Wu & Ors v Minister for Immigration & Ethnic Affairs & Anor P11/1996 [1996] HCATrans 184 (16 April 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P11 of 1996

B e t w e e n -

WU YU FANG and 117 OTHERS

Applicants

and

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

KIRBY J

TRANSCRIPF OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 16 APRIL 1996, AT 12.30 PM

Copyright in the High Court of Australia

__________________

MR R.E. LINDSAY: May it please your Honour, I appear for the applicants with my learned friend, MS V.M.F. MOSS. (instructed by the Director of Legal Aid)

MR R.R.S. TRACEY, QC: If the Court pleases, I appear for the two respondents. (instructed by the Australian Government Solicitor)

GAUDRON J: Yes, Mr Lindsay.

MR LINDSAY: Your Honours, before commencing, your Honours will probably have noted from the lower court, that written submissions were made by the Human Rights Commission and I have received - Ms Moss, who doubles as instructing solicitor and junior counsel, in fact received - a letter from the Human Rights Commission, saying that if special leave was granted in this case, they would be seeking leave to, as a party, in relation to one aspect of the matter. Perhaps I can hand up to your Honour the relevant section. The relevant section, I think, is not section 20 as stated here, but section 11; I think that is a slip of the pen.

Your Honours, the two principal grounds upon which special leave is sought are these: first that section 193 and section 198 of the Migration Act 1977 did not negate the duty of procedural fairness owed by the respondents to the applicants.

GAUDRON J: You assert, do you, that there is a free-standing duty of procedural fairness of some kind?

MR LINDSAY: Your Honour, I submit that there may be a free-standing duty of procedural fairness, but I submit, in any event, that there were decisions made to which that duty can attach.

GAUDRON J: And were those decisions challenged?

MR LINDSAY: Certainly, your Honour; there were decisions made which were challenged before the trial judge.

GAUDRON J: Yes, well what were they?

MR LINDSAY: Your Honour, first it was contended that the respondents should have provided a form 866, for a formal application to be made. It was also contended that the respondents should have informed the applicants of the rights which they undoubtedly have to request legal assistance under section 256 of the Migration Act.

KIRBY J: What was the basis of that obligation to inform?

MR LINDSAY: Procedural fairness, a duty to act fairly; given that these people would obviously be ignorant of Australia's administrative and legal processes and - - -

KIRBY J: Was it suggested that it is implied in the statutory provision?

MR LINDSAY: No, your Honour, the statutory provision merely states in section 256 that, at the request of a detainee, reasonable facilities for legal assistance should be granted.

KIRBY J: So the basis is some common law doctrine.

MR LINDSAY: That is so.

KIRBY J: And what is the doctrine? What gives rise to its application?

MR LINDSAY: The duty to act fairly at common law.

McHUGH J: How does this issue get into the Federal Court?

MR LINDSAY: First of all under section 5 of the Administrative Decisions (Judicial Review) Act, section 5, which relates to an administrative decision where there is a grievance.

McHUGH J: Yes, well that is the problem, where is the decision?

MR LINDSAY: The decision, your Honour, I submit, arises through the decision not to provide them with a form, not to give them access to a lawyer who was seeking their assistance - - -

GAUDRON J: Your next problem is, were they decisions under the Act? And that is what section 5 is directed to, decisions under an enactment.

MR LINDSAY: Yes, your Honour, and I submit that there was, in effect, because that was not done, it was not possible for them to, in effect, do what the department were obliged to do and that is to provide them with the means to make formal applications.

GAUDRON J: Yes, but you have brought proceedings in the Federal Court which look as though they are squarely based as decisions - as cases for judicial review of administrative decisions, and there is no doubt that that was the nature of your case, was it; seeking judicial review of administrative decisions.?

MR LINDSAY: Yes.

GAUDRON J: Well now, we come back to where we started. You must identify the decisions under the Act which are attacked and in relation to which you say there was a duty of procedural fairness. I mean, you did not bring proceedings asserting, for example, a common law duty of care or a positive duty to provide information of the kind that was considered in Bennetts.

