Re Ilona Renate Doherty; Matthew James Keefe; Tissarian Matthew Keefe and Joerg Waletzko v Minister of Immigration and Ethnic Affairs [1987] FCA 7 (20 January 1987)

FEDERAL COURT OF AUSTRALIA

Re: ILONA RENATE DOHERTY; MATTHEW JAMES KEEFE; TISSARIAN MATTHEW KEEFE and
JOERG WALETZKO
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. WA G89 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Administrative Law - judicial review - application for review of denial of further temporary entry permits, denial of residential status and consequent deportation order - temporary entry permit expired - motion to strike out application as disclosing no reasonable basis in law - applicant married to, but no longer living with, person holding a permanent entry visa - applicant lived in defacto relation with Australian citizen, but now separated, and with a child by him - failure to consider merits of the case - improper exercise of power, based on policy - denial of natural justice

Administrative Decisions (Judicial Review) Act 1977 s.5

Migration Act 1958 ss.6, 6A, 7, 18

Federal Court Rules O.20 r.2, O.54 r.6

HEARING

PERTH
20:1:1987

ORDER

The application, in so far as it relates to

A. the decision of the respondent, made 4 August 1986
pursuant to sub-s.6(2) of the Migration Act 1958,
that the first applicant and the fourth applicant
not be granted further temporary entry permits;

B. the decision of the respondent, made 4 August 1986
pursuant to paras.6A(1)(b) and (e) of the Act, that
the first applicant and the fourth applicant not be
granted permanent residence;

C. the decision of the respondent, made 4 August 1986
pursuant to s.18 of the Act, that the first
applicant and the fourth applicant be deported to
West Germany

is dismissed.

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

DECISION

This application was originally brought in the name of Ilona Renate Doherty, the first applicant. It challenged decisions of the respondent that she be deported and that she not be granted permanent resident status.

2. As a result of a recent amendment to the application, there are now four applicants. The second applicant is Matthew James Keefe with whom Mrs. Doherty is living in a somewhat mercurial relationship. The third applicant, Tissarian Matthew Keefe, was born on 25 April 1986 and is the child of Mrs. Doherty and Mr. Keefe. The fourth applicant, Joerg Waletzko, was born on 16 April 1977 in the Federal Republic of Germany and is Mrs. Doherty's child by a previous marriage.

3. In its amended form the application seeks to review four decisions said to have been made by the respondent.

1. The first is a decision, made 4 August 1986 pursuant to
sub-s.6(2) of the Migration Act 1958, that Mrs. Doherty and
Joerg not be granted further temporary entry permits.

2. The second is a decision, made 4 August 1986 pursuant to
paras.6A(1)(b) and (e) of the Act, that Mrs. Doherty and
Joerg not be granted permanent residence.

3. The third is a decision, made 4 August 1986 pursuant to s.18
of the Act, that Mrs. Doherty and Joerg be deported to West
Germany.

4. The fourth is a decision, made 9 September 1986, that the
deportation order not be varied.

4. The applicants rely on a number of provisions in s.5 of the Administrative Decisions (Judicial Review) Act 1977 and their application lists a number of grounds in support of the various attacks made on the decisions in question. Mrs. Doherty and Mr. Keefe have sworn affidavits in support of the application and Graham Alexander Broom, Assistant Director, Citizen and Control Branch with the Department of Immigration and Ethnic Affairs, has sworn an affidavit in answer. The matter presently before the Court is a motion by the respondent that the application be dismissed as disclosing no reasonable basis. Authority for such a motion is to be found in O.20 r.2 of the Federal Court Rules, read with O.54 r.6.

5. Counsel for the respondent made detailed submissions in support of the contention that the application disclosed no reasonable basis. But the crux of the argument was that the grounds of the application, when properly analysed, amounted to no more than attacks on the weight given by the respondent to the various matters Mrs. Doherty had urged on her own behalf and on behalf of her son Joerg. Counsel emphasised that the role of the Court is to review the legality, not the merits, of administrative decisions and submitted that this application was a thinly disguised attempt to obtain an appeal by way of rehearing. This argument was rejected by counsel for the applicants.

6. The principles upon which courts act in deciding whether to dismiss an application as disclosing no reasonable cause of action are well known though their application is not always easy. The power to dismiss is one to be exercised sparingly but the fact that argument, even extensive argument, may be necessary in support of a motion to dismiss does not mean that the power should not be used. If, at the end of the argument, the Court is satisfied that the application is futile, it is appropriate to exercise the power accordingly. The relevant authorities are noted by Burchett J. in McMahon v. Smith (unreported decision delivered 27 November 1986).

