Re Hacoglu Tuncak v BL Smith (Who Is Sued In His Capacity As the Director Entry Operations, Department of Immigration and Ethnic Affairs) [1988] FCA 19 (5 February 1988)

FEDERAL COURT OF AUSTRALIA

Re: HACOGLU TUNCAK
And: B.L. SMITH (WHO IS SUED IN HIS CAPACITY AS THE DIRECTOR ENTRY OPERATIONS,
DEPARTMENT OF IMMIGRATION AND ETHNIC AFFAIRS)
No. VG432 of 1987
Judicial Review

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.(1)

CATCHWORDS

Judicial Review - Immigration - Refusal to grant entry permit - Natural justice - Allegations that applicant had adopted false identities and used false passports - failure to permit opportunity to answer.

Judicial Review - Immigration - Refusal to grant entry permit - Whether decision so unreasonable that no reasonable person could have so exercised the power - Hardship to children of applicant - Abandoned by wife.

Administrative Decisions (Judicial Review) Act, 1977 - ss. 5, 13 Migration Act 1958 - ss. 6, 36A

Prasad's Case [1985] FCA 47; (1985) 6 FCR 155

HEARING

MELBOURNE
5:2:1988

Counsel for the Applicant : Mr. G. McD. Harris

Counsel for the Respondent : Mr. T. J. North

Solicitors for the Applicant : Sackville Wilks & Co.

Solicitor for the Respondent : Australian Government Solicitor

DECISION

Application for an order of review in respect of a decision of the respondent to refuse the applicant an entry permit under section 6(2) of the Migration Act.

2. The decision was made on 22 October 1987 and the respondent has provided a statement, pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977, of his findings and his reasons for the decision. The circumstances which led to the making of the application for an entry permit are narrated by French J. in written reasons for his judgment in another proceeding which concerned the applicant as well as other persons. The reasons were published on 1 September 1987. I will gratefully adopt as my own the statement of the circumstances to which his Honour refers in the first 12 pages of the reasons for his Honour's decision, and I will not repeat what his Honour there sets out. His Honour was concerned with a decision, made immediately after the arrival of the applicant at Perth on a commercial airliner from Thailand, to refuse entry to the applicant. His Honour declined to set aside that decision and the applicant remains a person who has not in a legal sense entered Australia, although he is in custody under the provisions of section 36A of the Migration Act 1958. While the proceedings which concluded before French J. on 1 September 1987 were in train, other applications were made by the applicant, all of them designed to achieve the result that he be permitted under the provisions of the Migration Act to have at least a temporary entry permit under that Act, his ultimate object being to obtain permission to reside permanently in this country where his wife and three children reside. The children were born here, as appears by the narrative in the reasons for judgment of French J., and they have so far as appears, I think, always resided here, except perhaps for a short time when they may have gone abroad with their mother. The reasons of the respondent furnished under section 13 of what I will call the Review Act make it clear that he allowed very great weight to the circumstances attending the applicant's attempt to enter this country late in July 1987, as I have said, on a commercial airliner. The applicant attempted to rely upon a forged passport which he had purchased in Bangkok and he relied also upon a concatenation of falsehoods which he told to the Australian Immigration authorities. Naturally the respondent, who had the authority to decide the applicant's application for a temporary entry permit gave great weight to those circumstances as indicating that the applicant was a person whose conduct had disentitled him to any consideration of entry to this country. There was admitted to the respondent's consideration a number of circumstances which would tend to favour the grant of the permit, in particular circumstances connected with the situation of the applicant's wife and children. And the respondent has stated in his reasons that he gave consideration to those matters, that he acknowledged to himself that the decision to refuse the permit would be likely to, or might at all events, involve hardship to the wife and to the children, but he came to the judgment on balance that there was not in those circumstances or in any of the other circumstances to which he referred sufficient to justify the grant of the entry permit.

3. The grounds of the application fall into two categories. One category is found summarised in the amended originating document, also called an application, in ground 1. That ground asserts that the decision was made in circumstances in which there were breaches of the rules of natural justice. It is contended that the respondent took into account, and was influenced by, material which alleged that the applicant had, over a period of years, adopted many false identities and used many false passports, and material that suggested that the applicant was a particular named person called Olmez, who was alleged by the Turkish government to have been guilty of, and to have been convicted of, murder in Turkey. The applicant's case is that the respondent failed to give the applicant an opportunity of stating what he would wish to state in response to those allegations, and made the decision under the influence, at least to some extent, of those allegsations, without ever having given the applicant the opportunity of removing or qualifying the influence that those allegations were having upon the respondent's mind. There is also another particular of breach of natural justice rules labelled (c), but I do not consider either that that does specify a breach of any rule of natural justice or that it provides any other ground of attack on the decision.