MR LINDSAY: Yes, that is so, your Honour, but under section 36 there is a requirement that where an applicant engages protection obligations, a protection - a visa may be granted by the Minister and the Full Court have found, by majority at any rate, that the claims of the applicants did engage those protection obligations. It follows from that that if one reads section 36(2) together with schedule 2 class 866.21, which concerns itself with what has to be done at the application stage, the finding of the Full Court is that claims were made implicitly which engage protection obligations. That satisfies the requirements of schedule 2 and section 36, and from that, your Honour, it is submitted that the next step, which was then obligatory upon the respondents, was to provide them with the means to make formal application by form 866.

GAUDRON J: All right. Now, you say, I take it, that there was a decision not to provide them with the means?

MR LINDSAY: Yes.

GAUDRON J: Is that a decision under the Act, and how do you identify it as a decision rather than mere inactivity?

MR LINDSAY: Your Honour, there was the evidence by affidavit of the Deputy Secretary of the Department that where persons on 28 January, he said on a radio interview, engaged the protection obligations at any rate they are provided with a taxpayer funded lawyer. Given that the Full Court has now found that those protection obligations were impliedly engaged, that was not done, and that is inconsistent with the policy. It is also evident, your Honour, from section 29, that the question of whether a visa is granted, which is a permission of the Minister, is an obligation upon the Department. Their obligation comes into being once certain criterion are met. The criterion were met under section 36(2) and then, as indeed the general lay phrase suggests, to engage Australia's protection obligations. Upon whom is the obligation? The obligation is upon the respondents, and that is suggested from Division A section 29, which states that the grant of a visa is permission by the Minister. The form is a form approved by the Department and which the Department has to supply.

Then sections 45 to 47, which has been seen as a bar to the applicant's case, again depends upon forms which only the Department can supply. So, it is my submission that there are certainly provisions of the Act to which procedural fairness may attach.

GAUDRON J: Yes, well your difficulty seems to me to be in identifying those decisions under the Act to which the duty of procedural fairness attached, when, in the machinery provisions which would engage the decision-making power, had not been activated.

MR LINDSAY: I say to that, your Honour, that the criterion set out in section 36(2) is that where an applicant engaged in protection obligations, that is the basis for a protection visa. Then one goes to schedule 2, which sets out the clause what has to be satisfied at the time of application and it is that the applicants have made specific claims, that is the criteria under the Convention. If your Honour reads the actual section 36(2), which is the criterion, together with section 31, which states the criteria for the grant of a visa is set out in the schedules, and then, your Honours, goes to schedule 2 Class 866.2, it tells you at the time of application that the applicants must make specific claims under the protection obligations. If they do that then they have satisfied the criteria for consideration of a visa; that did not happen and, your Honour, that, I submit, is a matter to which judicial review can attach.

KIRBY J: Is there anything in the Judicial Review Act that deems a non-decision or a failure to make a decision to be a decision ,or in the Acts Interpretation Act for that purpose?

MR LINDSAY: No, your Honour, but there is under section 32 of the Federal Court Act accrued jurisdiction, as it were. As I understand it - - -

KIRBY J: I think the point being made by the learned presiding Judge is that you might have sued on an accrued jurisdiction, might have formulated on the accrued jurisdiction a claim founded in some common law basis, but you did not; you confined yourself to a challenge to a decision under an enactment, that being the basis for judicial review jurisdiction of the Federal Court, and the problem which the Court is having is identifying what is the basis for the obligation that you are asserting, which is a decision under an enactment, which is the only basis for the Federal Court's jurisdiction in the manner in which you pleaded your case.

MR LINDSAY: Yes, well I have to say that it is a right which is implied from the provisions of the Migration Act; that is all I can say, your Honour; that there are certain criteria required under section 31 and they have met those and that then there is an obligation and that so far as the jurisdictional basis is concerned, there is section 5 of the Administrative Decisions (Judicial Review) Act and of section 32 of the Federal Court Act, and of course there is the section 39B of the Judiciary Act, for original jurisdiction in the Federal Court in relation to mandamus.

KIRBY J: This issue of failure to give notice that the entitlement to or the facility and availability of legal advice is, as I understand it, an issue of some importance - well it was, I am not sure whether it still is - in the practical administration of the refugee entitlements.

MR LINDSAY: It certainly is, your Honour, because if it means that, in effect, by not giving detainees a form, notwithstanding the fact that they have fulfilled the criteria of the Act of engaging protection obligations, they can defeat such claims, then that obviously has an enormous impact.

KIRBY J: In some way, the fact situation is, if you could overcome the problem that the Court has been discussing with you, rather favourable to you in that he was a person who offered to see them and that was declined and the regulations were changed, with retrospective effect just in time, and there is a difference of opinion in the Full Federal Court, but the matter the Court is having difficulty with is the foundation of your claim that got you into the Federal Court, given the way you pleaded it.

MR LINDSAY: Yes, well, your Honour, I put it in two basis, as I say, but the provisions to which one would have to say is attached is those provisions which, well on the one hand that they did fulfil the criteria under certain provisions of the Act, and that, in consequence of that, they were not provided with the form. There is no express provision which says people have to be given a form, but I submit, it can be implied from - - -

KIRBY J: You say that this is a legal argument, that it is either there or it is not, but your foundation is implication from the terms and structure of the Act and that in so far as you have not pleaded it in that way, you would be seeking to correct the record, even at this late stage, and say that it is not a matter on which evidence would run; it is simply a matter of legal argument; the Act either gives rise to the implication or it does not.

MR LINDSAY: Yes, your Honour.

GAUDRON J: What, a statutory duty? Well, let us have it spelt out precisely in terms of a duty that is independent of matters of fact, independent of any circumstances pertaining to the condition of the applicants, because if it does in any respect pertain to the condition of the applicants, there are factual considerations on which there may be a need for evidence.

MR LINDSAY: Well, your Honour, essentially Justice Carr found it was, I think, in four respects, that procedural fairness had not been extended to the applicants and should have been extended to the applicants. The basis upon which Justice Nicholson, speaking for the majority, concluded that procedural fairness did not apply was his Honour, considering that sections 193 and 198 had a much wider import than I would suggest or Justice Carr suggested would be the case, but he also said, of course, that there were no findings of fact. Well, in my submission, there was certain evidence which can be inferred from what the trial judge determined. His Honour the trial judge took the view that there was no temporal limitation on section 193 of the Act and for that reason, because there is no statutory mandate, he said, for the Department to do these things which Justice Carr says are a breach of the duty of natural justice, he says there is no obligation upon the respondents to do that. I submit that that view of the majority is erroneous.

KIRBY J: Help me with this. Did the amendment of the regulations take away the ongoing question of whether there is implied in the Act an obligation to give notice of an entitlement to availability of legal advice or is that still a live issue in migration law?

MR LINDSAY: As I understand, it is a live issue, your Honour.

KIRBY J: Would we not be better to wait until a case came where the foundations, whether in tort or trust or some other basis, had been properly pleaded, the evidence has been called, the facts have been found, and we can then bring the matter up with clear findings of fact to deal with that issue? It is an important issue and it just does not seem to me that this is a very good vehicle for that important question to go off perhaps on a pleading point, perhaps on a lack of evidence, lack of findings, procedural fairness or a whole series of problems that present in this case.

MR LINDSAY: Your Honour, if that is the position, it comes about because the trial judge has considered that there is no temporal limitation upon section 193 of the Act and therefore has not made all the findings that he might have made, and that, of course, is something which ought not to be laid at the doors of the applicants, but I would submit, in addition to that, that it is quite evident from those points which Justice Carr refers to, that they were in relation to undisputed evidence. For example, in relation to the three points he raised, exchange of correspondence where Ross McDougall was refused access; that was referred to by the learned trial judge in a different context and accepted. So there is no dispute about that.

