Goy, P.B. v Minister for Immigration & Ethnic Affairs [1995] FCA 69

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG383 of 1993 GENERAL DIVISION ) BETWEEN: PENG BON GOY Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent CORAM: Jenkinson J. PLACE: Melbourne DATE: 24 February, 1995 MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The decision made on 29 June 1993 by the respondent's delegate not to grant the applicant an entry permit be set aside. 2. The applicant's application for grant of an entry permit be determined by the respondent or his delegate according to law. 3. There be no order as to costs. (Note: Settlement and entry of order is dealt with in Order 36 of the Federal Court Rules.)

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG383 of 1993 GENERAL DIVISION ) BETWEEN: PENG BON GOY Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent

CORAM: Jenkinson J. PLACE: Melbourne DATE: 24 February, 1995

REASONS FOR JUDGMENT Hearing of an application for an order of review in respect of a decision made on 29 June 1993 by a delegate of the respondent not to grant the applicant an entry permit under the Migration Act 1958. The application for the permit having been made in October 1988, the provisions relating to entry permits of the Migration Act 1958 as in force immediately before the commencement of s.6 of the Migration Legislation Amendment Act 1989 on 19 December 1989 continued to have effect after that commencement, notwithstanding the repeal of those provisions by that section : see s.6(4). The applicant not being an Australian citizen, and having entered Australia before he applied for the permit, s.6A of the Migration Act 1958 as in force on 18 December 1989 (hereinafter called "the Act") forbad the grant to him of an entry permit unless at least one of a number of conditions stated in sub-section 6A(1) was fulfilled in respect of him. He contended, and the decision maker concluded, that one of the conditions was fulfilled : he was the spouse of an Australian citizen. In exercising the discretionary power, which fulfilment of that condition enlivened, to grant or refuse an entry permit, the decision maker had regard to a statement of Ministerial policy, parts of which are quoted by the Departmental officer whose statement of reasons for his recommendation against grant of the permit has been treated by the parties, and will be treated by me, as the reasons of the respondent Minister's delegate for her decision not to grant the permit. At my request a copy of the statement of Ministerial policy was produced to the court. The applicant, his parents and his siblings were born in, and have been citizens of, what is now Malaysia. The father died before the applicant came to Australia. His married siblings live in Malaysia or Thailand. Two single brothers live in Melbourne. They are in their forties. The applicant was born in 1959. He arrived in Melbourne in February 1987 with his mother and a sister. During the preceding ten years he had been sentenced in Malaysia to about five terms of imprisonment aggregating about ten years, of which he had served more than six years, for offences which originated in his addiction to heroin, according to his own account, which the delegate accepted. No material casting doubt on that account was before the delegate. All the material before the delegate supported the conclusion, which the delegate appeared to accept, that the applicant has abstained from drug use in this country, where members of his family here procured expert medical and other treatment of his addiction. The sister who accompanied him to Melbourne was killed in a motor car accident in March 1988. His mother and the two single brothers, each of which brothers conducts a business in Melbourne, have been accepted as permanent residents. One brother, now called Peter, was shown by material before the delegate to have been an Australian citizen since 1991. (I was informed from the bar table that the other brother, now called Greg, is also an Australian citizen.) The applicant was granted a temporary entry permit, as a visitor, for six months when he entered Australia. His application for the permit, signed by him, answered in the negative a question printed on the application form as to whether he had been convicted of a criminal offence in any country. He was granted one extension of his visitor's permit, until November 1987, but he was refused a further extension. He applied on 7 March 1988 for an entry permit according him resident status, claiming that he fulfilled the requirement of s.6A(1)(e) that there be "strong compassionate or humanitarian grounds for the grant of an entry permit to him". The application was based on the applicant's need to remain away from Malaysia where, it was contented, he would be drawn back into indulgence of his heroin addiction, and on his need of the support his brothers and mother were giving him in Melbourne. His convictions were disclosed. When interviewed shortly after his sister's death he said that she had filled in the application form which falsely denied conviction, and that he had been unaware of the question on the form when he signed it. His application on that ground was refused on 1 June 1988. On 19 September he married Heidi Alina Violet Csitkovits, an Australian citizen, in Melbourne. On 17 October 1988 another application for resident status was lodged by him, he claiming that he fulfilled the requirement of s.6A(1)(b) that he be "the spouse .... of an Australian citizen". The applicant plainly did, and still does, satisfy that latter condition, so that s.6A(1) creates no impediment to the grant of a permit. This the delegate recognised in what I will call her reasons for decision. It was a ground of appeal that the delegate erred in law because she "considered the applicant's entitlement for permanent residence at the date" when she made the decision "rather than at the date of the original application for permanent residence". The applicant's wife left this country in June 1990 and has not returned. If the delegate's attention had been confined to events which occurred in the months following the lodging of the application in October 1988 she would have been considering the applicant as a man cohabiting with his wife in this country. Reference was made to Chan Yee Kin v. Minister for Immigration and Ethnic Affairs 1989 169 C.L.R. 379 and Lek v. Minister for Immigration Local Government and Ethnic Affairs (No. 2) (1993) 45 F.C.R. 418. Those cases were concerned with the ascertainment, by an administrative decision maker, of historical fact : whether at a particular time a person had a fear of persecution and whether at that time the fear was well-founded. There was a question of law as to whether the relevant time was that at which a claim by the person for that ascertainment was made or that at which the ascertainment was achieved by the decision maker. In