. fh waver YUDGMENT No. 614/ B=] | CATCHWORDS ADMINISTRATIVE LAW - immigration - application to review decisions to refuse entry permits and to deport - natural justice - entitlement to respond to adverse inference that not a "bona fide visitor" - no material to support adverse inference - whether an irrelevant consideration. Administrative Decisions (Judicial Review) Act 1977 Ss. 5(1)(a), 5(1)(e), 5(2)(a) Migration Act 1958 ss. 6A, 18 CHAN YEE KIN, SOO CHENG LEE & KELLY KAR CHUN CHAN V THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS VG 320 of 1984 KEELY J. MELBOURNE 4 DECEMBER, 1987 {" . . ~ 7 DEC 1987 te OF [era Ww ty J . GENERAL DISTRIBUTION NOT REQUIRED IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VG 320 of 1984 wee Se GENERAL DIVISION BETWEEN: CHAN YEE KIN First applicant SOO CHENG LEE Second applicant AND KELLY KAR CHUN CHAN (an infant who brings his claim by his next friend and mother Soo CHENG LEE) Third applicant AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent 4 DECEMBER, 1987 KEELY J. MINUTES OF ORDER THE COURT ORDERS THAT: 1. The decisions of the respondent, dated 20 April 1986, refusing to grant further temporary entry permits and (Note: 2. permanent resident entry permits to the first named and second named applicants be set aside. The orders made by the respondent, on 20 April 1986, for the deportation of the first named and second named applicants be set aside. The applications by the first named and second named applicants for further temporary entry permits and for permanent resident entry permits be referred to the respondent for further consideration in the light of the reasons for judgment. The respondent pay the costs of the first named, second named and third named applicants. Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules) IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VG 320 of 1984 GENERAL DIVISION BETWEEN: CHAN YEE KIN First applicant SOO CHENG LEE Second applicant AND KELLY KAR CHUN CHAN {an infant who brings his claim by his next friend and mother soo CHENG LEE) ~~ Third applicant AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent 4 DECEMBER, 1987 KEELY J. REASONS FOR JUDGMENT This 1S an application under the Administrative Decisions (Judic1ral Review) Act 1977 (the Judicial Review Act) to review decisions under the Migration Act 1958 by the respondent's delegate (the delegate) made on 20 April 1986. It was heard with matter number VG 156 of 1987, 1n which judgment has been given today. Mr. B. A. Keon-Cohen, of counsel, on behalf of the applicants, said during the hearing that only the following decisions remained "relevant and alive" for the purposes of the amended application to review filed 2 June 1986:- "3. The decision made on 20th April 1986 by the respondent to refuse an application by the firstnamed applicant made on or about 25th February 1985 for a further temporary entry permit to enable him to remain in Australia with the secondnamed and thirdnamed applicants (the "third decision"). 4. The decision made on 20th April 1986 by the respondent to refuse an application by the secondnamed applicant made on or about 24th June 1985 for a further temporary entry permit to enable her to remain in Australia with the firstnamed = and thirdnamed applicants (the "fourth decision"). 5. The decision made by the respondent or his delegate to issue a_— second deportation order dated 20th April 1986 ain respect of the firstnamed applicant and to thereby deport the firstnamed applicant from Australia (the "fifth decision"). 6. The decision made by the respondent or his delegate to issue a deportation order dated 20th April 1986 in respect of the secondnamed applicant and to thereby deport the secondnamed applicant from Australia (the "sixth decision"). 7. The decision made by the respondent on 20th April 1986 to refuse to issue permanent resident entry permits and thereby to reject applications made on 21st January 1986 by the firstnamed and secondnamed applicants for change of status to permanent residents on compassionate and humanitarian grounds to enable him or her to remain in Australia with the other applicant and the thirdnamed applicant (the "seventh decision" and "eighth decision" respectively)." A statement of reasons signed by the respondent Minister, dated 15 June 1986, was as follows:- "I, Christopher John Hurford, the Minister of State for Immigration and Ethnic Affairs, decided on 20 April 1986 to order the deportation of Chan Yee Kin and Lee Soo Cheng. I based my decision on the attached Submission from Warren Perram dated 17 April 1986 and the annexures thereto. I adopted the findings at Part A of that Submission as my findings on material questions of fact. I accepted these findings of fact on the evidence before me as set out in Part B of that Submission. I adopted the reasoning set out in the assessment at Part C of that Submission, and that sets out the reasons for my decision." Mr. Perram's suggested findings on material questions of fact (Part A), which were adopted by the respondent, his listing of the material on which those findings were based (Part B) and his "reasoning set out in the assessment at Part c", which was adopted by the respondent, included the following:- "A. Findings on Material Questions of Fact 1 Mr Chan is a citizen of the People's Republic of China. His defacto spouse, Ms Lee 1S a citizen of Malaysia. 15 On 25 February 1985 Mr Chan lodged an application for a further entry permit requesting an indefinite stay in Australia. 16 In a letter dated 4 June 1985 to the Australian Government Solicitor Mr Ketelhohn, discussing the proceedings before the Federal Court, indicated that Mr Chan had entered unto a defacto relationship with one Ms Lee Soo Cheng, a Malaysian citizen, and that Ms Lee had given birth to Mr Chan's son in Melbourne on 25 April 1985. Mr Ketelhohn foreshadowed that he would seek to amend the Application before the Federal Court to include both Ms Lee and the child and that the deportation decision would be challenged. 17 A further letter from Mr Ketelhohn on 11 June 1985 enclosed a copy of the entry permit application for Mr Chan and advised that Ms Lee Soo Cheng was in Australia without authority. Mr KeteLlhohn foreshadowed an entry permit application on her behalf. This was received in the Melbourne Office on 24 June 1985. Ms Lee Soo Cheng had entered Australia as a visitor on 15 April 1984 and was granted a temporary entry permit to authorize her stay for three months. No further entry permit has been granted to her since and hence she is a prohibited non-citizen. 