[1991] FCA 389; (1991) 31 FCR 100

Citizenship Immigration and Emigration - Immigration - Entry Permits and change of status - Determination as to refugee status - Refugee sur place - requirement of bona fides.

Administrative Law - Rules of natural justice and breach thereof - Right of party affected to be heard - Nature of hearing - Adverse conclusions - Circumstances in which party affected to be apprised so that he may respond.

Migration Act 1958

Australian Broadcasting Tribunal v. Bond [1990] HCA 33; (1990) 170 CLR 321

Broussard v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 98 ALR 180

Chan v. Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379

Colpitts v. Australian Telecommunications Commission (1986) 70 ALR 554

Fothergill v. Monarch Airlines Limited [1980] UKHL 6; (1981) AC 251

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

Gerondis v. Minister for Immigration, Local Government and Ethnic Affairs (1990) 19 ALD 755

Minister for Immigration, Local Government and Ethnic Affairs v. Kumar (Full Court of the Federal Court; unreported; judgment 31 May 1990)

Minister for Immigration and Ethnic Affairs v. Mayer [1985] HCA 70; (1985) 157 CLR 290

National Companies and Securities Commission v. News Corporation Limited [1984] HCA 29; (1984) 156 CLR 296

Sinnathamby v. Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502

Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347

Videto v. Minister for Immigration and Ethnic Affairs [1985] FCA 449; (1985) 69 ALR 342

Counsel and solicitors : Mr K. Bell instructed

for the respondent by the Australian Government Solicitor

1. The appeal against the dismissal of the appellant's application for an order of review in respect of the decision of the respondent's delegate made on 20 April 1990 that the applicant does not have 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 be allowed.

3. The appellant's application for a determination by the respondent that he has the said status be heard and determined according to law.

4. The order with respect to costs made by the Honourable Mr Justice Lockhart on 22 November 1990 be set aside.

5. The respondent pay the appellant one half of the appellant's costs of the proceeding determined by the said order made on 22 November 1990 and one half of the appellant's costs of the appeal.

6. Save as aforesaid the appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

In considering this appeal I have had the advantage of reading, in draft form, the reasons for judgment of Gummow J. I am unable to agree that there was a lack of procedural fairness in relation to the appellant's letter of 6 December 1989 ("the letter"), but on all other matters I am in agreement with his Honour's conclusions and reasons.

2. The appellant submitted that the decision was vitiated by a lack of procedural fairness in that the decision maker failed to enquire as to the appellant's motivation in sending the letter to the Iranian Embassy; it was argued that the appellant was entitled to an opportunity of responding to what the decision maker was "minded to decide" (to use the words of Lord Diplock) as to that motivation before the decision was reached.

3. In my opinion procedural fairness did not require the decision maker to disclose to the appellant his mental processes before reaching his decision. In F. Hoffman-La Roche and Co. v Secretary of State for Trade and Industry (1975) AC 295 Lord Diplock said (at 369):

"... the rules of natural justice do not require the

decision maker to disclose what he is minded to decide so

that the parties may have a further opportunity of

criticising his mental processes before he reaches a final

decision. If this were a rule of natural justice only the

most talkative of judges would satisfy it and trial by jury

would have to be abolished".

In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 587 Mason J. said:

"The applicant is entitled to support his application by

such information and material as he thinks appropriate and

he cannot complain if the authorities reject his application

because they do not accept, without further notice to him,

what he puts forward."

4. Before the learned primary judge the appellant's counsel sought to rely upon the fact that the appellant was not asked during his interview as to why he had sent the letter; it was submitted that "an assumption" was made by the decision maker that the letter was written "just to help him get refugee status and to enhance his claim". In my opinion the decision maker made no such "assumption". He reached a conclusion in respect of the appellant's motivation in writing the letter, which conclusion in my opinion, he was entitled to reach upon the material before him.

5. There was no failure by the decision maker, in my opinion, to give to the appellant an opportunity to deal with the matter of his motivation in sending the letter. The appellant's solicitors could have placed before the decision maker material dealing with that question at any time on or after 8 December 1989, the date when they forwarded the letter to the respondent's Department. At the interview on 19 February 1990, the appellant was told (1) that the purpose of that interview was to obtain information which would be placed before the Determination of Refugee Status Committee, which would "consider all relevant facts", (2) that it was important that he provide all the details which he considered relevant to his application, (3) that "the onus is on yourself" and (4) that he would be provided with a transcript of that interview. The transcript record of that interview, which was conducted through an interpreter, included the following:

"I am an officer of DILGEA. The purpose of this interview

is to obtain from you information which will be placed

before the Determination of Refugee Status Committee, which

will consider all relevant facts and make a recommendation

to the Minister for Immigration, Local Government and Ethnic

Affairs. The Minister or his delegate will decide whether

you may be accorded refugee status. It is important

therefore, that you provide me with all the details which

you consider relevant to your application. ... After the

interview, I will provide you with a typewritten transcript

of this interview ....

Right, we will have to conclude here. I will put it to you

again that the onus is on yourself. I shall be returning on

Wednesday to provide you with a transcript of what has been

said here today."

6. It is clear that the appellant's solicitors had seen the typewritten transcript of that interview - see the second paragraph of their written submission dated 6 March 1990. The solicitor stated in that written submission that he had "again conferred with" the appellant on 26 February 1990 i.e. after the solicitor had seen that transcript of the interview. In the light of the passages quoted above as to what the appellant was told at that interview by the Departmental officer conducting the interview, and the fact that his solicitors put forward a written submission after seeing that transcript, I am unable to uphold the submission that the appellant was not given an opportunity to deal with the question of why he had sent the letter.

7. The position would have been different, of course, if a source other than the appellant had given to the decision maker adverse information as to the appellant's motivation in sending the letter. As Mason J. said in Kioa (at 587):-

"But if in fact the decision-maker intends to reject the

application by reference to some consideration personal to

the applicant on the basis of information obtained from

another source which has not been dealt with by the

applicant in his application there may be a case for saying

that procedural fairness requires that he be given an

opportunity of responding to the matter."

The reference to "information obtained from another source" was supported by the reasons for judgment of Brennan J. who (at p 629) referred to "adverse information", and "prejudicial information". Brennan J. also referred to an "allegation in par. 22 (that) was apparently credible, relevant and damaging". Wilson J. (at 602) referred to that allegation (in par. 22) and said that its source was not given in the Departmental submission to the delegate.

8. In the present appeal the appellant was unable to support his submission by reference to any adverse or prejudicial information which had been supplied by a source other than himself. There was no "allegation", damaging to the appellant, which required, as a matter of fairness, that the appellant be given an opportunity to respond. There was a conclusion reached by the decision maker in respect of the material placed before him by the appellant - a conclusion which, as the learned primary judge said, the decision maker was entitled to reach on that material.

9. In Kioa Mason J. (at 588) and Deane J. (at 634) expressed the opinions that procedural fairness required that the applicants be given an opportunity to respond to paragraph 21 of the departmental submission before the delegate. It included the following:-

"21. If Mr Kioa had been genuine in his desire (in

December 1981) to seek a legitimate extension of his stay,

it would have appeared likely that he might have sought a

decision on his application rather than change his address

without apparently notifying the Department. ..."

