|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Administrative Law - Administrative Decisions (Judicial Review) Act 1977 - application for judicial review of decisions to refuse to grant entry permit and to deport applicant - arrest and detention of prohibited non-citizen - when appropriate conditions precedent to exercise of discretion pursuant to s.6A Migration Act 1958 - strong humanitarian or compassionate grounds - applicant not the holder of a valid temporary entry permit - nature of discretion - incorrect material placed before decision-maker - whether amounts to an irrelevant consideration - whether no evidence or other material to justify making decision - whether decision based on particular fact that did not exist - effect of misunderstanding of evidence by decision-maker.Migration Act 1958 ss.6A, 38; sub-ss.38(3), 38(3A), 38(4); paras.6A(1)(e), 6A(1)(b)
Administrative Decisions (Judicial Review) Act 1977 s.5; paras.3(2)(a), 5(1)(e), 5(1)(h), 5(2)(a), 5(2)(b), 5(3)(a), 5(3)(b), 16(1)(b), 16(1)(d)
Kuchenmeister v. Home Office (1958) 1 QB 496
R. v. Bolton; Ex parte Beane [1987] HCA 12; (1987) 70 ALR 225
Park Oh Ho v. Minister for Immigration and Ethnic Affairs (1988) 81 ALR 288
Unlugenc v. Minister for Immigration and Ethnic Affairs (1982) 43 ALR 569
Tang v. Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177
Kioa v. West [1985] HCA 81; (1985) 159 CLR 550
Meggs v. Minister for Immigration and Ethnic Affairs, Unreported (Federal Court of Australia, Jackson J, 18 September 1986)
Minister for Immigration and Ethnic Affairs v. Maitan (1988) 78 ALR 419
McDermott v. Minister for Immigration, Local Government and Ethnic Affairs, Unreported (Federal Court of Australia, Lee J, 13 June 1988)
Videto v. Minister for Immigration and Ethnic Affairs [1985] FCA 326; (1985) 8 FCR 167
Minister for Immigration and Ethnic Affairs v. Haj-Ismail [1982] FCA 51; (1982) 40 ALR 341
Sezdirmezoglu v. Acting Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561
Akpan v. Minister for Immigration and Ethnic Affairs [1982] FCA 46; (1982) 58 FLR 47
Western Television Ltd. v. Australian Broadcasting Tribunal (1986) 12 FCR 414
Television Capricornia Pty. Ltd. v. Australian Broadcasting Tribunal (1986) 70 ALR 147
Waterford v. The Commonwealth [1987] HCA 25; (1987) 61 ALJR 350
HEARING
PERTHCounsel for the Applicant: Mr B. Stokes
Solicitors for the Applicant: Messrs B.F. Stokes & Associates
Counsel for the Respondent: Ms I. Petersen
Solicitor for the Respondent: The Australian Government Solicitor
ORDER
The decision of the authorized officer of the respondent made on 20 September 1988 not to grant an entry permit or temporary entry permit to the applicant be set aside.The decision of the respondent's delegate made on 20 September 1988 to deport the applicant be set aside.
The applicant's application for an entry permit be remitted to the respondent for reconsideration according to law.
The respondent pay the applicant's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
DECISION
Mrs. Akers is an American citizen who arrived in Australia in March 1984. She was then eighteen. Mrs. Akers had an unhappy childhood in the United States. She was the product of a broken marriage and had some conflict with her stepfather. She left home on several occasions, was made a ward of the state and lived in institutions for approximately four years until she was seventeen. It appears she had no relationship with her natural father and a very strained relationship with her mother.2. She came to Australia in 1984 to visit her maternal grandmother and upon arrival was granted a temporary entry permit valid for a period of six months. The permit carried a condition proscribing Mrs. Akers from engaging in any employment.
3. In August 1984 Mrs. Akers married an Australian citizen, Anthony Akers, who was then nineteen. Mrs. Akers's mother travelled from America to attend the marriage. The circumstances of the marriage would suggest youthful impulse and immaturity rather than any sophisticated plan to gain residential status through a marriage of convenience. The parties separated after three to four weeks of marriage and shortly after Mrs. Akers's husband moved to Queensland. When interviewed by an officer of the respondent's department on 10 October 1984, Mrs. Akers advised reconciliation between herself and her husband was being contemplated and that advice was apparently confirmed by departmental contact with Akers in Queensland on 13 October 1984. On 13 October 1984 Mrs. Akers met one Wayne Rogers and thereafter a relationship developed which led to the establishment of a de facto marriage in March 1985.