7. To appreciate the arguments for and against dismissal of the application, something must be said about events leading up to the deportation order against Mrs. Doherty. She was born in East Germany on 27 March 1955. She arrived in Australia on 16 December 1984 at the invitation of Brendon John Doherty whom she had met in Amsterdam and whom she married in Sydney on 3 May 1985. Mrs. Doherty was a West German citizen and Mr. Doherty a New Zealand citizen. She was accompanied to Australia by her son Joerg. She had been married and divorced twice before coming to Australia; Joerg is a child of one of those marriages. Mrs. Doherty and Joerg held visitor visas and were issued with conditional temporary entry permits, valid for six months. Those permits have long since expired and no further temporary entry permits have been granted. Mrs. Doherty and Joerg are now prohibited non-citizens.

8. While in Sydney, Mrs. Doherty made enquiries from the Department of Immigration and Ethnic Affairs regarding residence in Australia and in August 1985 she was sent application forms for herself and her son. She had then separated from Mr. Doherty and she did not return the forms. About this time she began a relationship with Mr. Keefe, an Australian citizen, and they travelled to Perth where their child Tissarian was born. By June 1986 Mrs. Doherty and Mr. Keefe had separated. Mrs. Doherty went to the Perth office of the department where she completed an application for permanent residence on the grounds of her marriage to Mr. Doherty and on compassionate and humanitarian grounds. The application was refused.

9. Sub-section 6(1) of the Act declares that a non-citizen who enters Australia without an entry permit "thereupon becomes a prohibited non-citizen". A prohibited non-citizen may be deported (s.18). An entry permit may be granted to a non-citizen upon his arrival in Australia or, subject to s.6A, after he has entered Australia (sub-s.6(5)). After a non-citizen has entered Australia, he or she may only be granted an entry permit in accordance with s.6A. While not spelled out in the clearest of terms, it is apparent that an entry permit may be temporary and conditional (sub-s.6(6)). Notwithstanding the reference to s.6A in sub-s.6(5) and the terms of s.6A itself, a person may while a temporary entry permit is in force or after it has expired be granted a further entry permit (s.7). Although s.7 refers to a further entry permit without the qualifications of "temporary" or "conditional", the operation of s.6A would be thwarted unless s.7 was in truth concerned with temporary entry permits. Nevertheless there are difficulties with the relationship between ss.6, 6A and 7 as Ryan J. observed in Daguio v. Minister for Immigration and Ethnic Affairs (unreported decision delivered 31 October 1986).

10. Further temporary entry permits could have been granted to Mrs. Doherty and Joerg but the respondent declined to grant them. The decision not to grant them is attacked as being an improper exercise of power and as a denial of natural justice. The improper exercise of power is based on a failure to take into account a relevant consideration and in making a decision on the grounds of policy without regard to the merits of the case. These matters are particularised in the application but no case was made out in respect of this decision and it ought not be permitted to remain in the application. The relevant consideration it is said the respondent failed to take into account is "the failure by officers of the Respondent's Sydney office to advise the First and Fourth Applicants of the consequences pursuant to sub-section 7(3) of the Migration Act 1958 of not extending their T.E.P.'s beyond the 16th of June, 1985, despite the written enquiry of BRENDON JOHN DOHERTY of the 14th of June, 1985". Mr. Doherty's letter is not in evidence.

11. It is not contended expressly that there was an obligation on the respondent to inform the applicants of the consequences of temporary entry permits not being extended; rather it is said that the respondent did not take into account the failure by his officers so to advise the applicants. The answer to this is that the respondent's officers were not bound to give that advice and it is nothing to the point to say that the respondent should have considered his officers' failure to do so in deciding whether the temporary entry permits would be renewed. The renewal of those permits was a matter to be determined on the merits of the application when made.

12. The allegation that the respondent made his decision on the grounds of policy without regard to the merits of the particular cases of Mrs. Doherty and Joerg is simply not borne out by the material before the Court and it is unnecessary to say anymore about this matter.

13. Equally the applicants failed to demonstrate an arguable case of a denial of natural justice. That denial is said to derive from the respondent's refusal to grant them further temporary entry permits, thereby rendering them ineligible to apply for permanent residence under s.6A. But the refusal to grant a further temporary entry permit, as authorised by s.7, cannot of itself constitute a denial of natural justice. No case was made out that in refusing to grant further temporary entry permits the respondent had not given the applicants an opportunity to be heard or that in some other way he had denied them natural justice.

14. The challenge made to the decision that Mrs. Doherty and Joerg not be granted "permanent residency" is, as I understand it, a challenge to a decision refusing them an entry permit, unlimited in time, pursuant to s.6A.

