(ii) has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.
(3) The fact that an unlawful non-citizen is eligible to apply for a substantive visa that can be granted when the applicant is in the migration zone but has not done so does not prevent the application of subsection (2) to him or her.
(4) Nothing in subsection (2) requires the Minister or any officer to:
(a) advise a non-citizen covered by subsection 193(1) as to whether the non-citizen may apply for a visa; or
(b) give a non-citizen covered by subsection 193(1) any opportunity to apply for a visa; or
(c) allow a non-citizen covered by subsection 193(1) access to advice (whether legal or otherwise) in connection with applications for visas.
(5) ...
(6) ...
(7) ...."
It is the case that the categories of procedural fairness are not closed nor are they rigid: Kioa (supra) at 601, 612. It is also the case that in the course of his reasons Mason J said at 585 that "...the expression procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case." That statement, however, is referrable to the circumstances of the case determined by reference to the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting. If the relevant statutory provision here is s198, it is necessary to turn to it. It is common ground that the appellants are persons to whom s198(2) of the Migration Act applies in that they come within s193(1) as persons detained under subs189(2). The question which must be asked (the threshold question) is whether the relevant exercise of the power in the section is conditioned upon observance of the principles of natural justice: Kioa at 612 per Brennan J. For procedural fairness to not govern the relevant exercise of statutory power, there is a need for a strong manifestation of contrary statutory intention: Kioa at 585 per Mason J. The context of the Act which conditions the exercise of what appears to be the relevant power, namely the decision to remove the appellants without considering them as applicants for refugee status contains provisions which, in my judgement, manifest strongly an intention to exclude procedural fairness of the type particularised in paragraphs (1) to (4) above. When s198(4) says that nothing in subsection (2) requires the Minister or any officer to take the steps there referred to it means that nothing, including the common law of procedural fairness, requires the Minister or an officer to so act in removing an unlawful non-citizen as soon as reasonably practicable. In providing in subs198(4) - and in s193(2) - that nothing in that subsection requires the Minister or any officer to take any of the steps referred to, the legislature is manifesting a very clear intention that those steps do not have to be taken in relation to non-citizens subject to the exercise of statutory power under subs(2). If those steps form part of the requirements of procedural fairness as is contended for the appellants, Parliament has negated their application. This is not therefore a case where the statute is silent and the presumption of procedural fairness in those respects is undisplaced: Kioa at 615 per Brennan J. Quite apart from the negating effect of s193(2) and s198(4), the law is that the concept of procedural fairness does not carry with it an obligation on an administrator to give advice to an applicant. In Minister for Immigration, Local Government and Ethnic Affairs v Buksh (1992) 26 ALD 399 at 404 the Full Court (Neaves, Beaumont and O'Loughlin JJ) agreed with Davies J in Elbourne v Minister for Immigration, Local Government and Ethnic Affairs (1991) 22 ALD 211 at 212 where he said: "In considering this submission, it must be kept in mind that good administration does not preclude the giving of help and assistance when it appears to be needed. But the principles of procedural fairness do not require that, in the generality of cases, the circumstances of a person seeking to make an application for a permit should be considered in detail and advice given as to the application that can best be made. Indeed, s34 of the Act provides that a person making an application for an entry permit shall make application for an entry permit of a particular class in accordance with the regulations and, until that has been done, the minister is not required to consider an application at all'."
See also Luu v Renevier (1989) 91 ALR 39 at 45. Even more must that be the case where, in relation to non‑citizens, ss45-47 have been enacted.
In the "Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees" published by the Office of the United Nations Commissioner for Refugees, January 1992, p46 refers to certain basic procedural requirements approved by the Executive Committee of the High Commissioner's Programme in October 1977 (Official Records of the General Assembly, Thirty-Second Session, Supplement No 12 (A/32/12/Add 1), par53(6)(e)) made appropriate by the special situation of an applicant for refugee status. Among these procedures are the following:
"(i)The competent official (eg., immigration officer or border police officer) to whom the applicant addresses himself at the border or in the territory of a Contracting State should have clear instructions for dealing with cases which might come within the purview of the relevant international instruments. He should be required to act in accordance with the principle of non-refoulement and to refer such cases to a higher authority.
(ii)The applicant should receive the necessary guidance as to the procedure to be followed.
...
(iv)The applicant should be given the necessary facilities, including the services of a competent interpreter, for submitting his case to the authorities concerned. Applicants should also be given the opportunity, of which they should be duly informed, to contact a representative of UNHCR"
In my opinion, the enactment in Australia of s193(2) and s198(4) directly negates the possibility of those procedures forming part of any obligation on the part of administrators required to meet and deal with refugees in Australia.
In Hamilton (supra) at 363, Burchett J (with whose reasons Sheppard J agreed) said:
".....Peoples' fundamental liberties should not... be obliterated by the lack of an appropriate form, or by inability to obtain advice within a few days, especially while in custody. And to the extent that strict rules are applied, there should be equal strictness to ensure the Department provides the necessary information and the means of immediate compliance by those affected."
The undoubted sense of justice and fairness implicit in that statement is one which may have governed the situation of the appellants had not Parliament chosen, in respect of non‑citizens, to enact s193(2) and s198(4) thereby negating any obligation upon an officer to so act.
