Re Geok Ngoh Sim v Minister of Immigration, Local Government and Ethnic Affairs [1989] FCA 8 (2 February 1989)

FEDERAL COURT OF AUSTRALIA

Re: GEOK NGOH SIM
And: MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G1095 of 1988
FED No. 10
Judicial Review

COURT

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
STATE OF NEW SOUTH WALES
Einfeld J.(1)

CATCHWORDS

Judicial Review - administrative law - deportation - application for permanent resident status on compassionate or humanitarian grounds - review of deportation order and refusal to grant an extension of a temporary entry permit - denial of natural justice and procedural fairness - failure to take into account relevant considerations - taking into account irrelevant considerations - considerations for the granting of an extension of time for the filing of an application

Administrative Decisions (Judicial Review) Act 1977: ss 5, 11, 13

Migration Act 1958: ss 6,7

HEARING

SYDNEY
2:2:1989

Counsel and solicitors for G. Scragg

the applicants instructed by
Legal Aid Commission

Counsel and solicitors for C. Stevens
the respondent instructed by
Australian Government Solicitor

ORDER

Extension of time granted for the filing of the amended application.

Quash the decision of 6 April 1988 to deport the applicant and to refuse permanent residence and a temporary entry permit.

Quash the decision of 7 July 1988 declining the applicant residency status, the granting of a further temporary entry permit and the revocation of the deportation order.

The matters to be referred to the respondent for further consideration in accordance with reasons for judgment herein.

The respondent to pay the costs of the applicant.

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

DECISION

Introduction
This is an application brought by Geok Ngoh Sim (the applicant) seeking judicial review pursuant to section 5 of the Administrative Decisions (Judicial Review) Act 1977 of essentially two decisions made by the Minister for Immigration, Local Government and Ethnic Affairs (the respondent). Speaking generally, the decisions were made on 6 April and 7 July 1988 to:

(a) deport the applicant;
(b) refuse the applicant permanent residence; and
(c) refuse an extension of the applicant's temporary entry permit
(permit).

2. The application was initially filed on and dated 14 July 1988 on which date the matter came before me and I directed that an amended application be filed. I also directed the respondent to take no steps regarding deportation of the applicant until the matter came on for hearing. The amended application is dated 2 August 1988 as is a notice of motion which is also before the Court, seeking an order for the extension of time for the lodging of the amended application. The extension is needed because the grounds of the application which relate to the decision made on 6 April 1988 were lodged just over two months out of time.

3. At the time of the hearing, the applicant was being held in custody at the Villawood Detention Centre. At the conclusion of the hearing, I recommended that the department place before the relevant authorised officer under section 39(7) of the Migration Act 1958 (the Act) the opportunity of releasing the applicant on whatever appropriate conditions were thought desirable. As I have heard nothing since, despite a reservation of liberty to apply, I presume that she has since been released.
Background

4. The applicant is a Singaporean woman who has never been married and is 48 years of age. Her family in Australia consists of her 77 year old mother, her brother Michael Sim and his wife Helen Sim, and their children Linda aged 18 years currently in Year 12, Winston aged 17 years currently in Year 10, and William aged 14 years.

5. The applicant first came to Australia on 21 May 1984 as a visitor and left on 26 June 1984. She then returned to Australia on 27 May 1985 with her niece and nephews, on which occasion she was granted a six months temporary entry permit marked 'employment prohibited'. Upon arriving in Australia the applicant stayed with her brother and his wife at a place in Junee and then in Wagga Wagga in New South Wales, at which time she was supported by them.

6. From 27 November 1985, the date of the expiry of the temporary entry permit, she has been in Australia as a prohibited non-citizen by virtue of section 7 of the Act. At some time during 1986 the applicant's brother sponsored their mother Mrs Lim Ah Leok, to come to Australia from Singapore. After her arrival she stayed with the applicant and the children at Wagga Wagga. In October 1987 the applicant's brother and sister-in-law moved to Coffs Harbour and after that time had virtually no contact with the children. During this time Linda first attended a boarding school at Bathurst and the boys stayed in Wagga Wagga with the applicant and their grandmother. Then in January 1988 Linda and Winston went to Melbourne for their schooling together with William. In June 1988 the brother of the applicant travelled to Melbourne to take William back to Coffs Harbour where he now is.

7. Prior to coming to Australia the applicant and her mother had in Singapore assumed the care of the children of Michael and Helen Sim. It appears that they assumed care of Linda shortly after she was born and assumed care of the boys when Winston was five years of age and William two years of age. The parents of these children had spent several years abroad away from Singapore, in Holland and in Australia, apparently having little or no contact with them for years at a time. In fact, between the years 1975 and 1985 Michael Sim did not see his children at all. In late 1981 the applicant and her brother and sister-in-law were involved in custody proceedings in Singapore for the care of the children which were discontinued on 24 August 1984. As evidence of this a copy of a notice of discontinuance which was filed in the proceedings is attached to the affidavit of the applicant's solicitor, Ms Read, sworn 2 August 1988.
The evidence

8. The saga of the applicant's ultimate arrest and detention on 24 February 1988 under section 38 of the Act, began whilst she was living with her mother and William in her brother's house at Wagga Wagga. She is reported to have been found hiding in a cupboard, is said to have made an attempt to flee and allegedly furnished a passport belonging to a permanent resident of Australia. The respondent alleged that the passport held the applicant out to be a student with a photograph of a woman the officers described as looking younger than the applicant. The applicant thereupon produced her own passport.

