Fang, W.Y v Minister for Immigration & Ethnic Affairs

CATCHWORDS

Immigration - refugees - safe third country in relation to a non-citizen - legislation making application by certain non-citizens for a protection visa invalid after 30 December 1994 - whether constructive applications made by applicants before that date.
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Migration Act 1958 (Cth)
Federal Court of Australia Act 1976 (Cth)
Judiciary Act 1901 (Cth)
Migration Legislation Amendment Act (No 2) 1995
Migration Legislation Amendment Act (No 4) 1994
Migration Regulations (Amendment) Statutory Rules 1995 No 3
Guo Wei Rong v Minister for Immigration and Ethnic Affairs (unreported: judgment           delivered 4 May 1995)
Perlak Petroleum Maatschappij v Deen [1924] 1 KB 111
Chan Yee Kun v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR     379
Wu Shang Liang v Minister for Immigration (unreported: Full Court judgment          delivered 23 June 1995)
Makisi v Minister for Immigration and Ethnic Affairs (unreported: judgment delivered        10 January 1995)
Hamilton and McMurray v Minister for Immigration and Ethnic Affairs (1994) 53 FCR          349
Minister for Immigration and Ethnic Affairs v Polat (unreported: Full Court judgment         delivered 13 April 1995)
Formosa v Secretary, Department of Social Security (1988) 81 ALR 687
Matter No. DG4 of 1995
WU YU FANG & ORS v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and COMMONWEALTH OF AUSTRALIA
O'LOUGHLIN J
ADELAIDE (Heard in Perth & Port Hedland)
27 JULY 1995

IN THE FEDERAL COURT OF AUSTRALIA     )
  )
NORTHERN TERRITORY DISTRICT REGISTRY)
  )
GENERAL DIVISION  )
  No. DG4 of 1995

B E T W E E N:

WU YU FANG & ORS
Applicants

- and -

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First Respondent
AND

COMMONWEALTH OF AUSTRALIA

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER       :       O'LOUGHLIN J.
WHERE MADE  :        ADELAIDE (Heard in Perth & Port Hedland)
DATE OF ORDER                :              27 JULY 1995
THE COURT ORDERS THAT:
1.The application be dismissed.
2.As to consequential issues, the matter be adjourned sine die.
3.Liberty to any party to bring the matter back for any further hearing on seven days notice.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA     )
  )
NORTHERN TERRITORY DISTRICT REGISTRY)
  )
GENERAL DIVISION  )
  No. DG4 of 1995

B E T W E E N:

WU YU FANG & ORS
Applicants

- and -

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First Respondent
AND

COMMONWEALTH OF AUSTRALIA

Second Respondent

REASONS FOR JUDGMENT

Coram: O'Loughlin J.
Place : Adelaide (Heard in Perth & Port Hedland)
Date : 27 July 1995
In these proceedings, one hundred and eighteen (118) Sino-Vietnamese people seek a variety of declarations based upon their claims that they should be treated as applicants to whom Australia has protection obligations - or, to adopt the language that was used throughout the trial, that they should be treated as applicants for refugee status. The Court granted leave to the Human Rights and Equal Opportunity Commission, pursuant to par11(1)(o) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) to file and serve written submissions in this matter. In all material respects those submissions supported the claims of the applicants, making particular reference to international conventions and the relevance of the international human rights instruments to a determination of refugee status.

Section 36 of the Migration Act 1958 (Cth) ("the Act") allows for a class of visas to be known as protection visas. Subsection (2) of that section then provides as follows:
"A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

By definition in s5 of the Act, the "Refugees Convention" means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the "Refugees Protocol" means the Protocol relating to the Status of Refugees done at New York on 31 January 1967. A "refugee" as defined in the Convention (as amended) is a 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."

The applicants, 49 men, 37 women and 32 children, are ethnic Chinese; the older members were expelled from Vietnam in about 1979 and were allegedly resettled in China. They have claimed that in China they have no work and no place to live; they have also alleged that they were not permitted to own land and that they could not obtain household registration. In October 1994, they acquired a boat and decided to sail it to Australia. The boat, which has since come to be known as "The Albatross" was intercepted on the water by H.M.A.S. "Gawler" on 12 November 1994. Government officials on board the "Gawler" included members of the Department of Immigration and Ethnic Affairs (DIEA), Customs and Quarantine. One of the DIEA officials who boarded "The Albatross" was Koh Ping Ang who is fluent in Cantonese; he acted as an interpreter when the voyagers were first questioned on "The Albatross".

"The Albatross" was escorted into Darwin, arriving on the following day, 13 November. All applicants were transported to a school at Berrimah which served as a temporary detention centre; from there they were flown to the Immigration Reception and Processing Centre ("IRPC") at Port Hedland on 15 November. Before leaving for Port Hedland, while still at the school, the group was addressed by Mr Rodigari, a senior DIEA official; on that occasion Robert Yuen acted as the interpreter.

At about this time, the Act was amended by the Migration Legislation Amendment Act (No 4) 1994; the amending Act, which received the Royal Assent on 15 November 1994, introduced into Division 3 of Part 2 of the Act a new Subdivision A1, entitled "Certain non-citizens unable to apply for certain visas". The new Subdivision added ss91A to 91F, made certain other amendments and made provision for a transitional period. Section 91A identified the purpose of the Subdivision in these terms:
"This Subdivision is enacted because the Parliament considers that certain non-citizens who are covered by the CPA, or in relation to whom there is a safe third country, should not be allowed to apply for a protection visa or, in some cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8."

These proceedings are not concerned with the CPA which is defined in s91B as meaning the "Comprehensive Plan of Action approved by the International Conference on Indo-Chinese Refugees, held at Geneva, Switzerland, from 13 to 14 June 1989". On the other hand, they are materially concerned with Australia's recognition of the People's Republic of China (PRC) as a safe third country. But in November 1994 Australia had not yet recognised the PRC as a safe third country; that did not occur until January 1995.

Section 91C states that the new Subdivision applies to a non-citizen at a particular time if the non-citizen is in Australia and is covered by the CPA or an agreement, relating to persons seeking asylum, between Australia and a country that is, at that relevant time, a safe third country in relation to the non-citizen. If the Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies for a protection visa then, subject to some exceptions which are not presently material, s91E provides that such an application will not be a valid application.

By an amendment (Statutory Rules 1995 No3) to the Migration Regulations, the PRC was prescribed "a safe third country". Subsection 91D(1) of the amending Act defines that term in this manner:
"A country is a 'safe third country' in relation to a non-citizen if:

(a)the country is prescribed as a safe third country in relation to the non-citizen, or in relation to a class of persons of which the non-citizen is a member; and

(b)the non-citizen has a prescribed connection with the country."

Subsection 91D(2) explains that a "prescribed connection" can include the person's presence in the country at a particular time or the person's right to enter and reside in the country. Subsection 91D(3) requires the Minister to lay before the House a statement about the other country's compliance with relevant international law concerning the protection of persons seeking asylum and other related matters. Any regulation made for the purpose of prescribing a country as a safe third country ceases to be in force at the end of two years after the regulation commences.

The new reg2.12A covers a person who is described as "a Vietnamese refugee settled in PRC, or a person who is a close relative of, or is dependent on, a person who is, or has been, a Vietnamese refugee settled in PRC..." It is made plain in the regulation that the word "Vietnamese" is a reference to nationality or country of origin; it is not used as an ethnic description. The amending regulation stipulates that a person has the "prescribed" connection with PRC for the purposes of paragraph 91D(1)(b) of the Act if the person, or a parent of the person, resided in PRC at any time before the person entered Australia.

The final piece of amending legislation that must be mentioned at this stage is the Migration Legislation Amendment Act (No 2) 1995 which was assented to on 17 February 1995. So far as the 118 applicants in this litigation are concerned, if they had not earlier applied for protection visas, that amendment had the effect of preventing them from applying for refugee status on and after 30 December 1994. Subsection 4(1) of the amendment laid out the prohibition in these terms:
"Subject to subsection (3) and to section 91F of the Migration Act 1958, if:

(a)Subdivision AI of Division 3 of Part 2 of the Migration Act 1958 applies to a non-citizen immediately after Statutory Rules 1995 No.3 took effect and did not apply to the non-citizen immediately before those Statutory Rules took effect; and

(b)during the period (the 'transitional period') from the beginning of 30 December 1994 until immediately before those Statutory Rules took effect, the non-citizen made an application for a protection visa;

then:

(c)if the non-citizen had not been immigration cleared at the time of making the application - that application, and any other application made by the non-citizen for a visa made during the transitional period, ceases to be a valid application on the commencement of this section; and

(d)if the non-citizen had been immigration cleared at the time of making the application - that application, and any other application made by the non-citizen for a protection visa made during the transitional period, ceases to be a valid application on the commencement of this section; and
(e)on and after the commencement of this section, the Migration Act 1958 applies as if the non-citizen had applied for a protection visa immediately after that commencement."

The position, so far as it applies to these applicants, may be summarised broadly, in these terms:
.In November 1994, at about the time of their arrival in Australia, legislation was introduced that established the concept of a safe third country: if a non-citizen is covered by an agreement between Australia and a safe third country, that person cannot apply for a protection visa.
.The People's Republic of China became a safe third country on 27 January 1995. As from that date former residents of Vietnam who had resided in China prior to coming to Australia could no longer apply for a protection visa.
.The amendment to the Act in February 1995, by its reference to Statutory Rules 1995 No 3, directly targeted those same Vietnamese people and pushed back the effective date for the lawful lodgement of applications for refugee status to 29 December 1994.

It will be necessary, in due course, to spell out the applicants' claims in detail. For the time being it is sufficient to say that they maintained that officers of DIEA well knew that they were claiming refugee status and that the DIEA and the respondents cannot now be heard to deny their claims; they seek a declaration that they made constructive applications for protection visas before 30 December 1994.

It needs to be emphasised that it is not the function of the court to determine, in these proceedings, whether the applicants are or are not refugees in the Convention sense or, to be more precise, "non-citizen(s) in Australia to whom Australia has protection obligations...": s36 of the Act. Such a determination might need to be made at a later stage if, but only if, as a result of these proceedings, there is a declaration that some or all of the applicants effectively made an application for protection visas before 30 December 1994. In considering this question of disputed fact, however, it is quite permissible to examine the personal circumstances of an applicant, for if they point to him or her having come to Australia for a non-convention reason - that is, for a reason other than the five stated reasons of race, religion, nationality, membership of a social group or political opinion - such a finding might assist in ascertaining what was said and done by that applicant when spoken to by officials upon his or her arrival in Australia. Likewise, should it be a fact that an applicant said nothing to suggest a well founded fear of persecution in the event of being returned to PRC or Vietnam, that finding might afford assistance in making the further findings of fact that are necessary for the final resolution of these proceedings.

The evidentiary base upon which the applicants advanced their claims was that one or more of them, from the outset, informed officers of DIEA that they were refugees or that they were seeking asylum; they claimed that the events that occurred before 30 December 1994, particularly while they were in detention at Port Hedland, induced in them a belief that the forms or questionnaires that they had completed were applications for refugee status - or, at least, the DIEA well knew and accepted that they were applicants for refugee status even though Form 866, the appropriate form for a protection visa, may not have been completed by any detainee.

In addition to this dispute, there are two other associated and important factual disputes:-

. Were the applicants denied their request for legal advice?
.Was Chen Yuan Fa, a seventeen year old boy and one of the applicants, assaulted by an officer of the Australian Protective Services (APS) and if so was the person who assaulted him Officer Darren Sharp, Badge No: 5028?

As to the question of legal advice, the provisions of s256 of the Act are to be borne in mind. That section provides as follows:
"Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, afford him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention."

The relevant events in respect of which findings of fact must be made, are, in chronological sequence, as follows:

1. 12 November 1994 - "The Albatross"
"The Albatross" was boarded by Australian officials. What was said to and by the applicants when the Albatross was intercepted and boarded?

2. 13-14 November 1994 - "The School"
The applicants were transferred to the school at Berrimah. What was said by DIEA officers to the applicants during their stay at the school?

3. 15-19 November 1994 - "The Interviews"
During this period the applicants were housed in 'J' Block at the IRPC at Port Hedland in isolation; they were interviewed and questioned; some forms were completed in Cantonese; others were completed in English. What was said? What information is contained in the forms?

4. 19 November 1994 - "The Notice"
On this day, the applicants were transferred from 'J' Block to 'D' Block but they still remained in isolation. Was there a notice in 'D' Block on which there was written in English and Cantonese the words "I wish to see my lawyer"?

5. 23 November 1994 - "Chen Yuan Fa"
About a week or so after the transfer to 'D' Block the alleged assault on Chen Yuan Fa occurred.
Did any such incident take place? If so, was it in response to Chen Yuan Fa's request to see a lawyer? If so, who was the person responsible for the assault? If there were an assault what effect (if any) did it have on the people who witnessed the assault?

6. 22 - 23 December 1994 - "The Manager"
The applicants were transferred out of isolation from 'D' Block to 'A' Block on 11 December; was there a meeting between Liu Ren Hui, Wu Yu Fang and Zhao Gui Fang with Mr Richardson, the Centre Manager, shortly before Christmas, during which those applicants asked to see a lawyer? and was there a short but similar meeting between Liu Ren Hui and Mr Richardson a day or so before?

There were other matters that arose in evidence during the course of the trial that need not be the subject of detailed examination. For example, there was evidence about the video in Cantonese that was shown to the applicants on their arrival at 'J' Block; it dealt with the rules of the centre. There was evidence about the apparent failure of the authorities to keep promises (as contained in the video) concerning visitors, excursions and the like. There was also a body of evidence concerning an agreement that was signed by some of the applicants whereby they undertook to pay the maintenance costs of "The Albatross". These and other collateral issue have not been overlooked but are not mentioned in detail because they have not assisted in a determination of the primary issues. I turn then to a consideration of the first of the relevant events.

1. 12 November 1994 - "The Albatross"
The evidence in chief of Liu Ren Hui, as contained in his affidavit of 20 March 1995, was that he said to the officers who boarded the boat words to the effect that he "wanted asylum in Australia". He also said that one of the officers had said that "we could apply for refugee status and that he could assist us to do so". He expanded on this evidence in his second affidavit of 4 April 1995, adding that Wu Yu Fang, the captain of the boat, had said words to the effect "we are looking for asylum in Australia and if we are not accepted then we will go somewhere else". Wu Yu Fang in the first of his four affidavits, being that dated 22 February 1995, said that he told the officials who boarded the Albatross that "we had left China because we are refugees". He continued in his affidavit saying that "... if Australia will not accept us then we will go elsewhere". In his affidavit there is then the following statement which assumes material importance when considering the answers subsequently given by many of the applicants with respect to their reasons for leaving China. Wu Yu Fang said:
"I also said that we have nowhere to live in China, we had no right to own land, and we couldn't get jobs because we did not have household registration."

In his second affidavit dated 20 March 1995, Wu Yu Fang claimed that he said to the officials who had boarded his boat that "we were looking for asylum".

The quality of the evidence of Liu Ren Hui and Wu Yu Fang with respect to the information that they gave to the Australian officials on board "The Albatross" was thrown into doubt when Liu Ren Hui conceded in cross-examination that he did not know the word "asylum" or its meaning. So that there might be no doubt, the interpreter was asked the Cantonese word that was used when translating the word "asylum": it was "bi wu"; Liu Ren Hui was then asked whether he knew the word "bi wu" and he acknowledged that he did not. On the following day, Mr Lindsay, counsel for the applicants, sought and obtained leave to recall Liu Ren Hui; in support of his application, Mr Lindsay explained that he had been instructed that there were other (less formal) words in Cantonese for "asylum" than "bi wu" He wished to put those other words to the witness. Liu Ren Hui recognised one of them, "zao nan" as the word that had been used; but when pressed by Mr Tracey QC in cross-examination, he conceded that that word meant to run away from trouble - not to seek asylum. The evidence of Wu Yu Fang about the statements that he made on board "The Albatross" was not so dramatic; however it remained somewhat equivocal; he was given every opportunity during his cross-examination to state what he had said to the Australian officials. He answered by saying that he said that he had no place to live and that he could not make a living but he volunteered no mention of either "asylum", "refugee" or "refugee status".

Mr Kelly was the DIEA officer in charge of the interception operation of "The Albatross"; he was assisted by Mr McLoughlan. Their evidence as to what each said to the passengers on board the vessel and as to what they in turn had said, was entirely dependent on the words spoken by Koh Ping Ang, the interpreter. Neither Mr Kelly nor Mr McLoughlan speak Cantonese, Mandarin or Vietnamese. Hence, their evidence as to what an applicant might have said is only as good as Koh Ping Ang's translation. With that important qualification, Mr Kelly was insistent that no word such as "refugee", "protection" or "asylum" was heard by him during his time on board "The Albatross", He maintained that he was under strict instructions to take immediate action by advising his superiors in Canberra if such a claim was made. He added that he was alert to the fact that the applicants were "boat people" and that it was to be expected that "boat people" might claim to be refugees; for this reason, he was adamant that he instructed Koh Ping Ang to take careful note of what was said and to report any suggestion of a claim to "refugee status". This briefing took place, according to the evidence of Mr Kelly, in the wardroom of H.M.A.S. "Gawler" while it was en route to intercept "The Albatross". Although Mr Koh could not remember this incident when he was cross-examined, he had said in his affidavit of 27 March 1995 that "during the course of the trip out I was briefed by Greg to Kelly of DIEA as to what was expected of me". In the same affidavit, Mr Koh referred to the affidavit of Wu Yu Fang of 22 February and to that part of it in which Wu Yu Fang claimed that while still on "The Albatross" he (Wu Yu Fang) had said that they were refugees. Koh Ping Ang deposed that he did not recall the captain nor any other passenger aboard "The Albatross" making any such claim.

In his affidavit of 28 March 1995, Mr McLoughlan explained how he, through the services of Koh Ping Ang, questioned the passengers on board "The Albatross". He said:
"I then addressed each group, asking them a number of questions. I asked what their intentions were. A number of persons from each group responded that they intended to go to Australia. I then asked those who were intending to travel to Australia to put up their hands. All members of the groups held up their hand. I then asked any of them who were Australian citizens to hold up their hands. None held up their hand. I then requested that anyone with a valid visa to travel to Australia to hold up their hand. Again, no member of any of the three groups held up their hand. I requested anyone in the groups who had travel documents to hold up their hands. None of the members of the groups held up their hands."

Thereafter, Mr McLoughlan advised all passengers that they were in immigration detention pursuant to subs189(2) of the Act.

Mr McLoughlan also claimed that he did not hear Koh Ping Ang use, in translation, any word such as "refugee". The respondents also called as witnesses Messrs Tucker and Marsh; the former is a member of the Australian Quarantine Inspection Service whilst Mr Marsh is a Customs Officer. Both were members of the boarding party. Mr Tucker was not able to offer much assistance; he was busy with his examinations of the people and the boat; he was looking for potential health problems that might invoke quarantine laws as well as checking for foodstuffs and for any animals that might have been on board: the most he could say was that he had no recollection of anyone using a word such as "refugee". Mr Marsh was more assertive; he had been instructed to be on the lookout for such a word and his instructions were to report its use to his superiors. He was not sure why there was such a need: he assumed it was an "immigration matter" and that it would mean extra processing work. In this framework he had a positive recall that such a word was not used.

Mr Koh was asked in cross-examination whether he knew the word "zao nan" as Cantonese for "asylum"; he said that he did not. He was asked then to state, phonetically, in English, the Cantonese word for "asylum"; his answer was "pe fo" or "bi wu" - they were the same, so he explained, with the comment that he had learnt Cantonese in Singapore while the applicants spoke in an unspecified dialect. Although I find this section of the evidence confusing, it has not afforded the applicants any assistance. Based on the totality of the evidence in the trial (most of which has not yet been addressed) I am not satisfied that any of the applicants used the word "asylum" or the term "refugee status" or any like words on board "The Albatross". Mr Kelly claimed that it was for the interviewee to make the claim for protection:
"We... leave it up to the... applicants to... tell us what their intentions are and what they wish to apply for." (p528)

I accept the truth of this statement. It was substantiated by later witnesses to whom reference will be made in due course.
As I have earlier said, the applicants were informed that they were detained pursuant to the powers contained in subs189(2) which provides as follows:
"If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a)is seeking to enter the migration zone; and

(b)would, if in the migration zone, be an unlawful non-citizen;

the officer must detain the person."

The factual premises upon which the subsection relies for its operation were not put in issue by the applicants.

Section 194 of the Act states that as soon as reasonably practicable after an officer detains a person under s189, the officer must ensure that the person is made aware of the provisions of ss195 and 196. Those sections deal respectively with the time limits within which a detainee may apply for a visa and the period during which an unlawful non-citizen must be kept in immigration detention. But par193(1)(c) provides that ss194 and 195 do not apply to persons (such as these applicants) who have been detained under ss189(2). These provisions were introduced into the Act in 1994 and the explanatory memorandum accompanying the Migration Legislation Amendment Bill 1994 explained the reason for treating detainees differently in these terms:
"The rationale for these exclusions is that persons who enter Australia without authorisation, or who have their visas cancelled in immigration clearance or who bypass immigration clearance, should not be accorded the same level of procedural protection as is provided to persons who have become unlawful non-citizens after having been lawfully in the Australian community."

