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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
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
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] HCA 45; (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 [1979] USCA5 1028; 598 F 2d 432 (5th Cir 1979)
Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446
Henderson v. Henderson [1843] EngR 917; (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] HCA 26; (1977) 137 CLR 396
R. v. MacKellar; Ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461
Heatley v. Tasmanian Racing and Gaming Commission [1977] HCA 39; (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] HCA 10; (1969) 122 CLR 546
National Companies and Securities Commission v. The News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296
Kioa v. West [1985] HCA 81; (1985) 159 CLR 550
Chan v. Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Immigration and Naturalization Service v. Stevic (1984) 467 US 407
Immigration and Naturalization Service v. Cardoza-Fonseca [1987] USSC 32; (1987) 480 US 421
R v. Home Secretary; Ex parte Sivakumaran [1987] UKHL 1; (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] HCA 39; (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 [1970] USSC 68; 397 US 254
Mathews v. Eldridge [1976] USSC 20; 424 US 319 (1976)
HEARING
PERTH, 30 and 31 August 1993Counsel 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 theirNote: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
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.
DECISION
Introduction2. 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.
4. 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.
5. 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.
6. On 9 October 1992, Mr Zhang raised the following additional matters:
1. His father who died at the end of May 1989 had been persecutedIn a further submission dated 25 November 1992, Mr Zhang said:
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.
1. His case should be considered on cumulative grounds as the7. 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.
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.
8. 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 within9. 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.
the meaning of the 1951 United Nations Convention and
the 1967 Protocol relating to the Status of Refugees."
10. 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 within12. 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 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").
The Issues
13. The issues in this case are:
1. Whether natural justice requires that an applicant for refugeeStatutory Framework
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.
"22AA. If the Minister is satisfied that a person is aBy 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:
refugee, the Minister may determine, in writing, that
the person is a refugee."
"22AB(1) The regulations may:Only persons who are in Australia can be determined to be refugees. In this respect s.22AC provides:
(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."
"22AC. This Division does not: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.
(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."
15. 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.
16. 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 interestA 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:
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."
"33C(1) Subject to this Part, where: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:
(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."
"33N(1) The Court may, on application by theWhere 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:
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."
"33Z(1) The Court may, in determining a matter in aThe effect of a judgment given in a representative proceeding is provided for in s.33ZB:
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."
"33ZB. A judgment given in a representativeDepartmental Practices and Procedures
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."
18. 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-examine19. The procedures for determining refugee status applications at the primary decision-making stage from August 1991 until 18 May 1992 were as follows:
the case to determine whether the applicant should be
granted refugee status."
1. An applicant for refugee status would complete an application20. 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.
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.
21. 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 asSome 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.
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.
22. 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.
23. 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.
24. 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 HeadsA 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.
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"
25. 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. ProceedingsThe Guidelines of October 1992 contain the same prohibition on oral interviews by the Committee.
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."
26. 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 envisage27. 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.
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...."
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.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.
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.
29. 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.
30. 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.
31. 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, aHe 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:
representative suit was in order if the relief sought
was in its nature beneficial to all whom the plaintiff
proposed to represent."
"...declarations would leave it open to any workmanThe difficulty with allowing a representative claim for damages in tort was that it might confer on a member of the class represented a right which could not be claimed in a separate action or might bar a defendant from asserting a defence which might have been raised in separate proceedings. A later decision, however, permitted a damages claim in representative proceedings where a global figure for the claim could more conveniently be ascertained than each class member's interest - EMI Records Ltd v. Riley (1981) 2 All ER 838.
employed at the colliery on the specified date or any
of them to sue and to rely on the declaration as res
judicata, and to recover damages on establishing that
he refused to go to work by reason of the breach of
statutory duty by the employer."