4. In October 1984 Mrs. Akers made application for the grant of an unconditional entry permit ("permanent resident status"). That application was refused in April 1985 and Mrs. Akers was instructed to make arrangements to leave Australia.
5. Mrs. Akers requested that a review of that refusal be carried out by the Immigration Review Panel. The Panel is not referred to in the Migration Act 1958. Apparently it is established under departmental administrative instructions. In April 1986 the Panel decided that a temporary entry permit should be issued to Mrs. Akers valid to 31 May 1987 without prohibition of employment. The basis for the grant of the permit was the applicant's de facto marriage to Rogers. In January 1986 Rogers had confirmed to the department that he and Mrs. Akers had plans to marry after Mrs. Akers's marriage was dissolved.
6. In May 1987 the temporary entry permit was extended to 31 July 1987.
7. On 8 June 1987 the department received a further application from Mrs. Akers for permanent resident status and that application was supported by Rogers.
8. In September 1987 Mrs. Akers was advised by letter from the department
that it would take several months to determine her application.
The letter
expressly requested Mrs. Akers not to enquire as to the progress of her
application. The letter also stated the following:
"In an endeavour to streamline administrative9. The Migration Act 1958 does not prescribe any form of application for an entry permit. At the very least, it was arguable that the applicant had received an informal temporary entry permit by the terms of that letter.
procedures, extensions to temporary entry permits
will not be issued while applications for resident
status are being processed. You are permitted to
remain in Australia until a decision is made on
your application."
10. In November 1987 Mrs. Akers wrote to the department and advised that it appeared her de facto marriage with Rogers had come to an end and that Rogers had moved out of their home. She advised that she was then in her sixth month of a pregnancy conceived as a result of the relationship.
11. Mrs. Akers gave birth to a son on 17 February 1988. Her son died suddenly and unexpectedly on 25 April 1988.
12. In April 1988 the department replied to Mrs. Akers's application by letter which noted that the cessation of the de facto relationship had removed the grounds of her application and invited Mrs. Akers to advise of any other matters she wished to be taken into consideration before a decision was made on her application for "Resident Status".
13. In response, Mrs. Akers instructed her local Member of Parliament to make reply on her behalf and that reply dated 30 May 1988 set out elements of compassionate and humanitarian grounds upon which Mrs. Akers wished to rely to support her application.
14. The principal grounds relied upon by Mrs. Akers were that she had been in Australia for four years, she wished to be able to visit her son's grave, she had no funds to obtain accommodation in the United States and had no family support in that country to fall back on.
15. By letter dated 15 June 1988 Mrs. Akers was advised that a decision had been made to reject her application.
16. On 5 July 1988 Mrs. Akers attended at the department's offices apparently to enquire as to the progress of her application. She had not been at her Bunbury address for two weeks and had not received the letter advising that her application had been rejected. She was advised about referring the matter to an Immigration Review Panel for reconsideration.
17. By application dated 3 August 1988, Mrs. Akers sought the reconsideration of her application for permanent resident status and enclosed a postal order for $240 for payment of the necessary fee.
18. It was decided by the department that there was no discretion to accept a request for a review received more than twenty-eight days from the date of the letter advising the decision sought to be reviewed. The administrative instructions pursuant to which the Immigration Review Panel operates were not before this Court. It would be surprising if such instructions purported to deny a power to exercise such a discretion.
19. A letter advising Mrs. Akers that her application for permanent status would not be referred to the Immigration Review Panel and that her lodgement fee of $240 would be refunded was prepared. Apparently it was dated 10 August 1988. It appears that the letter was not forwarded by mail but taken to Mrs. Akers in Bunbury on 15 August 1988 by a departmental officer accompanied by two detectives attached to the Bunbury Police Station. Mrs. Akers was arrested by that officer relying on the provisions of s.38 of the Migration Act 1958. She was taken to a detention centre in Perth immediately.
20. On the following day, Mrs. Akers was interviewed by a departmental officer and the record of that interview indicates that Mrs. Akers was still under the impression that a review of the refusal of her application for permanent resident status was underway, which suggests that the department's letter of 10 August had not yet been delivered to her.
21. Mrs. Akers remained in custody until the hearing of this application. I assume that the required authorisation for continued detention was given and extended by the prescribed authority pursuant to sub-ss.38(3), (3A) and (4) of the Migration Act 1958.
