Last Updated: Wednesday, 24 December 2014, 12:47 GMT

Minister for Immigration and Ethnic Affairs v. Mayer

Publisher Australia: High Court
Publication Date 5 November 1985
Cite as Minister for Immigration and Ethnic Affairs v. Mayer, Australia: High Court, 5 November 1985, available at: http://www.refworld.org/docid/3ae6b6f41c.html [accessed 26 December 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS v MAYER

Section 6A(1) of the Migration Act 1958 (Cth) provides that a permanent entry permit shall not be granted to a non-citizen after his entry into Australia unless he satisfies one or more of the conditions set out in the sub-section. One of those conditions is that: "he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees [1951] ... or of the Protocol relating to the Status of Refugees [1967] ..." (s 6A(1)(c)).

The Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) provides that, with some exceptions, a person aggrieved by a decision of an administrative character "made under an enactment" may seek judicial review of that decision. Section 13(1) of the ADJR Act provides that a person who is entitled to seek review of a decision to which the ADJR Act applies may request the decision-maker to furnish a statement of reasons for the decision.

M, the holder of a temporary entry permit, applied to the Minister for a grant of refugee status. The Minister refused his application on the ground that M was not eligible for such a grant. M requested the Minister to provide him with a statement of reasons for his decision in accordance with s 13(1) of the ADJR Act, a request which the Minister refused. The reason for the Minister's refusal was that the decision to refuse M refugee status was not one to which the ADJR Act applied; although it was a decision of administrative character, it had not been made "under an enactment" but rather pursuant to prerogative or executive powers. M obtained from Davies J a declaration that he was entitled to make a request to the Minister for a statement of reasons for the decision to refuse M refugee status. An appeal to the Full Court of the Federal Court against this decision was dismissed and the Minister appealed to the High Court.

Held, dismissing the appeal (per Mason, Deane and Dawson JJ; Gibbs CJ and Brennan J, dissenting): -

The decision of the Minister to refuse M refugee status was a "decision ... made under an enactment" within the meaning of the ADJR Act, as para (c) of s 6A(1) of the Migration Act impliedly conferred on the Minister the power to make a determination of refugee status for the purposes of that paragraph. M was therefore

Per Mason, Deane and Dawson JJ: A legislative provision operating upon a specified determination of a Minister or other officer can readily be construed as impliedly conferring upon the designated Minister or other officer the statutory function of making the particular determination. Such a construction is likely to be clearly warranted in a case where the determination upon which the legislative provision operates is a determination to be made for the purposes of the particular provision and at a time when, and in the circumstances in which, the provision is called upon to operate, where no other statutory source of obligation to consider whether the determination should be made or of authority to make it is apparent and where the legislative provision will be without effective content if no authority to make the requisite determination exists.

Appeal

This was an appeal, by special leave, from a decision of the Full Court of the Federal Court of Australia (reported at 58 ALR 695), dismissing an appeal from a decision of Davies J (reported at 55 ALR 587), declaring that the respondent was entitled under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to request a statement of reasons from the appellant for the appellant's refusal to grant the respondent's application for refugee status.

Gibbs CJ. The respondent, Mr Mayer, is not an Australian citizen. He is what the Migration Act 1958 (Cth) as amended (the Migration Act) rather inelegantly calls a "non-citizen". He entered Australia in about June 1984 and at all material times thereafter was the holder of a temporary entry permit issued under the Migration Act. On 2 July 1984 he submitted to the Department of Immigration and Ethnic Affairs a completed form supplied by that Department and headed "Application for Refugee Status", by which he applied "to be recognized as a refugee as defined in the United Nations Convention relating to the Status of Refugees". It may confidently be inferred that he made this application in the hope that if the Minister for Immigration and Ethnic Affairs determined, by instrument in writing, that he had the status of refugee, he might then, having satisfied one of the conditions made necessary by s 6A(1) of the Migration Act, be granted a permanent entry permit, as it is convenient to call what the Migration Act describes as "an entry permit other than a temporary entry permit". Section 6A(1), which applies only to permanent entry permits (see s 6A(8)), provides that an entry permit shall not be granted to a non-citizen after his entry to Australia unless one or more of the conditions set out in the sub-section is fulfilled in respect of him. One of those conditions is as follows: -

"(c)       he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967."

