Re Mui Lie Chan v Minister of Immigration and Ethnic Affairs [1988] FCA 49 (4 March 1988)

FEDERAL COURT OF AUSTRALIA

Re: MUI LIE CHAN
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. VG57 of 1987
Administrative Law

COURT

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

CATCHWORDS

Administrative Law - immigration - application to review decisions to refuse entry permits and to deport - applicant misled by departmental officer into believing that required to "elect" between applying for permanent residence and seeking voluntary departure - representations in favour of voluntary departure not made - whether failure to take into account relevant considerations - whether failure to accord natural justice

Administrative Decisions (Judicial Review) Act 1977 ss. 5(1)(a), 5(1)(e), 5(2)(b)

Migration Act 1958 ss. 6A, 18

HEARING

MELBOURNE
4:3:1988

Solicitors for Applicant: Hatfield, Chan & Yeap

Counsel for Applicant: Mr. Cavanough

Solicitors for Respondent: Australian Government Solicitor

Counsel for Respondent: Mr. Maxwell

ORDER

The decision of Keith Owen, dated 12 March 1987, that the applicant be deported from Australia be set aside.

The matter of whether an order should be made that the applicant be deported from Australia be referred for further consideration by the respondent, who is directed to have regard to such material and submissions as the applicant lodges with the respondent within 21 days from the date hereof.

The respondent Minister pay two-thirds (2/3) of the cost of the applicant, Mui Lie Chan, relating to these proceedings.

(Note: Settlement and entry of orders is dealt with by order 36 of the Federal Court Rules.)

DECISION

This is an application by Mui Lie Chan (the applicant) under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) for an order of review of decisions made on 12 March 1987 by a delegate of the Minister for Immigration and Ethnic Affairs (the delegate). The amended application, filed on 30 September 1987, described those decisions as decisions that:-

"(a) The applicant be refused a further

temporary entry permit;

(b) The applicant be refused the grant of
permanent resident status;

(c) The applicant be deported from
Australia".

2. At the request of the applicant's solicitors under s. 13 of the Judicial Review Act, the delegate furnished a statement of reasons, dated 27 March 1987 (the reasons). That statement included the following:-

"1. The applicant is a citizen of
Singapore. She first entered Australia as
a visitor on 16 August 1984 and left on 10
March 1985, having been refused an
extension of her temporary entry permit
("TEP").

2. On 10 September 1985 the Applicant
entered Australia again as a visitor and
was granted a TEP subject to the condition
"employment prohibited", valid until 10
March 1986.

3. On 19 February 1986 the applicant
applied for a further TEP of 3 months
duration to allow her to marry one Robin
Alan Gladman on 14 May 1986. On 18 April
1986 the applicant, through her solicitors,
advised the Department that the marriage
would not proceed.

4. The Department unsuccessfully attempted
to contact the applicant several times
through her solicitor, and she took no
steps to contact the Department until 26
February 1987 when she was apprehended by
Departmental officers and placed in custody
under s. 38 of the Migration Act.

5. On 26 February 1987 the applicant was
interviewed by Departmental officers and
she stated:

. that she was single and that she had
no relatives in Australia, and four
sisters and two brothers in
Singapore;

. that she had completed secondary
schooling in Singapore, but had no
formal skills or qualifications. She
had worked overseas as a hotel
hostess and in Australia as a
book-binder on both of her visits;

. that she had a de facto relationship
with Benedict Chan, a permanent
resident of Australia. They had
begun meeting regularly seven years
previously in Singapore when they
worked in the same hotel;

. that Mr Chan had migrated to
Australia in 1984 with his wife and
children; on both of her visits to
Australia she had lived with him in a
de facto relationship;

. that she and Mr Chan intended that Mr
Chan should return to Singapore to
live with her; however his
commitments in Australia to the
purchase of a house and providing for
his children's education prevented
this. Mr Chan had a secure job in
Australia.