The opinions of Mason J. and Deane J. were expressed in relation to the particular circumstances in Kioa, which included the words (in paragraph 21) "rather than change his address without apparently notifying the Department" (emphasis added). The word "apparently" conveyed that it was possible that Mr Kioa had in fact notified the Department and that the notification had been mislaid. That possibility may have led Mason J. and Deane J. to decide that the delegate should have given Mr Kioa an opportunity to respond to the suggestion that he "apparently" failed to notify the Department. Deane J. (at 634) referred to "the circumstances of the present case", "the facts" and "the opportunity of dealing with any matters raised against them" in paragraphs 21 and 22. In my view, in the present appeal the conclusion reached by the decision maker as to the appellant's motivation in sending the letter did not come within the principle requiring an "opportunity of dealing with any matters raised against (an applicant)".

10. In my opinion those passages in the reasons for judgment of Mason J. and Deane J. which referred to paragraph 21 of the departmental submission did not constitute the expression of a principle governing the question under consideration in this appeal. If such a principle was stated, then in my respectful opinion it was not consistent with the opinions expressed by Gibbs CJ. (at 568-569), Wilson J. (at 601) and Brennan J. (at 628), rejecting the submissions advanced on behalf of Mr and Mrs Kioa that there had been a lack of procedural fairness in respect of the statements in paragraph 21.

11. In my opinion procedural fairness does not require a decision maker to give an applicant an opportunity to comment upon the view which the decision maker has provisionally taken of part of the material submitted to him in support of the application - see the passage quoted earlier in these reasons from the judgment of Mason J. in Kioa at 587. The decision maker is not required to make known to an applicant his provisional evaluation of one or more of the documents submitted; nor to disclose his provisional view as to whether to believe or refuse to believe any of the specific answers given by such an applicant during interviews; nor to disclose any provisional view he may hold as to the credit in general of an applicant.

12. In Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 Fox J. at 505-506, dealing with a conclusion reached by a decision maker relating to an applicant's entry into Australia by a "subterfuge", said:-

"The appellant also relies upon the fact that the Department

considered her to have entered the country by a "subterfuge"

in arriving as a transit passenger. She claims that the

Department denied her natural justice in not informing her

that this would be regarded as a circumstance disentitling

her to favourable consideration. This was an evaluation or

a description of some of the facts made known by the

appellant herself, and is not a valid ground of challenge.

Reliance was placed on the decision of the High Court in

Kioa v Minister for Immigration and Ethnic Affairs (1985) 62

ALR 321 as authority for the proposition that the delegate

of the respondent was under an obligation to put to her his

views before reaching a final decision. ....

In the circumstances, I consider that the decision-maker was

not required to give the appellant a chance to comment on

the view that he had taken of it; to do so would amount to a

general requirement that a decision-maker make known in each

case his view or evaluation of the material that an

applicant puts forward: see Kioa per Brennan J. at p 380."

In the same case Neaves J. also took the view that the delegate was not required to inform the applicant that material supplied by him might result in the delegate reaching an adverse conclusion, saying (at 513):

"It was submitted that there had been a denial of natural

justice in that the delegate of the Minister had failed to

inform the appellant that she was regarded as having sought

to gain entry into Australia by a subterfuge so that she

might have an opportunity to rebut that interpretation of

the material before the delegate.

In my opinion, this submission must be rejected. ... there

is no suggestion that in doing so he relied upon any

material other than the account which the appellant gave as

to the circumstances surrounding her entry into Australia.

It was a matter for the delegate to evaluate the material

placed before him and, as the whole of that material had its

source in what the appellant had said, there was no

obligation upon him to inform the appellant that that material

might result in him forming a conclusion adverse to her."

13. In Geroudis v Minister for Immigration, Local Government and Ethnic Affairs (1990) 19 ALD 755, at 756-757, French J. considered a submission that there had been a denial of procedural fairness in that the applicant "had no opportunity to refute" a finding that a copy letter submitted by the applicant was "not genuine". He referred to the statement by Lord Diplock in F. Hoffmann-La Roche and Co., set out earlier in these reasons, and rejected the submission, saying:-

"Where deportation is considered, the prospective deportee

can support his case by appropriate information and material

but cannot complain if it is not accepted. ... The duty so

expressed does not require the decision-maker to expose his

or her conclusions for comment before taking the decision in

question. Within the bounds of rationality the views formed

upon material advanced by a prospective deportee are a

matter for the decision-maker ... it was an opinion based

upon factual material provided by Geroudis."

In my opinion procedural fairness did not require the decision maker to ask the appellant why he had sent the letter to the Iranian Embassy.

14. In Bushell v Environment Secretary [1980] UKHL 1; (1981) AC 75 at 97 Lord Diplock, in a passage which was quoted by Brennan J. in Kioa at 629, said:

"To 'over-judicialise' the inquiry by insisting on

observance of the procedures of a court of justice which

professional lawyers alone are competent to operate

effectively in the interests of their clients would not be fair."

In my opinion it would "over-judicialise the inquiry" to hold in the present case that the decision maker was required to ask the appellant as to his motivation in sending the letter. The appellant had the benefit of legal advice by solicitors, who, having written on his behalf to the Department on 6 December 1989 and on 8 December 1989, sent a written submission to the Department on 6 March 1990, after the solicitor had seen the transcript of the appellant's interview on 19 February 1990 and had again conferred with him on 26 February 1990. Although the appellant and his solicitors knew that he had been told that it was important that he provide "all the details which you consider relevant to your application" and that "the onus is on yourself", neither he nor they put forward any statement or other material referring to the appellant's motivation in sending the letter. The significance of legal advice being available to a person in the position of the appellant is a matter referred to by Toohey J. in Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 449; (1985) 69 ALR 342 at 353 and 354, citing his decision in Turner v Minister for Immigration and Ethnic Affairs [1981] FCA 65; (1981) 35 ALR 388 at 392-393.

15. It may be added that there was no evidentiary material before the decision maker that the appellant had a "fear of being persecuted for reasons of ... political opinion" which was in any way based upon the appellant's opinion of the likely reaction of the Iranian authorities to the letter.

16. In my opinion there was no failure to accord procedural fairness to the appellant and, as the other grounds advanced have been rejected, the appeal should be dismissed with costs.

17. Before leaving the appeal the attention of the respondent Minister should be drawn to the fact that there was filed on his behalf by the Australian Government Solicitor an affidavit, sworn 2 November 1990, by Anthony Clement Harris, who deposed that he had been the Deputy Secretary of the respondent Minister's Department until 16 May 1990. The affidavit contained a number of mis-statements. In both paragraph 5 and paragraph 6 the reference to "Mark Austin Lynch" should have been a reference to "Wayne Julian Gibbons". In paragraph 6 the date "7 August 1990" should have been "5 July 1990".

18. The mis-statements do not have any adverse effect upon the conduct of the proceedings in this court but the relevant officers of the Minister's Department, and of the Australian Government Solicitor's office, should be reminded of the importance of carefully checking documents filed in this court in order to ensure accuracy, especially when the document is an affidavit.