the latter case Wilcox J. held that the later time was that which the statute required. This case, on the other hand, is concerned with the exercise of a power to grant or refuse a permit. All facts and other considerations relevant to the exercise of that power must in my opinion be given consideration by the decision maker, whenever they occurred. Under the ground that there had been a failure to accord the applicant procedural fairness a number of criticisms were made of the course followed in reaching the decision under review. It was submitted that the delegate was under an obligation to seek to gain knowledge of the views, about the marriage and the application, of the applicant's wife. There is no substance in the submission, in my opinion. During much of the time when the application was pending the applicant was known to be represented by a solicitor. The applicant at one time presented in support of his case written communications from the wife to the applicant which gave no basis for a suspicion that she might be unwilling, if asked by the applicant, to communicate those views to the respondent's officers. The delegate's reasons include this paragraph: "34.At his interview on 25 May 1993, Mr Goy said that he had been separated now from his wife for nearly 3 years, he had not heard from her for over seven (7) months, that there is no proposed reunion at this time and that both he and Mrs Goy are contemplating divorce proceedings." It was not submitted that that paragraph contained any error. In those circumstances it was in my opinion for the applicant, not the delegate, to determine what communication from the wife would be placed before the decision maker. It was submitted that the delegate was under an obligation to seek to question the applicant's two single brothers. The submission is rejected. There was no reason to suspect that either brother would fail to communicate with the respondent's officers, if asked by the applicant to do so. And, as will appear, one of the brothers did make a communication to the respondent's officers in May 1992. It was submitted that procedural fairness required that there be an oral hearing of the application. The applicant was interviewed by one of the respondent's officers on several occasions. On the last occasion, about five weeks before the delegate made her decision, he was asked whether he wished to "advance any information" which should be taken into account in making the decision, and his response was recorded on the file which was before the delegate when the decision was made. He did not ask for any hearing. He informed the interviewer that he had terminated his former solicitor's retainer. In those circumstances I do not consider that procedural fairness included a requirement of a hearing (Cf. Chen Zhen Zi v. Minister for Immigration and Ethnic Affairs (1994) 121 A.L.R. 83.) It was a ground of the application that the decision was so unreasonable that no reasonable person could have so exercised the power to grant or refuse an entry permit. There was said to have been unreasonableness in the application, to the circumstances of the case, of what in the Ministerial statement are called "policy guidelines". After setting out the legal requirements of s.6A(1)(b) of the Migration Act 1958 the document continues thus: "2.3Policy Guidelines 2.3.1 Once the legal requirements have been established the principal applicant should be assessed against the following policy guidelines: . the Australian citizen/resident spouse should support the application; (this should be indicated by the completion of the relevant section of the application form); . the marriage should not have been contrived for the purpose of obtaining residence in Australia and there should be a genuine intention of maintaining a lasting relationship beyond migration considerations; . the applicant should be living with their spouse and the marriage should not have ended through divorce, separation or death; . the applicant and spouse should intend to live together on a genuine domestic basis; the preceding three points should be indicated by the Declarations made by the applicant and spouse respectively on the application form (M692) and any additional evidence supplied such as leases, joint bank accounts, wills, childrens' birth certificates etc. The bona fides of the relationship should be confirmed by referees in items B4 and B5 of the same form. . the applicant should not have an ongoing marriage or defacto marriage relationship with a person other than the Australian citizen/resident who supports the application. 2.3.2 If doubts on this point or any preceding point are held by the examining officer the applicant and spouse may be asked to attend an interview to resolve these doubts. 3.1 Breakdown of the relationship during processing 3.1.1 If, during the course of processing, a marriage is found to have: . ended through divorce or death, the applicant no longer meets the legal requirement under sub-section 6A(1)(b) and the application cannot be approved on the grounds of marriage. In these cases however, careful consideration should be given to the circumstances of the application as it may warrant approval under sub-section 6A(1)(e). ie `Strong humanitarian or compassionate grounds' (See GORS series number 6: Strong Compassionate Grounds). . broken down irretrievably for any reason, in the absence of other special factors, the application should normally be refused. In considering such cases however officers should give careful consideration to the compassionate aspects arising from the breakdown of the marriage. As the couple are not divorced, the legal requirement is still met and in the light of the individual circumstances, officers may still consider that a case exists for favourable consideration under S6A(1)(b). 3.1.2 Parties to a marriage which had broken down during processing who are attempting a reconciliation should be given the opportunity to demonstrate that this reconciliation is genuine and likely to be effective. A period of six months may be allowed for this. A decision on the application should have regard to any evidence of marriage counselling, the circumstances of the relationship (including any children of the relationship) and the duration and number of periods of separation. 3.2 Interviews Both partners to a marriage should be interviewed separately where the assessing officer considers it necessary: for instance, where there are significant age, socio-economic or cultural differences between the partners, or if the couple met less than two months before the marriage." The delegate in her reasons set out the four sentences in paragraph 2.3.1 described therein as "policy guidelines", and the second half of paragraph 3.1.1, but omitting all but the last clause of the last sentence thereof. Later in her reasons the delegate wrote, under the heading "Assessment of claims", the following: