Heshmati v Minister for Immigration, Local Government and Ethnic Affairs

Re: JAFAR HESHMATI
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G352 of 1990
FED No. 502
Citizenship Immigration and Emigration - Administrative Law
102 ALR 367
(1991) 31 FCR 123

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely(1), Jenkinson(2) and Gummow(3) JJ.

CATCHWORDS

Citizenship Immigration and Emigration - Immigration - Entry Permits and change of status - Determination as to refugee status - Refugee sur place - requirement of bona fides.

Administrative Law - Rules of natural justice and breach thereof - Right of party affected to be heard - Nature of hearing - Adverse conclusions - Circumstances in which party affected to be apprised so that he may respond - Whether `error of law' may arise in construing Convention to which decision maker properly may have regard.

Migration Act 1958

Ashby v. Minister for Immigration (1981) 1 NZLR 222

Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321

Chan v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Gunaleela v. Minister for Immigration and Ethnic Affairs (1987) 15 FCR 543

Haider El-Saved v. Minister for Immigration, Local Government and Ethnic Affairs (5 March 1991, unrep, p 6)

Minister for Immigration, Local Government and Ethnic Affairs v. Maitan (1988) 78 ALR 419

Oh Ho v. Minister for Immigration and Ethnic Affairs (1987) 14 FCR 274

Re Ditford; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347

Suttor v. Gundowda (1950) 81 CLR 418

HEARING

MELBOURNE

#DATE 21:8:1991

Counsel and solicitors Mr B.A. Keon-Cohen
for the appellant instructed by Mr E.H. Rodan.

Counsel and solicitors Mr K. Bell instructed by the
for the respondent Australian Government Solicitor.

ORDER

The Court declares that a breach of the rules of natural justice occurred in connection with conduct namely the decision of the respondent's delegate made on 20 April 1990 that the appellant does not have the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967, being conduct engaged in for the purpose of making the decision of the respondent's delegate which was made on 17 September 1990 that the appellant be refused an entry permit under sub-section 6(2) of the Migration Act 1958 and permanent residence status.

The Court orders that:

1. The respondent refrain from acting further upon the said decision of 17 September 1990 until (a) the appellant has been given the opportunity to make in writing, whether under his own hand or that of his solicitors, such representations as he may be advised upon the question of whether the letter of 6 December 1989 was written with the sole or dominant purpose of enhancing his claim to treatment as a refugee "sur place" and (b) those representations have been considered by the respondent or his Delegate, and the appellant or his solicitors have been notified in writing of the result of that reconsideration.

2. The order with respect to costs made by the Honourable Mr Justice Lockhart on 22 November 1990 be set aside.

3. The respondent pay the appellant one half of the appellant's costs of the proceeding determined by orders made on 22 November 1990 and one half of the appellant's costs of the appeal.

4. Save as aforesaid the appeal be dismissed.

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

JUDGE1

In considering this appeal I have had the advantage of reading, in draft form, the reasons for judgment of Gummow J. I am unable to agree that there was a lack of procedural fairness in relation to the appellant's letter of 6 December 1989 ("the letter"), but on all other matters I am in agreement with his Honour's conclusions and reasons.

For the purpose of considering whether there was a lack of procedural fairness, there is no material distinction between this appeal and the appeal in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs in which the same submission was advanced. For the same reasons as those which appear in my reasons for judgment in that matter (judgment in which has been given today), in my opinion there was no failure to accord procedural fairness to the appellant and, as the other grounds of his appeal have failed, the appeal should be dismissed with costs.

JUDGE2

I have had the advantage of reading the reasons for judgment of Keely J. and of Gummow J. The relationship between the circumstances in this appeal and those in the appeal of Somaghi v. The Minister for Immigration, Local Government and Ethnic Affairs is explained by Gummow J. I agree in his conclusion that the appeal should be allowed on one ground. I agree in the orders he proposes in respect of that ground. Except in respect of that ground, I agree in his Honour's reasons. In respect of that ground I state my reasons below.

