CATCHWORDS
Immigration - Decisions of the Minister to issue conclusive certificates having the effect of preventing review by the Refugee Review Tribunal - Whether "may" in s.166B(3) now s.411(3) of the Migration Act 1958 (Cth) is used to confer power and not to give discretion - Consideration of grounds on which a decision conditioned on "belief" of the Minister is reviewable - Whether political nature of the decision implied a legislative intention to exclude the rules of natural justice or procedural fairness - Relief granted setting aside decisions of the Minister made in breach of the rules of natural justice and procedural fairness.
Administrative Law - Decisions of the Minister having effect of preventing review of an administrative decision - Whether rules of natural justice or procedural fairness apply to the decisions - Whether political nature of the decision implied a legislative intention to exclude the rules of natural justice or procedural fairness - Whether a failure to afford an opportunity to be heard in relation to the decision - Whether affording an opportunity to be heard would make a difference to the decision made - Whether inevitability of outcome or futility of granting relief are grounds for refusing relief - Whether decision should be set aside from date it was made.
Words and Phrases - "Belief" - "May" - "Contrary to the public interest".
Migration Act 1958 (Cth) s.166B(3) now s.411(3) and ss.166B, 166BA & 166BB now ss.411, 412 and 414.
Acts Interpretation Act 1901 (Cth) s.33(2A).
Administrative Decisions (Judicial Review) Act 1977 s.16(1).
Finance Facilities Pty. Ltd. v. F.C.T. (1971) 127 CLR 106.
Minister for Immigration and Ethnic Affairs v. Wu Shan Liang (1996) 136 ALR 481.
O'Sullivan v. Farrer (1989) 168 CLR 210.
Boucaut Bay Co. Ltd. (In Liquidation) v. The Commonwealth (1927) 40 CLR 98.
Buck v. Bavone (1976) 135 CLR 110.
Kioa v. West (1985) 159 CLR 550.
Annetts v. McCann (1990) 170 CLR 596.
Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564.
Esber v. The Commonwealth (1992) 174 CLR 430.
Minister for Arts, Heritage and Environment v. Peko Wallsend Ltd. (1987) 15 FCR 274.
Century Metals and Mining NL v. Yeomans (1989) 40 FCR 564.
General Medical Council v. Spackman (1943) AC 627
R. v. The Chief Constable of Thames Valley Police Ex parte Cotton (1990) IRLR 64.
Kanda v. Government of Malaya (1962) AC 332.
Stead v. State Government Commission (1986) 161 CLR 141.
VG292\94 NGUYEN THANH TRONG V. THE MINISTER FOR IMMIGRATION LOCAL GOVERNMENT & ETHNIC AFFAIRS
and
VG325\94 NGUYEN THANH TRONG V. REFUGEE REVIEW TRIBUNAL
MERKEL J.
MELBOURNE
2 AUGUST 1996
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION No. VG 292 of 1994
BETWEEN:
NGUYEN THANH TRONG
Applicant
and
THE MINISTER FOR IMMIGRATION LOCAL GOVERNMENT
& ETHNIC AFFAIRS
Respondent
AND No. VG 325 of 1994
BETWEEN
NGUYEN THANH TRONG
Applicant
and
REFUGEE REVIEW TRIBUNAL
Respondent
Coram: Merkel J.
Place: Melbourne
Date: 2 August 1996
ORDERS
1. Order that the two proceedings herein be consolidated and be heard together.
2. Declare that the failure by the Minister for Immigration and Ethnic Affairs ("the Minister") to give prior notice to each of the persons set out in the Schedule to this Order ("the claimants") of his intention to issue conclusive certificates on 29 August 1994 under s.166B(3)(a) of the Migration Act 1958 (Cth) ("the Act") and to afford them an opportunity to be heard in relation to the issue of the certificates constituted a denial of natural justice and a failure to accord procedural fairness to the claimants.
3. Order that each of the decisions of the Minister made on 29 August 1994 to issue conclusive certificates under s.166B(3)(a) of the Act in relation to the claimants be set aside as from that date.
4. Declare that subject to the issue of any conclusive certificates under s.411(3) of the Act, the Refugee Review Tribunal is under a statutory duty to hear and determine in accordance with law the applications of the claimants which were lodged on 31 August 1994 under s.166BA(1) of the Act for the review of the decisions made by delegates of the Minister in relation to the claimants.
5. Order that subject to the issue of any conclusive certificates under s.411(3) of the Act, the Refugee Review Tribunal proceed to hear and determine the said applications in accordance with law.
6. I adjourn sine die the further hearing of the application for review of the delegates' decisions in relation to the claimants' claims for refugee status under s.22AA of the Act.
7. I reserve the question of costs for determination after hearing the submissions of the parties.
8. I reserve general liberty to apply.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
SCHEDULE
NGUYEN THANH TRONG
TRAN VAN SON
TRAN PHUC HA
TRAN NGOC THACH
PHAM TUAN TRINH
NGUYEN VAN HUNG
PHAM VAN DUNG
NGUYEN PHUONG
LE THI LOAN
LE TAN MINH
TRUONG VAN THANG
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION No. VG 292 of 1994
BETWEEN:
NGUYEN THANH TRONG
Applicant
and
THE MINISTER FOR IMMIGRATION LOCAL GOVERNMENT
& ETHNIC AFFAIRS
Respondent
AND No. VG 325 of 1994
BETWEEN
NGUYEN THANH TRONG
Applicant
and
REFUGEE REVIEW TRIBUNAL
Respondent
Coram: Merkel J
Place: Melbourne
Date: 2 August 1996
REASONS FOR JUDGMENT
INTRODUCTION
The 11 persons ("the claimants") for whom these proceedings have been brought, fled Vietnam during 1989 and 1990. After arriving in Indonesia they each claimed to be entitled to refugee status under the Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees.
