Yoo, K.S. v Minister for Immigration & Ethnic Affairs
[1987] FCA 150
•03 APRIL 1987
Re: PETER CHARLES OSMAN-LLOYD; SHANMUGARAJAH SENATHIRAJAH; MATHIRUBAN
THANENDRAN and ARULPRAGASAM ANTHONIPILLAI
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Nos. WAG35-WAG38 of 1987
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.
CATCHWORDS
Administrative Law - immigration - visitors visas - Sri Lankan Tamils - apprehended at airport - s.36A Migration Act - visas cancelled - application for entry permits refused - notice to airline to return applicants to Sri Lanka - application for refugee status - application refused - Ministerial policy re Sri Lankans - temporary entry contemplated for humanitarian reasons - purported distinction between persons entering Australia and persons held under s.36A - distinction not apparent on face of policy - serious question that relevant factor in possible application of policy overlooked - risk of human rights violation if applicants compulsorily repatriated - request from United Nations High Commissioner for refugees that applicants not be returned because of danger to lives - balance of convenience favouring applicants - interlocutory injunction granted.
Migration Act 1958 s.36A
Administrative Decisions (Judicial Review) Act 1977 s.5
Federal Court of Australia Act 1976 s.23
Faingold v. Zammit (1984) 1 FCR 87
HEARING
PERTH
#DATE 3:4:1987
Counsel for the applicants: Mr H.N.H. Christie instructed by Legal Aid Commission.
Counsel for the Respondent: Ms. C. Francas instructed by Australian Government Solicitor.
ORDER
The respondent by his agents, servants and officers be and is hereby restrained until the determination of the application or until further order from delivering up the applicant to Malaysian Airline Systems for removal from Australia.
The respondent by his agents, servants or officers be and is hereby restrained until the determination of this application or until further order from removing or taking any steps to remove the applicant from Australia.
There be liberty to apply.
Costs reserved.
The application is adjourned for further directions to 7 April 1987 at 11.45 am.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The applicants are Sri Lankan nationals of Tamil origin from the Jaffna District in the north of Sri Lanka.
On 25 March 1987 they arrived at Perth International Airport aboard MAS Flight MH23.
Each had been issued in Colombo with a visitor's visa valid for one month. Such visas were evidently issued under s.11A of the Migration Act 1958.
Upon arrival at Perth Airport they were each interviewed by an Officer of the Department of Immigration and Ethnic Affairs for what is described in an Immigration Inspector's Report as "Assessment of Bona Fides".
The report describes what took place as follows:-
"Osman Lloyd and Anthonipillai stated that they were travelling together but not with the other two whom they claimed not to know. Similarly, Senathirajah and Thanendran were travelling together and stated that they did not know Osman Lloyd nor Anthonipillai.
Each pair approached different primary races.
Passenger cards presented by all four gave the same contact and intended address in Australia. They all claimed that T. Alagandren was their uncle and that he would be at the airport to meet them. The check in the arrival area of the terminal showed that only one Sri Lankan was awaiting passengers on the flight. Initially he refused to talk to me but then gave his name as Sivan Ponnambalan and he was to meet a Mr Rangan off the flight. He also said he had been in Australia for 12 months. The reason I asked him this was because I recognised him, by appearance not the name given, as a Sri Lankan visitor refused entry at Perth Airport approx. 12 mths ago. It was noted that he left the airport just after speaking to me.
I rang the phone number given for the contact in Victoria (306 9701) and spoke to Mr Alagandren. He said that he was expecting some friends from Sri Lanka and "no" he would not be meeting them in Perth. He suggested that I tell them to catch the train to Melbourne.
Each PAX held an open return ticket with Malaysian Airlines for travel Perth/KL/Colombo and was in possession of exactly $US500 in travellers cheques.
They were individually asked if they wished to leave the confines of the airport and enter Australia to which they all replied in the affirmative.
