IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No VG 414 of 1988 GENERAL DIVISION BETWEEN: YUE HO CHAN (Applicant) AND: THE MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS (Respondent) . Judge Making Order: Ryan J. Date of Order: 8 December 1988 Where Made: Melbourne MINUTES OF ORDER THE COURT ORDERS: 1. That the application for an order of review be allowed. 2. That the decisions of the respondent, The Minister of State for Immigration, Local Government and Ethnic Affairs ("the Minister") :- (i) to refuse the applicant's application dated 6 October 1988 for resident status (ii) to deport the applicant be set aside with effect from this day. NOTE: That the matters to which the decisions relate be referred to the Minister for further consideration in the light of the reasons for judgment published this day. That the respondent pay the applicant's taxed costs of the application including the costs reserved on 17 November 1988 but not including the costs of the application for an order that the applicant be released from detention. Settlement and entry of orders is dealt with in 0.36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No VG 414 of 1988 ) GENERAL DIVISION ) BETWEEN: YUE HO CHAN (Applicant) ig THE MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS (Respondent) Coram: Ryan J Date: 8 December 1988 Place: Melbourne REASONS FOR JUDGMENT The applicant, a Malaysian national, . arrived in Australia on 31 August 1981 as the holder of a_ temporary entry permit. She overstayed that permit, and, on 28 December 1983, married an Australian citizen, Shane Michael Wellington. She thereupon, on 22 February 1984, made application for resident status. On that application, she gave her address as 500 Flinders Street, South Melbourne, which was her husband's then place of employment. She and her then husband have explained that she gave that address instead of her residential address, Flat 6, 8 Tivoli Road, South Yarra, because they then contemplated moving from Tivoli Road to another address. Mr Wellington has also sworn that after the application was lodged he made enquiries on behalf of the applicant of the Department of Immigration and Ethnic Affairs ("the Department") and was told that "they couldn't find the file and not to worry". On 2 August 1984, the Department wrote to the applicant under the name of Mrs Y.H. Wellington at 500 Flinders Street, South Melbourne. That letter was returned unclaimed and it was noted on 3 September 1984 on a departmental movement record enquiry "no other addresses or phone numbers on file to try". (No telephone number had been given by the applicant on her application for resident status.) Another attempt was made to communicate with the applicant by mail addressed to 23 William Street, Brighton, which was shown in departmental files as having been given by her at the time of her entry into Australia. The document sent to that address was also returned unclaimed. In November 1984, a departmental minute concerning Ms Chan's application was made in these terms:-— "The abovenamed arrived in Australia 31/8/81 and was issued TEP valid for one month on arrival. It would appear she married in Australia 28/12/83 and applied for permanent residence 22/2/04 (marriage certificate and evidence of spouse's residence/citizenship here not been sighted). Since then we have been attempting to contact her but have been unable to. Letters have been sent to addresses held on file but these have been returned 'not known at this address'. As applicant's whereabouts are unknown, I recommend that case be refused and referred to Control for their further action." A notation made on that minute by another officer of the Department on 30 November 1984 is in these terms:- "Recommendation is supported ~- rejection required in line with Enforcement procedures, prior to commencement of investigations." A further note was then made by a senior officer of the Department on 1 February 1985 that "Application rejected". A subsequent minute on the departmental file dated 4 February 1985 is to this effect "advised by Mrs Daskacopoulos from Residence current address of Mr and Mrs Wellington Flat 1/8 Tivoli Road, South Yarra". I have been informed that Mrs Daskacopoulos was then an officer of the Department. There is no evidence of the source of the information which she apparently provided, but Ms Chan has deposed that between 1984 and 1985 she had "access to and use of" Flat 1, 8 Tivoli Road, although living at Flat 6. It is therefore probable that she or her then husband notified Flat 1, 8 Tivoli Road to the Department as her address. On 18 February 1986 as a record of a telephone or counter enquiry reveals, a request was made that the applicant "requires passport for revalidation". On the same record, the applicant's address was noted as 1/8 Tivoli Road, South Yarra. On 19 March 1986, a further record of a telephone or counter enquiry indicates that Mrs Doris Wellington had claimed to have "applied 1984, no word since". No address for the applicant was noted on that record. On 15 April 1986 an officer of the Department wrote to the applicant at 1/8 Tivoli Road, South Yarra, requesting her to contact the writer about her status in Australia. That letter was also returned unclaimed, and it appears. that departmental enquiries were made to establish that the block of flats was owned by a Mr