JUDGMENT No. 33 7 8S. CATCHWOPDS ADMINISTRATIVE LAW - judicial review - immigration - .ssconne-- qeanted temporary entey pecmit - did ct depart Austrailia user 20S expiration - orchibited non-citizen - apelications fr: further terporary entry cermit and sermanent resizent status vefused - deportation oraered - whetner Minister Failed to taxes into) account relevant consideraticn, mameiv, ""occuyational Jicounas" - 3iscretion €9 grant csmoorary entry permit ccensiaerei - relationship to grant of vecmanent resicent sracus. Administrative Decisions (Cudicial Review) Act s5.°, 13 MIZFAS Act 1358 ss.5, 6, GA(1) {dite}, 7, 78 Tard vy. Manister for Immiqeation & Ethnic Affairs .1996) 67 ADB Elica v. West (1985) 159 CLR 550 Gurpaleela v. Minister for Immigration & Ethnic Affairs '1987) 74 ALP 7263 Murvnyores Incersorated Pty Ltd v. The Commonwealth 11974: i2é CLR 1 Saiemi v. McKellas (No.2) (1977) 137 CLR 396 Re Drake and Minister tor Immigration & Ethnic Affairs 'Ie.l (1979) 2 ALD 634 The Queen v. Australian Broadcasting Tribunal; Ex vactz LHP Pry Ltd (2979) 144 CLR 45 Marister ror Immograticn & Ethnic Affairs v. Conyngnam . 1384 68 ALR 441 Minister for Aboriginal Affairs v. Peko-Wallsena Ltd + 1925' 66 ALR 193 Punihofer v. diliingdon London Bereugh Councri £1986] ALD 434 Pegina v. Secretary of State for Socaal Services, =x varcts Wezticome Foundation Bsa £19873 1 WLR 1166 Einclair v. Mining Warden at Maryrceough (1975, 132 CLS 272 Turner v. Minister for Immigration & Ethnic Affairs .25°31) 7© ALE an MINISTER FOR IMMIGRATION AND ETHNIC ASFAIRS v. RENEE MAITIN NO. G4é5 IF 1987 Woe a COPAM: FOX, BEAUMONT AND GUMMOW JZ. ao ec siep . 24 FEBRUARY 1988 ~ sae SYDNEY So Se et gt i Ln a IN THE FEDERAL COURT SF AUSTPALIA NEW SOUTH KALES DISTRICT REGISTRY wy L DIVISION SENERA, ON APPEAL FSrcem a sinzie 7unze of the Yederal Court of Australia BETWEEN : Miwa STER FOR IMMIGRATION AN ETH C_AFFAIPS Avpellant AND: RENEE MAITAN Resyvonie~ MINUTE OF ORDER CULDGES MAKING ¢CPDER: FOX, BEAJMONT AND SUMMOW Tc. DATE OF ORDEP: 24 FEPRVARY 1938 WHERE MADE: Sydney. THE COURT GRDERS THAT. i. The appeal be allowed with costs. 2. The orders made Dy Wilcox 72. cn ~ Saystember 1597 be se aside and in iteu therecf it 135 crderad 'tuat 7.. application be dismissed with casts. NOTE: Settlement and entry of orders is dealt with in Crder 36 of the Federal Court Rules. vr aN THE FEDERAL COURT OF AUSTRALIA ~ 9) Gi fo on co @) mh fa xe) a NI NEW SOUTH WALES DISTRICT REGISTRY GENERAL LIVISION ON APPEAL from a single cudize of the Federal Court of Austrai1a BETWEEN: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Apreliant AND: RENEE MAITAN Responcent CORAM: FOX, BEAUMONT AND GUMMOW JJ. RATE: 24 FEBRUARY 1998 REASONS FCR JUBGMENT FOX J. The apseliant was the respondent to an avoplicaticn unser the Administrative Decisions (Judicial Review) Act 1377 fFrs an order or review sresvecting decisions made in Sur3uance fF tne Migration Act 1958 ("the Act") by Mr Luu, the Delegate of tne Ministec. He decided not to grant to Mr Maitan, the sresent respondent, a further temporary entry permit or a permanent entry sermit but instead signed an order for his deportation. The application care before Wilcox J. who on 7 September 1987 set aside the decisions referred to including the decisicn to Gesort and remitted for further consideration the applications for the temporary entry permit and the permanent entry permit. i) rs ot The sresent appellant has filed a notices of appeal and 32 supplementary notice of appeal and the »sresent respcndent the applicant betow) has filed a notice of contention. The learnea Judge Summarised the basic zssue in vhe ul fu u ao nn his openiny words as follows:- "This case turns upon the adequacy of the considaeraticn, given by the delegate of the respondent Minister for Immigration and Ethnic Affairs, to an application rade by the applicant for the grant to him of a permanent entry permit uson occupational grounds. In particular there 1S 4 questron whether, in considering an application for such a permit made by a non-citic already ain Australia, the delegate ais obliged tc consider the nature cf the work being vcerformed by the applicant. or capable of being performed by him or h er insofar as that is made knawn to the delegate, togeth with the question whether a work sermit shculd be 1ssued." The respondent was born in Switzerland in June 1962. He eame toa Australia in November 1982 as a tourist, having Deen granted a temporary entry permit which was valid fcr a ceriod cf 31x months. It was clearly stated on the permit and the applicant knew that 1t was a condition of the grant sf the yeriuit that he not work in Austraiia unless authorised (2.