Re Ang Lean See v the Honourable Michael Jerome Young, Minister of Immigration Local Government and Ethnic Affairs [1988] FCA 36 (25 February 1988)

FEDERAL COURT OF AUSTRALIA

Re: ANG LEAN SEE
And: THE HONOURABLE MICHAEL JEROME YOUNG, MINISTER FOR IMMIGRATION LOCAL
GOVERNMENT AND ETHNIC AFFAIRS
No. G10 of 1988
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Forster J.(1)

CATCHWORDS

Administrative Law - application to review decisions to refuse entry and to deport - de facto relationship not relevant with respect to s.6A(1) of the Migration Act - no error of law - sufficient factual basis for opinions - opinions and decisions not unreasonable - no procedural unfairness or denial of natural justice - no basis for review.

Administrative Decisions (Judicial Review) Act 1977

Migration Act 1958

Family Relationships Act 1975 (S.A.)

HEARING

ADELAIDE
25:2:1988

Counsel for the applicant : Mr S. Tilmouth

Solicitor for the applicant : Johnston, Withers, McCusker & Co.

Counsel for the respondent : Mr J. O'Halloran

Solicitor for the respondent : Australian Government Solicitor

ORDER

The application be dismissed with costs.

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

DECISION

This is an application under the Administrative Decisions (Judicial Review) Act 1977 ("the Act") to review a series of six decisions by two delegates of the respondent Minister the final effect of which was the ordering of the deportation of the applicant.

2. The applicant is a 31 year old single woman a citizen of Malaysia. She came to Australia on 6 May 1987 ostensibly for a holiday of one month. She received a visitor's visa for this length of time. When the visa expired she decided to stay in Australia and did not apply for an extension of her visa because she had been told by a friend that she would have to satisfy the Department of Immigration and Ethnic Affairs that she had a considerable sum of money in the bank which she did not have. The applicant met one Lieu Quoc Cuong a Vietnamese in Sydney in July or August 1987 and has had what is described as a serious de facto relationship with him since August or September 1987. They lived together in Sydney until October 1987 when they moved to Whyalla where they lodged with relatives of Lieu. On 29 December 1987 the applicant gave herself up to police in Whyalla and has been in custody since. She says in her affidavit she gave herself up expecting to be returned to Malaysia because she became worried presumably because of her precarious status. A medical examination carried out after she was taken into custody revealed that the applicant was pregnant. She said that Lieu is the father of the unborn child and he confirmed this. There is no evidence of when the child is to be born but the applicant says in her affidavit that she did not know she was pregnant until she was told by the doctor who examined her in custody early in January 1988.

3. The first four decisions made on 12 January 1988 were made by Anthony Clement Harris a delegate of the respondent :

1. to refuse to grant a further temporary entry permit to

the applicant

2. to refuse to grant permanent resident status to the

applicant

3. to refuse voluntary departure
4. to order the deportation of the applicant.

4. The last two decisions complained of were made on 18 January 1988 by Elaine Moloney also a delegate of the respondent:

(i) to refuse to grant to the applicant a further
temporary entry permit, and

(ii) not to revoke the existing order for deportation.

5. The decisions on 12 January 1988 were made in the ordinary course and the decisions on 18 January 1988 were made after a reconsideration of the matter following written submissions made by the applicant's solicitors.

6. Review of the decisions is claimed on a number of bases stated in the application based in each case upon the sections of the Act set opposite them although no section numbers are set out in the application -

(a) the applicant was denied natural justice in connection
with the making of the decisions (s.5(1)(a))

(b) irrelevant considerations were taken into account in the
making of the decisions (s.5(2)(a))

(c) relevant considerations were not taken into account in
the making of the decisions (s.5(2)(b))

(d) the decisions were made on the basis of facts which were
wrong or did not exist (see below)

(e) the decisions were unreasonable and were not supported
by evidence (see below)

(f) the decisions involved an error of law (s.5(1)(f))
(g) in making the decisions there was an exercise of the
discretionary power in accordance with the rule of
policy without regard to the merits of the particular
case (s.5(2)(f)).

