Gunaleela and Others v Minister for Immigration and Ethnic Affairs and Others

GUNALEELA and OTHERS v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and OTHERS

The four appellants, who were citizens of Sri Lanka and Tamils, had left their homes because of violent incidents affecting their families and possessions in northern Sri Lanka. After staying in India they travelled to Fiji and during their return journey to India, whilst in transit in Sydney, applied for refugee asylum in Australia.

As a result of decisions made by the second and third respondents, who were senior immigration officials of the Department of Immigration and Ethnic Affairs, and the recommendation of the Determination of Refugee Status Committee (the DORS Committee) the delegate of the first respondent, the Minister for Immigration and Ethnic Affairs, refused to grant refugee status to the appellants.

Although granted interlocutory relief, the appellants' applications for orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) were dismissed. The third respondent subsequently refused the appellants entry permits, temporary or permanent.

Held, per curiam:

(i)         Persons who do not hold a permit to enter Australia and arrive at an airport which they do not leave (unless for the purpose of being kept in custody under the Migration Act 1958 (Cth) ss 5(2), 36A(8)) have not entered Australia for the purposes of the Act.

(ii)         The decisions that the appellants did not have refugee status were not therefore made under s 6A(1)(C) of the Act, which requires an applicant for such status to hold a temporary entry permit. The decisions were not therefore reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

(iii)        It was not necessary to decide whether the decisions of the DORS Committee and the first respondent's delegate were susceptible to review under ss 3(5) and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) because they were "conduct engaged in for the purpose of making a decision" which was reviewable, namely the third respondent's refusal to grant the appellants entry permits.

Lamb v Moss (1983) 49 ALR 533, considered.

(iv)        The discretion to grant or refuse entry permits under s 6(2) of the Migration Act 1958 (Cth) is of a wide nature. Where an applicant has not yet entered Australia, the decision-maker is not necessarily bound to take into account as a relevant consideration the circumstance that the applicant wishes to achieve permanent resident status via a determination of refugee status under s 6A(1)(C). On the other hand, the decision-maker may properly take into account such a consideration and in a general way the existence of Australia's international obligations under the Convention Relating to the Status of Refugees 1951 (UN).

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 66 ALR 299, applied.

Azemoudeh v Minister for Immigration and Ethnic Affairs (1985) 8 ALD 281, distinguished.

(v)         The question could be left open whether there would be an error of law for the purposes of s 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in a case of misconstruction of a definition in a Convention which has not in terms been incorporated into municipal law. Such a misconstruction may be reviewable under s 5(1)(e) and (2)(g) of the Act as an unreasonable exercise of power.

(vi)        In any event, the third respondent had not erred in law in the construction or application of the definition of "refugee" in Art 1A of the Convention. The third respondent had not assumed that the subjective component of a fear of persecution in Art 1A required a person to be singled out or individualised in order to succeed in a claim for refugee status.

Rajudeen v Minister for Employment and Immigration (1985) 55 NR 129, followed.

Appeals

These were appeals from a decision of a single judge of the Federal Court dismissing applications for orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of decisions of the respondents refusing the applicants refugee status and entry permits to Australia under the Migration Act 1958 (Cth).

D M J Bennett QC and M B Smith for the appellants.

P Flemming QC and D K Catterns for the respondents.

Cur. adv. vult.

Sweeney, Lockhart and Gummow JJ. These are four appeals, being heard together by consent, from the judgment of a single judge of this court (Morling J) which dismissed four applications for orders of review under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act): see 74 ALR 252. The appellants are citizens of Sri Lanka. They sought orders quashing or setting aside decisions made in connection with their applications for permits to enter Australia and for the grant of refugee status.

Each of the appellants had left Sri Lanka and lived in India for varying periods. They claim to be related to each other. The journey which led to their entry into Australia commenced on 23 April 1987 in Madras, India. They travelled from Madras to Kuala Lumpur, Malaysia, then to Sydney and then to Nadi, Fiji. They returned to Sydney on 26 April 1987 aboard Continental Airlines flight 9 from Fiji which arrived at about 11 am. They held reservations on Malaysian Airlines flight 2 to Kuala Lumpur departing from Sydney at 12 noon that day. They did not catch that flight but remained in the transit area and presented themselves at the passport examination line at about 3 pm. They presented incoming passenger cards indicating that they were migrating to Australia. None of the appellants held visas or entry permits for entry into Australia.

The appellants indicated to the officer at the passport examination line that they sought refugee asylum in Australia because they were Tamils. The second respondent, Mr Sant, who is a senior immigration inspector of the Department of Immigration and Ethnic Affairs and an authorised officer for the purposes of ss 6(2) and 36A(3) of the Migration Act 1958 (the Migration Act), interpreted the request of the appellants to mean that they sought refugee status in Australia, and proceeded on that basis. He discussed the matter with senior officers of the Department of Immigration and Ethnic Affairs in Sydney and in Canberra. He then gave the appellants the opportunity to complete application forms for refugee status. They appear to have been completed during the evening of 26 April 1987. It was plain to Mr Sant that the applications would not be finally dealt with that night. At about 11 pm he refused to grant entry permits to the appellants and gave directions pursuant to s 36A(3) of the Migration Act that they be held in custody. The appellants were taken to the Villawood Detention Centre.

On 27 April 1987 Mr Davidson, the third respondent, who is the Acting Director of the Immigration Branch of the Department of Immigration and Ethnic Affairs in Sydney and an authorised officer for the purposes of s 36A(4) of the Migration Act, decided to serve on the station manager of Continental Airlines a requirements notice under that section. He directed an officer of the Department to serve the notice on the airline and this was done at about 10 pm on 28 April 1987. Mr Davidson considered that a notice under the section should be made within 48 hours of the appellants being taken into custody. He took into account the fact that the applications for refugee status were still under consideration. He also took the view that, should those applications ultimately prove unsuccessful, the Department should be in a position to give effect to the decisions to refuse entry permits to the appellants by requiring Continental Airlines to remove the appellants from Australia at no cost to the Commonwealth.

