. PeeotIQnctr ic Administrative Law - tudicial review - deci3ion3 to reruse permanent resident statu3 and order deportation - breach oft rules or natural justice - whether interénce drawn was open on material - whether applicant entitled to opportunity to respond to adverse inrerences drawn - taking into account irrelevant considerations - railure to take into account relevant consideration where no real enquiry into applicant s claim - inadequacy of interpreter services - unreasonableness OL conclusion reached - whether Australian policy applicable to citizens trom country which prevents emigration to Australia. Administrative Decisions 'Judicial Review: Act 1ly77 33. ©, 13 Migration Act 1554 3s. 6. 6A, 18 Kioa v Minister tor Immigration and Ethnic Atrairs (1985) 62 ALR 321 Kioa v Minister tor (mmiaqration and Ethnic Arrairs (1984) 55 ALR ©6y Sinnathamby v Minister ror Immigration and Ethnic Aftairs (1986) 66 ALR Su2 Singh v Minister tor Immigration and Ethnic Atfairg3 tunreported, Wilcox J. 4/12/85) ope WiKsal Oo: ! WANTEWSKA v MINISTER FOR IMMIGRATION AND ETHNIC AFFALRS VG 3/7 ot LYBbe KEELY J. MELBUURNE 27 NOVEMBER, 1936 Far ~e* IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY No. %G377 of 1986 GENERAL DIVIS LON BETWEEN: ELIZABETH WANIEWSKA Applicant AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent 27 November, 1986 KEELY J. REASONS FOR JUDGMENT This is an application, dated 30 October 1986, for an order ot review under s. 5 ot the Administrative Decisions (Judicial Review) Act 'the ADJR Act) un respect of four decisions, made on 27 October 1986, by a delegate 'the delegate) of the respondent Minister. A stay of the decision to order the deportation otf the applicant was granted by Jenkinson J. on 30 October 1986, which stay was continued by order of Ryan J. on 7 November 1986. Those four decisions were made under the Migration Act in respect of Elizabeth Waniewska (the applicant), and were set out in a statement of reasons, dated 31 October 1986, turnished by the delegate under s. 13 of the ADJR Act. The material part of that statement of reasons was as follows: oe l retused fo rant 4 turther Femporary entry permit pursuant to -@cfion 4 or the Midgration 4er 1358 «the Acti; 'lie I retused the grant ot permanent residence Ls3ict status to che applicant under S.A of the Act; 'iii: I refused to allow the applicant fo depart trom Australia voluntarily; '171 TL ordered the deportation ot the applicant under 3.18 ot the Act. T based my decisions on the attached gubmission from Paul H Borg and the anmnexures thereto. I adopted the tindings at Part A ot that submission as my tindings on material questions of tact. T accepted these findings of ract on the evidence betore me as set out in Part Bot that 3ubmission. LI adopted the reasoning 3et out ain the assessment at Part © of that submission and that sets out the reasons for my decision. Keith T, uwen belegate of the Minister ot State ror Immigration and Ethnic Affairs 31/10,86" Mr. R. Tracey, of counsel, who appeared for the applicant, announced during the hearing that the applicant was not pursuing her application to review the decision ain '111! above. The "attached submission trom Faul H. Borg", 'the departmental submission: rererred to by the delegate consisted of more than 14 typed pages. Although all of 1t is relevant, it is sufticient to quote the introductory portion and then trom paragraph 4) to the end. Thos? parts were ty the following terms: "Regional Director Elzbieta Waniewska 'the subject) Purpose l. au, 31. To recommend that you adopt the tindings on material questions of fact and the assessment 3et aut below, having regard to the atvidence at attachments 'Ar to «MM: and, ait you accept the assessment: - refuse the grant of ia further remporary entry permit to the subject - refuse the grant of resident status to the subject - refuse voluntary departure in respect of the subject - sign an order for the deportation ot Elzbieta Waniewska Findings on Material Yuestions of Fact The subject was located hiding in the ceiling of her relatives place of residence in Seddon on io September 1986 by departmental officers. she was Placed in custody, pursuant to section 38 of the Migration Act 1758 1the Act as a suspected prohibited non-citizen, at the Immigration Detention Centre Maribyrnong. At an interview on lo September 1986, conducted with the aid of a Polish interpreter, the subject stated that she: » had not previously visited Australia. » had not sought migrant entry trom overseas. She added that had she done 30 the Polish authorities would in nok have permitted her to leave Poland, had sought a further entry permit on iy July and 23 October Ly¥e85, and had been rejected by departmental letters dated 2 August and ld November 1985. had sought permanent residence and lodged a written enquiry dated 26 June 1985 which was rejected in writing on 2 August 1985. ('In fact she lodged a written enquiry as to her eligibility ror change of status fo permanent resident. She was counselled against applying and advised to depart from Australia.) had made several approaches to this Department through relatives, friends and political figures in order to remain heres permanently. wag single. had no close romantic relationship in Australia. she added that she had occasionally gone out with a Male friend whose tirst name 193 Leszek and whose surname she does not Know. (No mention was made of Tadeusz Kapelan, the man whom she had previously made arrangements to marry on 2 December 1985 and on the basis ot which she had sought a turther entry permit on 29 October 1985.) had an aunt and two cousins in Australia and had her parents, two sisters and a brother in Poland. had worked overseas as a teacher and that she had not worked in Australia. had completed technical college in the field of leather products and that she was also a qualitied art, music and chemistry teacher in the lower grades. a had formal 3kills and qualitications as a teacher and leather worker. had ono return tireket thelreved last. had only clothing in Australia and no azsets overseas. was not criminally recorded either oversea3 or in Australia. and that she had not previcusly been deported or excluded crom any country and that she had rece1rved directions to leave Australia on 2 August, 18 Wetober and 14 November 1385 and on 9 July 1986, » wished to remain in Australia because 1f 183 socially, politically and economically better than Poland where work conditions are bad. She added that what she teaches in Poland 1s dictated by the government rather than based on fact and that Australia otters a better future. objected to deportation because she wishes to remain in Australia for the reasons given above. - would intorm this otfice within torty-eight hours 1f she wishes to depart voluntarily rather than be deported. had representations made on her behalf previously 'and answered by this Department). »- had not received Social Security benetits and did not have a Medicare Card. believed that 1f she returns to Poland she will never be allowed to leave again and that she will lose her employment. On 17 September 1986 the subject's cousin telephoned this office to enquire about the possibility of