22. During that period of incarceration, the department's initital efforts were directed at ascertaining whether friends and relatives of Mrs. Akers would provide sufficient financial assistance to allow her to purchase an air fare and make a voluntary departure from Australia. Mrs. Akers's grandmother no longer resided in Australia, but she did have a cousin resident in the State with whom she had established contact and who was willing to assist her to obtain employment and accommodation if she were able to remain in Australia.
23. The department's enquiries brought a universal response that no funds could be provided to purchase an air fare and that in any event it was considered to be in Mrs. Akers's interests that she be allowed to remain in Australia.
24. On 28 August 1988, after writing a suicide note, Mrs. Akers took approximately ten barbiturate tablets she had accumulated during her stay in custody. She spent two days in hospital and was then returned to the detention centre.
25. Some days after that event a departmental officer was able to make contact by telephone with Mrs. Akers's mother in the United States. The mother was informed of her daughter's predicament and, I assume, of the daughter's depressed state. The officer recorded that Mrs. Akers's mother informed him that she was not interested in the matter in any way. She stated that she did not wish to be contacted again and abruptly hung up the telephone.
26. On 12 September 1988 the United States Consul wrote to the department requesting that Mrs. Akers be released from detention and asked that strong consideration be given to permitting Mrs. Akers to remain in Australia as a permanent resident on compassionate or humanitarian grounds.
27. On 14 September 1988 Mrs. Akers made a further application seeking the grant of an entry permit allowing permanent residence on the basis of strong compassionate or humanitarian grounds.
28. On 20 September a summary of Mrs. Akers's circumstances was prepared by a departmental officer. The officer's report included a recommendation to an officer authorized to grant entry permits, that the grant of an entry permit or temporary entry permit be refused, and that an order be made for the deportation of Mrs. Akers.
29. On the same day the authorized officer accepted that recommendation and made an order for Mrs. Akers's deportation. The authorized officer recorded in a file note an outline of the reasons why he had accepted the recommendation.
30. Before turning to the grounds of appeal, it is necessary to make some comment about the arrest and detention of the applicant.
31. There is growing recognition in international law that aliens or non-citizens may expect to have access to the same basic civil rights as enjoyed by nationals (see D.P. O'Connell, International Law 2nd Edition, Vol.2 pp 697-699). The right of liberty is a precious right entitled to protection (Kuchenmeister v. Home Office (1958) 1 QB 496 at p 513; R. v. Bolton; Ex parte Beane [1987] HCA 12; (1987) 70 ALR 225 per Deane J. at pp 235-236).
32. Section 38 of the Migration Act 1958 ("the Act") provides legislative authority for infringement of the liberty of a non-citizen for the protection of public order and the welfare of the state. But the section provides a right of arrest and right to detain in custody for a limited purpose and no more, namely, for such period as is reasonably required to enable the Minister to consider whether a deportation order should be made. (See Park Oh Ho v. Minister for Immigration and Ethnic Affairs (1988) 81 ALR 288 per Foster J. at pp 315-316.)
33. The need for the use of the section is quite plain where a non-citizen has made no application for an appropriate permit and has deliberately evaded detection and attempted to defeat the provisions of the Act. (See Unlugenc v. Minister for Immigration and Ethnic Affairs (1982) 43 ALR 569 at pp 573-574.)
34. But in other cases where the non-citizen has maintained appropriate contact with departmental officers, has made due application for the grant of appropriate permits, has exercised rights of review to which he or she is entitled and is otherwise law-abiding, the need for arbitrary arrest is much less apparent.
35. In the case of Mrs. Akers, her application to review the decision to refuse the grant of an entry permit in April 1986 and the grant of a further entry permit in June 1987 each took over a year to decide so her case was never one surrounded by a sense of urgency. Her whereabouts were always well-known to the department.
36. The reasons given for arresting Mrs. Akers were that she had attempted to avoid a departmental officer who attended at her home on 15 August, that she had expressed a strong desire to remain in Australia and that she lacked the capacity to effect her own departure from Australia. The circumstances of avoidance as described by the officer were quite trivial and on their own would not have justified arrest. The other stated reasons would appear to be more relevant after a decision to deport had been made than before. She remained in custody for a further five weeks before the decision was made that she be deported and was in custody for a further two weeks as a deportee until the hearing of her application for review.
37. There appears to be no reason why Mrs. Akers could not have been interviewed and her case reviewed without taking her into custody. If her arrest were considered necessary she could have been released from custody on condition that she report to departmental officers regularly.