9. The applicant was then interviewed by the departmental officer who had attended the house, Mr William Muirhead. William Sim, who at the time was aged 13 years, acted as interpreter. In the Report of Interview, which has two dates at the bottom of each page, viz. 24 March 1988 and 24 February 1988, but is dated 24 February 1988 on the top of the first page, the applicant is said to have stated the following:

she has not worked since coming to Australia nor has she
received any welfare benefits
. she came to Australia with a one way ticket and if she had to
return to Singapore she would have to sell her jewellery to pay
for the ticket
. she has no cash or savings in Australia and her only assets are
her clothing and jewellery. Overseas (presumably in Singapore)
she has a flat which was her mother's but is now in her name
. her brother has provided her with a place of residence since
arriving in Australia and has sent her $20 per fortnight
. she has no criminal convictions either here or overseas, she has
never been imprisoned nor has she ever been deported or excluded
from any country
. she would be willing and able to depart Australia voluntarily
although she hopes to be able to remain in Australia so that she
may take care of her mother and nephew William

10. On 25 March Mr Muirhead prepared a file note after he had telephoned Mr John Lowe, who knew the family in Wagga Wagga, on the same day. Mr Lowe's views were summarised as:

He said that Mary Sim had reared the 3 Sim children while
their parents travelled to Holland and Australia for work
purposes.
He said as far as he could ascertain Mary Sim had
embittered the children toward their parents. She had
prevented the children from talking to their parents.
He had seen William Sim and his grandmother last night and
this morning. He was able to cater for the immediate needs
of both for the next 7 or 10 days.

11. A report was prepared by Mr Muirhead dated 28 March addressed to Mr W. Perram of the Migration Operations Task Force. In it he summarised the consequences of the applicant's detention as follows:

The situation in respect of William Sim and his grandmother
was a matter for concern. It was claimed that the
grandmother was incapable of cooking for herself, that she
was recovering from a recent operation and had failing
eyesight. William Sim said he wanted nothing to do with his
father and Miss Sim claimed that she was responsible for
his care. William Sim said that his father sent $20 per
week for the three of them to live on. He also said that Mr
Sharp had arranged schooling and accommodation of Linda and
Winston Sim in Melbourne. They also did not get on with
their father and had not revealed their whereabouts to their
father.
Discussion with a neighbour indicated that the grandmother's
operation took place 18 months ago. Discussions with Mr
Sharp indicated he would be able to make some arrangements
for the care of William Sim and his grandmother.
Since then (24 March) a Mr John Lowe a friend of Mr Sharp,
has regularly visited the house. William Sim's sister,
Linda, aged 17 years has returned to Wagga and Michael Sim
is due to arrive in Wagga either today (28 March 1988) or
4 April 1988.
Miss Sim is in custody in Villawood, to expire 1 April
1988. She has been offered voluntary departure, however
she does not have a valid travel document and flights to
Singapore are heavily booked.

12. Mr Sharp is said to have been a family friend of the Sims in Wagga Wagga. The report also stated that the applicant's brother had indicated his willingness to purchase a ticket for the applicant to return to Singapore.

13. He also outlined what occurred regarding the production of the applicant's passport by saying:

Upon her return to the house she was again asked to produce
her passport. After much searching through her bag she
produced passport No BC/70-31248. The passport was examined
by both Mr Costrission and myself and it was put to her that
it was not her passport. She said it was her passport and
repeated this claim several times.
A search was made of her bag and her passport was located.
I then put to her that passport No BC/70-31248 had been
fraudulently altered. She said that Michael Sim, her
brother, had paid to have this done.

14. In the applicant's affidavit dated 2 August, she describes the incident involving the passport at paragraphs 8-12 and says that at the time she was nervous and not wearing her glasses which she needs to read. She says that during the interview she was never shown any passport nor asked questions about any passport with an alteration made to it.

15. On 29 March another file note was prepared by Mr Muirhead. It stated:

I spoke to John Lowe.
He said that everything was fine as far as care of Mary
Sim's mother and nephew was concerned.
Linda Sim is at the house full-time. William is attending school.
As far as he is aware Michael Sim did not arrive yesterday.

16. On 30 March Mr Muirhead prepared another file note after he had spoken to the applicant's brother on the same day. In summary it stated that Michael Sim had told him that:

he intended to travel to Wagga Wagga as soon as possible after
the Easter break
. he would accommodate his mother in Coffs Harbour
. he had mailed a cheque for a ticket to Singapore for the
applicant to the department's office

17. There is no evidence of whether this cheque ever arrived, but on 31 March another file note was prepared by Mr Muirhead which stated:

I again spoke to Michael Sim today. He said that William
was enrolled in a catholic school in Coffs Harbour - name
unknown but near the airport.
Linda was in year 11 at Taylor (phon) College. She was a
boarder there and he paid the fees.
Winston was in year 10 in Melbourne - school unknown.
He will collect William and his mother on Tuesday or
Wednesday next week.

