Mayer v. Minister for Immigration and Ethnic Affairs

The respondent refused the applicant's request pursuant to s 13(1) of the Administrative Decisions (Judicial Review) Act (Cth) to supply written reasons for the rejection of an application for refugee status. The respondent refused on the grounds that the rejection was not a decision "under an enactment" for the purposes of s 3(1), of the Act. The applicant submitted that the rejection of refugee status was a decision made under s 6A of the Migration Act 1958 (Cth). The respondent submitted that it was a decision pursuant to the 1951 Convention Relating to Status of Refugees and therefore a decision pursuant to the prerogative of the Crown to implement international treaty obligations and not a decision under an enactment. In the alternative, the respondent submitted that a determination as to refugee status was merely a pre-condition to the exercise of power conferred by the Act and not a decision per se.

Held, the application would be allowed because: -

(i)         Although Australia is a signatory to the Convention, it does not have the force of law in Australia. The power which the Minister has with respect to the entry and stay of refugees is statutory, not prerogative. Determination of refugee status is an exercise of those statutory powers under s 6A.

Simsek v Minister for Immigration and Ethnic Affairs (1982) 40 ALR 61, followed.

Musgrove v Chun Teeong Toy [1891] AC 272, distinguished.

(ii)         Section 6A requires a decision with respect to refugee status to be made before deciding on the grant of a permanent entry permit and hence is a decision which has legal effect.

Gourgaud v Lawton (1982) 42 ALR 117, distinguished.

(iii)        The decision of the Minister refusing refugee status was a decision under an enactment and the applicant is thereby entitled to request reasons pursuant to s 13(1).

Australian National University v Burns (1982) 43 ALR 25, followed.

Application

This was an application for a declaration that the applicant was entitled under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to request reasons for a decision made by the respondent.

Davies J. This is an application for a declaration that the applicant, Mathew Rak Rain Mayer, was entitled to make a request to the respondent under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act).

On 2 July 1984 the applicant lodged with the Department of Immigration and Ethnic Affairs an application for refugee status. By letter dated 8 August 1984, he was advised: -

"I am sorry to have to tell you that the Minister has decided that you are 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."

By letter dated 6 August 1984 the applicant sought, pursuant to s 13(1) of the ADJR Act, a statement in writing setting out the reasons for that decision. On 6 September 1984 the applicant was advised that the decision to refuse him refugee status was not a decision to which the ADJR Act applied and accordingly that a statement of reasons would not be provided.

The crux of the issue is whether the decision to refuse refugee status was a decision "under an enactment". Section 3(1) of the ADJR Act provides, inter alia: -

"3.        (1)        In this Act, unless the contrary intention appears -

"'decision to which this Act applies' 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, other than a decision by the Governor-General, or a decision included in any of the classes of decisions set out in Schedule 1."

Sub-sections (2) and (3) provide: -

"3.        (2)        In this Act, a reference to the making of a decision includes a reference to -

(a)        making, suspending, revoking or refusing to make an order, award or determination;

(b)        giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c)        issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d)        imposing a condition or restriction;

(e)        making a declaration, demand or requirement;

(f)         retaining, or refusing to deliver up, an article; or

(g)        doing or refusing to do any other act or thing, and a reference to a failure to make a decision shall be construed accordingly.

"(3)       Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision."

The words "under an enactment" were discussed in Australian National University v Burns (1982) 43 ALR 25, where Bowen CJ and Lockhart J said, at p 31: -

"The difficulty in the present case does not lie in the definition of the expression 'under an enactment'. We agree with Fox J who said in Evans v Freimann (1981) 35 ALR 428 at 436; 3 ALD 326 at 333, that the word 'under', in the context of the Judicial Review Act, connotes 'in pursuance of' or 'under the authority of': see also R v Clyne [1941] VLR 200. The difficulty lies in the application of the expression to particular circumstances...."

The background to the decision lies in the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol thereto. A preamble to the Convention noted that the United Nations had manifested its concern for refugees and had endeavoured to assure refugees the widest possible exercise of fundamental rights and freedom and noted also the need for international co-operation. The Convention, as amended by the 1967 Protocol, defines a "refugee" for the purposes of the Convention, but neither the Convention nor the Protocol make any express provision for decisions recognizing or refusing to recognize a person as a refugee. The only specific provisions of the Convention to which I need refer are paras 1 and 2 of Art 32 and para 1 of Art 33. They read: -

"Article 32 - Expulsion

"1.        The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.

"2.        The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority."