6 Mr Chan was also interviewed on 26
February 1987 and he stated:

. that he and the Applicant had begun
going out together regularly in
Singapore six and a half or seven
years previously;

. that they had commenced a de facto
relationship during the applicant's
second visit to Australia, although
they had been in close contact during
her first visit;

. that he believed that his future lay
with the applicant and that he
intended ultimately to marry her;
however his responsibility to his
children concerned him.

7 Subject to my remarks at para 13 below,
I accepted the statements referred to at
paras 5 and 6 above.

8 Mr Chan's estranged wife has requested
by letter that the applicant be allowed to
remain in Australia so that Mr Chan will
remain to provide for her welfare and that
of their children.

9 The applicant is a prohibited
non-citizen by virtue of s.7(3) of the
Migration Act because she does not hold a
current entry permit. She has committed
offences under s.27 and s.31B of the Act
respectively by becoming a prohibited
non-citizen and by working without
authority.

10 I considered whether to authorize the
applicant to remain in Australia by the
grant of a further temporary entry permit.
I decided not to make such a grant because
the applicant had remained in Australia for
a period much longer than that normally
allowed to visitors to Australia, she had
remained in Australia illegally and had
engaged in employment on both of her visits
to Australia without permission. I
considered that no compelling reasons had
been advanced for the grant of a further
temporary entry permit.

11 I also considered whether to grant
permanent resident status to the applicant
under s.6A(1)(e) of the Act by virtue of
her de facto relationship with Mr Chan, a
permanent resident of Australia.

12 I accepted that a genuine de facto
relationship exists between the applicant
and Mr Chan, and that they intend to
continue their relationship, whether in
Australia or in Singapore, and to marry
when Mr Chan is free to do so.

13 I noted that there were inconsistencies
in the accounts given by the applicant and
by Mr Chan as to when their relationship
became a de facto relationship. I did not
regard these inconsistencies as significant
for the purposes of my decision.

14 I accepted that, if the applicant had
to return to Singapore and Mr Chan chose to
accompany her, then Mr Chan's wife, and
especially his children, would be
disadvantaged. I considered however that
Mr Chan's choice whether to return to
Singapore was his own responsibility.

15 I noted that immigration policy imposes
a time limit of five years within which a
deportee will not generally be allowed to
return to Australia after deportation.

16 I took into account the Government's
policy on illegal immigrants, tabled in
Parliament on 17 October 1985. In summary
that policy stated among other things that
it is in the public interest to ensure that
persons abide by normal migration selection
processes and do not circumvent them by
entering or remaining illegally in
Australia to the prejudice of prospective
migrants who abide by the procedures. The
presence of illegal immigrants to Australia
threatens the orderly management of
immigration programs as well as impacting
upon job availability for legal residents.
They also jeopardise Australia's attitude
to the acceptance of a very large number of
visitors. Prohibited non-citizens should
expect to face the prospect of deportation
when located.

17 Based on my findings as set out above,
I considered whether there were strong
compassionate or humanitarian grounds for
the grant of permanent residence status to
the applicant. I considered and gave
weight to the circumstances of the
applicant's de facto relationship, the
hardship to Mr Chan and the possible
adverse effect on Mr Chan's wife and
children should the applicant not be
allowed to remain in Australia. I took the
view, however, that these factors were
outweighed by the applicant's breaches of
immigration law and policy, and the
interest of the Australian community in
maintaining an orderly and balanced
immigration programme. I therefore decided
to refuse the grant of permanent residence
status to the applicant.

18 I further considered whether it was
appropriate to order the deportation of the
applicant. I took the view that this was
appropriate because of the applicant's
breaches of immigration law and policy, and
because she had failed to contact the
Department since she had become a
prohibited non-citizen. I therefore
decided to order the deportation of the
applicant.

19 In making the above decision I had
regard to an undated submission to me from
Enforcement Section, DIEA Melbourne Office,
with the following attachments:

A Republic of Singapore Passport issued
to the applicant.