I have had the advantage of reading the reasons for judgment of Keely J. and those of Gummow J. I agree in the conclusion of Gummow J. that the appeal should be allowed on one ground. Except in respect of the ground upon which Gummow J. has concluded that the appeal should be allowed, I agree in his Honour's reasons. In respect of that ground I state my reasons below.

2. It is established that the time at which the circumstances must exist which confer on a non-citizen the status of refugee, for the purpose of s.6A(1)(c) of the Migration Act 1958 as in force immediately before 19 December 1989, is the time at which the determination contemplated by that paragraph is sought : Chan v. Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 386-287, 299, 405, 414, 432. The first application by the applicant for such a determination was made in September 1989 and was determined adversely in November 1989. The second such an application was made by a document dated 6 December 1989 submitted by the applicant's solicitors. The applicant himself made such an application on 20 December 1989. The application was determined adversely on 20 April 1990. The letter to the Embassy of the Islamic Republic of Iran was transmitted in facsimile on 6 December 1989. I would understand the time at which the determination is sought to be the time at which an application which has not been withdrawn is considered by the Minister or his delegate for the purpose of making his determination, as the language used by Mason, Deane and Dawson JJ. in Minister for Immigration and Ethnic Affairs v. Mayer [1985] HCA 70; (1985) 157 CLR 290 at 302 suggests.

3. The transmission of the letter of 6 December 1989 to the Iranian Embassy and its publication to others were the only circumstances which might have grounded a conclusion that the appellant was a refugee sur place. This the Minister's delegate who made the determination of April 1990 recognised. There was, however, at the time when the determination was made no clear indication that the appellant or his solicitor recognised that the transmission of the letter to the Embassy and its publication might ground such a conclusion. Copies of the letter were transmitted by the appellant to the DORS committee, to the respondent Minister and to the Victorian State Director of the respondent's Department, but without comment or explanation. The written submission last presented by the appellant's solicitors before the determination was made, dated 6 March 1990, reveals that the partner acting in the matter had conferred with the appellant after that partner had himself received a copy of the letter. The submission contains no reference to the letter or to the possible effect of its transmission or publication on the attitude of the Iranian government to the appellant. It includes the following sentence:

"In the view of the writer, the essence of Babaei Somaghi's

Application relates to his time in Iran and the Committee should not

be side tracked by the lies which he has told with regard to how he

came to arrive in Australia which lies were told by him for good

reason so far as he was concerned."

4. That sentence suggests that the writer was not concerned to advance the contention that the appellant was a refugee sur place.

5. Paragraph 7 of an affidavit sworn by an officer of the respondent's Department and filed on the respondent's behalf in the proceeding determined by the orders under appeal reads:

"On 8 December 1989, the applicant's solicitor advised the

Department that the applicant had written a letter to the Iranian

Embassy in Canberra which was critical of the Iranian Government. A

copy of the letter is exhibit "RH4" to my Heshmati Affidavit."

The "Heshmati affidavit" to which reference is made is an affidavit which was sworn by the officer on the same date as the date of the affidavit from which I have quoted and which was filed in the proceeding determined by the orders which are the subject of the appeal in Heshmati v. Minister for Immigration, Local Government and Ethnic Affairs, to which Gummow J. refers in his reasons for judgment. Exhibit RH5, not RH4, to the Heshmati affidavit is a copy of a letter from the solicitors who were then acting for the appellant Heshmati and the appellant Somaghi and is in these terms:

"Ms Dina Loutakis

DORS Secretariat

Department of Immigration, Local

Government and Ethnic Affairs

P O Box 25

BELCONNEN ACT 2617

Dear Ms. Loutakis,

RE: JAFAR HESHMATI

REFUGEE STATUS APPEAL

YOUR REFERENCE: 89/38215-0120

Further to our letter of the 6th December 1989, we enclose for the

DORS Committee attention, copy letters in English and Iranian signed

by Mr Jafar Heshmati and addressed to the Embassy of the Islamic

Republic of Iran, Canberra, Australia.

We would be pleased if the Committee would include these letters in

the abovenamed's Appeals against the granting of Refugee Status to

him."

I infer that the deponent intended to convey by paragraph 7 that a letter in terms similar to those of exhibit RH5, but having the name of the appellant Somaghi in place of the name of the appellant Heshmati, was received by the Department.

6. If the delegate who made the decision of April 1990 reasonably believed that the legal conceptions which underlie the expression "refugee sur place" were present to the mind of the appellant's solicitor in December 1989 or in March 1990, when the last submission on the appellant's behalf was made, no obligation in my opinion fell on the delegate to make any communication to the appellant or to the solicitor about the letter to the Iranian Embassy. "(I)n the ordinary course there is no obligation on the Minister to go beyond the material furnished to him, particularly where the proposed deportee has had the benefit of legal advice in making submissions" : per Toohey J. in Videto v. Minister for Immigration and Ethnic Affairs [1985] FCA 449; (1985) 69 ALR 342 at 345. Procedural fairness does not in my opinion require that there be disclosed to an applicant considerations influencing the Minister or his delegate which are predictable by a mind both aware of the factual circumstances and also furnished with the legal knowledge which together give rise to those considerations, if the applicant is represented by a legal practitioner who may reasonably be expected by the Minister or his delegate to be both aware of those circumstances and furnished with that knowledge. In many cases the mere fact that the applicant's representative is a practising lawyer will justify a reasonable belief that the representative's mind is furnished with the relevant legal knowledge. In a case where fear of persecution was first engendered after a person claiming to be a refugee within the meaning of the Convention had left the country of his nationality, and was first engendered in consequence of events which occurred in that country after he had left it, the conception of a refugee sur place might reasonably be expected to occur even to an unreflecting mind. But in a case such as this, where the event originating the fear of persecution, if fear there was, is an act of the person claiming refugee status, it may reasonably be supposed that a lawyer not known to be experienced in the representation of persons claiming that status may fail to recognise the act as one which may have consequences that constitute the actor a refugee sur place. The failure of the appellant's solicitors to suggest, in either of the written communications they made to the Australian governmental authorities after seeing a copy of the letter to the Embassy, that the appellant had a claim to be recognised as a refugee sur place could be explained upon several hypotheses. One is that, recognising both the possibility that the transmission of the letter to the Embassy and its publication to others might engender in the appellant a well-founded fear of persecution in Iran attracting refugee status and the possibility that the Minister or his delegate would regard the appellant's transmission and publication of the letter as not bona fide acts, the solicitors decided upon a course calculated to induce in the decision maker's mind an impression that the solicitors and their client had been candid and lacking in guile. Another is that the solicitors recognised neither possibility, but thought that the letter to the Embassy should be included in the material before the decision maker for the sake of completeness. Another is that the solicitors recognised the first possibility, but not the second. Another is that the solicitors had obtained the appellant's instructions that no fear of persecution had arisen in his mind in consequence of the transmission or publication of the letter. In my opinion the circumstances known to the delegate in this case did not enable him reasonably to judge any single hypothesis so far more probable than the others that he could without procedural unfairness determine the application on the assumption that the applicant did not assert a fear of persecution which was grounded upon his perception of the Iranian government's likely response to his transmission and publication of the letter.