The appellants were interviewed on 27 April 1987 at the Villawood Detention Centre with the assistance of a Tamil interpreter. They were informed that the purpose of the interview was to obtain from them information which would be placed before the Determination of Refugee Status Committee (the DORS Committee) so that it could consider all relevant facts and make a recommendation to the Minister. The DORS Committee consists of representatives of the Department of Immigration and Ethnic Affairs, the Department of Foreign Affairs, the Department of the Attorney-General and the Department of the Prime Minister and Cabinet. A representative of the United Nations High Commissioner for Refugees attends as an adviser and participates in the deliberations of the Committee. The functions of the DORS Committee are explained in Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 300-1; 61 ALR 609 at 616-7, and Yaa Akyaa v Minister for Immigration and Ethnic Affairs, judgment of Gummow J, unreported, 5 May 1987. There was evidence in the present case that in approximately a year the Committee had considered 86 applications by Tamils and that some 13 of them had been approved for refugee status.

Each of the appellants made lengthy statements in support of their applications for refugee status. The primary judge summarised the material provisions of each of the statements and we shall adopt his Honour's summary, supplemented by a few matters, which were the subject of specific submissions to us.

Premanaerthan Gunaleela, the first appellant, was born near Jaffna. She is a Tamil. She claimed that since 1984 the army had regularly harassed persons in her village and arrested young people on suspicion of association with militant organisations. She said that her 15 year old son was arrested in 1984 but was released after a payment was made to some soldiers. In August 1986 she sent her son to Norway to be with one of her other sons. Her husband lives in Canada. During visits to her village by the army the villagers would run away and the army would destroy or take their possessions. She said that in late 1986 her house had been destroyed by a bombardment. Neither she nor any members of her family have ever been members of any political organisation, nor have they had any contact with the Tamil Tigers or other militant organisations opposed to the government of Sri Lanka. She obtained her passport in 1986, left her two remaining children in the local mission and convent, and went to India in February 1987. She found it difficult to live in India and when she approached the Indian authorities concerning refugee status they gave her a temporary visa instead. She said that she did not wish to return to Sri Lanka as she had no place to live there and the army continued to undertake atrocities against residents of her village. She also claimed that the authorities would want to know why she had left Sri Lanka.

Anthony Karunakaran, the second appellant, claims that his home and fishing business (consisting of his boats, nets and other equipment) had all been destroyed by the army. He owned 15 acres of paddy fields, but the land had been taken over by Sinhalese people because the army had forced all the people in his village to leave it while they were searching for terrorists. He said that he had moved to another village where he also owned a house. However, in October 1986 he had been assaulted on several occasions by the army while at that village. Up to July 1986 he had supported himself by working as a fisherman for a friend, but he then decided that he should leave Sri Lanka. He then sold some of his land and his mother's jewels. He travelled to Colombo and left for India in January 1987. He has never been a member of any political organisation nor helped any of the militant movements. Some of his relatives were involved in the militant movements, but they are now all dead. He did not apply for refugee status in India. His original intention in leaving India was to go to Canada with his sister. He said that he could not now return to Sri Lanka as he has nowhere to stay. He claimed that he feels he would be arrested at the airport if he returns.

Chelliah Gunaranji, the third appellant, is also a Tamil from the Jaffna area. According to her statement, in 1986 her father, who was a police officer, was shot dead when caught in a battle between the army and a group which she described as "the boys". After her father's death she moved with her mother and sister to another village. She said that her sister was raped by a soldier when the army visited the area. She herself, on another occasion, was taken by the army from the house in which she was living and assaulted and questioned as to the whereabouts of her brother. She was asked whether he was involved with the Tamil Tigers. She said that the house in which she was previously living in her home village had been destroyed in 1986. Neither she nor any member of her family had any connections with the militants in Sri Lanka but sometimes the militants would call at her village and give the inhabitants food. At other times the inhabitants had to provide food in return to the militants. She has a brother who has been living in Canada since 1986. She obtained a passport in early 1986 and had intended to go to India so that she could do higher studies and because her mother wished her to leave Sri Lanka for her safety. She arrived in India in February 1987, but knew no one in that country. She does not wish to return to Sri Lanka as she has no place there in which to live nor does she have any money. She said that the army had destroyed most of her village.

Bevany Sundaralingan, the fourth appellant, is single. She said that the army had destroyed most of her family's belongings. The contents of her house were destroyed in 1984 and later in the same year the house itself was destroyed by mortar fire. She said that she and her father had been assaulted by the army when their house was attacked. Neither she nor her family have any association with political organisations in Sri Lanka. She lived with relatives after her father's property was destroyed. Her father was still running a shop when she left for India in 1986. She spent nine months in India, leaving in April 1987 intending to go to Canada to join her fiancé. She heard on the radio in India that her village had been destroyed and she does not know her father's current circumstances. She obtained her passport in 1984 as she wished to leave Sri Lanka due to the problems there. She did not apply for refugee status while in India or Fiji. She does not wish to return to Sri Lanka owing to the continuing activities of the army.

The claims of the appellants for refugee status were considered by the DORS Committee on 1 May 1987. The meeting of the Committee was attended by representatives of the Departments to which we have already referred and a representative of the United Nations High Commissioner for Refugees.

The minutes of the meeting record, inter alia, the following:

In the case of the first appellant the minutes state:

"DIEA VIEW [ie Department of Immigration and Ethnic Affairs]:

•      Though her house may have been destroyed it was during a general bombing attack - neither she nor any family member has a political profile.

…

•      She may have experienced some harassment and problems as a result of general unrest, however on the basis of her claim she has not individualised a claims [sic] to refugee status within Convention terms.

…"

"DFA VIEW [ie Department of Foreign Affairs]:

•      We agree with DIEA's assessment that the harassment experienced by the applicant was a result of the general unrest in Sri Lanka.

..."

With respect to the second appellant the minutes state:

"DIEA VIEW:

•      In late, 1986 he claims he was attacked and beaten by the army; but this appears to be of a random nature, other people on the road also being attacked.

…

•      He was never a member of any political group and has never been detained or interrogated.

•      The applicant could return to Sri Lanka without fear of individual persecution in DIEA's judgment.

..."

"DFA VIEW:

•      DFA accepts that the applicant could have been assaulted but there is no evidence to suggest that he is wanted by the authorities and agree with DIEA that what the applicant has received is the random attention of the security forces in Sri Lanka. On this point DFA would like to draw attention to the fact that the army is in a state of siege on the Jaffna Peninsula [sic] and because of this is much less active in patrolling the Jaffna Peninsula than in other areas.

...

•       Regarding his claim that the Sri Lankan authorities would force him to return to India, DFA have not received any reports which would support such a claim.