€A07.>. ce was not granted any Turther orf ctrer cecmit, and hence frem the came cf expiry of his permit was a prohibited "on-citicer (s.7(3)). In about January 1986 the respondent applied to become an Australian citizen and in January 1987 his applicaticn vas rejected on the basis that he had not been resident for tno years. On ll February 1987, in response to a letter from the Department of Immigraticn Mr Maitan phoned the Department concerning his c2tizenship application and informed them that he was working in Collarenebri. He was told that he sheuld not ke working and was asked ta come to the Sydney cffice oF che Department te discuss nis departure from Australia. Gn 29 Agrii 1387 he got ain touch with the Parramatta cffice of the Department. again regarding Fis c1ticzenshic acoplication, but he was told chat he was net eligibie for -itizenship and shouid contact the enforcement section. According to the evidence he said that ne had been told by the local member of Parliament that he should depart Austraira. In 31 May 1987 he was located at Cocpernook, arrested pursuart 'to s.38 of the Act, and taken into custody at the Immigration TPetention Centre at Villawood. On 16 June 1987 Mr Maitan made apolication for tne grant of resident status, in reliance upon s.6A(1i)(d) and s.6A(1)ie) of the Act. He apparently had not aprelied for a further temporary entry permit although consideration of the applicaticsn Ey orficers of the Department sroceeded on the footing that 1F a case was made for permanent resident status a temporary entry pecmit would srobably be granted, the latter <reing R pre-condition to the grant of a permanent entry permit ander s.6A(1)(d) and s.6A(1)(e}. Whilst ain Australia, Mr Maitan had worked on far- properties, being engaged in work of an agricultural ratur=. He rs commenced working 1m austyaiia in arout May of 7993 for a My Pike on a herb farm rear Wingnan. He stayed with Mr PLiKe fice approximately two years (until Mr Pike mad te sell che properss aue to Financial 4ufficulties)+ worklng pacely "oF sracd ani ledging- About the time he Lodged nis citizenship ape icaticr pea Tanuary poe6 Mr Maitan met Mr Aczoparc:. me Lahbter saned a sturcawrercy and tomato farm rea Lay td w rs fi) ob pi) 2D fon oO Ft r, c Bp a w D fen if eiat iv ia) ra ww spoe in Taree. My Maivan commenced working £cr My Azcrpa: il ang cerained witi hat until Nevembecr 1986 when My Martan reft <o abtain enployment on a cotton farm ir secommer.ced working for My Aczcpard: +" about Canuary 19a7 and worked on the latter's farm until his arrest 07% 22 May 1937. so far as appears Mr Maitan had overseas qualifications in aqyic rtural wort and that was nis interest. Tye Tase AAS 20 far turned on what has peen vegacded ad an ynade y.27= songi1aerat on by che responsible officers of Mr Maitar 5 skit ana interes» in agricultural matters. they reached Mr Luu. Te was first considered by two sayy cathe officerse (Mr Gipiett ard Ms Peters) Doth cf whom qmere agrytF- recommended bo the Regional Director of the Derartment 2% sydney chat he refuse 62 arant either a terporary or 2 germarnent entry oermit, and 'chat Re sign 4 deportation order. Me 'zlsen's recommendation was endorsed py Ms Nichol, Acting Directicr of tne Migration and Visitor Entry Branch. The report was then considered by Mr Luu, whcse aecisions I have noted. In stating his decisions Mr Luu says "I have reac canis submission totalling Mine (3, pages and the annexures 'A' to a » Mr Guu was not unlixeiy that Me Muu, a senior officer with wide and heavy had Scone as he stated and read thisudh the attachec documents which the learned Judge descrited as quit2 voluminous. On the hearing of this appeal, counsel for the respondent has disavowed any submission that Me Luu haa not aone as he said, but it 1s asserted that Mr Luu did not cansider, cr jdic not adequately consider the report. When asked to vrovide a statement of his reasons under s.13 of the Admiristrariv fa Decisions (Judicias Review) Act 1977 Mr Luu did 50 by adcoting Mr m is fu Wzlison's report without any further elaboration. The ged acsence of attention to the documents by Mr Luu was an ingortant part of his donour's reasoning, The ceport ovoreparced by Mr Wilson shcws chat the Devartment knew at cne stage