Re Martin Karunakaran v the Minister of Immigration and Ethnic Affairs [1985] FCA 43 (22 February 1985)

FEDERAL COURT OF AUSTRALIA

Re: MARTIN KARUNAKARAN
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G 223 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.
Morling J.
Beaumont J.

CATCHWORDS

Administrative Law - judicial review - participant in scheme for education of private overseas students in Australia - decision of Minister to deport participant as illegal immigrant - whether Minister obliged to observe rules of natural justice in exercising power to deport - whether incorrect and prejudicial material placed before Minister - whether improper exercise of power - effect of irrelevant and relevant considerations - observation on role of appellate Court under Judicial Review Act

Administrative Decisions (Judicial Review) Act 1977 ss 5(1)(a), 5(1)(e), 5(1)(h), 5(2)

Migration Act 1958 s.18

HEARING

SYDNEY
22:2:1985

ORDER

1. The appeal be dismissed.

2. The appellant is to pay the respondent's costs.

DECISION

This is an appeal from a decision of a judge of the Court refusing an application under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") for an order of review of the decision of the respondent made on 29 July 1983 that the appellant be deported from Australia. The deportation order was made pursuant to s.18 of the Migration Act 1958.

2. The appellant was born in Fiji on 2 July 1961. He first arrived in Australia on 3 February 1978 and was given a temporary entry permit. His purpose in coming to this country was to further his education under a scheme implemented by the Governments of the Commonwealth and of New South Wales for the education of private overseas students in Australia. The Department of Immigration and Ethnic Affairs ("the Department of Immigration") must authorise the entry into Australia of students to enable them to study under the scheme.

3. After arriving in Australia the appellant enrolled at Chevalier College in Bowral in Year 10, that being the year in which students sit for their School Certificate examination. The obtaining of the School Certificate does not involve passing an external examination. The certificate is given on the basis of an internal assessment by the school at which the pupil attends. The appellant obtained a Grade 3 result in English and a Grade 4 result in mathematics. He also studied science, geography, history and Asian studies. The subsequent history of the appellant's stay in this country and of his schooling is set out in considerable detail in the judgment under appeal and we do not find it necessary to refer to all of that history in these reasons.

4. The appellant studied for the Higher School Certificate for which he sat at the end of 1980. His results were not satisfactory and he received only 56 marks out of a possible 500.

5. The appellant's temporary entry permit expired on 31 May 1981 when he returned to Fiji. However he subsequently obtained a further entry permit and returned to this country in November 1981.

6. If the appellant had been ordinarily resident in Australia, his School Certificate would have entitled him to enrol at a technical college in New South Wales in a number of courses in which he was interested. Notwithstanding that his School Certificate authorised him to enrol in a course at a technical college in 1982 for either an accountancy certificate or an electrical engineering certificate, the appellant was unable to obtain enrolment in those courses. He thereupon attended a centre known as the Individual Learning Centre at the North Sydney Technical College. Such centres give intensive tuition to students who need to improve their skills in particular subjects. The appellant attended the Learning Centre at North Sydney (and subsequently a similar centre at the Sydney Technical College) during the whole of 1982, studying English and mathematics. His grades in these subjects in the School Certificate were mediocre.

7. English and mathematics are not of themselves courses which are approved for private overseas students nor is any Individual Learning Centre an approved institution for such students under the scheme which has been implemented by the Governments of the Commonwealth and New South Wales.