Hellinger of Caulfield, and to ascertain the names of the present and immediate previous customer of the State Electricity Commission for supply of electricity to Flat 1. However, it does not appear that any enquiries in respect of the applicant were made directly of either Mr Hellinger or the then tenant of Flat 1. By letter dated 12 June 1986, representations were made on behalf of the applicant by Mr Hunt, then Leader of the Opposition in the Victorian Legislative Council, requesting that action be taken about her allegedly missing passport. Apparently in response to a telephone call from the Department on 4 July 1986, a member of Mr Hunt's staff advised that "she will check their records for a_ current address". Later, on 23 July 1986, the same member of Mr Hunt's staff advised that the applicant had approached the office of Mr Shipton, M.H.R., "who will ask her to come into Enforcement". Then, on 10 September 1986, the following three minutes were made on the applicant's departmental file, all by the same officer:- "Rang Shipton's office and spoke with his secretary who remembered the applicant. She was somewhat reluctant to provide her address but said that she is residing at an address that we have on file. I explained that we have several addresses on file and that if we pick one at random we are likely to miss her altogether. She will go through her papers and ring me back. Shipton's office rang back. They believe that she may live at the Tivoli Road address, but are not 100%. They do know however that she works as a waitress at David Ong's restaurant, the Lotus Palace. (Interpolated above the reference to the 'Tivoli Road address' are the words '1/8 Tivoli Road South Yarra'.) Phil please check at the Tivoli Road address plus run Medicare checks etc. If no definite result surveillance of Ong's may prove fruitful." There is no evidence that any approach was made to either Flat 1, 8 Tivoli Road, oer to the Lotus Palace restaurant to find the applicant's whereabouts. The applicant's marriage to Mr Wellington apparently broke down in 1985 or 1986 and was dissolved by a decree of the Family Court which became absolute on 19 April 1987. On 3 October 1988, the applicant was located at Flat 6, 8 Tivoli Road, South Yarra, by departmental officers. She was taken into custody at the Maribyrnong Detention Centre, and interviewed on the same day. On 6 October 1988 she made another application for resident status, relying this time on strong compassionate or humanitarian grounds. It is the refusal of that application and the consequent decision to deport her which the applicant seeks to review under' the Administrative Decisions (Judicial Review) Act 1977. In reasons for the refusal supplied in accordance with s.13 of that Act, Keith Thomas Owen, the State Director of the Melbourne office of the Department, has stated:- "18. The applicant has committed offences against the Migration Act 1958 in becoming a prohibited non-citizen and by working without the written permission of an authorised officer for over 7 years. 19. I. took into account the comprehensive policy on illegal immigrants, tabled in the House by the then Minister on 17 October 1985. The policy stated, among other things that 'Australia has a planned migration program with selection processes carefully designed to balance the numbers that can' be settled in various categories. Management of the program relies heavily on issuing visas and entry permits in good faith to bona fide applicants'. The statement clearly makes the points: 'It is not open to people from anywhere in the world to decide, of their own volition, that they will live permanently in Australia. If, in attempting to do so, they break Australia's laws, they must expect to face the consequences, including prosecution and removal from Australia, by deportation if necessary'. and 'The ability of illegal immigrants to remain concealed in the community, and to support themselves by working - although without permission - is sometimes portrayed as a virtue. Some illegal immigrants claim this as evidence of their ability to settle in Australia, which deserves a sympathetic response in the form of permission to live here permanently. The policy can give no such reward for offences under Australian law'. 20. It was open to me to grant to the applicant a further temporary entry permit, but in view of her breaches of migration law, policy and conditions of entry, I decided against the grant of a further temporary entry permit. 21. In regard to permanent stay in Australia, the applicant had said that she was used to. the way of life here after so many years and that she loved Australia. She had lodged two applications for resident status, one on 22 February 1984 on the grounds of marriage and the other on 6 October 1988 on compassionate or humanitarian grounds. 22. The first application was rejected due to the applicant's failure to supply the required documentary evidence which is a prerequisite for assessing all applications made on the basis of marriage to an Australian citizen or resident. Despite efforts made by the Department to contact her prior to assessing the application, no contact was made by the applicant. Even if this information had been available grant of residence status on the grounds of marriage is not guaranteed. Each application is assessed on its merits in accordance with law and policy. On the evidence available, and because the applicant's whereabouts were unknown, her application was rejected, even though she may have met the legal precondition of S6A(1)(b). As she had been illegally in Australia for over two years at the time she lodged her application for change of. residence there were no Departmental avenues of appeal available to her. 23. The second application, lodged after the applicant's apprehension has been assessed in detail and a_ recommendation was being made that it be rejected. 