7. No complaint was made before the trial judge or before this court that the delegate's failure to enquire whether the appellant was claiming to be a refugee sur place by reason of his transmission or his publication of the letter constituted a ground for setting the decision aside. The delegate assumed that the appellant was making - or should be taken to be making - such a claim and proceeded to consider, on that assumption, whether the supposed fear was well-founded and whether the claim was inadmissible because the letter had been sent, not in good faith, but in order to gain the status of refugee sur place. The submissions on behalf of the appellant were not directed to criticise that course, but were directed to showing a failure by the delegate to accord the appellant procedural fairness while the delegate was following that course : the failure to offer the appellant an opportunity to dispel the delegate's impression that the letter had not been transmitted or published in good faith.

8. The reasons for judgment of Keely J., which I have had the advantage of reading, in my opinion demonstrate that the preponderance of authority favours a rule or principle that an administrative decision maker's evaluative conclusions on the material before him does not have to be communicated to an applicant so that considerations influencing the decision maker's mind adversely to the applicant's interest may be reviewed before the decision is made in the light of any submission or evidentiary material the applicant may desire to tender in response to the communication. But there are observations, which may be thought to constitute a gloss on the general rule, that favour a requirement that the applicant have his mind directed to the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it : see Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 at 587 (per Mason J.); Sinnathamby v. Minister for Immigration and Ethnic Affairs 1986) 66 ALR 502 at 517 (per Burchett J.); Broussard v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 98 ALR 180 at 189-190. There are other observations, which may be thought to constitute another gloss on the general rule, that an unfavourable animadversion, by the decision maker or expressed by a departmental officer to the decision maker, upon the conduct of an applicant, or even of another person whose interest in a decision favourable to the applicant is to be weighed by the decision maker, should be disclosed to the applicant so that he may respond, if the animadversion is not an obviously natural response to the circumstances which have evoked it : see Minister for Immigration, Local Government and Ethnic Affairs v. Kumar (Full Court of the Federal Court; unreported; judgment 31 May 1990); Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 at 573, 588, 634, where two members of the High Court treated such an animadversion, in paragraph 21 of a submission to the decision maker, as discoverable to the applicants. I do not stay to consider whether these observations are better regarded as the glossing of a rule or as discoveries of what procedural fairness requires in particular circumstances, that which was called a rule being conceived as but another such a discovery. Either way those observations have to be taken into account in determining what procedural fairness required in this case.

9. The delegate's conclusion that the appellant did not act in good faith in sending the letter is only critical in the sense that, if all the other issues have been found to be lawfully determined adversely to the applicant's interest in achieving recognition as a refugee, that conclusion destroys his last hope of that recognition. Even in that sense, criticality is not an undoubted quality of the conclusion, because the delegate was inclined to doubt whether transmission or publication of the letter would "result in any adverse attention from Iranian authorities". The other requirement, that unfavourable judgments by the decision maker on conduct of an applicant should, unless they are obviously natural responses in the circumstances, be communicated to the applicant so that he may have the opportunity by argument or evidence to try to change the judgment, is in my opinion applicable to the circumstances of this case. The purpose imputed by the delegate - of providing the applicant with a pretext for fear of persecution - was not so obviously the purpose which a reasonable observer would attribute to transmission of the letter that the applicant should be treated as having knowledge of what the delegate's judgment of that conduct would be. "As the obligation to observe the principles of natural justice is not correlative to a common law right but is a condition governing the exercise of a statutory power, the repository satisfies the condition of adopting a procedure which conforms to the procedure which a reasonable and fair repository of the power would adopt in the circumstances when the power is exercised. When the question for the court is whether the condition is satisfied, the court must place itself in the shoes of the repository of the power to determine whether the procedure adopted was reasonable and fair." (per Brennan J. in Kioa v. West 159 CLR at 629). This delegate stood in the uneasy posture of one who had reason to doubt whether the appellant or his solicitor had even contemplated the transmission or the publication of the letter as a possible ground of recognition as a refugee sur place. So placed, he could not, as I think, be reasonably confident that his own attribution of the purpose of achieving that recognition to the appellant was the obviously natural response to the circumstances. Accordingly I think that procedural fairness required that he communicate to the applicant what he judged to have been the appellant's purpose, and take into consideration whatever response the appellant made.

2. This is an appeal from the dismissal on 22 November 1990 by a Judge of this Court (Lockhart J.) of an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The Application had been instituted on 24 May 1990 and was heard by his Honour on 12, 13 and 14 November 1990. The case was tried on the affidavit evidence filed on behalf of both parties; there was no cross-examination. Neither counsel who appeared on the appeal had appeared at first instance. But, at both stages, the same solicitors and counsel represented the appellant and respondent respectively as represented the appellant and the respondent in the matter of Heshmati v Minister for Immigration, Local Government and Ethnic Affairs. Lockhart J. heard those matters together, and the present appeal was heard immediately after the appeal in Heshmati, and by the same Bench.

3. The appellant is an Iranian national who was born in Iran on 4 June 1962. He arrived in this country on 6 September 1989 on a flight from Singapore to Melbourne. He later conceded that he travelled on a fraudulently obtained Greek passport issued to him in a false name. The boarding pass issued to him by Singapore Airlines identified the appellant by this false name. At the time of his entry into Australia, the appellant produced to the immigration authorities this passport and boarding card. The appellant was granted an entry permit to enter and remain in Australia for a period of one month, that is to say until 5 October 1989. The entry permit was granted to him in the false name that appeared in the passport and boarding card.

4. The entry permit was not endorsed with a statement recognising the appellant to be a person referred to in para. 16 (1) (b) of the Migration Act 1958 ("the Act") (as it then stood) namely a person who had produced at the time of his entry into Australia a bogus passport and an incoming passenger card identifying him in a false name. The result was that, by dint of sub-s. 16 (1) of the Act, and notwithstanding the issue of the entry permit upon the strength of this false information, the appellant was deemed to be a prohibited non-citizen. That meant that he was forthwith liable to deportation pursuant to s. 18 of the Act. On 7 September 1989, the appellant approached the Melbourne office of the respondent's department, and was arrested under s. 38 of the Act as it then stood, on the footing that he was reasonably supposed to be a prohibited non-citizen.

5. On 18 September 1989, the appellant lodged an application for grant of "refugee status" as a necessary step to compliance with the condition specified in para. 6A (1) (c) of the Act. The application was considered by the Committee for the Determination of Refugee Status (DORS) and was refused on 10 November 1989. On 23 November 1989, the appellant lodged an application for grant of resident status on the footing of strong compassionate and humanitarian grounds within the meaning of para. 6A (1) (e). This application also was refused on 27 November 1989. In support of both cases, the appellant had made claims as to his past history which were found to lack credibility. A Statement of Reasons under s. 13 of the ADJR Act, in respect of the decision of 27 November 1989, was later supplied on 5 July 1990.

6. On 6 December 1989, a letter signed by the appellant and by Mr Heshmati was sent to the Iranian Embassy in Canberra (and to other persons and institutions including an officer of the respondent's Department); the letter contained statements critical of the Iranian regime. The appellant's solicitors sought reconsideration of his application for refugee status and the DORS Committee agreed to do so. But on 20 April 1990, a Delegate of the Minister, Mr Harris, decided that the appellant did not have refugee status.

