Administrative law - immigration - applicant taken into custody upon arrival in Australia - application for entey rermit on basis of refugee status - applications refused - nature cf determination of status - applicability of principles of procedural fairness - applicant not given adequate opportunity to make submissions prior to recommendation of DORS Committee - applicant not given adequate opportunity to make submissions prior to the Minister's Delegate making a decision - whether breach of principles of natural justice. Gs ie) Migration Act 1958 35. 6, 13, 36A, uns s |p colcr wn | FE] im Minister for Immigration and Ethnic Affairs vy. Mayer 61985) 157 CLR 290 considered. seaward v. Paterson £1897] 1 Ch 545 referred to. Ellendale Pty. Ltd. v. Graham Matthews Pty.Ltd. (1996) 65 ALR 275 referred to. Kien v. West (1986) €0 ALUR 113 applied. Miller v. TCM Channel Nine Pty. ttd. (1986) 60 ALJR $98 referred to. The Queen v. Credit Tribunal ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 referred to. Minister for Immigration and Ethnic Asfairs v. Lebanes Moslem Association 19.2.37 (unreported) ceferred to. Faingsld v. Sammit (1984) 1 FCR 287 referred to. Manister for Immigration ane "Othnic Affairs ve conyngham (1996) 68 ALR 441 referred to. einnathamby v. Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 considered Minister foc Aboriginal Affairs vy. Peko Wallsend Ltd. (198€) 60 ALUR 560 referred to. Yaa Akvaa and Another v. The Ministar for Immigracion and Ethnic Affairs and Another No. G.173 of 1987 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION BETWEEN ; AND: AND: AND: MINUTE OF fudge making order: Gummow J. Date of order: 6 May 1987 Where made: Sydney THE COURT DECLARES THAT: 7] ~ ~ wW Ga Fy to 1D co a No. eee eer te YAA AKYAA First Applicant RITA KUF'O Second Applicant THE MINTSTER FOR IMMIGRATION AND ETHNIC AFFAIRS JRDER In connection with the making on 9 April 1997 or the decigion of the Delegate of the vegponcent Minister te refuse entry permits sought by the first applicant breaches occurred of the rules of natural justice as déscribed in the reasons for judgment. THE COURT ORDERS THAT: 1. The matter to which ths decision ci the Delegate of 9 April 1937 velated be veterred to the First Respondent or hi Delegate fcr Fuarthes consideratisn in che light cr ths abcve tJ 2. The first Respondent be restrained until noon on 26 May 1987 from taking or permitting to be taken any steps to have the first applicant cemovec fron Australia. 3. The Respondents pay the costs of the tirst Applicant. 4, Exhibits 1, 2a, and 2b, be returned to solicitors for the Respondents. IN THE FEDERAL COURT OF AGS'TRALTA NEW SOUTH WALES DISTRICT REGISTRY No. G.172 of 1987 > nee ee GENERAL DIVISTON BETWEEN : YAR AKYAA First Applicant AND: RITA KUFO Second Applicant AND: THE MINISTER FOR IMMIGRATION 43ND ETHNIC AFFAIRS AND: IAN ROBERT GLOVER Respondent 10] GUMMOW J. . REASONS FOR JUDGMENT Pacts wn The firet applicant was born in Ghana in 1955. he farst came her husband. Fh to Australia on 13 August 1981, in the company o She had left Ghana in September 1980. The couple gained entry to Australia on terms that do not precisely appear but it seems that by 13 Decemrer 1982 thsy had become peohibited non-citizens within the meaning of the Migration Act 1953 ("the Act"). On that date the first applicant completed a document etyled "Application for Refugee Status" with supporting materials. In the meantime, a daughter ithe second applicant: ron) had been born to the couple. She was born in Sydney on November 1981. *22- An "Application for Refugee Status" was also made by the husband. Both applications were rejected in November 19383 and again on "appeal" on 26 October 1994. I refer later in these reasons to the nature of such applications and appeals. The first respondent was deported from Australia pursuant to an order under s.18 of the Act, which had been dated 13 February 1286. She took her daughter with her. Her husband also left Australia at the same time but the evidence does not indicate the immediate circumstances of that departure. The first applicant, her husband and their child returned to Ghana in March 1986. The spouses separated and were divorced in Ghana in September 1986. Between 9.00am and 9.20am on 31 March 1987, Mrs Peters (who gave affidavit and oral evidence in the »resent case) was engaged in her duties at Sydney Kingsford Smith Airport as an Airport Inspector on the staff of the Department administered by the respondent Minister ("the Department"). It came to her notice that some time earlier that morning the applicants had disembarked from an Alitalia flight on its arrival from Singapore. The first applicant had presented herself without any valid travel documents or visa. She had compieted 4 customs and quarantine statement and incoming passenger cards for herself and her daughter. She also had produced a bundle of papers which included a two page handwritten document signed by her and headed "Application of Political Assvlum" (32¢)}. On her Peel Y Ww passenger card the first applicant identified herself as "Migrating to Australia". Mrs Peters interviewed the applicant in an interview room at the Airport. She treated what was put in the documents I have described and by the first applicant orally as an application for an entry permit coupled with an applicaticn for Rn "refugee status". Mrs Peters took notes of the interview. Che t did not grant any entry permit and caused a copy of her notes to be forwarded between 1.00pm and 2.90pm to Canbsrra by facsimile transmission to Mc Young (who also gave oral and affidavit evidence), the Acting Director of the Determination of Refugee Status Secretariat (known as "DORS") in the Department. The applicants remained at the Airport and slept for part of the day. At about 5.00pm they were taken to a detention centre at Villawood. Mr Scott, an officer of the Department, issued a direction to the officer in charge at the detention centre to keep the First applicant in custody until 1700 hours on 3 April 1987. The direction was in writing and was expressed to be issued in pursuance of powers conferred by &. J6A of the Act. There is no direct evidence as to when the direction was given but I ainfer that it was