Re Kamal Kishore Singh v Minister of Immigration Local Government and Ethnic Affairs [1989] FCA 489 (30 November 1989)

FEDERAL COURT OF AUSTRALIA

Re: KAMAL KISHORE SINGH
And: MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. VG93 of 1989
FED No. 737
Immigration

COURT

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

CATCHWORDS

Immigration - Review of decision to refuse resident status - validity of instrument of delegation of Ministerial power - meaning of s. 66D(1) of the Migration Act - observations on Department's practice as to preparation of reasons for decision.

Migration Act 1958 s. 66D(1)

Administrative Decisions (Judicial Review) Act 1977 s. 13

Acts Interpretation Act 1901 s. 34AB

HEARING

MELBOURNE
30:11:1989

Solicitors for applicant : Mr. J. Little

Counsel for applicant : Mr. J. Little

Solicitors for respondent : Australian Government

Solicitor

Counsel for respondent : Mr. K. Bell

ORDER

The decision of Miss Bates, made on 7 March 1989, be set aside.

The applicant's application dated 31 July 1988 for reconsideration of the decision to refuse his application for resident status be referred to the respondent Minister to be dealt with according to law.

The respondent Minister 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

This is an application for judicial review of a decision ("the decision"), made by Miss Bates, Regional Director, Eastern Region, of the Department ("the Department") of the Minister for Immigration, Local Government and Ethnic Affairs ("the respondent Minister") on 7 March 1989, "to refuse the grant of resident status to Kamal Kishore Singh ("the applicant") and his family".

2. Mr. Singh was born on 17 June 1951 in Fiji and resided there until he came to Australia with his wife and two daughters on 21 December 1987. He was granted a temporary entry permit for 4 months and on 5 April 1988 applied for permanent resident status on the basis of strong compassionate or humanitarian grounds. By letter from the Department dated 22 July 1988 the applicant was informed that that application was refused, and that he had "the right to seek a reconsideration by the Immigration Review Panel" ("the IRP"). It may be added, parenthetically, that he was not told that the IRP did not "have determinative powers ... It simply provides recommendations to the minister or his delegate ..." (Miss Bates - transcript p 26).

3. On 31 July 1988, the applicant lodged a request for reconsideration of the decision to refuse his application for resident status. An affidavit by Miss Bates (to which affidavit further reference will be made later) stated that "the applicant made the claims that:

a. although his previous residence was in
a squatter's home on native land, he paid
rent to the Native Lands Trust Board. Even
after he moved into other rented
accommodation, the same problems persisted.
He and his wife received threatening phone
calls constantly and he twice had to call
the police when his flat was being stoned
by ethnic Fijians.
b. he feared for the safety of his wife
and felt he should not have to wait until
his wife was raped in order to point to the
precarious position of Fijian Indian women
in Fiji.
c. his detention for 22 hours after each
coup were deliberate acts of intimidation
aimed specifically at him, and that others
may have suffered similar treatment should
not invalidate his claims.
d. the fact Dr. Bavandra had interceded on
his behalf was an indication of the
dangerous position he was in.
e. Australian intelligence in relation to
Fiji was notoriously bad and failed to
obtain forewarnings of the first coup.
Although the Department had insisted
otherwise, the situation in Fiji has not
stabilised and attacks on women are
continuing. The assertion that law and
order has been restored in Fiji is a strange
claim to come from a department of a government
that had condemned the coups as lawless.
f. although the difficulties he will face
on return to Fiji may be of an economic
nature, they were nevertheless brought
about as a result of attacks on ethnic
Indians in Fiji."

4. The Department prepared for the IRP a statement, dated 17 November 1988, in relation to the departmental decision to refuse to grant resident status to the applicant. That statement recommended to the IRP that the departmental decision be maintained. The IRP on 24 January 1989 recommended to the Minister "that the departmental decision be maintained and explained". On 7 March, 1989 Miss Bates, purporting to act as the delegate of the respondent Minister, agreed with that recommendation; she purportedly decided that the application for resident status should be refused. On 17 March 1989, the applicant was advised, by a letter from the Department, of her decision.