B Application for further TEP -
14.2.85. Letter refusing same -
27.2.85.

C Application for further TEP -
19.2.86.

D Letter from applicant's solicitor -
16.4.86.

E Record of interview with applicant -
26.2.87.

F Record of interview with Mr B. Chan -
26.2.87.

G Application for permanent residence
status, with supporting letters -
2.3.87.

H Departmental assessment and
recommendation - 5.3.87.

I Ministerial policy statement -
17.10.85."

3. Ground 1(a) of the amended application included the following:

"1. The making of the decisions was an
improper exercise of the power conferred by
the enactment in pursuance of which it was
purported to be made in that -

(a) Relevant considerations were not taken
into account.

Particulars

(i) The delegate failed to take into
account that, if the applicant
had to return to Singapore and
Mr. Chan (her de facto husband)
chose to accompany her, then Mr.
Chan's wife, and especially his
children, would be
disadvantaged. As to this the
delegate said: "I considered
however that Mr. Chan's choice
whether to return to Singapore
was his own responsibility" (see
para 14 of the statement of
reasons);

(ii) The delegate failed to give any
or any real consideration to the
question of hardship to the
applicant herself, as distinct
from hardship to Mr. Chan and
his family (see especially
paragraph 17 of the statement of
reasons);

(iii) The delegate failed to give any
or any real or proper
consideration to the question of
hardship to Mr. Chan and his
family".

4. Under grounds 1(a)(i) and (iii) Mr. Cavanough, of counsel, on behalf of the applicant, urged that there had been only an "arid recital of formula" in relation to the consideration of hardship to Mr. Chan's wife and children, especially when the possibility of their separation from Mr. Chan was an important one. He also submitted that, even if this issue had been considered, it had not been given adequate weight. He added that ground 1(a)(iii) was a more general submission which encompassed the delegate's consideration of "Mr. Chan's choice whether to return to Singapore", which had been seen by the delegate as "his own responsibility" (see ground 1(a)(i)).

5. In this respect I accept the submission advanced by Mr. Maxwell, of counsel, on behalf of the respondent, that the delegate had regard to "the possible adverse effect on Mr. Chan's wife and children" (see paragraph 17 of the reasons). As to this aspect, Mr. Cavanough also contended that there had been a failure "to give adequate weight to a relevant factor of great importance" and referred to the statement by Mason J., in Minister for Aboriginal Affairs v Peko-Wallsend Ltd. [1986] HCA 40; (1986) 66 ALR 299 at 310, that a decision challenged upon that ground may be "manifestly unreasonable". However, on my reading of the delegate's reasons, I am quite unable to uphold the applicant's submission. Grounds 1(a)(i) and (iii) are not made out.

6. Under ground 1(a)(ii) Mr. Cavanough relied on the fact that the delegate did not specifically refer to hardship to the applicant herself, as distinct from hardship to Mr. Chan and his family, in paragraph 17 of his reasons and the fact that in paragraph 18, where the question of deportation was dealt with, there was no express reference to hardship to the applicant. I consider that the reference to "the circumstances of the applicant's de facto relationship", when read in context, including the statement by the delegate in paragraph 19 that he had had regard to the attachments to the Departmental submission, demonstrate that the applicant's hardship was considered; ground 1(a)(ii) has not been made out.

7. Ground 1(b) of the amended application was that irrelevant considerations were taken into account, the particulars of which were:

Particulars

(i) The delegate decided to deport the
applicant as a punishment for her alleged
breaches of immigration law and policy (see
especially paragraphs 17 and 18 of the
statement of reasons);

(ii) The delegate took into account a
departmental assessment and recommendation
dated 5 March 1987 recommending refusal of
resident status on the basis of an
assessment that "a temporary separation
would be emotionally upsetting to both the
applicant and her de facto spouse"
(emphasis supplied). A separation arising
from deportation of the applicant would not
be "temporary" but would last for a minimum
of 5 years under current Departmental
policy (see paragraph 15 of the statement
of reasons)."

8. Under ground 1(b)(i) Mr. Cavanough submitted that a decision to deport must not be based on an unconscious desire to punish, citing Re Gungor (1980) 3 ALD 225 at 232-233. He submitted that paragraph 18 of the reasons contained the reasons for the decision to deport the applicant, and only referred to matters which had taken place in the past. He conceded that reference may be had to past acts for predictive purposes as to what a person was likely to do in the future; however he contended that in this case those past matters had been given such weight that the decision to deport was made as a punishment for the applicant.

9. I do not consider that paragraph 18 can be read in isolation from paragraph 17 and in this respect accept Mr. Maxwell's submission that the decisions regarding status and deportation are inter-related. In my view the delegate's consideration of the matter in paragraph 17, where he referred to "the applicant's breaches of immigration law" and to "the interest of the Australian community", make it clear that the decision to deport the applicant was not a decision to impose a punishment. Accordingly ground 1(b)(i) fails.

10. As to ground 1(b)(ii) the delegate was plainly not under the impression that the separation would only be "temporary"; he had already stated, in paragraph 15, that "immigration policy imposes a time limit of five years within which a deportee will not generally be allowed to return to Australia after deportation". Ground 1(b)(ii) is rejected.

11. Mr. Cavanough did not press all of the matters raised by ground 1(c)(i) of the amended application; however, he relied upon the last sentence of paragraph 16 of the reasons as showing that there had been an exercise of power "in accordance with a rule of policy without regard to the merits of the case". That sentence read:

"Prohibited non-citizens should expect to
face the prospect of deportation when
located."

It should perhaps be explained that Mr. Cavanough referred to his contention as to that sentence as "ground 1(c)(ii)" but the application was never formally amended to include such a ground. In relation to that matter, he submitted that, even if the policy statement was correct, the delegate had improperly applied it. I accept Mr. Maxwell's submission that the mere fact that the applicant "should expect to face the prospect of deportation" did not mean that she did not have an opportunity to make submissions as to why she should be permitted to stay. In fact she took the opportunity to do so and, as said earlier in dealing with ground 1(a)(i), (ii) and (iii), those matters were taken into account by the delegate.

12. The policy statement on this aspect was also criticised by the applicant but in my opinion that statement, when read in the context of the policy (which was in evidence), did not mean that the Minister or his delegate could ignore the merits of the case of any prohibited non-citizen. They were required by the policy "to consider in other cases whether the illegal immigrant should be permitted to stay in Australia" and, in deciding whether to order deportation, to "take into account a number of factors including ... the personal circumstances of the illegal immigrant (and) any new material or compelling circumstances revealed by representations on behalf of the illegal immigrant ... (they) should have an opportunity to present matters to be taken into account on their behalf". Ground 1(c)(i) cannot be upheld.

13. Ground 2(a) of the application was that there had been a breach of the rules of natural justice, particulars of which were:-

"(a) The delegate decided to refuse the
grant of a further temporary entry permit
to the applicant without giving her any or
any proper opportunity to make an
application for such a permit or to be
heard in support of such an application".

14. In his reasons (paragraph 10 - set out earlier) the delegate expressly said that he had "considered whether to authorize the applicant to remain in Australia by the grant of a further temporary entry permit". In my opinion the principles of natural justice did not require the respondent to invite an application for a temporary entry permit from the applicant, who had already put material forward to support her application for a permanent entry permit. The applicant sought to rely upon the unreported decisions of Gray J. in Sheng v Minister for Immigration and Ethnic Affairs (delivered 17 February 1986) and of Wilcox J. in Maitan v Minister for Immigration and Ethnic Affairs (delivered 7 September 1987). In my opinion neither decision supports the case advanced by the present applicant. Accordingly ground 2(a) also fails.

