a 1 CATCHWORDS Immiaration - statements in Departmental file submitted fo delegate and in delegate's reasons that applicant for resident Status had been notified to leave Australia - those statements not in accordance with facts - exercise of discretion. Miagration Act 1958 Administrative Decisions (Judicial Review) Act 1977, paras. 5(1)(h) and 5(3)(b); also considered, paras. S(1l)(a), 5(1)(e), 5(2)(b) and 5(2)(f). DEREK JAMES GREAVES and JANE FRANCIS KENNEDY v. MINISTER FOR : ; IMMIGRATION AND ETHNIC AFFAIRS No. G68 of 1986 Coram: Sheppard J. Date : 16 April 1986 Place: Sydney st tated ae dia fe ner roa Ro pre Tr ere IN THE FEDERAL COURT OF AUSTRALTA ) NEW SOUTH WALES DISTRICT REGISTRY No. G68 of 1986 GENERAL DIVISION , BETWEEN : DEREK JAMES GREAVES and JANE FRANCIS KENNEDY Applicants AND: MINISTER FOR TMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM: SHEPPARD J. PLACE: SYDNEY DATE : 16 APRIL 1986 MINUTES OF ORDER For Orders see pp. 29 to 30 of Reasons. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. wwe ote Pp ee Men ees ? oh mem a crc et . - . vate oh ae z IN_THE FEDERAL COURT OF AUSTRALTA NEW SOUTH WALES DISTRICT REGISTRY No. G68 of 1986 we we ew GENERAL DIVISION BETWEEN : DEREK JAMES GREAVES and JANE FRANCIS KENNEDY Applicants AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM: SHEPPARD J. DATE : 16 APRIL 1986 REASONS FOR JUDGMENT HIS HONOUR: The applicants seek the review of five decisions of a delegate of the Minister which have led to the makina of a deportation order against the first applicant. Mr. Greaves. The decisions complained of are decisions to:- (a) refuse to grant Mr. Greaves a further temporary entry permit; (b) refuse to qrant Mr. Greaves a resident entry permit; {c) refuse to issue Mr. Greaves with a notice requiring him to leave as a prohibited non-citizen. pursuant to s. 31A of the Migration Act 1958; (d) vefuse permission for Mr. Greavds to leave Australia of his ems FS oat Sian tall asad _ awn volition: (e) order the deportation of Mr. Greaves. The second applicant, Ms. Kennedy. has been living ina de facto relationship with Mr. Greaves. The couple plan to marry when Mr. Greaves' present marriage is dissolved. Mr. Greaves is a British citizen. His mother. Mrs. Elizabeth McFarland, is an Australian citizen, until recently living in Sydney. but now living in Brisbane. She has been separated from her husband for some vears. Early in 1982 she requested her two sons. who were in England and whom she had not seen since 1979, for assistance. Mr. Greaves is her younger son. He arrived in Australia with his wife on 2 May 1982. Before leaving, Mr. and Mrs. Greaves had obtained visas to visit Australia from Australia House in Manchester. They held British passports. When they arrived in Australia, their passports were stamped by the immigration authorities with temporary entry permits authorising a stay of two months. it was a condition of the arant of the permits that neither Mr. Greaves nor Mrs. Greaves do anv work whilst they were in this country. Mr. Greaves found his mother in ill health and in financially difficult circumstances. He decided to stay in Australia, obtain employment and assist his mother. Mr. Greaves was born on 27 May 1958. He was thus about 24 years of aqe when he arrived. He was at school until he obtained his "0" levels. He has no trade or other formal qualifications. Before his departure from Enaland, ee -otaepe rer ' 3. he had had employment in various unskilled occupations. including a tob for his brother who is apparently in the motor trade. In his evidence he said that he did not appreciate that he was obliged either to leave Australia on or before 2 Julv 1982. or obtain an extension of his entry permit. He said that he did not read the temporary entry permit stamped in his passport and did not realize that he was not permitted to work in Australia. His evidence was that his passport had usually been kept by his wife from whom he had been separated since July 1984. He did not remember having seen it since about the time of their arrival in Svdnev. It is not presently in his possession. Nevertheless, he must have had some quaims about his position because a conversation with a Mr. Vaughan and his mother led him to visit the electoral office of the Honourable Mr. Lionel F. Bowen M.P.. the member for Kinasford-Smith in the House of Representatives. It is Mr. Greaves' evidence that his first visit to Mr. Bowen's office was in Auqust 1982. Upon the basis of certain documents which are in evidence. counsel for the Minister submitted that the visit was not until November 1982. On either view, Mr. Greaves had overstayed his welcome bv the time he first saw Mr. Bowen. By that time he had employment. As the result of an interview, whether the first or secend it is immaterial to decide, in November 1982. a number of forms were filled in and sianed. In the order in which they appear in the spare a ad pe Ret eee a npr ee ince . rrr - aa j i wee $ret e Ae eee - wae - ors: * 4. Departmental file. these were a document entitled. "Assurance of Support", sianed by Mr. Vaudhan. either on 22 October 1982 or 13 November 1982, a document entitled. "Details of Relatives" sianed by Mrs. McFarland on 22 October 1982, a document entitled. "Supplementary Sponsorship Information". also sianed by Mrs. McFarland on 22 October 1982. and a document entitled "Confirmation of Offer of Employment", siaqned on behalf of a firm, Maroubra Mitsubishi. on 13 November 1982. In effect the documents were an application by Mr. Vaughan to sponsor Mr. Greaves for permanent residence in Australia. Stranqely, there was no document siaqned bv Mr. Greaves himself. Whether any such document was at that stage required, I do not know. The documents were left with Mrs. Barbara Fahev. Mr. Bowen's electoral secretary. The effect of Mr. Greaves' evidence was that he thoudht he had done what was necessary to remain in Australia, at least for the time being. Nothing said during the discussion at Mr. Bowen's office led him. so he said, to believe to the contrary. Nothing further occurred until 12 Mav 1983, when Mrs. Fahey wrote to Ms. Penny Austin who is described in Mrs. Fahey's letter as Parliamentarv Liaison Officer. Department of Immiaqration and Ethnic Affairs, Commonwealth Government Centre, Chiflev Square, Svdnev. Mrs. Fahey said:- "Pennv. I have been holdina on to these documents for a long time - since February at least. spe se 5. Apparentiv the actual Sponsorship forms were submitted before Christmas. and I have made inquiries with vou on two occasions to link them with a file number, but this has proved unsuccessful. Would vou be akle to submit the attached documents to the appropriate department. in the hope that they will link up with the sponsorship forms? Thanks." The letter was addressed from the office of the Deputv Prime Minister, Parliament House. Canberra. Mr. Bowen having become Deputy Prime Minister and Minister for Trade consequent upon the change of government which had occurred on 5 March 1983. He was not, of course, acting in this matter in his capacity as a member of the Government. Rather, he was acting in his capacity as a member of parliament providing aid and assistance to one or more of his constituents. It would appear from the file that Ms. Austin must have sent the forms and Mrs. Fahev's memorandum to the Department of Immiqration in Sydney. for stamped on the back of each of the forms and the memorandum is the stamp of the Department's Svdneyv office. Each stamp bears the date, 16 May 1983. The next document on the file is a handwritten memorandum from Ms. Austin dated 17 May 1983. It was addressed toa Ms. Marilyn Banfield and said:- "Marilyn, Advise Barbara Fahey in Mr. Bowen's office that ftfhere is no record of any previous sponsorship et ma ee SO IT, " - perhaps sponsor should complete new M40". Underneath Ms. Austin's sianature. Ms. Banfield has written:- "Bowen's office to obtain new M40s. Marilyn Banfield PLO 20/5/83" From her desianation. I assume that Ms. Banfield was another parliamentary liaison officer. The reference to M40s_ was apparently a reference to forms, but to forms other than those which the Department received on 16 Mav 1983, none of which is numbered M40. What the forms, known as M40s. were does not appear. The forms which the Department had been sent were then six months old, but the recent contract with the Department initiated bv Mrs. Fahey would have put the Department on notice that it was probable that Mr. Greaves was still in Australia, was workinda, and was without lawful authority either to be here or to have " employment. The documents disclosed Mr. Greaves' address. No steps were. however, taken by the Department to inform him of his problems, or to require him to leave Australia. All the Department then wanted was the furnishina of further forms. The fact that Mr. Greaves had probably been in Australia for about a vear. and had worked for most of that time. was not at that time apparentlv of wee ae we ee tes wae oS co wy fon Seneraiemen terhan aia) eae er rn oan Cw ey scx > wa eee mer concern to it. On 30 Mav 1983 Mrs. Fahey wrote to the Greaves. She did so on a letterhead which said. "Office of the Deputy Prime Minister. Minister for Trade. Parliament House. Canberra, 2600." She addressed the letter to the Greaves at 4/33 Henry Street, Randwick, the address shown in the forms sianed in November. 1982. The letter said:- "Dear Mr. & Mrs. Greaves, ' The Immiaration Department in Svdnev are having difficulty in locatina your Application for Permanent Residencv and the file number applicable to this application. It would be appreciated if either one of you could contact Mr. Bowen's Maroubra office, telephone 349-6777 (preferably in the morninda) so that more details can be obtained from you". This letter led to the preparation of new forms containing much the same information as had been contained in the earlier ones. Some of the forms were dated 14 June 1983: others were dated 14 July 1983. Stamps on the back of the forms establish that they were received in the Sydnev office of the Department on 1 August 1983. They had apparently first been forwarded bv Mrs. Fahey to Ms. Austin on 26 July 1983, Mrs. Pahevy saying in her memorandum to Ms. Austin:- "Pennv as per your suagestion - attached please find fresh set of application forms duly completed." vtoce oe ns ete ree epee epee oe ' 8. The new forms did not include anv application for permanent residency, the form mentioned in Mrs. Fahev's letter to the Greaves of 30 Mav 1983. Mrs. Fahev made no mention of this to Ms. Austin. At this point I should mention a further note which appears on the file sianed by Ms. Austin. From the title she had, Parliamentary Liaison Officer, Department of Immigration and Ethnic Affairs, I qather that she was a member of the staff of the Department whose duties were to liaise with members of Parliament. makina representations about immiaration matters on behalf of constituents. The note was appended to a with compliments