38. Although Mrs. Akers was aware on 5 July 1988 that she was required to leave Australia, she had had permission to stay in Australia until that decision was made and her endeavour to seek a review of that decision was not conduct so unreasonable that protective action for the national welfare was required by those arresting her under the Act. Deprivation of liberty is not a step to be taken as a matter of convenience. Mrs. Akers was entitled to expect that due regard would be afforded to her human rights and dignity.
39. I now turn to the decision sought to be reviewed.
40. Firstly, it is necessary to set out the relevant parts of s.6A of the
Act:
"6A.(1) An entry permit shall not be granted to a41. In the memorandum prepared for the authorized officer by an officer of the department it was noted that Mrs Akers's application was based on strong compassionate or humanitarian grounds under para 6A(1)(e) of the Act but that, since Mrs Akers was not the holder of a valid temporary entry permit and was married to an Australian citizen, it was appropriate for the application to be considered under para 6A(1)(b) of the Act. The departmental officer expressly stated that such a course did not "preclude consideration of humanitarian and compassionate claims".
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
...
(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."
42. The approach taken by the departmental officer would seem to be an
appropriate one in the circumstances. In Tang v. Minister
for Immigration and
Ethnic Affairs (1986) 67 ALR 177 the Full Court of this Court considered an
appeal against a refusal of an application to review a decision to refuse to
grant an
entry permit where the appellant had made application under para
6A(1)(e) whilst being married to an Australian citizen. Davies
J. pointed out
at p 182 that:
"The other reason why reliance upon para.(e) wasPincus J. also noted that:
misplaced was that Mr Tang satisfied the
provisions of para (b) by reason of being the
spouse of an Australian citizen. Therefore, it
was unnecessary for Mr Tang to establish strong
compassionate or humanitarian grounds. Having
satisfied the criteria of para (b), he was
entitled to have his application for permanent
residence determined on its merits whether or not
such grounds existed."
"It was enough that the appellant qualify for grant43. The above dicta with which I respectfully concur, illustrate that in exercising the discretion under s.6A of the Act to grant or refuse to grant an entry permit, an authorized officer must first ensure that the facts exist which satisfy a necessary precondition under one of the paragraphs of s.6A. As Mason J. observed in Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 at p 582, sub-s.6A(1) of the Act refers to the objective existence of specified conditions rather than to the opinion or satisfaction of some authority that the conditions are fulfilled, with perhaps the exception of the condition specified in para 6(1)(e). That is particularly relevant to para 6A(1)(b) where the condition to be fulfilled is that the applicant be the spouse of an Australian citizen. It is unnecessary and irrelevant to determine whether other facts exist which satisfy the preconditions of any other paragraph of s.6A. The satisfaction of the precondition in one paragraph of s.6A triggers the exercise of the broad discretion of the authorized officer to grant or refuse to grant an entry permit. Once that discretion is available, the authorized officer is then obliged to take into account all relevant circumstances, whether they are related to the original qualifying precondition or not, when deciding whether or not to grant an entry permit. (See also Meggs v. Minister for Immigration and Ethnic Affairs, Unreported (Federal Court of Australia, Jackson J, 18 September 1986).)
of an entry permit under para.(b), as he did;
there was no need for him to qualify twice." (at
pp 186-187)
44. In this case the submission to the authorized officer indicated that it was not appropriate to consider whether the applicant satisfied the precondition of para 6A(1)(e), having already qualified for consideration for the grant of an entry permit under s.6A(1)(b) by virtue of Mrs Akers's marriage to an Australian citizen. The submission then went on to "look at all other factors associated with Ms. Akers remaining in Australia". Many of the factors considered included the compassionate and humanitarian claims upon which Mrs Akers had grounded her application.
45. In the memorandum prepared for the authorized officer by the departmental officer, it was stated by him that the application for the grant of permanent resident status could only be considered under para 6A(1)(b) of the Act, but in his view that did not "preclude consideration of humanitarian and compassionate claims". The recommending officer then set out an extract from a ministerial "policy statement on illegal immigrants" relating to applications for permanent residence based on marriage. The officer suggested that it would be appropriate to give little weight to the fact that Mrs. Akers was still married to an Australian resident. The officer also stated that Mrs Akers had been "illegally in Australia since 31 July 1987". The authorized officer recorded no dissent from this statement which in the light of the permission to stay in Australia given in September 1987 would appear to be seriously in error.
