at p.200 as "the general common law principles of administrative law".

 

The primary Judge specifically left unresolved whether an obligation to accord procedural fairness can arise "independently of any decision-making process" i.e. before the stage at which a decision had to be made in respect of the appellants.  In my view the test is to be extracted from the line of cases dealing with the question whether a common law duty to observe natural justice arose at a preliminary investigation stage.  The test is whether such activity could have serious consequences for the person concerned:  Re Pergamon Press Ltd [1971] Ch. 388; Calvin v. Carr [1977] 2 NSWLR 308; Annetts v. McCann (1990) 170 CLR 596.  In Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564 Mason CJ. Dawson, Toohey and Gaudron JJ. in their joint reasons for judgment said at p.576:

 

           "It is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may `destroy, defeat or prejudice a person's rights interests or legitimate expectations' [Annetts v. McCann at p.598 cited].  Thus, what is decisive is the nature of the power, not the character of the proceeding which attends its exercise".

 

 

There is no doubt that the enquiries and administrative processes which the respondents were carrying out in respect of the appellants not only could have but in fact did have serious consequences for them.  In those circumstances I consider that an obligation to accord procedural fairness arose independently of the question whether those
administrators were engaging in a decision-making process.  The content of that procedural fairness is, in my opinion, the same as the content which I have outlined above.

 

Ground 13 - The Chen Yuan Fa Incident

This refers to an incident which the primary Judge held occurred on 23 November 1994 or within a few days either side of that date.  Chen Yuan Fa was only seventeen years of age at that time and had accompanied his widowed mother Mrs Deng Zhi Xi on the voyage from China.  He took down a notice which was on the wall in the television room in D Block at the Port Hedland Centre.  His Honour held that there was such a notice there and that it contained various requests in both the English and Cantonese languages.  One of those requests was "I want to see a lawyer".  Mr Chen said he took that piece of paper outside the room to a point at which an Australian Protection Service ("APS") guard was sitting behind a table.  He said that he approached the APS guard and showed him that he was asking to see a lawyer by pointing to the printed sheet where this phrase was contained.  He said that the APS officer stood up, took hold of his clothing at the back of his neck and pushed and propelled him towards the door of D Block about one or two metres away.  On reaching the door of D Block, according to Mr Chen, the APS guard still grasping his clothes, opened the door with his spare hand and pushed him through.  As the guard let go of him he, so Mr Chen alleged, simultaneously kicked him in the buttocks which had the effect of sending him off balance.  The primary Judge found that there were areas of Mr Chen's evidence that were unreliable.  After a very careful review of the evidence his Honour concluded that the allegations of assault against the APS officer (Officer Sharp) had not been made out.  His Honour's conclusions ended in the following terms:

 

           "I am satisfied that an incident occurred on an occasion when Chen Yuan Fa left the TV room in D Block; I am satisfied that an APS officer "frog-marched" him back very smartly.  I am not at all satisfied, however, that the incident was as serious as some would suggest; it savours more of a security guard imposing reasonable constraints when dealing with a precocious youth who was making a nuisance of himself."

 

 

Mr Chen's application was for damages including aggravated damages for assault.  His Honour disposed of that claim summarily adding:

 

           "Although I am satisfied that there was some incident involving Chen Yuan Fa and a member of the APS, it was an incident of little or no consequence.  At the extreme, it might have been the conduct of a security officer using reasonable force to control an exuberant youngster.  I find that the allegation of assault has not been made out."

 

 

His Honour accepted that Mr Chen had taken the notice out to the APS guard and further found that the notice was later returned to the board in D Block with words crossed out.  The appellants complain that his Honour failed to find that Mr Chen had requested from the APS guard the services of a lawyer.  The appellants point out that the trial judge had accepted the evidence of Mrs Hu Yui Giao as being truthful.  Part of Mrs Hu's evidence was that shortly after the incident Mr Chen told her that he had told the guard that he wanted to see a solicitor.  Objection was taken to that evidence.  The appellants relied upon that incident not only in respect of Mr Chen's claim but also in respect of evidence to the effect that other appellants were deterred by reason of what was described as the assault from asking at that time to see a lawyer.

 

In view of his Honour's findings concerning the credibility of Mr Chen, I do not think
that it is appropriate for this Court to disturb the dismissal of Mr Chen's application for damages for assault.

 

Ground 14 - The Two Meetings

By this ground of appeal the appellants challenge the primary Judge's findings to the effect that no meetings took place before Christmas between Mr Liu Ren Hui and the Centre Manager in the canteen and no meeting took place outside the administration centre between that manager and the appellants' delegation, again before Christmas 1994.  In my view these were findings of fact which were quite clearly open to the trial Judge upon the evidence and it would be inappropriate for us to upset those findings on appeal. 

 

Ground 15 - Whether the Respondents Were Obliged to Advise the Appellants of the Change in the Law Introduced on 15 November 1994

 

In my opinion a line has to be drawn somewhere to define the content of procedural fairness.  I do not think such an obligation falls within the appellants' side of the line.  If the appellants had been informed that they were entitled to a lawyer upon request, if they had been provided with a Form 866 and if they had been told how the DIEA viewed their prospects of remaining in Australia in accordance with their express desire to do so, then in my opinion sufficient would have been extended to them by way of procedural fairness.  I do not consider that the requirements of procedural fairness extended to advising them of the change of the law introduced on 15 November 1994 which, at that time, was targeted not at them, but at another category of boat people.

 

Whether There Should Be A Declaration that Procedural Fairness Was Denied to the Appellants?

 

The respondents contended that no such declaration should be made because no practical purpose would thereby be served.  The respondents pointed out that the declaration would not impugn any decision which had been made. 

 

In my view, by denying the appellants procedural fairness, the respondents have denied them a chance to establish that they were refugees.  Nothing may have come of that chance, but there were other Sino-Vietnamese people who arrived from China by boat at about the same time who satisfied the Australian authorities that they were refugees within the meaning of the Convention.  The appellants submitted that such a declaration would not be futile because the first respondent has power, in the public interest, to determine that s.91E does not apply.  Section 91F(1) provides:

 

         "If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine:

         (a)  that section 91E does not apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given; ..."

 

 

If this Court had found that there had been a denial of procedural fairness in a context which includes obligations expressed in treaties which Australia has ratified, and made a declaration to that effect, such a course might well have had a bearing on the exercise of the Minister's discretion.  The discretion is one which may only be exercised by the Minister personally - s.91F(2).  The Minister might have perceived the matter of rectifying an administrative wrong to be, in all the circumstances of this matter, in the public interest.  The effect of taking such a course would not have been that the appellants would automatically achieve refugee status.  It would simply have
meant that they would be given a proper chance for their individual situations to be investigated.  On a prima facie basis, there does not appear to be any difficulty in establishing that they form a defined social group within the meaning of the Convention.  It would appear that the enquiry would be confined to whether they had been or are likely to be the subject of persecution by reason of membership of that social group.  That would be something which the Minister's delegates would have had to decide, if the Minister saw fit to exercise the discretion under s.91F(1).  In my opinion the appellants are correct in their submission that it would not be futile to grant a declaration.  A declaration might well turn out to be of considerable practical usefulness and value in making any submissions to the Minister in relation to the exercise of discretion under s.91F(1):  see the discussion of the English authorities on this point in Zamir and Woolf "The Declaratory Judgment" (2ed).  I would distinguish Gardner v. Dairy Industry Authority (1978) 18 ALR 55 (where the High Court declined declaratory relief) on the basis of that in that case the relevant re-arrangements had been superseded.  In the present matter the appellants have, in my view, been denied rights to procedural fairness which might, eventually, have made a great deal of difference to their status.  There exists a statutory provision which may enable the denial of those rights to be redressed: c.f. Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564 at pp.581-582; Oil Basins Ltd v. The Commonwealth (1993) 178 CLR 643 at p.649; Equal Opportunities Commission v. Secretary of State for Employment [1994] 1 All E.R. 910 at pp.919-920 (H.L.).

                                                                        

Conclusion

I would vary the judgment at first instance by declaring that while the appellants were in immigration detention they were denied procedural fairness in the manner referred to in these reasons.  I would otherwise dismiss the appeal. 

 

 

 

            I certify that this and the preceding fifty-seven

            (57) pages are a true copy of the Reasons for

            Judgment of Justice Carr.

 

            Associate:

      

            Date:     28 February, 1996

 

 

 

IN THE FEDERAL COURT OF AUSTRALIA     )

GENERAL DIVISION                      )    NO WAG 89 of 1995

WESTERN AUSTRALIA DISTRICT REGISTRY   )

B E T W E E N:                    WU YU FANG and 117 OTHERS

                                  Appellants 

    

                                  and   

    

                                  MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

                                 

                                  Respondent

CORAM:        JENKINSON, CARR and R D NICHOLSON JJ

PLACE:        PERTH

DATE:         28 FEBRUARY 1996

                    REASONS FOR JUDGMENT

R D NICHOLSON J:

This is an appeal from the dismissal of an application by the appellants for a variety of declarations directed to establishing their right to be treated as applicants for refugee status; that is, as applicants for a Protection Visa before 30 December 1994.

