Osman-Lloyd, P. v Minister for Immigration & Ethnic Affairs
[1987] FCA 287
•05 JUNE 1987
Re: PETER CHARLES OSMAN-LLOYD; SHANMUGARAJAH SENATHIRAJAH; MATHIRUPAN
THANENDRAN and ARULIPRAGASAM ANTHONIPILLAI
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. WAG 35 of 1987
Immigration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
French J.
CATCHWORDS
Immigration - Sri Lankan nationals - visitors visas - false reasons for visit to Australia - visas cancelled - applicants held in custody - applications for refugee status - applications for temporary entry permits - refusal to grant temporary entry permits - failure to take account of relevant considerations - hardship if forcibly returned to Sri Lanka - policy instruction applicable to Sri Lankans - irrational limitation - respondent reconsideration directed.
Migration Act 1958 ss. 5, 6, 6A, 11, 18, 35, 36A
Administrative Decisions (Judicial Review) Act 1977
Bannister v. See (1982) 63 FLR 74
Schubert v. Minister for Immigration and Ethnic Affairs (unrep. French J. 29 May 1987)
Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321
HEARING
PERTH
#DATE 5:6:1987
Counsel for the Applicants: Mr H. Christie instructed by Legal Aid Commission
Counsel for the Respondent: C. Francas instructed by Australian Government Solicitor
ORDER
The application is dismissed in relation to the decisions referred to in paragraphs 1 and 3 thereof.
The claim by the respondent's delegate made on 3 April 1987 to refuse the grant of a temporary entry permit to the applicant be quashed.
The matter of the grant of a temporary entry permit to the applicant be referred to the respondent for further consideration according to law.
The respondent is to pay the applicant's costs of the application to be taxed together with the costs of the other applicants as one set of costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
On 25 March 1987 four Sri Lankan nationals of Tamil origin flew to Perth from Colombo aboard Malaysian Airline System flight MH23. Each carried a visitors visa issued to him in Colombo under s.11A of the Migration Act 1958.
The possession of a visa or relevant return endorsement is a necessary condition which must be satisfied before a carrier can bring a person not being an Australian citizen, into Australia (see s.11C). It does not however entitle its bearer to enter Australia. For that, an entry permit is required.
Upon their arrival in the early hours of the morning the applicants were each interviewed by an immigration inspector then on duty at the airport.
At 3.30 am he telephoned Mr Graham Broom, the assistant director, Citizenship and Control Branch with the Perth Regional Office of the Department of Immigration and Ethnic Affairs. He advised Mr Broom that in his opinion the applicants did not intend meeting the obligations of their visitors visas.
Mr Broom directed the inspector that the applicants were not to be permitted to enter Australia. The inspector conveyed that decision to the applicants and cancelled their visitors visas under s.11B of the Migration Act.
Pursuant to the provisions of the Act he then issued a notice to the manager of MAS at Perth Airport in respect of each applicant requiring that the airline remove him from Australia within 72 hours of the time of service of the notice.
Each of the applicants was taken into custody pursuant to s.36A(3) pending his removal from Australia.
A solicitor with the Legal Aid Commission of Western Australia was in the meantime informed of these events and went to the airport to speak with the applicants. They told him they had come to Australia from Sri Lanka to escape persecution which they alleged they were suffering in that country and that they wished to claim refugee status. Applications for refugee status were completed and handed by the solicitor to an officer of the Department of Immigration and Ethnic Affairs.
The time limited for Malaysian Airline Systems to remove the applicants from Australia was extended to 1 April 1987 to enable the D.O.R.S.Committee to complete its deliberations.
Statements were taken from each of the applicants and forwarded to the Committee to assist it in its deliberations. On 1 April the Committee recommended against the grant of refugee status in each case. The respondent's delegate immediately accepted those recommendations.
On the same day the Director of the Legal Aid Commission of Western Australia sent by facsimile a letter to the respondent in the following terms:-
"I act for the abovenamed and I have been informed today that their applications for refugee status have been considered and refused.
Kindly accept this letter as an appeal from that decision.
I am obtaining further information in support of their applications for refugee status and in particular in clarification of the statements contained in the D.O.R.S. interviews and I hope to be able to provide such further evidence and submissions in support within 14 days or within such further time as you allow."
He also wrote to the officer in charge of the Entry Branch of the Department of Immigration and Ethnic Affairs in Perth in the following terms:-
"I act for the abovenamed who, as Sri Lankan nationals of Tamil ethnic origin, seek entry into Australia in order to claim the status of refugees because of their fear of persecution and of danger to their lives in Sri Lanka.
Although I have been informed that their initial claim for refugee status has been refused by the D.O.R.S. Committee an appeal has been lodged from that decision as per the enclosed letter and accordingly application is made on their behalf for entry permits into Australia in order that they may be landed in Australia and that their appeal from the original D.O.R.S. Committee decision can be properly heard."
On 1 April 1987 each of the applicants had lodged applications for review under the Administrative Decisions (Judicial Review) Act 1977 which applications embodied claims for interlocutory relief.
After a short term holding order preventing their removal from Australia before 3 April 1987, I made the following interlocutory orders on that day in respect of each applicant:-
1. The respondent by his agents, servants and officers be and is hereby restrained until the determination of the application or until further order from delivering up the applicant to Malaysian Airline Systems for removal from Australia.
2. The respondent by his agents, servants or officers be and is hereby restrained until the determination of this application or until further order from removing or taking any steps to remove the applicant from Australia.
On the same day a letter was sent on behalf of the Regional Director of the Department of Immigration and Ethnic Affairs to the solicitor for the applicants in response to his letter of 2 April making application for entry permits.
