2 | Le CATCHWORDS Administrative Law - Judicial review - immigration - private overseas student said not to have sufficient capacity to undertake course - consideration of circumstances of case - whether irrelevant considerations taken into account or relevant considerations not taken into account - whether decision based on non-existent fact - whether Minister obliged to afford applicant natural justice - whether decision to deport applicant made in bad faith Migration Act 1958, ss. 6, 7 and 18 Administrative Decisions (Judicial Review) Act 1977, paras 5(1) (a), 5(1) (e), 5(1)(h), 5(2) (a), 5(2)(b), 5(2) (a), 5(2) (£), 5(3) (b) MARTIN KARUNAKARAN v. THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS No. G 223 of 1983 Coram: Sheppard J. 30 July 1984 Sydney al _ IN THE FEDERAL COURT_OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 223 of 1983 ) ) GENERAL DIVISION BETWEEN: MARTIN KARUNAKARAN Applicant AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent ORDER JUDGE MAKING ORDER : Sheppard J. DATE OF ORDER : 30 July 1984 WHERE MADE : Sydney THE COURT ORDERS THAT: 1. The application be dismissed. 2. Liberty be reserved to the respondent, the Minister for Immigratio1 and Ethnic Affairs, to make application for costs should he be so advised. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) ——_————or_rere ——e—eow No. G 223 of 1983 ) GENERAL DIVISION BETWEEN : MARTIN KARUNAKARAN Applicant AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM: Sheppard J. 30 July 1984 REASONS FOR JUDGMENT Dr V.J.A. Flynn is a philanthropist. His doctorate is in Oriental Studies. For many years he has taken an interest in the welfare and education of disadvantaged boys in Fiji. Those with whom he is concerned are of Indian extraction and come from very poor families. At first he confined his assistance to them by endeavouring to ensure that they were educated as well as possible in Fiji. In more recent years he has brought some of them to Australia to further their education here. One of those upon whom his bounty has fallen is the applicant in this case, Martin Karunakaran. The application is for the judicial review of a deportation order made for the deportation of the applicant on 29 July 1983, (s. 18 of the Migration Act, 1958.) The application for review is brought pursuant to s. 5 of the Administrative Decisions (Judicial Review) Act, 1977. I shall refer to the grounds upon which review is sought in due course. It would not have been possible for Dr Flynn to seek to do what he has done unless the Governments of the Commonwealth and of New South Wales had implemented a scheme for the education of private overseas students in Australia. The scheme needs the co-operation of two Commonwealth and one New South Wales Government Departments. The Department of Immigration and Ethnic Affairs (DIEA as it is called in some of the documents in the case) must authorise the entry into Australia of students to enable them to study. The Commonwealth Department of Education and Youth Affairs (DEYA) has needed to develop a policy so that it can liaise with State Education Departments which have the task of placing overseas students in schools, technical colleges, colleges of advanced education or universities. Dr Flynn firmly believes that education is the answer to many of the problems of the disadvantaged class which he is endeavouring to help. He believes also that education by itself is not enough. The students have to be supported in an environment which is conducive to their studies. He does not believe that this will occur in their home environment in Fiji. But his idea is not that the students should remain in Australia indefinitely. His purpose in bringing them here is to enable them to become qualified in some field and then return to Fiji where they are likely to be of use to their own country and at the same time fulfil themselves in a way which would not have been possible had they not been educated. In this respect his aim and the aim of the Government Departments to which I have referred is identical. Private overseas students would not usually be allowed to come to Australia to study if their ultimate purpose was to remain here rather than to return to the countries from which they came. The dispute which exists between the applicant (really Dr Flynn) and the various Government Departments in this case is whether the applicant has been educated to a standard beyond which he is incapable of absorbing further education. If that is so, it 1s common ground that he should return to Fiji. It as Dr Flynn's opinion, however, that he is capable of undertaking a course for an accountancy certificate at a technical college and that he ought to be allowed this opportunity. It is because of the view which the Government Departments take that the Minister eventually signed the deportation order about twelve months ago. The applicant was born on 2 July 1961. He began his education in 1968 at a primary school in Fiji. He was first seen by Dr Flynn in December 1975. In 1976 and 1977 he attended the Indian High School in Suva. In 1977 he passed his Fiji junior certificate examination. At the end of 1977 Dr Flynn arranged for him to come to Australia for the purpose of continuing his schooling here. On 3 February 1978 he arrived in Australia and was given a temporary entry permit, (see ss. 6 and 7 of the Migration Act.) He was enrolled at the Chevalier College in Bowral in year 10, that