Zhang v Minister for Immigration, Local Government and Ethnic Affairs

[1993] FCA 715

ZHANG DE YONG v MINISTER OF IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WG215 of 1992
FED No. 715
Number of pages - 25
Administrative Law - Practice and procedure - Res Judicata
(1993) 118 ALR 165

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
FRENCH J.

CATCHWORDS

Administrative Law - judicial review - natural justice - oral hearings - application for refugee status - administrative review of refusal - procedure - whether oral hearings required for all cases - variability of content of rules of natural justice - balancing of private interests and public costs.

Practice and Procedure - representative proceedings - judicial review - definition of "group" - whether adequate - single issue - extended res judicata - risk of injustice to group members - declaration on issue - proceedings otherwise determined as group proceedings.

Res Judicata - representative proceedings - extended principle of res judicata - representative proceedings on single issue - risk of injustice to group members - declaration on issue - proceedings otherwise determined.

Spencer Bower and Turner, The Doctrine of Res Judicata (1969) 2nd Edition

de Smith's, Judicial Review of Administrative Action 4th Edition (1980)

Wade, Administrative Law 5th Edition (1982)

Sykes, Lanham and Tracey, General Principles of Administrative Law 2nd Edition (1984)

Federal Court of Australia Act 1976

Administrative Decisions (Judicial Review) Act 1977 s.15

Judiciary Act 1903 s.39B

Migration Act 1958 (Cth)

Migration (1993) Regulations

Federal Court of Australia Act Amendment Act 1991 s.33C

The Duke of Bedford v. Ellis (1901) AC 1

Markt and Co. Ltd v. Knight Steamship Co. Ltd (1910) 2 KB 1021

Mercantile Marine Service Association v. Toms (1916) 2 KB 243

Hardie and Lane Ltd v. Chiltern (1928) 1 KB 663

Jones v. Cory Bros and Co. Ltd (1921) 56 L Jo 302

J. Bollinger v. Costa Brava Wine Co. Ltd (No. 2) (1961) 1 WLR 277

H.P. Bulmer Ltd and Showerings Ltd v. J. Bollinger SA (1978) RPC 79

Prudential Assurance Co. Ltd v. Newman Industries Ltd (1981) 1 Ch 229

EMI Records Ltd v. Riley (1981) 2 All ER 838

Port of Melbourne Authority v. Anshun Pty Ltd (1981) 147 CLR 589

Naken v. General Motors of Canada Ltd (1983) 144 DLR 385

Cooper v. Federal Reserve Bank of Richmond 104 S Ct 2794 (1984)

EEOC v. Childrens Hospital Medical Centre 702 F.2d 188 (9th Circuit)

Johnson v. General Motors Corporation 598 F 2d 432 (5th Cir 1979)

Jackson v. Goldsmith (1950) 81 CLR 446

Henderson v. Henderson (1843) 3 Hare 100

Cox v. Dublin City Distillery Co. Ltd (No. 3) (1915) 1 IR 345

Cox v. Dublin City Distillery Co. Ltd (No. 3) (1917) 1 IR 203

Salemi v. MacKellar (No. 2) (1977) 137 CLR 396

R. v. MacKellar; Ex parte Ratu (1977) 137 CLR 461

Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487

Russell v. Duke of Norfolk (1949) 1 All ER 109

R v. Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546

National Companies and Securities Commission v. The News Corporation Ltd (1984) 156 CLR 296

Kioa v. West (1985) 159 CLR 550

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

Immigration and Naturalization Service v. Stevic (1984) 467 US 407

Immigration and Naturalization Service v. Cardoza-Fonseca (1987) 480 US 421

R v. Home Secretary; Ex parte Sivakumaran (1988) AC 958

Rajudeen v. Minister for Employment and Immigration (1985) 55 NR 129

Local Government Board v. Arlidge (1915) AC 120

Jeffs v. New Zealand Dairy Production and Marketing Board (1967) AC 551

FAI Insurances Ltd v. Winneke (1982) 151 CLR 343

State of South Australia v. O'Shea (1987) 163 CLR 378

Daguio v. Minister for Immigration and Ethnic Affairs (1987) 71 ALR 173

Re Singh and Minister of Employment and Immigration (1985) 17 DLR (4th)

Re Conway and Attorney-General for Ontario (1992) 86 CLR (4th) 655

Goldberg v. Kelly 397 US 254

Mathews v. Eldridge 424 US 319 (1976)

HEARING

PERTH, 30 and 31 August 1993

#DATE 6:10:1993

Counsel for the Applicant: Dr. J.L. Cameron

Solicitors for the Applicant: Patrick J. Gethin

Counsel for the Respondent: Mr S. Owen-Conway QC and Mr P. Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDER

A. Unless otherwise ordered on or before 20 October 1993:

1. In respect of persons who have sought determination of their status as refugees pursuant to the Migration Act 1958 and whose applications have been refused since 4 March 1992 and who have sought review by the respondent of the decision to refuse their applications and who, following review by the Refugee Status Review Committee, have on or before 30 June 1993 again been refused IT IS DECLARED that the respondent has not failed to comply with the requirements of natural justice by reason only of the failure to adopt a practice of offering to each such person the opportunity of an oral hearing by the delegate of the respondent making the review decision.

2. Pursuant to s.33N(1) of the Federal Court of Australia Act the proceeding not continue as a representative proceeding under Pt. IVA of the Act.

3. The application of the applicant be dismissed.

4. The applicant pay the respondent's costs of the application. B. The parties have liberty to apply by a motion returnable on 19 October 1993 at 9am for orders additional to or in lieu of those set out in paragraph A. of this Order.

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

JUDGE1

Introduction

FRENCH J On 23 July 1990, Zhang de Yong applied to the Minister for Immigration, Local Government and Ethnic Affairs for a determination that he is a refugee. His application was refused on 2 March 1992 and again, after a reconsideration, on 11 December 1992. Although he was interviewed on two occasions by officers of the Department, he contends that natural justice required that he be given the opportunity of an oral hearing by the delegate who made the final decision in his case. This contention is the particular application to his case of a more general submission that every person who applies for refugee status is entitled, at least when an initial refusal to grant refugee status is reviewed, to an oral hearing by the delegate who is to make the final decision. Accordingly, Mr Zhang brings these proceedings as representative proceedings under Pt. IVA of the Federal Court of Australia Act 1976 on behalf of all persons who have applied for and been refused refugee status since that Part came into effect in March 1992. Each of those persons, it is said, should have been offered the opportunity of an oral hearing by the decision-making delegate upon the review of an initial refusal to grant refugee status. It is not in dispute that while administrative policy in the Department of Immigration and Ethnic Affairs does not preclude the possibility of an oral hearing by the relevant delegate, that opportunity is not offered as of right.

1. The application raises a question of the content of the rules of natural justice in the determination of applications for refugee status. It also raises an issue of some importance, which was not canvassed at trial, about the effect on individual group members of the determination of a single issue in representative proceedings.

