The Minister for Immigration & Ethnic Affairs v Mayer, M.R.R

[1985] FCA 87

Re: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
And: MATTHEW RAK RAIN MAYER (1985) 7 FCR 254
No. G123 of 1984
Administrative Law
58 ALR 695

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Woodward(1), McGregor(2) and Jenkinson(3) JJ.

CATCHWORDS

ADMINISTRATIVE LAW - judicial review - Minister's refusal to grant refugee status - whether decision "made under" an enactment, thus entitling person aggrieved to seek reasons for the decision.

Administrative Decisions (Judicial Review) Act 1977 ss. 3(3), 5, 13

Migration Act 1958 s. 6A

Administrative Law - Judicial review - Minister's refusal to grant refugee status - Whether decision made under an enactment - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3(3), 5, 13; Migration Act 1958 (Cth), s 6A.

HEADNOTE

A decision of the Minister refusing to grant refugee status is a decision made under the Migration Act s 6A(1) and therefore amenable to judicial review.

HEARING

1984, December 6; 1985, March 13. #DATE 13:3:1985
APPEAL

Appeal from judgment and orders of Davies J.

T R Hartigan QC and Dr C N Jessup, for the appellant.

L F Wyvill QC and L Boccabella, for the respondent.

Cur adv vult

Solicitors for the appellant: Australian Government Solicitor.

Solicitor for the respondent: B T Henry.

GFV

ORDER

The appeal be dismissed with costs.

Appeal dismissed with costs

JUDGE1

WOODWARD J. In this matter I have had the advantage of reading the draft reasons for judgment of Jenkinson J. I agree with the judgment he proposes and, in general, with his Honour's reasons. I can therefore express my own conclusions quite briefly.

The short point to be decided in this case is whether the Minister's refusal to grant refugee status to the respondent is a decision "made under" s. 6A(1) of the Migration Act 1958 so as to bring that decision within the purview of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") and entitle the respondent to seek reasons for that decision. Section 6A(1) is in the following terms:

"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;

(b) he is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit;

(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 Refugees that was done at New York on 31 January 1967;

(d) he is the holder of a temporary entry permit which is in force, is authorized to work in Australia and is not a prescribed non-citizen; or

(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."

It was argued for the Minister that the decision to refuse refugee status "stands quite apart from the statutory scheme" of the Migration Act 1958 and is "outside the scope" of that Act. It was submitted that even if the decision could in some very general sense be said to be "under" the Act, it could not be said to be "made under" it, because it was not in pursuance of the Act or under its authority. A decision to grant such status was said to get "no strength, no validity, no efficacy from the operation of the Migration Act . . . . . The decision once made is simply a fact, the existence of which is picked up by the Migration Act". Reference was made to the decision of the High Court in Glasson v Parkes Rural Distributions Pty. Ltd. (1984) 55 ALR 179, 58 ALJR 471 where (at p. 184 (ALR) or p. 474 (ALJR)) the Court held that, in order to determine whether a decision has been "made under" a particular enactment, it is relevant to ask whether that enactment is the source of power to make the decision, or the source of that decision's legal effect.

The appropriateness of such a test in the present case was accepted by the respondent, who met the argument head-on, submitting that s.6A(1) of the Migration Act 1958 was indeed the source of the Minister's authority to grant refugee status.

After entertaining some doubt, I have reached the conclusion that this submission is correct. I have done so for the following reasons:

1. Counsel for the Minister was unable to point to any requirement for the Minister to make such a decision outside the process contemplated by s.6A(1).
2. There is no legislative authority to be found elsewhere for the particular Minister - as distinct from a designated public servant, another Minister, or the Governor-General - to make decisions on refugee status.
3. There is no other authority or requirement for the Minister to make such a determination by an "instrument in writing".
4. There is no other requirement of Australian law for the Minister, or anyone else, to apply the definitions contained in the international Convention and Protocol relating to the Status of Refugees in determining whether a person should be granted that status in Australia.

Thus, although the relevant Minister may have made such decisions in the exercise of executive power before s.6A of the Act was inserted in 1980, I believe that the power in the present case was exercised by a designated person, in what would have been a prescribed manner had the decision gone the other way, pursuant to a prescribed test and for a particular purpose, all of which are provided for in the enactment.

When these factors are considered together, I believe that s. 6A(1) of the Migration Act 1958 is now the source of the Minister's authority to determine that a person has refugee status. Thus the refusal so to determine is a decision made under that enactment, within the meaning of sub-sections (1) and (2) of s. 3 of the ADJR Act which define the decisions to which that Act applies.

Having reached this conclusion, I do not find it necessary to consider the respondent's alternative submission that the determination of refugee status could properly be described as a "report" within the meaning of s. 3(3) of the ADJR Act.

The appeal should be dismissed with costs.