On 8 August 1984 the Minister, who is the present appellant, replied to the respondent's application, saying that he had decided that the respondent was not eligible for the grant of refugee status. The respondent then gave notice in writing to the Minister requesting him to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision to refuse the respondent's application for refugee status. The request was made in reliance on s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), as amended (the ADJR Act). The Minister refused the request claiming that the decision which he had made was not a decision to which s 13(1) applied. The respondent then applied to the Federal Court for a declaration that he was entitled to make a request to the Minister under s 13 of the ADJR Act. Davies J upheld the application and made the declaration sought and an appeal from his decision was dismissed by a majority of the Full Federal Court.

The combined effect of sub-ss (1) and (11) of s 13 of the ADJR Act is that s 13 applies only when a person makes "a decision to which this Act [the ADJR Act] applies", not being a decision of one of the kinds excluded by sub-s (11). The expression "decision to which this Act applies" is defined by s 3(1) of the ADJR Act to mean "a decision of an administrative character made, proposed to be made, or required to be made ... under an enactment ...", other than certain decisions which it is immaterial to mention. By s 3(2), a reference to the making of a decision includes a reference to, inter alia, the refusal to make a determination. Section 13 will be applicable in the present case if a decision of the Minister to refuse to make a determination of the kind referred to in s 6A(1)(C) is a decision of an administrative character made under an enactment. It is not contested that a decision of that kind is a decision of an administrative character. The question is whether a decision of the kind referred to in s 6A(1)(C) is a decision made "under" s 6A(1)(C) within the meaning of the ADJR Act.

The 1951 Convention relating to the Status of Refugees (the Convention) and the 1967 Protocol relating to the Status of Refugees (the Protocol) are treaties which create international obligations binding on the Commonwealth of Australia but which do not form any part of the municipal law of Australia. Neither the Convention nor the Protocol requires a Contracting State to establish any particular procedure for the determination of the question whether a person has the status of refugee within the meaning of the Convention and the Protocol. Rather, the term "refugee" is defined (Art 1 of the Convention, as expanded by Art I of the Protocol) and the rights of refugees, and the obligations of Contracting States in respect of them, are then stated. Those obligations are owed, not to refugees, but to the other Contracting States. It is left to the appropriate organs of government of any contracting party (whether it be the legislature or the executive) to determine whether a person has the status of a refugee, and if so to see that the provisions of the treaties are observed so far as that person is concerned. Before s 6A was inserted into the Migration Act in 1980, there was no Australian statute which dealt with these questions, and there is now no relevant statutory provision in force with the possible exception of s 6A. Clearly, before 1980 the determination whether a person had the status of a refugee was a matter which lay within the discretion of the executive: see the article by Professor Johnson, "Refugees, Departees and Illegal Migrants" (1980) 9 Sydney Law Review 11 at p 47, and the article by Professor Shearer in International Law in Australia, 2nd ed (1984) edited by Ryan J, at p 206. Nothing has happened since 1980 to alter that situation. Section 6A(1)(C) does not in any way limit or affect the power of the executive to determine whether a person has the status of a refugee. If, for example, the government determined that a particular immigrant was a refugee, it would be expected that it would then ensure that that person was accorded the rights which the status entailed, whether or not the Minister had determined, by instrument in writing, that he had the status of refugee. If, on the other hand, the Minister did determine, by instrument in writing, that a particular person was a refugee, and the government took a different view, the government would not then be obliged to treat that person as a refugee. The question whether a person has the status of refugee can be finally decided only by the International Court of Justice: Art 38 of the Convention; Art IV of the Protocol. Absent any such decision, the practical question whether a particular person is to be treated as a refugee will be answered by the executive government, which of course may, by administrative arrangements, allow the matter to be dealt with by a particular department. The administrative arrangements notified in the Gazette on 2 July 1984 reveal that the matter of "migration, including refugees" is dealt with by the Department of Immigration and Ethnic Affairs. The Minister needs no statutory authority to execute an instrument in writing by which he determines that someone has the status of a refugee. If he does execute such an instrument, it will not have the force of law, although it may operate as sufficient (although it is not a necessary) direction to the Minister's department to treat the person named as having the status of a refugee. Section 6A(1)(C) does not authorize the Minister to make any determination of the kind to which it refers, and does not give the determination any legal effect. The existence of the instrument in writing is an objective fact which, if the person in question is the holder of a temporary entry permit which is in force, will satisfy condition (c) of s 6A(1), just as the circumstance that the person has been granted, by instrument under the hand of a Minister, territorial asylum in Australia, or is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit, will satisfy the conditions stated in paras (a) and (b) respectively of that sub-section.

