Lu Ru Wei v Immigration and Multicultural Affairs
[1996] FCA 576
•21 Jun 1996
LIMITED DISTRIBUTION
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WAG 80 of 1996
GENERAL DIVISION )
BETWEEN : LU RU WEI
First Applicant
ZHOU XIAO FANG
Second Applicant
AND: THE MINISTER FOR IMMIGRATION
& MULTICULTURAL AFFAIRS
Respondent
CORAM: CARR J.
PLACE: PERTH
DATE: 21 JUNE 1996
EX TEMPORE REASONS FOR JUDGMENT
Introduction
In this matter the applicants, by notice of motion, seek urgent interlocutory relief to restrain the respondent from causing or permitting their removal (and the removal of any of their dependants detained with them) from Australia. The first applicant seeks this relief in respect of himself, his wife and three children. The second applicant does not have any dependants detained with him. Relief is sought urgently because the respondent proposes to remove the applicants (and Mr and Mrs Lu's three children) from Australia to China on a flight departing from Port Hedland at eleven o'clock this evening.
Factual Background
The applicants were both born in Vietnam and are of ethnic Chinese origin. They were expelled from Vietnam into China in late 1978 or early 1979. Mr and Mrs Lu's three children were born in China in 1987, 1989 and 1991. The Lu family and Mr Zhou (the second applicant) left China on 22 August 1994 on a boat subsequently codenamed "Mudlark". Mr Lu was the captain of the "Mudlark". The boat apparently laid over for some months in the Philippines and arrived in Australia on 9 March 1995. On 13 March 1995 Mr and Mrs Lu and Mr Zhou were interviewed by the respondent's officers. Mr and Mrs Lu were further interviewed on 14 March 1995. None of them said or did anything in the course of those interviews to indicate that they were refugees or were seeking asylum in Australia.
On 12 July 1995 the applicants were held at the Immigration Reception and Processing Centre at the RAAF base at Curtin. On that date they were read a notice (with the assistance of an interpreter) which reads as follows:
"Notice
This notice explains the rules which Australia will apply to most people who have arrived without authority in Australia in recent months.
From November 1994 about 800 people from China have arrived by boat in Australia.
Most of these arrivals are refugees from Vietnam and their families who have been settled in China. The Australian Government and the United Nations High Commissioner for Refugees believe that such people have received the protection of China since they began arriving there from Vietnam in the late 1970's. Australia and China have entered into a Memorandum of Understanding whereby any such people returned to China will continue to receive China's protection.
Against this background, the Australian Parliament made new laws earlier this year to ensure that such people who arrived without authority from China and who did not apply for refugee status before 30 December 1994 would not be allowed to apply for refugee status in Australia. The laws also mean that the government cannot process any applications for refugee status made since 30 December 1994 by these people.
Such people will be returned to China as soon as arrangements are finalised.
A written copy of this statement in Chinese will be made available to you.
Department of Immigration
& Ethnic Affairs
A copy of the translation of the above notice was, on 12 July 1995, handed to each adult member of the group of 52 individuals who had arrived on the "Mudlark".
On 13 November 1995 the Independent Council for Refugee Advocacy, acting on behalf of Mr and Mrs Lu, lodged a form of Application for a Protection Visa (866) signed by Mr Lu. On 14 December 1995 the respondent's Director, Boat Co-ordination Unit, wrote to Mr Lu advising him that his application was invalid as he was covered by the Memorandum of Understanding (referred to further below) and was therefore subject to Subdivision A1 of Division 3 of Part 2 of the Migration Act 1958 (Cth) ("the Act"). The letter concluded by stating that Mr Lu's application for a protection visa was "therefore invalid and as such cannot be considered by the Minister".
On 22 January 1996 Mr Lu's representative requested a formal statement of reasons pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). On 21 February 1996 the respondent's department provided those
reasons to the applicant. They were as follows:
.Mr Lu arrived in Australia on 9 March 1995 on board the boat codenamed "Mudlark";
.Mr Lu is a person who is, or has been, a Vietnamese refugee settled in the Peoples Republic of China as covered by the Memorandum of Understanding made between Australia and the PRC on 25 January 1995;
.Mr Lu has a prescribed connection with the PRC having resided there at a time before entering Australia;
.Subdivision A1 of Division 3 of the Migration Act 1958 therefore applies to Mr Lu;
.Mr Lu has not been immigration cleared;
.Pursuant to s.91E of the Migration Act Mr Lu is not able (subject to s.91F) to make a valid application for a visa;
.Subsection 47(3) prevents the Minister from considering an application that is not a valid application.