46. It might be noted that in its letter to Mrs. Akers on 15 June 1988 advising her that the application made in June 1987 seeking permanent resident status had been rejected, the department stated, somewhat surprisingly, that there was no evidence that Mrs. Akers fulfilled the requirements of para 6A(1)(b) of the Act and, therefore, her application had been considered under the normal policy relating to the grant of resident status under para 6A(1)(e).
47. Although, in part, the submission to the authorized officer may have been couched in terms that indicated it was not appropriate to consider whether the applicant satisfied the terms of para 6A(1)(e) of the Act, the balance of the submission set out the matters relied upon by the applicant as strong compassionate and humanitarian grounds and the authorized officer's file note carries some indication that the decision was made after consideration of the existence of grounds under para 6A(1)(e) rather than grounds under para 6A(1)(b) of the Act.
48. Indeed, counsel for the respondent argued that the application had been considered and dealt with as an application relying on strong compassionate and humanitarian grounds.
49. It seems to be clear from the papers that strong compassionate and humanitarian grounds existed. However, the better view as to the course of events must be that after consideration of all surrounding circumstances the authorized officer decided to decline to exercise his discretion to grant an entry permit having accepted that Mrs Akers was a person to whom an entry permit could be granted by virtue of the provisions of para.6A(1)(b). If it were otherwise, the manner of consideration of the application may have involved an error of law. (See Meggs v. Minister for Immigration and Ethnic Affairs.)
50. Counsel for the respondent argued, however, that because the applicant was not the holder of a temporary entry permit on 20 September 1988, one of the conditions for the grant of an entry permit set by para 6A(1)(e) had not been met and an entry permit could not be granted to her pursuant to s.6. It was argued that there was no decision to be reviewed by this Court. The respondent relied upon the decision of the Full Court of this Court in Minister for Immigration and Ethnic Affairs v. Maitan (1988) 78 ALR 419 to support this proposition. I distinguished Maitan's Case in McDermott v. Minister for Immigration, Local Government and Ethnic Affairs, Unreported (Federal Court of Australia, Lee J, 13 June 1988) when a similar submission was made by the respondent in an objection to competency. It is strictly unnecessary for me to consider this submission in the light of the reasons set out above, but in view of the fact that the respondent has again sought to place some reliance on this submission, I should endeavour to explain and expand my remarks in McDermott.
51. Although it is a pre-condition of para 6A(1)(e) that an applicant for an entry permit be the holder of a temporary entry permit, it has been the practice of the Minister or his authorized officer to consider the merits of any application which relies upon para 6A(1)(e), notwithstanding that the applicant may not then be the holder of a temporary entry permit. Such a practice recognises that a temporary entry permit may be issued at any time to ground the issue of an entry permit under para 6A(1)(e) if strong compassionate or humanitarian grounds exist. (See Kioa v. West per Mason J. at p 582.)
52. Maitan had nothing to say about the competency of an application seeking an order to review a decision to refuse to grant an entry permit to a person who was not the holder of a temporary entry permit at the time of decision. In Maitan the Court acknowledged that there was power to issue a temporary entry permit to such an applicant and to grant a "permanent" entry permit if the remaining grounds required to be established under para.6A(1)(e) were shown to exist (Fox J. at p 423, Beaumont and Gummow JJ. at p 426). The judgments of the Court reflected an acknowledgement that the discretion to grant or refuse a temporary entry permit was broad and unfettered and was largely determined by what was in the best interests of Australia. In that particular case it was decided that the discretion to refuse a temporary entry permit had not miscarried.
53. Notwithstanding that the discretion to grant a temporary entry permit may be unfettered, the question of whether or not the discretion has miscarried and is susceptible to review pursuant to the provisions of s.5 of the Administrative Decisions (Judicial Review) Act 1977 ("the AD(JR) Act") is a matter for determination according to the circumstances of each individual case.
54. If the Minister or his authorized officer has conditioned the exercise of his discretion to refuse or grant a temporary entry permit upon his assessment of the merits of the application for the grant of a "permanent" entry permit, the former decision necessarily may be subject to the review of the latter decision,because the decision to refuse a temporary entry permit may be seen to be entirely subsumed in the decision to refuse a "permanent" entry permit.