slip bearina Mr. Bowen's name and title. and also his desianation as Deputy Prime Minister and Minister for Trade. It was addressed from Parliament House, Canberra. The note was dated 16 June 1983. and was addressed to "Sponsorship". which was, I assume. the Sponsorship Section of the Department. It said. "For your normal processing action". The note appears to indicate that such of the replacement forms as had been sianed in June were received as early as 16 June 1983, not 1 Auqust 1983 as the stamp on the forms would suaqcest. Someone. presumably an officer of the Department, has written on the top of the with compliments slip an instruction to raise an appropriate file. There are further notes on the file ao rp me re stain el indicatina the procress of the investiaation which then becan. More information and documentation were needed. Ina note sianed on 17 Auaust 1983, a person described as Bernie asked Ms. Austin for what was required. On 19 Auqust 1983, Ms. Austin noted that she had checked with Mrs. Fahey. who had told her that the Greaves were currently in Australia ona working holiday. A further note, dated 19 Auqust 1983. said. amongst other things. that no action was to be taken until the Greaves had left Australia. I assume that this was in accord with the Ministerial policy of the time. One matter that should be noted at this point is that. notwithstanding the mention in Mrs. Fahey' s letter of 30 Mav 1983 of the fact that the Department was havina aifficulty in locatina the Greaves' application for permanent residency. no such application was apparently asked for in what followed, and no such application was said to be required when deficiencies in the documents which had been lodded were mentioned either in the notes which appear on the file or in phe letter of 1 September | 1983, next to be mentioned. On 1 September 1983. Mr. U.P. Pommerov, the Director, Operations Division, wrote to Mrs. Fahev as follows:- "Dear Mrs. Fahev I refer to the sponsorship application that vou forwarded on behalf of Mrs. Elizabeth McFarland for the entry to Australia of Mr. and Mrs. Derek Greaves. —_ 7 i 10. In connection with the sponsorship Mrs. McFarland should provide the followind:- x Form M67 (enclosed). Mr. Greaves' father's details were not included on the form lodged with the application. * Form M417 (enclosed). Mrs. Greaves' details should be included. * Form M439 (enclosed). This form should be completed by Mrs. McFarland. * Evidence of Mrs. McFarland's income. x Evidence of Mrs. McFarland's Australian Citizenship. It is noted that Mr. and Mrs. Greaves are currently in Australia. No further action can be taken on the sponsorship until their departure from Australia has been confirmed. Mr. and Mrs. Greaves should advise their proposed departure arranqements." So far as the Department was concerned nothing further appears to have occurred until 2 March 1984 when a querv was raised as to whether the Greaves had departed and whether the forms requested on 1 September 1983 had been sent in. On the same day a letter was sent to Mrs. McFarland at the address shown in the Department's file. The letter was returned unclaimed at the end of March. No letter was written to the Greaves nor was any attempt made to communicate directly with them. Early in 1986 the Department discovered Mr. Greave''s whereabouts. and on 26 February 1986 he was arrested as a prohibited non-citizen. He was detained at Villawood for three weeks and then released on certain undertakings qiven to the Court after the application here in question had been filed. qos ere pagina ee ce oe pote 2 OI 3 re te ee wre eee ts ee et ak vont 11. Mr. Greaves has sworn that the contents of the Department's letter of 1 September 1983 to Mrs. Fahev did not come to his attention until after his arrest. There is no evidence that it did. Mrs. Fahey was not called as a witness. I should mention, however, that counsel for - the Minister sought to tender a letter dated 4 April 1986 siqned by Mr. Bowen and written to the applicants' solicitors settind out Mr. Bowen's recollection of events. Amongst other things the letter said that the Department's letter to Mrs. Fahey of 1 September 1983 had been forwarded to Mr. Greaves on 7 September 1983. No copy of any forwarding letter or note was attached. The tender was objected to. Counsel for the Minister was unable. quite correctly in my opinion. to advance any around for the admissibility of the letter and I rejected it. No application was made by counsel for the Minister for an adjournment to enable him to call Mrs. Fahev or Mr. Bowen or to produce any records kept in Mr. Bowen's electoral office some of which are referred to in his letter. although not in relation to the letter of 1 September 1983. Having heard Mr. Greaves cross-examined and having taken into account the absence of anv evidence to the contrary, I accept that he himself did not in fact receive the letter of 1 September 1983 nor learn of its contents until after his arrest. He said that he believed his application was still being processed. The matter was not at all times at the forefront of his mind. He had eq re ~Y. we, tae ye 12. the upset of the separation from his wife in Julv 1984 and the . institution of divorce proceedings in 1985. There was also the development of his association with Ms. Kennedy and concern over his mother's well-being, particularly her health. In this reaard he said that his mother had moved to Brisbane only because of her health. Brisbane's warmer climate being