Morato, G.C.S. v Minister for Immigration Local Government and Ethnic Affairs

Re: GUSTAVO CARLOS SAAVEDRA MORATO
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G367 of 1991
FED No. 70
Migration
(1992) 106 ALR 367
(1992) 34 FCR 321
(1992) 26 ALD 435 (extracts)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)

CATCHWORDS

Migration - refugee status - definition of refugee - claim to membership of a particular social group

Migration - review of Ministerial decisions - Minister's powers to review decision of review officer

Migration - deportation - requirement to notify potential deportee of intention to exercise power to order deportation - manner of notification of intention

Migration Act 1958

Migration Regulations

Migration (Review) Regulations

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

Sanchez - Trujillo and Escobar - Nieto v Immigration and Naturalization Service 801 F.2d 1571

Reg. v Home Secretary; ex parte Sivakumaran (1988) AC 958

HEARING

MELBOURNE

#DATE 2:3:1992

Counsel for the applicant: Mr O.P. Holdenson

Solicitors for the applicant: Moores

Counsel for the respondent: Mr R. Downing

Solicitor for the respondent: Australian Government Solicitor

ORDER

The application be dismissed.

The interlocutory orders staying the execution of the deportation order first made on 13 December 1991 and subsequently extended until the resolution of the application be extended until 4.00p.m. on Friday, 6 March 1992 and in the event that the applicant shall give notice of appeal before then, the stay be extended until the resolution of the appeal or until further order of the Court.

The respondent's costs (including reserved costs) be taxed and paid by the applicant.

JUDGE1

This application for judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) has to do with a series of decisions and a course of conduct associated with the attempts by the applicant to obtain refugee status and a domestic protection (temporary) entry permit (DPTEP) pursuant to the Migration Act 1958 (the Act) and the Migration Regulations (the regulations).

The decisions or conduct in respect of which judicial review is sought are:
1. A decision of Christopher Dear made 8 October 1991 that the

applicant not be granted refugee status.

2. A decision of Christopher Dear made 21 October 1991 that the

applicant not be granted a DPTEP.

3. The conduct of the respondent (the Minister) and his failure to

make decisions:

(a) to set aside the decisions and/or conduct referred to above or any of them;

(b) to give consideration under section 115(5) of the Act as to whether it was in the public interest for any or all of the said decisions and/or conduct to be set aside;

(c) to think that it was in the public interest to do, pursuant to section 115(5) of the Act, any or all of the matters set out in section 115(5) in respect of any or all of the said decisions and/or conduct;

(d) to set aside any or all of the said decisions and/or conduct and substitute, pursuant to section 115(5)(b) of the Act a decision to grant to the applicant a DPTEP.

4. A decision of Deborah Joy Bates made 21 November 1991 that the

applicant be deported.

(It is common cause that in making the decisions referred to in 1, 2 and 4 above, the relevant decision maker was acting as a duly appointed delegate of the Minister).

The various grounds relied upon by the applicant will appear in the following discussion of the application.
The status of the applicant to bring the application has not been challenged.
The applicant relied upon affidavits of the applicant sworn 29 November 1991 and 5 December 1991 and of his solicitor Jennifer Anne Green sworn 5 December 1991, 29 January 1992 and 7 February 1992. The respondent relied upon affidavits of Jeffrey Alan Davidson sworn 12 December 1991 and 3 February 1992, Margot Carroll sworn 12 December 1991 and Lysbeth Mary Haig sworn 7 February 1992. None of the deponents was required to be cross-examined.
The respondent objected to the competency of the Court to try the issues raised in 3 above on the ground that none of the alleged conduct amounted to a decision, or conduct for the purpose of making a decision, to which the ADJR Act applies.
CHRONOLOGY
The following is a chronological summary of the events relevant to this application.
22 August 1949 - Applicant born in Bolivia. 13 September 1988 - Applicant arrived in Australia on a forged

passport.

12 December 1988 - Applicant arrested by Australian Federal Police

(AFP) and charged with being knowingly concerned in the importation of cocaine.

1 March 1990 - Applicant pleaded guilty to charge of

being knowingly concerned in the importation of cocaine and sentenced by Judge Neesham to 6 1/2 years' imprisonment, with a non-parole period of 4 years.

16 March 1990 to 9 April 1990 - Applicant's co-offender Diaz tried on

charge of being knowingly concerned in the importation of cocaine. Applicant gave evidence for the prosecution. Diaz convicted and sentenced to 14 years' imprisonment with a non-parole period of 11 years.

13 November 1990 - Applicant advised by officer of Department of

Immigration, Local Government and Ethnic Affairs

(DILGEA) of his status as an illegal entrant under section 20 of the Act. Applicant interviewed by DILGEA and completed notice under section 20(3) declaring his breach of the immigration laws.

15 January 1991 - Application for refugee status (dated 30

November 1990) lodged.

1 March 1991 - Determination of Refugee Status (DORS)

committee decision to recommend rejection of application notified to applicant. Period of 21 days allowed for applicant to comment.