is the year in which students sit for their School Certificate examination. The School Certificate in New South Wales does not involve any external examination. What is 1unvolved is an internal assessment by the school itself. No marks are given. Instead, the student is graded in English and Mathematics and the Certificate notes other subjects which are said to have been satisfactorily studied. The applicant obtained a grade 3 result in English and a grade 4 result in Mathematics. It was noted that he had studied Science, Geography, History and Asian Social Studies as well. The meaning of grade 3 is that the student is in the middle 40 per cent of students presenting for the subject in New South Wales. Grade 4 means that the student is in the next 20 per cent of students presenting for the subject in New South Wales below those awarded grade 3. The applicant continued as a student as Chevalier College in 1979 and 1980. He studied for his Higher School Certificate for which he sat at the end of 1980. He did not obtain a satisfactory result. He received only 56 marks out of a possible 500. He had then been in Australia since the beginning of 1978. He held a temporary entry permit which expired on 31 May 1981. He did not stay until then but returned to Fiji where he remained until 8 November 1981. He then returned to Australia. Before doing so he had obtained a further temporary entry permit which was due to expire on 8 March 1982. If the applicant had been ordinarily resident in Australia, his School Certificate would have entitled him to enrol at a technical college in New South Wales in any one of a large number of courses including the accountancy certificate and a certificate in electrical engineering in which he had evinced interest. Following upon enquiries made at the Commonwealth Department of Education in January 1982, Dr Flynn, the applicant and another of Dr Flynn's proteges visited the Information Centre for the Department of Technical and Further Education (TAFE). TAFE is administered by the New South Wales Department of Education. They saw there a Mr Blair who is an education officer. He is responsible to the officer in charge of the Information Centre, Mrs Hurst, for private overseas students seeking admission to TAFE colleges. There is not agreement between Dr Flynn and the applicant on the one hand and Mr Blair on the other as to what transpired. I do not find it necessary to resolve the conflict of evidence which there is. Apparently there was some discussion between Dr Flynn and Mr Blair about the applicant repeating his Higher School Certificate year at a technical college rather than at a school. The applicant did not take advantage of the opportunity which seems to have been offered him in this respect. Whatever the rights and wrongs of the conversation between Dr Flynn and Mr Blair, it would appear that the applicant, by reason of his School Certificate, was authorised early in 1982 to enrol in a course at a technical college either for an accountancy certificate or an electrical engineering certificate. It was because of this that he became entitled to renewal of his temporary entry permit which eventually expired on 10 March 1983. The applicant could not obtain enrolment in these courses and began to attend a centre known as the Individual Learning Centre of ILC at the North Sydney Technical College. The evidence discloses that there are such centres at a number of technical colleges in Sydney. The centres afford intensive tuition to students - not necessarily students coming from overseas - who need to improve their skills in particular subjects. The tuition is remedial in character, the aim being to enable students the better to cope with tertiary courses in various fields whether at technical colleges or elsewhere. The applicant continued to attend the Individual Learning Centre at North Sydney until about the middle of 1982. Thereafter he attended the Individual Learning Centre at the Sydney Technical College. During the whole of the year at one Centre or the other he studied English and Mathematics. The courses he studied are not courses which are approved for private overseas students nor is any Individual Learning Centre an approved institution for them except in so far as a student enrolled in an approved course may attend there for the purpose of improving himself in one or more subjects. For reasons which need not be gone into, neither of the Commonwealth Departments ascertained that the applicant was enrolled at an Individual Learning Centre until the end of 1982. Even then, they were not aware that the courses being studied by the applicant were not approved for private overseas students by the N.S.W. Department of Education. The fact that they were not was discovered about the end of February 1983. As a result the Department of Immigration refused to renew the applicant's temporary entry permit. This led to representations being made at various levels by Dr Flynn. One of these representations was to Mrs Hurst. The upshot of a lengthy discussion which Dr Flynn had with Mrs Hurst was that she agreed to have the applicant and another boy, Richard Narayan, tested by the Sydney Technical College Student Counselling Unit. The test was administered on 6 April 1983 by a Mr Flynn, (he is not related to Dr Flynn), the Senior Student Counsellor. The tests were to assess the abilities of the two boys in both English and Mathematics. Mr Narayan's