15. This decision is said to have been an improper exercise of power in that it was exercised on policy grounds without regard to the merits of the particular case. The application particularises various circumstances which, it is claimed, go to the merits of the case and which, by inference, are said to have been overlooked. In seeking permanent residence, Mrs. Doherty and Joerg relied on paras.(b) and (e) of sub-s.6A(1). The sub-section precludes the granting of an entry permit to a non-citizen after entry into Australia unless one or more of the conditions specified in the paragraphs is fulfilled. The relevant paragraphs read:

"(b) he is the spouse, child or aged parent of an
Australian citizen or of the holder of an entry
permit;

...

(e) he is the holder of a temporary entry permit which
is in force and there are strong compassionate or
humanitarian grounds for the grant of an entry
permit to him".

16. As to para.(e), neither Mrs. Doherty nor Joerg was at any relevant time the holder of a temporary entry permit so that there was simply no case for the issue of an entry permit under sub-s.6A(1) in reliance on that paragraph. As Lockhart J. said in Sundar v. Hurford (unreported decision delivery 27 November 1986):

"Plainly, unless one of the grounds of qualification in
sub-s.6A(1) applies, there is no point whatever in the
decision maker going through an artificial process of
determining an application for an entry permit knowing
that at the end of the process he will be bound by law
to refuse the grant of an entry permit because of the
absence of one or more of the qualifying factors in the
sub-section".

17. The reliance on para.(b) gives rise to different considerations because Mrs. Doherty was the spouse of an Australian resident. The fact that she was not living with Mr. Doherty when she sought permanent residence did not disqualify her from relying upon para.(b). Nor did the respondent approach the matter as if she was disqualified. Nevertheless the state of her marriage was a relevant consideration for the respondent to take into account when deciding whether or not to issue an entry permit under sub-s.6A(1). When Mrs. Doherty was sent forms by the department in August 1985 she was already separated from Mr. Doherty and the evidence indicates that this relationship was not resumed in any way. Although she did not return the forms, it is apparent from the statement of reasons tendered in evidence that the respondent did consider a grant of permanent residence in August 1986. The application to this Court lists a number of matters which, it is said, go to the merits of the case for permanent residence. But there is nothing to indicate that the respondent failed to take any of these matters into account so far as they were relevant, existing at the time of his decision and put before the respondent. Whether or not he gave them all the weight he should have may be another question but it is not a question for this Court. The Court's task is to assess the legality of the respondent's decision, not to stand in the respondent's shoes and make the decision for itself.

18. This decision is attacked on the further ground that the respondent denied the applicants natural justice in failing to consider the contents of Mr. Keefe's statutory declaration of 16 June 1986, in failing to consider the manner in which Mrs. Doherty's interview with Mr. White of the department on 10 June was conducted and in particular that erroneous advice was given that further temporary entry permits were unnecessary, and in failing to refer Mrs. Doherty to a trained welfare officer "when the Respondent had constructive notice through MICHAEL WHITE ... that she was in an emotionally disturbed state".

19. Mr. Keefe's statutory declaration was in evidence. There is nothing to indicate that the respondent failed to take into account the matters to which it refers. As to the other alleged denials of natural justice, the obligation that the applicants seek to impose upon interviewing officers of the department goes beyond anything that might reasonably be expected of them. It cannot be the responsibility of departmental officers to refer someone whom they are interviewing to a welfare officer. It may be that, in a particular case, the condition of a person who is being interviewed is so disturbed that any responses he or she gives should simply be disregarded and they should be interviewed again once they have calmed down. But that is not the case here; certainly the evidence does not bear out any such suggestion.

20. In challenging the decision to deport Mrs. Doherty and Joerg, the applicants simply repeat the grounds relied upon in attacking the first and second decisions. It is therefore unnecessary to say anything more about this decision.

21. As to the fourth decision made 9 September 1986, there is a difficulty arising because of the material or rather the lack of material before the Court. The challenge to this decision arose through the amendments to the application; none of the material before the Court refers to such a decision or to the circumstances surrounding it. The ground on which this decision is attacked is an alleged failure to take into account "the reports of MICHAEL WHITE of the 20th August, 1986 and MARIE STOKES of the 20th to 22nd August, 1986 both of which contained relevant new material for the Respondent's consideration".

22. These reports must have been made after the deportation order. Ms. Stokes is a welfare officer who saw Mrs. Doherty. The reports were not before the Court though counsel for the applicants read some passages from them. The position regarding this part of the application is unsatisfactory. The application itself was amended at the hearing of the motion and no objection was taken by counsel for the respondent. Counsel for the applicants explained the difficulties he had encountered in getting a further affidavit from Mrs. Doherty. In the circumstances I do not think I should strike out those parts of the application relating to the decision of 9 September 1986. But otherwise the application will be dismissed.