The first decision - a deportation order

18. On 5 April a minute was prepared by Mr W. Perram the then Director of Enforcement Operations, which was submitted to Mr Machin, the delegate of the then Minister. After referring to the background facts as they were at the time, Mr Perram's assessment had the following features:

1. He noted that the applicant is a prohibited non-citizen. She
holds a temporary entry permit which has expired and had not
lodged an application to extend it. As to this situation he
stated at paragraph 10:
She has committed an offence under the
Migration Act 1958. The then Minister in a
statement to the house in October 1985
clarified the applicable policy.
Interalia:
Those persons who subsequently break
laws and make their own decisions to remain
illegally in Australia must expect to face
the consequences including prosecution and
removal from Australia.
2. No formal application was before the Department for a further
temporary entry permit. However, if such an application were
made, he was of the opinion that it may be inappropriate to
grant it because she has:
. breached a condition of a temporary
entry permit during its validity and
also breached an undertaking which
she gave overseas;
. knowingly rendered herself a
prohibited non-citizen, allowed her
passport to expire, and only then
came to notice by way of community
information which led to her arrest;
. hindered and misled officers in the
course of their duties by attempting
to avoid detection, concealed her
identity and then tried to escape;
. you might form the view, in the face
of her period of illegal residence
to date, that her stated intentions
and hopes are not such that she
could be relied upon to depart upon
the expiry of any temporary entry
permit which might be granted.
3. There is no formal application for permanent residence even
though she had expressed a desire to remain. She did not fall
into any of the categories of section 6A for the grant of
permanent residence except for the possibility of coming within
the strong compassionate or humanitarian grounds.
4. If it were considered by the delegate that the applicant came
within the strong compassionate or humanitarian grounds then the
grant of a permit may be considered.
5. He noted the concern by the applicant regarding the care of her
mother and nephew if she were to be deported. He went on at
paragraph 16:
I would submit, and you may accept, that the evidence gives
no reason to dispute that Ms Sim cared for her mother and
nephew in a positive and helpful way. You may accept that
the three persons would be aggrieved by any administrative
decision which would compel a separation or cause them to
have to go to extraordinary lengths to be reunited.
Notwithstanding this, you may take into account that:
. in the knowledge that she was an illegal immigrant
who had undertaken to depart, Ms Sim accepted
responsibility for the long term care of her mother
and nephew and during that time made no approach to
the Department to seek to continue with her legal
status or thereafter to correct her illegal
immigrant status;
. Ms Sim has been illegally in Australia since 27
November 1985;
. Ms Sim was prepared to make misleading statements
and to present false documents to promote her
further stay in Australia;
. there is an immediate family member, namely Michael
Sim, in Australia who is now willing to bear the
responsibility of caring for Ms Sim's mother and her nephew.
6. On the question of voluntary departure of the applicant he notes
that the travel documents had expired and the funds to purchase
the ticket were not at hand. Apparently Mr Sim's cheque had not
arrived, but failure to keep his word does not seem to have
inured to his discredit in the department's mind. Mr Perram
noted that the applicant had committed offences under the Act
and she only came to the Department's attention from information
brought by a third party.

19. In making his assessment, the officer stated that he had had regard to the passport material obtained at the interview on 24 February, the interview report dated 24 February, file notes of Mr Muirhead dated 25, 30 and 31 March, and the file note regarding the circumstances of the arrest and detention dated 28 March, which I assume must be that of Mr Muirhead.

7. He concluded:
Taking into account Ms Sim's personal
circumstances and all the other facts and
circumstances described in this report and
its attachments, I believe it is open to you
to find that there are no matters, either in
isolation or in combination, to weigh
conclusively against deportation and I
recommend accordingly.

20. Mr Perram said nothing about the possibility that if Ms Sim had not been and were not caring for the grandmother and nephew, and in earlier times the elder children, they may well have required various forms of government aid to survive, and may still do so if she is required to leave the country.

21. On 6 April Mr Machin, delegate of the Minister, approved the recommendation made by Mr Perram and a deportation order was subsequently made on 6 April 1988 pursuant to section 39 of the Act.
The application on compassionate/humanitarian grounds

22. On 18 May an application for permanent residence on humanitarian or compassionate grounds dated 13 May was lodged together with an application for a further temporary entry permit seeking an extension of twelve months. In support of this application, a statutory declaration was lodged by the applicant together with a statement, in the form of an undated letter written by Linda on behalf of the family, jointly signed by her and her brothers and the mother of the applicant. In her application for resident status the applicant stated that she did not apply for migration to Australia at an overseas post in the usual way because:

I did not understand the law. I did what my brother told me.

Her claim for strong compassionate or humanitarian grounds were described as:

My need to be with my mother and niece and nephews in order
to look after them. Their need for my care.

23. As to the hardship that would be suffered by the applicant and the family, the applicant stated:

(i) I would be separated from my closest relatives
(ii) They would be deprived of my care, which is
necessary to them.

24. She stated that it would not be appropriate for her to depart Australia and apply from an overseas post because:

My mother is ill now and requires care. She needs my
assistance now. Also, my niece and nephews are very young
and need my help. If I went back to Singapore it might
take a very long time for my migration application to be
decided.

25. In her statutory declaration the applicant outlined the circumstances involving her brother and her nephews and Linda. She says:

In Singapore I lived with my mother and worked as a
seamstress. I have reared my niece Linda since she was 1
month old. My brother and sister-in-law did not want to
keep her. I started looking after my nephews Winston and
William when Winston was 3 years old. At that time my
brother and his wife went to the Netherlands to work as my
brother has obtained employment as a chef. They stayed
there for 2 years. Winston and William have been with me
all the time since then. When the children came to me
there was no mention of how long they would stay and I have
reared them as though they were my own children. My brother
provided occasional financial support over the years
sometimes he sent $1,000.00 to $2,000.00 Singapore per year,
sometimes nothing. I supported the children, working as a
seamstress during the day and sometimes doing casual
domestic work at night.