There was no dispute about the fact that they were never given the means to apply by information or by reason of the form. Again they were prejudiced because, of course, what that did was it meant that their applications could never be entertained, because the effect of the regulation 2.12A in schedule 11 was to activate section 91A, which said that you should not be allowed to apply; that is what it did. It prejudiced their interest, it defeated their claims for refugee status and, your Honour, I submit to say to that, "Well, this is not founded on any express provision of the Act" is not to take into account the complex legislative scheme, the common law which supplies the emission of the legislature, according to the authorities, and the obligations which there are upon Australia in relation to protection matters. So, your Honour, I say in regard to those - - -

KIRBY J: Let me just understand. Is your submission that, because the primary judge misapplied the section 193, because that was upheld by a majority in the Full Federal Court, you never got to the point of getting factual findings at a trial in which, if necessary, you even now, if that error were corrected, could seek to replead and to enlarge the basis of your claim, and that all you are really seeking from us, therefore, is the correction of a 193 point, so that you can go back to trial,..... with that problem out of the way, you can seek leave of the primary judge to replead?

MR LINDSAY: Yes, because I submit that section 193 and section 198 do not have the effect that the Full Court said they did. I might say that the section 198 was never considered by the trial judge; that was raised by the respondents on appeal, and so there has never been any finding that they were being removed as soon as reasonably practicable, but aside from that point, your Honour, yes, the applicants say there was an error in the majority and that, in fact, Justice Carr was correct in contending that there was a temporal limitation of section 193; section 198 did not negate those procedural obligations upon the Department.

GAUDRON J: Yes, thank you. We will hear your submissions in this matter at 2.15 pm, Mr Tracey.

MR TRACEY If the Court pleases.

GAUDRON J: Court will now adjourn until 2.15 pm.

AT 12.53 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.21 PM:

GAUDRON J: Yes, thank you, Mr Tracey.

MR TRACEY: If the Court pleases, may I start by providing the Court with copies of the further amended application that was filed in this matter. The purpose of doing this, your Honours, is to disabuse some misconceptions that appear to have emerged in the course of the hearing thus far, and in particular that this was ever a proceeding brought under the Judicial Review Act. It never was. What the Court will see is that it was an application brought under a series of provisions, the Part IVA of the Federal Court Act being the representative party proceedings, the Migration Act, presumably being a reference to Part VIII of the Act, which provides for judicial review of decisions made under the Act and cross-vesting legislation was called in aid, but it was never an application under the Judicial Review Act.

The next thing the Court will see from this is that there are no - - -

KIRBY J: Does it still have to be a decision under an enactment for the purpose of the exercise at this jurisdiction?

MR TRACEY: No, your Honour.

GAUDRON J: But there does have to be a decision.

MR TRACEY: It has to be a decision; it has to be of a kind that the common law remedies would be available in relation to it.

KIRBY J: But it does not have to be a decision where the remedies must be founded upon the statute?

MR TRACEY: No, your Honour. There may well be a substantial degree of overlap between the remedies provided for in the Judicial Review Act and those that are available for particular common law remedies, but generally the answer to your Honour's question is no. Your Honours will also see that no decisions were challenged, and that the relief that was claimed, and the bulk of this document is set out in his Honour Justice O'Loughlin's reasons, which the Court will have seen, the parts that contain the prayers for relief, and the Court will see that what is sought, and always was sought, were declarations in relation to natural justice, unrelated to the making of any identified decision, and an attempt was made to have the court grant a declaration that there had been what were described as constructive applications prior to the statutory deadline of 30 December 1994. In the event, the court said there was no such thing as a constructive application, having regard to the provisions of the Migration Ac,t and that left the question of whether one could have free-standing natural justice, as it were, and the Full Court and the judge at first instance said no, that is not possible.

