Pe in ee te Ik TAR PEDERAL COURT OF AUSTPALIA 1. ViICTORTA DISTRICT REGIS PRY No. VG 85 of 1983 GENERAL DIVISION es ews BETWEEN + MARJOPIB SARASWATT SINGH IGAL Sincll Applicants * AND : MINTSVER POR TMJ GRALION AQD Lynudkc AFFaALRS Respondent 15 December, 1983 KEBRLY J. REASONS FOR JUDGMENT The appJicants, who are husband and wife, have applied to review three decisions made undcr the Migration 1958. The application is made under s. 5 of the Administcative Decisions (Judicial Review) Act 1977 (Judicial Review Act) and 32t was common ground that each applicant was a person "aggrieved" within the weaning of that section. The application was originally filed on 23 May, 1983 and, after discussion on the first day of hearing on 7 November, 1983, an amended application was filed on 1 December, 1983 by leave of Fhe Court. That course was not objected to by the respondent, which had not furnished to the applicants until the morning of 7 November, 1983 the atement of Reasons", signed by the respondent in July wee ee wee a ee Tee ee ate eee ee needs ee cee omer eee oe te 2. 1983, in respect of a decision of the Minister made on 5 May, 1983 which is one of the decisions sought to be reviewed by the applicants. That statement was furnished in answer to a formal request made on 31 May, 1983 under s. 13 of the Judicial Review Act. Each applicant seeks to review three decisions. First, a decision of an officer of the Department of Immigration and Ethnic Affairs (the officer) made on 7 June, 1982 refusing to grant to the applicants, under s. 6 of the Migration Act 3958, a further temporary entry permit. The applicants had each been granted temporary entry permits on a number of occasions in respect of various periods the first of which occurred in early 1980 and the last of which expired on 1 June, 1982. Secondly, a decision of the respondent Minister by letter on 5 May, 1983 refusing to grant the applicants, under s. 6A(1) of "the Migration Act, "an entry permit other than a temporary entry permit" i.e. refusing to grant what is conveniently called in the application "permanent residence". An extension of the time prescribed by s. 11 of the Judicial Review Act for the lodging of the application in respect of the decision of 7 June, 1982 was granted without any objection by Dr. Jessup, of counscl, who appeared for the respondent. Thirdly, a decision of the respondent Minister, consisting of a statement in the last paragraph of the same letter of 5 May, 1983, which was regarded by the applicants as a direction to them to leave a we ee ee ee ee ee ee ee 3. Australia; Dr. Jessup informed the Court that that statement was not regac3cd by the respondent as a statement "requiring" the applicants, within the meaning of s. 31A of the Migration Act, to leave Australia. , The amended application expressed the grounds relied upon in respect of each of those three decisions, as being :- "That the making of the decisions and each of them was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made 3n that relevant considerations were not taken anto account in the exercise of the power and in particular no or no sufficient consideration was : given to the health of Marjorie Sawaswati Singh and no or insufficient consideration was given to the need or desirability of Mangal Singh remaining with his wife and family in Australia". Mr. Gunst, of counsel, on behalf of the applicants, in a carefully prepared and well presented argument submitted that each applicant should have been granted a temporary entry permit. He submitted that the decision of 7 June, 1$82, in refusing Mrs. Singh's application, fa1led to take into account certain relevant considerations. Those considerations were :- ~~h pon earenene Nears Nest ons Pas wee arene es ed te ana? aeeme = 9 tte mee om weet (a) the need for immediate medical treatment for Mrs. Singh; (b) the need for additional time in which to explore the question of further medical treatment for Mrs. Singh; (c) the need for each applicant to be "the holder of temporary entry permit wnich 1s 1n force" in order to be eligible to make application, as they wished, for entry permit entitling them to permanent residence s. 6A(1)). However, each of those matters was referred to in the material advanced to the officer before the decision of 7 June, 1982. That material included a ietter, dated J4 May, 1982, by Dr. Sewak which referred to Mrs. Singh's medical condition and expressly requested "an extension of her visa for at least three months". We wrote a further supporting letter, dated 26 May, 1982. — Further, the Reverend Dr. Moonie, in a strongly worded letter, dated 13 May, 1982, referred to her "serious illness that is very difficult to treat" and to the need for more to be "learned about the nature of her condition" and said "... I urgently ask that her current visa be extended to allow her to explore further the possibilities of alternative forms of treatment." He referrecd expressly to the effects upon Mrs. Singh of her medical condition and its consequences and the advantage of "the cooler Melbourne climate". His concluding words were :- (cf. ",..- I would be pleased 1f£ you would extend her visa both to enable her to explore possibilities of other treatment, and to allow her time to put ijn motion an application for resident status, processed either from Suva or Melbourne." On the evidence before the Court, each of those two letters from Dr. Sewak and the letter by Dr. Moonie in support of the applications for further temporary entry permits were received by the officer. It is against that background that the Court must consider the decision of 7 June, 1982 which includes the following paragraph :- "Careful consideration has been given to your application For a further extension but the reasons put forward do not justify a departure from normal Government policy. Your application is therefore nok approved." Mr. Gunst submitted that that statement was a mere assertion by the officer that careful] consideration had been given. He invited the Court to disregard that assertion and to infer that the officer had not in fact given careful consideration to the relevant matters; in so submitting he pointed to the very brief reference, in the Minister's "reasons" of July 1983, to the fact that "no further entry permits have been granted to the applicants". liowever, in this connexion two matters must be borne in mind. One is that the Minister's "reasons" were only furnished as reasons for his own decision of 5 May, 1983 and did not purport to be reasons for the officer's decision of 7 June, 1982. The ees ee) Pe 