32. In the Prudential Assurance case, it was considered that a representative
action could properly be brought for declaratory relief
based on the
commission of a tort and that the declaration could give rise to a res
judicata in respect of a subsequent separate
action for damages. The possible
impact on representative actions of the doctrine of res judicata and the
extended principle discussed
in Port of Melbourne Authority v. Anshun Pty Ltd
[1981] HCA 45; (1981) 147 CLR 589, however, requires careful consideration. In the Second
Edition of Spencer Bower and Turner, the Doctrine of Res Judicata (1969)
at
para.231, it is pointed out that, in the case of a representative action, a
judicial decision inter partes operates as an estoppel
in favour of or so as
to bind all members of the class whom a party purports to represent or all
persons who have given their consent
to be bound by the result. The operation
of the doctrine was discussed by the Supreme Court of Canada in Naken v.
General Motors
of Canada Ltd (1983) 144 DLR 385. The action was for breach of
collateral warranty by a manufacturer of a particular model of automobile and
claimed a fixed sum of
$1,000 damages for each member of the class, being
purchasers of the vehicles in 1971 and 1972. It was brought under r.75 of the
Rules of Practice of the Supreme Court of Ontario which substantially
reflected the terms of O.16 r.9 of the Rules of the Supreme
Court of the
United Kingdom. Holding that the action could not be framed as a
representative action under r.75 but must proceed
as a joined action brought
by several named plaintiffs, Estey J, who delivered the judgment of the Court,
said:
"The operation of the defence of res judicata has aThe issue has arisen in class actions in the United States under Rule 23 of the Federal Rules of Civil Procedure. The doctrine of res judicata has been held to apply to Title VII Anti-Discrimination actions - 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 [1979] USCA5 1028; 598 F 2d 432 (5th Cir 1979). See also Bodensteiner, Application of Preclusion Principles to S.1983 Damage Actions after a Successful Class Action for Equitable Relief (1983) 17 Valparaiso Law Rev. 347; Hulsmore, EEOC v. Childrens Hospital Medical Centre - The Res Judicata Effect of a Class Action Consent Decree on the Title VII Rights of Future Employees Included in the Class. (1985) 1 Journal on Dispute Resolution 121. See also Rice - 26 South Texas Law J 614; Hunter (1980) 11 St. Mary's Law J 1023; Collins (1985) 27 Boston College Law Rev 173.
long history in our courts, and no authority was drawn
to the attention of the court wherein a court ignored
such a plea in the case of a class action. It is true
that there is a discretion in the courts where the
defence of res judicata is raised, but such a
discretion must be very limited in application...Rule
75 is silent as to the issue, and, failing some
specific provision by statute, regulation or
otherwise, the defence of res judicata would continue
to apply. The fact that the action may be in contract
of one kind or another would appear to represent no
basis for the selective application of the defence of
res judicata. If the courts were to adopt a principle
whereby class actions estopped participants from
future action only to the extent of claims made in the
class action, one of the root purposes of the class
action would be defeated. The inherent benefit of the
representative action sadly produces this serious side
effect. This is no doubt the most important factor
which excited legislatures elsewhere to action in
defining and describing this action and its conduct."
(at p 406-407)
33. The rule as to res judicata in Australia was restated by Fullagar J in
Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at p 466 in a passage approved in the
joint judgment of Gibbs CJ, Mason and Aickin JJ in Port of Melbourne Authority
v. Anshun (supra)
at p 587. Fullagar J had said:
"where an action has been brought and judgment has beenThe doctrine of res judicata is extended by the principle in Henderson v. Henderson [1843] EngR 917; (1843) 3 Hare 100 at p 115, cited in Anshun at p 598:
entered in that action, no other proceedings can
thereafter be maintained on the same cause of action.
The rule is not, to my mind, correctly classified
under the heading of estoppel at all. It is a broad
rule of public policy..."