The letter signed by Mr Broom said:-
"I refer to your letter of 2 April 1987 in which you make an application for entry permits to Australia for the abovementioned persons.
As you know, these four Sri Lankan nationals were refused entry at Perth International Airport on 25 March
1987. They have not landed in Australia and their visas for travel to Australia have been cancelled.
The question of the issue of any entry permit was fully considered on 25 March 1987 and a decision made to refuse their entry. That decision is currently under review in the Federal Court, therefore the department does not intend to reconsider that decision or reopen the matter."
The Decisions in Issue
The substantive applications came on for hearing together on 1 May 1987.
By that time the applications as originally filed had been amended so that the decisions for which each applicant sought review were as follows:-
"1. The decision of the Minister for Immigration and Ethnic Affairs that the Applicant be refused an Entry Permit on his arrival in Australia pursuant to Section 6 of the Migration Act.
2. The decision of the Minister for Immigration and Ethnic Affairs that the Applicant be refused an Entry Permit pursuant to Section 6 of the Act following the Applicant's arrival in Australia and after the Applicant had made application for acceptance as having the status of refugee.
3. The decision of the Minister for Immigration and Ethnic Affairs that the Applicant be prevented from entering Australia pursuant to Section 35 of the Act.
4. The further decision of the Minister for Immigration and Ethnic Affairs that the Applicant be prevented from entering Australia pursuant to Section 35 of the Act after the Applicant had made application for refugee status.
5. The decision of the Minister for Immigration and Ethnic Affairs that Malaysian Airline Systems be required to remove the Applicant from Australia pursuant to Section 36A of the Act.
6. The further decision of the Minister for Immigration and Ethnic Affairs made after the Applicant had made application for refugee status that Malaysian Airline Systems be required to remove the Applicant from Australia pursuant to Section 36A of the Act."
The applications in each case further sought review in respect of:-
"...the failure by the Respondent to make a decision following the Applicant's request made on 2 April 1987 for a temporary Entry Permit to enable the Applicant to be landed in Australia so that his appeal from the original decision refusing him refugee status can be properly heard."
This "failure" was originally intended to refer to the absence as at 3 April 1987, the date of the amended application, of any response to the request of 2 April 1987 for the issue of entry permits.
In the event, as already noted, a refusal to consider that further application pending the outcome of this review was conveyed by letter dated 3 April 1987 and signed by Broom.
Of the decisions set out in the amended application counsel for the applicants informed the Court that he pursued review of the following:-
(i) Decisions 1 and 3 said to reflect the composite decision made on 25 March 1987 to refuse an entry permit to each applicant and to prevent him from entering Australia pursuant to section 35.
(ii) Decisions 2 and 4 said to reflect the decision made on 3 April 1987 by Broom and conveyed in his letter of 3 April.
The applicants, he said, saw decision number 5 as linked to decisions 1 and 2 and standing or falling with them.
As to decision number 6, review is not pursued.
The decisions numbered 2 and 4 were originally included in the amended application on the assumption that there would be a negative response to the letter of 2 April seeking the grant of entry permits.
The amended application incorporating reference to that anticipated decision was before me when the claim for interlocutory relief was heard on 2 April.
I dealt with the amended applications on the basis that there was no evidence that any decision of the kind described in paragraphs 2 and 4 had been made.
At the hearing of the substantive application however the respondent was content to proceed on the basis that the applicants were seeking review under paragraphs 2 and 4 of the decisions, if such they were, conveyed by the letter of 3 April from Mr Broom.
I note, although it was not referred to in argument, that in Park Oh Ho v. Minister for Immigration and Ethnic Affairs (unrep. 6 March 1987) Burchett J. held that an application for judicial review could not be amended to incorporate decisions which post dated the filing of the originating process.
In the situation where such an amendment was allowed without argument, his Honour held that Coutts & Co. v. Duntron Investment Corporation Ltd. (1958) 1 All ER 51 is authority for the proposition that the judgment may be regarded as proceeding on the footing that a fresh application must have been taken to have been made, though informally.
Having regard to the fact that in the present case both parties have been content to proceed on the application as amended, I will deal with it on that basis. Whether or not the case is to be regarded as proceeding on the footing that a fresh application is taken to have been made is immaterial to its outcome.
It was not conceded by the respondent that the letter of 3 April conveyed any decision capable of review under the provisions of the Judicial Review Act.
The refusal to "reconsider" the decisions taken on 25 March to refuse the grant of entry permits or otherwise to "re- open the matter", as Mr Broom had expressed it in his letter, was said not to amount to a refusal to grant entry permits.
The letter conveyed nothing more, it was submitted, than a refusal to review those earlier decisions.
Counsel for the respondent referred to Bannister v. See (1982) 63 FLR 74, a decision of Toohey J.
The decision turned in part on the construction of s.31 of the Repatriation Act 1920 which provided:-
"Whenever it appears to the Commission that, under this Act, sufficient reason exists for reviewing any assessment, decision or determination in relation to pension....the Commission may review the assessment, decision or determination."
His Honour held at 79 that where, following a review under s.31, the Commission decided not to alter an earlier determination it was not thereby making "a decision refusing a claim" which would attract the appellate authority of the Repatriation Review Tribunal under s.107VC of the Act as it then stood. All that it had done was to leave the original decision unchanged.
The case went on appeal to the Full Court which allowed the appeal - Bannister v. See (1982) 45 ALR 146.
Woodward J., with whom Fox and Franki JJ. agreed, saw the determination of the matter as depending largely upon the meaning and effect of s.31(1) of the Repatriation Act.
He disagreed with the approach taken by Toohey J. and at 151 said:-
"A re-stated refusal to recognize a death as service-related is in my view, "a decision refusing a claim by a person for a pension" within the meaning of s.107VC."