On 19 March 1996 the Director of Legal Aid, Legal Aid Western Australia, filed an application on behalf of Mr Lu under the ADJR Act for review of the decision made on 14 December 1995 that Mr Lu's application for a protection visa was an invalid application and could not be considered. On 28 March 1996 the respondent objected to the competency of that application on the grounds that Part 8 of the Act precluded an application under the ADJR Act. The parties to that application reached agreement that the application be dismissed and that the applicant pay the respondent's costs of the application to be taxed. The parties signed a consent order which was made and entered on 12 April 1996. In the meantime, on 9 April 1996, Legal Aid Western Australia, acting on behalf of Mr Lu forwarded to the respondent a further form of application for a protection visa. On 5 June 1996 Legal Aid Western Australia
received a letter from the respondent advising that Mr Lu and his family were not able to make a valid visa application to remain in Australia. I return to the chronology of events since 12 July 1996 in relation to Mr Zhou.
Mr Zhou lodged an application for a protection visa on 22 March 1996. On 4 June 1996 the respondent advised Mr Zhou that his application was invalid and that he would be removed from Australia.
On 19 June 1996 the applicants (including Mr and Mrs Lu's children) were removed from the Immigration Detention Centre in Melbourne to the Port Hedland Detention Centre in Western Australia. They form part of the 22 members of the "Mudlark" group remaining in detention.
On 20 June 1996 at 11.40 am the solicitor handling this application on behalf of Legal Aid of Western Australia spoke to an Assistant Secretary of the respondent's department. She told him that she had obtained counsel's advice concerning the applicability of the Memorandum of Understanding to the effect that it did not apply to Sino-Vietnamese refugees arriving in Australia after the signing of that Memorandum. She further told him that Legal Aid Western Australia proposed filing papers in this Court next week challenging the applicability of the Memorandum of Understanding to the applicants. She also sought from the Assistant Secretary an undertaking that the applicants would not be removed from Australia pending the filing of the papers in this Court or for an undertaking that Legal Aid Western Australia be provided with 72 hours notice of any impending removal of the applicants. The respondent was not
prepared to give such an undertaking and this matter was brought on as one of urgency. When it came before me yesterday, the respondent gave an undertaking not to remove the applicants or their dependants from Australia until the disposal of this motion. On that basis the motion was adjourned to this morning. From affidavits filed on behalf of the respondent this morning it appears that the deportation is to take place this evening.
The Legislative Framework
Section 29 of the Migration Act 1958 (Cth) authorises the Minister to grant visas permitting non-citizens either to travel to and enter Australia or remain in Australia, or to do both of these things. Section 31(1) provides that there are to be prescribed classes of visas. The Act itself also provides for classes of visas.
Section 36(1) of the Act provides for a class of visas to be known as protection visas. Section 36(2) stipulates that a criterion for a protection visa is that the applicant be a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. By definition in s.5 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. I incorporate by reference into these reasons the definition of "refugee" contained in Article 1A(2) of the Convention (as so amended).
Section 47 provides that the Minister is not to consider an application for a visa that is not a valid application.
On 15 November 1994 Subdivision A1 of Division 3 of Part 2 of the Act was introduced. The Subdivision is entitled "Certain non-citizens unable to apply for certain visas". The Subdivision added ss.91A to 91F, made certain other amendments and provided a transitional period. Section 91C provides that Subdivision A1 applies to a non-citizen at a particular time if the non-citizen is in Australia and is covered by the Comprehensive Plan of Action (which is not relevant to this matter) or an agreement, relating to persons seeking asylum, between Australia and a country that is, at the relevant time, a safe third country in relation to the non-citizen. The significance of the Subdivision applying to a non-citizen at a particular time is that if, at that time, the non-citizen applies for a protection visa then, subject to some presently immaterial exceptions, s.91E provides that such an application will not be a valid application. Section 91B(1) defines a "safe third country" as one which 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 the non-citizen has a prescribed connection with the country. The relevant prescriptions were effected by Regulation 2.12A of the Migration Regulations 1994 ("the Regulations"). Regulation 2.12A came into effect on 27 January 1995. Regulation 2.12A prescribes that the Peoples Republic of China ("PRC") is a safe third country in relation to a person who is, or has been, 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, as covered by the Memorandum of Understanding between Australia and PRC the English text of which is set out in Schedule 11 (emphasis added). Regulation 2.12A also defines a prescribed connection with PRC for the purposes of s.91B(1)(b) of the Act as that the persons, or a parent of the person, resided in PRC at any time before the person entered into Australia. Regulation 2.12A(2) states that the use of the word "Vietnamese" is as a reference to nationality or country of origin and not as an ethnic description.