15. The application to review the decision to refuse a temporary entry permit and the decision to refuse the grant of permanent resident status must be dismissed.

16. Ground 1(a)(iv), which was added by leave without objection, and ground 2(b) may be dealt with together. They both relate to the decision to deport the applicant instead of allowing her to depart voluntarily. They read:

"1. ....

(a) Relevant considerations were not taken
into account.

....

(iv) The delegate failed to take into
account, on the particular question
whether the applicant should be
deported or allowed to depart
voluntarily, any considerations in
favour of the applicant, including her
willingness or ability to depart
voluntarily or any particular
detriments which deportation might
involve for her.

....

2. Breaches of the rules of natural
justice occurred in connection with
the making of the decision.

....

(b) Notwithstanding that the applicant had
foreshadowed to the respondent a
desire to make an application for
voluntary departure in the event of
her application for resident status
being refused, the delegate,
immediately after refusing that
application, decided to deport the
applicant without giving her any
opportunity at all to apply for
permission to depart from Australia
voluntarily."

17. It was common ground that the applicant was told, at her interview on 26 February 1987, that she had to elect between making an application for permanent resident status, on the one hand, and asking to be permitted to depart voluntarily, on the other. It was also common ground that it was known to the Department, before the decisions were made, that she wished to depart voluntarily. The applicant's affidavit, sworn 14 July 1987, contained the following extract:

"4. On the 26th day of February 1987 I was
interviewed by Mr. Hewson, an enforcement
officer of the respondent's Department.
Mr. Hewson gave me to understand that I had
a mutually exclusive choice at that time
between making an application for permanent
residence and making an application for
voluntary departure. Accordingly I
instructed Mr. Yeap to make an application
on my behalf for permanent residence.
However Mr. Hewson was aware that I did not
wish to be deported in any event (I refer
to folios 31 and 40 of the FOI documents).
In the event that my application for change
of status was refused I hoped to be given
an opportunity to make representations in
favour of voluntary departure rather than
deportation. No such opportunity was given
to me." (emphasis added)

That statement was not disputed by the respondent, who filed an affidavit by Mr. Hewson, sworn 19 August 1987; in it he confirmed that he had explained to her "that she had the option of (so) electing ... (and that) that election would have to be made within forty-eight hours" (emphasis added).

18. It was conceded by the respondent that the statement that the applicant had to make such an election was not correct in law. Mr. Cavanough, on behalf of the applicant, relied upon Videto and Anor. v Minister for Immigration and Ethnic Affairs [1985] FCA 326; (1985) 8 FCR 167. In that case the applicant was misled by departmental officers into believing that he could not obtain a temporary entry permit and that there were no "strong compassionate or humanitarian grounds" available to him. The decision was set aside on the basis of a failure to take into account relevant considerations. The following comments by Toohey J. (at 179) are relevant:

" ... if an officer of the Department,
albeit innocently, dissuades or discourages
a person from giving information that is
relevant to the decision to be made, it is
no answer to a complaint ... to say that
the decision-maker did not have the matter
before him. It was nevertheless a relevant
consideration. Clearly much will depend
upon the circumstances of each particular
case."

19. Mr. Maxwell sought to distinguish Videto on the basis that the applicant in the present case had legal advice whereas the applicant in Videto "did not have the benefit of any legal advice" (Toohey J. at p. 179). He submitted that the applicant's legal advisers should have been alerted by the terms of the Minister's policy statement to the fact that it was open to the Minister or his delegate to consider whether the departure of the applicant "should be by deportation or any other means" (i.e. voluntary departure). He submitted that the applicant's solicitors were arguably aware of that possible course before they wrote on 2 March 1987, informing the Department that they were instructed "to accept whatever decision the Department may come up with". However, the applicant's solicitor has sworn that nothing in his "communications with the Department was intended to waive the applicant's right to make representations in favour of voluntary departure".