Factual Background
3. Zhang de Yong is a citizen of the Peoples Republic of China. In 1990 he travelled by boat to Australia as a stowaway, arriving in Port Hedland on 27 June 1990. He was apprehended upon his arrival and on 9 July was interviewed at the Immigrant Detention Centre in Perth. He claimed that, owing to his participation in demonstrations in Shanghai in May 1989, he feared capture by the authorities. He had fled to Australia in May 1990 after a period in hiding in Nanjing. A business associate, he said, had arranged for him to stow away on a ship from Nanking. On 23 July 1990, Mr Zhang lodged an application for refugee status with the Department of Immigration, Local Government and Ethnic Affairs. In the application, he claimed to have "quarrelled and argued" with the leadership in his work place over the last twenty years "on political grounds". As a result of this, he had suffered a reduction in pay and had had various restrictions placed on him and been watched wherever he went. In May 1989, he had made a large donation to the democratic movement. This act was regarded by the government in China as a counter-revolutionary action. He claimed that if he were to return to China he would be punished for his activities as would his wife who is still in China. He had left his country because of his resentment and discontent with the government there.

1. At a further interview conducted at the Perth Immigration Detention Centre on 4 August 1990, Mr Zhang claimed that before 1976, during the Cultural Revolution, he had been arrested and detained about three times for periods of one, two and three months for arguing with a Communist Party official in the factory where he worked over the sackings of fellow workers. In 1978 and 1979, he was refused resources and benefits at work such as allowances and clothing. Following a "major argument" with the Chief of the District in 1984 or 1985, he suffered discrimination in business. In 1989, he had given speeches in his home and occasionally in the street where he lived in Shanghai about his dissatisfaction with the policies of the Government of the Peoples Republic of China. This, he said, was his contribution to the pro-democracy demonstrations in 1989. A friend, Mr Singh Wang, was arrested for giving a similar speech. Because he left China without authority, he fears that he will be punished on his return. Mr Zhang submitted additional comments on 17 February 1992. He said that despite an outstanding work performance he had not obtained the national wage rise in 1980 because the leadership regarded him as "politically dangerous". He said he had made an attempt to escape to Hong Kong in August 1980, but had abandoned that. He also said that his anti-government views had attracted the attention of the authorities who would put him to death for his part in a march, in fund raising activities and for expressing views in opposition to the government.

2. Mr Zhang's application for refugee status was refused on 2 March 1992. On 25 June 1992, he lodged an application with the Department seeking administrative review of the decision. He was regarded as being out of time with the review application and a deportation order was made against him on 10 August 1992. After representations on his behalf on 29 September, it was agreed that the case would be re-examined. Mr Zhang was advised accordingly on 8 October. Additional material put before the Department in the meantime included reference to the execution or imprisonment of persons who took part in anti-government demonstrations in China. The vulnerability of those involved in demonstrations, in other than prominent leadership roles, was also adverted to. On 26 August 1992, Mr Zhang had written to the Minister advising that he had received a letter from his mother in Shanghai which stated that in view of his treason, the government had struck his name from the census and that his identity and benefits had been forfeited. His wife was said to have divorced him and that, having severed all relations with his family, he could not now return. In a submission to the Minister's office of 3 October 1992, the Minister was informed that a few days after 4 June 1989 six participants in the pro-democracy movement had been shot.

3. On 9 October 1992, Mr Zhang raised the following additional matters:
   

1. His father who died at the end of May 1989 had been persecuted by the Communist Party in China for many years.

2. Many dissidents had been shot, but not the more famous ones.

3. Because he had worked for the Kuo-Min-Tang (KMT) in Western Australia he could face a 15 year prison sentence should he return to China.

4. On 9 August 1992, Mr Zhang had participated in a World Freedom League anti-communist rally in Perth.

In a further submission dated 25 November 1992, Mr Zhang said:

1. His case should be considered on cumulative grounds as the Department had accepted the credibility of several of the factual claims he made.

2. A recent Human Rights delegation from Australia had claimed that the human rights situation in China had not improved. He contended that the Department could not guarantee that the ill-treatment he had received in the past would not happen again.

3. He was not questioned or detained in the year following the pro-democracy demonstrations because the Authorities were busy investigating the key leaders. The investigations did not stop and during 1990 dissidents continued to be arrested.

4. Mr Zhang had been drawn to the attention of the Authorities because of his speeches and his name went before a Residents Committee in his area in China.

5. The United States Department of State Country Reports on Human Rights for 1991 had confirmed that China punishes common participants in the pro-democracy movement more heavily than leaders. Many leaders were sent overseas under the protection of the United States, while many common participants were executed or given long term imprisonment.

6. The Department of Foreign Affairs and Trade in Beijing had stated the Authorities there almost certainly would regard the act of applying for refugee status as a betrayal of the motherland. They would be aware of Mr Zhang's escape, his application for refugee status and his involvement with the KMT. There are, he said, informers in Western Australia who collect information about Chinese people overseas.

7. Mr Zhang said he had omitted to give an account of his unsuccessful escape to Hong Kong in his first interview because he did not deem it to be the main reason for applying for refugee status.

8. In August Mr Qing Jian Dong, a non-political Chinese person, had returned to China and was imprisoned for nine days. Police retained all his identification, he lost his citizenship, and he only survives because of money sent to him from Australia.

1. Other material before the decision-maker included the United States Department of State Country Reports on Human Rights Practices for 1991 at pp 811 to 833. The report confirmed the claim that workers are more likely to be sentenced to prison, re-education through labour, or execution than were students and intellectuals. It asserted that the Chinese Government accepts repatriation of citizens who have departed China without authorisation, in most cases apparently without punishing them. The Chinese Government had also officially advised that investigations into those responsible for and participating in the 1989 demonstrations were "completed". Various cables from the Department of Foreign Affairs and Trade in Beijing were also relied upon. These suggested, inter alia, that a claim for refugee status by a person departing China without authorisation did not appear to be regarded as a circumstance requiring harsh treatment for that reason alone.

2. On 11 December 1992, Mr Ron Gent, a delegate of the Minister, wrote to Mr Zhang advising that he had considered the application for refugee status and Mr Zhang's submission of 25 November 1992. He said:
   

"I have determined that you are not a refugee within the meaning of the 1951 United Nations Convention and the 1967 Protocol relating to the Status of Refugees."

