Wu Shan Liang v Minister for Immigration & Ethnic Affairs [1995] FCA 418

CATCHWORDS MIGRATION - judicial review - appellants denied refugee status - whether Minister's delegates correctly directed themselves on the question whether there was a real chance of the appellants being persecuted for a reason provided for in the Refugees Convention and the Protocol thereto if they were returned to China.

Migration Act 1958 (as in force in June 1993), ss.4, 22AA, 22AB Convention relating to the Status of Refugees 1954, Article 1. Protocol relating to the Status of Refugees 1976. WU SHAN LIANG v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS NO. NG434 OF 1994 CORAM: SHEPPARD, LEE & CARR JJ PLACE: PERTH DATE: 23 JUNE 1995

IN THE FEDERAL COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA ) No. NG434 of 1994 DISTRICT REGISTRY ) GENERAL DIVISION )

On appeal from a Judge of the Federal Court of Australia

B E T W E E N: WU SHAN LIANG Appellant

and

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM: SHEPPARD, LEE & CARR JJ. PLACE: PERTH DATE: 23 JUNE 1995

REASONS FOR JUDGMENT

THE COURT: Originally this was an application for leave to appeal and, if leave were granted, an appeal from judgments of a Judge of this Court (Wilcox J) delivered on 23 February 1994 and 17 June 1994. Leave to appeal was necessary because the appeal was filed out of time. Two applications were before his Honour, one made in matter No. NG848 of 1992 and the other in matter No. NG501 of 1993. Both proceedings were representative proceedings brought pursuant to Part IVA of the Federal Court of Australia Act 1976. The orders made by Wilcox J dismissed the appellant's application for an order of review of a decision of the respondent not to recognise the appellant (and those whom he represented) as refugees. The decision followed a review by the Refugee Status Review Committee ("the Review Committee") of an earlier, primary decision not to recognise them as refugees. When the hearing before us commenced, counsel for the appellant said that there was to be no challenge to his Honour's orders in relation to application No. NG848 of 1992. It followed that the application for leave to appeal against that decision was to be dismissed. Counsel for the respondent ("the Minister") did not oppose leave being granted to appeal in respect of the orders made in matter No. NG501 of 1993. The matter then proceeded as an appeal from the orders made in that matter. The following factual background is taken largely from the learned trial judge's narrative in his Honour's reasons for judgment. The appellant Wu Shan Liang ("Mr Wu") was one of a group of 68 people, apparently all nationals of the Peoples' Republic of China ("PRC"), who left Guangxi Province, in southern China, on or about 27 July 1992 in a boat subsequently code-named "Labrador" by Australian immigration officers. The "Labrador" reached Indonesia on about 16 August 1992 and remained in Jakarta for a few days. On about 21 August 1992 the "Labrador" left Indonesia and arrived at Christmas Island two days later. On 25 August 1992 all the people in the boat (passengers and crew) were flown to Port Hedland, Western Australia, where they were detained and interviewed by officers of the Department of Immigration, Local Government and Ethnic Affairs ("the Department"). All 68 people indicated that they wished to claim refugee status and remain in Australia. The Department arranged for the making of speedy decisions, at primary level, of these refugee claims. A special team of officers was assembled and flown to Port Hedland. This team was led by James Gerard O'Callaghan, then Director in the Determination of Refugee Status Operations Branch ("DORS") in the Onshore Refugee Division of the Department. The team contained seven officers who had been appointed as delegates of the Minister for the purpose of determining claims for recognition as a refugee. In addition to assembling its own team, the Department supplied the funds necessary to enable an independent body, Australian Lawyers for Refugees Inc ("ALRI"), to provide legal assistance to the refugee applicants. The ALRI sent a team to Port Hedland comprising six lawyers, led by their co-ordinator Michael Kennedy, with support staff and six interpreters. On Monday 14 September 1992 detailed interviews commenced (only three weeks after the "Labrador" reached Christmas Island). The procedure adopted in relation to the "Labrador" claimants was for each applicant to complete a form consisting of only one sheet of paper and printed in English, Mandarin and the "simplified Chinese" script used in southern China. This form set out the definition of a refugee contained in the 1951 United Nations Convention Relating to the Status of Refugees, as amended by the 1967 Protocol, and only required applicants to state whether they claimed to fall within that definition. The idea was that the matters relied on by applicants in support of the claim would be elicited during oral interviews. All the people taken from the "Labrador" signed this form, thereby claiming refugee status. Detailed oral interviews commenced on 14 September 1992 and extended over two weeks. The routine adopted was that each delegate would interview one applicant each day, Monday to Saturday inclusive. Some interviews commenced in the morning, some after lunch. A member of the ALRI team attended each interview, along with a Departmental interpreter and an ALRI interpreter. The ALRI lawyer was free to advise the applicant but not to ask questions. Mr O'Callaghan's wish was that each applicant should tell his/her own story in his/her own words. The interviews were tape recorded. Each interview occupied some hours, the average length being four to five hours. Towards the end of the interview the delegate withdrew from the interview room, with the Departmental interpreter, leaving the applicant alone with the ALRI lawyer and interpreter for about 15 minutes. This was to enable the applicant to consult the lawyer and the lawyer to check that the applicant had stated all relevant matters and to obtain instructions about any inadequately explained matters. If the lawyer felt it desirable for the delegate to ask further questions about any particular topic or topics, the lawyer gave a list of questions to the delegate on resumption of the interview and the delegate worked through that list. It was standard procedure at each interview for the delegate to inform the applicant that no decision would be reached for at least three days after the