Re Yaa Akyaa and Rita Kufo v The Minister of Immigration and Ethnic Affairs

Re: YAA AKYAA and RITA KUFO
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and IAN ROBERT GLOVER
No. G173 of 1987
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Gummow J.

CATCHWORDS

Administrative Law - immigration - applicant taken into custody upon arrival in Australia - application for entry permit on basis of refugee status - applications refused - nature of determination of status - applicability of principles of procedural fairness - applicant not given adequate opportunity to make submissions prior to recommendation of DORS Committee - applicant not given adequate opportunity to make submissions prior to the Minister's Delegate making a decision - whether breach of principles of natural justice.

Migration Act 1958 ss. 6, 18, 36A, 38.

Administrative Decisions (Judicial Review) Act 1977 ss. 5, 8.

Minister for Immigration and Ethnic Affairs v. Mayer (1985) 157 CLR 290 considered.

Seaward v. Paterson (1897) 1 Ch 545 referred to.

Ellendale Pty. Ltd. v. Graham Matthews Pty.Ltd. (1986) 65 ALR 275 referred to.

Kioa v. West (1986) 60 ALJR 113 applied.

Miller v. TCN Channel Nine Pty. Ltd. (1986) 60 ALJR 698 referred to.

The Queen v. Credit Tribunal ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 referred to.

Minister for Immigration and Ethnic Affairs v. Lebanese Moslem Association 19.2.87 (unreported) referred to.

Fairgold v. Zammit (1984) 1 FCR 87 referred to.

Minister for Immigration and Ethnic Affairs v. Conyngham (1986) 68 ALR 441 referred to.

Sinnathamby v. Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 considered

Minister for Aboriginal Affairs v. Peko Wallsend Ltd. (1986) 60 ALJR 560 referred to.

HEARING

SYDNEY

#DATE 5:5:1987

Counsel and Solicitors for the Applicants: Mr M. Smith instructed by Messrs Marsdens

Counsel and Solicitors for the Respondents: Mr P. Hastings instructed by The Australian Government Solicitors

ORDER

In connection with the making on 9 April 1987 of the decision of the Delegate of the respondent Minister to refuse entry permits sought by the first applicant breaches occurred of the rules of natural justice as described in the reasons for judgment.

1. The matter to which the decision of the Delegate of 9 April 1987 related be referred to the first Respondent or his Delegate for further consideration in the light of the above declaration.

2. The first Respondent be restrained until noon on 26 May 1987 from taking or permitting to be taken any steps to have the first applicant removed from Australia.

3. The Respondents pay the costs of the first Applicant.

4. Exhibits 1, 2a, and 2b, be returned to solicitors for the Respondents.

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

JUDGE1

Facts

The first applicant was born in Ghana in 1955. She first came to Australia on 13 August 1981, in the company of her husband. She had left Ghana in September 1980. The couple gained entry to Australia on terms that do not precisely appear but it seems that by 13 December 1982 they had become prohibited non-citizens within the meaning of the Migration Act 1958 ("the Act"). On that date the first applicant completed a document styled "Application for Refugee Status" with supporting materials. In the meantime, a daughter (the second applicant) had been born to the couple. She was born in Sydney on 6 November 1981.

An "Application for Refugee Status" was also made by the husband. Both applications were rejected in November 1983 and again on "appeal" on 26 October 1984. I refer later in these reasons to the nature of such applications and appeals. The first respondent was deported from Australia pursuant to an order under s.18 of the Act, which had been dated 13 February 1986. She took her daughter with her. Her husband also left Australia at the same time but the evidence does not indicate the immediate circumstances of that departure. The first applicant, her husband and their child returned to Ghana in March 1986. The spouses separated and were divorced in Ghana in September 1986.
Between 9.00am and 9.30am on 31 March 1987, Mrs Peters (who gave affidavit and oral evidence in the present case) was engaged in her duties at Sydney Kingsford Smith Airport as an Airport Inspector on the staff of the Department administered by the respondent Minister ("the Department"). It came to her notice that some time earlier that morning the applicants had disembarked from an Alitalia flight on its arrival from Singapore. The first applicant had presented herself without any valid travel documents or visa. She had completed a customs and quarantine statement and incoming passenger cards for herself and her daughter. She also had produced a bundle of papers which included a two page handwritten document signed by her and headed "Application of Political Assylum" (sic). On her passenger card the first applicant identified herself as "Migrating to Australia".
Mrs Peters interviewed the applicant in an interview room at the Airport. She treated what was put in the documents I have described and by the first applicant orally as an application for an entry permit coupled with an application for "refugee status". Mrs Peters took notes of the interview. She did not grant any entry permit and caused a copy of her notes to be forwarded between 1.00pm and 2.00pm to Canberra by facsimile transmission to Mr Young (who also gave oral and affidavit evidence), the Acting Director of the Determination of Refugee Status Secretariat (known as "DORS") in the Department.
The applicants remained at the Airport and slept for part of the day. At about 5.00pm they were taken to a detention centre at Villawood. Mr Scott, an officer of the Department, issued a direction to the officer in charge at the detention centre to keep the first applicant in custody until 1700 hours on 3 April 1987. The direction was in writing and was expressed to be issued in pursuance of powers conferred by s. 36A of the Act. There is no direct evidence as to when the direction was given but I infer that it was after the transmission of the documents to Canberra (viz between 1 and 2 pm) and before 5.00pm.
On 1 April, the first applicant, pursuant to a direction by Mr Young, was interviewed at the detention centre by another officer of the Department. At that time she completed a form headed "Application of Refugee Status", answered a supporting printed questionnaire form and wrote out a document on a form headed "Applicants Should State Their Reasons For Seeking Refugee Status". These documents were then sent to Mr Young in Canberra. A tape recording was made of the interview (with the first applicant's consent). This was reduced to twelve typed pages and, after perusing and correcting it in some respects, the first applicant on 3 April 1987 made a statutory declaration confirming the accuracy of the transcript.
In these materials, the first applicant said she was now divorced from her husband, that relations between them were bad, that after her return to Ghana in 1986 she had greatly feared that her daughter would be taken from her by her husband, and that this was still her fear. She also detailed mistreatments of a serious nature at the hands of security officers in Ghana after her return there in 1986. She said she had no political views adverse to the present administration in Ghana but that her mistreatments were the result of false denunciation of her by her former spouse to a body known as the CDR. This identifies what is styled the Committee for the Defence of the Revolution. The transcript includes the following:-