results were extremely poor. Of the applicant's result in the English test Mr Flynn said that he had "performed well". He was said to have a reading age of 15 years 3 months which is regarded as satisfactory for the courses in which he wished to enrol. In relation to the Mathematics test Mr Flynn said that the applicant obtained the same score as 50 per cent of a sample of electrical, civil and other engineering certificate students. He continued, "This result translates approximately into a School Certificate Credit level maths pass in the old School system." Mr Flynn concluded his report by saying, "In Mr Karunakaran's case his present reading level is quite good and his maths level adequate. Quite speculatively I would consider his chances of success in Certificate level study based on his maths result to be approximately 50 per cent." Notwithstanding that result Mrs Hurst, on 6 April 1983, wrote to Ms J. Stubbing, the Education Officer in the Private Overseas Student Branch of the Commonwealth Department of Education,referring to the test and saying that she regretted to advise that "neither of the boys achieved a sufficient result to be admitted to a TAFE course." She said that she must decline to consider placement of them in any class. On 7 April 1983 Ms Stubbing sent a memorandum to Ms G. Clarke, who is employed as a clerk in the Overseas Students Section of the Department of Immigration. Ms Stubbing said that following further discussions and testing, "TAFE has confirmed that the student is not qualified for entry into a certificate course. I have rejected the student's request to be allowed further remedial tuition ... the student has been advised that he should now report to your Office." On 11 April 1983 Ms Stubbing caused a letter to be written to the applicant. She referred to the facts as I have recounted them and concluded by saying that having regard to all the circumstances she was unable to recommend an extension of his temporary entry permit to enable him to remain in Australia for further studies. She said that the Department of Immigration had been so advised. There followed correspondence between the Department of Immigration and Dr Flynn. Ina letter dated 27 May 1983 Dr Flynn was told by the Department's Regional Director that the recommendations of the Department of Education had been accepted with the result that the applicant was required to depart from Australia before 14 June 1983. Evidence of travel arrangements was to be produced in the Overseas Students Section of the Department before 3 June 1983. The Department's request was not complied with and the matter was referred to more senior officers. Eventually Mr A.E. Faubel, who is employed in the Canberra Office of the Department of Immigration as Director, Enforcements Section, Entry Regulation Branch, made a recommendation to the Minister that the applicant be deported. 10. The recommendation was accompanied by a detailed account of the circumstances of the case. It is dated 28 July 1983. As earlier mentioned, the deportation order was made on 29 July 1983. Paragraphs 13 and 14 of Mr Faubel's recommendation were as follows: "13. 14. In advices dated 28 February 1983 and 7 March 1983, the N.S.W. office of Department of Education advised our Sydney office that Karunakaran had not been enrolled in approved studies since his return to Australia, that he had been authorized to apply for entry to a TAFE certificate course in 1983 but that the N.S.W. TAFE department had advised that he was not eligible for enrolment in any approved (TAFE) course. Sydney Office of DIEA wrote to Karunakaran on 14 March 1983 telling him that the Department of Education had advised that he was not eligible for enrolment in any approved course of study in 1983 and that as his temporary entry permit had expired he should now leave Australia. Dr Flynn, it seems, then approached N.S.W. TAFE authorities who decided to provide an opportunity for Karunakaran to have testing in respect of Mathematics and English but without any confidence or promise that he might obtain a place in a TAFE course." Paragraph 16 of the recommendation was as follows: "16. N.S.W. office of Education advised on 7 April 1983 that despite the extra testing referred to above, TAFE confirmed that Karunakaran is not qualified for entry to a certificate course and that his request for further remedial tuition was rejected. The above advice was also conveyed to Dr Flynn by TAFE in a letter of 12 April 1983 (copy attached at "C"). That same day Sydney office wrote to Dr Flynn that the Education Department had confirmed that Karunakaran was not qualified for entry to any approved course of study for 1983, that he should leave Australia and should present within 14 days evidence of departure arrangements." 11. Paragraphs 21 and 23 of the recommendation are as follows: "21. Karunakaran told his interviewer that he possessed $10, held in a bank account, and that Dr Flynn held his return ticket. However, Dr Flynn later that day revealed that in fact no ticket was held. Dr Flynn had indicated, through his solicitor, that no action is being taken to procure a ticket for Karunakaran. 