7. The DORS Committee had agreed to reconsider the application because it perceived it as now raising an additional and important issue, namely whether the appellant had become a refugee "sur place" by reason of his action in despatching the letter to the Iranian Embassy. The solicitors had not put that point. Mr Harris determined not to approve the grant of refugee status in the following terms:

"I agree that the principal outstanding matter

is the effect of the (appellant's) actions in

alerting the Iranian Embassy (and others) to

views about the regime in that country.

I agree that the communication was made for the

sole or dominant purpose of enhancing the claims

of (the appellant).

. . ."

8. The Act had been substantially amended with effect from 19 December 1989. On 2 May 1990, Mr Heath, a Delegate of the respondent ordered, pursuant to s. 60 of the Act, as it now stood, that the appellant be deported from Australia as an "illegal entrant". That term had superseded the expression "prohibited non-citizen". The deportation order recited that the appellant was:

"an illegal entrant by virtue of sub-section 14

(2) of the Migration Act 1958, in that he, at

the time of entry into Australia, produced to an

officer, in respect of that entry, a bogus

document within the meaning of section 20 of the

Act, and he is not the holder of a properly

endorsed valid entry permit of the kind referred

to in that sub-section . . ."

Paragraph 20 (1) (b) is the counterpart of the previous para. 16 (1) (b) of the Act. The case was conducted on the footing that with the changes in the legislation effective on 19 December 1989, the status of the appellant changed from that of a "prohibited non-citizen" pursuant to the former s. 16, to that of an "illegal entrant" by dint of para. 20 (1) (b) and sub-s. 14 (2) of the Act.

9. Before making the deportation order on 2 May 1990, the Delegate had been obliged by Migration Regulation 179 to take into account, inter alia, whether the appellant had been granted "refugee status or territorial asylum" in Australia and whether he remained an applicant for such status; see also para. 47 (1) (d) of the Act as it by then was expressed.

10. As I have indicated, the present proceedings were instituted on 24 May 1990.

11. On 14 September 1990, a written recommendation was made to a Delegate of the respondent in respect of an application for reconsideration of the appellant's application for resident status. In paras. 18, 19 and 20 of that recommendation, it was pointed out to the Delegate that because there was in existence the deportation order dated 2 May 1990, an entry permit could not be granted unless the deportation order ceased to have effect, so that if it was decided to grant resident status, it was also necessary to decide that the deportation order be set aside; whilst the appellant now had the status of an illegal entrant pursuant to sub-s. 14 (2) of the Act, at the time of his application he was a prohibited non-citizen by virtue of s. 16 of the Act as it then stood and the one month entry permit granted to him was not valid. Paragraph 19 was in the following terms:

"19.

In assessing whether to grant (the appellant) resident

status it is necessary to establish whether he meets any of

the legal requirements of Section 6A (1) of the then Act.

(The appellant) has applied on compassionate and

humanitarian grounds, however, he does not meet the legal

requirement of Section 6A (1) (e) in that he is not the

holder of a valid (temporary entry permit). The decision

maker, however, has the discretion under Section 6 (5) to

grant a temporary entry permit and you may wish to consider

whether (the appellant's) claims warrant the grant of

resident status such that you would grant to him a

(temporary entry permit) for the purpose of satisfying

Section 6A (1) (e)."

12. In para. 26, reference was made to the letter sent by the appellant and Mr Heshmati to the Iranian Embassy in Canberra dated 6 December 1989 in which opposition had been expressed to the current Iranian government. The conclusion was expressed that any adverse attention received as a result of this letter would not be so severe as for it to be unreasonable to expect the appellant to return to Iran. The recommendation to the decision maker was that the requirements of para. 6A (1) (e) were not met, that there were insufficient reasons, on balance, to grant the appellant resident status, and that he should be refused both the grant of a temporary entry permit and the grant of a permanent entry permit.

13. On 17 September 1990, the decision maker, Mr Heath, noted on the document containing this recommendation that he accepted it, that the grant of a temporary entry permit was refused and that because the appellant had failed to satisfy him that he met any of the requirements of sub-s. 6A (1) of the Act, he was precluded by the operation of the Act from granting him an entry permit. In these proceedings, the appellant sought an order of review under the ADJR Act of those decisions of 17 September 1990.

14. On 5 July 1990, that is to say after the making of the deportation order on 2 May 1990, and the institution of these proceedings on 24 May 1990, a Statement of Reasons under s. 13 of the ADJR Act was provided by a Delegate of the respondent, Mr Gibbons, in respect of the decision of 20 April 1990 by the former Delegate, Mr Harris, that the appellant did not have 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 ("the Convention") or the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967 ("the Protocol"). The appellant sought from this Court an order of review in respect of that decision of 20 April 1990.

15. In the Statement of Reasons, the Delegate referred to the "credibility problems" of the appellant in relation to his account of events during and after his time in Iran and, indeed, as to the date at which and circumstances in which he had left Iran. Inconsistencies in his account of events had been put to him both at an interview on 19 February 1990 conducted with the appellant by an officer of the respondent's department, and in a subsequent telephone call on 7 March 1990 to the appellant's solicitor. In view of the appellant's "lack of credibility and profile", Mr Harris, the former Delegate, had assessed that both at the time of his departure from Iran and arrival in Australia, the appellant had not established that a real chance existed of him facing "persecutory treatment" from the Iranian authorities if he were to return to Iran.

16. Consideration had been given by the decision maker to the issue of whether the despatch of the letter of 6 December 1989 to the Iranian Embassy raised the prospect of the appellant becoming a refugee "sur place". Copies of that letter had been sent to various persons and organisations including the Prime Minister, the Australian Council of Churches, the Refugee Council of Australia, the United Nations High Commission for Refugees and the Victorian State Director of the respondent's Department.

17. In this regard, paras. 33, 35 and 36 of the Statement of Reasons of 5 July 1990 are in the following terms:

"33.

In the former Delegate's assessment, the (appellant's)

action did not appear to have been undertaken for political

motives or to have been committed unwillingly or

unwittingly. Rather, his despatch of a letter to the

Iranian Embassy detailing his opposition to the Iranian

Government appeared to have been undertaken for the sole

purpose of enhancing his claim for refugee status. This

conclusion is supported by the timing of the letter:

.

the former Delegate noted that the letter was sent on the

same day as the solicitor's request for reconsideration of

the case;

.

this led him to assess that the act was not committed in

'good faith'.

. . .

According to the former Delegate, the (appellant) had not

established a claim to refugee status before he despatched

the letter to the Embassy, neither did he act in good faith

in sending a provocative letter to the Iranian Embassy.

Accordingly, even if the actions by the (appellant) did give

rise to a real chance of persecution, the fact that the act

did not arise from a Convention related criterion meant that

he should not be extended the benefit of the protection of

the Convention. In the former Delegate's view, persons who

have committed a politically pertinent act solely to seek to

bring themselves within the terms of the Convention may not

claim good faith. In any event, the former Delegate

considered that there was a real chance that such an act

would not result in any adverse attention from Iranian

authorities. He noted advice that the tactic of sending

provocative letters to their embassies by Iranians abroad

has been repeated frequently over the years and may be seen,

also by Iranian authorities, as nothing more than a final

attempt to secure residency in a chosen country.