55. Alternatively, where the Minister or his authorized officer has received an application for the grant of an entry permit and has proceeded to consider and determine that application on its merits and does not decline to consider the application on the basis that the applicant is not the holder of a temporary entry permit, a decision will have been made under the Act in respect of that application and that decision would be capable of being the subject of an application to review under the AD(JR) Act. If that decision contains manifest errors within the terms of s.5 of the AD(JR) Act, the Court may grant an order to review that decision pursuant to its powers under para 16(1)(b) of the AD(JR) Act by requiring the Minister or an authorized officer to reconsider the application for a "permanent" entry permit and by requiring the Minister or his authorized officer to consider afresh - as part of the further consideration of the matter to which the decision relates - the grant of a temporary entry permit. Pursuant to para 16(1)(b) of the AD(JR) Act, the Court may order that the matter to which the decision relates be referred for further consideration. Therefore, the Minister or his authorized officer may be required to make a fresh decision on the grant or refusal of a temporary entry permit as part of the further consideration of the matter, that further consideration to be carried out according to law as set out in the reasons supporting the grant of the order for review. In making such an order it would not be necessary to review the validity of the earlier decision to refuse to grant a temporary entry permit. Alternatively, in an appropriate case, albeit rare, the Court may direct the Minister or his authorized officer to issue a temporary entry permit pursuant to para 16(1)(d) of the AD(JR) Act and require the officer to grant or reconsider the request for a grant of a "permanent" entry permit. Again such an order would not be dependent upon an order that the decision to refuse the grant of a temporary entry permit be reviewed.
56. Furthermore, if the Minister or his authorized officer declines to consider an application for the grant of a "permanent" entry permit, the applicant not then being the holder of a current temporary entry permit, such a refusal may be susceptible to review under the AD(JR) Act in that the AD(JR) Act applies to a decision which involves a refusal to make a determination. (para 3(2)(a).)
57. If the respondent's argument were upheld it would be capable of introducing considerable injustice. For example, a person who is the holder of a current temporary entry permit at the time an application is made for the grant of a permanent entry permit may find at the time of decision upon that application that the temporary entry permit has expired. On the respondent's argument, the primary question for review under the AD(JR) Act would be whether the applicant was entitled to judicial review of the decision to refuse the grant of a temporary entry permit being a decision that was subject to an almost unfettered discretion. The respondent has argued that he is bound to consider only the national interest in making such a decision and a failure to consider compassionate or humanitarian circumstances may not amount to the failure to take a relevant consideration into account in the exercise of the power to grant or refuse such a permit. If unable to display an error of law in the exercise of that discretion, the applicant would fail, notwithstanding he or she may be able to show clear or gross error in law in the exercise of discretion to refuse the grant of a "permanent" entry permit under para 6A(1)(e).
58. In Mrs. Akers's case it was twelve months before a decision was made upon her application for the grant of a "permanent" entry permit lodged in early June 1987 at which time she was the holder of a current temporary entry permit that would remain valid for a further eight weeks.
59. When internal administrative review of that decision was refused Mrs. Akers did not proceed to seek review of the decision under the AD(JR) Act. Instead she applied once more for the grant of an entry permit and it is the decision on that application that is the subject of this application for review.
60. I now turn to the grounds on which the decision to refuse a grant of entry permit and to deport is sought to be reviewed.
61. In his submission to the authorized officer, the departmental officer,
who recommended to the authorized officer that he make
a decision to deport
Mrs. Akers, reported the following as a matter of fact to be considered in the
course of arriving at a decision:
"On her return to the U.S.A. the Department of62. In a short file note recording his reasons for decision, the authorized officer stated the following:
Human Resources (sic) will provide for her welfare
until such time as she has re-established
herself."
"I accept that there are adequate welfare63. The statement of the departmental officer was based upon his understanding of a telephone conversation he had with an officer of the United States Consulate in Perth.
provisions in the US and note that Ms Akers does
not require hospitalisation. In all the
circumstances, while most sympathetic, I agree
that deportation is appropriate."
64. On the hearing of the application for review, there was evidence provided by an affidavit sworn by the relevant officer of the United States Consulate and by an affidavit sworn by the applicant's solicitor deposing to the substance of advice received from the United States Consul to the effect that the departmental officer had entirely misunderstood the advice given by the Consulate in response to his enquiries.
65. The Consul informed Mrs. Akers's solicitor that the Department of Health and Human Services was simply a referral agency which provided no financial assistance. The agency would assist Mrs. Akers by meeting her on arrival and by endeavouring to find accommodation for her and would refer her to state welfare agencies. Neither the Consul or his officer had any knowledge of the relevant welfare provisions or of Mrs. Akers's prospects of obtaining welfare assistance in the United States.