JUDGE2

McGregor J. THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (the Minister) has appealed against a decision given by a Judge of the Federal Court of Australia on 10 October 1984 that MATHEW RAK RAIN MAYER (the applicant) was entitled to make a request to the Minister for a statement in writing pursuant to s. 13 of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) setting out the reasons for the Minister's decision that the applicant was not eligible for a grant of refugee status as defined in the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol also relating thereto. The refusal by the Minister of the request was conveyed to the applicant by letter dated 8 August 1984 over the signature of the Secretary, the Department of Immigration and Ethnic Affairs, in the following terms -

"I am sorry to have to tell you that the Minister has decided that you are not eligible for the grant of refugee status within the terms of the 1951 UN Convention and the 1967 Protocol Relating to the Status of Refugees."

The applicant having sought, pursuant to s. 13(1) of the ADJR Act, a statement in writing setting out the reasons for that decision, he was advised on 6 September 1984 that the decision to refuse him refugee status was not a decision to which that Act applied and accordingly that a statement of reasons would not be provided.

Relevant sections of the ADJR Act include -

"3. (1) In this Act, unless the contrary intention appears - . . . .

'decision to which this Act applies' means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General, or a decision included in any of the classes of decisions set out in Schedule 1. . . . .

(2) In this Act, a reference to the making of a decision includes a reference to -

(a) making, suspending, revoking or refusing to make an order, award or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d) imposing a condition or restriction;

(e) making a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article; or

(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.

(3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act to be the making of a decision.

. . . .

13(1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. . . . .

(4A) The Court may, on the application of -

(a) a person to whom a request is made under sub-section (1); or

. . . .

make an order declaring that the person who made the request concerned was, or was not, entitled to make the request."

The Migration Act 1958 provides for the grant of entry permits to persons who wish to enter or who have entered Australia, viz. -

"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."

The last sub-section must be read with s. 5(1AA) (inserted in the Migration Act by Act No. 112 of 1983) which provides -

"5. (1AA) Any power that may be exercised by an authorized officer or by an officer under this Act may also be exercised by the Minister."

Sub-section (1) of s. 6A (inserted by Act No. 175 of 1980) provides -

"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) (b) . . . .

(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 Refugees that was done at New York on 31 January 1967;

(d) . . . .

(e) . . . ."

Sub-section (3) of s. 7 provides that, upon the expiration or cancellation of a temporary entry permit, the person who was the holder of the permit becomes a prohibited "non-citizen" unless a further entry permit applicable to him comes into force upon that expiration or cancellation; and s. 27, in substance, that a prohibited non-citizen who remains in Australia is guilty of an offence against the Act punishable upon conviction by a fine not exceeding $1,000 or imprisonment for a period not exceeding six months. Sections 12 and 14 confer discretions upon the Minister to order the deportation of certain persons who are not prohibited non-citizens. Section 18 empowers the Minister to order the deportation of a person who is a prohibited non-citizen.

His Honour in his Reasons for Judgment stated that the crux of the issue was whether the decision to refuse refugee status was a decision "under an enactment"; that the Minister's powers with respect to the entry into Australia of refugees and their stay in Australia were statutory powers not prerogative powers; and that a determination of refugee status was primarily of moment to the exercise of those statutory powers. In his view the Minister had no prerogative power to make a binding determination as to refugee status but statutory powers which enabled him to permit persons to enter and to remain in Australia and to expel persons from Australia. He considered that the status of such persons as refugees was a relevant factor to be considered in the exercise of those statutory discretions. He said that s. 6A now required, as a matter of law, that the Minister must first consider the question of refugee status and make a written decision upon that aspect before turning his attention to the grant of a permanent entry permit. The Migration Act, he considered, thus required the Minister to divide his decision-making. There were at least three separate decisions to be made with respect to an entrant to Australia who sought to be recognised as a refugee from another country, viz. the grant of a temporary entry permit, determination of refugee status, and the grant of a permanent entry permit. In his opinion, if refugee status were refused that refusal would preclude the granting of a permanent entry permit. He found that thus the determination with respect to refugee status was a final and operative determination which was required by s. 6A(1) (c) to be made prior to the consideration of the grant of a permanent entry permit. He concluded that the decision of the Minister refusing refugee status was one made under an enactment; the applicant was thereby aggrieved and so entitled pursuant to s. 13(1) to request reasons for the decision. An alternate finding by the learned primary Judge was that the determination of refugee status was a "report" within the meaning of s. 3(3) of the ADJR Act which was a required pre-condition of the making of a decision under an enactment and therefore itself a decision to which that Act applied. He said that, in effect, a determination of refugee status was a "report" that the person to whom the determination referred (i.e. here, the applicant) was or was not a refugee within the meaning of the 1951 Convention and the 1967 Protocol. Thus, on this alternate construction, the applicant was also entitled to reasons.