There was little doubt in my opinion that these four passengers did not intend obligating the conditions of their visitor visas. They meet exactly the profile of other Sri Lankan visitors refused entry at Perth in the past, evidence of relatives to substantiate the reason for a V12 visa could not be confirmed and funds were not considered sufficient for the proposed travel and duration of stay.
It was not considered necessary at this stage to contact Colombo office to establish the reasons given for requesting the visas.
Cases referred to Mr Graham Broome AD Citizenship and Control Perth, who directed that entry be refused.
This decision was conveyed to the passengers as were the reasons for the decision. They reiterated their intention to depart from Australia after a short holiday."
The visitors visas issued to the applicants were then cancelled pursuant to the provisions of s.11B of the Migration Act and arrangements were made to hold them at the airport terminal until the departure of the same aircraft on which they arrived.
Each of the applicants was then taken into custody pursuant to s.36A(3) of the Act which provides:-
"(3) Where a person, not being a person exempted, by instrument under the hands of the Minister, from the requirements of Division 1A, 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 authorised officer so directs, be taken into custody at that first-mentioned airport by an officer and kept in such custody, either at that first-mentioned airport or elsewhere, as an authorised officer directs until such time as he is removed from Australia in accordance with sub-section (4) or until such earlier time as an authorised officer directs."
On the same day, pursuant to sub-s.36A(4) of the Act, notices were issued to the Manager of Malaysian Airline Systems at Perth Airport in respect of each of the applicants. Sub-section (4) provides:-
"(4) Where a person is taken into custody under sub-section (1), (2) or (3), an authorised 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 charterer 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."
There is an obligation thereby cast upon the recipient of the notice to comply with it an obligation which is created by sub-s.(5):-
"(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 further period as an authorised 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"
In each case the notice issued specified a period of 72 hours from the date of service on 25 March 1987 for compliance with its requirements.
On the same day Mr Henry Christie, a solicitor employed by the Legal Aid Commission of Western Australia was informed of the events relating to the 4 applicants and attended at Perth International Airport to speak with them.
They informed him that they had come to Australia from Sri Lanka to escape persecution which they claimed they were suffering there and that they wished to claim refugee status. This they said, was the true reason for their coming to Australia and not for the reason which had apparently grounded the grant of their visitors visas namely to visit relatives.
The applications for refugee status were immediately referred to the Determination of Refugee Status Committee in Canberra.
The time limited for MAS to comply with the notices issued under s.36A(4) was evidently extended to 1 April 1987 in order that their applications might be considered by the Committee and if the outcome of that consideration and the consequent ministerial decision were unfavourable, they could be placed on an MAS flight leaving Perth at 4.15 pm on 1 April 1987 for Colombo.
Statements were subsequently taken from each of the applicants and sent by facsimile to the Committee in Canberra.
In the meantime applications for review under the Administrative Decisions (Judicial Review) Act 1977 were lodged on 1 April 1987 and claims for interlocutory relief in respect of each of the applicants, brought on before me as a matter of urgency at 2.30 pm on that day. At that time the outcome of the DORS Committee consideration of their applications was unknown.
It is sufficient for present purposes to say that on that initial hearing I made short term holding orders as follows:-
1. That Mr Henry Giblett an authorised officer of the Department of Immigration and Ethnic Affairs do extend the period within which the airline, Malaysian Airline Systems, may comply with the requirement embodied in the notice dated 25 March 1987 issued pursuant to sub-s.36A(4) of the Migration Act by Mr Malcolm Richardson to midnight on Saturday, 4 April 1987.
2. The respondent be and is hereby restrained from delivering the applicant up to Malaysian Airline System for removal from Australia before 5 pm on Friday 3 April 1987 or such other time as the Court may subsequently order.
3. The motion be adjourned to 4 pm on Thursday 2 April 1987.
4. Costs of today's appearance reserved.
The matter then came on again at 4 pm on 2 April 1987.