The applicants contend that the Memorandum of Understanding does not apply to them because they arrived in Australia after it was signed. I incorporate by reference into those reasons the text of the Memorandum of Understanding which forms Schedule 11 to the Regulations.
The principles relevant to the grant of an interlocutory injunction are reasonably well-settled. Those relevant to the present matter are as follows:
The applicants must first satisfy the Court that there is a serious question to be tried.
It has not been suggested that, if there is a serious question to be tried, damages would be an adequate remedy.
The next question is whether the balance of convenience lies in favour of granting or refusing the injunction. The balance of convenience is sometimes referred to as "the balance of the risk of doing an injustice" - per May LJ in Cayne v. Global Natural Resources plc [1984] 1 All E.R. 225 at p.237, cited with approval by Gummow J. in Martin Engineering Co v. Trison Holdings Pty Ltd (1988) 81 ALR 543 at p.548.
When considering the balance of convenience it is permissible to bear in mind the apparent strength or weakness of the applicants' case. In other words the two limbs of the exercise are not necessarily independent of each other.
It is not part of the Court's function to decide difficult questions of law calling for detailed arguments and mature consideration: American Cyanamid v. Ethicon Ltd [1975] AC 396 at p.407.
The Contentions
The applicants contend that the Memorandum of Understanding applies only to Sino-Vietnamese arrivals in Australia up to the date upon which it was signed i.e. 25 January 1995. As the applicants arrived in Australia on 9 March 1995, so it was submitted, they are not covered by the Memorandum of Understanding. Mr R.E. Lindsay, counsel for the applicants, points to the provision in s.91D(4) to the effect that Regulation 212A ceases to be in force two years after its commencement, as indicating what he described as the "ephemeral rather than permanent effect" of that regulation. Mr Lindsay also referred to the first paragraph of the Memorandum of Understanding which refers to meetings in Beijing between 20 January and 25 January 1996 "... on the issue of recent unauthorised arrivals in Australia of Vietnamese refugees settled in China." The applicants rely upon the reference to both parties (i.e. Australia and the PRC) reaching "... the following understandings on special arrangements for dealing with current unauthorised arrivals in Australia of Vietnamese refugees settled in China" as applying only to those in Australia at 25 January 1995. It was submitted that the earlier reference to "... the recent and possible future unauthorised arrivals ..." in the Memorandum of Understanding meant that future arrivals would, as the Memorandum stated, be the subject of friendly consultations to
be engaged in by the parties. Mr Lindsay argued that there was no ambiguity in the Memorandum. Accordingly, it was not necessary to refer to supplementary sources for the purposes of construction. The Memorandum, so he submitted, ought not to be given an expansive construction which was unwarranted by its text and inconsistent with Australia's obligations under the Refugee's Convention and Protocol. He referred specifically to Articles 31 and 32 of the Vienna Convention as providing that it is only necessary to refer to supplementary sources where there is ambiguity or the result is absurd or untenable.
Mr R. Tracey QC, counsel for the respondent, referred me to Article 31 of the Vienna Convention and in particular the requirement that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its objective purpose. Furthermore, that article provides that the context for the purpose of the interpretation of the treaty shall comprise (Mr Tracey emphasised the mandatory expression) in addition to the text, preamble and annexes, any agreement which was made between all the parties in connection with the conclusion of the treaty and any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
The respondent has filed an affidavit from one of his Deputy Secretaries (Mr Dennis Richardson) who was a member of the delegation which negotiated the terms of the Memorandum of Understanding on behalf of the Australian Government. For present purposes I propose to disregard that portion of Mr Richardson's affidavit which leads to the statement that it was understood by both parties to that Memorandum that any such arrivals would be covered by the agreement.