Senior counsel for the Minister argued that the Migration Act was not the source of the Minister's power or authority to determine refugee status. He said that the object and effect of s. 6A(1) of that Act was to establish objective conditions precedent to the grant of a permanent entry permit to a non-citizen in Australia. In his submission circumstances that were conditions precedent to the grant of an entry permit by virtue of s. 6A(1), whether or not constituted by decisions, were not brought into existence under or by that provision, notwithstanding their existence might cause it to operate in appropriate cases. He submitted that whether a person was a refugee as understood in the Convention and Protocol was a non-justiciable question in itself; no Court administering municipal law could rule on the question. He referred to Simsek v. Minister for Immigration and Ethnic Affairs (1982) 40 ALR 61; Kioa v. West, Full Court, No. VG 151 of 1984, 3 October 1984, unreported; Hawker Pacific Pty. Ltd. v. Freeland (1983) 52 ALR 185. He submitted a determination that a person had the status of a refugee within the meaning of the Convention and Protocol did not change or affect that person's status as a matter of municipal law; s. 6A(1)(c) of the Migration Act did not give the force of municipal law to such a determination. He contended that a decision was made "under an enactment" only when made under the authority or in pursuance of the enactment. He referred to Australian National University v. Burns (1982) 43 ALR 25; Chittick v. Ackland (1984) 53 ALR 143; R v. Clyne; Ex parte Harrap (1941) V.L.R. 200; Lamb v. Moss (1983) 49 ALR 533; Glasson v. Parkes Rural Distributions Pty. Ltd. (1984) 55 ALR 179. He submitted that an act was not one which could be said to be done "under" an enactment if apart from that enactment it was lawful. He referred to Northern District Radio Taxicab Co-operative Ltd. v. Commissioner of Stamp Duties (1975) 1 N.S.W.L.R. 346. In his submission the determination of the relevant status could not be said to be by way of report or recommendation in the sense used in s. 3(3) of the ADJR Act. He referred to Ross v. Costigan (1982) 41 ALR 319; Brettingham-Moore v. St. Leonards Municipality (1969) 121 C.L.R. 509; Testro Bros. Pty. Ltd. v. Tait (1963) 109 C.L.R. 353. That sub-section, he argued, did not extend the natural meaning of the words "made under an enactment"; it operated rather to deem certain conduct to be a "decision". Eventually, he submitted also that the determination of refugee status by a Minister could be regarded as an exercise of "the prerogative". He did not offer any argument in support of this proposition.

Senior counsel for the applicant submitted that any difficulty that might lie in the application of the expression "decision . . . . made . . . . under an enactment" could be resolved by applying the "source of authority" test applied by the High Court in Glasson v. Parkes Rural Distributions Pty. Ltd. (supra) at p.183. The Minister, he said, derived his authority to determine by instrument in writing whether the applicant had the status of a refugee from s. 6A and from no other source. Such power, in his submission, was conferred on the Minister by s. 6A(1)(c). He said that no action taken by the Minister in the exercise of any prerogative could either strengthen, or detract from, the force of the determination; that s. 6A(1)(c) contemplated a determination "by instrument in writing" by the Minister.

In support of an alternative argument, he referred to a definition of "report" in the Shorter Oxford English Dictionary as -

"A formal statement of the results of an investigation, or of any matter on which definite information is required, made by some person or body instructed or required to do so."

The Minister's determination in writing, he said, was, in substance, a formal statement of the result of an investigation into the matter of the refugee status of an applicant for an entry permit. He described the ADJR Act as a remedial statute to be given as far as reasonably possible a wide construction and application. In discussion he agreed that s. 3(3) of the ADJR Act did not operate so as to extend the natural meaning of the words "under an enactment"; but operated rather to deem certain conduct to be a decision within the meaning of the Act. He submitted that the response of the Minister following consideration of the application by the applicant for refugee status could be described as the making of a "report" within the meaning of s. 3(3) of the ADJR Act. He submitted the appeal should be dismissed.

I have not attempted fully to recapture all the arguments of counsel.

Counsel did not attempt to explain the processes by which, or the circumstances in which, determinations as to entitlement to a grant of refugee status would have been made, apart from s. 6A. There is no provision in the Aliens Act 1947 or the Migration Act 1958 for the making of a report or recommendation, i.e. as described in s. 3(3) of the ADJR Act, in relation to the determination of status; nor any requirement by the 1951 Convention or 1967 Protocol (they came into force on 22 April 1958 and 4 October 1967 respectively) in terms - (see Handbook on Procedures and Criteria for Determining Refugee Status, (1979), p.86) - that such a determination should be made by the State Parties thereto.