23. Karunakaran was given the opportunity to make a written submission on his situation, but none has been received. He read the record of interview and signed it, agreeing it was a true record. He advanced no further circumstances to be taken into account relative to the exercise of the discretion under Section 18 of the Migration Act." The recommendation went on to say that the applicant was a prohibited immigrant. In accordance with the private overseas student program objectives the continued stay of the applicant could not be supported. In the circumstances, deportation was recommended. The Minister was asked to provide reasons for his decision to sign the deportation order pursuant to s. 13 of the Judicial Review Act. He provided a statement of his reasons on 15 September 1983. The statement of reasons is largely repetitive of what is contained in the recommendation made by Mr Faubel on 28 July 1983. Paragraph 26 of the statement of reasons is as follows: "26. While I considered and gave weight to the matters in para 16 supra (that is, of the reasons, not the recommendation), and in particular to the fact that he has a desire to remain here for educational purposes, he has no skills, qualifications nor independent financial resources and the representations made on behalf of the applicant, those considerations did not outweigh the public interest in ensuring that non-citizens abide by immigration law and policies. The applicant has been given every opportunity over a considerable 12. period of time to benefit from the Private Overseas Students Program but has failed to achieve minimal academic requirements and has remained unlawfully in Australia after the expiration of his permit." In the meantime the applicant had obtained enrolment at a technical college in the Accountancy Certificate Course. He remained there during the balance of 1983 and was re-enrolled there at the beginning of the academic year in 1984. In some way he had Managed to by-pass the need for the approval of the TAFE Information Centre. He had been admitted because he was thought to be qualified as a result of his School Certificate. This application for Judicial Review was commenced on 9 August 1983. The evidence put on in support of the application was complex and diverse. Much of it was not relevant to the application or, if relevant, of very little relevance to it. The evidence which the applicant put on necessitated replies to it being put on by the two Commonwealth Departments and eventually by the N.S.W. Department. In an endeavour to bring out the issues which were between the parties I made directions for the filing of points of claim and points of defence but the points of claim filed on behalf of the applicant were so prolix and diverse as not to be very helpful. The applicant also wanted discovery and interrogatories. But after the production of departmental files this was not persevered with. Eventually the matter was able to be heard in February 1984. However, the need to call Mrs Hurst and Mr Blair necessitated the hearing being adjourned until April 1984. 13. As I have said much of the evidence is either irrelevant or of very little relevance. A good deal of it consists of accounts of conversations had by Dr Flynn with various of the officers of the departments in question. There are many conflicts in this evidence but I do not find it necessary to resolve them. For the purposes of dealing with the points which were eventually argued I have stated the evidence sufficiently except for matters which I now mention. On the face of things, it appeared that Mrs Hurst may have misunderstood Mr Flynn's report on his testing of the applicant. Until she was called I thought that she had mistakenly equated the applicant with Mr Narayan whose results were unsatisfactory. That was because Mr Flynn appeared to be saying that the applicant had performed reasonably well, both in the English and Mathematics tests. That led me to think that the statements in Mr Faubel's recommendation to the Minister and the Minister's reasons that the applicant had performed poorly academically and was ineligible for enrolment were wrong. But I am persuaded by Mrs Hurst's evidence that that is not so. She did intend to say that the applicant had not performed well enough in Mr Flynn's tests. That is because she requires a higher standard than the applicant displayed for entry into a technical certificate course. She does so because the experience of the N.S.W. Department is that overseas students are out of their environment and are unlikely to succeed at such a course unless they 14, display a standard higher than do Australian students. She knows that for an Australian student entry to a technical certificate course is usually available upon the basis of a pass in the School Certificate alone. No external testing is required. But it is the policy of the N.S.W. department as administered by her not to take the same view of overseas students. It may have been better if she had explained this in her letter to Ms Stubbing of the Commonwealth department. But the fact that she did not does not change the position. Notwithstanding the apparently satisfactory results achieved by the applicant, he did not perform well enough to indicate to Mrs Hurst that he was capable of undertaking a course either in electrical engineering or accountancy as he wished to do. Nevertheless the statement that the applicant was ineligible to enrol in a TAFE course concerned some of the departmental officers. On 22 February 1984 Mr Joseph made a recommendation to the Minister that he not re-open his decision. Amongst the statements made in the recommendation were the following: "5. In the course of the submission of the question of deportation of Mr Karunakaran you were told that the N.S.W. Department of Technical and Further Education (TAFE) had advised that he was not eligible for any enrolment to any approved TAFE course. 