voluntary departure and later on that same day Udra Travel confirmed that a ww, 34. de kicket had been purchased For the subject ¢ departure from Austral1a on 25 September Lb. On 22 Seprember LHe the Acting Fegional Director considered the question ot the saubjiect 3s voluntary departure and approved 1t, stbject to departmental supervision at her movement from Australia. Arrangements were then made to have the subject's departure on 25 September 1986 supervised by the department. However, on 24 September ly86, the subject gs new solicitor lodged her application for resident status under Section 6At1lite? ot the Act. In brief, the subject tears to return to Poland because, as a member ot an illegal group, "The Society of Teachers for True Expression" she will be arrested and tried on her return and she will then face severe discrimination in employment, housing and the acquisition of food, clothing and other goods tor the rest of her lite. She also tears legal action against her to punish her for her attempts to leave the Polish State. In her application she also claimed that in a telephone conversation with her aunt in Australia, her mother in Poland had advised that twelve of the 25 members of the society had been arrested and detained and that a list of members had fallen into the hands of police and therefore she would also be arrested and detained the moment = she returned to Poland. The subject's solicitor acknowledged that by lodging an application for change or status, his client was in effect refusing to depart voluntarily and he was advised that she will be deported should her application for residence be refused. He was also intormed that she would not be released trom custody pending consideration of her application. The solicitor also lodged a request under the Freedom of Information Act on 24 September 1986 36. seeking access to all documents held the department s file in this case. the same day the solicitor tntormed writing that Ms Waniewska would not leaving Australia voluntarily on September L986, pending determination ot the application residence status. In a cable from the Australian Emba in Warsaw dated 1 October 1986 1t stated that: - in their judgement any person gao tor the activities described by subject 'in her application resident status in Australia) wo have been released in the rec amnesty; » should she now return to Poland subject will have lost her job will have difficulty getting anot passport tor deliberat overstaying her exit authority; the subject is unlikely to encoun any harassment or persecution on return unless she immediat commences overt opposit activities. On 14 October 1986 a telex was recei from our Central Office '(which contacted the Australian Embassy Warsaw) concerning the subjec grounds for applying for resid status and it stated that:- en an in be é5 the for s3y was led the for uld ent the and her ely ter her ely ion ved had in t's ent . Warsaw Embassy sources did not know or the existence of the group to which the subject claimed membership; the subject's mother with whom she had lived in Poland until her departure for Australia had been interviewed and claimed that she was not aware of her daughter s political/union activities, that her daughter had never had any police problems or harassment from any source and that she did not have knowledge of her daughter s work 38. 39. colleagues being harassed or imprisoned. lt was possible that the subject may not have contided in her mother, but unlikely that she could be an activist without her mother, with whom she lived, having some general knowledge of the situation. On 14 uctober 1986 the subject's claims fo resident status vere assessed by the Resident Status Sub-Section. Although 1t was accepted that the subject would have some difticulty in obtaining another passport because she had overstayed her exit visa and that she had neither worked nor obtained benerits in Australia, her claims that she faced severe dificulttes on her return to Poland were tound to be unproved. Her application was recommended for rejection as she does not meet the conditions of Section 6A(1)(e) of the Act, and on 17 October 1986 the Acting Officer-1n-Charge, Resident Status Sub-Section. supported the recommendation for rejection. On 16 October 1986 the subject was interviewed, 1n the presence of her Solicitor, regarding the information obtained by our Warsaw Embassy in relation to her claims about her possible harassment on her return to Poland. In reply to several statements the subject stated that:- - she was not surprised to hear that there was no trace of the secret organisation to which she belonged. She added that the organisation had been discovered by the School Director and that as it was a local matter, its existence would not be known nationally; she had, as stated by her mother, lived with her mother until the time she left for Australia; - her mother did not know that she was involved with the organisation as it was lllegal and kept secret. She 40. contirmed that she had no police problems betore her departure adding that the organisation had not been discovered by the authorities berore she lett Poland. She added that her mother tound out about her involvement in the organisation only atter she left for Australia; her mother had said that she was unaware of the imprisonment/ harassment of the subject's teaching colleagues because had she said otherwise, she (the mother) would be accused of assisting the subject s colleagues. She added that he mother had said she did not know, out of concern for her family in Poland; + she agreed that 1t was only an assumption that people who had disappeared had been imprisoned; »- her letters to her mother had been contiscated; she thinks that her mother deliberately withheld intormation trom our Warsaw Embassy out of her fear of the Polish Authorities. On 17 October 1986 the report of the latest interview with the subject was reterred to the Resident Status Sub-Section for assessment. It was concluded by the case officer in that section that:- - (he subject had failed to establish her connection with the "Teachers for Free Expression" organisation. ». even it she is connected with it, she failed to establish that she will be harassed or discriminated against on her return to Poland; . (¢he Australian Embassy in Poland believes it is unlikely that the subject will encounter harassment or prosecution unless she immediately commences overt opposition activities; 41. ci 42. lu. the subject § application for resident status should still be rejected. The Officer-in-Uharge, Resident Status Sub-section, concurred with the above assessment and recommendation on 17 Hetober Love, Evidence or Uther Material on Which the Findings are Based The above tindings ot fact are baged on the following attached material:- Polish passport No. 222508 issued to the subject onl April 1985 valid until 31 March 1387 which confirms her personal particulars and which contains her visitor visa No. 155 31416P and her conditional TEP (Attachment A); The subject's written enquiry of 26 June 1986 to determine her eligibility for change of status and the departmental assessment and verbal advice to the subject thereon of 29 July 