after the transmission of the documents to Canberra (vic between 1 and 2 pm) and before 5.00pm. -- ey sav On 1 April, the first applicant, pursuant to a direction by Mr Young, was interviewed at the detention centre by another officer of the Department. At that time she completed a form headed "Application of Refugee Status", answered a supporting printed questionnaire form and wrote out a document ona form headed "Applicants Should State Their Reasons For Seeking Refugee Status". These documents were then sent to Mr Young in Canberra. A tape recording was made of the interview (with the first applicant's consent). This Was reduced to twelve typed pages and, aftec perusing and correcting it in some respects, the first applicant on 3 April 1937 made a statutory declaration confirming the accuracy of the transcript. In these materials, the first applicant said she was now davorced from her husband, that relations between them were bad, that after her return to Ghana in 1986 she had greatly feared that her daughter would be taken from her by her husband, and that this was still her fear. She also detailed mistreatments of a serious nature at the hands of security officers in Ghana after her réturn there in 1986. She said she had no political views adverse to the present administration in Ghana but that her mistreatments were the result of false denunciation of her by her former spouse to a body known as the CDR. This identifies what is styled the Committee for the Defence of the Revolution. The transcript includes the following: - ater "77. Do you wish to remain in Australia? A. Not really. Because it's too far you know. 78. What do you want to do then? A. I'll stay because of Rita I wouldn't mind. 79. You would like stay here because of your daughter? A. Yes. 81. You don't have any relatives in Australia? A. No but I have friends. On 3 April 1987 (a Friday) Mr O'Connell of the DORS Secretariat wrote to the first applicant a letter which, omitting formal parts, reads as follows: - "I refer to your request for the grant of rerugee status in Australia. The delegate of the Minister for Immigraticn and Ethnic Affairs has decided not to entertain your request. In coming to his decision the delegate took the view that, as you arrived in Australia on the flag carrier of Italy, a country signatory to the United Nations Convention relating to the Status of Refugees and related protocol any claim that you may have to refugee status is on that country, rather than on Australia. The delegate also took acccunt of the fact that a previous application for refugee status on your behalf had been given detailed consideration by the Determination of Refugee Status Committee, but had been unsuccessful." On the same day and in the presence of a solicitor employed by the Legal Services Commission of New South Wales, the first applicant was informed orally of this decision. She had sought legal advice by telephone call to the Fairfield Office of the Commission the previous day. Late in the afternoon of 3 April, on an application made by another solicitor employed by the Commission, a Judge of this Court granted injunctive relief against the cespondent Minister to mn be effective until 4.pm on 10 April 1987. On that day the matter came before me, After hearing counsel for the parties I ordered that, until 5.00pm on 28 April 1987 or until further earlier order, the respondent Minister be reéestvained from dosn for final hearing on 27 and 2& April and gave directions ta ready the case for hearing on thoge days. At the héaring My Smith appeared for the applicants and Mr Hastings for the £ respondents. On the conclusion of the hearing I varied the existing injunctive relief so that it is effective until further order. Aa I have noted the 3rd of April was a Friday. On Monday 6 April, Mr O'Connell circulated the first applicant's application for "refugee status" to the DORS Committee for consideration. This course indicated a virtual volte-face from the position taken in the letter cf 3 April to the first applicant. The application was forwarded to the BORS Committee under cover of a minute signed by Mr O'Connell,. minute (omitting formal parts), reads as follows:- Endorsed "The attached papers are circulated to DORS Committee members for consideration as a manifestly unrtounded application. Committee members are asked to advise whether they consider the case disclosed grounds to warrant full DORS processing. Please advise the DORS Secretariat in writing her decision as soon as possible." upon the document was a handwritten note as follows: NOTE: Ms Akyaa was previously considered in 1984 as spouse of FRANCIS KOPI KUFO - you will have earlier records. Appreciate urgent telephone advice today, as Ms Akyaa is under 5.26 A custody." The papers attached by Mr O0'Connell to the ceference to the DORS Committee members were copies of:- (i) (11) (iii) The Statutory Declaration of the first applicant made 3 April 1987 annexing the record of interview (conducted aon Ist April 1987). The application for refugee status and supporting questionnaire and handwritten statement, completed by the first applicant on 1 April 1987. The handwritten document of the first applicant headed "Application for Political Assylum"(sic) which she had produced on arrival at the Airport on 21 March. The (iv) Other documents also produced by the first applicant at that time being the incoming passenger cards for herself and her daughter, the customs and quarantine statement, her Baptism Certificate, the Notification of Birth Registration of her daughter and correspondence emanating from the Department of Social Welfare in Ghana 19986 concerning difficulties between the first applicant and her husband. (v) The boarding pass and baggage tabs issued by _ Alitalia in respect of the flight to Sydney. The DORS Committee which dealt with the application contained representatives of the Department of the respondent Minister, the Department or Foreign Affairs, the Attorney-General's Department, the Department of Primary Industry and Cabinet. A representative of the United Nations High Commissioner for Refugees attended as an adviser and participated in the decisions of the Committee. The nature and functions of this Committee