"77. Do you wish to remain in Australia?

A. Not really. Because it's too far you know.

78. What do you want to do then?

A. I'll stay because of Rita I wouldn't mind.

79. You would like stay here because of your daughter?

A. Yes.

81. You don't have any relatives in Australia?

A. No but I have friends.

On 3 April 1987 (a Friday) Mr O'Connell of the DORS Secretariat wrote to the first applicant a letter which, omitting formal parts, reads as follows:-

"I refer to your request for the grant of refugee status in Australia.

The delegate of the Minister for Immigration and Ethnic Affairs has decided not to entertain your request.

In coming to his decision the delegate took the view that, as you arrived in Australia on the flag carrier of Italy, a country signatory to the United Nations Convention relating to the Status of Refugees and related protocol any claim that you may have to refugee status is on that country, rather than on Australia.

The delegate also took account of the fact that a previous application for refugee status on your behalf had been given detailed consideration by the Determination of Refugee Status Committee, but had been unsuccessful."

On the same day and in the presence of a solicitor employed by the Legal Services Commission of New South Wales, the first applicant was informed orally of this decision. She had sought legal advice by telephone call to the Fairfield Office of the Commission the previous day. Late in the afternoon of 3 April, on an application made by another solicitor employed by the Commission, a Judge of this Court granted injunctive relief against the respondent Minister to be effective until 4.pm on 10 April 1987. On that day the matter came before me. After hearing counsel for the parties I ordered that, until 5.00pm on 28 April 1987 or until further earlier order, the respondent Minister be restrained from taking or permitting to be taken any steps to have the first applicant removed from Australia. I also then set the matter down for final hearing on 27 and 28 April and gave directions to ready the case for hearing on those days. At the hearing Mr Smith appeared for the applicants and Mr Hastings for the respondents. On the conclusion of the hearing I varied the existing injunctive relief so that it is effective until further order.
As I have noted the 3rd of April was a Friday. On Monday 6 April, Mr O'Connell circulated the first applicant's application for "refugee status" to the DORS Committee for consideration. This course indicated a virtual volte-face from the position taken in the letter of 3 April to the first applicant. The application was forwarded to the DORS Committee under cover of a minute signed by Mr O'Connell. The minute (omitting formal parts), reads as follows:-

"The attached papers are circulated to DORS Committee members for consideration as a manifestly unfounded application.

Committee members are asked to advise whether they consider the case disclosed grounds to warrant full DORS processing. Please advise the DORS Secretariat in writing her decision as soon as possible."

Endorsed upon the document was a handwritten note as follows:-

NOTE: Ms Akyaa was previously considered in 1984 as spouse of FRANCIS KOFI KUFO - you will have earlier records. Appreciate urgent telephone advice today, as Ms Akyaa is under s.36 A custody."

The papers attached by Mr O'Connell to the reference to the DORS Committee members were copies of:-

(i) The Statutory Declaration of the first applicant

made 3 April 1987 annexing the record of interview (conducted on 1st April 1987).

(ii) The application for refugee status and supporting

questionnaire and handwritten statement, completed by the first applicant on 1 April 1987.

(iii) The handwritten document of the first applicant

headed "Application for Political Assylum"(sic) which she had produced on arrival at the Airport on 31 March.

(iv) Other documents also produced by the first

applicant at that time being the incoming passenger cards for herself and her daughter, the customs and quarantine statement, her Baptism Certificate, the Notification of Birth Registration of her daughter and correspondence emanating from the Department of Social Welfare in Ghana 1986 concerning difficulties between the first applicant and her husband.