In my opinion, there is no room for ambiguity. These applicants, having been detained under subs189(2), were not entitled to be advised that they may apply for a visa as otherwise required under s195: see also subs193(2). To suggest, as counsel for the applicants suggested, that there is some temporal limitation on the exemption from giving advice about the right to apply for a visa has no foundation; if there is a need to resort to the Explanatory Memorandum to clear up any ambiguity, then its contents make it abundantly clear that a clear line has been drawn between those unlawful non-citizens who have entered the country unlawfully and those non-citizens who, having entered Australia lawfully, have become unlawful non-citizens. I therefore reject any proposition that the DIEA officials on board "The Albatross" (and indeed on later occasions at Darwin and Port Hedland) were obliged to inform the detainees that they may apply for a visa. In Guo Wei Rong v Minister for Immigration and Ethnic Affairs (unreported: judgment delivered 4 May 1995) Sackville J. arrived at a similar conclusion in respect of an argument that officers of DIEA should have informed a detainee of his rights to seek legal advice. Referring to the precursor to s256, his Honour said at p55:
"Furthermore, in my opinion, the section does not impose an affirmative obligation on the custodian to give advice as to the applicant's entitlement to seek legal assistance. The section imposes an obligation, at the request of the person in custody, to afford all reasonable facilities for obtaining legal advice or taking legal proceedings in relation to his or her custody. The emphasised words, which limit the scope of the section, cannot simply be ignored." (Emphasis in original text)

2. 13-14 November 1994 - "The School"
In his evidence in chief, Liu Ren Hui had said that whilst the group was in Darwin at the school they had been addressed by an immigration official and, on that occasion, Robert Yuen had acted as interpreter. There is no doubt that the immigration official was the witness Joseph Rodigari. In his second affidavit of 4 April 1995, Liu Ren Hui said that the DIEA officer had said words to the effect that "we were being transferred to Port Hedland the following day, that we could apply for refugee status and that we would be assisted in doing so." But in cross-examination Liu Ren Hui freely acknowledged that he did not then, and still does not, know what the term "refugee status" means. As he said, "we guessed" that it was "some sort of way to help us live here". Mr Rodigari denied making any statement that included the words "refugee status". His evidence was that he told the applicants that they would be flown to the IRPC "where they could be better accommodated". Robert Yuen in his affidavit of 24 March 1995 had said of events at the school:
"During my conversation with the detainees I did not say any words to the effect that they would be assisted in applying for refugee status."

However, in his oral evidence, when cross-examined, he had no independent recollection of what he had said to the detainees at the school. The evidence of C.C. Lai and Nancy Cheung, two other interpreters who had been retained by DIEA, falls into the same category. In their respective affidavits they claimed that they heard Mr Rodigari address the applicants and that no reference to "refugee status" was made. But in his oral evidence, C.C. Lai clearly had no independent recollection of what had been said while Mrs Cheung acknowledged that she was busily engaged in other activities, albeit in the same room, when Mr Rodigari was addressing the group. Other DIEA officers who were present at the school when Mr Rodigari addressed "The Albatross" group included Mr Lam and Mr Rees-Kerr. Each said in his affidavit that he did not hear Mr Rodigari use the words "refugee status".

The term "refugee status" is a phrase which does not appear in the Act. However, its alleged use by DIEA officials became a highly contentious issue as the trial progressed. Wu Yu Fang said that it was used by an immigration official at the school as did several other witnesses, such as Li Chen Zhen, Ruan Meng Shi, Zhong Shi Hao, Zhong Yong Chang, Luo Qui Zhang, Li Ming Jie and Huang Hau Qui. He Shi Man said, at first, that it was used but then changed his evidence, acknowledging that he did not know what the term meant. On the other hand, Tang Long Gu in her affidavit had said that the immigration official at Darwin had said that the applicants would be afforded assistance at Port Hedland in completing their "applications". But in her oral evidence she switched and said the term used was "refugee status". She was not impressive. Li Ming Zhu originally said that the immigration official in Darwin had said that they would be assisted in applying for refugee status; he then agreed that what had been said referred to an assessment of the applicants. Later he denied that he had made the concession. When pressed to explain his contradiction he said that he did not wish to reply. He was not an impressive witness. Zheng Yu Jiao was also an unsatisfactory witness. At first she referred to a refugee application, then claimed that the immigration official had said the words "refugee status", before finally conceding that these words had not in fact been used. But the most unsatisfactory witness in the applicants' case was Deng Zhi Xi, the mother of Chen Yuan Fa, one of the last witnesses for the applicants. She had filed two affidavits in these proceedings and both were read; the first of these, dated 20 March 1995, referred to an immigration official addressing the group at Darwin and to her being interviewed at Port Hedland; but there was no reference, in respect of those two events, to the term "refugee status". This could not have been an oversight because in par7 of that same affidavit she deposed:
"About 2 or 3 days before January 15th, 1995, I was again interviewed by a DIEA official and I was asked where I had come from in Vietnam. After I answered the official told me I could not apply for refugee status in Australia and that I would soon be sent back to China. The officer said this was because when I went to China the United Nations High Commissioner for Refugees ('UNHCR') had re-settled me. I said that I was not re-settled in China, however the officer did not make notes of this."

Clearly the words "refugee status" had acquired a meaning to her by the time she swore her affidavit. Her second affidavit was sworn on 9 June 1995, only a few days before the trial began; there was no reference to "refugee status" in it. Yet when her cross-examination began, she volunteered, almost immediately and in a most unresponsive answer to the question asked of her, that an immigration officer in Darwin had told them that at Port Hedland they would be assisted in applying for "refugee status". And then in another unresponsive answer she volunteered that at Port Hedland she had heard the expression "refugee status". It is, of course, necessary to be very tolerant and very flexible in assessing evidence when given through an interpreter; one must be careful when dealing with a witness from an entirely different culture; but there can be no room for doubt in the case of this witness. The two answers were volunteered; in fairness to Mr Tracey neither of his questions addressed or even suggested the word "refugee" or the expression "refugee status". There can be no room for doubt; by the time Deng Zhi Xi came to give her evidence, she had somehow come to the conclusion that it was a matter of importance to the applicants' case to claim that the term "refugee status" had been used by an immigration official at the school and at Port Hedland. I find that Deng Zhi Xi decided that she would help the cause by adding the term "refugee status" to her evidence. Far from helping the applicants, she destroyed the value of her evidence and brought into question the evidence of many of the other applicants. It is convenient at this stage to complete my remarks about the evidence of Deng Zhi Xi even though the remaining matter is unrelated to the topic of "refugee status". In her affidavits, she had not suggested that she was in the 'D' Block TV room when the Chen Yuan Fa incident occurred. In her cross-examination she claimed that she was. I am satisfied that this is another piece of fabrication on her part.
Li Chun Fa was one witness who did not use the term "refugee status". He was content to refer to "refugee application" as did Chen Jin and Zhao Gui Fang. In fact, in his cross-examination, when offering an answer in his own words, Chen Jin omitted any reference to the word "refugee"; he merely said that the immigration official said that they would be helped at Port Hedland with their applications. Xu Rong Ying also said that they had only been told at Darwin that they would receive assistance in completing their applications.

The confusion in the evidence of the applicants is to be compared with the assertiveness of Mr Rodigari, as supported, to a limited extent, by Robert Yuen and the other interpreters or DIEA officials. Indeed Mr Rodigari was so positive on the subject that he gave the impression that there was a clear and deliberate plan on the part of the DIEA officers to avoid any use of a word or a term that would encourage the detainees to make an application to engage Australia's protection obligations. I am not satisfied that Mr Rodigari used the term "refugee status" when he addressed the applicants at the school. This conclusion is supported, to a degree, by the substance of the remarks of a Mr Mark Sullivan, the Deputy Secretary of DIEA, when interviewed by Peter Mares, a Radio Presenter for the Australian Broadcasting Corporation. A transcript of the interview was annexed to the affidavit of Mr Mares dated 5 April 1995. At one stage Mr Sullivan is recorded as saying:
"The Act specifically provides that it's not the responsibility of an Immigration officer to advise an unauthorised arrival as to what they may apply for."

Later Mr Sullivan stated his Department's attitude in these terms:

"But anyone in Port Hedland, and we're not looking for words like 'refugee', or words like 'political asylum'. We're looking for any indication, written or oral, that a person is seeking to engage Australia's protection obligations. And if they do that, they are provided, there, they are provided with a tax payer funded lawyer."

The method adopted by DIEA in dealing with illegal immigrants will be further considered when I summarise the evidence of the interviewing officers.

3. 15-19 November 1994 - "The Interviews"
It is not disputed that in the days following their arrival at the Immigration Reception and Processing Centre (IRPC) at Port Hedland, the applicants were asked to complete a form of questionnaire that was called a "Bio-data" form. These forms were in both English and Cantonese and had the purpose of obtaining personal particulars about each applicant. In addition, the applicants were also interviewed by officers of DIEA with the assistance of Cantonese speaking interpreters. The two interpreters most frequently referred to by the applicants in their evidence were C. C. Lai and Mrs Cheung, although Yit-Chang Lee and Jimmy Yau-man Tong were also used as interpreters on that occasion. Each of these last-mentioned witnesses claimed that he did not at any stage, hear any member of "The Albatross" group request access to a lawyer, nor did he hear anyone make a statement to the effect that the members of the group would be given assistance to make applications for refugee status. The format for those interviews, many of which were tape recorded, included asking an interviewee a series of written questions and recording his or her answers (in English) in the space provided on the relevant documents. Those documents, many of which were tendered during the course of the trial, were called "Compliance Interviews" and I will continue to use that term. Ex R1 was the Compliance Interview of Liu Ren Hui. His answers to questions 9 and 10 were as follows:
"9. Why did you leave China?

We were not being treated fairly by the Chinese Government and our house was demolished by the Chinese Government. The school fees were higher than the local Chinese.

10. What are your reasons for not wishing to return to China?

It is not that we do not want to return to China, we have to pay a higher fee for a licence for the school fees. A licence to buy and sell."

These answers were fairly representative of the answers that other applicants gave to the same questions. For example, in his affidavit He Shi Man said he left China because he had no household registration and no future; Li Chun Fa complained about the high cost of educating his children and added that he had not been properly resettled in China after coming from Vietnam. Li Ming Zhu included the word "persecuted" in his oral evidence; he said that "refugees are people who were persecuted and driven away. And they have no nationalities" (p356). But he did not make any like statement in his compliance interview. Xian Lian Jiao poignantly summarised the helplessness of the group when she said during her oral evidence:

"In Vietnam, we been cursed by the Vietnamese that we're Chinese, so we ran over to China. We've been cursed by the Chinese, we are Vietnamese and we have no nationality so in that sense we have to run away." (p207)

This explanation was also given by some of the applicants in their answers during the course of their compliance interviews. But most of the other applicants gave, as their reasons for leaving PRC, answers such as "no home" "no household registration" and "no nationality"; many also mentioned that their homes had been demolished. These "homes", so it would seem, were no more than cardboard shanties. It is significant that the word "asylum" does not appear in answers that were given by the detainees in their compliance interviews nor does the word "refugee" or the term "refugee status".
The evidence in chief of Wu Yu Fang on this subject was clear; he said:

"An officer told me that if we followed the rules of the IRPC we would be given the right to apply for refugee status and assisted with our refugee applications."

In cross-examination he said that the statement was made in English and translated into Cantonese. At first, he could not identify either the official or the interpreter. Later, he said that the interpreter was a female and her name might have been Cheung. Mr Rodigari identified himself as the DIEA official who had made an address in 'J' Block. He said that because of the large number of the applicants and the confines of the room in 'J' Block, he could not be certain that all persons were within hearing. But he steadfastly repeated his earlier denial that he had made any reference to "refugee status". Ms Cheung, who interpreted for Mr Rodigari on that occasion, confirmed that he had not used these words.