66. Counsel for the respondent conceded that the circumstances confronting Mrs. Akers upon her deportation to America would be a consideration the authorized officer was bound to take into account. The concession was properly made. Indeed, in the particular circumstances of this case, perhaps the decision-maker may have been expected to make due enquiry to allow him to properly consider this aspect (see Videto v. Minister for Immigration and Ethnic Affairs [1985] FCA 326; (1985) 8 FCR 167 at pp 178-179).
67. Mrs. Akers's circumstances not only attracted sympathy but required very careful consideration before a decision was made to repatriate her to the United States.
68. Mrs Akers had suffered a scarred upbringing as a child in the United States and the material gathered by the department presented direct evidence of her rejection by her mother with no prospect of assistance being provided from that quarter. She had no father or step-father to turn to. She had no funds or assets and no contact with any other relatives in the United States. She had threatened suicide whilst held in custody and it may be assumed she was depressed by the recent death of her first-born child at two months of age. She had no home, employment or acquaintances to return to and a decision to uproot such a person from circumstances in which she was receiving support would require very close examination of humanitarian interests. It would have been quite pertinent to such a decision to know what care could and would be taken of her welfare upon her return. The decision-maker did address that question by referring to incorrect material which had resulted from a misunderstanding of Consulate advice and in consequence he found that there were adequate welfare provisions in the United States. There was no evidence before him as to the welfare services provided by any of the relevant States of the United States.
69. In proceeding upon an erroneous premise on a fundamental matter, the authorized officer took into account an irrelevant consideration in that it was information other than the information the American Consulate had endeavoured to convey. To proceed to a decision upon the misapprehension of matters material to the decision, may be described as an improper exercise of power (see Minister for Immigration and Ethnic Affairs v. Haj-Ismail [1982] FCA 51; (1982) 40 ALR 341 at pp 348 and 365 and Sezdirmezoglu v. Acting Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561 at pp 572-573).
70. Such a situation may be contrasted with an opinion genuinely formed upon conflicting materials placed before the decision-maker, which opinion is sought to be called into question by reference to further evidence or material (see Akpan v. Minister for Immigration and Ethnic Affairs [1982] FCA 46; (1982) 58 FLR 47). Such a circumstance provides no ground for review.
71. But that is not this case where the decision-maker has proceeded to an incorrect conclusion after relying upon misunderstood information submitted to him by an officer of his department (see Videto v. Minister for Immigration and Ethnic Affairs at p 179).
72. Accordingly, the decision may be subject to review pursuant to paras.5(1)(e) and 5(2)(a) of the AD(JR) Act.
73. The applicant also argued that the provisions of paras.5(1)(h) and 5(3)(b) of the AD(JR) Act would provide ground for review of the decision in these circumstances. Paragraph 5(1)(h) states that an application for an order for review may be made on the ground that there was no evidence or other material to justify the making of the decision. Paragraph 5(3)(b) provides that that ground shall not be taken to be made out unless the person who made the decision based that decision on the existence of a particular fact and that fact did not exist. The applicant submitted that the decision of the authorized officer was based upon the fact that the United States Consulate had advised that financial assistance would be provided. I accept it to be the fact that the Consulate did not so advise and that the Department of Health and Human Services does not provide financial assistance. The applicant submits that it would follow from such a finding that there was no evidence before the decision-maker to justify his finding that adequate welfare would be provided for Mrs. Akers in the United States and the consequent decision to refuse an entry permit grounded on that finding of fact should be subject to an order for review.
74. Pincus J. considered the construction of para 5(3)(b) in Western Television Ltd. v. Australian Broadcasting Tribunal (1986) 12 FCR 414 at p 429. His Honour may have favoured a narrower reading of the paragraph restricting it only to instances in which express findings that had been made were plainly incorrect but a concluded view was not necessary for the formation of his Honour's decision.
75. The history and meaning of sub-s.5(3) was discussed in detail by Wilcox J. in Television Capricornia Pty. Ltd. v. Australian Broadcasting Tribunal (1986) 70 ALR 147 at pp 151-157.
76. The object of sub-s.5(3) was to limit the operation of para 5(1)(h) and in particular to ensure that it did not provide a grant of review based upon examination of the sufficiency of the evidence. Paragraph 5(3)(b) provides a broader ground for relief than para 5(3)(a) which is the statutory equivalent of the absence of a jurisdictional fact. Paragraph 5(3)(b) is not limited to those cases where the erroneous assumption of fact was the predominant reason for the decision. It may be one of a number of bases for the decision. In the present case the authorized officer, in part, based his decision to deport Mrs. Akers upon the assumption that the Department of Health and Human Services in the United States would provide adequate welfare for Mrs. Akers. That assumption of fact was incorrect. These circumstances satisfy the requirements of paras 5(1)(h) and 5(3)(b).