"Article 33 - Prohibition of Expulsion or Return ('Refoulement')

"1.        No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

Although Australia is a signatory to the Convention and to the Protocol, neither has the force of law in Australia. Stephen J said in Simsek v Minister for Immigration and Ethnic Affairs (1982) 40 ALR 61 at 66-7: -

"... counsel for the applicant very properly concedes that on the authorities in this court, as they at present stand, he cannot succeed before a single judge of the court in a submission founded upon rights said to be conferred by the Convention and Protocol or, for that matter, by the Covenant. Accepted doctrine in this court is that treaties 'have no legal effect upon the rights and duties of the subjects of the Crown': Chow Hung Ching v R (1948) 77 CLR 449 at 478. Aliens are in no different position: Bradley v Commonwealth (1973) 128 CLR 557 at 582; 1 ALR 241 at 259-60. The applicant wishes, however, to argue before a Full Bench that when what is in question is not an obligation imposed upon an individual by a treaty but, rather, a right conferred upon the individual by a treaty, the Commonwealth being subjected to a corresponding obligation towards the individual, the position is otherwise. This, it is said, is a quite different proposition from that for which Chow Hung Ching and Bradley, properly understood, are authority.

"In my view those authorities are not confined to the case of treaties which seek to impose obligations upon individuals; they rest upon a broader proposition. The reason of the matter is to be found in the fact that involving the exercise of prerogative power, whereas it is for Parliament, and not for the Executive, to make or alter municipal law: Wade & Phillips; Constitutional Law (8th ed) p 277. Were it otherwise 'the Crown would have the power of legislation': Mann, Studies in International Law (1973) p 328. In Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326, Lord Atkin, speaking, for the Judicial Committee, said (at 347) that: 'Unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law. If the national executive, the government of the day, decide to incur the obligations of a treaty which involve alteration of law they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes.' To a similar effect is what was said by the several members of the Court of Appeal in Blackburn v Attorney-General [1971] 1 WLR 1037; [1971] 2 All ER 1380.

"This principle had quite recently been applied to the case of an individual seeking to enforce against the Crown a right said to be conferred only by a treaty and not by municipal law. In Laker Airways Ltd v Department of Trade [1977] 1 QB 643; [1977] 2 All ER 182, Mocatta J (QB at 674) described as 'commonplace law' the proposition that 'a treaty, unless given effect to by Act of Parliament, forms no part of the law of England' and on appeal (at 718) Roskill LJ expressed 'unhesitating agreement' with the submission to which he refers at p 717, namely that 'when the Crown in the exercise of these prerogative powers concludes a treaty, the subject gains no personal rights under that treaty enforceable in our courts, unless the treaty becomes part of the municipal law of this country'. His Lordship cited Rustomjee v R (1876) 1 QBD 487; 2 QBD 69 and Civilian War Claimants' Association Ltd v R [19321 AC 14, cases in which a subject unsuccessfully sought to enforce against the Crown obligations arising under a treaty. In de Smith's Judicial Review of Administrative Action (4th ed) p 499, the matter is summarized in the following words: 'Again, neither a declaration nor any other judicial remedy is obtainable for the purpose of ... securing performance of an international obligation undertaken by the Crown unless the obligation has been incorporated into municipal law by statute.'"

The case put for the applicant is that the decision was made by the respondent under the Migration Act 1958 (Cth) and in pursuance of the powers conferred upon him by that Act. Sections 6 and 6A provide for the grant of entry permits to persons who wish to enter or who have entered Australia. Section 6(2) provides: -

"6.        (2)        An officer may, in accordance with this section and at the request or with the consent of a non-citizen, grant to the non-citizen an entry permit."

This sub-section must be read with s 5(1AA) which provides: -

"5.        (1AA)    Any power that may be exercised by an authorized officer or by An officer under this Act may also be exercised by the Minister."

Section 6A(1) (C) 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 -

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."

Section 6(1) provides that a person who enters Australia without obtaining an entry permit is a prohibited non-citizen and s 7(3) provides that upon the expiration or cancellation of a temporary permit, the person who was the holder of the permit becomes a prohibited non-citizen unless a further entry permit applicable to him comes into force upon that expiration or cancellation. Section 27 provides, in substance, that a prohibited non-citizen who remains in Australia is guilty of an offence against the Act punishable upon conviction of a fine not exceeding $1000 or imprisonment for a period not exceeding six months. Section 18 provides that the Minister may order the deportation of a person who is a prohibited non-citizen. Sections 12 and 14 confer discretions upon the Minister to order the deportation of certain persons who are not prohibited non-citizens. Other powers of expulsion are conferred by enactments such as the Extradition (Commonwealth Countries) Act 1966 (Cth), the Extradition (Foreign States) Act 1966 (Cth) and Div 3 of Pt IXA of the Defence Act 1903 (Cth).

In Musgrove v Chun Teeong Toy [1891] AC 272 the Judicial Committee of the Privy Council left open the question of the prerogative power of the Executive Government of Victoria, derived from the Crown, to refuse permission to an alien to enter Victoria or to expel an alien from Victoria. But whatever was, at one time, the common law prerogative power of the Crown in this matter, and that clearly was an arguable matter, at the present time the law with respect to the entry of persons to Australia and with respect to their expulsion is regulated by statute.

Mr L Boccabella, of counsel, who appeared for the applicant, thus submitted that the decision as to refugee status was made under and by virtue of the Migration Act 1958 (Cth), including s 6A(1)(c) thereof.