4. As to the allegations which I have summarised, and which were not brought to the attention of the applicant as allegations which would, or might, influence the respondent, I am not persuaded that the respondent's mind was influenced by those allegations. It is not every piece of prejudicial material which must be drawn to the attention of an applicant so that he may make a response to it. It is only material which is in fact having, or to have, an influence on the decision maker's mind. And it does not to me appear that this respondent was influenced to the decision he made by those allegations. Rather the evidence justifies the probable conclusion that the respondent decision maker maintained an attitude of sceptical agnosticism to most of those allegations and other allegations of that kind concerning the applicant.

5. The other class of grounds upon which the applicant seeks to rely are set out under ground 4 in the amended originating application. There is, I think, no substance in the circumstances particularized in paragraphs (a), (b), (c), (e) and (f) of the particulars under that ground. Particular (d) asserts that "the respondent made decisions which were in all the circumstances known to him so unreasonable that no reasonable person could have so exercised the powers given by section 6 of the Migration Act." Particular (g) asserts that the respondent "failed to take into account the matrix of facts that surrounded the applicant's decision to arrive in Perth on 28 July 1987." Then particular (g) goes on to state in summary form the situation which faced the applicant at the time when he took the decision to come to Australia armed with a false passport and a false story, by which he proposed to gain entry to Australia and, as he contends, thereafter to surrender to the Immigration authorities and to disclose the true circumstances in which he found himself, and the circumstances which led him to take that course.

6. In my opinion, there is nothing to indicate that the respondent failed to appreciate the existence of the circumstances which the applicant says influenced him to take the decision to come in that false guise. The evidence shows that by the time this particular decision was made in October 1987 the respondent had been able - or I perhaps should say that officers of the Department had been able - to assemble material which, broadly speaking, confirmed the account which the applicant advanced of the circumstances influencing him to make that false approach to Australia, if I may use that expression. There is nothing, I think, to suggest that the respondent decision maker was not conscious of that set of circumstances which appropriately enough is referred to as a matrix of fact in particular (g). It is true that one would suppose that he gave little exculpatory weight to the circumstances, although one is not sure of that from the statement of the reasons. But there is in my opinion no ground for a suspicion that he simply failed to take those circumstances into account or to give them such exculpatory value as he thought they deserved.