that the cessondent was wording a: Collarenebri and at some stage he was residing at Taree and that ne Was arrested at Cccpernook. Tt goss an to state Mr Maitan 3 Claim that he had obtained a certificate of agyricuiture tr mo Ewrtcertaad and had been assistirg Mr Aczoward: at Tares wiin nis fruit and vegetable farm and associated retail store and that one of the factors which would weigh against deportation was that 'an Australian resident Mr Billi Azzopardi would suffer nardshio as ne would not have the aid of Mr Maitan on Als farm and in «ais store..." Cne of the annexures to the report ('in fact the application for Australian citizenship dated 23 January 19487: shows Mr Maitan's cccupation to be that of an agriculturist anu he stated at the time that he was '''self-employec by gzcowirg vegetables and herbs". Another document, a cesort of interview with an immiaration cfficer, Mr Skene, dated 2 to the agricultural cectificate, and that fhe work che ait everseas was agricultural in nature, that in Austrailia vart if his wore was full-time and part of nis work (on tne hers fare, ledging oniy. In his applicaticn for resident status he shows his addresses ain Austraila as inciuding Wingham, Taree, Collarenebri and central Lansdowne. In the same applicaticn in the secticn dealing with immigration history xe refers «3 the work performed Dy him "as dipping, irrigating, farm work ane astaplishment cf herb farm". In Part A of his applicaticn fer resident status on strong compass1lonate or humanitarian grturds + + C "2 situation of Mr Azzopard1l and *1s cficse ha uw x hey cr lo" ne dea cS r@elaztionshis with him and refers to the latter's farm. In Pact ef his application for resident status on occupaticnal grounds he deals rather fully with his agricuitural experience and qualifications befcre coming to this country. Ina hana written document written at the Detention Centre he refers répeateci his iantersst an farming and agriculture. A report, to wnith = have referred, by one of the earlier investigating officers "rs Glilett), with which another officer (Ms Peters) agreed, refers to the agricultural certificate and how Mr Azzopardi would s.iffer hardship in relation to the conduct of his farm and fruzt anc vegetable shop if the respondent were to be deported. = have already mentioned the report of Mr Wilson. It is true that these reports are bureaucratic and emphasise the legal situation. The respondent was arter alla prohirited nen-cltizer "ot TG word in clree years or ou fe in rt le bh LH) ajtthorities, by! 5A.(7) oO Sine ancorrecy c , had committed a breach of his uncertaking Australia, and had yenained itn 'this ctcountry fer ere after the expiry of nis perme. were Or S8VASlVe answers sometimes given Evo um ii wh (b) a ectry permit shall not be aranted to a2 a-citicen after his entcy intc> Australia unless € cr more of th following conditions is ifalled in ressect of nim, that is ta say - ) he is the holder of a temporary entry scerrit which is in force, 18 authcer:zed te work in Australia and 1s "OL a cresericed non-citizen; or ) Re 1s the holder of a temporary entry ser n which 1s an 'ferce® ana there are atre comtasslonate or humanitarian grounds 7f the grant of an entey permit to him. r the purposes of sub-sectiun wl}, a xerzcr cnt the holder of a temporary entry scermit granted ter 283 Octeser 1979 shail be taten co ne thorized t3 works in Australia - ) 1F ctcnat temeorary entry perrit granted subject <2 ary condition ce@otrictians with respect to tne aay be scerformed Dy Aim in Australi if that temsorary entry permit was granted subject to a condition imposing restricticns on his performing work other than specified work or work of a specified xina in Australia; or af that temporary entry permit was grantel subject to a condition imposing :estricticns on his vserforming any werk witno.t the permission, in writings, cf an authtzices officer. and such a permissisn in writing has been given and has not been revoked. oA. (3) In this section, a reference to an entry xvermic shali be read as a reference to an entry permit other than a temporary entry permit. It 1s plain that permanent residence cannot ce xranted unless the applicant is first the holder a roa Cemesracy ertly permit. As I have already said 12 seems to be the pratcicze c..at 1f vermanent residence is justified a temporary entry permit will be granted and so far as paragrapm (ad) sf s.6A(1) is conc2rnel tne provisians of sub-section (7) can ke