Lu Ru Wei v Minister for Immigration & Multicultural Affairs

[1996] FCA 814

CATCHWORDS

MIGRATION - application to review decisions that the applicants were prohibited from making valid applications for protection visas - construction of a memorandum of understanding scheduled to the Migration Regulations - whether the applicants are “covered by” that memorandum of understanding within the meaning of s 91C(1)(b)(ii) the Migration Act and regulation 2.12A(1)(a) the Migration Regulations.

Migration Act 1958 (Cth) - ss 5, 29, 36, 47, 91A, 91B, 91C, 91D, 91E, 91F, 476,  Subdivision AI, Division 3 of Part 2

Migration Regulations - reg 2.12A, Schedule 11

LU RU WEI & ZHOU XIAO FANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
WAG 80 OF 1996

DRUMMOND J
BRISBANE
23 AUGUST 1996

FEDERAL COURT OF AUSTRALIA  No. WAG 80 of 1996
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION

BETWEEN:              LU RU WEI

First Applicant

AND:  ZHOU XIAO FANG

Second Applicant

AND:MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:  Drummond J
DATE OF ORDER:  23 August 1996
WHERE MADE:  Brisbane

THE COURT ORDERS THAT:

1.  The application is dismissed.

2.  All parties have liberty to apply with respect to costs.

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

FEDERAL COURT OF AUSTRALIA  No. WAG 80 of 1996
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION

BETWEEN:              LU RU WEI

First Applicant

AND:  ZHOU XIAO FANG

Second Applicant

AND:MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

CORAM:Drummond J

DATE:23 August 1996

PLACE:Brisbane

REASONS FOR JUDGMENT

This is an application under s 476 the Migration Act 1958 (Cth) for the review of decisions made by Mr Vardos, a delegate of the Minister for Immigration and Multicultural Affairs, under Subdivision AI, Division 3 of Part 2 of the Act that the first applicant (on behalf of himself, his wife and three children) and the second applicant were not entitled to make valid applications for protection visas. Although application was also made under s 477, in the alternative to that made under s 476, that alternative application, correctly in my opinion, was not pursued at the hearing.

THE BACKGROUND TO THE VISA APPLICATIONS

The applicants were both born in Vietnam and are of ethnic Chinese origin.  In 1978 or 1979 they were forced to leave Vietnam and moved to China.  Together with a number of people of similar background (including the first applicant’s wife and three children), they came to Australia in a boat code-named “Mudlark” by the Department of Immigration and Multicultural Affairs (DIMA).  The boat departed from the Guandong Province in the Peoples’ Republic of China in late August 1994 and arrived in Darwin on 9 March 1995, after stopping for a short time in the Philippines.  The applicants have been detained by DIMA since their arrival.

Both applicants have submitted evidence as to why they felt it necessary to flee China and of the potential prejudice to them should they return there.  The first applicant and his wife say they fear reprisal action by the Chinese government as a result of their “breaches” of China’s “one child” policy.  The first applicant also says that, as the captain and owner of the “Mudlark” and organiser of the boat trip, he is at risk of imprisonment if he is sent back to China.  The second applicant says that, as a result of his involvement in pro-democracy activities, he has been imprisoned and banned from attending the medical school in which he was enrolled, as well as being denied permission from “the authorities” to obtain employment; he also says that his freedom to travel within China or elsewhere has been curtailed.

THE VISA APPLICATIONS

On 26 October 1995 the first applicant made his initial, but unsuccessful, application for a protection visa.   He challenged the rejection of this application in this Court.  Those proceedings were dismissed by consent in April 1996.  On 9 April 1996, he lodged the application for a protection visa, on behalf of himself, his wife and children, with which I am concerned.  The second applicant lodged his visa application on 22 March 1996.  The decision-maker subsequently determined that, having regard to the provisions of Subdivision AI of the Act, the applicants’ applications for protection visas were not valid applications and so advised the applicants on 5 and 4 June 1996, respectively.

