Jungpradit, P. & Ors. v The Honourable Christopher John Hurford Minister of State for Immigration & Ethnic Affairs

[1985] FCA 404

Re: PRAPARATANA JUNGPRADIT; KANISTHA JUNGPRADIT and ADISUK CHUNGPRADIT
And: THE HONOURABLE CHRISTOPHER JOHN HURFORD MINISTER OF STATE FOR IMMIGRATION
AND ETHNIC AFFAIRS
VG 163 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Woodward J.

CATCHWORDS

Administrative Law - judicial review - immigration - applications for review of Minister's decisions to refuse the grant of refugee status, refuse temporary entry permits and to deport the applicants - failure to take into account relevant considerations - extent to which factual errors are reviewable under the Administrative Decisions (Judicial Review) Act 1977 - sufficiency of material before the Minister - whether serious question to be tried.

Administrative Decisions (Judicial Review) Act 1977 ss.5(1)(e) and (2)(b)

Migration Act 1958 ss.6A(1)(e) and 18

HEARING

MELBOURNE
#DATE 21:8:1985

ORDER

1. The application of the Respondent to discharge the stay of deportation ordered by Sweeney J on 17 July 1985 be dismissed.

2. By consent the thirdnamed Applicant be released from custody until the hearing and determination of the application for review or until further order, on undertaking by his counsel that he report on three days each week to the Department of Immigration and Ethnic Affairs, Commonwealth Centre, Spring Street, Melbourne at any time between the hours of 9-12 am and 2-4 pm.

3. The costs of the application be reserved.

JUDGE1

In this matter the applicants, relying on the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"), seek to challenge a number of decisions of the Minister for Immigration and Ethnic Affairs. In particular they wish to challenge deportation orders made by the Minister on 1 July 1985, pursuant to s.18 of the Migration Act 1958, and two decisions made by the Minister in the course of considering whether he should make those deportation orders, namely decisions not to grant refugee status and not to grant temporary entry permits.

The question before me is whether the deportation orders should continue to be stayed until a full hearing of the application can be held by the Court. Sweeney J, acting on the limited material then available to him, which did not include the Minister's written reasons for his decisions, stayed the deportations until further order and then made arrangements for the present hearing to be held - referring both the notice of motion seeking a stay and the original application to this hearing. It is common ground between the parties that only the question of the continuing stay is appropriate for decision at present and that I should now either discharge the injunction, on the application of the respondent, or continue it until the hearing of the action.

The applicants are of Thai nationality. The first two are sisters, aged 35 and 34 respectively, and the third is their 30 year old brother. They came to Australia in 1980, on one-month visitors' visas, and have overstayed their visas ever since.

Contrary to their conditions of entry to this country, they have lived and worked here under false names. As a result, they could fairly be said to have put down some roots, in the sense that they all have steady jobs and they have jointly purchased a house. There is nothing to suggest that they have not been useful and law-abiding (though illegal) residents.

They were arrested on 21 May 1985, as prohibited non-citizens, and deportation orders were made by a departmental officer on 23 May. It seems that those orders may not have been served and, in any event, fresh orders were made by the Minister on 1 July. It is those orders which are now primarily challenged.

The chief ground of challenge, on which, as is clear from the arguments addressed to me, I must decide the question before me, has its origin in the circumstances in which the three applicants left Thailand. It appears that they had been living in Aranyaprathet, near the Thai border with Cambodia, and in 1978/79 they had assisted a number of Cambodian citizens to escape to refugee camps in Thailand. Some of these escapees are now in Australia, and prepared to vouch for the humanitarian assistance they received from the applicants and another sister who is now in France. The assistance the family gave to refugees was contrary to Thai martial law, which applied in the border area, and in 1980 the first and second applicants were arrested by Thai army personnel, interrogated for many hours, handed over to the civil police and interrogated further.

When released, the three sisters and their brother apparently decided that it was only a matter of time before the authorities gained further information about their activities, and they decided to leave the country immediately.

They now maintain that, although their parents, and other siblings, are living peacefully in Bangkok, it would not be safe for any of them to return to Thailand. They say that they should be given refugee status in Australia, or at least be granted temporary entry permits so that they could then rely on "strong compassionate or humanitarian grounds", as referred to in s.6A(1)(e) of the Migration Act 1958, in seeking permits for permanent residence.