The decision of 20 April 1990 that the appellant has not the status of a refugee was in my opinion the final event in a consideration and determination of the question decided on that date, which consideration and determination fell within the meaning of the word "conduct" in s.6 of the Administrative Decisions (Judicial Review) Act 1977, and was conduct engaged in for the purpose of making the decision, which was in fact made on 17 September 1990, whether an entry permit should be granted to the appellant. I agree in the reasons given by Gummow J. for that conclusion.
Upon the question as to what procedural fairness required of the delegate I reach the same conclusion as in the case of Somaghi. The relevant circumstances are not significantly different. In each case a copy of the letter to the Iranian Embassy was sent to the decision maker as a document for consideration on the determination of the application for recognition of refugee status, but without any indication by the appellant or by his solicitor as to the significance claimed for the letter. In each case the solicitor forwarded to the decision maker a written submission in support of the application in March 1990 after the solicitor had seen a copy of the letter, but made no reference to the letter in the submission. In Heshmati's case the submission did not show that the solicitor had conferred with Heshmati after the solicitor had seen a copy of the letter, whereas the submission in Somaghi's case did show that. Nor did the submission in Heshmati's case explicitly assert that "the essence of ... (the application for recognition) relates to his time in Iran", as did the submission in Somaghi's case. But these differences do not justify any different conclusion as to what procedural fairness required, in my opinion. My reasons for upholding this appeal are those which are expressed in the appeal of Somaghi.

JUDGE3

The Nature of the Proceedings

This is an appeal from the dismissal by a Judge of this Court (Lockhart J.) of an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The appeal was heard immediately before that in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs and by the same Bench. The relationship between the two proceedings is further discussed in my Reasons for Judgment in the other appeal. This judgment should be read with what is there said. This case was tried on affidavit evidence filed on behalf of both parties and there was no cross-examination. Neither counsel who appeared on the appeal had appeared at first instance.

The applicant is an Iranian national who was born in that country on 23 October 1961. On 6 September 1989, the applicant arrived at Tullamarine Airport on a Singapore Airlines flight from Singapore to Melbourne. He travelled on what was later conceded to be a fraudulently obtained "photo substituted" passport issued by the Republic of Greece in the name of "Christos Giotsalitis". Mr V.J. Rowe is "an authorised officer" within the meaning of sub-s. 5 (1) the Migration Act 1958 ("the Act"). He was on duty at Tullamarine Airport on 6 September 1989, and with the assistance of an interpreter, he obtained information from the appellant about his identity, marital status, background in Iran and the circumstances of his travel to this country. Much of that information was, to the knowledge of the appellant, false. In view of the statements made to him by the appellant, Mr Rowe decided that the procedures of the DORS Committee should be "activated immediately" and that the appellant should be conveyed to the Immigration Detention Centre at Maribyrnong in Victoria, pending further investigation of his case.
The primary Judge held that the true construction of the events on 6 September 1989 was that the appellant was refused an entry permit and the question of whether he was entitled to treatment as a refugee was deferred pending proper inquiry by the relevant authorities in Australia. Pursuant to s. 36A of the Act, Mr Rowe directed that the appellant be kept in custody until his removal from Australia or such earlier time as directed by an authorised officer. The appellant was then conveyed to the Immigration Detention Centre at Maribyrnong in Victoria. He has since remained in custody.
Non-Entry Into Australia
Sub-section 5 (2) of the Act provides that for the purposes of the Act a person who arrives in Australia by an aircraft and disembarks from the aircraft at a proclaimed airport within the meaning of sub-s. 5 (1) shall be deemed to enter Australia when he leaves the airport. Tullamarine is a proclaimed airport. However, sub-s. 36A (8) provides that a person shall not for the purposes of the Act be deemed to have entered Australia by reason only of his having been taken from a proclaimed airport for the purpose of being kept in custody at a place outside that airport, in pursuance of, inter alia sub-s. 36A (3). That provision is in the following terms:

"36A (3) Where a person, not being a person exempted, by instrument under the hand of the Minister, from the requirements of Division 1A, who travels by aircraft from a place outside Australia to a proclaimed airport has sought and been refused an entry permit at that airport or at any other airport in Australia at which he has called in the course of that travel, he may, if an authorized officer so directs, be taken into custody at that first-mentioned airport by an officer and kept in such custody, either at that first-mentioned airport or elsewhere, as an authorized officer directs until such time as he is removed from Australia in accordance with sub-section (4) or until such earlier time as an authorized officer directs."

