Re David John Lally v the Minister of Immigration and Ethnic Affairs [1985] FCA 1 (17 January 1985)

FEDERAL COURT OF AUSTRALIA

Re: DAVID JOHN LALLY
And: THE MINISTER FOR STATE FOR IMMIGRATION AND ETHNIC AFFAIRS
No. VG 256 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.

CATCHWORDS

Administrative Law - Judicial Review - deportation order - claim by applicant that an oral temporary entry permit had been granted - factual errors in statement of reasons including errors as to permits granted to applicant and in reference to applicant's claim - misleading material before delegate as to applicant's claim and as to permits granted to applicant - failure to take into account relevant considerations and taking into account irrelevant considerations - whether oral representation by departmental officer could amount to grant of valid temporary entry permit - whether estopped by officer's representation from denying such a grant - whether delegate entitled to conclude that applicant had "no occupational skills in demand in Australia" - whether delegate obliged to have regard to questions of whether applicant could be described as a "queue jumper" etcetera - whether delegate should have taken into account fact that at an earlier time the applicant had been granted migrant entry visa.

Administrative Decisions (Judicial Review) Act 1977 - s. 5

Migration Act - ss. 6, 6A, 18 and 55

HEARING

MELBOURNE
17:1:1985

DECISION

This is an application by David John Lally (the applicant) under the Administrative Decisions (Judicial Review) Act (the Judicial Review Act) for an order of review in respect of the decision, made on 18 September, 1984 pursuant to s. 18 of the Migration Act 1958, ordering the deportation of the applicant. That decision was made by Mr. L.B. Woodward (the delegate), as the delegate of the Minister for State for Immigration and Ethnic Affairs (the respondent Minister).

2. Pursuant to a request under s. 13 of the Judicial Review Act from the applicant's solicitor, the delegate supplied a statement of the reasons for his decision (the delegate's statement), dated 26 October, 1984. In the light of the criticisms made by the applicant of parts of that statement, it is desirable to set out its full text. It was in the following terms :

"I, Lionel Barrie Woodward, delegate of the

Minister of State for Immigration and Ethnic
Affairs, having received a request dated 5 October
1984 from Brett R.E. Ryan, Solicitor, on behalf of
David John Lally (the Applicant), for a statement
of reasons for my decision of 18 September 1984,
made pursuant to section 18 of the Migration Act
1958 (the Act), to order the deportation of the
Applicant, make the following statement setting out
my findings on material questions of fact, the
evidence or other material on which those findings
are based, and the reasons for my decision.

A. Findings on material questions of fact

1. The Applicant is a citizen of the United
Kingdom and Colonies.

2. The Applicant was granted a resident entry visa
in London on 23 March, 1978, which was valid until
19 May 1978. He did not travel to Australia during
the currency of that visa.

3. The Applicant arrived in Australia as a working
holiday-maker on 31 December 1980. He was granted
a temporary entry permit with permission to work,
valid until 30 November 1981. On 19 March 1982 he
was granted a further temporary entry permit valid
until 30 November 1982. In granting this permit
the Darwin Regional Office wrote to the Applicant
reminding him of the requirements of the working
holiday-maker scheme, and informing the Applicant
that, in response to his enquiries they had
considered his case for permanent residence and
advised that any application he might make could
not be one for approval. On 26 October 1982 he was
granted a further temporary entry permit valid
until 26 April 1983.

4. On 6 October 1982 the applicant applied to the
Melbourne Regional Office seeking an assessment of
his eligibility for permanent resident status. He
lodged a formal application on 21 February 1983.
He claimed that he was entitled to resident status,
since he had been accepted as a migrant and granted
a resident entry visa in 1978. On 25 March 1983
the Applicant was informed that his application had
been refused as, under the policy then current he
scored 37 points against a minimum requirement of
65, and there were no compassionate factors to
outweigh that assessment. The applicant was
requested to make arrangements to leave Australia
and to notify the Department of these within seven
days.

5. The Applicant, through his solicitor, submitted
a request for a review of his decision, which was
received on 20 April 1983. On 28 April he was
granted a further temporary entry permit valid
until 24 July 1983 and on 22 July 1983 he was
granted another further temporary entry permit
until 11 November 1983, pending consideration of
his case. The Immigration Review Panel, on 4
August 1983, recommended that the decision be
upheld. The Minister accepted this recommendation
and, on 6 September 1983, decided to refuse
permanent resident status to the Applicant. The
Applicant was requested to leave Australia by the
date of expiry of his current entry permit.