Elsewhere in his affidavit, Wu Yu Fang had asserted that at the time when the Compliance Interviews were being compiled, C.C. Lai, one of the interpreters had said "after completing this form then you can get forms for refugee status". In cross-examination Wu Yu Fang conceded that C. C. Lai had not used the words "refugee status". He also conceded in cross-examination that Joseph Yu, the centre welfare officer, had not used the term "refugee status" as claimed in one of his affidavits. Tang Shang Qi had also asserted in his evidence in chief that C.C. Lai had used the expression "refugee status" on the same occasion but he also fell away in cross-examination, acknowledging that he did not understand what the term meant; but he added that he first heard the words when C. C. Lai spoke them, thereby contradicting the concession that had been made by Wu Yu Fang. Tang Shang Qi was asked could it be that C.C. Lai said that the compliance interview would assist in assessing his eligibility to stay in Australia but he steadfastly maintained that the term "refugee status" had been used.

The evidence of Wu Yu Fang and Tang Shang Qi had been given on Wednesday 14 June; the uncertainties in their evidence about the use of the term "refugee status" was not apparent on Friday 16 June. On that day, eight witnesses, He Shi Man, Li Ming Zhu, Ruan Meng Shi, Tang Long Gu, Zheng Yu Jiao, Zhong Yong Chang, Zhong Shi Hao and Luo Qui Zhang gave evidence; each had deposed in their respective affidavits that when addressed by an immigration official after they had reached 'J' Block the term "refugee status" had been used. None of these witnesses was moved in cross-examination. Even those who were told that the captain, Wu Yu Fang had recanted, were unmoved; they insisted that they had been told that the forms that they were required to complete and the interviews that they were undertaking were, in some manner, connected with their applications for refugee status. In order to minimise the risk of any misunderstanding during the course of translation, it had been established, during the course of the trial, that the Cantonese for "refugee status" was "nam min sun fun" and on occasions, to ensure that there was no doubt, the interpreter was asked to verify that a particular witness had said "nam min sun fun" when giving his or her answer. This evidence then has to be balanced against two competing considerations; first, there are those applicants who claimed in their affidavits that "refugee status" had been used but later withdrew that claim; secondly, there are those applicants who swore or affirmed affidavits but who made no mention of whether they had attended the 'J' Block meeting and, if they had, whether they had heard the term "refugee status" used by any official.

Six officers of DIEA who acted as interviewing officers of the applicants gave evidence on behalf of the respondents. They were Mss Thomson, Garven, Martin and Canard and Messrs Hudson and Clisby. These officers commenced interviewing members of "The Albatross" group shortly after their arrival in Port Hedland and after Mr Rodigari had addressed the larger group. Each of them maintained in their respective affidavits that at no time while she or he was in contact with any of the applicants was there a request for access to a lawyer; each of them further denied offering assistance to make an application for "refugee status". These and other witnesses referred, in their respective affidavits, to the contents of par9 of the affidavit of Wu Yu Fang that was sworn on 22 February 1995. They each said she or he had "no knowledge of any address being given to the Albatross people on 19 November 1994". That was not, however, what Wu Yu Fang had said in his affidavit. He had deposed in these terms:
"On the 19th of November, 1994, I was relocated in the Centre along with the other 117 people on board my boat to D block. Shortly before being relocated to D block a male officer from the Department of Immigration and Ethnic Affairs addressed a group of people from my boat, including myself. He told us that if we observe the camp rules and regulations then there were bound to be people helping us apply for refugee status."

I am satisfied that in this passage in his affidavit Wu Yu Fang was referring to Mr Rodigari's address in 'J' Block to which reference has already been made.

Of the six interviewing officers, Ms Martin alone, was cross-examined in depth. She explained that, as an interviewing officer, she was alert for "key words", a term that was familiar to the next witness, Mr Hudson. Ms Martin explained that "key words" were words such as "humanitarian", "human rights", "refugee", "protection", "asylum", "freedom" or any other word which, to an interviewing officer, might suggest that the interviewee could be seen to be invoking Australia's protection obligations. According to Ms Martin's evidence, if such a word was used, it would be incumbent on the interviewer to clarify its use, but that was, so she said, the extent of the officer's duty; the compliance interview would then be submitted to the leader of the Task Force, Mr Rodigari, for him to make an assessment and take further action if that was required. That action might extend to referring the matter to a more senior officer within DIEA in Canberra. Mr Clisby accepted that "key words" would activate his interest as an interviewing officer but he expressed himself somewhat differently by saying that they would be words which suggested "a well-founded fear of persecution" in the event that the interviewee was returned to his or her country of origin.

Counsel for the applicants was, I thought, not correct in criticising this passage of evidence. He argued that DIEA's concentration on key words led to a preoccupation with form, thereby overlooking the substance of an applicant's status. In my opinion, it brings about the opposite result: the Department is looking for any word which could properly act as a trigger. I accept as reasonable the following passage from the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status:
"The expressions 'fear of persecution' or even 'persecution' are usually foreign to a refugee's normal vocabulary. A refugee will indeed only rarely invoke 'fear of persecution' in these terms, though it will often be implicit in his story. Again, while a refugee may have very definite opinions for which he has had to suffer, he may not, for psychological reasons, be able to describe his experiences and situations in political terms (para 46)."

But all those difficulties could be circumvented by careful, patient questioning, coupled, of course, by a constructive approach by the interviewer that is intellectually honest.

Selected compliance interviews were put to some of the interviewing officers during the course of their cross-examinations. They acknowledged the accuracy of their contents which, by and large, told the same, consistent story of homeless people without work who considered themselves stateless and were looking to make a fresh start in Australia - which they regarded as the land of plenty. There was an occasional reference to one of Ms Martin's key words; for example, Zhao Gui Fang used the word "refugee" in relation to his Vietnamese/China connection. In his compliance interview, in answer to question 5 - "What is your country of nationality?" he said: "In Vietnam they overseas Chinese in China they call me refugee I do not know".

Another example of the use of a key word is to be found in the transcript of the recorded interview of Deng Zhi Xi:
"Why did you decide that Australia is where you wanted to come to?

Because I wished to go to Australia. Has humanitarian and also is a very big country with very little people so I can go to Australia.

What do you mean by humanitarian?

Humanitarian means the country treated the people well."

Aided by the explanation that Ms Martin had given about the manner in which the interviewing officers went about their tasks, it became obvious that the attitude of DIEA was to question the detainees closely, and in detail, but in a non-leading fashion. The department, through its interviewing officers, was alert, on the one hand, to react to a claim for refugee status (irrespective of the actual words used) but was determined not to put words into the mouths of the interviewees. This may seem, to some, to be a hard-hearted attitude when regard is had to the fact that most, if not all, boat people, are non-English speaking with minimal education. On the other hand, there is force in the proposition that their very ability to get to Australia is indicative of their resourcefulness and the detail of the questions in the compliance interview (as well as the detail of the tape recorded interviews) shows that the questions asked of them were searching and pertinent and afforded them every reasonable opportunity to state their reasons for coming to Australia. I am satisfied that no member of DIEA knowingly used the words "refugee status" or, indeed, any key-word during this critical stage of the interviews. And I am not satisfied that any such word or words were used accidentally or unwittingly by any such officer.

4.        19 November 1994 - "The Notice"
           The applicants were moved from 'J' Block to 'D' Block on 19 November. Was there a notice posted somewhere in 'D' Block containing a series of short statements in the English and Chinese languages such as "I wish to see my lawyer"? It is common ground that there was such a notice in 'J' Block and I am satisfied that Ex.R5 was that notice. Some applicants did not recognise it; some, such as Tang Shang Qi and Zhao Gui Quan positively said it was not the sign from 'J' Block. Others said that it looked familiar but they were not sure. This is to be expected. The applicants were only in 'J' Block from 15 to 19 November 1994; to be asked to recognise the notice after a period of almost seven months (there being no suggestion that their attention had been drawn to this subject before) is a very difficult task. But He Mei Yuan, Zhan Mei and Liu Mei Ying, three, young, alert women, all recognised it as the sign that they had seen posted in the main corridor in 'J' Block. Chen Yuan Fa also recognised the exhibit as the notice from 'J' Block but his evidence must be scrutinised with care as will become evident.
Acceptance of Ex.R5 as the sign in 'J' Block poses difficulties; it consists of three (3) pages of A4 paper, yet every witness who claimed that there was a notice in the common room (or TV room) in 'D' Block said that the notice was one (1) page only. With one or two exceptions they agreed that the page was A4 size. The first page of the 'J' Block notice contained 5 numbered statements in English followed by their Cantonese counterparts; four statements numbered 6, 7, 8 and 9 appeared on another page and, finally, statements 11 to 15 were on a third page. The statement that was numbered 9 was handwritten and there is no number 10; all other statements are in large typeface. The questions in English were as follows:
1.I want to see Nurse Jo             2. I want to see Nurse Karen

3. I want to see Centre Manager            4. I am sick
5. Condom  6. Can you please go to bed
7. Can you please be quiet  8. Shampoo
   Toilet Paper
   Toothbrush
Soap

9. I want Medicine please              10.       -
11. What is your name?  12. What is your Visitor's name?
13. What is your room number?            14. I want a cigarette
15. Spoon
    Comb
Tang Shang Qi alone of all the applicants, produced supporting evidence of the existence and contents of the notice in 'D' Block. His evidence, which I have no cause to doubt, was that he had written the statements into a notebook in both languages; one of his reasons for doing this was his desire to learn English. The statements (in English) as extracted from his notebook are:
.I am sick.I want to see the nurse
.I've got a headache             .I've got a stomach (sic)

.          I've got a toothache             .          I wish to see my lawyer
.          Condom please  .          I wish to see the Manager
.          I am suffering from insomnia          .          I want to make a phone call to
           caused by worry  lawyer
.          Soap  .          Toothpaste
.          Washpowder
There are numerous differences when one compares the contents of the 'J' Block notice with the entries in Tang Shang Qi's notebook. Most importantly, there is no reference to a lawyer in Ex.R5, the 'J' Block notice. Questions dealing with names and room number (11, 12 & 13) in Ex.R5 are not reproduced in the notebook and the question concerning the manager has changed from: "I want to see the Centre Manager" to "I wish to see the Manager". In addition, the language of the statement "I am suffering from insomnia caused by worry" does not have immediate appeal as the language of an English speaking official. But, fortunately, I am not concerned with the identity of the author of the notice; I am only concerned to find out whether it existed.

Various applicants came forth giving evidence that they had seen a sign in 'D' Block which had statements in both languages. All those witnesses placed the sign in the same position; they said it was taped to the wall between the doors of the TV room and the wash basin. The best evidence about the doors that led into the TV room from outside came from Acting Superintendent Long, the APS officer in charge at the IRPC at Port Hedland. He especially examined them after the applicants had given their evidence; he did so for the purpose of verifying that there are two doors, each with glass panels in their top half; there is then an 18cm step down outside to ground level.