The Minister's statement of his reasons for ordering deportation, given pursuant to a request made under s.13 of the Judicial Review Act, runs to some seven pages. In paragraph 11 he refers to a number of documents which he had before him in making his findings. In response to a suggestion from the Court, counsel for the Minister produced those documents which appeared to be most relevant to the central issue in this hearing.

So far as the statement of reasons is concerned, the following paragraphs of the findings are directly relevant to the matters relied on by the applicants, namely paragraphs 5-10. It is desirable also to set out the paragraphs (12-17) headed "Reasons for my decision" in full. These paragraphs read as follows:

"5. On 27 May 1985 Helen Mayer M.P. wrote to me in relation to the Applicants. The representations from Mrs. Mayer relate the fear expressed by Ms. Praparatana Jungpradit that because of the assistance her family gave to many Cambodians in reaching refugee camps in Thailand, in contravention of Thai martial law provisions, she and her brother and sister "would be subject to the death penalty or a lengthy period of imprisonment should they be returned to Thailand". Mrs. Mayer states that if the family did provide the assistance claimed she believes they merit consideration for change of status and requests a full investigation of the family's case.

6. Representations were also received from the solicitor for the Applicants, Mr. Dick Gross, in which he sought the grant of an entry permit to each of the siblings pursuant to sub-section 6A(1) of the Act on the grounds that they ought to be accorded refugee status and that there are strong compassionate or humanitarian grounds present. An accompanying petition, signed by 59 persons, states inter alia "as we fled across the border the Chungpradit family assisted many Cambodians to utilize an under ground escape route".

7. Representations were also received from the Refugee Support Group of the Uniting Church, Blackburn and from three members of the public.

8. The members of the Determination of Refugee Status Committee have considered the Applicants' circumstances. The Committee unanimously assessed, with the concurrence of the representative of the United Nations High Commissioner for Refugees, that the cases did not warrant processing by the Committee and the circumstances as described by the Applicants were not compatible with the Committee's knowledge of the situation in Thailand.

9. The Refugees and Humanitarian Branch of my Department also examined the Applicants' circumstances and concluded: "While the Jungpradits may have broken Thai law by assisting Kampucheans to enter Thailand in 1978/79 they have produced no evidence which would show that they are known and wanted for prosecution by the Thai authorities. As they pointed out, at the time they were assisting the Kampucheans there were large numbers entering Thailand (in 1979 some 200,000). Five years have now elapsed and the Jungpradits have not been involved in illegal activities in Thailand during that time. I do not consider that the family have produced any information or evidence which would demonstrate they have a genuine fear of return to Thailand on humanitarian grounds".

10. The Migrant Entry Branch has also advised that they are of the opinion that there are no compassionate circumstances put forward which would be sufficiently strong to fulfil the legal condition of section 6A (1)(e) of the Act.

. . . . .

Reasons for my decision

12. The Applicants are prohibited non-citizens by virtue of sub-section 7(3) of the Act since they are not the holders of valid temporary entry permits.

13. I accepted that it remains possible to authorize the Applicants' continued presence in Australia by the grant to them of further temporary entry permits. However I was satisfied that such a grant was inappropriate because all three have already stayed in Australia for a much longer period than that allowed to visitors to this country and have undertaken employment, in breach of immigration law and policy and in direct contradiction to undertakings made by visitors to Australia not to remain in Australia after expiry of their entry permits, not to undertake employment and not to seek to remain permanently.

14. The Applicants do not fulfil any of the conditions of sub-section 6A(1) of the Act for the grant of permanent entry permits. However I accepted they could be made eligible under paragraph 6A(1)(e) of the Act by the grant of temporary entry permits if strong compassionate or humanitarian grounds for the grant of a permanent entry permits to them existed. I therefore considered whether, notwithstanding that the Applicants are not the holders of temporary entry permits which are in force, there were strong compassionate or humanitarian grounds for the grant of permanent entry permits to them.

15. The main issue raised in support of the Applicants' continued stay in Australia is the prospect that they may face punishment on their return to Thailand because they assisted Kampuchean refugees in border areas. In this regard overseas inquiries indicate that Thais continue to assist Kampucheans in the border area and to the extent of available information, no prosecutions have occurred. There is no evidence to reasonably conclude that the Thai authorities would be aware of the Jungpradits' activities in 1978/79. I concluded that there were no strong compassionate or humanitarian circumstances in favour of the grant of entry permits to them.