An entry permit may be granted to a non-citizen either upon arrival in Australia, or, subject to s. 6A, after the non-citizen has entered Australia: sub-s. 6 (5). Neither of those limbs of the sub-section applied to the appellant. No entry permit was granted upon his arrival and he was deemed not to have entered Australia. An entry permit (meaning, by force of sub-s. 6A (8), an entry permit other than a temporary entry permit) shall not be granted to a non-citizen after his entry into Australia unless one or more of the conditions spelled out in sub-s. 6A (1) is fulfilled. Section 6A had no application to the appellant.
The result was that an application by the appellant for an entry permit to give him resident status would have to be dealt with under sub-s. 6 (2) of the Act. This states:

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

Thus Mr Heshmati was in a different position to Mr Somaghi. Mr Somaghi had entered Australia, and for him to obtain a grant of resident status it would be necessary for one or more of the conditions spelled out in sub-s. 6A (1) to be fulfilled. This meant, in accordance with the authorities discussed in the judgment on the other appeal, a determination by the Minister as to Mr Somaghi's refugee status was to be characterised as made "under an enactment", namely para. 6A (1) (c), so as to attract the operation of the ADJR Act. Consideration of a claim to refugee status by Mr Heshmati would be treated as having been made "under an enactment", only if it were characterised as having been made under the general terms of sub-s. 6 (2). Otherwise, the determination itself would not be a "decision" to which the ADJR Act applied, and in respect of it jurisdiction of this Court would not be attracted under sub-s. 5 (1) of the ADJR Act.
However, a determination as to the existence of refugee status might be characterised as "conduct" engaged in for the purpose of making a decision to which the ADJR Act applied, namely the decision under sub-s. 6 (2) of the Act to give or withhold the necessary permit to achieve resident status; if that proposition were made out, then in respect of that conduct the jurisdiction of the Court might be attracted pursuant to sub-s. 6 (1) of the ADJR Act. This is a question to which it will be necessary to return, with reference to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
The primary Judge observed it may appear odd that a person is to be deemed not to have entered Australia when in fact that person has been physically present, albeit in custody, for some time. But his Honour pointed out, with reference to the authorities, that s. 36A creates a statutory fiction; see Gunaleela v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 543 at 555-556. As Gunaleela explains, provisions of this kind are by no means unusual in immigration legislation. A further example of such legislation in other countries, this time in the Netherlands, is to be found in the article "The Schipol Refugee Centre Case" (1989) 1 International Journal of Refugee Law 395.
The Applications by the Appellant
On 12 September 1989, the appellant made application in writing for "refugee status", but on 27 October 1989 the DORS Committee unanimously recommended that he not be so recognised. A Delegate of the Minister then rejected the application on 10 November 1989. By 13 November 1989, it was plain to the DORS Secretariat from information supplied by the Intelligence Section that doubt was cast upon the appellant's claims as to the method of his exit from Iran and travel to Singapore. On 23 November 1989, the appellant applied for permanent residence and the application was considered as made under sub-s. 6 (2) of the Act. Then on 6 December 1989, the appellant, together with Mr Somaghi, sent to the Iranian Embassy and to other addressees the letter to which I have referred further in the Reasons for Judgment in the other appeal. On the same day, the solicitors for the appellant, in a five page submission, requested reconsideration of Mr Heshmati's application for refugee status. On 8 December 1989 they sent to the DORS Secretariat a copy of the letter of 6 December. The DORS Committee agreed to reconsider the appellant's case. But it did so principally to deal with the issue (not raised by the solicitors) of whether he had now become a refugee "sur place".
On 19 February 1990, the appellant was interviewed by a Migration Officer for the purpose of obtaining from him information to be placed before the DORS Committee. The transcript of that interview extends to 14 pages of the appeal book. The appellant was urged to give a truthful account of the circumstances in which he had left Iran, spent time in Greece and then entered Australia from Singapore using a false passport. The appellant conceded some of the matters now put to him but affirmed his account in other respects. There was no discussion of the purposes or objectives of the appellant in writing as he had to the Iranian Embassy on 6 December 1989.
On 20 April 1990, Mr Harris, as Delegate of the Minister, acted upon a written recommendation dated 12 April 1990 as to the reconsideration of the application for refugee status. Paragraphs 7, 8 and 9 of the recommendation were as follows:

"7. For the Committee, a central issue in the case was whether (the appellant) had become a refugee 'sur place' through his alleged action of dispatching (sic) a letter highly critical of the Iranian regime to the Iranian Embassy in Canberra.