5. The grounds of the application, as amended by leave, without objection, at the conclusion of the hearing, were expressed in the following terms:-

"The applicant does not accept that the
alleged reasons supplied in the affidavit
of DEBORAH BATES sworn 18 September 1989
are her reasons for decision.
The applicant asserts that her reasons for
decision are those set out in exhibit
"KKS-1" to his affidavit sworn on 12 April
1989. The grounds of the application to review
are that the making of the purported decision -
(a) was contrary to law -
(i) because the decision-maker
accepted the Immigration Review
Panel recommendation when its
findings had miscarried or
contained errors of law or other
serious defects
(ii) because, if she considered the
Panel findings to contain
significant error, she should not
have accepted its recommendation
but ought to have remitted the
case back to the Panel for
re-consideration rather than
substitute her findings for those
of the Panel and thereby deny the
applicant the independent review
promised him and for which he had
applied and paid
(iii) the decision-maker misconstrued
her authority
(iv) because it proceeded on the basis
that humanitarian circumstances
should have arisen after the
applicant's arrival in Australia
for him to be eligible under
section 6A(1)(e) of the Migration
Act 1958
(b) was an improper exercise of the power
conferred by the enactment in
pursuance of which it purported to be
made in that it failed to take into
account relevant considerations, namely -
(i) miscarriage of the review by the
Panel or that its findings
contained errors of law or other
serious defects
(ii) according to Departmental
policy, pre-arrival circumstances
may be taken into
account in humanitarian claims
(iii) the circumstances in Fiji of
Fiji Indians, whether by giving
reasonable weight to the
applicant's claims or by making
reasonable enquiry for a
relevant, accurate and current
assessment of their circumstances
rather than relying on a
minute, namely the May 23 1988
minute of the Acting Assistant
Secretary of the Policy
Secretariat Branch in the
central office of the respondent's
department, that failed even
to acknowledge their existence
(c) was an exercise of discretionary power
in accordance with a policy of -
(i) ignoring or belittling claims of
racial oppression of Fiji
Indians in Fiji without regard
to the merits of the applicant's
case, the policy being evidenced
by, among other things, the
treatment accorded the May 23
1988 minute
(ii) ignoring the applicant's
pre-arrival circumstances
without regard to the merits of
his case."

6. The present application was fixed for hearing on 18 September 1989; on 13 September 1989 the respondent's solicitors filed in the Melbourne Registry a document, dated 8 September 1989, signed by Miss Bates, which purported to be a statement of reasons pursuant to s. 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). That document was not given under that section, in my opinion, because no such statement was ever requested by the applicant; it did not form part of the evidence before the court. The respondent's counsel tendered in evidence, without objection, an affidavit by Miss Bates, sworn 18 September 1989, the substance of which was identical with the purported "statement of reasons".

7. After Miss Bates was cross-examined by the applicant's solicitor, she said in answer to the respondent's counsel, in re-examination:

"I see my responsibility as being - fully
considering the case on the basis of all
the documents that have been put forward,
not just from the review stage but
including the initial application in this
case for grant of resident status. ... That
is it is my decision to be made and that
whilst a recommendation is made to me by
the panel, I am not bound by that
recommendation."

In answer to the question "how wide is your authority in relation to the application", she gave the following evidence:

"I have the authority to accept the panel's
recommendation. I do not have the
authority to reject the panel's
recommendation; a further delegate must
consider that. I have the power to accept
unanimous IRP recommendations.
... As I recall, your Honour, this is
something that I have to check on every
time I have a different set of
circumstances, but as I recall, if there is
a split panel, a non-unanimous
recommendation, I must refer it on to the
next level of delegation. Similarly, if I
disagree with the panel's recommendation, I
must pass it on to a higher level of delegation."

8. Mr. Little was given leave to further cross-examine her in relation to the issue of "the effect of the IRP recommendations", subject to the right of Mr. Bell to re-examine on that matter. In that further cross-examination the following evidence was given:

"MR. LITTLE: Did you have any written
instructions as a delegate of the Minister
on how you were to handle immigration
review panel recommendations or was it all
by word of mouth?---All by word of mouth.
There may well be instructions, but I am
not aware of them.
So you had heard on, what, the grapevine or
whatever that ...
MR. BELL: I object to that question, your
Honour, because the evidence was, by the
witness, not that she had heard that on the
grapevine but that that was the terms of
her delegation.
HIS HONOUR: Yes. Perhaps we might be able
to shorten this. Miss Bates, have you got
somewhere and, if so, could it be produced
to the Court, a written document giving
your delegation?---Perhaps I can clarify it
by saying I am advised by my review
officer, my advisor, if you like, on that
matter that that is what my delegation is.
....
(T. 50) Would you, overnight, please apply
your mind to the question of whether there
are documents, and if there are, would you
make sure that Mr. Bell has them to bring
them to court tomorrow?---Yes, of course."