As part of the contentions on procedural fairness it is said the equitable concept of fiduciary conduct should be applied to public officials and that any departure from procedurally fair standards can therefore be redressed by a court granting remedies such as the equitable remedies sought in the present proceeding: cf P Finn, "The Forgotten "Trust"; The People and the State" in M Cope (ed) Equity Issues and Trends (1995) at 131. Paramount in determination of those standards must be the requirements of the law. The enactment of s 193(2) and s198(4) curtails any possibility that the failures of any public officials in terms of pars(1) to (4) above could constitute a breach of such standards even if that notion of trusteeship were so applicable. For a related argument based on the concept of legitimate expectations see: P Finn and K J Smith, "The Citizen, the Government and `Reasonable Expectations'" (1992) 66 ALJ 139 at 145 ff.
For the appellants it is also argued that if this be the domestic law of Australia, it is in breach of Australia's obligations under international law: cf Mabo v Queensland (No 2) (supra) at 42 and Chu Cheng Lim (supra) at 38. In Teoh (supra) at 362-3, Mason CJ and Deane J said:
"Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law. The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law.[Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed); Dietrich v R (1992) 107 ALR 1; 177 CLR at 321 per Brennan J, 360 per Toohey J; Jago v District Court of New South Wales (1988) 12 NSWLR 558 at 569 per Kirby P; Derbyshire County Council v Times Newspapers Ltd [1992] QB 770]. But the courts should act in this fashion with due circumspection when the parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials.[Lamb v Cotogno (1987) 164 CLR 1 at 11-12; 74 ALR 188] Much will depend upon the nature of the relevant
provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of our domestic law."
That dicta was preceded by an affirmation of the traditional view that a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law (at 362).
The present is not a case of statutory ambiguity nor of the exercise of a statutory discretion. Nor has it been argued the principles of procedural fairness as recognized at common law require development beyond their present content to be applicable to the case of the appellants. Rather it is a case where Parliament in enacting s193(2) and s198(4) has sought to negate an obligation upon administrators to act in the specified respects. This is not a case where resort to Australia's international obligations can assist. It is a case where the nature of the relevant provision is determinative.
The leave granted by Carr J on 13 April 1995 to the Human Rights and Equal Opportunity Commission to file written submissions requires no further grant of leave for the submissions of the Commission to be fully considered on these issues.
There is a further aspect to the alleged failure to tell the appellants that they were entitled to seek legal advice. In Guo (supra), Sackville J stated that "the general principles of procedural fairness might require that, at some point in the process, the applicant be told that he or she is entitled to seek legal advice". The requirements of procedural fairness in that respect take their colour from the relevant statutory provisions. In the case of a decision to remove unlawful citizens from Australia, s198(4) of the Migration Act provides that nothing in s198(2) requires the Minister or an officer to allow a non-citizen covered by s193(1) (the appellants) access to advice (whether legal or otherwise) in connection with applications for visas. In my opinion that provision negates the possibility referred to by Sackville J in this context and thus negates the alternative limb of the fourth aspect of procedural fairness listed above.
There is the fifth way in which the appellants' case in relation to procedural fairness is put. It is submitted that, at the least, the respondents were under a duty, after the compliance interviews, to let the appellant know what their immediate impressions were on the material provided. That submission is supported by reference to Re H K (an infant) [1967] 2 QB 617 at 630 where Parker LCJ said that, as part of the duty to act fairly, an immigration officer should give the immigrant an opportunity of satisfying him of the matters in the statute and, for that purpose, let the immigrant know what his immediate impression is so that the immigrant can disabuse him. In R v Gaming Board for Great Britain [1990] 2 QB 417 at 430-1 Lord Denning MR, with whom Lord Wilberforce and Phillimore LJ agreed, applied the dicta of Parker LCJ to the issue of gaming licences, stating that the licensing board must let the applicant know what their impressions are so that he can disabuse them. See also Kioa (supra) at 569, 587, 602, 629 and 634 and Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 223.
In my opinion there is nothing in s193 or s198 of the Migration Act which seeks to negate the right to such a hearing prior to the making of any order for removal. There being no finding such a decision has been made, no denial of procedural fairness in that respect is yet apparent. Even if such a hearing were accorded the appellants, it is difficult to see how they would be assisted. This is because even if such a hearing enabled them to state their intention to apply for refugee status, the date decreed by Parliament for the
making of an appropriate application has now passed and the clock cannot be turned back in that respect.
Turning to the reliance for the appellants upon the existence of legitimate expectations of a right, an interest or a benefit, such expectations must be reasonable expectations: Kioa at 563 per Gibbs CJ. Rights and interests extend to questions of status: Kioa at 582 per Mason J. They can extend beyond enforceable legal rights provided they are reasonably based: Kioa at 583 per Mason J. Examples of where they may arise are where there has been an express promise given on behalf of a public authority or a regular practice exists or the nature of the application gives rise to it: Kioa at 583 per Mason J and at 618 per Brennan J. In the case of the appellants it is contended that the expectation is that they would be considered for refugee status and not denied without an opportunity to put their case.
This is not a case where the appellants received any express promise. There was evidence before the trial judge of arrivals of other boats around the same time as the appellants and consequently persons detained with them who were treated as applicants for refugee status. It could not be said from that circumstance that the appellants derived an expectation from a regular practice. Knowledge by the appellants of that treatment could nevertheless arguably make reasonable any expectation by them that they would be considered for refugee status. In my opinion, the circumstances of arrival of the appellants, their expressly declared intentions regarding their boat, their completion of all forms and interviews which they were invited to participate in, the nature of their circumstances disclosed in China and the existence of Convention reasons thereby disclosed, shows an arguable case that they had an expectation they would be considered for refugee status.