She expressed her concern for the welfare of her nephews and niece and mother by saying:

I am very concerned about the welfare of my niece and
nephews if I am unable to stay in Australia. They are
Australian citizens. Since my brother went to Junee he has
not been supporting the children. Before he left he had
given us some bags of rice and some vegetables. When these
were used up I asked William to ring and tell him that we
had no more food. He told William to tell me that I could
pay for the food first. He has sent no money for me or the
children. My mother has been supporting us and I have also
had some money sent to me from Singapore.
My brother was paying for Linda's school fees but is not
paying anything now. My mother was paying for Winston's
school fees. Since the beginning of this year Linda and
William have been in Melbourne with a friend as they are
going to school there. In about December last year William
had a falling-out with his father who telephoned from Coffs
Harbour and told him to leave us and look after himself in
future and pay for his own education. I do not believe that
my brother and sister-in-law have adopted a responsible
attitude to the children. I do not believe they are willing
to take care of them or support them. I am very worried
about them.
I am also very worried about my mother. She is a permanent
resident of Australia. She is in her 70s and is unwell.
In Singapore she had an operation for removal of gallstones.
In 1985 or 1986 she had an operation for removal of a
cataract in her right eye. She suffers from poor eyesight.
She can't lift heavy things and suffers from dizzy spells.
She can walk but only for short distances. If I were with
her I would be able to look after her. Sometimes she needs
assistance dressing and bathing as she doesn't have much
strength in her arms. She is unable to take care of herself
on her own and she cannot take care of my niece and nephews.
She needs me to look after her.

26. No contrary evidence to these startling and disturbing assertions has been provided. I suppose that the $20 per week said earlier to have been provided by Mr Michael Sim for the occasional support of the applicant and his three children is entitled to be dismissed as "nothing". Unless they were established as untrue or exaggerated, these matters should have coloured any departmental assessment of Mr Michael Sim's real interest in the wellbeing of his children.

27. The applicant went on to emphasise her concern and said that since her apprehension William and her mother went to Melbourne to stay with Linda and Winston. Thus the burden of caring for the applicant's mother had fallen on Linda. She finally stated that if she could remain in Australia she would return to live in Wagga Wagga with her mother and William and would seek part time employment. She said that if she had to return to Singapore it would be difficult to find work and she would have to impose upon relatives for accommodation.

28. In her lengthy letter, Linda stressed the need they all have for their aunt to remain in Australia. On the final page she stated:

Simply pen and paper can never describe how we all feel at
the moment. Please, please understand our dilemma and on
behalf of my brothers and grandmother, I plead to you again
to permit my aunt to stay. She has always been a good,
obedient daughter to my grandmother and is like a mother to us.
We all also feel that she too has suffered enough for she
certainly deserved more than the present trauma. This
extremely unfortunate situation has already done enough
damage to our lives. We want the whole family to be
together and she is someone irreplaceable.
Personally, as a result of this, I have neglected my studies
and since I am doing my HSC this year (and hope to go to
university next year), I pray that you can understand. Any
other alternate actions can further tear our lives apart so
please, please, please let her remain in Australia for we
all need her and, she is one of our family.

29. Linda was not required for cross examination. The evidence indicates that the genuineness of this moving plea was accepted by the department. In the absence of any contrary evidence, I proceed on the basis that it is bona fide.

30. On 25 May Dr J.C. Cherny prepared a medical report as to the health of the applicant's mother. It was forwarded to the Minister on 2 June 1988 and stated:

I have spoken with her 3 grandchildren and seen her. From
these interviews it appears that she is a 77 year old lady
with poor vision and suffers with abdominal pain - I have
been told she has had surgery for (probable gallstones) and
the grandchildren say she also was found to have cancer.
She is unable to care for herself regarding, cooking,
shopping, washing and needs supervision . . .

31. On 4 June Mr Muirhead apparently spoke with the applicant's brother and made a file note of the conversation. The note records that the applicant's brother said, with evident correctness, that William preferred to live with his sisters and that he was therefore paying for the board and schooling of the children in Melbourne. He said that in about one week he would be travelling to Melbourne to see his children and his mother, and he planned to take his mother back with him so that his wife could care for her.

32. On 16 June Michael Sim went to Melbourne and took William back with him to Coffs Harbour. On 20 June Mr Muirhead prepared another file note in which he stated that he had a telephone conversation with Winston who had telephoned him. Relevantly it stated:

He said that his father would not let him live in the same
house as him (his father).
Linda and the grandmother were living with him in Melbourne.
They had received money from an aunt in Singapore, to assist
in their upkeep.
They would like Miss Sim to live with them in Melbourne,
particularly as Miss Sim is most capable of caring for the
grandmother.

33. This viewpoint was also apparently accepted as genuine despite the contents of another file note prepared by Mr Muirhead on the same day after he had telephone the applicant's brother. In it he stated that the applicant's brother told him that William was then attending a school in Coffs Harbour and that he wanted Linda to stay in Melbourne because she had only six months of her schooling left to complete year 12 and she intends to attend university. He also told Mr Muirhead that his mother was not well, that that is why he had left her in Melbourne, and that he would move her to Coffs Harbour when her health improved.