"where a given matter becomes the subject of litigationThis principle seems to have been applied in a case analogous to a representative action by Palles CB in Cox v. Dublin City Distillery Co. Ltd (No. 3) (1915) 1 IR 345 at p 372. The interests of debenture holders were represented in an action defended by their trustees. In subsequent proceedings it was said by Palles CB:
in, and of adjudication by, a Court of competent
jurisdiction, the Court requires the parties to that
litigation to bring forward their whole case, and will
not (except under special circumstances) permit the
same parties to open the same subject of litigation in
respect of matter which might have been brought
forward as part of the subject in contest, but which
was not brought forward, only because they have, from
negligence, inadvertence, or even accident, omitted
part of their case. The plea of res judicata applies,
except in special cases, not only to points upon which
the Court was actually required by the parties to form
an opinion and pronounce a judgment, but to every
point which properly belonged to the subject of
litigation, and which the parties, exercising
reasonable diligence, might have brought forward at
the time."
"The second debenture holders as a class wereSee also Cox v. Dublin City Distillery Co. Ltd (No. 3) (1917) 1 IR 203 at pp 224-225.
represented in that action by their trustee and
therefore the second debenture holders are estopped
from raising as against the plaintiff in that suit,
not only any defences which they did raise in that
suit, but also any defences which they might have
raised but did not raise therein."
34. Part IVA of the Federal Court of Australia Act 1976 significantly widens the scope for representative or class actions. It is nevertheless appropriate to bear in mind some of the issues which arise under the Chancery practice and post-Judicature Act rules of Court, particularly with respect to the operation of the doctrine of res judicata in limited issue class claims of the kind in these proceedings. This leads to a general consideration of the provisions of Part IVA.
35. In its report entitled "Grouped Proceedings in the Federal Court" which
was published in 1988, the Law Reform Commission concluded
that the
representative procedure as it then existed under the Rules of Court was too
limited. An effective grouping procedure was
needed as a way of reducing the
cost of enforcing legal remedies in cases of multiple wrongdoing (paras. 45
and 69). The report
of the Commission led to the enactment of Part IVA,
although a number of its recommendations were not reflected in the final form
of its provisions. The legislation was said by the Minister for Justice in the
Second Reading Speech to be "based on" the existing
representative action
procedure in the Federal Court and in the State Supreme Courts. The
foundation for a grouped proceeding was
expressed to be:
"...a proceeding on behalf of a group of persons whereThe new procedure was said to enable groups of people, whether they be shareholders or investors or people pursuing consumer claims, to obtain redress and do so more cheaply and efficiently than would be the case with individual actions. There was no reference in the Second Reading Speech to the use of the representative action in judicial review proceedings although that had been adverted to in the Law Reform Commission Report (para.63). Prior to and at the time of the enactment of the legislation, the emphasis of public discussion was on its application to possible consumer class actions and their impact on business. But there is nothing in the language of Part IVA which limits its application to such actions. Nor is there anything to prevent its application to appropriate proceedings for an order of review under the Administrative Decisions (Judicial Review) Act 1977 or prerogative or associated declaratory relief. The Court retains a discretion of its own motion or on application by the respondent, under s.33N, to order that a proceeding no longer continue under Pt. IVA where it is satisfied that it is in the interests of justice to do so. The discretion conferred by that section may be exercised in cases in which the representative proceeding will not provide an efficient and effective means of dealing with the claims of the group members or where it is "otherwise inappropriate" that claims be pursued by means of a representative proceeding.
the claims of those persons arise out of the same,
similar or related circumstances and a common question
of law or fact arises with respect to all their
claims" (Parl Deb. H. of R. 12 Sept 1991 p 1448)
36. A challenge to the lawfulness of an administrative policy or practice affecting the exercise of statutory power may raise, as does this case, a narrow point for decision. Individual claims in relation to particular determinations under the power are left unheard if the representative action fails. The possibility arises of the extended principle of res judicata affecting issues wider than those ventilated in the representative proceeding. Having regard to that possibility, the utility of the representative action in judicial review requires scrutiny. The question must be asked in each case whether members of the group and the decision-makers are likely to be better off with a determination which binds them all on one issue but fails to deal with individual claims. Where the lawfulness of a policy is contested by an individual, that test case may, pending an appeal, establish the law. However, it does not provide as firm a bulwark against re-litigation of the same point in like cases as does the determination in representative proceedings which directly binds the decision-maker and members of the group. The costs and benefits of representative proceedings in the area of judicial review will have to be assessed on a case by case basis.
