Re Khim Lay Heak v Minister of Immigration, Local Government and Ethnic Affairs [1993] FCA 10; (1993) 39 FCR 535 (1993) 29 ALD 505 (Extract) (29 January 1993)

FEDERAL COURT OF AUSTRALIA

Re: KHIM LAY HEAK
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. N G6 of 1993
FED No. 7
Number of pages - 8
Immigtation - Interlocutory Injunctions
[1993] FCA 10; (1993) 39 FCR 535
(1993) 29 ALD 505 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.(1)

CATCHWORDS

Immigration - "boat people" - construction of s. 54P(3) - requirement that deportation await finalisation of all appeals and reviews includes a right of appeal or review for the exercise of which a reasonable time has not yet elapsed - right of persons claiming refugee status to natural justice.

Interlocutory Injunctions - circumstances in which relief should be granted against deportation pending judicial review proceedings in relation to a denial of refugee status - whether in all cases a serious question to be tried must be shown - whether less will suffice where it is impossible to place the facts adequately before the court in the time allowed.

Word and Phrases - "if any".

Migration Act 1958, s. 54P

Chu Kheng Lim v. Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 110 ALR 97

Stephenson v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 249

Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 at 587

HEARING

SYDNEY
29:1:1993

Counsel for the Applicant: Mr A. Robertson

Solicitors for the Applicant: Messrs Allen Allen and Hemsley

Counsel for the Respondent: Mr S. Gageler

Solicitor for the Respondent: Australian Government

Solicitor

ORDER

The Court orders that:

1. The applicant's notice of motion be made returnable instanter.
2. The respondent and/or his delegates, officers, servants and agents
be restrained pending the determination of these proceedings or
further order from removing from Australia the applicant and any
members of the Collie Group or their dependants unless that person
asks the Minister in writing in pursuance of s. 54P(1) of the
Migration Act 1958 to be removed from Australia.
Note: Settlement and entry of orders is dealt with in Order 36 of the
Federal Court Rules.

DECISION

BURCHETT J. On 6 January 1993, I made an interlocutory order restraining the respondent and others, pending the determination of these proceedings or further order, from removing from Australia the applicant or 41 other persons (as well as additional individuals dependent upon them), on whose behalf she had brought a representative action, unless a person removed asked the Minister in writing in pursuance of s. 54P(1) of the Migration Act 1958 to be removed from Australia. I gave certain directions to facilitate the conduct of the principal proceeding, brought under the Administrative Decisions (Judicial Review) Act 1977 for review of certain decisions of the Minister or his delegate. I reserved my reasons, and I now deliver them.

2. The applicant and the persons she represents (to whom I shall for convenience refer as "the applicants") arrived on the shores of Australia by sea from Cambodia on 2 June 1990. They have been called in the case "boat people", a description which is generally understood as applying to persons who have risked death by piracy, shipwreck, starvation or thirst to escape from certain South East Asian countries in often unseaworthy boats. Whether the motives and circumstances of their escapes make some or all of those persons "refugees" for the purposes of the laws adopted by the Australian Parliament, which may not be the same thing as whether they are refugees under international law or according to United Nations conventions, is a matter of some controversy. That controversy has dragged on for several years, and in the meantime a large number of Cambodians, including the applicants, have been detained in custody at a remote location in Port Hedland in Western Australia. At least some of those persons were for a significant period so detained illegally: Chu Kheng Lim v. Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 110 ALR 97. But since 6 May 1992, compulsory detention of the applicants has been authorised pursuant to division 4B of Part 2 of the Migration Act 1958 ("the Act").

3. Decisions which the applicants challenge, denying their status as refugees and refusing them entry permits, were put into writing on 24 December 1992, but the documents were not placed in the hands of the applicants until 5 January 1993. Until then, even if they were aware of the probable result of their applications, they could not have known the grounds upon which the decisions had been made. To enable steps to be taken to challenge those decisions, instructions had to be obtained in Port Hedland from over 40 persons, many apparently with little or no English, and the documents had to be transmitted back to Sydney to their legal advisers here. The Department of Immigration asserts that it was under a duty to proceed with deportations "as soon as practicable" after the making of the decisions, so it may be assumed that the time taken by it to give the necessary notifications provides a fair indication of the difficulty and delay involved in communication. Yet the Department refused to allow, not only that time, but any time, for consideration of review proceedings. It proposed to deport the applicants as quickly as possible.

4. There is no doubt that such precipitate action, if generally taken in cases of claims of refugee status, might lead, not merely to denials of justice, but to undeserved imprisonment or execution of some deportee who might have been wrongly refused admission and been returned to the country he was fleeing. Therefore it is very important in the interests of justice to the persons involved, and also in the interests of Australia's good name, to determine whether the Department's attitude has any justification in law.

5. The position adopted by the Department was said to be grounded upon the terms of s. 54P(3) of the Act. On the very date of the decisions to be delivered in Port Hedland on 5 January 1993, 24 December 1992, without stating what those decisions were, the Department wrote to the applicants' solicitors in Sydney a puzzling letter to the effect that "final decisions on refugee status in respect of your clients are soon to be made". The letter stated:

"In relation to applicants who are refused refugee status,
arrangements will then be made to remove them from Australia
as soon as practicable. Please note that there is no
undertaking as to giving notice prior to removal. Once the
refusal decision is made, there is a statutory obligation
under subsection 54P(3) of the Migration Act 1958 to remove
the applicant as soon as practicable."