The meaning of the expression "under an enactment" in the ADJR Act has been considered in a number of cases. In the Federal Court, it has been held that "under" in that context means "in pursuance of" or "under the authority of": Evans v Friemann (1981) 35 ALR 428 at 436; Australian National University v Burns (1982) 43 ALR 25 at 31; Sellars v Woods (1982) 45 ALR 113 at 121; Chittick v Ackland (1984) 53 ALR 143 at 153. In this court the meaning of the expression was considered in Glasson v Parkes Rural Distributions Pty Ltd (1984) 58 ALJR 471; 55 ALR 179. In that case a Commonwealth Act and a scheme thereunder provided for payments to be made by the Commonwealth to a State and by the State to certain distributors; the scheme provided that in certain circumstances an officer authorized under the State Act should give a certificate stating that an amount was payable to or recoverable from a distributor, but neither the Commonwealth Act nor the scheme gave any effect to the certificate. The State Act provided for the giving of a certificate and its effect. It was held that a decision to issue a certificate was not made under the Commonwealth Act or the scheme and so was not reviewable under the ADJR Act. The court pointed out (at p 473; p 183 of ALR) that the certificate derived its legal efficacy entirely from the State Act and that, although the scheme did give the authorized officer authoritative guidance, it did not give him power or authority to make the decision to issue the certificate and it was not the legal source of the rights and liabilities which the certificate created and imposed. The court went on to say (at pp 473-4; p 184 of ALR): "The issue of the certificate might have a practical effect on the rights and liabilities of the Commonwealth and the State inter se as measured by the scheme: it might lead to a repayment by the distributor to the State, and thereby affect the adjustment of accounts between the Commonwealth and the State ... but that does not mean that it was issued under the scheme. When neither the Commonwealth Act nor the scheme is the source of the power to appoint the decision-maker, or the source of his power to make the decision, or the source of the decision's legal effect, it cannot be said that the decision was made under that enactment."

As in that case, so in the present, the document in question has a practical effect on the rights of a person under the Commonwealth law. But here, as there, the Commonwealth enactment was not the source of the power to appoint the decision-maker, did not give power to make the decision and did not give the decision any legal effect. Neither the decision to make a determination, nor the instrument in writing, has, by itself, any legal effect, although if, pursuant to a decision to do so, the Minister has made a determination, by instrument in writing, that a person has the status of refugee, the fact that the determination has been made would satisfy part of the condition in s 6A(1)(C). The decision to make the determination was not made in pursuance of the Migration Act, or under the authority of that Act.

It should be remembered that s 6A did not expand the power of the Minister or an officer to issue entry permits; on the contrary, it imposed conditions on the exercise of a discretionary power that had formerly been free from those conditions. It was no doubt convenient, for evidentiary reasons, to require by s 6A(1)(C) that the determination should be by instrument in writing, so that the questions whether a person was a refugee, and whether the Minister had made a determination, could more readily be answered. There is, however, no room to infer that the provision was inserted for the purpose of subjecting the decision of the Minister to judicial review under the ADJR Act.

I would hold that the decision of the Minister that the respondent was not eligible for the grant of refugee status was not a decision made under the Migration Act, and would accordingly allow the appeal.