16. It is in the public interest to ensure that persons abide by normal migration selection processes and do not queue-jump by entering or remaining illegally in Australia to the prejudice of prospective migrants who abide by the procedures. The presence of such queue-jumpers is inimical to Government control of migration programs as well as impacting upon job availability for legal residents. Prohibited non-citizens who do not leave voluntarily should expect to face the prospect of deportation when located.

17. In considering whether to order the deportation of the Applicants I took into account their personal circumstances. I also took into account the fact that they had committed offences under the Migration Act in becoming prohibited non-citizens and by working without the written permission of an authorized officer. I considered that, in all the circumstances of the case, it was appropriate and just to apply to them the policy on deportation of prohibited non-citizens. I accordingly decided to order the deportation of the Applicants."

Although counsel for the applicants did not abandon other arguments - such as an alleged denial of natural justice by the Minister in not disclosing to the applicants, before making his decision, all the materials on which he relied in reaching that decision - it is clear that the applicants must stand or fall, in this hearing, on their contention that the Minister failed to take into account relevant considerations in the exercise of his powers to refuse the grant of refugee status, to refuse temporary entry permits, and to deport. The first significant part of the applicants' arguments relates to the Minister's decision not to grant refugee status. It has been held by a Full Court of this Court that such decisions do attract the jurisdiction conferred by the Judicial Review Act, see Minister for Immigration and Ethnic Affairs v Mayer (1985) 58 ALR 695. I understand that the High Court has heard an appeal in that matter, but has not yet delivered judgment.

The case for refugee status put by the applicants is that they are afraid of severe treatment at the hands of the Thai authorities if they are forced to return to Thailand. Counsel for the Minister did not challenge the genuineness of these fears, but did argue that the Minister had properly found, on adequate material, that the fears were not soundly based. The relevant paragraphs of the Minister's findings are paragraphs 8, 9 and 15 above.

In paragraph 8 the Minister states that the members of the Determination of Refugee Status ("DORS") Committee unanimously assessed "that the cases did not warrant processing by the Committee and the circumstances as described by the Applicants were not compatible with the Committee's knowledge of the situation in Thailand".

Although there has been adequate time to do so, no affidavit evidence has been put before the Court by the respondent, and so I have no knowledge of the composition of the DORS Committee which considered the present case, or what information about Thailand was available to it. The Minister does not say, in terms, that he accepted the assessment of the DORS Committee or, indeed, that he actually made a decision on the application for refugee status, which was formally made to him by the solicitors for the applicants on 3 June 1985. Although the inference that such a decision was made is clearly arguable, the omission illustrates the paucity of material on what has emerged as the central issue in this hearing.

In paragraph 15, the Minister made his ultimate finding on this issue, saying that "overseas inquiries indicate that Thais continue to assist Kampucheans in the border area and to the extent of available information, no prosecutions have occurred".

This statement appears to be based on the DORS Committee report, which actually said "Our information is that activities of the type undertaken by (the applicants) are regular occurrences; we have no advice of prosecutions, let alone persecutions, resulting from such activities".

As I have said, I am unable to evaluate the probative value of that statement because there is so little material before the Court. But it is arguable that the Minister must be assumed to know what information was generally available to the DORS Committee, and how much reliance could be placed on its statements. As Sheppard J pointed out in Akpan v Minister for Immigration and Ethnic Affairs (1982) 58 FLR 47 at p.50, it is wrong to equate the relevancy of factual considerations with their accuracy. The intention of the Judicial Review Act largely to exclude errors of fact from its scope, is underlined by the very limited operation given to the ground of challenge that there was no evidence to justify the making of the decision - see s.5(1)(h) and (3).

One can imagine a case where an error of fact leads to the exclusion from consideration of some vital issue, which could in turn lead to a successful review; but is that the case here? Whether or not there have been prosecutions in Thailand for aiding refugees is only one aspect of a much more complex issue. The relevance of that fact for present purposes would depend upon the nature of any offences so prosecuted, the severity of resulting penalties, the likelihood of proceedings being taken after five years, and so on.