7. I think there is no substance in the matters specified in particulars (h), (i), (j), (k), (l), (m), (n) or (o).

8. The general complaint, stated in particular (d), that the decision itself was so unreasonable that no reasonable person could have so exercised the power can be supported, I think, and was supported in submission, by reference to the following circumstances. There was material before the decision maker, the respondent, at the time he made the decision, that the three very young children of the applicant had been at least temporarily abandoned by their mother, the applicant's wife, perhaps because she had become mentally disturbed or perhaps for some other reason. One could hardly expect that the respondent on the material before him could have any confident idea as to why she had left them or indeed whether she was still at the time of the decision out of contact with them. But the material clearly enough showed that she had left them in July 1986; that they had been thereafter in the de facto care and custody of the applicant's step-brother and that step-brother's wife in a household in which there were three children of that marriage. The material also showed that, after having been made the subject of a care and protection order in July, each child in early September 1987 had been admitted to the care of the Victorian Department of Community Welfare Services and was still in the actual care of the applicant's step-brother and his wife. There was material to show declarations by the step-brother that this situation could not continue and that the children would have to be handed over to the care of strangers under institutional or governmental control and that the care of the children was imposing, among other things, a financial burden on him and his wife. The decision maker, the respondent, acknowledged in his reasons for decision that the refusal of the applicant's application for an entry permit might cause real hardship to the children, but one can infer from those reasons that he did not consider that circumstance of sufficient weight to justify the grant of the permit. The attack on the decision is not that the court would conclude that the decision maker should have come to the conclusion that the risk of harm to the children was of sufficient weight to require the grant of the application. The real case is that the decision maker should have made enquiries to determine more accurately and from more reliable sources what the position of the children was and what the position of the children was likely to be in the event that the applicant were to remain out of this country for an indefinite period into the future, so that a judgment might be made as to the importance to the welfare of those children of the presence of the applicant free in this country. It is said by the highest authorities that the evaluation of the weight to be accorded to a particular consideration is generally a matter for the administrative decision maker and not for the court. Ordinarily, those considerations which are to be taken into account are indicated by the subject matter of the legislative provision conferring the discretionary administrative power, by the particular provisions of the legislation and by other general considerations of policy which may be confidently deduced from legislative provisions of the legislature concerned. In this particular case the basis of the argument that further attention should have been given to determining the position of the children and the likely effect of the exclusion of their father from this country derives not from anything that is to be found in the Migration Act, or indeed, so far as I can think at the moment, from any other provision of Commonwealth legislation. It depends upon a fundamental principle of the common law that the executive, no less than the judiciary, is in loco parentis in relation to all infants within this country. That is a fundamental principle of the common law. It is true that by reason of the apportionment of legislative powers between States and Commonwealth the primary obligation lies on the Crown in right of the State, rather than on the Crown in right of the Commonwealth. But the obligation, the parental obligation, owed by the executive government falls, in my opinion, on any executive government exercising power under the common law. And it is the strength of that principle of the common law which in my opinion calls for careful consideration, in the exercise of this particular statutory power, of the interests and welfare of children placed such as these children were, that is to say having a parent who is subject to the exercise of the power to refuse entry under the Migration Act. It is in relation to such a consideration not in my opinion to the point to refer to observations, judicial observations, to the effect that it is for the applicant to present the material to the decision maker, and that the decision maker has no obligation to go searching on his own initiative to find material relevant to the making of his decision. In respect of interests of the applicant I accept those statements of authority which bind me. But they were not made with advertence to the interests of somebody quite other than the applicant himself and quite other than the members of the general community whose interests it is the concern of the decision maker to consult and consider. It is still, as Mr. North submitted, for the decision maker and not for the court to determine what weight, what comparative or relative weight should be given to the interests of the welfare of a child such as these children, in comparison with the interests of the community to which a decision maker exercising this power would have regard. And it is only if the court is able to conclude that the weight attributed by the decision maker is so far wrong as to be an attribution that no reasonable person could have made that the court can interfere. I cannot, I think, in this case say that there was error of so gross a kind as to justify the intervention of the court in exercise of the power of review. It is consistent with reasoning that could not be condemned as outside the limits allowed by law that the decision maker may have thought, first, that there would be likely to be quite a long delay even in obtaining reliable information about the situation of the children. He may also have thought that, no matter how reliable and how prompt the information concerning the children would be, he would be hard put to it - and not only he but any officer exercising the power conferred by the section - would be very hard put to it to form any useful, reliable estimate as to what effect for good or ill the presence of the applicant in the country might be expected to have for the welfare of the children. This is not a case of the mother of children who has had them in her custody for, perhaps, several years and who is then separated from them for a relatively short time and who is then seeking to enter this country so that she may resume the care of them : a situation in which it would not, perhaps, be difficult to gather information as to how she had nurtured the children during the period when they were in her care and upon that information make a reasonably confident estimation as to what she would be likely to be worth to the children in terms of their welfare if she were re-admitted to the country and enabled to resume the care of them. It is true that the applicant himself was with the children during their very earliest years, but in the nature of things his contribution to their welfare would depend upon all sorts of circumstances virtually undiscoverable by a decision maker in the position of an officer of the Department : to what degree the applicant would commit his time and efforts to the political cause in which he was so deeply involved, to what extent he would be able to earn enough money to make a significant contribution to their material welfare, to what extent he would be capable of providing the personal relationship which is so important to young children. These are things which no delay and no enquiry would be likely to throw much light on, and it may be that the decision maker had considerations of that kind in mind when he made his decision. At all events, it has not been shown by evidence that, if he had made both enquiries concerning the position of the children and enquiries concerning the suitability of the applicant, he would, or ought to, have come to a state of mind favourable to the grant of the entry permit. In that connection it must be borne in mind, as Wilcox J. said in Prasad's Case[1985] FCA 47; , (1985) 6 F.C.R. 155 at 169-170, that:

"A power is exercised in an improper manner

if, upon the material before the
decision-maker, it is a decision to which no
reasonable person could come. Equally, it is
exercised in an improper manner if the
decision-maker makes his decision - which
perhaps in itself, reasonably reflects the
material before him - in a manner so devoid of
any plausible justification that no reasonable
person could have taken this course, for
example by unreasonably failing to ascertain
relevant facts which he knew to be readily
available to 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."

9. His Honour was in that passage concerned with the question as to whether material which was not before the decision maker may be put before the court, and he pointed out in a passage preceding the passage I have read that there are three possible views at least. One is that paragraph 5(2)(g) of the Review Act "applies only to a case in which the court is able to hold that upon the material actually or constructively before the decision-maker, the decision was unreasonable. At the opposite extreme, it is arguable that the question is whether upon the evidence before the court as to the facts at the date of decision, and whether or not all of those facts were known to, or reasonably ascertainable by the decision-maker, his decision objectively considered was unreasonable. An intermediate position is 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." (6 F.C.R. at 169). Wilcox J. came to the conclusion that what he describes as the intermediate position is the correct one. I have drawn attention to that only because in this case there is not material which shows at all what would have been disclosed to the respondent if he had caused enquiries of the kind I have indicated to be made, so that the matter has to be determined upon what he might reasonably have expected would have been produced by the making of enquiries. I cannot, I think, say that his failure to cause those enquiries to be made was so unreasonable a course that no reasonable person could have taken it. It would be open, I think, to him to have taken the view that, while the enquiries might have told him what the situation of the children was much more accurately than the material before him did, he had no reason to expect any accurate material enabling him to make an accurate appraisal of the value of this applicant to those children in this country during their infancy. Therefore, I cannot come to the conclusion that the ground particularised in ground 4(d) has been made out, and in my opinion the application must be dismissed.