Re Jose Carlos Barrero v the Right Honourable Christopher Hurford, Minister of Immigration and Ethnic Affairs [1987] FCA 149 (13 May 1987)

FEDERAL COURT OF AUSTRALIA

Re: JOSE CARLOS BARRERO
And: THE RIGHT HONOURABLE CHRISTOPHER HURFORD, MINISTER FOR IMMIGRATION AND
ETHNIC AFFAIRS
No. ACT G73 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION
Neaves J.

CATCHWORDS

Administrative Law - judicial review - Immigration decision refusing permanent resident status - Decision that applicant be deported - Whether evidence of bias on the part of the decision-maker - Whether denial of natural justice - Whether a failure to take into account relevant considerations.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5

Migration Act 1958 (Cth), s.18

HEARING

CANBERRA
13:5:1987

Counsel for the applicant: Mr I. Nash

Solicitors for the applicant: Abbott Tout Creer & Wilkinson

Counsel for the respondent: Mr C. Stevens

Solicitor for the respondent: Australian Government Solicitor

ORDER

The application be dismissed.

The order made by Everett J. on 19 November 1986 staying the deportation order until further order be vacated.

The applicant pay the respondent's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36
of the Federal Court Rules.

DECISION

This is an application by Jose Carlos Barrero ("the applicant") under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") for an order of review in respect of decisions made by John Richard Mahoney, an officer of the Department of Immigration and Ethnic Affairs, on 12 November 1986 that the applicant be refused permanent resident status and that he be deported from Australia pursuant to s.18 of the Migration Act 1958 (Cth). Before determining that the applicant should not be granted permanent resident status, Mr Mahoney determined that he should not be granted a further temporary entry permit. He also considered whether the applicant should be afforded an opportunity to depart Australia voluntarily but decided against doing so.

2. Mr Mahoney made the decisions upon consideration of a comprehensive submission dated 3 November 1986 made to him by Mr W. Perram, Director of the Enforcement Section of the Department, to which numerous documents were attached. Mr Mahoney made findings of fact in accordance with what was contained in pars 1 - 39 of the submission and adopted the assessment of the case as expressed in pars 41 - 49 thereof. I need refer to the submission and the attachments only to the extent that it is necessary to do so in order to deal with the submissions put to the Court on behalf of the applicant.

3. The applicant was born on 31 December 1960 and is a citizen of the Republic of Bolivia. He arrived in Australia as a private overseas student on 2 March 1979. On 23 January 1979 the applicant had signed an acknowledgment of understanding of the conditions of temporary entry to Australia as a student. He thereby acknowledged that he would only be permitted to continue to study in Australia if he made satisfactory progress in his course, that he was to return home on completing his approved course of study or training and that temporary entry as a student conferred no right of permanent residence in Australia at a later date. He commenced studies at the Australian National University in the Faculty of Arts.

4. The applicant appears to have had difficulty with his course of study and failed in some of the subjects. This led to his progress being at times regarded as unsatisfactory and his continued status as a private overseas student questioned. However, he was permitted to continue with his studies which he completed in June 1984 graduating Bachelor of Arts. Upon completion of his course the applicant made no effort to leave Australia.

5. The applicant was from time to time granted temporary entry permits. However, the most recent of those permits expired on 15 July 1985. In consequence, he has since that date been, and is, a prohibited non-citizen.

6. It was not until sometime after he had completed his studies that the applicant applied for refugee status. On 14 November 1984 he submitted an unsigned application for such status on the ground of his belief that, if he were to return to, and live in, Bolivia, his personal security and liberty would be in danger. One of the documents lodged in support of the application was a letter dated 30 April 1984 he had received from his father in Bolivia. The letter concerned the recent death of the applicant's grandfather who had, in fact, been responsible for the applicant's upbringing. An English translation of the letter reads as follows:

"I write to you to inform you that my father died
yesterday from a heart attack. He was under
house arrest because the Government accused him
of having taken part in a revolutionary plot
together with other members of the Army. His
sudden death has placed the authorities in a very
embarrassing situation because they do not know
how to explain the circumstances of his death,
considering that he did not suffer from any heart
condition and was a very healthy man, and
particularly because at the time of his death
there were no relatives present.