•      The motivation for the applicant's departure from India appears to be economic migration, as in the case of the other three applicants. This is evidenced by his statement that he did not apply for any form of refugee status in India as he did not wish to stay there.

•      DFA does not believe that the Sri Lankan authorities would be interested in the applicant on return nor that he was fleeing execution when he left India."

"UNHCR VIEW [ie United Nations High Commissioner]:

…

•      In view of the applicant's experiences and those of his family, we consider his fears for his safety to be valid.

•      UNHCR considers that return to Sri Lanka is not a viable option, and noting that there is no obstacle to his return to India, recommend that Mr Karunakaran be permitted to return to the third country."

The minutes state with respect to the third appellant:

"DFA VIEW:

...

•      We agree that Ms Gunaranji and her family suffered during the 1983 communal conflicts.

•       However, she has not individualised a well-founded fear of persecution or demonstrated that the Sri Lankan authorities would be interested in her on return.

..."

"UNHCR VIEW:

•      There appear to be several factors which motivated Ms Gunaranji's departure: She refers to regular army raids on her town, and regular visits by the army which accused her brother in Canada of being a member of the Tiger movement. From these claims it seems that the army had concentrated attention on her family.

...

•      UNHCR expresses sympathy for the applicant, whose family has received specific attention from the army and who risks being persecuted for the imputed political opinion of her brother. From the information she has made available, we believe she has a well founded fear of being persecuted if returned to Sri Lanka.

•      The question is whether the applicant was afforded protection in India. Although conditions there may have been difficult, no evidence exists to suggest that she was under immediate threat in India.

•      UNHCR recommends that, if possible, the applicant should return to India.

•      A refugee, but may be able to return to India."

The minutes state with respect to the fourth appellant:

"DIEA VIEW:

•      We note the problem concerning her passport photograph which document fraud expert state has been substituted. This causes us some credibility concerns.

...

•      Neither she nor her family had a political profile. She has never been detained, arrested, interrogated or imprisoned. She had been able to live in India.

•      Though she may have been caught up in general unrest in Sri Lanka at some stage; on the basis of her claim she has not made a claim to refugee status in terms of the Convention.

..."

"DFA VIEW:

...

•      DFA considers that she enjoyed the effective protection of India but left for economic reasons. She did not apply for any form of refugee status in India or Fiji as she 'wanted to apply in Australia'."

The reference in the minutes to passport problems is to the fact that the fourth appellant held a false passport. When the fourth appellant arrived in Australia she had a Sri Lankan passport in the name of Kalyani Paramsothy. It was not her passport, but the passport photograph was a photograph of her which had been inserted into the passport of another person. The fourth appellant said that as she could not go from her village in northern Sri Lanka to Colombo because of the troubles in Sri Lanka, a friend of her father obtained some other person's passport for her. She gave him her photograph so that it could be placed in the passport in substitution for the real photograph. She initially denied this to the Department's officers but later agreed that it was true.

The DORS Committee unanimously recommended that the appellants not be recognised as refugees within the meaning of the Convention relating to the Status of Refugees of 1951 or of the Protocol relating to the status of Refugees of 1967

In Art 1A of the 1951 Convention Relating to the Status of Refugees (the Convention) a "refugee" is defined as "any person who:… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence …, is unable or, owing to such fear, is unwilling to return to it".

When considering the applications of the appellants for refugee status the DORS Committee had available to it material which included documents made available by the Australian section of Amnesty International. Those documents included allegations of executions, tortures and disappearances in Sri Lanka with particular reference to Tamils. Other documents before the DORS Committee were reports of Law Asia and the International Commission of Jurists relating to the general pattern of violations of human rights in various countries and Sri Lanka in particular.

Mr Dennis Richardson is the delegate of the Minister for Immigration and Ethnic Affairs (the Minister) for the purpose of the determination of refugee status. He received the DORS Committee's recommendation, accepted it and refused to grant refugee status to the appellants. When making his decision Mr Richardson had regard to the application forms filled out by the appellants, the transcript of their interviews on 27 April 1987, the minutes of the DORS Committee meeting of 1 May 1987 and a submission from the DORS Secretariat.

Mr Richardson was requested by each of the appellants to furnish a statement of reasons pursuant to s 13 of the Judicial Review Act, which he did. There are four statements of reasons. It was common ground before the primary judge that if one of the applications failed they would all fail. His Honour therefore took the course of referring only to the reasons given by Mr Richardson for his decision in respect of Chelliah Gunaranji's (the third appellant's) application. We shall take the same course. Mr Richardson's statement of reasons included the following:

"5.        I accepted the recommendation of the Determination of Refugee Status Committee.

…

"7.        I noted that the applicant's father was a police officer but that the applicant and her family had no political associations. Her father's death appears to have been accidental, while the other incidents affecting her family I did not consider were directed specifically towards the applicant or her family, but rather to have been random incidents and part of the army's general harassment in the area.

"8.        I considered then that the applicant had no political or other profile that would make her of interest to the Sri Lankan authorities, nor had she suffered persecutory treatment within the meaning of the Convention. In this context, I noted that she had been able to obtain her passport and apparently leave Sri Lanka with no difficulties.

"9.        I accepted the views of the Committee members that the applicant had achieved effective protection in India, and had left for apparent economic reasons and a secondary desire to reach Canada.

"10.      I considered that the applicant's claimed fear of return to Sri Lanka was based on the general situation in Sri Lanka, and did not amount to a well-founded fear of persecution.

"11.      I concluded that the applicant did not have a well-founded fear of persecution should she be returned to Sri Lanka. Accordingly, I determined she was not a refugee within the meaning of the Convention and Protocol."

Mr Richardson's decision refusing refugee status to the appellants was conveyed by letter to them on 6 May 1987.

On 29 April 1987 Mr Fitzgerald, of the Legal Aid Commission New South Wales, wrote a letter on behalf of the appellants to the Regional Director of the Department of Immigration and Ethnic Affairs requesting that the 36A(4) requirements be extended indefinitely and that temporary entry permits of some months duration be granted to the appellants.

On 1 May 1987 Mr Davidson spoke to Mr Fitzgerald and told him that the Department did not regard the grant of temporary permits as appropriate and that the Department would not request Continental Airlines to delay provision of passage, pursuant to the requirements of s 36A(4), pending the outcome of a case between different parties which Mr Fitzgerald apparently thought was relevant to the questions arising in this case.