more suitable for the relief of a back problem which she has. The essence of Mr. Greave's case is that he had at all times done all that had been asked of hin. He had not been told by anyone that his application could not be processed until he left Australia nor that an application for permanent residency was required. Furthermore, the documents in the file establish that the Department did not attempt to tell him other than by means of the letter of 1 September 1983 to Mrs. Fahev that he would need to leave Australia before his application for permanent residence could be considered. It is aqainst this backaround that the Deleaate's decisions and the Departmental approach to them must be considered. There are two principal documents which reveal that approach, a Departmental case summary and the Deleaate's reasons provided pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977. The recommendations made in the case summarv which were accepted bv the Deleqate were as follows:- see poe se eee 2 A, Tae eo . preps rae wong ae 13. "...it is recommended that vou i) refuse the arant of a temporary entry permit to Mr.: Greaves ii) refuse the arant of a resident entry permit to Mr. Greaves iii) refuse permission for Mr. Greaves to make a supervised voluntary departure iv) sian the attached order for the deportation of Mr. Greaves". The case summary commenced with an account of the history of the matter much as 1t appears above. Receipt of the sponsorship forms on 16 May 1983 from Mr. Bowen's office was referred to, but the request for the later forms was not referred to, the reference to the forms received on 16 Mav 1983 being followed immediately by reference to the letter to Mrs. Fahey of 1 September 1983. To that extent the account is oncomplete and. to a deqree, misleadina,. Some detail of Mr. Greaves' personal history followed. It was then said that. at interview and in a letter dated 27 February 1986, Mr. Greaves had said that he was prepared to purchase a ticket to depart Australia voluntarilv. The concession of a voluntary departure was not considered appropriate in view of the facts that:- "(i) he has been a prohibited non-citizen since 2 July 1982, and had not departed Australia as directed, (ii) he had worked illecallv in Australia for a sianificant proportion of his stav" Reference was made to Mr. Greaves' association with Ms. ie os a Ye ppt on se ere ee ae ee ' ue Le ea ics ieelindie Serbo tole Aeealiesheieesien toc) erp nese ep me ee ee - rr er ae 14. Kennedy and to opportunities agiven Mr. Greaves to make representations concernina matters relevant to his wish to remain in Reqularization of Status". under which it was said:- "Mr. Greaves wishes to be considered for the arant of resident status on compassionate qrounds under Section 6A(1)(e) of the Act i.e. on the basis of his de-facto relationship with Ms. Kennedy. He does not possess a temporary entry permit which is in force and if he were to apply for a temporary entry permit. having reaqard to the applicable policv., such an application is unlikely to be approved. However you are invited to accept that the defacto relationship between Mr. Greaves and Ms. Kennedy is qenuine and ongoing and that it is possible for you to authorise the qrant of a temporary entry permit to Mr. Greaves. For the purposes of considering Mr. Greaves' eliqibility for the Grant of Resident Status under Section 6A(1)(e) of the Act vou may consider that he holds such a temporarv entry permit. Mr. Greaves and Ms. Kennedy have said that their relationship has existed since Julv 1984 with a five (5) month period of separation from Auaqust 1985 until Januarv 1986. If Mr. Greaves were to now lodge an application for resident status on the basis of this relationship. in the liaht of current policy such an application is unlikely to be approved. Mr. Greaves breaches of Immiaration law must weich heavily against him. [In particular it is noted that:- (i) when Mr. Greaves commenced living with Ms. Kennedy in November 1984 he had been a prohibited non-citizen since July 1982 (ii) Mr. Greaves had been directed to depart Australia ina letter dated 1 September 1983 and failed to do so (iii) Mr. Greaves has worked illeaallv in Australia for a sianificant period of his stay". Australia. There was next a heading, "Possibilities for Bo een Sai eee vcr perme ee "4 +o es ve i hero. DOTTIE SP TY , 15. There followed a reference to a letter sent to the Department on 28 Februarv 1986 by Mr. Greaves' solicitors. The letter was sent by Mr. Mayell who wrote it in haste and under difficult conditions, Mr. Greaves being in custody at the time it was written. Reference was made in the letter to the application lodaed in 1982 and the application lodaed in 1983. It was then said:- "In August or September 1983 the Department of Immicration advised Mr. Greaves that because he was not a holder of a valid entrv permit, consideration could not be aiven to his application for permanent resident status". Mr. Mayell said that the information for that paracraph came. not from Mr. Greaves, but from a Mr. Tanner who is a clerk in the Enforcement Section of the Department. Mr. Tanner, so Mr. Mavell said, had qiven him an account of what was in the file. I am satisfied that I should accept Mr. Mavell's evidence in this respect. In reaching that conclusion I have taken into account that the file was not available for the inspection of Mr. Greaves or his advisers until the hearing of this matter commenced on 9 April 1986. The solicitors' letter