and the contant of the term "refugee status" ace explained in Minister for Immigration and Ethnic Affairs v. Mayer (1985) 157 CLR 290 at 300-201. Mr Young, in his evidence, supplemented what is there set out. Where the Committee reaches a unanimous view, 1t a recommendation goes to a Delegate of the Minister for decision. If there is a division in the Committee, the matter goes not to a Delegate but to the Minister. There is also a procedure for "reviews" or "appeals", where for example fresh and significant information comes to hand. In these cases the Committee reports to the Minister himself. On 9 April the DORS Secretariat recommended that the application for "refugee status" be refused and on the same day the Delegate of the respondent Minister having received the written recommendation from the Committee decided that the application for "refugee status" be refused. The view of the Committee had been unanimous. On 10 April 1987 Mr Young as Acting Director of the DORS Secretariat, wrote to the first respondent a letter which (omitting formal parts) reads as follows: - "IT vefer to your application for refugee status in Australia. Your application for refugee status has been examined carefully by the Determination of Refugee Status (DORS) Committee comprising representatives of the Departments of Immigration and Ethnic Affairs, Foreign Affairs, Attorney General's and Prime Minister and Cabinet. The representative of the United Nations High Commissioner for Refugees participates as an adviser to the Committee. The DORS Committee recommended against the granting of refugee status to you. This decision was taken following consideration of detailed advice and unformation available to the Committee concerning the general situation prevailing in Ghana and your known particular circumstances in that country as they related to youre claims for Refugee Status. The Minister's delegate has endorsed the Committee's recommendation and has agreed that your 10. application for refugee status in Australia must be refused. As you are currently held in detention under the relevant provisions of the Migration Act further action on your case will be undertaken by officers of the Compliance Branch of this Department." Mr Young had been a member of the Committee that made the recommendation to the Delegate. The evidence at the final hearing before me also included a previous applicaticn for "yefugee status" with the accompanying questionnaire which as IT have said, had been made by the first applicant on 132 December 1982. Also in evidence were (1) a handwritten statement in support made by the first applicant on 10 December 1982, (ii) statutory declaration by the first applicant made 17 December 19382 to which was annexed the transcript of an interview on 13 December 1982 between the first applicant and an officer of the Department, and (iii) the written recommendation of the DORS Secretariat dated 16 November 1983 which was headed "KUFO, FRANCIS AND FAMILY APPLICANTS FOR REFUGEE STATUS"; this dealt with the spouses' applications together and concluded that "the Kufo's application for refugee status be rejected." I have referred to the handwritten note appended to the reference by Mr O'Connell dated 6 April 1987 which may he thought to be a reference to the "appeal" in 1984 against the rejection in 1983 of the earlier application for "refugee status". It is not agparent whether all of these materials which I have mentioned as being in evidence before me had been il. before all the participants in the deliberations of the BORS Committee on 9 April 1987. However, minutes of that Committee for that meeting were in evidence before me and it is apparent from them that some at least of those participants were familiar with the earlier materials and had them in mind in evaluating the application currently before them. The written recommendation to the Delegate from the DORS Secretariat on 9 April 1987 states on its face that it has attached to it "The documentation considered by7 the DORS Committee members". As I mentioned, whilst it is clear 'what that documentation comprised as regards the current application, it 1s less clear how much was included of the documents concerning the 1983 application and the 1984 "appeal". The Delegate also had before him as an attachment to the recommendation the minutes of the meeting of the DORS Committee on 9 April 1987. These minutes are of central importance in the present case. Counsel for the applicants point to a number of passages in the minutes as andicating that the DORS Committee and Ehus the Delegate proceeded upon a view of the first applicant's case which necessitated the giving to her or her legal representatives an opportunity tc réspond before an adverse decision was made. He emphasised in particular these portions of the minutes which in what now follows I have 1talicized,. The material appearing first in the minutes under the s heading "RESUME" was as follows:- "A divorced, or separated Ghanaian who returned to Australia on 3 March 1987 with her Australian born child on an Alitalia flight ex Singapore; having travelled it was believed to Singapore from Nigeria on an Air India flight. The journey was without passport or entry approval for Australia (no visa). She claims she was assisted in both Lagos and Singapore to board the flights without travel documents (by a high immigration official in Lagos and by a Church contact friend in Singapore). In Singapore it 1s alleged she had the use of a Guyanese passport for sufficient time to gain entry to the flight (this does not explain the lack of visas however). The family had been previously cesident in Australia from 1981 to date of deportation in March 1986. (The child was born in Australia on 6 November 1991.) Previous application for refuges (sic) status: - rejected by delegate 22 November 1983; - ¥ejected on appeal again on 26 October 1984 (Note: a forged police wanted notice was submitted in support); ~ Ms Akyaa's claim at that time related to her kinship with a former minority party political leader, now in exile; ~ Accra had confirmed that this person was 4 former opposition politician, but thet similar figures were net persecuted in Ghana because of political activity. After