satisfied. The fact is hawever, chat attention must first be directed to the grant of the temporary entry oermit. This i5 a matter that seems wholly discretionary, 2n the sense that there are no statutery uw u Py guidelires. There are of course broad limits to the exerc the Giscretion, but 1t 15 unnecessary to caiscuss tnese. The challenge toa the exercise of the discretion ais largely made through the treatment of the application wander s.6A(1) for the grant of permanent residence. It 25 saia 17 relation to that application that irrelevant matters wers considered and relevant matters not considered. Ta tais aspect I will return. The fact 1s chat Mr Luu, a Delegate, refusei the application for a temporary entry permit which was 'f-:eated as made as a basis for the s.6A application. There has seen no complaint, andon the facts probably could ke none, tnat "tr Mai:tan was unaware that he was, at least by implication. akira an application unaer s.7(2) for a further temporary entry serrit. The fact that he did not have one was fatal to his application under s.6A(1) in reliance on varas. (d) and (2). In selation te vara.(d), he was also unable to shew that he was "authorised to work in Australia." In my view, the decision not te grant a temporary entry wermit was mot affected by any of the circumstances set mut ia 3.5 cf the Administrative Decisicns \Judic:al Pevrew) Sct 1s77, with the result that the respondent coul@ not have become a eermanent cesident. Submissions made by way cf challenge tended to overlook the fact that relevant, and isrelevant circumstances for the purposes of s.5 need to be something more than incidental faccuail matters no matter how important they can be made to seem. Relevant facts to be taken into account must be those reduiced ty the relevant Act (expressly or impliedly) ts be considered. This can pe put another way by saying that they must oe required cy 'he purpose and scope of the legislation in question. one 2 o ro) coking te legality. A converse rfosition applies in relatia os rt ue considerations taken into account, but submitted tz ty Og irrelevant. In the present case, the discretion being 50 wide, and o id)u xv y pe a iy t a] viously dependen= on such a wide variety of facc re parc relate ta immigration policy, there 1s no basis for a successful challenge under s.5, so far as concerns the application under s5.7(2). It is not necessary, or useful, te consider submissions which have their basis simply in the s.cA application, but I will mention some matters raised by "ne respondent, in reliance uson that section. It is submitted that for the purposes of s.6A the Gecision-maker did not take anto account, or did not sufficientiv take into account, the alleged hardship of Mr Azzopard:. In this connection it is put that while the pos:tion concertung Mr Azzopardl appears in the documents, which Mr Luu read, ther2® is not apparent frcm any note he or anyone else -vwace - ry He ahora Fi tte t is a sufficient answer to this td considered the position. submission that it should not be assumed that he did net vive that factor such we:ght as he thought appropriate. The situaticin uw was stated by Mr Wilson in his report. ft would not be fatal if the 3.13 statement made ro reference to the matter, but in his statement under that section Mr Luu says: "T based my decision on the attached submission fron Richard Wilson dated 9 July 1987 and the annexures thereta, T adopted the findings at Part A of that submissisn as my findings on material questions of fact. i accepted these findings of fact on the evidence tefore me as set out in Part B of that submission. I adopted the reasconing set out in the assessmert at Part C of that submission and that sets out tre reason for my decision," A matter strongly pressed on oehalf of the resserdent —-s Nn thac Mr Luu did not. or did n oO t adequately, consider vwaat was stated shertly as "occupaticnal grounds". This, :ndeed was the primary dJudge's finding but made cn a basis now iisavowed. "Occupational grounds" referred to Mr Maitan's skill, experience + and knowledge cf agriculture. Tt 1s because of this aspect tha rag T have earlier gone through the documents seen by Mr Luu and He) extracted passages dealing with agriculture. There can be doubt that this position was clear to anyone studying the r 'a oO Led ct >t H i i) OQ o) and annexures and it shouid not be assamed that sither Mr we oD ia) EF] 'D fs or Mr Luu fail a @ to give it such weight as te then