18 On 16 September 1985 a fresh decision was made on Mr Chan's application for refugee status. Your delegate approved the recommendation of the DORS Committee that Mr Chan not be recognised as a_ refugee within the terms of the UN Convention concerning the status of refugees and related protocol. 19 On 18 November 1985 Mr Ketelhohn swore an affidavit in support of the application to the Federal Court to have Ms Lee and her son included in Mr Chan's application. In the affidavit Mr Ketelhohn raises, among other things, the following matters: . Ms Lee has cohabited and resided with Mr Chan in a defacto relationship since mid-1984; . Ms Lee and Mr Chan wish to continue to cohabit as man and wife and intend to marry in due course, which both persons are free to do; . Ms Lee and Mr Chan have little or no savings in Australia nor have they drawn upon or sought Social Security benefits. Neither person has any relatives in Australia; . they have a child, born 1n Melbourne on 25 April 1985; . 1£ Ms Lee 1S deported to Malaysia with her child she would meet considerable difficulties in Malaysia providing for herself and the child. If she was deported and the child remained in Australia, she would therefore be denied the opportunity of caring for and raising her son. If she ultimately lost contact with her son, both she and her son would suffer great hardship; and . there are compelling humanitarian and compassionate reasons why Mr Chan and Ms Lee should be allowed to remain in Australia, in order to maintain their family life and raise their son. 20 On the same day an amended Application was filed. The Application before the Federal Court as amended seeks to review the decisions to not grant refugee status to Mr Chan, to order Mr Chan's deportation, to fairl to consider or approve or refuse applications for further entry permits, and to refuse permission for Mr Chan and Ms Lee to work in Australia. 21 It 1s claimed that Mr Chan is aggrieved because: - he is denied the opportunity to remain in Australia; he is denied the opportunity of seeking or continuing employment in Australia; and - he risks deprivation of liberty, political victimisation, unjust, cruel or unusual treatment by authorities if he 1s returned to Hong Kong and/or China. 22 In that they share a defacto relationship, 1t is claimed Mr Chan and Ms Lee are mutually aggrieved because their son 1S an Australian citizen with all rights and benefits and they are denied the Opportunity to reside in Australia as his parents thereby depriving them of a family life in Australia, the exercise of rights and responsibilities as parents and to provide for and enjoy family life with their son. 23 The son is aggrieved by the decision, it is claimed, because: - he would be denied the benefit of being raised by his parents or either of them in Australia; - he is placed at risk of being denied the benefit of remaining in Australia either at all, or with either or both of his parents; and - he will be subjected to considerable hardship 1f either of his parents remove him from Australia or abandon him in Australia. 24 All three persons are aggrieved by the decisions because, 1t 1s claimed, by reason of the decisions compelling, compassionate and humanitarian circumstances arise by reason of which each person should be allowed to remain in Australia. 25 On 13 January 1985 [sic] Mr Chan and Ms Lee were interviewed in the Department's Melbourne Office to obtain their current personal circumstances and to provide them with an opportunity to advance additional Matters they wished to have taken into account when the question of their continued stay in, or deportation from Australia was considered. 26 Further to the information he provided when the question of his deportation was considered in May 1982, Mr Chan stated that: - he had not previously visited Australia nor sought migrant entry from overseas; - he 1s not criminally recorded either in Australia or overseas; » he had been deported from Hong Kong to Macau in 1974 because of his illegal stay in Hong Kong; - although rejected for refugee status he has not been instructed to depart Australia; - his father and one brother reside in Hong Kong. He has one brother in Macau and his mother and two sisters are in China; - he received a total of seven years schooling and has had twelve years experience as a Chinese chef; - he has been working as a chef since May 1985 at a Chinese restaurant in Bendigo, Victoria, earning $250 per week; - Since his arrival in 1980 he has been employed as a cook in six other restaurants; he has no assets overseas. In Australia he has $1000 cash; - he shares a defacto relationship with Ms Lee Soo Cheng and they have an Australian-born son; - .t would disappoint him to leave Australia now because of the 27 Ms presence of his defacto spouse and their child and he would find it difficult to live in China again; and he will seek change of status, pursuant to section 6A(1)(e) of the Act, on compassionate grounds. Lee Soo Cheng provided the following information. She stated that: she had used the names Katherine Lee and Katherine Chan; she had not lived in any country other than Malaysia; she arrived in Sydney on 15 April 1984 under her correct name of Lee Soo Cheng; this was her first visit to Australia; she had not applied for migrant entry from overseas; she has not previously been deported or excluded from any country and has not been directed to depart Australia; she 1s not criminally recorded either overseas or in Australia; she received a total of eleven years schooling and has no formal skills or qualifications; she worked overseas for three years as a marketing executive; she has not worked in Australia; she has assets of $300 in Australia, without a return ticket, and overseas she owns a flat (in Malaysia); she will seek resident status on compassionate grounds, together with Mr Chan; she would be disappointed and sad 1£ deported from Australia and wants to remain to raise her child here. 28 On 20 January 1986 Mr Ketelhohn, following the rejection of Mr Chan's request for refugee status, submitted representations to request permanent residence for his clients. Mr. Ketelhohn relied upon Mr Chan's "stable and continuing defacto relationship with Miss Soo Cheng Lee" and the fact that the child of the union is an Australian citizen. He indicated that if either Mr Chan or Ms Lee is deported "the family unity will be shattered and cause great hardship to them and their son". On 21 January 1986 a formal Application for Resident Status was lodged at the Melbourne Office. As strong compassionate or humanitarian grounds Mr Chan cited his "stable and continuing defacto relationship with Ms Lee" and that he is the father of an Australian born child. 