Chapter 3 - The Minister's decision and ministerial responses
This chapter examines the role and response of the
Minister for Foreign Affairs to Mr Chen's
request for political asylum. Chapter four will consider the actions of DFAT
and DIMIA following that decision. This chapter also details the public
responses of the Minister for Foreign Affairs and the Minister for Immigration,
Multicultural and Indigenous Affairs as reported in the press.
Territorial asylum/subclass 800
In his initial request, Mr
Chen was seeking political asylum which DFAT
treated as a request for territorial asylum.
The Procedures Advice Manual 3 – Schedule 2 –
Territorial Asylum, states that:
...territorial asylum is commonly known as 'political asylum' and
is granted by instrument by a Minister (usually the Foreign Minister). It
should not be confused with refugee status. Persons who have been recognised as
refugees have not been granted territorial asylum. Most requests for asylum
have been found to be, more accurately, requests for refugee status. Therefore,
if a person enquires about 'asylum', officers should seek to establish whether
the enquiry is, in fact, about refugee status and, if so, explain the
procedures for applying for a Protection Visa. Anyone who insists on pursuing a
request for (territorial) asylum should be advised to contact the nearest
office of DFAT.
The Manual further notes:
There is no approved application form for this visa. Rather,
Schedule 1 (item 1131(3) (a)) requires application for this visa to 'be made...in
a manner approved by the Minister'. Officers may expect further procedures to
be notified as need arises ie if a person is granted territorial asylum (by
DFAT). Any purported visa 800 application is incapable of being a valid
application for the purposes of s46 of the Act unless territorial asylum has
been granted. Schedule 1 item 1131 (3) (aa) requires that 'when the application
is made, there is lodged...documentation that ...evidences the grant...to the
applicant of territorial asylum.
Regarding Subclass 800 – Territorial Asylum, the
Migration Regulations notes one of the criteria to be satisfied at the time of
application is that 'the applicant must have been granted territorial asylum in
instrument of a Minister'. Mr
Hughes from DIMIA clarified that under the Migration Act 1958 'you cannot make an
application for a territorial asylum visa until you have an instrument of grant
of asylum issued by the Minister for Foreign Affairs. So there is a
precondition for any application under the Migration Act. If there is no
instrument issued then you cannot get to the stage of making an application'.
He added that 'it is generally accepted that the Minister for Foreign Affairs
would be the minister exercising that power'.
In Mr Chen's
case the Minister decided not to issue the instrument for territorial asylum
which would have led to an application being considered.
Manne, questioned the
response to Mr Chen's
request for territorial asylum:
In our view, what ought to have occurred in accordance with the
law was consideration of a visa which exists under the migration legislation –
that is, territorial asylum visa subclass 800....Our concerns substantially
related to whether or not those laws as they exist were applied appropriately
and in accordance with the way in which a request for asylum ought to be
My submission on these matters, put simply, is that while there
is a very distinct lack of clarity as to exactly what are the criteria for the
grant of political asylum, the procedures advice manual makes it clear that it
is commonly known as 'political asylum' and is granted by an instrument of the
minister and should not be confused with refugee status. It appears on the face
of it that we are looking at a situation here where the request for asylum or
protection in this situation is similar to, for instance, a politician's or
indeed a diplomat's. While there are no particular criteria, it seems clear to
me that Mr Chen,
as a diplomat, ought to have been seriously considered for a grant of political
asylum and then for the visa, given that we have a visa subclass which relates
precisely to his situation.
agreed and told the committee that territorial asylum seemed to be the most
appropriate visa for Mr Chen
to apply for. 'For instance, how many times do diplomats seek protection visas
in this country? It is an unusual circumstance and one that has to be handled
sensitively and carefully; it is in the national interest that it is done so,
so clearly a territorial asylum visa would be a more appropriate way to go'.
further told the committee that the procedures for dealing with territorial
asylum applications are not clear.
Legal Adviser, DFAT, advised the committee that 'the decision as to whether or
not to grant territorial asylum is at the discretion, in our case of the
Minister for Foreign Affairs. It is an executive power and it is an executive
discretion' and is non reviewable.
Regarding guidelines, Mr Larsen
further advised there are no guidelines for the making of this decision, 'the
minister would have various considerations in mind when he makes such a
decision. No doubt, the national interest is a critical one of those, but there
are no express criteria which limit how the minister exercises that discretion'.
