Re Cecy Aban v Minister of Immigration, Local Government and Ethnic Affairs [1991] FCA 119 (9 April 1991)

FEDERAL COURT OF AUSTRALIA

Re: CECY ABAN
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G126 of 1990
FED No. 143
Migration

COURT

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

CATCHWORDS

Migration - whether Minister's delegation still valid after a change of Minister - whether delegate's decision made under repealed statutory provisions - validity of Migration Regulations made prior to commencement of Migration Amendment Act 1989 - whether regulations authorised by amended Migration Act - whether regulations inconsistent with or repugnant to Act - whether s. 47 confers rights - whether regulations inconsistent with Act and in particular s. 47 - whether s. 47 imposes limitation or qualification on the operation of ss. 181 and 33 - whether delegate misconstrued "compassionate", "humanitarian" and "spouses" - whether regulations invalid for uncertainty or unreasonableness - whether failure to consider relevant considerations - whether natural justice denied to applicant

Migration Act 1958 (as amended by Migration Amendment Act 1989 ss. 24, 33, 34, 47, 181)

Migration Regulations 2, 34A, 126, 128, 129, 135, 140, 141

Acts Interpretation Act 1901 ss. 4, 15AB

Cooper Brookes (Wollongong) Pty. Ltd. v Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297

HEARING

MELBOURNE
9:4:1991

Solicitor for Applicant : Erskine H. Rodan

Counsel for Applicant : Mr P. Rose with

Mr O.P. Holdenson

Solicitor for Respondent : Australian Government
Solicitor

Counsel for Respondent : Mr K. Bell

DECISION

This application under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"), sought to review certain decisions made by Mr Cardillo ("the delegate") which will be set out later in these reasons. The hearing of the application occupied six sitting days during which time many submissions were advanced and there were many quotations from cases decided by the High Court, by the Full Court of this court and by single judges of it. As to those submissions and quotations I have followed the advice given by Sir Gregory Gowans, in a paper published after his retirement from the Supreme Court of Victoria in 1976, in the following passages:-

"... it has become the convention for him (the trial judge)
not only to set out his understanding as to what is the law
that is applicable but also his understanding as to why it
is the law and what his sources are. It has been said that
the statement of the reasons for the decision is required
for the information of the parties and in order to afford
assistance to the court of appeal in the event of an appeal.
But the obligation has not been put higher than a duty to
state the reasons in such a way as to be adequate for those
purposes by giving some indication of the basis of the decision.
This is all that the party needs to protect her or his
rights and interest in anything more is unlikely. It is
true that the ascertainment of the relevant principles of
law may demand a wide ranging search for a governing
precedent. But the discharge of duty by the judge does not
demand setting out, by way of historical narrative, an
account of the route followed in the process of research or
an account of the mental digestive processes gone through in
the course of the exercise, so that the parties may share
these things with the judge.
....
It is not the function of the judge to write judgments for
the benefit of a possible court of appeal. It is not his
function to write judgments which will serve as textbooks
for the instruction of law students. It is not his
function to pursue the search for principle to the point of
providing solutions for situations which are not before him.
The elaboration of the research undertaken and of the
process of reasoning adopted can sometimes only be explained
on the basis of a narcissistic interest on the part of the
author of the judgment in the extent of his own industry and
erudition. It is not part of the function entrusted to him
to display proof of that.
....
The over-elaboration of the grounds upon which a decision is
rested and the ultra-refinement of the thought processes involved
are calculated to present an aspect of artificiality which makes
it remote from the understanding and judgment of ordinary people."

Perhaps it should be added that Sir Gregory was well aware of the difficulty of changing a practice; in his final paragraph he said:

"It is not conceived that a change in practice in relation
to these matters could come about otherwise than by the
persuasion of sentiment. There is no one who could dictate
it, not even law reformers. It could be achieved only as a
result of an appreciation by judges, particularly judges of
first instance, that there is more of importance in what
they do than in what they say and that the more that is
said, the greater the potential social mischief. They might
be aided too in the achievement of this change of heart by a
realisation that the more that is said, the less that is read."

2. The first contention of the applicant, as set out in the further amended list of contentions of her counsel, filed 7 February 1991 ("the applicant's contentions"), was as follows:-

"The purported decisions are nullities and must be set aside
because the delegate who purported to make decisions in
relation to the Applicant's migration status did not hold a
valid instrument of delegation."