(v) The boarding pass and baggage tabs issued by

Alitalia in respect of the flight to Sydney.

The DORS Committee which dealt with the application contained representatives of the Department of the respondent Minister, the Department of Foreign Affairs, the Attorney-General's Department, the Department of Primary Industry and Cabinet. A representative of the United Nations High Commissioner for Refugees attended as an adviser and participated in the decisions of the Committee. The nature and functions of this Committee and the content of the term "refugee status" are explained in Minister for Immigration and Ethnic Affairs v. Mayer (1985) 157 CLR 290 at 300-301. Mr Young, in his evidence, supplemented what is there set out. Where the Committee reaches a unanimous view, its recommendation goes to a Delegate of the Minister for decision. If there is a division in the Committee, the matter goes not to a Delegate but to the Minister. There is also a procedure for "reviews" or "appeals", where for example fresh and significant information comes to hand. In these cases the Committee reports to the Minister himself.
On 9 April the DORS Secretariat recommended that the application for "refugee status" be refused and on the same day the Delegate of the respondent Minister having received the written recommendation from the Committee decided that the application for "refugee status" be refused. The view of the Committee had been unanimous. On 10 April 1987 Mr Young as Acting Director of the DORS Secretariat, wrote to the first respondent a letter which (omitting formal parts) reads as follows:-

"I refer to your application for refugee status in Australia.

Your application for refugee status has been examined carefully by the Determination of Refugee Status (DORS) Committee comprising representatives of the Departments of Immigration and Ethnic Affairs, Foreign Affairs, Attorney General's and Prime Minister and Cabinet. The representative of the United Nations High Commissioner for Refugees participates as an adviser to the Committee.

The DORS Committee recommended against the granting of refugee status to you. This decision was taken following consideration of detailed advice and information available to the Committee concerning the general situation prevailing in Ghana and your known particular circumstances in that country as they related to your claims for Refugee Status.

The Minister's delegate has endorsed the Committee's recommendation and has agreed that your application for refugee status in Australia must be refused.

As you are currently held in detention under the relevant provisions of the Migration Act further action on your case will be undertaken by officers of the Compliance Branch of this Department."

Mr Young had been a member of the Committee that made the recommendation to the Delegate. The evidence at the final hearing before me also included a previous application for "refugee status" with the accompanying questionnaire which as I have said, had been made by the first applicant on 13 December 1982. Also in evidence were (i) a handwritten statement in support made by the first applicant on 10 December 1982, (ii) statutory declaration by the first applicant made 17 December 1982 to which was annexed the transcript of an interview on 13 December 1982 between the first applicant and an officer of the Department, and (iii) the written recommendation of the DORS Secretariat dated 16 November 1983 which was headed "KUFO, FRANCIS AND FAMILY APPLICANTS FOR REFUGEE STATUS"; this dealt with the spouses' applications together and concluded that "the Kufo's application for refugee status be rejected."

I have referred to the handwritten note appended to the reference by Mr O'Connell dated 6 April 1987 which may be thought to be a reference to the "appeal" in 1984 against the rejection in 1983 of the earlier application for "refugee status". It is not apparent whether all of these materials which I have mentioned as being in evidence before me had been before all the participants in the deliberations of the DORS Committee on 9 April 1987. However, minutes of that Committee for that meeting were in evidence before me and it is apparent from them that some at least of those participants were familiar with the earlier materials and had them in mind in evaluating the application currently before them.
The written recommendation to the Delegate from the DORS Secretariat on 9 April 1987 states on its face that it has attached to it "The documentation considered by the DORS Committee members". As I mentioned, whilst it is clear what that documentation comprised as regards the current application, it is less clear how much was included of the documents concerning the 1983 application and the 1984 "appeal". The Delegate also had before him as an attachment to the recommendation the minutes of the meeting of the DORS Committee on 9 April 1987.
These minutes are of central importance in the present case. Counsel for the applicants point to a number of passages in the minutes as indicating that the DORS Committee and thus the Delegate proceeded upon a view of the first applicant's case which necessitated the giving to her or her legal representatives an opportunity to respond before an adverse decision was made. He emphasised in particular these portions of the minutes which in what now follows I have italicized.
The material appearing first in the minutes under the heading "RESUME" was as follows:-

. "A divorced, or separated Ghanaian who returned to Australia on 3 March 1987 with her Australian born child on an Alitalia flight ex Singapore; having travelled it was believed to Singapore from Nigeria on an Air India flight.

. The journey was without passport or entry approval for Australia (no visa).

. She claims she was assisted in both Lagos and Singapore to board the flights without travel documents (by a high immigration official in Lagos and by a Church contact friend in Singapore).

. In Singapore it is alleged she had the use of a Guyanese passport for sufficient time to gain entry to the flight (this does not explain the lack of visas however).

. The family had been previously resident in Australia from 1981 to date of deportation in March 1986. (The child was born in Australia on 6 November 1981.)