A flurry of correspondence followed, culminating in a letter dated 4 January 1993 from the Department to the solicitors, which included the following:

"You request an undertaking that your clients will not be
removed without at least three business days' notice in
writing and an opportunity to seek legal advice. That
undertaking will not be given. The Department maintains
that once a refusal decision has been made, then subsection
54P(3) of the Migration Act 1958 imposes a statutory
obligation to remove the applicant as soon as practicable.
I cannot give an undertaking which would compromise that
obligation.
Please note, however, that the Department will not prevent
your clients from receiving legal advice prior to their
removal. I understand that a legal representative from the
Refugee Council of Australia will be in attendance when the
applicants are informed of their decisions on 5 January 1993."

Although some very slight amelioration of the Department's position emerged during the course of the proceeding, the stand taken in these letters remained essentially unchanged.

6. Section 54P(3) reads as follows:

"An officer must remove a designated person from Australia as
soon as practicable if:
(a) there has been an entry application for the person;
and
(b) the application has been refused; and
(c) all appeals against, or reviews of, the refusal (if
any) have been finalised."

In that provision, the expression "designated person" is an expression, defined by s. 54K, apparently intended to be confined to "boat people". As to that, see Chu Kheng Lim (supra).

7. When s. 54P(3) is read, full weight must be given to the clear indication in para. (c) that Parliament did not contemplate arbitrary executive action which might deprive persons of rights of appeal or review. The words in parenthesis, "if any", being without a verb, leave something to be understood. In some contexts, the full statement might be: "if any has been instituted by notice of appeal or application for review". But in the context of an essential reservation of rights of appeal and review for the safeguarding of human liberty, what is understood must include a right of appeal or review for the exercise of which a reasonable time has not yet elapsed. It would make a nonsense of para. (c) if its evident purpose (emphasised by the word "all") could be evaded by the making of a decision and the almost simultaneous effecting of a deportation on the footing that a "practicable" flight or sailing was available too soon after the decision for any appeal to be possible. In view of the assertions in the correspondence which I have set out, it is necessary to state plainly that action of that kind would trample on rights which s. 54P(3), on its clear meaning, is intended to preserve. What was said by Deane J. in Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 528-529 (a passage cited with approval in the majority judgment in Chu Kheng Lim (supra, at 107)), about the "plain duty" of an officer of the Commonwealth "to satisfy himself that he is acting with the authority of the law" in directing a person to be taken and held in custody, would apply equally to the taking of a step purportedly based on s. 54P.

8. In this case, evidence has been given that a representative of the Department (described as the "Task Force Leader") told the applicant and others, on 5 January 1993, at the time when they were notified of the rejection of their applications: "Australian law now requires that you depart Australia as soon as practicable." This unqualified statement should not have been made. It ignored the rights of appeal and review referred to in s. 54P(3). This court has more than once pointed out that misleading statements ought not to be made about persons' rights of appeal against executive actions.

9. In the circumstances of this case, the question whether interlocutory relief should be granted to restrain the deportation of the applicants, pending the hearing of their application, can be dealt with quite briefly. I was referred to Stephenson v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 249, a decision of my own, in which mention is made of several of the authorities. I accept as correct, upon the authorities, the view that there are cases where some relief may be granted upon less than a full satisfaction of the normal tests, if it is shown to be impossible to place the facts adequately before the court in the time allowed. But it is not necessary to rely upon that proposition in the present case. At least it may be said that evidence will always be considered by the court in the light of the capacity of a party to adduce evidence upon the particular question. The applicants have put before me, without relevant objection, the fact that certain material which was admittedly before the Minister's delegate, who made the relevant decisions, was not made available to the applicants. They had no opportunity to make submissions to the delegate upon that material. In Kanda v. Government of Malaya (1962) AC 322 at 337, Lord Denning said that "whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other". He added: "The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. ... The risk of it is enough." To this consideration, I held in Colpitts v. Australian Telecommunications Commission (1986) 9 FCR 52 at 71, there should be added that "the duty to accord natural justice is a duty owed, not merely to a party, but to the integrity of the institution of administration".

10. For the Minister, a submission was made that the right to natural justice was limited by Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 at 587 to a right to be given an opportunity to answer "some consideration personal to the applicant". It was said the submission received support from Murugasu v. Minister for Immigration and Ethnic Affairs (Wilcox J., unreported, 28 July 1987). I could find no basis for this claim in the decision, in which it is noted that the substance of information received in the absence of a party was thereafter communicated to him for his comment. So far as concerns the passage in Kioa referred to by counsel, that passage is not dealing with the rights of a party to an inquiry into refugee status, nor with anything of that kind. Such an inquiry presents a plain case for the application of the basic rules of natural justice. There is no principle according to which a "boat person" at an inquiry into refugee status has a lesser entitlement to natural justice than a convict at an inquiry into the question of his release on licence held before a Parole Board: see Regina v. Parole Board, Ex parte Wilson (1992) 1 QB 740 at 750. In Kioa at 587, Mason J. was speaking, by contrast with such inquiries, of "the ordinary course of granting or refusing entry permits". Even so, it is necessary to read the whole passage, and to note the final observation on p. 587, with which may be compared the remarks of the Privy Council in Mahon v. Air New Zealand Ltd (1984) AC 808 at 821.

11. Other points were taken in argument on behalf of the applicants, but I do not think it is necessary to deal with them, since the issue of denial of natural justice does, in my opinion, raise a sufficient question to be tried within the well known principles the authorities for which were cited in Minister for Immigration, Local Government and Ethnic Affairs v. Msilanga [1992] FCA 41; (1992) 34 FCR 169. There can, in this case, be no doubt about the balance of convenience.

12. Accordingly, I granted on 6 January 1993 the interlocutory relief referred to at the commencement of these reasons.