In no circumstances should you travel to La Paz
because, as you know well, I am being persecuted
politically. I have been unable to obtain my
reinstatement in the Ministry of Foreign Affairs
since I was dismissed from my position as
Counsellor with our Embassy in Uruquay in order
to replace me by President Siles' daughter. If
you come back to Bolivia, I am afraid you will
find it impossible to obtain employment, given
that to enter the Public Service one must be
without exception a member of the left-wing
parties supporting the Government. As for
employment in the private sector, all factories
and firms are reducing their staff and many have
fallen into bankruptcy as a consequence of the
huge economic crisis in which we are living. As
explained above, your chances in La Pax are
non-existent and there is also a high risk of
your being arrested by the authorities, according
to what I have told you about my father's death.

You must stay in Australia and continue your
studies at all costs. I will take care of all
the necessary legacy arrangements and send you
the part you are entitled to. But I insist that
you must stay there - it would be very risky for
you to come back.

I will write to you very soon to let you know
about the progress of the legacy arrangements."

7. The application was examined by the Determination of Refugee Status (DORS) Committee which recommended on 24 May 1985 that the applicant be not recognised as a refugee within the terms of the United Nations Convention Relating to the Status of Refugees and the related protocol. That recommendation was approved on 25 July 1985. The decision to refuse refugee status was conveyed to the applicant by letter dated 12 September 1985 from the Department of Immigration and Ethnic Affairs signed by the Chairman of the DORS Committee Secretariat. The letter stated that it was open to the applicant to request a review of the decision if he considered he had new information of a substantive nature which had not previously been considered by the Committee. The letter also stated that a copy had been forwarded to the Canberra Regional Office of the Department "which will later be in contact with you concerning your plans for departure from Australia".

8. Although the applicant, by letter received in the Department on 8 October 1985, expressed an intention to request a review of his application for refugee status, no such request was made. On or about 14 October 1985 a request was made for a statement under s.13 of the Judicial Review Act in respect of the decision to refuse refugee status. A statement was subsequently provided.

9. The applicant had no further contact with the Department until shortly before 31 July 1986 when he approached the Department to inquire about applying for permanent resident status. On that date the applicant was interviewed by Mr K.C. Johnson, an officer of the Department. The interview lasted approximately one and a half hours. A record of the interview was prepared, the document consisting of typewritten questions and handwritten responses. The responses are recorded in Mr Johnson's handwriting. The record of interview was one of the attachments to the submission made to Mr Mahoney.

10. According to the record of interview, Mr Johnson informed the applicant that he proposed to ask him questions about his immigration status and his circumstances in Australia and that he, Mr Johnson, would record the answers. The applicant was informed that he was suspected of being an illegal immigrant and, therefore, liable to deportation. He was specifically told that he was being afforded an opportunity to put forward any factors which he wished to have considered. He was also informed that a report of the interview would be given to the person who was to make the decisions in his case. At the end of the interview he was given an opportunity to read and amend the answers that had been recorded by Mr Johnson. He signed the document as being a true record of the interview. He was given a copy of the signed document. He stated that a friend, Mr Jose Marques, was intending to make written submissions on his behalf. None were, in fact, received.

11. In the course of the interview the applicant gave his marital status as single and referred to the fact that he was living in a de facto relationship with a woman (later named as Ines Eulalia Miranda). The applicant said that he had met the woman at the end of 1983, that she was separated from her husband and that the applicant had lived with her since April 1986. I interpolate that Mrs Miranda's full name appears to have been Maria Ines Eulalia Miranda. At the time she swore her affidavit in these proceedings on 19 November 1986 she was known by the name Maria Ines de la Maza. On 13 December 1986 she and the applicant married. She is now known as Maria Ines Barrero.

12. The applicant answered affirmatively to a question whether he was willing to depart voluntarily if it were decided that he should be permitted to do so. Having been informed that his request to depart voluntarily would be considered and might be refused in which event the question of deportation would be considered, the applicant was asked what circumstances he wished to have put before the decision-maker when decisions were made on the possibility of his remaining in Australia, his voluntary departure and the possibility of his being deported. He is recorded as having said, in part:

"I would rather go voluntarily but I would have
to have time to get my ticket. I am in love with
my de facto and if I leave voluntarily I would at
least be able to come back and visit. I would
rather not be deported because I could not apply
to come back. I don't want to have the
government of Australia pay for my ticket."