Mr R O'Regan, of counsel, who appeared for the respondent, submitted that the decision refusing refugee status for the applicant was made pursuant to a prerogative of the Crown to implement international treaty obligations. However, it is one thing to say that the Executive has a prerogative power to enter into international treaties and obligations on behalf of Australia. It is quite another thing to say that the Executive has a prerogative power to implement such a treaty or obligation within Australia. As I have already mentioned, the powers which the Minister has with respect to the entry into Australia of refugees and their stay in Australia are statutory powers, not prerogative powers. And a determination of refugee status is primarily of moment to the exercise of those statutory powers. The Minister has no prerogative power to make a binding determination as to refugee status. But he has statutory powers which enable him to permit persons to enter and to remain in Australia and to expel persons from Australia. The status of such persons as refugees is a relevant factor to be considered in the exercise of those statutory discretions.

Mr O'Regan next submitted that the decision with respect to refugee status was merely a pre-condition to the exercise of the power conferred by s 6(2). Mr O'Regan did not refer to my decision in Gourgaud v Lawton (1982) 42 ALR 117, but the principles on which he relied were applied by me in that case. I there held that the decision which was under review was not an "ultimate or operative determination" and that the person who engaged in the conduct under review had not "... engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which the Act applies…" within the meaning of s 6(1).

However, the present is a very different case. Prior to the enactment of s 6A of the Migration Act 1958 (Cth), it was possible for the Minister to consider the status of a person as a refugee at the same time as he considered whether or not to grant an entry permit to that person. But s 6A now requires, as a matter of law, that the Minister must first consider the question of refugee status and make a written decision upon that aspect before turning his attention to the question of the grant of a permanent entry permit. The Act thus requires the Minister to divide his decision-making. He is not empowered to grant a permanent entry permit to a person who is in fact a refugee unless he has first determined in writing that that person has the status of a refugee and unless that person also holds a temporary entry permit. The Migration Act 1958 (Cth) therefore requires that at least three separate decisions be made with respect to a person who enters Australia and seeks to be recognized as a refugee from another country. Those three separate decisions are: the grant of a temporary entry permit, the determination of refugee status, and the grant of a permanent entry permit.

In the circumstances, it cannot be said that consideration of refugee status is not an ultimate and operative determination. If refugee status is refused, the refusal of the status will preclude the grant of a permanent entry permit. Thus, the determination with respect to refugee status is a decision which has legal effect and which, while not determining that a permanent entry permit will be granted, nevertheless is a final and operative determination with respect to refugee status which is required by s 6A(1)(c) to be made prior to the consideration of the grant of a permanent entry permit.

Mr. O'Regan submitted that, by dividing the decision-making process, s. 6A merely confirmed what already occurred. He adduced no evidence concerning this, but I am prepared to accept that there is public knowledge of the operations of the Determination of Refugee Status Committee (DORS Committee) and of determinations of the Minister made on recommendations of that Committee. Mr O'Regan submitted, in effect, that, prior to the enactment of s 6A, Ministers determined refugee status independently of decision-making under s 6, that those determinations were made without legislative authority or backing and that s 6A(1)(c) does no more than refer to refugee determinations made outside statute law. But, whatever the position prior to the enactment of s 6A, that section "now recognizes the issue of refugee status and requires that issue to be determined by the Minister separately from his consideration of the grant of a permanent entry permit. It gives statutory recognition to his determination of refugee status, for his determination in writing now either satisfies one aspect of the matter or, if it is a refusal of the status, precludes further consideration".

Mr O'Regan also relied upon the second reading speech of the Minister introducing the Bill to enact s 6A. But I see nothing in that speech which assists the matter. Mr O'Regan submitted that it was not the intention of the Parliament to enact the 1951 Convention and the 1967 Protocol as part of domestic law. Plainly it was not, and s 6A has not done so.

I am, therefore, of the view that the decision of the Minister refusing refugee status to the applicant was a decision made under an enactment and the applicant, being aggrieved, thereby, was entitled, pursuant to s 13(1), to request reasons for the decision.

If I were wrong in that view, I would hold that the determination of refugee status was a report within the meaning of s 3(3) the ADJR Act which was a required pre-condition of the making of a decision under an enactment and therefore itself a decision to which the ADJR Act applied. In effect, a determination of refugee status is a report that the person to whom the determination refers is or is not a refugee within the meaning of the 1951 Convention and the Protocol. In the past, the DORS Committee has made recommendations with respect to that matter, but the Minister has determined the status. In my opinion, his determinations have reported on refugee status. Section 6A now makes that determination a pre-condition of a decision under s 6(2A). Therefore, the pre-requisites of s 3(3) of the ADJR Act would be satisfied if the position was, contrary to my view, that a determination of refugee status by the Minister was not itself an "ultimate or operative determination".

I shall therefore declare that the applicant was a person entitled to make a request to the Minister under s 13(1) of the ADJR Act for the reasons as to his decision refusing refugee status to the applicant.

The applicant's costs of this application should be paid by the respondent.

Solicitors for the applicant: South Brisbane Community Legal Service Inc.

Solicitor for the respondent: Australian Government Solicitor.