37. In the present case, the members of the group are applicants for refugee status whose applications have been refused since 4 March 1992. Each has sought review of the decision refusing the application and, on review, those applications have again been refused. Each has been refused at the review level under a common policy or practice whereby the decision-maker does not, as a matter of course, offer to each such applicant an opportunity for an oral hearing. The claim which each is said to have against the Minister is that he has breached the rules of natural justice by failing, through his delegates, to offer the opportunity in every case of an oral hearing by the review delegate. There is a claim for relief made which is common to each group member, namely the setting aside of the decision that the member does not have refugee status and an injunction restraining the removal of that person from Australia.
38. The question whether the claims of the persons who are proposed as members of a group arise out of "the same, similar or related circumstances" as required by s.33C(1) is not to be answered by an elaboration of that verbal formula. It contemplates a relationship between the circumstances of each claimant and specifies three sufficient relationships of widening ambit. Each claim is based on a set of facts which may include acts, omissions, contracts, transactions and other events. As appears from s.33C(2), the circumstances giving rise to claims by potential group members do not fall outside the scope of the legislation simply because they involve separate contracts or transactions between individual group members and the respondent or involve separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.
39. The outer limits of eligibility for participation in representative proceedings are defined by reference to claims in respect of or arising out of related circumstances. The word "related" suggests a connection wider than identity or similarity. In each case there is a threshold judgment on whether the similarities or relationships between circumstances giving rise to each claim are sufficient to merit their grouping as a representative proceeding. At the margins, these will be practical judgments informed by the policy and purpose of the legislation. At some point along the spectrum of possible classes of claim, the relationship between the circumstances of each claim will be incapable of definition at a sufficient level of particularity, or too tenuous or remote to attract the application of the legislation.
40. In the present case, the relationship between the circumstances of each group member is defined by a few common integers which leaves room for considerable diversity in circumstances which might support individual claims to set aside the review decisions. Some applicants may have complaints about aspects of the decision-making process which have nothing to do with the question whether or not they should be afforded an oral hearing. There may be applicants who are able to show that even if there is no common entitlement to the opportunity of an oral hearing, the particular circumstances of their cases require such a hearing as a matter of natural justice. Notwithstanding that possibility, I am satisfied that the claims of the members of the group as defined in the present application are connected by circumstances sufficiently related to warrant the use of the procedure under Pt. IVA for the determination of the common issue of law defined in the application. In so holding, I have regard to the need for a purposive approach to the construction of s.33C(1)(b), bearing in mind the utility of determining the common issue in this way. If the application were to succeed, all group members would be entitled to the offer of an oral hearing by the decision-maker. In that event, other aspects of individual claims to which I have referred might not be pursued. If the application fails, then a principle applicable to each group member would be established, namely that there is no entitlement in any member of the group to an oral hearing by reason only of the fact that the member is an applicant for administrative review of the refusal to grant refugee status.
41. The question of res judicata and the extended principle to which I have referred earlier remains. A judgment, once made on the common issue, is binding on all members of the group and on the Minister. That arises explicitly by virtue of s.33ZB(b). The question whether the extended principle of res judicata is capable of application to representative proceedings confined as these have been to a common issue of law or fact remains open. Section 33Q contemplates the hiving off of individual claims when the common determination does not finally determine the claims of all group members. That may support a view that the extended principle may operate when the claims are not hived off under that section. In a case in which the group members have not raised individual claims but have been defined into the group on their related circumstances and the common issue, it is necessary that care be taken to ensure that claims based on individual circumstances of which the Court knows nothing are not prejudiced. In my opinion, that concern may be dealt with by determining the common issue and giving judgment on that issue as required by s.33ZB. Thereafter, I am inclined to make an order under s.33N(1)(d) that the proceeding otherwise no longer continue under Pt. IVA. While Mr Zhang's claim will be disposed of, the claims, if any, of other members of the group to set aside the decisions affecting them individually may be pursued by their individual applications. As this matter was not argued before me, I will allow the parties liberty to make submissions on the final form of the orders disposing of the proceedings.