34. On 20 June another letter was written by Linda and signed by herself and Winston. She wrote the letter for the decision-maker to consider. She detailed the events that took place when William was taken by their parents to Coffs Harbour in June. She said (sic):

Concerning the case of Mary Sim, I would like to inform you
of the latest developments. My irresponsible and rather
devious parents went to my youngest brother's school
(William Sim) on 16/6/88 and took him to Coffs Harbour.
This deliberate act by my parents was done without my
grandmother's knowledge and can be proven because 2
personally rang the police and report him (my brother
William Sim) as a missing person. I have to find out myself
by going to his school; on 17/6/88 and asking about my
brother's whereabouts. Later, I also have to ring up the
police again and report him found. To my knowledge, my
brother was taken against his wishes and since he is legally
unable to be independant at fourteen years old, he has to
submit.

35. She went on to state that she and Winston did not intend to join their parents at Coffs Harbour and ended the letter with a plea for the applicant not to be deported. This is the letter of an 18 year old young woman. It hardly relates the activities of a person being unwillingly influenced by an older person referred to earlier by Mr Lowe. It also gives little confidence that Mr Michael Sim could be relied on to provide a solution to this problem.
The second decision - refusal to reconsider

36. On 7 July a minute was prepared by Mr McCormack of the Enforcement section of the department which recommended that the deportation proceed. In it he made reference to the contents of the applicant's application for residence status and to the statutory declaration of the applicant and the statement prepared by Linda. He referred to the conversations Mr Muirhead had had with the applicant's brother on 4 and 20 June and to the conversation Mr Muirhead had held with Winston on 20 June. He also referred to the letter signed jointly by Winston and Linda.

37. In his assessment he referred to circumstances which had changed since the making of the deportation order and listed them as:

. Ms Sim's mother is now in Melbourne;
. only Winston and Linda Sim are in Melbourne with
their grandmother. William Sim is in Coffs Harbour
with his parents;
. there is evidence from Winston and Linda that they
do not wish to be with their parents;
. there is a somewhat more detailed if not clearer
picture of the family background (e.g. the custody
proceedings) which has led to the evident bad
feeling between various family members; and
. the grandmother, niece and nephew have been without
the immediate physical support of Ms Sim since the
beginning of April this year.

This latter circumstance was of course caused by the applicant's incarceration in Villawood by the department. Mr Muirhead went on to state:

On the other hand, Mr Michael Sim has indicated he and his
wife will look after his mother in Coffs Harbour. He is
paying the education and boarding expenses for his children
in Melbourne. He is their natural parent and legal
guardian. That the children do not want to be with their
parents and prefer Ms Sim in that role could quite
reasonably be seen as the Sim family's own problem and best
left alone by the Department. Some of the matters put
before the Department for consideration indirectly lend
themselves to forcing the Department to adjudicate in the
family's affairs and you may form the view that this would
be inappropriate.
You may accept that Ms Sim has a caring relationship with
her mother and with her niece and nephews. You may also
accept that each of these persons would be aggrieved by any
decision to separate them. However, you may also take into
account those matters previously considered by Mr Machin
and, if you are of the view that any recent developments or
further information do not give more weight to Ms Sim's
claims and do not substantially alter the circumstances, you
may decide that the grant of residence status on strong
compassionate grounds is not well founded.

38. This is a difficult attitude to support having regard to the fact that it was the deportation order and Ms Sim's arrest which changed the family situation which had persisted for more than fifteen years throughout the entire childhood of these children and the illness of their grandmother. The willingness or interest of Mrs Sim Snr in living with her son after virtually a lifetime of his lack of interest in her wellbeing is completely ignored. On the same day, Mr Hoffman, delegate of the Minister and authorised officer for the purpose of section 6A of the Act, approved the recommendation to deport.

39. On 11 July, a letter regarding the permanent residence and temporary entry permit applications was transmitted from Mr Muirhead by facsimile to the applicant's solicitor, Ms Read. Relevantly it contained the following:

On 7 July 1988 Miss Sim's applications were considered by a
delegate of the Minister for Immigration, Local Government
and Ethnic Affairs. The delegate then decided to maintain
the earlier decisions to refuse permanent residence and the
grant of a further temporary entry permit and to order Miss
Sim's deportation.
Arrangements to effect Miss Sim's departure from Australia
are proceeding.

40. On the same day the applicant's solicitor requested a section 13 statement as to the refusal of the applications. It seems that there was some delay in Mr Muirhead seeing that letter, because on 13 July he transmitted another letter to the applicant's solicitor in which he briefly stated:

I refer to my letter of 11 July 1988.
Arrangements have been made for Miss Sim to depart Australia
on Friday 15 July 1988.

41. In her affidavit dated 14 July the applicant's solicitor stated that on 13 July she spoke to Mr Muirhead and asked him why the applicant's application had been refused. She said at paragraph 12:

He said that the submission stated 'in the light of
previous decisions and recent circumstances he (i.e. the
Delegate) may not decide there are strong compassionate
humanitarian grounds.' He said 'The Delegate refers mainly
to the previous decisions and decided to maintain those
decisions.' I said to him 'This is her first normal
application for permanent residence, isn't it?' He said
'Yes.' He said Section 6A(1)(e) was canvassed in previous
decisions.

Ms Read said that she asked for a copy of the submission given to the delegate but that she had not received a copy of it.
The section 13 statement

42. In the section 13 statement provided pursuant to directions I made on 14 July 1988, the delegate of the Minister, Mr Hoffman, stated that he had had regard to a number of factors to which I have already referred. However, the essential features on which the application for resident status was refused emerge. At paragraph 20 of the section 13 statement, the delegate said that the applicant:

. knowingly rendered herself a prohibited non-citizen,
allowed her passport to expire, and only then came
to notice by way of community information which led
to her arrest;
. hindered and misled officers in the course of their
duties by attempting to avoid detection, concealed
her identity and then tried to escape; and
. in the face of her period of illegal residence to
date, her stated intentions and hopes were not such
that she could be relied upon to depart upon the expiry
of any temporary entry permit which might be granted.

