Re Minister of Immigration and Ethnic Affairs v Renee Maitan [1988] FCA 35 (24 February 1988)

FEDERAL COURT OF AUSTRALIA

Re: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
And: RENEE MAITAN
No. G468 of 1987 Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Beaumont(2) and Gummow(2) JJ.

CATCHWORDS

Administrative Law - judicial review - immigration - respondent granted temporary entry permit - did not depart Australia upon its expiration - prohibited non-citizen - applications for further temporary entry permit and permanent resident status refused - deportation ordered - whether Minister failed to take into account relevant consideration, namely, "occupational grounds" - discretion to grant temporary entry permit considered - relationship to grant of permanent resident status.

Administrative Decisions (Judicial Review) Act ss.5, 13 Migration Act 1958 ss.5, 6, 6A(1)(d)(e), 7, 38

Tang v. Minister for Immigration & Ethnic Affairs (1986) 67 ALR 177

Kioa v. West [1985] HCA 81; (1985) 159 CLR 550

Gunaleela v. Minister for Immigration & Ethnic Affairs (1987) 74 ALR 263

Murphyores Incorporated Pty Ltd v. The Commonwealth [1976] HCA 20; (1976) 136 CLR 1

Salemi v. McKellar (No.2) [1977] HCA 26; (1977) 137 CLR 396

Re Drake and Minister for Immigration & Ethnic Affairs (No.2) (1979) 2 ALD 634

The Queen v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45

Minister for Immigration & Ethnic Affairs v. Conyngham (1986) 68 ALR 441

Minister for Aboriginal Affairs v. Peko-Wallsend Ltd [1986] HCA 40; (1986) 66 ALR 299

Puhlhofer v. Hillingdon London Borough Council [1986] UKHL 1; (1986) AC 484

Regina v. Secretary of State for Social Services, Ex parte Wellcome Foundation Ltd (1987) 1 WLR 1166

Sinclair v. Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473

Turner v. Minister for Immigration & Ethnic Affairs (1981) 35 ALR 388

HEARING

SYDNEY
24:2:1988

Counsel for the Appellant: Mrs. P. Flemming Q.C., Mr. R. Cogswell

Solicitors for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Ms. C.C. Simpson

Solicitors for the Respondent: Messrs Ferrier & Associates

ORDER

The appeal be allowed with costs.

The orders made by Wilcox J. on 7 September 1987 be set aside and in lieu thereof it is ordered that the application be dismissed with costs.

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

DECISION

The appellant was the respondent to an application under the Administrative Decisions (Judicial Review) Act 1977 for an order of review respecting decisions made in pursuance of the Migration Act 1958 ("the Act") by Mr Luu, the Delegate of the Minister. He decided not to grant to Mr Maitan, the present respondent, a further temporary entry permit or a permanent entry permit but instead signed an order for his deportation. The application came before Wilcox J. who on 7 September 1987 set aside the decisions referred to including the decision to deport and remitted for further consideration the applications for the temporary entry permit and the permanent entry permit.

2. The present appellant has filed a notice of appeal and a supplementary notice of appeal and the present respondent (the applicant below) has filed a notice of contention.

3. The learned Judge summarised the basic issue in the case in his opening words as follows:-

"This case turns upon the adequacy of the consideration,

given by the delegate of the respondent Minister for
Immigration and Ethnic Affairs, to an application made
by the applicant for the grant to him of a permanent
entry permit upon occupational grounds. In particular
there is a question whether, in considering an
application for such a permit made by a non-citizen
already in Australia, the delegate is obliged to
consider the nature of the work being performed by the
applicant, or capable of being performed by him or her,
insofar as that is made known to the delegate, together
with the question whether a work permit should be
issued."

4. The respondent was born in Switzerland in June 1962. He came to Australia in November 1982 as a tourist, having been granted a temporary entry permit which was valid for a period of six months. It was clearly stated on the permit and the applicant knew that it was a condition of the grant of the permit that he not work in Australia unless authorised (s.6A(7)). He was not granted any further or other permit, and hence from the time of expiry of his permit was a prohibited non-citizen (s.7(3)).