The action was commenced by Wu Yu Fang as a representative party.  He and "117 others" comprise the appellants.  Exhibits tendered to the Court on the hearing of the appeal purporting to summarise responses given by the appellants on two occasions disclose in the order of 80 such responses.  It is not explained why there are no such responses available for summary in the case of the remaining number of appellants.  This difference serves to highlight that, while generalisations are possible concerning the responses of the appellants upon which their claim is dependent, each case should be considered on its individual merits if the appeal is made good.  In addressing the grounds of appeal it is therefore necessary to be aware of the need to adjust any general conclusion to the facts of each particular case, so far as the evidence allows.

As found by the trial judge, the appellants (49 men, 37 women and 32 children) are ethnic Chinese.  The older members were expelled from Vietnam in about 1979 and were allegedly resettled in China.  They came to Australia on "The Albatross" which was intercepted on 12 November 1994.  It arrived in Darwin on 13 November.  The appellants were transported to a school at Berrimah before being flown to Port Hedland on 15 November.

As also found by the trial judge, Assent was given on 15 November to the Migration Legislation Amendment Act (No 4) 1994 the effect of which was to provide that if a non-citizen is covered by an agreement between Australia and a safe third country, that person cannot apply for a Protection Visa.   By amendment to the Migration Regulations, effective on 27 January 1995, the Peoples' Republic of China ("PRC") became a safe third country and, as from that date, former residents of Vietnam who had resided in China prior to coming to Australia could no longer apply for a Protection Visa.  The Migration Legislation Amendment Act (No 2) 1995, operative from 17 February 1995, had the effect of requiring all applications for Protection Visas in the case of the appellants to be lodged before 30 December 1994.

It is common ground that none of the appellants completed application forms for a Protection Visa.  Expressed broadly, their case before the trial judge was to the effect that what they had done and said, upon and after arrival, manifested a wish on their part to be treated as applicants for such a visa.  The case therefore fell generally into two categories: whether on the evidence they had in one way or another "engaged" Australia's protection obligations and whether, if they had done so, the Department of Immigration and Ethnic Affairs ("DIEA") had breached the requirements of the law, either as to the provision of legal advice to the appellants in relation to their rights or as to the requirements of procedural fairness.  Common to an understanding of each of
these categories are the requirements of law in respect of the making of such an application, to which it is convenient to first turn.

          STATUTORY REQUIREMENTS FOR AN APPLICATION

                    FOR A PROTECTION VISA

Protection Visas have their genesis in s36 of the Migration Act 1958 (Cth) which provides for a class of visa by that description.  Section 36(2) provides that "a criterion for a Protection Visa is that the applicant for the visa is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol".  The former ("the Convention") means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the latter means the Protocol ("the Protocol") done at New York on 31 January 1967.  A "refugee" as defined in the Convention is 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...is unable or, owing to such fear, is unwilling to return to it."

The reasons specified in this definition were described by the trial judge and will be referred to in these reasons as "Convention reasons". 

Section 5(1) of the Migration Act defines a non-citizen to mean a person who is not an Australian citizen.  All of the appellants are therefore non-citizens.

In accordance with the authority given by s31(3) of the same Act and r2.03 of the Migration Regulations, primary criteria
for the grant of a Protection Visa are provided foz as follows:

     "    866.21    Criteria to be satisfied at time of application

          866.211   The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and;

              (a)  makes specific claims under the Refugees Convention; or

              (b)  claims to be a member of the family unit of a person who:

                             (i)  has made specific claims under the Refugees Convention; and

                             (ii)is an applicant for a Protection (Class AZ) visa."

It will be noted that the criteria to be satisfied at the time of application require the applicant to be a person who "claims" and "makes specific claims".

In providing for domestic application of the Convention, the Migration Act provides in s45 that, subject to the Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.  Subsections 45(2) and (3) gives authority for the regulations to prescribe the way for making such an application.  The succeeding sections then provide:

     "46.(1)  Subject to subsection(2), an application for a visa is valid if, and only if:

     (a)  it is for a visa of a class specified in the application; and

     (b)  it is made in the way required by subsection 45(2), including any way required by subsection 45(3); and

     ...

    

     (2)  An application for a visa is also valid if:

     (a)  it is an application for a visa of a class prescribed for the purposes of this subsection; and

     (b)  under the regulations, the application is taken to have been validly made.

     ...

     Consideration of valid visa application

     47   (1)  The Minister is to consider a valid application for a visa.

     (2)  ...

     (3)  To avoid doubt, the Minister is not to consider an application that is not a valid application.

     (4)  To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa."

The relevant regulatory provision is made in r2.07 which provides that, for the purposes of ss45 and 46, if an application is required for a particular class of visa, the approved form to be completed by an applicant and other matters are set out in the relevant Part of Schedule 1.  With respect to Protection Visas, that Part provides for the use of Form 866.  That form includes provision for a declaration by the applicant that the definition of a refugee in the Convention and Protocol has been read to him or her and that the applicant believes that the definition applies to him or her.

In order for the appellants to succeed in their contentions that something falling short of an application on Form 866 will suffice, it is contended on their behalf that either these provisions do not apply or, if they do, they are directory rather than mandatory and, in any event, compliance by the appellants to the maximum of their ability in their circumstances, is sufficient.  Although the trial judge dealt with the provisions in his reasons, he did not find it necessary to reach conclusions on these arguments as addressed on this appeal.

Non-applicability of application provisions

This argument for the appellants contends that as the amendments effected by the Migration Legislation Amendment Act (No 4) 1994 and the Migration Legislation Amendment Act (No 2) 1995 are silent about what is a sufficient application before those amendments took effect, it cannot be assumed that the general provisions concerning applications govern an application by the appellants.  In my opinion, this submission, which it is not necessary to develop in detail, entirely overlooks the fact that the amendments made by that legislation were amendments to a principal act in which the general provisions concerning applications are contained.  Neither of the amendments sought to limit those provisions or to make them inapplicable in the case of non-citizens to whom the amendments applied.  On the contrary, each of the amendments builds upon the concept of a valid application and so is confirmatory of those provisions: see ss91A - F.  I therefore do not accept that the provisions concerning applications had no applicability to the appellants.

Whether provisions mandatory or directory

For the appellants it is contended that the provisions in the Migration Act relating to applications are to be characterised as directory, so that substantial compliance with them by the appellants, in the form of their conduct and words said to have made known their wish to be treated as refugees, was sufficient to meet the statutory requirements for an application.  In D C Pearce and R S Geddes, Statutory Interpretation in Australia (Butterworths, 1988) at 211 the authors conclude, after an examination of the law relating to the mandatory/directory distinction, that:

     "The only guiding principle will be the statute and from it the court will have to glean one of three intentions in regard to the designated procedure: (a) that strict compliance is necessary; (b) that substantial compliance is necessary together with the degree of `substantiality'; or (c) that compliance is not a precondition to the action taken."

See Van Reesema v Official Trustee in Bankruptcy  (1983) 50 ALR 253 at 266; Accident Compensation Commission v Murphy [1988] VR 444 at 449; Victoria v Commonwealth (1975) 134 CLR 81 at 179-180 per Stephen J; Tasker v Fullwood [1978] 1 NSWLR 20 at 24; Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 241 and 244 per Mason CJ and Gaudron J; Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349 at 357-8.  The authors also point out that interrelated provisions in the one Act may impose different obligations so that the provisions may be mandatory in one respect but directory in another (assuming that distinction to be appropriate).  In examining the statutory context it will be relevant to consider the consequences which would flow from strict compliance, so that if there is great inconvenience or injustice from strict compliance it may be less likely to be construed as mandatory.  If the matter addressed by the statutory provisions is procedural rather than substantive, it may be more disposed to construction as directory.  The authorities previously referred to (Victoria; Hunter Resources; and Tasker) make clear that, in addition to the language of the relevant provision, the Court must look to the general object of the statutory provision, to the scope and object of the whole statute: cf Hamilton (supra) at 357-8.

Particular features of ss 45-47 of the Migration Act relevant to a proper construction of them are: s45(1) asserts that a non-citizen "must" apply for a visa of a particular class.  Section 46 introduces the notion of validity as attaching to an application only in certain circumstances, indeed "if, and only if" certain requirements are met.  One such condition is that the application is made in the way required by subs45(2) and (3), that is as provided for in r207.  Section 47(1) confines the Minister to only considering a valid application for a visa.  Section 47(3), "to avoid doubt", enacts that the Minister is not to consider an application that is not a valid application.  How much plainer could Parliament have made its intention that an application in the required manner is an
essential precondition to the Minister, as the relevant decision-maker, exercising the power to consider and grant a visa?   By linking the concept of validity to the use of Form 866, Parliament has spelt out that the use of that Form is of such importance to the general object of the legislation in this respect that it is incapable of partial compliance; to disregard it is to imperil validity of a ministerial act.  It will also be noted that none of these provisions relevantly use "shall" or "may" so that the question is properly one of construction of the provisions rather than the characterisation of them as mandatory or directory.