1. It is not in dispute that Mr Zhang was interviewed by an officer of the Department of Immigration, Local Government and Ethnic Affairs at the Detention Centre in Perth in July 1990 and again on 4 August 1990. An interpreter was present on each occasion. In his evidence Mr Zhang suggested that the interpreters spoke Cantonese rather than Mandarin. He does not speak Cantonese. He was born in Shanghai and speaks Mandarin. In cross-examination he was shown a record of the interview conducted on 4 August 1990 which was sent to him some 24 days after the interview. He signed the bottom of each page of that document which recorded, inter alia, that the interview was conducted through the use of Mr Kwan Yan Lim, a Mandarin interpreter. Certainly so far as the August interview is concerned, I consider it highly improbable that the record of interview tendered in evidence could have been produced other than through an interpreter capable of communicating with Mr Zhang. It is not in dispute that he was not afforded the opportunity of an oral interview with the delegate, Mr Gent, who made the final determination on the review of his application for refugee status. On the other hand, the evidence does not support a finding that Mr Zhang would have been able to put any additional factual material to Mr Gent in an oral hearing that had not already been put to the Department in the various letters and submissions and the two oral interviews to which reference has been made.

2. On 23 December 1992, Mr Zhang filed an application under s.15 of the Administrative Decisions (Judicial Review) Act 1977 and s.39B of the Judiciary Act 1903 "as a representative party". Without referring to the various vicissitudes that attended the formulation of the application, including an application, which was dismissed, for leave to appeal to the Full Court on interlocutory rulings made by Lee J, it is sufficient to say that a re-amended application was settled in the course of the hearing in terms of a consent order made on 2 September 1993 after the hearing had concluded.

The Application
11. The application is brought by Mr Zhang as a representative party. The group members to whom the proceeding relates are said to be persons present in Australia:

(a) who have sought recognition of their status as refugees within the meaning of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol;

(b) whose applications have been refused since 4 March 1992; and

(c) who have sought review of the decisions to refuse their applications and where following review by the Refugee Status Review Committee a further decision has been made on or before 30 June 1993 again refusing their application ("the Review Decision").

1. By the application, Mr Zhang challenges decisions made by the respondent's review delegates whereby members of the group were refused refugee status. The single ground of the application that now remains is that the respondent, in refusing the claims of members of the group, breached natural justice and procedural fairness by failing to offer the members of the group the opportunity in every case of an oral hearing by the respondent's review delegates as the ultimate decision-makers in support of their applications. Orders are sought that the Review Decisions be set aside and that an injunction be granted restraining the respondent from taking any action adverse to the interests of any member of the group and, in particular, from taking any action to remove any member of the group from Australia in reliance upon or pursuant to any Review Decision. Alternatively, injunctive relief is sought under s.39B of the Judiciary Act 1903 to like effect.

The Issues
13. The issues in this case are:

1. Whether natural justice requires that an applicant for refugee status whose application has been refused at first instance and who seeks administrative review of the application be afforded the opportunity of an oral hearing before the delegate who makes the decision on the review.

2. Whether those who have sought review of decisions to refuse their applications, and whose applications have been refused on review, constitute a group of persons who have claims arising out of the same, similar or related circumstances so as to support a representative action on behalf of the members of the group.

Statutory Framework
14. The provisions of the Migration Act 1958 (Cth) governing the determination of refugee status are to be found in Division 1AA which was inserted in the Act by Act No. 84 of 1992. Section 22AA is the locus of the relevant statutory power:

"22AA. If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee."

By s.4 the Act adopts the definition of "refugee" which appears in Article 1 of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol. The procedure for determination of refugee status is prescribed in the Regulations and provision for such prescription is made in s.22AB:

"22AB(1) The regulations may:

(a) provide that a person may apply for a determination under section 22AA that he or she is a refugee; and

(b) prescribe procedures for the consideration of such an application.

(2) Without limiting subsection (1), the regulations may:

(a) provide for the applications to be made in an approved form; or

(b) prescribe time limits relating to the application."

Only persons who are in Australia can be determined to be refugees. In this respect s.22AC provides:

"22AC. This Division does not:

(a) entitle a person who is outside Australia to apply for a determination that he or she is a refugee; or

(b) authorise a determination that a person who is outside Australia is a refugee."

Section 22AD relieves the Minister of any obligation to consider an application in circumstances which are not material for present purposes. It also provides that applications may be considered and disposed of in such order as the Minister considers appropriate.

1. Internal review of certain decisions is provided for in s.115 of the Act which authorises regulations relating to the review of ministerial decisions, officers to conduct such reviews, the manner and form of applications for such reviews and the persons who may apply for such reviews. It is not disputed that prior to 1 February 1993, neither the Act nor the Regulations made any explicit provision for review of decisions refusing refugee status. Since 1 February 1993, the Migration (1993) Regulations have provided a right of review to the Minister from decisions refusing refugee status. Since 1 July 1993, Part 4A of the Act has provided for review by the Refugee Review Tribunal of primary decisions refusing refugee status.

2. Prior to the enactment of the Federal Court of Australia Amendment Act 1991, representative proceedings in the Federal Court were regulated by O.6 r.13 which, in terms reflective of the Rules of the Supreme Court in England and the rules of the various State Supreme Courts, provides, inter alia:
   

"13(1) Where numerous persons have the same interest in any proceeding the proceeding may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them."

A more broadly based class of representative proceeding is authorised by Part IVA of the Federal Court of Australia Act 1976 which was enacted with effect from 5 March 1992 by the Federal Court of Australia Act Amendment Act 1991. The minimum number of persons covered by a representative proceeding and the necessary connections between their claims are specified in s.33C:

"33C(1) Subject to this Part, where:

(a) 7 or more persons have claims against the same person; and

(b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

(c) the claims of all those persons give rise to a substantial common issue of law or fact;

a proceeding may be commenced by one or more of those persons as representing some or all of them. 33C(2) A representative proceeding may be commenced:

(a) whether or not the relief sought:

(i) is, or includes, equitable relief; or

(ii) consists of, or includes, damages; or

(iii) includes claims for damages that would require individual assessment; or

(iv) is the same for each person represented; and

(b) whether or not the proceeding:

(i) is concerned with separate contracts or transactions between the respondent in the proceeding and individual group members; or

(ii) involves separate acts or omissions of the respondent done or omitted to be done in relation to individual group members."

The standing of an individual to commence a proceeding on his or her own behalf confers the standing necessary to commence a representative proceeding on behalf of the others referred to in s.33C(1)(a) - see s.33D. Save for certain exceptions which are not material for present purposes, there is no requirement for the consent of a person to be a group member in a representative proceeding (s.33E). The Act requires that an application commencing a representative proceeding, or a document filed in support of such an application, must describe or otherwise identify the group members to whom the proceeding relates, specify the nature of the claims made on their behalf and the relief claimed and specify the questions of law or fact common to their claim. This does not mean that it is necessary to name or specify the number of the group members (s.33H). There is a right on the part of group members to opt out and the Court is required to fix a date before which a member of a group may opt out by written notice (s.33J). The Court is empowered on application made by the representative party to give leave to amend the application commencing the representative proceedings so as to alter the description of the group (s.33K). Various circumstances arise under which the Court may order that a representative proceeding no longer continue as such. This may be done where it appears likely to the Court that there are fewer than seven group members (s.33L) or where the Court concludes that it is likely that if judgment were to be given in favour of the representative party, the costs to the respondent of identifying group members and distributing amounts ordered to be paid to them would be excessive having regard to the likely total of those amounts (s.33M). Generally where it is in the interests of justice to do so, the Court is empowered under s.33N to direct that proceedings no longer continue under Pt. IVA. As reference will be made to this section later in these reasons, it is convenient to set it out in full:

"33N(1) The Court may, on application by the respondent or of its own motion, order that a proceeding no longer continue under this Part where it is satisfied that it is in the interests of justice to do so because:

(a) the costs that would be incurred if the proceeding were to continue as a representative proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding; or

(b) all the relief sought can be obtained by means of a proceeding other than a representative proceeding under this Part; or

(c) the representative proceeding will not provide an efficient and effective means of dealing with the claims of group members; or

(d) it is otherwise inappropriate that the claims be pursued by means of a representative proceeding. 33N(2) If the Court dismisses an application under this section, the Court may order that no further application under this section be made by the respondent except with the leave of the Court. 33N(3) Leave for the purposes of subsection (2) may be granted subject to such conditions as to costs as the Court considers just."