5. In about January 1986 the respondent applied to become an Australian citizen and in January 1987 his application was rejected on the basis that he had not been resident for two years. On 11 February 1987, in response to a letter from the Department of Immigration Mr Maitan phoned the Department concerning his citizenship application and informed them that he was working in Collarenebri. He was told that he should not be working and was asked to come to the Sydney office of the Department to discuss his departure from Australia.

6. On 29 April 1987 he got in touch with the Parramatta office of the Department, again regarding his citizenship application, but he was told that he was not eligible for citizenship and should contact the enforcement section. According to the evidence he said that he had been told by the local member of Parliament that he should depart Australia. On 31 May 1987 he was located at Coopernook, arrested pursuant to s.38 of the Act, and taken into custody at the Immigration Detention Centre at Villawood.

7. On 16 June 1987 Mr Maitan made application for the grant of resident status, in reliance upon s.6A(1)(d) and s.6A(1)(e) of the Act. He apparently had not applied for a further temporary entry permit although consideration of the application by officers of the Department proceeded on the footing that if a case was made for permanent resident status a temporary entry permit would probably be granted, the latter being a pre-condition to the grant of a permanent entry permit under s.6A(1)(d) and s.6A(1)(e).

8. Whilst in Australia, Mr Maitan had worked on farm properties, being engaged in work of an agricultural nature. He commenced working in Australia in about May of 1983 for a Mr Pike on a herb farm near Wingham. He stayed with Mr Pike for approximately two years (until Mr Pike had to sell the property due to financial difficulties), working merely for board and lodging. About the time he lodged his citizenship application in January 1986 Mr Maitan met Mr Azzopardi. The latter owned a strawberry and tomato farm near Taree and a fruit and vegetable shop in Taree. Mr Maitan commenced working for Mr Azzopardi and remained with him until November 1986 when Mr Maitan left to obtain employment on a cotton farm in Collarenebri. He recommenced working for Mr Azzopardi in about January 1987 and worked on the latter's farm until his arrest on 31 May 1987.

9. So far as appears Mr Maitan had overseas qualifications in agricultural work and that was his interest. The case has so far turned on what has been regarded as an inadequate consideration by the responsible officers of Mr Maitan's skill and interest in agricultural matters.

10. The applications passed through a number of hands before they reached Mr Luu. It was first considered by two immigration officers, (Mr Gillett and Ms Peters) both of whom were agreed that the applications should be refused. Then it came to the hands of Mr Wilson, the Acting Assistant Director of Compliance and Criminal Deportation, who prepared a report in which he recommended to the Regional Director of the Department in Sydney that he refuse to grant either a temporary or a permanent entry permit, and that he sign a deportation order. Mr Wilson's recommendation was endorsed by Ms Nichol, Acting Director of the Migration and Visitor Entry Branch. The report was then considered by Mr Luu, whose decisions I have noted. In stating his decisions Mr Luu says "I have read this submission totalling nine (9) pages and the annexures 'A' to 'Q'". Mr Luu was not cross-examined, but the learned Judge was of the view that it was unlikely that Mr Luu, a senior officer with wide and heavy responsibilities, had done as he stated and read through the whole of the attached documents which the learned Judge described as quite voluminous. On the hearing of this appeal, counsel for the respondent has disavowed any submission that Mr Luu had not done as he said, but it is asserted that Mr Luu did not consider, or did not adequately consider the report. When asked to provide a statement of his reasons under s.13 of the Administrative Decisions (Judicial Review) Act 1977 Mr Luu did so by adopting Mr Wilson's report without any further elaboration. The alleged absence of attention to the documents by Mr Luu was an important part of his Honour's reasoning.

