Re Mahmut Topuz; Hatice Topuz and Ender Topuz (An Infant Who Brings This Claim Through His Next Friend and Father, Mahmut Topuz) v the Honourable Christopher John Hurford Minister of Immigration and Ethnic Affairs and the Commonwealth of Aust [1986] FCA 30 (18 February 1986)

FEDERAL COURT OF AUSTRALIA

Re: MAHMUT TOPUZ; HATICE TOPUZ and ENDER TOPUZ (an infant who brings this
claim through his next friend and father, MAHMUT TOPUZ)
And: THE HONOURABLE CHRISTOPHER JOHN HURFORD MINISTER OF STATE FOR IMMIGRATION
AND ETHNIC AFFAIRS and THE COMMONWEALTH OF AUSTRALIA
No. V G184 of 1985
Administrative Law

COURT

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

CATCHWORDS

Administrative Law - order to review decisions to refuse residence and to order deportation - whether evidence to justify decision - whether decision unreasonable - whether decision in accordance with rule or policy without regard to merits - whether irrelevant considerations taken into account - whether failure to take into account relevant considerations - whether decision-maker required to go beyond information provided by applicants - whether statement of reasons to be accepted as true and complete statement.

HEARING

MELBOURNE
18:2:1986

ORDER

DECISION

An application was filed on 5 August, 1985 for an order to review, under the Administrative Decisions (Judicial Review) Act (the Judicial Review Act), decisions made by the respondent Minister, through his delegate, on 21 June, 1985. Those decisions refused to grant permanent residence to the firstnamed and secondnamed applicants (the two applicants) and ordered their deportation. The thirdnamed applicant was their child, who, having been born in Australia, is an Australian citizen. A statement of reasons by the delegate, dated 10 September, 1985, was supplied under s. 13 of the Judicial Review Act (the delegate's reasons).

2. The application was amended by leave on 4 February, 1986, the first day of the hearing, and on 7 February, 1986, the applicants' counsel clarified the issues by a further amendment by leave, and by stating that grounds 7-14 inclusive were not pursued. Grounds 1 and 4, which over-lapped, must fail for reasons which will appear in dealing with ground 3 (which will be considered last) and in dealing with ground 5. Ground 15 fails for the same reasons as ground 3.

3. Ground 2 was that there was no material to justify the decision to deport the two applicants, it being contended that there was no evidence of the alleged breaches by the two applicants of their undertakings (1) not to remain in Australia after the expiration of their permits, (2) not to undertake employment and (3) not to seek to reside permanently in Australia. However, on the material, it is clear that each of the two applicants had breached each of those three undertakings. The applicants' counsel accepted that the delegate's statement as to the breaches was "literally" true but he described those breaches as being "technical" and referred to various mitigating circumstances. In my opinion ground 2 cannot succeed.

4. Ground 5 was that the decision-maker took into account irrelevant considerations and failed to take into account relevant considerations. Further and better particulars of both were provided. I turn first to the question of irrelevant considerations. The matters referred to in those particulars were analysed by the applicants' counsel at considerable length and with great persistence. Those particulars have been carefully considered and the delegate's reasons examined in detail but it is not necessary to deal with them at great length in these reasons.

5. Paragraph 4 (i) (a) of the particulars reads :-

"(a) the fact that the respondents had earlier made

deportation orders against the applicants."

On my reading of the delegate's reasons, the delegate did not take into account, as a factor in any way adverse to the applicants, the fact of the making of earlier deportation orders.

6. Paragraphs 4 (i) (b), (c) and (d) of the particulars related to the breaches of undertakings, referred to earlier. In my opinion those breaches were not irrelevant considerations, notwithstanding that various events had occurred which may be said to constitute mitigating circumstances in relation to them.

7. Paragraph 4 (i) (e) of the particulars was not relied upon. Paragraph 4 (i) (f) of the particulars reads :-

"(f) an application for sponsorship allegedly made by
the father of the secondnamed applicant."

The reference, in Part A of the delegate's reasons, to the application for sponsorship appears to have been no more than a recording of that fact, taken from the history set out in the departmental "summary". In my opinion there is nothing to show that the delegate took that matter into account in any way adverse to the applicants.

8. Similarly, there is nothing to show that the delegate (as contended by the applicant's counsel) took into account, in a manner adverse to the applicants, the statement in paragraph 12 of the delegate's reasons. That statement was another part of the history, taken from the "summary", which stated that the Department's Melbourne office advised on 18 July, 1983 "that there had been no contact by the family and their whereabouts was (sic) unknown". The delegate made no other reference to that matter. He did not state that the two applicants should be blamed in any way or that they had failed in any duty to notify a change of address; nor did he make any reference to the length of time taken to ascertain their whereabouts or the extent of the efforts required to do so.

9. I turn now to the question of the applicants' contention that there was a failure to take into account relevant considerations. Paragraph 4 (ii) of the particulars itemised some 17 "relevant considerations". Paragraph 4 (ii) (b), (i), (n) and (q) of those items were not pursued. As to most of the remaining items, in my opinion it is quite clear, from a fair reading of the delegate's reasons, that he did take into account each of those considerations. By "take into account" I mean that he treated them as being relevant considerations and considered whether to attach any weight to them in the exercise of his power to decide; it was, however, for him, having decided to treat them as relevant considerations, to determine whether to attach any, and what, weight to each matter.

10. A number of the matters in the particulars were quite specifically referred to in the delegate's reasons. There is nothing in any of the material before the Court to suggest that the delegate, in the course of performing his statutory duty under s. 13 of the Judicial Review Act, falsely claimed to have taken into account or to have considered matters which in fact he had not taken into account or had not considered. The applicants' counsel recognized that difficulty. Towards the end of his address he submitted that the delegate had failed to take into account "the hardship . . . if they returned to Turkey and their extreme difficulty in re-assimilating themselves in Turkey", but he conceded that "it is extremely difficult to . . . say it" in the light of the delegate's reasons. Those reasons included an express statement that the delegate had considered "the possible effects ont he family as a whole if they were returned to Turkey".

11. As to the other "relevant considerations" allegedly not taken into account, a number were not specifically referred to in the delegate's reasons. However, they were matters that had been relied upon by the applicants' solicitors, in their carefully prepared and very detailed representations on behalf of the applicants to the delegate and the delegate's reasons specifically referred to written representations made by those solicitors and dated 17 September, 1984, 24 April, 1985, 17 May, 1985 and 5 June, 1985.

12. In paragraph 30 of his reasons the delegate said that he "considered that, in all the circumstances of the case" he should decide "to order the deportation" of the two applicants. He had already, in paragraph 27, stated that he "took into account their personal circumstances" and had referred to certain specific matters. Each of those matters had been dealt with in the solicitors' representations and I accept the submission of the respondents' counsel that, on the material, there is nothing to suggest that the delegate failed to take into account any of the considerations relied upon in the applicants' particulars. Again, it was a matter for the delegate to determine whether to attach any weight to them.

13. In his address the applicants' counsel referred to two other matters allegedly not taken into account. One was "the fact that (the applicants) had integrated into Australian society during their stay". In my opinion it has not been shown that the delegate failed to take into account the substance of that matter - having regard to his specific references to the solicitors' representations (cited earlier). It is true that the delegate did not use the word "integration" but it may be noted that the documents filed in this case show that the draftsman of the application, the draftsman of the further and better particulars and the draftsman of the amended application each failed to use the word "integration". The applicants' counsel, correctly in my view, conceded that there was no magic in the word "integration".

14. Another matter allegedly not taken into account was expressed by counsel as being "that the applicants had no intention of permanently remaining in Australia both on their arrival and during their stay". He accepted that in essence this was a submission that the delegate had wrongly taken into account, as a relevant consideration, the view that the applicants had acted mala fide and had acted in a deceitful way in giving various undertakings which they had no intention of keeping. He submitted that that view by the delegate of the applicants was implied in paragraph 25 of his reasons, when read in conjunction with paragraph 3, which referred to sponsorship for migration by the father of Mrs. Topuz.

15. I regard that submission as being quite untenable on any reading of the delegate's reasons. In my opinion there is nothing to suggest that the delegate, in referring to breaches of undertakings, did not assume that those undertakings had been given bona fide by the applicants at the time; paragraph 25 refers to the breaches of those undertakings and neither it nor any other part of the delegate's reasons suggests in any way that the applicants had acted mala fide or deceitfully at the time of giving the undertakings.

16. The applicants' counsel also referred to the applicants' wish "to depart voluntarily rather than be deported". That matter was expressly considered (paragraph 19(e) of the delegate's reasons) and apparently rejected on the basis that the applicants "have assets of only $300 cash and $600 in material possessions . . . (and) debts of $6,000 and $4,000". It may be added that the solicitors' representations had not asked that the applicants be allowed to depart voluntarily in preference to deportation.

17. Ground 6 of the amended application was that the delegate :-

". . . exercised discretionary power in accordance
with the rule or policy without regard to the
merits of the Applicants' cases in arriving at the
decisions to deport the Firstnamed and Secondnamed
Applicants and their children."

In my opinion that ground cannot possibly be sustained, having regard to the delegate's reasons and in particular to paragraphs 26, 27, 28 and 30 of those reasons, which include the express statement (in paragraph 27) that the delegate "took into account their personal circumstances".

18. It was submitted that the delegate did not do what he said he had done. The delegate had a statutory duty to perform under s. 13 of the Judicial Review Act in preparing and furnishing to the applicants that statement of the reasons for his decisions. In the absence of evidence, it would be quite wrong to assume that he failed to perform that statutory duty. As Brennan J. said in Kioa and others v West and anor. (unreported judgment of Full High Court, delivered 18 December, 1985, at 92) :-

"That statement should be taken to be a true and
complete statement of the delegate's reasons unless
there is evidence to the contrary (see per Stephen
J. in Ex parte Ratu, at p 474)."