7. The grounds stated in (d) and (e) are in neither case apparently based directly on any sub-section of s.5 of the Act. The only sub-section which might be called in aid by either (d) or (e) is 5(1)(h) "that there was no evidence or other material to justify the making of the decision" and I will treat the particulars given for (d) and (e) as if s.5(1)(h) were the section to which they relate.

8. Particulars are pleaded with respect to each of the grounds except (g). In some cases the same or approximately the same particulars are pleaded to support more than one different ground and in some cases inappropriate particulars are pleaded which are not particulars of the grounds in support of which they are pleaded. I will deal with the grounds taken as I understand them following argument from counsel.

9. The first ground argued was ground (f). The argument was put that because the applicant and Lieu had enjoyed a relationship for some months and because she was pregnant to Lieu both of which facts were acknowledged and taken into account by the respondent's delegates Harris and Moloney the delegates should as a matter of law have regarded the applicant as the spouse of Lieu so that an entry permit might be granted to her pursuant to s.6A(1)(b) of the Migration Act 1958. This sub-section is 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 -

(a) ...

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

10. Lieu is the holder of an entry permit. It is pointed out by counsel for the applicant that pursuant to s.11(1)(b) of the Family Relationships Act 1975 of South Australia the applicant will be the putative spouse of Lieu if she is still cohabiting with him and is delivered of his child. She will only become Lieu's putative spouse after the child is born and provided she is still cohabiting with him. No doubt counsel's interpretation of s.11(1)(b) is correct but it seems to me to be irrelevant. I do not find it necessary to go into the effect of the provisions of the Family Relationships Act 1975 (S.A.) on the Migration Act. Even if it is proper to regard the applicant as the de facto spouse of Lieu the Migration Act has no provision that "spouse" can or should be interpreted as including "de facto spouse". The position is that the applicant is not at relevant times the spouse of Lieu and the respondent's delegates committed no error of law in failing to treat the applicant as Lieu's spouse.

11. The only possible complaint under the Act which might be made is that the respondent through his delegates should have taken into account and did not the fact that if the aplicant and Lieu stayed together and if she were delivered of a child in six months or so's time the applicant would have been regarded for the purposes of South Australian law as the putative spouse of Lieu. This should have led the respondent it is said to grant a temporary entry permit and consider granting an entry permit upon compassionate grounds. It is sufficient to say that I cannot accept this argument. In any event the possibility of the grant of a temporary entry permit and later consideration of the grant of an entry permit on compassionate grounds were considered by both of the respondent's delegates.

12. There are a number of other complaints made about what the delegates have said. As I said earlier the same complaints are raised under a number of different heads under s.5 of the Act. It will, I think, be most convenient if I deal with these complaints as pleaded and argued which will involve moving from one sub-section of s.5 to another, not necessarily in order.

13. The first complaint is that Miss Moloney in her reasons for decision pursuant to s.13 of the Act said "I accepted that Miss Ang Lean See preferred not to return to Malaysia as she considered that she would not have the support of relatives there. I was of the opinion that Miss Ang Lean See's welfare would be better served by those relatives than the alternative proffered, namely that she would remain in Whyalla whilst Mr Lieu lived and worked in Sydney". The delegate's opinion in the second sentence of this passage is attacked as involving a denial of natural justice, as involving the taking into account of an irrelevant consideration and because the opinion did not amount to evidence or other material justifying the making of the decision.

14. So far as family support in Malaysia is concerned the applicant has two living parents and two brothers aged 20 and 11 who live with her parents in Penang. The applicant says in her affidavit that she last saw her parents and brothers about a year ago. She said in an interview on 11 January 1988 with Miss Svehlak a Departmental officer that she had had no contact with her family for many years. The applicant also has three sisters aged 29, 25 and 22. The 29 year old lives in Kuala Lumpur and the applicant kept in regular contact with her before coming to Australia. The applicant has no relatives in Australia. The applicant had a number of jobs before coming to Australia and effectively gave up the last one in order to come to Australia for a holiday. She intended to return and anticipated no difficulty in obtaining another job on her return. She speaks no English and would therefore be dependent on others in her ordinary day to day life in Australia. As I said in Haoucher v. The Minister of State for Immigration and Ethnic Affairs (delivered 9 February 1988) it is my view that the Act commits to the Minister or his delegates the duty and power to form opinions on proved or admitted facts. Provided there is some factual basis for those opinions and provided the Minister or his delegate does not base his opinion on some fresh fact or facts unknown to the applicant and provided all relevant facts are considered his opinion cannot be successfully attacked under the Act unless it is an opinion which no reasonable person could have reached.

15. In this case the applicant when she arrived in this country was perfectly prepared to return to Malaysia at the end of a month and she anticipated no difficulty in obtaining employment and would presumably remain in regular touch with her elder sister and through her with her parents and brothers. The applicant speaks of prejudice in Malaysia against unwed mothers but does not say that she expects difficulty with her family on this score. The applicant said in an interview that she only decided to stay in Australia overstaying her visa because she fell in love with Lieu.

16. Under whichever sub-section of s.5 it may be viewed I cannot find that the opinion of the delegate was so unreasonable or not factually based so as to call for review under the Act.

17. The next matter complained of is contained in the section 13 reasons of Mr Harris when he said "The applicant's utilization of her scarce funds combined with her stated activities such as gambling caused me further concern as to her motivation when applying for a conditional temporary entry permit ... The applicant's comments on her medical condition did not address the questions raised with her." The formation of the opinion recorded in this passage is attacked as involving a denial of natural justice, as involving taking irrelevant considerations into account and because the opinion did not amount to evidence or other material justifying the making of the decision.

18. The evidence is that when she was living in Sydney the applicant spent quite a lot of time in the Mandarin Club which she visited three to five times a week generally gambling on the poker machines. She had arrived in Australia with $A1,300 and at the time of her arrest had $A20. As to her medical condition the applicant said in an interview that she had received medical treatment in Sydney for "dirty blood" and "itchy skin" which necessitated 15 daily injections at the Sydney Hospital and a course of tablets. Telephone enquiries with the Sydney Hospital by a Departmental officer produced the information that the applicant was treated at the sexually transmitted disease clinic in June 1987 for latent syphilis. This was put to the applicant and she said once more that she was treated for "dirty blood" and denied any knowledge of latent syphilis.

19. I cannot find that it was unreasonable for Harris to be concerned about the motivation of a visitor who said she was coming to this country for a holiday and spent most of the early part of her stay gambling in a club. Under whatever sub-section it may be attacked this view expressed by Harris should not lead to a review of the decisions made by him.

20. So far as the medical matters are concerned the fact that the applicant may have been suffering from latent syphilis is not of course properly proved and this fact is not referred to or relied on by either delegate. The allegation was put to the applicant as fairness, in my view, demanded it should be. As I have said she denied any knowledge of latent syphilis but once more claimed that her treatment was for "dirty blood". There is of course nothing the matter with her denial of syphilis but the assertion that she suffered from "dirty blood" seems to me to be nonsense and to justify the delegate's comment that the applicant "did not address the question raised with her". This comment of the delegate should not for any reason lead to a review of the decisions of Harris.

21. The next complaint is that the delegate Harris took into account a statement in a report of Symonds, a Departmental officer, that "the relationship between them (the applicant and Lieu) is of only a few months duration and would not meet the stringent criteria applicable under the policy terms for de facto marriages. The couple appear to have little knowledge of the other's personal circumstances and share no obvious joint interests. Their place of residence is shared with Mr Lieu's family and the couple have no joint assets of their own".

22. This statement is attacked as involving a denial of natural justice in that the facts and opinions stated were not put to the applicant so that she might comment upon them. So far as facts are concerned the relationship had been of "only a few months duration". So far as policy is concerned I do not think that the applicant had any right to comment on policy. There is ample evidence from the statements of the applicant and Lieu upon which the opinions as to knowledge and lack of joint interests could reasonably and properly be based. The facts about sharing a place of residence with Lieu's family and the lack of joint assets are plainly true and also arise from the statements of the applicant and Lieu.

23. The attack on Symonds' statement was somewhat lightly pressed and I have no difficulty in dismissing it. There is in my opinion no obligation on a decision maker to put to the applicant facts which are admitted by her in her own statement so that she may comment on them. As I said in Haoucher there is also no obligation to put reasonably based opinions to the applicant for comment.