11. The report prepared by Mr Wilson shows that the Department knew at one stage that the respondent was working at Collarenebri and at some stage he was residing at Taree and that he was arrested at Coopernook. It goes on to state Mr Maitan's claim that he had obtained a certificate of agriculture in Switzerland and had been assisting Mr Azzopardi at Taree with his fruit and vegetable farm and associated retail store and that one of the factors which would weigh against deportation was that "an Australian resident Mr Bill Azzopardi would suffer hardship as he would not have the aid of Mr Maitan on his farm and in his store..." One of the annexures to the report (in fact the application for Australian citizenship dated 23 January 1987) shows Mr Maitan's occupation to be that of an agriculturist and he stated at the time that he was "self-employed by growing vegetables and herbs". Another document, a report of interview with an immigration officer, Mr Skene, dated 2 June 1987, refers to the agricultural certificate, and that the work he did overseas was agricultural in nature, that in Australia part of his work was full-time and part of his work (on the herb farm, and later on the strawberry farm, at Taree) was for board and lodging only. In his application for resident status he shows his addresses in Australia as including Wingham, Taree, Collarenebri and central Lansdowne. In the same application in the section dealing with immigration history he refers to the work performed by him "as dipping, irrigating, farm work and establishment of herb farm". In Part A of his application for resident status on strong compassionate or humanitarian grounds he deals with the situation of Mr Azzopardi and his close relationship with him and refers to the latter's farm. In Part F of his application for resident status on occupational grounds he deals rather fully with his agricultural experience and qualifications before coming to this country. In a hand written document written at the Detention Centre he refers repeatedly to his interest in farming and agriculture. A report, to which I have referred, by one of the earlier investigating officers (Mr Gillett), with which another officer (Ms Peters) agreed, refers to the agricultural certificate and how Mr Azzopardi would suffer hardship in relation to the conduct of his farm and fruit and vegetable shop if the respondent were to be deported. I have already mentioned the report of Mr Wilson.

12. It is true that these reports are bureaucratic and emphasise the legal situation. The respondent was after all a prohibited non-citizen, had committed a breach of his undertaking not to work in Australia, and had remained in this country for three years or more after the expiry of his permit. There were also some incorrect or evasive answers sometimes given by him to the authorities.

13. The relevant parts of s.6A are as follows:-

"6A.(1) An entry permit shall not be granted to a
non-citizen after his entry into Australia unless
one or more of the following conditions is
fulfilled in respect of him, that is to say -

...

(d) he is the holder of a temporary entry permit
which is in force, is authorized to work in
Australia and is not a prescribed
non-citizen; or

(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.

...

6A.(7) For the purposes of sub-section (1), a person who
is the holder of a temporary entry permit granted
after 28 October 1979 shall be taken to be
authorized to work in Australia -

(a) if that temporary entry permit was not
granted subject to any condition imposing
restrictions with respect to the work that
may be performed by him in Australia;

(b) if that temporary entry permit was granted
subject to a condition imposing restrictions
on his performing work other than specified
work or work of a specified kind in
Australia; or

(c) if that temporary entry permit was granted
subject to a condition imposing restrictions
on his performing any work without the
permission, in writing, of an authorized
officer, and such a permission in writing
has been given and has not been revoked.

6A.(8) In this section, a reference to an entry permit
shall be read as a reference to an entry permit
other than a temporary entry permit."

14. It is plain that permanent residence cannot be granted unless the applicant is first the holder of a temporary entry permit. As I have already said it seems to be the practice that if permanent residence is justified a temporary entry permit will be granted and so far as paragraph (d) of s.6A(1) is concerned the provisions of sub-section (7) can be satisfied. The fact is however, that attention must first be directed to the grant of the temporary entry permit. This is a matter that seems wholly discretionary, in the sense that there are no statutory guidelines. There are of course broad limits to the exercise of the discretion, but it is unnecessary to discuss these.

15. The challenge to the exercise of the discretion is largely made through the treatment of the application under s.6A(1) for the grant of permanent residence. It is said in relation to that application that irrelevant matters were considered and relevant matters not considered. To this aspect I will return.

16. The fact is that Mr Luu, a Delegate, refused the application for a temporary entry permit which was treated as made as a basis for the s.6A application. There has been no complaint, and on the facts probably could be none, that Mr Maitan was unaware that he was, at least by implication, making an application under s.7(2) for a further temporary entry permit. The fact that he did not have one was fatal to his application under s.6A(1) in reliance on paras. (d) and (e). In relation to para.(d), he was also unable to show that he was "authorised to work in Australia."