Where an order is made that a representative proceeding no longer continue as such, it may be continued as a proceeding by the representative party on his or her own behalf and particular group members may be joined as applicants in that proceeding (s.33P). By s.33Q, if it appears to the Court that determination of the issue or issues common to all group members would not finally determine the claims of all group members, the Court may give directions in relation to the determination of the remaining issues. The powers of the Court in awarding final relief in a representative proceedings are set out in s.33Z which provides, inter alia:

"33Z(1) The Court may, in determining a matter in a representative proceeding, do any one or more of the following:

(a) determine an issue of law;

(b) determine an issue of fact;

(c) make a declaration of liability;

(d) grant any equitable relief; .

.

.

(g) make such other order as the Court thinks just."

The effect of a judgment given in a representative proceeding is provided for in s.33ZB:

"33ZB. A judgment given in a representative proceeding:

(a) must describe or otherwise identify the group members who will be affected by it; and

(b) binds all such persons other than any person who has opted out of the proceeding under s.33J."

Departmental Practices and Procedures
17. Practices and procedures adopted by the Department of Immigration, Local Government and Ethnic Affairs in the processing of applications for refugee status were outlined in an affidavit of Robert Illingworth, which was not disputed by counsel for Mr Zhang. Mr Illingworth is the Director of the Planning and Resources Section of the Determination of Refugee Status Program Support Branch of the Onshore Refugee Division of the Department. Over the period since 1990 there has been a rapid increase in the number of refugee status applications received by the Department. In 1989 there were 1,148 applications, in 1990, 11,335, and in 1991, 12,809. This increase in the number of applications significantly extended their average processing time, and in particular the time between the lodgment of an application and the commencement of its assessment. The number of decisions made was not able to keep up with the number of applications made. In 1989, 397 decisions were made, in 1990, 292 decisions and in 1991, 1,698 decisions were made.

1. The process for determining refugee status applications operates in two stages, a primary decision-making stage and a review stage. Where an application is refused at the primary stage, an applicant may apply to have that decision reviewed administratively by the Refugee Status Review Committee. That Committee then makes a recommendation which is considered by another delegate who makes a fresh decision on whether or not to approve the refugee status application. I interpolate that in the case of Mr Zhang, his application for review did not go before the Committee but was dealt with directly by Mr Gent. This may have had something to do with the fact that his application for review was regarded as being out of time. In Mr Gent's statement of reasons for decision which were sent to Mr Zhang on 11 December 1992, it was said:
   

"...it was agreed that the delegate would re-examine the case to determine whether the applicant should be granted refugee status."

1. The procedures for determining refugee status applications at the primary decision-making stage from August 1991 until 18 May 1992 were as follows:
   

1. An applicant for refugee status would complete an application form for the grant of refugee status and lodge it with the Department.

2. The applicant could apply to the Department for permission to work pending the outcome of the application. Approval was predicated on the strength of the applicant's claims to refugee status.

3. Officers in a "streaming unit" in the Department would undertake a preliminary evaluation of the strength of each application.

4. Where an application was believed to have merit, it was "streamed in" and a green dot attached to the file cover indicating that it had been identified as meriting interview and that permission to work would be granted.

5. A refugee status application considered to be manifestly unfounded was "streamed out" and an orange dot attached to the file indicating that it was identified as not meriting interview. A decision on permission to work was deferred for consideration by officers whose task was the full assessment of the application.

6. After initial processing by the Streaming Unit, all refugee status applications were assigned to a delegate who would in turn assign each file to a particular case officer or alternatively keep some files for himself or herself. Only officers at the level of Senior Officer Grade B and Senior Officer Grade C had delegations to decide refugee status applications. Interviewing of applicants was largely, but not exclusively, carried out by officers of the Administrative Service Officer Classes 6, 5 and 4, working for the delegates.

7. The green and orange dot designations were not regarded as binding on either the delegate or the case officer. Either the delegate or a case officer would examine the application and would then make a decision whether or not the applicant was to receive an interview. The file of any applicant to receive an interview would be given a green dot. If it were decided not to interview an applicant whose file bore a green dot, then the colour code would be changed to orange and vice versa if it were thought an interview appropriate on a file bearing an orange dot.

8. Where a delegate or case officer decided that an applicant should be interviewed, a letter would be sent requesting the applicant to contact the Department to arrange an interview time. After an interview or a decision that an interview was not necessary, a delegate could approve the application. A decision record would be prepared for the file and a letter sent to the applicant advising of the decision.

9. Where the case officer or delegate was of the view that the application should not be approved, a draft assessment of the applicant's case would be prepared and sent to the applicant for written comment. The draft assessment would contain a summary of the applicant's claims and set out the reasoning and information being relied upon by the decision-maker and would indicate the nature of the decision the decision-maker was inclined to make. A period of 21 days was allowed for comment except for applicants in detention who were allowed a shorter period.

10. At the expiry of the time allowed for comment, or earlier if the applicant were not able to be contacted, the case would be re-evaluated in the light of any material supplied by the applicant or any changed circumstances in the country of origin. A delegate could then decide on a need for more information, or an interview, or further interview, with the consequent issue of a new draft assessment for comment. Alternatively, the delegates could proceed to determine the application for refugee status. All unsuccessful applicants would be advised of the decision by letter and be sent the final decision record summarising their claims and setting out the information and reasoning used by the delegate. The letter would explain that they had a right of review by the Refugee Status Review Committee.

11. The process set out above was also followed in determining an applicant's eligibility for the grant of a Four Year Domestic Protection (temporary) Entry Permit, which is the formal mechanism for affording protection to refugees in Australia. Delegates for refugee determination also held the delegation to refuse applications for such permits and would do so if rejecting an application for refugee status, except in cases where the applicant had no right of review of the permit rejection decision. In such cases, a decision would be deferred on the permit application pending the exhaustion of review opportunities for the decision on the application for refugee status.

1. Some procedural changes in respect to particular groups of applicants occurred in February 1992. Four ASO 6 officers were delegated to make decisions on refugee status applications in order to deal with applicants from a boat named "Isabella". There were 56 applicants in that group who were interviewed by their decision-maker. Refugee status applications by applicants from the Peoples Republic of China were identified in February 1992 as having significant similarities, ranging from the use of similarly worded passages to reliance on claims which were identical except for the personal details of the applicant. Mr Illingworth's section was nominated as a reference point for notifying these pro forma applications.

2. From 18 May 1992, new procedures were adopted in accordance with the recommendations of an Inter Departmental Committee which examined the primary decision-making stage of the assessment process and made a report to the Government. The new process for primary decision-making involves the following steps:
   

1. Applicants, other than border claimants and persons arrested as illegal entrants, would continue to complete the standard application form requiring them to set out the basis of their claim in some detail.

2. All applicants but the most clearly unfounded or abusive would be interviewed.

3. Prior to interview a case officer, who would also be the decision-maker, would investigate claims set out in the application form.

4. The applicant would be provided with advice in the form of a pro forma stating what to expect at an interview and what materials should be brought to the interview.

5. At the interview the applicant would be required to provide information.

6. The case officer would use the interview to explore details of the claim and to put adverse information and assessments to the applicant.

7. At the conclusion of the interview the applicant would be required to indicate whether the interview had covered all material he or she wished to advance in support of the application.

8. At the same time the applicant would be advised in writing that there was a period of five working days to make any further response to comments made by the interviewing officer at interview in respect of any of the claims advanced in support of the application for refugee status.

9. If new information, other than a response to adverse material exposed in the interview, were subsequently provided prior to a decision being taken, the applicant would be required to state why that information was not tendered at an earlier stage.

10. The need for written exposure of adverse material after interview might arise in a limited number of situations. This could arise:

(a) where new information was provided at the interview on which the case officer was not able to act at the time;

(b) where new information was provided after the interview by the applicant and it was necessary to expose the case officer's reaction;

(c) where the case officer had developed new material adverse to the claim after the interview.

Some letters and documents were issued from 7 April 1992 in accordance with the recommendations in respect of applicants scheduled for interview after 18 May. The pro forma letters and documents to be used with these interviews reflect the new procedures proposed in the Inter Departmental Committee Report. From 18 May 1992, the disclosure of a written draft assessment for written comment was abandoned as the method for seeking a response from the applicant to relevant and adverse material. Applicants were now required to sign a statement at the conclusion of the interview that they had made known in full their claims for refugee status in Australia. The stricter requirement for refusing interview, namely that an application be "clearly unfounded or abusive" was implemented from 7 April 1992. It has resulted in a much larger proportion of applicants being offered interviews than was the case before hand.

1. By delegations which took effect on 18 May 1992 and 30 July 1992, the delegation to make decisions on refugee status applications was extended to all ASO 6 level positions in the Onshore Refugee Division of this department. At 30 July 1992, there were 103 officers actually occupying ASO 6 positions in the Division. The number of such officers in the Division as at 28 May 1993 was 176. As a result of the implementation of these procedures, the separate streaming process carried out by the Streaming Unit was wound up.

2. In June 1992, draft guidelines were issued within the Department for the conduct of interviews under the new processing system. They were and still are used as the guidelines for conducting interviews. They set out detailed formats for the conduct of interviews and the processes for disclosure of relevant adverse information for comment at interviews. The assessment of refugee status applications "on the papers" is also governed by draft guidelines, which were issued within the Department on 2 July 1992. The two sets of draft guidelines are part of a Draft Procedures Manual which was circulated to all operations branch staff on 2 July 1992 under cover of a minute of the same date. The Manual has been, and still is, used as the basis for the processing and determination of refugee status applications as a final version has not yet issued.

3. On 16 July 1992, a guideline was issued for determining when refugee status applicants should be interviewed. The guideline was in the following terms:
   

"To all Section Heads

DORS Operations

WHEN DORS APPLICANTS SHOULD BE INTERVIEWED Although I have clarified this point directly with some staff at the recent top-up interview training sessions I think it is important that our understanding of this important issue is quite clear. Those cases which would previously have been streamed manifestly unfounded in an attempt to separate weak, overstated or implausible claims now fall into the should be interviewed category. The purpose of the interview is to collect and test facts and to reduce the need for paper argument as was the case in the earlier natural justice phase. Those applications where convention related claims may be subsequently presented on paper should be interviewed as the first and standard step. Although this may appear initially to increase the time spent on any case, analysis of the two procedures indicates that cases can be determined in one step and in a shorter timeframe. Additionally, as case officers are becoming more comfortable with the process the overly long interviews appear to be reducing both in time and number. In summary:

All DORS applicants should be interviewed except those who:

. have lodged an abuse application - i.e incomplete, untraceable address . are nationals of a safe ie Western Democratic country.

. put no Convention related claim Where applicants are not interviewed only adverse information is put to the applicant (procedural fairness) prior to a decision being made (after a further 15 working days) and dispatched. The earlier procedure of sending out a negative assessment for natural justice comment is now abandoned. John Forster

Assistant Secretary

DORS Operations

16 July 1992"

A further minute dated 2 December 1992 from Mr Forster dealt generally with the completion of assessment/decision records. It incorporated, as an attachment, his earlier minute of 16 July 1992 on the question when applicants should be interviewed. On 1 February 1993, new regulations came into effect which made statutory provision for various time limits allowed to applicants to provide additional information when requested to do so at the primary and review stages. Those regulations applied to refugee status applications made on or after 1 February 1993. According to Mr Illingworth, it is not unusual for a primary decision-maker to interview an applicant in respect of whom he or she is making a decision. Interview by Senior Officers is, however, not common. Although they are delegates, Senior Officers also have management responsibilities and trained case officer staff are available within their sections to undertake delegated tasks such as interviews. Mr Illingworth himself has undertaken only two interviews at the primary stage. Since 18 May 1992, the proportion of interviews by delegates making primary decisions has increased substantially because of the additional ASO 6 officers who were given delegations in May and July 1992. Nevertheless, some interviews are still conducted by case officers at the ASO 4 and ASO 5 level.

1. The procedure for the review of primary decisions refusing refugee status applications has remained largely unchanged from the time when Mr Illingworth commenced with the DORS Branch in August 1991. All persons whose applications are refused are given the right to seek review of the primary decision by a Refugee Status Review Committee. Each such Committee comprises a chairperson from the Department and representatives from the Attorney-General's Department and the Department of Foreign Affairs and Trade. There is also a community representative nominated by the Refugee Council of Australia. A representative of the office of the United Nations High Commissioner for Refugees attends Committee meetings as an observer. The Committee has only recommendatory powers and the matter then goes to a delegate to make the review decision. In practice, most review decisions are made by Senior Officer delegates. The review of primary decisions refusing refugee status applications is subject to Ministerial Guidelines. Ministerial Guidelines were issued on 15 April 1991 and remained in effect until October 1992 when they were replaced by a new set of Guidelines. The April 1991 Guidelines determined the composition and procedures of the Refugee Status Review Committee. Clause 5 of the April 1991 Guidelines said, inter alia:
   

"5. Proceedings

The Committee will examine each case on its merits. The Committee will not take oral evidence from applicants or their representatives. The DORS Branch in DILGEA has the responsibility for preparing and presenting cases to the Committee. The DORS Branch in DILGEA has ultimate responsibility for co-ordinating all relevant information to be placed before the Committee.