6. On 24 August 1983 the Applicant applied for
Australian Citizenship. At an interview on 6
October 1983 he was incorrectly informed that he
was not eligible as he was not a permanent
resident.

7. On 30 October 1983, the Applicant, through his
solicitor, requested a statement of reasons,
pursuant to section 13 of the Administrative
Decisions (Judicial Review) Act 1977, for the
Minister's decision to refuse him permanent
resident status. On 9 November 1983 the Applicant
was granted a further temporary entry permit valid
until 31 December 1983. On 23 December he was
granted a further temporary entry permit valid
until 31 March, 1984.

8. The Applicant's solicitor was informed, by
letter dated 23 March 1984, that it was considered
that, in its review of 4 August 1983, the
Immigration Review Panel had acted upon incomplete
information, had failed to have regard to the
Applicant's submissions and had misapplied the
policy on working holiday-makers to the case.
Accordigly, the Minister's decision of 6 September
1983, based on the Panel's report, was considered
defective. It was proposed that the Minister would
revoke his earlier decision and reconsider the
Applicant's application for permanent resident
status. Therefore, reasons were not provided for
the decision of 6 September 1983.

9. On 31 May 1984 a further temporary entry permit
was granted to the Applicant valid until 28 June
1984. No further entry permits have been granted
to the Applicant.

10. On 26 June 1984 the Minister revoked his
decision of 6 September 1983 and made a fresh
decision to refuse resident status to the
Applicant. At the same time the Minister decided
not to grant citizenship to the Applicant. The
Applicant was informed that he should leave
Australia within 21 days of the date on which he
was notified of this decision, viz 9 July 1984.
The Applicant has not so departed.

11. On 20 August 1984 the applicant was invited,
through his solicitor, to make representations on
the question of deportation. An interview was
arranged for 13 September 1984 but the Applicant
failed to attend. A visit by Departmental officers
to the Applicant's last known address revealed that
he was not residing there. Enquiries at the
applicant's last known place of employment revealed
that he was no longer working there. The
applicant's thereabouts were unknown at the time of
my decision.

12. Representations on behalf of the applicant have
been received from Mr Lewis Kent M.P.

13. On 14 September 1984 the Solicitor for the
applicant advised that he would be seeking judicial
review of the Minister's decisions of 26 June 1984.

14. The applicant is a trained radio and telex
operator. Since arrival in Australia he has worked
in the ACT, Queensland, New South Wales and the
Northern Territory, and, since 20 May 1982, as a
porter and unqualified nursing aide in the Queen
Victoria Hospital, Melbourne. He has no
occupational skills which are in demand in
Australia.

15. The Applicant's parents and his two sisters
are resident in the United Kingdom. He has no
relatives in Australia.

B. The evidence or other material on which my
findings are based

16. In making the above findings I had before me
Departmental file number 84/17233.

C. The reasons for my decision

17. The Applicant is a prohibited non-citizen by
virtue of subsection 7(3) of the Act,since his
last temporary entry permit has expired. He has
not left Australia as directed following the
Minister's decision to refuse permanent resident
status to him. The Applicant claimed that he was
not a prohibited non-citizen as a further
temporary entry permit was granted to him on 28
June 1984. I did not accept this claim.

18. I accepted that it remained possible to
regularise the applicant's presence in Australia by
the grant of a further temporary entry permit, or a
permanent entry permit. With regard to a permanent
entry permit, the applicant is not eligible under
section 6A(1) of the Act as he is not the holder of
a valid temporary entry permit, he is not the
spouse, child or aged parent of an Australian
resident and he has not been granted territorial
asylum in Australia. Accordingly, I considered
the grant of a temporary entry permit to the
Applicant. However, in view of the fact that he
has no close relatives in Australia, the current
policy on working holiday-makers, and the fact that
the Minister recently refused to grant permanent
resident status to the applicant, I concluded that
it was not appropriate in this case to grant a
temporary entry permit to the applicant. The fact
that the Applicant was granted a migrant entry visa
in 1978 is not relevant to this decision as the
statutory and policy criteria applicable to working
holiday-makers in Australia are different from
those applicable to migrant selection from
overseas.