He Mei Yuan, Zhan Mei and Liu Mei Ying, the three young ladies to whom reference has already been made all claimed that there was such a notice. Liu Ren Hui could recall that the sign had the statements "I want to see a lawyer"; "I want to see a nurse"; and "I want to see the manager". He did not name any others and he claimed that although he knew that there was a notice in 'J' Block he was not sure of its contents; in a somewhat confused section of his evidence (at pp50-51 of the transcript) he seems to suggest that the 'J' Block notice also contained the statement "I want to see a lawyer", but that, of course, is clearly wrong. Others who said that they saw the sign in 'D' Block included Zhao Gui Quan, Xian Lian Jiao and Mo Jin Wei. Zhu Yue Wen, a young man of nineteen said that there was a sign in "D" Block and that it had seven numbered "signs". Some that he could remember were "I want to see my lawyer" "I have a tummy ache" and "I want to see the nurse". Mo Run Fa, a youth of 16, also said that he had seen a notice to the left hand side of the doorway; Hu Zhuo Hui said that there was a sign in 'J' Block which was similar to the one in 'D' Block. He thought that Ex R5 was similar to the sign in 'J' Block but he was not certain.

Mention should be made of a curiosity in the evidence of Huang Shi Yi. This young man very positively stated that the notice in 'D' Block had nine (9) statements and that the numbers for certain requests were as follows:
. No 5 "I want to see a lawyer"
. No 7 "I want to see the manager"
. No 9 "I want to ring my lawyer"

The curiosity is that he named the requests in the correct order and correct spacing. But, relying on Tang Shang Qi's notebook, they were the 6th, 8th and 10th entries and there were in all, 13 entries - not 9. In my opinion, this is probably a case of reconstruction on the part of Huang Shi Yi. I find that there was such a notice in the TV room in 'D' Block, that Huang Shi Yi had a good memory of its contents, but not as good as he believed. However, his evidence and the contents of Tang Shang Qi's notebook are, to a limited extent, mutually self supporting.

In his affidavit of 23 February 1995 Officer Darren Sharp had said that he did not recall "any printed sheet of paper in 'D' block" as earlier described by Chen Yuan Fa in an affidavit. However, in cross-examination (p479) he commented that he could not recall having gone inside 'D' Block. He was therefore forced to concede that he was not in a position to say whether or not "there was anything on the wall in 'D' Block".

Mr Richardson who was the Centre Manager at all times relevant to this trial swore an affidavit dated 28 March 1995; he was made available for cross-examination. During the course of his cross-examination he first said the he could not recall a notice in 'D' Block although he had seen such a notice in 'J' Block. However, in answer to a further question, he had to admit that he had no recollection of actually visiting 'D' Block during the months of November and December. Mr Long, the Senior APS officer, said that he was in the habit of examining all blocks; he had no recollection of any such notice in 'D' Block and thought it unlikely that there would be such a notice as 'D' Block had only recently been occupied as an isolation block with the transfer of "The Albatross" group. Officer Levin Hardinge also said that he could not recall such a notice.

The general body of evidence from the applicants was that the notice was taken down from the wall by Chen Yuan Fa when he went outside to speak to the guard; it was later returned to the wall of the common room in 'D' Block. Zhao Gui Fang said that it was Chen Yuan Fa who returned the notice; but he is alone on this subject; Chen Yuan Fa said that he had nothing in his hand when he came back into the room and no other witness claimed responsibility for returning the notice to the wall. The same general body of evidence covered two additional points: a few days later, some of the statements in the notice were crossed out with a heavy, black-coloured, felt pen and, a few days later again, the sign was removed altogether. No witness has seen the sign since. Huang Shi Yi said, in evidence, that he had taken the sign, in company with Liu Ren Hui to an APS officer whose name was, he thought, Levin; it subsequently became apparent that this was a reference to APS Officer Levin Hardinge. Huang Shi Yi said in his affidavit that his purpose in doing that was to ask why the statements had been crossed out. Huang Shi Yi then went on to say in evidence that as they were talking another guard, with the badge number 5028, came over, grabbed the notice, screwed it up, threw it on the ground and said, in Cantonese, "useless". The involvement of two guards, one named Levin and one with a badge no: 5028 were very important matters but neither was mentioned in his affidavit. All that he said in his affidavit on the subject appears in paragraph 4:-

"About a week after I moved to D Block I saw that the lines about seeing a lawyer and seeing the Manager were crossed out. About 2 days after I saw this I took the sign down from the wall and Liu Ren Hui and I took it to the APS officer sitting outside the Block and asked him why these lines were crossed out. The officer said words to the effect that the crossed out lines were useless and then threw the sign on the floor. This is the last time that I have seen this particular sign or any other similar sign."

This passage gives the clear impression that only one officer was involved in the incident. Officer Sharp acknowledged that his badge number was 5028 and he also acknowledged that he could speak a few words of Cantonese; he knew the Cantonese word for "useless". But he denied knowledge of or participation in the incident to which Huang Shi Yi had referred. Officer Hardinge also denied any knowledge of any such incident. I found him a particularly impressive witness. He was young, fresh faced and exuded a genuine concern for the detainees. He tried to the best of his ability to accommodate the possibilities and permutations that were put to him in cross-examination but he baulked at the possibility that he would forget an incident such as had been described by Huang Shi Yi. Officer Hardinge's word for such conduct was "negative", meaning, as I accepted his evidence, that he would find such conduct from a guard towards a detainee reprehensible and conduct that he was unlikely to forget: see generally his evidence at p730. There was no other identification evidence and Liu Ren Hui did not refer to the incident in his evidence. In all the circumstances, there is insufficient evidence to find that Officer Sharp and Officer Hardinge participated in such an incident.

However, I remain satisfied that there was a notice on the wall of 'D' Block which contained statements in the English and Cantonese languages such as "I wish to see my lawyer". I also accept that Chen Yuan Fa removed that notice from the wall and took it outside with him when he went to speak to the APS guard. I find that the notice was later returned to its place on the wall and that thereafter some of the entries were crossed out with a heavy pen or marker. I am unable to make a finding about the final disposition of the notice. It is possible, as Huang Shi Yi has said, that he took it down, but I do not think so. Faced with Officer Sharp's denial, the strong impression that Officer Hardinge made in also denying the incident, the inadequacies in Huang's affidavit and the failure by Liu Ren Hui to support his version of the facts, I decline to make a finding that any APS guard screwed up the notice and threw it away. Finally, I should make it clear that my readiness to accept Officer Hardinge as a witness of truth, coupled with the other factors that I have mentioned makes it more likely than not that the additional evidence of Huang Shi Yi was no more than a last minute concoction aimed at bolstering the case of assault against Officer Sharp.

5. 23 November 1994 - "Chen Yuan Fa"
The applicant, Chen Yuan Fa, was only seventeen years of age when "The Albatross" landed at Darwin; he had accompanied his widowed mother, Deng Zhi Xi on the voyage from PRC. Perusing the contents of his affidavits, one gained the impression that he might be a somewhat precocious young man. He said:
"About one week after I arrived in 'D' block, and on or around November 23rd, 1994, I had heard nothing about how my refugee application was progressing and I wanted to see a lawyer to get some information about my situation. I took down the printed sheet of paper which was on the wall in our block which was in English and Chinese and which was used for communicating with the Australian Protective Services (APS) guards.

I went outside with the piece of paper to where the APS guard was sitting behind a table. I approached him and showed him I was requesting to see a lawyer by pointing to the printed sheet where it said in Chinese and English 'I want to see a lawyer'."

Such assertive action would more readily be expected of the Captain of "The Albatross", Wu Yu Fang, or one of the other leaders of the group such as Liu Ren Hui, rather than a youngster such as Chen Yuan Fa. Even so, it would seem that he was well known to the guards within the centre as a flamboyant and friendly youngster. But, when he entered the witness box he presented as anything but precocious; he gave the appearance of being dim-witted; he lacked emotion; he was slow in his answers and generally presented himself in a most unfavourable light. For example, he said how he heard an immigration official in Darwin tell his group that they would be assisted in applying for refugee status. When asked what else had been said he answered that he could not remember? He was asked why he could not remember; he answered saying that it was because he was so happy when he heard that they would be assisted with their applications for refugee status. But when he was asked what this meant, he confessed that he did not understand.

Unfortunately, Chen Yuan Fa failed to withstand the rigours of cross-examination; he made the common mistake of improvising and it became apparent very quickly that there were areas of his evidence that were unreliable. His main weakness was his inability to explain how he, as a mere youth, would have the right or authority to approach a guard and, in the name of the group, state that he wanted to see a lawyer. Yet that was his evidence. After long and painful pauses he said that he had first consulted his mother and after another long pause he said that he had consulted Wu Yu Fang; but at that stage Wu Yu Fang had already given his evidence. That evidence included specific reference to the Chen Yuan Fa incident and Wu Yu Fang made no mention of any such consultation. When Chen Yuan Fa's mother, Deng Zhi Xi, later gave evidence, she contradicted him, saying that he had acted without her knowledge.

Chen Yuan's Fa's evidence about the alleged assault is relatively short and to the point. He said that the APS officer stood up -
"... took hold of the clothing at the back of my neck and pushed and propelled me towards the door of 'D' block, which was about 1 or 2 metres away. Upon reaching the doorway of D block, still grasping my clothes, the APS officer opened the door with his spare hand, and pushed me through. As he let go of me, he simultaneously kicked me in the buttocks, which had the effect of sending me off balance."

This section of Chen Yuan Fa's evidence is supported by several witnesses who remained unshaken despite firm, but fair, cross-examination. Liu Ren Hui heard a noise and looked towards the door. He saw Chen Yuan Fa with a male APS officer behind him; he saw the officer push the youth with his hand in the middle of his back at about shoulder height. Liu Ren Hui did not however refer to the officer kicking Chen Yuan Fa. Wu Yu Fang was in the TV room when he heard a noise; he agreed that there were a lot of people in the room and that he could not see too much, but he claimed that he saw an APS officer behind Chen Yuan Fa in the doorway and he saw the officer push and kick Chen Yuan Fa.

Undoubtedly, the most memorable witness in the trial was Hu Yue Jiao, the wife of Wu Yu Fang. Despite a complete lack of English, she was a natural comedian and at times her sense of humour became infectious. She was totally intolerant of lawyers; she had come to court to tell her story and their questions were of no value to her; she intended to have her say and in the end she had her way. She told of seeing Chen Yuan Fa being pushed and kicked and then, dramatically, she collapsed in the witness box and fell to the courtroom floor. Fortunately she recovered and concluded her evidence the next day. This woman just has to be believed; it would be impossible for her to put on such an act; she just exuded truth; she was voluble, excitable, emotional and probably irrational at times. But she saw that young man pushed through the door and given some indeterminate sort of kick to help him on his way. Numerous other witnesses deposed to the same incident. Some were guilty of embellishing: some, I feel did not distinguish between what they had seen and what they had been told.