appropriate. Th oO A o Ww ia o a Qa mh gz oO ight was a matter solely for them. it rr pu ff rm iy In my opinion the appeal should be allowed, the rh made by the primary judge set aside, and in lieu thereo shouid be ordered tnat the application se dismisseca. T certify that this and tne ten (10) preceding rages are a true copy of the Reascns for Judgment herein =F his Honour Mr. Justice rox. Associate: Sharon Kosta Date: 24 February i3 IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY No. G468 of 1987 GENERAL DIVISION ON_APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Appellant AND: RENEE MAITAN Respondent CORAM: FOX, BEAUMONT AND GUMMOW JJ. PLACE: SYDNEY DATE: 24 FEBRUARY 1988 REASONS FOR JUDGMENT BEAUMONT AND GUMMOW JJ. The Minister for Immigration and Ethnic Affairs appeals from orders made by a Judge of the Court getting aside several decisions made on behalf of the Minister under the Migration Act 1958 ("the Act") and ordering that the matter be remitted to the Minister for further consideration according to law. The respondent, Mr. Maitan, was born in Switzerland on 20 June 1962; he is not an Australian citizen; in the language of the Act, he is a "non-citizen" (see s.5(1)). After leaving school, he undertook an apprenticeship as a farmer and obtained a certificate in agriculture from a college in Berne. He entered Australia in November 1982 as the holder of a visitor's visa. He stated on his incoming passenger card that he was entering Australia as a visitor or temporary entrant; that he intended to stay in Australia for six months and that his main reason for coming to Australia was a holiday. The respondent was then granted a temporary entry permit under s.6(6) of the Act which was valid for a period of six months. Under that provision, an entry permit that is intended to operate, in the case of a non-citizen, as a temporary entry permit shall be expressed to authorise 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. Such a permit may be granted subject toa condition imposing restrictions with respect to the work that may be performed by the holder in Australia, including restrictions on performing any work (s.6(6A) cf. s.6A(7)). The respondent's temporary entry permit was endorsed "employment prohibited without written permission of an authorised officer." The respondent did not leave Australia at the expiration of the six month period. In about May 1983, he commenced working on a herb farm in Wingham; the Minister's permission to do so was not sought. He remained in that employment for some time and was later employed to work on a tomato farm near Taree. In January 1986, the respondent applied for Australian citizenship. The application was rejected; the respondent was informed of this in January 1987. In May 1987, the respondent was arrested and taken into custody pursuant to the power conferred by s.38(1) of the Act. (Upon the expiration of a temporary entry permit, the person who was the holder of the permit becomes a prohibited non-citizen unless a further entry permit applicable to him comes into force upon that expiration (s.7(3)). An officer may, without warrant, arrest a person whom he reasonably supposes to be a prohibited non-citizen (s.38(1))). In June 1987, the respondent applied for the grant of a "permanent" entry permit. It is this application which was the subject of judicial review in the proceedings before the learned Judge under the Administrative Decisions (Judicial Review) Act 1977 ("Judicial Review Act"). Entry permits are dealt with by Division 1 of Part II of the Act. An entry permit may be granted to a non-citizen either upon his arrival in Australia or, subject to s.6A, after he has entered Australia (s.6(5)). An entry permit (i.e. a "permanent" entry permit as distinct from a temporary entry permit granted under s.6(6)) shall not be granted to a non~citizen after his entry into Australia unless one or more of the conditions specified by 3.6A(1) is fulfilled in respect of him. Five conditions are there specified. Por present purposes, mention should be made of the following: (d) He is the holder of a temporary entry permit which is in force, is authorised to work in Australia and is not a prescribed non-citizen; or (e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him," It follows that no permanent entry permit could be granted to the applicant under s.6A(1)(d) or (e) unless he held a temporary entry permit which was then in force (see Tang v. Minister