It is our submission that the obligation to accord natural justice only arises in a decision-making context and in response to questions asked by members of the Court this morning and in the written submissions provided, our friends have said that the relevant decisions for these purposes were decisions made in relation to section 36(2) of the Act and in relation to the provision of the necessary form upon which to make an application for a protection visa, form 866. Now as to the first, the section 36(2) application, the Court will note in relation to section 36(2) that all it seeks to do is identify one criterion for the granting of protection visas, and that criterion is that the person concerned is a person to whom Australia has protection obligations under the Refugee Convention.

It has never been determined that the applicants in this matter were such persons, never been determined, and - - -

GAUDRON J: The issue had not arisen at any stage.

MR TRACEY: No, it had not, your Honour. Now our friends would say that there are findings that they had implicitly engaged Australia's protection obligations. With respect, that is not what the court below held. At page 156 of the application book, what Justice Nicholson, with whom Justice Jenkinson agreed, said, at the top of the page, was that various matters:

spoke loudly of the implication that they -

the applicants -

sought to claim Australia's protection obligations for a Convention reason.

Sought to claim; never a finding that they had, in fact, engaged Australia's protection obligations - - -

KIRBY J: Yes, but is this not something of a catch-22, almost a ..... situation, that until they are provided with the legal advice that was apparently available to them, offered to them, ready to be provided to them, they do not know what their entitlements are; it is really putting them in a very difficult situation, as people from China, to know the Convention definition of "refugee".

MR TRACEY: Indeed, or for that matter, your Honour, it may be said of any of the other myriad of criteria that might have fitted them for any visa, that might have been available under this Act.

KIRBY J: But here was a person from a Migration Advisory Service apparently, a lawyer, who offered to see them, and yet that offer was denied on the basis they have not asked for it, but they do not know what their entitlements are until they see this person; it really is catch-22.

MR TRACEY: Well, your Honour, there was no limitation placed upon them at any stage from - - -

KIRBY J: Is this not an important issue for migration law? I am not saying this is a good vehicle for it, but the question of whether a person is entitled to have advice that will enliven knowledge of our laws and our protective entitlements under our statutes is an important question for migration law surely.

MR TRACEY: It may well be, your Honour, but it does not - - -

KIRBY J: Why is this not a good vehicle then?

MR TRACEY: It is not a good vehicle, your Honour - - -

KIRBY J: Here is a case where they could have availed themselves of it, there was a person willing to give it, there was a person who offered to give it, and you did not give it and you went ahead and changed your regulations in the meantime.

MR TRACEY: Well, with respect, your Honour, it is not quite as simple as that.

KIRBY J: It looks a bit like that.

MR TRACEY: The facts of the matter were that at the time that the offer was made, the applicants had not said or done anything to make a claim on the basis of their being refugees. The people in charge of the detention centre plainly cannot be required to respond positively every time somebody knocks on the gate and says, I want to come in and offer services of whatever character, including legal services, to the people who are in there.

KIRBY J: But this was a man who apparently had offered advice to a previous group and all of those members had been determined to be refugees, all of them.

MR TRACEY: When they had said they wanted to see a lawyer, they were provided with his services, and there was no hesitation about that. Now this group did not until after, on the facts as found, make such a request until after 30 December 1994. Had they made it before, that application would presumably have been treated in the same way as the other boat, "The Unicorn", was treated.

KIRBY J: It does seem to me - I am not saying this is a good vehicle for it - this issue is a very important issue as to whether, inherent in our statutory scheme and inherent in the way these people make their way to this country and, in a sense, assert their wish to be members of our community, that there is not to be inferred from these things an entitlement to be given a facility, or at least in the particular facts of this case, where the facility was precisely offered.

MR TRACEY: Your Honour, if they come here and if they say things to the people who deal with them officially once they get here, that indicates that they might possibly be refugees, then plainly your Honour's point is, with respect, a good one. But if they come here and they say things like they are looking for a better life or they cannot get a job in China or their village or temporary refuge on the seafront has been removed for hygienic and other reasons, they are not the sorts of responses that are suggestive that these people are refugees.