19. Persons who enter Australia who are holders of
working holiday visas are expected to honour the
conditions of that visa. It is (sic) the public
interest to ensure that persons abide by normal
immigration selection procedures and do not
queue-jump by entering or remaining illegally in
Australia to the prejudice of prospective migrants
who abide by the procedures. Presence of such
queue-jumpers is inimical to Government control of
immigration programs as well as impacting upon job
availablility for legal residents.

20. I considered the Applicant's personal
circumstances, particularly the fact that he has no
relatives in Australia and that he has no
occupational skills which are in demand in
Australia. I concluded that there were no factors
in this case to outweigh the policy outlined above.

21. In all the circumstances of the case I
considered it reasonable and just to apply the
policy as outlined above to the Applicant.
Accordingly, I decided to order the deportation
of the Applicant.

Lionel Barrie Woodward
26 October 1984."

3. The application for an order of review, as amended, was based upon three grounds in respect of which various particulars were supplied. The first contention advanced on behalf of the applicant was based upon Particular (b) of the grounds of the application.

4. There were two aspects to this contention. Firstly, that the Minister's delegate, in deciding to deport the applicant, treated as a relevant matter the "fact" that no further entry permits had been granted to the applicant after the expiration, on 28 June, 1984, of a temporary entry permit granted on 31 May, 1984 whereas a further permit had in fact been granted on 28 June, 1984 valid until 26 July, 1984. Secondly, that the delegate did not consider the applicant's assertion that an oral temporary entry permit had been granted to him for a minimum period of three months from 26 July, 1984 - an assertion which the applicant's solicitor had plainly placed before the respondent Minister's Department, as appears from correspondence referred to later in these reasons.

5. At the outset it should be noted that it was admitted by the respondent that paragraph 9 of the delegate's statement was wrong in saying "No further entry permits have been granted to the Applicant" after "28 June, 1984"; it was conceded that a further temporary entry permit was granted on 28 June, 1984, and that it was valid until 26 July, 1984.

6. The applicant relied upon paragraph 9, which appeared in Part A of the delegate's statement and was a "finding" on "material questions of fact", as substantiating his contention that the delegate had misapprehended the facts relating to the applicant's status under the Migration Act after 28 June, 1984. He relied upon paragraph 17 of the statement, which appears under the heading "The reasons for my decision", and in particular the last two sentences of that paragraph as demonstrating that the delegate had taken into account the "fact" stated in paragraph 9 and had failed to take into account the applicant's assertion concerning the grant of an oral temporary entry permit. The applicant also sought to rely upon paragraph 19 of the delegate's statement referring to the need to prevent queue jumping but in my opinion the applicant's contention is not assisted by paragraph 19.

7. The delegate's statement in paragraph 17 referred to the applicant's claim that "a further temporary entry permit was granted to him on 28 June, 1984" and said that he "did not accept this claim". If the delegate did not accept that claim by the applicant then plainly he was in error. However, the respondent has submitted that the errors in paragraphs 9 and 17 of the delegate's statement are merely errors as to a date and that, if those errors be "corrected", then the last sentence of paragraph 17 of the delegate's statement should be read as meaning that he did not accept the claim by the applicant's solicitor that an oral temporary entry permit was granted on 26 July, 1984. As to the dates it was contended that the delegate's error was in inserting, in each of those two paragraphs, the date 28 June, 1984 instead of 26 July, 1984 and that the Court should conclude that the delegate intended to refer to 26 July, 1984. Of course, if the "errors" are to be overcome by notionally changing the dates, it would also be necessary to read paragraph 9 as if there were inserted in it, after the words "28 June, 1984", the words "and on that date a further temporary entry permit was granted to the applicant valid until 26 July, 1984". The respondent also submitted that the "essential fact" set out in paragraph 17 of the statement was that, at the time of the delegate's decision, the applicant was in fact a prohibited non-citizen.

8. Accordingly, the respondent's basic contention was that the Court should conclude that the delegate correctly performed his task although he erred in expressing the reasons for his decision by incorrectly stating the date in the two paragraphs. In advancing this contention reliance was placed upon the fact that the delegate had before him "departmental file number 84/17233", as shown by paragraph 16 of the delegate's statement, and that the heading to that paragraph made it clear that his findings, including the finding in paragraph 9, were based upon that file. It was contended that the material before the delegate made it clear that a temporary entry permit had been granted on 28 June, 1984 and that it was valid until 26 July, 1984. The respondent submitted that, when the delegate's statement was read in the light of the material, the only conclusion reasonably open was that the delegate in preparing his statement of reasons had made an error in paragraph 9 which was no more than a misstatement as to the date, an error also reflected in paragraph 17.