8. The fact that the appellant was enrolled at an Individual Learning Centre was not discovered by the Department of Immigration until the end of 1982, and it was not until the end of February 1983 that the Department became aware that the appellant's studies were not approved courses for private overseas students by the New South Wales Education Department. When these facts came to the knowledge of the Department of Immigration it refused to renew the appellant's temporary entry permit. Thereupon representations were made on behalf of the appellant to Mrs Hurst, the officer in charge of the Information Centre for the New South Wales Department of Technical and Further Education (TAFE). Mrs Hurst arranged for the appellant to be tested by Mr Flynn, a Senior Student Counsellor, for the purpose of assessing his ability in English and mathematics. The counsellor reported that the appellant's ability in English was satisfactory for the courses in which he wished to enrol, and that in the mathematics test he attained the same score as 50% of a sample of, inter alios, electrical engineering certificate students. Notwithstanding the counsellor's report, Mrs Hurst on 6 April 1983 wrote to Ms J. Stubbing, the Education Officer in the Private Overseas Student Branch of the Commonwealth Department of Education, referring to the test and stating that she regretted to advise that the appellant had not achieved a sufficient result to be admitted to a TAFE course, and that she must decline to consider placement of him in any class. On 7 April 1983 Ms Stubbing sent a memorandum to Ms Clarke, an officer in the Overseas Students Section of the Department of Immigration stating that, following further testing, "TAFE has confirmed that the student has not qualified for entry into a certificate course."

9. Ms Stubbing also wrote to the appellant saying that having regard to all the circumstances she was unable to recommend an extension of his temporary entry permit to enable him to remain in Australia for further studies, and advising him that the Department of Immigration had been so advised.

10. Thereafter the Department of Immigration wrote to Dr Flynn, through whose good offices the appellant was brought to Australia and who at all material times has represented the appellant in his dealings with the various departments, advising him that the recommendation of the Department of Education had been accepted with the result that the appellant was required to depart from Australia before 14 June 1983. The appellant was required to produce evidence of his travel arrangements before 3 June 1983. The Department's request was not complied with and the matter was referred to more senior officers. Eventually Mr Faubel, the Director of the Enforcements Section of the Department of Immigration made a recommendation to the Minister that the appellant be deported. The recommendation was accompanied by a detailed account of the circumstances of the case. The recommendation was made on 28 July 1983 and the deportation order was made on the following day.

11. Paragraphs 13, 14 and 16 of Mr Faubel's recommendation were in the following terms:

"13. In advices dated 28 February 1983 and 7 March

1983, the N.S.W. office of Department of
Education advised our Sydney office that
Karunakaran had not been enrolled in approved
studies since his return to Australia, that he
had been authorized to apply for entry to a
TAFE certificate course in 1983 but that the
N.S.W. TAFE department had advised that he was
not eligible for enrolment in any approved
(TAFE) course.

14. Sydney Office of DIEA wrote to Karunakaran on
14 March 1983 telling him that the Department
of Education had advised that he was not
eligible for enrolment in any approved course
of study in 1983 and that as his temporary
entry permit had expired he should now leave
Australia. Dr Flynn, it seems, then approached
N.S.W. TAFE authorities who decided to provide
an opportunity for Karunakaran to have testing
in respect of Mathematics and English but
without any confidence or promise that he might
obtain a place in a TAFE course.

16. N.S.W. office of Education advised on 7 April
1983 that despite the extra testing referred to
above, TAFE confirmed that Karunakaran is not
qualified for entry to a certificate course and
that his request for further remedial tuition
was rejected. The above advice was also
conveyed to Dr Flynn by TAFE in a letter of 12
April 1983 (copy attached at 'C'). That same
day Sydney office wrote to Dr Flynn that the
Education Department had confirmed that
Karunakaran was not qualified for entry to any
approved course of study for 1983, that he
should leave Australia and should present
within 14 days evidence of departure
arrangements."

12. The Minister was asked to provide reasons for his decision to sign the deportation order pursuant to s.13 of the Judicial Review Act. Paragraph 26 of his statement of reasons was in the following terms:

"26. While I considered and gave weight to the
matters in para 6 supra (that is, of the
reasons, not the recommendation), and in
particular to the fact that he has a desire to
remain here for educational purposes, he has no
skills, qualifications nor independent
financial resources and the representations
made on behalf of the applicant, those
considerations did not outweigh the public
interest in ensuring that non-citizens abide by
immigration law and policies. The applicant
has been given every opportunity over a
considerable period of time to benefit from the
Private Overseas Students Program but has
failed to achieve minimal academic requirements
and has remained unlawfully in Australia after
the expiration of his permit."