The claims were processed in Indonesia at the Galang Processing Centre under general procedures which had been approved by the United Nations High Commissioner for Refugees ("UNHCR").
Each of the claimants has alleged on Affidavit that the processing of his or her claim was tainted by bribery, corruption or sexual favour.
After their applications for refugee status were "screened out" (i.e. rejected) the claimants and 6 other persons in similar circumstances fled to Australia, arriving on 7 July 1994 on board a boat known as the "Vagabond". On 19 July 1994 the 17 individuals concerned claimed to be entitled to a determination that they were refugees pursuant to s.22AA of the Migration Act 1958 ("the Act").
The claims were heard and determined under the Act by delegates of Senator Bolkus, the Minister for Immigration Local Government and Ethnic Affairs ("the Minister"). By decisions of the delegates made on 28 August 1994, 3 of the individuals concerned were determined to be refugees and the remaining 14 were determined not to be refugees.
On 29 August 1994, without prior notice to the claimants, the Minister issued conclusive certificates under s.166B(3)(a) of the Act in relation to each of the claimants whose claim had been refused. That section and other sections of the Act were renumbered as from 1 September 1994 by s.83 of the Migration Legislation Amendment Act 1994. Accordingly, s.166B(3)(a) is now s.411(3)(a) of the Act.
The effect of the certificates was to make the delegates' decisions non RRT-reviewable decisions which meant the decisions were no longer subject to review by the Refugee Review Tribunal ("the RRT") (ss.166B and 166BA but now ss.411 and 412). If the certificates had not been issued the claimants would have been entitled to apply to have their claims reviewed by the RRT under ss.166BA and 166BB (now ss.412 and 414).
On 31 August 1994 the claimants filed applications for review by the RRT of each of the delegates' decisions. On 2 September the RRT ruled that, as a result of the conclusive certificates, it had no jurisdiction in the matter. Shortly thereafter proceedings were issued on behalf of the claimants.
THE PROCEEDINGS
By two Applications issued in the Court, the applicant sought relief on his own behalf and for the 10 other claimants who arrived on the Vagabond with him.
The first Application, which is brought under Part IVA
of the Federal Court of Australia Act
1976, seeks orders for the review of the Minister's decisions made under
s.166B(3)(a) of the Migration Act and
of the delegates' decisions.The review
is sought under the Administrative
Decisions (Judicial Review) Act 1977 ("the ADJR Act") and s.39B of the Judiciary Act 1903. The second Application, which was also brought
under Part IVA, sought relief, including a writ of mandamus, in the event that
the Court determined that the Minister's decisions under s.166B(3)(a) were
invalid.
The Applications also sought review under Part 8 of the Migration Act 1958 which was enacted by the Migration Reform Act 1992 and commenced on 1 September 1994. Each of the parties contended that any limitation in Part 8 of the Act upon the jurisdiction of the Court to review the relevant decisions did not operate to preclude the grant of the relief sought in the present case.
The first Application, which has been amended from time to time, was divided into 3 parts. Part A relates to alleged "common grounds" of challenge to the delegates' decisions. Part B sets out the grounds on which the Minister's decisions to issue the conclusive certificate were to be challenged. Part C sets out "separate" grounds of challenge which each of the individual claimants wishes to pursue in respect of the delegates' decisions.
If the Minister's decisions made under s.166B(3)(a) on 29 August 1994 are invalid, then, subject to the issue of any further certificates under s.411(3)(a), which is now the present equivalent of the section, it is common ground between the parties that the RRT must proceed to hear and determine the claimants' applications for review of the delegates' decisions. In those circumstances there would be little point in determining the challenges to the decisions of the delegates as the RRT would rehear each of those matters. Accordingly, it is appropriate to first consider the validity of the Minister's decisions under s.166B(3)(a).
The Comprehensive Plan of Action ("the CPA")
In issuing the certificates the Minister relied primarily upon the significance of Australia's role in maintaining the integrity of the CPA. Australia was an architect and one of the seventy signatories to the CPA in 1989. In documentation prepared in 1994 by the Department of Immigration and Ethnic Affairs ("the Department") for the Minister, the CPA was explained in the following terms:
"(The CPA is) an internationally agreed mechanism put in place to resolve the continuing outflow of asylum seekers from Laos and Vietnam. This was in recognition that an increasing proportion of people leaving Vietnam were doing so for economic rather than political reasons.
The CPA has achieved notable success in providing first asylum to all such asylum seekers, implementing a UNHCR-supervised screening mechanism in first asylum countries, whereby those recognised as refugees are resettled in third countries such as Australia, and providing a means of organised return to Vietnam and Laos for those found not to be refugees, and halting asylum seeker outflows from these countries. The CPA has also achieved improvements in regularising normal migration channels from Vietnam.
The two tier screening process under the CPA has been completed in all first asylum countries in the South East Asian region. There are approximately 3,000 Vietnamese for whom resettlement by the end of 1994 has been deemed the most appropriate durable solution, and approximately 48,000 who have been screened out and must return to Vietnam by the end of 1995. This repatriation exercise would bring the CPA to an end."