17. In my view, the decision not to grant a temporary entry permit was not affected by any of the circumstances set out in s.5 of the Administrative Decisions (Judicial Review) Act 1977, with the result that the respondent could not have become a permanent resident. Submissions made by way of challenge tended to overlook the fact that relevant, and irrelevant circumstances for the purposes of s.5 need to be something more than incidental factual matters no matter how important they can be made to seem. Relevant facts to be taken into account must be those required by the relevant Act (expressly or impliedly) to be considered. This can be put another way by saying that they must be required by the purpose and scope of the legislation in question. One is looking to legality. A converse position applies in relation to considerations taken into account, but submitted to be irrelevant.

18. In the present case, the discretion being so wide, and obviously dependent on such a wide variety of factors which in part relate to immigration policy, there is no basis for a successful challenge under s.5, so far as concerns the application under s.7(2). It is not necessary, or useful, to consider submissions which have their basis simply in the s.6A application, but I will mention some matters raised by the respondent, in reliance upon that section.

19. It is submitted that for the purposes of s.6A the decision-maker did not take into account, or did not sufficiently take into account, the alleged hardship of Mr Azzopardi. In this connection it is put that while the position concerning Mr Azzopardi appears in the documents, which Mr Luu read, there is not apparent from any note he or anyone else made that he fully considered the position. It is a sufficient answer to this submission that it should not be assumed that he did not give that factor such weight as he thought appropriate. The situation was stated by Mr Wilson in his report. It would not be fatal if the s.13 statement made no reference to the matter, but in his statement under that section Mr Luu says:

"I based my decision on the attached submission from
Richard Wilson dated 9 July 1987 and the annexures
thereto.

I adopted the findings at Part A of that submission as
my findings on material questions of fact.

I accepted these findings of fact on the evidence before
me as set out in Part B of that submission.

I adopted the reasoning set out in the assessment at
Part C of that submission and that sets out the reason
for my decision."

20. A matter strongly pressed on behalf of the respondent is that Mr Luu did not, or did not adequately, consider what was stated shortly as "occupational grounds". This, indeed was the primary Judge's finding but made on a basis now disavowed. "Occupational grounds" referred to Mr Maitan's skill, experience and knowledge of agriculture. It is because of this aspect that I have earlier gone through the documents seen by Mr Luu and extracted passages dealing with agriculture. There can be no doubt that this position was clear to anyone studying the report and annexures and it should not be assumed that either Mr Wilson or Mr Luu failed to give it such weight as to them seemed appropriate. The degree of weight was a matter solely for them.

21. In my opinion the appeal should be allowed, the orders made by the primary judge set aside, and in lieu thereof it should be ordered that the application be dismissed.

The Minister for Immigration and Ethnic Affairs appeals from orders made by a Judge of the Court setting aside several decisions made on behalf of the Minister under the Migration Act 1958 ("the Act") and ordering that the matter be remitted to the Minister for further consideration according to law.

2. The respondent, Mr. Maitan, was born in Switzerland on 20 June 1962; he is not an Australian citizen; in the language of the Act, he is a "non-citizen" (see s.5(1)). After leaving school, he undertook an apprenticeship as a farmer and obtained a certificate in agriculture from a college in Berne. He entered Australia in November 1982 as the holder of a visitor's visa. He stated on his incoming passenger card that he was entering Australia as a visitor or temporary entrant; that he intended to stay in Australia for six months and that his main reason for coming to Australia was a holiday. The respondent was then granted a temporary entry permit under s.6(6) of the Act which was valid for a period of six months. Under that provision, an entry permit that is intended to operate, in the case of a non-citizen, as a temporary entry permit shall be expressed to authorise the person to whom it relates to remain in Australia for a specified period only, and such a permit may be granted subject to conditions. Such a permit may be granted subject to a condition imposing restrictions with respect to the work that may be performed by the holder in Australia, including restrictions on performing any work (s.6(6A) cf. s.6A(7)). The respondent's temporary entry permit was endorsed "employment prohibited without written permission of an authorised officer."