29 A report prepared by a departmental officer on the details of Mr Chan's and Ms Lee's relationship was compiled from information they had provided on 13 January 1986. The report indicates that both persons claim to be free to marry; they have lived in a defacto relationship since mid-1984 after they met in Tasmania when both were employed at the Flower Drum Restaurant; and they have maintained an ongoing relationship and now reside at 1 Wade Street, Bendigo where they share the rent. They have no joint ventures or bank accounts and as a form of documentary evidence of their relationship they produced their son's birth certificate. They claim they have not married because Mr Chan is a resident of China and Ms Lee 1s a resident of Malaysia - both would have difficulty in entering each other's country if forced to leave Australia. They would like to marry, however, and raise their child in Australia where Mr Chan hopes to establish his own restaurant. 30 Two major discrepancies appeared in the matter of Mr Chan's relationship with Ms Lee. The first being that Ms Lee 10. claimed at interview on 13 January 1986 that she had never worked in Australia - this 1s at variance with the statements of both her and Mr Chan that they met while both were employed at the same restaurant. The second point is that the couple claim to have had an ongoing continuous defacto relationship since mid-1984 yet Mr Chan, on 6 December 1984, when he was instructed to cease employment, stated that he was dating Ms Annette Sherrif, a waitress at the restaurant. He maintained the relationship was casual as a result of the uncertainty of his future stay in Australia. 31 These two aspects were subsequently put to Mr Chan and Ms Lee after they were pointed out to Mr Ketelhohn. Mr Chan stressed that his association with Annette Sherrif was only of a casual nature and Ms Lee was adamant that she had not worked in Australia. She explained that she was staying at the Somerset Hotel while Mr Chan was working at the Flower Drum Restaurant. 32 On 25 March 1986 you decided to revoke a previous deportation order in respect of Mr Chan and, after considering their circumstances, decided to sign deportation orders against both Mr Chan and Ms Lee. However, in the making of those decisions you did not take into account a formal application for resident status lodged at the Melbourne Office on 21 January 1986. B. Evidence or other material upon which the findings are based 33 In making the above findings I had regard to the following material: - Submission dated 19/5/82 on the question of Mr Chan's deportation, deportation order dated 20/5/82 and letter to Messrs Cannizzo, Lau and Associates dated 21/5/82 - Annex A - Copies of letters dated 29/9/82 and 19/11/82 from Mr J E Ketelhohn - Annex B - Copy of letter dated 29/11/82 by Mr J.E. Ketelhohn covering Mr 11. Chan's Application for Refugee Status and Mr Chan's_ personal statement —- Annex C. Copy of Record of Interview conducted on 15/12/82 between Mr John Fensling (DIEA) and Mr Chan - Annex D File note dated 18/1/83 on the matter of Mr Chan's reaction to the interview - Annex E. Copy of Mr Chan's further statement dated 27/1/83 - Annex F. Copy of minutes of DORS meeting held on 22/7/83 together with minute dated 21/9/83 recommending rejection of Mr Chan's application - Annex G. Copy of cable dated 6/10/83 from Hong Kong advising Mr _ Chan's previous removal to Macau in 1979 - Annex H. Copy of cable dated 17/10/83 from Hong Kong advising of procedure for acquiring approval for return of deportee to Macau - Annex I. Copy of telex dated 19/10/83 to Department of Foreign Affairs - Annex J. Copy of telex dated 5/12/83 advising results of interview conducted 28/11/83 - Annex K. Copy of letter dated 4/1/84 from Mr T.L. Griffiths to Mr dJ.E. Ketelhohn - Annex L. Copy of file note dated 6/12/84 by Mr S. Wickham - Annex M. Copy of Application for a Further Entry Permit dated 25/2/85 in respect of Chan Yee Kin - Annex N. Copy of letter dated 4/6/85 by Mr J.E. Ketelhohn - Annex 0. c. 12. Copy of letters dated 11/6/85 and 24/6/85 by Mr J.E. Ketelhohn and copy of Application for Furtheer Entry Permit in respect of Lee Soo Cheng - Annex P. Copy of submission dated 4/9/85 to Asst. Secretary, Refugees and Humanitarian Branch on question of grant of refugee status - Annex Q. Copy of Affidavit sworn by Mr J.E. Ketelhohn No. VG320 of 1984 - Annex R. Copy of Amended Application for Order of Review No. VG320 of 1984 —- Annex S. Telex dated 25/11/85 by R. Hewson advising of attempts to contact Mr J.E. Ketelhohn - Annex T. Report of Interview dated 13/1/86 with Chan Yee Kin — Annex U. Report of Interview dated 13/1/86 with Lee Soo Cheng, covering copy of Birth Certificate 25446/85 in the name Kelly Kar Chun Chan - Annex V. Copy of letter dated 20/1/86 from Mr J.E. Ketelhohn - Annex W. Copy of Application for Resident Status in Australia dated 20/1/86 — Annex Wl. Telex dated 24/2/86 advising of Mr Chan's and Ms Lee's responses — Annex Y. Copy of Incoming Passenger Card in relation to Lee Soo Cheng - Annex Z. Copy of section 6A of the Migration Act 1958 — Annex AA. Copy of Policy on Tllegal Immigrants - Annex BB. Assessment 13. 34 Mc Chan Yee Kin is a_ prohibited non-citizen by virtue of sub-section 6(1) of the Migration Act 1958 in that being a non-citizen he was not, at the time he entered Australia, the holder of, or a person included in, an entry permit and no entry permit has been granted to him since. 35 Ms Lee Soo Cheng 1S a _ prohibited non-citizen by virtue of sub-section 7(3) of the Migration Act 1958 in that she was the holder of an entry permit which has expired and no further entry permit has been granted to her since. 36 Both Mr Chan and Ms_ Lee _ have committed offences against the Migration Act in becoming prohibited non-citizens and in Mr Chan's case, a further offence of working without the written permission of an authorized officer. 37 Mr Chan, on 20 May 1982, became the subject of a deportation order. His deportation was not effected in the first instance because of the difficulties in obtaining the necessary documentation to effect his movement and then this matter was superseded by an application for refugee status, the resolution of which became relatively complex and protracted. Mr Chan's personal situation had by then changed. He had entered into a relationship with Ms Lee, who 1s also a prohibited non-citizen in Australia, and they had a child who is by birth an Australian citizen. Both Mr Chan and Ms Lee are now seeking to remain in Australia on compassionate grounds, citing the individual and collective hardships that deportation would have on family unit members. 