Earlier in the interview he had replied "No" to the question "Do you have a return ticket?" He also said that he had no cash or savings.

13. On 8 August 1986 the applicant applied for permanent resident status on the grounds of a de facto marriage relationship with a resident of Australia and on the basis of strong compassionate or humanitarian grounds. In the application, the applicant declared that he was living in a de facto marriage relationship with Ines Eulalia Miranda which had commenced on 3 April 1986. He also declared that neither he nor his de facto spouse had any assets. Ines Eulalia Miranda declared to the same effect. An attachment to the application gave the following additional information:

"I first met Ines towards the end of 1983. From
that time, we developed a very close
relationship. However, at that time she had just
separated from her husband. A few weeks later,
the husband came back because her daughter has
had serious psychological problems since 1973 and
a psychologist recommended that it would help
Karen if her parents could remain living
together. They did not however, then live as man
and wife but simply shared the flat. Last year
my wife's mother came back from Chile to help
care for Karen and her parents decided that it
was no longer necessary for the father to stay in
the flat. The husband left the flat at the end
of March this year and I was able to move in a
few days later.

Ines and I have been wanting to live with each
other for a long time but we had been prevented
by circumstances from doing so. At the beginning
of this year we decided to get married as soon as
her divorce comes through in October of this
year. We are getting married also because the
social custom is that we should not be living
together unless we are married.

Ines filed her application for divorce in the
A.C.T. in the Family Court about two weeks ago.
I have attached a copy of her divorce
application.

Ines receives supporting parents benefit which is
paid directly into her savings account. I
receive special benefits which is paid directly
into my account. But we put all our money
together to pay for all the expenses of living."

The applicant also put forward material in support of the application for the grant of resident status on compassionate or humanitarian grounds.

14. Mrs Miranda was interviewed by Mr Johnson on 11 September 1986. A record of that interview is another of the documents attached to the submission that was put to Mr Mahoney. Mrs Miranda was asked questions about her relationship with the applicant. According to the record of interview she said that in 1983 she had separated from her husband, Alexander Miranda, and that she had one daughter. She said she was unemployed, receiving social service benefits. She said she met the applicant a few days after her separation from her husband, that the relationship began as a friendship but became intimate a few months later. She and the applicant had, she said, been living together since April 1986. She further said that she was intending to obtain a divorce and to marry the applicant. In answer to the question "Why didn't you apply for a divorce before this?" she answered "Because there were other considerations". She said that the applicant had asked her to get a divorce "but I couldn't overcome the emotional problems". She was asked whether the applicant had enough money to purchase a ticket and replied "No - we've both been on government benefit". She further said that the applicant could not borrow the money for a ticket.

15. The applicant contends that a breach of the rules of natural justice occurred in connection with the making of each of the decisions under review (Judicial Review Act, s.5(1)(a)). Reliance was placed upon a number of matters, any one of which was said to be sufficient to warrant the setting aside of the decisions.

16. Much of the applicant's argument under this head was concerned with a submission of bias on the part of the decision-maker, Mr Mahoney, in the sense that fair-minded people might reasonably apprehend or suspect that he might not have brought an impartial and unprejudiced mind to the exercise of the discretions vested in him: The Queen v. Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Livesey v. New South Wales Bar Association (1983) 47 ALR 45. The particular matters relied on may be summarised as follows:-

(a) That Mr Johnson had failed, in the
report of the interview with the
applicant on 31 July 1986, to present
the true picture as told to him that the
applicant had the means available to
him, albeit that those means were
overseas and not in Australia, to enable
him to depart from Australia
voluntarily;

(b) That Mr Mahoney had taken into account a
statement said to have been made by Mr
Johnson during the interview with Mrs
Miranda on 11 September 1986 that the
applicant's father had forwarded a false
document pertaining to his father's
alleged persecution in Bolivia although
this statement had never been put to the
applicant so as to afford him an
opportunity to make submissions about
it;