9. This attempt by the respondent to explain the delegate's "errors" must be considered in the light of s. 13(1) of the Judicial Review Act, which conferred upon the applicant a right to request the respondent "to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision". Section 13(2) imposed a duty upon the delegate to prepare and furnish that statement. That duty must be performed carefully, notwithstanding that the Court does "not look over-critically at the words used" (Tagle v Minister for Immigration and Ethnic Affairs (1983) 46 ALR 379 at p. 386 applying the dictum of Franki J. in Commonwealth v Duncan (1982) 44 ALR 249 at p. 255 to the decision of a delegate under the Migration Act).

10. In my opinion the respondent's submission attempting to explain the "errors" should not be upheld. During the opening address of the applicant's counsel on 3 December, 1984, the "mistake" in the delegate's statement was mentioned by the respondent's counsel, who said :-

"I have before me ... a form of addendum which the
decision-maker proposes to make and sign. That is,
I gather, coming through the Vocadex machine at my
instructing solicitor's office and that will be
with the Court when it has come through the
machine. That addendum says simply that there is
an error in paragraph 17 and that the
decision-maker has been informed that the applicant
was in fact granted a further temporary entry
permit, valid until 26 July, 1984" (Transcript p.
47).

In the course of hearing the applicant's counsel as to whether the respondent could establish that there had been a "mistake" by the delegate in preparing his statement, the Court referred to the possibility of the respondent relying on affidavit or other evidence from the delegate that he had made a mistake in preparing his statement.

11. No such evidence was called. Had the delegate given such evidence, he would have been subject to cross-examination by the applicant as to whether the error was merely in the statement of reasons signed by him on 26 October, 1984 or whether he had made the mistake as to dates - or mistakes as to any other matters - in giving consideration to the matter preparatory to making his decision on 18 September, 1984. It may be added that on 4 December the matter was adjourned (not at the request of either party but because of other commitments of the Court) until 19 December, with the result that there was a period of 2 weeks in which to give further consideration to the possible course of placing sworn evidence by the delegate before the Court.

12. Although no such evidence was given by the delegate, the respondent sought to support the explanation of the "errors" by tendering a copy of a Minute from Mr. Joseph, the Director, Enforcement Section, of the respondent's Department. That Minute concluded with a recommendation that the Deputy Secretary should sign the deportation order. After the recommendation there appeared the words "Recommendation approved, Deportation order signed" with the signature of the delegate, Mr. Woodward who was the Deputy Secretary. His signature and that of Mr. Joseph, as the author of the Minute, were both dated 18 September, 1984

13. Although I accept that the Minute was part of the material before the delegate at the time of making his decision, that fact, in my opinion, does not support the respondent's contention that errors as to the date occurred only in the process of writing the delegate's statement. It may be noted immediately that the Minute made no reference whatever to the temporary entry permit which was granted to the applicant on 28 June, 1984, valid until 26 July, 1984. Moreover, a closer consideration of the contents of the Minute reveals further problems for the respondent. The Minute contained a positive misstatement as to the effect of the letters written by the applicant's solicitor to the Department on 27 July, and 6 August, 1984. The Minute included the following passage :-

"On 27 July and 6 August 1984, Mr Lally's solicitor
wrote to the Department suggesting that Mr
Feirclough had undertook (sic) that 'upon receipt
of a letter (from the solicitor), indicating that
Mr Lally would be contesting the matters, no action
would be taken to have Mr Lally leave the
country'."