Concerns regarding refusal of
territorial asylum visa
told the committee that traditionally, government have let their decisions
about asylum claims be influenced by a combination of four factors: national
interest; legal obligations; humanitarian considerations and public opinion. He explained that when cabinet agreed
on Australia's first asylum seeker policy a few months before the Melbourne
Olympics, it decided three agencies would be involved in decisions about
requests for asylum: ASIO would advise the government whether the person was a
security risk; immigration would advise whether the person was a suitable
immigrant and external affairs was left to weigh up humanitarian considerations
and the national interest. He explained that 'Once Australia's response to
asylum seekers became guided in a large part by international refugee law and
its interpretation in Australian legislation, the immigration department became
the principle agency responsible for decisions about asylum requests. But
foreign affairs apparently retained the right to grant territorial asylum in
He noted that 'a close look at Australia's historical
response to asylum seekers suggests that in the past, asylum requests of a
sensitive nature – that is, cases where the national interest was potentially
affected, such as those involving foreign diplomats or West Papuan nationalists
– received close attention, often from the responsible minister and sometimes
told the committee that the important issue is that historically people
requesting asylum attend a meeting where issues are discussed. In Mr
Chen's case when his request for political
asylum was refused, he was not offered anything in return.
Mr Collaery, legal representative, CC Law, also voiced
concerns regarding the process for asylum seekers stating that 'a review of
classified archival material embracing the years 1937-1982, revealed that the
Australian Government never had a coordinated or humane mechanism for responding
to 'sensitive' requests for asylum be it from fleeing Jews or individual asylum
Collaery also raised concerns that 'foreign
policy in relation to asylum and regime change is muddled by ad hoc assessments
and is shrouded by secrecy...' He suggested that 'Ephemeral concerns in
bilateral relations overshadow moral imperatives'. This is in contrast to Dr
Neumann's criteria of national interest;
legal obligations; humanitarian considerations and public opinion.
The following concerns regarding the response of the
Foreign Minister were voiced to the committee:
No reasons provided
told the committee that at the 31 May meeting, he asked why political asylum
had been denied and:
The reason I was given by the senior protocol officer was that
the decision had been made and the Australian government could deny my
application for political asylum for reasons of foreign affairs.
He told the committee that he attempted again at the
meeting to clarify the reason:
At that time I asked why I was rejected for a political asylum
visa because I could not understand why. They said the decision had already
been made and that they had no choice.
The committee asked DFAT whether the minister received
advice from the department or experts to assist him make the decision to refuse
territorial asylum. Ms Morton
did not answer the question but replied 'I am sorry I am not able to tell you
what was in the minister's mind at the time. You would need to ask that
question of him'. When asked again
whether the minister gained information from experts in the field, she replied
has either misunderstood what he was told during the meeting on 31 May or his
recollection of it is inaccurate. He was told that his request for an
instrument to give him the right to apply for territorial asylum would not be
given. He was not given reasons for that. He was also told at that meeting,
'Here is the range of visas you can apply for'.
Ms Morton told the committee 'The minister has said
that he believed that it would not be appropriate to give a territorial asylum
certificate in that case and that it was appropriate that, if Mr Chen wished to
stay in Australia, he apply for a visa and that it be considered under the
Migration Act in the normal way'.
Mr Manne told the committee that there are detailed
written reasons provided if a protection visa is refused and submitted to the
committee that 'as a matter of natural justice and fairness...it would be
appropriate to set out reasons, particularly if there is a refusal, so the applicant
could understand why they had been refused and to at least assist them in
pursuing further options'.
Time taken for the decision
The committee heard that the Minister for Foreign
Affairs became aware of Mr Chen's
request around 7pm on 26 May 2005 and by 10:30am on 27
May 2005, when an Interdepartmental Committee meeting began, the
attendees were advised of the Minister's decision. DFAT was not aware whether
the Minister sought any advice or briefings to make this decision.
It should be noted that in subsequent correspondence
with DFAT regarding another inquiry being undertaken by the committee, they were
Also, Mr Downer
has decided that he will not confirm to the Senate Enquiry when he became aware
of the letter from Chen Yonglin
delivered to DIMIA on 26 May 2005.
told the committee of his concerns regarding the timeline:
I would also have to submit that I find it extraordinary that a
visa application of that nature from a senior diplomat in a consulate would be
decided, if you like, without even an interview or a reference to the
applicant. One of the things that in this case renders that extraordinary to me
is that somewhere in his letter...Mr Chen
indicates that he has confidential information about the way the system
operates. Even that remark alone, I would have thought, prompted some kind of
This view was supported by the Federation for a
Democratic China which stated that the timeframe shows that there was a lack of
consideration of the details of the case and a decision was made in haste.