(c) That Mr Mahoney took into account, as
casting doubt on the genuineness of the
applicant's de facto relationship, that
that relationship was not mentioned to
the Department by the applicant until
after his applicantion for refugee
status had been refused, notwithstanding
that the applicant had not been given an
opportunity to comment upon that aspect;

(d) That Mr Mahoney was not fully informed
of what Mrs Miranda had said to Mr
Johnson during the interview on 11
September 1986 concerning her
relationship with the applicant since
they met in 1983; and

(e) That Mr Mahoney had taken into account
that there were irregularities
concerning the applicant's entry into
Australia although the applicant was not
informed of them and afforded an
opportunity to comment upon them.

17. The above matters will need to be discussed under other of the grounds upon which the applicant relies. However, I do not propose to discuss them under this head as I am satisfied that there is no basis whatsoever for concluding that a situation had arisen in which a fair-minded member of the public might entertain a reasonable apprehension that Mr Mahoney might not bring an impartial and unprejudiced mind to the matters before him. If the matters relied upon are made out, they may provide a basis for relief on other grounds but not on the ground of bias.

18. I turn to the other matters on which reliance is placed by the applicant to establish that there has been a denial of natural justice in connection with the making of the relevant decisions.

19. It was submitted that a number of undertakings had been given to the applicant and that there had been a failure on the part of the Department to honour those undertakings. The undertakings relied upon were -

(a) an undertaking said to have been given
to the applicant by Mr Johnson on 31
July 1986 that he would be notified of
the decision upon his permanent resident
status before any consideration was
given to the question of deportation;

(b) an undertaking said to have been given
to the applicant by Mr Johnson that, if
a decision to refuse permanent resident
status was made, he would be given an
opportunity to depart voluntarily; and

(c) an undertaking said to have been given
on 4 November 1986 that no order for
deportation would be made against him
prior to 18 November 1986.

20. The evidence to support the first of these undertakings is contained in the affidavits sworn by the applicant on 19 November 1986 and 22 January 1987. In the earlier of his affidavits the applicant says that, to the best of his recollection, Mr Johnson said "that because I was prepared to go voluntarily I would have at least 21 days to prepare and arrange for my departure following the decision on permanent residence". In his later affidavit he says that the following conversation took place between himself and Mr Johnson:

Applicant: "Do you think I have a chance if I apply
for permanent residence?"

Mr Johnson: "I don't think so but you can do it
although it will cost you."

Applicant: "How long have I to do that as I would
want to arrange my affairs and say
good-bye to friends."

Mr Johnson: "As you are prepared to go voluntarily
two weeks up to 21 days to make your
arrangements after notification of the
result of your permanent residence
application. As you are prepared to
leave voluntarily you will not be
deported."

21. Objection was taken to the admissibility of the evidence concerning the conversation with Mr Johnson on the basis that he was not the decision-maker. I received the evidence subject to the objection but on reflection, I am satisfied that the evidence was admissible.

22. Mr Johnson did not give evidence in the proceedings and the applicant was not cross-examined as to his recollection of the conversation concerning an opportunity being afforded to him to leave voluntarily after the result of his application for permanent resident status was known. In those circumstances I accept that there was some discussion of the matter along the lines deposed to by the applicant. However, I am far from satisfied that what was said amounted to an undertaking of such a character that the making, immediately following the decision to refuse resident status, of the decision that the applicant be deported is tainted with a failure to accord the applicant procedural fairness. It must have been apparent to the applicant from the nature of the questions be was asked during the interview that the question of his deportation was under consideration. It was also made clear at that interview that the decisions would be made by an officer other than Mr Johnson. It must also be remembered that Mr Johnson was speaking with the applicant at a time when no application for permanent resident status had been made but was only contemplated as a possibility. What was said may well have represented Mr Johnson's expectation of what would happen but it falls far short of an undertaking of the kind which would be necessary to found the applicant's contention.