77. In addition to the above there is, in my view, another element of the decision-making process that contained consideration of an irrelevant matter (para 5(2)(a) of the AD(JR) Act) in so far as the decision-maker entirely misunderstood part of the material before him and based his decision, in part, upon that misunderstanding.
78. Although the applicant did specify this item as part of the particulars of the grounds for review relied upon under para 5(1)(e) of the AD(JR) Act, it was recited as a particular of para 5(2)(b) and not para 5(2)(a) of the AD(JR) Act in the course of the hearing and was so addressed by counsel.
79. In the authorized officer's file note he stated that he had noted Mrs.
Akers's claims of being capable of supporting herself
but observed that there
was clear evidence from the Department of Social Security to the contrary. He
went on to say:
"I note that Mrs. Akers claims of (sic) strong ties80. The authorized officer made specific reference to this aspect and it must be concluded that it played more than a minor part in his reasoning when it is seen that it was relied upon to outweigh other considerations favourable to Mrs. Akers's application.
with friends here and support from them has been
tested. I note the strong expressions of support
and, following interviews in Bunbury, the comments
about those with whom Mrs. Akers could be expected
to associate. In sum, there appears to be
immediate and strong moral support, but in the
longer term the likely prospect of her continued
support by Social Security."
81. "The clear evidence from the Department of Social Security to the contrary" to which the authorized officer referred was a notation by a departmental officer that "unemployment or special benefits had been paid to Mrs. Akers between October 1984 and March 1986 and between October 1987 and July 1988." During the whole of the first period Mrs. Akers had been expressly denied permission to obtain employment by the department and the second period covered the last months of her confinement and the care of her new-born child and a short period after his death. The misunderstanding of that information operated quite unfairly on Mrs. Akers in the consideration of her application. It can only be explained by a conclusion that the authorized officer overlooked the fact that Mrs. Akers had no permission to work for a substantial period and overlooked the fact of Mrs. Akers's pregnancy and its consequences.
82. Indeed contrary to the authorized officer's conclusion, there was clear evidence that Mrs. Akers had been gainfully employed after being given permission to work and had not been a recipient of Social Security benefits in that period. Furthermore, she had obtained training from the Commonwealth Youth Support Scheme to equip herself for employment and had undertaken some further education.
83. This error became significant because it bore upon the authorized officer's consideration of whether the national interest outweighed any favourable matters that had been established in her favour and it introduced an irrelevant element to that consideration thereby attracting the operation of paras.5(1)(e) and 5(2)(a) of the AD(JR) Act and grounding an order for the review of the decision.
84. It is not a matter of equating an incorrect fact with an error of law but of recognising that a mistaken fact has been taken into account in a material respect in arriving at the decision. (See Akpan; and Waterford v. The Commonwealth (1987) 61 350 per Brennan J. at p 359.)
85. These findings are sufficient to order a review of the decision to refuse an entry permit and the decision to deport and it is unnecessary to consider the further particulars recited in support of the ground contained in para 5(1)(e) of the AD(JR) Act but if required to make decisions upon those particulars, which were not pressed by counsel for the applicant, I would have found that none of them was capable of supporting an order for review.
86. Whilst the process of judicial review of administrative decisions is concerned only with errors of law and is not concerned in any way with a review of the merits of an application, it is necessary to have some regard to the worth of the application when determining whether the discretion to grant relief should be exercised.
87. In that regard, the totality of material in this case provides an overwhelming impression of a person who has had few opportunities and considerable ill-fortune in a young life, who has some prospect of making a useful life for herself in Australia and perhaps considerably lesser prospects if repatriated to the United States of America. As the authorized officer noted there is a network of strong moral support for her where she has been living. Part of that support is provided by her cousin.
88. There are a number of very compelling reasons why an application for the grant of an entry permit should receive reconsideration and accordingly the Court's discretion should be exercised in her favour.
89. Accordingly, it is ordered that the decisions refusing Mrs. Akers the grant of an entry permit and ordering her deportation be set aside and further ordered that the respondent reconsider Mrs. Akers's application for the grant of an entry permit.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCA/1988/459.html