Zhu Yue Wen said that he saw Chen Yuan Fa take the sign from the wall; at that time he (Zhu Yue Wen) was sitting in the TV room watching television. He claims that he later saw the APS guard open the door holding Chen Yuan Fa by the collar; he also said in his evidence in chief that "(t)he APS guard kicked Chen Yuan Fa back inside the television room". Although he made no reference to it in his affidavit, Zhue Yue Wen insisted, on several occasions during his cross-examination, that he saw the guard push Chen Yuan Fa into the room. When asked about the kicking incident, he voluntarily left the witness box and demonstrated what he saw the guard do; it seemed to me that the demonstration indicated that the guard had used his knee in a "pushing" manner rather than as a "kick" - certainly it did not suggest a kick with the foot as some witnesses had suggested. Mo Run Fa said that he also was watching television when he saw Chen Yuan Fa being pushed inside the common room and being kicked by an APS officer. He said in his affidavit:
"The officer held the door to the common room open with one hand and with the other hand he had hold of Chen's clothing and he kicked Chen back inside the room."

Upon demonstrating how the kick occurred, it seemed as if the knee would have made contact, yet, in answer to a question from the court, the witness said it was the foot. Ma Cong Fa also gave evidence that he saw the same incident. He said that Chen Yuan Fa was being pushed; when he first saw him, he was in the doorway with the guard behind him, but still outside. His interest in the incident seemed slight for he explained that after the incident he resumed watching television. His demonstration of the kick showed that his right toe did not lift more than two feet from the ground; however he did not see what part of the officer's leg made contact with Chen Yuan Fa; it would seem from his demonstration that it must have been the knee for he claimed that Chen Yuan Fa was kicked high on his thigh near the buttocks.
The demonstrations of both Mo Run Fa and Ma Cong Fa were noticeable for their lack of energy. Feng Rui E, a young girl of about 17, had described the kick as "quite heavy" but in her oral examination in chief and cross-examination it became apparent that this was an exaggerated description. Even so, she said that the guard looked serious and she did not regard it as a joke. When asked to demonstrate the kick it was inconsistent with the proposition that the officer's foot kicked Chen Yuan Fa in the buttocks; like the earlier witnesses it seemed more likely that the knee would have been the contact point. She knew that there was a step at the door so that the officer was at a lower level; but she remained convinced that the contact point was in the area of the buttocks.

Hu Zhuo Hui was also a witness who observed Chen Yuan Fa before he went outside. He said that he heard him say that he was going to speak to the APS officer. Hu Zhuo Hui watched - no doubt he was curious; his description of the events that followed fitted generally into the pattern of evidence that had started to emerge; he said that the incident began with the guard swinging Chen Yuan Fa around and then grabbing his clothing and pushing him back inside the common room of 'D' Block. Under cross-examination, Hu Zhuo Hui agreed that he did not have a clear view of the whole incident and, in particular, because Chen Yuan Fa was between him and the APS guard, he could not see clearly where he had been kicked; he thought, however, that it would have been somewhere between the upper thigh and the lower back.

None of the witnesses were able to name the APS officer although Chen Yuan Fa said his badge number was 5028 which, as I have already said, is Officer Sharp's badge number. Perhaps the identification problem is best explained by recounting Hu Yue Jiao's observations about the APS guards: "They all have a big nose and a beard" (p274).In his affidavit of 23 February 1995 Officer Sharp deposed that he has been employed by the Australian Protective Services ("APS") as an APS Security Attendant at the IRPC since 19 October 1992; his APS badge number is 5028. He knew that the occupants of "The Albatross" had been housed in 'D' Block in quarantine where, as he said in his affidavit, "I had been rostered on for duty on a number of occasions...". In his oral evidence, he acknowledged that he knew Chen Yuan Fa as a lively youngster who could be somewhat of an irritant and a nuisance. However, in his affidavit he denied "ever holding, pushing, kicking or in any way roughly handling Chen Yuan Fa" and he repeated that denial in his cross-examination.

In his affidavit, Mr Sharp also denied that Chen Yuan Fa "or any of the Albatross persons" had ever approached him with a request to see a lawyer; however in his oral evidence in chief he volunteered that he considered it more accurate to say that he did not remember any such request having been made.

Details of Officer Sharp's shifts and duties from 15 November to 13 December 1994 were tendered in evidence. Bearing in mind that the Chen Yuan Fa incident was said to have occurred shortly after breakfast, and as breakfast commenced at 7.30 am and concluded at 8.30 am, the relevant times of interest would be between 8.30 am and 9.00 am (or thereabouts) on 23 November 1994 or within a few days either side of that date. By reference to the summary of Officer Sharp's rosters and the evidence of Acting Superintendent Long, Officer Sharp was on night duty on 14, 15 and 16 November; he was then rostered off and did not start work until 9.30 am on Friday 18 November; he was on night duty again on Saturday 19 November. He was absent on sick leave on Monday 21 November and on day shift commencing 6.00 am on Tuesday and Wednesday 22 and 23 November. He returned to night shift on 24 November and remained on night shift through to 2 December. Thereafter he was rostered off to 7 December and resumed day shift for the four days, 8, 9, 10 and 11 December. It is to be expected that the applicants might have difficulties in being exact about dates and times; they were in a strange country and in a strange environment. They had no calendars and their watches had been temporarily confiscated. Thus it would be unreasonable to hold them to precise dates and times; rather, it would be fairer to take their evidence as meaning dates and times to the best of their memories. Yet, even on this basis, Officer Sharp's rosters for the relevant period point to Tuesday and Wednesday 22 and 23 November as the only likely days when he was present in the centre at and shortly after breakfast. Friday 18 November is a possibility but it is a remote possibility because he did not start work until 9.30 am and Thursday 6 December and the succeeding days seem to be too far away from the likely date of the alleged assault.

The daily roster for 22 November shows that Officer Sharp was allocated to 'K' Block from 9.00 am to 10.00 am and from 4.00 pm to 5.00 pm; he was on duty in 'J' Block from 12 noon to 2.00 pm. For the balance of the 12 hour day from 6.00 am to 6.00 pm he was on general duties, patrolling, escorting, and generally available on an "as needs" basis; these general duties are called "roving duties".

On 23 November, he commenced his day with a two hour tour of duty at 'J' Block from 6.00 am to 8.00 am with another two hours at that Block from 2.00 pm to 4.00 pm; he also had two one-hour periods at 'K' Block at 10.00 am and 5.00 pm. The balance of the day was spent on roving duties. However, the difficulty in placing total reliance on these rosters for these days is the fact that they do not show any Officer being on duty at any time at 'D' Block; yet it is common ground, as Officer Sharp acknowledged, that 'D' Block was then occupied by "The Albatross" voyagers and that guards would assuredly have been allocated to that Block. Officer Sharp could not satisfactorily explain this discrepancy. Mr Long offered the explanation that 'C' and 'D' Blocks had only recently become isolation Blocks, requiring guards, and the supervisors who prepared the duty shift allocation sheets had not got into the habit of inserting those Blocks in the daily sheets. Mr Long also said that the APS records showed that Officer Sharp was on duty in the Control Room acting as Communication Officer at 09.05 hours on 23 November. The existence of an entry by another officer in the records at 09.30 on the same day and the practise of an officer serving a period of two hours as Communications Officer suggested to Mr Long that Officer Sharp was on duty in the Control Room from 07.30 to 09.30 hours on 23 November - but he could not be certain. This proposition would also mean that it contradicted the daily roster which had placed him at 'J' Block from 6.00 am to 8.00 am on the same day. The most that can be said is that the times allocated to Officer Sharp for roving duties from 6.00 am to 9.00 am on 22 November and from 8.00 am on 23 November may, in whole or in part, have been used for guard duties at 'D' Block. But such a possibility falls far short of the requisite degree of proof.

The fact that the identification of Officer Sharp was in issue had been apparent from as early as February 1995. On 23 February he had sworn an affidavit denying all knowledge of the Chen Yuan Fa incident. Even though the applicants were in detention in Port Hedland, hundreds of miles away from their legal advisers, they still would have had opportunities, within the centre, to make inquiries about the identity of the offending officer; they could have asked other guards or interpreters or welfare officers - they could have asked other inmates. If such inquiries were made, no evidence of them was led. It might even have been possible to invoke the aid of the court; this could have been a case where the court might have considered it appropriate to make an order under O 15A r3 which deals with the subject of identification of parties. The failure of the applicants to lead any evidence of identification other than the two references to badge number 5028 and the failure of the applicants to make inquiries that were reasonably available to them, coupled with Officer Sharp's denial on oath, led me to conclude that the allegations of assault against that officer have not been made out. I am satisfied that an incident occurred on an occasion when Chen Yuan Fa left the TV room in 'D' Block; I am satisfied that an APS officer "frog-marched" him back very smartly. I am not at all satisfied, however, that the incident was as serious as some would suggest; it savours more of a security guard imposing reasonable constraints when dealing with a precocious youth who was making a nuisance of himself.

6. 22-23 December 1994 - "The Manager"
Liu Ren Hui said in evidence that he knows a lawyer as a person who helps others in legal proceedings. He said that he wanted a lawyer but, as he did not have any money, he did not have the ability to do anything about it. But it was his evidence that on two occasions he asked the Centre Manager, Mr Richardson, to see a lawyer; both occasions were shortly before Christmas and after the group had moved from the isolation of 'D' Block to 'A' Block; that move was made on 11 December. The first request was made, so he claimed, when he accidentally met Mr Richardson in the mess-hall; he said that Mr Richardson was accompanied by one of the interpreters whose name was Shirley; he did not know her surname but he described her as having blemishes on her face. Liu Ren Hui claimed that Mr Richardson said that it was up to the Department of Immigration to arrange lawyers "and you have to wait patiently for the outcome". He Shi Jiu, who had been working in the kitchen, claims that he saw such a meeting between these three people, although he could not say what had been said. Chen Jin also said that he saw such a meeting and added that a short Chinese female interpreter with pimples was present. On the second occasion, which was a day or so later, Liu Ren Hui was part of a delegation with Wu Yu Fang and Zhao Gui Fang who decided that they would approach the Centre Manager and ask him about a lawyer. On this occasion the three men met Mr Richardson outside the main Administration Block as he was leaving the Block (this meeting occurred by coincidence - not by appointment). According to Liu Ren Hui Mr Richardson said:

"... he only looks after the IRPC and seeing a lawyer would have to be arranged by the Department of Immigration and Ethnic Affairs (DIEA)."

Wu Yu Fang, in his affidavit of 20 March 1995 claimed that Mr Richardson said that "DIEA in Canberra" would have to arrange the lawyer. Li Chen Zhen, Chen Jin and Li Ming Zhu all said they observed such a meeting between the three delegates and the Centre Manager shortly before Christmas but none heard what was said save Chen Jin who claims that the manager said something about having to get cheaper lawyers.
In par15 of his affidavit of 28 March 1995, Mr Richardson denied "having a meeting with the representatives of the Albatross group on or around 23 December 1994"; he also denied that there had been any request for a lawyer as alleged. He added, during his cross-examination, that he had no recollection of the earlier separate incident when Liu Ren Hui approached him in the mess hall; Mr Richardson claimed that he first met Liu Ren Hui in mid January when there were discussions about the fate of "The Albatross".