His Honour went on to say, also at 151:-
"However, counsel for the respondents relied on an argument before us which was referred to by counsel for the applicant, but certainly not developed by counsel for the respondents, before Toohey J.
This was to the effect that there was no actual review pursuant to s.31 of the Act in this case. All that occurred, it is said, was a consideration of the possibility of a review and a decision not to conduct one. This, it was argued, fell well short of any decision to refuse a pension claim.
In my view there is force in this submission. If the Commission declines to embark on any review, because it is obvious on the face of the request or on simple enquiry that there are no adequate changed circumstances to constitute "sufficient reason" for a review, then I believe no appeal would lie to the Tribunal. The legality and good faith of any such decision could, of course, be tested under the Administration Decisions (Judicial Review) Act 1977. There will sometimes be a fine line between consideration whether or not to review and an actual review." (emphasis added)
The availability of judicial review for a decision by the Repatriation Commission declining to review a determination under s.31 may have rested in that case upon the rather narrow basis that the section expressly contemplated a refusal to review where there was no "sufficient reason".
It does not, however, in any measure support any contention that what was conveyed by Mr Broom's letter of 3 April was not a decision.
In my opinion that response must be viewed in the light of the request which it answered.
The request conveyed by the letter of 2 April from the Director of Legal Aid was not a request for reconsideration of an earlier decision. It was a substantive application for the grant of entry permits in the light of the disclosures made since 25 March that the applicants were seeking refugee status "because of their fear of persecution and of danger to their lives in Sri Lanka".
The reply was in effect, a refusal of that request. It was in substance a refusal to grant entry permits.
In any event the initial refusal to issue entry permits was not a once and for ever decision that rendered the decision maker functus officio.
If the characterisation of Mr Broom's "refusal to reconsider" as a refusal to grant permits be wrong, then it is, in the words of Woodward J., a fine line that divides them.
In my opinion, if the decision conveyed by the letter of 3 April was in truth a refusal to reconsider the initial decision, it was a refusal to do something which the decision maker was empowered to do under s.6 of the Migration Act 1958 albeit that section makes no express provision for "reconsideration" or "re-opening".
On that basis it was a decision of the kind contemplated in s.3(2)(g) of the Judicial Review Act which provides:-
"In this Act, a reference to the making of a decision includes a reference to -
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(g) doing or refusing to do any other act or thing,
and a reference to a failure to make a decision shall be construed accordingly."
That is not to say that every refusal to entertain an application calling for the exercise of a statutory discretion will constitute a decision reviewable under the Judicial Review Act.
It is neither necessary nor desirable for present purposes to travel beyond the particular statutory context of this case.
If there has been a misdescription, in the application, of the decisions of 3 April, then, given the fine line that divides the two characterisations, I would not dispose of the application on the basis that the applicants had chosen the wrong label.
The Grounds for Review
The grounds upon which the application is brought are as follows:-
"1. That the making of the decisions were an improper exercise of the power conferred by the Migration Act in that the Respondent or an officer of his Department failed to take relevant considerations into account in the exercise of the power namely -
(i) the agreement made by the Commonwealth of Australia at the request of the United Nations High Commission for Refugees not to require the return of Sri Lankan nationals of Tamil ethnic origin from Australia to Sri Lanka against their will save in exceptional circumstances and until the conditions in Sri Lanka so far as they apply to persons of Tamil ethnic origin improve;
(ii) the policy of the Respondent to permit Sri Lankan nationals of Tamil ethnic origin who have made claims for refugee status to remain in Australia on a temporary basis pending an improvement in the conditions in Sri Lanka save in exceptional circumstances;
(iii)that the effect of refusing the Applicant's entry into Australia will be to force his return to Sri Lanka where he faces the immediate prospect of imprisonment, detention without trial, death or other severe hardship;
(iv) that the Applicant has not been given the opportunity by reason of time to further present his application for refugee status to the authority recognised in Australia as determining such application namely the D.O.R.S. Committee and the Applicant has not been given the opportunity of appeal for the reconsideration of the decision to refuse him refugee status;
(v) the hardship already suffered by the Applicant prior to his arrival in Australia."
There was no evidence advanced in support of ground (i). The substantial argument in the case related to ground (ii), although grounds (iii) and (iv) were also relied upon.
Ground (v) canvasses material from which an inference of prospective hardship might be drawn and to that extent is subsumed by ground (iii).
Reasons for the Decisions to Refuse Entry
The immigration inspector whose information given to Mr Broom in the early hours of 25 March 1987 led to the direction to refuse entry to the applicants prepared a written report which described the events surrounding their arrival at Perth International Airport on that day.
The factual content of the report has not been challenged.
According to his report Osman-Lloyd and Anthonipillai told him they were travelling together but not with the other two applicants whom they claimed not to know.
Similarly Senanthirajah and Thanendran said they were travelling together and denied knowing Osman-Lloyd or Anthonipillai. Each pair approached different primary races. Passenger cards presented by all four gave T. Alagendren as their contact in Australia and each claimed that Alagendren was his uncle and would be at the airport to meet him. Alagendren was not there. The inspector rang a Victorian telephone number which was given by the applicants as his number. He was informed by a person who identified himself as Alagendren that he was expecting some friends from Sri Lanka but would not be meeting them in Perth. He suggested that the inspector tell them to catch a train to Melbourne.
Each applicant had an open return ticket with Malaysian Airline Systems for travel Perth/KL/Colombo and $US500 in travellers cheques. Each was asked if he wished to leave the confines of the airport and enter Australia and each replied in the affirmative.
The inspector formed the view that the applicants did not intend complying with the conditions of their visitor's visas. He subsequently contacted Mr Broom who, as already noted, directed that entry be refused.