18 March 1991 - Applicant wrote to DORS committee

(received 22 March 1991) making further submissions in support of his application.

24 April 1991 - Application for refugee status not

approved by Minister's delegate.

1 May 1991 - AFP wrote to DILGEA requesting that no action be

taken to deport applicant prior to him giving evidence at the trial of a person whose name is not disclosed.

6 May 1991 - Applicant wrote to DORS committee (received 9

May 1991) seeking review of decision of 24 April 1991 by Refugee Status Review Committee (RSRC).

4 July 1991 - Applicant advised that his deemed

application for DPTEP had been rejected on the ground that he had been refused refugee status.

7-15 July 1991 - Applicant gave evidence in Sydney at committal

proceedings concerning one Thompson. Thompson not committed for trial.

16 July 1991 - Applicant became eligible for parole but

immediately arrested under section 92 of the Act.

19 July 1991 - Applicant applied for review of the

decision to refuse DPTEP.

31 July 1991 - Applicant's solicitor forwarded submission

to Review Committee.

25 July 1991 - Commonwealth Director of Public

Prosecutions advised DILGEA that there was no longer any need for the applicant to remain in Australia.

28 August 1991 - RSRC recommended that refugee status be

not granted.

12 September 1991 - Applicant advised of RSRC recommendation and

invited to comment within 7 days.

19 September 1991 - Lengthy submission forwarded to RSRC by

applicant's solicitors.

8 October 1991 - Decision by review officer (Christopher

Dear) affirming decision of 24 April 1991 that applicant's application for refugee status be refused.

9 October 1991 - Applicant advised of review officer's decision. 21 October 1991 - Review Officer (Christopher Dear) affirmed

decision of 4 July 1991 to refuse to grant DPTEP.

6 November 1991 - Internal minute sent by RSRC to Assistant

Secretary, DILGEA, seeking consideration of exercise by Minister of his power under section 115 to grant DPTEP. - Internal minute sent by Assistant Secretary, DILGEA, seeking consideration of exercise by Minister of his powers under section 115.

15 November 1991 - Memo from Minister to DILGEA advising that he

had not considered the matter and did not wish to exercise his powers under section 115.

19 November 1991 - Applicant advised that Minister had decided not

to exercise his powers under section 115. - Applicant given written notice of Minister's intention to exercise power to order applicant's deportation.

21 November 1991 - Deportation order made by Minister's delegate

(Deborah Joy Bates).

29 November 1991 - Application for judicial review filed.

THE ISSUES

The three major issues which arise in these proceedings have to do with:
1. The proper construction of the term "refugee" used in the

Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 (the Convention) and the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967 (the Protocol);

2. The proper construction of section 115 of the Act; and 3. The proper construction of regulation 179.

The Court is not concerned with the merits of the applicant's applications for refugee status and for DPTEP nor with the question of whether any discretionary power vested in the Minister should be exercised in any particular manner.
THE STATUTORY FRAMEWORK
The following summary of what appear to be the relevant statutory and regulatory provisions is an attempt to provide some order out of the chaos which passes for the immigration law of this country so far as it relates to the subject matter of these proceedings.
At the outset, let it be assumed, which is the case, that the applicant is a person to whom section 20(1) of the Act applies. By virtue of section 14(2) the applicant is an illegal entrant so long as he remains in Australia, is not a citizen and does not hold a properly endorsed valid entry permit. Further, the powers of the Minister exercised by persons identified as his delegates were duly exercised pursuant to delegations made in accordance with section 176(1) of the Act.
I will deal first with provisions relating to entry permits and in particular to DPTEPs.
Regulations made under the Act may make provision in relation to the granting and refusal of entry permits subject to conditions and subject to a limitation as to the time the holder is authorised to remain in Australia (s.33(1)) and may provide for different classes of entry permits and (subject to 2 irrelevant limitations) that a person is entitled to be granted an entry permit of a particular class if that person satisfies all of the prescribed criteria in relation to that class (s.33(2)).
The term "temporary entry permit" means an entry permit that is subject to a limitation as to the time the holder is authorised to remain in Australia (s.4(1)).
Where a person makes an application for an entry permit of a particular class in accordance with the regulations and pays the prescribed fee, and it appears to the Minister that the applicant is, under the regulations, entitled to be granted an entry permit of that class, the Minister shall (subject to the Act) grant the application but if it appears to the Minister that the applicant is not, under the regulations, so entitled, the Minister shall refuse to grant such an entry permit (s.34).
By regulation 21, classes of entry permits are prescribed for the purpose of section 33(2)(a) including the class described as "domestic protection (temporary)".
An application by a person to the Minister, lodged before 1 July 1991, for refugee status also has effect as an application for a DPTEP (reg. 22D(1)(a)).
An applicant for an entry permit must satisfy the prescribed criteria in relation to the relevant class of entry permit (other than public interest criteria and prescribed health criteria) at the time of application and as applicable at that time (reg.34A(1)).
The regulations prescribe certain criteria not presently relevant concerning the granting of entry permits generally and in regulation 117A(1) the following additional criteria are prescribed for a DPTEP namely that, when a decision on the application for the permit is made:
(a) the applicant is in Australia; and (b) the applicant has been determined by the Minister to have refugee

status; and

(c) the applicant has undergone a medical examination carried out by a

Commonwealth medical officer; and

(ca) the applicant:

(i) has undergone a chest X-ray examination conducted by a medical practitioner who is qualified as a radiologist in Australia; or

(ii) is below the age of 16 years and is not a person in respect of whom a Commonwealth medical officer has requested such an examination; and

(d) the Minister is satisfied that the grant of the permit is in the

national interest.