The applicant's counsel referred the court to authorities against his contention, including Kelly v Watson and Ors. (1985) 64 ALR 113 and Re Putnoki and Public Service Grievance Board (1975) 56 DLR(3rd) 197. He submitted however, that the delegation in the present case was invalid "because there is a new Minister, because there is a new Parliament and because the practice ... or the convention is that new delegations be signed". In answer to a question he said that he did not submit that "a delegation validly made by a ... validly appointed Minister comes to an end upon the proroguing of Parliament". However, he submitted "that the fact of appointing a new Minister automatically in law brings to an end an existing valid delegation". In my opinion there is no substance in that contention and it is rejected.

3. The second of the applicant's contentions was in the following terms:

"The purported decisions are nullities and must be set aside
because the statutory provisions under which the purported
decisions were made had been repealed at the time of the
making of each of the decisions. ..."

4. That contention was based upon certain statements contained in the document furnished by the delegate as setting out his statement of reasons under s. 13 of the Judicial Review Act. That document commenced as follows:

"I, Anthony Joseph Cardillo, Manager of the Resident Status
Task Force, Regional Office, Melbourne, of the Department of
Immigration, Local Government and Ethnic Affairs (The
Department) an authorised officer within the meaning of
Section 6 and 6A of the Migration Act 1958 (the Act), having
received on 2 May 1990, a direction by order of the Federal
Court to provide a Statement of Reasons for my decision of
10 April 1990 made pursuant to Section 6 and 6A of the Act
not to grant permanent resident status to the applicant,
Cecy Elda Aban, make the following statement setting out my
findings on material questions of fact, referring to the
evidence or other material on which those findings were
based and giving the reasons for my decision."

5. Mr Cardillo swore an affidavit on 19 October 1990, stating that there were errors in the statement. Paragraphs 5, 6 and 8 of that affidavit were as follows:-

"5. The preamble to the Statement of Reasons contains a
number of errors as follows:-
(a) the decision was not pursuant to section 6 and
section 6A of the Migration Act 1958 as it
existed prior to 19 December 1989;
(b) the decision was not a decision not to grant
permanent resident status to the applicant;
(c) I was not making the decision as an authorized
officer within the meaning of section 6 and
section 6A of the Migration Act 1958 as it
existed prior to 19 December 1989;
(d) the decision was not made on 10 April 1990.
6. The correct position is as follows:
(a) the decision was made pursuant to sub-section
34(4) of the Migration Act as it exists after 18
December 1989 ("the Act");
(b) the decision was to refuse to grant the
applicant an extended eligibility temporary
entry permit ("EETEP");
(c) I made the decision as a delegate of the
respondent duly appointed pursuant to sub-section
176(1) of the Act. Now produced and
shown to me marked "AJC1" is a copy of the
Instrument of Delegation 30 March 1990 and an
extract from the Schedule to the Instrument on
which my name is listed;
(d) the decision was made on 19 April 1990.
....
8. The circumstances surrounding the errors in the
preamble to the Statement of Reasons are as follows:
(a) A draft of the Statement of Reasons was prepared
for my examination by another officer of the
Department;
(b) Included in the draft was a standard word
processor preamble used by the Department for
Statement of Reasons pursuant to the
Administrative Decisions (Judicial Review) Act
1977 in respect of decisions concerning entry
permits made under sections 6 and 6A of the
Migration Act as it existed prior to 19 December
1989 ("the standard preamble").
(c) I examined and checked the draft. I failed to
detect the errors in the preamble as a result of
the use of the standard preamble.
(d) The preamble in the draft also contained a
typographical error as to the date of the
decision I also failed to detect this
typographical error on my examination of the
draft.
(e) The Statement of Reasons was the first Statement
of Reasons I had given under the Act."

6. In explaining how the errors occurred (for which he expressed to the court his regret - as did counsel for the respondent Minister), Mr Cardillo in a second affidavit, sworn 24 January 1991, deposed that the statement of reasons was drafted by another officer of the respondent's Department. Paragraph 5 of that affidavit was in the following terms:

"... When I checked the draft I had the file before me to
refresh my mind about my decision. At the time I provided
the statement of reasons I also had a reasonable memory of
the details of the case and my decision. However, as I was
concentrating on the body of the draft statement of reasons
to ensure that the document accurately set out my reasons
for the decision at the time I made the decision and because
of the circumstances set out in my first affidavit, I failed
to detect the errors in the opening paragraph. This is a
matter that I regret."

Paragraph 7 of the second affidavit included the following statement:

"I adopt in this my present affidavit paragraphs 1, 2, 3, 4,
5, 6, 7 and 8 of the statement of reasons as if the same
were set out in this my present affidavit. I do not rely
upon the statement of reasons of itself as evidence of the
reasons for my decision but rather adopt the abovementioned
paragraphs of the statement of reasons in this my present
affidavit and I rely upon that adoption as the evidence of
my reasons."