I have had regard to those portions of Mr Richardson's affidavit which relate to the return, on 26 September 1995, of 31 persons from the "Mudlark" to China under the terms of the Memorandum of Understanding. A further 78 persons who arrived in Australia by boat on 13 March 1995 and 11 May 1995 respectively have similarly been returned. I also had regard to:
.a telephone conversation on 17 February 1996 (as minuted) between the then Secretary of the respondent's department and the Director-General of the PRC Office for Reception and Settlement of Indo-Chinese Refugees confirming that, as far as China was concerned, the Memorandum of Understanding had no effective cut off date and would cover a Vietnamese refugee settled in China who arrived in Australia on 6 February 1996;
.the exchange of letters between the Australian Ambassador to the Peoples Republic of China and the abovementioned Director-General on behalf of PRC confirming that the Memorandum of Understanding has continued to apply where persons arrived in Australia after 25 January 1995, that it operates for current unauthorised arrivals in Australia of Vietnamese refugees settled in China and will operate for future such arrivals.
Mr Tracey submitted that there is no serious question to be tried. He referred to the fourth paragraph of the Memorandum of Understanding which refers to "the recent and possible future unauthorised arrivals". He submits that the expression "covered by" relevantly means "comprehended". It was quite clear, so it was put that the Memorandum of Understanding comprehended persons who were anticipated future unauthorised arrivals in Australia. The fact that the Memorandum did not deal expressly with the way in which those persons would be dealt with did not matter. They were "covered" by the Memorandum of Understanding. In any event, so it was submitted, the exchange of documents between the two countries shows that the Memorandum of Understanding applies and has been applied to arrivals who came to Australia after 25 January 1995.
I can see considerable merit in Mr Tracey's submissions. It may well be held, at a final hearing of this matter that, as a matter of construction, the applicants are Vietnamese refugees settled in PRC, as covered by the Memorandum of Understanding and as provided by Regulation 2.12A.
However, on reading and re-reading the Memorandum of Understanding, it is impossible to ignore the fact that its first four paragraphs are in the nature of recitals. Paragraph 4 refers to recent and possible future unauthorised arrivals. It is only when one comes to the fifth paragraph that one finds "understandings" expressed. They deal expressly with "current unauthorised arrivals in Australia of Vietnamese refugees settled in China".
I have considered the submission that the exchange of letters of 5 and 6 June 1996 respectively (exhibited to Mr Richardson's affidavit) may have the result that the applicants are covered by the Memorandum of Understanding, even if, in the absence of that exchange, they would not have been so covered. I note that the signatories to the Memorandum of Understanding and the signatories to those letters hold the same status as officers of their respective countries. On the Chinese side they appear to be one and the same person.
Nevertheless Regulation 2.12 refers specifically to the Memorandum of Understanding rather than to ad hoc or even continuing arrangements made subsequently.
Although I have formed the view, on a provisional basis, that the applicants' case is not a particularly strong one, I consider that there is a serious question to be tried. The question is whether the applicants are covered by the Memorandum of Understanding and are thus prohibited from applying for a protection visa.
The case is thus, in my view, one where the applicants' entitlement to ultimate relief must be regarded as being uncertain. The uncertainty depends mainly on the abovementioned contested question of law. As Gummow J. observed in Martin Engineering Co (at p.547):
"Where the uncertainty depends in whole or in part on a contested question of law, it may or may not be appropriate for the Court to decide that question on the interlocutory application, depending on circumstances, e.g. whether the question is novel or difficult, or is susceptible of resolution on the present state of the evidence, or whether the urgency of the matter renders it impracticable to give proper consideration to the question."
I regard the question as being novel, fairly difficult and one which ought not to be decided as a matter of urgency within a few hours unless other relevant factors such as the balance of convenience or, more specifically, the balance of the risk of doing an injustice, to either party require taking such a course. I now turn to that question.
Where Does the Balance of Convenience Lie?
The potential injustice to the applicants is almost self evident. If they are right in their
contentions but no interlocutory injunction is granted, they will be repatriated to China. There is no evidence to suggest that if this application proceeds in their absence and they are successful, then they will be able to return to Australia. Accordingly, there will be considerable "inconvenience" to the applicants if they are repatriated. In a practical sense, if such repatriation occurs, I think I am entitled to infer that that will determine the substance of the matter in issue in these proceedings so far as the applicants are concerned.
Nevertheless, that does not, in itself, decide where the balance of convenience lies. To start with, that matter cannot be entirely divorced from the assessment of the strength of the applicants' case and I have already indicated my views on that.