The applicants were to be removed from Australia to China on a flight departing from Port Hedland on the evening of 21 June 1996.  Carr J, however, granted an interlocutory injunction prohibiting their removal and made an order that the hearing of the application for review be expedited.  The application now before me was filed on 27 June 1996.

THE LEGISLATION

Section 29 of the Act gives the Minister power to grant a non-citizen a visa, ie, permission to travel to and enter Australia, or to remain in Australia.  The classes of visa provided for by the Act include protection visas (s 36(1)).  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 1951 Geneva Convention relating to the Status of Refugees, as amended by the 1967 New York Protocol Relating to the Status of Refugees (ss 5 and 36(2)).  Section 47(1) obliges the Minister to consider only a valid application for a visa.

Subdivision AI was introduced into the Act on 15 November 1994 by the Migration Legislation Amendment Act 1994 (Cth).   The heading of the subdivision reads “Certain non-citizens unable to apply for certain visas”.  The “reason for the subdivision”, so far as is presently relevant, is set out in s 91A:

“This Subdivision is enacted because the Parliament considers that certain non-citizens ¼ 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.”

Section 91E provides:

“Despite any other provision of this Act, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a protection visa then, subject to section 91F:

(a)if the non-citizen has not been immigration cleared at that time - neither that application nor any other application made by the non-citizen for a visa is a valid application; or

(b)if the non-citizen has been immigration cleared at that time - neither that application nor any other application made by the non-citizen for a protection visa is a valid application.”

It is common ground that the applicants have not been immigration cleared.

Section 91C provides:

“(1)This Subdivision applies to a non-citizen at a particular time if:

(a)the non-citizen is in Australia at that time; and

(b)at that time, the non-citizen is covered by:

...

(ii)an agreement, relating to persons seeking asylum, between Australia and a country that is, or countries that include a country that is, at that time, a safe third country in relation to the non-citizen (see section 91D); and

(c)the non-citizen is not excluded by the regulations from the application of this Subdivision.

(2)To avoid doubt, a country does not need to be prescribed as a safe third country at the time that the agreement referred to in sub-paragraph (1)(b)(ii) is made.”

“Agreement” is defined in s 91B(1) as including “a written arrangement or understanding, whether or not binding”.  Section 91D(1) provides that a country is a “safe third country” in relation to a non-citizen if it is prescribed as such in the Migration Regulations in relation to the non-citizen, or in relation to a class of persons of which the non-citizen is a member, and if the non-citizen has a “prescribed connection” with the country.

The concepts of prescribed “safe third country” and “prescribed
connection” are dealt with in reg 2.12A(1) the Migration Regulations, which declares:

“(a)[People’s Republic of China] is a safe third country in relation to a person who is, or who 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; and

(b)a person referred to in paragraph (a) has a 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.”

Section 91F(1), to which the proscription in s 91E is subject, gives the Minister discretionary power to determine, if he thinks it is in the public interest to do so, that s 91E does not apply to an application by a particular person for a visa, including a protection visa.  Sub-section 91F(6) makes it clear the Minister does not have a duty to consider whether to exercise the power under sub-section 91F(1), whether he is requested to do so by the non-citizen or by any other person, or in any other circumstances.

THE ISSUE FOR DETERMINATION

The issue in this case is whether or not the applicants are “covered by” the Memorandum of Understanding dated 25 January 1995 (MOU), within the meaning of that expression in s 91C(1)(b)(ii) and in reg 2.12A(1)(a) and so are prohibited from making a valid application for a protection visa under s 91E. It was
not disputed that the MOU is an “agreement” for the purposes of s 91C(1)(b), although the applicants deny that it is a legally binding international agreement appropriate to be interpreted by reference to the canons of construction of treaties.

The MOU, as set out in Schedule 11 to the Migration Regulations, provides:

"Representatives of the Ministry of Civil Affairs of the People’s Republic of China and the Department of Immigration and Ethnic Affairs of Australia met in Beijing from January 20 to 25, 1995 on the issue of recent unauthorised arrivals in Australia of Vietnamese refugees settled in China.  The discussions were held in a friendly and cooperative atmosphere.