1985 ('Attachment B). Departmental letter otf 2 August 1985 counselling the subject against applying tor resident status (Attachment C). The subject's application of 30 July 1985 for a further entry permit and the departmental assessment thereon (Attachment D). - Departmental letter of 2 August 1985 informing the subject that her application for a further TEP had been retused and directing her to leave Australia (Attachment E). - Telephone and written representations of 31 July and 5 August 1985 respectively from the otfice of Mr Ralph Willis MHR (Attachment F). » Letter of 14 August 1985 from the Ll. Mayor ot Footscray (Attachment G). Cable ot 26 September 1985 trom the Australian Embassy Warsaw (Attachment H). Departmental letters of 18 Uctober 1985 to Mr Ralph Willis, MHR, the Mayor ot Footscray and to the subject in which the latter was directed to leave Australla (Attachment [}. Telegram ot 23 October 1985 to the subject and her cousin's telephonic response 'Attachment J). The subject s application of 29 October 1985 for a further TEP with a note dated 28 October 1985 from the Office of the Government Statist 'Attachment K). File note of 14 November 1985 recording the decision by the Assistant Director, Residence, to refuse the subject's application for a further TEP in order to marry here (Attachment LO). Departmental letter of 14 November 1985 informing the subject that her application for a further TEP had been retused and directing her to leave Australia (Attachment M). Letter of 25 October 1985 to the Minister from the subject's aunt (Attachment N). Departmental telegram of 20 November 1985 replying to the letter of 25 October 1985 trom the subject's aunt (Attachment 0). File note of 21 November 1985 recording a telephone conversation with the subject's aunt (Attachment P). File note of 22 November 1985 recording the interview with the subject's uncle regarding her departure booking (Attachment Q). Undated tile note recording a telephone conversation with the subject with the assistance or the Telephone Interpreter Service, (Attachment F'. File note of 23 December 1985 recording the interview with the subject's solicitor (Attachment 3S). File note of 24 December 1985 recording the two calls to the otfice ot the subject's solicitor and a call to Qantas (Attachment T). File note of 19 February 1986 recording a telephone conversation with the subject's solicitor (Attachment WU). File note of 25 February 1986 recording a turther telephone conversation with the subject's solicitor (Attachment V). File notes dated 27 February and 4 March 1986 recording the visit to the subject's address, the information received from her relatives and a message from the subject's solicitor (Attachment W). File note of 12 March 1986 recording a telephone conversation with the subject's solicitor and the arrangements made to meet the subject at the airport (Attachment x). File note of 14 March 1986 recording a message from the subject's solicitor, the two attempts to contact him and the cancellation of the arrangements to meet the subject at the airport (Attachment Y). Letter dated 15 June 1986 to the Minister from Miss Helen Tybura (Attachment Z). Departmental reply of 9 July 1986 to Miss Helen Tybura in which 1t is stated that the subject was expected to make immediate departure arrangements (Attachment AA). Record ot interview with the subject on 16 September 1986 (Attachment BB). File notes of t/7 September 1986 recording telephone conversations with the subject's cousin and with her travel agent 'Attachment CC). File note of 27 September 1986 recording the Acting Regional Director's decision to allow the subject to depart voluntarily (Attachment DD). File note of 24 September 1986 recording the interview with the subject's new solicitor (Attachment EE). The subject's application for resident status ot 24 September 1986 together with her solicitor's covering letter, her application for a further TEP, and Freedom of Information request (Attachment FF). Letter dated 24 September 1986 from the subject's solicitor advising that the subject would not be departing voluntarily (Attachment GG). Cable dated 1 October 1986 from the Australian Embassy Warsaw 'Attachment HH). Telex dated 14 October 1986 from Central Office (Attachment IT). Assessment dated 14 October 1986 of the subject's application tor resident status and the recommendation thereon (Attachment JJ). Record ot interview of 16 October 1986 with the subject (Attachment KK). 43. 44. 45. 46. 14+. . Further assessment, dated 17 October 1986, otf the subjyect's claims tor resident status and recommendation thereon (Attachment LL). . Ministerial policy statement of October 1985 on illegal immigrants 'Attachment MM). Assessment The subject is a prohibited non-citizen by virtue ot sub-section 7(3) of the Act since she is not the holder of a valid temporary entry permit. She has committed an offence under Section 27 of the Act by becoming a_ prohibited non-citizen. It remains possible to authorize the subject's continued presence un Australia by the grant of a turther temporary entry permit. However it 15 considered that such a grant 1s inappropriate because she has already stayed in Australia for a longer period than that normally allowed to visitors to this country and she has stayed in breach of migration law and policy. Furthermore, she has contravened the undertakings made by visitors to Australia not to remain in Australia after the expiry of their entry permits and not to seek to remain permanently. No compelling reasons have been advanced in this case to justify the grant of a turther temporary entry permit. The subject has applied for the grant of permanent resident status in Australia under Sub-section 6A(1)(e) of the Act. Essentially, the application relies on the grounds that, as Che member of an organisation opposed to the government, she would be harassed and discriminated against for the rest of her life in Poland. The Ufficer-in-Charge, Resident Status Sub-Section, has considered the subject's application tor the grant ot resident status in Australia under Sub-section 6A(1)(e) of the Act on the 47, 48. 49, basis of her claims that she taces harassment and discrimination in Poland and has taken into account the claims by the subfect, the events leading to her status and all other relevant 1ssues,. having regard to the current poliicy on 1liegal .mmigrants. The subject s claims that she will tace harassment and discrimination on her return to Poland have been assessed in the light ot information provided by the Australian Embassy in Warsaw which also recently interviewed her mother. On the 16 October 1986 the subject was also given the opportunity to comment on the advice provided by the Australian Embassy in Warsaw as well as the information provided by her mother to the Embassy officers on her claimed involvement in political activities. On the basis of this information the Resident Status Section of this Office formed the conclusion that the subject was not able to substantiate her claim to membership of a Teachers organisation opposed to the Polish Government or that she faced or would tace ditficulties or persecution on her return to Poland on account of her involvement with such an organisation. Accordingly the Officer in Charge of that section has recommended rejection of the residence application on these grounds. It 1s accepted that she may have now lost her employment in Poland and that she may have some difficulties in getting another passport from the Polish authorities because she has overstayed her exit authority. However, the subject was counselled by the visa iussuing office prior to her entry into Australia and she agreed to a restricted visa in order to return to Poland to resume her occupation. I[t is contended that the subject should not derive benetit from deliberately overstaying her entry permit in Australia. Her completion of a resident status enquiry form within five days ot her arrival could suggest that she was not a bona fide visitor in the first place. 