38 When you signed orders for _ the deportation for Mr Chan and Ms Lee on 25 March 1986, the fact that their formal application of resident status was not considered had the effect of vitiating that decision. It would be appropriate now to revoke the deportation orders in respect of Mr Chan and Ms Lee and consider both Mr Chan's and Ms tLee's current personal circumstances with a view to deciding on 14. their further temporary stay in Australia, their permanent stay, or their deportation. 39 It is posszble to authorize their temporary stay in Australia by the grant to them of temporary entry permits (in Mr Chan's case, subject to revocation of the existing deportation order). However, it is considered that such a grant 15s inappropriate. In Mr Chan's case, you may decide to refuse his application for a further temporary entry permit because of his method of entry as a stowaway, without any form of overseas pre-clearance, and in blatant circumvention of migration controls, and because he has remained in Australia in breach of migration law and policy and has engaged in employment without permission. Mr Chan has given no indication since the rejection of his application for refugee status that he would be prepared to depart at a later date even if permitted further temporary stay, or that he would leave voluntarily to apply to migrate in the future in the correct manner. 40 Ms Lee signed undertakings overseas that she would not seek permission to settle in Australia, would not seek employment and would depart at the end of her authorized period of stay. She has already remained in Australia far in excess of the maximum period normally allowed to visitors and she has made it clear that she would hope to remain permanently. I would submit that there are sufficient grounds to reasonably conclude that Ms Lee is not a bona fide visitor to Australia and you may decide to refuse her application for a further temporary entry permit. 41 Mr Chan and Ms Lee have applied to remain in Australia permanently. It would seem reasonable to conclude that their request is based on two aspects: firstly, their relationship and the presence of an Australian-born child from that relationship and secondly, the deportation of either or both persons would individually and collectively cause distress to Mr Chan, Ms Lee and the child. 42 In the first instance, neither Mr Chan nor Ms Lee fulfil any of the 15. conditions of section 6A of the Migration Act for the grant of permanent residence in Australia. They are not persons who have been granted territorial asylum, are not the spouse, child or aged parent of an Australian citizen or resident nor are they the holders of temporary entry permits. Mr Chan's application for refugee status has been refused. In these circumstances, considered together with those factors raised as arguments against the grant of further temporary entry permits, you may decide to refuse the grant of permanent resident entry permits to Mr Chan and Ms Lee. 43 Mc Chan and Ms Lee do have an Australian-born son. In this context, the Human Rights Commission has said that the considerations of a family unit in Australia and of Australian-born children are decisive to your considerations. The Commission said that it 1s inconsistent with human rights to deport prohibited non-citizens who are parents of children who are citizens. 44 Mr Justice Smithers in the Federal Court, in the case of Sezdirmezoglu - v - Acting Minister (No 2) 1983, found that in his mind it 1s perfectly clear that nothing in the Human Rights Commission Act 1981 or the Covenant, so far as it 1s called in aid in that Act, modified in any way the power of the Minister under section 18 of the Migration Act. 45 The Commonwealth Attorney-General in a statement on 10 October 1985 on the HRC Report No. 15 "The Human Rights of Australian-born Children: A Report on the Complaint of Mr and Mrs Yilmaz" said: "I disagree with the interpretations placed by the Commission on _ the relevant provisions of the International Covenant on Civil and Political Rights and the Declaration of the Rights of the Child. I do not consider that the deportation of prohibited non-citizens amounts, in practice, to the deportation of Australian citizens if the parents choose to take their Australian—born 16. children out of the country with them. I do not consider the lawful deportation of such prohibited non-citizens affected the rights of the child as spelt out in the various international instruments". 46 The legal position appears to be that you are required to take into account all the relevant circumstances of prohibited non-citizens; the rights of an Australian-born child of a= prohibited non-citizen would be one such circumstance to consider. Having done so it remains lawfully open to you to exercise your discretion to order deportation under section 18 of the Migration Act. 47 On 17 October 1985 you tabled in the House a comprehensive policy on illegal immigrants. In summary the policy stated, among other things, that it 1s in the public interest to ensure that persons abide by normal migration selection procedures and do not queue-jump by entering or remaining illegally in Australia to the detriment of prospective migrants who abide by the procedures. The Presence of such queue-jumpers is inimical to Government control of Migration programs. Changed circumstances advanced in support of an application to remain but which arose or developed after a person became a prohibited non-citizen normally will be given little weight and those here illegally will not easily be given permanent residence while they remain in Australia. 48 In considering the making of deportation orders in respect of Mr Chan and Ms Lee 1t 1s claimed that Mr Chan would be aggrieved because he would be denied the opportunity of remaining in Australia and working here and would be at risk, although not necessarily in the physical sense but this 1s not specified, 1f returned to Hong Kong or China. In this regard it 1s submitted that Mr Chan has' had all reasonable opportunity throughout the course of his case to state his circumstances. That he has been rejected for refugee status after lengthy consideration, and is within this 1l/. submission receiving further consideration on whether he may be permitted to remain in Australia is indicative of opportunity being given to Mr Chan, rather than denial of opportunity. The making of a deportation order would be a direct consequence of his illegal status in Australia which has stemmed from his own actions for which he must bear responsibility. 