The appellants commenced these proceedings and on 1 May 1987 a single judge of this court, on the application of the appellants, made an interlocutory order restraining the Minister from taking steps to remove the appellants from Australia. On 1 June 1987, and after further interlocutory proceedings in the court on 29 May 1987, the solicitor for the appellants wrote to Mr Davidson seeking the making of decisions as to the grant or refusal to the appellants of temporary and permanent entry permits.

On 15 June 1987 Mr Davidson made a decision not to grant to the appellants entry permits, temporary or permanent, under s 6(2) of the Migration Act. Mr Davidson furnished a statement of reasons, pursuant to s 13 of the Judicial Review Act, for his decision of 15 June 1987 in which he said that, in making the decisions, the material before him was as follows:

(a)        copies of the applicants' passports;

(b)        copies of the applicants' tickets;

(c)        copies of the applicants' incoming passenger cards;

(d)        the Migration Act 1958;

(e)        copies of the directions to hold in custody;

(f)         copies of notes prepared by the interviewing officer at Sydney Airport;

(g)        copies of the transcripts of the applicants' records of interview held on 27 April 1987 with Mr M Jones;

(h)        copies of the DORS Committee minutes of 1 May 1987 in respect of each applicant;

(i)         copies of departmental letters of 6 May 1987 advising of rejections of the DORS applications;

(j)         a copy of the judgment of French J, No WAG 35 of 1987 dated 5 June 1987;

(k)        a copy of departmental policy circular, PC 1330;

(l)         advice of directions made by Einfeld J on 29 May 1987 regarding the applicants;

(m)       Legal Aid Commission letter of 29 April 1987;

(n)        Legal Aid Commission letter of 4 May 1987;

(o)        Legal Aid Commission letter of 1 June 1987.

Mr Davidson's reasons included the following statements:

"23.      Under s 6(2) it is open to an officer to grant (or not to grant) an entry permit either temporary or permanent.

...

"26.      Their claims for refugee status have been fully considered by the DORS Committee, the body established by the A/A [Australian] Government to meet its international obligations in such matters and in which the UNHCR participates.

"27.      The DORS Committee's recommendations were accepted by the Minister's delegate and the applicants informed by letter 6 May 1987 that their. DORS applications had been rejected; ie that A/A did not accept that their circumstances were such that they should be accorded recognition as refugees.

...

"29.      As stated earlier the applicants claims for refugee status have been rejected by the proper authority. They are not refugees.

...

"31.      One, following- repeated denials, later acknowledged that the passport she presented had been photo substituted. Those false claims to an officer, as quite distinct from the document alteration itself, bring her general credibility into question.

"32.      None of the applicants has claimed to have themselves been actively involved in anti-government activity in Sri Lanka nor to have had a high profile amongst their fellow Tamils which would be likely to cause them to be singled out from the commonality of their bretheren [sic] in their native country. They are ordinary Tamil Sri Lankans.

"33.      They have not claimed there exists and I am not aware of the existence of any Sri Lankan law which would force them, once within their native country to return to the civil strife affected areas thereof. In my view they would have no obligation to do so.

"34.      They set out as a group on the journey which brought them here. They claim to be related and thus to have knowledge of each other prior to this journey. I am of the view that should they return to Sri Lanka their group bond would remain intact and tend to lessen by sharing the burden any general hardship encountered in living in Sri Lanka as ordinary Tamils.

"35.      All have Sri Lankan passports. None claim to have by-passed normal Sri Lankan immigration departure processing and therefore should not suffer a different experience upon return to Colombo Airport as ordinary Tamil Sri Lankan citizens. The airport is not a zone of civil strife. Further it is relevant to note here that passengers refused entry normally are unescorted on the outward flight and are normally in possession of their travel documents. These four individuals would be indistinguishable from other ordinary Tamil Sri Lankans passing through Colombo Airport in respect of their actual re-entry to their native country.

"37.      The applicants could have sought temporary asylum [sic] in India. They did not do so. Had they done so it would have been open to them to apply for entry to Australia temporarily or for entry to Australia's Refugee or Special Humanitarian Programs.

"38.      To grant entry permits in these circumstances would be to substantially advantage these applicants over those applicants overseas who have properly applied for entry and await processing for temporary entry or if successful migrant entry applicants, for a place in Australia's limited Migration Program.

...

"40.      I have formed the view, whilst the applicants may or may not suffer some hardship upon return to Sri Lanka, that in the former event it would not be so severe as to justify, in the light of all the circumstances of these cases, the grant of entry permits, temporary or permanent, under s 6(2) MA [Migration Act]. Therefore I have decided not to grant entry permits under s 6(2) MA."

The proceedings at first instance

At the trial, the appellants sought relief under the Judicial Review Act on various grounds, not all of which were re-agitated on appeal. A challenge was made to decisions under s 36A(4) of the Migration Act to serve notices upon Continental Airlines. Morling J rejected the submissions of the appellants on this part of the case and no appeal was taken in respect of that rejection.

The appellants also contended that the decisions of Mr Richardson denying "refugee status" were made under s 6A(1)(c) of the Migration Act thus attracting review under s 5 of the Judicial Review Act. The respondents contended, and his Honour accepted, that there had been no decision under that provision. This point was re-agitated on appeal and submissions were made that, even if review was not available under s 5, it was available under s 6 of the Judicial Review Act.

The appellants also sought at the trial, and before us, review under s 5 of decisions to refuse entry permits viz the decisions of Mr Davidson made on 15 June 1987 not to grant entry permits, temporary or permanent, under s 6(2) of the Migration Act. His Honour rejected submissions that there had been breaches of the rules of natural justice, holding that first, it was doubtful if those rules had applied in respect of the applications for entry permits and that, in any event, even if they did apply, they had been observed. The "natural justice" issues were not canvassed on the appeal.

His Honour also said that it was plain that Mr Davidson had taken into account the claims to refugee status, the DORS Committee recommendations and Mr Richardson's acceptance thereof, and continued:

"The decisions to refuse to grant entry permits to the applicants were attacked on the ground, inter alia, that the decision maker misconstrued the definition of the term 'refugee' in the Convention. It was said that the misconstruction arose because the decision maker read into the meaning of 'persecution' on the ground of race a requirement that the relevant acts of persecution be directed specifically at the person claiming refugee status. I think this submission also fails"

On the appeal these submissions were renewed and developed by the appellants. For their part, the respondents submitted that any misconstruction of the definition of "refugee" did not amount to an error of law and that, in any event, there had been no misconstruction of the definition.