. Previous application for refuges (sic) status: - rejected by delegate 22 November 1983;

- rejected on appeal again on 26 October 1984 (Note: a forged police wanted notice was submitted in support);

- Ms Akyaa's claim at that time related to her kinship with a former minority party political leader, now in exile;

- Accra had confirmed that this person was a former opposition politician, but that similar figures were not persecuted in Ghana because of political activity.

. After deportation back to Ghana in 1986 she fell out with her husband who apparently wanted to take the daughter from her. She took her claims to the relevant court and she separated from her husband.

. Early in the interview she claims CDR people took her to army barracks and accused her of plotting against the government and claims she was bashed.

- After denying any knowledge she states she was then allowed to go.

- This seems to have been her first detention and was only for a short time (one day - Q26).

. After that detention she took her daughter to Togo, to leave her with a friend.

. On return to Ghana she was again detained - at a Detention Centre for about ten days, during which time she claims she was raped and otherwise mistreated.

- She claims she was helped to escape by female guard.

. She returned to Togo to pick up her daughter and travelled to Nigeria where she stayed several months. Her husband found she was there and came to try to take her daughter away - in short, she decided to leave Nigeria to escape her husband. (who she even claims wanted to sell the child).

. The travel to Australia is puzzling - no passport; no visa; baggage tags indicated she travelled from Lagos with Alitalia via Rome but she claims she travelled via Singapore being helped with boarding passes by friends or contacts."

The minutes go on to summarize the views of the various agencies represented on the Committee. All of them took the position that the credibility of the first applicant was a central question.
The representative of the United Nations High Commissioner for Refugees after expressing agreement with the assessment by the Department of Foreign Affairs, continued

. This claim is based on the allegation by Ms Akyaa that her husband informed the Ghanaian authorities that she was involved in a planned coup attempt.

. If Ms Akyaa was detained and mistreated in Ghana and if the authorities followed up the accusation of her husband, then there may be a well founded fear of persecution due to imputed political opinion.

. The suggestion of a link to the political opposition causes concern to UNHCR because of a case last year in which people accused of a coup had used two female messengers who were sentenced to seven years.

. This case hinges on the credibility of the applicant. Her story, however, is bizarre and contains claims which are difficult to believe, e.g.:

- that she escaped from detention;

- that her Nigerian hosts could have been pressured by the Ghanaian Embassy to ask her to leave; and

- that she was able to travel to Australia without any travel documents.

. Because of the contradictions in her story we do not feel that she has established a credible claim to having a well founded fear of persecution.

. Not a refugee.

It is to be noted that if the story of the first applicant were accepted then in the view of the Commissioner "(T)here may be a well founded fear of persecution due to imputed political opinion."
The respondent Department referred to the "fact that during the first application for refugee status the couple (then) created claims to suit their purpose,(e.g. forged police wanted certificate)". The representative then went on to say that the method of the first applicant's travel to Australia indicated "a well organised effort which suggest an immigration racket was employed somehow". The Department of Foreign Affairs also referred to the previous application saying that on that occasion the first applicant and her husband "contradicted each other's claims significantly" and that "her husband also presented the Committee with fraudulent documents".
The Department of the Prime Minister and Cabinet noted that "a previous refugee claim in which Ms Akyaa was involved was rejected and can be seen, with hindsight, to have been clearly fraudulent".
It is in the above circumstances that counsel for the applicants presented claims to various relief under the Administrative Decisions (Judicial Review) Act ("the ADJR Act")

The Detention of the first Applicant

Counsel for the applicants seeks an order that they be released from custody. At all times since their arrival here on 31 March the child has been in the care of her mother but there is, on the evidence, no legal restraint imposed pursuant to the Act in respect of the child. There is thus no footing for the order sought in respect of her. I refer later to the procedural aspects of the second applicants joinder in these proceedings.
The first applicant is in a different situation. As I have said, she travelled by aircraft from Singapore to Australia, sought from Mrs Peters an entry permit, and was refused. She was thus liable to be taken into custody under the procedures laid down in s.36A(3) of the Act. I find that she was so taken into custody at about 5pm on 31 March 1987. Section 36A(3) authorises her to be kept in custody (a) until "such time as (she) is removed from Australia in accordance with (s.36A(4))" or (b) "until such earlier time as an authorised officer directs".
At the date of the hearing the first applicant was held in custody under a written direction of the second respondent given in writing to the officer in charge of the detention centre on 10 April 1987. Earlier directions had covered the periods to 3 April, 5 April, 7 April and 10 April.
Counsel for the first applicant submits that removal "in accordance" with s.36A(4) involves compliance by the carrier within the time limits in s.36A(5)and that this compliance no longer is possible in the events that have happened since early April. Therefore, he submits, the terms of permissible custody under s.36A(3) is spent and any decision to hold and retain the first applicant in custody was not authorised by s.36A(3)of the Act: ADJR Act, s. 5(1)(d). This argument follows the attention directed by s.36A(3) to succeeding sub-sections of s.36. Sub-sections (3), (4), (5), (6), (7) and (8) are as follows:

"(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 or elsewhere, as an authorized officer directs until such time as he is removed from Australia in accordance with sub-section (4) or until such earlier time as an authorized officer directs.