24. In considering the claims raised in the applicant's second application for resident status I had regard to the following factors:- - it could not be assumed that the applicant's first application for resident status, based on marriage grounds, would have been approved even if she satisfied the legal pre-condition for grant of permanent residence as the spouse of an Australian Citizen. - as the applicant was a prohibited non- citizen when she lodged the applicant's first application for resident status she was ineligible to lodge a formal application for review through the Immigration Review'Panel, of her case. - the applicant's family ties were much stronger in Malaysia where she has her parents and three brothers than in Australia where she has only one brother, with whom she had minimal contact. (She also has three brothers in the U.S.) - I gave little weight to the claim that the applicant had established herself here on the assumption that the first application had not been refused and she adopted the Australian way of life, as in doing so. she had committed offences against the Migration Act by working without written authority and becoming a prohibited non- citizen. : 25. I took into consideration that the applicant had been a prohibited non-citizen for almost 2 years and 5 months when she lodged her first application for resident status. For much of the time since the applicant's arrival she had no contact with the Department, worked without the written permission of an authorized officer and continued to do so until apprehended. When she did contact the Department to lodge her first application for resident status on 22 February 1984 she gave what was an address at which she apparently never resided and despite one phone enquiry from the applicant, and correspondence being forwarded to her after that date, and the. interest shown in the applicant's case by members of victorian and Commonwealth Parliaments' she continued,to have no contact with the Department despite Mr Hunt's office being asked to request her to contact the Department directly, until she was apprehended. 26. I accept that the delay in processing her first application may have been due in part to the significant workload of the relevant section of the Department and to unsuccessful attempts to obtain documentary evidence of her marriage and her husband's citizenship; and that she contacted the Department and may have been advised 'not to worry' about her application under S6A(1)(b). However, these factors would not, in my opinion, be sufficient to constitute strong compassionate or humanitarian grounds. 27. I considered, in all the circumstances, that Ms Chan had not established that there existed strong compassionate or humanitarian grounds for the grant of her resident status in Australia." Mr Rose of Counsel for the applicant at first sought to contend that she had been denied natural justice when her second application for resident status was determined. However, as later refined, his argument came down to a submission that Mr Owen as a Delegate of the Minister had failed to take a relevant consideration into account in the exercise of his power, and that his decision was thereby reviewable under s.5(1)(e) of the Administrative Decisions (Judicial Review) Act. For that argument to succeed, the applicant must first demonstrate that the consideration which she contends was not taken into account' was one which, as a matter of construction of the statute conferring the discretion, the decision-maker was bound to take into account; (Minister for Aboriginal Affairs v Peko-Wallsend Ltd. (1986) 162 C.L.R. 24 at 39). Ms Chan's application for an entry permit depended on her satisfying the requirements of s.6A(1)(e) of the Migration Act 1958 by being the holder of a temporary entry permit which was in force, and there being strong compassionate or humanitarian grounds for the grant of an entry permit to her. I therefore consider that the Delegate to the Minister correctly directed his mind first to the question of whether there were strong compassionate or humanitarian grounds' for the grant of an entry permit (other than a temporary entry permit) to Ms Chan. I also accept the submission of Mr Maxwell of Counsel for the respondent that whether a particular set of facts comes within the description of "strong compassionate or humanitarian grounds" is a question of fact to be resolved by the decision-maker. (See eg Girls' Public Day School Trust Ltd. v Ereaut [1931] A.c. 12 at 35; Attorney-General for the Isle of Man v Moore [1938] 3 All E.R. 263 at 267 and The -~ 10 - Australian Gas Light Co v The Valuer-General (1940) 40 S.R. (N.S.W.) 126). However, the Migration Act requires, on its proper construction, that all matters and circumstances pertaining to the applicant which could singly or in combination be reasonably