8. In the view of AGs, (the appellant's) action of sending the letter would, by itself, result in the Iranian authorities imputing him with a political profile and he would face persecution if he were to return to Iran. According to AGs, (the appellant's) fear of persecution was, therefore, well founded and he should be given refugee status.

9. All other member Departments of the DORS Committee recommended against the granting of refugee status to the (appellant). They assessed that the (appellant) had not established a claim to refugee status before he dispatched (sic) the letter to the Embassy, that he did not act in good faith in sending a provocative letter to the Iranian Embassy and, accordingly, that he should not be extended the benefit of the protection of the Convention. Representatives also noted that this issue had been dealt with in the German courts and that the courts had concluded that persons who had committed a politically pertinent act solely to bring themselves within the terms of the Convention may not claim good faith."

The recommendation of the DORS Committee was that Mr Heshmati not be recognised as a refugee within the terms of the Convention. It is that recommendation which was accepted by Mr Harris on 20 April 1990. Mr Harris noted that "the sole or dominant purpose" of Mr Heshmati's letter had been "to enhance his refugee claims" and that without that letter "he has no useful claim".

Subsequently, on 7 August 1990, Mr M.A. Lynch, another Delegate of the Minister, gave a statement of reasons for Mr Harris' decision of 20 April 1990. The later document was expressed to be a Statement of Reasons pursuant to s. 13 of the ADJR Act. However, as will become apparent, that misstated the legal position. Nevertheless, no objection was taken to use of that statement in this proceeding.
On 23 May 1990, this proceeding was instituted, to be followed on 19 June 1990 by a notice of Objection to Competency. It was contended that no decisions had then been made denying the applicant permanent resident status, and that any decision as to his refugee status had not been made under an enactment, within the meaning of the ADJR Act.
On 17 September 1990, Mr I.C. Heath, another Delegate of the Minister, decided, after considering written submissions dated 13 September 1990, that the application for an entry permit should be refused. The recommendations dealt with the history of the matter commencing with the appellant's arrival at Tullamarine on 6 September 1989, and the refusal to him of an entry permit. It set out in some detail the history of his application for refugee status, including the significance of the letter of 6 December 1989 to the Iranian Embassy and others. Paragraph 29 included the following:

"29. . . . Mr Heshmati has not dealt honestly with the Department in putting forward his claims. He fabricated a story in which he stated that only a month previously he escaped from prison by pretending illness, was smuggled out of Iran by ship leaving Bandar Abbas, sailed to Singapore where he was aided by a man named Reza who gave him travel documents for Australia; when in fact he travelled to Greece via Turkey in March 1988 where he applied for refugee status and finally departed for Australia via Singapore by air on 29 August 1989. He also declared, in his application for refugee status in Australia, that he had never resided in any other country nor applied for refugee status anywhere else. While it is acknowledged that persons in fear of their lives cannot always tell the truth, Mr Heshmati has stated that his reason for fabricating the story of his travel to Australia was that it would be looked on more favourably when his application for refugee status was considered. In view of Mr Heshmati's readiness to fabricate claims for refugee status you may be of the view that further doubt is cast upon the validity of his claims . . ."

In para. 32, the view was expressed that it was doubtful whether the letter of 6 December 1989 would be regarded by the Iranian authorities as little more than a cynical attempt to gain residence in Australia; it was also said that in the light of recent statements of the Iranian authorities, it was less likely that Mr Heshmati would face any repercussions should he return. Further, in para. 35, the view was expressed that without satisfactory details of Mr Heshmati's movements and activities over the past ten years, there were insufficient grounds to warrant granting him an entry permit, and that the discretion under sub-s. 6 (2) should be exercised adversely to him.