50. In a period of approximately 16 months since her arrival the subject has lodged a mumber of applications to remain in Australia for a period longer than that originally approved on her visitors visa and her initial temporary entry permit. The various grounds for these applications have been as follows: 26.60.85 - enquiry re change of superior economic and status to permanent political situation resident in Australia. 30.7.85 - further temporary to spend more time entry permit with relatives and see major places of interest 29.10.85- further temporary to marry in Australia entry permit (This marriage did not subsequently take place) 15.6.86 - permanent residence Letter from Miss Tybura, elderly Australian, seeking permanent residence for subject in order that subject could assist her due to her failing health. 24.9.86 - permanent residence fear of persecution on return to Poland due to membership of an illegal organisation while in Poland, and tear of punishment tor leaving Poland for a longer time than allowed. 51. Each of these applications has heen unsuccessful and a number of legal, parliamentary and other representations have been received in respect of decisions to These refuse the representations these applications. have led ta review ot the subject's case on several 53. 54. 7. occasions and the respective decisions have been upheld on review. The subject has tailed to depart from Australia despite several written directions to do so. Given the trequency of applications to remain in Australia and the variety of grounds put forward to remain in Australia 1t would not be unreasonable to form the opinion that the subject has from a very early date after entry to Australia, if not before entry, resolved to remain in Australia and not return to Poland despite signing undertakings to leave Australia on or before the expiration of her approved temporary entry permit. In considering the question of the subject's deportation, you may wish to bear in mind the following factors: (1) the subject has ignored four written directions to depart Australia (41) she has twice tailed to leave voluntarily after having made definite arrangements to do so. (111) she attempted to extend her stay on the pretext of a marriage arranged to a person who has made no approach to this office on her behalf and whom she has not mentioned again. (iv) she attempted to avoid apprehension by hiding in the celling when she was located by departmental officers. Persons who enter Australia as holders of visitor visas are expected to honour the undertakings contained in visa applications signed overseas. It is in the public interest to ensure that such persons abide by normal migration selection processes and do not circumvent them by entering or remaining illegally in Australia to the prejudice of prospective migrants who abide by the procedures. The presence eo, 18. of such 1llegal immigrant "queue- jumpers" in Australia is inimical to Government control of immigration programs as well as impacting upon job availability for legal cesidents. Prohibited non-citizens should expect to face the prospect of deportation when located. 55. Voluntary departure is not recommended in this case as the subject has deliberately 1gnored four directions to depart and twice failed to honour her bookings to depart. It is suggested that it 1s no longer appropriate to again extend this option to the subject. 56. It 18 considered that, in all the circumstances of the case, 1t 1s appropriate and just to apply the policy on deportation of prohibited non-citizens. Recommendations 57. If you accept the findings on material questions of fact and the assessment set out above, it is recommended that you: - vefuse the grant of a further TEP to the subject; - vefuse the grant or permanent resident status to the subject; - refuse voluntary departure in respect of the subject; - sign the attached deportation order in respect of Elzbieta Waniewska. 58. If you do not accept any of the findings or the assessment you are unvited to add further reasons for your decision or comments below, Case Officer: L J Grasso Cleared By: P Borg" oe Mr. Tracey supported the application ona number ot grounds. As has been seen, the delegate in his statement otf reasons wrote that he "adopted the reasoning set out in the assessment Part C oft that submission and that sets out the reasons for my decision". Part C of that submission included paragraph 53(iii) which was in the following terms: a (11i)she attempted to extend her stay on the pretext of a marriage arranged to a person who has made no approach to this office on her behalf and whom she has not mentioned again." Under the tirst ground ot the application, Mr. Tracey submitted that the delegate denied natural justice to the applicant by taking into account that prejudicial material without tirst giving the applicant an opportug@nity to respond to 1t. That matter (the alleged "pretext of a marriage") was never put to the applicant and accordingly she was given no opportunity to deny the suggestion that the marriage was simply a "pretext" used by her to support her application in October 1985. Mr. Downing, of counsel, on behalf of the respondent, submitted that one of the dictionary meanings of "pretext" is "ostensible reason" and that accordingly the use of the word "pretext" was not a finding adverse to the applicant. That submission would have to be considered in the light of the definition ot the word "ostensible", given by the same dictionary, namely "Protessed, for show, put forward to conceal the real". So read, the submission does not assist the respondent. med Iam unable to uphold Mr. Downing's alternative submission that, in the totality otf the matter, paragraph $3(i11) was of minor significance. A finding that the applicant had "attempted to extend her stay on the pretext of a marriage ..." necessarily méant, itn my opinion, that' the delegate formed the opinion that the applicant had been guilty of deception in October 1985 when asking the department for a further entry permit. The formation of any such opinion would be potentially a serious matter in any case relating to possible deportation. That 13 made clear by the Policy Statement of the respondent Minister tabled in October 1985 which expressly referred to persons who "obtained their visas by deception" (p. 1), "persons who obtain ... entry permits by