3. The respondent did not leave Australia at the expiration of the six month period. In about May 1983, he commenced working on a herb farm in Wingham; the Minister's permission to do so was not sought. He remained in that employment for some time and was later employed to work on a tomato farm near Taree.

4. In January 1986, the respondent applied for Australian citizenship. The application was rejected; the respondent was informed of this in January 1987. In May 1987, the respondent was arrested and taken into custody pursuant to the power conferred by s.38(1) of the Act. (Upon the expiration of a temporary entry permit, the person who was the holder of the permit becomes a prohibited non-citizen unless a further entry permit applicable to him comes into force upon that expiration (s.7(3)). An officer may, without warrant, arrest a person whom he reasonably supposes to be a prohibited non-citizen (s.38(1))). In June 1987, the respondent applied for the grant of a "permanent" entry permit. It is this application which was the subject of judicial review in the proceedings before the learned Judge under the Administrative Decisions (Judicial Review) Act 1977 ("Judicial Review Act").

5. Entry permits are dealt with by Division 1 of Part II of the Act. An entry permit may be granted to a non-citizen either upon his arrival in Australia or, subject to s.6A, after he has entered Australia (s.6(5)). An entry permit (i.e. a "permanent" entry permit as distinct from a temporary entry permit granted under s.6(6)) shall not be granted to a non-citizen after his entry into Australia unless one or more of the conditions specified by s.6A(1) is fulfilled in respect of him. Five conditions are there specified. For present purposes, mention should be made of the following:

"...

(d) He is the holder of a temporary entry
permit which is in force, is authorised
to work in Australia and is not a
prescribed non-citizen; or

(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."

6. It follows that no permanent entry permit could be granted to the applicant under s.6A(1)(d) or (e) unless he held a temporary entry permit which was then in force (see Tang v. Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177 per Davies J. at pp 182-3).

7. At the time of his application for a permanent entry permit (January 1987), the respondent's temporary entry permit had expired. However, by s.7(2), it is provided that "at any time...after the expiration...of a temporary entry permit, a further entry permit may, at the request of the holder, be granted to the holder." There was accordingly power, first, to issue a further temporary entry permit to the respondent under s.7(2) and then, that having been done, to grant him a permanent entry permit under s.6(5) provided the grounds stated in s.6A(1)(d) or (e) did exist (see Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 per Gibbs C.J. at p 561; per Mason J. at pp 580-2). To adopt the language of Mason J. in Kioa, the respondent would have been eligible for the grant of a permanent entry permit if he were first granted a further temporary entry permit provided that, to take para.(e) of s.6A(1) as an example, "strong compassionate or humanitarian grounds" for the grant of such a permit existed (see at p 582; see also Gunaleela v. Minister for Immigration and Ethnic Affairs (1987) 74 ALR 263 at p 280).

8. The power to grant a permit under ss.6, 6A and 7(2) is clear; but the present question is not whether the relevant power exists; the question is whether the power should be exercised in the particular case and this is a matter for the decision of the Minister in the exercise of his statutory discretion. As Gibbs C.J. said in Kioa (at p.565):

"A prohibited immigrant who seeks a permanent entry
permit under s.6A asks for the exercise of two
discretions in his favour - first under s.7(2) and
then under s.6A. It is to be noted that the
conditions stated in s.6A(1) restrict the power to
grant a permit but not the power to refuse one.
Only if a condition is fulfilled may an entry
permit be granted, but the fulfilment of a
condition does not oblige the Minister or other
authorized person to grant an entry permit."

9. In the first instance, the respondent's application, described as one for the "grant of resident status in Australia" was considered by Mr. R. Gillett, an immigration officer. In his written report dated 18 June 1987, Mr. Gillett considered the possible application of paras.(d) and (e) of s.6A(1) but recommended against the grant of a further temporary entry permit and further recommended against the grant of permanent resident status. His recommendation was supported by another officer, Barbara Peters.

