NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.134 of 1987 wee ww GENERAL DIVISION BETWEEN: BARBARA FASANO Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS AND ANOR Respondent Judge: Gummow J. Place: Sydney Date: 3 July 1987 REASONS FOR JUDGMENT This is an application under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act) seeking an order for review of a decision taken on 9 March 1987 to refuse what was described as an application for an entry permit giving the applicant permission to engage in employment whilst she remains in Australia. The applicant submits that there are grounds for review under s.5(1)(f£) (error of law) and under 8.5(1)(e) in conjunction with each of five paragraphs in s.5(2), namely (a) (irrelevant considerations),(b)(relevant considerations not taken into account),(c)(extraneous purpose),(f£)(rule or policy applied without regard to the (g)} (unreasonableness). I should emphasize at the outset that the proceedings are not by way of appeal from the administrative decision in question. In reviewing an administrative decision it is not the function of the Court to substitute its own decision for that of the administrator by re-exercising a discretion vested by law in the administrator alone. The concern of the Court is thus not with the merits of the decision but with the manner in which it was made, as is indicated by the grounds relied upon by the applicant which I have listed above. Further, the exercise of an administrative discretion of its nature involves a choice between more than one possible course of action, on which there is room for reasonable people to hold differing opinions as to which is to be preferred. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR 299 at 309, Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] Ac 1014 at 1064, Rv Entry Clearance Officer, Bombay Ex parte Amin [1983] 2 AC 818 at 828-829, Nottinghamshire County Council v Secretary of State for the Environment [1986] 1 All ER 199 at 202-203. The applicant is a citizen of the United States of America. She was born in New York on 19 October 1958. In the United States she had pursued a career as a _ professional actress. It is common ground that for the purposes of these proceedings the applicant is and has been at all relevant times the de facto spouse of another non-Australian citizen, 3. Mr David Novik, within the meaning of the expression "de facto spouse" in the Department's written policy "Entry Requirements for Dependants of Non Temporary Residents". Mr Novik is employed by CBS Records Australia Ltd and he was sponsored by that company for temporary residence in Australia. The applicant arrived in Australia on 10 January 1986. She was permitted to enter with temporary entry status and her employment was prohibited without the written permission of an authorised officer under the Migration Act 1958 ("the Migration Act"). The applicant has, since 10 January 1986, left and re-entered Australia and she is currently permitted to remain with temporary entry status until 10 January 1988. Employment is still prohibited without written permission of an authorised officer under the Migration Act. Since she has been in Australia the applicant has had a number of offers of employment by theatrical agents and producers who wish to engage her for theatrical roles for which she would be well suited. Sub-sections (6)and (6A)of s.6 of the Migration act provide as follows:- (6) An entry permit that is intended to operate as a temporary entry permit shall be expressed to authorize the person to whom it relates to remain in Australia for a specified period only, and such a permit may be granted subject to conditions. 4. (6A) Without limiting the conditions subject to which an entry permit referred to in sub-section (6) may be granted, such a permit may be granted subject to a condition imposing restrictions with respect to the work that may be performed by the holder in Australia, including restrictions on performing any work, or work other than specified work or work of a specified kind, without the permission, in writing, of an authorized officer. It is common ground that the applicant was granted her temporary entry permit on the footing that she was dependant de facto spouse of Mr Novik. It is also not disputed that the provisions I have mentioned in s.6 carry with them the power, during the currency of a temporary entry permit, to vary or withdraw conditions and that a decision in exercise of that power is a decision under the Migration Act and a decision to which the ADJR Act applies (cf Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290). Attention was not directed in argument to s.7 but the provisions of ss.(1) and (2) of s.7 may have importance in the present case. They provide as follows: 7. (21) The Minister may, in his absolute discretion, cancel a temporary entry permit at any time by writing under his hand. (2) At any time while a temporary entry permit is in force or after the expiration or cancellation of a temporary entry permit, a further entry permit may, at the request of the holder, be granted to the holder and, where such a further entry permit is granted while a temporary entry permit is in force, the further entry permit shall come into force only upon the expiration or cancellation of the existing entry permit. I say this because in the letter of 13 March 1987 (which I shall shortly describe) the application was identified as one for an entry permit giving permission to engage in employment in Australia. This is consistent with a request for cancellation of the existing temporary entry permit and the granting of a further temporary entry permit without the condition on the present permit as to prohibition of employment. If the matter is seen in this way then clearly there would have been a decision to which the Act applied, namely a decision under s.7. The application in question in these proceedings was made in writing by the applicant's solicitors on her behalf. The application was supported by a detailed statutory declaration by the applicant and by further statutory declarations by other persons, some resident in this country and others resident in the United States. The grounds upon which the permission to work was sought were set forth in the application as follows: "(a) Because Ms Fasano needs to work