(4) Where a person is taken into custody under sub-section (1), (2) or (3), an authorized officer may, at any time within 48 hours after the person is so taken into custody, by notice in writing served on the master, owner, agent or charter of the aircraft on which he travelled to Australia, require the master, owner, agent or charterer to remove the person from Australia at no charge to the Commonwealth.

(5) A master, owner, agent or charterer on whom a requirement has been served under sub-section (4) shall comply with the requirement within the period of 72 hours commencing at the time when the requirement was served on him or within such period as an authorized officer allows, whether or not the person to whom the requirement relates is able or willing to pay, or agrees to pay, a charge in respect of his removal from Australia.

Penalty: $2,000

(6) It is a defence to a prosecution in respect of a failure to comply with a requirement under sub-section (4) if the defendant proves that, after the requirement was served upon him, he gave reasonable notice to an authorized officer of his willingness to receive the person to whom the requirement related on board a specified vessel or aircraft at a specified port at a specified time for removal from Australia and the person concerned was not made available at that port at that time in the custody of an officer for placing on board that vessel or aircraft.

(7) The master, owner, agent and charterer of an aircraft are, jointly and severally, liable to pay the Commonwealth a fair sum for the cost of keeping and maintaining a person while he is kept in custody at a place other than the proclaimed airport, the cost of transporting the person, and a custodian of the person, from the airport to the place of custody and, if the person is required to be removed from Australia, from the place of custody to the vessel or aircraft upon which he is to be so removed.

(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 sub-section (1), (2) or (3)."

At 11.30am on 2 April 1987 (i.e. within the 48 hour period stipulated in s.36A(4)) a written direction by the second respondent was given to Alitalia. It was expressed to be given pursuant to s.36A(4) and obliged Alitalia to remove the first applicant from Australia at no charge to the Commonwealth "within the period of 72 hours commencing at the time when this requirement is served on you or within such further period as an authorised officer may allow". Mrs Peters had conversations with a representative of Alitalia and on 3 April she noted agreement by the airline to take both applicants on a flight leaving on the next day at 12.35 pm. (i.e. within the 72 hours specified in s.36A(5)). Before that could be done the orders of this Court on 3 April had intervened and orders still remain in force that would prevent a direction to the airline being given for removal of the first applicant.
On 10 April what purported to be a fresh notice under s.36A(4) was given the airline. Counsel for the respondents disclaimed any reliance upon it. On the same day Mrs Peters wrote to Alitalia, enclosing the notice and stating -

"This Department is under a court order restraining any steps being taken to remove Yaa Akyaa from Australia. The Department has authorised that she be kept in custody until Midnight 28 April 1987 by which time the matter should be resolved.

The Department will advise you as soon as the court order is removed."

Counsel for the respondents directs attention to the first notice to Alitalia and submits that in the events that have happened Alitalia has been relieved of the need for compliance within the 72 hour period stipulated in s.36A(5) and instead is obliged to comply with the requirement of removal when any order of this Court, which in substance prevents the Commonwealth acting to deliver the first applicant to Alitalia for removal from Australia, has been vacated or is spent. There has thus been, he submits, an allowance of a further period within the meaning of s.36A(5) and so the time for removal "in accordance with" s.36A(4) has not passed. It follows that the period of permissible custody has not ended.
I agree with these submissions. Further, in my view the time for the performance of the obligation on Alitalia which is imposed by these provisions is on a proper reading of this statute and the ADJR Act suspended or qualified for such period as the obligation could not lawfully be performed, as it could not be if performance by Alitalia would facilitate a breach by the Commonwealth of a court order (cf Seaward v. Paterson (1897) 1 Ch 545, Ellendale Pty. Ltd. v. Graham Matthews Pty. Ltd. (1986) 65 ALR 275 at 286). It must be remembered that s.36A has to be read with the ADJR Act and with consideration to the effect of orders that may be made under jurisdiction conferred on this court by s.8 of the ADJR Act (cf Kioa v. West (1986) 60 ALJR 113 at 119, 125, 134, 145, 148; Miller v. TCN Channel Nine Pty. Ltd.(1986) 60 ALJR 698 at 720-721; The Queen v. Credit Tribunal ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 at 561).
The Counsel for the first applicant resists any such construction by pointing to the "indefinite" detention that might result whilst the Commonwealth allowed a lengthy period for compliance by the carrier with its obligation to remove the person in question. But the present case is a special one in that the delay is the product of the invocation by that detainee of the jurisdiction of this Court. In the second place, the procedure only operates in respect of those who have been denied entry permits at the airport (s.36A(3)) and who if they entered Australia (cf s.36A(8)) would, as prohibited non-citizens (s.6(1)), be liable to arrest (s.38). It is true that s.38 has elaborate provisions to limit the period and nature of the custody, but once an order for deportation had been made under s.18 there would be the prospect of custody under s.39(6) rather than under s.38. Thirdly, abuses of power would attract the operation of the ADJR Act, and remedy in this Court. Finally, the prospect of the carrier delaying removal and so prolonging custody is, in the ordinary case, diminished by the presence of s.36A(7) with its obligation on the carrier to pay the Commonwealth the cost of keeping and maintaining the person in custody.
Accordingly, I hold that the claim for an order releasing the first applicant from custody has not been made out.