That statement in the Minute was quite wrong. The solicitor had not made that suggestion. On the contrary he had asserted that Mr. Feirclough had agreed to Mr. Lally's temporary entry permit being extended - an assertion which was qualitatively quite different from a statement which merely said that "no action would be taken to have Mr. Lally leave the country". The fact that the statement in the Minute was wrong is made quite clear by reference to the actual terms of the letter from the solicitor, dated 27 July, 1984, which included, amongst other things) :-

"I confirm Mr. Feirclough's advice to Mr Toal that
.. upon receipt of this letter Mr Feirclough shall
contact the relevant persons in the Melbourne
Department to have Mr Lally's temporary entry
permit extended." (underlining added)

The solicitor again asserted, in his letter dated 6 August, 1984 that Mr. Feirclough had agreed that "the temporary entry permit would be extended for .. a minimum of 3 months". That letter to Mr. Feirclough emphasized the difference between the two statements, by saying, that he had been advised by Mr. Toal of counsel, who had had a further conversation with Mr. Feirclough, that "it is now your view that what you meant to say to counsel was ..." (underlining added). It is perhaps desirable to set out the context; the first and second paragraphs of that letter were as follows :-

"I refer to your Mr Feirclough's conversation with
Mr. Toal of Counsel on Tuesday 31st July 1984,
wherein the question of the appropriate interim
disposal of this matter was discussed. Counsel
advises me that in relation to the telephone
conversation you had with him on the 26th July
1984, that it is now your view that what you meant
to say to Counsel, was upon receipt of a letter
from myself, indicating that Mr Lally would be
contesting the matters, no action would be taken
to have Mr Lally leave the Country.

Counsel indicates that specific reference made
during that telephone conversation of the 26th July
1984, to the fact that the temporary entry permit
would be extended for 3-4 months and certainly a
minimum of 3 months. Aimed (sic) with that
assurance based upon the discussion with you, my
client believed upon reasonable grounds that his
status as a temporary resident was (sic) unchanged
within at least the next 3 months. Counsel in fact
recalls that you specifically averted (sic) to the
fact, saying that Mr Feirclough would contact the
Melbourne Office in relation to that extension."
(underlining added)

14. Those extracts from the solicitor's letters, demonstrate that the Minute gave a very misleading account of the representation made in the letters of both 27 July and 6 August. In both of those letters the solicitor was pressing the view that Mr. Feirclough had stated on 26 July, 1984 that Mr. Lally's temporary entry permit would be extended - at least for 3 months.

15. Later in the Minute reference was made to a further letter, dated 5 September, 1984, from the applicant's solicitor who, the Minute said,

".. responded with a claim that his client is the
holder of a temporary entry permit which is the
(sic) force and was granted to him on 26 July
1984."

However, that belated reference to the claim, made in writing by the applicant's solicitor on 27 July and reiterated on 6 August, that a temporary entry permit had been granted on 26 July, 1984 was so worded that, having regard to its place in the chronology of events and to the earlier quite misleading references to the solicitor's letters of 27 July and 6 August, it may well have conveyed to the delegate the impression that the claim was a last-minute attempt by the solicitor to prevent deportation whereas a reading of those letters made it perfectly clear that the same claim had been made much earlier in each of the two letters.

16. I am not persuaded by the Minute, or by the material as a whole, to accept the respondent's suggested explanation of the "errors" in paragraphs 9 and 17 of the delegate's statement. In my opinion the "errors" show that the delegate was misled as to facts relevant to his decision, namely, the applicant's status after 28 June, 1984 including a claim that an oral temporary entry permit had been granted to him on 26 July, 1984.

17. Accordingly, in my opinion the delegate, in considering whether he should exercise the discretionary power conferred by s. 18 of the Migration Act, took into account irrelevant considerations as to the applicant's status after 28 June, 1984. Furthermore, in my opinion, the delegate failed to take into account "in any real sense" (per Toohey J. in Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388) a relevant consideration, namely, the applicant's claim that he was granted an oral temporary entry permit on 26 July, 1984; further details of that claim will be given later in dealing with particular (a) of the applicant's grounds.

18. If the delegate's statement is considered without reference to the Minute, it must be read as meaning what it says (there being no evidence to the contrary) and accordingly the delegate's decision is vitiated because his statement on its face demonstrates that he took into account, as a relevant finding of fact, the "fact" that "No further entry permits (were) granted to the applicant" (after) 28 June, 1984" (paragraph 9). The respondent has conceded that that "fact" was wrong. Similarly the delegate was wrong in his reasons for decision in stating that he "did not accept (the) claim" that a further temporary entry permit was granted on 28 June, 1984 (paragraph 17).

19. It was also pointed out by the applicant's counsel that, in the delegate's statement, and in particular in that part of the statement which refers to communications between the applicant's solicitors and the Department, there is no reference to the exchanges regarding the applicant's claim that an oral temporary entry permit had been granted to him, valid for a minimum period of three months from 26 July, 1984.