(Paragraphs 1-8 inclusive of the statement of reasons, which are "adopted" by Mr Cardillo in the above paragraph, are set out later in these reasons, after quoting the applicant's fourth contention.)

7. Mr Cardillo was cross-examined at some length on the errors in the statement of reasons, referred to in his affidavits, and on other matters including questions as to the matters that he considered in making his decisions. The transcript of it occupied approximately 50 pages. In my opinion Mr Cardillo was a truthful witness and I accept his evidence including specifically his evidence as to (1) the decisions which he made, (2) the date when they were made (19 April 1990), (3) the statute under which they were made, (4) the matters which he took into account in making his decisions, and (5) how the errors occurred. Reference will be made later in these reasons to his evidence (which I also accept) as to the claim that there was a genuine de facto relationship. As the decisions were made under the Migration Act as it existed after 18 December 1989 (the Act) and were not made under "statutory provisions (which) had been repealed at the time of the making of each of the decisions", the applicant's second contention fails.

8. It should be added that Mr Cardillo's statement of reasons treated the decisions as one decision to refuse to grant the applicant an extended eligibility entry permit and he was cross-examined as to why he referred to it as a "decision" (transcript pp 163-164). However, I have accepted the analysis of the respondent's counsel that there were three decisions, namely, decisions to refuse to grant to the applicant (i) an extended eligibility (spouse) entry permit (ii) an extended eligibility (economic) entry permit and (iii) an extended eligibility (an other) entry permit.

9. The applicant's counsel also submitted that she had made applications for entry permits other than the three EETEP applications to which I have referred; he submitted that the applicant's solicitor, on her behalf, "was seeking everything he could get to facilitate consideration under sections 47(1)(g) and (1)(f) ...". However, I accept the respondent's contention that the applicant made no applications other than the EETEP applications and that accordingly no decisions were made by the delegate on any such applications.

10. The applicant's third contention was expressed as follows:-

"In the alternative to Paragraph 2 herein, the purported
decisions are nullities and must be set aside because the
purported decisions were made under Regulations which were
invalid because:
(i) (a) Section 67 of the Migration Act 1958, (as it
existed as at the 18th day of December 1989)
did not enable the making of Regulations which
were inconsistent with the provisions of that
Act or of the nature of those Regulations
concerning EETEPS which were purported to be made;
(b) alternatively to sub-paragraph (a) hereof, the
statutory provisions which conferred the power
to make the Regulations were not in operation
at the time when the Regulations were
purportedly made;
(ii) in the alternative to (i), the Regulations were
neither consistent nor in accordance with Sections
33, 47 or 181 of the Migration Act, 1958 (as
amended) because the Regulations unduly restrict
and/or render nugatory the statutory provisions
relating to compassionate and humanitarian grounds - ...
(iii) Further, the Regulations are so uncertain as to be
incapable of proper interpretation and/or
application in accordance with the scheme of the
Migration Act, 1958 (as amended) - ..."

11. As to sub-paragraph (i)(b) of that contention I accept the contention of the respondent that, by reason of sub-sections 4(1) and 4(2) of the Acts Interpretation Act 1901, the regulations came into operation on 19 December 1989 when the relevant provisions of the Migration Amendment Act 1989 ("the Amendment Act") came into operation. I reject the applicant's contention that the regulations were invalid by virtue of having been made before the commencement of the principal provisions of the Amendment Act.

12. As to the applicant's contention 3(ii), the applicant's counsel made it clear that he challenged the "validity of the Regulations in Division 6 of Part 3 of the Regulations and specifically Regulations 135, 140 and 141." It was contended that the regulations were invalid because they "were neither consistent nor in accordance with Sections 33, 47 or 181 of the Migration Act, 1958 (as amended) because the Regulations unduly restrict and/or render nugatory the statutory provisions relating to compassionate and humanitarian grounds." However, I accept the respondent's contention that sub-sections 34(1) and (2) of the Act require that an application for an entry permit be made in accordance with the regulations; further, that sections 33 and 181 authorised the making of regulations providing for:

"(a) the classes of entry permit for which a person
might be eligible to apply in Australia, including
temporary entry permits;
(b) the prescribed criteria which a person must satisfy
before he or she is eligible to be granted such a permit;
(c) the classes of permit which must be granted with
the condition that the permit will not be taken to
be a valid temporary entry permit for the purposes
of section 47 of the Act; and
(d) the classes of permits which will, by virtue of
being relevantly unconditional, be valid temporary
entry permits for the purposes of section 47 of the Act."