Prior to 29 August 1994 considerable concern was expressed to the Minister by representatives of UNHCR and the Minister for Foreign Affairs, Senator Evans, that the re-processing within Australia of the refugee claims of the individuals who arrived on the Vagabond, undermined the CPA.
The claimants' applications for refugee status under the Migration Act 1958
Under s.22AA of the Act each of the claimants was entitled to apply to the Minister for a determination, in writing, that he or she was "a refugee" as defined under s.4(1). The Regulations provided for the issue of Class 817 protection visas and entry permits to persons who were determined to be refugees.
By decisions handed down on 28 August 1994, delegates of the Minister presumably acting under s.176 of the Act, determined that each of the claimants was not a refugee as defined and refused the grant of Class 817 protection visas and entry permits.
29 August proved to be a somewhat busy day for government officers and Ministers concerned with the claimants from the "Vagabond". Each claimant was informed in writing by a delegate that their application for refugee status had been refused, was furnished with written reasons for the refusal and was given the following information concerning rights of review:
Review Rights
You may apply to the Refugee Review Tribunal (RRT) for review of the refusal to grant you:
- refugee status
- a PPV
- a PPEP
- a PEP
I have enclosed a brochure about how you can apply to the RRT. Application forms are available from the RRT or from any Regional Office of the Department of Immigration and Ethnic Affairs.
If you decide to apply for review, you must lodge your application with the RRT within 7 working days of receiving this letter. You are deemed to have received this letter on 29 August 1994.
More detailed information is available from the Refugee Review Tribunal.
On the same day the Minister for Foreign Affairs, Senator Evans, made a recommendation to the Minister, that he issue a conclusive certificate under s.166B(3) of the Act stating inter alia -
I am concerned that South East Asian countries and particularly Indonesia carry a substantial asylum seeker burden with limited resources, and that they have undertaken to protect the human rights of Indochinese asylum seekers through becoming parties to the CPA. Through its cooperation with UNHCR, Indonesia honoured its CPA commitments. Further Australian decisions granting the above-named "Vagabond" applicants refugee status would tend to call the efficacy and correctness of Indonesia's CPA processes into question, and Indonesia stands by its request for the immediate return of the "Vagabond" boat people.
Also on that day the Assistant Secretary Refugees, Asylum International Branch of the Department prepared and submitted to the Minister a recommendation for the issue of conclusive certificates under s.166B(3)(a). The recommendation was that -
"Based on the material put to you that it would be contrary to the public interest under sub-section 166B(3), it is submitted that you should find that to change the decisions would be prejudicial to Australia's international relations and issue conclusive certificates."
A memorandum which discussed the CPA, Australia's role under it and "The pros and cons of issuing conclusive certificates", accompanied the recommendation. In setting out arguments against issuing the certificates reference was made to the claims of Vietnamese groups in Australia that the Indonesian processes were "flawed".
Under the recommendation the Minister wrote:
"Having considered all the arguments, for and against, I am of the firm view that this course of action is the only appropriate action that I should take."
Finally, by a hand delivered letter dated 29 August 1994 each of the claimants was informed that the Minister had issued a conclusive certificate under s.166B(3)(a) on the ground that he believed it would be contrary to the public interest to change the delegates' decisions because any change would prejudice the international relations of Australia.
On 13 October 1994, pursuant to s.13 of the ADJR Act, the Minister provided a statement of reasons for his decisions. The Minister set out his findings on material questions of fact and the reasons for his decisions and his conclusions. The Minister referred, inter alia, to concerns that had been communicated to him by members of the Australian Vietnamese Community about the validity of the screening processes followed in respect of Vietnamese claimants for refugee status at Galang and stated -
"I requested my Department to take up with UNHCR the concerns raised by these communities. UNHCR responded with explanations and assurances that the principles of the CPA were being adhered to and I was satisfied with those assurances. I replied to one such representation from Mr. Cuong Vo, the President of the Vietnamese Community in Australia, on 24 August 1994."
The letter sent to Mr. Cuong Vo by the Minister was in response to a letter sent by Mr. Vo to Senator Evans on 12 May 1994 in relation to the CPA. In it the Minister said -
"Your letter raises several concerns. Your first concern is the screening process. Refugee screening under the CPA involves a two-tier process. A primary decision is made on applicants. Those who were found not to be refugees are entitled to have their decision reviewed. UNHCR monitors this process and has the power to mandate anyone whom it considers was incorrectly screened out.
Claims that the screening mechanism is not fair have been denied by the countries conducting the screening and by UNHCR. However, should substantive new information on a case become available, the UNHCR has indicated it would be prepared to take into account this material to see whether the screening decision made remains correct. All countries, and the UNHCR, are strongly opposed to reopening the screening processes except in exceptional circumstances."
The significance of the references in the Assistant Secretary's memoranda to claims of "flawed" Indonesian processes and of the Minister's references in his Statement of Reasons to concerns in relation to the screening processes followed at Galang, will be discussed later in these reasons. For present purposes it is sufficient to say that the Minister regarded that issue as one which was relevant to whether he should exercise his power to issue conclusive certificates under s.166B(3)(a).
Section 166B(3)(a) (now s.411(3)(a))
Section 166B(3) provided -
(3) The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that:
(a) it would be contrary to the public interest to change the decision, because any change in the decision would prejudice the security, defence or international relations of Australia;
.....