In an affidavit filed in these proceedings Mr Broom annexed a statement of reasons for his decision in respect of each of the applicants in the form appropriate to a statement of reasons prepared pursuant to s.13 of the Judicial Review Act 1977.
He was satisfied as part of his findings on material questions of fact that each of the applicants was a citizen of Sri Lanka.
Each, he found, was the holder of a Sri Lankan passport and had been granted an Australian visitor visa at Colombo. In the case of Osman-Lloyd and Senathirajah, the visas were valid for one journey to arrive before 1 May 1987 for a stay of one month subject to the grant of an entry permit on arrival.
In the cases of Thanendran and Anthonipillai, the visas were expressed to be valid for one journey to arrive before 1 April 1987 for stays of one month and two months respectively.
The findings of fact dealt with the arrival of the applicants at Perth Airport, their interview with the duty immigration inspector, the substance of the matters contained in his report which have already been outlined, and his telephone call to Broom. None of those findings are challenged.
Reference was also made to information contained in the incoming passenger card completed by each applicant.
The intended stay stated in each case was 25 days and the reason for the visit said to be for the purpose of "visiting relatives".
The intended address in Australia in each case was shown as:-
"T. Alagendren 32 Victoria Road Hawthorn East Victoria 3123"
Broom was also informed by the duty immigration inspector that none of the applicants had made any claim for refugee status.
As appears from his reasons in each case, the evidentiary material relied upon by him was exclusively that conveyed to him in the telephone report by the inspector.
There is no suggestion that the inspector failed to put before him any matter relevant to their entry to Australia which had been conveyed to him by the applicants.
The reasons for the decision to refuse entry in each case were expressed by Broom as follows:-
"23. In considering whether the applicant should be granted entry to Australia or refused entry, I took into account the Minister for Immigration and Ethnic Affairs statement on Illegal Immigrants tabled in the House of Representatives in October 1985, the matters raised by applicant, in particular, whether there were any genuinely extenuating or compassionate circumstances involved, whether the applicant had acted in a situation of some emergency, acted in good faith, was attempting to evade immigration controls and whether the applicant genuinely intended to remain in Australia for a temporary period only to visit relatives.
24. On the basis of information provided by the Duty Immigration Inspector, I decided that the applicant's reason for entry to Australia to visit his uncle in Melbourne, a person who identified the applicant, when contacted, as a friend, did not constitute extenuating or compassionate circumstances.
25. I considered that there was no evidence provided by the applicant that he was seeking entry to Australia because of some emergency.
26. I was of the opinion that the applicant was not acting in good faith when he claimed to the Duty Immigration Inspector that he did not know the other two Sri Lankan passengers on Flight MH23 (who also gave the same contact address in Australia, 32 Victoria Road, Hawthorn East, Victoria) and when he claimed Mr T. Alagendren was an uncle.
27. I took into account the evidence the applicant provided of relatives to substantiate the basis on which the V12 visa was issued to him could not be confirmed and the evidence of funds to support the applicant's stay was not considered sufficient for the proposed travel and duration of stay in Australia."
The Applicants' Accounts
The background that emerged from the statements given by each of the applicants on 1 April 1987, and referred to the D.O.R.S. Committee, was as follows:-
(1) Osman-Lloyd was born on 23 March 1955. His parents, two brothers and two sisters still live in Sri Lanka. He was recently married and at the time of giving this statement his wife was expecting the birth of their child within the next 2 weeks.
He belonged to no political party, nor to any organisation which might be objected to by the Sri Lankan government.
He was educated to GC ordinary level. For a few years after leaving school he worked as a casual worker for an organisation known as the "Paddy Marketing Board".
In 1981 he left Sri Lanka for contract work as a receptionist in Iraq. He returned to Sri Lanka in 1983.
It was after his return that he began to experience difficulties with the army and the police.
Between 1984 and 1986 he was taken into custody on 4 occasions by the army. He was, he said, picked up with a number of other Tamils. There was nothing he had done to merit such attention. When in custody he was assaulted by his captors.
He was arrested by police in Colombo on 13 March 1987. He was among 53 people so arrested "for suspicion". He was held in custody for 3 days. He was assaulted, finger printed and subsequently released.
His own house and a house belonging to his aunt were burnt down in 1986 although the circumstances of those events were not elaborated.
Osman-Lloyd expressed a fear for his life if he were to be returned to Sri Lanka.
(2) Senathirajah was born on 1 August 1960. His parents still live in Sri Lanka and he has two brothers and a sister although their whereabouts were not disclosed.
He completed his secondary education in 1979 and obtained a Bachelor of Science degree in 1984 from the University of Peradenya in Kandy.
While at the University in May 1983 he was among a group of Tamils assaulted in communal riots by Sinhalese. Further rioting occurred in June and July at which time he went into hiding.
In 1984 he secured employment in the Republic of the Maldives where he worked for some 18 months.
On his way to the airport to leave for the Maldives he was arrested by police and held in custody for a week evidently on suspicion of being a member of the Tamil Tigers, an organisation of separatist Tamils said to be associated with terrorist activities in Sri Lanka.
Following his time in the Maldives he returned to Sri Lanka where he remained for a further 7 months. He stayed in Colombo and looked for work there but was unable to obtain employment.
During this time he was married. In December 1986 his wife secured admission on a student visa to the USA. He however was unable to obtain a visa to accompany her.
On 15 January 1987 he was travelling to Jaffna when he was stopped by members of the Sri Lankan Army, his baggage was checked and his passport confiscated. He had to apply for a new passport. He was accused of helping terrorists. He was assaulted but released after one day.
Between that incident and the time he departed Sri Lanka for Australia Senathirajah had no further difficulties in Sri Lanka.