Mason, Deane and Dawson JJ. The respondent's homeland is the Indonesian province of Irian Jaya. It is common ground that, for a period prior to 1971, he was imprisoned by the Indonesian authorities for reasons related to his active opposition to Indonesian control of that province. In 1971 he fled to Papua New Guinea where he resided until June 1984. He was, however, unable to obtain citizenship of that country. He arrived in Australia on 25 June 1984 and, on that day, was issued with a temporary entry permit. He claims to be a refugee within the meaning of the 1951 Convention relating to the Status of Refugees (the Convention) and of the 1967 Protocol to that Convention (the Protocol) and seeks to remain in this country.

Section 6A(1)(C) of the Migration Act 1958 (Cth) (the Act) provides: -

6A(1)    An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -

…

(c)  he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967."

On 2 July 1984, the respondent, being the holder of a then current temporary entry permit, made a written "APPLICATION FOR REFUGEE STATUS'' to the appellant Minister for Immigration and Ethnic Affairs (the Minister). His reason for making that application was to enable him to satisfy the requirement (under s 6A(1)(C) of the Act) that "the Minister has determined, by instrument in writing, that [an applicant for an entry permit] has the status of refugee" within the meaning of the Convention or Protocol. By letter dated 8 August 1984 the Department of Immigration and Ethnic Affairs advised the respondent that the Minister had decided that the respondent was "not eligible for the grant of" such refugee status. The respondent, relying upon the provisions of s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), requested the Minister to provide a statement of his reasons for that decision. The response was a letter from the Department advising that the Minister refused to comply with the request. The reason advanced, on the Minister's behalf, for that refusal was that "the Minister's decision to refuse the grant of refugee status" to the respondent was "not a decision to which the ADJR Act, or s 13 of that Act, applies, because it is not a decision of an administrative character made under an enactment within the meaning of s 3(1) of that Act".

Thereafter, the respondent instituted proceedings against the Minister in the Federal Court of Australia seeking, inter alia, a declaration that he was entitled to make a request under s 13 of the ADJR Act with respect to the decision refusing to recognize him as a refugee. At first instance in the Federal Court, Davies J made a declaration to that effect. An appeal by the Minister to the Full Court of the Federal Court (Woodward and Jenkinson JJ; McGregor J dissenting) was dismissed. The present appeal is brought, by special leave, from that decision of the Full Court of the Federal Court.

Section 13(1) of the ADJR Act provides: "Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision."

Subject to presently irrelevant exceptions, the combined effect of the definition of "decision to which this section applies" in s 13(11) and of the definition of "decision to which this Act applies" in s 3(1) is that the former phrase means "a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment". By s 3(1) and again subject to presently irrelevant exceptions, an "enactment" is defined as meaning, among other things, an Act of the Commonwealth Parliament. It has been common ground on the hearing of the appeal that the respondent's application to the Minister was, and was treated as being, for a determination of the kind referred to in s 6A(1)(C) of the Act, that is to say, a determination, "by instrument in writing, that [the respondent] has the status of refugee within the meaning of the Convention ... or of the Protocol". That being so, the respondent's entitlement to the provided with reasons pursuant to the ADJR Act and the ultimate outcome of the present appeal turns upon whether the Minister's decision refusing to make such a determination was a decision made "under" that paragraph of the Act.

The convenient starting point of a consideration of the nature of a determination of the kind mentioned in s 6A(1)(C) is an examination of the Convention and the Protocol to which the paragraph expressly refers and to which any such determination will relate. The main operative effect of the Convention is to define obligations of the States who are "Contracting Parties" (the State Parties) in respect of persons who are "refugees" for the purposes of the Convention. Under Art 1, a person is a "refugee" for those purposes if he or she "has been considered a refugee" under one of a number of specified earlier international arrangements and treaties or if he or she is a person who: "As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it." It can be seen that the effect of the definition was to restrict the term "refugee", for the purposes of the Convention, to a person who had been considered a refugee under some previous international arrangement or treaty or who had become a "refugee" (in the sense mentioned in the definition) as a result of events occurring before 1 January 1951. The main operative effect of the Protocol is to apply the operative provisions of the Convention to persons who have become "refugees" by reason of events occurring on or after that date.