false representations" (p. 3), "the 1llegal immigrant's having ... deceived the Department" (p. 4) and, in the section dealing with persons seeking to "change their immigration status to permanent resident", say& (p. 10):- ",.. in particular, in reaching a decision on an application to remain in Australia, the following circumstances (if they exist) will weigh heavily against the applicant the applicant misled the Minister or an officer in obtaining a visa or entry permit, e.g. fraudulent documents or false information ot a material kind;" In the present case, the finding of deception by the applicant was even more serious because of the likely effect upon the mind of the delegate, who adopted the reasoning in Paragraph 48 of the departmental submission and decided that the applicant "was not able to substantiate her claim to membership of a Teachers organisation opposed to the Polish Government or that she taced or would face difficulties or persecution on her return to Poland", That matter 1s dealt with in more detail later in these reasons. In my opinion the delegate's failure to give to the applicant an opportunity to respond to the suggestion that she had advanced such a "pretext of a marriage" constituted a non-observance of the principles ot natural justice and in itself is a sufficient ground to set aside the decisions. A question arises as to whether it was open to the delegate to find, on the material before him, that there had been such a "pretext" advanced by the applicant in October 1985. It would appear that the delegate inferred that there had been a "pretext of a marriage" and based that inference upon two matters (a) her statement, made at an interview on 16 September 1986, that at that time she "had no close romantic relationship 1n Australia" and (b) her fatlure to mention "Tadeusz Kapelan, the man whom she had previously Made arrangements to marry on 2 December 1985 and on the basis of which she had sought a further entry permit on 29 October 1985" (see the seventh matter in paragraph 31 ot the departmental submission). It should be added that the Material does not suggest that, at that interview or at any other time since December 1985, the applicant was ever asked any question as to why that marriage had not taken place. In my opinion there was no material betore the delegate from which he could draw an inference that there had been any "pretext" by the applicant as to the proposed marriage in December 1985. The finding appears to have been based not on an inference but on mere conjecture, which stemmed mainly from her tailure to mention, in September 1986, the marriage she had intended to enter into in December 1985. In my opinion the delegate, in having regard to that insupportable tinding, had regard to an irrelevant consideration. Mr. Tracey also submitted, under the first ground of the application, that the delegate had denied natural justice to the applicant by concluding that "she was not a bona fide visitor in the first place" (see paragraphs 49 and 52 of the departmental submission). In my opinion the delegate reached that conclusion and was influenced by 1t in his decision. It may be added that, even it it were not clear that the delegate was influenced by it, the following passage from the reasons for judgment of Brennan J. in Kioa v Minister tor Immigration and Ethnic Affairs (1985) 62 ALR 321 at 380, would be apposite:- "Nevertheless, in the ordinary case where no problem of confidentiality arises, an opportunity should be given to deal with adverse information that 1s credible, relevant and significant to the decision to be made. It 13 not sufficient tor the repository of the power to endeavour to shut information of that kind out ot his mind and to reach a decision without reference to it. {Information ot that kind creates a real risk of prejudice, albeit subconscious, and it is untailr to deny a person whose interests are likely to be atfected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial intormation was left out ot account." Mr. Downing has submitted that there was no denial of natural justice. He sought to meet the applicant's argument on this aspect by relying upon the principle reterred to by Fox J. in Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506:- "AS a general rule, when some consideration personal to the applicant is to be taken into account against him or her the rules of natural justice require that the applicant be given a chance to comment or contradict: see Kioa, per Mason J at p 348, The guideline is fairness; in general the party should have an opportunity of dealing in an appropriate way with matters with which he can reasonably be expected to be able to deal, and which might assist his or her case. {In Kioa''s case, the material held to require that a chance be given to comment had come from a source other than the applicant." It should be mentioned, at this point, that Mr. Tracey in his final address submitted that the last statement was incorrect, 1m that in Kioa's case the material concerned had in fact come trom the applicant. He reterred to Kioa tat p. 334) per Gibbs CJ. «see also Northrop and Wilcox JJ. in the Pull Court in Kioa (1984) 55 ALR 669 at 682). ft 1s not necessary for me to express an opinion on that submission, as to which the respondent did not have an opportunity to address. Fox J. continued: - "In the present case, as his Honour tound, the material which was prejudicial to the appellant had been provided by the appellant herselt. In the circumstances, I consider that the decision-maker was not required to give the appellant a chance to comment = on the view that he had taken of it; to do so would amount to a general requirement that a decision-maker make known in each case his view or evaluation of the material that an applicant puts forward: see Kioa per Brennan J at p 380. His thought processes, 1f not unreasonably based on evidence, or other material, are a matter for him." I accept, with respect, the principle there enunciated that "the decision-maker was not required to give the appellant a chance to comment on the view he had taken of" material supplied by the applicant - assuming that, as Fox J. expressed it, "his thought processes Cwere] not unreasonably based on evidence or other material". However, 1n my opinion that principle does not govern the present case. The conclusion ot the delegate, which 13 adverse to the applicant, was that she was not a bona fide visitor. That conclusion was not one which was apparent on the tace or any statements made or documents supplied by the applicant. The delegate s conclusion was based upon an interence which the delegate drew trom the mere "frequency ot Cher] applications to remain in Australia" (paragraph 52) and the early date of her first inquiry as to the possibility of obtaining resident status (paragraph 49). Assuming, without deciding, that such an inference was open to the delegate upon the material before him, it was certainly not an inference which would necessarily be drawn. It was not an inference the drawing of which was in fact anticipated by the applicant; nor was it, in my opinion, an inference the drawing ot which by the delegate should, in all the circumstances, have been anticipated by the applicant. In Sinnathamby the factual situation was quite ditferent in that the applicant there had herselt told the departmental officials that "her intention was to come to Australia and she only said that she was going to Fij1l to gain entry to Australia." 