Immigration and Ethnic Affairs, Minister for v Mayer

(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;

(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him.

In addition to his application to be recognized as a refugee, it appears that Mr. Mayer did apply for an entry permit seeking to bring himself not under par. (c), but under par. (e) of s. 6A(1). A decision on Mr. Mayer's application for an entry permit was not made until some time after the making of the decision to refuse to recognize him as a refugee.

The Protocol relating to the Status of Refugees extends the application of the Convention relating to the Status of Refugees. Australia is a party to the Convention and the Protocol but neither of those international instruments is part of the domestic law of Australia. The States Parties have assumed obligations to any person who is "considered a refugee" or to whom the "status of refugee [is] accorded" for the purposes of the Convention and Protocol. Nothing turns on the difference between the two phrases both of which are to be found in the definition of "refugee": see the Convention Art. 1, s. A applied by Art. I, par. 2 of the Protocol. The according of the status of refugee to a person is a function left to the competent authorities of the Contracting States: see the Convention, Art. 1, s. C(5), Art. 1, s. E and Art. 9. In Australia, the function of according to a person the status of refugee for the purposes of the Convention and Protocol has been reposed in a Minister of State not pursuant to an enactment but by the administrative arrangements of the Executive Government. The matters to be dealt with by the Executive Government are allocated among the several Departments of State each of which is administered by a Minister of State. The Governor-General in Council publishes from time to time Administrative Arrangements listing the matters to be dealt with by each Department and a list of particular enactments administered by the respective Ministers. It appears that at all relevant times the function of according to persons the status of refugee was entrusted to the Minister for Immigration and Ethnic Affairs, to whose department the matters of "migration and aliens" or, latterly, "migration, including refugees and aliens" have been allocated. The Minister's decision as to a person's status as a refugee is evidently treated by Australia as the decision of the competent authority for the purposes of the Convention and Protocol. The international obligation to determine the status of refugees in Australia arises solely from the Convention and the Protocol. No domestic law was required and, at least prior to the enactment of s. 6A in 1980, no domestic law was made to confer authority or power to discharge the international obligation. Nor does s. 6A now purport to confer such an authority or power sufficient to permit of the discharge of the international obligation. The obligations accepted by States Parties under the Convention - including the obligations to permit refugees to transfer assets (Art. 30), not to impose penalties on fleeing refugees for illegal entry (Art. 31), not to expel a refugee lawfully in a territory save on grounds of national security or public order (Art. 32) and not to return a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, etc. (Art. 33) - are obligations which require that the competent authority in Australia determine whether a person has the status of a refugee irrespective of his making an application for an entry permit under s. 6A(1) of the Act.

Paragraph (c) of s. 6a(1) is not expressed as conferring an authority or power to determine whether a person has the status of a refugee. Paragraph (c) is one of a series of conditions governing the exercise of a power to grant an entry permit. The function to be performed under par. (c) with respect to a person who has applied for an entry permit is to find whether, as a matter of fact, the elements of the condition set out in par. (c) are satisfied: whether that person is the holder of a temporary entry permit which is in force, whether the Minister "has determined" (i.e., has made a determination the existence of which can be established) that the person has "the status of refugee within the meaning of the Convention or of the Protocol" (i.e., the status which requires Australia in point of international obligation to accord him the protection, privileges or immunities to which a refugee is entitled under the Convention) and whether the Minister's determination is in writing. It is the existence of a ministerial determination in writing that a person has the status of refugee, not the fact that he is a refugee, which satisfies that element of the condition in par. (c). The function to be performed under par. (c) is not to make a "decision" within the meaning of that term in the A.D.J.R. Act but rather to do what comes within s. 6 of the A.D.J.R. Act, namely, to "engage in conduct [i.e., to make an enquiry] for the purpose of making a decision" to grant or refuse an entry permit. The mere making of an enquiry to determine whether to grant or refuse an entry permit does not give rise to a right to a statement of reasons under s. 13. A right to a statement of reasons arises when a decision based on such an enquiry is made (unless the case falls within an exclusion set our in par. (d)(i) of Sch. 2 of the A.D.J.R. Act).

Paragraph (c) is not the source of the Minister's power or authority to make the determination of a person's status "within the meaning" of the Convention or Protocol. A determination made for the purposes of the Convention or the Protocol neither has nor requires a statutory authority or power to make it. Such a determination produces a legal effect in international law, but in domestic law it affects no rights, privileges or immunities though the fact that it is made partially satisfies the condition expressed in par. (c).

A distinction must be drawn between the legal effect produced by the exercise of a power to produce it when that power is conferred by an enactment and a legal effect which an enactment attaches to the fact that a decision is made in exercise of another authority or power. If an enactment does not confer on a decision-maker the power to produce a particular legal effect but itself creates a legal effect when a decision is made by the decision-maker in exercise of another authority or power, I would regard the decision as made under the other authority or power, not under the enactment. The source of a particular legal effect which follows on the making of a decision is not the enactment which empowers the decision-maker to make the decision unless the power given him by the enactment is a power to produce that legal effect. Therefore I would not regard a ministerial determination as to refugee status which is made administratively in performance of Australia's international obligations, which is not required to be made by an enactment and which itself produces no legal effect in domestic law, as a "decision made under an enactment". The circumstance that s. 6A(1)(c) provides that the making of the decision, in combination with other facts, satisfies a condition of eligibility to be granted an entry permit does not make it a "decision made under an enactment". It was said in Glasson v. Parkes Rural Distributions Pty. Ltd. [8] that a decision is not made "under" an enactment if the enactment is not "the source of the power to appoint the decision-maker, or the source of his power to make the decision, or the source of the decision's legal effect". Ordinarily, that statement is accurate enough although, for the reasons I have attempted to explain, it cannot be taken as establishing that a decision is made under an enactment if the enactment is merely the source of a decision's legal effect but is not the source of a power to make a decision having that effect. In my opinion, the Minister's determination in the present case was not a decision made "under" s. 6A(1)(c), and therefore it was not a decision to which the A.D.J.R. Act or s. 13 thereof applied. The appeal should be allowed.