Each of the Convention and the Protocol refers to the "status" of refugees in its title and in its preambles. So used, the word does not refer merely to the fact that a person is a "refugee" within the meaning of the Convention or the Protocol. Rather, it is a compendious reference to the "rights", "benefits" and "duties" of persons who are "refugees" in the various circumstances to which different Articles of the Convention (and Protocol) refer. In that sense, the "status" of a particular person under the Convention and Protocol is a temporal one depending upon whether or not the person comes within the definition of "refugee" at the relevant time and upon his or her particular past or present circumstances. Thus, for example, Art 10 of the Convention contains special provisions relating to the "continuity of residence" of a refugee who "has been forcibly displaced during the Second World War" and removed to or from the territory of a Contracting State while Art 11 is restricted to dealing with the case of refugee seamen serving on board a ship flying the flag of a Contracting State. The corollary is that the obligations of a State Party in respect of a person depend upon the particular circumstances in which the person is placed and upon whether or not he or she is a "refugee" within the meaning of the Convention or the Protocol. There is nothing in the Convention or Protocol which expressly or impliedly calls for a general determination by a State Party that a person enjoys the abstract "status of refugee within the meaning of" the Convention or Protocol. The most that the Convention and Protocol do is to require that a State Party determine whether or not a person who is within or is claiming or seeking entry to its territory is a "refugee" at the particular time and, if he or she is, to define what that State's actual obligations are in respect of that particular person in the particular circumstances in which he or she is placed.

The provisions of s 6A(1)(C) of the Act were introduced by amendment in 1980. At the time of that amendment, it would seem that there was no Commonwealth legislative provision either referring to a person having the "status of refugee" or referring to, or expressly or impliedly conferring upon any Minister or other person the function of making, a local determination that a person had that status. Plainly enough, however, there could be and were occasions when it was relevant to decide, for administrative purposes, whether a person was a refugee within the meaning of the Convention or Protocol. By administrative arrangements, ministerial responsibility for refugees had been allotted to the Minister for Immigration and Ethnic Affairs and an Inter-Departmental Committee had been set up to advise the Minister on the question whether a particular person was a refugee within the meaning of the Convention. With the assistance of the recommendation of that Committee, the Minister would decide that question and, when the person was accepted as being such a refugee, no doubt administer those provisions of the Act under which he had discretionary power with that factor in mind. These administrative arrangements were mentioned in governmental documents and in some learned writings. The functions of the Minister and the Inter-Departmental Committee under them were, however, without any identified statutory foundation, undefined by any identified statutory obligation or control and devoid of any direct statutory or legal effect. The closest that one can come to any operative instrument, determining or reinforcing the administrative allocation to the Minister of responsibility in relation to refugees is the statement made, in notifications of approval of administrative arrangements in the Commonwealth of Australia Gazette, that the "Principal Matters dealt with" by "The Department of Immigration and Ethnic Affairs" include "Migration, including refugees". Closer examination discloses, however, that those notifications are, from the Minister's point of view, at best unhelpful for the purposes of the present case since the first occasion on which they contained any reference to the Minister having responsibility in respect of refugees was in March 1983 which was over two years after the enactment of s 6A (cf the last notification prior to the enactment of s 6A, in Commonwealth of Australia Gazette No S250, 3 November 1980, p 9 with the first inclusion of "refugees", in Commonwealth of Australia Gazette No S46, 11 March 1983, p 10).