continued by setting out the matters relied upon in support of the submission that Mr. Greaves not be deported. It is unnécessarv to refer to the detail of it except to say that amonast the matters relied upon were Mr. Greaves' association with Ms. Kennedv and the problems faced by Mrs. S aiilaanrwentectnennaen a arstaaaiel he er re 16. McFarland, Mr. Greaves' mother. The letter enclosed a number of references from various people known to Mr. Greaves. The concluding paragraphs of the case summary so far as thev are relevant were as follows:- "Mr. Greaves is a prohibited non-citizen. He has committed offences in becoming a _ prohibited non-citizen and by working without permission. There are on foot no applications for reqularisation of his status, although Mr. Greaves has requested that consideration be qaiven to the qarant of resident status on the basis of his relationship with Ms. Kennedy. It remains possible for his status to be reaularised (by arant of a further TEP), but bearing in mind the policy as it stands and taking into account the circumstances of Mr. Greaves as related above. you may decide to order his deportation. Alternatively, in the light of submissions from Mr. Greaves and his solicitor, vou may decide to allow Mr. Greaves to make a supervised voluntarv departure". There followed the recommendation earlier set out. The reasons provided pursuant to s.13 of the Act followa similar line to the case summary. In the light of the submissions made by counsel for Mr. Greaves. it is necessary onlv to refer to paragraphs 5, 6 and 21. Paragraphs 5 and 6 appear under the heading, "Findings on Material Ouestions of Fact", and are as follows:- "Ss. Ina letter dated 1 September 1983 to the gprs ee ee ee yeas 17. Hon. I. Bowen M.P. the sponsor, Ms. Elizabeth McFarland (the Applicant's mother) was advised that the application would not proceed whilst the Applicant and his spouse remained in Australia. The letter also advised that the Applicant and his spouse should notify the Department of proposed departure arrandements. 6. The Applicant did not depart and made no approach to the Department for the reaqularisation of his status". Paragraph 21 appears under the headina. "Reasons for mv Decision". It savs:- "21. In considering whether to allow the Applicant to depart voluntarilv, I took into account the Minister's policies on voluntary departure as announced on 17 October 1985. I considered that the concession of voluntarv departure was not appropriate because the Applicant has been a prohibited non-citizen since 2 July 1982. had not departed Australia as directed and because he had worked illeqally in Australia for a siqnificant proportion of his stay". Before leaving the documents relevant to the case, I should cefer to the record of interview conducted by Mr. Peter Hill of the Department of Immiaqration on 26 February 1986. The record is in Mr. Hill's handwriting, but siaqned by Mr. Greaves. In answer to question 6 which asked whether Mr. Greaves had sought change of status appears the following answer:- "Lodged sponsorship forms dated Nov 82 and Julv 83. Lapsed - applicants in Australia". we ee coe at E ee re vos ew ¢ Potrero ee eee ' a oe eo 18. The words, "Lapsed - applicants in Australia" seem likely to be Mr. Hill's words not those of Mr. Greaves. Some reliance was placed on those words by counsel for the Minister. but there was no cross-examination of Mr. Greaves which would have qiven him an opportunity to explain them and I have accordinaly not taken anvthina from them. The arounds upon which the applicants rely in their application are:- "1. That a breach of the rules of natural justice occurred in connection with the makina of the said decisions; 2. That the making of the said decisions was an improper exercise of the powers conferred by the Miaration Act 1958 on the respondent or his deleqate, in that:- (a) the respondent or his deleaqate failed to take relevant considerations into account in the exercise of the said powers; (b) the respondent or his deleqate exercised discretionary powers in accordance with the policy of the respondent on Illegal Immigrants without reaard to the merits of the particular case". For the first around, the provisions of the Act which arise for consideration are those contained in para. 5(1)(a): for the second ground thev are those contained in para. 5(1)(e) and para. 5(2)(b); and for the third around they are the provisions of para. 5(1)(e) and para. S(2)(f). In the course of the hearina I suagested to counsel for the applicants that he miadht also be orn' te ase wre ee 19. able to relv upon a submission that the Deleqate who made the decision based the decision on the existence of a particular fact and that fact did not exist. That around arises bv the combined operation of para. 5({1)(h) and para. 5(3)(b). Counsel applied to amend the application accordinaly. Counsel for the Minister opposed the application. I did not then decide the matter because I wanted to see what matters of prejudice to the Minister miaht arise as the result of the applicants' obtaining leave to amend their application to rely on this qround. In the result I am satisfied no matter of prejudice arose with the consequence that I propose to allow the amendment. For present purposes I shall treat the application as so amended, but in due course a formal amendment to it should be made bv the applicants' solicitors. Upon whatever arounds the application mav be based. the attack made by counsel for the applicants upon each of the impuaned decisions centred upon what were said to be incorrect and incomplete statements made conceerning the events of 1982 and 1983. Thus it was said that the substance of paraaraphs 5 and 6 of the reasons earlier set out was in effect that no later than September 1983 Mr. Greaves knew that he was required to depart yet he neither left Australia mor made any approach to the Department to attempt to reqularize his status. He therefore deliberately flouted what he knew were the requirements of the immiaqration law of this countrv. peesneain a ris niaaing \1ah sore epee ee L ae Be eee nn te eee . 