The Committee may defer consideration of cases to obtain additional evidence. Committee members are to ensure that additional case information they require is identified and, where appropriate, provided to the RSRC Secretariat before Committee consideration of that case.

The Committee shall reach a decision in a particular case by a majority vote. In the event of a tied vote, the recommendation shall be that refugee status be granted."

The Guidelines of October 1992 contain the same prohibition on oral interviews by the Committee.

1. In practice the Refugee Status Review Committee considers each application for review and develops recommendations which are considered by a delegate of the Minister in reaching a review decision. A case officer is assigned a review case schedule for a Committee meeting. He will assess the review case, undertake any further research required, and prepare a detailed brief for a delegate who will chair the Committee during its consideration of the case. On the question of the restriction on an interview, Mr Illingworth said, in his affidavit:
   

"44. The Ministerial Guidelines do not envisage applicants being afforded the opportunity for an oral hearing before the RSRC. Rather the RSRC operates by evaluating each case on the papers and taking into account any new claims, argument or information advanced in the application for review. Where RSRC members consider that further information is required, either through interview or other enquiry, they can either give the applicant the benefit of the doubt and vote in favour of refugee status, abstain from voting or argue the case in Committee for obtaining such information.

45. Where the RSRC recommends against grant of refugee status or the delegate is minded to refuse refugee status, the reasons and information on which the RSRC's recommendation and the delegate's inclination to refuse are based are disclosed to the applicant in writing and comment is invited. A period of 21 days, changed to 15 working days in July 1992, is allowed for an applicant to make comments. Shorter time limits are allowed for applicants who are in custody...."

1. At the conclusion of the period for comment, the application, the assessment and the recommendations of the Committee and any response from the applicant is considered by a review delegate. The delegate who makes the primary decision is never the delegate who makes the review decision. Generally, more senior officers make the review decisions. In the period from 1 March 1992 to February 1993, there were four Refugee Status Review Committees in operation. Each was supported by a section in the Division which provided Senior Officers to chair meetings. Until February 1993, review delegates were generally drawn from these sections. From February 1993, two additional Committees were established and responsibility for supporting the six Committees was assigned to six of the nine Canberra-based DORS Operations Branch sections of the Department. From March 1992 to April 1993 there were a total of 1,148 review decisions made by delegates in the Onshore Refugee Division. There were at least two cases within the period 4 March 1992 to 7 May 1993 where the review delegate personally interviewed the applicant. Both cases involved significant new information coming to light at the review stage. Review decision-makers evidently regard it as open to them to seek any further information they consider necessary in reaching their decisions. This includes the conduct of interviews personally should they think it appropriate. They have said to Mr Illingworth that it would be exceptional that they would find a review case referred to them warranting an interview by the delegate personally. Mr Illingworth says that from his own experience, he knows that applicants at the review decision stage have already had a number of opportunities to advance and clarify claims and to respond to relevant information, both in writing and often orally at interviews. The assessment of their cases has been scrutinised at several stages and by different individuals in the progression of their application through the primary and review stages. In addition, where an applicant is interviewed at the primary stage, the tape recording of the interview is kept on the applicant's file and is available to the delegate when making his or her review decision. In one case, a Review Committee considered that fine judgment was necessary about an applicant's credibility and asked that the delegate rather than a case officer undertake an interview. This request was acceded to. There have been some 40 cases where interviews have been held at the review stage, either at the recommendation of the Committee or on the sole judgment of the delegate. In each of those cases the interview was conducted by an officer other than the delegate who made the review decision. There is no guideline or instruction which prevents a review delegate from personally conducting an interview with an applicant where it is considered that an interview at the review stage should take place. Mr Illingworth says it is a matter of discretion for the delegate making the review decision. It is fair to say, however, that on the evidence, it is clear that the discretion is not often exercised in favour of an interview at that stage.

The Representative Nature of the Proceeding
28. The application is brought by Mr Zhang as representative of a group defined as persons present in Australia:

1. Who have sought recognition of their status as refugees.

2. Whose applications have been refused since 4 March 1992.

3. Who have sought review of the decisions to refuse their applications and whose applications have on or before 30 June 1993 again been refused after review by a Refugee Status Review Committee.

It seems that, strictly speaking, Mr Zhang was not a member of the group defined in the re-amended application, his application for refugee status having been reviewed without reference to a Refugee Status Review Committee. But that point is not taken and in any event, the element of review by a Refugee Status Review Committee is not critical to the definition of the group for the purposes of these proceedings.

1. It was submitted for Mr Zhang that the assertion of a right to procedural fairness is a claim within the meaning of s.33C of the Federal Court of Australia Act 1976. The fact that each member of the group has sought refugee status and that each has been subjected to assessment procedures without being offered as of course an oral hearing by the decision-maker was said to be a common circumstance for the purposes of the section. All members of the group were said to have a common interest in seeking judicial review of the policy whereby no oral hearing by the decision-maker is offered as of course. The procedure of which the group members complain was said to be the same in each case, although the facts of the cases to which it applies vary.

2. The Minister contended that the application of the alleged policy would only result in a breach of the rules of natural justice if the circumstances of the case required an oral interview. It follows, it was said, that there would only be a common question of law in relation to those members of the group whose circumstances are such as to require an oral hearing by the decision-maker. The application, it was said, does not plead any facts which identify any members of the group as having such circumstances. There is no common issue of law or fact. The only thing that members of the group have in common is that they are all applicants for refugee status. It was also submitted that a claim for relief under the Administrative Decisions (Judicial Review) Act 1977 is, by its nature, a personal claim. Unless there are exceptional and compelling circumstances, an applicant for refugee status will not be able to claim relief on the basis of a breach of the rules of natural justice as a result of there being no oral hearing before the ultimate decision-maker. The re-amended application, it was said, does not plead any facts or circumstances which establish that any members of the group have claims within the meaning of s.33C of the Federal Court of Australia Act 1976. Before dealing with these submissions it is helpful to consider the background and nature of the representative proceedings authorised by Part IVA.

3. Prior to the enactment of Part IVA, the range of cases in which representative proceedings could be instituted was limited by the requirement of O.6 r.13 that persons represented, whether as applicants or respondents, should have "the same interest" in the proceeding. Order 16 r.9 of the Rules of the Supreme Court (Eng) was the statutory ancestor of O.6 r.13. It was made after the enactment of the Judicature Act 1873 and intended to apply Chancery practice to all divisions of the High Court of Judicature. Lord Macnaghten in The Duke of Bedford v. Ellis (1901) AC 1 described Chancery practice as requiring the presence of all parties interested in the matter in suit "in order that a final end might be made of the controversy" (at p 8). The inconvenience of joining everybody interested as a party where their numbers were numerous was overcome by the representative action:
   

"Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent."