20. The applicant here was misled by the Department into believing that, by deciding to "elect" to apply for permanent resident status, she was precluded from making representations in favour of voluntary departure rather than deportation. On Mr. Hewson's own affidavit evidence, neither the applicant nor her solicitors could be expected to realize that such an "election" was not binding.

21. Mr. Maxwell also sought to distinguish Videto on the basis that the misleading advice in that case resulted in the Department determining the matter without the benefit of a new application and further relevant material; he contended that in the present case the Department had all the necessary material to decide whether to deport the applicant on the one hand or to permit her to depart voluntarily.

22. I accept Mr. Cavanough's submission that the applicant may well have wished to put to the Department various matters relevant to a proper consideration of whether she should be permitted to depart voluntarily, including the following:-

1. her ability to purchase a return ticket;

2. the fact that she would adhere to any arrangement to

depart voluntarily;

3. the intentions of the applicant and Mr. Chan as to

their future relationship;

4. the stigma the applicant would feel in the event of

deportation;

5 the consequences of deportation - as distinct from

voluntary departure - for the applicant in Singapore.

23. Mr. Maxwell submitted that most of those matters had been dealt with already by the applicant and that factors 1 and 2 were "only relevant for the Department". Mr. Cavanough rightly pointed out that, as they were relevant to the exercise of the discretion by the decision-maker, the applicant may well have wanted to advance submissions and material relating to those matters.

24. On all the material I am satisfied that the applicant, whose sworn statement that she "hoped to be given an opportunity to make representations in favour of voluntary departure rather than deportation" was not challenged, was dissuaded by the Department from advancing material and submissions, relevant to that question.

25. In my opinion the principles of natural justice required that the applicant be given the opportunity to put further submissions on that question. The Department knew that, if she was not permitted to remain in Australia, the applicant wished to depart voluntarily; further, she had been misled into believing that she was not free to advance any material in support of that wish.

26. Mr. Maxwell sought to distinguish Kioa v Minister for Immigration and Ethnic Affairs [1985] HCA 81; (1985) 159 CLR 550 on the basis that in the present case no "negative" material was referred to by the delegate in refusing to permit her voluntary departure. However the section of the policy dealing with "voluntary departure" expressly refers to the question whether an illegal immigrant "has firm arrangements to leave Australia by the first available transport"; that statement illustrates the importance which the Department attaches to the absence of any information that an illegal immigrant had an airline ticket or other means of voluntarily leaving "Australia by the first available transport".

27. Mr. Maxwell also referred the court to Barrero v Minister for Immigration and Ethnic Affairs (unreported, delivered 13 May 1987) where Neaves J. decided (at p. 15) that it was open to the decision-maker to order that the applicant be deported immediately following the decision to refuse his application for permanent resident status. However, in that case there was nothing to suggest that the Department had reason to believe that the applicant wished to put any further submission relating to his mode of departure. In the present case the Department knew that the applicant wished to depart voluntarily if the Department decided that she could not stay in Australia but, nonetheless, by its conduct, in telling her that her "election would have to be made within forty-eight hours", effectively dissuaded her from advancing material or submissions in support of her wish to depart voluntarily rather than be deported. It did so by misleading her into believing - wrongly, as is now conceded - that she was not allowed to do so because she had "elected" to apply for permanent resident status. In the result the applicant has established both a breach of the principles of natural justice and a failure to have regard to a relevant consideration.

28. I am unable to accept Mr. Maxwell's submission that, even if there had been a breach of natural justice, the court, in its discretion, should refuse to set aside the deportation decision because all relevant considerations had already been taken into account. Accordingly, in my opinion grounds 1(a)(iv) and 2(b) have been made out.

29. The decision that the applicant be deported from Australia must be set aside. The matter to which that decision relates, namely, whether the applicant should be deported, must therefore be referred for further consideration by the respondent with a direction that he shall have regard to such material and submissions as the applicant lodges with the respondent within 21 days from today.