13. The appellant was apparently able to enrol at a technical college in an Accountancy Certificate course during 1983. He remained there for the balance of that year and was re-enrolled for the 1984 academic year. He was admitted to the course because it was thought that he was qualified to enrol because of his holding a School Certificate. He did not complete either year.

14. It is to be noted that, as at the date when the Minister made his decision to deport the appellant, the person who was responsible for allowing the appellant to enter into a TAFE course, i.e. Mrs Hurst, had decided that he should not enter such a course and had informed the Commonwealth Department of Education that he would not be given a placement in any TAFE course. Whether Mrs Hurst made that decision because she had formed the view that the appellant was not eligible to enter upon a course or because she believed that he did not have sufficient capacity to complete and pass such a course does not appear to us to be of any moment. What was relevant to the Minister's consideration of the question whether the appellant should be permitted to stay in Australia was that the decision had been taken that the appellant would not be given a placement in any TAFE course. The Minister's decision was necessarily taken upon the basis of the material available to him at the time he took his decision and we do not think it is to the point that at a subsequent point of time a different view as to the appellant's eligibility for TAFE courses may have been taken by other persons.

15. The case for the appellant was based, both at first instance and on appeal, upon paras. 5(1)(a), 5(1)(e), and 5(1)(h) of the Judicial Review Act. It was submitted that the Minister was obliged to observe the rules of natural justice in making his decision that the appellant be deported and that a breach of those rules occurred in connection with the making of the decision. The learned trial judge rejected this submission upon the ground that the Minister was not obliged to observe the rules of natural justice. In our opinion his Honour was plainly correct in so finding: see Salemi v MacKellar (No. 2) [1977] HCA 26; (1977) 137 CLR 396; R v. MacKellar, ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461; Minister for Immigration and Ethnic Affairs v Haj-Ismail (1982) 40 ALR 431; Minister for Immigration and Ethnic Affairs v. Gaillard (1983) 49 ALR 277; Smith v Minister for Immigration and Ethnic Affairs (1984) 53 ALR 551 and Faingold v Zammit (1984) 1 FCR 87. As we understood the argument for the appellant, it was conceded that, as a general rule, the Minister is not obliged to observe the rules of natural justice when making a decision under s.18 of the Migration Act. But it was contended that there were special circumstances in the present case which did place such an obligation upon the Minister. The special circumstances were alleged to be the "mass of incorrect and prejudicial material" placed before the Minister which gave rise, so it was argued, to a legitimate expectation on the part of the appellant that he would be allowed to stay in Australia "at least long enough to be able to fully present his case to the Minister".

16. It is true that in Haj-Ismail the court left open the question whether there might be quite exceptional cases the facts of which would oblige the Minister to afford natural justice when considering whether to exercise the power to deport under s.18. Thus Bowen C.J. and Franki J. said (at p. 348): -

"Whether or not there is room for contending
that in some exceptional case, which has not yet
emerged, there would arise an obligation, when
exercising the power conferred by s.18, to observe
the rules of natural justice, remains to be finally
determined."

See also per Davies J. at p. 358. But there is nothing in the facts of the present case which make it so exceptional that the general rule is not applicable to it. The account that we have already given of the facts demonstrates that this is so. The last temporary entry permit granted to the appellant has expired and the Minister has declined to grant him a further permit. In these circumstances the appellant has become a prohibited immigrant and liable to be deported under s.18. There is nothing in the evidence to indicate that the appellant was justified in entertaining any legitimate expectation that he would not be deported. We do not accept, nor did the trial judge, that a mass of incorrect and prejudicial material was placed before the Minister. In our opinion the Minister was given a balanced and fair account of the appellant's circum stances as they existed at the time he made his decision. If there were any inaccuracies in the material placed before the Minister they were not of such a kind as would have obliged him to have given the appellant a further opportunity of replying to them. The major inaccuracy of which the appellant complained was that Mrs Hurst's letter of 6 April 1983 misstated the position as to his eligibility to be enrolled in a TAFE course. But we do not think this was the case. The trial judge said on this matter:

"On the face of things, it appeared that Mrs
Hurst may have misunderstood Mr Flynn's report on
his testing of the applicant. Until she was called
I thought that she had mistakenly equated the
applicant with (another student) whose results were
unsatisfactory. That was because Mr Flynn appeared
to be saying that the applicant had performed
reasonably well, both in the English and Mathematics
tests. That led me to think that the statements in
Mr Faubel's recommendation to the Minister and the
Minister's reasons that the applicant had performed
poorly academically and was ineligible for enrolment
were wrong. But I am persuaded by Mrs Hurst's
evidence that that is not so. She did intend to say
that the applicant had not performed well enough in
Mr Flynn's tests. That is because she requires a
higher standard than the applicant displayed for
entry into a technical certificate course. She does
so because the experience of the N.S.W. department
is that overseas students are out of their environ
ment and are unlikely to succeed at such a course
unless they display a standard higher than do
Australian students. She knows that for an
Australian student entry to a technical certificate
course is usually available upon the basis of a pass
in the School Certificate alone. No external
testing is required. But it is the policy of the
N.S.W. department as administered by her not to take
the same view of overseas students. It may have
been better if she had explained this in her letter
to Ms Stubbing of the Commonwealth department. But
the fact that she did not does not change the
position. Notwithstanding the apparently satis
factory results achieved by the applicant, he did
not peform well enough to indicate to Mrs Hurst that
he was capable of undertaking a course either in
electrical engineering or accountancy as he wished
to do."

17. We see no reason to depart from his Honour's view on this matter.

18. Whether or not the existence of such an expectation would be sufficient to give rise to an obligation on the part of the Minister to observe the principles of natural justice is a question which we need not determine in this case. When the question falls to be decided, the decision in Cole v Cunningham (1983) 49 A.L.R. 123 and the cases therein referred to will afford guidance as to the type of circumstances which may give rise to such an expectation.

19. We turn now to consider the submission based upon para. 5(1)(e) of the Judicial Review Act. Before the trial judge it was submitted that the making of the decision in question was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. The basis of this submission was that the Minister's decision to deport the appellant was made in pursuance of a rule or policy without regard to the merits of the particular case. This submission was not pressed on appeal. Rather the submission was that in making his decision the Minister either took an irrelevant consideration into account, or failed to take a relevant consideration into account - vide paras. 5(2)(a) and (b) of the Judicial Review Act which expand the operation of para. 5(1)(e). Before considering the appellant's argument on this point, it is important to observe that a person who is aggrieved by a decision to which the Judicial Review Act applies is not entitled to ask the court to set aside the decision merely because it comes to the view that the decision is wrong. Leaving para. 5(1)(h) aside for the moment, what the applicant had to show in the present case was that the Minister failed to take a relevant consideration into account or took an irrelevant consideration into account. As Deane J. said in Sean Investments Pty. Limited v. MacKellar (1981) 38 ALR 363 at p 375:

"The ground of failure to take into account a
relevant consideration will only be made good if it
is shown that the decision-maker has failed to take
into account a consideration which he was, in the
circumstances, bound to take into account for there
to be a valid exercise of the power to decide."

20. Counsel for the appellant put everything that could be put in support of this branch of his argument. His argument tended to equate considerations of relevance or irrelevance of particular matters with the correctness of those matters. The argument for the appellant was founded upon the letter written by Mrs Hurst to Ms Stubbing on 6 April 1983 which led to the statement in the recommendation to the Minister by Mr Faubel that the applicant was not eligible to enrol in a technical course. It was submitted that Mr Faubel's recommendation was unfavourable and prejudicial to the appellant in that it stated that he was not eligible for enrolment in any approved TAFE course and was not qualified for entry to any approved course of study for 1983.

