Judgment No. [1987] FCA 830 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G. 155 of 1987 GENERAL DIVISION ) ) ) ) ) ) ) EX TEMPORE JUDGMENT Between: LAM LEONG NG (Applicant) And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (Respondent) Coram: Ryan J. Date: 23 April 1987 Place: Sydney - REASONS FOR JUDGMENT In this application Fox J. on 15 April 1987 made an order staying the execution of a deportation order in respect of the applicant made on 10 April 1987. His Honour also ordered that a statement of reasons for the decision in accordance with s.13 of the Administrative Decisions (Judicial Review) Act 1977 C'th ("the Act") be provided by the respondent no later than 21 April 1987 and that the applicant file and serve interrogatories as soon as possible. - Before me, Mr. Barlow, the solicitor for the applicant, has sought an extension of the stay granted by his Honour and an order that the several departmental officers for whose examination interrogatores filed on behalf of the applicant have been administered make file and serve answers to those interrogatories. The making of each of those orders is opposed by Mr. Hilton of counsel for the respondent. The respondent''s reasons for the decision to make a deportation order in respect of the applicant have been supplied as directed by Fox J. and have been tendered in evidence today. The other evidence relied on by the applicant is contained in an affidavit sworn by his solicitor on 22 April 1987, which omitting formal parts is in the following terms: "1. I am the Solicitor of the Applicant Lam Leong Ng and his fiancee Cheng Swee Lee. 2. Ms. Lee is a permanent resident of Australia and is eligible, and has applied for citizenship of this country. 3. Ms. Lee supported the application for resident status filed by the Applicant and was interviewed by the Respondent 's officer on the 27th February, 1987. 4. I have advised my clients that it is current Immigration Department policy and practice to refuse all applications for resident status filed by prohibited non-citizens regardless of the merits of the applications. I have filed approximately two dozen applications for resident status, on behalf of prohibited non-citizens, and all of these have been refused although based on 'strong compassionate and humanitarian circumstances'. I understand that this is the position even although the Department is still charging the two hundred dollar ($200.00) application fees payable in respect of all s.6A(1)(e) applications for resident status. In the present case my client paid his $200.00 and I expected that his case would be considered on its merits as the Department would otherwise be acting fraudulently if it collected the $200.00 application fee from prohibited non-citi- zen applicants whose applications had already been pre-determined. It is my professinal opinion based on my day to day experience in dealing with the Immmigration Department that since the Respondent's address to the House of Representatives on the 17th October, 1985 on the subject of illegal immigration, copies of extracts of which are annexed to this affidavit and marked with the letter "A", that the Respondent's officers have interpreted s.6A(1)(e) of the Migration Act, 1958 so as to exclude its application to all prohibited non-citizens regardless of the 'compassionate or humanitarian circumstances' of their case and regardless of the fact that s.6A(1)(e) is not go qualified by Parliament so as to automatically exclude applicants such as the Applicant in these proceedings. There are in fact many citizens of Australia who were permitted to change from prohibited non-citizens status to resident status as a result of filing a s.6A(1)(e) application prior to the Minister's statement of the 17th October, 1985, referred to herein. I consider that if the Respondent has adopted a policy automatically refusing applications from all prohibited non- citizens then the Minister ought to publically announce the suspension of S.6A(1)(e) as it applies to prohibited non-citizens so that persons such as the Applicant are not induced to waste the $200.00 application fee on an application which is going to be refused before it has been lodged. I would consider it fraudulent for the Respondent to do otherwise. The Respondent did not in his executive statement of the 17th October, 1985 persuade Parliament to support his position with legislation amendments to s.6A(1)(e) so as to exclude applications by prohibited non-citizens. If the Applicant is deported his fiancee must leave her Australian based family for at least five years in order to be with the Applicant. The Respondent has decided that the destruction of this family unit does not constitute 'strong compassionate and humanitarian grounds' in terms of s.6A(1)(e) of the Migration Act, 1958 and that family values of this kind are of less importance than the immorality of breaching visa conditions. I do not understand how this can be so, given that the Applicant has now spent over seven weeks in custody since his arrest, and thereby lost seven weeks of his liberty, because of the breach of his visa conditions and the Local Courts exercising federal jurisdiction in New South Wales only impose fines of $200 - $500.00 for such breaches of the Migration Act, 1958. I perceive and believe that the Respondent is acting unlawfully and without jurisdiction