The Other Decisions to be Reviewed
It follows from the above conclusion as to custody of the first applicant under s.36A that she is not for the purposes of the Act deemed to have entered Australia by reason only of her having been taken from the airport to Villawood (s.36A(8)). Otherwise, she would on leaving the airport have been deemed to enter Australia (s.5(2)) and s.27 (a criminal offence provision) could have been attracted. As it is, there is no ground for treating the first applicant as having entered Australia other than as a detainee and she is for the purposes of the Act one who has not entered Australia.
This has an impact upon the entry permits she has sought. Mrs Peters, on my view of the evidence, refused an application for entry permits. The events of 1 April and the documents then brought into existence were in substance, I took both counsel to accept, applications for temporary and permanent entry permits. To those applications s.6A(1) did not apply. It operates to restrict the granting of entry permits after "entry into Australia". The applicant had not entered Australia. Therefore there was no operation of the restrictive conditions on grants imposed by s.6A(1). Nor was there any immediate statutory footing for determination of "refugee status" as provided by s.6A(1)(c) (cf Minister for Immigration and Ethnic Affairs v. Mayer (1985) 157 CLR 290).
The applications for temporary and permanent entry permits fell for decision under s.6(2). They were, in my view of the circumstances of this case, made "upon arrival in Australia" and not after entry here (s.6(5)). It has been said in the Full Court of this Court that the discretion conferred by s.6(2) is "relevantly unfettered": Minister for Immigration and Ethnic Affairs v. Lebanese Moslem Association (19/2/87, unrep). However, before me counsel for the respondents properly accepted that upon the approach I have taken to the matter the decision maker was bound to have regard to the claim to refugee status, and he submitted that such regard had indeed been given. The activity of the DORS Committee in such a case as this is not productive itself of a decision under the ADJR Act (cf Mayer's Case (1985) 157 CLR at 294-5, 300-301, 306). But refusal of the permits would be a decision to which the ADJR Act would apply.
There was no document in terms recording such a decision in the present case. However a vital integer in the consideration of the first applicant's case was her claim to "refugee status" and the letter dated 10 April 1987 to the first applicant from Mr Young was in substance telling her that procedures for her removal from Australia would go forward and the refusal by the Delegate of "refugee status" on 9 April 1987 is to be treated in my view as carrying with it refusal of temporary and permanent entry permits. The respondents, by their counsel, took a commendably direct approach to the case by seeking to fight it on substantive not technical or procedural grounds, and did not, I believe, dissent from that characterisation of events. In particular, no point was taken that if natural justice had been denied in the proceedings of the DORS Committee, the decision of the Delegate, as one made under the Act, was in any better position. If taken, the point would not in my view have been correctly taken. There would still have been a breach of the rules of natural justice "in connection" with the making of the decision of the Delegate (ADJR Act, s.5(1)(a)).
Thus I will deal with the matter as an application to review the decision of the Delegate on 9 April to deny temporary and permanent entry permits to the first applicant and will accept that in making that decision he was bound to have regard to the claim to refugee status.
In the course of events to which I have referred, no doubt, as counsel for the first applicant asserted, there were other anterior decisions that would attract the ADJR Act, but on the view I have taken they do not call for separate treatment. I should, however, note that all the decisions impugned in the Application were expressed as decisions directed only at the first applicant. The second applicant may have been a person aggrieved by them within s.5(1) of the ADJR Act, but they were decisions directly affecting her mother.
The principal grounds of attack were s.5(1)(a) (breach of natural justice), s.5(1)(e) plus s.5(2)(a) (irrelevant considerations taken into account), and s.5(1)(e) plus s.5(2)(b) (relevant considerations ignored). It was also claimed in the Application that there had been exercises of power so unreasonable that no reasonable persons could have so acted (s.5(1)(e)) plus s.5(2)(g)). There plainly is no substance to that claim. I turn to the other grounds.
Natural Justice