At that time there had been filed on behalf of each of the applicants, an affidavit sworn by Mr Christie their solicitor and an affidavit sworn by Mr Henry Arthur Giblett, the officer in charge of the Control Section for the Department of Immigration and Ethnic Affairs in Perth. There had also been previously filed an affidavit by Lucie Elizabeth Robinson the Refugee Co-ordinator for Amnesty International in Perth.
The DORS Committee on 1 April 1987 recommended against the grant of refugee status to any of the applicants.
The decision it was said, was taken:-
"....following consideration of detailed advice and information available to the Committee concerning the general situation prevailing in Sri Lanka and your known particular circumstances in that country as they related to your claim for refugee status."
The Minister's delegate endorsed the Committee's recommendation and agreed that the application for refugee status in Australia be refused.
The Director of Legal Aid of the Legal Aid Commission of Western Australia on 2 April sent by facsimile a letter to the respondent in Canberra in the following terms:-
"I act for the abovenamed and I have been informed that their applications for refugee status have been considered and refused.
Kindly accept this letter as an appeal from that decision.
I am obtaining further information in support of their applications for refugee status and in particular in clarification of the statements contained in the D.O.R.S. interviews and I hope to be able to provide such further evidence and submissions in support within 14 days or within such further time as you allow."
He also wrote on the same day to the Officer in Charge of the Entry Branch of the Department of Immigration and Ethnic Affairs in Perth in the following terms:-
"I act for the abovenamed who, as Sri Lankan nationals of Tamil ethnic origin, seek entry into Australia in order to claim the status of refugees because of their fear of persecution and of danger to their lives in Sri Lanka.
Although I have been informed that their initial claim for refugee status has been refused by the D.O.R.S. Committee an appeal has been lodged from that decision as per the enclosed letter and accordingly application is made on their behalf for Entry Permits into Australia in order that they may be landed in Australia and that their appeal from the original D.O.R.S. Committee decision can be properly heard."
When the matter came on before me at 4 pm on 2 April 1987 no response had been received to that letter.
The decisions of which review is now sought under the amended application are said to be the following:-
"1. The decision of the Minister for Immigration and Ethnic Affairs that the Applicant be refused an entry permit on his arrival in Australia pursuant to Section 6 of the Migration Act.
2. The decision of the Minister for Immigration and Ethnic Affairs that the Applicant be refused an entry permit pursuant to Section 6 of the Act following the Applicant's arrival in Australia and after the Applicant had made application for acceptance as having the status of refugee.
3. The decision of the Minister for Immigration and Ethnic Affairs that the Applicant be prevented from entering Australia pursuant to Section 35 of the Act.
4. The further decision of the Minister for Immigration and Ethnic Affairs that the Applicant be prevented from entering Australia pursuant to Section 35 of the Act after the Applicant had made application for refugee status.
5. The decision of the Minister for Immigration and Ethnic Affairs that Malaysian Airline Systems be required to remove the Applicant from Australia pursuant to Section 36A of the Act.
6. The further decision of the Minister for Immigration and Ethnic Affairs made after the Applicant had made an application for refugee status that Malaysian Airline Systems be required to remove the Applicant from Australia pursuant to Section 36A of the Act.
AND FURTHER the Applicant applies to the Court for an Order of Review in respect of the failure of the Respondent to make a decision following the Applicant's request made on 2 April 1987 for a temporary Entry Permit to enable the Applicant to be landed in Australia so that his appeal from the original decision refusing his refugee status can be properly heard."
The only decisions of which there is at the moment any real evidence before me, are those mentioned in paragraphs 1, 3 and 5 in respect of each applicant. It is in relation to these decisions that I will consider the applicants' claims for interlocutory relief.
It is not contested for present purposes that the decisions are decisions to which the Administrative Decisions (Judicial Review) Act applies nor that the applicants are aggrieved persons in relation to them.