After consideration of all the available information, the

former Delegate concluded that the serious inconsistencies

in the (appellant's) claims placed doubts on the

creditability of his claims for refugee status, and that the

(appellant) had, overall, failed to establish that his

claimed fear of returning to Iran was well-founded.

Accordingly, the former Delegate determined that the

(appellant) was not a refugee within the meaning of the

Convention and Protocol."

18. The Application to this Court was expressed in very general terms. However, at the hearing before Lockhart J., the ambit of the matter was narrowed somewhat by provision of a document headed "Decisions and Conduct under Review". This singled out for review three groups of decisions, (i) the decision of 2 May 1990 that an order be made for the deportation of the appellant, (ii) the decision of Mr Harris of 20 April 1990 that the appellant did not have refugee status and (iii) the decisions of Mr Heath of 17 September 1990 that the deportation order not be set aside and that the appellant be denied the grant of a temporary entry permit and the grant of a permanent entry permit as not having satisfied the condition in para. 6A (1) (e) of the Act, that is to say, the existence of strong, compassionate or humanitarian grounds for the granting of such a permit. The decisions in category (iii) post-dated the institution of the Application on 24 May 1990, and it may be that a fresh Application should have been filed and the two consolidated: Park Oh Ho v Minister for Immigration and Ethnic Affairs (1987) 14 FCR 274. But in view of my conclusion upon the outcome of this appeal, it is unnecessary to deal further with that question in these reasons.

19. On the appeal, counsel for the appellant who, as I have indicated, had not appeared below, sought to broaden the appeal so as to encompass orders of review of decisions beyond those decisions which I have described above. The appeal should not be expanded beyond the subject matter of the proceeding at first instance. In the end, counsel accepted this as inevitable.

20. As I have indicated, one of the decisions in respect of which an order of review was sought was that of 20 April 1990 that the appellant did not have refugee status. Paragraph 6A (1) (c) provided, before the amendments effective from 19 December 1989, as follows:

"6A(1)

An entry permit shall not be granted to a non-citizen after

his entry into Australia unless one or more of the following

conditions is fulfilled in respect of him, that is to say -

. . .

(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

. . ."

The reference to an entry permit is to an entry permit other than a temporary entry permit: sub-s. 6A (8). It was decided in Minister for Immigration and Ethnic Affairs v Mayer [1985] HCA 70; (1985) 157 CLR 290 that (i) para. 6A (1) (c) impliedly confers on the Minister the function of determining whether an applicant under that provision has refugee status, and (ii) the decision of the Minister is made "under an enactment" so as to be susceptible of review under the ADJR Act. There was no debate before Lockhart J. or before the Full Court as to whether a comparable position applies in the administration of para. 47 (1) (d) of the Act in its present form. The case was conducted as if the relevant decision of 20 April 1990, denying refugee status, was one to which the old s. 6A was applicable. As is apparent from the decision in Mayer supra, the effect of para. 6A (1) (c) is to draw into municipal law, as a justiciable subject matter, the meaning of the Convention and Protocol; see also Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 367-373.

21. Article 1A (2) of the Convention, as amended by the Protocol, provides that the term "refugee" shall apply to any person who:

"owing to well-founded fear of being persecuted

for reasons of race, religion, nationality,

membership of a particular social group or

political opinion, is outside the country of his

nationality and is unable or, owing to such

fear, is unwilling to avail himself of the

protection of that country; or who, not having a

nationality and being outside the country of his

former habitual residence is unable or, owing to

such fear, is unwilling to return to it."

22. Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 is authority for the propositions that (i) this definition of "refugee" involves what is described as a mixed subjective and objective test, (ii) the time at which the possession of the status of refugee is to be considered is that at which the determination by the Minister is made under para. 6A (1) (c) of the Act, and (iii) the definition in the Convention is satisfied if an applicant shows a genuine fear founded on a real chance that he or she would be persecuted for one of the stipulated reasons if that person returned to the country of nationality. It should be noted that in Chan, the essential facts were not in dispute, whilst in the present case the bona fides of the appellant were not accepted by the decision makers.

23. In Mayer supra, the applicant had been granted a temporary entry permit so that the first of the two conditions spelled out in para. 6A (1) (c) had been satisfied. That was not the position in Chan supra, nor in the present case. Nevertheless, in Chan, Mason C.J. (at 386), Dawson J. (at 394-395) and Toohey (at 404) were prepared to act on the footing that although an applicant may not have a temporary entry permit, the determination of refugee status nevertheless is a decision made "under an enactment" for the purposes of attracting the jurisdiction of this Court under the ADJR Act.

24. An alternative or supplementary view was canvassed by Mason C.J. (at 386), Gaudron J. (at 411-412) and McHugh J. (at 420-421), that in dealing with refugee status the Minister at least engages in conduct for the purpose of making a decision under s. 6A, thereby attracting the jurisdiction of this Court under sub-s. 3 (5) and s. 6 of the ADJR Act. This approach to the matter may have to be treated as contradicted by what later was said as to the distinction between a "decision" and "conduct" for the purposes of the ADJR Act, by Mason C.J. in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 341-343; the judgment of the Chief Justice had the concurrence of Brennan J. and Deane J. But however that may be, in my view it remains the position (and I did not understand this seriously to be challenged by counsel for the respondent) that, in a case such as the present, the determination that the appellant did not have refugee status was made under an enactment and was one to which the ADJR Act applied.

25. The present case was distinguished from that of Heshmati v Minister for Immigration Local Government and Ethnic Affairs because the applicant there was deemed not to have entered Australia and s. 6A had no application at all. Nevertheless, in his reasons for judgment in the present case, Lockhart J. said that, putting aside that point, the submissions made in both cases attacking the decisions under review were substantially the same and his reasons for judgment in Heshmati were to be treated as disposing also of the instant case. I turn therefore to the reasons for judgment in Heshmati treating them as applicable in the sense explained to the present case.

26. It will be apparent from the terms of Article 1A (2) of the Convention, which I have set out, that the applicant for refugee status may be unable or, owing to his or her well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, be unwilling to avail himself or herself of the protection of the country of nationality.

27. In that regard, his Honour referred to the disbelief by the decision makers of Mr Somaghi's account of events before his arrival in Australia and to the assessment of the likely impact in Iran of his action in sending his letter to the Iranian Embassy in Canberra and to other addressees. In that respect, I have set out para. 35 of the Statement of Reasons of 5 July 1990 and I have referred to para. 26 of the recommendation of 14 September 1990. His Honour decided that there was ample material to justify the conclusion that it had not been established that a well-founded fear of persecution existed if the applicant should return to Iran.

28. Counsel for the appellant said all that could be said to controvert that conclusion, but I accept the submission for the respondent that there was ample material of the kind described by his Honour and set out in detail in earlier portions of his judgment. Against that background, it would not be true to say that the determination as to lack of refugee status was one made in circumstances where there was no evidence or other material to justify the making of the decision, as provided in para. 5 (1) (h) and sub-s. 5 (3) of the ADJR Act, and as expounded by Mason C.J. in Australian Broadcasting Tribunal v Bond supra at 340-341, 357-360. Nor, consistently with what was said by the Chief Justice in the same case at 355-357, was there a defect in the fact finding process which rose to the level of an error of law within the meaning of para. 5 (1) (f) of the ADJR Act.