Mr Richardson admitted that the detainees were in the habit of congregating around the front of the Administration Block (where his office is situated); he also conceded that his duties required him, at times, to walk around the centre, often in company with an interpreter. But a check of the centre's records had revealed that there was not a female interpreter named Shirley on the staff of the Centre until Shirley Wong was appointed for the period 30 December 1994 to 5 January 1995.

It is a possibility that Mr Richardson was approached by Liu Ren Hui and later by the delegation of three and that he had forgotten both incidents. It is apparent that the centre was exceptionally busy in November and December 1994. The following extract from Mr Richardson's affidavit shows the extent of the activity:
"Subsequent to the arrival of the detainees from the Albatross in the IRPC there were a number of further boat arrivals. On 18 November 1994 the boat codenamed Brolga arrived with 89 people; on 22 November 1994 the boat codenamed Cockatoo arrived with 84 people; on 11 December 1994 the boat codenamed Eagle arrived with 89 people and a further 315 people arrived before the end of 1994. All were accommodated in the IRPC and changes to normal procedures were required. One such adjustment involved the utilisation of some blocks previously used for other purposes, as accommodation blocks. Due to the need for additional quarantine areas for new arrivals, some of the accommodation blocks in the main part of the IRPC became quarantine areas. D Block was one of these and the Albatross detainees were moved to this block on 19 November 1994. They remained in D Block until 11 December 1994 when they moved into the main compound. Initially all new arrivals are required to be kept indoors between dusk and dawn as a preventative measure whilst treatment for possible cases of malaria is conducted."

But such a possibility (that he might have forgotten the meetings) must be discounted on Mr Richardson's own evidence. He said that a request for a lawyer was of sufficient importance that, if such a request had been made, he would have responded to it. In fact, it would seem that on 12 and 13 December the subject of legal advice for boat people was the subject of specific action by Mr Richardson. He acknowledged that DIEA Canberra had submitted a facsimile transmission to him requesting confirmation that none of the persons on "The Albatross", "The Brolga" or "The Cockatoo" had asked to be provided with access to legal advice. He, in turn, had rang Canberra and given information (details of which he could not now remember). In his evidence he said that he had:
"... advised them of the people that had made requests to see lawyers at that time." (p668)

He added that it was his recollection that some members of "The Cockatoo" had made such a request. Apparently, the information that Mr Richardson passed on to Canberra was insufficient for, as he acknowledged, on the following day, there was a further facsimile transmission in these terms:
"Dear Malcolm, your message left is not sufficient. I need to know exactly who on the above boats has requested access to legal assistance."

The significance of this evidence is, in my opinion, that Mr Richardson was alert to the importance of a detainee requesting legal advice and that he knew the identity of the person in DIEA in Canberra with whom to make contact if such a request was made. It is also significant because it shows that Mr Richardson knew that a request for legal assistance was a matter of interest to Canberra.

Another reason for considering that Mr Richardson would be alert to any issue of legal representation was because Mr Ross McDougall, a solicitor employed by the Refugee Advice and Casework Service, had written him (Mr Richardson) by letter dated 24 November 1994 requesting that DIEA "furnish our lawyers with access to all persons that arrived in Australia on the boat code-named 'Albatross'...". Ruth Cheetham, acting Director of Litigation 1 Section DIEA Canberra, replied to Mr McDougall by facsimile transmission on the same day in these terms:
"Your fax to the Manager of the Immigration Reception and Processing Centre at Port Hedland has been referred to me for response.

No decision has been made for the Government to fund legal assistance for the persons from the boat codenamed 'Albatross'.

None of the persons from that boat have requested the provision of reasonable facilities for obtaining legal advice.

Accordingly, the Department formally declines to furnish your lawyers with access to the persons from the 'Albatross'."

It is not apparent from the evidence whether Mr Richardson was advised of Ms Cheetham's answer to Mr McDougall but he knew, at least, that the Refugee Advice and Casework Service was expressing keen interest in the question of legal advice for "The Albatross" detainees.
I think that it is probable that by that time, (i.e. just before Christmas) the applicants had found out that other boat people in the centre had been given access to legal advice and that they were beginning to feel that the time had come for them to assert their rights. Such a conclusion can more readily be made as a result of the events of the following month, January 1995. In that month there were two written requests to the Centre Manager to see a lawyer and in mid January "The Albatross" people and people from other boats went on a hunger strike, claiming, among other things, access to lawyers. But this serious situation had not developed prior to Christmas 1994; at that stage it was still building up. Having regard to Mr Richardson's evidence generally on the subject of legal access to detainees, I am not prepared to find that any such request was made to him before Christmas 1994. I feel that if such a request had been properly communicated to him, he would have reacted to it appropriately; he had done so earlier on 12 and 13 December; he was aware of the importance of the issue; he knew of Mr McDougall and his willingness to act on a pro bono basis. All these matters point to a conclusion that he would not have ignored a request for legal assistance. In my opinion, the Chinese witnesses have either concocted this evidence or mistakenly confused events that occurred in January 1995. In either event, I am not prepared to find that either of the requests were made to Mr Richardson. I prefer his evidence to that of the Chinese witnesses.

In its final amended form, the Application that was filed on behalf of the applicants in these proceedings sought the following relief:
1.A declaration under Section 21 of the Federal Court of Australia Act 1976 (Cth) that while the applicant (Wu Yu Fang) and the other group members were in immigration detention they were denied procedural fairness because;
(i)they had been detained in isolation since arrival in Australia on 13 November 1995;
(ii)they had been denied their rights under Section 256 of the Act until on or about 17 February 1995;
(iii)there had been intimidation and assault upon one of the group members namely, Chen Yuan Fa, by a guard after he asked the guard if he could see a lawyer following his arrival at the Immigration Detention Centre on or about 13 (sic) November 1994;
(iv)the conduct referred to in (iii) deterred the applicant and the other group members from making further requests of the authorities at that time for legal assistance;
(v)of the failure by the respondents to provide the applicant and the other group members with the means to make formal applications for protection visas.

2.A declaration under Section 21 of the Federal Court of Australia Act 1976 (Cth) that the conduct and representations of the respondents by their servants and agents gave the applicant and other group members legitimate expectations they would be allowed to lodge valid applications for protection visas before 30 December 1994.

3.A declaration under Section 21 of the Federal Court of Australia Act 1976 (Cth) that the Applicant and the other group members made constructive applications for protection visas before 30 December 1994;

4.Further or in the alternative, a declaration under Section 21 of the Federal Court of Australia Act 1976 (Cth) that the respondents by the representations and conduct of their servants and agents, are now estopped from denying that the applicant and the other group members made constructive applications for protection visas before 30 December 1994;

5.A remedy in the nature of Mandamus under Section 39B of the Judiciary Act 1901 (Cth) and Section 21 of the Federal Court of Australia Act 1976 (Cth) that the first respondent, whether by his delegates, servants, or agents, should determine formal valid applications lodged for or on behalf of the applicant and the other group members seeking protection visas on the footing that these applications were constructively made before 30 December 1994;

6.If the acts and declarations of the first and/or second respondents, their servants or agents, amounted to a decision or decisions that the applicant and the other group members had not constructively made applications for protection visas before the 30th December 1994, such decision or decisions were an incorrect interpretation of the applicable law and/or an incorrect application of the law to the facts as found by the first and second respondents, their servants or agents as required by s.476(1)(e) of the Migration Act 1958 (Cth).

In addition, there was included in the application a claim on behalf of Chen Yuan Fa for damages, including aggravated damages for assault. In my opinion that can be disposed of summarily. Although I am satisfied that there was some incident involving Chen Yuan Fa and a member of the APS, it was an incident of little or no consequence. At the extreme, it might have been the conduct of a security officer using reasonable force to control an exuberant youngster. I find that the allegation of assault has not been made out.

The primary relief that was sought on behalf of the applicants was a declaration that they had made constructive applications for protection visas before 30 December 1994. Mr Tracey QC, counsel for the respondents complained that the concept of a constructive application for a visa is wholly foreign to the Act. But I will proceed, without deciding, as if such an application can be made. It was submitted that it was well known that the applicants were "boat people" from PRC and that they had told the Australian officials who questioned them that they were Vietnamese nationals who had fled from Vietnam to China in 1979. An examination of the compliance interviews shows that they contain sufficient references to Vietnam to support a finding that most - and probably all - adult applicants had been born in Vietnam and, in that sense, and subject to the provisions of the law of Vietnam and the law of PRC (of which no evidence was led) they were - and perhaps still are - Vietnamese nationals. Foreign law is a matter of fact to be ascertained by the evidence of experts skilled in such law: Perlak Petroleum Maatschappij v Deen [1924] 1 KB 111.

But counsel for the applicants referred to the contents of "The Memorandum of Understanding" contained in Schedule II to the Migration Regulations (Amendment) Statutory Rules 1995 No 3. That Memorandum, which clearly refers to people such as the applicants, describes them as "Vietnamese refugees". It says in part:-
"...that since 1979 the Chinese Government has provided effective protection to over 280,000 Vietnamese refugees settled in China, including significant humanitarian assistance such as land, housing, medical care, education and employment."

The term "Vietnamese refugees" as used in the Memorandum takes its meaning, in my opinion, from the new reg2.12A which defines the PRC as a safe third country and then provides that the use in that regulation of the word "Vietnamese" is a reference to "nationality or country of origin and not as an ethnic description". If, therefore, the applicants were Vietnam nationals the next question that would need to be determined in an application for refugee status would be the likely operation of Article 1E of the Convention. It states that:-
"This convention shall not apply to a person who is recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of nationality of that country."

The contents of the Memorandum of Understanding suggest that Article 1E might have operation but that is contrary to the general body of evidence that was advanced by the applicants. Their repeated claims of lack of household registration, if found to be true, would constitute a contradiction to the Memorandum and could, in turn, lead to an argument of a well founded fear of persecution (on economic grounds) by reason of nationality if they were returned to PRC: Chan Yee Kun v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379 at 429 per McHugh J. But as I have said, these are matters for another day. It is not for me to decide whether the applicants can invoke Australia's protection obligations but whether they did prior to 30 December 1994 attempt to invoke them. The ten questions that were set out in the compliance interview asked, first, when did the applicants plan to leave China: when did they actually leave: had they been to Australia before and did they have friends in Australia. The fifth question: "what is your country of nationality?" brought about a confusion of answers. Some answered by saying that they did not know. A common answer was that they were called Vietnamese by the Chinese and Chinese by the Vietnamese. Others sadly described themselves as "Stateless". Question 6 addressed the subject of Vietnam by asking "Have you ever lived in any country other than China or Vietnam?" Question 7 asked about their movements en route to Australia and the remaining questions were as follows:
"8.Why did you come to Australia?

9.Why did you leave China?

10.What are your reasons for not wishing to return to China?"