interview and to invite the applicant to submit within that time any further material that he/she wished to be taken into account. Many applicants took advantage of this invitation. Sometimes the material was submitted more than three days after the interview. Mr O'Callaghan said that, nonetheless, it was accepted and read by the delegate before making a decision. Mr O'Callaghan said that he took to Port Hedland a "standard paragraph" intended to deal with a claim by an applicant that, if returned to China, he/she would be punished for having illegally departed the country. He did this because he anticipated that many applicants would make such a claim, as indeed most did. After the interviews commenced, he found additional claims being made. He said "essentially there were a very small number of claims expressed in different ways". The ALRI submitted a list of common claims, referable to all applicants, with supporting documents. The documents were voluminous. Mr Callaghan thought it would be more efficient "to address common claims with common responses". Accordingly he decided to prepare additional standard paragraphs for use by the delegates. Mr O'Callaghan said that he worked on this task during the first week of interviews with Ms Janice Nand, who was a Departmental legal officer, and a member of the ALRI legal team. The interviews were concluded on Saturday 26 September 1992. On that day, four decisions were provided by delegates to ALRI for transmission to the affected applicants. During the following week, the remaining 64 decisions were provided. Three of the 68 applicants were recognised as refugees. They did not include any of those on whose behalf this appeal is brought. On 12 October 1992, the ALRI lodged applications for review by the Review Committee of each of the 65 refusals. On 13 November 1992, Mr Wu's solicitors filed application No. NG848 of 1992 instituting the first of the two proceedings. The application contained a schedule listing as group members the other 64 persons whose applications had been refused. It sought review of the primary decisions made in respect of the representative party and each group member. The application came before Davies J. on 27 November 1992. Almost immediately, however, some of the refused applicants decided to return voluntarily to China. In the result, 29 refugee applicants returned voluntarily to China and 17 applicants obtained a favourable decision on review, following consideration of their cases by RSRC. These 46 people filed notices opting out of action No. NG848 of 1992, leaving 18 group members in addition to Mr Wu. The review decisions were notified to the unsuccessful applicants on or about 18 June 1993. They were then still in detention at Port Hedland. On 16 July 1993, Mr Wu's solicitors filed application No. NG501 of 1993 (being the application which forms the subject matter of this appeal) naming Mr Wu as representative party and the other 18 unsuccessful applicants as group members. This application sought review of each of the adverse final decisions made by the Review Committee. Wilcox J heard both applications together. On 23 February 1994 his Honour dismissed application No. NG848 of 1992 which challenged the primary decisions. In summary, his Honour dismissed that application because the primary decisions had been reconsidered on review and it was more appropriate to consider only the decisions made on such review: Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294. The application in matter No. NG501 of 1993 followed the form of that used in Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100; see at 104. The application was divided into three parts. Part A set out questions of law common to the claims of the group members in respect of the final decisions made by the Minister. Part B set out questions of law specifically related to the final decision pertaining to the applicant, i.e. the appellant, Mr Wu. Part C set out questions of law specifically related to the final decisions pertaining to each of the other group members. These questions were not set out in the application but were formulated later. In his judgment delivered on 23 February 1994, Wilcox J decided that neither the grounds relied upon in Part A of the application, that is the common grounds, nor the grounds relied upon in Part B, that is the grounds particular to Mr Wu, were made out. He deferred consideration of the grounds relied upon in Part C, that is the grounds particular to each group member other than the appellant. These were dealt with in his Honour's supplementary judgment published on 17 June 1994. In that judgment, his Honour said that he had not been able to deal in the earlier judgment with Part C of the application which related to the personal claims of group members because the applicant's (i.e. the appellant's) legal representatives had not had a sufficient opportunity of investigating them. He referred to the fact that he had made directions for the preparation of those claims for trial. A further hearing took place on 19 and 20 May 1994. At the beginning of the hearing, counsel announced an agreement between the parties that the application, insofar as it related to one of the remaining 18 members of the group, Lo Fu Shuang, should be upheld. An order was made giving effect to this agreement. That left 17 members of the group not including Mr Wu. His Honour dealt with a number of points. The first was based on a denial of natural justice. His Honour said that the issue equally affected all the people on whose behalf the application was made including Mr Wu himself. No objection was taken to his Honour dealing with the matter. His Honour did not uphold the natural justice ground. Except in one respect, this ground was not relied upon before us. We shall later indicate the matter which was relied upon. A further matter relied upon before Wilcox J was a suggested failure of the delegates who had decided the various matters to take into account a relevant consideration. The ground was rejected. No appeal is brought against that rejection. The same applies to his Honour's conclusion in relation to one of the members of the group in respect of whom it was said that the delegate took into account irrelevant considerations. At first instance reliance was also placed on manifest unreasonableness and "failure to give proper, genuine and realistic consideration to the merits of the case." Again these grounds were rejected and no appeal from his Honour's conclusions in respect of them has been brought.