A number of issues arise concerning the construction and operation of the section.
. Is the power conferred by the sub-section discretionary?
. Is the aspect of the public interest which is required to be considered by the Minister under the sub-section limited to "security, defence or international relations"?
. What is the significance of the precondition for the exercise of the power being the Minister's "belief" as to the matters set out in the sub-section?
Does "may" confer power and not give a discretion?
Section 33(2A) of the Acts Interpretation Act 1901 (Cth) provides -
"(2A)Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word "may" is used, the act or thing may be done at the discretion of the person, court or body."
Section 2(1) of that Act provides that the Act applies to all Acts except so far as the contrary intention appears. There is nothing in s.166B(3) or the Act that suggests an intention that the Acts Interpretation Act 1901 not apply.
Section 33(2A) commenced on 18 December 1987 pursuant to the Statute Law (Miscellaneous Provisions) Act 1987 (Cth). Section 166B(3) was enacted by s.32 of the Migration Reform Act 1992 (Cth), which was assented to on 7 December 1992.
Accordingly, pursuant to s.33(2A) the word "may" in s.166B(3)(a) is used to confer a discretion.
If s.33(2A) had not applied it would have been necessary to consider whether as a matter of construction the word "may" was used in the sub-section to confer power and not to give discretion: see Ward v. Williams (1955) 92 CLR 496, 504-7, Finance Facilities Pty. Ltd. v. F.C.T. (1971) 127 CLR 106, 134-5 and Minister for Immigration and Ethnic Affairs v. Wu Shan Liang (1996) 136 ALR 481, 493 (in the latter case the Court did not refer to s.33(2A)). I should add that if the common law principles of interpretation discussed in those cases, rather than s.33(2A) applied, I would have arrived at the same conclusion in relation to the discretion conferred.
In O'Sullivan v. Farrer (1989) 168 CLR 210 at 216 Mason CJ, Brennan, Dawson and Gaudron JJ said -
"Where a power to decide is conferred by statute, a general discretion, confined only by the scope and purpose of the legislation, will ordinarily be implied if the context (including the subject matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made...
The public interest considerations which may ground an objection under s.45(1)(c) are, in terms, confined to considerations "other than the grounds specified in paragraphs (a) and (b) and subsections (2) and (3)". But, these limits aside, the Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view": Water Conservation and Irrigation Commission (NSW) v. Browning (1947) 74 CLR 492 at 505 per Dixon J."
The discretionary power conferred by the use of "may" in s.166B(3), being limited only by the scope, subject matter and purpose of the power conferred, is a wide one. Political, legal and social factors, on which views may legitimately differ, are able to be considered. The wide discretion of the Minister as to relevant factors makes any legal challenge to the discretionary decision a difficult one: see Century Metals and Mining NL v. Yeomans (1989) 40 FCR 564, 588.
"Public Interest"
In my view there are a number of reasons why the formation of the belief in relation to the public interest referred to in s.166(B)(3)(a) is to be based upon considerations related to "security defence or international relations".
. there is a "positive indication" that that is so in the sub-section itself;
. the limitation is consistent with the ordinary, natural meaning of the words used in s.166B(3)(a) and (b);
. the purpose of the power conferred by the sub-section is consistent with that conclusion;
. by conferring a general discretion as to whether to issue a certificate upon the requisite state of belief being formed under the sub-sections (a) or (b), the legislature enabled any other factors properly believed by the Minister to be relevant, including any other public interest considerations, to be taken into account.
I may have arrived at a different conclusion if I had been of the view that Parliament had not conferred or intended to confer a discretionary power.
"Belief"
Earlier authority was to the effect that the exercise of a statutory power expressly conditioned upon the formation of a "belief" was valid if the repository of the power bona fide and honestly formed and held that belief.
"The main question in this case is, of course, the true meaning of the words in clause 15 "if at any time the Minister shall have reason to believe." The argument submitted to me was that the Minister's power to determine the agreement was dependent upon some reason justifying a belief that the agreement was not being carried out in accordance with the terms and true intent and meaning of the agreement. It followed, according to the argument, that the Court must determine for itself whether facts exist which would reasonably lead to the believe that the agreement was not being so carried out. This view of the clause I cannot adopt. In my opinion, the belief of the Minister is "the sole condition of his authority"; "he is the sole judge of the sufficiency of the materials on which he forms it" (Lloyd v. Wallach). If a man is to form a belief and his belief is to govern, he must form it himself on such reasons and grounds as seem good to him (Allcroft v. Lord Bishop of London). He must not act dishonestly, capriciously or arbitrarily: that would be contrary to the implication of the agreement and so establish a want of the belief stipulated for as a condition of the exercise of the power of determination. So long, however, as the Minister acts upon circumstances appearing to him to bear upon the case and giving him a rational ground for the belief entertained, then, in my opinion, the Courts of law cannot and ought not to interfere with his discretion. Upon the facts the Minister had ample materials on which to found his belief set forth in the notice of 27th February 1925, and I find as a fact that the Minister bona fide and honestly formed and held that belief." Boucaut Bay Co. Ltd. (In Liquidation) v. The Commonwealth (1927) 40 CLR 98 at 100-101 per Starke J.
More recent authority suggests that reviewability of a decision conditioned on a subjective state of mind such as "belief", "opinion" or "satisfaction" may also be available on wider grounds.