Section 25C of the Interpretation Act 1901 (Cth) provides that "where an act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient."  The statutory provisions requiring an application form as a necessary pre-condition to validity of an application and Ministerial power to resolve the application are, in my opinion, a manifestation of a relevant contrary intention.  The legislature having mandated the use of an application as a pre-condition to the making of a valid application, if the applicant does not utilise the form the applicant does not commence on the path providing the pre-requisite entry to Ministerial consideration of the application. 

It is the case that the use by a legislature of the words "if, and only if" does not in all circumstances mean those words should be equated with "but not otherwise".  Where the former words were used to provide in an Act that a company is to be deemed to have ceased to carry on business or to be unable to pay its debts "if, and only if" certain matters are satisfied, it has been held that it cannot have been intended to create an absolute statutory presumption rather than a rebuttable one: Cooper & Dysart Pty Ltd v Sargon (1991) 5 WAR 472.  See also Sydar Pty Ltd v K Simmonds Finance Pty Ltd (1995) 13 ACLC 480.  In the present context, where the legislature is
patently concerned to define the circumstances determining the validity of an application and to relate the concept of validity to the genesis of Ministerial decision-making power, there do not appear to be present any reasons for reading down the effect of the words "if, and only if".

It is the case that the form of application is provided for by the regulations.  The form, however, is necessarily imported into the provisions of the Act to which reference has been made so that it is not possible to speak of the former being subsidiary to the latter in the sense that there might be substantial compliance with the Act despite non-compliance with the requirement for use of the approved form: cf Hunter Resources Limited v Melville (supra) at 250 per Dawson J.

In my opinion, a reading of these provisions makes apparent that the only way in which a visa of a particular class can be obtained is for an application to be made for it on Form 866.  Short of that there is no valid application and the Minister is enjoined from considering it.  This conclusion finds support in the Note which precedes the Schedule ("Classes of Visas") to the Migration Regulations which reads in part:

     "NOTE:    This Schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class.  An application that is not made as set out in this Schedule is not valid and will not be considered."

Furthermore, the statutory provisions are such that I do not consider anything short of use being made of a Form 866 could constitute an application.  There is no room left by the statute for the concept of a constructive application or substantial compliance with the provisions for a form by conduct falling short of use of the form.  The legislature has gone to abundant lengths to make apparent that an application by way of Form 866 is the only way for these matters to come before the Minister and for the Minister's power in relation to it to be validly activated.  In my opinion, this requirement has the result that the prescription of the form is one of substance and is not merely procedural.

However, it appears to me that there is room for the application of the substantial compliance principle in relation to the manner in which Form 866 is completed by an applicant.  That is, if a form had been inadequately completed in some way it would be open to argument that the inadequate use of the form satisfied the requirements of the legislation, because to hold otherwise would possibly occasion great injustice by precluding an applicant who has endeavoured to properly embark upon an application from consideration: Hamilton (supra) at 359; Formosa v Secretary, Department of Social Security (1993) 46 FCR 117 at 123. 

One additional matter requiring consideration is the provision in s45(2) that an application for a visa is also valid if "under the regulations, the application is taken to have been validly made."  The primary requirement for the application form in s46 is "subject to subs(2)" and so, it is contended for the appellants, to the existence of a discretion to receive an application whether or not the regulations have been complied with.  In my view, this is no more than a reference to the possibility that an application, although deficient in some respect, is received as complying or qualifies for such acceptance on the grounds of substantial compliance.  It is consistent with the view I have expressed that there is room for the operation of substantial compliance once an application form is brought into being.

Such a result is not without purpose.  Completion of the form requires the applicant to make the declaration of a Convention reason previously referred to.  His Honour characterised that declaration as a "very important piece of information".  To construe the provisions as requiring strict compliance has a purpose consistent with the legislation, namely to avoid
applications coming before the Minister which do not have a Convention reason to support them.

These conclusions may be tested by reference to the reasons of the Full Court in Hamilton (supra).  It was there held that the requirement in cl806.711 in Schedule 2 of the Migration Regulations, that the application for an entry permit "must be made in accordance with approved Form 887", was a procedural requirement open to satisfaction by substantial compliance.  In the present case it is r207 (rather than the Schedule) which requires the use of the Form and that regulation is stated to be "for the purposes of ss45 and 46 of the Act".  No such link to those provisions (and so to the concept of validity) is made in the prescription of the Form in Hamilton.  There it was the case that s34 of the Migration Act provided that:

     "(1)This section applies where, and only where:

              (a)  a person makes an application for an entry permit of a particular class in accordance with the regulations; and

              (b)  any fee payable in respect of the application is paid.

              ...

     (2)  Unless this section applies, the Minister:     

              (a)  is not required to consider an application at all; and

              (b)  shall not in any circumstances grant an entry permit.

     (3)  Where it appears to the Minister that the applicant is, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister must:

              ...

              (b)  subject to this Division, grant the applicant such an entry permit.

     (4)  Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit."

In my opinion, that section is of a very different character to ss45-47 and significantly is not grounded on the concept of
validity having its foundation in an application by a non-citizen made in the requisite manner.

The consequence of the conclusion that the provisions should be strictly construed is that the appellants cannot succeed in their contentions or (arguably) cannot do so unless they are able to establish the breach of an obligation upon the DIEA to have assisted them to comply with the requirements of a valid application.  However, in case I am mistaken concerning the effect of the above statutory provisions I propose to consider the submissions for the appellants that their conduct substantially complied with the requirements for an application so that they should be treated as having so applied whether or not there was an obligation on DIEA to assist.

    THE ENGAGEMENT OF AUSTRALIA'S PROTECTION OBLIGATIONS

The object of the claim which the appellants contend should have been found on the evidence was the engagement of Australia's protection obligations.  It is said for the appellants that they made known that they had been subject to persecution for a Convention related reason.  This is a reference to the definition of "refugee" in the Convention as a person who has "a well-founded fear of being persecuted" for the reasons of (relevantly here) "race" or "nationality".

The use of key words

The first two grounds of appeal contend that the trial judge erred in law in holding that the appellants were obliged to use certain "key words" in order to trigger or force DIEA to regard them as refugees or as persons who were entitled to engage Australia's protection obligations or as a necessary precondition to the engagement of Australia's protection obligations.  The conclusion of his Honour to which these grounds are directed was expressed as follows:

     "...there is no evidence that would justify a finding that any of the applicants made known to any Australian official that he or she was seeking to engage Australia's protection obligations to refugees (using that word in the convention sense); expressed in a different way, I am satisfied that no key words were used by the applicants that would have constituted the necessary trigger to force [DIEA] to regard them as such refugees."

To understand this conclusion it is necessary to examine the context in which the issue og key words arose.  In his reasons his Honour said:

     "The evidentiary base upon which the applicants advanced their claims was that one or more of them, from the outset, informed officers of DIEA that they were refugees or that they were seeking asylum; they claimed that the events that occurred before 30 December 1994, particularly while they were in detention at Port Hedland, induced in them a belief that the forms or questionnaires that they had  completed were applications for refugee status - or, at least, the DIEA well knew and accepted that they were applicants for refugee status even though Form 866, the appropriate form for a protection visa, may not have been completed by any detainee."

He then identified relevant events in chronological sequence, one of which was the conduct of interviews at Port Hedland from 15-19 November 1994.  Later he described how six officers of DIEA who had acted as interviewing officers of the appellants gave evidence on behalf of the respondents and, in doing so, each had maintained that at no time while she or he was in contact with any of the appellants was there a request for access to a lawyer. Each of them had further denied offering assistance to make an application for refugee status.

Of those officers a Ms Martin alone had been cross-examined in depth.  His Honour stated she had explained that as an interviewing officer she had been alert for "key words".  The witness had explained that "key words" were words such as "humanitarian", "human rights", "refugee", "protection", "asylum", "freedom" or any other word which, to an
interviewing officer, might suggest that the interviewee could be seen to be invoking Australia's protection obligations.  On her evidence, if such a word was used, it would be incumbent on the interviewer to clarify its use.  Another of the officers, a Mr Clisby, had accepted that "key words" would activate his interest as an interviewing officer but he said such words would be those which suggested "a well-founded fear of persecution" in the event that the interviewee was returned to his or her country of origin.  Of this evidence his Honour then said:

     "Counsel for the applicants was, I thought, not correct in criticising this passage of evidence.  He argued that DIEA's concentration on key words led to a preoccupation with form, thereby overlooking the substance of an applicant's status.  In my opinion, it brings about the opposite result: the Department is looking for any word which could properly act as a trigger."

Later he found:

     "The [DIEA], through its interviewing officers, was alert, on the one hand, to react to a claim for refugee status (irrespective of the actual words used) but was determined not to put words into the mouths of the interviewees."

