Minister for Immigration v Mayer

• Jurisdiction: Australia Federal only
• Judgment Date: 05 November 1985
• Neutral Citation: [1985] HCA 70,1985-1105 HCA B
• Date: 05 November 1985
• Court: High Court

Australia, High Court.

(Gibbs CJ; Mason, Brennan, Deane and Dawson JJ)

Minister for Immigration and Ethnic Affairs

and

Mayer

Aliens Refugees Determination of refugee status Procedure Person given temporary residence permit Subsequently claiming refugee status in hope of being granted permanent residence Minister rejecting claim Whether required to give reasons Whether entitlement to refugee status to be determined by reference to applicant's circumstances at time of arrival in Australia or at time of making claim Geneva Convention Relating to the Status of Refugees, 1951, and Protocol, 1967 The law of Australia

Summary: The facts:The respondent, a citizen of Indonesia, was a resident of the province of Irian Jaya (West Irian), where he was imprisoned by the Indonesian authorities for opposition to the Indonesian control of the province. In 1971 he fled to Papua New Guinea where he lived until 1984 but was unable to obtain citizenship. He entered Australia in 1984 and was granted a temporary entry permit under the Migration Act 1958 (Commonwealth) (the 1958 Act). He applied to the Department of Immigration and Ethnic Affairs for refugee status, claiming to be a refugee within the meaning of the Geneva Convention Relating to the Status of Refugees, 1951 (the Convention) and the 1967 Protocol. He made the application in the hope that, if the Minister granted him the status of refugee, he would have satisfied one of the conditions necessary for the grant of a permanent entry permit under Section 6A(l)(c) of the 1958 Act.

The Minister decided that the respondent was not eligible for refugee status. The respondent requested the Minister to state the reasons for his decision, as required by the Administrative Decisions (Judicial Review) Act 1977. The Minister declined to give reasons, stating that it was not a decision of an administrative character made under an enactment. The respondent applied to the Federal Court for a declaration that he was entitled to a statement of reasons. The Federal Court upheld his application and made the declaration sought. An appeal by the Minister was dismissed by a majority of the Full Federal Court. The Minister appealed to the High Court of Australia.

Held (Gibbs CJ and Brennan J dissenting):The appeal was dismissed and the decision of the Full Federal Court affirmed.

(1) The proper construction of Section 6A(l)(c) of the 1958 Act was that it impliedly conferred upon the Minister the performance of a statutory function of determining whether a particular applicant for an entry permit has the status of refugee within the meaning of the Convention and the Protocol and was therefore a determination made under an enactment for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (pp. 138, 140).

(2) The Convention and the Protocol made it clear that the words has the status of refugee referred to the possession of such status at the time when the grant of an entry permit was under consideration and therefore the reference to a determination that an applicant for an entry permit had the status of refugee was a reference to a contemporaneous determination rather than to some past determination that the applicant had the status of refugee at that time (p. 139).

The following is the text of the judgments delivered in the Court:

Gibbs CJ. The respondent, Mr Mayer, is not an Australian citizen. He is what the Migration Act 1958 (Cth) as amended (the Migration Act) rather inelegantly calls a non-citizen. He entered Australia in about June 1984 and at all material times thereafter was the holder of a temporary entry permit issued under the Migration Act. On 2 July 1984 he submitted to the Department of Immigration and Ethnic Affairs a completed form supplied by that Department and headed Application for Refugee Status, by which he applied to be recognized as a refugee as defined in the United Nations Convention relating to the Status of Refugees. It may confidently be inferred that he made this application in the hope that if the Minister for Immigration and Ethnic Affairs determined, by instrument in writing, that he had the status of refugee, he might then, having satisfied one of the conditions made necessary by s 6a(1) of the Migration Act, be granted a permanent entry permit, as it is convenient to call what the Migration Act describes as an entry permit other than a temporary entry permit. Section 6a(1), which applies only to permanent entry permits (see s 6a(8)), provides that an entry permit shall not be granted to a non-citizen after his entry to Australia unless one or more of the conditions set out in the sub-section is fulfilled in respect of him. One of those conditions is as follows:

• (c) he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967.

On 8 August 1984 the Minister, who is the present appellant, replied to the respondent's application, saying that he had decided that the respondent was not eligible for the grant of refugee status. The respondent then gave notice in writing to the Minister requesting him to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision to refuse the respondent's application for refugee status. The request was made in reliance on s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), as amended (the ADJR Act). The Minister refused the request claiming that the decision which he had made was not a decision to which s 13(1) applied. The respondent then applied to the Federal Court for a declaration that he was entitled to make a request to the Minister under s 13 of the ADJR Act. Davies J upheld the application and made the declaration sought and an appeal from his decision was dismissed by a majority of the Full Federal Court.

The combined effect of sub-ss (1) and (11) of s 13 of the ADJR Act is that s 13 applies only when a person makes a decision to which this Act [the ADJR Act] applies, not being a decision of one of the kinds excluded by sub-s (11). The expression decision to which this Act applies is defined by s 3(1) of the ADJR Act to mean a decision of an administrative character made, proposed to be made, or required to be made under an enactment , other than certain decisions which it is immaterial to mention. By s 3(2), a reference to the making of a decision includes a reference to, inter alia, the refusal to make a determination. Section 13 will be applicable in the present case if a decision of the Minister to refuse to make a determination of the kind referred to in s 6a(1)(c) is a decision of an administrative character made under an enactment. It is not contested that a decision of that kind is a decision of an administrative character. The question is whether a decision of the kind referred to in s 6a(1)(c) is a decision made under s 6a(1)(c) within the meaning of the ADJR Act.

The 1951 Convention relating to the Status of Refugees (the Convention) and the 1967 Protocol relating to the Status of Refugees (the Protocol) are treaties which create international obligations binding on the Commonwealth of Australia but which do not form any part of the municipal law of Australia. Neither the Convention nor the Protocol requires a Contracting State to establish any particular procedure for the determination of the question whether a person has the status of refugee within the meaning of the Convention and the Protocol. Rather, the term refugee is defined (Art 1 of the Convention, as expanded by Art I of the Protocol) and the rights of refugees, and the obligations of Contracting States in respect of them, are then stated. Those obligations are owed, not to refugees, but to the other Contracting States. It is left to the appropriate organs of government of any contracting party (whether it be the legislature or the executive) to determine whether a person has the status of a refugee, and if so to see that the provisions of the treaties are observed so far as that person is concerned. Before s 6a was inserted into the Migration Act in 1980, there was no Australian statute which dealt with these questions, and there is now no relevant statutory provision in force with the possible exception of s 6a. Clearly, before 1980 the determination whether a person had the status of a refugee was a matter which lay within the discretion of the executive: see the article by Professor Johnson, Refugees, Departees and Illegal Migrants (1980) 9 Sydney Law Review 11 at p 47, and the article by Professor Shearer in International Law in Australia, 2nd ed (1984) edited by Ryan J, at p 206. Nothing has happened since 1980 to alter that situation. Section 6a(1)(c) does not in any way limit or affect the power of the executive to determine whether a person has the status of a refugee. If, for example, the government determined that a particular immigrant was a refugee, it would be expected that it would then ensure that that person was accorded the rights which the status entailed, whether or not the Minister had determined, by instrument in writing, that he had the status of refugee. If, on the other hand, the Minister did determine, by instrument in writing, that a particular person was a refugee, and the government took a different view, the government would not then be...