49 It is further submitted that Mr Chan and Ms Lee would be mutually aggrieved if their deportation was ordered because it would deny them the opportunity to reside in Australia as the parents of an Australian citizen. Insofar as they are the parents of an Australian citizen, you May accept this point. I would submit, however, that the rights to respect family life and to the care of children do not necessarily include the right to choose the geographical location of that family life. The deportation of the parents of an Australian-born child does not prejudice the child's Australian citizenship. The child has a choice, exercised in practice by uts parents, to either go with the latter or remain in Australia in the care of others. In these situations parents almost invariably take their child with them and the child always retains the right to return to the country of citizenship as well as other rights and obligations of an Australian citizen. 50 It 1s also submitted that the child would be aggrieved by a decision to order his parents' deportation. If you decide to order the deportation of Mr Chan and Ms Lee and if they opt to take their child with them then it would be true that the child would not have the benefit of being raised by his parents in Australia. It is less obvious 1£ the child would "be subjected to considerable hardships" if either of his Parents remove him from or abandon him in Australia but you may accept that a certain degree of hardship could result. Essentially, the only obvious method to avert any of the claims of grievance by any or all of the family unit members is to permit all the members to remain in Australia. I would submit, however, that in considering the question of deportation, 1t could be reasonably concluded that Mr Chan's and Ms Lee's relationship would not have been likely to achieve its present standing 1f either or both of them had not acted outside the law; insofar as the nature of their relationship is relevant to your considerations, you may adopt the view that both persons have broken the law and have continued to remain in AuStralla illegally and in doing so, consciously or otherwise, because of the birth of their Australian-born child, have placed themselves in a position of considerable advantage. Their relationship per se does not give them any legal eligibility under section 6A of the Act and it would not appear to have any special compelling humanitarian and compassionate aspect to it other than that deportation would separate them at least temporarily. The presence of the child 1s a complicating factor. It 1s perhaps equally relevant when considering the question of deportation to be mindful of the very real possibility that Mr Chan and Ms Lee, as citizens of two different countries, may be removed to different destinations. Unless they opt to leave their child in Australia, and they have not given any indication of doing that, then there will doubtless be a period of separation of the child from one of its parents. That period would last, presumably, until such time as Mr Chan and Ms Lee make their own arrangements to be reunited wherever they are able. On the other hand, the separation may be avoided if Mr Chan and Ms Lee could offer a viable alternative destination which would be prepared to accept them. Notwithstanding the effects deportation would have and may have on Mr Chan, Ms Lee and their child, individually and as a family unit and as outlined above, you may decide that they have not established a sufficiently compelling compassionate case to outweigh factors in favour of a decision to order their deportation. 51 While at remains possible to regularize their status by the grant of further temporary entry permits, bearing in mind the circumstances of Mr Chan, Ms Lee 19. and their child as related above and referred to, and taking into account the policy on illegal immigrants, you may decide to order the deportation of Chan Yee Kin and Lee Soo Cheng." In relation to the third, fifth and seventh decisions, the grounds of the application, as amended during the hearing by leave given without objection, are as follows:- "7, The making of the decisions and each of them was an improper exercise of the power conferred by the Migration Act 1958 in pursuance of which 1t was purported to be made in that: (a) relevant considerations were not taken into account in the exercise of the power. Particulars With reference to the submission by W.C. Perram to the respondent, dated 17 April 1986, the respondent failed to consider: (i) That the DORS Committee, although unanimous, recorded reservations, being the uncertainty of destination upon deporting the firstnamed applicant (paragraph 9 and annexure G); (ii) as to the request to the Macau authorities by the Department of Foreign Affairs, any reply thereto (paragraph 10, annexure J); (.ii) as to the "claim" to be free to marry; and disparaging connotations associated therewith, the reason why marriage had not then occurred, being uncertainty as to the firstnamed and secondnamed applicant's destination upon (iv) (v) (vi) 20. deportation (paragraph 29, annexure X p.2); as to having "no joint ventures or cheque accounts", the fact that the firstnamed applicant would be criticised and possibly charged with offences by migration authorities had _ he pursued such activities (paragraph 29); as to alleged offences against the Migration Act, the fact that the firstnamed applicant was detained in custody pursuant to the Migration Act during the peciod April 1982 to February 1983 being a lengthier period of custody than might have resulted from the alleged offences (paragraph 36); as to the firstnamed applicant's non-preparedness to depart Australia, the fact that he possesses no passport or other documentation to enable him to so depart; and no destination agreed upon by relevant authorities to travel to (paragraph 39); (viiil)The whole of the submission of (1x) W.C. Perram and Annexures A-BB thereto, given that the Respondent gave consideration to the said submission and annexures only during the period 17/4/1986 - 20/4/1986, as revealed by the covering Minute from Mr. Perram, dated 17/4/1986, being Exhibit "JK48(a)" filed herein. The issue of a Visa by the Authorities of the Peoples Republic of China on 30th March 1983, to the firstnamed Applicant, bezng Exhibit "JK34", at pp. 6-9 thereto, filed herein. 