20. I am not prepared to accept the respondent's contention that paragraph 17 merely states the "essential fact" that the applicant was a prohibited non-citizen. In my opinion the delegate in that paragraph is setting out his conclusions as to a number of facts relevant to the exercise of his discretion in addition to dealing with the question of whether the respondent was a prohibited non-citizen. In any event, the delegate, before he could conclude that the applicant was a prohibited non-citizen, was obliged to determine whether he accepted or rejected the applicant's claim that a further temporary entry permit, valid for at least three months from 26 July, 1984, had been granted to him. Any conclusion by him concerning that claim would have been based upon a misapprehension of the facts.

21. There are other aspects of the delegate's decision which are unsatisfactory. Firstly, his statement gave, in paragraph 17, as a reason for his decision, the fact that Mr. Lally "has not left Australia as directed following the Minister's decision to refuse permanent resident status to him" (underlining added). However, the delegate's "findings on material questions of fact" did not support the statement that Mr. Lally had been so "directed"; the relevant finding in paragraph 10 merely said that "The Applicant was informed that he should leave Australia within 21 days of ...". That latter statement is supported by the Minute of 18 September, 1984 which stated that "On 26 June, 1984 the Minister decided that Mr. Lally ... should leave Australia within 21 days ...". Again, a letter from Mr. Joseph, dated 20 August, 1984, to the applicant's solicitor said "As Mr. Lally did not depart voluntarily within the time specified ...". Those three statements are inconsistent with the delegate's statement (paragraph 17) that Mr. Lally had not left Australia as "directed". It was not suggested that any other material supported that part of the delegate's stated reasons and accordingly to that extent the decision was based upon an irrelevant consideration, namely, the "failure" of the applicant to comply with a direction to leave when in fact no such direction had been given.

22. Secondly, no explanation has appeared as to why the Minute of 18 September,1984 made no reference whatever to the further temporary entry permit granted on 28 June, 1984, valid until 26 July, 1984. That Minute having been given to the delegate on 18 September, 1984 - the day on which he signed the deportation order - in my opinion it is more probable than not that on that day the delegate was not aware that a further temporary entry permit had been granted on 28 June, valid until 26 July, 1984.

23. Thirdly, although a letter by Mr. Machin, dated 9 July, 1984 to the applicant's solicitor, purported to state the effect of the Minister's decision of 26 June, 1984, there is no evidence that the actual decision was recorded in writing or that, if so recorded, its exact terms were part of the material before the delegate - although the fact of that decision was certainly placed before him by Mr. Joseph's Minute which gave some emphasis to that decision by the Minister. The Minister's written decision of 26 June, 1984, if it existed, did not form part of the material put before the Court. Mr. Machin's letter stated that the Minister decided on 26 June, 1984 that Mr. Lally "should leave within 21 days of the date of" the date on which the letter was written i.e. of 9 July, 1984. The absence of the Minister's written decision results in some uncertainty. For example, in the absence of knowledge of its exact terms, it is not clear whether, if the letter had been written more promptly by Mr. Machin (say, on 30 June, 1984) it would have stated that "the Minister has decided that Mr. Lally ... should leave Australia within 21 days of the date of this letter", i.e. within 21 days of 30 June, 1984. Had it been written in those terms on 30 June, 1984, the period specified would have expired at a time when Mr. Lally still held a valid temporary entry permit (granted on 28 June and valid until 26 July, 1984). It seems likely that the Minister, when making his decision on 26 June, 1984, was unaware that a further temporary entry permit was to be granted to Mr. Lally on 28 June, 1984. That view gains support from "the submission placed before the Minister" referred to in Mr. Machin's letter to the applicant's solicitor, dated 9 July, 1984. Somewhat curiously that "submission" was forwarded to the applicant on 10 July, 1984 with a statement that it constituted "a statement of reasons under s. 13 of the" Judicial Review Act, although there was nothing in any of the material which indicated that it in fact constituted the Minister's reasons for his decision of 26 June, 1984.