29. There was, however, another branch of the appeal concerning the determination as to lack of refugee status, upon which detailed submissions were made, and in response to those submissions the Court should, in my view, express a conclusion which will be supplementary to that indicated above. It concerns an alleged error of law in construing para. 6A (1) (c) of the Act as it picks up the terms of the Convention.

30. Article 1A (2) of the Convention, as construed in Chan, requires the decision maker, as regards an individual then outside the country of his nationality, to determine whether that person then is unwilling to avail himself or herself of the protection of the country of nationality owing to a well-founded fear of persecution which now exists for, inter alia, reasons of political opinion or membership of a particular social group. It follows that the well-founded fear of persecution which now exists may have arisen at a time when the person in question was already outside the country of nationality. As the decision in Chan indicates, the definition of "refugee" involves both objective and subjective elements.

31. In deciding questions as to the meaning of provisions of treaties which arise in a matter before this Court, it is permissible to have regard, inter alia, to the commentaries of learned authors and the decisions of foreign courts as aids to interpretation: Fothergill v Monarch Airlines Limited [1980] UKHL 6; (1981) AC 251 at 294-295. The High Court judgments in Chan illustrate this practice. In particular, in that case Dawson J. (at 396-397, 399-400), Gaudron J. (at 416), McHugh J. (at 430) and Toohey J. (at 405), in addition to considering the writings of various learned authors, also had regard to the handbook issued by the office of the United Nations High Commissioner for Refugees under the title Handbook on Procedures and Criteria for Determining Refugee Status, 1979. (Mason C.J. (at 392) inclined to the view that the Handbook should not be treated as providing an interpretation of the meaning of relevant parts of the Convention.)

32. In the Handbook, under the heading "Is Outside the Country of his Nationality", taken from Article 1A (2), is the sub-heading "Refugees 'sur place'". There follow paras. 94, 95 and 96 in these terms:

"94.

The requirement that a person must be outside his country

to be a refugee does not mean that he must necessarily have

left that country illegally, or even that he must have left

it on account of founded fear. He may have decided to ask

for recognition of his re status after having already been

abroad for some time. A person who was not a refugee when

he left his country, but who becomes a refugee at a later

date, is called a refugee 'sur place'.

A person becomes a refugee 'sur place' due to circumstances

arising in his country of origin during his absence.

Diplomats and other officials serving abroad, prisoners of

war, students, migrant workers and others have applied for

refugee status during their residence abroad and have been

recognised as refugees.

A person may become a refugee 'sur place' as a result of his

own actions, such as associating with refugees already

recognised, or expressing his political views in his country

of residence. Whether such actions are sufficient to

justify a well-founded fear of persecution must be

determined by a careful examination of the circumstances.

Regard should be had in particular to whether such actions

may have come to the notice of the authorities of the

person's country of origin and how they are likely to be

viewed by those authorities."

To the same effect is a passage in Goodwin-Gill's work "The Refugee in International Law", p 25, and in Grahl-Madsen's "The Status of Refugees in International Law", 1966, Vol. 1, para. 95.

33. I have referred to the conclusion recorded in para. 33 of the Statement of Reasons of 5 July 1990, that the despatch of the letter to the Iranian Embassy and to others was not a step taken in good faith, and was undertaken for the sole purpose of enhancing the appellant's claim for refugee status. In that regard, Lockhart J. said:

"There is some conflict of opinion as to whether an

applicant for refugee status who has deliberately created

circumstances in the country of residence exclusively for the

purpose of subsequently justifying a claim for refugee status is

entitled to be treated as a refugee sur place and this division of

opinion is referred to in some of the material before the

decision-makers in this case. I cannot accept that a person who has

deliberately created the circumstances to which I have just referred

is entitled to recognition as a refugee sur place, for to accept it

would be to place in the hands of the applicant for refugee status

means of unilaterally determining in the country of residence his

status as a refugee and deny to the sovereign state of his residence

the right to determine his refugee status. The true position is in

my view as is stated in para. 96 of the United Nations Handbook. It

is this position which was adopted by the decision-makers in this

case. The view was taken that, after examining the relevant

circumstances surrounding the sending of the letter by the applicant

to the Iranian Embassy in Canberra and the other persons and bodies

previously mentioned on 6 December 1989, the applicant had done this

for the purpose of creating the circumstances which might endanger

him in Iran.

. . .

That a person can acquire refugee status sur place is

plain enough because if a person was not a refugee when he arrived

in the country of residence, but events occurred there or in his

place of origin which gave rise to a real or well-founded fear of

persecution upon his returning to the country of origin, his status

as a refugee may arise notwithstanding that the only relevant events

that gave rise to it are those which occurred after he left his

country of origin. Those events may result solely from his own

actions such as expressing his political views in his country of

residence. It is true that the expression of those views may in

some cases justify a well-founded fear of persecution if he should

return to his country of origin; but I am not persuaded as presently

advised that a person whose sole ground for refugee status consists

of his own actions in his country of residence designed solely to

establish the circumstances that may give rise to his persecution if

he should return to the country of origin is necessarily a refugee

sur place."

34. Lockhart J. said that it was unnecessary for him to decide the legal issue as to which there was a conflict of learned opinion. Nevertheless, for the reasons which on a provisional footing commended themselves to his Honour, it should be accepted that actions taken outside the country of nationality or, in the case of a person not having a nationality, outside the country of former habitual residence, which were undertaken for the sole purpose of creating a pretext of invoking a claim to well-founded fear of persecution, should not be considered as supporting an application for refugee status. The fear of persecution to which the Convention refers, in such cases will not be "well-founded". There was no error of law in the decision of 20 April 1990 in the treatment of the Convention.

35. However, there arises a question as to procedural fairness. That is, of course, a distinct ground of review: ADJR Act, para. 5 (1) (a). The appellant submitted that the decision of 20 April 1990 denying refugee status was vitiated by a lack of procedural fairness, insofar as the conclusion had been reached that he had not acted in good faith in sending the letter of 6 December 1989 to the Iranian Embassy and the other addressees. As appears from para. 33 of the Statement of Reasons (which I have earlier set out), the decision maker had supported this conclusion by the timing of the letter, it having been followed by the request by the appellant's solicitor for reconsideration by the DORS Committee.

36. It was submitted for the appellant that there had been the occasion to give the appellant the opportunity to deal with that allegation against him, particularly at the interview on 19 February 1990 (the transcript of which runs to 8 pages in the Appeal Book) and in later dealings with his solicitors, but that the opportunity had not been given him. His purpose in sending the letter was never put to him or to his solicitors. That also was one of the complaints made in counsel's address to the primary Judge (Transcript 13 November 1990, pp 222-223, 14 November 1990, pp 105-106). The point appears in the scale of things to have been far weightier than para. 21 was in Kioa v West [1985] HCA 81; (1985) 159 CLR 550, considered below.