I should make it clear that there is no evidence before the Court at present that there have been any such prosecutions in Thailand, or any harsh treatment of persons helping refugees. The applicants are really seeking an opportunity to find such evidence and bring it forward. But there must be considerable doubt as to the relevance and admissibility of any such material, since what the Court is concerned with is the validity of the Minister's decision of 1 July in the light of the material then available to him.

In passing, I note that the Minister also relied upon advice from the Refugees and Humanitarian Branch of his Department which was to the same effect as that of the DORS Committee (see paragraph 9 of his Statement of Reasons, above). It is not clear to what extent these two groups relied upon each other's views - but that is, arguably, a matter for the Minister to evaluate, given his knowledge of his own Department.

I put to one side the reference in paragraph 8 of the Statement of Reasons to "the concurrence of the representative of the United Nations High Commissioner for Refugees" ("UNHCR"), because counsel for the Minister declined to produce the file note by that officer which the Minister had before him, saying that Crown privilege would be claimed for it if necessary. In my view, it is not appropriate to pursue that issue in the present proceedings.

Another factual issue raised by counsel for the applicants relates to the Minister's second finding in paragraph 15: "There is no evidence to reasonably conclude that the Thai authorities would be aware of (the applicant's) activities in 1978/79". This statement would have been unexceptionable were it not for the press publicity in Australia following proceedings in the Melbourne Magistrates' Court concerning the detention of the applicants. This publicity occurred in a number of major newspapers on 6 June 1985. Some of the reports named the applicants and gave reasonably explicit details about their activities and their fears of reprisal. It seems that some, at least, of this publicity was courted by the applicants' then solicitor after the hearing, but he had unsuccessfully sought to have their names suppressed at the hearing. It was conceded by counsel for the Minister that it would be reasonable to assume that this material has come to the notice of Thai officials in Canberra.

It could thus be argued that, by apparently overlooking the question of media publicity, the Minister has failed to take into account the consideration that the relevant Thai authorities have probably been alerted to the present position and past history of the applicants.

In reply, it could well be argued for the Minister that this was a consideration of little weight if the Minister were satisfied that those Thai authorities would take no direct action against the applicants in any event. But such a submission would further highlight the sketchy nature of the present evidence concerning the material relied on by the Minister in reaching such a conclusion.

Finally, it was submitted for the applicants that they were entitled to be considered for the grant of a temporary entry permit, so that they might then make out a case for permanent residence, on humanitarian grounds, pursuant to s.6A(1)(e) of the Migration Act 1958. The humanitarian grounds are, in substance, the courageous role of the applicants in assisting Cambodian refugees who are now Australian citizens - or at least permanent residents. This case was forcefully argued in several letters and submissions which were before the Minister, and which he refers to in his Statement of Reasons for the action he has taken.

It is argued for the Minister that a Statement of Reasons should not be too strictly construed, and that he cannot be expected to deal definitively with every point raised by applicants for permits. These points are well taken, but the argument presently under consideration is, perhaps, the strongest that the applicants have. It may be that it should have been more clearly put into the scales when it came to the final weighing.

These, then, are the matters relied on by the applicants in seeking a further stay of deportation. I have found it difficult to decide whether they add up to "a serious question to be tried" - which I accept as the first test I must apply, see Faingold v Zammit (1984) 1 FCR 87 and also Epitoma Pty. Ltd. v AMIEU (1984) 3 FCR 55 at pp. 58-9, and cases there cited.

There are cases, and I believe this is one of them, where it is difficult to draw the line between deciding whether there is a serious question to be tried, and prematurely deciding one or more serious questions. Even trying to formulate the serious questions precisely could involve an element of prejudgment.

In the event I have decided that there are, or at least could prove to be, serious questions to be tried, and that the balance of convenience is so overwhelmingly in favour of the applicants that any doubts I have should be resolved in their favour. In my view it is appropriate in some cases to consider the two tests of "serious question" and "balance of convenience" together in this way; see Bullock v Federated Furnishing Trades Society (11 February 85, unreported). I am fortified in this view that I have taken of the present matter by the observations of Jenkinson J in Dallikavak v Minister for Immigration and Ethnic Affairs (6 August 85, unreported).

The application of the Minister to discharge the stay ordered by Sweeney J on 17 July 1985 is accordingly refused. I shall hear any argument as to costs, and as to the continued detention of the third applicant, as soon as may be convenient.