In Wu's case at 493-494 Brennan CJ, Toohey, McHugh and Gummow JJ cited the following passage from the judgment of Gibbs J in Buck v. Bavone (1976) 135 CLR 110 at 118-119 as reflecting the position at common law in respect of reviewing such decisions:
It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.
These principles offer guidance as to a challenge under the ADJR Act. As the majority pointed out in Wu's case at 494 -
However, while the subjective nature of the decision no longer can be said to immunise the decision from review, it is necessarily of relevance to the issue of whether there has been an error of law.
Accordingly, the following principles are applicable to a decision under s.166B(3)(a) -
(a) The Minister has a discretion whether to issue a conclusive certificate upon forming the requisite belief;
(b) The discretion is a broad one and is confined only by the requirement that its exercise be consistent with the scope, subject matter and purpose of the power conferred;
(c) In forming the requisite belief the Minister
is only required to have regard to considerations relevant to
"security, defence or international relations of Australia";
(d) A decision made under the section is not immune from review. However, in the present case the width of the discretion and the subjective nature of the decision in so far as it is conditional on the formation of a belief necessarily result in very limited grounds for administrative review.
The grounds put forward for review of the Minister's decisions
The Minister's decisions to issue conclusive certificates were challenged by the applicant on numerous grounds, the full details of which were set out over some 9-10 pages of the Application as amended. For present purposes the grounds may be divided into four categories:
. Error of law;
. Failure to have regard to particular relevant considerations being the merits of each individual case and Australia's treaty obligations in respect of refugees;
. Failure to exercise a fair, impartial and independent discretion;
. Breach of the rules of natural justice or failure to accord procedural fairness.
The first three categories may be dealt with briefly.
Error of law
I have already discussed the difficulties inherent in challenging a Ministerial decision based upon the formation of a state of mind and a broad discretion which permits evaluation of a wide range of factors.
I am satisfied on the material before me that in forming the requisite belief and in exercising his discretion to exercise the power conferred under s.166B(3)(a) the Minister acted bona fide, honestly and only after taking into account relevant considerations. No unreasonableness or other error of law has been demonstrated in relation to the decision and I am not satisfied that the Minister took into account any irrelevant matters.
I have disposed of the grounds relied upon under this heading somewhat summarily as in effect, at best, they amounted to an appeal from the decisions rather than an administrative law review of them.
Particular considerations
In the light of the wide discretion under the section it is not an easy task to persuade the Court that the considerations relied upon were required to be taken into account as a matter of law. However, I need not finally decide that issue as I am not satisfied that the considerations put forward were not taken into account. In this regard it is important not to confuse not taking into account relevant considerations with not taking into account particular pieces of evidence. See Li Shi Ping v. Minister for Immigration Local Government and Ethnic Affairs (1994) 35 ALD 225 at 236 per Carr J.
The reasons for the decisions demonstrate that the Minister had regard to the individual circumstances of the claimants as, inter alia, he took into account the delegates' decisions setting out the delegates' findings in relation to those circumstances in each case. The weight he gave to those circumstances and the particular circumstances he considered to be relevant to his decision were a matter for the Minister.
It was also put on behalf of the claimants that the Minister failed to have regard to Australia's treaty obligation of "non-refoulement" i.e. not to expel or return a refugee to a country where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion. I am not satisfied that the Minister failed to take into account the treaty obligation. Indeed it was that obligation which afforded the very basis for the first tier of review.
In any event, the argument proceeded on a misconception between the role of Parliament and that of the Minister. By enacting s.166B(3)(a) Parliament limited the refugee decision making process in the circumstances there set out to one tier, rather than two tier, review. It was not explained to me how elimination of the second tier of review by the RRT was inconsistent with Australia's treaty obligations. Parliament conditioned the exercise of the power on the premise that on a second tier review, the first tier decision against a claimant may change. The consequence was that that possibility, or even probability, was a matter required to be assumed by the Minister as the basis for exercising the power. Accordingly, whether the Minister considered the likelihood or otherwise of that occurring was a matter for the Minister.
Further, as Parliament defined the extent of Australia's treaty obligations in respect of non-refoulement, inter alia, in s.166B(3), a redefinition or reconsideration of that obligation by the Minister did not form a necessary or required aspect of his role.
I should add that these conclusion ought, not in any way, prevent the Minister from considering such matters as relevant to his discretion if he so desires.
An impartial discretion
There is simply no basis for concluding that the
Minister did not bring a fair and impartial mind to the decision he made or
that he was acting at the behest or under the direction of any person in
relation to it. Also, I am not satisfied, on the evidence before me, that the
Minister regarded himself as bound to issue a certificate upon forming the
requisite belief. His reasoning and the factors to which he had regard
are consistent with the Minister being of the view that he had a discretion to
issue a certificate.
Natural Justice/Procedural Fairness
This ground is the only substantial ground of challenge to the decisions made by the Minister.
Since Kioa v. West (1985) 159 CLR 550; it has been accepted that in general, the rules of natural justice or procedural fairness apply in relation to the making of decisions under the Act in relation to particular individuals, subject to any legislative provision or intention to exclude those rules.
Indeed, the ambit of the duty to comply with the rules has expanded significantly since Kioa: see Annetts v. McCann (1990) 170 CLR 596 and Johns v. Australian Securities Commission (1993) 178 CLR 408. In Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564 at 576; Mason CJ, Dawson, Toohey and Gaudron JJ described the duty 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 598, 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.