The legislation

Before discussing further the issues on the appeal it is necessary to state some of the relevant provisions of the Migration Act, namely:

"6(1)     A non-citizen who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited non-citizen.

"(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.

"(3)       An entry permit shall be in a form approved by the Minister and shall be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both.

...

"(5)       An entry permit may be granted to a non-citizen either upon his arrival in Australia or, subject to section 6A, after he has entered Australia (whether or not that entry took place before, or takes place after, the commencement of this Part).

"(6)       An entry permit that is intended to operate as a temporary entry permit shall be expressed to authorize the person to whom it relates to remain in Australia for a specified period only, and such a permit may be granted subject to conditions.

...

"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 to 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.

"36A....

"(3)      Where a person, not being a person exempted, by instrument under the hand of the Minister, from the requirements of Division 1A, who travels by aircraft from a place outside Australia to a proclaimed airport has sought and been refused an entry permit at that airport or at any other airport in Australia at which he has called in the course of that travel, he may, if an authorized officer so directs, be taken into custody at that first-mentioned airport by an officer and kept in such custody, either at that first-mentioned airport or elsewhere, as an authorized officer directs until such time as he is removed from Australia in accordance with sub-section (4) or until such earlier time as an authorized officer directs.

"(4)      Where a person is taken into custody under sub-section (1), (2) or (3) an authorized officer may, at any time within 48 hours after the person is so taken into custody, by notice in writing served on the master, owner, agent or charterer of the aircraft on which he travelled to Australia, require the master, owner, agent or charterer to remove the person from Australia at no charge to the Commonwealth.

...

"(8)       A person shall not, for the purposes of this Act, be deemed to have entered Australia by reason only of his having been taken from a proclaimed airport for the purpose of being kept in custody at a place outside a proclaimed airport in pursuance of sub-section (1), (2) or (3)."

We turn now to the issues on the appeal, dealing first with the decisions of Mr Richardson denying "refugee status".

Mr Richardson's decisions

Upon this aspect of the case his Honour held: "The only reference in the Act to a person having the status of refugee is found in s 6A(1)(c). The opening words of that provision make it plain that it applies only to non-citizens after their entry into Australia. Where a person is the holder of a temporary entry permit issued under the Act and the Minister makes a decision that he does not have the status of refugee referred to in s 6A(1)(c) that decision entities the person in respect of whom it is made to invoke the provisions of the Judicial Review Act - see Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290; 61 ALR 609. However, in the present cases, the applicants entered Australia without temporary entry permits. Accordingly they are deemed not to have entered Australia - see s 36A(8) of the Act. In these circumstances, it cannot be said that the decisions that the applicants did not have the status of refugees were made under s 6A(1)(C)." We agree; our reasons are as follows.

The Migration Act provides in Pt II, Div 1 for the issue of what are designated "entry permits". A distinction is drawn (in s 6A(8)) between temporary entry permits and other entry permits. These other permits are colloquially described as conferring permanent resident status. A non-citizen who enters Australia without an entry permit thereupon becomes a prohibited non-citizen (s 6(1)). The appellants in the present case sought "refugee status". That is not a term found in the provisions of Pt II, Div 1 of the Migration Act, save in s 6A(1)(C).

Section 6A(8) requires the expression "an entry permit" in the opening words of s 6A(1), "an entry permit shall not be granted", to be read as referring to an entry permit other than a temporary entry permit, ie as a reference to a permit conferring permanent resident status.

Section 6A is not concerned with the issue of permits before entry into Australia. The purpose and effect of s 6A is to make it more difficult for immigrants who have entered Australia later to gain permanent resident status. Wilson J so described s 6A in Kioa v West (1985) 159 CLR 550 at 600; 62 ALR 321 at 358-9, and in the second reading speech in the Senate on the Bill for what became the Migration Amendment Act (No 2) 1980 (which introduced s 6A), the provision was described as design to restrict by law the categories of immigrants eligible to be granted permanent resident status subsequent to their arrival in Australia (Hansard, The Senate, 5 December 1980, 474-8): see also the observation of Gibbs CJ in Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 296; 61 ALR 609 at 613. The section achieves this objective by confining the generality of the discretion of the decision-maker and by requiring fulfilment of one or more designated conditions.

Whilst one of those conditions, that in s 6A(1)(C), includes within it provision for determination as to refugee status, this is in a context which restricts rather than expands the standing of non-citizens who are already within Australia. The references in submissions to us in the present case to "refugee status" tended to divert attention from threshold issues in respect of applications for the grant to the appellants of entry permits before they had entered Australia in the statutory sense, and from the nature and correct manner of exercise of the discretion attending the issue of entry permits to such persons before their entry into Australia.

An entry permit intended to operate as a temporary entry permit shall be expressed to authorise the holder of the permit to remain in Australia for a specified period only; such a permit may be granted subject to conditions (s 6(6)). A temporary permit may be cancelled at any time by writing under the hand of the Minister and the discretion of the Minister in this regard is stated to be absolute (s 7(1)).

As appears from the passage of the judgment which we have set out earlier in these reasons, his Honour held that the appellants had not, for the purposes of the Migration Act, entered Australia, although present on its territory. The statutory concept of entry into Australia operates so as to deny that characteristic to persons who have arrived at a proclaimed airport and have not left the airport, or who have left it, but only for the purpose of being kept in custody (ss 5(2) and 36A(8)). Some comment was made in submissions by the appellants upon these provisions and to what was said to be a legal fiction. However, provisions of this kind are by no means unusual in other countries; comparison of the Australian legislation may be made with s 11 of the Immigration Act 1971 (UK). The operation of the British legislation was recently considered by the House of Lords, in a decision to which we were referred (for other purposes) by counsel for the appellants: R v Secretary of State for Home Department; Ex parte Bugdaycay [1987] 2 WLR 606 at 614-15. Such provisions may be read as reflecting the concern of sovereign states to exercise control over entry of non-citizens into their territory and to avoid any detraction from that authority which otherwise might follow from administrative procedures for dealing with applications for entry. We return to this aspect of the matter later in these reasons when dealing with Mr Davidson's decisions.

In our opinion, his Honour was correct in holding there had been no decisions under s 6A(1)(C) of the Migration Act and so no decisions reviewable under s 5 of the Judicial Review Act.