to maintain professional status and level of career development in a sense equivalent to and materially and in all the circumstances' the same as those where continuing employment in a person's usual occupation is necessary (and not merely desirable) to maintain 6. professional registration in that person's home country; and (b) in the particular circumstances of Ms Fasano's case the maintenance of a condition of her temporary entry permit prohibiting employment causes her and will continue' to cause her and her spouse considerable hardship; and (c) In light of the matters set out in (a) and (b) above, it would be unreasonable in the circumstances to maintain the condition prohibiting employment; and (d@) It would in all other relevant respects be unreasonable to maintain the condition prohibiting employment." The refusal of the application was communicated by a letter from the Department to the applicant's solicitors of 13 March 1987. The immediately material portions of that letter are as follows: Ms Fasano has authority to remain in Australia until 10 January 1988. Her temporary entry permit contains a condition prohibiting employment. The Australian Government's Temporary Residence Policy generally excludes dependants of temporary residents from permission to work in Australia. Applicants for temporary residence intending to bring dependants with them are informed of the Government's policy and are required to complete an undertaking that their dependants will not engage in employment in Australia without written permission of the Department of Immigration and Ethnic Affairs. They are also informed of the circumstances in which an exception to the general employment prohibition can be made. The policy exempts people eligible for temporary residence in their own right, people who need to work to maintain professional registration and, in limited circumstances, people who are in financial difficulty. 7. Ms Fasano put forward as her grounds for exemption from employment prohibition that she needs to work as an actor to maintain professional standing and the momentum of her career development and that, if she remains excluded from employment in her occupation, she and her spouse will be caused considerable hardship. She has supported her case with statutory declarations which attest to the importance to her career of continuing to act professionally and to the adverse personal consequences of being excluded from professional acting, in particular the effect this is having on her de _ facto relationship. Ms Fasano's claims were considered by Mr John Davidson the Assistant Director, sponsored Entry Section. He concluded that the need to work for the purpose of maintaining professional recognition and career development is not a need to work to maintain professional registration within the meaning of the Government's policy. In particular he noted that there 1s no evidence that professional registration is a pre-requisite to employment as an actor in the applicant's home country. Whilst the policy guidelines do not contemplate hardship other than financial hardship as grounds for removing employment prohibition, the Assistant Director considered if the "adverse consequences" raised by the applicant were a compelling circumstance warranting a decision to approve employment outside the guidelines. He concluded they were not. He based his conclusion on the fact that the cause of the "adverse consequences", employment prohibition, was a circumstance which the applicant was aware of before she came to Australia. Accordingly, her claim that she erred in her judgement about the consequences of accepting the condition to her entry to Australia is not a strong reason for releasing her from the condition. Accordingly the Assistant Director decided to refuse Ms Fasano's application. There is no right of review of this decision by the Immigration Review Panel. 8. It will be apparent from this letter that in reaching the decision regard was had primarily to a_ particular government policy and also to hardship (other than financial hardship) that might be a compelling circumstance warranting a decision to approve employment outside the guidelines. The policy referred to is contained in a document which is in evidence and which is headed "Entry Requirements for Dependants of Temporary Residents." The proper role of a government policy in a setting such as the present one was described by Brennan J. in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 640. After observing that a policy must be consistent with the statute in question, his Honour continued - It must allow the Minister to take into account the relevant circumstances, it must not require hin to take into account irrelevant circumstances, and it must not serve a_ purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute ... Also, it would be inconsistent with ss 12 and 13 of the Migration Act if the Minister's policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases. The discretions reposed in the Minister by these sections cannot be exercised according to broad and binding rules (as some discretions may be: see, eg, Schmidt v Secretar of State for Home Affairs (I9695] 2 ch 149): The Minister must decide each of the cases under ss 12 and 13 on its merits. His discretion cannot he so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy, formed for the purposes of ss 12 and 13 of the Migration Act, must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case. That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, anda lawful policy which leaves the range of discretion intact while guiding the exercise of the power." See also, for an example of a policy providing guidelines inconsistent with the proper observance of statutory criteria, Green v Daniels (1977) 51 ALUR 463 at 467. The appellant submitted that the policy, as framed, directed attention away from considerations which were relevant in the sense that the decision maker was bound to have regard to them within the meaning of Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR 299 at 308. It was further submitted that although the decision maker went outside the strict confines of the policy (as appears from the penultimate paragraph of the portion of the letter of 13 March 1987 which I have earlier set out), there was a failure to consider the application upon its merits by failing to take into account matters to which the decision maker was bound to have regard. 