9. The respondent subsequently tendered in evidence, without objection, two documents, dated 16 September 1988 and 12 December 1988 respectively, signed by the respondent Minister. The first (Exhibit 3), which was headed "Appointment Of Authorized Officers For The Purposes Of The Migration Act 1958", authorized officers holding specified positions (including a position held by Miss Bates at the time of her decision), "to be 'authorized officers' for the purposes of section 6A of the said Act". The second (Exhibit 5), was headed "Instrument Of Authorization". In it, the Minister said:

"I ... hereby:
(i) REVOKE all previous instruments
appointing officers as delegates of
the Minister for the purpose of
deciding appeals to the Immigration
Review Panel (the IRP); and
(ii) AUTHORIZE the officers holding or for
the time being occupying or
performing the duties of the
undermentioned positions on the staff
establishment of the Department of
Immigration, Local Government and
Ethnic Affairs to decide appeals
where the appeal was considered by
the IRP, unanimously or a single IRP
chairperson sitting alone,
recommended that the primary decision
be maintained and the officer
deciding the appeal accepts the IRP
recommendation."

10. Mr. Little, on behalf of the applicant, submitted that, by reason of the former document, Miss Bates became an 'authorized officer' for the purposes of section 6A of the Migration Act and accordingly had authority to grant an entry permit to the applicant. He contended that the instrument dated 12 December 1988 (Exhibit 5), which did not refer to the Migration Act, purported solely to be an administrative arrangement, and did not limit in any way her authority; accordingly, that on 7 March 1989 she had authority to grant the application for resident status. His contention was that she "misconstrued her authority" in that she wrongly believed that she had no authority to grant the application.

11. On her evidence I find that she believed, at the time of her decision, that her only authority in respect of the application was to refuse to grant resident status, although she knew that she could "have referred the matter on to the next level of decision making, stating (her) reasons for disagreeing with the panel". She believed - correctly, in my opinion - that she had no authority to decide to grant the application for resident status.

12. Mr. Bell submitted, on behalf of the respondent Minister, that the two documents had to be read together; further, that the instrument (Exhibit 5) did not revoke the authority granted by the Appointment Of Authorized Officers (Exhibit 3) but limited the powers which it conferred on certain officers. He submitted that, at the date of her decision, Miss Bates had authority to decide to refuse to grant the applicant's application but did not have authority to grant it. In his submission "exhibit 5 cuts down the power (granted previously by) exhibit 3. If exhibit 5 did not exist she would have had the power (to grant the application)".

13. Paragraph (ii) of the later instrument (Exhibit 5) contains the words "authorize the officers ... to decide appeals ..." but the authority so conferred is then qualified by the words "where ... the officer deciding the appeal accepts the IRP recommendation". It seems that the Minister's intention was that an "authorized" officer considering the "appeal" (i.e. considering the recommendation by the IRP which had considered the application) would not have the Minister's authority to "decide" the matter unless and until the officer had decided to accept the IRP recommendation. Paragraph (ii) made it clear that the authorized officer could only accept a recommendation "that the primary decision be maintained".

14. In every case the "primary decision" being considered by the IRP would necessarily be a decision refusing an application for resident status. Accordingly, Miss Bates was only authorized by Exhibit 5 to refuse to grant an application for resident status. In my opinion Mr. Bell's submission on behalf of the respondent Minister as to the meaning of paragraph (ii) of that later instrument is correct. The Minister's later instrument was intended to have the effect that, in considering an IRP recommendation, the officers "authorized" by him were only authorized to refuse an application for resident status. They were not authorized to grant an application.

15. Mr. Bell submitted that the instrument, so construed, was a valid exercise of the powers of the respondent Minister. He relied upon s. 66D.(1) of the Migration Act 1958 and s. 34AB of the Acts Interpretation Act 1901 and in particular upon the words "either generally or as otherwise provided by the instrument of delegation" - which words appear in both sub-sections. The respondent Minister was empowered to delegate, to officers of his Department, his power to decide whether to grant resident status to a non-citizen after his entry into Australia. Mr. Bell submitted that the Minister could delegate either the whole of that power or part of it. It was contended that the delegation of the power to refuse to grant resident status was a delegation of part of the power to grant resident status; it was submitted that that would be a delegation of the Minister's power not "generally" but "as otherwise provided by the instrument of delegation". It was put that "... it cannot be argued that the delegate had no power to decide this case because what she had was a power to decide it one way but not to decide it another.