23. The second of the undertakings referred to relies upon the same evidentiary material. Again, I do not think that anything that Mr Johnson is alleged to have said has the effect of tainting the decision taken by Mr Mahoney that the applicant should be deported. The highest that the matter can be put is that the applicant should have been informed that a decision was to be taken upon deportation so that he might have an opportunity to put material to the decision-maker. However, he had already been given that opportunity and had been invited to submit any material additional to that mentioned to Mr Johnson at the interview which he wished the decision-maker to take into account.

24. What is relied on as embodying the third undertaking is a document dated 4 November 1986 and signed by the applicant in which he acknowledged that he had been directed to report to the Enforcement Section of the Department, Melbourne Building, Civic, Canberra on 18 November 1986 and undertook to do so. The document continued:

"I understand that failure to abide by that
direction, or this undertaking to report at the
above specified place and time may result in
either -

(a) A Deportation Order being signed against
me or

(b) My being taken into Custody.

I undertake to immediately notify any change of
address or change in my circumstances."

The document also bears the signature of an officer of the Department.

25. I am unable to regard this document as amounting to an undertaking by the Department that no decision concerning the applicant and, in particular, that no deportation order would be signed prior to 18 November 1986 provided there was no breach by the applicant of his undertaking.

26. Some reliance was also placed on the circumstance that, although the letter dated 12 September 1985 from the Department to the applicant informing him that his application for refugee status had been refused stated that the Canberra Regional Office of the Department would be in contact with him concerning his plans for departure from Australia, no such approach was made. I am unable to appreciate how that circumstance can throw any doubt on the validity of the decisions made by Mr Mahoney on 12 November 1986.

27. It was also submitted that a breach of the rules of natural justice had occurred because of the circumstance that the decision that the applicant should be deported was made immediately following the decision to refuse his application for permanent resident status. In my opinion this submission has no foundation. It was clearly open to the decision-maker to act as he did.

28. Two other matters were relied upon as amounting to breaches of the rules of natural justice, it being alleged that each matter amounted to a serious allegation against the applicant relied upon by the decision-maker but not put to the applicant so as to afford him an opportunity to deal with it. The two matters were -

(a) the allegation previously referred to
that the applicant's father had
forwarded a false document pertaining to
his father's alleged persecution in
Bolivia; and

(b) the allegation also previously referred
to that there were irregularities
concerning the applicant's entry into
Australia.

29. The first of these allegations is based on a statement made by Ms de la Maza in her affidavit sworn on 18 November 1986 that Mr Johnson had on 11 September 1986 "ventured the opinion that the applicant's father had forwarded a false document pertaining to his father's alleged persecution in Bolivia". There is a further reference to this part of the interview in Ms de la Maza's later affidavit.

30. It is unnecessary to determine whether, in fact, Mr Johnson said words to that effect to Ms de la Maza for, even if he did so, he expressed no such opinion in any of the material that was placed before the decision-maker. The decision-maker had before him the letter dated 30 April 1984 from the applicant's father to the applicant, a letter which had been considered by the DORS Committee. The basis for saying that Mr Mahoney took into account that that letter was false is to be found, so the argument ran, in pars 35 and 48 of the submission put to him by Mr Perram. Paragraph 35 of the submission does no more than summarise, adequately in my view, what the applicant had written in support of the application for permanent resident status made on 8 August 1986. The summary records that in what the applicant wrote there is a reference to his father's letter, the text of which is set out above, the applicant stating that it was not until he received that letter in May 1984 that he became aware that he would be persecuted if he returned to Bolivia. Paragraph 48 of the submission, so far as material, stated that the applicant's fear of returning to Bolivia had been examined in detail and had been found to be insubstantial. This statement is obviously based on the DORS Committee report.

31. In my opinion, it has not been established that Mr Mahoney had before him any information to suggest that the letter from the applicant's father contained false information. Still less is it possible to be satisfied that he took that matter into account in reaching his decisions. It is significant that, although Mr Mahoney was required to attend for cross-examination and was cross-examined, he was not asked any question in relation to this aspect of the matter.

32. The second of the matters referred to was but faintly relied on and I need say no more about it than that I am satisfied it was not a matter which the decision-maker took into account.

33. A further ground of attack upon the decision that the applicant be deported was that the decision-maker had failed properly to consider the question of the applicant's willingness to depart voluntarily. It was submitted that the decision-maker had failed to take into account that the applicant had the means available to him to depart voluntarily. Alternatively, it was said that the decision-maker should have made further enquiries into that aspect of the matter before deciding that a deportation order should be made.