KIRBY J: But you and I both know that the Convention definition is quite technical and not without its difficulties. Even in the time I have sat here, we have had cases involving it, and it is quite difficult, and how is a person with the educational background of these people to know where they fit into that technical definition? They really need legal advice, and they did, in fact, ultimately formulate that demand, but just a little bit too late, in your submission.

MR TRACEY: Well, they did, and that is one of the reasons why this case is not, with respect, an appropriate vehicle, because the only reason that this case was brought and formulated in the way that your Honour has just seen, was because this deadline had intervened before they made the request, before the request was satisfied and before any application had been made. Now, your Honour, if this matter is to be tested, the better vehicle would surely be a case in which the application has been made and has not been satisfied or - - -

GAUDRON J: No, I think you are missing the point, Mr Tracey, namely that no application can ever be made unless people are aware of their rights to make an application and the question therefore arises whether there is not a duty, forget about the nature of the duty or the origin of it, to inform them of the rights. Now, that is the point that Justice Kirby is putting to you. What do you say to that point?

MR TRACEY: Well, the response to that is that the law has never been developed to the point where that sort of obligation can be imposed as one of procedural fairness - - -

KIRBY J: The question is whether that is within the scheme that our Parliament has enacted? This is really the question, and is that not an important question? I am not saying what the answer to the question is, but is that not an important question, because if the demand is made, my understanding from the past case is that the practice of the Minister is to provide the legal advice and therefore, in a sense, if the demand is not made because the person does not know of it, that is when the problem arises. That is this case.

GAUDRON J: More particularly in circumstances in which presumably somebody knew that the time bar was going to descend fairly quickly.

MR TRACEY: Well, no, your Honour, that is not so. The - - -

GAUDRON J: Well, the Minister, he is a respondent, did he not know?

MR TRACEY: The Minister knew on 30 December, when he made the public announcement. The statutory changes were made subsequently and back-dated to that public announcement, but there is no evidence - - -

GAUDRON J: Somebody might have known that a day or so before.

MR TRACEY: Well there was never any evidence and never any finding that any of the officers who dealt with these people below - - -

GAUDRON J: They are not parties; the Minister is a party.

MR TRACEY: Well, that is perfectly true, your Honour, but the suggestion that was made in the hearing that did not lead to a favourable finding for the applicants was that the people who were dealing with these people, the ones responsible for responding to a request for legal aid if it had been forthcoming, or for interviewing these people to find out what their situation was, knew about it, and knew about these pending changes and deliberately held back that information. Now, if your Honour is under that impression, I have got to say, on behalf of the Minister, that there was no evidence to support that and, indeed, the Minister entered into these negotiations with the Chinese authorities on 2 January 1995. It was after the public announcement on 30 December that there was going to be a restraint placed on Sino-Vietnamese boat people from making application here, because they had already been offered refuge in China, and were coming here from China. And, having regard to the answers they gave to a series of questions, all documented, all carefully scrutinised by the trial judge and the judges below, they could detect nothing in any of the answers that was suggestive of claims by these people that they were refugees; that they had left China because they were being persecuted. Nothing of that kind was found at all.

KIRBY J: That is because they perhaps did not know that there is this Convention, there is a definition, the definition is complicated, they might fall within one of the categories if they have got the evidence and if they got a lawyer that will tell them about the Convention, tell them about the definition and the categories. You did not give them access to the lawyer who went there to offer them just that.

MR TRACEY: Your Honour, it is our submission that in a situation where, on interview, people who arrive here by boat say nothing to indicate that they might have been the subject of persecution - - -

GAUDRON J: There is a finding against you on that - - -

MR TRACEY: Well, no, with respect - - -

GAUDRON J: There is a finding by the majority, is there not, that they did say something to indicate that they might be refugees within the Convention?

MR TRACEY: Your Honour, there were reference to individuals, some individuals, who may have; no finding that the 118 were all covered by claims of that kind. All their circumstances differed. The only thing they really had in common was that they had come from Vietnam to China and they had left from the same port in China to come to Australia. But beyond that there were a wide range of differing circumstances. So there could hardly have been a finding below that the whole 118 of them had said and done things that were suggestive that they were refugees.