deportation back to Ghana in1986 sis fell out with her husband who avparently wanted to take the daughter from her. she took her claims to the relevant court and she separated from her husband. - Early in the interview she claims CDR people took her to army barracks and accused her of plotting against the government and claims she was bashed. - After denying any knowledge she states she was then allowed to go. ~ This seems to have been her first detention and was only for a short time (one day - Q26). After that detention she took her daughter to Togo, to leave her with a friend. On return to Ghana she was again detained - at a Detention Centre for about ten days, during which time she claims she was raped and otherwise mistreated. - She claims she was helped to escape by female guard. She returned to Togo to pick up hér daughter and travelled to Nigeria where she stayed several months. Her husband found she was there and came to try to take her daughter away - in short, she decided to leave Nigeria to escape her husband. (who she even claims wanted to sell the child). . The travel to Australia is puzzling - no passport; no visa; baggage tags indicated she travelled from Lagos with Alitalia via Rome but she claims she travelled via Singapore being helped with boarding passes by friends or contacts." wT The minutes go onto summarize he views of the various agencies represented on the Committee. All of them took the position that the credibility of the first applicant was a central question. The representative of the United Nations High Commissioner for Refugees after expressing agresment with the 14. assessment by the Department of Foreign Affairs, continued . This claim is based on the allegation by Ms Akyaa that her husband informed the Ghanaian authorities that she was involved in a planned coup attempt. If Ms Akyaa was detazrned and mistreated in Ghana and if the authorities followed up the accusation of her husband, then there may be a well founded fear of persecution due to imputed political opinion. The suggestion of a link to the political opposition causes concern to UNHCR because of a case last year in which people accused of a coup had used two female messengers who were sentenced to seven years. This case hinges on the credibility of the applicant. Her story, however, is bizarre and contains claims which are difficult to believe, @.g.: - that she escaped from detention; - that her Nigerian hosts could have been pressured by the Ghanaian Embassy to ask her to leave; and - that she was able to travel to Australia without any travel documents. Because of the contradictions in her story we do not feel that she has established a credible claim to having a well founded fear of persecution. Not a refugee. It is to be noted that if the story of the first applicant were accepted then in the visw or the Commissioner ""CTdhere may be a well founded fear of persecution due to imputed political opinion." The respondent Department referred to the "fact thak during the first application for refugee status the couple is. (then) created claims to suit their purpose,(e.g. forged police wanted certificate)". The representative then went on to say that the method of the first applicant's travel to Australia indicated "a well organised sfifort which suggest an immigration racket was employed somehow". The Department of Foreign Affairs also referred to the previous application saying that on that occasion the first applicant and her husband "contradicted each other's claims significantly" and that "her husband also presented the Committee with fraudulent documents". The Department of the Prime Minister and Cabinet noted that "a revious refugee claim i hich Ms Akvaa Was been clearly fraudulent". It is in the above circumstances that counsel for the applicants presented claims to various relief under the Administrative Decisions (Judicial Review) Act ("the ADJIR Act") The Detention of the first Applicant Counsel for the applicants seeks an order that they he released from custody. At all times since their arrival here on 31 March the child has been in the care of her mother but there is, on the evidence, no legal restraint imposed pursuant 16. to the Act in respect of the child. There is thus no footing for the order sought in respect of her. I refer later to the procedural aspects of the second applicants joinder in these proceedings. The first applicant is in a different situation. As Ihave said, she travelled by aircraft from Singapore to Australia, sought from Mrs Peters an entry permit, and was refused. She was thus liable to be taken into custody under the procedures laid down in 3.36A(3) of the Act. I find that she was so taken into custody at about Spm on 31 March 1987. Section 36A(3) authorises her to be kept in custody (a) until "such time as Cshel is removed from Australia in accordance with Cs.36A(4)1" or (b) "until such earlier time as an authorised officer directs". At the date of the hearing the first applicant was held in custody under a written direction of the second respondent given in writing to the officer in charge of the detention centre on 10 April 1987. Earlier directions had covered the periods to 3 April, 5 April, 7 April and 10 April. Counsel for the first applicant submits that removal "in accordance" with s.36A(4) involves compliance by the carrier within the time limits in 3s.36A(S)and that this compliance no longer is possible in the events that have happened since early April. Therefore, he submits, the terms ot permissible custody under s5.36A(3) is spent and any decision to hold and retain the first applicant in custody was not authorised by s.36A(3)0f the Act: ADJR Act, 5s. Sf{l1l)i(d This argument follows the attention directed by s.36A(3) zucceeding sub-sections of s.36. Sub-sectionse (3), (4), (5 (6), (7) and (8) are as follows: "(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 alrcraft from a place outside Australia to a proclaimed airport has sought and been vefused 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 unto custody at that Tirst-mentioned az2zrport oc elsewhere, as an authorized officer directs until such time as he is removed from Australia in accordance with sub-section (4) or until such sarlier 