The grounds upon which they seek judicial review of the decision are set out in the amended application as follows:-
"That the making of the decisions were an improper exercise of the power conferred by the Migration Act in that the Respondent or an officer of his Department failed to take relevant considerations into account in the exercise of the power namely -
(i) the agreement made by the Commonwealth of Australia at the request of the United Nations High Commission for Refugees not to require the return of Sri Lankan nationals of Tamil ethnic origin from Australia to Sri Lanka against their will save in exceptional circumstances and until the conditions in Sri Lanka so far as they apply to persons of Tamil ethnic origin improve;
(ii) the policy of the Respondent to permit Sri Lankan nationals of Tamil ethnic origin who have made claims for refugee status to remain in Australia on a temporary basis pending an improvement in the conditions in Sri Lanka save in exceptional circumstances;
(iii)that the effect of refusing the Applicant's entry into Australia will be to force his return to Sri Lanka where he faces the immediate prospect of imprisonment, detention without trial, death or other severe hardship;
(iv) that the Applicant has not been given the opportunity by reason of time to further present his application for refugee status to the authority recognised in Australia as determining such application namely the D.O.R.S. Committee and the Applicant has not been given the opportunity of appeal for the reconsideration of the decision to refuse him refugee status;
(v) the hardship already suffered by the Applicant prior to his arrival in Australia."
The applicants also claim that by holding them in custody away from Perth International Airport pending a decision from the DORS Committee, the respondent has allowed them to enter Australia from where they can only removed by a deportation order pursuant to s.18 of the Migration Act.
This ground relies on the fact that the applicants were for a time kept in custody in Fremantle Prison pending the determination of their applications for refugee status.
However s.36A(8) of the Act provides:-
"A person shall not, for the purposes of this Act, be deemed to have entered Australia by reason only of his being taken from a proclaimed airport for the purpose of being kept in custody at a place outside a proclaimed airport in pursuance of subsection (1), (2) or (3)."
On the face of it therefore, the ground does not appear to raise any serious question for determination. Nor was it pressed with any conviction in argument for the applicants.
Of more importance is the question of the proper application of the ministerial policy relating to the way in which Sri Lankan persons in Australia claiming refugee status should be dealt with. This is the matter which is raised under the ground (ii).
The only evidence of the policy before me was a Departmental Instruction headed "Sri Lankan Case Management" the text of which was as follows:-
"The following policy guidance is provided in respect of Sri Lankan cases presenting at Regional and Area Offices in Australia. Amended guidelines are also being prepared for overseas posts; these will be forwarded to you for information when available.
2. The policy has been endorsed by the Minister and follows consultation between Entry Regulation, Temporary Entry and Instructions, and Refugees and Humanitarian Branches.
. The Minister has directed that the DORS Committee limit its recommendations, in respect of Sri Lankan cases, to the refugee status claim on the basis that DIEA will:-
- draw to the attention of all rejected applicants the provisions of S6A(1)(e) of the Migration Act 1958 and attendant review mechanisms
- DORS Secretariat will despatch replies to applicants and copy to Regional Offices - Section 6A(1)(e) change of status applications by Sri Lankans are to be handled within the regions; queries on particular aspects of any case may be directed to Refugees and Humanitarian Branch
- all applications for resident status from Sri Lankans to be treated sympathetically on a case by case basis - approval would be dependent on applicants' having a demonstrable basis for their fear of return eg ethnicity or suffering as a result of communal violence. (Decision making might be assisted by general reference to overseas practice.) Further guidance will be forwarded to you shortly - 6 months temporary entry permits would be appropriate
- permission to work may be granted depending on the individual circumstances.
. While the majority of Sri Lankan applicants are likely to be of Tamil ethnicity, other ethnic groups from Sri Lanka are not outside these arrangements.
. Normal processing fees apply.
. To avoid any legal problems it is necessary for any Sri Lankans wishing to continue temporary stay in Australia, and able to demonstrate a case to remain, to be in possession of a valid temporary entry permit. Failure to validate stay could have the effect of bringing the individual within the purview of the Minister's policy statement on illegal immigrants as tabled in Parliament on 17 October 1985.
. All existing deportation orders on Sri Lankan nationals are to be reviewed.