19. I accept, with respect, what Toohey J. said in Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392 :-

"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."

20. However, in this case, after hearing a most detailed examination by the applicants' counsel of the material before the Court, I am quite unable to form the opinion that the delegate did not do what he has said that he has done i.e. to revoke the existing deportation orders and to consider afresh, on all the material before him and, in particular, the representations put to him by the applicants' solicitors, whether to grant permanent residence (as requested by them) or "to order afresh the deportation of the Applicants."

21. It was submitted that the delegate had "not taken into account those initial facts which were the subject of the initial application" made in 1981. However, insofar as any of those facts were not placed before him by the applicants' solicitors, I agree, with respect, with the statement in Turner's case, supra, where Toohey J. said, at 392-3 :-

"I do not think, at least in the present case where
the applicant had the benefit of family and legal
advisers in making submissions to the Minister,
that it was the Minister's obligation to go beyond
that material."

22. The delegate did not take into account the reasons for the earlier refusal of the 1981 application. Those reasons were not put before him and I reject the submission that he should have considered whether that decision, made in 1982, was wrong. His duty was to put that decision out of his mind and to consider afresh, in 1985, the applications, on the material put before him, including the solicitors' representations. There is nothing to suggest that the delegate did not do so. I reject the submission that he "had merely rubber-stamped something that had been put to him" and also the submission that he "took as his starting point" the 1982 decision. In my opinion there is nothing in the material to suggest that the delegate was aware of - let alone that he took into account in a manner adverse to the applicants - any doubts as to the credibility of Mrs. Topuz expressed by a departmental officer in 1982. Accordingly, affidavits by her and by her husband as to matters shortly before and after her arrival in Australia in 1981 were not relevant.

23. The applicants' difficulty in attacking the actual statement of the delegate's reasons was such that their counsel sought to attack the 1982 decision as being wrong. His examination of the material concentrated mainly upon documents other than the delegate's reasons, including the departmental "summary" which was part of the material before the delegate. In my opinion, neither that document, nor any of the other material, gives any reason to doubt the statement in the delegate's reasons as to what he in fact did.

24. The applicants tendered a large amount of material which had been listed by the respondents in their list of documents, supplied to the applicants in these proceedings. Those documents consisted of material on the departmental files, including file notes by officers relating to a consideration of the applicants' position in 1981-1982, and including reasons for rejecting their 1981 application. That material was not part of the material considered by the delegate and the respondent objected to its admissibility. Although I had considerable doubts as to whether that material was admissible in evidence, I decided to admit the material, subject to objection, having regard to the following statement by Wilcox J. in Prasad v Minister for Immigration and Ethnic Affairs ((1985) 7 A.L.N.; N79-N82). His Honour there expressed "a tentative view" that :-

". . . the Court is entitled to consider those facts
which were known to the decision-maker, actually or
constructively, together only with such additional
facts as the decision-maker would have learned but
for any unreasonable conduct by him.

. . . . .

The circumstances under which a decision will be
invalid for failure to inquire are, I think,
strictly limited. It is no part of the duty of the
decision-maker to make the applicant's case for
him. It is not enough that the court find that the
sounder course would have been to make inquiries.
But, in a case where it is obvious that material is
readily available which is centrally relevant to
the decision to be made, it seems to me that to
proceed to a decision without making any attempt to
obtain that information may properly be described
as an exercise of the decision-making power in a
manner so unreasonable that no reasonable person
would have so exercised it. It would follow that
the court, on judicial review, should receive
evidence as to the existence and nature of that
information."

There has been a very careful and lengthy examination by the applicants' counsel of that additional material. However, in my opinion, that examination has not revealed anything which gives any support to any of the submissions advanced by the applicants. As Wilcox J. said "It is no part of the duty of the decision-maker to make the applicant's case" - see also the second passage from Turner's case, supra, which is quoted earlier in these reasons.

25. Lastly, ground 3, as amended at the hearing, was a contention that "each of the decisions was a decision that no reasonable man could make on the material". That contention is also rejected. In my opinion it was quite proper for the delegate, on the material before him, to make each of the decisions made by him.

26. Accordingly, the application for review must be dismissed. The applicants submitted that, if their application was granted, there should be an order for their costs, but that, if it was dismissed, there should nonetheless be an order in their favour in respect of the costs of the earlier hearing of a notice of motion by the respondents. That motion was dismissed. The Court in its reasons for judgment, given on 9 October, 1985, did not accept the applicants' submission that they should be awarded the costs of that hearing. I have reconsidered those submissions in the light of the subsequent course of the litigation, including my decision today to dismiss the substantive application. I am still of the opinion, expressed in the reasons for judgment on 9 October, 1985, that the applicants could have avoided the necessity for having a second hearing, namely, "an urgent ex parte hearing of the application for a stay, followed by the . . . hearing of the respondents' . . . notice of motion". In my opinion the applicants should be ordered to pay the respondents' costs, including the costs of the hearing which led to the judgment on 9 October, 1985.