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 charter 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. (5) A master, owner, agent or charterer on whom a requirement has been served under sub-section (4) shall comply with the requirement within the period of 72 hours commencing at the time when the requirement was served on him or within such period as an authorized officer allows, whether or not the person to whom the requirement relates is able or willing to pay, or agrees to pay, a charge in respect of his removal from Australia. Penalty: $2,000 (6) It is a defence to a prosecution in respect or a failure to comply with a requirement under sub-section (4) 1f the defendant proves that, after the requirement was served upon him, he gave ). to ), reasonable notice to an authorized officer of his willingness to receive the person to whom the requirement related on board a specified vessel' or aircraft at a specified port at a specified time for removal from Australia and the person concerned was not made available at that port at that time in the custody of an officer for placing on board that vessel or aircraft. (7) The master, owner, agent and charterer of an aircraft are, jointly and severally, liable to pay the Commonwealth a fair sum for the cost of keeping and maintaining a person while he is kept in custody at a place other than the proclaimed airport, the cost of transporting the person, and a custodian of the person, from the airport to the place of custody and, 1f the person is required to be removed from Australia, from the place of custody to the vessel or aircraft upon which he is to be so removed. (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 froma proclaimed aiyport for the purposs of being kept in custody at a& place outside a proclaimed airport in pursuance of sub-section (1), (2) or (3)." At 11.20am on 2 April 1987 (i.e. within the 48 hour period stipulated in 5.36A(4)) a written direction by the second respondent was given to Alitalia. It was expressed to be given pursuant to s.36A(4) and obliged Alitalia to remove the first applicant from Australia at no charge to the Commonwealth "within the period of 72 hours commencing at the time when this requirement 15 served on you or within such further period as an authorised officer may allow". Mrs Peters had conversations with a representative of Alitalia and on 3 April she noted agreement by the airline to tak both applicants on a flight leaving on the next day at 12.35 pm. (i.e. within the 72 hours specified in s.26A(5)). Before that 19. could be done the orders of this Court on 3 April had intervened and orders still remain in force that would prevent a direction to the airline being given for removal of the first applicant. On 10 April what purported to be a fresh notice under 3,.36A(4) was given the airline. Counsel for the respondents disclaimed any reliance upon it. On the same day Mrs Peters wrote to Alitalia, enclosing the notice and stating - oO "This Department 1s under ai court order restraining any steps being taken to remove Yaa Akyaa from Australia. The Department has authorised that she be kept in custody until Midnight 28 April 1987 by which time the matter should be resolved. i) The Department will advise you as soon as the court order is removed." Counsel for the respondents directs attention to the first notice to Alitalia and submits that in the events that have happened Alitalia has been relieved of the need for compliance within the 72 hour period stipulated in s5.36A(5) and instead is obliged to comply with the requirement of removal when any order of this Court, which in substance prevents the Commonwealth acting to deliver the ficst applicant to Alitalia for removal from Australia, has been vacated or is spent. There has thus been, he submits, an allowance of a further period within the meaning of s.36A(5) and so the time for removal "in accordance with" 3.36A(4) has not passed, It follows that the period cf permissible custody has not ended. I agree with these submissicns. Further, in my view the time for the performance of the obligation on Alitalia which ig imposed by these provisions is on a proper reading of this statute and the ADJR Act suspended or qualified for such period as the obligation could not lawfully be performed, as it could not be if performance by Alitalia would facilitate a breach by the Commonwealth of a court order (cf Seaward v. Paterson £18971 1 Ch 545, Ellendale Pty.Ltd.v. Graham Matthews Pty.Ltd. (1986) 65 ALR 275 at 286). It must be remembered that =.36A has to be read with the ADJR Act and with consideration to the effect of orders that may be made under jurisdiction conferred on this court by s.8 of the ADJR Act (cit Kioa v. West (1986) 60 ALJR 113 at 119, 125, 134, 145, 148; Miller v. TON Channel Nine Pty.Ltd.(1986) 60 ALJR 698 at 720-721; The Queen v. Credit Tribunal ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 at 561). The Counsel for the first applicant resists any such construction by pointing to the "indefinite" detention that might result whilst the Commonwealth allowed a lengthy period for compliance by the carrier with its obligaticn to remove the person in question. But the present case is a special one in that the delay is the product of the invocation by that detainee of the jurisdiction of this Court. In the second place, the procedure only cperates in respect of those who have been denied entry permits at the airport (5.36A(3)) and whs af they entered Australia (cf 3.26A4(8)) would, as prohibited non-citizens 1(5.5/1}}, be liable tc arrest (5.233). pericd and nature of the custody, but once an order fcr deportation had been made under 3.198 there would be the Erospect of custody under 9(6) rather than under 5.32. Thirdly, abuses of power vould attract the operation of the ADJR Act, and remedy 1n this Court. Finally, the prospect of the carrier delaying removal and so prolonging custody 12, in LO} the ordinary case, diminished by the presence of 3.26A'7)} with 2t3 obligation on the carricr t oO 'S a Ky cr oy ie) oO a bod is)at fet ct ea ct o ih rz) Oo a cr of keeping and maintaining the person in custody. t Accordingly, IT hold that the claim for an crdier releasing the first applicant from