24. The next complaint concerns the suggestion that the applicant might have come to this country for the purpose of engaging in prostitution. Miss Svehlak put to the applicant in an interview on 30 December 1987 that it appeared from the limited information at hand that she had possibly entered Australia to work as a prostitute. Miss Svehlak reports that the applicant "emphatically denied this saying that she had brought $A1,300 cash with her from Malaysia and had been supported by her de facto husband Mr Lieu for the majority of her stay in Australia." It is complained that the delegate took the matter of the applicant's suspected prostitution into account and that this in some way involved a denial of natural justice.

25. The applicant said in an early interview that when she was 19 she had been obliged by Malaysian authorities to undergo "retraining" as a suspected prostitute. This retraining lasted for two years. The applicant also said that she was never charged or convicted of being a prostitute or of anything else but just how the Malaysian authorities were able to compel her to undergo retraining is not explained. During the early part of her stay in Australia the applicant appears to have spent most of her time gambling in a club and was living in a number of different flats in Kings Cross. It was in my view not unreasonable for Miss Svehlak to entertain a suspicion that the applicant came to Australia to work as a prostitute. Once she did entertain such a suspicion procedural fairness required that it be put to the applicant. This was done and the applicant emphatically denied the suggestion and nowhere in the papers is it ever referred to again. A record of the interview between the applicant and Miss Svehlak formed part of the papers read by both delegates but neither delegate mentions the question of prostitution in the Section 13 reasons for decision. There is thus no evidence that either delegate gave any weight to the matter of the applicant's possible prostitution motive in coming to Australia. Even assuming that both delegates read Miss Svehlak's suggestion to the applicant one must also assume that they read her "emphatic denial". I cannot see that there is any lack of procedural fairness here.

26. It is complained that the delegates failed to take the following relevant considerations into account -

"(i) That the applicant has had no or very little
contact with her family in Malaysia for many
years.

(ii) That she had an 'itchy skin' medical problem
which she had had for a number of years
which it is now asserted could well have
been Yaws, a tropical disease which
resembles syphilis but which is not sexually
transmitted.

(iii) That the applicant had voluntarily
approached the police in Whyalla on the 29th
day of December 1987 believing that they
would return her to Malaysia."

27. So far as (i) is concerned the applicant's own statements show that she last saw her parents a year ago and that she was in regular touch with her elder sister. The facts alleged not to have been taken into account are just not true.

28. So far as (ii) is concerned the applicant said in a statement taken into account by both delegates that she had had an "itchy skin" problem. There is just no evidence supporting the assertion about yaws and I ignore it.

29. So far as (iii) is concerned the evidence is that this was taken into account.

30. There was in my opinion no reviewable error in failing to take any of these three matters into account.

31. The final complaint argued was that delegate Harris took into account the opinion of Symonds that the applicant could not be expected to honour undertakings. The relevant passage in Symonds' report is as follows -

"23. Whilst it remains possible for you to
regularise Miss Ang's status in Australia by the
grant to her, with her consent, of a further TEP
authorising continued temporary stay, I would
submit that such a course of action would not be
appropriate. Miss Ang has breached conditions of
visa issue by remaining in Australia without
lawful authority and by failing to depart at or
before the expiration of her TEP. She has
already exceeded the normal maximum period of stay
for overseas visitors, albeit that the bulk of
this period was unlawful temporary residence.
Given also that she has expressed the desire to
remain permanently in Australia as the defacto
spouse of an Australian resident, it would be open
for you to find that Miss Ang could not be
expected to honour any undertakings relating to
further temporary stay."

32. It was pleaded that this statement involved the taking into account of irrelevant considerations. The answer to this is that there was a reasonable evidentiary basis for Symonds' opinion and that whereas Harris says in his Section 13 reasons that he based his decision on Symonds' submissions he also says that he adopted and accepted the findings of fact in part A of the submission on the evidence set out in part B. The opinion objected to is in part C of the submissions which is not referred to by Harris nor does he say that in his opinion the applicant could not be expected to honour any undertaking given by her. Even if Harris had expressed this opinion there was in my view adequate evidence upon which he could reasonably have reached it. This complaint also fails.

33. The complaint under s.5(2)(f) of the Act was not argued and I disregard it.

34. For the above reasons the application is dismissed with costs.