Chen not interviewed
also voiced concerns that DFAT officers or the minister had not spoken with Mr
Chen before the decision was made:
...in the process of deciding whether or not Mr
Chen should be granted territorial asylum, there was no interview
conducted with him about what his claims might be and no testing of the
validity of those claims, and the Procedures Advice Manual suggested that it
was a matter for DFAT. At that stage, as I understand on instructions, DFAT did
not approach Mr Chen.
told the committee that Mr Chen's
letter should have triggered 'a proper investigation and consideration of
whether or not these circumstances attracted the grant of political asylum or
territorial asylum under law'. He
What we are looking at here, if I could put it as simply as
this, is that either we have laws which contain a visa class or subclass or we
do not. If we do have a visa, proper consideration would be given to granting
it and to taking all necessary steps before the grant to properly consider, in
this case at least, whether an instrument ought to be granted. In the
circumstances we have concerns that there may not have been a full or proper
investigation and/or consideration which would have led to at least a decision
by the minister in relation to the matter.
suggested to the committee that the following process should have been followed
as a bare minimum:
...there ought to have been a proper preliminary interview at
which the substance of his fears was heard. There ought to have been a
reasonable degree of clarity as to what DFAT needed to know in relation to his
claims and a proper process set out whereby he was able to put those claims in
writing in detail and for those claims to have been considered. Following from
that there ought to have been at least one confidential and lengthy interview
to discuss and test the claims, and then both the written and oral testimonies
should have been taken back for consideration by the Minister for Foreign
Affairs....It would appear to provide a reasonable framework in order to afford
the applicant both the proper safeguards and the procedural fairness which are
critical in this process.
When asked about recourse for an applicant Mr Manne
told the committee that there would seem not to be a clear answer but if
someone was not provided a proper opportunity to have their case heard, 'the
normal legal principles would appear to open up the question of whether or not
natural justice has been afforded'. He added that a possible action would be to
obtain counsel's advice on 'whether or not a court could consider compelling a
proper consideration by the relevant decision maker in accordance with law'.
The refusal not provided to Mr Chen
told the committee that he was never given anything in writing as to the
reasons for the rejection of his request for political asylum. On 4 June 2005, he made known publicly that he was seeking
also noted the following concerns regarding the formal lack of advice in
When we took instruction from Mr
Chen on 6 June, one of the first things we
had to establish was which visa application was on foot, and it became very
apparent on 6 June that it was not clear that the application for territorial
asylum had been definitively dealt with: there was nothing in writing. Our
instructions were that an oral message was communicated on the evening of 27
May to say that the territorial asylum application had been refused. An oral message
given through a DIMIA bureaucrat is a little unusual; given that the procedural
advice manual suggests that it is the department of foreign affairs that
handles territorial asylum applications, at least in the first instance. As one
would do in the course of these things, we immediately wrote and sent a fax to Mr
Downer's and Senator Vanstone's
office, and copied it to the Prime Minister's office, seeking clarification as
to exactly what the status of that application for territorial asylum was.
commented that the lack of a formal response could provide 'further evidence of
a failure to properly and fully consider the request for territorial asylum'. He stressed that in doing so there was
'a failure to indicate it to someone – and this is the fundamental point – who
was in fear of facing fundamental human rights abuses in the form of
persecution in his home country and was no doubt in an extremely precarious and
terrified situation. Also on the facts that I have been told today, he may well
have felt that he had not been heard – that he was coming up against a brick
wall – on matters which, at least as far as he was concerned, were of the
utmost importance for his basic needs and protection'.
noted that the 'lack of accountability and review is the achilles heel of the
process in Australia'.
The committee has no concerns about the Foreign
Minister having the discretion to grant instruments for territorial asylum. The
committee notes, however, that while there is a Procedural Advice Manual for
DIMIA, it contains no details on who is responsible for the proper
investigation of the request for territorial asylum, how this should be conducted
or how the matter should be resolved. The committee was told that there are no
guidelines for the Foreign Minister to follow when making this decision save
for the national interest as discussed by witnesses.
The committee is concerned at the apparent lack of
investigation, including the lack of opportunity for Mr
Chen to present and explain his claims.
This, coupled with the short timeframe for making the decision suggests a lack
of due consideration and seriousness afforded to Mr
Chen's request by the relevant authorities.
The committee accepts that for reasons of natural
justice and fairness, Mr Chen
should have been provided with a reason for the rejection of his request for
political asylum. This information could have assisted him to decide between
the other visa options open to him. The lack of any justification for denying
his request clearly concerned him as he stated he sought a reason at least
twice during the meeting on 31 May
Furthermore, Mr Chen
received no formal written advice regarding the refusal of territorial asylum.
This meant that Mr Chen's
lawyer had to seek clarification of the status of Mr
Chen's request from Mr
Downer seems to have left the communication
of this vital piece of information to oral advice, conveyed through his
department to an officer of another department.
Some members of the committee found that important
procedures were not adopted when considering Mr
Chen's application for territorial asylum.
The committee believes that at the very least he should have been interviewed
about the circumstances surrounding his request and should have received
written formal advice of the decision to reject his request. The committee considers
that where such a decision has the ability to affect the rights of an
individual that the decision should be as transparent as possible.