custcdy has net been made out. The Other Decisions to be Reviesed It follows from the above conclusion as te custody of the first applicant under 5.26A that she 1s not for the purposes of the Act deamed to have entered Australia by reason only of her having been taken from the airpoct to Villawood .5.3€A(S)). Otherwise, she would on leaving the aicpert have been deemed to enter t offence provision} cculd have bean attractsd. As it is, there 1s no ground far treating the first applirtant as having 22. antered Australia other than as a detainee and she is for the purposes of the Act one who has not entered Australia. This has an impact upon the entry permits she has sought. Mrs Peters, on my view of the evidence, refused an application for entry permits. The events of 1 April and the documents then brought into existence were in substance, I took both counsel to accept, applications for temporary and permanent entry permits. To those applications s.6A(1) did not apply. It operates to restrict the granting of entry permits after "entry into Australia". The applicant had not entered Australia. Therefore there was no operation of the restrictive conditiong on grants imposed by <.6A(1}. Nor was there any immediate statutory footing for determination of "refugee status" as provided by 5.6A(1)}(c)} (cf Minister foe Immigration and Ethnic Affairs v. Mayer (1985) 157 CLR 290). The applications for temporary and permanent entry permits fell for decision under s.6(2). They were, in my view of the circumstances of this case, made "upon arrival in Australia" and not after entry here (s.6(5)). It has been said in the Full Court of this Court that the discretion conferred by s.6(2) as ""relevantly unfettered": Minister for Immigration and Ethnic Affairs v. Lebanese Moslem Association (19/2/87, unrep). However, before me counsel for the respondents properly accepted that upon the approach I have taken to the matter the decision maker was bound to have 23. regard to the claim to refugee status, and he submitted that such regard had indeed been given. The activity of the DORS Committee in such a case as this is not productive itself of a decision under the ADJR Act (cf Mayer's Case (1985) 157 CLR at 294-5, 300-301, 206). But refusal of the permits would be a decision to which the ADJR Act would apply. There was no document in terms recording such a decision in the present case. However a vital integer in the consideration of the first applicant's case was her claim to "refugee status" and the letter dated 10 April 1987 to the first applicant from Mr Young was in substance telling her that procedures for her removal from Australia would go rorward and the refusal by the Delegate of "refugee status" on 9 April 1987 is to be treated in my view as carrying with it refusal of temporary and permanent entry permits. The respondents, by their counsel, took a commendably direct approach to the case by seeking to fight 1t on substantive not technical or procedural grounds, and did not, I believe, dissent from that characterisation of events. In particular, no point was taken that if natural justice had been denied in the procsedings of the DORS Committee, the decision of the Delegate, as one made under the Act, was in any better position. If taken, the point would not 1n my view have Leen correctly taken. There would still have been a breach of . the rules of natural justice "in connection" with the making of the decision of the Delegate (ADJR Act, s.5(1)(a}). ee te 2 tu 'Bs Thus I will deal with the matter as an application to review the decision of the Delegate on9 April to deny temporary and permanent entry permits to the first applicant and will accept that in making that decision he was bound te have regard to the claim to refugee status. In the course of events to which I have referred, no doubt, as counsel for the first applicant asserted, there were other anterior decisions that would attract the ADJR Act, but on the view I have taken they do not call for separate treatment. I should, however, note that all the decisions impugned in the Application were expressed as decisions directed oniy at the first applicant. The second applicant may have been a person aggrieved by them within 5.5(1) of the ADJR Act, but they were decisions directly affecting her mother. The principal grounds of attack were 3.5(1) (a) (breach of natural justice), s.5(1)(e) plus s.5(2)(a) {irrelevant considerations taken unto account), and s.5(1)(e) plus 5.5(2)(b) 'relevant considerations ignored). It wa al v7) oO ra) claimed in the Application that there had been exercises m rh oO power so unreasonable that no reasonable persons could have so acted (s.5(1)(e))} plus $§.5(2)(g)). There plainly is no substance tc that claim. I turn to the other grounds. , Natural Justice In Faingold v. Zammit (1984) 1 FCR 87 at 92-93, the Full Court, on an appeal against the refusal of interlocutory relief, held that as the authorities in the High Court then stood the rules of natural justice did not apply when decisions were made pursuant to s.36A of the Act. That was before the decision of the High Court in Kioa v. West (1986) 60 ALJR 4113. In the present case, counsel for the respondents did not dispute that Faingold v. Zammit now had to be resad subject to the general propositions which are to be drawn from Kica v. West and are apposite to this case. These propositions in my view are to the effect that (1) there 1s a common law duty to act fairly, in the sense of according 'procedural fairness", in the making of administrative decisions which aifect rights and interests (including those relating to personal liberty and status) and legitimate expectations, subject only to the clear manifestation of a contrary intention, (11) the content of the duty depends upon the circumstances of the case including inter alia the nature of the inquiry, the subject matter, and the rules under which the Gecision maker 1s acting, (iii) "procedural fairness" conveys the notion of a flexible obligation to accept fair procedures which are appropriate and adapted to the circumstances of the particular case, including the interests of the individual and the interests, cublic or private, which the statute 1n question seeks to advance, to