6. This Department became aware in the course of preparation for the litigation that Mr Karunakaran was, at all material times, eligible for such enrolment. 7. An officer of the N.S.W. TAFE Department acknowledged the error in an affidavit filed in court. The erroneous advice was sent from the N.S.W. Department to the Commonwealth Department of Education, which in turn was passed on to this Department and relied upon in presentation of the facts to you. 15. 8. The operations No. 2 Branch advises that the revised information has no significant bearing on the consideration of Mr Karunakaran's case. The refusal of the grant of a further temporary entry permit was based not on his eligibility to enter a TAFE course so much as on his assessed incapacity to undertake and complete such a course successfully. This view was accepted and acted upon by the Department of Education. 9. A private overseas student is expected to complete his course in accordance with the rules of the educational institutions and in the minimum time normally taken by an Australian full-time student. 10. However, extensions of stay are granted where it seems likely that the overseas student will complete the course, provided that that student has been paying proper attention to his studies. 11. In Mr Karunakaran's case, his poor performance at secondary level, his failure to strictly comply with the conditions of his entry as a private overseas student (signed July 1977) and which he knew applied to his continued stay in Australia as a student, his enrolment in a non-approved course and the considerable latitude accorded him by this Department tell against the extension of a stay as a private overseas student notwithstanding the revised fact of his eligibility for TAFE education. The recommendation was accepted by the Minister. In passing, I cannot help drawing attention to the use in the paragraphs I have quoted of the expressions "revised information" and "revised fact." Presumably, they are euphemisms for "mistake" or "error". Public servants would find they receive more respect from the community if they faced the fact that they, like others of us, are human and make mistakes. It may be that the writer of the recommendation, Mr Joseph, used the phrases because the supposed error was that of the New South Wales Department and not of any Commonwealth Department. But if there were an error, it should have been described as such, no matter who was responsible for the making of it. 16. The effect of the paragraphs I have quoted is that in the departmental officers' view it was wrong to have said that the applicant was ineligible. It would have been correct to say that he did not have the requisite capacity. In the result no different situation prevailed because of such mistake as there was. The reason why the word "ineligible" was thought to be wrong was because the applicant, having obtained his School Certificate, was, according to N.S.W. standards, eligible to enrol. But a consideration of Mrs Hurst's evidence leads me to think that the applicant was ineligible to enrol according to standards which were applied to overseas, as distinct from local, students. The original recommendation was not, therefore, erroneous and did not need "revising." The remaining matters which need to be mentioned are, firstly, that Dr Flynn has at all times held on the applicant's behalf a return air ticket to Fiji. The ticket has been tendered. It was issued on 7 November 1981 and is the return half of the ticket upon which the applicant travelled to Australia when he returned to Australia on 8 November 1981. In these circumstances it seems unlikely to me that Dr Flynn would have said that the applicant had no return ticket as the recommendation suggests. On the other hand, Dr Flynn did not produce the ticket to the Department by 3 June 1983 or at any other time as he had been requested to do. Secondly, the earlier recommendation stated that the applicant, upon his arrest, was given an opportunity "to make a written submission on his situation." Upon the basis of the evidence which there is 17. about this matter I am satisfied that such opportunity as he was afforded was not in the circumstances one which had any reality about it. In the situation in which the applicant then found himself it was quite unreal to think that he would be capable of writing down the whole of the circumstances of his case and the reasons why he should not be deported. The applicant's case is based upon paras. 