16. I am unable to uphold that submission. In my opinion in s. 66D.(1) of the Migration Act the words "either generally or as otherwise provided by the instrument of delegation" mean that the respondent Minister had power to delegate to the officers either the whole of the relevant power (i.e. the power to decide whether to grant an application for resident status) or some specifically limited part of that power.

17. In my opinion the respondent Minister was not empowered by those words in s. 66D.(1) of the Migration Act and in s. 34AB of the Acts Interpretation Act to delegate to an officer the power to decide against granting resident status to an applicant whilst at the same time deliberately withholding from that officer the power to grant the application for resident status.

18. In my opinion, an instrument so framed that the officer could only exercise the power against an applicant is not a valid delegation of the Minister's power to grant resident status. The power is the one indivisible power to grant resident status; it necessarily includes the power to decide that an application will not be granted but there is no separate power to refuse to grant it. A test umpire who is given the power to decide whether a batsman is out or not out is given one power not two.

19. It follows that, at the time of the decision, Miss Bates was not an officer authorized by the respondent Minister to exercise his power in respect of the application for resident status. The decision was made by an officer who was not authorized to make the decision and accordingly must be set aside. If, contrary to my opinion, she was authorized to make the decision then, in my opinion, her decision must nonetheless be set aside on the ground that it was vitiated by her belief that she had no authority to grant the application for resident status cf. the applicant's amended ground (a)(iii) that "the decision-maker misconstrued her authority".
Whether Miss Bates' reasons were as stated in her evidence

20. The applicant contended that the reasons set out in Miss Bates' affidavit were not the reasons for her decision. As I have already decided that the decision must be set aside, because it was not made by a validly authorized officer, it is not necessary for me to make any finding on the question whether Miss Bates' evidence as to her reasons for decision should be accepted as being an accurate statement of what were the reasons for her decision but I should expressly state that she was not seeking to mislead the court in any of her evidence. Her evidence as to her reasons included - but was not limited to - her evidence that, in considering the application, she had given consideration to matters arising prior to the departure of the applicant from Fiji.

21. The following observations are made as to her evidence:
1. Miss Bates was placed in a very difficult position by the Department's action in asking her, in early September 1989, to provide a statement of her reasons for the decision she made on 7 March 1989.
2. At the time of that request she had not prepared any draft reasons in respect of her decision on 7 March 1989; the evidence does not suggest that she had made any note of the matters she had taken into account in making her decision. As a result she had to "reconstruct" (as she readily agreed in the witness box) in September 1989 what she believed that she had taken into account nearly six months earlier.
3. It may seem surprising that she was not asked by any Departmental officer to prepare "reasons" shortly after the present application was filed in this court on 12 April 1989 i.e. only five weeks after her decision.
4. At Miss Bates' request the initial draft of her "reasons" was prepared by an officer at the Box Hill Office, who did so simply by working from the case file. Miss Bates had not "read the file prior to asking the officer to prepare a draft ..."; nor had she read it at any time between making the decision (7 March 1989) and receiving from that officer his draft statement of her reasons. I find that it was prepared by that officer without any instructions from her as to what her reasons were at the time when she decided the matter six months earlier.
5. It seems that Departmental practice as to the preparation of "reasons" led to that course being followed. Whatever may be said in favour of that practice when the "reasons" are drafted almost immediately after the decision, in my opinion it is obviously undesirable where the reasons relate to a decision given some six months earlier. In reaching that conclusion, I have not over-looked Miss Bates' evidence that she would have prepared her reasons in the same way had she done the initial draft herself and that it would have made no difference to the form of the statement of reasons.
6. It is not apparent as to how the person drafting her reasons could have known from the file what matters Miss Bates took into account and, in particular, whether she took into account the events in Fiji before the applicant's arrival in Australia.
7. Miss Bates in giving evidence could not recall making any significant alterations to that draft.

22. Although I have made no finding on the matter, the reasons contained in Miss Bates' affidavit can not be readily reconciled with the documents, which were sent by the Department to the applicant on 17 March 1989. They were enclosed with a letter which stated:

"The Panel's unanimous recommendation was
that the refusal decision should be maintained.
A delegate of the Minister ... has studied
the Panel's report and the other
information available on the case and
accepted the Panel's recommendation. The
enclosed papers will help you to understand
why the refusal decision has been maintained."