The argument advanced on behalf of the Minister was to the effect that the requirement in s 6A(1)(C) that "the Minister has determined, by instrument in writing, that [an applicant for an entry permit] has the status of refugee within the meaning of the Convention ... or of the Protocol" should be read as a reference to an objective fact that there happened to be such a general determination. It was argued that, so read, para (c) does not, by implication, confer statutory authority on the Minister to make such a determination for the purposes of its provisions and that, consequently, it could not be said that a decision to make or to refuse to make such a determination was a decision "under" the paragraph. Counsel for the Minister did not point to any other statutory provision or instrument conferring upon the Minister authority to make such a determination. In the absence thereof, the Minister's argument involves the proposition that it was the intention of the Parliament to leave the function of determining "status of refugee" without any statutory basis whatever, notwithstanding that the performance of that function is the foundation upon which S 6A(1)(C) is structured. One implication of that proposition, if it were to be accepted, would be that, notwithstanding the statutory consequences of such a determination, the Minister would be under no statutory obligation even to consider whether a determination of the kind referred to in S 6A(1)(C) should be made. Another would be that the effectiveness of a decision, under the administrative arrangements, for the purposes of s 6A(1)(C) would depend upon whether it happened to comply with the statutory requirement that it be a determination "by instrument in writing". Yet another would be that the statutory provisions of para (c) could be deprived of any effective content by mere administrative decision discontinuing current administrative arrangements or allocating the function of determining whether a person was a refugee to someone other than the Minister. It would seem more likely that it was the intention of the Parliament that the provision of s 6A(1)(C) attaching statutory consequences to a determination by the Minister that the holder of a temporary entry permit has the "status of refugee" within the meaning of the Convention or Protocol be construed as impliedly conferring upon the Minister statutory authority to make that determination.

The view that the reference in s 6A(1)(C) is to a determination made by the Minister for the purposes of that paragraph is confirmed by the actual wording of the paragraph. Section 6A(1) operates as at the time of grant of an entry permit. The various "conditions" which must be satisfied before an entry permit can be granted to a "non-citizen" after his entry into Australia must be fulfilled at the time of any such grant. Under para (a) of s 6A(1), the condition is that "he has been granted, by instrument under the hand of a Minister, territorial asylum in Australia" (emphasis added). That condition would seem to refer to a past grant of territorial asylum by any Commonwealth Minister. In contrast, the conditions set out in the other paragraphs of s 6A(1) all speak completely contemporaneously: the applicant "is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit" (para (b)); the applicant "is the holder of a temporary entry permit which is in force, is authorized to work in Australia and is not a prescribed non-citizen" (para (d)); the applicant "is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him" (para (e)) (emphasis added in each case). Similarly, para (c) requires that the applicant "is the holder of a temporary entry permit which is in force" and that "the Minister has determined, by instrument in writing, that [the applicant] has the status of refugee" (emphasis added). Plainly enough, the words "has the status of refugee" refer to the possession of such status at the time when the grant of an entry permit is under consideration. As the definition of "refugee" for the purposes of the Convention and the Protocol makes clear, a person can become or cease to be a "refugee" according to his own circumstances or circumstances within "the country of his nationality" at the time when his "status" is being determined. That being so, the reference to a determination that an applicant for an entry permit "has" the status of refugee is a reference to a contemporaneous determination rather than to some past determination that the applicant had the "status of refugee" at the time when that past determination was made.

A legislative provision operating upon a specified determination of a Minister or other officer can readily be construed as impliedly conferring upon the designated Minister or other officer the statutory function of making the particular determination. Such a construction is likely to be clearly warranted in a case where the determination upon which the legislative provision operates is a determination to be made for the purposes of the particular provision and at a time when and in the circumstances in which the provision is called upon to operate, where no other statutory source of obligation to consider whether the determination should be made or of authority to make it is apparent and where the legislative provision will be without effective content if no authority to make the requisite determination exists. It has been seen that s 6A(1)(C) provides an example of such a case: the determination by the Minister upon which the paragraph operates is a contemporaneous determination made for the purposes of the paragraph in the circumstances existing at the time of the determination; there is no other apparent statutory source of any obligation to consider whether such a determination should be made or, if it should be, of any authority to make it; unless para (c) impliedly confers upon the Minister statutory authority to make such a determination, the provisions of the paragraph could, at any time, be deprived of effective content by mere administrative decision. It has not been suggested that the Minister's decision that the respondent was "not eligible for the grant of" refugee status should be construed otherwise than as a determination by the Minister that the respondent did not, for the purposes of para (c), possess the requisite "status of refugee", that is to say, that he was not, in all the circumstances and at the relevant time, a "refugee" within the meaning of the Convention or Protocol for the purposes of the paragraph. In a context where it is possible to point to a number of other provisions of the Act which appear impliedly to confer upon the Minister or another official the function of making the determination or decision upon which the particular provision operates (see, eg, ss 6A(4)(b)(ii), 21(6), 21A(7), 34 and 36A(1) and (3)), the preferable construction of s 6A(1)(C) is that it impliedly confers upon the Minister the function of determining, for the purposes of the paragraph, whether a particular applicant for an entry permit "has the status of refugee" within the meaning of the Convention or Protocol. It follows that the Minister's decision was a decision made in the performance of the statutory function which that paragraph impliedly confers upon him. It was, within s 3(1) of the ADJR Act, a decision made "under" an "enactment". It was a decision to which s 13(1) of the ADJR Act applied.