The Application for Order of Review

On 19 October 1990, the appellant filed an Amended Application for an order of review. The respondent consented to that course. A further amended document was handed up to Lockhart J. during the hearing on 12, 13 and 14 November 1990. (It may be that a fresh Application should have been filed and the two consolidated: Park Oh Ho v Minister for Immigration and Ethnic Affairs (1987) 14 FCR 274. But I would not embark upon that question at this late stage of the litigation.)
The nature of the matter before the Court still lacked clarity. But some measure of this was supplied by a document presented to his Honour and headed "Decisions and Conduct under Review". This indicated that review was sought under both s. 5 and s. 6 of the ADJR Act. The decisions said to be in question were (i) the decision of Mr Heath on 17 September 1990 to refuse the grant of an entry permit under sub-s. 6 (2) of the Act, (ii) the decision of the same delegate on the same date that the appellant was deemed not to have entered Australia, so that s. 6A had no application, and (iii) the decision of Mr A.C. Harris on 20 April 1990 that the appellant did not have the status of refugee within the meaning of the Convention. His Honour found adversely to the appellant on the challenge to decision (ii). His Honour's decision as to the true construction of the events on 6 September 1989 was, with respect, clearly correct. At the hearing of the appeal an attack upon this aspect of the judgment below was not pursued.
However, on the appeal, counsel for the appellant sought, over the objection of the respondent, to take a new point as to decision (ii). It arose as follows. On 8 September 1989, a notice to Singapore Airlines was issued pursuant to sub-s. 36A (4) requiring it to remove Mr Heshmati from Australia at no charge to the Commonwealth. The airline was bound to comply within 72 hours of service of the notice or within such further period as an authorised officer allowed: sub-s. 36A (5). The appellant wished to argue that there was no such "further period" allowed after the expiry of the 72 hours, and that the appellant thereafter was to be taken as having entered Australia, with the result that s. 6A applied to his application for resident status.
Counsel for the respondent showed that had the point been taken at the trial, he would have wished to lead evidence as to the extension of the period for removal. In accordance with the well known principles expounded in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438, and many other authorities, we refused to permit the appellant to proceed with the relevant ground of appeal.
With respect to decision (iii), it was submitted below that the conduct of Mr Harris was "preparatory or part of the processes" preceding the determination of the question of whether or not to grant the appellant an entry permit (decision (i)). The primary Judge did not have to decide this issue, which goes to jurisdiction, because, in any event, he dismissed the proceeding. But in view of the decision to which I have come, it is necessary to do so. I will then deal with the remaining issues as to the dismissal by Lockhart J. of the application for an order of review of decision (i).
Jurisdiction under the ADJR Act
Counsel for the respondent submitted that the decision to refuse refugee status was not made under the Act but in furtherance of Australia's international obligations under the Convention, obligations which produced no justiciable "matter", in the constitutional sense, at the suit of the appellant; see the authorities discussed in Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 367-373. But counsel for the appellant submitted that it had been open to consider the refugee status of the appellant in the course of exercising the discretion given by sub-s. 6 (2) of the Act, so that in this way the question was drawn within municipal law. That submission should be accepted. It is consistent with what the Full Court said in Gunaleela, supra at 559-560, namely:

"An examination of the subject-matter, scope and purpose of the Migration Act 1958 discloses, in our view, that, in the case of persons who have not yet entered Australia within the meaning of the legislation, a decision-maker dealing with a request for a temporary entry permit or for temporary and permanent entry permits is not necessarily bound to take into account, as a relevant matter (within the meaning of s 5(2)(b) of the Judicial Review Act), the circumstance that the applicant for the temporary entry permit wishes, if that permit is granted, to enter Australia and then to achieve permanent resident status, having then fulfilled the condition in s6A(1)(c) in the Migration Act, 1958 viz determination of refugee status. On the other hand, the subject-matter, scope and purpose of the Migration Act 1958 indicates that one of the factors which may properly be taken into account in the exercise of the discretion to grant a temporary entry permit, or temporary and permanent entry permits, to a person who has not entered Australia in the statutory sense is that the applicant claims 'refugee status' and wishes to obtain permanent resident status. By 'refugee status' we refer to the meaning of the term 'refugee' in the Convention identified in s6A(1)(c) of the Migration Act 1958. Australia is a party to that Convention and no doubt the decision-maker might properly take into account in a general way the existence of Australia's international obligations thereunder. If the decision-maker wishes to take such matters into account, the manner in which he does so is very much for the judgment of the decision-maker in the circumstances of the particular case. These circumstances may include considerations of urgency of the nature we have earlier described, and of whether the application is made prior to departure for Australia or only upon disembarkation at a port of entry here."

See also Ashby v Minister of Immigration (1981) 1 NZLR 222; Brind v Secretary of State for the Home Department (1991) 1 All ER 720; Minister for Immigration and Ethnic Affairs v Maitan (1988) 78 ALR 419 at 427-428. The first and second of these cases contain a review by the New Zealand Court of Appeal and the House of Lords respectively of the modern (principally English) authorities discussing the circumstances in which weight will be given to international obligations in construing a domestic statute. But, in the present case, was the decision as to refugee status itself a reviewable decision under s. 5 of the ADJR Act?