It is not, in our respectful submission, correct that the Minister is obliged to provide to everyone who arrives here on a boat legal advice to facilitate a refugee application, when those people say nothing that is remotely indicative - - -

KIRBY J: I think that might well be right, but when you get a combination of circumstances such as were evident in the facts of this case, you get these people in a position where they are offered advice and the Minister denies that advice, it does seem to me, at least arguably, to tender nicely in the facts a question which is undoubtedly an important question and a special leave question, and that is, in these factual circumstances does an obligation to provide access to the lawyer in order to, as it were, stimulate and give the foundation for a claim, emerge from an understanding of what Parliament meant when it enacted the Act.

MR TRACEY: Your Honour, Parliament did, obviously, direct its attention to these matters, and your Honours will have seen the provisions of section 256, which is set out in the various reasons, and which makes it plain that that obligation does arise but it arises upon request. Now, Parliament has directed its attention to this matter and, in our respectful submission, its response is reflected in section 256.

KIRBY J: That casts a duty by the statute and the question is, is there a duty by the common law at an earlier point by a combination of circumstances, not the least of which is that there is a man knocking on the door saying, "I'm here; I'm an expert; I'm a lawyer; I'm willing to give them advice. Let me speak to them." They may have no claim, they may have a claim. Denied.

MR TRACEY: Your Honour, they, in our submission, would be - - -

KIRBY J: I must say I am a bit affected by having been working on the convention definitions. It is very complicated and - - -

MR TRACEY: Indeed, it is and we would not seek - - -

KIRBY J: - - - it is not something for lay people from Australia, still less people who have been living under cardboard boxes in the south of China.

MR TRACEY: Your Honour, there is no dispute that the legal issues raised by the terms of the convention are difficult ones and we would not seek to argue to the contrary. What we would, however, seek to argue is that there cannot be an obligation in respect to the provision of legal advice at large to anybody who turns up in Australia without a visa and is therefore taken into detention.

KIRBY J: It is drawing the line that is the difficult job.

MR TRACEY: Indeed.

KIRBY J: That is where this Court has a function.

MR TRACEY: The legislation has been very plain about it, though, and the Court would have seen the explanatory memorandum that is in the volume of legislation and, in particular, at page 49 of that volume the Court will see that, in respect of section 189(2), the rationale is quite clear:

The rationale for these exclusions is that persons who enter Australia without authorisation, or who have their visas cancelled in immigration clearance or who bypass immigration clearance, should not be accorded the same level of procedural protection as is provided to persons who have become unlawful non-citizens after having been lawfully in the Australian community.

That is said, apropos, of a series of provisions that say you do not have to give legal advice; you do not have to tell people they can apply for a visas. You do not have to do these things.

KIRBY J: I do not wish to be taken as saying you do not have a powerful argument. That is demonstrated by the decisions below. The question is is this of such importance and are the facts appropriate that this Court should pass on the question.

MR TRACEY: The response to that, your Honour, is this: we concede it is an important question but we say that this is not, for reasons I have already adverted to, an adequate vehicle to raise this issue.

GAUDRON J: It was not fought as such a case, was it?

MR TRACEY: It was not.

GAUDRON J: It was fought simply as procedural fairness.

MR TRACEY: That is so, your Honour.

KIRBY J: Can you tell me that the practice that was followed in this case, that is to say the immigration lawyer going and requesting and being denied, is that the normal practice? Unless the people have the wit to make the requests - no access?

MR TRACEY: No, your Honour. The practice is that if at initial interview they say anything that sounds remotely like they have been the subject of persecution, legal aid is made available, and the reason it did not happen here was because, as their Honours found, nothing that was said by the bulk of these people triggered any suggestion in the minds of those who were interviewing them that they might have been refugees and, indeed, there were a lot of answers that were suggestive of a contrary motivation for coming to Australia. I see that time has caught up with me, if the Court pleases.

GAUDRON J: Yes, Mr Lindsay.