In Faingold v. Zammit (1984) 1 FCR 87 at 92-93, the Full Court, on an appeal against the refusal of interlocutory relief, held that as the authorities in the High Court then stood the rules of natural justice did not apply when decisions were made pursuant to s.36A of the Act. That was before the decision of the High Court in Kioa v. West (1986) 60 ALJR 113. In the present case, counsel for the respondents did not dispute that Faingold v. Zammit now had to be read subject to the general propositions which are to be drawn from Kioa v. West and are apposite to this case. These propositions in my view are to the effect that (i) there is a common law duty to act fairly, in the sense of according "procedural fairness", in the making of administrative decisions which affect rights and interests (including those relating to personal liberty and status) and legitimate expectations, subject only to the clear manifestation of a contrary intention, (ii) the content of the duty depends upon the circumstances of the case including inter alia the nature of the inquiry, the subject matter, and the rules under which the decision maker is acting, (iii) "procedural fairness" conveys the notion of a flexible obligation to accept fair procedures which are appropriate and adapted to the circumstances of the particular case, including the interests of the individual and the interests, public or private, which the statute in question seeks to advance, to protect, or permits to be taken into account as legitimate considerations, (iv) "procedural fairness" will often require the bringing to the attention of the individual the critical issue or factor on which the administrative decision is likely to turn, and (v) it is not necessary for the complainant to show that the procedural unfairness complained of did work to his or her prejudice; it is enough that the way was open for it do do so. I refer to the judgments in Kioa v. West (supra) of Mason J. (as he then was) at 126-129, Wilson J. at 135-6, Brennan J. at 139-144, 146-147, and Deane J. at 147-148.

In applying these principles to the present case it cannot be said that there is in the statutory provisions a clear manifestation of an intention adverse to the existence of a duty of procedural fairness. The respondents whilst correctly pointing to the public interest in effective and efficient control of entry into Australia by non-citizens, do not assert there is no duty of procedural fairness. The first ground for debate concerned the content of that duty in the present circumstances. In my view, that issue is to be approached by recognising the element of urgency presented by the arrival of the first applicant without her earlier having taken steps to have an entry permit ready for issue (see The Minister for Immigration and Ethnic Affairs v. Conyngham (1986) 68 ALR 441 at 451-452) and by recognising the time constraints placed by s.36A upon the utilisation by the Commonwealth of the procedures it provided to oblige Alitalia to remove the first applicant from this country, at no charge to the Commonwealth. That ordinarily would exclude and in this case did exclude from the appropriate procedures such steps as an oral hearing before the decision maker on the question of "refugee status".
Further guidance is presented by Sinnathamby v. Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502. In that case the appellant arrived in Australia by air ostensibly as a transit passenger to Fiji. She was granted a temporary entry permit valid for 3 days and was taken into custody after 5 days. She unsuccessfully sought "refugee status" and claimed a denial of natural justice on the footing that the decision was based on information obtained by the DORS Committee and not made known to her. However, it was held that it had not been shown that the Committee had before it any information personal to the appellant which had been derived from a source other than the appellant. Further, it was held that in respect of material provided by a person in the position of the appellant, the decision maker was not, as a general requirement, bound to make known his view or evaluation of that material. That evaluation in that case was that the appellant had entered Australia by a "subterfuge". On the other hand, in Kioa's Case the material held by the High Court to require, in the circumstances of that case, a chance to be given to comment had come from a source other than the applicants.
It would be a mistake to distort the broad principle of procedural fairness into a set of sub-rules and then seek to test each case that arose against those sub-rules. In the present case it was apparent on the face of the materials submitted to the DORS Committee under cover of Mr O'Connell's minute of 6 April 1987 that a critical question that would arise for the Committee was the credibility of the narrative put forward by the first applicant. So it proved to be, as the minutes I have discussed above amply demonstrated. Again, as the handwritten note on the minute emphasised, the past history of the first applicant and her husband would also be very important in the Committee's deliberations. This also proved to be the case. As I have indicated, the wife's earlier application for "refugee status" appears to have been handled concurrently with that of the husband, even if not as joint application in any technical sense. It was by no means clear from the evidence before me of what had been before the Committee what part in that earlier process was played by the wife. For example, it was not immediately apparent whether she had known of the use of a "forged police wanted certificate", if that had been the case. The observation by Mr O'Connell in the minute to the Committee that the application was "manifestly unfounded", although no doubt a view open to him on the materials, was not apt to set the scene for detached and dispassionate consideration by the addressees of the minute.
In the circumstances of the present case, procedural fairness required the Secretariat of the DORS Committee to give to the first applicant the opportunity in writing, and after consultation with her legal advisers, to reply to the substance of the six allegations or views which I have italicised when I dealt with the minutes of the DORS Committee. For convenience I set these out again:

(Note: a forged police wanted notice was submitted in support)

fact that during the first application for refugee status the couple (then) created claims to suit their purpose. (e.g. forged police wanted certificate)

a well organised effort which suggest an immigration racket was employed somehow

contradicted each other's claims significantly

her husband also presented the Committee with fraudulent documents.

a previous refugee claim in which Ms Akyaa was involved was rejected and can be seen, with hindsight, to have been clearly fraudulent

I do not mean to suggest by this the necessity for any lengthy process of assertion and counter assertion. But the zeal and despatch with which her solicitors were attending to her interests suggests prompt written response to an invitation of the kind I have mentioned would have been forthcoming. Mr Young said in oral evidence that he had had a number of telephone conversations with the solicitors in this period. They were not given any opportunity for their client, with their assistance, to deal with the matters I have mentioned before the DORS Committee made its recommendation on 9 April 1987. Nor was any opportunity of this kind given after the recommendation but before the decision of the Delegate on the same day.