I turn to consider the nature of the power conferred by s.166B(3). The delegates' decisions that the claimants were not refugees and were not entitled to the protection visas and entry permits they sought were decisions which were reviewable by the RRT under s.166B(1) (now s.411(1)). If a valid application for review of a RRT reviewable decision is made under s.166BA (now s.412), subject to a conclusive certificate under s.166B(3) (now s.411(3)), the RRT "must review the decision" under s.166BB (now s.414).
On review the RRT may exercise all of the powers and discretions of the original decision maker and may, inter alia, affirm or vary the decision or set it aside and substitute a new decision under s.166BC(1) and (2) (now s.415). The varied or substituted decision is taken to be the decision of the Minister under s.166BC(3) (now s.415(3)).
The statutory entitlement to review under the Act is a substantive right and not mere procedure. As was said in Esber v. The Commonwealth (1992) 174 CLR 430 at 440 per Mason CJ, Deane, Toohey and Gaudron JJ in respect of a statutory right of review by the Administrative Appeals Tribunal.
Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely "a power to take advantage of an enactment". Nor was it a mere matter of procedure; it was a substantive right.
Accordingly, prima facie, the nature of the power exercised under s.166B(3)(a) is one which destroyed or defeated each claimant's right of review at a hearing de novo by the RRT in respect of the adverse decisions made under s.22AA.
It is also relevant that the nature of the power being exercised is one which relates to claimants for asylum as refugees by individuals whose right to life and liberty may be affected by the decision made. The significance of that matter in administrative law was recently considered by me in Ozmanian v. Minister for Immigration Local Government and Ethnic Affairs (1996) 137 ALR 103 at 121.
In those circumstances, unless there is some express or implied provision or intention in s.166B(3) to exclude the rules of natural justice or procedural fairness, those rules apply to a decision made under the section.
There is no express provision or intention to exclude the rules. Reliance upon an implied intention to exclude the rules is not an easy task. In Annetts v. McCann (1990) 170 CLR 596 at 598 Mason CJ, Deane J and McHugh J said -
It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: Commissioner of Police v. Tanos; Twist v. Randwick Municipal Council; Heatley v. Tasmanian Racing and Gaming Commission; J. v. Lieschke; Haoucher v. Minister for Immigration and Ethnic Affairs. In Tanos, Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from "indirect references, uncertain inferences or equivocal considerations". Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v. Parole board of New South Wales. In Kioa v. West, Mason J said that the law in relation to administrative decisions "has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention." In Haoucher, Deane J said that the law seemed to him "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".
It was submitted that the essentially political nature of the decision required by the section and the fact that it relates peculiarly to matters, such as international relations, of which the Minister alone will have cognisance, evidence an implied legislative intention to exclude the rules of natural justice or procedural fairness.
The submission, which had several limbs to it, contended that: .upon the proper construction of s.166B(3) the Minister had no discretion to exercise upon forming the requisite belief;
. the belief was to be formed on the basis of the public interest having regard only to considerations relating to "security, defence, or international relations of Australia";
. these considerations were non-justiciable and were intended by Parliament to be reposed in the Minister alone.
I already found against the first limb but in favour of the second limb of the submission. The third limb of the submission relied upon authority which demonstrates a marked judicial reluctance to review political decisions of the executive branch of government particularly in the area of international relations: see Buttes Gas and Oil Co. v. Hammer [1982] AC 888, 933, 937-8, Minister for Arts, Heritage and Environment v. Peko-Wallsend Ltd. (1987) 15 FCR 274, 304-8 and Century Metals and Mining NL v. Yeomans (1989) 40 FCR 564, 587-8.
Although the decisions in these cases, in effect, offer some protection for political decision making from "substantive" review including challenges based on unreasonableness or grounds based on relevant or irrelevant considerations there is no reason why it should follow that any "non-justiciability" on such grounds should result in an implied exclusion of the rules of natural justice or procedural fairness, inter alia, because determining the public interest in the particular area is a matter of political judgment.
In Century Metals and Mining NL v. Yeomans (1989) 40 FCR 564 at 588 the Full Court (Fisher, Wilcox and Spender JJ) suggested that such considerations do not exclude the decision from a challenge based on procedural irregularity:
It is true that the matters which might legitimately be considered in any assessment of the mining proposals include social and political factors upon which views might differ. It is also true that the Minister was politically accountable for his ultimate decision. These factors might make it difficult for any person to challenge the Minister's decision on the ground that he failed to take account of a relevant fact; the Minister must be regarded as having a wide discretion in the selection of relevant factors, especially in the absence of any statutory guidance: see Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 162 CLR 24 at 40-42. Similarly, except perhaps where it is possible to demonstrate an operative illogicality in any process of reasoning revealed by the Minister as the basis of his decision, it would probably be impossible to impugn the decision as unreasonable, in the Wednesbury sense: see Peko-Wallsend at 309-310. But there is no reason why these factors should be treated as immunising the decision from review on other grounds, for example because of some procedural irregularity.
We reject the submission that the present decisions are non-justiciable.
The submission on behalf of the Minister is not sustainable in the light of the broad nature of the discretion I have found to have been conferred upon the formation of the requisite belief. In any event a range of factors, including information as to whether the screening processes were flawed, are matters that can be relevant to both the formation of the belief and the discretion.
The facts of the present case afford a good example of why the factual premise for the submission is not sustainable. If, as is alleged, the refugee screening processes followed by the Indonesian authorities in relation to the claimants were "flawed" that matter, which is within the direct knowledge of the claimants, was and was properly treated by the Minister, as a factor that can be relevant both to the formation of the belief and to the exercise of the discretion.