24. In my opinion the applicant has made out his case on the matters raised under particular (b).

25. Particular (a) of the applicant's grounds was that "the Respondent treated the Applicant as a prohibited non-citizen as at the date of the decision". The applicant contended that he was the holder of a valid temporary entry permit when the deportation order was made by the delegate on 18 September, 1984; accordingly, that he was not a prohibited non-citizen at that time and that s.18 of the Migration Act did not confer any power to order the deportation of a person who was not a prohibited non-citizen.

26. This contention was based upon a claim that he had been granted an oral temporary entry permit by Mr. Feirclough, the Director of the Review Branch of the respondent Minister's Department, which was valid for a period of at least three months from 26 July, 1984. That contention gave rise to a question of law but there was also a question of fact as to what was said in a conversation, on 26 July, 1984, between Mr. Feirclough and Mr. Toal, a barrister briefed by the applicant's solicitor. On that question of fact I accept the evidence of Mr. Toal and reject the evidence of Mr. Feirclough wherever it is inconsistent with Mr. Toal's evidence. On a significant number of matters Mr. Feirclough said that he did "not know" or did "not specifically recall" but "may have said it". It should be mentioned that on his evidence he had several hundred files under his control "directly and indirectly" at the time. In those circumstances it is perhaps not surprising that his recollection of events was not good and as a result his evidence was not satisfactory.

27. Two other matters may be of some significance. Firstly, Mr. Feirclough's evidence that at the time of his conversation with Mr. Toal on 26 July, 1984 he "did not have the file in front of" him. Secondly, his evidence that he raised with Mr. Toal "the question of the temporary entry permit" saying "something to the effect that, generally speaking, that was probably the way ... in which one would handle an issue like this ... by granting an entry permit ...". Further, he gave evidence that he had discussed that aspect with the "legal department" before having a second conversation with Mr. Toal, in which he told Mr. Toal that he was "now minded the appropriate way to handle ... the question of Mr. Lally's continued stay in Australia was to allow him to stay without an entry permit". That statement, of course, constituted a change from what he had said to Mr. Toal on 26 July, 1984.

28. Mr. Toal gave his evidence carefully and was much more impressive as a witness. I accept his evidence that on 26 July, 1984 Mr. Feirclough told him that, upon receipt of a confirmatory letter from Mr. Lally's solicitor, stating that Mr. Lally proposed to institute proceedings in relation to the Minister's decision of 26 June, 1984, Mr. Feirclough would arrange to have the temporary entry permit extended for at least 3 months.

29. I am not prepared to uphold the respondent's submission that Mr. Toal's evidence, even on the view most favourable to the applicant, did no more than establish that Mr. Feirclough would make the necessary requests or recommendations for the granting of an extension of the temporary entry permit.

30. Accordingly, in my opinion, Mr. Feirclough on 26 July, 1984 made an unequivocal statement to Mr. Toal that upon the receipt of the confirmatory letter from the applicant's solicitor, a temporary entry permit, valid for at least three months from 26 July, 1984, would be granted.

31. However, I accept the respondent's submission that any such grant of a permit was ineffective because it was not in writing and accordingly did not comply with the requirements of the Migration Act (see s. 6(2), (3) and (6)). Accordingly, in my opinion the applicant on 18 September, 1984 was not the holder of a valid temporary entry permit.

32. The applicant's counsel put an alternative submission that, by reason of the representation by Mr. Feirclough regarding the issue of a further temporary entry permit, the respondent was estopped from denying that the applicant on 18 September, 1984 had a valid temporary entry permit granted on 26 July, 1984. There are various difficulties in the way of that submission. Having regard to the opinion already expressed upholding the applicant's contention based upon paragraph (b) of the particulars of his grounds, it is sufficient to say that in my opinion there is no evidence that, as a result of the represention, the applicant "placed himself in a position of material disadvantage" (per Dixon J. in Thompson v Palmer 49 C.L.R. at 547 cited by Mason and Deane JJ. in Legione v Hateley [1983] HCA 11; (1983) 46 ALR 1 at p. 22). The applicant's contention based upon estoppel cannot be upheld.

33. Accordingly, I reject the applicant's contention, under particular (a) of the grounds of his application, that the delegate erred in law in treating the applicant as a prohibited non-citizen as at the date of the deportation order on 18 September, 1984.