After considering other events in the chronology His Honour turned to the grounds of the application before him and characterised the primary relief sought as a declaration that the appellants had made constructive applications for Protection Visas before 30 December 1994.   He said it was not for him to decide whether the appellants could invoke Australia's protection obligations but whether they did prior to that date attempt to invoke them.  His Honour found that none of the answers to three questions in the compliance interviews contained any information that could reasonably suggest that an appellant was seeking Australia's protection obligations for a Convention reason.  He said:

     "...the Migration Act contains no statutory mandate that would be cause for exciting the interviewer's interest.  It is for the applicant to supply the necessary information that would amount to an application for refugee status.  There is no statutory obligation on the Department or its officers to make an assumption that boat people are, or are likely to be, refugees in the Convention sense."

He concluded that "there is no statutory provision requiring a DIEA or other official to inform them of such rights".  In his view, no support could be drawn to the appellants case in this respect by reference to Makisi v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 420 or Hamilton (supra).  He then came to the conclusion to which the first two grounds of appeal are said to be directed.

In my opinion an examination of this portion of his Honour's reasons makes apparent that in addressing the issue of key words he was doing no more than responding to an issue which arose in the evidence.  Neither in his expressed conclusion on the point nor in his reasoning leading to that conclusion did he seek to enunciate a proposition of law that the use of key words was a necessary precondition to the engagement of Australia's protection obligations.  What the trial judge was doing in this portion of his reasons was to examine whether a claim had been made: the use of key words was but one of the ways a claim could have arisen and was but one of the ways examined by his Honour.  The conclusion he expressed on this point followed a careful and wide-reaching examination of the evidence and was in no way confined to the use of key words as a necessary precondition to the making of a claim.  The first two grounds are not made out.

The issue of key words is also taken up in the fifth ground which asserts the existence of error in law and fact in a finding by his Honour that the key words "refugee" and "human rights" were not used by the appellants.  To support this ground reference is made to the use of the word "refugee" by three of the appellants in their compliance interviews.  Zhao Gui Fang used the word but only with reference to how he was called when in China.  Feng Xue Xin's and Chen Jin's usage was the same.  What his Honour actually found was that he was satisfied "that no key words were used by the [appellants] that would have constituted the necessary trigger to force DIEA to regard them as such refugees."  It is apparent that the usages relied on do nothing to suggest those particular appellants were refugees from China and in no way vitiate the conclusion of the trial judge.  The ground is not made out.

Evidence of Convention reasons

The second group of grounds (2-2B) seek to challenge the legal correctness of the conclusion of the trial judge that there was "no evidence" to justify a finding that any of the appellants "made known" to any Australian official that he or she was seeking to engage Australia's protection obligations (the first sentence of the conclusion previously under examination).  In oral submissions for the appellants these grounds were pressed particularly with reference to statements made to the boarding party on the arrival of the appellants in Australia, the bio-data forms completed by them and their compliance entry forms resulting from the interviews in November 1994.

These grounds contend that there was a failure by the trial judge to consider the particularised evidence "at all".  That contention fails.  It is abundantly clear that he gave detailed  consideration to the evidence including the particularised evidence.

Turning to the evidence which it was also said was not "properly considered":

 (1)Statements to the boarding party

The first is the statements which the appellants made to the boarding party on 12 November 1994 to the general effect that they were Vietnamese nationals who fled Vietnam in 1979 and travelled to China.  Specifically, those notes recorded that there was a claim from the appellants that they were Vietnamese nationals; they had come from Kham Pho in Vietnam in 1979, lived in various places but eventually settled in late 1980 in Ku Kong Zae in the PRC approximately 5 kms from Pa Fo Tau.  It was also recorded that the Master of the boat on which the appellants had arrived had been questioned concerning the appellants' intentions after their arrival.  He claimed that if allowed to land in Australia there would be no further need for the vessel and the Australian Government could have it.  However, if not allowed to land the vessel would be required by them to travel to a further country. 

The interpreter, Koh Pin Ang, gave evidence to the effect that some of the appellants had told him that they had fled to Australia to get away from "trouble in China" and this was because in China there were no jobs, no food, and no houses to live in.  There was further evidence that the appellants had told the officer of DIEA the Government of China was removing them from the area of Bei Hai because the Government wished to develop the area. 

(2)  The bio-data forms

When the appellants arrived at the Port Hedland detention centre they were required to complete bio-data forms.  These were forms in Cantonese and English in which various questions were posed to the interviewee.  Examination of these forms shows that the appellants were born in Vietnam; they went to China in 1979 or, in a few cases, 1978.  They described themselves as Han Chinese.  Of the 80 forms summarised for the argument of the appeal only 3 had obtained registration in China.  Just under 30% of the summarised forms showed the interviewee to have obtained temporary registration in China.
 The balance stated they had failed to obtain registration.  It was common ground that such registration was a precondition to obtaining housing and employment there.

His Honour did not make a finding that the appellants were Vietnamese people of the Han group who had moved to China and could not get employment because of a failure to register or inability to register in China.  His finding was that this was not evidence which showed that the appellants had made known to Australian officials that they were seeking to engage Australia's protection obligations.  

(3)  The compliance interviews

The responses in the compliance interviews revealed that the appellants suffered great difficulties in China.  In answer to the question "why did you come to Australia?" the interviewees universally referred to difficulties which they had experienced in China, particularly the inability to obtain registration and hence housing and employment.  Responses to the question "why not want to return to China?" elicited similar responses.  No similar questions were asked with respect to Vietnam.

In his reasons the trial judge said:

     "Many of the applicants gave, as a reason for leaving China, this lack of household registration.  Although no evidence was led to explain its significance, I accept that such registration in PRC is a form of control that the government exerts over its citizens.  Registration must be produced to obtain a variety of benefits - not the least of which is employment..."

Liu Ren Hui recorded in his compliance interview that he had left China because "we were not being treated fairly by the Chinese government', "our house was being demolished by the Chinese government" and "the school fees were higher than the local Chinese."  When asked what were his reasons for not wanting to return to China he replied that it was "not that we do not want to return to China.  We have to pay a higher fee for a licence and for school fees..."

On 16 December 1994 Liu Ren Hui and Wu Yu Fang were interviewed by Mr C C Lai as persons representing all the passengers of the Albatross.  Mr Lai offered two options with the boat: retention at a retrospective maintenance cost to date of arrival of $240 per day or seizure and disposal.  Mr Wu then advised that the decision of the passengers was that they had run away from the place where they lived; they hoped they could stay in Australia; and they wished to use all their properties to pay for the fees because, if they could not do that, there was "no way for us to go".

The evidence of Mr J R Rodigari, Director, Unauthorised Boat Arrivals of DIEA included the following passage in cross‑examination:

     "If they were to apply to stay in Australia on a permanent basis, the only application they could make is for a refugee status, is it not? - That's my understanding as the law stands today."

The witness contrasted that with the position at the time the appellants arrived but he was not questioned in cross‑examination or re-examination on what the position would have been at that time.  He also testified in cross‑examination that from the information in the bio-data forms and the compliance interviews the intention of the appellants was to seek to remain in Australia.

In my opinion the conclusion of the trial judge that there was no evidence of a Convention reason in the words used by the appellants is only  correct so far as it relates to express evidence.  He was correct in finding that the appellants had not expressly stated their reliance upon a Convention reason for wishing to stay in Australia.  That, however, must be  considered in relation to a number of other observations on the above evidence.

In the course of his reasons the trial judge accepted as reasonable the following passage from the United Nations Human Rights Commission Handbook on Procedures and Criteria for Determining Refugee Status:

     "The expression `fear of persecution' or even `persecution' are usually foreign to a refugee's normal vocabulary.  A refugee will indeed only rarely invoke `fear of persecution' in these terms, though it will often be implicit in his story.  Again, while a refugee may have very definite opinions for which he has had to suffer, he may not, for psychological reasons, be able to describe his experiences and situations in political terms."

The appellants arrived on the shores of Australia as boat people.  As the reasons of the trial judge make apparent, other boats arrived around the same time and their occupants were treated as applicants for refugee status.  The appellants immediately evinced the desire to stay in Australia.  If it was not the only way open to them to do so, the obtaining of a Protection Visa was one of the ways in which they could do so.  It could therefore be anticipated that any questions directed to them would be directed to ascertaining the existence of a Convention reason.

In the case of the bio-data forms, the responses made apparent that the appellants were unable to obtain registration or resettlement in China.  In the case of the compliance interviews, the responses established that failure to obtain these was the product of government policy (as the trial judge found) and resulted in the appellants being unable to obtain housing or employment.  The trial judge recognized this, if verified, as evidence upon which to ground an argument that the appellants had a well founded fear of persecution on economic grounds by reason of nationality if they returned to the PRC: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.  He rightly said it was not for him to decide whether the appellants could invoke Australia's protection obligations but whether they did so prior to 30 December 1994.  In my opinion, the possibility that the appellants may have had this argument open to them was a factor to weigh in consideration of whether the appellants had implicitly made known their reliance upon a Convention reason and was relevant to the finding which the trial judge had to make.