'The department considered, on her own statement, that she had entered Australia "by a subtertuge" and, as Fox J. said (at 506), the use of that abstract noun to describe her conduct "accords fairly closely with the tacts". {fn the present case 1t was accepted by the respondent that 16 was never put to the applicant that she was not, or that she might not have been, a bona fide visitor. As I have said, there was nothing in the circumstances of the case to lead the applicant to anticipate that the respondent was likely to infer that she was not a bona fide visitor. [In Kioa, immediately tollowing the passage quoted earlier, Brennan J. 'at 380) said: "The allegation in para 22 was apparently credible, relevant and damaging. The failure to give Mr Ki0a an opportunity to deal with it before making an order that Mr and Mrs Kioa be deported left a risk ot prejudice which ought to have been removed. There was nothing in the circumstances ot the case - neither in the administrative framework created by the Act nor in any need tor secrecy or speed in making the decision - which would have made 1t unreasonable to have given Mr and Mrs Kioa that opportunity. The failure to give Mr Kioa that opportunity amounts to a non-observance of the principles of natural justice. The result 1s that the condition governing the power to make the deportation orders was not satistied and the orders must be set aside." In my opinion the interence drawn by the delegate was "relevant and damaging". In my opinion that passage supports the applicant's submission that the principles of natural justice required the delegate to give her an opportunity to deal with the suggestion that she was not a bona tide visitor, before making the extremely adverse tinding that that was the fact. {n my opinion the failure to give the applicant' the opportunity te deal with Chat suggestion amounted to a non-observance or the principles of natural justice and 1s in utself a sutficient ground to set aside the decisions. Under ground 2(b) Mr. Tracey submitted that the delegate failed to take into account relevant considerations, including to consider the applicant's claim that the Polish State police hada list ot 25 members ot the Society ot Teachers tor Free Expression, that 12 out of the 25 persons on that list had been arrested and detained and that it was likely that the applicant would be so arrested and detained on her return to Poland because she was a member of that Society and her name was on that list. Section 6 of the departmental ftorm for applications for Resident Status in Australia required the applicant to answer, amongst other things, a question (Section 6.3) as to whether she considered there were "any reasons why relevant policy requirements tor grant of resident status in Australia, 1m part or in full, should not apply?" The applicant answered yes and attached a separate statement in answer to section 6.3. In that statement the applicant stated, amongst other things, that she was "a member ot a group in Poland called 28. the society ot Teachers tor Free Expression", that her name was "on a list ot members" ot that Society and that that list had "fallen into the hands ofr the CPolish] State Police". Further, that on the previous day her mother in Poland had telephoned the applicant's aunt in Australia and made statements to her as to the arrest ot persons in Poland and the Likelihood of the applicant being arrested and detained on her return to Poland. That statement by the applicant as to the telephone conversation between her mother and her aunt was betore the delegate (see paragraph 34 of the departmental submissicn). Mr. Downing on behalf of the respondent accepted that there was no material to suggest that the department was unable to speak to the aunt as to that telephone conversation had it desired to do so. He said, however, that there was no issue as to whether the conversation between the aunt and the mother took place and that the issue was as to the truth of the contents of that conversation. He said that the Department had acted upon the basis that the mother had telephoned the aunt and told her what the applicant had set out in her statement pursuant to section 6.3. {It follows that the respondent accepted as a tact that the mother had made an tunternational telephone call trom Poland to the applicant's aunt in Australia and had told her two things, namely:- l. that Le people out or the 25 on a List ot members of the dJociety of Teachers tor Free Expression had been arrested and detained. 2, that the applicant would also be arrested and detained the moment she returned to Poland. Mr. Downing reterred to paragraphs in the departmental gubmission and submitted that, on a question ot tact which was amatter for the decision-maker and not tor this court, the delegate (1) took anto account all of the claims by the applicant, (2) having done so, he accepted the conclusion ot the case ofticer that she "had tailed to establish her connection with the "Teachers ror Free Expression" arganisation", and (3: he accepted that "even 1f she is connected with it, she failed to establish that she will be harassed or discriminated against on her return to Poland". In paragraph 47 (which appeared in Part C, as to which the delegate said that he "adopted the reasoning") 1t 185 stated that her claims had "been assessed in the light of intormation provided by the Australian Embassy in Warsaw which also recently interviewed her mother" and that on "16 uctober Lv86 Lhe subject was also given the opportunity to comment on the advice provided by the ... Embassy as well as the aiuntormation provided by her mother to the Embassy otficers on her claimed involvement in political activities". A cable tattachment HH) from the Embassy, dated 1 October lyd6, stated that "we are unaware of the group) but will make iunquiries through our contacts and the applicant s tamily". A subsequent telex from the department in Canberra 'apparently based upon a turther cable from the Embassy in Warsaw) stated, as to the ""Soclety or Teachers for Free Expression" that "enquir1es made through our embassy connections have proved negative. Whilst the group may exist mur sources do not know of 1ts existence". The telex also stated that the applicant s mother had called (at the Embassy! tor an interview that day amd had "advised ... to her knowledge daughter was not a political/union activist" and "to her knowledge none of her daughter s work colleagues had been harassed or imprisoned". In those communications otf intormation§ trom the Embassy in Warsaw there was no reterence to the statements, made by the applicant's mother to the applicant's aunt, as to the 12 arrests and the likelihood of the applicant being arrested the moment she returned to Poland - although the department had acted upon the basis that those statements were in tract made by the mother in hee telephone conversation. On that aspect being raised during Mr. Downing's address, he had inquiries made and later tendered to the court the cable sent by the department to the Embassy in Warsaw on 30 September 1980. He did so tor the purpose of responding to the court s inquiry and pointed out that that document was not part or the material listed by the delegate as the material upon which he made his material findings ot tact 'aithough 1t was apparently a document upon the departmental tile. The contents ot that cable from Australia to the Embassy in Warsaw made no reterence to the telephone conversation between the mother and the applicant's aunt. That would explain why the communications trom the Embassy in Warsaw made no reterence to the contents ot that telephone conversation 1.