5(1) (a),5(1) (e), and 5(1) (h) of the Judicial Review Act. The first of these grounds is that a breach of the rules of natural justice occurred in connection with the making of the decision in question. I am satisfied that this ground should be rejected. This is not a case where the Minister was obliged to observe the rules of natural justice. I refer to Salemi _v. MacKellar (No. 2) (1977) 137 C.L.R. 396, R. v. MacKellar, ex parte Ratu (1977) 137 C.L.R. 461, Minister for Immigration and Ethnic Affairs v. Haj-Ismail (1982) 40 A.L.R. 431, Minister for Immigration and Ethnic Affairs v. Gaillard (1983) 49 A.L.R. 277 and Faingold v. Zammit (1984) 1 F.C.R. 87. It is true that the case of Haj-Ismail establishes that in some circumstances factual considerations may raise an obligation in the Minister to afford a person he proposes to deport an opportunity to be heard before making his decision. This is not a case of that kind. The applicant relies upon para 5(1)(e) of the Judicial Review Act in a number of ways. It provides an applicant for Judicial Review with a remedy if he can show that the making of the decision in question was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. Para 5(1)(e) needs to 18. be read in conjunction with para 5(2). One of the ways in which the applicant seeks to rely upon para 5(1)(e) is to couple it with para 5(2) (£) which makes it an improper exercise of a power to exercise such a power in accordance with a rule or policy without regard to the merits of the particular case. The submission is that the Departments in question, and thus the Minister acting on the advice of his Department, applied the relevant guidelines inflexibly and without reference to the applicant's personal position. I reject this submission. My reasons for doing so emerge more clearly when I deal with the next submission. At this stage, it is enough to say that there is nothing unlawful in the various Departments having policies and laying down guidelines to assist them in determining who is to benefit from the private overseas students scheme. Far from those policies being applied inflexibly in the applicant's case, Mrs Hurst gave him an opportunity not usually afforded to persons seeking enrolment in educational institutions when she arranged for the tests which were administered by Mr Flynn. The outcome of those tests was the determining factor in the applicant being found not to have the requisite capacity to continue his studies here. I shall say more of this ina moment. The next submission is based upon para 5(1)(e) coupled with paras 5(2) (a) and (b), or, alternatively, para 5(1)(h) coupled with para 5(3)(b) of the Judicial Review Act. It is my opinion that if the applicant has a case, it arises by reason of the operation of these Paragraphs. I have already referred to the terms of para 5(1) (e). Paragraphs 5(2)(a) and (b) say that a reference in para 5(1)(e) to an 19. improper exercise of the power is to be construed as including a reference to the taking of an irrelevant consideration into account or the failure to take a relevant consideration into account. Para 5(1)(h) provides as a ground of review that there was no evidence or other material to justify the making of the decision. Para 5(3) (b) provides that this ground is not made out unless the person who made the decision based it on the existence of a particular fact and the fact did not exist. In my opinion such case as the applicant has centres upon Mrs Hurst's letter to Ms Stubbing which led to the statement in the original recommendation that the applicant was not eligible to enrol in a technical course. As I have said, I think it unlikely that Dr Flynn would have told anybody that the applicant did not have a ticket when he had held a ticket for the applicant since November 1981. But Dr Flynn was unwilling to arrange for the departure of the applicant. Whether he told the Department he did have a ticket for the applicant or whether he did not, Dr Flynn was quite unwilling to facilitate the applicant's departure from Australia. He would not have made the ticket available for this purpose. Such error as there is in the recommendation about this matter is, in my opinion, of no relevance. So far as the failure to afford the applicant a real opportunity to make a written submission is concerned, I do not think this could have made any difference to the outcome. The outcome was wrapped up almost entirely in the question of whether or not the applicant was 20. capable of continuing his studies usefully in Australia. The departmental view was that he was not and it followed that he did not come within the departmental guidelines for the issue of a further temporary entry permit. The only result could be that his deportation would be recommended. Nothing the applicant could have said would have changed the position. In any event, the Minister was not bound to give the applicant an opportunity to be heard before making a deportation order. At the heart of the case, therefore, is the question of the applicant's capacity for further study. If his capacity was as stated in the recommendation upon which the Minister based his decision to deport the applicant, no irrelevant consideration has been taken into account and no non-existent fact has been relied upon. If, on the other hand, Mr Faubel said what he did, albeit in good faith, under the erroneous impression that the applicant was not sufficiently qualified, when in fact, according to the guidelines set by the TAFE Information Office he was, the argument 1s open that an irrelevant consideration was taken into account, a relevant consideration, i.e., the applicant's capacity, was omitted from consideration and that the Minister acted upon a wholly erroneous understanding of the essential facts. It should be clear that it is not for the Court to determine for itself whether the applicant had or had not the requisite capacity to undertake any course. So long as those responsible, e.g., Mrs Hurst, 21. reached their decisions in good faith and upon material reasonably capable of justifying their conclusions, the Court will not interfere. It is not to the point that it might itself have taken