Examination of the reasons of the High Court in Chan Yee Kin (supra) shows the potential significance which could be attached to the conduct of the appellants.  Mason CJ at 388 said that "the denial of fundamental rights and freedom otherwise enjoyed by nationals of the country concerned" may constitute the harm which could amount to persecution if done for a Convention reason.  The evidence before the trial judge disclosed denial of employment and housing to the appellants alone.  McHugh J cited denial of access to employment and to education as a measure in disregard of human dignity which could amount to the persecution in appropriate cases (at 430).  The evidence before the trial judge showed that it was the appellants and not Chinese non-Vietnamese nationals who were the subject of these measures, so that, by the giving of such evidence, the appellants were implicitly making their claim.

I conclude in relation to the second group of grounds that the trial judge was not in error in concluding that there was no evidence either in the arrival interviews, the bio-data forms or the compliance interviews of the appellants expressly laying claim to a Convention reason for their (admitted) desire to remain in Australia.

However, I am unable to conclude that there was not before him evidence which established that the presence of a Convention reason was not implicit in their story.  The circumstances of the arrival of the appellants, their previous history as refugees from Vietnam, their concern to have use of the boat to travel on rather than return to China if denied, the evidence of no employment, food or housing in China as a consequence of Chinese government policy spoke loudly of the implication that they sought to claim Australia's protection obligations for a Convention reason. 

That conclusion, however, does not lead to the resolution of the appeal in favour of the appellants.  For the reasons I have given, I consider the Migration Act mandated that the appellants make an application on Form 866.  Even if that is not the case, the presence of an implied claim would only assist the appellants if it gave rise to an obligation on behalf of the DIEA to assist in the making of an application for refugee status, a matter addressed subsequently under consideration of the obligations on the decision-maker.

Legal criteria under the Convention

The third ground of appeal is to the effect that the trial judge erred in law in asking himself a wrong question, namely whether the appellants had disclosed a well founded fear of persecution in China rather than whether they had such a fear in respect of Vietnam.  I accept the submission for the respondents that the trial judge did not ask himself the wrong question referred to and so did not err as alleged.  He expressly eschewed doing so as he was considering the applications of the appellants that they be treated as applicants as distinguished from determining whether they had status as refugees.

There is an apparent difficulty in applying the Convention in the light of the questions in the compliance interviews being directed to China and failing to address the position of the appellants in Vietnam.  The definition of "refugee" in the Convention applies to persons in two categories: (1) a person outside the country of his nationality; (2) a person not having a nationality and being outside the country of his former habitual residence.  The trial judge accepted that there was evidence that the appellants were Vietnamese nationals and so within the first category.  This would appear to require their case, if their applications are established, to be tested in relation to the existence of a well-founded fear of being persecuted for a Convention reason in relation to Vietnam. 

The trial judge stated in the consideration of an application it would be necessary to consider whether the application of the Convention was precluded by application of Article 1E of the Convention, which reads:

     "This convention shall not apply to a person who is recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of nationality of that country."

He then concluded that such matters awaited another day.  There is no support for the contention in the ground that these matters caused him to err.

The alternative ground 4 is a repetition of the grounds relating to constructive application or substantial compliance or gives rise to a consideration of the same evidence and does not require separate consideration.

Constructive applications

The next set of grounds (6-7A) contends that the trial judge erred in law in finding that what the appellants said and did could not have amounted to a "constructive application" such as would engage Australia's protection obligations or amount to an application.  By a constructive application the contentions for the appellants mean that all that could be done by the appellants was done and that the requirement for a form was one for which the means of compliance lay uniquely with DIEA, so that the provisions requiring a form should be read subject to the qualification that the appellants had been made aware of the need to complete it.  This brings the argument back to the same evidentiary basis which is said to establish sufficient compliance.

The argument made under the present set of grounds has two major strands to it.  The first is that what the appellants said and did amounted to a constructive application.  The second is that ss45-47 of the Migration Act do not apply or, if that is not the case, they are directory not mandatory or, if mandatory, they have in any event been substantially complied with.   As has been seen, I consider the second group of issues is resolved against the appellants by the statutory provisions.  As I understand those provisions, they leave no room for the concept of a constructive application and so would resolve the respondents' notice of content to that effect in their favour. 

The notion that the appellants had done all they could and so had made a constructive application arguably finds support from Hamilton (supra) and Ali v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 178.  In Hamilton it was held by the Full Court that what had been done by a relative of the appellant amounted to compliance with a substantive requirement to nominate an applicant for a grant of an entry permit, she having done "all that, in the circumstances, she could reasonably have been expected to do...".  As a result of misleading information from officers of the DIEA, the nomination form was not completed but it was found by the Full Court that there was substantial compliance with this procedural requirement.  The trial judge distinguished Hamilton on the ground that no such conclusions could be reached on the facts of the present case.  So far as that was dependent on his view that none of the appellants made known that they were seeking to engage Australia's protection obligations as refugees, I do not consider the ground of distinction to be a valid one.  However, given the view that I hold that the Migration Act has elevated the requirement for the form of application to a substantive provision, I accept that Hamilton can only assist the appellants if the proper construction of the provisions is not to that effect.

In Ali (supra) lodgment of a form of application for refugee status, together with a note explaining that the supporting documentation was not complete, was held at first instance and on appeal to have the effect of an application for an entry permit.  There was no factual equivalent falling for consideration in the present case before the trial judge.

In relation to the first group of issues I have already concluded that what the appellants said and did implicitly constituted a claim for engagement of Australia's protection obligations and that the trial judge fell into error in not finding an engagement in that way.  As nothing more is meant by reference to the notion of a "constructive" application it is not necessary to further consider that evidence.  I accept that the evidence before the trial judge showed the appellants had done all that had been asked of them and all they could in the circumstances.  The effect of that falls to be considered, along with substantial compliance in relation to the obligations on the decision-maker (on the assumption that the effect of the statutory provisions is not as I have found them to be).

Estoppel

Before the trial judge the appellants sought a declaration that the respondents, by the representation and conduct of their servants and agents, are estopped from denying that the appellants made constructive applications for Protection Visas before 30 December 1994.  The rejection of that claim by the trial judge was a necessary conclusion in the light of his earlier conclusion that there had been no conduct by the appellants which would have given rise to a constructive application.  On this appeal it is accepted on behalf of the appellants that their representations, conduct and declarations could not raise estoppel if they contradict mandatory requirements of the Migration Act: cf Minister for Immigration and Ethnic Affairs v Polat (1995) 37 ALD 394 at 399; Formosa (supra) at 125.  The conclusions which I have reached on that issue result in the appellants not being able to succeed on this ground.

If those conclusions are not the proper construction of the relevant statutory provisions, I nevertheless do not consider the appellants can succeed on estoppel (ground 8).  There are no findings or evidence of the respondents taking steps to induce the appellants to assume that the acts of filling in the bio-data forms or undertaking the compliance interviews constituted the making of applications for Protection Visas or that failure to provide a Form 866 was an act of inducement: Commonwealth v Verwayen (1990) 170 CLR 394 at 413.

OBLIGATIONS ON THE DECISION-MAKER TO INFORM THE APPELLANTS

A number of grounds (9, 10, 12, 15 and 16) are directed to whether the trial judge was wrong in his conclusion that there was not an obligation on DIEA to have acted otherwise than it did to inform the appellants of their rights.  The issues may conveniently be isolated as notification of rights to apply; access to legal advice; and procedural fairness, including denial of legitimate expectations.

Notification of right to apply

Sections 194 and 195 of the Migration Act provide:

     "194As soon as reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is made aware of the provisions of sections 195 and 196.

     195  (1)  A detainee may apply for a visa:

     (a)  within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or

     (b)  if he or she informs an officer in writing within those 2 working days of his or her intention to so apply - within the next 5 working days after those 2 working days.

     (2)  A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time."

However, in the case of the appellants the application of these sections is to be determined in the light of s193 which reads:

     "193(1)  Sections 194 and 195 do not apply to a person:

     (a)  detained under subsection 189(1):

          (i)    on being refused immigration clearance; or

          (ii)   after bypassing immigration clearance; or

          (iii)  after being prevented from leaving a vessel under section 249; or

     (b)  detained under subsection 189(1) who:

          (i)    has entered Australia after 30 August 1994; and

          (ii)   has not been immigration cleared since last entering; or

     (c)  detained under subsection 189(2).

     (2)  Nothing in subsection (1) requires the Minister or any officer to:

     (a)  advise a person covered by subsection (1) as to whether the person may apply for a visa; or

     (b)  give a person covered by subsection (1) any opportunity to apply for a visa; or

     (c)  allow a person covered by subsection (1) access to advice (whether legal or otherwise) in connection with applications for visas."

The trial judge concluded that because the applicants had been detained under s189(2) of the Migration Act, there was no doubt that they were not entitled to be advised that they may apply for a visa.  He rejected a submission for the appellants that there should be some temporal limitation upon the exemption from giving advice provided by s195.  In doing so he stated that there was no foundation for such submission and that, if it was necessary to do so, resort to the Explanatory Memorandum to clear up any ambiguity made it abundantly clear that a clear line has been drawn between those unlawful non‑citizens who have entered the country unlawfully and those non-citizens who, having entered Australia lawfully, have become unlawful non-citizens.   