In paragraph 22 he said:

. in the knowledge that she was an illegal immigrant
who had undertaken to depart, the applicant accepted
the responsibility for the long term care of her
mother and nephew and during that time made no
approach to the Department to seek to continue with
her legal status or thereafter to correct her
illegal immigrant status;
. the applicant has been illegally in Australia since
27 November 1985;
. she was prepared to make misleading statements and
to present false documents to promote her further
stay in Australia;
. there was an immediate family member, namely Michael
Sim, in Australia who was now willing to bear the
responsibility of caring for the applicant's mother
and her nephew.

43. It is interesting that emphasis was given in paragraph 20 to the applicant's being brought to the attention of the Department from "community" information, presumably supplied by an unnamed third person. This person's identity was not revealed to me and I do not know if the identity is known to the respondent or his department. It is at least open to speculation that this person was the applicant's brother or someone anxious to advance and support his evident adverse relationship with the applicant. In any event I have difficulty identifying the additional relevance of this matter to the other evidence upon which reliance was apparently placed.

44. As to the change of circumstances referred to by Mr McCormack, the delegate of the Minister merely repeated, virtually verbatim, everything which Mr McCormack had noted. He added nothing of his own and accepted Mr McCormack's invitation to stay out of the Sim family fracas without acknowledging that it was the department who was seeking to change the long existing status quo. Despite the largely undisputed circumstances here, there appears to have been no querying of, or hesitation in accepting, the views and 'undertakings' of Mr and Mrs Sim in relation to the future care of their children and their grandmother by reason of their extraordinary lack of involvement in their past.

45. The delegate accepted that the applicant cared for her mother, niece and nephews and that they would be aggrieved by the decision. However, he did not consider that the additional information since the making of the deportation order added additional net weight to the applicant's claim and that the overall circumstances had not undergone any significant change so as to warrant a reversal of the decision to order the applicant's deportation. In the light of the statements of the older children in particular, this attitude is quite perplexing to me.
Extension of time

46. Before turning to consider the substantive application, I first consider the issue raised by the notice of motion. It seeks an extension of time, pursuant to section 11(1)(c) of the Judicial Review Act, within which to lodge the application for review of the decision made on 6 April 1988 to deport the applicant.

47. Section 11(1)(c) provides:

An application to the Court for an order of review -
(c) shall be lodged with a Registry of the Court and, in
the case of an application in relation to a decision
that has been made and the terms of which were
recorded in writing and set out in a document that
was furnished to the applicant, including such a
decision that a person purported to make after the
expiration of the period within which it was
required to be made, shall be so lodged within the
prescribed period or within such further time as
the Court (whether before or after the expiration of
the prescribed period) allows.

48. Subsection (3) of section 11 provides:

The prescribed period for the purposes of paragraph (1)(c)
is the period commencing on the day on which the decision is
made and ending on the twenty-eighth day after -
(a) if the decisions sets out the findings on material
questions of fact, refers to the evidence or other
material on which those findings were based and
gives the reasons for the decision - the day on
which a document setting out the terms of the
decision is furnished to the applicant; or
(b) in the case to which paragraph (a) does not apply -
(i) if a statement in writing setting out those
findings, referring to that evidence or
other material and giving those reasons is
furnished to the applicant otherwise than in
pursuance of a request under sub-section
13(1) not later than the twenty-eighth day
after the day on which a document setting
out the terms of the decision is furnished
to the applicant - the day on which the
statement is so furnished;
(ii) if the applicant, in accordance with sub-section
13(1), requests the person who made
the decision to furnish a statement as
mentioned in that sub-section - the day on
which the statement is furnished, the
applicant is notified in accordance with
subsection 13(3) of the opinion that the
applicant was not entitled to make the
request, the Court makes an order under sub-section
13(4A) declaring that the applicant
was not entitled to make the request or the
applicant is notified in accordance with
sub-section 13A(3) or 14(3) that the
statement will not be furnished; or
(iii) in any other case - the day on which a
document setting out the terms of the
decision is furnished to the applicant.

49. The only document setting out reasons for the Minister's decision is the section 13 statement which was requested by the applicant's solicitor by letter on 11 July 1988 following the refusal of the permanent residence application and the application for the further permit.

50. In Duff v Freijah [1982] FCA 159; (1979) 43 ALR 479 Northrop J. made the following observations of section 11(1)(c) at 483:

In this respect, the language of s 11(1)(c) of the Judicial
Review Act is not that of futurity. The language is not to
be equated with a statute of limitations barring an action
except where a court extends the time within which the
action may be commenced. The section imposes a procedural
requirement with respect to the time in which the
application under s5 is to be lodged. The lodging of an
application after the expiration of that prescribed period
does not make the application a nullity. The provision is
not in the nature of a defence that can be raised by a
respondent. The section confers an unfettered discretion
upon the court to allow further time within which the
application may be lodged. It does not prescribe the method
by which an application for further time is to be made nor
does it contain provisions stating that notice must be given
to prospective respondents before any such application is
made. It does not prescribe the method by which a
prospective applicant under s5 must first obtain an order
for extension of time before the application is lodged under
s11. In my opinion the court has power to make an order
under s11(1)(c) extending time for the lodging of an
application under s11, even though that application had been
lodged after the expiration of the prescribed period: see
Steimer v Tamas (1918) 37 ALR 211.
My opinion is consistent with the past practice of the
Court. This practice is illustrated by Doyle v Chief of
General Staff [1982] FCA 124; (1982) 42 ALR 283.
Thus it is necessary for the court to exercise the
discretion conferred by s11(1)(c) of the Judicial Review
Act. That discretion is unfettered, but it must be
exercised judicially on relevant facts.