10. As examples of matters to which the decision maker should but did not have regard in this case, the appellant referred to (i) conditions pertaining to the particular industry or pursuit in which the applicant sought to work, (ii) the potential contribution which might be made by the applicant to that industry or pursuit, and (iii) circumstances peculiar to the applicant such as the length of time she would remain in Australia, personal hardship (that is to say not only financial hardship) and change of circumstances and the like. The applicant also submitted that the decision maker in this case had wrongly taken into account the existence of other procedures whereby the applicant could possibly secure employment in this country on a limited basis. This was 4 reference to a policy for granting of entry permits to entertainers and associated personnel. This policy, which is distinct from the policy I have previously referred to, also was in writing and was in evidence. Central to it is the undertaking by a sponsor that an artist will adhere to the specific purpose of the visit and not undertake other engagements without prior approval of the Department. However, what the present applicant sought was a general permission to work in the theatre, not approval pursuant to sponsorship for a particular engagement or engagements. ll. At the conclusion of the letter of 13 March 1987 it was said that it remained "open to Ms Fasano to test her eligibility for permission to work as a temporary resident in her own right." The letter continued:- This would entail the lodgement of an application for an entry permit giving permission to work in Australia (M314) supported by a temporary residence entertainer sponsorship (M148) for a specific acting engagement. The sponsorship would be assessed against the standard policy requirements for the temporary entry of entertainers. A copy of the policy and procedural requirements is enclosed. This, the applicant submitted, showed consideration of a matter to which it was not legitimate to have regard, viz the possibility of the applicant securing employment here on some other and restricted basis. As I have indicated, the applicant submitted that the case was one for review under s.5(1)(£) of the ADJR Act and s.5(1)(e) together with paragraphs (a),(b),(c),(£),(g). I turn to consider the application of these provisions to the general submissions I have described. Where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined except insofar as they may be found in the subject matter, scope and purpose of the statute. These may imply 12. some limitation on the factors to which the decision maker may legitimately have regard. Likewise, where the complaint 1s that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the 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. Authority for these two Propositions 1s to be found in the Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR 299 at 308-309. It also is to be noted that on two recent occasions the Full Court of this Court has indicated that the discretions under the Migration Act both to grant and to cancel entry permits, whether temporary or otherwise, and to grant and to cancel visas, are relevantly unfettered: Minister for Immigration and Ethnic Affairs v Conyngham (1986) 68 ALR 441 at 450-451, The Minister for Immigration and Ethnic Affairs v The Lebanese Moslem Association (19 February 1987 unreported, pp. 17-18). In my view, the nature of ine discretions conferred by the provisions of the Migration Act concerned in the present case is such that there was, within the meaning of the authorities, no taking into account an irrelevant consideration and no failure to take into account a relevant consideration. It follows that no ground is made out in 13. reliance upon s.5(1)(e) in association with paragraphs (a)and (b) of s.5(2). The same is true of the reliance upon paragraph (c) of g.5(2). I turn then to consider paragraph (g) of s.5(2). The question here is whether the exercise of power was so unreasonable that no reasonable person could have so exercised the power in question. The interpretation of this provision is sufficiently discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 66 ALR 299 at 310. The concept of unreasonableness was perhaps put somewhat differently in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 167-170. On either footing, in my view no case of any unreasonableness in the necessary sense is made out in the present case and, indeed, it was not strongly pressed for the applicant. That brings me to paragraph (f) s.5(2), namely improper exercise of power because the power was exercised in accordance with a rule or policy without regard to the particular merits of the case. In my view, the policy in question was applied with regard to to the merits of the particular case as were the policies considered in Leung v Gibbons (28/3/85, unrep.) and Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 393-4. Further, regard was had beyond the confines of the policy and the decision maker took a view of the particular merits as 14, they lay outside the confines of policy. That view of the merits do not coincide with what had been put forward by the applicant. But this does not mean that the power was exercised in accordance with a rule or policy and without regard to the merits of the particular case. Finally it is said the decision involves an error of law within the meaning of s.5(1)(f). As I understand the submissions for the applicant, the error of law flowed from one or more or a combination of the other grounds upon which the decision was impugned by the applicant. As they have failed it follows that this ground also fails. Accordingly, the application is dismissed with costs. I certify that this and the thirteen (13) preceding pages are a true copy of the Reasons for Judgment of his Honour Mr Justice Gummow. Associate: Mavke aL : Date: 3 July 1987 Counsel and Solicitors for Mr G.A. Flick with Applicant: Mr B. O'Sullivan instructed by Allen Allen and Hemsley Counsel and Solicitors for Respondent: Mr P. Robertson instructed by Australian Government Solicitor. Date of Hearing: 29 June 1987 Date of Judgment: 3 July 1987