(3) Thanendran, the youngest of the four, was born on 28 March 1970. His parents still live in Sri Lanka although they are separated. He has three older brothers and an older sister. One brother is living in Switzerland, another in Canada, while the third has been detained by Sri Lankan authorities at Poosa Military Camp since August 1985.
He said he had to leave Sri Lanka because "my older brother has been taken and they were searching for me". He said that the army was searching for him as it was believed he was one of the "Tiger boys". He said he had once been taken into custody by the army for 12 hours in December 1984. He was held for questioning and during that time was assaulted.
He was not a member of any party or organisation which might be against the government.
In 1986 his mother obtained a passport for him and urged him to leave the country and save his life.
She travelled with him to Colombo. It was she who raised money to pay for his airfare to Australia.
He expressed the fear that if he were to be returned to Sri Lanka they would take him from the airport to the "CID" where he would be interrogated and taken ultimately to the camp where his brother was detained.
(4) Anthonipillai was born on 19 June 1948. His parents, two brothers and three sisters, his wife and child all live in Sri Lanka. He was married in 1978. He has never lived outside Sri Lanka. The present visit is his first to Australia.
He was a fisherman but in August 1986 his boat was shot at and destroyed by elements of the Sri Lankan Navy. He has not worked since that time. He lived on such savings as he had and carried on a small business of selling vegetables around the fish shop. He never belonged to any political party or any other anti- government group.
He said people were unable to live in Sri Lanka because of attacks. Some relatives and other people were being taken, tortured and killed. He decided to leave Sri Lanka in 1986 but did not get his passport until 1987. He had no problem in obtaining the passport in Colombo. He obtained his visa from the office of the Australian High Commission, telling them that he had a brother in Australia and that he would be returning to Sri Lanka in 2 months. He said he came to Australia because he understood that Australia was prepared to give asylum on humanitarian grounds. If he were deported back to Sri Lanka he would be taken into custody by police and sent to the Poosa Camp and held in custody there. He wants to be able to stay in Australia and to find ways of helping his wife and child to come here.
Having reviewed the substance of the statements made available to the D.O.R.S. Committee by the applicants it is desirable now to turn to the statutory framework within which the decisions in question were made.
The Statutory Framework
Section 5 of the Migration Act defines "non citizen" as "a person who is not an Australian citizen". There is no dispute that each of the applicants falls into that category.
Section 6 of the Act regulates the entry of non citizens into Australia by imposing a requirement that each such person be the holder of an entry permit and empowering officers of the Department of Immigration and Ethnic Affairs to issue such permits which may be permanent or temporary. The section also provides that a non citizen who is not the holder of an entry permit that is in force and who enters Australia becomes a prohibited non citizen:-
"6(1) A non-citizen who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited non-citizen.
(2) An officer may, in accordance with this section and at the request or with the consent of a non citizen, grant to the non-citizen an entry permit.
(3) An entry permit shall be in a form approved by the Minister and shall be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both.
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(5) An entry permit may be granted to a non-citizen either upon his arrivial in Australia or, subject to section 6A, after he has entered Australia, (whether or not that entry took place before, or takes place after, the commencement of this Part).
(6) An entry permit that is in intended to operate as a temporary entry permit shall be expressed to authorise the person to whom it relates to remain in Australia for a specified period only, and such a permit may be granted subject to conditions."
Permanent entry permits may be granted to non citizens after entry into Australia by virtue of s.6A of the Act which provides in the material parts:-
"6A(1) An entry permit shall not be granted to a non citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -
(a) he has been granted, by instrument under the hand of a Minister, territorial asylum in Australia;
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(c) he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugee that was done at New York on 31 January 1967.
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(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him.
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(3) Subject to sub-section (2) an entry permit shall not be granted to a non citizen after his entry into Australia otherwise than by -
(a) the Minister; or
(b) an officer authorized by the Minister, by instrument in writing, to be an authorized officer for the purposes of this section.
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(8) In this section, a reference to an entry permit shall be read as a reference to an entry permit other than a temporary entry permit."
Visas are referred to in s.11 which makes it clear that they confer no right of entry:-
"11(1) A document or notation to which this section applies issued to a person on behalf of the Commonwealth shall not be deemed to be an entry permit and does not entitle that person to enter Australia or to be granted an entry permit.
(2) A document or notation to which this section applies is -
(a) a visa or return endorsement granted under this Act; or
(b) a visa or similar notation, or a form of provisional authority to enter Australia, issued before the commencement of this section, on behalf of the Commonwealth."
The issue of visas is authorised by s.11A:-
"11A(1) An authorised officer may, in accordance with this section -
(a) grant to a person, upon request by that person, a visa with respect to travel to Australia by that person and any person whose name is included in the visa -
(i) on a single occasion;
(ii) on occasions aggregating not more than a specified number of occasions; or
(iii)on any number of occasions, while the visa remains in force;
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(2) A visa or return endorsement -
(a) shall be in a form approved by the Minister;
(b) shall come into force on the day on which it is granted;
(c) shall be expressed to continue in force until the expiration of a date specified in it, or of a period specified or otherwise described in it; and
(d) shall, not withstanding that it is so expressed to continue in force, cease to be in force upon cancellation under section 11B."
There is a power to cancel visas conferred by s.11B:-
"11B The Minister or an authorized officer may, in his absolute discretion, cancel a visa or return endorsement at any time by writing under his hand."
Section 11C makes it an offence for the master, owner, agent or charterer of a vessel (including aircraft) to bring to Australia a person who is not a citizen and who is not in possession of a visa or return endorsement applicable to his travel to Australia on that occasion or who is otherwise exempted.
Thus the direct statutory effect of a visa is to authorise the carriage to Australia of the non-citizen to whom it applies.