On the hearing of the appeal, the appellants submitted a further argument concerning the susceptibility to review under the Judicial Review Act of the decisions of Mr Richardson and (as a separate or related matter) the recommendations of the DORS Committee. These the appellants' counsel described collectively as "the refugee status decisions" It was Act applied so as to render them reviewable under s 5, nevertheless they involved conduct engaged in for the purpose of the making of decisions by Mr Davidson to refuse to the appellants entry permits. It was urged that as the decisions of Mr Davidson were indisputably decisions to which the Judicial Review Act applied, conduct engaged in for the purpose of making those decisions was reviewable under s 6 of the Judicial Review Act.

The appellants referred to s 3(5) of the Judicial Review Act which provides:

"A reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an enquiry or investigation."

The respondents submitted that in order to fall within the terms of s 6, even when read with the expansive provisions of s 3(5), the person engaged in the anterior or preparatory conduct must be the person who has made or will make the decision to which s 5 of the Judicial Review Act applies. The respondents then pointed to the facts of the present case and to the differing identities of the actors involved.

Section 6(1), so far as is material states:

"Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Court for an order of review in respect of the conduct..."

As a matter of first impression, there is much force in the respondents' submissions. To speak of a person engaging in conduct for the purpose of making a decision would ordinarily be read as identifying antecedent conduct by the decision-maker. On the other hand, it is undoubtedly true that much preparatory "conduct" will be engaged in by administrators other than the individual upon whom the ultimate power of decision is conferred. To read the legislation as the respondents urge might deprive it of the utility which as remedial legislation it might be expected to have.

In the present case, the sequence of events between the arrival of the appellants at the airport on 26 April 1987 and the making by Mr Davidson of his decisions of 15 June 1987 is not straightforward and there is, on the facts, room for debate as to whether the recommendations of the DORS Committee and the decisions of Mr Richardson have the necessary purposive connection with the decisions of Mr Davidson of 15 June, as required by s 6 of the Judicial Review Act. In this connection we refer to what was said by this court in Lamb v Moss (1983) 49 ALR 533 at 558:

"Inevitably, the statutory language presents difficulties in relation to what is conduct for the purpose of making a decision. It seems clear that sub-s (5) of s 3 of the Act provides an expansive and not an exhaustive definition. Apart from what is included by that sub-section, investigation is called for as to the purposive relationship between the conduct and some decision of the requisite character. Beyond that, concern is centred on whether conduct is 'preparatory' to a decision. Not every prior step will be properly so described.

"It may often, if not always, be necessary to investigate the proximity of the connection between the conduct and the decision and perhaps to have regard to the intention with which the conduct occurred. A further obvious potential difficulty which may intrude is the necessity for an applicant to be aggrieved by the conduct at a time when details of the actual decision may be unknown and, more particularly, when it may not be known whether the decision will be favourable or unfavourable. However, in view of the terms of s 3(5), perhaps even taking evidence and/or continuing with an inquiry may constitute conduct which can be called in question."

In the present case we do not find it necessary to resolve the issues that arise as to the construction of s 3(5) and s 6 of the Judicial Review Act. This is because the ultimate question in these proceedings concerns the error of law alleged to have been committed in construing and applying Art 1A of the Convention in regard to the "refugee status" of the appellants. As we have said, in making his decisions Mr Davidson had regard to the claims to "refugee status" and to materials which included copies of the DORS Committee minutes of 1 May 1987. We are of the view that whether the decisions under review are regarded as those of the DORS Committee, Mr Richardson or Mr Davidson, there was no error of law made in the course of dealing with the question of "refugee status". We will deal further with the issue of error of law under our consideration of the challenge to the decisions of Mr Davidson.

We turn now to the attack upon the exercise by Mr Davidson of the discretion not to grant entry permits, temporary or permanent, to the appellants.

Mr Davidson's decisions

The first questions that arise on this aspect of the appeals concern the nature of the discretion exercised by Mr Davidson in the circumstances that had arisen.

The Full Court of this court, on two recent occasions, has described the discretion to issue entry permits under the Migration Act, including temporary entry permits, as relevantly unfettered: Minister for Immigration and Ethnic Affairs v Conyngham (1986) 68 ALR 441 at 450-1; Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association (1987) 71 ALR 578 at 588. Further, as Morling J observed in his judgment in the present case, in Kioa v West (1985) 159 CLR 550 at 587; 62 ALR 321 at 348, Mason J (as he then was) said: "The grant of an entry permit is a matter of discretion. Indeed, the cancellation of a temporary entry permit is expressed to be a matter of absolute discretion: s 7(1). In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward."

These references to the wide nature of the discretion involved in the issue of entry permits, in particular temporary entry permits, are to be understood in the light of the principles propounded by the High Court in Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505, and later cases. Those principles appear from the following remarks of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR 299 at 309: "The factors that may be except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision maker may legitimately have regard.... The court will not find that the decision maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act."

Against this background, we now consider the nature and content of the discretion to issue entry permits to persons who have not entered Australia. An important consideration is that these provisions of the Migration Act give effect in Australian municipal law to the accepted principle of international law that every sovereign state has the power, as inherent in the nature of sovereignty, to forbid the entry of aliens into its territory and to admit them in such cases and upon such conditions as it may see fit to prescribe: Musgrove v Chung Teeong Toy [1891] AC 272 at 282-3; Nishimura Ekiu v United States (1892) 142 US 651 at 659; R v Macfarlane; Ex parte O' Flanagan and O' Kelly (1923) 32 CLR 518 at 532-3, 551-65, 578, 579-83; Ex parte De Braic (1971) 124 CLR 162; and Johnson: "Refugees, Departees and Illegal Migrants" 1980, 9 Syd L Ret, 11 at 24-26.

It is also significant that there will be an element of urgency presented by the appearance of persons at Australian ports of entry who seek the issue forthwith of temporary entry permits or of temporary and permanent entry permits. In many cases these persons might, as the legislation contemplates, earlier have taken steps outside Australia to have entry permits ready for issue on arrival in Australia: Minister for Immigration and Ethnic Affairs v Conyngham (1986) 68 ALR 441 at 451-2. In the present case, paras 37 and 38 of Mr Davidson's statement of reasons, which we have set out earlier in this judgment, indicate the significance that may properly he accorded to such considerations by a decision-maker. Further, as it applies to cases such as the present, s 36A provides procedures whereby the airline which brings the persons involved to a proclaimed airport in Australia may he obliged to remove those persons from Australia at no charge to the Commonwealth if the persons are refused an entry permit at the airport (sub-ss (3) and (4)). This emphasises the scheme of the legislation as one favouring the taking of steps prior to arrival to have entry permits ready for issue. In addition, the urgency which attends the disposition of applications for entry permits first made on arrival at a proclaimed airport in Australia is emphasised by the time constraints contained in s 36A for the utilisation by the Commonwealth of procedures there laid down. The airline may be required by the Commonwealth to remove the persons involved from Australia it no charge to the Commonwealth only if the notice in writing specified in s 36A(4) has been served on the airline within 48 hours after those persons have been taken into custody at the airport upon refusal of an entry permit: Faingold v Zammit(1984) 1 FCR 87 at 93-94.