Those last three questions were, and are, very important: the answer to any one of them could have identified factual circumstances that might have identified an applicant as a person claiming to be a refugee for a Convention reason. One of the answers might have suggested, for example, a well founded fear of being persecuted for reasons of Vietnamese nationality if he or she were returned to China; on the other hand, and the view more favoured by counsel for the applicants in his closing address, an answer might have suggested the requisite fear for reasons of Chinese race if he or she were returned to Vietnam. But none of the answers to these three questions in any of the compliance interviews contained any information that could reasonably suggest that an applicant was seeking Australia's protection obligations for a convention reason. The major reasons for leaving China, for coming to Australia and for not wanting to return to China were "nowhere to live", "no work" and "house demolished". As I have said elsewhere, the word "house" was used to describe a make-shift shelter, often constructed of cardboard. Many of the applicants gave, as a reason for leaving China, their lack of household registration. Although no evidence was led to explain its significance, I accept that such registration in PRC is a form of control that the government exerts over its citizens. Registration must be produced to obtain a variety of benefits - not the least of which is employment. An answer from an applicant that he or she could not obtain household registration might have excited the interest of a sympathetic interviewer and voluntarily prompted further questions in an attempt to elicit the reason why such registration was not forthcoming; that in turn, might have given information that could have suggested a convention reason for refugee status. But the Migration Act contains no statutory mandate that would be cause for exciting the interviewer's interest. It is for the applicant to supply the necessary information that would amount to an application for refugee status. There is no statutory obligation on the Department or its officers to make an assumption that boat people are, or are likely to be, refugees in the Convention sense. To the extent to which the Department may have once followed a more benevolent line (and the unreported decisions of the Full Court in Wu Shang Liang v Minister for Immigration (judgment delivered 23 June 1995) and of the Refugee Review Tribunal in V95/2978 (decision delivered 11 April 1995) are good examples of that more benevolent and flexible attitude), there has been a material change at the administrative level and a pronounced hardening of attitude. If it seems incongruous that non-English speaking arrivals are held in detention and in isolation and not informed that they have rights to apply for a protection visa nor informed of the Convention reasons that are essential to the grant of such a visa, it is because there is no statutory provision requiring a DIEA or other official to inform them of such rights.

The applicants cannot draw any support from the decision in Makisi v Minister for Immigration and Ethnic Affairs (unreported: judgment delivered 10 January 1995). That was not a case where the Court made a finding that a constructive application for a visa had been made. The absence of the actual form of application in that case was explained because, according to the finding of the learned trial judge, the DIEA had lost it; in other words, there was a finding of fact that an application form had been lodged. In Hamilton and McMurray v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349 the Full Court was concerned with an application for a class 806 entry permit ("remaining relative ground") by the first appellant Ms Hamilton. Her form of application did not contain any nomination by any person for the grant of the entry permit. This absence was in conflict with the provisions of the regulations (Class 806 (Family and other close ties (after entry) Entry Permit)), cl. 806.722 of which provided that at the time of the application the applicant had to be a remaining relative of a person who "has nominated the applicant for the grant of the entry permit". That nominator did not, however, have to assume financial responsibility for the applicant. A second criterion, specified in cl.806.731, which was required to be satisfied at the time of the decision, was that "an assurance of support in relation to the applicant has been given and has been accepted by the Minister". As Davies J pointed out at 354:-

"Such an assurance is an undertaking of financial support. It need not be given by the nominator but may be forthcoming from some other person."

Ms Hamilton lodged her application for an entry permit, but Mrs McMurray, her mother (who was, to the knowledge of the relevant DIEA officer, prepared to nominate her daughter) did not sign the form of nomination. She did not do so because the officer had incorrectly told her that nomination meant undertaking financial support and Mrs McMurray believed that such support was beyond her financial means. The Court concluded that the form of application, as lodged by Ms Hamilton, amounted to substantial compliance with the procedural requirements of the Act and Regulations. But no such conclusion could be reached on the facts in this case. I have come to the conclusion that there is no evidence that would justify a finding that any of the applicants made known to any Australian official that he or she was seeking to engage Australia's protection obligations to refugees (using that word in the Convention sense); expressed in a different way, I am satisfied that no key words were used by the applicants that would have constituted the necessary trigger to force DIEA to regard them as such refugees.
Of greater difficulty to the applicants is the Full Court decision of Minister for Immigration and Ethnic Affairs v Polat (unreported: judgment delivered 13 April 1995). In that case, the applicant for a visa failed to lodge the requisite application within the required time. It was clear that a contributing factor to his failure was some faulty advice given to him by a DIEA official on an occasion when he attended at an office of the DIEA (within the prescribed time); he was told to return with his application together with his marriage certificate. He did that but his temporary visa had then expired by a matter of days. The Full Court was of the opinion that although it may not have been necessary to lodge the marriage certificate at the time of lodging the application, the marriage certificate was necessary to complete the information which would have to be considered before his application could be determined; the Court found that there was nothing wrong or unlawful in the conduct of the DIEA officer. After deciding that there was no factual foundation for a claim of estoppel Davies and Branson JJ went on to say at 10:-
"An even more important point is that a court may not relieve against non-compliance with a requirement which the statute intends shall be satisfied."

They then referred to the joint judgment of Davies and Gummow JJ in Formosa v Secretary, Department of Social Security (1988) 81 ALR 687 where their Honours said:-
"In our view, the requirement of s159(1) of the Social Security Act that a claim shall be made in writing is of central importance to the administration of the legislation and the sub-section cannot, consistently with the scope and object of the statute, be read as if a claim for a pension is sufficiently made if made orally at an office of the Department to an officer of the Department. The requirement that claims shall be made in writing is not to be characterised as a 'mere matter of machinery for carrying out the undoubted purposes of the Act': cf Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655 at 690." (p.694)

In Polat's case Davies and Branson JJ considered that the Court "cannot make an order so as to contradict the provisions of a statute". Mr Polat had been lawfully in Australia on a prospective marriage visa; that operated as a temporary entry permit for a stay in Australia of 3 months from the date of entry. The findings of the learned trial judge had included findings that Mr Polat knew that he had to arrive in Australia by 25 November and that he had to apply for a confirmatory entry permit after his marriage but within 3 months from the date of his arrival in Australia. The 3 months expired on Friday 15 February; Mr Polat, mistakenly believing that he had until 25 February, attempted to lodge his application and marriage certificate on Monday 18 February. The Court rejected an argument that he should be deemed to have been a person holding a temporary entry permit when, on 18 February, he made application for his confirmatory entry permit; they said that such a proposition was contrary to the facts.

Counsel for the applicants submitted that the completion by the applicants of the bio-data forms and the compliance interviews, coupled with the lengthy, tape-recorded interviews (all of which were completed in November) amounted to substantial and sufficient compliance with the requirements of the legislation for the lodgment of applications for protection visas. Applications for visas are governed by the provisions of ss.45, 46 and 47 of the Act; a non-citizen who wants a visa must apply for a visa of a particular class; regulations may prescribe for the making of an application and an application for a visa will only be valid if it is made in the way required by the legislation. Section 47 is the section which requires the Minister to consider "a valid application for a visa" and sub-s. (3) of that section emphasises that the Minister "is not to consider an application that is not a valid application". Mr Lindsay submitted that the compliance interviews (or, as he called them, the entry compliance forms) contained sufficient information for DIEA to make an assessment of an applicant's request for refugee status. He argued that the relevant Form 866 for a Protection Visa furnished no information additional to that contained in the compliance interview. I do not agree. In my opinion there is an item of information of grave importance in Form 866 that is missing from the compliance interviews. Form 866 contains provisions for the applicant to insert his or her name in the space provided in a printed declaration in these terms:-
"I have had the definition of a refugee as contained in the 1951 Convention and 1967 Protocol relating to the Status of Refugees read to me. That definition states that a refugee is a 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.'

I believe that definition applies to me.

I now, therefore, apply for a Protection Visa (866) giving me permanent residence in Australia, and for recognition as a refugee as defined by the 1951 Convention and related Protocol.

I have been informed of and understand the process to be used in the examination of my claims to be a refugee."

That very important piece of information was not in any of the compliance interviews nor did it surface elsewhere with respect to these applicants before 30 December 1994. The applicants did not, at any time prior to 30 December 1994, make applications for protection visas in accordance with the approved form 866; I take that to be common ground. But in my opinion, nothing that any of the applicants said or did could have amounted to a constructive application for such a visa. Putting to one side whether the provisions of the Act and Regulations are directory or mandatory requirements and assuming that it would have been sufficient if there had been substantial compliance with the relevant provisions, I cannot see how the conduct of the applicants could have amounted to an application for protection visas. Such a visa is only available to an applicant who identifies one or more of the five Convention reasons as the basis for the application. I have rejected the oral assertions that the applicant have made. I now find that the information that they gave to their interviewers (which is recorded in the bio data forms and the compliance interviews) is of no assistance to the applicants: the information does not touch upon the Convention reasons. I have come to the conclusion that the facts, as found by me, cannot support a proposition that the applicants had, prior to 30 December 1994, constructively applied for protection visas or that there had been an application which substantially complied with the relevant provisions of the Act and Regulations.
The findings of fact that I have made are all adverse to the various claims that have been advanced in the interests of the applicants. Those findings and their effect are such that there is no evidence which suggests procedural unfairness or the denial of a legitimate expectation. I have found that the applicants did not request legal assistance; I am also of the opinion that there is no statutory obligation of DIEA officers to inform applicants of their rights to legal advice. Thus, on this subject there was no procedural unfairness nor the denial of any legitimate expectation.

I have rejected the applicants' assertions about what was said on board "The Albatross", what Mr Rodigari said at the school in Darwin and what the interpreters and others said at Port Hedland. I also reject the proposition that it was reasonably open for the applicants to have a legitimate expectation that their completion of the bio-data forms and compliance interviews and their taped recorded interviews constituted an effective application to invoke Australia's protection obligations. I find that the applicants were unaware of such matters as the Convention meaning of "refugee" and the need to identify themselves within that defined meaning until some time much later than the events with which this trial was concerned. I am unable to state precisely when any one or more of them became aware of these matters; my rejection of the evidence that they presented at the trial suggests that it was probably sometime after Christmas 1994 or early in 1995.

The proposition that it was procedurally unfair to detain the applicants in isolation since their arrival in Australia was not pursued in counsel's final submissions. In my opinion there was no substance in this point in fact or in law. The need for isolation was temporary and for health reasons. It ceased on 11 December. Even within that time, a request for legal advice would have been answered, thereby negating any argument of isolation. In dealing with the subject of procedural fairness, I am not to be taken as thereby assuming that it was open to the applicants to argue its operation. My findings of fact render it unnecessary to resolve the argument that was advanced on behalf of the respondents to the effect that an obligation to accord procedural fairness cannot arise independently of any decision making process.

I have therefore come to the conclusion that this application must be dismissed. I will hear the parties on any consequential orders that need be made, including the question of costs. For that purpose there will be liberty to apply on seven days' notice.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Justice O'Loughlin.

Associate
Dated:

Counsel for the applicants :Mr R E Lindsay with
Ms V Moss

Solicitor for the applicants :Legal Aid, Western Australia

Counsel for the respondents :Mr R R S Tracey QC with
Mr A H Silvester

Solicitor for the respondents :Australian Government Solicitor

Dates of hearing :12-17 and 19-23 June and 3, 4 July 1995

Place of hearing :Perth and Port Hedland

[1995] FCA 544

27 Jul 1995