protect, or permits to be taken into account as legitimate 26. considerations, (iv) "procedural fairness" will cften require the bringing to the attention of the individual the critical ssue or factor on which the administrative decision is likely to turn, and (v} 1t is not necessary for the complainant to show that the procedural unfairness complainec of did work to his or her prejudice; 1t 15 enough that the way was open for it do do so. I refer to the judgments in Kioa v. West (supra) of Mason Jd. (as he then was) at 126-129, Wilson J. at 135-6, Brennan J. at 139-144, 146-147, and Deane J. at 147-148. In applying these principles to the present case it cannot be said that there is in the statutory provisions a clear manifestation of an intention adverse to the existence of a duty of procedural fairness. The respondents whilst correctly pointing to the public interest in effective and etfictent control of entry into Australia by non-citizens, do not assert there is no duty of procedural fairness. The first ground for debate concerned the content of that duty in the present circumstances. In my view, that issue is to he approached by recognising the element of urgency presented by the aryvival of the first applicant without her earlier having taken steps to have an entry permit ready for issue (see The Minister for Immigration and Ethnic Affairs v. Conyngham (1986) 68 ALR 441 at 451-452) and by recognising the time constraint placed by s.36A upon the utilisation by the Commonwealth of the procedures it provided to oblige Alitalia to remove the first applicant from this country, at no charge to the Commonwealth. ? 27. That ordinarily would exclude and in this case did exclude from the appropriate procedures such steps as an oral hearing before the decision maker on the question of "refugee status". Further guidance is presented by Sinnathamby Vv. Minister for Immigration and Ethnic Affairs (1986) 656 ALR 502. In that case the appellant arrived in Australia by air ostensibly as a transit passenger to Fiji. She was granted a temporary entry permit valid for 3 days and was taken into custody after 5 days. She unsuccessfully sought "refugee 3tatus" and clazmed a denial of natural justice on the footing that the decision was based on information obtained by the DORS Committee and not made known to her. However, it was held that 1t had not been shown that the Committee had before it any information personal to the appellant which had been derived from a source cther than the appellant. Further, it was held that in respect of material provided hy a person in the position of the appellant, the decision maker was not, as a general requirement, bound to make known his view or evaluation of that material. That evaluation in that case was that the appellant had entered Australia by a "subterfuge". On the other hand, in Kioa's Case the material held by the High Court to require, in the circumstances of that case, a chance to he given to comment had come from a source other than the applicants. IA c zu ie) Cc ee fon log fa) rera iw cr io) ke to distort the broad principle 28. of procedural fairness into a set of sub-rules and then seek to test each case that arose against those sub-rules. In the present case it was apparent on the face of the materials submitted to the DORS Committee under cover of Mr O'Connell's minute of 6 April 1987 that a critical question that would arise for the Committee was the credibility of the narrative put forward by the first applicant. So it proved to be, as the minutes I have discussed above amply demonstrated. Again, as the handwritten note on the minute emphasised, the past history of the first applicant and her husband would also be very important in the Committee's deliberations. This also proved to be the case. As Ihave indicated, the wife's earlier application for "refugee status" appears to have been handled concurrently with that of the husband, even if not as joint application in any technical sense. It was by no means clear Trom the evidence before me of what had been before the Committee what part in that earlier process was played by the wife. For example, it was not immediately apparent whether she had known of the use of a "forged police wanted certificate", if that had been the case. The observation by Mr 0'Conneil in the minute to the Committee that the application Was "manifestly unfounded", although no doubt a view open to him on the materials, was not apt to set the scene for detached and dispassionate consideration by the addressees of the minute. In the circumstances of the present cass, procedural By fairness required the Secretariat of the DORS Committee to give 29. to the first applicant the opportunity in writing, and after consultation with her legal advisers, to reply to the substance of the six allegations or views which I have italicised when [I dealt with the minutes of the DORS Committee. For convenience I set these out again: (Note: a forged police wanted notice was submitted in support) fact that during the first application for refuges status the couple (then) created claims to suit their purpose, (e.g. forged police wanted certificate) a well organised effort which suagest an immigration vacket was employsd somehow contradicted each other's claims siqnificantly her husband also presented the Committee with fraudulent documents. a previous refugee claim in which Ms Akyaa was involved was rejected and can be seen, with hindsight, to have been clearly fraudulent I do not mean to suggest by this the necessity for any lengthy process of assertion and counter assertion. But the teal and despatch with which her solicitors were attending to her interests suggests prompt written response to an invitation of the kind I have mentioned would have been forthcoming. Mr Young said in oral evidence that he had had a number of telephone conversations with the solicitors in this period. They were not given any opportunity for their cli wm nt, with their assistance, to deal with the matters I have renticned before the DORS Committee made its recommendation on 9 April 1987. Nor was any opportunity of this kind given after the recommendation but before the decision of the Delegate on the same day. I should add that on 9 