Reference was made in argument before us to Azemoudeh v Minister for Immigration and Ethnic Affairs (1985) 8 ALD 281, but we regard that decision as one to be understood in the particular factual setting which gave rise to it. The case was unusual both as to the facts and the remedy, an interlocutory mandatory injunction obliging the respondent to take steps to arrange the return of the applicant to this country. The applicant had been "turned around" on his arrival at a proclaimed airport after his solicitor had been permitted, then denied, access to him. In the circumstances there was held to be a serious question to be tried as to whether the respondent had refused to consider upon its merits the applicant's applications for temporary and permanent entry permits. In our view, this case should not be treated as establishing any general principle.

Further, we observe that there appears in the legislation nothing to prevent it being administered so as to deal promptly with applications for temporary entry permits, and with applications for permanent resident status.

An examination of the subject matter scope and purpose of the Migration Act discloses, in our view, that, in the case of persons who have not yet entered Australia within the meaning of the legislation, a decision-maker dealing with a request for a temporary entry permit or for temporary and permanent entry permits is not necessarily bound to take into account, as a relevant matter (within the meaning of s 5(2)(b) of the Judicial Review Act), the circumstance that the applicant for the temporary entry permit wishes, if that permit is granted, to enter Australia and then to achieve permanent resident status, having then fulfilled the condition in s 6A(1)(C) in the Migration Act, viz determination of refugee status.

On the other hand, the subject matter, scope and purpose of the Migration Act indicates that one of the factors which may properly be taken into account in the exercise of the discretion to grant a temporary entry permit, or temporary, and permanent entry permits, to a person who has not entered Australia in the statutory sense is that the applicant claims "refugee status" and wishes to obtain permanent resident status. By "refugee status" we refer to the meaning of the term "refugee" in the Convention identified in s 6A(1)(C) of the Migration Act. Australia is a party to that Convention and no doubt the decision-maker might properly take into account in a general way the existence of Australia's international obligations thereunder.

If the decision-maker wishes to take such matters into account, the manner in which he does so is very much for the judgment of the decision-maker in the circumstances of the particular case. These circumstances may include considerations of urgency of the nature we have earlier described, and of whether the application is made prior to departure for Australia or only upon disembarkation at a port of entry here. We have earlier set out the statement of Mason J in Kioa v West (1985) 159 CLR 550 at 587; 62 ALR 321 at 348, which indicates that in the ordinary course there will not be occasion for the principles of natural justice to be called into play. In the present case, Morling J, as we have explained, held that procedural fairness had been observed, although he regarded it as doubtful whether there had been an obligation in this regard. No challenge on appeal was made to his Honour's findings on this issue. Nor was it disputed on appeal that the decision-maker had taken into account, in the exercise of his discretion, the circumstance that the appellants wished to acquire "refugee status". What was complained of was that in the course of dealing with the question of "refugee status" the decision-maker committed an error of law.

The alleged error of law

The error was said to be in the construction of the definition of the term "refugee" in Art 1A of the Convention. His Honour held that this question of "refugee status" was not entertained in the course of a determination to which s 6A(1)(c) applied. As we have indicated, this meant there was not in the present cases any decisions upon that question under the Migration Act, in the sense explained in Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290; 61 ALR 609. However, we agree with his Honour that the question of "refugee status" was entertained by Mr Davidson in the course of deciding not to issue temporary and permanent entry permits under s 6(2) of the Migration Act.

The Migration Act does not in terms incorporate the Convention definition into that particular decision-making process, as part of municipal law. A serious question thus arises as to whether, even if the definition was misconstrued, the result was an "error of law" within the meaning of s 5(1)(f) of the Judicial Review Act. The error may rather have been in construing a policy that regard be had in such cases to the terms of Art 1A of the Convention, which lacked any legally binding force upon the decision-maker.

Counsel for the appellants referred us to British, Canadian and United States authorities in which the terms of the definition had been construed:

R v Secretary of State for Home Department; Ex parte Jeyakumaran (Queen's Bench Division, Taylor J, 28 June 1985, unreported; Rajudeen v Minister of Employment and Immigration (1984) 55 NR 129; Bolanos-Hernandez v Immigration and Naturalisation Service (1984) 767 F (2d) 1277; Sanchez-Trujillo v Immigration and Naturalisation Service (1986) 801 F (2d) 1571; Immigration and Naturalisation Service v Cardoza-Fonseca (SC of United States, 9 March 1987, unreported). However, in all of these 30 cases the court was dealing with municipal legislation which drew the terms of the Convention into consideration by the makers of the decisions under review.

We prefer to leave open the question of whether there would be an error of law, in the circumstances outlined, for the purposes of s 5(1)(f) of the 35 Judicial Review Act. Even if there were not such an error in the technical sense, a decision in which Art 1A had been taken into account but misconstrued, might, in a given case, lead to the exercise of a power that was sufficiently unreasonable as to attract s 5(1)(e) and (2)(g) of the Judicial Review Act. R v Secretary of State for Home Department; Ex parte Khan [1985] 1 All ER 40 at 52 may provide support for such an approach where what is misconstrued is the terms of a policy rather than a legally binding criterion.

In any event, there was in our view no error in the construction or application of Art 1A of the Convention. We turn to explain why that is so. We commence by noting the following statement by the Privy Council (in Molefi v Principal Legal Adviser [1971] AC 182 at 196) when dealing with an earlier version of Art 1A of the Convention:

"Their Lordships consider that the words in the definition of the term 'refugee' must be applied with common sense while remembering that one event may often lead to another which in turn may lead to another or others. The words do not call for legalistic or philosophical examination. A mean can be found between too much stiffness of interpretation and too much easiness of application. When the facts of a situation are ascertained and known then in a fair-minded way those facts must be surveyed and an answer given to the straightforward question which is posed. If after a fair-minded approach an answer is readily and clearly given it may not be one that requires or permits of detailed elaboration."