The period during which a DPTEP is to have effect may not exceed 4 years (reg.117A(2)).
Section 115 provides the basis for a scheme of internal review of Ministerial decisions. The regulations may provide, inter alia, for decisions of the Minister to be reviewed (s.115(1)(a)) and for the appointment of review officers who are to conduct such reviews (s.115(1)(b)). A decision to order the deportation of a person and a decision that a person does not have the status of a refugee within the meaning of the Convention or the Protocol may not be prescribed by regulations under section 115 (s.120(1)(c), (d)).
By regulation 2A(2) of the Migration (Review) Regulations 1989 (the review regulations) a decision is not internally reviewable if it is a decision made by the Minister personally. The review regulations make provision in Part 2A for the review of decisions concerning DPTEPs.
Subsection 115(5) provides that

Where the Minister thinks that it is in the public interest to do so, the Minister may:

(a) set aside a decision affirmed, varied or made by a review officer under regulations made under subsection (1); and

(b) substitute for the reviewed decision:

(i) the decision sought by the applicant in the primary application; or

(ii) another decision in terms to which the applicant agrees.

but by subsection (10)

The Minister does not have a duty to consider whether to exercise the power under subsection (5) or (6) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

The Act further provides in subsection 4(28) that

To avoid doubt, except as provided by subsections 115(5) and

(6) and 137(1) and (2):

(a) ...

(b) there is no power to grant an entry permit except under section 34 or 52.

(Neither s.115(6), s.137(1) nor s.52 has any relevance in the context of these proceedings).

I turn now to deal with provisions which refer to deportation.
The Minister may, after considering the prescribed matters and no other matters, order the deportation of a person who is an illegal entrant under the Act (s.60(1)).
For the purposes of subsection 60(1) the following matters are prescribed by regulation 179 to be considered by the Minister:

(a) whether the person is an illegal entrant;

(b) whether the person has been notified in accordance with these Regulations of the Minister's intention to exercise the power:

(i) to order the deportation of the person; or

(ii) to require the person to leave Australia;

(iii) as the case requires;

(c) whether the person has been granted, or is an applicant to be granted, refugee status or territorial asylum;

(d) whether the person:

(i) is an applicant for an entry permit; or

(ii) has applied to a review authority following a decision by the Minister refusing to grant an entry permit;

(e) whether the person is subject to a court order that is in force affecting the Minister's exercise of the relevant power referred to in paragraph (b);

(f) whether 2 working days have elapsed after the day on which the person was arrested under section 92 or 93 of the Act, as the case requires, or, if the person applied to the Minister under subparagraph 42(1A)(a)(iv), 7 working days have elapsed after the day on which he or she was so arrested.

REFUGEE STATUS

The Act does not define the term refugee status nor does it specifically empower the Minister to determinate that a person has that status but there are references both in the Act (s.47(1)(d); s.120(1)(d)) and the regulations (regs. 22D(1); 117A(1)(b)) from which a legislative intention could be inferred. The decision of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 suggests that the determination of refugee status is a decision or conduct which is reviewable under the ADJR Act, and subsequent decisions of this Court have expressed the same view. Presumably the power to delegate in subsection 176(1) also applies to the Minister's power to determine refugee status. The present proceedings have been conducted on the assumption that it does so apply.
The relevance of the Convention and the Protocol in these proceedings is the definition of refugee contained therein, which is (so far as is relevant):

Any person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.

THE APPLICATION FOR REFUGEE STATUS

The applicant's application for refugee status was dated 30 November 1990 but not lodged until 15 January 1991. The application (on a printed form supplied by DILGEA) is a long document containing many details of the applicant's past life. By virtue of regulation 22D(1) the lodging of the application for refugee status had effect as an application for a DPTEP. Paragraph 79 of the application is headed in these terms:

Having read the United Nations Convention Definition of a Refugee, please provide a comprehensive statement of your reasons for your claim for refugee status in Australia. Your statement may be written in any way you wish and may be of such length as you consider necessary. It should, however, address the following points: . what were the reasons for which you left your home country . why do you consider you cannot return to it . what do you think would happen to you personally if you were to return

. what would happen to your family members if you were to return

. do you have any documentary evidence to support your claim for refugee status (if Yes, attach documents).