51. In Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 58 ALR 305 Wilcox J. considered the factors which the court must have regard to in considering the grant of an extension of time pursuant to section 11. At 310-11 his Honour stated, with eminent erudition and skill:

Section 11 of the Administrative Decisions (Judicial Review)
Act does not set out any criteria by reference to which the
Court's decision to extend time for an application for
review under s5 is to be exercised. Already there have been
a number of decisions of judges of this court, all sitting
at first instance, dealing with the approach proper to be
taken. They differ a little, both in language and in
emphasis, but I venture to suggest that from them may be
distilled the following principles to guide, not in any
exhaustive manner, the exercise of the court's discretion:-
(a) Although, the section does not, in terms, place any
onus of proof upon an applicant for extension, an
application has to be made. Special circumstances need not
be shown, but the court will not grant the application
unless positively satisfied that it is proper so to do. The
'prescribed period' of 28 days is not to be ignored (Ralkon
v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at
550). Indeed it is the prima facie rule that proceedings
commenced outside that period will not be entertained (Lucic
v Nolan (1982) 45 ALR 411 at 416). It is a precondition to
the exercise of discretion in his favour that the
application for extension show an 'acceptable explanation of
the delay' and that it is 'fair and equitable in the
circumstances' to extend time (Duff v Freijah [1982] FCA 159; (1982) 43 ALR
479 at 485; Chapman v Reilly, Neaves J, 9 December 1983, not
reported, at p 7).
(b) Action taken by the applicant, other than by making
an application for review under the Act, is relevant to the
consideration of the question whether an acceptable
explanation for the delay has been furnished. A distinction
is to be made between the case of a person who, by non-curial
means, has continued to make the decision-maker aware
that he contests the finality of the decision, (who has not
'rested on his rights': per Fisher J. in Doyle v Chief of
General Staff [1982] FCA 124; (1982) 42 ALR 283 at 287) and a case where the
decision-maker was allowed to believe that the matter was
finally concluded . . .
(c) Any prejudice to the respondent, including any
prejudice in defending the proceedings occasioned by the
delay, is a material factor militating against the grant of
an extension: see Doyle at p 287; Duff at pp 484-5; Hickey
at pp 525-7 and Wedesweiller v Cole [1983] FCA 94; (1983) 47 ALR 528 at pp
533-4.
(d) However, the mere absence of prejudice is not enough
to justify the grant of an extension: Douglas at p 18; Lucic
at p 416; Hickey at p 523. In this context, public
considerations often intrude (Lucic, Hickey). A delay which
may result, if the application is successful, in the
unsettling of other people . . . . or of established practices
. . . is likely to prove fatal to the application.
(e) The merits of the substantial application are
properly to be taken into account in considering whether an
extension of time should be granted . . .
(f) Considerations of fairness as between the applicants
and the other persons otherwise in a like position are
relevant to the manner of exercise of the court's
discretion . . .
In considering the authorities it is, I believe, important
to bear in mind the point made by Sheppard J. in Wedesweiller
(at p 531) relating to the diversity of decisions as to
which review may be sought under the Act: . . . 'there will be
some cases which may be decided upon considerations which
affect only the immediate parties. It will be appropriate
to consider whether the delay which has taken place has been
satisfactorily explained, the application, the prejudice
which may be suffered by the Government or a particular
department if the application is granted and, generally,
what the justice of the case requires. In other cases wider
considerations will be involved.

52. In her affidavit dated 14 July 1988, the applicant's solicitor stated that she received instructions on 10 May 1988. She said in cross examination that at the time of taking instructions she was not aware of the existence of the decisions relating to the refusal of a permit and permanent residence at the time the deportation order was made. She says that she only became aware of them at about the time the court proceedings commenced. After lodging the applications on 18 May and liaising with Mr Muirhead of the Department, she said in her affidavit that on 13 July she asked Mr Muirhead why the applications had been unsuccessful and she asked him for a copy of the submission that was given to the delegate. On 14 July the application for judicial review was lodged.

53. The respondent opposed the granting of the extension. Its main reasons were:

(a) if the deportation order were set aside, the respondent may
suffer prejudice by reason that the subsequent detention of the
applicant would amount to unlawful detention. The department,
it was said, would thus be placed at risk of proceedings
brought by the applicant against it for habeus corpus, false
imprisonment or wrongful arrest
(b) the decision had been made on 6 April and no action had been
taken by the applicant to oppose the decision until the
department had refused to grant permanent status and a further
permit
(c) if the decision were ultimately set aside then an issue estoppel
would be created between the parties.

In my opinion, none of these arguments have substance. After considering the relevant factors and applying the elements referred to by Wilcox J in Hunter Valley, I am satisfied that an extension of time should be granted.
The Deportation Order

54. The applicant submitted that she had been denied natural justice and procedural fairness by not having been given an opportunity to respond to certain matters which the respondent had taken into account in making the decision to deport. In particular the applicant says that at the interview conducted on the day she was apprehended, it was not put to her that her passport may have been tampered with. She says that she was not given a proper opportunity to respond to the allegation that she was party to or aware of the production of a false passport or had knowledge as to the circumstances of it. Furthermore she says that at the time of the interview, she was not told that she had an argument for residency on compassionate or humanitarian grounds.