First, the appellants submitted that the case sought to be made by the appellants in their applications for "refugee status" had been one of racial not political persecution. It was then submitted that the decision-makers who accepted the recommendations of the DORS Committee thus had misdirected their inquiries and answered the wrong question. On the hearing of the appeal, we were taken by senior counsel for the appellants and for the respondents with great care through the different parts of the materials upon which they relied. Like the Lordships in the passage we have set out, we believe that the definition of "refugee" should not be given too technical an interpretation and that persecution for reasons of race and for political opinion should not be seen as necessarily discrete subject matters. Having regard to the materials before the DORS Committee and to its deliberations, we are of the view both that the appellants had been anxious to put their case as one of substance rather than as one with a particular legal form suggested by any sharp distinction between concepts of racial and political persecution, and that their case was dealt with in the same vein.

It was then submitted that the DORS Committee, Mr Richardson and Mr Davidson had been moved by a "floodgates" argument away from applying the terms of the Convention and to act unfavourably to the appellants. However, Mr Young, the Acting Director of the DORS Secretariat, was cross-examined before Morling J and gave evidence that "flow-on effect" was not a concern of the DORS Committee. There is no reason to doubt that evidence.

Mr Young also gave evidence that the DORS Committee recognised as a "valuable guide-line document" the United Nations High Commissioner for Refugees Handbook on procedures and criteria for determining refugee status, published in 1979. Earlier in these reasons we referred to materials emanating from Amnesty International which deal with the situation in Sri Lanka and which were in evidence before his Honour. In respect of what was called "the Amnesty material" Mr Young gave evidence that, whilst there had been no submissions to the DORS Committee drawing attention to it and whilst he had no recollection of whether it had been circulated in respect of these particular applications, it was generally available to the Committee. Earlier in these reasons we mentioned the number of applications by Tamils with which the Committee had dealt.

We mention these matters as indicative of the apparent expertise of the DORS Committee in the immediate field of Sri Lanka as well as generally, and as a preliminary to dealing with the principal submission by the applicants as to the errors said to have been committed. This was that "persecution" within the meaning of Art 1A does not have read into it a requirement that the relevant acts of persecution be directed specifically at the applicant for "refugee status", but that this is what had occurred in the present case.

On the hearing of the appeal we were referred to various passages in the evidence of Mr Young. In response to a question from his Honour, he said:

"Perhaps if I could just explain, your Honour, what the Committee tries to do, tries to make a judgment about, is in each case before it whether or not there has been a history of persecution without defining at the moment or because of some events in the past it might occur again in the future or it might occur in the future if it has not happened in the past. So it is a judgment about what has happened to the individual to a certain point and a judgment as best the Committee can as to what might occur to those persons if they were to return to their country. Perhaps there had not been persecution in the past but nevertheless it cannot be excluded in the future.

Q. - Persecution of them? A. - Of them.

Q. - Them, personally? A. - Them personally.

Q. - In other words, you look to the question of whether they have been persecuted as opposed to whether there is a likelihood based on other facts that become available as to whether they might be persecuted if they go back? A. - That is right. It is a judgment as best we can, bearing in mind the situation in the particular country or as it develops as it can develop very quickly since perhaps even lodging an application.

Q. - Yes, well, particularly in Sri Lanka where things seem to be developing relatively rapidly? A. - Yes."

Mr Young was later asked the following question by counsel for the appellants:

Q. - His Honour suggested to you that a finding of refugee required evidence of the particular person having had persecution within the definition in the past, would you agree that although that would often be looked for and needed it is not essential to the judgment that is made since on evidence of persecution of close acquaintances or close relations or someone with a proximity to this person might indicate a well founded basis for them having a fear of similar persecution happening in the future?

Mr Young responded as follows:

A. - Yes, Mr Smith, frankly that is correct. The Committee often is faced by that sort of situation where particular family members who might have a higher profile in that sense than others, because of their activities the rest of the family or group might suffer and that is a frequent judgment that we do make in the applicant's favour. But might I say that, nevertheless, there would still have to have been an element of singling out that individual within the family, that they have been targeted, not simply caught up in a situation of civil disturbance and so on that occurs in Sri Lanka at the present time, but they would have to have been selected out in some way for state directed persecution. Now if that has occurred and other members of the family are close and could be targeted for similar reasons, certainly in the past we have granted refugee status to those persons.

Senior counsel for the appellants also pointed in particular to the minutes of the DORS Committee in respect of the appellants and, (a) in the case of the first appellant, to the view of the Department of Immigration and Ethnic Affairs that "on the basis of her claim she has not individualised a claims [sic] to refugee status within Convention terms"; (b) in the case of the second appellant to the view of the same Department, that the applicant "could return to Sri Lanka without fear of individual persecution"; and (c) in the case of the third appellant, to the view of the Department of Foreign Affairs that she had not "individualised a well founded fear of persecution or demonstrated that the Sri Lankan authorities would be interested in her on her return".

The oral evidence, these statements and other passages relied on by the appellants should be read in the context in which they were made and with the minutes as a whole. We have set out other extracts from these minutes earlier in these reasons. Counsel for both appellants and respondents accepted that in construing Art 1A of the Convention there was to be taken into account a "subjective component" and an "objective component". They were also agreed that these "components" were adequately described by the Canadian Federal Court of Appeal in Rajudeen v Minister for Employment and Immigration (1985) 55 NR 129 at 134, as follows: "The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear."

In our view, the use of the terms "individual" and "individualised", particularly in relation to the first and third appellants, may properly be read as directed to the failure in the view of the departments concerned to show the existence of the "subjective component". Clearly enough, a particular applicant for "refugee status" might, in the circumstances of the case in hand, fall within the terms of the definition and have a valid basis for his or her fear of persecution even if not previously "sought out" or "persecuted as an individual". We do not read the materials to which we were referred as proceeding upon the footing that without that "singling out" a claim for refugee status could never succeed.

In our view there was no "error of law" disclosed in the application of Art 1A in the present case, even if, as we have noted, it be assumed that that concept applies in these proceedings as they are constituted. In conclusion, it follows that even on the footing most favourable to the appellants the appeals must fail.

In each appeal, the order of the court is that the appeal be dismissed with costs.

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