In my opinion the reasoning of the trial judge is not in error.  Section 193(1) provides that ss194 and 195 do not apply to a person detained under s189(2).  There is no ground for implying a temporal limitation in s193(2).  It does not follow that the appellants could be held in detention indefinitely: provision is made in s198(2) for the removal as soon as reasonably practicable of an unlawful non-citizen who is detained under subs 189(2), who has not been immigration cleared and has not made a valid application for a substantive visa.  Furthermore, s196 provides:

     "196(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:

       (a)  removed from Australia under section 198 or 199; or

       (b)  deported under section 200; or

       (c)  granted a visa.

     (2)  To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a unlawful non-citizen.

     (3)  To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa."

Whether there should be an obligation on DIEA to inform persons in detention of the progress of their case is another issue to be dealt with as part of the arguments concerning procedural fairness.

Access to legal advice

Section 256 of the Migration Act provides:

     "Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, 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 immigration detention."

The trial judge construed this section as limited by the use of the words "at the request of the person in immigration detention".  Having found that no such request had been made, he concluded that there was no obligation to inform the appellants of their rights to legal advice.  In my opinion that construction was patently inevitable and correct so far as it related to the provisions of the section.  His view is supported by the provisions of s198(4) of the Migration Act which provides that the obligation on an officer to remove "as soon as reasonably practicable" an unlawful non-citizen, including persons in detention on the same basis as the appellants, does not require the Minister or any officer to allow a such a non-citizen access to advice (whether legal or otherwise) in connection with applications for visas.

The case for the appellants nevertheless contends that s256 does not address the question of the obligation on DIEA to inform detainees that they may request legal assistance under the section and that there is a common law duty, unaffected by the enactment of s256, which required such advice to be given.  This submission is said to be supported by reference to Raymond v Honey [1983] AC 1 at 10 where Lord Wilberforce, citing Attorney-General v Times Newspapers Ltd [1974] AC 273 at 310 per Lord Diplock with Lord Simon agreeing, said that "to inhibit suitors from availing themselves of their constitutional right to have their legal rights and obligations ascertained and enforced in courts of law, by
holding up any suitor to public obloquy for doing so or by exposing him to public and prejudicial discussion of the merits or the facts of his case before they have been determined by the court or the action has been otherwise disposed of in due course of law" could amount to contempt of court.  With respect, that case is not this case.  If it is the case that the appellants were kept in ignorance of their rights to legal advice, that is not an inhibition of the type referred to in the dicta.

The grounds relating to this matter are also supported by reference to what is said to be Australia's international commitment to equal and free access to the courts.  There is no need to explore the nature and source of that commitment for it is well established that the existence of ambiguity is a necessary precondition to resort to Australia's obligations under an international treaty as an aid to construction: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38; Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 128 ALR 353 at 361-2 and 375.  Where no common law rule is shown to exist as the source of an unjust discrimination, there is no room for international law to be an influence on the development of the common law: cf Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42.  In my view the case for the appellants fails to establish any such common law rule denying access and fails also to establish any ambiguity in s256.  The reality is that Parliament has chosen to take a tough line on the provision of information, including information concerning access to legal advice, in relation to non-citizens and, absent some constitutional right to which effect should be given, the courts are bound to apply what Parliament has enacted although it may be arguably contrary to provisions of Australia's international obligations.  No argument has been made that there is any such overriding constitutional obligation.

In rejecting any proposition that the officers of DIEA on board "The Albatross" or at Darwin or Port Hedland were obliged to inform the appellants that they may apply for a visa, the trial judge referred to the decision of Sackville J in Guo Wei Rong & Ors v Minister for Immigration and Ethnic Affairs (Sackville J, 4 May 1995, unreported) to the effect that a precursor of s256, also referring to the necessity for a request from the person in custody to activate the section, did not impose an affirmative obligation on the custodian to give advice concerning the detainee's entitlement to seek legal assistance.  Contentions for the appellants seek to distinguish Guo on the ground that the conclusion referred to was in relation to a point earlier than at issue here.  That does not seem to me to be material to the conclusion I have earlier reached on the application of s256 in the present circumstances.

It remains to consider contentions for the appellants that, in any event, the duty to provide advice concerning access to legal advice is part of a larger duty on DIEA to properly inform the appellants, particularly as they are persons subject to linguistic barriers, "cultural and political divergences" and detention.  That aspect falls for consideration in relation to procedural fairness.

Procedural fairness

The grounds of appeal contend that the trial judge was in error in not finding that the appellants were denied procedural fairness or a legitimate expectation that they could engage Australia's protection obligations under the Convention or could apply by appropriate means for a Protection Visa.  The denials are particularised in various ways and in essence are said to be constituted by failures on the part of DIEA in the following ways:

(1)  failure to inform the appellants of the need to complete an application for a Protection Visa;

(2)  failure to provide a Form 866 to the appellants so that they could fulfil all the requirements for lodgement of applications;

(3) failure to advise the appellants of the change in the law or the effect of the change made on 15 November 1994 by the Migration Legislation Amendment Act (No 4) 1994 given their stated desire to stay in Australia;

(4)  failure to inform the appellants in accordance with a common law duty of their rights to request a lawyer under s256 of the Migration Act or at common law;

(5)  failure to allow the appellants the opportunity of being heard before acting upon materials supplied by the appellants.

The case for the appellants contends that the trial judge erred in not holding that one or more of these considerations made out the case for procedural unfairness.

The Court has not been assisted, beyond the citation of cases, by any analysis of the case law on procedural fairness and its particular application to these claims.  Both these grounds and argument in support of them addressed legitimate expectations as if they were a consideration different from procedural fairness.  The conceptual content of procedural fairness was described by McHugh J in Teoh (supra) at 381 as follows:

     "After this court's decision in Kioa v West[(1985) 159 CLR 550; 62 ALR 321] and Annetts v McCann[(1990) 170 CLR 596; 97 ALR 177]... where a statute empowers a public official or tribunal to make an administrative decision that effects a person, then, in the absence of a contrary legislative indication, the critical question is not whether the doctrine of natural justice applies but "what does the duty to act fairly require in the circumstances of the particular case?"[Kioa (1985) 159 CLR at 585].  In Haoucher[(1990) 169 CLR at 653], Deane J expressed the view that the law seemed "to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making".

     I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials.  In the absence of a clear contrary legislative intention, those rules require a decision-maker "to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it".[Kioa (1985) 159 CLR at 587]...  The question becomes, what does fairness require in all the circumstances of the case?"

In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 576, Mason CJ, Dawson, Toohey and Gaudron JJ described the development of procedural fairness as a concept of law as follows:

     "It is now clear that a duty of procedural fairness arises, if at all because the power involved is one which may "destroy, defeat or prejudice a person's rights, interests or legitimate expectations" [Annetts v McCann (1990), 170 CLR 596, at p598, per Mason CJ, Deane and McHugh JJ].  Thus, what is decisive is the nature of the power, not the character of the proceedings which attends its exercise.  That is not to deny that provision may be made permitting or requiring procedures which are wholly inconsistent with a requirement of procedural fairness."

While the reliance on legitimate expectations does not attract universal acceptance (see Ainsworth v Criminal Justice Commission (supra) at 591 per Brennan J (as he then was) and Teoh (supra) per McHugh J at 381) the majority view places reliance on that concept: Teoh (supra).

In Kioa v West (1985) 159 CLR 550 at 610-11 Brennan J said that there is no freestanding common law right to be accorded natural justice; rather observance of it is a condition attached to the power whose exercise it governs.  For him there is no "right" except in the sense that a person may be entitled to apply to have a decision or action taken in purported exercise of the power set aside if the principles of natural justice have not been observed or to compel the repository of a power to observe procedures which the statute obliges the person to follow.  Mason J (as he then was) at 584 spoke of the duty to act fairly attaching in respect of an administrative decision.  On either formulation there is a need for an administrative decision to attract the application of the requirements of procedural fairness.

In the case of the appellants there is some difficulty in identifying the administrative decision or exercise of statutory power which has had that effect.  Nowhere in the further amended application before the trial judge has any such administrative decision been identified.  Nor did the reasons of the trial judge contain a finding in relation to the existence of such a decision.  He stated that:

     "In dealing with the subject of procedural fairness, I am not to be taken as thereby assuming that it was open to the applicants to argue its operation.  My findings of fact render it unnecessary to resolve the argument that was advanced on behalf of the respondents to the effect that an obligation to accord procedural fairness cannot arise independently of any decision making process."

In submissions for the appellants a catalogue of administrative decisions said to have been made in relation to them is referred to as providing the appropriate foundation for the operation of procedural fairness.  Reference is made to decisions to detain them, to send them to Port Hedland, to put them in isolation and thereafter to grant them limited movement.  In my view these are not relevant decisions for the purpose of considering the application of procedural fairness because they are not decisions which precluded the appellants from being considered as applicants for a Protection Visa. 