for Immigration and Ethnic Affairs (1986) 67 A.L.R. 177 per Davies J. at pp.182-3). At the time of his application for a permanent entry permit (January 1987), the respondent's temporary entry permit had expired. However, by s.7(2), it is provided that "at any time...after the expiration...of a temporary entry permit, a further entry permit may, at the request of the holder, be granted to the holder." There was accordingly power, first, to issue a further temporary entry permit to the respondent under s.7(2) and then, that having been done, to grant him a permanent entry permit under s.6(5) provided the grounds stated in s.6A(1)(d) or (e) did exist (see Kioa v. West (1985) 159 C.L.R. 550 per Gibbs C.J. at p.561; per Mason J. at pp.580-2). To adopt the language of Mason J. in Kioa, the respondent would have been eligible for the grant of a permanent entry permit if he were first granted a further temporary entry permit provided that, to take para.(e) of s.6A(1) as an example, "strong compassionate or humanitarian grounds" for the grant of such a permit existed (see at p.582; see also Gunaleela v. Minister for Immigration and Ethnic Affairs (1987) 74 A.L.R. 263 at p.280). The power to grant a permit under ss.6, 6A and 7(2) is clear; but the present question is not whether the relevant power exists; the question is whether the power should be exercised in the particular case and this is a matter for the decision of the Minister in the exercise of his statutory discretion. As Gibbs C.J. said in Kioa (at p.565): "A prohibited immigrant who seeks a permanent entry permit under s.6A asks for the exercise of two discretions in his favour - first under s.7(2) and then under s.6A. It is to be noted that the conditions stated in s.6A(1) restrict the power to grant a permit but not the power to refuse one. Only if a condition is fulfilled may an entry permit be granted, but the fulfilment of a condition does not oblige the Minister or other authorized person to grant an entry permit." In the first instance, the respondent's application, described as one for the "grant of resident status in Australia" was considered by Mr. R. Gillett, an immigration officer. In his written report dated 18 June 1987, Mr. Gillett considered the Possible application of paras.(d) and (e) of s.6A(1) but recommended against the grant of a further temporary entry permit and further recommended against the grant of permanent resident status. His recommendation was supported by another officer, Barbara Peters. The application was then referred to a more senior officer, Mr. R. Wilson, Acting Assistant Director, Compliance and Criminal Deportation. In his report dated 9 July 1987 addressed to the Regional Director of the Department in Sydney, Mr. Wilson recommended that the Director refuse the grant of a temporary or permanent entry permit and that the respondent be deported. These recommendations were endorsed by Mr. A. Nicholl, Acting Director, Migration and Visitor Entry Branch. On 13 July 1987, Mr. Tuong Quang Luu, the Director for New South Wales and Delegate of the Minister, decided to accept each of Mr. Wilson's recommendations. At first instance, the respondent sought judicial review on several of the grounds for review specified in s.5 of the Judicial Review Act. The trial Judge found in favour of the respondent on one of these grounds, holding that Mr. Luu's decisions should be reviewed and set aside because his decision-making process failed to take into account a relevant consideration (Judicial Review Act, s.5(2)(b)). The relevant matter not taken into account was held to be the respondent's "employment position". His Honour's reasons for this conclusion may be summarised as follows: (1) As was recognised by the immigration officers, it was within their power to grant a temporary entry permit which also authorised the respondent to work in this country. (2) It was thus "open to Mr. Luu to give effect to any view he might form as to the desirability of granting [Cthe respondent] a permanent entry permit upon occupational grounds." (3) "In the absence of statutory criteria, a decision-maker is free to take into account such factors, in the exercise of his discretion, as he...thinks fit." (4) Under the Act, there are "positive indications of the considerations appropriate to be taken into account" in an application for a permanent entry permit. (5) Although an "over-riding" discretion to refuse a permit remains, the five paragraphs of 