I should add that on 9 April and 16 April the first applicant swore affidavits in these proceedings which were read at the final hearing. She was not cross-examined upon them. In the first she swore to an account of her privations in Ghana in recent months and of her travel to Sydney. In the second, she swore that, had she been provided with the opportunity, she would have wanted to make submissions concerning the previous application for "refugee status".
I conclude that there has been, in the manner and to the extent I have described, a want of procedural fairness to the first applicant.

Relevant and Irrelevant Considerations
The first applicant also relied upon alleged entertainment by the authorities concerned of irrelevant considerations and exclusion of relevant considerations.
No threat has been apprehended of removal by the Commonwealth of the second applicant from Australia. The only relief that was sought in respect of the second applicant was that she be released from custody and I have dealt with that earlier in these reasons (cf Kioa's Case (1986) 60 ALJR at 129, 136, 149). She is, as I have indicated, named as a party and Mr Smith, without objection, announced his appearance for both applicants, but no orders or directions were sought pursuant to Order 43 of the Rules to deal with her position as an infant litigant. Nothing, in the event, turns on the procedural position and I say no more about it.
However, the effect upon the child as an Australian citizen and her mother of the separation that would follow the removal of the mother from Australia was submitted to have been a relevant consideration in dealing with the mother's situation and to have been passed by. Even if the relevance of that consideration be conceded (which I would be prepared in the circumstances of this case to do) the documentation which I have outlined has, on a fair reading,the mother's concern for the welfare of her child as an outstanding theme. I accordingly reject this submission.
As to irrelevant considerations, counsel pointed to the concern with (a) the applicants' method of travel to Australia (b) the previous application for "refugee status" and (c) the pendency of proceedings in this Court. None of these were, in the circumstances I have narrated, irrelevant considerations for the DORS Committee or the Delegate. (cf Minister for Aboriginal Affairs v. Peko Wallsend Ltd. (1986) 60 ALJR 560 at 565). I reject counsel's submission on this issue.

Discretion
The respondents submitted that, the powers of the Court under s.16 of the ADJR being discretionary, relief should be denied because on no proper view of the facts was the first applicant outside Ghana owing to well-founded fear of being persecuted for reasons of political opinion and, owing to such fear unwilling to avail herself of the protection of Ghana. Thus, it was submitted, she could not meet the definition of "refugee" in the Convention (see Mayer's Case supra at 299).
It is true that the dispute with her ex-husband is at the heart of her problems but that is not inconsistent with her being a refugee in the necessary sense. It is also true that the first applicant disavows any political views adverse to the administration in Ghana. She says she has been falsely denounced to the authorities and persecuted by them as a result. Whether that is so, as a matter of fact, is not an issue in these proceedings. But if her story were accepted it would by no means follow that she could not meet the definition of "refugee" in Article 1 of the Convention. Falsely imputed political opinion may lead to well-founded fear of persecution "for reasons of political opinion", even though that opinion is in truth not held.
I would not withhold relief on the ground urged by the respondents.
The text of the Convention was in evidence. There was no debate before me as to any effect of Article 31 of the Convention upon the international obligations of Australia in the present case, or as to whether it raised considerations which had to be taken (or might properly be taken) into account by a decision maker under the Act in a case such as the present. Nor was there any reliance in argument upon the views as to the operation of the Convention as regards Alitalia expressed in Mr O'Connell's letter of 3 April 1987. Alitalia was not a party to these proceedings. Accordingly I say no more on these topics.
Conclusions

In the result I hold that in connection with the making on 9 April 1987 of the decision of the Delegate of the respondent Minister to refuse the entry permits sought by the first applicant breaches occurred of the rules of natural justice as described in these reasons. I use the term "natural justice" because that is the language of the ADJR Act. The expression want of "procedural fairness" used in Kioa v. West (supra) more readily conveys the meaning of the concept as it applies in this case. Accordingly, the case for an order for review is made out on the ground in s.5(1)(a) of the ADJR Act. The review should be conducted expeditiously and submissions by or on behalf of the first applicant should be in writing unless otherwise agreed between the parties. I publish my reasons and will stand the matter over for a short time to enable the parties to consider these reasons and the form of relief I propose to grant.
That proposed relief is:

(1) Declare that in connection with the making on 9 April 1987 of the decision of the Delegate of the respondent Minister to refuse entry permits sought by the first applicant breaches occurred of the rules of natural justice as described in the reasons for judgment.

(2) Order that the matter to which the decision of the Delegate of 9 April 1987 related be referred to the first Respondent for further consideration in the light of the above declaration.

(3) Order that the first Respondent be restrained until noon on 21 May 1987 from taking or permitting to be taken any steps to have the first applicant removed from Australia.

(4) Respondents to pay the costs of the first Applicant.

[1987] FCA 137

5 May 1987