The applicant's statement, which immediately follows the above, is handwritten and is as follows:

AFTER MY ARREST BY THE FEDERAL POLICE, I OFFERED MYSELF TO HELP THEM IN WHATEVER NECESARY (sic) I SERVED AS A WITNESS AGAINST MY COACUSSED (sic) CARLOS DIAZ AND WILL BE A PRIME WITNESS AGAINST JHON (sic) THOMPSON IN N.S.W. NEXT YEAR PLUS ANY OTHER HELP I HAD BEEN REQUIRED TO, I HAD DONE IT. BECAUSE OF THIS C. DIAZ RECEIVED A SENTENCE OF 14 YEARS WITH 11 YEARS MIN. AND J. THOMPSON WILL BE SENTENCE ACCORDINGLY IF FOUND GUILTY. THIS HAS PUT ME IN A POSITION IN BOLIVIA

(SPECIALLY) WITH C. DIAZ FAMILY WHO AS THE FED. POL. KWON

(sic) THEY ARE VERY INFLUENTIAL IN BOLIVIA AS HIS HALF BROTHER IS A MAJOR IN THE DRUG POLICE AND KNOW TO WORK WITH TRAFFICANTS, ALSO CARLO'S UNCLE IS A CHIEF OF THE DREADED POLITICAL POLICE. CARLOS MOTHER IS THE PERSON WHO PULLS THE STRINGS IN COCAINE DEALINGS JUST A IT (sic) WAS HER HUSBAND. I WOULD BE KILLED IF I RETURN TO BOLIVIA, AS MY FAMILY WOULD ALSO BE IN THE SAME DANGER IS THAT I REQUEST THIS STATUS OF REFUGEE AFTER MY REALEASE (sic) FROM JAIL. ATTACHED IS A COPY OF JUDGE NEESHAM'S SENTENCING COMMENTS TO SUPPORT THIS CLAIM. (PAGES 89 TO 93)

I do not reproduce the whole of the sentencing comments of Judge Neesham as I feel that the following extract sufficiently conveys the general tenor of the judge's comments. After canvassing the facts of the case and referring to the assistance the applicant had given in relation to inquiries in respect of other persons, at whose trials it was intended he should give evidence, the judge said:

Police inquiries suggest those allegations appear to be true and it is for that reason that the Crown confirmed that your statement was regarded by it as significant. The Crown also acknowledged that by giving the information that you have, you have placed yourself in very real danger of death in consequence of your disclosures. Particular is this so if, at the end of your prison sentence, you are deported whence you came. The Crown also points out that you must be protected from harm while you are in Australia and for that reason you have been confined in circumstances of maximum security, where you will continue to be confined.

The various subsequent submissions made by the applicant and by his solicitors on his behalf do not add to the substance of the applicant's original statement. At the hearing of this application, counsel for the applicant submitted that in the facts of the case the applicant was a member of "a particular social group" being the group of persons who have not only provided extensive co-operation and assistance to the police but have also put that into effect by stepping into the witness box on a number of occasions (Ts. pp 226-7).
A document entitled "Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees" issued by the Office of the United Nations High Commissioner for Refugees in January 1988 (the Handbook), under the general heading "Interpretation of Terms" and under the subheading "Membership of a Particular Social Group" says at paragraphs 77-79 (inclusive):

77. A "particular social group" normally comprises persons of similar background, habits or social status. A claim to fear of persecution under this heading may frequently overlap with a claim to fear of persecution on other grounds, i.e. race, religion or nationality.

78. Membership of such a particular social group may be at the root of persecution because there is no confidence in the group's loyalty to the Government or because the political outlook, antecedents or economic activity of its members, or the very existence of the social group as such, is held to be an obstacle to the Government's policies.

79. Mere membership of a particular social group will not normally be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground to fear persecution.

In written reasons given by Dear for his decision of 8 October 1991 reference is made to a decision of the U.S. Court of Appeals in the case of Sanchez and Escobar which was given on 15 October 1986 and reported at 801 Federal Reporter 2d Series, 1571. The quotation appearing in the decision maker's reasons is a compilation of several passages from the judgment of the Appeals Court, and may be misleading in the form it appears in the reasons. I propose therefore to set out in full the section of the judgment dealing with "Cognizability as a Particular Social Group" (from pp 1575-1577). Only footnotes and a number of case references have been omitted:

The threshold question is whether the petitioners' class of young, urban, working class males constitutes that type of "particular social group," membership in which should be regarded as indicative of refugee status under the applicable immigration statutes.

The term "particular social group," originated in the United Nations Protocol Relating to the Status of Refugees, done January 31, 1967, ... . The United States ratified the Protocol on October 4, 1968. ... With the enactment of the Refugee Act of 1980, Congress added to the immigration laws a definition of "refugee" - which includes fear of persecution on account of membership in a "particular social group" - that conforms with the definition provided in the Protocol. ...

Since the statutory definition of "refugee" derives from an international Protocol, and because the legislative history is generally uninformative on this point, we have often looked to sources of international law for guidance in applying the asylum and prohibition of deportation provisions of the Refugee Act. In particular, we have acknowledged the Handbook on Procedures and Criteria for Determining Refugee Status, promulgated by the United Nations High Commissioner for Refugees, as a "significant source of guidance with respect to the United Nations Protocol." ...