10. The application was then referred to a more senior officer, Mr. R. Wilson, Acting Assistant Director, Compliance and Criminal Deportation. In his report dated 9 July 1987 addressed to the Regional Director of the Department in Sydney, Mr. Wilson recommended that the Director refuse the grant of a temporary or permanent entry permit and that the respondent be deported. These recommendations were endorsed by Mr. A. Nicholl, Acting Director, Migration and Visitor Entry Branch. On 13 July 1987, Mr. Tuong Quang Luu, the Director for New South Wales and Delegate of the Minister, decided to accept each of Mr. Wilson's recommendations.

11. At first instance, the respondent sought judicial review on several of the grounds for review specified in s.5 of the Judicial Review Act. The trial Judge found in favour of the respondent on one of these grounds, holding that Mr. Luu's decisions should be reviewed and set aside because his decision-making process failed to take into account a relevant consideration (Judicial Review Act, s.5(2)(b)). The relevant matter not taken into account was held to be the respondent's "employment position".

12. His Honour's reasons for this conclusion may be summarised as follows: (1) As was recognised by the immigration officers, it was within their power to grant a temporary entry permit which also authorised the respondent to work in this country. (2) It was thus "open to Mr. Luu to give effect to any view he might form as to the desirability of granting (the respondent) a permanent entry permit upon occupational grounds." (3) "In the absence of statutory criteria, a decision-maker is free to take into account such factors, in the exercise of his discretion, as he...thinks fit." (4) Under the Act, there are "positive indications of the considerations appropriate to be taken into account" in an application for a permanent entry permit. (5) Although an "over-riding" discretion to refuse a permit remains, the five paragraphs of s.6A(1) "constitute a list of matters whose application to the particular case must necessarily be determined..." (6) This "required the...officers to consider the merits of the (respondent's) case (put)...upon occupational grounds." (7) Mr. Luu was thus bound to consider the material submitted by the respondent in support of his claim insofar as it was based upon occupational grounds. (8) The evidence "suggests" that Mr. Luu did not consider this material: (a) it was unlikely that an officer as senior as Mr. Luu would read through the material; (b) Mr. Luu merely chose to adopt Mr. Wilson's document as his own; (c) Mr. Luu was not called.

13. With all respect, it is difficult to accept this analysis.

14. In the first place, it is necessary to consider the legal character of the initial discretion, that is to say, the discretion to grant a temporary entry permit. As has been said, unless that permit is granted pursuant to s.7(2) (cf. s.6(5)), the exercise of the ultimate discretion to grant a permanent entry permit under s.6 (read subject to the restrictions in s.6A(1)(d) or (e)) cannot arise for consideration.

15. In our view, the decision to refuse to grant a temporary entry permit was not vitiated by any error capable of review under the Judicial Review Act. Neither s.6(5) nor s.7(2) specify any criteria for the grant of a temporary entry permit. It follows that, although "entirely personal and whimsical considerations" will be excluded (per Stephen J. in Murphyores Incorporated Pty. Ltd. v. The Commonwealth [1976] HCA 20; (1976) 136 CLR 1 at p 12; see also per Mason J. at pp 17-18), an examination of the subject matter and the scope and purpose of the Act is necessary to enable a court to hold that the reasons given for the exercise of a statutory discretion "to be extraneous to any objects the legislature has in mind" (per Mason J. in Murphyores at p.23). In Murphyores, a challenge was made to the validity of a decision under the customs legislation. Mason J. said (at p.24):

"There is, I should have thought, every reason for
supposing that, within the framework of customs
legislation, a discretion to permit the exportation
of goods by way of relaxation of a prohibition, a
discretion which is not expressed to be subject to
any limitation, was intended to be wide enough to
embrace every consideration reflecting advantage or
disadvantage, benefit or prejudice to Australia,
flowing from the approval or refusal of an
application."

16. In our opinion, this reasoning is equally applicable to the exercise of the statutory discretion to grant, or to refuse to grant, a temporary entry permit. In other words, the discretion is to be exercised in the light of what, in the judgment of the Minister, is in the best interests of Australia. In deciding what is in the public interest, the Minister will need to balance the competing claims of possible advantage on the one hand and of possible detriment on the other so far as the national interest is concerned (see Salemi v. McKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396 at p 402; Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at p 655; The Queen v. Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd. [1979] HCA 62; (1979) 144 CLR 45; Minister for Immigration and Ethnic Affairs v. Conyngham (1986) 68 ALR 441 at p 450).