The statutory significance of the visa generally was recently discussed in Schubert v. Minister for Immigration and Ethnic Affairs (unreported French J. 29 May 1987).
As noted above s.6 renders a non-citizen who enters Australia without an entry permit a prohibited non-citizen.
Such a person is liable to deportation under s.18 of the Act which provides:-
"18. The Minister may order the deportation of a person who is a prohibited non citizen under any provision of this Act."
Entry into Australia of persons who would upon entry become prohibited non-citizens may be prevented under s.35:-
"35(1) An officer may -
(a) prevent a person from entering Australia where that person would, if he so entered, be a prohibited non-citizen; or
(b) prevent a deportee from leaving a vessel on which he has been placed,
and may take such action and use such force as are necessary for that purpose.
(2) The master of a vessel may, in relation to persons on board the vessel do all things which an officer is, under subsection (1) authorized to do."
Of direct application in the present case is s.36A which provides for the apprehension of non-citizens arriving at proclaimed airports in Australia.
In the present case the relevant officer appears to have acted under the provisions of sub-s.36A(3) which provides:-
"36A(3) Where a person, not being a person exempted, by instrument under the hand of the Minister, from the requirements of Division 1A, who travels by aircraft from a place outside Australia to a proclaimed airport has sought and been refused an entry permit at that airport or at any other airport in Australia at which he has called in the course of that travel, he may, if an authorized officer so directs, be taken into custody at that first mentioned airport by an officer and kept in such custody, either at that first mentioned airport or elsewhere, as an authorized officer directs until such time as he is removed from Australia in accordance with subsection (4) or until such earlier time as an authorized officer directs."
Subsection (4) provides that where a person is taken into custody under sub-ss (1), (2) or (3) of s.36A an authorised officer may within 48 hours serve a notice in writing on the master, owner, agent or charterer of the aircraft on which that person travelled to Australia and thereby require the master, owner, agent or charterer to remove the person from Australia at no charge to the Commonwealth.
Subsection (5) creates the obligation on the recipient of the notice to comply with it within a period of 72 hours after service. Failure to comply attracts a penalty of $2,000.
Subsection (8) of the section provides:-
"36A(8) A person shall not, for the purposes of this Act, be deemed to have entered Australia by reason only of his having been taken from a proclaimed airport for the purpose of being kept in custody at a place outside a proclaimed airport in pursuance of subsection (1), (2) or (3)."
The section proceeds on the assumption that disembarkation from an aircraft at a proclaimed airport does not of itself constitute an entry into Australia.
The provision is plainly designed to facilitate the expeditious removal from Australian soil of persons who, if permitted to enter the country would become prohibited non- citizens - Faingold v. Zammit (1984) 1 FCR 87 at 93.
Having reviewed the statutory framework some reference must now be made to the relevant policy which governs the admission to Australia of Sri Lankan nationals.
The Policy Framework
A history of the development of recent ministerial policy affecting the entry of Sri Lankan nationals to Australia was outlined in an affidavit sworn by Dennis James Richardson, the Assistant Secretary of the Refugee and Humanitarian Branch of the Department of Immigration and Ethnic Affairs.
According to that history the Australian government reviewed concessional arrangements applicable to Sri Lankans residing temporarily in Australia in early 1986. The review stemmed from the government's concern about communal strife in Sri Lanka.
The Government had also received representations from groups and individuals within Australia on behalf of current and expired temporary entry permit holders who did not believe they could return safely to Sri Lanka. This included persons who had been refused a grant of refugee status.
On 30 April 1986 and following a ministerial examination of the question, the Department issued a Policy Instruction No. PC1330 entitled "Sri Lankan Case Management". This was in the form of guidelines directed to regional and area officers relating to the claims of Sri Lankans wishing to extend their stay in Australia. The policy instruction was in force on 25 March 1987 and continues in force. It is said by Mr Richardson to enable officers in Australia to consider sympathetically in respect of Sri Lankan nationals currently in Australia, requests for resident status on strong compassionate or humanitarian grounds under s.6A(1)(e) of the Migration Act as well as requests for further temporary entry permits.
The terms of the policy instruction as annexed to his affidavit are as follows:-
"SRI LANKAN CASE MANAGEMENT
The following policy guidance is provided in respect of Sri Lankan cases presenting at Regional and Area Offices in Australia. Amended guidelines are also being prepared for overseas posts; these will be forwarded to you for information when available.
2. The policy has been endorsed by the Minister and follows consultation between Entry Regulation, Temporary Entry and Instructions, and Refugees and Humanitarian Branches.
. The Minister has directed that the DORS Committee limit its recommendations, in respect of Sri Lankan cases, to the refugee status claim on the basis that DIEA will:-
- draw to the attention of all rejected applicants the provisions of S6A(1)(e) of the Migration Act 1958 and attendant review mechanisms
- DORS Secretariat will despatch replies to applicants and copy to Regional Offices - Section 6A(1)(e) change of status applications by Sri Lankans are to be handled within the regions; queries on particular aspects of any case may be directed to Refugees and Humanitarian Branch
- all applications for resident status from Sri Lankans to be treated sympathetically on a case by case basis
- approval would be dependent on applicants' having a demonstrable basis for their fear of return eg ethnicity or suffering as a result of communal violence. (Decision making might be assisted by general reference to overseas practice.) Further guidance will be forwarded to you shortly
- 6 months temporary entry permits would be appropriate
- permission to work may be granted depending on the individual circumstances.
. While the majority of Sri Lankan applicants are likely to be of Tamil ethnicity, other ethnic groups from Sri Lanka are not outside these arrangements.
. Normal processing fees apply.