13. I also accept the respondent's contention that sections 181 and 33 authorised the making of regulations which:

"(a) (provide that) a person seeking to apply for a
permanent entry permit must, in order to satisfy
the requirement in sub-section 47(1) of the Act
that he or she hold a valid temporary entry permit,
hold an extended eligibility temporary permit of a
class set out in regulations 126, 127, 128, 129 or
130; and
(b) prescribe that the criteria in relation to such
permits shall be the criteria set out in
regulations 126, 127, 128, 129 and 130."

I accept also his contention, based upon sections 33, 34, 47 and 181 of the Act, that the legislature intended to lay down only the broad framework in the Act and to authorise the making of regulations which would supply the details of that framework; further that regulations 126, 128 and 129 were authorised by sections 181 and 33 of the Act and are not inconsistent with or repugnant to any of the provisions of the Act.

14. The applicant tendered to the court the Explanatory Memorandum and the Second Reading Speech relating to the Migration Amendment Bill 1989. The respondent's counsel stated that he did not concede that that material could be used for any of the purposes set out in section 15AB(1)(a) and (b) of the Acts Interpretation Act 1901 but that he did not object to the applicant's counsel reading from the Memorandum. Passages from the documents were read to the court by counsel for both parties but in my opinion the material cannot be used for any of the purposes set out in the section.

15. I also accept the respondent's contentions:- (1) that section 47 of the Act is not a source of rights in relation to temporary entry permits; (2) that it evinces no legislative intention with which regulations 126, 128 and 129 are inconsistent or to which they are repugnant; (3) that section 47 makes the holding of a valid temporary entry permit one of the conditions that must be satisfied before a person may be granted a permanent entry permit; (4) that the question whether a person can establish the existence of strong compassionate or strong humanitarian grounds arises only after a decision to grant a valid temporary entry permit has been made; (5) that section 47 imposes no limitation or qualification on the operation of sections 181 and 33 of the Act with respect to the making of regulations and does not impose any limitation or qualification on the operation of the Act or the regulations in relation to the granting of temporary entry permits; (6) that a person can be the holder of such a permit only if the person satisfies section 34 of the Migration Act and the prescribed criteria in the relevant regulations. It should be added that I have not accepted the respondent's submission that the court should read into s. 34(1)(a), immediately after the words "particular class", appearing in the second line, the words "in the approved form and" i.e. the same words as those which appear in s. 24(1)(a), dealing with visas. In my opinion the decision of the High Court in Cooper Brookes (Wollongong) Pty. Ltd. v Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 does not support the submission.

16. As to the applicant's contention, in 3(iii) above, that the regulations were invalid because of uncertainty, I reject the submission that they were "incapable of proper interpretation and/or application in accordance with the scheme of the Migration Act, 1958 (as amended)".

17. The applicant's counsel also contended that regulations, including regulations 126, 128 and 129, were invalid as being unreasonable. I have assumed, without deciding, that a challenge on that ground can be made to the validity of regulations made by the Governor-General. The respondent's counsel referred the court to a number of passages in authorities. They included Brunswick Corporation v Stewart [1941] HCA 7; (1941) 65 CLR 88 at 97, where Starke J. referred to "unreasonable, that is, in this connection so oppressive or capricious that no reasonable mind can justify it"; that passage was cited by a Full Court of this Court in Eremin v The Minister (unreported, delivered 31 August 1990). The respondent's counsel also submitted that it was relevant that the regulations had not been disallowed by either House of the Parliament, citing the following passage from the reasons for judgment in Octet Nominees Pty. Ltd. v Grimes and Anor. (1986) 68 ALR 571 at 582-583 where Jenkinson J. said:-

"In that legislative context it could in my opinion be only
the grossest and most undeniable unreasonableness which
might justify a court in concluding that a purported
exercise of the power conferred by s. 40AA(7), and not
disallowed by either House of the Parliament, had failed."

18. In my opinion the applicant's contention that the regulations under challenge were invalid as being unreasonable must be rejected.