34. The matters set out in the remaining particulars of the grounds can be dealt with fairly briefly. Under paragraph (c) it was contended that the delegate "wrongly concluded as a fact that the applicant has no occupational skills which are in demand in Australia". I accept the respondent's submission that it is not open to the Court to substitute its decision on a question of fact for that of the decision-maker. The finding of fact appears in paragraph 14 of the delegate's statement and is again referred to in paragraph 20. In my opinion it was open to the delegate on the material before him to make that finding of fact. I accept the respondent's submission that the mere fact that the applicant was employed during certain periods did not prevent the delegate from reaching that conclusion. In my opinion the words "in demand", appearing in the delegate's reference to "occupational skills which are in demand in Australia", do not mean simply that persons with those occupational skills may be able to obtain employment e.g. by successfully competing with others for such employment. The words "in demand" are intended to refer to a situation where there is in Australia an existing demand for the services of persons possessing those occupational skills - a demand which cannot properly be met from residents.

35. In paragraphs (d) and (e) it was contended that the respondent failed to have proper regard to the applicant's personal circumstances and erred in placing particular reliance upon the fact that the applicant had no occupational skills which are in demand in Australia. As to these two grounds I accept the respondent's submission that it is a matter for the delegate to determine what particular weight should be accorded to relevant considerations. Perhaps I should add that in any event I do not consider that any ground has been shown for concluding that either of those errors occurred.

36. The applicant's counsel stated that paragraphs (f), (g) and (i) of the particulars were not pursued.

37. Paragraph (h) was in the following terms :-

"(h)The Respondent purported to state policy
considerations in paragraph 19 of the said
Statement of Reasons but failed to have regard
to the questions whether in fact :-

(i) the Applicant could fairly be described
as a "Queue-jumper";
(ii) the Applicant's history of behaviour
could fairly be characterized as
"inimical to government control of
immigration programs";
(iii)the Applicant's further presence in
Australia would in fact impact upon job
availability for legal residents;"

I accept that paragraph 19 of the delegate's statement "purported to state policy considerations". Paragraphs 20 and 21 of the delegate's statement both refer to "the policy outlined above" and plainly refer to the policy set out in paragraph 19.

38. I also accept the contention in paragraph (h) that the decision-maker did not have regard to the three questions set out in paragraph (h). However, in my opinion, it was not necessary for the delegate to have regard to any of those three questions of fact and accordingly his failure to do so does not assist the applicant's submissions. The passages in paragraph 19 "to ensure that persons do not queue jump" and "Presence of such queue jumpers is inimical to Government control of immigration programs as well as impacting upon job availability for legal residents" were not referring to the applicant. They were not referring to any individual person but to a policy that it was in the public interest that persons coming to Australia should not "queue jump" and to the fact that the presence of such queue jumpers was regarded as being "inimical to government control of immigration programs as well as impacting upon job availability for legal reasons".

39. That policy, referred to in paragraph 19 of the delegate's statement, is, of course, a policy in respect of persons in general who enter Australia. It was therefore not to the point for the delegate to consider whether, in the particular case of the applicant, it could be said that he was a queue jumper or that his presence, consideredin isolation and apart from other "queue-jumpers", was "inimical to government control of immigration programs" or would "impact" upon "job availability for legal residents". The policy was directed towards the general question of the possible effects of the presence in Australia of persons who did not "abide by normal immigration selection procedures" and who engaged in queue jumping "to the prejudice of prospective migrants who abide by the procedures". As paragraph 19 itself made clear, the public interest lay in ensuring that those procedures are observed. It was open to the delegate to take into account that policy Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639; Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24 ALR 577.

40. Paragraph (i) of the applicant's particulars was that the respondent "erred in treating as irrelevant the fact that the applicant was granted a migrant entry visa in 1978". That fact is recorded in paragraph 2 of the delegate's statement and his opinion that it was irrelevant to his decision is recorded in paragraph 18.

41. I have come to the conclusion that, on the material before him in this case, it was open to the delegate to decide that the grant in 1978 of a migrant entry visa was "not relevant to this decision". Deane J. in Sean Investments Pty. Ltd. v Mackellar (1983) 38 ALR 363 at 375 said "... it is largely for the decision-maker ... to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards". However, I should add that the reason given by the delegate for so deciding may be open to criticism - particularly if it was intended to convey that the earlier grant of a migrant entry visa could never be relevant to the question of deportation.

42. For the reasons given earlier I have reached the conclusion that the application should be granted and orders made that the delegate's decision be set aside and that the respondent to pay the applicant's costs.