In the present case, the decision of Mr Harris on 20 April 1990 was closely linked to the then pending decision under sub-s. 6 (2). However, in my view, the decision of Mr Harris was not itself "a decision" made "under an enactment" so as to attract the jurisdiction of this Court under s. 5 of the ADJR Act. (Those phrases now are to be understood in the sense explained by Mason C.J. in Australian Broadcasting Tribunal v Bond, supra at 335-343.)
The decision of Mr Harris as to refugee status was a decision the making of which was not required by sub-s. 6 (2) of the Act as an essential preliminary to the making of the ultimate decision thereunder; sub-s. 6A, where it applies, stands in high contrast. The circumstance that in this particular case the failure of the appellant's claim to refugee status was an essential step in the reasoning by which Mr Heath decided to refuse an entry permit under sub-s. 6 (2) of the Act, is insufficient to invest the decision of Mr Harris with the characteristics which would qualify it as a reviewable decision under s. 5 of the ADJR Act; see Bond, supra at 339. But what of s. 6 of the ADJR Act? As I have indicated, reliance was also placed upon this section. To it I now turn.
It should be borne in mind that the decision as to refugee status was made several months after the appellant's arrival at Tullamarine and the commencement of his detention at Maribyrnong, and whilst his formal application for residency was awaiting final decision. The two decisions were closely linked, the first being an essential step in the reasoning for the second. In that setting, it would be unreal to characterise the investigations and inquiries which, over this period, attended the making of the decision as to refugee status on 20 April 1990 as not being conduct engaged in for the purpose not only of discharging the international obligations of this country, but also of making a decision to which the ADJR Act did apply, viz., decision (i), that refusing permanent resident status; cf. Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 386. The provision of a Statement of Reasons, purportedly under s. 13 of the ADJR Act, in relation to the decision as to refugee status, is consistent with a similar approach to the matter having been taken by the decision makers themselves.
The term "conduct" in s. 6 of the ADJR Act points to action taken, rather than to a decision made, for the purpose of making a reviewable decision; it looks to the way in which proceedings have been conducted, and the continuation of proceedings in such a way as to involve a denial of natural justice will amount to reviewable "conduct": Bond, supra at 342. In the circumstances of this case, the requirements of procedural fairness applied and had "substantial content", to use the phrase of Davies J. in Haider El-Sayed v Minister for Immigration, Local Government and Ethnic Affairs (5 March 1991, unrep., p. 6).
Natural Justice
The question then becomes, was there a denial of natural justice in connection with conduct engaged in for the purpose of making decision (i), within the sense of para. 6 (1) (a) of the ADJR Act? In my view, this should be answered affirmatively. Counsel for the appellant took us in some considerable detail to alleged breaches of the rules of natural justice, but in my view save for one of them, these complaints were, as the primary Judge found, without substance.
The complaint of substance arises from the treatment of the motives or purposes of the appellant in sending the letter of 6 December 1989 to the Iranian Embassy and others, in a context where, whilst the appellant had had solicitors acting for him, they had not put a case that their client had become a refugee "sur place". Mr Harris treated the letter of 6 December as having been written with the sole or dominant purpose of enhancing the appellant's claim to treatment, along with Mr Somaghi, as a refugee "sur place". That letter also was considered by Mr Heath in his decision of 17 September 1990. As with Mr Somaghi, the appellant was given no chance, despite opportunities in the lengthy interview on 19 February 1990, and in discussions with his solicitors, to meet this particular and important allegation against him. The reasoning in the Judgment in Somaghi applies to this case and I will not repeat what is there said.
Sub-section 16 (2) of the ADJR Act provides that on an application for an order of review, the Court may, in its discretion, declare the rights of the parties "in respect of any matter to which the conduct relates" and direct the parties to do, or to refrain from doing any act, the doing or the refraining from the doing of which the Court considers necessary to do justice between the parties.