6. other is that, although the paragraph in the officer's letter of 7 June, 1982 was only a brief statement, apparently no steps wore taken to obtain an elaboration of that statement by applying for a "statement in writing" under s. 13 of the Judicial Review Act. In those circumstances I am unable to see any reason why I should doubt the statement of the officer that "careful consideration has been given to your application" - followed immediately, as it is, by a reference to "the reasons put forward". In my opinion there is no ground for concluding that the officer failed to take a relevant consideration into account in the exercise of his power under s. 6 of the Migration Act. Mr. Gunst sought to place some reliance "upon the potential disruption to the family unit" which would flow from a refusal of either of the applications for a temporary entry permit. On my reading of the material, that consideration was not advanced to the officer as a "reason" in support of the applications (see also the terms of the written applications dated 14 May, 1982); if such a matter was advanced to the officer, doubtless it was given the same "careful consideration" as that' afforded to the other material. At the hearing Dr. Jessup, on behalf of the respondent, did not object to a widening of the grounds apnearing in the amended application so as to ineJude other a aren 7. grounds under s. 5 of the Judicial Review Act, including yveliance upon an error of law based upon a contention that the decision of 7 June, 1982 was "so unreasonable that no reasoneble person could have so exercised the power" (see s. 5(1)(€) and s. 5(2)(g) of the Judicial Review Act). It will be clear from those words in s. 5 of the Judicial Review Act that this Court does not have power to make a decision upon the question whether Mr. and lirgs. Singh should, on the merits, have been given entry permits - temporary or permanent - and therefore should not express any opinion upon that question. I completely agree with the dictum of Deane J. in Sean Investments Pty. Ltd. v MacKellar (1981) 38 A.L.R. 363 at p. 371, that :- "The court must, in my view, be vigilant to ensure that it does not, under the guise of reviewing administrative decisions on auecstions of law, trespass in fields of administrative decision making in relation to which it possesses neither mandate nor speciai qualification." The Court's power to review the decision is a limited one. As Fox J. said in Borkovic v Minister for Immigration and Ethnic Affairs (1981) 39 A.L.R. 186 at p. 188 "It is plain that under the Act in question this court does not have power to make a decision on the merits of the factual position for itself. It is plain that 1t is not invited or empowered under the Act to consider the fects for itself for the purpose of forming and Ceclaring its own view thereon. Of course, in oruer to epply some of the provisions of 8. the Act it is necessary to examine the facts quite closely, but this ts not for the puroose of the court arriving at its own decision; rather is it to see whether the case comes within one of the specific provisions of the relevant sections of the Act." There are insuperable difficulties lying in the path of the present applicants in their submission that the decision was so unreasonable that no reasonable person could have so decided. First, power to grant a temporary entry permit is one given by the Migration Act to an officer of the Department ~ not to this Court. Secondly, the power given is a discretionary one. Thirdly, the Migration Act does not lay down any criteria governing the exercise of the discretion. Fourthly, there was material before the officer upon which he could have based his decision to refuse to grant a further temporary entry permit on 7 June, 1982. A letter, dated 24 December, 1°81), from Dr. F. Firkin, F.R.A.C.P., of St. Vincent's Hospital, after dealing with her medical condition, concluded with the following :- "A reasonable time-span to carry out treatment would take until the end of April, 1982, and this could be achieved if you would be prepared to extend her visa foc a further three months. I am happy to fully support such action specifically on the basis of the need for adequate treatment of her medical condition." On all the material that was before the officer, including the suggestion of Dr. Firkin, a highly qualified doctor who had trearcd Mrs. Singh, that her visa be extended until the 9. end of April, 1982, it is not possible to uphold the contention that the decision of 7 June, 1982 was "so unreasonable that no reasonable person could have so exercised the power" (s. 5(2)(g) of the Judicial Review Act). Perhaps J should add that the letter, dated 7 June, 1982, from the officer to the applicants concluded with the following*paragraph :- "You may have the right of appeal against this decision under the New Review Rights annouunced by the Minister for Immigration and Ethnic Affairs on 18 January 1982 and I am enclosing a leaflet for your information." It would appear that no attempt was made to have reviewed, at an administrative level, the decision of 7 June, 1982. On the whole of the material there 1s no ground upen which Mr. Singh can succeed in his application in respect of the decision of 7 June, 1982 if Mrs. Singh's application is not successful. As it has not been established that the decision of 7 June, 1982 should be quashed or set aside under s. 16(1) of the Judicial Review Act or referred back for further consideration, the applicaticn by each applicant in respect of that decision must be dismissed. cowpeas eee a a: - -- - - Py 10. In respect of the decision of the respondent Minister on 5 May, 1983, it 1s clear from the evidence that neither applicant was "the holder of a temporary entry permit" which was in force on that day and accordingly neither of them fell within the Lerms of s. 6GA(1)({ce) of the Migration Act. It was not suggested that the applicants could bring themselves within any olher paragraph in s. GA(1L) of that Act. It follows from the provisions of that section that the respondent on 5 May, 1983 could not lawfully grant to either applicant "an entry pormit other than a temporary entry permit" (s. 6A(8)). Accordingly, the application in respect of that decision of 5 May, 1983 must be dismissed. For the same reasons the application in respect of the third decision (assuming, contrary to the submission of Dr. Jessup, that it was a decision) will also be dismissed. The applicants are to pay the respondent's costs. ms - ' "spine ; 1 t Poo ; ~~ 1 : Keel \ * 1 ff. ' | —— See 1. 15 December 123 ae