20. The same is said in relation to paraqraph 21 of the reasons where reference is made to Mr. Greaves not having departed Australia as directed. A similar statement is to be found in the paraqraph numbered (i) in the early part of the case summary earlier quoted and in paraqraph (ii) of a subsequent portion of the case summarv also quoted earlier. The evidence to which I have referred establishes, in mv opinion. that Mr. Greaves was not himself directed to leave Australia nor did he. through Mr. Bowen's office, his mother or the Department, or. for that matter from any other source. hear that he was required to leave Australia until the deportation order was made on 13 March 1986. Nevertheless, counsel for the Minister said that Mr. Greaves had had constructive notice of the requirement after the receipt in Mr. Bowen's office of the Letter of 1 September 1983. In counsel's submission Mr. Bowen was to be treated as Mr. Greaves' aqent for the purpose of the application which had been lodged, so that notice to him or his office was notice to Mr. Greaves. I do not think that it could be correct to pick up concepts such as holding out a person as an aqent or constructive notice into this field. Thev have their place in the law relating to contract and to principal and agent, but I think in a situation of this kind one must look at the whole of the circumstances. Whilst I do not think that it was unreasonable for officers in the Department to think that notice to Mr. Bowen's electoral office would probably reach Mr. Greaves, I would have thoucht wt eee ee for ob " yoo ey oan wooo akercaietreaine ent — ' 21. that. once contact had been established with the Department " through the aqood offices of a member of parliament, the sensible course for the Department to adopt would have been direct contact with the applicant for permanent residence, if, as in this case, he were in Australia. or. if not. then with his sponsor or any close relative living here. I realise that there may be conventions which suaqest that contact must be made throuqh the member's office because the representation came from the member, but there is no evidence of any such convention. I cannot think that there would be any discourtesv to a member of parliament if he or she were informed of what was transpirina and direct contact with the applicant or sponsor were established. What is really being said on behalf of the Minister is that officers of his Department were entitled to assume, once the letter of 1 September 1983 was written. that Mr. Greaves had been informed that he should leave Australia forthwith. Particularly in the absence of any attempt on their part to make contact with Mr. Greaves himself, I think their assumption was unwarranted, especially when nothing further had been heard about the matter in March 1984. Even then no attempt to contact the Greaves themselves was made. It follows that the objective facts remain - the Greaves were never notified of any requirement that they depart Australia. It was then said by counsel for the Minister that Mr. Greaves' solicitors' letter of 28 Februarv 1986 had misled the Jan fet Ne ee ee eer ry Steet tdi eres Roy ' pret . 22. Departmental officers, includina the Deleqate, into thinking that Mr. Greaves had in fact had notice of the requirement that he depart Australia in September 1983. That submission was based upon the paragraph of the letter earlier set out which said that in Auqust or September 1983 the Department had advised Mr. Greaves that consideration could not be qiven to his application for permanent resident status because he was not the holder of a valid entrv permit. Of course, an initial difficultv with the submission is that the letter does not acknowledae that Mr. Greaves had been told to leave Australia in September 1983, but counsel submitted that a fair inference arising from the paragraph was that the letter of 1 September 1983 had in fact come to Mr. Greaves' notice. I have found that the paraaqraph was written because and onlv because of what Mr. Tanner told Mr. Greaves' solicitor, to whom the Departmental file was not then available. But in counsel's submission that is not a relevant consideration. Those responsible for the various decisions were entitled to rely on the statement as an acknowledgement that for a period of some two and a half years Mr. Greaves had known that he was required to leave. In my opinion this matter qoes. as counsel for the Minister was inclined to concede, to the exercise of discretion rather than to the question of whether a around for review of the are one wee Se nn a be Seo ar -ep one . 