34. The material that was before Mr Mahoney on this point at the time he made the decision that the applicant be deported was as follows:

. the statements made by the applicant to
Mr Johnson on 31 July 1986 that he did
not have a return ticket and had no cash
or savings.

. the statements by the applicant and Ms
de la Maza in the application for
permanent resident status made on 8
August 1986 that neither of them had any
assets.

. the statement made to Mr Johnson by Ms
de la Maza on 11 September 1986 that the
applicant did not have enough money to
purchase a ticket and could not borrow
the money for that purpose.

35. Ms de la Maza, in her affidavit sworn on 18 November 1986, referred to five British Airways miscellaneous charges orders with a total value of $US1,278.00. Photocopies of the orders were annexed to the affidavit. The orders bear date 1 February 1985 and show Barrero as the name of the passenger. The applicant in his affidavit sworn on 19 November 1986 says:

"In early 1985 my father had forwarded to me from
Bolivia a British Airways Charges Order to a
value of US$1,278.00. I had requested this
ticket from my father as at that stage I believed
that should my refugee application, and any other
application for permanent residence, prove
unsuccessful I would need to have the means to
depart Australia. As the type of ticket has a
validity of only 12 months it needed to be
renewed early this year and hence I sent it back
to my father in or about April of this year. At
the time of the interview with Mr Johnson I knew
that the ticket was still with my father and in
fact I only received it back approximately two
weeks ago. In the circumstances at all times I
had the means to depart voluntarily."

In his later affidavit the applicant says that, in answer to the question by Mr Johnson "Have you got any means to leave Australia?", he replied "Not at the moment. It will take me some time to get in contact with my father and to get the ticket".

36. The applicant was cross-examined in relation to this aspect of the matter. I found his evidence quite unsatisfactory. Although he said he then had a ticket to enable him to depart from Australia, the ticket was not produced despite a call for its production. He agreed, however, that at the time of the interview with Mr Johnson he did not have a ticket in his possession and he did not then have funds sufficient to enable him to purchase one. He also agreed that he had taken no steps to inform the Department that he had received a current ticket from his father in October or November 1986.

37. In all the circumstances, I am satisfied that it was open to the decision-maker on the material that was available to him to reach the conclusion he did that the applicant did not at the time the order for deportation was made the means to enable him to depart from Australia voluntarily. The applicant was well aware that the means available to him to depart Australia was a relevant matter for the decision-maker yet, assuming the circumstances, had changed since 31 July 1986, he took no steps to inform the decision-maker of those changed circumstances. There was no obligation on Mr Mahoney to make further enquiries of the applicant. I should add that, on the evidence, I am satisfied that the applicant did not on 31 July 1986 have readily available to him the means to leave Australia voluntarily. I am not satisfied that he had those means available to him when Mr Mahoney made the decisions under review. Equally, I am not satisfied that he now has the means to do so.

38. In support of the ground that the decision-maker had failed to take into account relevant considerations (Judicial Review Act, ss.5(1)(e) and 5(2)(b), it was submitted that the decision-maker had failed to take into account the reasons which had been advanced to Mr Johnson by Ms de la Maza concerning the fact that no reference had been made by the applicant to his relationship with her until the application for permanent residence status was made in August 1986.

39. I am satisfied on the material before me that Mr Mahoney regarded the de facto relationship which existed between the applicant and Ms de la Maza as being a genuine relationship. The fact, if it be the fact, that other material tending to show that the relationship was genuine was not before him is of no consequence. In any event, the record of the interview with Ms de la Maza was before Mr Mahoney and material substantially to the same effect as that given by her to Mr Johnson was contained in the attachment to the application for permanent resident status which was also before Mr Mahoney when he made his decision. In the circumstances, I am unable to conclude that Mr Mahoney was bound in inquire further into the circumstances of the de facto relationship.

40. In the result, each of the grounds upon which the application is based fails. The application is, therefore, dismissed with costs. The order made by Everett J. on 19 November 1986 staying the deportation order until further order is vacated.