It is not necessary for present purposes to decide how the determination of refugee status is made, but only whether it is a decision within the meaning of the ADJR Act under an enactment, viz. the Migration Act. Yet reference to such considerations may assist.

Counsel for the Minister suggested, but without offering any supporting argument, that the determination was made in exercise of the prerogative power. Some observations on that subject are appropriate.

W.S. Holdsworth in A History of English Law, (1938) vol.10, p. 339 under the heading "The Executive" expressed the view -

"The principal motive force of the executive power in the British Constitution has always been the royal prerogative. This is as true to-day as it was in the eighteenth century."

Holdsworth discussed the history and development of the exercise of the prerogative power in respect of aliens, distinguishing between alien enemies and friends. In relation to the power to expel aliens in the 19th, and possibly the 18th, century Holdsworth stated at p. 398 -

"The better opinion would seem to be that the Crown has no general power to expel an alien; but that it may have a power to expel if an alien enters the country in contravention of a statute, or perhaps of a royal prohibition to enter, or if the Crown has this power by the law of a particular colony."

See also A History of English Law, vol. 6, p. 29 et seq. W.F. Craies in "The Right of Aliens to enter British Territory", (1890) L.O.R. 27 stated at pp. 27-28 -

"By the concession of Representative Government to the Australasian Colonies, to Canada, and to the Cape, the executive functions and the royal prerogative have been to some (though we need not here discuss to what) extent handed over, not to one, but to many executive committees, acting often at a great distance from and always independently of each other."

He was, of course, writing before Federation. He said -

"Except with reference to foreign sovereigns, their ambassadors and their forces, upon a careful historical examination of the subject, there seems to be no prerogative of the Crown either to exclude or expel aliens." (p. 29)

The learned author recorded at p. 36 that Blackstone and Chitty -

". . . . say that the Crown, even at Common Law and by the Law of Nations, has a right to order aliens out of the realm or to keep them out, independently of any Alien Act, at any rate if they be not merchants."

He referred also to the view expressed by Lord Ellenborough in 1816 in the House of Lords that the Crown could expel aliens "without statute". The opinion expressed in Chitty on the Prerogatives of the Crown, (1820), supports this. T.W. Haycraft in "Alien Legislation and the Prerogative of the Crown" (1897) L.O.R. 165 reached the opposite conclusion to Craies, although he recognized the existence of the contrary view. I have found Haycraft's analysis and citation of authority more convincing than that of Craies. I incline to the view that executive power can under the common law extend to some extent to aliens. I do not suggest that the purpose of the preceding discussion and the learned authors' use of the word "aliens" is to contrast the position of those so-called aliens with that of immigrants or non-citizens; rather it is offered as relevant to a consideration of prerogative powers as these may extend, to use neutral terms, to entrants to or intending settlers in Australia (cf: P.H. Lane, The Australian Federal System, 2nd ed. (1979), p. 218).

In Barton v. The Commonwealth (1974) 131 C.L.R. 477 (Barton) at p. 484, Barwick C.J. referred to ". . . . the power of the executive government, in monarchical systems expressed as a prerogative of the Crown . . . ." The Australian Government had presented to the Government of the Republic of Brazil a request to detain the plaintiffs charged in New South Wales with certain offences pending formalities for their extradition to Australia. The judgment of Mason J. contains references to ". . . . the executive or prerogative power of the crown", implying that the terms "executive power" and "prerogative power" refer to similar concepts. See also Farey v. Burvett (1916) 21 C.L.R. 433 per Isaacs J. at p. 452; Johnson v. Kent (1974) 132 C.L.R. 164 where Barwick C.J. at p. 169 speaks of ". . . . traditional executive power broadly embraced in the description of 'the prerogative' . . . ."

In Legislative, Executive and Judicial Powers in Australia, 5th ed. (1976), p. 386 W. Anstey Wynes states -

"The executive power of the Crown rests upon the Prerogative. The distinction between the power of the Crown under statutory authority and the Prerogative proper - i.e., that portion of executive authority resting upon the common law - was adverted to in the Engineers' Case (1920) 28 C.L.R., at p. 143 and where a matter is the subject of legislation the Prerogative is pro tanto abrogated."

An Act empowering a particular action may not be intended to limit an exercise of any existing executive authority. Whether it does so may be a matter of construction of the statute. The prerogative cannot be taken away except by express words (Canadian Pacific Railway v. Toronto Corporation and Grand Trunk Railway of Canada (1911) A.C. 461 at p. 471 et seq.) or by necessary implication (Attorney-General v. De Keyser's Royal Hotel (1920) A.C. 508 at p. 576). Barwick C.J. stated in Barton at p. 488 ". . . the rule that the prerogative of the Crown is not displaced except by a clear and unambiguous provision is extremely strong".