MR LINDSAY: Your Honours, just as to the question of what the Full Court found. At page 159, line 15, Justice Nicholson says, on behalf of the majority:

I have already concluded that what the appellants said and did implicitly constituted a claim for engagement of Australia's protection obligations and that the trial judge fell into error in not finding an engagement in that way.

And then just skipping a sentence, goes on and says:

I accept that the evidence before the trial judge showed the appellants had done all that had been asked of them and all they could in the circumstances.

That was what the Full Court found, and according to the Department's own policy which is expressed in the explanatory memorandum to which my learned friend referred at page 49, it says, in the context of dealing with what section 193 means, at clause 123:

It is not intended that section 193 should impact upon the rights that a person has to make an application for refugee status. If a person indicates that he or she is seeking refugee status or is in need of protection, following long standing practice, the person will be treated in accordance with the international obligations that Australia has entered into regarding -

those persons. Now, that being the position that the Full Court has found, they ought to have supplied them, according to their own policy, with the means to make a formal application and they did not do that.

The other finding which I submit is important is on the last page of Justice Nicholson's reasons where he sums it up neatly when he says, at page 181:

This is a case in which Parliament has negated the possibility of common law concepts -

and he says that is achieved by reason of sections 45, 47, 193 and 198. Then he goes on:

The inference from the findings of the trial judge is that the representatives of the relevant arm of the executive were well informed of this and avoided acting so as to place the applicants in the position where they had the means to apply for a Protection Visa when the course remained open to them, prior to its preclusion by legislation.

That is the finding of the Full Court, your Honours, and that is a solid factual basis upon which we now say - my friend says section 36, on its own, does not say that they are satisfied that they have engaged those protection obligations, but if your Honours read section 36 with regulation 2.03 which says:

(a) the primary criteria set out in a relevant Part of Schedule 2 -

and then Schedule 2 says at the claim stage if the detainees have made claims engaging the obligations under Refugee Convention, then they have fulfilled the criteria. They have done that. Then, what has the Department done? They have not provided them with a form. They have not provided them with the means to apply. I submit, those are matters to which judicial review can fasten. It is not a freestanding right but even if it were a freestanding right, there is authority in the cases where reports, for example, Board of Trade reports and so forth, are not making determinative decisions but where there is a potential for prejudice of the plaintiff and it has been held in those circumstances that if an interest if prejudiced by it, it would be an appropriate case for

judicial review.

So, I submit there are administrative decisions clearly, and the Full Court has so found. But I say, in any event, whether your Honours so regarded them or not, there is a right to judicial review because these detainees have been very prejudiced by the conduct of the respondents in refusing to give them the form, in declining to allow them to see a lawyer in achieving that and, of course, as the Full Court has now found, informing them that having engaged protection obligations, "Look, you can now put in a formal application". By depriving them of that opportunity, they have been disabled from making an application for a protection visa.

Your Honours, I submit, in other words, as the Full Court has found, had the respondents done what they ought to have done, they would not be in that predicament now. Those are my submissions.

GAUDRON J: This application arises out of proceedings in the nature of judicial review seeking declaratory and other relief, including a declaration that the applicants were denied procedural fairness because of various matters pertaining to their detention. Of those matters, the most significant is the failure of those in charge of the detention centre to provide them with visa application forms, to inform them of their entitlement to apply for visas and of the availability of legal advice. What next follows is the view of the majority.

The decision of the majority in the Full Federal Court that the applicants are not entitled to the declaratory and other relief sought in their application to that court is not attended with sufficient doubt to justify the grant of special leave.

The application, as made and pursued in the Federal Court, does not, in our view, raise the question whether, in the circumstances, there was a positive statutory or common law duty on the part of the respondents to provide the applicants with visa application forms, to inform them of their right to apply for visas and of the availability of legal advice. That question, if raised by the pleadings and the factual findings, might be a question of importance worthy of the grant of special leave. By majority, special leave is therefore refused.

AT 2.52 PM THE MATTER WAS CONCLUDED