The unchallenged evidence is that the decisions of the
Minister under s.166B(3)(a) were made without any prior notice to the claimants
or their representatives. It must follow that the claimants were not afforded
any opportunity to be heard in relation to the decisions. I do not accept the
suggestion that information provided by Mr. Vo and others on earlier occasions
as to the alleged flawed processes is equivalent to affording the claimants an
opportunity to be heard in relation to their own experiences and their own
screening processes. Accordingly, subject to the submission that the procedural
irregularity made no difference, the claimants are entitled to a grant of
relief in respect of the decisions.
Inevitability of Outcome
Senior counsel for the Minister submitted that the same decision would have been made in any event or put another way, that notice and an opportunity to be heard would have made no difference to the result. It was also submitted that the requirement of natural justice or fairness would have been futile and therefore no prejudice was suffered.
The onus on the Minister to make good any such submission as a matter of fact is a difficult one. As no opportunity was afforded to the claimants to put their case against the issue of the certificates it must be a matter of speculation as to what may have occurred had that opportunity been afforded. Further, as the issue of the validity of the Indonesian screening processes was treated by the Minister as relevant to his decisions I fail to see how direct evidence from the claimants on that very issue could be irrelevant to his decisions. I have no doubt that the failure to afford the claimants an opportunity to be heard on the law and the facts applicable to the Minister's decisions had the capacity to work to their prejudice. Accordingly, I do not accept that there is a sound factual basis for the submissions on behalf of the Minister.
In any event I have grave doubts as to the legal foundation for the submissions: see Judicial Review of Administrative Action de Smith, Woolf and Jowell Fifth Edition at 498-502.
Compliance with the rules of natural justice or procedural fairness has been long accepted as a "condition" for validity. In General Medical Council v. Spackman [1943] AC 627 at 644-645 Lord Wright said:
If the principles of natural justice are violated in respect of any decision, it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.
There are instances where Courts have denied relief on the ground that the outcome would have been no different if a fair hearing had been given: see Glynn v. Keele University [1971] 1 WLR 487; Malloch v. Aberdeen Corporation [1971] 1 WLR 1579; Cinnamond v. British Airports Authority [1980] 1 WLR 582 and R. v. The Chief Constable of Thames Valley Police Ex parte Cotton [1990] IRLR 64. However, in my view such decisions ought to be explained either as part of a consideration that the rules of fairness have not been infringed or as arising from the Court's discretion in relation to the grant of relief. The dangers of doing otherwise were pointed out by Bingham LJ in R. v. The Chief Constable of Thames Valley Police Ex parte Cotton (1990) IRLR 344, 352 and discussed by him in "Should Public Law Remedies be Discretionary?" [1991] Public Law 64, 72-3 in the following terms:
Inevitability of outcome
Judges of the highest distinction have held that an applicant who has been unlawfully and unfairly denied a right to be heard may be denied relief if the outcome would have been no different if he had been heard. Sir William Wade has referred to "the dubious doctrine that a hearing would make no difference." and in a recent case I gave six reasons for expecting (by which I really meant hoping) that such cases would be of great rarity. Since the case has not been widely reported, perhaps I may repeat them here:
(i) Unless the subject of the decision has had an opportunity to put his case, it may not be easy to know what case he could or would have put if he had the chance.
(ii) As memorably pointed out by Megarry J in John v. Rees, experience shows that that which is confidently expected is by no means always that which happens.
(iii)It is generally desirable that decision-makers should be reasonably receptive to argument, and it would therefore be unfortunate if the complainant's position became weaker as the decision-maker's mind became more closed.
(iv) In considering whether the complainant's representations would have made any difference to the outcome, the court may unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of a decision.
(v) This is a field in which appearances are generally thought to matter.
(vi) Where a decision-maker is under a duty to act fairly the subject of the decision may properly be said to have a right to be heard, and rights are not to be lightly denied.
His Lordship's analysis has strong support. As Lord Denning said in delivering the judgment of the Privy Council in Kanda v. Government of Malaya [1962] AC 332 at 337 -
If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. This appears in all the cases from the celebrated judgment of Lord Loreburn L.C. in Board of Education v. Rice down to the decision of their Lordships' Board in Ceylon University v. Fernando. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing.
Although the nature and extent of the right to be heard may vary from case to case the right, once established, does not.
In my view an approach in law which is limited to determining whether the duty of procedural fairness (as it has evolved in Australia since Kioa) has been complied with and if not whether relief should be refused as a matter of discretion, is the preferable one.
Different and separate principles apply in respect of the discretion to grant relief: see s.16(1) of the ADJR Act. In that regard it has been accepted that relief may be refused if it is futile to grant it. A court may determine to not set aside and remit a decision in breach of the rules of natural justice if it is futile to do so: see Stead v. State Government Commission (1986) 161 CLR 141 at 145-6. It is difficult to conceive of circumstances where the discretion would be exercised adversely to the applicant if it is "possible" that the end result might not be the same: see Santa Sabina College v. Minister for Education (1985) 58 ALR 527 at 540 per Beaumont J.
Any such principle has no applicability in the present case. The Act, the Minister and the factual circumstances have changed since 29 August 1994. As pointed out above what may occur hereafter is a matter of speculation.