Being concluding parties to the ‘1951 Convention relating to the Status of Refugees’ and the ‘1967 Protocol Relating to the Status of Refugees’, both parties observed 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.  Both parties also  noted that the United Nations High Commissioner for Refugees has been closely involved in all matters relating to the refugees, with the active cooperation of the Chinese authorities, both centrally and locally.

Both parties noted that the recent movement to Australia of some Vietnamese refugees settled in China was unauthorised.  Consistent with international practice, both parties expressed their opposition to the unauthorised flow of refugees to third countries from the country of first asylum where they enjoy protection.

Both parties agreed that for the recent and possible future unauthorised arrivals in Australia of Vietnamese refugees settled in China they will, in the spirit of international cooperation and burden sharing and maintaining and further developing the friendly relations between China and Australia, and fulfilling international obligations consistent with international practice, engage in friendly consultations and seek proper settlement of the issue through agreed procedures.  To this end, Vietnamese refugees settled in China returned under agreed verification arrangements, will continue to receive the protection of the Government of China.

On this basis both parties reached the following understandings on special arrangements for dealing with current unauthorised arrivals in Australia of Vietnamese refugees settled in China.

1.The Ministry of Civil Affairs agrees to accept those refugees settled in China, subject to verification procedures as agreed between the two parties, and will be responsible for their resettlement.  However, this will not constitute a precedent for China in its handling of similar cases with other countries and regions.

2.The Department of Immigration and Ethnic Affairs will provide the Ministry of Civil Affairs with Vietnamese refugee registration forms as agreed between the two parties to facilitate the verification by the Chinese side.  The Department of Immigration and Ethnic Affairs will be responsible for the return of the verified Vietnamese refugees to China by air and will meet all associated costs.  The refugees will be returned in groups as soon as possible as verification procedures are completed.

3.Both parties agree to keep the UNHCR informed of the outcome of the negotiations and progress in relation to the returns, and seek its assistance if necessary.

Done in duplicate in Beijing on January 25, 1995 in Chinese and English, both texts being equally authentic ...”

THE PARTIES’ SUBMISSIONS

The applicants submit that the MOU applies only to Vietnamese refugees settled in the PRC who are “current unauthorised arrivals in Australia”, ie, to such refugees who had already arrived in Australia when the MOU was signed on 25 January 1995; since they only arrived in Australia on 9 March 1995, it is said that the applicants are not “covered by” the MOU and are therefore free to make applications for protection visas that are not made invalid by s 91E.  Counsel argues that the MOU should be interpreted by reference to principles of domestic law, since
the MOU has been incorporated into Australian municipal legislation by reg 2.12A, and is an instrument of lesser status than an international treaty.  In particular, the applicants rely upon the principle that where an instrument potentially affects the fundamental rights and freedoms of individuals (here the right of refugees to apply for asylum), the Court will look for a clear and unambiguous intention on the face of the instrument before it will construe the instrument as having that operation.

The respondent submits that the MOU, even though incorporated in the Regulations, should be construed in accordance with the principles of international law as codified by the Vienna Convention on the Law of Treaties; it does not matter, the respondent submits, whether this document is characterised as a treaty or an international instrument of some lesser status.  The respondent relies on Minister for Foreign Affairs & Trade v Magno (1992) 37 FCR 298 at 305 and 335-6. The respondent gives the word “current” in the MOU a wider meaning than that contended for by the applicants. Having regard to the whole of the MOU, the respondent submits that the expression, “current arrivals”, ought to be read as comprehending those who might arrive in the weeks or months immediately after the date of the MOU (a vague criterion for identifying the class of persons prohibited from seeking a protection visa), or at the least those who, like the applicants, were already en route to Australia when the MOU was entered into (a more precise criterion). But the respondent’s central submission is that any person coming within the broader pool of potential subjects referred to in the MOU (ie, all current and all future unauthorised arrivals of Vietnamese refugees settled in China) is “covered by”
the MOU for the purposes of s 91C(1)(b).