. To avoid any legal problems it is necessary for any Sri Lankans wishing to continue temporary stay in Australia, and able to demonstrate a case to remain, to be in possession of a valid temporary entry permit. Failure to validate stay could have the effect of bringing the individual within the purview of the Minister's policy statement on illegal immigrants as tabled in Parliament on 17 October 1985.
. All existing deportation orders on Sri Lankan nationals are to be reviewed.
- Action in relation to Sri Lankan prohibited non citizens is to be decided by Regional Director against the Government's concern at the human rights situation in Sri Lanka. - It is envisaged that deportation would ensue in circumstances, such as, criminality or other activities incompatible with either Australian community standards or national security concerns.
3. Queries on particular issues may be directed to Enforcement Section or DORS Secretariat, Canberra, as appropriate."
Mr Richardson went on in his affidavit to say that the policy as endorsed by the then Minister "was intended to be limited in scope to those Sri Lankans who had been granted entry to Australia". There is no mention he said of the special circumstances of persons deemed not to have entered Australia and who are held in custody under s.36A.
Such persons it was said are not prohibited non-citizens under the Act. The policy does not and was not intended to provide concessions to persons who had not entered Australia or who had been refused entry to Australia.
Mr Richardson contended therefore that in view of its intended purposes and scope PC1330 was irrelevant in considering whether or not to grant entry to Australia to the four applicants.
Reference was made in passing to another Policy PC1379 which relates to "special humanitarian processing" of Sri Lankans with relatives in Australia. That policy would not seem to apply in the present case.
The Decisions of 25 March 1987
The decisions taken by Mr Broom on 25 March to refuse entry to the applicants, to cancel their visas and to direct MAS to remove them from Australia were taken on the basis of the information provided by the applicants themselves.
On the basis of that information and the enquiries made by the duty immigration inspector, it was plain that their claims that they came to Australia to visit relatives could not be sustained.
In his affidavit Mr Broom said that when he made his decisions on 25 March no applications for refugee status had been received. He went on:-
"The Department is not allowed to solicit refugee applications and I therefore could not assume that the four Applicants were refugees. As no claim for refugee status had been made I did not take into account instruction PC1330. It is my understanding that this instruction applies only after entry. It does not apply at the barrier as the person is treated as if he is still overseas."
It could be said that the general prohibition against "soliciting" refugee applications has the effect of imposing limitations on officers who might otherwise be able to ascertain by enquiry in appropriate cases that a person is in truth seeking refugee status in Australia.
But in the end the desirability of that prohibition is a matter of administration and not for curial determination.
Counsel for the applicants did not evidently consider that any real criticism could be made of the failure to consider the possible application of policy instruction PC1330.
Indeed it is difficult to ascertain from counsel's argument just what criticism he was making of the first decisions given the information that was then available to the decision maker.
The position is not advanced when reference is made to the stated grounds for review as set out in the amended application.
Counsel generally disclaimed reliance upon ground (i) and no evidence was adduced in relation to it.
Ground (ii) was plainly inapplicable to the decisions of 25 March as no claim for refugee status had been made or even foreshadowed by the applicants at that time.
Ground (iv) was also inapplicable for the same reason.
Grounds (iii) and (v) in my opinion had no application as at 25 March because no question of possible hardship flowing from the refusal to allow the applicants to enter Australia had been raised by them with any officer of the department.
While enquiry might be prudent in some circumstances I do not consider that there was in this case a duty to make enquiry as to possible hardship which might flow from the decisions. - Prasad v. Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170, Topuz v. Minister for Immigration and Ethnic Affairs (unrep. 18/2/86 Keely J. at page 13)
In my opinion, the applicants have demonstrated no basis upon which the decision of 25 March can be reviewed.
The Decisions of 3 April
The decisions of 3 April, I have already said, can be regarded as refusals to issue entry permits to the applicants.
The position adopted by Mr Broom is understandable for once entry is granted it seems that the opportunity to invoke the provisions of sub-s.36A(4) and require the carrier to remove the applicants from Australia would be lost.
Removal of the applicants from Australia would then require resort to the deportation power under s.18 of the Act.
The expressed reason for the refusal to reconsider the issue of entry permits, was that the original decisions were under review by this Court.
The fact that the earlier decisions were the subject of a judicial review application does not, in my opinion, operate to bar the Minister or his delegate from giving consideration to and issuing entry permits whether in the light of changed circumstances or otherwise.
If there has been no material change in circumstances then it is hardly surprising that an application for an entry permit having once been refused and subject to pending judicial review proceedings, should be refused again.
Where there is a material change in circumstances affecting the new application, then the relevant officer should deal with it on its merits. The pendency of judicial review proceedings affecting an earlier decision may be a relevant factor but should not be treated as determinative of the case.
The letter of 2 April made it plain that the applicants were pursuing their applications for refugee status and were raising serious questions of possible persecution and hardship if they were to be returned to Sri Lanka.
The bases for these concerns were elaborated in the statements which had been provided to the D.O.R.S. Committee on 1 April.
In a sense it may be sufficient to dispose of this application for review to find that the request for the issue of the entry permits was not dealt with it on its merits as it ought to have been.
That approach would not, however, do justice to the issues properly raised in argument as to whether the applications ought to have been considered within the framework of the policy PC1330 and whether consideration of likely hardship upon a forced return to Sri Lanka should have been taken into account.
The grant of a temporary entry permit under s.6 of the Act may be viewed in two ways. First it may be considered as doing no more than allowing the applicant to remain in Australia for a specified time. The discretion may be exercised with due regard to the private and public interest factors involved.
Secondly, and according to the circumstances of the case, such a grant may be seen as satisfying a precondition for consideration of the grant of a permanent entry permit under s.6A.