Unfortunately, the Handbook provides little assistance in arriving at a workable definition of "particular social group." The Handbook does not define this term other than to say that a "particular social group" "normally comprises persons of similar background, habits or social status." Subparagraph 77. The Handbook does caution that "mere membership in a particular social group will not normally be enough to substantiate a claim to refugee status," absent the existence of "special circumstances." Subparagraph 79. What constitutes those "special circumstances" upon which mere membership would be a sufficient ground to fear persecution is not explained.

Consequently, our interpretation of the phrase "particular social group" must be informed primarily through a careful evaluation of the statutory language, and a practical appreciation of the reasonably limited scope of the term "refugee" as reflected in our previous decisions. We may agree that the "social group" category is a flexible one which extends broadly to encompass many groups who do not otherwise fall within the other categories of race, nationality, religion, or political opinion. Still, the scope of the term cannot be without some outer limit. The statutory words "particular" and "social" which modify "group," ..., indicate that the term does not encompass every broadly defined segment of a population, even if a certain demographic division does have some statistical relevance. Instead, the phrase "particular social group" implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest. Of central concern is the existence of a voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental to their identity as a member of that discrete social group. Perhaps a prototypical example of a "particular social group" would consist of the immediate members of a certain family, the family being a focus of fundamental affiliational concerns and common interests for most people. In Hernandez-Ortiz, 777 F.2d at 516, we regarded evidence of persecution directed against a family unit as relevant in determining refugee status, noting that a family was "a small, readily identifiable group." As a contrasting example, a statistical group of males taller than six feet would not constitute a "particular social group" under any reasonable construction of the statutory term, even if individuals with such characteristics could be shown to be at greater risk of persecution than the general population. Likewise, the class of young, working class, urban males of military age does not exemplify the type of "social group" for which the immigration laws provide protection from persecution. Individuals falling within the parameters of this sweeping demographic division naturally manifest a plethora of different lifestyles, varying interests, diverse cultures, and contrary political leanings. As the I.J. said in his written decision, "This (class of young, working class, urban males) may be so broad and encompass so many variables that to recognize any person who might conceivably establish that he was a member of this class is entitled to asylum or withholding of deportation would render the definition of 'refugee' meaningless."

In sum, such an all-encompassing grouping as the petitioners identify simply is not that type of cohesive, homogeneous group to which we believe the term "particular social group" was intended to apply. Major segments of the population of an embattled nation, even though undoubtedly at some risk from general political violence, will rarely, if ever, constitute a distinct "social group" for the purposes of establishing refugee status. To hold otherwise would be tantamount to extending refugee status to every alien displaced by general conditions of unrest or violence in his or her home country. Refugee status simply does not extend as far as the petitioners would contend.

It is obvious, in view of the date of the decision, that references to the Handbook are to an earlier edition to that quoted from above although the text of the relevant paragraphs appears to be the same.
With respect, although the facts are quite dissimilar from the present case, the cogency of the reasoning expressed in Sanchez and Escobar is persuasive authority for the view that the concept of "membership of a particular social group" involves the idea of a group of people who can demonstrate "cohesiveness and homogeneity". It is probably not helpful to look to dictionary meanings of the qualifying words "particular" and "social". The combination of those words is sufficiently meaningful to indicate that what is meant is a group of people who can be readily identified by reason of some shared social characteristic. Obviously, the size of a group may vary from case to case, but it can never be less than two persons.
In Chan v Minister for Immigration and Ethnic Affairs 169 CLR 379 four of the five judges who constituted the Court (Mason C.J., Dawson, Toohey and McHugh JJ.) were of the opinion that an applicant for refugee status would satisfy the Convention definition if he showed a genuine fear founded on a real chance that he would be persecuted for one of the stipulated reasons if he returned to the country of his nationality. Although Chan involved a relevantly different factual situation each of the judges mentioned appears to have adopted the dictum of Lord Keith of Kinkel in Reg. v Home Secretary; ex parte Sivakumaran (1988) AC 958 at p 994:

In my opinion the requirement that an applicant's fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country.

It is beyond question that the fear of persecution which justifies a finding of refugee status must be a fear attributable to one or other of the characteristics nominated, in this case membership of a particular social group. A fear of persecution per se, however well founded, is not sufficient.
In these reasons I refrain from canvassing or commenting upon other overseas decisions and the various learned articles to which reference has been made during argument. I recognise that most of the works concerned have been referred to in the judgments of the members of the High Court, but I am unaware of any judicial imprimatur having been given by an Australian Court to any views expressed upon the construction of the term membership of a particular social group. For my own part, I do not find this to be a particularly difficult term to construe, particularly in the context of the facts of the present proceedings.
THE DECISION TO REFUSE REFUGEE STATUS
The applicant's application for refugee status was initially refused on 24 April 1991 and on 8 October 1991 the review officer (Christopher Dear) affirmed that decision. Dear's reasons for refusing refugee status were put in writing and a copy supplied to the applicant on 9 October 1991.
The decision of the RSRC of 28 August 1991 recommending that the applicant not be recognised as a refugee was the result of a 3-1 majority vote; the representative of the Attorney-General's Department dissenting. In his reasons for decision Dear first referred to the relevant definition in the Convention and the Protocol and then continued:

2 While recognising that the Applicant's life could be in danger in Bolivia as a result of his co-operation with the Australian Federal Police, I accepted the majority view of the Committee that his giving of evidence against his co-offenders and his involvement in drug trafficking did not come within the Convention criteria for granting refugee status. In this regard I noted that the Applicant himself had stated on a number of occasions that he could not sustain a claim to refugee status.

3 I noted the issue which was considered by the Committee that the Applicant was a member of a particular social group - police informants - and that his claims were therefore Convention-related. I accepted the majority view of the Committee that police informants do not constitute a social group for the purposes of the Convention as they lack the essential cohesiveness, homogeneity and voluntary associational relationship of a social group. In reaching this conclusion I had regard to the US Court of Appeals in Sanchez and Escobar 1986 which states inter alia:

"the scope of the term cannot be without some outer limit. A group must show a certain cohesiveness and homogeneity, rather than a plethora of different lifestyles, varying interests, diverse cultures and contrary political leanings." Furthermore, "of central concern is the existence of a voluntary, associational relationship ...which imparts some common characteristic that is fundamental to identity as a member of that discrete social group."

I was not persuaded by the minority view of the representative of the Attorney-General's Department

(A-G's) that once a person becomes a police informant, this becomes an immutable characteristic which has consequences which are similar for all members of that group. I concluded that the Applicant's claims were not Convention-related.

4 I noted the view of the Committee that persecution must originate, for a Convention-related reason, from the government or at least be implicitly tolerated by the government. While the Applicant may have a subjective fear of retribution from the family of the person he helped convict, I concurred with the majority Committee view that it is not enough that the system of law and order is inadequate to protect anyone from criminals, or police informants from revenge by other criminals. No government can realistically give such a guarantee. While I accepted the view of A-G's that if the authorities proved unable to offer effective protection to the Applicant, then any persons who may persecute the Applicant could be considered "agents of persecution", I considered that such persecution must be for a Convention-related reason. As noted above, I did not consider that the Applicant's claims were Convention-related. I therefore concluded that the "agents of persecution" argument was not relevant in this case. (There is no paragraph numbered 5)

6 After careful consideration of all the available evidence, I conclude that the Applicant has not presented claims which are Convention-related as he is not a member of a social group for the purposes of the Convention and the agents of persecution argument lacks force. Accordingly, I determine that the Applicant is not a refugee within the meaning of the Convention and Protocol.

I do not understand it to be said on behalf of the applicant that Dear erred in his conclusion that persecution feared by the applicant must be for a Convention-related reason in order to come within the definition of refugee. Such a conclusion is consistent with judicial authority and is demanded by the words "by reason of ...membership of a particular social group".