Ministerial responses to Mr Chen's
initial approaches for asylum/protection
Conflicting reports from Ministers
The press reported that on 30 May 2005, Senator Vanstone,
the Minister for Immigration, Multicultural and Indigenous Affairs said Mr
Chen made a request for territorial
(political) asylum and has been refused, apparently by the Foreign Minister.
On 6 June 2005,
Senator Vanstone said that 'Mr
Chen's request for territorial asylum had
not been granted but that was a matter for the Minister for Foreign Affairs.
She noted further that Mr Chen
has applied for a normal protection visa. She explained that that visa is
different from territorial asylum and that the claim may come to her.
On 7 June 2005,
the Foreign Minister insisted that because Chen has already
applied for a protection visa, his case is now being handled by DIMIA and not
DFAT. However he would not explain
why Mr Chen's
application for political asylum was rejected. In an interview Mr
Downer said 'political asylum has only been
granted in extremely rare cases...in the case of the Petrov Affairs and one other
over the last 40 years or so...You can't have six different ministers considering
his application. Chen has made his application through the
Immigration Department and he has to follow due process'.
On 8 June 2005,
said Mr Chen
did not lodge a formal application at all. He said Mr
Chen applied for a protection visa and did
not seek political asylum. On 9 June 2005, Mr
Downer confirmed that Mr
Chen did make an application for political
asylum, contradicting his earlier statements. He said he believed it would be
better for Mr Chen
to apply for a protection visa. He
said 'I still stick pretty solidly with my view that it's much more appropriate
for the Department of Immigration, with all its experience, to make the
appropriate determination on the basis of the acts presented to it'.
At a press conference in India
on 8 June 2005, the Foreign
First of all I don't think we should get bogged down in
semantics here. I mean it's clear that Mr
Chen applied on the, I think the 27th
of May to stay in Australia.
He didn't make a formal application to me for political asylum. He made and
that letter illustrates an application to the Department of Immigration. And if
you read the whole of the letter you would see that in that letter he asks the
Department of Immigration if it would be prepared to vary his visa. Look this
is quite a semantic point because he certainly applied to stay in Australia
and the only semantic and minor point that I would make is that he didn't make
a direct application to me as the Foreign Minister for political asylum, that's
the only point I am making. But he certainly made an application to stay in Australia.
As time went on it became clear to us that the best way for him to apply would
be through an application for a protection visa, so that the case that he
wanted to put could be objectively considered. It doesn't make sense – and I've
made this point before – it doesn't make sense for people to just apply for
political asylum and expect the Foreign Minister to just make the decision with
a stroke of a pen. It's much wiser to have a considered process which can be
worked through by the Immigration Department, they're the experts in
considering these cases.
These statements made by the Foreign Minister on 8 June 2005 that Mr
Chen did not lodge a formal application at
all caused Mr Chen
further unnecessary concern.
His lawyer, Mr Green,
had already written to the Minister on 6
June 2005 to clarify the situation regarding the territorial asylum
visa. In his response dated 14 June
2005, Mr Downer
advised that Mr Chen's
letter to DIMIA dated 25 May 2005:
...was taken as constituting a request for an instrument
granting him territorial asylum (there is no official form or prescribed way of
seeking such an instrument) as this is the necessary precursor to making a
valid application for a Territorial Asylum (Subclass 800) visa...he had decided
on 27 May not to grant an instrument. Mr
Chen was therefore not able to make a valid
application to DIMIA for a Territorial Asylum Visa. That letter was referred to
Having considered Mr Chen's
request, I decided on 27 May not to grant an instrument to Mr
Chen. In the absence of an instrument
granting him territorial asylum in Australia, Mr Chen was not able to make a
valid application to DIMIA for a Territorial Asylum Visa. Mr
Chen was advised by the Department of
Immigration and Multicultural and Indigenous Affairs on my portfolio's behalf
later on 27 May that political asylum would not be granted.
was also advised at the same time that if he wished to stay in Australia
there was a range of visa options he could pursue including a protection visa.
It is now public knowledge that Mr Chen
lodged an application for a protection visa on 3 June. That application will be
considered on its merits by DIMIA, in accordance with normal processes. I do
not intend to give further consideration to any request by Mr
Chen for territorial asylum.
The committee understands that the Minister for Foreign
Affairs is the minister responsible for determining whether to grant an
instrument granting territorial asylum. Once this request was rejected, the
matter for granting a protection visa came under the responsibility of DIMIA.
The confusion created about the status of Mr
Chen's application for a protection visa,
highlights the importance of conveying decisions in writing to the applicant
and for the applicant to be kept fully informed about the progress of their
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