3.6A(1) "constitute a list of matters whose application to the particular case must necessarily be determined..." (6) This "required the...officers to consider the merits of the Crespondent's] case CputjJ...upon occupational grounds." (7) Mr. Luu was thus bound to consider ? the material submitted by the respondent in support of his claim insofar as it was based upon occupational grounds. (8) The evidence "suggests" that Mr. Luu did not consider this material: (a) it was unlikely that an officer as senior as Mr. Luu would read through the material; (b) Mr. Luu merely chose to adopt Mr. Wilson's document as his own; (c) Mr. Luu was not called. With all respect, it is difficult to accept this analysis. In the first place, it is necessary to consider the legal character of the initial discretion, that is to say, the discretion to grant a temporary entry permit. As has been said, unless that permit is granted pursuant to s.7(2) (cf. 5.6(5)), the exercise of the ultimate discretion to grant a permanent entry permit under s.6 (read subject to the restrictions in s.6A(1)(d) or (e)) cannot arise for consideration. In our view, the decision to refuse to grant a temporary entry permit was not vitiated by any error capable of review under the Judicial Review Act. Neither $.6(5) nor s.7(2) specify any criteria for the grant of a temporary entry permit. It follows that, although "entirely personal and whimsical considerations" will be excluded (per Stephen J. in Murphyores Incorporated Pty. Ltd. v. The Commonweaith (1976) 136 C.L.R. 1 at p.12; see also per Mason J. at pp.17-18), an examination of the subject matter and the scope and purpose of the Act is necessary to enable a court to hold that the reasons given for the exercise of a statutory discretion "to be extraneous to any objects the leqislature has in mind" (per Mason J. in Murphyores at p.23). In Murphyores, a challenge was made to the validity of a decision under the customs legislation. Mason J. said (at p.24): "There is, I should have thought, every reason for supposing that, within the framework of customs legislation, a discretion to permit the exportation of goods by way of relaxation of a prohibition, a discretion which is not expressed to be subject to any limitation, was intended to be wide enough to embrace every consideration reflecting advantage or disadvantage, benefit or prejudice to Australia, flowing from the approval or refusal of an application." In our opinion, this reasoning is equally applicable to the exercise of the statutory discretion to grant, or to refuse to grant, a temporary entry permit. In other words, the discretion is to be exercised in the light of what, in the judgment of the Minister, is in the best interests of Australia. In deciding what is in the public interest, the Minister will need to balance the competing claims of possible advantage on the one hand and of possible detriment on the other so far as the national interest is concerned (see Salemi v. McKellar (No _ 2) (1977) 137 C.L.R. 396 at p.402; Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at p.655; The Queen v. Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd. (1979) 144 C.L.R. 45; Minister for Immigration and Ethnic Affairs v. Conyngham (1986) 68 A.L.R. 441 at p.450). To determine whether it is in the interests of Australia to grant, or to refuse to grant, a temporary entry permit is essentially a matter for the judgment of the decision-maker (see Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 66 A.L.R. 299 at p.309). As Lord Brightman said in Puhlhofer v. Hillingdon London Borough Council [£1986] A.C. 484 at p.518: "Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of the fact to the public body to whom Parliament has entrusted the decision-making power save ina case where it is obvious that the public body, consciously or unconsciously, are acting perversely." In Regina v. Secretary of State for Social Services, Ex parte Wellcome Foundation Ltd. £1987] 1W.L.R. 1166, Sir John Donaldson M.R. said (at p.1175): "Good policy-making, administration and decision making involve studying problems from all angles. It is a practical process and must never be allowed, and still less induced, to become a theoretical or legalistic exercise." In the present case, it is not, and could not be, suggested that the decision-maker was actuated by any personal consideration. Nor, in my opinion, could it be said that, in refusing to grant a temporary entry permit, Mr. Luu failed to take into account a matter that he was bound to take into account (see Minister for Aboriginal Affairs v. Peko-Wallsend Ltd., supra, per Mason J. at p.308). As has been said, what Mr. Luu was bound to take into account was the public or national interest. It is not, and could not he, suggested that Mr. Luu overlooked this consideration. However, the learned Judge appears to have assumed that because an authority to work in Australia is mentioned in s.6A(1)(d), "occupational grounds" are a matter which a decision-maker is bound to take into account in deciding whether to grant a temporary entry permit. With all respect, we cannot . 