21. (x) The destination to which the firstnamed and/or secondnamed and/or thirdnamed Applicants would be deported. {b) Irrelevant considerations were taken into account in the exercise of the power. Particulars (2) The "claim" to be free to marry, and disparaging connotations associated therewith (paragraph 29); (11) the fact that the first and secondnamed applicants were not involved in "joint ventures or bank accounts" (paragraph 29); (i2i) that the secondnamed applicant was "not a bona fide visitor to Australia" (paragraph 40); (iv) the views of the Commonwealth Attorney General as set forth in paragraph 45; (v) The interview of the firstnamed Applicant conducted by the Respondent on 15 December 1982, being Exhibit "JK2" filed herein, ain the light of its known deficiencies, as recorded in Annexure "E" to the said Perram submission. {c) A discretionary power was exercised subject to the dictates of a rule of policy, without regard to the merits of the particular case. Particulars (1) The views of the Commonwealth Attorney General as set forth in paragraph 45; (ii) the "queue-jumping" policy as referred to in paragraph 47. 8. The exercise of the power was so unreasonable that no reasonable person 22. could have so exercised the power. Further, there was no evidence or other material to justify the making of the decisions. Particulars The conclusion that the firstnamed applicant "had not established a sufficiently compelling compassionate case" (paragraph 50), given the material contained in the whole of the submission, and annexures thereto, but especially the material in paragraphs 48 to 51 inclusive. ... 9. The decisions involved, in each case, an error of law, or were otherwise contrary to law. Particulars (i) The reference to and construction placed upon Sezdirmezoglu v Acting Minister (No 2) 3) (paragraph 44). (11) The deportation orders, in each case, failed to specify any destination to which the firstnamed and secondnamed applicant, in each case, was to be deported. 10. The firstnamed applicant further relies upon the matters set forth in paragraphs 4 - 6 above. -.. that a breach of the rules of natural justice occurred in connection with the making of the decision: Particulars (1) The firstnamed Applicant was given no opportunity to consider or comment upon criticism contained in the said Perram submissions including: (1) that the firstnamed Applicant and Ms. Lee had worked with out permission (para 36, 39) when the firstnamed Applicant had sought from the Department permission to work (see Exhibit "JK34", p.41, memo of 18/4/83). 23. (ii) that the firstnamed Applicant sought the birth of the thirdnamed Applicant in order to place himself in a position of considerable advantage (para 50)." As to grounds 7(a) and (b), the nature of the discretion to issue entry permits is an unfettered one. As Mason J. said in Kioa v West (1985) 159 CLR 550 at 587: "The grant of an entry permit is a matter of discretion. Indeed, the cancellation of a temporary entry permit is expressed to be a matter of absolute discretion: s.7(1)." Given the nature of the discretion, the matters relevant to these decisions and the weight to be given to those matters are matters for the decision-maker. As Deane J. said in Sean Investments Pty. Ltd. v MacKellar (1981) 38 ALR 363 at 375:- ",.. where relevant considerations are not specified, ut 1s largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it 1s shown that the decision-maker has farled to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide." 24. That passage was referred to by Mason J. in Minister for Aboriginal Affairs and Anor. v Peko-Wallsend Limited and Ors. (1986) 66 ALR 299 at 309. Under ground 7(a)({i), Mr. Keon-Cohen referred to Annexure G where it was said that: "It appears unlikely that Hong Kong will accept him for re-entry. PRC appears the only country willing to accept." He contended that the respondent ought to have taken into account "the whole question of no clear point of destination in assessing whether he had made out a claim on the basis of compassionate and humanitarian grounds" and that the destination of Mr. Chan and Ms. Lee, on the face of it, would be different, as they are citizens of two different countries. Assuming - without deciding - that the respondent was bound to take such a consideration into account, 1t must be noted that he specifically said that Annexure G was part of the material he had considered and his reasons make it clear that he was aware that the first two applicants may be separated on deportation; paragraph 50 of Mr. Perram's submission includes the following passage:- "It 1s perhaps equally relevant when considering the question of deportation to be mindful of the very real possibility 25. that Mr. Chan and Ms. Lee, as citizens of two different countries, may be removed to different destinations." (see also paragraphs 10 and 29). Ground 7(a)(1) 1s rejected, as is ground 7(a)(x) for similar reasons. Ground 7(a)(1i), which deals with a related question of destination, 1s also rejected. In my opinion the respondent was not bound to inquire as to the existence of a response. Similarly, I am not prepared to uphold ground 7(a)(ix) because the respondent was not bound to refer to a visa (good for one year) issued by the Republic of China on 30 March 1983 which had since expired. Nor was he bound to consider "the reason why marriage had not then occurred" ground 7(a)(iii). As to the related ground in 7(b)(1), I accept the written submission of Mr. Kaye, of counsel, who appeared for the respondent, that the words of which complaint was made - "Claimed to be free to marry" - were accurate and were not an irrelevant consideration. As to grounds 7(a)(1iv) and 7(b)(11), 21t was open to the respondent to consider the fact of "no joint ventures or cheque accounts" as relevant to the nature of the relationship between Mr. Chan and Ms. Lee; he was not required, as a matter of law, to take into account the suggested explanation (contained in ground 7(a)(iv)) for the absence of such arrangements. Accordingly grounds 7(a)(1v) and 7(b)(ii) can not be upheld. 20. Under grounds 7(a)(v) and (v1) Mr. Keon-Cohen referred to the respondent's failure to consider possible explanations for the alleged offences against the Migration Act - consisting of working without permission - and for his "non—-preparedness to depart Australia". Again, however, 1¢t was a matter for the respondent to decide what were the relevant factors and, having done so, to decide the weight to be given to those factors. I am not prepared to uphold the ground (in 7{a)(v111)) that Mr. Perram's submission and annexures were not properly considered by the respondent Minister ~- a ground based upon the amount of time available to him for perusal of that submission and annexed material. As Mr. Kaye pointed out in his written submission, the material before the court shows that the Minister had earlier considered (on 25 March 1986) substantially the same matters. 