April and 16 April the first applicant swore affidavits in these proceedings which were read at the final hearing. She was not cross-examined upon them. In the first she swore to an account of her privations in Ghana in recent months and of her travel to Sydney. In the second, she swore that, had she been provided with the opportunity, ske would have wanted to make submissions concerning the previous application for "refugee status". I conclude that there has been, in the manner and to the extent I have described, a want of procedural fairness to the first applicant. Relevant and tcrelevant Considerations The first applicant also relied upon alleged entertainment by the authorities concerned of irrelevant considerations and exclusion of relevant considerations. No threat has been apprehended of removal by the Commonwealth of the second applicant from Australia. The only relief that was sought in respect of the second applicant was that she be released from custody and I have dealt with that earlier in these reasons (cf Kioa's Case (1986) 60 ALJIR at 129, 176, 149). She is, as I have indicated, named as a party and Mr Smith, without objection, announced his appearance for both 31. applicanis, but no orders or directions were sought pursuant to Order 43 of the Rules to deal with her position as an infant litigant. Nothing, in the event, turns on the procedural position and I say no more about it. However, the effect upon the child as an Australian citizen and her mother cf the separation that would follow the removal of the mother from Australia was submitted to have been a relevant consideration in dealing with the mother's situation and to have been passed by. Even if the relevance of that consideration be conceded (which I would be prepared in the circumstances of this case to do) the documentation which I have outlined has, ona fair reading,the mother's concern for the welfare of her chiid as an outstanding theme. I accordingly reject this submission. As to irrelevant considerations, counsel pointed to the concern with (a) the applicants' method of travel to Australia (b) the previous application for "refugee status" and ic) the pendency of proceedings in this Court. None of these were, in the circumstances I have narrated, irrelevant considerations for the DORS Committee or the Delegate. (cf Mianister for Aboriginal Affairs v. Peko Wallsend Ltd (1986) 60 ALJR 560 at 565). I reject counsel's submission on this issue. lo Es] Discretion The respondents submitted that, the powers of the Court under s.16 of the ADJR being discretionary, relief should be denied because on no proper view of the facts was the first applicant outside Ghana owing to well-founded fear of being persecuted for reasons of political opinion and, owing to such fear unwilling to avail herself of the protection of Ghana. Thus, it was submitted, she could not meet the definition of "refugee" in the Convention (see Mayer's Case supra at 299). It ig true that the dispute with her ex-husband is at the heart of her problems but that is not inconsistent with her being a refugee in the necessary sense. It 15 also true that the first applicant disavows any political views adverse to the administration in Ghana. She says she has been falsely denounced to the authorities and persecuted by them as a result. Whether that is so, as a matter of fact, 1s not an issue in these proceedings. But if her story were accepted it would by no means follow that she could not meet the definition of "refugee" in Article 1 of the Convention. Falsely imputed political opinion may lead to well-founded fear of persecuticn "for reasons of political opinion", even though that opinion is in truth not held. " I would not withhold relief on the ground urged by the respondents. The text of the Convention was in evidence. There was nc dsbate before me as to any effect of Article 21 of the Conventicn upon the international obligations of Australia in the present case, of as to whether it raised considerations which had to he talcen (or might properly be taken) into account by a decision maker under the Act in a case such as the present. Nor was there any reliance in argument upon the views as to Che cperation of the Convention as regards Alitalia a tH ; s a) aw oY Lg) ec a a] be NedQ cl QO ath he aa w letter of 2 April 1997. Alitalia was not & party to thase peoceedings. Accordingly I say no more on these topics. Conclusions wo In the result I held that in connection with the making on April 1997 of the decision of the Delegate of thea respondent Minister to refuse the entry permits sought by the first u applicant breaches occurred of the rules of natura described in these reasons. Iouse the term "natura justice" because that 13 the language of the ADJR Act. The expressicn vant of "procedural fairness" used in Kioa v. West (supra) mere readily conveys the meaning of the concept as it arplies in this case. Accordingly, the caze for an order for reviawiis mads cut on the ground in 3.5(1)(a) of the ADJR Act. Tr conducted expeditiously and first applicant should be between the parties. I matter over for these reasons and the form of That proposed (1) 1387 o sought to ~ Order that the the Delegate rerecred to th declaraticn. Cw Order that until noon cn permitting first applican (4) Respondents to applicant. publish ny a short time to reliaf that in f the decision of the responcent Minister to bu 1B wn ubmissions by or nm writing unless reasons and will enable th a wa erks ae PAruiss calisf I propose to grant. 15: connection with the making on Delegate by the first applicant breaches @ rules of natural justice as he reasons tor judgment. a matter to which ths deci n of wo a Oo k ct D ra' cr 1927 rela ef 9 April é e farst Respondent for Turther in the light of the above ta f-4 od ES fo My a we co "2 hh Lay 2) B t removed I certify that this and the thirty-four (34) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr Justice Cummow. Associate: Mire fluke . Date: 5 May 1987 Counsel and Solicitors for the Applicants: Counsel and Solicitors for the Respondents: Date of Hearing: Date of Judgment: Mr M. Smith instructed by Messrs Marsdens Mr P. Hastings instructed by The Australian Government Sclicitor 27 and 23 April 1987 5 May 1987