My view finds support in recent decisions which suggest that even if no legal consequences flow from an impugned decision the Court may nevertheless declare its invalidity: see Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564, 581-2 and 595-7, Johns v. Australian Securities Commission (1993) 178 CLR 408 and Ozmanian at 134-6. In the present case legal consequences favourable to the claimants will flow from the setting aside of the decisions as from the date they were made by the Minister. Subject to the issue of any further certificates, the claimants will be entitled to review by the RRT of the adverse decisions of the delegates that they were not refugees.
I am satisfied that by not giving prior notice to the claimants of the decisions proposed to be made under s.166B(3)(a) and affording them with an opportunity to be heard in relation to them, the Minister breached the rules of natural justice and did not accord procedural fairness to the claimants. Accordingly, the decisions made under s.166B(3)(a) are invalid and appropriate relief ought to be granted in respect of the decisions.
Relief
Section 166B(3)(a).
The parties did not submit that there is any relevant limitation on the jurisdiction of the Court to grant the relief sought in respect of the s.166B(3)(a) decisions of the Minister, irrespective of whether relief is sought under the ADJR Act or under the Act as enacted prior or subsequent to 1 September 1994.
I am of the view that there is no relevant limitation on the Court's jurisdiction. Accordingly, it is appropriate to grant relief setting aside the decision with effect from 29 August 1994: see s.16(1)(a) of the ADJR Act and if applicable (which I doubt) s.481(1)(a) of the Act. I say I doubt if there is jurisdiction under Part 8 as the decision may not be a judicially-reviewable decision as it may not relate to visas (s.475(1)(c)) and was finally made prior to 1 September 1994. However, I need not decide those matters.
Since 29 August 1994 there has been a change of Minister and changes to the Act and the factual circumstances, including either the winding up or the cessation of the CPA. Accordingly there is no reason to refer the matter back for reconsideration by the Minister. If the Minister wishes to reconsider the matter afresh under s.411(3), that will be a matter for him.
The RRT decisions
On 2 September 1994 the RRT determined that it had no jurisdiction to proceed to hear and determine the claimants' applications for review of the delegates' decisions by reason of the conclusive certificates issued by the Minister (s.166B(2)(b) or s.411(2)(b)).
I have determined that the decisions to issue the certificates were invalid and that it is appropriate to make orders setting aside each of those decisions as from the date they were made, being 29 August 1994. In those circumstances, subject to the issue of any further certificates under s.411(3)(a), the RRT is under a duty to proceed to hear and determine the claimants' applications for review of the delegates' decisions made in relation to them.
No submission was made that I do not have jurisdiction under Part 8 of the Act to grant the relief sought in respect of the RRT decisions. The decisions were made on 2 September 1994 and are RRT reviewable decision under s.475(1)(b) of the Act. It may be that the failure of the RRT to proceed to hear and determine the applications for review may also found the necessary jurisdiction under the ADJR Act and s.39B of the Judiciary Act 1903 and is not subject to the limitation on the jurisdiction of the Court under s.485. As these questions were not argued and their resolution is not necessary to found the necessary jurisdiction in the matter before me I say nothing more in respect of them.
The relief that is appropriate is -
(a) a declaration that, subject to the issue of any certificate under s.411(3)(a) of the Act, the RRT is under a duty to hear and determine the applications for review of the delegates' decisions pursuant to the applications lodged by the claimants on 31 August 1994 under s.166BA(1) of the Act;
(b) order that the RRT proceed to hear and determine the said applications according to law.
Review of the delegates' decisions
If no further certificates are issued then the decisions of the RRT on the claimants' claims will supersede the delegates' decisions. If certificates are issued then it may become necessary for the applicant to re-activate the challenges made to those decisions. In those circumstances I propose to adjourn the further hearing of the review sought in respect of the delegates' decisions sine die and reserve liberty to the parties to apply.
Costs
The applicant has succeeded in obtaining the relief sought by the claimants but in substance only upon the grounds in respect of which I granted leave on 12 June 1996. The background to the grant of that leave was set out in my interlocutory judgment delivered in this matter on 17 May 1996.
It is therefore inappropriate that the respondents be liable for all of the costs of the two proceedings.
The issue of costs is further complicated by the fact that considerable time was spent and expense incurred in relation to the review sought by the applicant in respect of the delegates' decisions which have not been and may not have to be adjudicated upon in the future. Further, if those decisions are adjudicated upon my present view is that it is likely that they will have to be considered as 11 separate cases as each case differs on its facts. Whether that occurs and before whom it occurs remains to be determined.
In these circumstances it is desirable that a costs order be made at the present time which covers all of the costs of the proceedings to date. I propose to hear submissions of the parties on the question of costs.
Other matters
Senior counsel for the Minister expressed concern that a decision limited to the issue of the conclusive certificates may be an interlocutory decision and therefore require leave to appeal. I doubt that there is any risk in that regard but indicate that in so far as leave to appeal may be required in respect of the substantive orders I have made I am disposed to grant that leave.
I certify that this and the preceding 32 pages are a true copy of the Reasons for Judgment of the Honourable Justice Merkel
Associate:
Dated:
Heard: 17, 27 May 1996.
4, 12 & 28 June 1996.
Place: Melbourne.
Judgment: 2 August 1996.
Appearances: Mr. P. Rose with Mr. I. Freckleton instructed by O'Sullivan & Ruffili appeared for the applicant.
Mr. R. Tracey Q.C. with Mr. A. Cavanagh instructed by the Australian Government Solicitor appeared for the respondent.