Constitutional competence in respect of a heading of power must exist before there can be executive power. The executive power follows the legislative power (Bonanza Creek Gold Mining Company, Limited v. Rex. (1916) 1 A.C. 566 at p. 580) though it may not be completely restricted thereby. In The King v. Burgess; Ex parte Henry (1936) 55 C.L.R. 608 at p. 642 Latham C.J. said, "The Executive Government of the Commonwealth and the Parliament of the Commonwealth are alike bound by the Constitution . . ." Referring to the prerogative, Jacobs J. in Victoria v. The Commonwealth and Hayden (1975) 134 C.L.R. 338 at p. 405 stated, "Primarily its exercise is limited to those areas which are expressly made the subject matters of Commonwealth legislative power". The Commonwealth of Australia Constitution Act s. 2 provides -

"A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him."

The Constitution conferred upon the Commonwealth powers with respect to inter alia naturalization and aliens, immigration and emigration, external affairs and matters incidental to the execution of any power vested in the Parliament or in the Government (s. 51). By s. 61 the executive power of the Commonwealth was vested in the Crown and is exercisable by the Governor-General. It extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth including the prerogative powers of the Crown accorded to the Crown by the common law (Barton per Mason J. at p. 498).

These references tend to support the view that the prerogative or executive power could have been invoked, if not to expel illegal entrants or non-citizens, at least to decide claims by non-citizens for refugee status, leaving aside the Migration Act. So, if the prerogative or executive power with respect to determining refugee status has not been displaced by legislation, it is within the competence of the Executive to determine that a person has the status of refugee within the meaning of the Convention or Protocol referred to in s. 6A(1)(c). It may well be that the Minister may participate in the exercise of executive power (executive power is exercisable "almost wholly by the Executive Government acting through a responsible Minister"). However, s. 6A(1)(c) does not refer to the determination of refugee status as being pursuant to that power but to an action by the Minister. Ministers of State administer the departments of State of the Commonwealth (s. 64) including that of immigration and ethnic affairs; in doing so, in discharging that duty, they make many rulings, give many directions and no doubt make many decisions. "The function of the Minister is to make decisions on matters of importance" (H.E. Renfree, The Executive Power of the Commonwealth of Australia, (1984), p. 217). Such actions by a Minister are not an exercise of the prerogative, or necessarily made under an enactment.

In my opinion the Migration Act s. 6A(1) does not in terms empower or authorise the making of a decision as to refugee status. This sub-section which came into operation in January 1981 is not couched in terms authorizing or requiring determination as to refugee status by the Executive but only contemplates that such a function may already have been performed by the Minister. It does not, read literally, authorise or require its making. Sometimes the literal reading of words of an act produces "absurdity", "repugnance" or "inconsistency" with the rest of the instrument. In that circumstance a court may decide not to adhere to the grammatical and ordinary meaning of the words. See Grey v. Pearson 6 H.L.C. 61 per Lord Wensleydale at p. 106, cited by Higgins J. in Australian Boot Trade Employes Federation v. Whybrow & Co. (1910) 11 C.L.R. 311 at p. 341. In Inland Revenue Commissioners v. Hinchy (1960) A.C. 748 at p. 767 Lord Reid said -

"What we must look for is the intention of Parliament, and I also find it difficult to believe that Parliament ever really intended the consequences which flow from the appellants' contention. But we can only take the intention of Parliament from the words which they have used in the Act, and therefore the question is whether these words are capable of a more limited construction."

His Lordship came to the conclusion that it was not possible to adopt other than a literal construction of the Act in question. More recently, Gibbs C.J. in Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1980) 147 C.L.R. 297 at p. 305 warned against departing from the ordinary meaning of unambiguous provisions as it might lead judges to put their own ideas of justice or social policy in place of the words of the statute. In his view, if the language of a statutory provision is clear and unambiguous, consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. However, Mason and Wilson JJ. considered there were cases in which inconvenience or improbability of result assisted the court in concluding that an alternative construction which was reasonably open was to be preferred to the literal meaning because it more closely conformed to the legislative intent (see pp. 320-321). To adopt a literal interpretation of s. 6A(1) of the Migration Act is not productive of "absurdity", "repugnance" or "inconsistency", nor "inconvenience or improbability of result". In my view, s. 6A should not be read other than literally. This proposition may be easier to accept if prior to the enactment of s. 6A(1) there existed procedures whereby the Australian Government dealt with questions or determinations of refugee status. In that regard C.L. Avery's article, "Refugee Status Decision-Making: The Systems of Ten Countries" (1983) 19 Stanford Journal of International Law 235 is helpful. He states at p. 246, "In Australia, the Minister for Immigration and Ethnic Affairs is responsible for making determinations of refugee status", citing in support "Note on Procedures for the Determination of Refugee Status under International Instruments", U.N. Doc. A/AC.96/INF.152/Rev.3 7 September 1981 (United Nations High Commissioner for Refugees Executive Committee). In this document, under the heading "AUSTRALIA", it is stated -

"9. The legal basis for the determination of refugee status is:

- Migration Act 1958-1973

Cabinet decisions of 24 May 1977 and 16 March 1978

- Rules of procedure settled by the Determination of Refugee Status Committee on 5 December 1977.