My conclusion is that the appeal against the dismissal of the appellant's application for an order of review in respect of conduct engaged in for the purpose of making decision (i), i.e. that of 17 September 1990, should be allowed. The appeal otherwise should be dismissed. Orders should be made under sub-s. 16 (2) of the ADJR Act. It should be declared that a breach of the rules of natural justice occurred in connection with conduct, namely the decision of the respondent's Delegate made 20 April 1990 that the appellant does not have refugee status, being conduct engaged in for the purpose of making the decision of the respondent's Delegate on 17 September 1990 to refuse to the appellant the grant of an entry permit under sub-s. 6 (2) of the Act and permanent resident status. Further, the Court should direct the respondent to refrain from acting further upon the decision of 17 September 1990, until (a) the appellant has been given the opportunity to make in writing, whether under his own hand or that of his solicitors, such representations as he may be advised upon the question of whether the letter of 6 December 1989 was written with the sole or dominant purpose of enhancing his claim to treatment as a refugee "sur place", and (b) those representations had been considered by the respondent or his Delegate, and the appellant or his solicitors has been notified in writing of the result of that reconsideration.
Error of Law
Was there any reviewable error of Law? Here, as in Somaghi, there was debate before us as to the meaning of the term refugee "sur place". But the legal setting differs. The Convention is not drawn in by para. 6A (1) (c) of the Act. There is no reviewable decision under that provision so as to attract s. 5 of the ADJR Act. Sub-section 6 (2) of the Act is couched in general terms. True enough, the question of refugee status was considered in the course of "conduct" reviewable under sub-s. 6 (2) of the ADJR Act. As Mason C.J. pointed out in Bond, supra at 343, there may be a substantial error of law made in the course of inquiries conducted for the purpose of making a decision, and that error would be reviewable under para. 6 (1) (f) of the ADJR Act. It might also taint the final decision itself and enliven para. 5 (1) (f) of the ADJR Act.
But does the concept of "error of law" embrace an error in construing an international obligation which, whilst not relevantly brought directly into municipal law (by, for example, para. 6A (1) (c) of the Act), is nevertheless something to which a decision maker properly had regard in exercising a discretion reposed in him by a law of the Commonwealth? In Gunaleela, the same question arose and was left open by the Full Court; see 15 FCR at 560-561. I would follow the same course in this case. This is both because we have not been assisted by sufficient argument to deal comfortably with a difficult and important question, and because, in any event, as the reasons in Somaghi indicate, had it been open on this appeal to enter upon the question, the appellant would not have succeeded.
When the question is further considered, it will be necessary to consider the significance to be attached to recent British authority. In Brind v Secretary of State for the Home Department, supra, the appellants unsuccessfully sought judicial review of the decision of the respondent to issue directives to the B.B.C. and the Independent Broadcasting Authority which prohibited the broadcasting of certain material. The House of Lords rejected the submission that before issuing these directives, the respondent should not only have considered the European Convention on Human Rights (which it was agreed he had) but should have properly construed it and correctly applied it. The House held that the legislature had conferred on the executive an administrative discretion with no indication of the precise limits of its exercise and that it would be wrong to presume that the discretion must be exercised "within convention limits".
Other Grounds
Counsel for the appellant submitted that there had been a denial of procedural fairness in other respects in the conduct of the interview of 19 February 1990 and in the use to which that interview later was put. The primary Judge held that in refusing the grant of an entry permit to the appellant, (decision (i)), the decision maker looked to a large range of issues and that there was no denial of natural justice to the appellant. With the exception I have already described, I agree. The appellant also sought to challenge various findings of fact which led to the denial of the application for resident status. Many of these findings were directly based upon or linked to adverse findings as to the credibility of the appellant's account of events. Plainly, it was open upon the materials for the decision maker to conclude as he did.
In substance, many of the detailed submissions by counsel for the appellant amounted to an attack upon the reasons of the primary Judge for not treating the application for review under the ADJR Act as a full appeal upon findings of fact. The matter was made worse by the attempt on the appeal to the Full Court to introduce further complaints upon factual matters, being points not put to Lockhart J. At best, these subsidiary findings of fact were no more than steps along the way to an ultimate determination; they fell within the description of findings of fact not susceptible to review independently, given by Mason C.J. in Australian Broadcasting Tribunal v Bond, supra at 340-341. Insofar as a finding adverse to the credibility of the appellant was an essential preliminary to the ultimate step of refusing the application under sub-s. 6 (2) of the Act, it was a finding well open to the decision maker and would not attract review on any of the grounds discussed by Mason J. supra at 355-360.

But the appeal should be allowed on the limited ground I have earlier indicated.

[1991] FCA 502

21 AUGUST 1991