Then it is said there were decisions not to tell the appellants of their rights, not to tell them of material changes to the Migration Act, not to give them Form 866 or information concerning the need for a valid application, and to wait until after 30 December 1994 before allowing the appellants access to others who might advise them.  There are no findings of the trial judge that such administrative decisions were made.  It appears that the appellants or some of them thought they were told that they were to be returned to China but there is no finding of fact that an administrative decision was made to that effect.  In my opinion, the appellants' case on procedural fairness seeks to assert a free-standing right to be accorded natural justice and founders on the absence of an administrative decision to which the principles of procedural fairness can properly attach. 

Alternatively it may be open to argument that all these alleged decisions are properly characterised as steps in the exercise of the duty of the DIEA to remove the appellants in accordance with s198(2) unless one of the excepting circumstances referred to in that sub-section is applicable.  Section 198 relevantly reads:

     "198(1)    An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

     (2)  An officer must remove as soon as reasonably practicable an unlawful non-citizen:

       (a)  who is covered by subsection 193(1); and

       (b)  who has not subsequently been immigration cleared; and

       (c)  either:

            (i)   has not made a valid application for substantive visa that can be granted when the applicant is in the migration zone; or

            (ii)  has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.

     (3)  The fact that an unlawful non-citizen is eligible to apply for a substantive visa that can be granted when the applicant is in the migration zone but has not done so does not prevent the application of subsection (2) to him or her.

     (4)  Nothing in subsection (2) requires the Minister or any officer to:

       (a)  advise a non-citizen covered by subsection 193(1) as to whether the non-citizen may apply for a visa; or

       (b)  give a non-citizen covered by subsection 193(1) any opportunity to apply for a visa; or

       (c)  allow a non-citizen covered by subsection 193(1) access to advice (whether legal or otherwise) in connection with applications for visas.

     (5)  ...

     (6)  ...

     (7)  ...."

It is the case that the categories of procedural fairness are not closed nor are they rigid: Kioa (supra) at 601, 612.  It is also the case that in the course of his reasons Mason J  said at 585 that "...the expression `procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case."  That statement, however, is referrable to the circumstances of the case determined by reference to the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting. 

If the relevant statutory provision here is s198, it is necessary to turn to it.  It is common ground that the appellants are persons to whom s198(2) of the Migration Act applies in that they come within s193(1) as persons detained under subs189(2).

The question which must be asked (the threshold question) is whether the relevant exercise of the power in the section is conditioned upon observance of the principles of natural justice: Kioa at 612 per Brennan J.  For procedural fairness to not govern the relevant exercise of statutory power, there is a need for a strong manifestation of contrary statutory intention: Kioa at 585 per Mason J.  The context of the Act which conditions the exercise of what appears to be the relevant power, namely the decision to remove the appellants without considering them as applicants for refugee status contains provisions which, in my judgement, manifest strongly an intention to exclude procedural fairness of the type particularised in paragraphs (1) to (4) above. 

When s198(4) says that nothing in subsection (2) requires the Minister or any officer to take the steps there referred to it means that nothing, including the common law of procedural fairness, requires the Minister or an officer to so act in removing an unlawful non-citizen as soon as reasonably practicable.

In providing in subs198(4) - and in s193(2) - that nothing in that subsection requires the Minister or any officer to take any of the steps referred to, the legislature is manifesting a very clear intention that those steps do not have to be taken in relation to non-citizens subject to the exercise of statutory power under subs(2).  If those steps form part of the requirements of procedural fairness as is contended for the appellants, Parliament has negated their application.  This is not therefore a case where the statute is silent and the presumption of procedural fairness in those respects is undisplaced: Kioa at 615 per Brennan J.

Quite apart from the negating effect of s193(2) and s198(4), the law is that the concept of procedural fairness does not carry with it an obligation on an administrator to give advice to an applicant.  In Minister for Immigration, Local Government and Ethnic Affairs v Buksh (1992) 26 ALD 399 at 404 the Full Court (Neaves, Beaumont and O'Loughlin JJ) agreed with Davies J in Elbourne v Minister for Immigration, Local Government and Ethnic Affairs (1991) 22 ALD 211 at 212 where he said:

     "In considering this submission, it must be kept in mind that good administration does not preclude the giving of help and assistance when it appears to be needed.  But the principles of procedural fairness do not require that, in the generality of cases, the circumstances of a person seeking to make an application for a permit should be considered in detail and advice given as to the application that can best be made.  Indeed, s34 of the Act provides that a person making an application for an entry permit shall make application for an entry permit of a particular class in accordance with the regulations and, until that has been done, the minister `is not required to consider an application at all'."

See also Luu v Renevier (1989) 91 ALR 39 at 45.  Even more must that be the case where, in relation to non‑citizens, ss45-47 have been enacted.

In the "Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees" published by the Office of the United Nations Commissioner for Refugees, January 1992, p46 refers to certain basic procedural requirements approved by the Executive Committee of the High Commissioner's Programme in October 1977 (Official Records of the General Assembly, Thirty-Second Session, Supplement No 12 (A/32/12/Add 1), par53(6)(e)) made appropriate by the special situation of an applicant for refugee status.  Among these procedures are the following:

     "(i)The competent official (eg., 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.

     ...

     (iv)The applicant should be given the necessary facilities, including the services of a competent interpreter, for submitting his case to the authorities concerned.  Applicants should also be given the opportunity, of which they should be duly informed, to contact a representative of UNHCR"

In my opinion, the enactment in Australia of s193(2) and s198(4) directly negates the possibility of those procedures forming part of any obligation on the part of administrators required to meet and deal with refugees in Australia.

In Hamilton (supra) at 363, Burchett J (with whose reasons Sheppard J agreed) said:

     ".....Peoples' fundamental liberties should not... be obliterated by the lack of an appropriate form, or by inability to obtain advice within a few days, especially while in custody.  And to the extent that strict rules are applied, there should be equal strictness to ensure the Department provides the necessary information and the means of immediate compliance by those affected."

The undoubted sense of justice and fairness implicit in that statement is one which may have governed the situation of the appellants had not Parliament chosen, in respect of non‑citizens, to enact s193(2) and s198(4) thereby negating any obligation upon an officer to so act.

As part of the contentions on procedural fairness it is said the equitable concept of fiduciary conduct should be applied to public officials and that any departure from procedurally fair standards can therefore be redressed by a court granting remedies such as the equitable remedies sought in the present proceeding: cf P Finn, "The Forgotten "Trust"; The People and the State" in M Cope (ed) Equity Issues and Trends (1995) at 131.  Paramount in determination of those standards must be the requirements of the law.  The enactment of s 193(2) and s198(4) curtails any possibility that the failures of any public officials in terms of pars(1) to (4) above could constitute a breach of such standards even if that notion of trusteeship were so applicable.  For a related argument based on the concept of legitimate expectations see: P Finn and K J Smith, "The Citizen, the Government and `Reasonable Expectations'" (1992) 66 ALJ 139 at 145 ff.

For the appellants it is also argued that if this be the domestic law of Australia, it is in breach of Australia's obligations under international law: cf Mabo v Queensland (No 2) (supra) at 42 and Chu Cheng Lim  (supra) at 38.  In Teoh (supra) at 362-3, Mason CJ and Deane J said:

     "Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law.  The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law.[Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed); Dietrich v R (1992) 107 ALR 1; 177 CLR at 321 per Brennan J, 360 per Toohey J; Jago v District Court of New South Wales (1988) 12 NSWLR 558 at 569 per Kirby P; Derbyshire County Council v Times Newspapers Ltd [1992] QB 770].  But the courts should act in this fashion with due circumspection when the parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law.  Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law.  A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials.[Lamb v Cotogno (1987) 164 CLR 1 at 11-12; 74 ALR 188] Much will depend upon the nature of the relevant
provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of our domestic law."

That dicta was preceded by an affirmation of the traditional view that a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law (at 362).

The present is not a case of statutory ambiguity nor of the exercise of a statutory discretion.  Nor has it been argued the principles of procedural fairness as recognized at common law require development beyond their present content to be applicable to the case of the appellants.  Rather it is a case where Parliament in enacting s193(2) and s198(4) has sought to negate an obligation upon administrators to act in the specified respects.  This is not a case where resort to Australia's international obligations can assist.  It is a case where the nature of the relevant provision is determinative.

The leave granted by Carr J on 13 April 1995 to the Human Rights and Equal Opportunity Commission to file written submissions requires no further grant of leave for the submissions of the Commission to be fully considered on these issues.

There is a further aspect to the alleged failure to tell the appellants that they were entitled to seek legal advice.  In Guo (supra), Sackville J stated that "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".  The requirements of procedural fairness in that respect take their colour from the relevant statutory provisions.  In the case of a decision to remove unlawful citizens from Australia, s198(4) of the Migration Act provides that nothing in s198(2) requires the Minister or an officer to allow a non-citizen covered by s193(1) (the appellants) access to advice (whether legal or otherwise) in connection with applications for visas.  In my opinion that provision negates the possibility referred to by Sackville J in this context and thus negates the alternative limb of the fourth aspect of procedural fairness listed above.

