IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY NOT CONSIDERED SUITABLE FOR DISTRIBUTION No. 82 of 1986 oe aed GENERAL DIVISION BETWEEN: JANNETTE CIELIN Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent EX-TEMPORE REASONS FOR JUDGMENT BURCHETT J. The applicant is a Canadian citizen who arrived in Australia from New Zealand, having a temporary entry permit for six months, issued upon a visa granted to visit relatives and have a holiday. She did not visit relatives upon her arrival, but went to see a Dr. Golinger in Perth. This doctor is a surgeon who had treated her on a previous stay in Australia in 1975. The applicant had a long and involved history of medical problems, and a desire to consult a doctor already favourably known to her is entirely understandable. As it turned out, Dr. Golinger, who is (as I have said) a surgeon, did not think an operation appropriate, but the applicant was referred to a number of other doctors, and was at least twice admitted to hospitals for investigation, or treatment, or perhaps for both. Eventually, she began treatment with a chiropractor, a Mr. Martinovich, who uses a unique method, so I was informed, learned from his Yugoslav father. I take that piece of evidence to suggest that the treatment was either uniquely personal or unique to Yugoslavia. I do not think it matters which 1s meant, since no connection is suggested between the applicant and Yugoslavia. She has also seen a number of other doctors in various specialties. She was in hospital at the time that her temporary entry permit expired, and she was seen there by an officer of the department in order to facilitate her application for a further temporary entry permit. That was on or about 5 June 1986, and she did make the application. However, on 2] July a letter of refusal was sent, and on 7 August she was given a notice requiring her to leave Australia, pursuant to the provisions of s.31A of the Act. The present application is brought under the Administrative Decisions (Judicial Review) Act 1977, s.5 for review of the decision to refuse a further temporary entry permit. The grounds argued, fall under three heads. First, 1t was alleged that the decision-maker took into account irrelevant considerations. Secondly, that he failed to take into account relevant considerations. And thirdly, that the applicant was denied natural justice. There was a separate issue, whether in fact the decision was made at a different time, and by a different decision-maker, from the time and decision-maker asserted by the department. As to this, I think it is sufficient to say that I see no reason not to accept the affidavit of Mr. Corbett, which is quite clear on the point. He was not cross-examined. Although other matters had been alleged, the claimed irrelevant considerations, as pressed finally in argument, came down to two heads. First, that the nature of the visa, as a visa for the purpose of a visit to relatives and a holiday (which was said to have misrepresented the real purpose of the visit), was taken into account. Secondly, that it was also taken into account that medical reports indicated no surgery was necessary, and that the treatment being in fact undertaken was chiropractic. It must not be overlooked that the discretion is a general one, not limited by the Act to particular matters. As has been said repeatedly, Australia - like other countries - reserves a discretion as to who shall be allowed to visit and for how long. For the exercise of that discretion, the Minister is responsible, not the Court. The Court's function is to ensure that the exercise of the discretion is according to law, not to be some kind of super-administrator reviewing the merits of decisions made by the administrator to whom the relevant discretion has been entrusted by the Parliament. Within a wide range, the administrator is free to select criteria and form views about the facts, and what is an appropriate decision to make in his discretion, having regard to his views. He is limited only by the subject matter, scope and purpose of the statute: Minister for Aboriginal Affairs v. Peko Wallsend Limited (High Court, unreported, 31 July 1986). The weight the administrator gives to particular matters is also generally for him. I do not think, applying these principles, that the factors mentioned could be held irrelevant. It was suggested the statement of the second factor implied an inappropriate denigration of chiropractic treatment. I do not so read the departmental statement. I think its thrust is that, as a matter of humanity, much greater weight would be given to an applicant's desire to receive surgical treatment from a known surgeon, who had treated her before, than to her desire to have a new course of treatment, from a chiropractor not known to her previously, commenced at around the time the original temporary entry permit expired. Then it was said that a number of relevant considerations were not taken into account. In the Peko Wallsend Case, Mr. Justice Mason said: ""(T)he court will not find that the decision-maker is bound to take a particular Matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act." This statement was made with reference to a discretion in terms unlimited, but in the present case the answer given in evidence to this aspect of the applicant's case is that, in any event, the suggested matters were taken into account. First, the uniqueness of the treatment offered by the chiropractor. It was said that the department's view, that there were no changed or special circumstances, negatived that this was considered. But the evidence is otherwise, and I think the true position is that the situation was not regarded by the department as relevantly changed or special, a view which I think was open. If it was open, the Court cannot enter into the question of whether or not, as a matter of fact and discretion, the correct answer was given. By making that comment I do not mean to convey any impression as to what the correct answer might have been, a matter which is not before me, and which accordingly I have not considered. Next, that Dr. Gulland's review was not complete. I read the evidence as clearly showing that this factor was taken into account. Next, that the original intention to visit relatives and have a holiday had not been fulfilled, and this through no fault of the applicant. As to this matter, a failure to mention a point does not necessarily mean it has been ignored by the decision-maker. In the present case, I do not think the applicant's contention was overlooked, and I accept the evidence 6. of Mr. Corbett. He regarded the real purpose of the applicant as to seek medical treatment, and I think it was open to him to do so. Next, that the applicant was in receipt of hospital and medical benefits from Canada and had private means, so that she would not be a burden to Australia. Mr. Corbett's evidence is that he did consider this factor. The final question is whether the applicant was denied natural justice. There is no doubt that the department facilitated, at least in substantial measure, her application. She submitted material, having been given some time, after the expiry of her temporary entry permit, in which to submit such material. She had a number of interviews with officers of the department, one of whom went out to the hospital, while she was still there, in order to assist her in the presentation of her application. It is submitted that she had a legitimate expectation of an extension of her stay, because she was told she would receive an extension "as appropriate". I do not think so equivocal a statement, made before she had submitted all the relevant material, could raise a legitimate expectation within the meaning of that expression in the law. It was said, in reliance on Kioa's Case (1985) 62 A.L.R. 321, that a number of matters required that she be given an opportunity to explain her position after notification of 7. particular concerns of the department. None of these matters issued out of adverse comments arising outside the matters she had herself communicated to the Australian Government by one means or another. To my mind, it is not possible consistently with the majority decision in Sinnathamby's Case (Full Court, 5 June 1986), by which I am bound, to regard the alleged failure as a denial of natural justice. It was sought to distinguish that case on the ground that the information in question here included medical reports which, though provided by the applicant, were not of her authorship. I do not think this is a valid distinction. Further, it was said that there was material given by telephone, emanating from a Dr. Woods, of which the applicant had no notice. I do not think that the material in question did raise any new point, or any point not already clearly arising from the material the applicant had provided, or of which she was cognizant. Then it was urged that there may have been prejudicial material in a Canadian medical report, or in information conveyed by the Canadian Government to the Australian Government, neither of which was disclosed pursuant to a disclosure under the Freedom of Information Act 1982. The applicant could not suggest any more than that there was a possibility of prejudicial material being involved, and conceded there is nothing in the affidavit of the decision-maker to support the view that anything prejudicial or adverse did in fact arise out of either of these sources of 8. information. In any case, it appears the Canadian Government information referred to was not in fact before the decision-maker, as its receipt post-dated the decision. Accordingly, I do not think that these matters demonstrate any denial of any rights of the applicant under the doctrine of natural justice. As is quite often the case, in immigration matters, the applicant's situation must evoke sympathy, but there is no ground in my opinion to hold otherwise than that this application should be dismissed. Accordingly I dismiss the application. I will reserve the question of costs. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. Lele Odds Associate Dated: AX Aoguet, 1986 |