- Action in relation to Sri Lankan prohibited non citizens is to be decided by Regional Director against the Government's concern at the human rights situation in Sri Lanka. - It is envisaged that deportation would ensue in circumstances, such as, criminality or other activities incompatible with either Australian community standards or national security concerns.
3. Queries on particular issues may be directed to Enforcement Section or DORS Secretariat, Canberra, as appropriate."
The text of the policy as reported in the instruction is not distinguished by clarity of expression.
What it seems to contemplate is that temporary entry permits for a period of 6 months may be granted to Sri Lankan nationals whose claim for refugee status has been rejected, such permits being granted under para.6A(1)(e) of the Migration Act which provides:-
"An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or other of the following conditions is fulfilled in respect of him, that is to say -
.
.
.
(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."
The policy evidently reflects recognition by the Executive of the current level of civil strife in Sri Lanka, particularly as it affects persons of Tamil origin.
It is not for me in an application for judicial review, to substitute my own views for those of the Executive as to the particular risks to these applicants should they be returned to Sri Lanka.
I consider however that in determining whether the balance of convenience favours the grant of interlocutory relief, I can have regard to the hazards that might face them if repatriated without having fully tested the propriety of the decision making process by which the respondent would seek to return them to Sri Lanka.
Some indication of those hazards is garnered from materials prepared by Amnesty International and exhibited to the affidavit of Lucie Elizabeth Robinson filed in these proceedings.
Included among them is a statement of opposition by Amnesty to refoulment of Tamils to Sri Lanka said to be grounded on the belief that "Tamils forcible (sic) repatriated to Sri Lanka face a substantial risk of becoming victims of human rights violations".
The statement of opposition is dated 20 February 1987.
Given that the balance of convenience would on that basis favour the grant of interlocutory relief, the question is whether there is any serious question to be tried.
I bear in mind that the legislative policy of s.36A under which the applicants are presently being held must be respected.
It is not for this Court to apply the Administrative Decisions (Judicial Review) Act in such a way as to interfere with the legislative intention as expressed in that provision.
As the Full Court said of it in Faingold v. Zammit (1984) 1 FCR 87 at 93:-
"We emphasise that the timetable provided by the section requires action of the most expeditious kind."
Nevertheless the section attracts the exercise of discretions and these discretions must be exercised having regard to relevant considerations.
So too must the discretion to issue or refuse the issue of an entry permit under s.6A of the Act.
In this case the Ministerial policy as expressed in the Departmental instruction already referred to does not as expressed, appear to draw any distinction between Sri Lankans applying for refugee status before or after entry into Australia.
Yet as applied in this case, the departmental officers concerned seem to have proceeded on the basis that the policy which contemplates the grant of temporary entry permits to unsuccessful applicants for refugee status, does not apply to persons who are held in custody under s.36A of the Act.
Counsel for the respondent suggested that the policy did or was intended to make the distinction. If it does, then it is a distinction which does not appear to have any rational basis.
For if so limited, the policy would favour the person who successfully evades detection to enter Australia and becomes a prohibited non-citizen.
The Sri Lankan who comes surreptitiously by boat and lands undetected on Australian shores but is later detected and apprehended, would appear to be able to invoke the policy. His luckless compatriot arriving without concealment on a regular commercial flight and apprehended under s.36A would not.
The distinction as illustrated was, as I understood it, maintained by counsel for the respondent.
I am not satisfied on the materials before me that the policy is intended to have the effect contended for.
That is a matter however which may require the illumination of further evidence.
For present purposes, I am of the view that a serious question is raised whether the policy ought to have been taken into account by the officers of the department and the relevant delegate as a factor relevant to the grant of an entry permit and the exercise of the powers under s.36A.
I therefore intend to grant interlocutory relief in this matter. The grant I think may be authorised by s.15 of the Judicial Review Act in relation to the decisions under s.36A and otherwise by s.23 of the Federal Court of Australia Act.
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