in his decision to pre-determine the applications of all prohibited non-citizens. Annexed to this Affidavit and marked with the respective letters A, B, C and D are: (a). Deportation Order against the . Applicant signed on the 10th April, 1987. (b) Request for reasons pursuant to s.13 of the Administrative Decisions (Judicial Review) Act, 1977. (c) Extracts of the Respondent 's statment on illegal migration dated the 16th October, 1986. (da) A letter of advice from the applicant's Solicitor, Barlow & Co., Solicitors and Attorneys." Objection was taken on behalf of the respondent to the admissibility of almost the whole of that affidavit and I shall deal with that objection as it becomes necessary in the course of these reasons. By his application, the applicant seeks review of the decision not only to order his deportation but as well of the cognate decisions, also made on 10 April 1987, to reject his applications for temporary entry permits and resident status and to refuse to allow him voluntarily to depart from Australia under supervision. In essence three grounds are advanced as vitiating all of those decisions. In the first place, it is contended that the decisions were arrived at by the automatic application of a policy enunciated by the then Minister for Immigration and Ethnic Affairs ina statement to the House of Representatives on 17 October 1985 without regard to the circumstances personal to the applicant himself. The evidence relied on as. providing prima facie support for that contention was said to be contained in paragraphs 4 and 5 of the affidavit of the applicant's solicitor, which I have just set out. It was urged in the same context that in order to reinforce that contention the applicant should be allowed to compel answers to interrogatories directed to each of six specified officers of the Department of Immigration and Ethnic Affairs. The interrogatories are in substantially common form and to illustrate the matters inquired after I set out the text of those directed to Mr. Quang Luu, the Regional Director of the Sydney regional office of the Department of Immigration and Ethnic Affairs. (Mr. Luu, as the delegate of the Minister, made the decisions complained of in this application)" "T, Have you or any other officer of the Department of Immigration and Ethnic Affairs ever received ANY verbal or written communications from any other officer of the Department, since October, 1985, regarding your consideration and determination of; (i) (ii) (iii) If so (i) (ii) (iii) applications for resident status pursuant to s.6A(1)(e) and s.6A(1)(b) of the Migration Act, 1958 and/or applications for resident status by prohibited non-citizens generally the making of s.18 Deportation Orders against prohibited non-citizens? specify; the occasion/s on which such communication/s and was/were received, the officer/s who issued such communication/s; and the nature and contents of the said communication/s? In your capacity as a Regional Delegate how many applications for resident status pursuant to s.6A(1)(e) and s.6A(1)(b) of the Migration Act, 1958 have been submitted to you for consideration and determination since the lst October, 1985 by prohibited non-citizens detained pursuant to s.38 or s.39 of the Migration Act, 1958? Of the total number of s.6A(1)(e) and s.6A(1)(bD) applications, specified in paragraph 3. hereof, how many were: (i) granted; (ii) refused; (iii) the subject of a subsequent Deportation Order? specified in paragraph 3 hereof how many did the officer preparing the submission recommend be: (i) granted; (ii) refused; (iii) the subject of a Deportation Order? Of the total number of applications specified in paragraph 3 hereof how many did you: (i) grant; (ii) refuse; (iii) make a Deportation order against the Applicant? In respect of the applications specified in paragraph 3 hereof have you on any single occasion decided not to adopt an officer's recommendation that: (i) the application be refused, and (ii) a Deportation Order be made against the Applicant? If so specify the number of occasions out of the total number of said applications. Have you since the lst October, 1985 ever granted resident status pursuant to s.6A(1)(e) of Csic] or s.6A(1)(b) of the Migration Act, 1958 and refused to make a Deportation Order pursuant to s.18 of the Act in respect of a prohibited non-citizen detained pursuant to s.38/s.39 of the Migration Act, 1958. 9. What was the total resident status application fee revenue generated by. the Applications specified in paragraph 3. hereof that have come before you for consideration and determination? 