regarded as constituting compassionate or humanitarian grounds, be considered by the officer to whom the request for an entry permit is made. The officer must then determine whether such of those matters and circumstances as he finds to have been established amount' to "strong compassionate or humanitarian grounds for the grant of an entry permit". It is only if an affirmative conclusion is reached at that stage that the negative condition imported by s.6A(1)(e) is satisfied so as to allow the unfettered discretion conferred by s.6(5) of the Migration Act to be exercised in respect of the applicant. Precisely because that discretion is unfettered, the fact that an applicatant has satisfied one of the conditions in s.6A(1) does not create any presumption, . however slight, that the discretion conferred by s.6(5) is to be exercised in favour of the application. It need not appear that the relevant consideration which an applicant contends has not been taken into account was adverted to by the decision-maker in the terms in which it is formulated by the applicant. Rather, the Court must be satisfied that the consideration has, in substance, not been taken into account; Bastiani v_ Repatriation Commission (1985) 5 F.c.R. 378 at 384. That determination of what, in substance, has been taken into account does not depend only -11- on the express terms of the reasons for decision. It may also be supported by inferences from the decision itself and the circumstances in which it was made, including what was put to the decision-maker by the parties. Thus in Turner v Minister for Immigration and Ethnic Affairs (1981) 55 F.L.R. 180, Toohey J. pointed out at 184:- "In many cases it will be clear whether or not the decision maker has taken a relevant consideration into account. That is not to say that the mere assertion by the decision maker that he has done so will conclude the matter. It may be possible. to demonstrate from a consideration of all the reasons leading to the decision, or indeed from the decision itself, that a consideration has not been taken into account in any real_ sense. Conversely the omission of an express reference to some consideration will not lead inevitably to a conclusion that it was not taken into account. An examination of the reasons for decision and of the decision itself may justify the inference that it was." The consideration identified by the present applicant as not having been taken into account was that she had some prospects of success had her initial application been examined and determined expeditiously while her marriage to Mr Wellington was still subsisting and while she therefore satisfied the condition stipulated in s.6A(1)(b) of the Migration Act. The Delegate to the Minister clearly regarded a certainty of success in the earlier application as a relevant consideration in determining whether the applicant could base her later application on strong compassionate and humanitarian grounds. Thus, it is recited in paragraph 22 of the reasons for decision that (emphasis added) :- "The first application was rejected due to the applicant's failure to supply the required documentary evidence which is a prerequisite for - 12 - assessing all applications made on the basis of Marriage to an Australian citizen or resident. Despite efforts made by the Department to contact her prior to assessing the application, no contact was made by the applicant. Even if this information had been available, grant of residence status on the grounds of marriage is not guaranteed. Each application is assessed on its merits in accordance with law and policy." To my mind, that passage suggests that the Delegate did not regard it as necessary to consider the existence or strength of a chance of success on the earlier application, once he had come to the conclusion that success was "not guaranteed". Further support for the view that the Delegate had regard only to whether the applicant's 1984 application would certainly have succeeded had it been determined while she was still married is provided by the first sub-paragraph in the second paragraph of the reasons for decision numbered 23 where it is recited:- "It could not be assumed that the applicant's first application for resident status, based on marriage grounds, would have been approved even if she satisfied the legal pre-condition for grant of permanent residence as the spouse of an Australian Citizen." In my view, that recital indicates that the Delegate confined himself to a consideration of whether it was _sectain, or "could be assumed" that the earlier application L a would have succeeded. That is borne out by the conditional form of the reference to the applicant's marital status "even if she satisfied the legal pre-condition for grant of permanent residence as the spouse of an Australian Citizen". The Delegate could only have found on the evidence before him in 1988 that the applicant did satisfy that legal pre- -~13- condition in 1984. Accordingly, by referring to possession of the relevant marital status in the protasis of a condition introduced by the intensive "even if", the Delegate made it clear that he regarded it as unnecessary to make a finding as to the applicant's marital status once it became apparent that even on the finding most favourable to her, the success of her 1984 application could not be "assumed" Or "guaranteed". I am reinforced