37. The finding as to lack of good faith was of particular importance to the conclusion that the appellant had not become a refugee "sur place". It was the very question as to whether the appellant had become such a refugee which had moved the DORS Committee to reconsider his application. The primary Judge held that the decision makers "were entitled on the material before them" to take the view that the appellant "had contrived the idea of writing to the Iranian Embassy simply to create his status as a refugee sur place". His Honour said that this "was a conclusion reasonably open to the decision makers".

38. But there remains the objection as to alleged lack of procedural fairness. Gibbs C.J. pointed out in National Companies and Securities Commission v News Corporation Limited [1984] HCA 29; (1984) 156 CLR 296 at 316, that the application of the rules of natural justice may vary from case to case even though the same power is being exercised; see also Kioa v West, supra at 633 per Deane J., and Australian Broadcasting Tribunal v Bond, supra at 366-367 per Deane J. The availability to a party of legal advice may be of considerable significance: Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 449; (1985) 8 FCR 167 at 179 per Toohey J. The decision maker has to adopt what in the circumstances of the case is a reasonable and fair procedure, having regard to the matters the decision maker is bound to take into account, and also to those matters adverse to the interests of the person in question which he proposes to take into account: Kioa v West, supra at 627-629 per Brennan J., Allars, "Introduction To Australian Administrative Law", 1990, s. 6.66-6.70. As Mason J. pointed out in the same case, supra at 587, ordinarily an applicant for an entry permit cannot complain if, without further notice, the material put forward is rejected; see also Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 513; Geroudis v Minister for Immigration, Local Government and Ethnic Affairs (1990) 19 ALD 755 at 756-757.

39. However, in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant's interests which the decision maker proposes to take into account, even if the source of concern by the decision maker is not information or materials provided by the third party, but what is seen to be the conduct of the applicant in question. In Kioa v West, differing views were expressed on the question of whether fairness demanded that the appellant in that case had the chance of replying to the comment in para. 21 of the Departmental submission to the Delegate. This was that if the appellant had been genuine in his desire to seek a legitimate extension of his stay in Australia, he might have sought a decision on his application, rather than change his address apparently without notifying the Department; see, on the one hand, the view of Mason J. (at 588) and Deane J. (at 634), which favoured the appellant, with the apparently adverse views of Gibbs C.J. (at 568-569), Wilson J. (at 601) and Brennan J. (at 628).

40. In the present case, views already had been taken as to the "credibility problem" of the appellant. The course of events gave, as the primary Judge found, ample justification for that conclusion. Accordingly, it had been well open to decide in November 1989 that as then framed the application for refugee status should fail because the subjective element as to well-founded fear had not been made out.

41. It was against that background that there occurred the events which followed the letter of 6 December 1989 to the Embassy and the solicitors' success in obtaining reconsider-ation of the application for refugee status. The solicitors had not asserted that their client now had a fresh claim, namely to be recognised as a refugee "sur place". But this point was taken by the DORS Committee and the Delegate. They embarked upon the question whether, even if the appellant previously had failed to make out a case for refugee status upon past events, now he was entitled to be treated, by virtue of subsequent events, as a refugee sur place. The uncommunicated assumption was that the appellant was to be taken as having now made such a claim.

42. In that setting, it is to be borne in mind that the need to give the appellant the opportunity of meeting the proposed finding as to lack of bona fides would never be more necessary than when, given the existing view as to the appellant's "credibility problem", the decision maker was at risk otherwise of proceeding as if any response would be worthless. The observations of Deane J. (in a slightly different setting) in Kioa v West, supra at 633, are in point:

"Clearly enough, the mere circumstance that there is no

apparent likelihood that the person directly affected could

successfully oppose the making of a deportation order neither

excludes nor renders otiose the obligation of the administrative

decision-maker to observe the requirements of procedural fairness.

Indeed, the requirements of procedural fairness may be of added

importance in such a case in that they ensure an opportunity of

raising for consideration matters which are not already obvious."

43. This passage was applied in Colpitts v Australian Telecommunications Commission (1986) 70 ALR 554 at 573, and I would adopt what is there said by Burchett J. See also the observations of Toohey J. and McHugh J. respectively in Haoucher v Minister of State for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 670-671, 683, and Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 98 ALR 180 at 189-190.

44. In my view, the appeal against the dismissal of the appellant's application for an order of review in respect of the decision of the respondent's Delegate made on 20 April 1990 that the appellant does not have refugee status, should be allowed. That decision should be set aside. The appellant's application for a determination that he has refugee status should be referred back to the respondent and determined according to law.

45. I have considered whether the lack of procedural fairness which I have described had an effect which tainted the decision of 17 September 1990 that there were not strong compassionate or humanitarian grounds for the grant of an entry permit to the appellant: para. 6A (1) (e) of the Act. I have already referred in general terms to para. 26 of the recommendations of 14 September 1990 which were accepted by Mr Heath on 17 September 1990. If the paragraph be read in full, it will be apparent that the writer was treating the letter of 6 December 1989 on its face value and putting a view as to how it would be regarded by the Iranian authorities. I would not treat the decision upon para. 6A (1) (e) as impaired by the procedural defect attending that upon refugee status.

"26.

In relation to the letter sent by (the appellant) and

another Iranian detainee to the Iranian Embassy you may form

the view that the statements contained in the letter are not

overtly political, that is, there is no suggestion that the

authors are involved in any particular political or

opposition group. It is submitted that those statements

indicate a general opposition to the authoritarian nature of

the Khomeiny regime and a preference to live in Australia.

Indeed the sentiments contained therein are in contradiction

to those of the Mojahedin who profess Marxism and Islamic

principles and who have, in the past, utilised acts of

terrorism to make their point. While Iran has a reputation

for human rights abuses and discrimination of

non-conformists, it is, I submit, doubtful that this letter

would be regarded as little more than a cynical attempt to

gain residence in Australia. Any difficulties faced by (the

appellant) are of his own making, however, this being so,

were the result of his actions so severe as to create a risk

of imprisonment or execution or punishment so harsh as to be

unacceptable to Australians it would not be reasonable to

enforce (the appellant's) return to Iran. Nevertheless, in

light of Rafsanjani's statements regarding Iranians abroad,

it is less likely that (the appellant) would face any

repercussions should he return. I therefore submit that any

adverse attention received as a result of this letter would

not be so severe as to be unreasonable to expect (the

appellant) to return to Iran. You may therefore be of the

opinion that there are no grounds arising from this act such

that it would meet the requirements of Section 6A1(e)."

47. The appellant had submitted below that there had been various other denials of procedural fairness. Lockhart J. held that, to the contrary of those submissions, the decision makers had gone to considerable length to be fair to the appellant. We were taken through the materials at some length, and it is sufficient to say that with the exception I have sought to explain, I agree with that conclusion. I agree also that there was no failure to take into account relevant considerations and no taking into account of irrelevant considerations. Still less is there any footing for application of any principles of Wednesbury unreasonableness.

48. The appeal should be allowed upon the limited issue I have described and otherwise dismissed. The orders as to costs made by Lockhart J. on 22 November 1990 should be set aside. The respondent should pay the appellant one half of the appellant's costs of the proceeding determined by the said order made 22 November 1990, and one half of the appellant's costs of the appeal.