55. She says that she did not have an opportunity to respond to the allegations that:

(a) she had breached a condition of a permit during its validity and
the undertaking which was given overseas;
(b) she knowingly rendered herself a prohibited non-citizen and
allowed her passport to expire and did not approach the
department for an extension of her legal status beyond 27
November 1985 or even to correct her illegal immigrant status;
(c) she hindered and misled officers by attempting to avoid
detention, to make misleading statements and to present false
documents to promote her stay in Australia;
(d) she attempted to conceal her identity and tried to escape - and
I wonder to where in the circumstances of this case she might
have "escaped";
(e) in view of the period in which she has been an illegal resident,
her stated intentions and hopes could not be relied upon;
(f) her brother is willing to bear the responsibility of caring for
the applicant's mother and nephew;
(g) as set out in the file notes containing conversations with the
brother of the applicant and Mr John Lowe on 25 March, the
applicant's mother and nephew would be cared for if the
applicant was not in Australia.

56. The applicant submitted that these factors were considered by the decision-maker and all were considered adverse to the applicant: see Kioa v West [1985] HCA 81; (1985) 159 CLR 550 and Caulton v Minister for Immigration, Lockhart J., 12 August 1987, unreported. The applicant stated that an opportunity should have been given to respond on these matters before any decision was made: see Bedro v Minister for Immigration, Keely J., 26 August 1987, unreported; Youssef v Minister for Immigration, Foster J., 16 November 1987, unreported; Chan v Minister for Immigration, Keely J., 4 March 1988, unreported. I also observe that close reliance upon a conversation interpreted by a 13 year old of unknown skill as a bilingualist is unwise and dangerous.
Residence Status and the Permit

57. The applicant submitted that the decision-maker was in error in being of the view that before the applications could be considered, the deportation order would have to have been revoked. Reference was made to Palko v Minister for Immigration (1987) 77 ALR 125, Peko-Wallsend Ltd v Minister for Aboriginal Affairs (1984) 59 ALR 51 and The Council for the City of Parramatta v Pestell [1972] HCA 59; (1972) 128 CLR 305.

58. It was claimed by the applicant that the delegate treated the applications as a decision to review earlier decisions when in fact the applicants said no proper earlier decision had ever been made. The applicant submitted that the decision-maker improperly considered that the applicant's mother was being or could be taken care of and cared for by the applicant's brother. She submitted that the statements of the applicant's brother had been given excessive weight.

59. The applicant further submitted that the decision-maker failed to take into account and/or give proper weight and proper consideration to the hardship that would be suffered by the applicant's mother, niece and nephews: Tabag v Minister for Immigration [1982] FCA 276; (1982) 45 ALR 705. The applicant finally submitted that the delegate did not give proper consideration to the matters before him and that the decision was given in accordance with policy rather than a due consideration of the merits of the case.

60. The respondent argued that the decision-maker had envisaged the problem that a permit could not be granted in view of the existence of a current deportation order. His counsel pointed out that the applicant did not deny that she had tried to hide from the authorities when she knew that she was not legally entitled to remain in the country after the expiration of her permit. He drew attention also to the fact that there was a possibility of a sponsorship application being made by the applicant's mother if the applicant returned to Singapore.
Conclusion

61. I am firmly of the view that this is a proper case for judicial review. Whilst some criticism of the applicant's conduct in relation to Australian law and policy is not unreasonable, the justified criticism is heavily outweighed by the justice and merits of the arguments in favour of the application. It is not necessary for me to deal with each one, because the apparently vital acceptance of the viewpoints of Mr Michael Sim and Mr Lowe have denied crucial natural justice to the applicant in this case. The acceptance of their statements was in my view quite unreasonable, and no true opportunity was given to the applicant to deal with their representations.

62. After fifteen years of deliberate separation from his children and his purposeful decision to leave their care and upbringing to his sister and mother, the concept that Mr Michael Sim's views or intentions, communicated by telephone and unsupported by any evidence in this case or even the cross-examination of the applicant and the elder children, should be given serious weight or consideration seems to me wholly unacceptable, even bizarre. Mr Lowe's viewpoint in these circumstances that the children's attitudes were fashioned under influence from the applicant, in her favour and against their parents, is in the teeth of the uncontradicted evidence and the likely realities.

63. It is clear that the deportation order was originally influenced heavily by these matters and by the delegate's negative assessment of the applicant's non-compliance with Australian law and policy. In the context of the situation here, Government policy in relation to prohibited non citizens, whilst very understandable in ordinary circumstances, was at best of little relevance. Most of the applicant's actions and attitudes in this regard were in my view not deliberate defiance but the consequence of the dilemma in which she found herself due to the blatant and wilful disregard of Mr and Mrs Michael Sim for their family. Further, the temporary arrangements made to deal with the situation caused by the applicant's detention in custody were quite irrelevant to this matter. The refusal to revoke the deportation order and grant either the application for residency or a permit to stay did not allow for the applicant to deal with the bases for these decisions and unreasonably allowed the material submitted, especially from Linda and Winston, to be overshadowed by attitudes which, on the material presented to me, were insubstantial and irrelevant.

64. The application is granted, the relevant decisions are quashed, the matter is to be referred to the respondent for consideration according to law. The respondent will pay the applicant's costs.