in the view to which I have come by the fact that the Delegate referred in paragraph 19 of his reasons for decision to the "comprehensive policy on illegal immigrants tabled in the House by the then Minister on 17 October 1985". I have been informed by Counsel that' the policy in force before that date, in particular in 1984, was embodied in a handbook which contained the following passages:— "1.1.6 A person (described in the Migration Act as a 'non citizen' is eligible to be considered for the grant of a resident entry permit if he or she fulfils one or more of the legal conditions of section 6A(1). Once the legal conditions of section 6A(1) have been fulfilled an application for resident status is considered on its merits and with regard to Government policy. eee 1.2.3 An applicant who fulfils the relevant legal conditions can, as a matter of law, be granted a resident entry permit. The grant of an entry permit is, however, discretionary and the decision whether or not to exercise discretion to issue an entry permit is considered by reference to all relevant factors and the appropriate policy guidelines. ~ 14 - 3.6. Spouses, children, and aged parents of Australian citizens or permanent residents - Sub-section 6A(1i)(b) see also sections 4.2 and 10.5. 3.6.1 Spouses: Marriage to an Australian citizen or resident while fulfilling the legal require- ment of section 6A(1), does not, itself, confer an automatic right to resident status the grant of which is discretionary and is considered having regard to the merits of the case and with reference to policy guidelines. (See Section 4.2)." ' It was contended by Counsel for the applicant that the earlier policy reflected in the handbook from which I have just quoted was more flexible, or less directed to the refusal of applications for permits than the policy announced on 17 October 1985. Whether that be so or not, I consider that the Delegate's failure to refer in his reasons' for decision to the earlier policy (except inferentially in his conclusion that the success of Ms Chan's application in 1984 could not be "guaranteed" or "assumed") further demonstrates a failure to take account of the fact that, as the spouse of an Australian citizen, she had at least some prospect of succeeding in her earlier application had that been determined while she retained that status. It will be apparent from what I have already said that the fact which I have found was not taken into account was one which was' relevant in the sense that the Delegate was bound to take it into account. However, that does not conclude the matter because as Mason J. (as he then was) observed in Minister for Aboriginal Affairs v_Peko-Wallsend Ltd. (supra) at 40:- ~ 15 - "(c) Not every consideration that a decision- maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: see, e.g., the various expressions in Baldwin & Francis Ltd. v. Patents Appeal Tribunal TI959] A.C. 663, at p. 693; Hanks v. Minister of Housing and Local Government [1963] I Q.B. 999, at p. 1020; Reg. v. Chief Registrar of Friendly Societies; Ex arte New Cross Building Society [1984] 0.5. , at p. 260. A Similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: Reg. v. Bisho of London (1889) 24. Q.B.D. 213, tS pp. I36 227; Reg. v. Rochdale Metropolitan Borough Council; Ex arte Cromer Ring Mill Ltd. 3 All E.R. , at pp. I am not able to dismiss the consideration discussed above as so insignificant that the failure to take it into account could not have materially affected the decision. Its significance could well have depended on how the Delegate might have evaluated the prospects of success of the 1984 application had he.considered it in the light of the policy then prevailing. Just as the weight to be attached to a consideration taken into account by a decision-maker is largely for the decision-maker, (Sean Investments Pty. Ltd. v MacKellar (1981) 38 A.L.R. 363 at 375), so the Court should be slow to act on its own view that the weight to be attached to a relevant consideration which has not been taken into account is so insignificant that it would have made no difference to the decision-maker''s conclusion. In any event, I am unable to conclude that the consideration which I have - 16 - found has not been taken into account in the present case was so insignificant as to have been incapable of having materially affected the decision. Accordingly, the application for review must be granted. It may be that this result affords no more' than what Wilson J. in' Kioa v West (1985) 159 C.L.R. 550 at 603 called "a very slender technical victory" to the applicant. However, for the Court to exercise its discretion against the applicant for that reason would, I consider, run counter to the manifest concern of the Administrative Decisions (Judicial Review) Act to have administrative decisions made properly by those to whom they are entrusted. The decision to refuse to grant the applicant an entry permit, and the decision to deport her, are therefore set aside. Her application of 6 October 1988 for resident status and the matter of the deportation in consequence of the refusal of that application are referred to the Minister for further consideration in the light of these reasons. I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons' for Judgment herein of his Honour Mr Justice Ryan. AF. Jasna 2% | Associate Dated: ££ Wecemséer 49 FF