10. The competent authority for the determination of refugee status is the Minister for Immigration and Ethnic Affairs. The applicant for refugee status addresses himself in the first instance to the immigration authorities in his State of residence; he is interviewed under oath by a senior officer of the Department of Immigration and Ethnic Affairs. Copies of the transcript of the interview are made available to the Minister, to the applicant, and to the UNHCR Representative in Australia. The transcript of the interview, together with any additional relevant information, is transmitted for consideration to the Determination of Refugee Status Committee, composed of a representative each of the Department of Immigration and Ethnic Affairs (Chairman), the Prime Minister and Cabinet Department, the Department of Foreign Affairs, and the Attorney General's department. After considering the case, the Committee makes a recommendation to the Minister for Immigration and Ethnic Affairs, who takes the final decision.

11. The above-mentioned rules of procedure do not expressly give a formal right of appeal, but provide that the Minister may refer any case back to the Determination of Refugee Status Committee for reconsideration in the light of additional information."

This suggests an established system operating without explicit statutory provision. It is referred to in Re Tabag and Minister for Immigration and Ethnic Affairs, AAT, 30 March 1982, V150 of 1981 (4 ALN No. 58). In the Note above, the Migration Act included in the legal basis for determination of refugee status, is the Migration Act 1958-1973 which does not contain any reference to determinations of refugee status. Section 6A was inserted by Act No. 175 of 1980 and came into operation in January 1981. Therefore, prior to 1981, determinations as to refugee status, could not be described as decisions "made . . . under an enactment". They would thus have escaped review under the ADJR Act. This material confirms, I suggest, the view that s. 6A(1)(c) sought to, and did no more than recognize, the pre-existence of a formal step by the Minister, implementing Australia's commitment to the Convention and Protocol entirely without recourse to any statutory provision referring to refugee status. The Legislature, which would have been well aware of the procedures outlined in the Note, did not intend, I suggest, the legislation to be read more comprehensively than as drafted, i.e. so as now to authorise or require the Minister to make determinations as to refugee status. Sub-section (1) of s. 6A refers to the 1951 Convention and 1967 Protocol. Implicit in it is that the Parliament already has recognised its obligations in that regard. But, in my view, a determination as to refugee status could well have been made by the Minister or the Executive in response to the Convention or Protocol before s. 6A came into operation. Thus, even on the applicant's case, such a determination would not have been "under an enactment".

If the meaning given "decision" in Director-General of Social Services v. Chaney (1980) 31 ALR 571 per Deane J. at pp. 591 and 593 were adopted the Minister's refusal to grant the applicant refugee status, in my view, would not be a decision reviewable under the ADJR Act. It could not be described as an ultimate or operative decision, finally determining the real issue here, i.e. the right of the applicant to have an entry permit; or the obligation of the appropriate person to grant it. Neither the fulfillment nor non-fulfillment of any one of the pre-conditions enumerated in s. 6A(1) by itself ensures or precludes respectively the grant of an entry permit. However, in Lamb v. Moss (supra) it was said that decisions reviewable under the ADJR Act were not confined to those which finally determined rights or obligations or had an ultimate or operative effect. Accordingly, I feel constrained by this authority not to pursue the view expressed above.

An alternative submission on behalf of the applicant was that the determination of refugee status could be described as a "report" within the meaning of s. 3(3) of the ADJR Act. There is no "provision" in s. 6A or elsewhere in the Migration Act for the making of a "report or recommendation" as s. 3(3) contemplates. That sub-section appears to assume that such a report is to be made -

". . . before a decision is made in the exercise of a power under that enactment."

So far as it is of relevance to say so, in my opinion, there is nothing in the evidence to suggest there has been any "report or recommendation" by the Minister. There is in the evidence some reference to a "recommendation" by the "DORS" Committee; but neither this body nor its recommendations has statutory basis; and, moreover, it is the Minister's decision in respect of which review is sought. Accordingly, even if contrary to my view there was later a "decision . . . made in the exercise of a power under an enactment", there is no provision in the Migration Act for a report or recommendation which could then be deemed to be a decision.

In summary, I have reached the conclusion that there has been no "decision under an enactment".

For these reasons, I propose that the appeal be upheld with costs.

JUDGE3

JENKINSON J. Appeal against an order by Davies J., under s. 13(4A) of the Administrative Decisions (Judicial Review) Act, 1977, declaring the entitlement of the respondent to make a request of the kind which is authorised by s. 13(1) of that Act.