10. Have you served as an officer of the Department of Immigration and Ethnic Affairs in, the enforcement/compliance sections? If so specify the period of time and dates in which you have so served." It is clear that an administrative decision-maker entrusted with a discretion cannot by automatic adherence to some policy, whether formulated by himself or another, relieve himself of the need to consider and give due weight to the circumstances of each case which arises for exercise of the discretion. However, that is not to say that the considerations which prompted the enunciation of the policy are to be disregarded in the exercise of the discretion. In this context I adopt, with respect, the following obsevations of Brennan J. sitting as president of the Administrative Appeals Tribunal in Re Drake v. Minister for Immigration and Ethnic Affairs (No. 2) 2 ALD 634, at 640: "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 e.g., Schmidt v. Secretary of State for Home Affairs (19693 2 Ch. 149. The Minister must decide each of the cases under ss.12 and 13 on its merits. His discretion cannot be 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 the 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 of 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 with a power. (See British Oxygen Co. v. Board of Trade (19711 AC 610 at 625 and 631)." His Honour then went on to quote from Lord Denning's reference to the distinction in Sagnarta Investments Ltd. v. The Norwich Corporation £19713 2 QB 614. In this case I have to consider whether on the admissible evidence so far adduced the applicant has demonstrated a serious issue to be tried so as to justify an extension on an interlocutory basis of the stay granted by Fox J. In my view, this first contention on behalf of the applicant does not raise sucha serious issue. A fair examination of the departmental file annexed to the statement of reasons supplied by the respondent pursuant to s.13 of the Act makes it clear that the delegate of the Minister and - the departmental officer whose recommendation he adopted gave careful and anxious consideration to the individual 10. circumstances of the applicant and did not regard the decision as having been pre-empted by the ministerial policy statement. (The existence of that statement is frankly acknowledged in the material supplied pursuant to the request under s.13 of the Act). The fact that all of some 24 other applications for residential status invoking "compassionate and humanitarian circumstances" have been refused, if relevant at all, does not justify the inference which Mr. Barlow invited me to draw that the departmental consideration of Mr. Ng's application was a carefully constructed sham or charade designed to deflect judicial review. Such an inference which involves a finding of the commission of a fraud on the power conferred by the Migration Act could only be drawn on the most compelling evidence which has certainly not been adduced by the present applicant. I also consider that any leave to administer interrogatories inquiring after facts which would substantiate such an imputation of fraud on a power by responsible public officers, if available at all, should only be granted where some factual support for such an imputation has been provided by an admission or cogent and admissible circumstancial evidence. In my view, as already indicated, no such evidence has been put before the court on behalf of the applicant in this case. The second matter relied on behalf of the applicant was that no account was taken of the interests of the applicant's "Fiancee" - as she has been described in the applicant's material. Those interests were said to inhere in the applicant being permitted to remain in Australia. On the evidence, Miss Cheng Swee Lee, had, to put it in neutral terms, clearly and seriously contemplated marriage to the applicant, but it is equally clear that account was taken of the interests of Miss Lee and the impact of a deportation order against Mr. Ng on her. Indeed, between the time of the formulation of the recommendation by the relevant departmental officer and the decision by the delgate of the Minister to order Mr. Ng's deportation, the delegate requested that further inquiries be made as to why Miss Lee had not cohabited with the applicant "on a de facto basis". That inquiry was made by the delegate on 3 April. Tt was pursued by departmental officers thereafter and the final decision was not taken until 21 April 1987. In the third place, it was argued that account was taken only of the gravity of the conduct of the applicant in the lengthy period during which he was a prohibited non-citizen, without giving credit for the time which he has spent in the Villawood Detention Centre since being apprehended by departmental officers on 27 February 1987. 12. For my part, I am quite unable to see how the respondent was obliged, in the exercise of his discretion, in taking any of the decisions affecting the applicant, to give any such credit or to take any account at all of that period of detention. It follows that in my view the stay granted by Fox J. should be dissolved. I refuse the application for orders that various departmental officers provide answers to the interrogatories to which I have referred. I propose to adjourn this application to a date to be fixed to enable the applicant to consider whether he desires to pursue the substantive application. Subject to anything which counsel for the parties may submit, I propose to order that the costs of this day and proceedings before Fox J. be the respondent's costs in the substantive application. I also order that the respondent he relieved from compliance with the notice for discovery filed on behalf of the applicant on 22 April 1987. If it is decided to proceed with the substantive application and some more limited form of discovery is sought perhaps on the basis of something appearing in the s.13 statement, then application can be made accordingly. I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment of the Honourable Mr. Justice Ryan. Dated: 23 April 1987 JP Cara | Assocriatae