The dispute between the applicants and the respondent as to whether or not the MOU is to be interpreted by reference to relevant principles of domestic or international law has arisen because of certain evidence sought to be adduced by the respondent.  Article 31 of the Vienna Convention requires the “ordinary meaning to be given to the terms of the [MOU] in their context and in the light of its object and purpose” and makes it permissible to have regard to “subsequent practice” of the parties in construing international agreements.  The respondent sought to tender, inter alia, evidence of communications between the Secretary of DIMA and his Chinese counterpart after the date of the MOU, in which they recorded their understanding that the MOU applied to future, as well as current arrivals.

DECISION

It is not necessary for me to decide whether the MOU is a “treaty” or an international instrument of some lesser status or whether the interpretation principles of international or domestic law apply to the MOU or whether the contentious evidence is admissible.  Vietnamese refugees settled in China who arrive in Australia at any time after the date of the MOU are, in my opinion, “covered by” it for the purposes of both s 91C(1)(b) and reg 2.12A(1), even if the MOU is construed in accordance with the principles of domestic law, rather than the more elastic principles of international law on which the respondent relies.

The MOU has force in Australian municipal law only by virtue of reg 2.12A, ie, only for the purpose of identifying China, in relation to a particular class of non-citizen, as a safe third country within s 91D(1)(a), for the purposes of s 91C. In order to determine whether the PRC is a safe third country in relation to a particular applicant for a protection visa, it is necessary to determine whether that person is “a Vietnamese refugee settled in PRC ¼ as covered by the Memorandum of Understanding between Australia and PRC the English text of which is set out in Schedule 11”. Once it is determined that PRC is a safe third country in relation to a particular applicant for a protection visa, it will remain to be determined whether that person is, within the meaning of the words of s 91C(1)(b)(ii) “covered by ¼ an agreement, relating to persons seeking asylum, between Australia and” that safe third country.

There is a lack of concordance between the use of the phrase “covered by” in reg 2.12A(1) and in s 91C(1)(b)(ii): the regulation raises the question of coverage by the MOU in the context of whether a person who is a Vietnamese refugee settled in PRC is, as such, covered by the MOU. The section raises the question of coverage by the MOU in the context of whether a person is covered by an agreement that answers the description of an agreement between Australia and a safe third country that relates to persons seeking asylum.

Whether the applicants are persons covered by the MOU and so within s 91C(1)(b) will, I think, be governed by whether they are covered by the MOU within reg 2.12A:  whether the MOU is an agreement of the kind referred to in
s 91C(1)(b)(ii) depends on whether it is an agreement between Australia and a safe third country in relation to the applicants. That in turn depends on whether each of the applicants is, in terms of reg 2.12A(1)(a), “a Vietnamese refugee settled in PRC ¼ as covered by the” MOU. If that latter test is not satisfied, so that the PRC is not a safe third country in relation to the applicants, there is no point in considering the question thrown up by s 91C(1)(b), viz, whether they are “covered by” an agreement of the kind there referred to. I would therefore give the expression “covered by” in the section the same meaning it has in the regulation.

Given the ordinary dictionary meanings of the words, the expression “covered by” the MOU means, I think, something different from “referred to” or “mentioned in” the MOU.  It connotes a closer connection than that between the person and the MOU.  So far as concerns reg 2.12A(1), a person is a refugee “as covered by” the MOU if the MOU affects that person in some way.  This is, I think, confirmed by the form of the regulation:  the entire pool of Vietnamese refugees settled in China is mentioned or referred to in the MOU.  But PRC cannot be a safe third country in relation to every member of that group for the limited purposes of the Act:  if that were intended, the regulation would not impose the additional requirement that a person in relation to whom PRC is declared to be a safe third country should not only be such a refugee but also “as covered by the MOU”.  The expression “as covered by the MOU” must operate to limit the range of Vietnamese refugees settled in PRC in relation to whom PRC is a safe third country for the purposes of the Act.