The appeal should be dismissed.

Brennan J. The respondent, Mr Mayer, is not an Australian citizen. After entering Australia as the holder of a temporary entry permit (since extended), he made an application "to be recognized as a refugee as defined in the United Nations Convention relating to the Status of Refugees". Mr Mayer was advised by letter that the Minister for Immigration and Ethnic Affairs had decided that he was "not eligible for the grant of refugee status within the terms of the 1951 UN Convention and the 1967 Protocol Relating to the Status of Refugees".

The applicant then sought a statement in writing setting out the reasons for the Minister's decision to refuse refugee status. The application was made purportedly under s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). Mr Mayer was entitled to a statement of reasons if the Minister's decision was a decision to which s 13 of the ADJR Act applied. A decision to which s 13 applies is any decision to which the Act applies except for certain classes of decisions specified in s 13(11).

Section 3(1) of the ADJR Act contains the definition of "decision to which this Act applies". The term is defined to mean - "a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1".

A decision to refuse refugee status does not fall within any of the excepted classes referred to in the definition of "decision to which this Act applies" nor within any of the excepted classes specified in s 13(11). However, the Minister contends that a decision to refuse refugee status is not a decision to which the ADJR Act applies because it is not a decision made "under an enactment". In the Federal Court, Mr Mayer contended successfully before Davies J and on appeal before the Full Court that the decision was made under s 6A(1)(C) of the Migration Act 1958 (Cth) (the Act). Section 6A provides, inter alia, as follows:

"(1)       An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -

…

(c)  he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;

...

(e)  he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him."

In addition to his application to be recognized as a refugee, it appears that Mr Mayer did apply for an entry permit seeking to bring himself not under para (c), but under para (e) of s 6A(1). A decision on Mr Mayer's application for an entry permit was not made until some time after the making of the decision to refuse to recognize him as a refugee.

The Protocol relating to the Status of Refugees extends the application of the Convention relating to the Status of Refugees. Australia is a party to the Convention and the Protocol, but neither of those international instruments is part of the domestic law of Australia. The States Parties have assumed obligations to any person who is "considered a refugee" or to whom the "status of refugee [is] accorded" for the purposes of the Convention and Protocol. Nothing turns on the difference between the two phrases, both of which are to be found in the definition of "refugee" (see the Convention Art 1 section A, applied by Art I para 2 of the Protocol). The according of the status of refugee to a person is a function left to the competent authorities of the Contracting States (see the Convention, Art 1 section C(5), Art 1 section E and Art 9). In Australia, the function of according to a person the status of refugee for the purposes of the Convention and Protocol has been reposed in a Minister of State, not pursuant to an enactment, but by the administrative arrangements of the Executive Government. The matters to be dealt with by the Executive Government are allocated among the several Departments of State, each of which is administered by a Minister of State. The Governor-General in Council publishes from time-to-time "Administrative Arrangements" listing the matters to be dealt with by each department and a list of particular enactments administered by the respective Ministers. It appears that, at all relevant times, the function of according to persons the status of refugee was entrusted to the Minister for Immigration and Ethnic Affairs, to whose department the matters of "migration ... and aliens" or, latterly, "migration, including refugees ... and aliens" have been allocated. The Minister's decision as to a person's status as a refugee is evidently treated by Australia as the decision of the competent authority for the purposes of the Convention and Protocol. The international obligation to determine the status of refugees in Australia arises solely from the Convention and the Protocol. No domestic law was required and, at least prior to the enactment of s 6A in 1980, no domestic law was made to confer authority or power to discharge the international obligation. Nor does s 6A now purport to confer such an authority or power sufficient to permit of the discharge of the international obligation. The obligations accepted by States Parties under the Convention - including the obligations to permit refugees to transfer assets (Art 30), not to impose penalties on fleeing refugees for illegal entry (Art 31), not to expel a refugee lawfully in a territory save on grounds of national security or public order (Art 32) and not to return a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, etc (Art 33) - are obligations which require that the competent authority in Australia determine whether a person has the status of a refugee irrespective of his making an application for an entry permit under s 6A(1) for the Act.