23. The papers enclosed were a copy of the Departmental statement to the IRP, and a copy of a memorandum from the IRP to the Minister containing its recommendation and explanatory comments. A reader of that letter might have understood that the enclosed papers gave him the substance of Miss Bates' reasons - a belief which would have been strengthened by a reading of a document, issued by the Department, entitled "Reviews and Appeals - Reconsideration of Migration Act Decisions by the Immigration Review Panel". Under the heading "How Requests For Reconsideration Are Considered", the following passages appeared:

"All eligible requests for reconsideration
will be considered by a chairman or a
working panel of the Immigration Review
Panel. The Immigration Review Panel is
independent of the Department.
....
The Immigration Review Panel reports to the
Minister and recommends whether the
Departmental decision should be maintained
or changed.
....
The Minister or Minister's delegate decides
the request for reconsideration following
consideration of the recommendation of the
Immigration Review Panel. The person who
requested the reconsideration is then advised
of the decision and the reasons for the decision.
When a case has been reconsidered under
these arrangements, there is no further
right of review by the processes outlined
in this leaflet."

The decision that "special treatment" was not warranted

24. In view of my decision that Miss Bates' decision must be set aside, it has not been necessary for me to decide whether she erred in law in deciding that "the circumstances were not such as to warrant special treatment". In reaching that conclusion she followed the example of the IRP which "concluded that the circumstances of this case are not such as to warrant special treatment".
Failure to check accuracy of Minute of 23 May 1988

25. Miss Bates took no steps to ascertain whether the information in a Minute of the Department, dated 23 May 1988, was accurate at the time when she was considering the matter in March 1989 - ten months later. Miss Bates stated in her affidavit that she "placed greater weight on" that Minute than on the applicant's claims as to the then current situation in Fiji. It was contended, in the applicant's amended grounds, that she failed to take into account a relevant consideration in that she did not make "reasonable enquiry for a relevant, accurate and current assessment of (the circumstances of Fiji Indians) rather than relying on ... the May 23 1988 minute ...". On her evidence I find that she assumed that the Minute of 23 May 1988 was, in her words, "the latest advice available to me from the department" and that the fact that she "was unaware of any update to that minute led (her) to believe that that was the latest advice that (she) should rely on".

26. As a result, she was not aware, at the time of her decision, of the fact that in June 1988 the Interim Fiji Government had promulgated an Internal Security Decree. At the hearing there was some debate as to the significance, if any, of that Decree and counsel for the respondent Minister conceded that the existence of that Internal Security Decree was known to the Minister.

27. Having already decided that Miss Bates' decision must be set aside, it is not necessary for me to decide whether, in failing to make enquiries as to whether the Minute was accurate at the time of her decision, she failed to perform her duty to give to the application "proper, genuine and realistic consideration upon the merits" - per Gummow J. in Khan v The Minister for Immigration and Ethnic Affairs (unreported - 11 December 1987 p 11), cited with approval by Sheppard J. in Hindi v The Minister for Immigration and Ethnic Affairs (unreported - 30 September 1988, p 25). Of course, it is clear that it is for an applicant to make out his case and that the respondent has no duty to do so for him - see Turner (1981) 35 ALR 388 per Toohey J., Prasad [1985] FCA 47; (1985) 65 ALR 549 per Wilcox J. and Singh (Heer) (unreported decision of Forster J. - 12 June 1987).

28. It should perhaps be added that, since the foregoing was written, the Australian Government Solicitor, on behalf of the respondent Minister, by letter dated 21 November 1989 informed the court as follows:

"The Respondent wishes to clarify the
information conveyed to the Court by its
Counsel, Mr. Kevin Bell, on page 219 of the
transcript. The information relates to a
request made by His Honour at page 168 of
the transcript that he be told whether or
not the Australian Government protested to
the Interim Fiji Government about the
harshness of the Internal Security Decree
and decided closely to monitor its implementation
....
Arising out of a request by Mr. Little, the
Solicitor for the Applicant, further and
more detailed enquiries have been made than
were possible at the time of the hearing as
to the precise course of action taken by
the Australian Government in relation to
the Internal Security Decree. That
information has revealed that in June 1988
the Australian Government formally
expressed concern at the promulgation of
the Internal Security Decree by making a
"demarche" to the Interim Fiji Government.
We are told by the Department of Foreign
Affairs and Trade that a "demarche" is a
diplomatic word meaning a representation of
or a formal expression of concern by one
Government to another in respect of a
matter at issue. ...
The Respondent has no objection to these
matters being taken into account as
evidence in the instant proceedings, and
Mr. Little has been forwarded a copy of
this letter."

29. For the reason given, namely that the decision was made by an officer who was not authorized to exercise the Minister's power in respect of the application for resident status, the decision must be set aside and the application referred to the respondent Minister to be dealt with according to law.

30. The respondent Minister must pay the applicant's costs of the application.