27. Under grounds 7(b)(iv) and 7(c)(1), Mr. Keon-Cohen submitted "that the views of the Commonwealth Attorney General" were an irrelevant consideration. Again, however, it was open to the respondent to have regard to that as a relevant factor provided that the merits of the case were considered (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590). The merits of the case in relation to the child were dealt with in paragraphs 49 and 50 of Mr. Perram's submission. Accordingly grounds 7(b)(1v) and 7(c)(1) are not made out. Nor 1s there any substance in the submission, under ground 7(c)(11), that the "queue-jumping" policy, referred to in paragraph 47, was applied without reference to the merits of the case. As to ground 7(b)(v), I am not prepared to hold that the interview of the first named applicant on 15 December 1982, "in the light of its known deficiencies", was an irrelevant consideration. As to ground 8, the court could only uphold this ground if the decision was "so unreasonable that no reasonable person could have come to it" - per Mason J. in Peko-Wallsend at 310, citing Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230, 233-4. In my opinion that has not been shown here and accordingly ground 8 fails. 28. Under ground 9(1) Mr. Keon-Cohen submitted that there was an error of law in the "construction placed upon Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs (No 2)" (1983) 51 ALR 575. Although the statement of law in paragraph 44 of Mr. Perram's submission could have been more fully expressed, Mr. Keon-Cohen was unable to persuade me that there was any error of law in_ the application of the relevant principles; as already noted, the Merits of the case relating to the child were considered. It follows that ground (9)(i) has not been made out. As to ground 9(1i) (see also ground 7(a)(x)), it was decided by Northrop J. in Chua v Minister for Immigration and Ethnic Affairs (1986) 68 ALR 55 at 60 that the powers in the Act enabling officers of the Commonwealth to specify the place to which a deportee is to be deported "cannot be treated as imposing a duty on the Minister ... to specify in that [deportation] order the place to which the deportee is to be deported". I agree, with respect, with that decision and reject ground 9(11). As to ground 10(i), the principles of natural justice do not require that a person, whose interests are likely to be affected, "be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance" - see Kioa v West 29. (1985) 159 CLR 550 at 628 per Brennan J. In addition, the following comment by Mason J. in Kioa (at 587) is relevant in the context of entry permits: "In the ordinary course of granting or refusing entry permits there 1s no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he _ thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to ham, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter." In the present case the first named applicant had himself given details of his employment in Australia in his second interview on 13 January 1986 (see paragraph 26); he was also asked at the conclusion of the interview if there were "additional matters" he wished to be considered. In these circumstances he can not complain that the respondent, without seeking further explanation or detail on the matter, referred to the fact that he had worked "without permission" (paras 36 and 39). Further, in relation to ground 10(11), the comments in paragraph 50 are based on undisputed facts as to the birth of the child and the respondent was entitled to make them without being required to given the first named 30. applicant an opportunity of responding. I do not read the statements in paragraph 50 as contending "that the firstnamed Applicant sought the birth of the thirdnamed Applicant in order to place himself in ae position of considerable advantage" - as contended in ground 10(ii). Accordingly, grounds 10(1) and (11) are both rejected. In relation to the fourth, sixth and eighth decisions, the second named applicant, in grounds 11, 12(b) and 13, relied upon grounds 7, 8 and 9 (and the particulars) insofar as they related to her. They have already been set out and dealt with earlier in these reasons. It is convenient to note at this point that the grounds of the application by the third named applicant were stated in the application as being:- "As to the first to eighth decisions inclusive: The thirdnamed applicant, on his own behalf and aS a party interested in_ these proceedings, relies upon and refers to the various grounds and particulars thereto, as relating to each of the abovementioned decisions, as set forth in paragraphs 1 to 13 above." As those grounds relied upon by the third named applicant have already been dealt with it is not necessary to deal with them separately - see Brennan J. in Kioa at 629-630. 31. The remaining grounds were grounds 12(a) and 14 which were as follows:- "12. -.. the making of the decisions and each of them was an improper exercise of the power conferred by the Migration Act 1958, ain pursuance of which they were purported to be made, in that: (a) irrelevant considerations were taken into account in the exercise of the power. Particulars (1) That the secondnamed applicant signed under-— takings as referred to in the sald W.c. Perram submission, at paragraph 40. (i2) That the secondnamed applicant 1s not a_ bona fide visitor to Australia. 14. That a breach of the rules of natural justice occurred in the making of the decision. Particulars The secondnamed Applicant was given no opportunity to consider or comment upon the criticism that she was not a bona fide visitor to Australia (Perram submission, para 40)." In relation to grounds 12(a)(1.) and 14, Mr. Keon-Cohen cited the decision in Waniewska v Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284. He submitted that it was not reasonable for the respondent to "adopt" the conclusion, in paragraph 40, "that Ms. Lee is not 32. a bona fide visitor to Australia"; he also submitted that the failure to put to her that there were grounds for so concluding was a denral of natural justice; the respondent, in his statement of reasons, "adopted" the reasoning set out in the assessment in Part C of [Mr. Perram's submission]" and thereby came to the conclusion that Ms. Lee "1s not a bona fide visitor". In Waniewska's case (at 295) it had been submitted that the delegate had denied natural justice to the applicant by concluding that "she was not a bona fide visitor in the first place" (referring to paras 49 and 52 of the reasons in that case). That submission was dealt with (at 296) as follows:- "The conclusion of the delegate, which 1s adverse to the applicant, was that she was not a bona fide visitor. That conclusion was not one which was apparent on the face of any statements made or documents supplied by the applicant. The delegate's conclusion was based upon an inference which the delegate drew from the mere "frequency of [her] applications to remain in Australia" (para 52) and the early date of her first inquiry as to the possibility of obtaining resident status (para 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 of which by the delegate should, in all the circumstances, have been anticipated by the applicant." 