Relevantly to the present case, the grant of an entry permit under s.6A might be made on the basis of a ministerial determination of refugee status as contemplated by sub-s.6A(1)(c) or the existence of strong compassionate or humanitarian grounds contemplated by sub-s.6A(1)(e).
The pendency of an application for a determination of refugee status or the existence of strong compassionate or humanitarian grounds for the grant of a permanent permit are therefore, in my opinion, factors relevant to the grant of a temporary entry permit, where application for a permanent permit is contemplated.
Even when viewed in isolation, the discretion to grant or refuse the grant of a temporary entry permit necessarily involves, if it is raised, some consideration of the impact of a refusal on the personal interests of the applicant.
In Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321 at 376 Brennan J. said:-
"The complex of powers contained in ss.6, 6A, 7 and 18 are directed to the status and disposition of the immigrant. The affection of the immigrant's interests is of the very nature of those powers and the repository must have regard to those interests in exercising them."
The above mentioned passage was cited and relied upon by Ryan J. in Daguio v. Minister for Immigration and Ethnic Affairs (unrep. 31 October 1986) at pages 11 and 12.
Indeed within the limited confines of the factual framework in which he made the decisions of 25 March 1987, Mr Broom in paragraph 23 expressly addressed the question "whether there were any genuinely extenuating or compassionate circumstances involved...".
It seems to me therefore, that so far as the decisions of 3 April are concerned, consideration should have been given to whether the applicants' forced return to Sri Lanka would give rise to severe hardship.
Of course the question of the weight to be given to such factors is ultimately a matter for the decision maker. It is not for this Court to engage in the process of administrative decision making. The considerations of hardship raised by the applicants are substantial. They cannot be dismissed as matters which, although of technical relevance, should not as a matter of discretion attract the exercise of the supervisory jurisdiction that the Court has under the Judicial Review Act.
The question remains whether in relation to the new application for temporary entry permits consideration ought to have been given to policy instruction PC1330.
Counsel for the respondent contended that the policy had no application to the case of Sri Lankan nationals who had not entered Australia.
In support of the submission reference was made to Mr Richardson's evidence that the policy "was intended to be limited in scope to those Sri Lankans who had been granted entry to Australia". Mr Richardson, it should be noted, signed the departmental circular which embodied the policy instruction.
Counsel submitted that the Court should accept the official evidence as to the intended application of the policy.
Counsel for the applicant on the other hand urged me to go to the written policy instruction and give little weight to the interpretive comments of departmental officers.
Some support for Richardson's limitation might be discerned in the opening words of the policy instruction which describes it as providing guidance "in respect of Sri Lankan cases presenting at regional and area offices in Australia".
The policy clearly contemplates that unsuccessful Sri Lankan applicants for refugee status should have drawn to their attention the provisions of s.6A(1)(e) of the Act. These provisions as already noted, empower the Minister or an authorised officer to grant a permanent entry permit to the holder of a temporary permit where there are strong compassionate or humanitarian grounds for doing so.
In that respect the policy addresses the case of Sri Lankan nationals who already have temporary entry permits.
Further on however, the policy says rather cryptically:-
"Six months temporary entry permits would be appropriate".
This seems, in the light of what precedes it, to contemplate the grant of temporary entry permits on compassionate or humanitarian grounds.
It is a rather odd reference given the emphasis in the policy to applications under s.6A(1)(e). For, by virtue of s.6A(8) the only permit that may be obtained under the section is a permanent entry permit.
That the policy does contemplate the grant of temporary entry permits is emphasised by its reference to the need for Sri Lankans wishing to continue their temporary stay in Australia to be in possession of a temporary entry permit.
The application of humanitarian considerations under the policy extends even to the case of Sri Lankans who are prohibited non-citizens. That is subject to the qualification that deportation may ensue in cases of "criminality or other activities incompatible with either Australian community standards or national security concerns".
Persons who are classed as prohibited non-citizens may be so classed because they have entered Australia without an entry permit (s.6(1)) or have stayed beyond the expiry date of the permit (s.7(3)).
Such persons would include persons who have entered Australia under concealment from immigration officials.
The benefit of the policy could, it appears, be extended to these but, on Mr Richardson's evidence, not to persons in the situation of the applicants who have arrived at a proclaimed airport and who, by virtue of a statutory fiction, are taken not to have entered Australia.
The Court cannot, however, let itself be drawn into a consideration of the merits of the policy.
In the circumstances, although not without some hesitation, I consider that I can accept Mr Richardson's evidence as to its intended application. He, after all appears to have been its author. This acceptance is in spite of the fact that upon a reading of the policy instruction as a whole, I am quite unable to perceive the limitation for which he contends.
I accept therefore that the policy was not intended to apply to persons in the category of the applicants who are deemed not to have entered Australia.
In the end however it does embody a clear recognition by government of the special hardships pro tem which may affect Sri Lankan citizens facing forced repatriation to their native country.
The recognition of those difficulties and the formulation of a policy peculiar to a particular national group are factors which, in my opinion, should be taken into account in the decision whether or not to issue temporary entry permits to Sir Lankans who, although they have arrived in this country, are taken not to have entered it.
In coming to this conclusion I have regard to the passage already cited from the judgment of Brennan J. in Kioa v. Minister for Immigration and Ethnic Affairs (supra).
In the circumstances I consider that the respondent's delegate, Mr Broom, has failed to take into account considerations relevant to the exercise of the power to refuse the grant of a temporary entry permit.
There is no apparent reason, and none was suggested, to base a discretionary refusal to grant relief.
I propose therefore to direct that the applications for temporary entry permits made on behalf of each of the applicants on 2 April 1987 be referred back for further consideration by the respondent or his delegate.
I will hear from the parties as to the precise form of the orders that should be made.
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