Secondly, the respondent asks me to take into account, on his side, the matter of public interest. Mr Tracey referred me to the decision of Sir Anthony Mason ACJ in Castlemaine Tooheys Ltd v. State of South Australia (1986) 67 ALR 553 at p.557. The submission was that this was one of these cases where the public interest was such that an applicant may need to show a probability, even a distinct probability of success, in order to obtain an interlocutory injunction. I think that that case can clearly be distinguished from the present. In that case, matters of construction or interpretation were not involved. The plaintiffs in that case sought to restrain the enforcement of a statute on the basis that it was ultra vires the Constitution.
In the end, the respondent's put the matter of public interest on two bases. The first was the considerable expense involved if the applicants and Mr and Mrs Lu's children are to be repatriated at a later date. The second was possible damage to international relations resulting from arrangements made between the Chinese authorities and the respondent to transport the applicants and Mr and Mrs Lu's children to China being changed at the last minute.
There is some evidence before the Court that if the applicants and the children are subsequently to be repatriated, further expense of some $46,000 will be involved. I was told from the bar table, that under the requirements of the airline company, five guards will need to accompany the applicants and the children to China and of course the guards would have to return. I accept that these are regulatory requirements if the applicants and the children are returned separately to China. However, nothing was put before me on the question whether, if they are eventually to be repatriated, the applicants and the children cannot be made part of a subsequent repatriation flight. I take into account also the cost to the respondent of maintaining the applicant and the children pending disposal of the proceedings.
Then the respondent says that "tonight's flight is the culmination of an enormous amount of work". I think the appropriate response to that is that the flight will proceed even if an interlocutory injunction is granted and not all that work will be wasted. I accept that further work may have to be done to arrange a subsequent repatriation, if that is to occur. Accordingly, I weigh in the balance of inconvenience the fact that $46,000 or perhaps some slightly lesser amount of public funds may be irrecoverably expended.
I do not regard the possible disruption of arrangements with the Chinese authorities as being of particular significance because the evidence before me suggests a considerable degree of goodwill and understanding from that side.
Mr Tracey put forward two other factors which he said "weigh heavily". The first was that this application is made at the very last minute despite the fact that the applicants were well aware of the respondent's attitude. He referred, in the case of Mr Lu to the disposal by consent of the previous application under the ADJR Act. It was, so it was put, too late in the day to come to the Court to prevent their departure. In reply to this, Mr Lindsay points out that Mr Lu did not obtain legal advice until early March 1996 and in respect of Mr Zhou, he obtained legal advice only two weeks ago.
Once again, I can see considerable merit in Mr Tracey's submission. It is now over two months since Mr Lu's application under the ADJR Act was dismissed by consent. Mr Zhou's situation is slightly different but the difference is not such as would warrant granting him an interlocutory injunction but not Mr Lu.
I think it is most unsatisfactory that this application for interlocutory relief has come on at the very last minute. However, it would appear that on the respondent's side there has been some concern about the cover of the Memorandum of Understanding. I refer to the minute of 7 February 1996 and the exchange of letters earlier this month. The respondent was aware of the possible challenge. It was open to the respondent to warn the applicants' solicitors of the course proposed, so that this matter could be
ventilated earlier and with more deliberation. I appreciate that the decision to issue such a warning would require taking into account various factors including the likely response. The bulk of the responsibility for the lateness of this application lies on the applicants' side.
Finally, Mr Tracey referred me to s.198(7) of the Act which requires the respondent's officers, so it was put, to remove persons such as the applicants as soon as possible. I think the answer to that submission is that if the applicants are correct in their legal submission, they are entitled to make an application for a protection visa.
Conclusion
I have weighed all of the above factors. I have been particularly concerned about the extra public funds which will be expended if the applicants' case is eventually dismissed and they are eventually returned to China.
Nevertheless, I consider that there is a serious question to be tried and, (despite my reservations about the strength of the applicants' case), I consider that that factor coupled with my assessment of the balance of convenience requires that, in the interests of justice, an interlocutory injunction be granted.
In view of the importance of the matter and the ongoing financial burden on the respondent in maintaining the applicants and the three children in custody, I propose to make an order that the hearing of this application be expedited.
I certify that this and the preceding nineteen
(19) pages are a true copy of the Reasons for
Judgment of Justice Carr.
Associate:
Date: 21 June 1996
Counsel for the Applicant: Mr R.E. Lindsay
Solicitors for the Applicant: Legal Aid Western Australia
Counsel for the Respondent: Mr R.R.S. Tracey QC
Solicitors for the Respondent: Australian Government
Solicitor
Date of Hearing: 21 June 1996
Date of Judgment: 21 June 1996
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