@. a conversation of which the Embassy personnel in Warsaw were not aware as tar as appears rrom fhe materlal presently under consideration. on that basis) 1t would seem probable that, in the interview at the Australian Embassy in Warsaw, the mother was not asked any questions as to the tact that she had telephoned the applicant s aunt in Australia and had made to her the statements, set out earlier, as to the arrest of 12 people out of 25 on the List et the Society of Teachers tor Free Expression. Further, that she was not asked any questions directed towards her statement to the aunt that the applicant would also be arrested and detained the moment she returned to Foland. Given the tact that the department had acted upon the basis that the telephone conversation had taken place and its acceptance of the applicant's account ot what was said by the ake mother in that conversation 'aithough 1¢ had not decided to accept che truth of what was said by the mother in that wonversation:, in my opinion the delegate rarled fo Cake into account a relevant consideration. namely, the applicant s claim that it was likely that she would be arrested and detained the moment she returned to Poland. [n reterring to the claim as to the likelzrhood or that occurring I am not making any assumption that the claim is true or not true. [t 13 relevant that the interview at the Embassy in Warsaw with the mother did not deal ain any direct way with the question whether there was such a "likelihood": doubtless that was because the Embassv was not given s3urficient intormation. However, whatever the cause, 1n my opinion that question was not the subject of any real inquiry at all - either in Foland or in Australia. In mv opinion this matter was one of those: - eee occasions when the adequate consideration or a relevant matter necessarily involves the making of some inquiry as to the facts." per Wilcox J. in Singh v Minister tor Immigration and Ethnic Aftairs 'unreported - 4 December 1985). At the interview on le October ls%e, the applicant gave a possible explanation or her mother s answers to questions at the Embassy. The record or that interview concluded as rollows:- "Zone lusion: It would appear that Miss Waniewska thinks her mother was deliberately withholding intormation trom us because ot her tear ot Polish authorities." That conclusion indicates that the interviewing officer accepted that the applicant believed that her explanation (of her mother's statements at the Embassy in Warsaw) was correct. In my opinion the deleqate s tallure to have regard to the applicant s claim as to events in Poland and the likelihood of her arrest on her return was a failure in respect of an important matter and in itself 1s sutricient to warrant an order setting aside the decisions. {t 18 convenient to add, at this point, that Mr. Tracey also relied upon that ftailure by the delegate as supporting ground 2(d) ot the application, as amended, namely, that "the manner of the exercise of the power was so unreasonable that no reasonable person could have Ye) exercised the power". There is much torce in that submission but 1t is not necessary to determine it. Other matters were relied upon in support ot ground z(d)>. I do not accept Mr. Tracey s attempt to rely, under that ground, upon the tract that the delegate failed to deter making his decision in the matter for some weeks, in order to ot. allow ror the arrival in Australia of a fetter trom the applicant 5s mother. Nor us the applicant assisted, on this ground, by the tract that the respondent did not make any inquiry rrom the aunt. As has been mentioned earlter, Mr. Downing has accepted that the applicant s mother telephoned the applicant's aunt and said to her those matters set out in the applicant's statement in answer to question 6.3. In those circumstances the delegate was not under a duty to attempt to contact the aunt and ask her whether those matters were said. kellance was placed, under ground 2(d), upon two other matters. wne was the tarlure ot the delegate to make any enquiries as to whether, ain the grant ot exit visas, the practice ot the Polish authorities was as the applicant had Claimed. Mr. Downing accepted that there 1s no material to show that such an enquiry was made. This matter 1s dealt with later 1n considering ground 2(c), Under ground 2(d) Mr. Tracey also relied upon the fact that the interview ot the applicant on 16 October 1986 was conducted without the benefit of an interpreter being present at the interview - although an interpreter s services were avalled of by use or a conmterence telephone. He also pointed out that the interpreter, instead of giving a verbatim translation of the words spoken, gave the substance ot the answers - a method of "interpreting" which, tor good reason, 1s not permitted in Court hearings. The attempt to use an interpreter by telephone was, ot 1ts nature, traught with ditriculty. {[t may be noted that the department itselt recognized the advantage ot having the interpreter present at interviews. The typed tormat ot the "report ot interview with suspected prohibited non-citicen/deportee" tused for the report or the earlier interview with the applicant on le september 1986) had typed on 1t the tollowing:- "(The question ot whether an interpreter 18 required should be determined prior to interview. [f an interpreter is used then he/she should also sign and date each page of interview report)." The same page recognized the possibility of a misunderstanding occurring; the interviewing otficer was there required to tell the interviewec "that you will he given the opportunity of reading, amending if necessary, and signing each page ot this report or interview. Do you understand?" Having listened, at the request ot both parties, to a tape or the interview ot 16 October 1980, 1t appears that, in the circumstances ot this case, 1t led to some problems ot communication and may have led Mr. Featherston (the departmental otrficer) into wrongly believing, at one stage, that the applicant had given contradictory answers. On the other hand, as pointed out earlier, his conclusion, at' the end ut that interview, indicated that he accepted that the applicant believed that her explanation was correct; peesumably, at the end ot the interview he did not believe that the applicant had given contradictory answers. 