10. agree. Whilst the decision-maker wag entitled to take such a consideration into account, the only matter which Mr. Luu was bound to take into account in this connection was the public interest. As has been said, how the national interest would best be served was essentially a matter for the judgment of the Minister or his delegate considered in the light of the circumstances of the particular case. This is not to say that a decision made without reference to the skills of an applicant for an entry permit may not be invalid. In an extreme case, it may amount to a failure to address the real question required by the legislation to be addressed (see Sinclair v. Mining Warden at Maryborough (1975) 132 C.L.R. 473 per Barwick C.J. at p.480). This would be a constructive failure to perform his duty (see Sinclair, supra, per Gibbs J. at p.483; Turner v. Minister for Immigration and Ethnic Affairs (1981) 35 A.L.R. 388 per Toohey J. at p.392). His Honour found that Mr. Luu did not consider properly, or perhaps at all, the "occupational" material presented on behalf of the respondent. in our opinion, this conclusion cannot be sustained. It was, and still is, common ground that Mr. Luu read all the material furnished by the respondent. Mr. Luu's function was to consider the material and determine the application for a temporary entry permit in the light of his judgment of how, in the circumstances, the public interest would best be served. In our view, no case of constructive failure to perform the duty to consider the application for a temporary entry permit could be sustained. " 11. For completeness, it should also be noted that, given the circumstance that the respondent had become an illegal immigrant and that the Executive Government had in place a policy against ""queue-jumping" by illegal immigrants, no claim could be made here that the decision to refuse a temporary entry permit was made perversely or unreasonably in the Wednesbury sense. It follows, in our view, that no basis exists under the Judicial Review Act for challenging the refusal to grant the respondent a temporary entry permit. Whether Mr. Luu's decision was the "correct" one, in terms of the merit or lack of merit of the application, is not for us to consider. As has been noted, it is common ground that the grant of a temporary entry permit is a condition precedent to the grant of a permanent entry permit. Since the challenge to the refusal to grant the temporary entry permit fails, it is unnecessary to consider the submissions put on behalf of the parties with respect to the construction and operation of the provisions of s.6A(1) dealing with the grant of a permanent entry permit. We would propose that the appeal be allowed with costs; that the orders at first instance be set aside; and that, in lieu thereof, the application be dismissed with costs. wise ry a Pn I certify the e@cuewy (wr) preceding pages to be a true 12. copy of the Reasons for Judgment of their Honours Mr Justice Beaumont and Mr. Justice Gummow. Associate: Date: 24 February 1988 Counsel for the Appellant: Solicitors for the Appellant: Counsel for the Respondent: (A Fase? ) Mrs. P. Flemming Q.C., Mr. R. Cogswell Australian Government Solicitor Ms. C.C. Simpson Solicitors for the Respondent: Messrs Ferrier & Associates Date of hearing: Date Judgment delivered: Sydney - 12 February 1988 24 February 1988 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G468 of 1987 ) GENERAL DIVISION ) ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN : MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Appellant AND: RENEE MAITAN Respondent CORRIGENDA Amendment to the judgment of their Honours Mr. Justice Beaumont and Mr. Justice Gummow dated 24 February 1988 - Line 21 "my" to read "our" (Mark Lamb) Associate to Gummow J. 11 March 1988 Mh fh .