The MOU, I think, falls into three parts.  The first, comprising the first three paragraphs, identifies the issue which led to the making of the Memorandum, viz, the need for China and Australia to state their mutual opposition to the unauthorised flow of refugees to third countries from the country of first asylum where they enjoy protection, a need provoked by recent unauthorised arrivals in Australia of Vietnamese refugees settled in China.  This part of the MOU mentions or refers to Vietnamese refugees settled in China in the context of an expression of opposition to their unauthorised movement to Australia, but does not affect or have any operative impact on any individual member of that class.

The second section, the fourth paragraph, records, firstly, an agreement that the PRC and Australia will engage in consultation to seek settlement of the issue of the movement to Australia of “the recent and possible future unauthorised arrivals” from this large group of Vietnamese refugees settled in China by agreeing on appropriate procedures for their return to PRC and, secondly, an acknowledgment by PRC that it will continue to protect Vietnamese refugees returned to China under such procedures.  This section of the MOU goes beyond merely referring to Vietnamese refugees settled in China who move without authority to Australia:  it records an agreement by China and Australia upon certain action to be taken with respect to those members of that class of person who fall within the description of “the recent and possible future unauthorised arrivals” in Australia.  For the reasons given, each Vietnamese refugee settled in China who comes within this description is “a Vietnamese refugee settled in China ¼ as covered by the MOU”
within reg 2.12A(1).

The third and final section of the MOU records a further agreement (reached by implementing the agreement in the second section) with respect to the return to PRC of “current unauthorised arrivals in Australia of Vietnamese refugees settled in China”.  Although this is a narrower sub-group of the Vietnamese refugees mentioned in the MOU than that group referred to in the second part of the MOU, for the same reasons that I think that each member of the group of Vietnamese refugees referred to in the second part of the MOU is “covered by” the MOU for the purposes of the regulation, I think that each member of the sub-group referred to in the third part of the MOU is also “covered by” the MOU.

In my opinion, a person who is a Vietnamese refugee settled in PRC is, as such, covered by the MOU for the purposes of reg 2.12A and is also a person covered by an agreement relating to persons seeking asylum for the purposes of s 91C(1)(b), if that person is a Vietnamese refugee settled in PRC who can also be described, by reference to the date of the MOU, 25 January 1995, as a “current” or a “recent” or a “possible future” unauthorised arrival in Australia.

It is unnecessary to determine who, in relation to that date, can be classed as “recent” or “current” unauthorised arrivals:  both applicants are “covered by” the MOU because they were, in relation to 25 January 1995, possible future unauthorised arrivals.  They were therefore disabled from making valid applications for protection visas.  The Minister had no duty to consider their applications.

The statutory provisions interpreted in the narrow way contended for by the applicants still operate in terms to exclude a person arriving in Australia before 25 January 1995, otherwise entitled to recognition as a refugee, from being given that recognition.  But counsel submits that, given Australia’s international obligation to give asylum to refugees, there is room to read down the provisions to ensure that the MOU does not cover persons truly entitled to refugee status who arrive after that date.  I do not think such a construction of the relevant provisions is justified, for the reasons already given.  I note that the Minister has a discretion under s 91F to exempt individuals from the proscription in s 91E; this provides a possible means whereby a person entitled to refugee status can have his claim recognised.  Moreover, PRC has the status of a safe third country for the purposes of Subdivision AI, Division 3 of Part 2 of the Act only for a period of two years from the commencement of reg 2.12A:  see s 91D(4).  If it is to have that status thereafter, the Executive Government must decide to so declare it again, in the light of the information available to it as to PRC’s treatment of its Vietnamese refugees.

The application is dismissed.

I certify that this and the preceding 14
pages are a true copy of the reasons
for judgment of the Honourable
Justice Drummond.

Associate:
Date:  23 August 1996

Counsel for the applicants:  Mr R Lindsay

Solicitor for the applicants:  Legal Aid (Western Australia)

Counsel for the respondent:  Mr RRS Tracey QC

Solicitor for the respondent:  Australian Government Solicitor

Date of Hearing:  19 July 1996