Application of the Rules of Natural Justice
42. The application of the rules of natural justice to the exercise of a
statutory power depends upon the proper construction of
the statute - Salemi
v. MacKellar (No. 2) [1977] HCA 26; (1977) 137 CLR 396 at p 401 (Barwick CJ), 419 (Gibbs J),
460 (Aickin J); R. v. MacKellar; Ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461 at p 463
(Barwick CJ), 470 (Gibbs J), 475 (Mason J); Heatley v. Tasmanian Racing and
Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at p 491 (Barwick CJ), p 498 (Aickin J,
Stephen and Mason JJ agreeing). It is not in dispute in the present case that
the rules
of natural justice apply to the determination of refugee status at
both the primary and review stages. Nor can it be disputed that
the content
of the rules is variable and will depend upon the circumstances of the case,
including the nature of the inquiry, the
legislation under which the
decision-maker is acting, and the subject matter that is to be dealt with -
Russell v. Duke of Norfolk
(1949) 1 All ER 109 at 118; R. v. Commonwealth
Conciliation and Arbitration Commission; Ex parte The Angliss Group [1969] HCA 10; (1969) 122
CLR 546 at 552-553; Salemi v. MacKellar (No. 2) (supra) at p 444, National
Companies and Securities Commission v. The News Corporation Ltd
[1984] HCA 29; (1984) 156 CLR
296 at pp 314-316 (Gibbs CJ), pp 319-320 (Mason, Wilson, Dawson JJ), p 326
(Brennan J); Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 at 584 (Mason J).
43. It was submitted for Mr Zhang, however, that the nature of the decision
to be taken in the determination of an application for
refugee status requires
that in all such cases an opportunity for an oral hearing be offered by the
decision-maker. This contention
is grounded in the judgment which must
necessarily be made about aspects of the applicant's state of mind as part of
that determination.
The question whether a person is a refugee depends upon
whether, in the terms of the 1951 Convention relating to the Status of
Refugees
and the 1967 Protocol, that person has "a well-founded fear of being
persecuted for reasons of race, religion, nationality, membership
of a
particular social group or political opinion". The judgment to be made on an
application for refugee status therefore involves
an assessment of the
applicant's state of mind, whether he or she has a subjective fear of being
persecuted and, on the objective
facts, whether that fear is well-founded. In
Chan v. Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 396,
Dawson J said of the phrase "well-founded fear of being persecuted" that:
"Upon any view, the phrase contains both a subjectiveSee 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] USSC 32; (1987) 480 US 421; R v. Home Secretary; Ex parte Sivakumaran [1987] UKHL 1; (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.
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."
44. 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 contestedSee 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:
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."
"This procedure may be convenient when the credibility45. 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] HCA 39; (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).
of witnesses is not involved..." (emphasis added)
46. 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 securityThe 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:
of the person and the right not to be deprived thereof
except in accordance with the principles of
fundamental justice."
"In particular, I am of the view that where a seriousWilson 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:
issue of credibility is involved, fundamental justice
requires that credibility be determined on the basis
of an oral hearing." (at p 465)
"I find it difficult to conceive of a situation inIt 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.
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)
47. 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 [1970] USSC 68; 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 theHowever in Mathews v. Eldridge [1976] USSC 20; 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:
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..."
1. The private interest affected by the official action.These cases are discussed in One Last Battle - Reform of Veterans' Administration Claims Procedure (1988) 74 Virginia Law Review 937 at 956 et ff.
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.
48. 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 terms49. 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.
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."
50. 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 ofAccepting 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.
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."
51. 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.
52. 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.
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