At material times the respondent has not been an Australian citizen, but has been the holder in this country of a temporary entry permit granted under Division 1 of Part II of the Migration Act 1958, and has desired, as I would infer, the grant of an entry permit other than a temporary permit. The following are some of the provisions of that Division:

"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.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (5) An entry permit may be granted to a non-citizen either upon his arrival 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 intended to operate as a temporary entry permit shall be expressed to authorize 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.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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;

(b) he is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit;

(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 Refugees that was done at New York on 31 January 1967;

(d) he is the holder of a temporary entry permit which is in force, is authorized to work in Australia and is not a prescribed non-citizen; or

(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.

(2) An entry permit shall not be granted to a non-citizen in respect of whom the condition specified in paragraph (1)(a) is fulfilled (whether or not any other condition specified in sub-section (1) is also fulfilled in respect of him) otherwise than by the Minister.

(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 authorised by the Minister, by instrument in writing, to be an authorized officer for the purposes of this section.

(4) In sub-section (1) -

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) a reference to a prescribed non-citizen shall be read as a reference to -

(i) the holder of a temporary entry permit who, in connection with his application, or last application, for a visa in respect of his travel to Australia acknowledged, in writing, that he understood and accepted that he would leave Australia on the completion of his studies or training in Australia;

(ii) the holder of a temporary entry permit who is the spouse or a child of a person referred to in sub-paragraph (i) and was granted a temporary entry permit permitting him to enter Australia only by reason that he was the spouse or child of that person; or

(iii) the holder of a temporary entry permit who, immediately before the grant of that temporary entry permit, was a person referred to in paragraph 8(1)(b) or the spouse or dependent relative of such a person.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (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.

7.(1) The Minister may, in his absolute discretion, cancel a temporary entry permit at any time by writing under his hand.

(2) At any time while a temporary entry permit is in force or after the expiration or cancellation of a temporary entry permit, a further entry permit may, at the request of the holder, be granted to the holder and, where such a further entry permit is granted while a temporary entry permit is in force, the further entry permit shall come into force only upon the expiration or cancellation of the existing entry permit.

(3) Upon the expiration or cancellation of a temporary entry permit, the person who was the holder of the permit becomes a prohibited non-citizen unless a further entry permit applicable to him comes into force upon that expiration or cancellation.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.(1) Where a non-citizen who is the holder of an entry permit leaves Australia, the entry permit has no force or effect in relation to him upon or after his re-entry into Australia.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10. A person who has become a prohibited non-citizen ceases to be a prohibited non-citizen if and when an entry permit or further entry permit is granted to him, and not otherwise."

In July 1984 the respondent lodged with the Department of Immigration and Ethnic Affairs a document which was a printed form supplied by the Department, and headed "Application For Refugee Status", and completed in handwriting and signed by him. By letter dated 8 August 1984 to the respondent the secretary to the Department responded in these terms:

"I refer to your request to be granted refugee status in Australia.

The information you have provided in support of your application and claim has been carefully considered by the Determination of Refugee Status (DORS) Committee which has made a recommendation to the Minister for Immigration and Ethnic Affairs.

I am sorry to have to tell you that the Minister has decided that you are not eligible for the grant of refugee status within the terms of the 1951 UN Convention and the 1967 Protocol Relating to the Status of Refugees.

Your application for resident status under S. 6A(1)(e) of the Migration Act is currently receiving consideration and you will be informed of the outcome as soon as possible.

The respondent made a request of the kind which s. 13(1) of the Administrative Appeals (Judicial Review) Act 1977 contemplates, with respect to that which the notice containing the request designated "the decision to refuse refugee status to" the respondent.

Relevant provisions of s. 13 are:

13.(1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

(2) Where such a request is made, the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request.

(3) Where a person to whom a request is made under sub-section (1) is of the opinion that the person who made the request was not entitled to make the request, the first-mentioned person may, within 28 days after receiving the request -

(a) give to the second-mentioned person notice in writing of his opinion; or

(b) apply to the Court under sub-section (4A) for an order declaring that the person who made the request was not entitled to make the request.

(4) Where a person gives a notice under sub-section (3), or applies to the Court under sub-section (4A), with respect to a request, the person is not required to comply with the request unless -

(a) the Court, on an application under sub-section (4A), declares that the person who made the request was entitled to make the request; or

(b) the person who gave the notice under sub-section (3) has applied to the Court under sub-section (4A) for an order declaring that the person who made the request was not entitled to make the request and the Court refuses that application,

and, in either of those cases the person who gave the notice shall prepare the statement to which the request relates and furnish it to the person who make the request within 28 days after the decision of the Court.