23. decision has been established. Counsel relied on the decision of Wilcox J. in Singh v. The Minister for Immigration and Ethnic Affairs (4 December 1985, unreported, especially at pp. 16 - 17). But that was a different kind of case. There the applicants had failed to place reliance in their submissions to the Minister on a number of important matters which may have been relevant to his consideration of their applications. The conduct and decisions. review of which were sought, were engaged in or made in iqnorance of those matters. His Honour held that the decisions, made as they were on the information provided by the applicants. should not be disturbed. On the other hand, the complaint here is that the decisions were made on plainly incorrect information, namely, that Mr. Greaves had been told to depart Australia in September 1983. Upon the basis of what is said in the quoted paragraphs from the case summary and the reasons, the Delegate plainly relied on Mr. Greaves' failure to obey an instruction to depart Australia as an important factor in his consideration of the problem. The matter is referred to specifically in paragraph 21 of the reasons, which is the penultimate paragraph of then. On the findings I have made, Mr. Greaves had not disobeyed any instruction to depart. No communication to that effect had ever reached him or come to his notice. The statement in paragraph 21 of the reasons and similar statements in the case summary were therefore erroneous. It follows, picking up the words of para. 5(3)(b) of the Act, that the Delegate who made the various us sR ft wy ame 24. decisions based them on the existence of a particular fact. and that fact did not exist. The around provided for in para. "6(1)(h) of the Act has therefore been made out. As earlier mentioned, other qrounds were relied upon; but not. so far as I understand the arqument. to advance anv further matter of substance. In other words. the complaint about the decision was in substance _that the deleqate had proceeded on the basis that Mr. Greaves had been told to leave Australia in 1983 when that was not in fact the case. That is not to say that there was not mention of other related matters, one of which was that the overall conduct of the matter by the Department had led Mr. Greaves to think that he would not be asked to leave until his application had been dealt with and he had had a reasonable opportunity of makina representations about anv matter relied upon by the Minister or his Department adversely to him. This was the basis for reliance on para. 5(1)(a) of the Act and upon the decision of the High Court in Kioa _v. Minister far Immigration and Ethnic Affairs (1985) 62 A.L.R. 321. especially per Mason J. at pp. 345 - 349 and per Wilson J. at p. 361. In the circumstances it is unnecessary to express a view on this submission, and I do not. Nor is it necessary to deal with submissions based on the taking into account of an irrelevant consideration, or on the application of a policy without reaqard to the merits of the particular case. But in relation to the first of these submissions, I would savy that considerations such ep ene en on woos re ce nd one sap oot re, eo ote uke are, 25. as were mentioned bv Deane J. in Sean Investments Ptv Limited v. MacKellar (1981) 38 A.L.R. 363 at pp. 374 - 375, affirmed on appeal (1982) 42 A.L.R. 676. may have made it difficult for the applicants to succeed on this ground: see also Peko-Wallsend Limited v. Minister for Aboriginal Affairs (1985) 59 A.L.R. 51 at pp. 76 - 77, currentlv on appeal to the High Court. In relation to the submission based on the application of the policy, I think the applicants are on firmer ground. That is because paragraph 21 of the reasons makes it clear that the policv has been applied for the reasons, amongst others, that Mr. Greaves did not depart Australia, despite a direction to him to do so. But that does not add anything to the qround provided for in para. 5(1)(h) which I have found established. A aground for relief having been found. the next question is whether I should nevertheless refuse relief in the exercise of the discretion vested in the Court bys. 16 of the Act. The principal matters relied upon by counsel for the Minister were the misleading statement in Mr. Greaves' solicitors' letter, earlier referred to, the circumstance that Mr. Greaves had held out Mr. Bowen or his office as his agent, so that notice to that office was notice to Mr. Greaves. and Mr. Greaves' failure. after what he must have appreciated was avery long time. to make inquiries as to the outcome of the applications he knew to have been made on his behalf. There was mention also of a number of traffic fines. some for moderately serious offences, which were tele . te tae ® 26. outstanding at the time of Mr. Greaves' arrest. Thev have ' apparently since been paid. I must sav that Mr. Greaves' record in this respect appears to contain a substantial blemish. Certainiv it does nothina to suagest that, if he becomes a citizen of this country at some future time, he will always be a responsible one. But although the matter is mentioned in the reasons, it is only mentioned in passing. It does not appear to have been relied upon as a reason why Mr. Greaves should be deported. The other matters are matters which must be weiqhed in the balance, but I do not think that qreat weidht can be attached to the misleading statement in the solicitors' letter. On the facts I have found, the statement was made, because of misleading information which the solicitors themselves had been gqiven, albeit in qood faith. by Mr. Tanner. Mr. Greaves did not see the letter, and was not himself responsible for it. I think there is more force in the submission that Mr. Greaves held out Mr. Bowen's office as his agent. but he isa young