He rejected any limitation of the representative procedure to parties with a common proprietary interest. Lord Morris agreed (at p 13) and Lord Shand expressed similar views. The Court of Appeal evidenced a less liberal spirit in Markt and Co. Ltd v. Knight Steamship Co. Ltd (1910) 2 KB 1021, holding that the post-Judicature Act rule was to be considered according to its terms and not merely as a vessel conveying Chancery practice to the common law courts. Fletcher Moulton LJ concluded that the representative action was not available where relief was claimed by way of damages. For in such a case, the plaintiff's claim was for "personal relief, applicable to him alone" (at p 1035). The presence of a "common question of law or fact" which would support a joinder of action was not sufficient to meet the requirements of the rule (at p 1030 per Vaughan Williams LJ). Other case law of the time suggested that the procedure was not available for claims for damages in tort - Mercantile Marine Service Association v. Toms (1916) 2 KB 243; Hardie and Lane Ltd v. Chiltern (1928) 1 KB 663 at p 687. However, a representative action claiming a declaration for breach of statutory duty by a colliery owner was permitted in Jones v. Cory Bros and Co. Ltd (1921) 56 LJo 302 although a claim for damages in the same case was not allowed. So too, representative actions in passing off, claiming declaratory and injunctive relief were permitted in J. Bollinger v. Costa Brava Wine Co. Ltd (No. 2) (1961) 1 WLR 277 and H.P Bulmer Ltd and Showerings Ltd v. J. Bollinger SA (1978) RPC 79. In his discussion of these cases in Prudential Assurance Co. Ltd v. Newman Industries Ltd (1981) 1 Ch 229 at p 253, Vinelott J observed, in relation to Jones v. Cory Bros and Co. Ltd (supra), that:

"Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear."

See also Toohey J at p 406 and Gaudron J at p 415. A fear of persecution is well founded if there is a "real chance" that the applicant would be persecuted for a Convention reason if returned to his or her home country (at 389 Mason CJ, 398 Dawson J, 407 Toohey J and 429 McHugh J). The need to assess the subjective state of the applicant's mind as well as the factual foundation for the claimed fear is reflected in decisions in other jurisdictions; e.g. Immigration and Naturalization Service v. Stevic (1984) 467 US 407; Immigration and Naturalization Service v. Cardoza-Fonseca (1987) 480 US 421; R v. Home Secretary; Ex parte Sivakumaran (1988) AC 958 and Rajudeen v. Minister for Employment and Immigration (1985) 55 NR 129. It was submitted that there is a reasonable expectation that the review process will involve a thorough and comprehensive re-examination of the claimed "well-founded fear of persecution". The rules of natural justice, it was said, require the highest standard of procedural fairness in their application to the determination of refugee status. While it was accepted by counsel for Mr Zhang that procedural fairness does not always require an oral hearing, it was said that the determination of refugee status requires issues of credibility to be resolved by the ultimate decision-maker as to whether a fear of persecution is held and as to whether that fear is well-founded. This was said to necessitate an oral hearing by that decision-maker.

1. It is a requirement of procedural fairness, where it applies, that the person to be affected by an official decision have an opportunity to be heard before the decision is made. That requirement does not universally mandate an oral hearing by the decision-maker or any other person reporting or recommending to the decision-maker. In de Smith's, Judicial Review of Administrative Action 4th Edition (1980) at p 195, the distinction is drawn between the procedures of the courts and those of administrative decision-makers. There are principles fundamental to the conduct of proceedings in Court which are "not firmly embedded in the fluid audi alteram partem rule". Thus:
   

"...there are administrative contexts where contested issues are determined by an anonymous and unidentified adjudicator on the basis of written submissions or where the hearing has been conducted by a person other than the officer who makes the decision, or where facilities for legal representation and cross-examination have been lacking, but where the procedure has nevertheless been held to conform to the requirements of natural justice. It is often possible to comply with the audi alteram partem rule in administrative law without incurring any risk of being mistaken for a participant in proceedings before a court of justice."

See also Wade, Administrative Law 5th Edition (1982) at pp 482-483. The administrative burdens that might be imposed by a requirement that the decision-maker afford a hearing to the person to be affected by the decision were recognised by the House of Lords in Local Government Board v. Arlidge (1915) AC 120 at 133. The decision-making body in that case was not bound to afford an oral hearing provided that it gave opportunities to the party affected to put matters to the appropriate officials. In the Court of Appeal, Hamilton LJ had characterised the question whether the deciding officer should hear the applicant audibly or through the medium of written statements as a matter of "pure procedure". That characterisation was accepted by the Privy Council in Jeffs v. New Zealand Dairy Production and Marketing Board (1967) AC 551 at 568 and applied to the process of appointing a person to hear and receive evidence and submissions for the purpose of informing the Board. Viscount Dilhorne, delivering the judgment of their Lordships, however, imported a reservation when he said:

"This procedure may be convenient when the credibility of witnesses is not involved..." (emphasis added)

1. According to the circumstances of the case, fairness may require an oral hearing where inconsistencies between information available to the decision-maker and the written submissions of the person concerned cannot otherwise be resolved. So much was implicit in the observations of Aickin J in Heatley v. Tasmanian Racing and Gaming Commission (supra) at 516 (Stephen and Mason JJ agreeing). The delegation of the hearing from the decision-maker to the responsible officers was accepted in respect of Cabinet decisions in FAI Insurances Ltd v. Winneke (1982) 151 CLR 343 at 356 (Stephen J), 366 (Mason J), 384 (Aickin J) and 400 (Wilson J). See also State of South Australia v. O'Shea (1987) 163 CLR 378 at 388. While the last two cases involve Cabinet as the decision-maker, they support the more general proposition that practical considerations in the way of oral hearings by decision-makers are relevant to the question whether they are required as an element of procedural fairness. It has been held, invoking Local Government Board v. Arlidge (supra), that the rules of natural justice do not require an oral hearing to be granted in all cases of applications for entry permits by prohibited non-citizens - Daguio v. Minister for Immigration and Ethnic Affairs (1987) 71 ALR 173 at 179 (Ryan J).