a different view. The decision is not for it but for the relevant departmental officers. So long as they proceed according to law and upon facts which they are justified in treating as correct, the Court will not disturb what they have done. In my opinion, Mrs Hurst's evidence ought to be accepted in its entirety. It follows that she justifiably held the view which she expressed to Ms Stubbing that the applicant did not have the requisite capacity. Once it is concluded, as I think it should be, that in the eyes of the N.S.W. Department the applicant did not have the requisite capacity to embark on a technical college course, the outcome of the case 1s foreclosed. The applicant could not be enrolled ata technical college in N.S.W. The Commonwealth Department of Education was told that there was no place for him. There was no basis upon which it could recommend his continued stay 1n Australia to the Department of Immigration. That Department no longer had any warrant for granting him renewals of his temporary entry permit. He thus became a prohibited immigrant and subject to deportation. What I have said disposes not only of the grounds based on the paragraphs of the Judicial Review Act mentioned at the outset of this discussion. It also disposes of that based on para 5(1)(e)} and para 5(2) (a). The applicant has failed to establish that either the 22. Minister or any departmental officer acted in bad faith. For all these reasons the application for Judicial Review must, therefore, fail. This case may nevertheless provide some lessons. The applicant did not fit easily into the guidelines because he had been to school in Australia. The guidelines do not contemplate such a case. They are directed to the qualifications required of those who have been educated under other school systems. The problem was compounded by the fact that the applicant had obtained his School Certificate which, although it 1s not by external examination, qualifies persons resident in New South Wales to attend most technical college courses. What neither the applicant nor Dr Flynn could understand was why this did not qualify the applicant for technical college courses in which he was interested in enrolling. For much of the case I could not understand this e1ther. It was not until Mrs Hurst was called that the position became clear. It seems that the guidelines themselves should spell out what the position is and say quite categorically that the School Certificate will not of itself qualify students for enrolment in technical college courses if they are seeking to enrol under the private overseas students' scheme. Furthermore, matters may not have been so obscure if Mrs Hurst's letter to Ms Stubbing, based as it was on Mr Flynn's assessment, had not been worded so elliptically. If instead of writing as she did, she had made 1t clear that, although the applicant had done moderately 23. well in the tests administered by Mr Flynn, he was still not thought to be sufficiently qualified for enrolment, the true position would have emerged earlier than it did. Mrs Hurst acknowledged this criticism, but as she said, the decision was for her and at the time she wrote to Ms Stubbing she had no idea that the matter would be investigated in the way that it has been. It remains to say that the Minister at all times acted on recommendations given to him honestly and in good faith by members of his department. They in turn had acted in good faith on information supplied them by the N.S.W. Department. What the position would have been if the evidence had disclosed that Mrs Hurst had made an error, I do not need to decide. I express no view upon it. But I should note the strong submission of counsel for the Minister that in that event there would have been no basis whatever for the review of the Minister's decision which the applicant seeks. Those being my conclusions, the application must be dismissed. I believe the applicant still to be undertaking the technical college course in which he has been able to enrol, apparently, because of his School Certificate. I express no view on whether the matter ought to be looked at afresh, perhaps in the light of the progress which the applicant has made since the beginning of this year. I do say, however, that, like the departmental officers and the Minister himself, both the applicant and Dr Flynn have at all times acted in good faith. It may be that Dr Flynn has been, to a degree, one-eyed whan a 24. about the matter and has vehement views about the entitlement of the applicant to be educated here. It seems clear that his attitude in this regard has led him to have some fairly acrimonious conversations with some of the departmental officers. But his motives are above reproach and deserve every sympathy. Nothing I say binds the Minister or those advising him. But if the applicant, contrary to Mrs Hurst's expectation, has made some progress in his course, it might be thought not inappropriate to afford hima further opportunity of pursuing his studies here. That is all I would say. In ordinary circumstances the Minister would be entitled to an order for costs. I shall not, however, make such an order now. Instead I shall reserve leave to the Minister to apply for costs if he should be so advised. | certify that this andthe 23 preceding pages are a irue copy cf t'.2 reasans for judgment herein of The donourable Mr Justice Sheppard. S 0, HUTCHISO AN Associate Dated 3O TOLY )978L