man of limited education and experience. I do not think that the matter should have such a place in the proceedings as to deprive him of the relief to which he would otherwise be entitled. I would place still more weiqaht on Mr. Greaves' failure to follow up the application he had made to see whether it had been approved or not. [fjthink that the fact that he did Veena ee were pm cm os ae i en "> er ep mee we aperee , Ano Ne er re eee 27. not, is a factor which must tell against him. On the other hand he is, as I have said, youna: he dealt all along with a member of parliament who, by the time the second series of documents was prepared, had become a very senior member of the Government. Plainly Mr. Bowen was not acting in this capacity when his office arranged for the filling in of forms and the sending of them to the Department, but aman of Mr. Greaves' experience miaght find it hard to distinguish the two capacities a member of parliament sometimes has, especially when he is sent, as was the case here, the letter of 30 May 1983 addressed, not from the electoral office, but from the office of the Deputy Prime Minister. Mr. Greaves did not iaqnore the letter. Within a fortniaqht new forms had been prepared, and some of them had been siaqned. It is true that no application for permanent residence appears to have been filled out, but the fact that it was not. was not due to any lack of co-operation on Mr. Greaves' part. He procured the forms he was asked to procure. Whatever else happened thereafter. no-one asked him for such an application. Certainly, it was not asked for in Mr. Pommerov's letter of 1 September 1983, written to Mrs. Fahev. Furthermore, Mr. Greaves led no clandestine existence. He lodged income tax returns which showed his address. He had no knowledae of the secrecy provisions of the Income Tax Assessment Act 1936, so that he would not have realized that this address would not have been available to other qovernment weeny see Hee ators ese Se eee =: ne - a D . " 28. instrumentalities. He held a driver's licence. When he moved, "he left forwarding addresses at post offices. He did not move in order to avoid detection: rather he moved because of his separation from his wife and the development of his association with Ms. Kennedy. When he filed an application for the dissolution of his marriage in the Family Court, his then addres appeared on it. None of this indicates a course of conduct desianed to conceal his whereabouts from the authorities. Havina considered the matter overall. I think that I should qrant the applicants the relief which they seek. This will involve the setting aside of the various decisions which have been impugned, and a direction to the Minister or his Delegate to reconsider the matter in the licht of this iudament. and of any other matters which it is relevant for them to consider. Without wishing to indicate anv course thev should take. I would point out that, had the letter of 1 September 1983 come to Mr. Greaves' attention. the probabilities are that he would long since have left Australia, with the consequence that his application for permanent residence would by now probably have been processed. Furthermore, his mother's health is not improving, and she continues to ade. The current policy. in some circumstances, imposes in effect a penaltv of five vears before an application for permanent residence mav be renewed. That applies in rr nS oe a . vee 29. circumstances where a prohibited non-citizen has been deported. It would seem to me to be, to say the least. unfortunate if such a penalty, or indeed anv penalty, were imposed in the present case. I say that particularly because of the mother's condition. The responsibility and concern which Mr. Greaves has over her welfare did not arise for the first time after his stay here became unlawful. His ties with Ms. Kennedy are in that category, but his mother, who is an Australian citizen, was i11 and in difficult financial circumstances before he arrived. It was concern over her welfare which brought him here in the first Place, and kept him here thereafter. Since then he has, to use one of the words of the policv, developed other "ties", namelv, his association with Ms. Kennedv. But that association did not commence until well after 1 September 1983. If his position had been regularized then, as it might have been, even if he had had to return to England for a period, he would not now be in his present predicament. I shall now hear counsel on the form of the orders to be made. (After submissions from counsel his Honour made the following orders:- (1) The decisions of the respondent or his deleaate of 13 March 1986 to:- (i) Refuse to grant the first applicant a further temporary ao ranean rp oe ee TOE ee entrv permit: (41) RefusSe to arant the first applicant a resident entrv permit; (iii)Refuse to issue the first applicant a notice requirina i. him to leave as a prohibited non-citizen pursuant to s. 31A of the Migration Act 1958; (iv) Refuse permission for the first applicant to leave Australia of his own volition: {v) Order the deportation of the first applicant: be set' aside and the matter remitted to the respondent or his deleaate for further consideratian according ta law. (2) The respondent pay three-quarters of the applicants' costs. (3) All exhibits be returned.) i certify that ihis and the 29 preceding pages are a tiue cop; cf the reasons for judgment herei- of The Hencurable Mr Justice Sheppard. / of Za Assoclate ase Dated /G APRIL /786 ai sore