2. In Re Singh and Minister of Employment and Immigration (1985) 17 DLR (4th) 422, the Supreme Court of Canada considered the question whether procedures for dealing with applications for refugee status complied with s.7 of the Charter of Rights which provides that:
   

"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

The procedures in that case provided for oral examination on oath with written transcripts to be presented to the decision-makers. Wilson J, with whom Dickson CJC and Lamer J concurred, observed at 465 that even if "hearings" comprising written submissions were consistent with the principles of natural justice for some purpose, they would not be satisfactory for all purposes:

"In particular, I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing." (at p 465)

Wilson J referred to the sensitivity of appellate courts to the weakness of written transcripts where questions of credibility are at stake and their reluctance to review the findings of tribunals which have not had the benefit of hearing the testimony of witnesses in person:

"I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions." (at p 465)

It was accepted by Wilson J, however, that the absence of an oral hearing need not be inconsistent with fundamental justice in every case - see also Re Conway and Attorney-General for Ontario (1992) 86 DLR (4th) 655 at 665-667.

1. The rules of procedural fairness are analogous in some respects to the requirement of due process of law embodied in the Fifth and Fourteenth Amendments to the United States Constitution. The necessity for oral hearings in certain classes of administrative decision has been asserted as an element of due process. In Goldberg v. Kelly 397 US 254 (1970), the Supreme Court required such hearings before cancellation of welfare benefits; Justice Brennan wrote:
   

"The opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard. It is not enough that a welfare recipient may present his position to the decision-maker in writing or second hand through his case worker. Written submissions are an unrealistic option for most recipients, who lack the educational attainment necessary to write effectively and who cannot obtain professional assistance. Moreover, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mould his argument to the issues the decision-maker appears to regard as important. Particularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision. The second hand presentation to the decision-maker by the case worker has its own deficiencies; since the case worker usually gathers the facts upon which the charge of ineligibility rests, the presentation of the recipients side of the controversy cannot safely be left to him. Therefore a recipient must be allowed to state his position orally. Informal procedures will suffice; in this context due process does not require a particular order of proof or mode of offering evidence..."

However in Mathews v. Eldridge 424 US 319 (1976), the Court held that an evidentiary hearing was not required before termination of social security disability benefits. Social security disability claims, it was said, were based on "routine standard and unbiased medical reports by physician specialists". Such reports were viewed as generally reliable and lessening the need for an oral hearing. Factors relevant to the content of procedural due process were:

1. The private interest affected by the official action.

2. The risk of an erroneous denigration of such interest through the procedures used and the additional value of substitute safeguards.

3. The government's interest, including the financial and administrative burdens involved.

These cases are discussed in One Last Battle - Reform of Veterans' Administration Claims Procedure (1988) 74 Virginia Law Review 937 at 956 et ff.

1. The analogy between natural justice and due process is adverted to in Sykes, Lanham and Tracey, General Principles of Administrative Law 2nd Edition (1984) at p 149 where a balancing process is advocated which takes account of the importance of the private interests affected against the cost to government of providing the safeguard which is sought. In this process, it becomes necessary to make some attempt to rank the private interests affected. Value judgments must be made of the importance of the private interest affected by the decision on the one hand and the burden to the administrative process of adopting a particular set of procedures on the other. These are factors generally not capable of quantification and, in any event, qualitatively different. As is pointed out in Sykes, Lanham and Tracey in their discussion of the assessment of costs to government of providing a procedural safeguard:
   

"Cost is not measured simply in financial terms although this is obviously an important factor. The time involved and the number of administrative personnel needed to process cases must also be considered. It may well be possible to provide oral hearings to all applicants for welfare benefits but to do so would necessitate huge increases in departmental staffing with attendant increases in wage and accommodation bills and the risk of longer periods between application and determination of claims. These resources may be better employed in increasing the amount or range of existing benefits."

1. The procedures used in the processing of applications for refugee status relevant to this case have already been set out at some length. They are applied in the context of a high and increasing volume of applications. It is the fact also that applicants are often interviewed by an officer of the Department who makes a recommendation to the decision-making delegate. It is, however, rare for a decision-making delegate to afford an oral hearing to an applicant. The determination of an application for refugee status involves decision-making of high importance to the person affected and to Australia's standing in the community of nations. In assessing the sufficiency of procedures applied in that process against standards of procedural fairness, it is necessary to take into account the private interests involved and the international significance of the decisions taken. In some cases the decisions may literally have life or death consequences for the person affected. On the other hand, there will be cases in which persons seeking to take advantage of the process make claims which are untenable because they do not disclose one or more of the elements necessary to support a claim of refugee status. It may be the case, for example, that the claims made fail to disclose any objective basis for fear of persecution for a Convention reason. Where that is clear and the inquiry process leaves no room for misunderstanding or ambiguity, there is a case for expeditious disposal, so that resources necessary to deal speedily with arguable applications are not diverted for longer than is necessary on those applications which are unarguable. On the other hand, procedural fairness will require that the inquiry process allow for the difficulties of language and communication inherent in the subject matter of such applications, and no doubt in many cases compounded by the uncertainties and stress suffered by individual applicants. Interview processes which involve the use of interpreters and the checking of written records of interview are calculated to meet with some of those difficulties.

2. This case is not an occasion for a general review, criticism or endorsement of the merits of the administrative procedures used by the Minister's delegates and officers. The Court has no direct knowledge of the resource implications of particular procedures, nor of the resources available to the Department to implement them. Oral hearings by the ultimate decision-makers could be provided for all applicants using the simple artifice of increasing the number of persons with appropriate delegations. However it may be, and there is some hint of this in the evidence, that such a solution would also put the final decision-making responsibility in the hands of more junior and less experienced officers than those who currently hold delegations. In my opinion, courts should be reluctant to impose in the name of procedural fairness detailed rules of practice, particularly in the area of high volume decision-making involving significant use of public resources. Although there has been considerable development in the area of procedural fairness since the decision of the House of Lords in Local Government Board v. Arlidge (supra), there is still much to be said for the observation of Lord Shaw at p 138 where, speaking of the need for administrative authorities to act honestly and by honest means, he said:
   

"In regard to these certain ways and methods of judicial procedure may very likely be imitated; and lawyer-like methods may find especial favour from lawyers. But that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation. And the assumption that the methods of natural justice are ex necessitate those of Courts of justice is wholly unfounded."

Accepting that the present age of extensive government regulation and wide ranging executive involvement in the lives and activities of citizens has elicited a less deferential attitude on the part of the courts to the executive than used to be the case, there is nevertheless a balance to be struck between the roles of the respective arms of government.

1. In my opinion, the present case has disclosed no basis for the imposition of a requirement that an opportunity for an oral hearing should be offered to any person applying for refugee status. That is not to be taken as an endorsement of the present practice. It may be that, with respect to the provision of oral hearings by decision-making delegates, it is too restrictive and that the nature of the judgments involved requires a more liberal approach. However, that question can be worked out on a case by case basis. In my opinion, the applicant fails on the issue on which these proceedings have been brought to Court. I would add that in the particular case of Mr Zhang, I am satisfied that there is no evidence that he has been treated otherwise than in accordance with the requirements of natural justice.

2. This leaves the question of the appropriate orders for the disposal of these proceedings. I propose to make orders in the terms set out in the minute of order attached to these reasons with liberty to the parties to apply to vary them as to substance or expression in accordance with these reasons.