Some criticism was addressed during argument to the references in paragraphs 4 and 6 of the reasons to the "agents of persecution" argument but on any reading of the reasons, it is clear that the basis, and sole basis, for Dear's decision was that in his opinion the applicant's fears of persecution (which he does not seek to challenge) did not arise by reason of his membership of a particular social group within the meaning of those words as used in the Convention.
If Dear's construction of the Convention definition is shown to be erroneous then his conclusion cannot stand. I do not understand the reasons to amount to a definitive expression of opinion as to the application of the agents of persecution argument nor as to its application in the facts of the case.
It is important to understand exactly what is said on the applicant's behalf in support of his claim to refugee status.
Although Dear in his reasons has treated the application to involve a claim to membership of a particular social group, namely police informants, the applicant's counsel has sought to identify the group more narrowly, namely as the group of persons who not only have provided information to the police but have also been prepared to give evidence, and have given evidence, in support of the police. I do not think that it makes any difference that Dear has considered the class of people in question as police informers in general rather than the more confined group nominated by the applicant's counsel. The fact is that the applicant's fear of persecution is based on a much more confined basis than has been argued, namely, that he has given information and evidence that has led to the conviction, and imprisonment, of a member of the Diaz family. From the very outset in his application for refugee status, and throughout the many submissions made on his behalf, it is the involvement of the Diaz family connections in Bolivia that is said to give rise to the applicant's fear of persecution.
The ordinary meaning of the words "membership of a particular social group" is in my opinion incapable of encompassing the claim made by the applicant. There is no suggestion that he is other than an individual who has informed on a member of a particular family. There is no suggestion that he is a member of a group of such people, social or otherwise, who share similar characteristics. In my opinion the application for refugee status was doomed to failure from the very outset, and it follows that the decision to refuse the application cannot be challenged.
THE DECISION TO REFUSE DPTEP
The ground upon which Dear, on 21 October 1991, refused to grant the applicant a DPTEP was that he (the applicant) had not established the necessary criterion under regulation 117A(1)(b) namely that he be a person who has been determined by the Minister to have refugee status. In order to succeed, the challenge to the decision to refuse the applicant a DPTEP requires the challenge to the refusal to grant refugee status to have succeeded, but in the circumstances, it must suffer the same fate as the latter.
THE MINISTER'S REFUSAL TO EXERCISE POWER UNDER S.115(5)
The rather convoluted provisions of the Act relating to internal review appear to have an odd result.
In a case in which there has been a refusal to grant an application for refugee status, (whether the refusal be by the decision of the Minister in person or of his delegate), the Minister, if acting personally, would be unable, in exercise of his power under regulation 117A to grant the applicant a DPTEP, and such a decision would not be open to review, but, if the application for DPTEP is dealt with by a delegate and the delegate's decision has been the subject of review pursuant to regulations made under section 115, then it appears that the Minister, acting under subsection 115(5), would nevertheless be able to grant a DPTEP.
This is, in my opinion, the result achieved by subsection 4(28) which, although not drafted as concisely as it could have been, seems to have no real application (in the present context) unless it is to remove the constraint imposed by subsection 34(4) in cases to which subsection 115(5) applies.
Despite the multiplicity of grounds pleaded in the application, the applicant's real complaint is that the Minister simply declined to give any consideration to the exercise of his powers under subsection 115(5). It is said for the applicant that subsection 115(5) should be construed as if it involves two stages, namely, a first stage at which the Minister is required to address the issue of public interest, and a second stage (which of course would only apply if the Minister thinks that it is in the public interest to do so) at which the Minister's discretionary powers may be exercised. And it is said that subsection 115(10), applies only to the second stage. Thus it is argued, the Minister has a duty in each case which comes to him under subsection 115(5) to at least address the initial issue of public interest.
In the course of argument a number of propositions were put which relied upon a redrafting of the subsection. With respect, I reject the proposition that for the purpose of making easy the construction of a difficult section the Court can reword it in a manner calculated to achieve a predetermined result. This is in effect what counsel has argued for.
It is a mistake to take one subsection out of its legislative context. The true meaning can only be found by reading the whole of the context in which the subsection appears and when this is done the fallacy of the arguments advanced on behalf of the applicant becomes apparent.
Section 115 not only sets up the basis for a scheme of internal review of Ministerial decisions, but it also, via subsection 115(5) (and also subsection 115(6)) provides a basis for the Minister to do something which he could not otherwise do. Effectively, in the case of an application for a DPTEP he can grant an application even though the applicant does not satisfy the criteria contained in regulation 117A. This is an extraordinary power, which can only be exercised in a case which has first been considered by a delegate, and then by a review officer, but it will only be exercised if the Minister thinks it is in the public interest to do so. The special nature of this power is emphasised by the provisions of subsection 115(7) which provides as follows:

(7) Where the Minister sets aside a decision under subsection (5) or (6), he or she must cause to be laid before each House of the Parliament a statement that:

(a) sets out the decision set aside; and

(b) ...

(c) sets out the decision substituted by the Minister; and

(d) sets out the reasons for the Minister's decision, referring in particular to the Minister's reason for thinking that his or her actions are in the public interest.

In my opinion subsection 115(5) deals with the situation where the Minister considers it is in the public interest to make a decision different from the decision of a review officer. It is not possible for the public interest to be considered in a vacuum. It must be considered in the context of the decision which it is proposed will be substituted for the decision of the review officer. The requirement that the Minister's reasoning and actions be disclosed to Parliament supports the view that the subsection gives him special authority which he would not ordinarily be empowered to exercise. The construction advocated for the applicant would involve the Minister first considering whether it was in the public interest to substitute some other decision and then, if he thought it to be in that interest, to decide whether or not to exercise his power in that respect. This in my view makes nonsense of the scheme of the section and in particular of subsection (10).
In the instant case a minute from an Assistant Secretary was put before the Minister inviting him to consider whether it would be in the public interest for him to set aside the decision of the review officer and substitute another decision in respect of the rejection of the applicant's application for a DPTEP. The Minister's response was expressed in a minute to the department:

I have not considered these cases. I understand from staff in my office that the departmental decision maker has rejected their refugee claims. I do not wish to exercise my Section 115 powers in either case.