21. Much time was taken up in argument, and at the hearing before the learned trial judge, in seeking to show that the appellant was eligible to undertake an approved course of study. We have already expressed our concurrence with the view of the trial judge that Mrs Hurst's letter did not misstate the appellant's prospects of being admitted to a TAFE course. But even if we had been persuaded to the contrary view, the appellant's case would not have been advanced. (We again leave aside the argument based on para. 5(1)(h).) What the appellant was required to show on this branch of the argument was that the Minister failed to take into account the extent to which the appellant was capable of profitably continuing his studies in Australia. We do not think the Minister's consideration of that matter turned upon whether he regarded it as being a question whether the appellant was qualified to be enrolled in an approved course or a question whether he had reasonable prospects of completing the course, if enrolled. It is beyond question that Mr Faubel's report placed squarely before the Minister the appellant's record as a student in Australia and the level of his academic ability. Indeed, in the statement of his reasons for his decision the Minister gave as one of his reasons that "the applicant has been given every opportunity over a considerable period of time to benefit from the Private Overseas Students Program but has failed to achieve minimal academic requirements ...". We do not think that any case is made out that the Minister failed to take into account any matter touching upon the appellant's educational prospects. Whether he made a correct assessment of those prospects is not for the Court to determine.

22. Counsel for the appellant relied upon a number of other matters which, in his submission, were put in an unfavourable and prejudicial way before the Minister at the time he made his decision. These included statements that the appellant had enrolled at the Individual Learning Centre without approval, that he had associated with a student who was avoiding detection, that he had no work in Australia, that he had no return ticket to Fiji and was taking no action to procure a return ticket, and that Dr Flynn had made groundless complaints against Departmental officers. We do not find it necessary to consider these matters in any detail. It was open to the Minister to come to the view that the statements made to him were correct. It is not for this Court to examine each statement and to reach its own conclusion as to its correctness. It is sufficient for us to say that we are not persuaded that the Minister failed to take into account any of the matters which were relevant to the making of his decision under s. 18 to deport the appellant. Nor has it been shown that any irrelevant consideration was taken into account.

23. We do not think it is for the court upon an application for a review of a decision under the Judicial Review Act to determine for the decision-maker every matter which he should regard as being relevant to the making of his decision. No doubt there will be some matters which, upon any view of the nature of the decision, must be relevant or irrelevant to the making of it. But, as Deane J. said in Sean Investments v MacKellar (supra) at p. 375:

"This does not, however, mean that a party
affected by a decision is entitled to make an
exhaustive list of all the matters which the
decision-maker might conceivably regard as
relevant and then attack the decision on the
ground that a particular one of them was not
specifically taken into account. In this
regard, I consider that the following comments
of the United Kingdom Court of Appeal (Megaw,
James and Geoffrey Lane LJJ.) in Elliott v
Southwark London Borough Council (1976) 2 All
ER 781; (1976) 1 WLR 499 at 507 in relation to
a local authority, are appropriate in respect
of the recommendations of the Committee and the
decision of the Minister in the present case:
'It is clear that the matters which the local
authority should consider ... vary from case
to case. It is not for the court to prescribe
a list of matters which must always be
considered or to prescribe which factors would
be given more weight than others. It is worth
repeating that the function of the court, where
such issues are raised, is not to substitute its
own opinion or decision on matters which
Parliament has left to the judgment of the local
authority but to decide whether the local
authority in reaching its decision has acted in
accordance with the statutory provisions."

24. We are therefore of the opinion that the learned primary judge was correct in his finding that it had not been established that there was any ground for the making of an order of review on the ground referred to in paras. 5(2)(a) and (b).

25. There remains to be considered the argument that there was no evidence or other material which would justify the making of the decision to deport the applicant. In our opinion there is no substance in this submission. There was abundant material before the Minister which could properly have led him to make his decision. At the time he made the decision the applicant was a prohibited immigrant by reason of s.7(3) of the Migration Act. The last entry permit which had been granted to the applicant had expired on 10 March 1983, i.e. some 4-1/2 months prior to the making of the decision. The facts as they existed as at the time he made his decision provided adequate material justifying the making of that decision.

26. Upon the hearing of the appeal the appellant sought the court's leave to adduce fresh evidence. The evidence consisted of letters written shortly prior to the hearing of the appeal by the Principal of one College of Technical and Further Education and the Assistant Principal of another such college. We are of the opinion that neither letter, if admitted into evidence, could have any relevance to any question as to whether the Minister's decision was open to review. Accordingly, we think the application to adduce the further evidence should be rejected.

27. For the reasons given, the appeal must be dismissed with costs.