'Che interpreter obviously had difticulty more than once in understanding what had been said - doubtless because she was not present 1n the room and was dependent upon hearing over the telephone both the questions asked by Mr. Featherston 1n English and the answers given to her by the applicant in Polish. Mr. Tracey also relied upon the fact that the interview was conducted and completed notwithstanding an objection to the accuracy of the translation; that objection was made by Mr. Terlecki, a Polish friend ot the applicant, who deposed that he spoke both English and Polish fluently. As against these matters, Mr. Terlecki was told that he could raise any objections at the conclusion ot the interview and he did not do so; turther, there is aftidavit evidence that the translation was "an accurate translation". Although there 15 much torce 1n_ the criticisms made by Mr. Tracey, I have not found it necessary to decide whether that matter, either on its own or in conjunction with the other matters, 18 sutficlent to establish ground 2id) of the applicant s grounds. 37. Under ground <(c?>, Mr. Tracey submitted that the making ot the decision was, in each case, an .mproper exercise of the power conrerred by the Migration Act in that 1h was an exercise of a discretlonarv power in accordance with a rule or policy without reqard to the merits ot the applicant s case. It was contended - and not disputed by the respondent that the delegate had not inquired unto the applicant s claim that 1t was the practice or the Polish authorities to prevent its citizens trom emigrating to Australia - as distinct from making visits as tourists - until they are aged 5U years. Mr. Tracey submitted that the delegate failed to take into account that consideration in considering whether to apply the policy to the applicant. The departmental submission ret@fred to the applicant's claim as to the practice by the Polish authorities '(see paragraph 31, the second sub-paragraph, apparently based upon a statement by her at the interview conducted on 16 September 1986). The applicant s claim as to the existence otf such a policy in Poland was set out in her application in her statement in answer to the department s question 1n Section 6.2. That statement included the tollowing:- "The Polish Authorities will not let me apply tor migration to Australia in the same way people trom democratic nations are able to apply. The Commandant ot Police will not let people leave Poland until they have given their working lives to the socialist ton ies) state. No one younger than rifty 1s allowed to leave." Mr. Tracey submitted that, in the light or that statement, the delegate s duty was not only to enquire as to whether such a practice existed in Poland but also, 1f those enquiries revealed 1ts existence, to give consideration to the question whether it was proper to apply the Minister's Folicy statement on illegal immigrants to the applicant, as a e1tizen of Poland. Had that matter been considered, 1t might nave been concluded that 1t was mot proper to apply the policy, or alternatively that less weight should have been given to the policy, in respect of persons trom a country, the policies or practices of which were directed towards preventing its citizens trom emigrating. At all events there 1s much to be said for the submission that that was a relevant consideration which the delegate was obliged to consider. For example, 1t may be that, because of 1ts practices, none or the citizens ot such a country can ever tall into the category of being people "prepared to wait overseas and go through the normal selection processes" (see the first page ot the Minister s policy). Similarly, 1t may be that other citizens of such a country can not properly be regarded as being in the category ot persons who "fail to walt overseas oes As to this it should be noted that the delegate adopted, as part otf the reasons for his decision, the a Ww statement in paragraph %4 or the departmental submission that "the presence of such illegal immigrant ""que'c-iumpers" 15 inimical to Vovernment control ot immigration programs ...". If the delegate had, upon enquiry, concluded that the Polish authorities had the practice of preventing emigration in the manner claimed, it may be that he would have concluded that 1t was not appropriate to treat the applicant as talling within the category ot those who "abuse Australia's immigration policy and laws at the expense ot those waiting overseas ..." (the Minister s policy - first page). There is nothing in the material to suggest that the delegate addressed his mind at all to those questions or to the general question whether 1t was proper to apply the Minister s Policy on 1llegal immigrants to the applicant if the practice of the Polish authorities was as she had claimed. [t seems unlikely that the delegate addressed those matters because Mr. Downing intormed the court (Transcript 125): ",.. I am instructed further that the view that 1s taken often by the department is that an application to migrate to Australia is an application to migrate to Australia from whatever country 1t 1s made, and there are no special arrangements in Australia, or contained within the Act or requlations for people from countries where there may be difficulties - - - His Honour: Or umpossibility. Mr. Downing: Or impossibility, 1f that 1s proven, sir." 40. It appears likely, in all the circumstances, that the delegate did not consider whether that practice tif it existed) was itself a matter to be taken into account in deciding whether to apply the policy to the applicant. Mr. Downing, on behalt of the respondent, has submitted that 1t was not necessary for the delegate to address those questions as to the application of the Minister's policy because the applicant had not substantiated her claim that there were "strong compassionate or humanitarian grounds for the grant of an entry permit" (s. oA(l)(e) of the Migration Act). In this connexion 1t will be noted that the delegate adopted, as part of the reasons for his decision, the statement in paragraph 56 of the departmental submission that: "66. It 1s considered that, in all the circumstances of the case, it 1s appropriate and just to apply the policy on deportation of prohibited non-citizens." There 1s much force in the submissions advanced by Mr. Tracey on the ground relating to the application of the Minister s policy. However, it 15 not necessary to determine that question because of the conclusions already expressed in dealing with other grounds in the application. "oe +1. For the reasons given, the three decisions made by the deleqvate «items ¢«1', ¢1f' and tiv? in his statement ot reasons dated 41 vuctobper late: must be set aside and the applications tor a further temporary entry permit and ror the arant of permanent resident status rererred to the Minister ror further consideration in the Light of these reasons tor judgment. I certify this and the preceding torty pages to be a true copy of the Keasons for Judgment or his Honour Mr Justice Keely. Associate : Yio. Date : LT soterber 44. Dates or Hearing : 13, 20, 24 November 1386 Counsel ror Applicant Mr. Rk. R. Tracey Soliciters for Applicant : Ellison, Hewison & Whitehead Counsel ror Respondent Mr. R. M. Downing oe folicitors for Respondent +: Australian Government Solicitor