It is obvious that irrespective of the merits of the case, the Minister regarded the refusal of refugee status as of paramount importance. Although the minute suggests that the Minister had not given any consideration to the case, it seems that he did at least address the fact that refugee status had been refused and it would seem that on that basis he declined further consideration. This would appear to be the very type of situation contemplated by subsection 115(10). On the argument advanced for the applicant, which I reject, the Minister should have first considered the whole matter to determine whether it would be in the public interest to make some other decision, and only then would he be relieved by subsection (10) of the duty to further consider the question of whether the exercise his powers.
The Minister's objection to the competency of the Court to review the decision or conduct of the Minister to decline to consider the exercise of his powers under subsection 115(5) is well-founded. The Minister did not make any decision or engage in any conduct for the purpose of making a decision to which the ADJR Act applies.
THE DEPORTATION ORDER
The only live issue concerning the attack on the deportation order has to do with whether the conditions precedent to the exercise of the power were duly satisfied. It is common cause that if any of the other decisions under review are set aside then the basis for the deportation order would disappear. However, in view of the conclusions I have reached on those other issues it is appropriate to approach the challenge to the deportation order on the basis that at the time it was made the applicant was an illegal entrant who had been refused both refugee status and a DPTEP.
The provisions of subsection 60(1) empowering the Minister to order the deportation of illegal entrants and of regulation 179 prescribing the matters to be considered by the Minister in relation to such a person are detailed above. The particular issue that has arisen is a question as to whether, in accordance with regulation 179(b) the applicant was "notified in accordance with (the) Regulations of the Minister's intention to exercise the power ... to order the deportation of the (applicant)".
On 19 November 1991 at a time when the applicant was held in custody at the Immigration Detention Centre at Maribyrnong, he was given, by an officer of DILGEA, a document headed "Notice of Intention to Exercise Powers under the Migration Act 1958", the relevant portions of which were as follows:

To: Mr Gustavo Carlos Saavedra,

c/- Immigration Detention Centre, Maribyrnong, Victoria

You are advised that it is intended to refer to the Minister of Immigration, Local Government and Ethnic Affairs the question of the exercise of his power to order your deportation from Australia. In practical terms this means that an officer of the Department is preparing a submission for the Minister's delegate in Victoria recommending your deportation.

The Minister's delegate who made the order for deportation on 21 November 1991 (Deborah Joy Bates) in her statement of reasons filed pursuant to section 13 of the ADJR Act noted in her findings on material questions of fact:

5. On 19 November 1991, a Notice of Intention to Deport was given to the applicant. I noted that a Departmental officer indicated on the notice that the applicant had answered the questions set out in the notice but had refused to sign it.

And in her reasons said:

8. In respect of sub-regulation 179(b) such notice had been made to the applicant on 19 November 1991.

Counsel for the applicant draws attention to the wording of regulation 179(b) and in particular to the words:
Notified in accordance with these Regulations.
It is said that the regulations do not make any provision for the notification of the Minister's intention to exercise his power to order deportation and that there has been (and it follows, can never be) due compliance with regulation 179(b). It is further submitted that regulation 179(b) relates to the form of the notification to be used where a potential deportee is to be informed of the Minister's intention which notification, it is said, is required to be in a form prescribed by the regulations.
There is in my opinion no justification for the argument that the words "notified in accordance with these Regulations" connote the use of a prescribed form. Indeed, the regulation does not on the face of it demand that the notification be in written form, although in the context of these regulations it is hardly likely that a verbal notification is contemplated. In the absence of any other specific regulation dealing with the requirements of regulation 179(b), the only meaning which can be attached to the word "notified" is "served with notice". The regulation making authority must be presumed to have intended that the regulations be construed in a manner that would give effect to the general intention of the Act, and to adopt the applicant's argument would mean that the deportation procedures could never be implemented.
Regulation 169 which deals with the service of document provided in part, as follows:

169. (1) Where:

(a) a document is to be given to, or served on, a person by the Minister, the Secretary or an officer of the Department under or for the purposes of the Act or these Regulations; and

(b) no other provision as to the manner of giving or serving the document is made by the Act or these Regulations;

the document may be given to or served on the person:

(c) in the case of a person who, in the reasonable belief of the Minister, the Secretary or an officer of the Department, is an illegal entrant:

(i) by giving the document to the person personally or to another person authorised by the first-mentioned person to receive such documents; or

(ii) by posting it to the person at the address of his or her last known place of residence; or

(iii) by publishing it:

(A) if the last known place of residence of the person or of his or her disembarkation on arrival in Australia is known - in a metropolitan newspaper circulating in the relevant State or Territory; or

(B) if those particulars are not known - in any newspaper having a national circulation; or

(d) in any other case:

(i) by giving it to the person personally or to a person duly authorised to receive documents on behalf of the first-mentioned person; or

(ii) by posting it to the person at his or her last known place of residence.

The obvious intention of regulation 179(b) is to give a potential deportee warning of action that is being contemplated by the Minister. The most effective manner of doing so is to commit to writing a statement of what is intended and to give it to the person involved. But for the words "in accordance with these Regulations" regulation 179(b) would probably have to be construed as requiring that the notification be given to the potential deportee personally, but as it is, the regulations make provision for alternative means for the service of documents, and it would be sufficient compliance with regulation 179(b) for the person to be notified of the Minister's intention by any one of the relevant alternative means of service contemplated by regulation 169(1).
In my opinion, the formalities prerequisite to the making of the order for the deportation of the applicant were duly observed.
CONCLUSION
For the reasons set out above, the application will be dismissed with costs. The interlocutory order staying execution of the deportation order first made on 13 December 1991 and later extended until the resolution of this application will be discharged.

[1992] FCA 70

02 MARCH 1992