33. It was decided that the principles of natural justice required the delegate to give to the applicant an opportunity to deal with the suggestion that she was not a bona fide visitor. Mr. Kaye sought to distinguish Waniewska. He submitted that the respondent in the present case in adopting "the reasoning set out [in paragraph 40] in the assessment at Part C of that submission [of Mr. Perram]" did not conclude (and that Mr. Perram, in paragraph 40 of that submission, was not suggesting that the respondent should conclude) that Ms. Lee was not bona fide at the time when she came to Australia but that, speaking with reference to the time of Mr. Perram's submission, she "1s not a bona fide visitor". I am unable to uphold that submission. In my opinion paragraph 40 of Mr. Perram's submission meant that Ms. Lee was not a bona fide visitor at the time she came to Australia and that, because she had not come to Australia as a bona fide visitor, the respondent could, on that ground alone, "decide to refuse her application for a further temporary entry permit" (paragraph 40). In my opinion the respondent, by adopting the reasoning in that paragraph, decided to refuse her application for a temporary entry permit because he had reached the conclusion that she had not been a bona fide visitor at the time when she came to Australia. The inference drawn here was "relevant and damaging" (see Brennan J. in Kioa v (at 629)) and required the 34. respondent, before making such an adverse finding, to give Ms. Lee an opportunity to deal with the suggestion that she was not a bona fide visitor. I therefore find that ground 14 has been made out in relation to the second named applicant. Although Mr. Kaye, on behalf of the respondent Minister, strongly pressed the submission set out above (which has not been upheld), he did not put an alternative argument that, on the material before him, the respondent was entitled to conclude that Ms. Lee was not a bona fide visitor at the time when she came to Australia; in my view he quite correctly refrained from putting such a submission because there was no material to support it. Having regard to Mr. Perram's submission in his "assessment" {para 40) "that there are sufficient grounds to reasonably conclude that Ms. Lee 1s not a bona fide visitor", and its adoption by the respondent, it follows that his refusal of a temporary entry permit was based upon a "fact" (that Ms. Lee was not a bona fide visitor when she came to Australia) which did not exist. The respondent, in taking into account that "fact", took into account an irrelevant consideration in considering his decisions in relation to the first named applicant (ground 7(b)(11i)) and in considering the applications of both applicants "to remain in Australia permanently"; see paragraph 41 which makes it clear that an important basis for Mr. Chan's applications was his relationship with Ms. Lee. 35. The respondent adopted the reasoning set out in paragraph 42 of Mr. Perram's submission, which included the following: "42 ++. mor are they the holders of temporary entry permits. Mr Chan's application for refugee status has been refused. In these circumstances, considered together with those factors raised as arguments against the grant of further temporary entry permits, you may decide to refuse the grant of permanent resident entry permits to Mr Chan and Ms Lee." The words "considered together with those factors raised as arguments against the grant of further temporary entry permits" referred to matters dealt with in paragraph 40, which included Mr. Perram's submission "that there are sufficient grounds to reasonably conclude that Ms. Lee is not a bona fide visitor" (i.e. was not at the time of coming to Australia). Accordingly grounds 7(b)(i11) and 12(a)(11) are made out. For the reasons given, the six decisions made by the respondent on 20 April 1986 must be set aside. I have not found it necessary to consider ground 12(a)(i); nor to consider the other matters raised by ground 10, which primarily refer to earlier decisions - conceded by Mr. Keon-Cohen to be no longer "alive" for the purposes of review. I am not prepared to make declarations that' the applicants are entitled to the relevant permits (as sought in 36. the application). In Minister for Immigration and Ethnic Affairs v Conyngham and Others (1986) 68 ALR 441 the Full Court, having said (at 448) that s. 16(1)(d) of the Judicial Review Act did confer power upon the court "in an appropriate case" to require a decision maker to decide a matter in a particular way, said (at 453):- "If the decision-maker, although his discretion has miscarried, is left with a residual discretion under the statute to decide the ultimate question favourably or unfavourably to the successful applicant, the order which the court makes' should notwithstanding the width of s. 16 of the Act usually, if not anvariably, be one which remits the matter for further consideration according to law." Having regard to the nature of the discretion in relation to entry permits, in my opinion the applications by the first named applicant and second named applicant respectively for further temporary entry permits and their applications for permanent resident entry permits should be referred to the respondent Minister for further consideration in the light of these reasons for judgment. The respondent must pay the applicants' costs. I certify that this and the thirty-five preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Keely Associate: Wo Wenn. pate: 4 Decemioor '% Dates of Hearing: Counsel for Applicants: Solicitors for Applicants: Counsel for Respondent: Solicitor for Respondent: 37. 28, 29, 30 September, 1, 2, 8 and 9 October, Mr. B. A. Keon-Cohen Mr. J. E. Ketelhohn Mr. S. W. Kaye Australian Solicitor Government