There is the fifth way in which the appellants' case in relation to procedural fairness is put.  It is submitted that, at the least, the respondents were under a duty, after the compliance interviews, to let the appellant know what their immediate impressions were on the material provided.  That submission is supported by reference to Re H K (an infant)  [1967] 2 QB 617 at 630 where Parker LCJ said that, as part of the duty to act fairly, an immigration officer should give the immigrant an opportunity of satisfying him of the matters in the statute and, for that purpose, let the immigrant know what his immediate impression is so that the immigrant can disabuse him.  In R v Gaming Board for Great Britain [1990] 2 QB 417 at 430-1 Lord Denning MR, with whom Lord Wilberforce and Phillimore LJ agreed, applied the dicta of Parker LCJ to the issue of gaming licences, stating that the licensing board must let the applicant know what their impressions are so that he can disabuse them.  See also Kioa (supra) at 569, 587, 602, 629 and 634 and Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 223.

In my opinion there is nothing in s193 or s198 of the Migration Act which seeks to negate the right to such a hearing prior to the making of any order for removal.  There being no finding such a decision has been made, no denial of procedural fairness in that respect is yet apparent.  Even if such a hearing were accorded the appellants, it is difficult to see how they would be assisted.  This is because even if such a hearing enabled them to state their intention to apply for refugee status, the date decreed by Parliament for the
making of an appropriate application has now passed and the clock cannot be turned back in that respect.

Turning to the reliance for the appellants upon the existence of legitimate expectations of a right, an interest or a benefit, such expectations must be reasonable expectations: Kioa at 563 per Gibbs CJ.  Rights and interests extend to questions of status:  Kioa at 582 per Mason J.  They can extend beyond enforceable legal rights provided they are reasonably based: Kioa at 583 per Mason J.    Examples of where they may arise are where there has been an express promise given on behalf of a public authority or a regular practice exists or the nature of the application gives rise to it: Kioa at 583 per Mason J and at 618 per Brennan J.  In the case of the appellants it is contended that the expectation is that they would be considered for refugee status and not denied without an opportunity to put their case.

This is not a case where the appellants received any express promise.  There was evidence before the trial judge of arrivals of other boats around the same time as the appellants and consequently persons detained with them who were treated as applicants for refugee status.  It could not be said from that circumstance that the appellants derived an expectation from a regular practice.  Knowledge by the appellants of that treatment could nevertheless arguably make reasonable any expectation by them that they would be considered for refugee status.  In my opinion, the circumstances of arrival of the appellants, their expressly declared intentions regarding their boat, their completion of all forms and interviews which they were invited to participate in, the nature of their circumstances disclosed in China and the existence of Convention reasons thereby disclosed, shows an arguable case that they had an expectation they would be considered for refugee status.

I do not consider s198(2) makes such an expectation unreasonable.  The effect of that sub-section is that the appellants would have been only entitled to expect that they would be removed unless a valid application for a substantive visa had been finally determined.  Given their linguistic limitations, their cultural differences and their detention without access to legal advice it would not have been unreasonable (apart from contrary statutory provision) for them to have expected that the process in which they had participated was directed to that end and that, if any further step was required of them, they would be told of it and asked to comply.  Section 198(4) as well as s193(2) are, however, contrary statutory provisions and negate any possibility of such expectations being reasonable.  As Toohey J said in Teoh (supra) at 374, "there can be no legitimate expectation if the actions of the legislature or the executive are inconsistent with such an expectation".

If that is not the case, the question nevertheless arises how the existence of a legitimate expectation or other procedural unfairness can assist the appellants now that the date for filing an application has passed and has the status of a statutory mandated date.  If there is an identifiable administrative decision which has been made with respect to the appellants it could only be remade in the absence of the relevant application, for even the presence of procedural unfairness cannot entitle either a court or the administration to set aside the statutory requirement for an application to be filed before 30 December 1994.  Minister for Immigration, Local Government and Ethnic Affairs v Polat (supra) at 10 citing Formosa (supra) at 694 per Davies and Gummow JJ.

As part of the aspects addressed in the grounds on procedural fairness it is asserted that the trial judge's failure to consider "the incident involving Chen Yuan Fa" constituted a breach of s256 of the Migration Act and so amounted to procedural unfairness.  There were findings of fact by the trial judge that the incident did not occur and that any incident in which he was involved was not serious, so that there is no proper foundation for the ground.

The Chen Yuan Fa Incident

Chen Yuan Fa, who was 17 years of age when "The Albatross" landed at Darwin, swore affidavit evidence to the following effect:

     "About one week after I arrived in `D' block, and on or around November 23rd, 1994, I had heard nothing about how my refugee application was progressing and I wanted to see a lawyer to get some information about my situation.  I took down the printed sheet of paper which was on the wall in our block which was in English and Chinese and which was used for communicating with the Australian Protective Services (APS) guards.

     I went outside with the piece of paper to where the APS guard was sitting behind a table.  I approached him and showed him I was requesting to see a lawyer by pointing to the printed sheet where it said in Chinese and English `I want to see a lawyer'."

Later he testified that he had been assaulted by an Australian Prison Services Officer when he:

     "...took hold of the clothing at the back of my neck and pushed and propelled me towards the door of `D' block, which was about 1 or 2 metres away.  Upon reaching the doorway of D block, still grasping my clothes, the APS officer opened the door with his `spare hand, and pushed me through.  As he let go of me, he simultaneously kicked me in the buttocks, which had the effect of sending me off balance."

The trial judge found:

     "The failure of the applicants to lead any evidence of identification other than the two references to badge number 5028 and the failure of the applicants to make inquiries that were reasonably available to them, coupled with Officer Sharp's denial on oath,
led me to conclude that the allegations of assault against that officer have not been made out."

Ground 13 seeks to challenge findings that: the incident was of "little or no consequence"; that there was no assault; and other aspects of the manner in which the trial judge dealt with the relevant evidence.  The grounds are attacks on findings of fact.  They are devoid of support by material which would support any conclusion that the trial judge misused his advantage or made findings clearly inconsistent with the evidence or which could be said to be glaringly improbable:  Brunskill v Sovereign Marine and General Insurance Company Ltd (1985) 62 ALR 53 at 56.  In my opinion, the ground wholly fails.

In particular, so far as it is suggested that the incident involved Chen asking a guard if he could see a lawyer, the trial judge found "the [appellants] did not request legal assistance" and he clearly found Chen to be an unreliable witness.

Other alleged requests to see lawyers

Ground 14 attacks other factual findings made by the trial judge relating to alleged meetings prior to Christmas 1994 at which requests were supposedly made by various appellants to see lawyers.  The trial judge, preferring the evidence of the Centre Manager (to whom the requests were said to have been made) to that of the Chinese witnesses, was not prepared to find any such request was made to him before Christmas 1994.  He concluded the Chinese witnesses had either concocted their evidence on this matter or mistakenly confused events which occurred in January 1995.  In my opinion, the inferences which are attacked on behalf of the appellants were open on the primary facts.  The competing inferences contended for were pressed before the trial judge and must be taken to have been rejected by him.  This is not an occasion for the appellate court to draw inferences afresh: cf Warren v Coombes (1979) 142 CLR 531 at 538.  His findings, upon which the inferences rest, involve significant findings as to credibility.

CONCLUSION

This is a case in which Parliament has negated the possibility of common law concepts of procedural fairness applying in favour of the non-citizen applicants.  Parliament has achieved this by the enactment of ss45-47 and ss193(2) and 198(4) of the Migration Act.  The inference from the findings of the trial judge is that the representatives of the relevant arm of the executive were well informed of this and avoided acting so as to place the applicants in the position where they had the means to apply for a Protection Visa when the course remained open to them, prior to its preclusion by legislation.  While that executive conduct does not accord with internationally expressed goals relating to conduct in relation to refugees, the conditions for application of international law, as prescribed by Australian domestic law, are not present to enable international law to control that conduct.  Furthermore, such conduct was supported by the enactments of the Australian Parliament which, to that extent, evince an intention in relation to non-citizens to negate the application of those internationally commended basic procedural requirements.  The result is that the non-citizen applicants are unassisted by either Australian domestic law or by international law.  For these reasons I consider the appeal should be dismissed.

     I certify that this and the preceding 46 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson. 

     Associate:   

     Date: 

                         APPEARANCES  

Counsel for the Applicant:          Mr R E Lindsay and

                                    Mrs V Moss

Solicitors for the Applicant:       Legal Aid Commission of Western Australia

                                 

Counsel for the Respondent:         Mr R R S Tracey QC and

                                    Mr A H Silvester

Solicitors for the Respondent:      Australian Government Solicitor

Date of Hearing:                    17 & 18 October 1995

Date of Judgment:                   28 February 1996