Paragraph (c) of s 6A(1) is not expressed as conferring an authority or power to determine whether a person has the status of a refugee. Paragraph (c) is one of a series of conditions governing the exercise of a power to grant an entry permit. The function to be performed under para (c) with respect to a person who has applied for an entry permit is to find whether, as a matter of fact, the elements of the condition set out in para (c) are satisfied: whether that person is the holder of a temporary entry permit which is in force, whether the Minister "has determined" (that is, has made a determination the existence of which can be established) that the person has "the status of refugee within the meaning of the Convention ... or of the Protocol" (that is, the status which requires Australia in point of international obligation to accord him the protection, privileges or immunities to which a refugee is entitled under the Convention) and whether the Minister's determination is in writing. It is the existence of a ministerial determination in writing that a person has the status of refugee, not the fact that he is a refugee, which satisfies that element of the condition in para (c). The function to be performed under para (c) is not to make a "decision" within the meaning of that term in the ADJR Act but rather to do what comes within s 6 of the ADJR Act, namely, to "engage in conduct [that is, to make an inquiry] for the purpose of making a decision" to grant or refuse an entry permit. The mere making of an inquiry to determine whether to grant or refuse an entry permit does not give rise to a right to a statement of reasons under s 13. A right to a statement of reasons arises when a decision based on such an inquiry is made (unless the case falls within an exclusion set out in para (d)(i) of Sch 2 of the ADJR Act).

Paragraph (c) is not the source of the Minister's power or authority to make the determination of a person's status "within the meaning" of the Convention or Protocol. A determination made for the purposes of the Convention or the Protocol neither has nor requires a statutory authority or power to make it. Such a determination produces a legal effect in international law, but in domestic law it affects no rights, privileges or immunities though the fact that it is made partially satisfies the condition expressed in para (c).

A distinction must be drawn between the legal effect produced by the exercise of a power to produce it when that power is conferred by an enactment and a legal effect which an enactment attaches to the fact that a decision is made in exercise of another authority or power. If an enactment does not confer on a decision-maker the power to produce a particular legal effect, but itself creates a legal effect when a decision is made by the decision-maker in exercise of another authority or power, I would regard the decision as made under the other authority or power, not under the enactment. The source of a particular legal effect which follows on the making of a decision is not the enactment which empowers the decision-maker to make the decision unless the power given him by the enactment is a power to produce that legal effect. Therefore I would not regard a ministerial determination as to refugee status which is made administratively in performance of Australia's international obligations, which is not required to be made by an enactment and which itself produces no legal effect in domestic law, as a "decision made under an enactment". The circumstance that s 6A(1)(C) provides that the making of the decision, in combination with other facts satisfies a condition of eligibility to be granted an entry permit does not make it a "decision made under an enactment". It was said in Glasson v Parkes Rural Distributions Pty Ltd (1984) 58 ALJR 471 at 474; 55 ALR 179 at 184, that a decision is not made "under" an enactment if the enactment is not "the source of the power to appoint the decision-maker, or the source of his power to make the decision, or the source of the decision's legal effect". Ordinarily, that statement is accurate enough although, for the reasons I have attempted to explain, it cannot be taken as establishing that a decision is made under an enactment if the enactment is merely the source of a decision's legal effect but is not the source of a power to make a decision having that effect. In my opinion the Minister's determination in the present case was not a decision, made "under" s 6A(1)(C) and therefore it was not a decision to which the ADJR Act or s 13 thereof applied. The appeal should be allowed.

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