(4A) The Court may, on the application of -

(a) a person to whom a request is made under sub-section (1); or

(b) a person who has received a notice under sub-section (3),

make an order declaring that the person who made the request concerned was, or was not, entitled to make the request.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (11) In this section, "decision to which this section applies" means a decision that is a decision to which this Act applies, but does not include -

(a) a decision in relation to which section 28 of the Administrative Appeals Tribunal Act 1975 applies;

(b) a decision that includes, or is accompanied by a statement setting out, findings of facts, a reference to the evidence or other material on which those findings were based and the reasons for the decision; or

(c) a decision included in any of the classes of decision set out in Schedule 2.

It is provided in s. 3(1) that in the Act, unless the contrary intention appears -

"decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Govenor-General or a decision included in any of the classes of decisions set out in Schedule 1."

It was the appellant's submission to Davies J., and to this Court on appeal, that the decision communicated by the secretary's letter was not one made . . . under an enactment" and that for that reason the respondent's application under s. 13 (4A) should be determined by an order declaring that the respondent was not entitled to make the request. But Davies J. declared that he was.

The only enactment suggested as that under which the decision had been made was s. 6A (1)(c) of the Migration Act 1958. That provision is not, according to the appellant's submission, the source of an authority for the making by the Minister of a determination that a person has, or that he has not, the status of refugee. For the reasons which are indicated by Stephen J. in Simsek v. MacPhee (1982) 148 C.L.R. 636 such a determination is one for the Executive Government, and for the Executive Government alone, to make, and the determination in relation to a particular person, if it has been made by the Minister, is taken by s. 6A(1)(c) as a fact by reference to which the legislative provision operates, the appellant submits. The decision which the Minister makes - whether or not a person has refugee status - is therefore not a decision under, or in pursuance of, or authorised by, that enactment, according to the appellant's submission.

The two treaties to which s. 6A(1)(c) refer, and to each of which Australia is a party, have not been the subject of legislation in this country, except to the extent that they may be said to be the subject of that paragraph of the Migration Act. Only by force of legislation can a treaty provision have effect as part of our municipal law: Simsek's Case 148 C.L.R. at 641-642. The Executive Government might have occasion to determine whether a person has the status of a refugee within the meaning of either treaty, for a purpose connected with its observance of the provisions of those treaties. If the Executive Government did make such a determination for such a purpose, that would be an exercise of the executive power of the Commonwealth, the source of which is Chapter II of the Constitution. The Commonwealth Parliament might be enactment attach to the fact that such an exercise of executive power had occurred, or to the fact that the determination made in exercise of the power was to a particular effect, such consequences as it pleased, but the enactment would not provide authority for the making of the determination. The determination would not be a "decision . . . . made under" the enactment. According to the appellant's submission, that is all that s. 6A(1)(c) does: it attaches certain consequences to a particular kind of determination made in exercise of executive power.

It will be observed that s.6A(1)(c) refers, not to the determination of the Governor-General, by whom the executive power of the Commonwealth is exercisable, nor to the Federal Executive Council, in accordance with the advice of which the Governor-General exercises the power, but to the determination of a particular Minister of State, him who has the administration of the Act. Counsel for the appellant was not aware of any circumstances which would provide a reason why that Minister should determine, alone and not as a member of the Federal Executive Council to advise the Governor-General, whether or not a person had the status of refugee within the meaning of either treaty, except in performance of the function contemplated by s.6A(1)(c) for the purpose of determining whether an entry permit other than a temporary entry permit might be granted to that person. Nor was counsel for the appellant aware of any authority, unless it were contained in s.6A(1)(c), for the making by the Minister of an instrument in writing by which he should determine that a person had that status. Section 6A(1)(c) does not merely attach legal consequences to the fact that a particular determination has been made and evidenced by the Minister; it provides, in my opinion, the only authority for the making by the Minister, in his Ministerial capacity, of such a determination. It is, I think, unnecessary to express in this case a concluded opinion whether s.6A(1)(c) imposes on the Minister an obligation to determine whether a person has refugee status when that person, being the holder of a temporary entry permit which is in force and claiming that he has that status, seeks the grant of an entry permit other than a temporary entry permit. As at present advised I should think that it did. In this case it is clear that the Minister did undertake the determination of that question. Section 6A(1)(c) in my opinion provided the only authority for the determination, even if it did not require the Minister to undertake the determination. The decision which the Minister made was in my opinion a "decision . . . . made . . . . under" that enactment, and therefore, in my opinion, a decision to which s.13 of the Administrative Decisions (Judicial Review) Act 1977 applied.

Davies J. held also, as an alternative ground of his order, that the Minister's determination that the appellant had not the status of refugee constituted the making of such a report as falls within the description contained in s. 3(3) of the Administrative Decisions (Judicial Review) Act 1977, and should for that reason be deemed to be the making of a decision. I need express no opinion on that question.

I would dismiss the appeal with costs.