17. To determine whether it is in the interests of Australia to grant, or to refuse to grant, a temporary entry permit is essentially a matter for the judgment of the decision-maker (see Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. [1986] HCA 40; (1986) 66 ALR 299 at p 309). As Lord Brightman said in Puhlhofer v. Hillingdon London Borough Council [1986] UKHL 1; (1986) AC 484 at p 518:

"Where the existence or non-existence of a fact is
left to the judgment and discretion of a public
body and that fact involves a broad spectrum
ranging from the obvious to the debatable to the
just conceivable, it is the duty of the court to
leave the decision of the fact to the public body
to whom Parliament has entrusted the
decision-making power save in a case where it is
obvious that the public body, consciously or
unconsciously, are acting perversely."

18. In Regina v. Secretary of State for Social Services, Ex parte Wellcome Foundation Ltd. (1987) 1 WLR 1166, Sir John Donaldson M.R. said (at p 1175):

"Good policy-making, administration and decision
making involve studying problems from all angles.
It is a practical process and must never be
allowed, and still less induced, to become a
theoretical or legalistic exercise."

19. In the present case, it is not, and could not be, suggested that the decision-maker was actuated by any personal consideration. Nor, in our opinion, could it be said that, in refusing to grant a temporary entry permit, Mr. Luu failed to take into account a matter that he was bound to take into account (see Minister for Aboriginal Affairs v. Peko-Wallsend Ltd., supra, per Mason J. at p 308). As has been said, what Mr. Luu was bound to take into account was the public or national interest. It is not, and could not be, suggested that Mr. Luu overlooked this consideration.

20. However, the learned Judge appears to have assumed that because an authority to work in Australia is mentioned in s.6A(1)(d), "occupational grounds" are a matter which a decision-maker is bound to take into account in deciding whether to grant a temporary entry permit. With all respect, we cannot agree. Whilst the decision-maker was entitled to take such a consideration into account, the only matter which Mr. Luu was bound to take into account in this connection was the public interest. As has been said, how the national interest would best be served was essentially a matter for the judgment of the Minister or his delegate considered in the light of the circumstances of the particular case.

21. This is not to say that a decision made without reference to the skills of an applicant for an entry permit may not be invalid. In an extreme case, it may amount to a failure to address the real question required by the legislation to be addressed (see Sinclair v. Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473 per Barwick C.J. at p 480). This would be a constructive failure to perform his duty (see Sinclair, supra, per Gibbs J. at p 483; Turner v. Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 per Toohey J. at p 392).

22. His Honour found that Mr. Luu did not consider properly, or perhaps at all, the "occupational" material presented on behalf of the respondent. in our opinion, this conclusion cannot be sustained. It was, and still is, common ground that Mr. Luu read all the material furnished by the respondent. Mr. Luu's function was to consider the material and determine the application for a temporary entry permit in the light of his judgment of how, in the circumstances, the public interest would best be served. In our view, no case of constructive failure to perform the duty to consider the application for a temporary entry permit could be sustained.

23. For completeness, it should also be noted that, given the circumstance that the respondent had become an illegal immigrant and that the Executive Government had in place a policy against "queue-jumping" by illegal immigrants, no claim could be made here that the decision to refuse a temporary entry permit was made perversely or unreasonably in the Wednesbury sense.

24. It follows, in our view, that no basis exists under the Judicial Review Act for challenging the refusal to grant the respondent a temporary entry permit. Whether Mr. Luu's decision was the "correct" one, in terms of the merit or lack of merit of the application, is not for us to consider.

25. As has been noted, it is common ground that the grant of a temporary entry permit is a condition precedent to the grant of a permanent entry permit. Since the challenge to the refusal to grant the temporary entry permit fails, it is unnecessary to consider the submissions put on behalf of the parties with respect to the construction and operation of the provisions of s.6A(1) dealing with the grant of a permanent entry permit.

26. We would propose that the appeal be allowed with costs; that the orders at first instance be set aside; and that, in lieu thereof, the application be dismissed with costs.