19. As stated earlier in these reasons, Mr Cardillo in his affidavit sworn 24 January 1991, adopted paragraphs 1-8 of his statement of reasons. It is desirable that, before referring to the applicant's fourth contention, they be set out. They were in the following terms:-

"1. The Applicant is a citizen of the Philippines.
2. The Applicant arrived in Australia on 15 January
1982 on a visitor visa and was granted a Temporary Entry
Permit (TEP) for a stay of two months until 14 March 1982.
3. On 5 April 1990 the applicant was arrested by
officers of the Department and placed in custody under
Section 92 of the Migration Act 1958 (the Act), that is, as
a suspected Illegal Entrant as defined by Section 14(3) of
the Act.
4. On 10 April 1990 the applicant lodged an
application for the grant of an Extended Eligibility
Temporary Entry Permit (EETEP). In her application she
indicated that she wished to be considered for a "spouse"
class of EETEP, an "economic" class of EETEP and an "other"
class of EETEP.
5. With her application the applicant submitted, for
consideration, the following:
. a letter from her legal representative, Erskine
Rodan, dated 9 April 1990, outlining the
applicant's claims;
. an application for a further entry permit;
. a statutory declaration made by Elizabeth Kapitany
and dated 8 April 1990;
. a statutory declaration made by Jano Kapitany and
dated 9 April 1990;
. a handwritten statement by the applicant, unsigned
and undated.
6. In considering the application for the grant of an
EETEP I had regard to the following claims advanced by the
applicant:
(i) she has a defacto marriage relationship with
Victoriano Leoncio, an Australian citizen. They
lived together from August 1982 until October 1982,
from February 1983 until May 1983, from August 1983
until November 1983, from November 1987 until
February 1988 and from April 1989 until September
1989. Her defacto husband returned to his wife and
children between these periods because his wife
could not cope with the children on her own. They
continued to see one another and he would visit
every day and sometimes stay overnight. In
December 1986 she fell pregnant to him but had a
miscarriage. They give each other support and have
exchanged presents and rings as tokens of their
love for one another and as a symbol of marriage.
They continued seeing each other until March when
he went to the Philippines on holidays and took his
wife and children because his wife insisted on
going. He went back to his wife the last time
because she was suffering from a nervous breakdown
and he was afraid she would harm the children.
In support of this claim, Elizabeth Kapitany, a
friend of the applicant, stated amongst other
things that: she has known of the applicant's
relationship with Victoriano Leoncio since early
1983; he was introduced to her as the applicant's
boyfriend; she observed that their relationship
gathered strength through the years; in early 1984
the applicant told her that Mr Leoncio was married
and had two children; sometimes the applicant would
bring Mr Leoncio with her to visit; sometimes he
would stay with the applicant for a few weeks; the
applicant was hoping that they would have a more
stable relationship; Ms Kapitany was aware that
Mr Leoncio was having trouble with his wife who
threatened suicide if he did not return to her; she
believed the applicant and Mr Leoncio were having
a very good relationship, he helped her financially
and emotionally and she would always turn to him
when she had a problem; Mr Leoncio went shopping
with the applicant every week, would visit her
twice a week and would stay with her on weekends or
for entire weeks; he would go to the applicant's
place from work to eat dinner as his wife would not
prepare meals for him; they lived together from
April to September 1989 and from early December
1989 to January 1990 but his wife became sick and
he returned to her to be with his children; he and
the applicant have matching wedding rings and he
has given her presents.
(ii) she wishes to apply on the basis of nomination
under the Employer Nomination Scheme and on the
basis of having special skills. She has a Bachelor
of Arts in Mass communications from the Far Eastern
University in Manila, she has a certificate of
computer studies from Compu-Tech in Melbourne, she
has done a one day course in computing personnel at
M.E.R.A., in Melbourne and has done a one week
First Aid Course with the St. John's Ambulance in
Melbourne.
In support of this claim her legal representative
stated in his letter that The Brotherhood of St.
Lawrence where she works as a receptionist/clerk is
willing to employ her and has indicated that they
are willing to sponsor her and strongly back her
application.
(iii) her parents live in Laguna, a NPA controlled area,
and have been harassed by the NPA. The family
lawyer was shot dead a year ago by the NPA.
Because she has been away for eight years the NPA
would blackmail her and then kill her should she
return, and there are no safe places for her to
return to, she therefore fears for her life.
In support of this claim, Ms Kapitany stated in
her declaration that: she and the applicant were
born in Pagsanjan where poverty is widespread and
there is little employment, therefore many people
join the NPA in the hills, only a short distance
from town. Santa Cruz, the capital of Laguna
Province suffers from crime and terrorism inspired
by the NPA; she believes that if the applicant
returned there she would be a target for blackmail
and extortion by the NPA because of the time she
has spent away.
7. After considering the claims referred to in
paragraph 6(i) to (iii) above I reached conclusions in
respect of each of the matters raised as follows:
(i) The prescribed criteria in relation to an extended
eligibility (spouse) entry permit as described in
Regulation 126 of the Migration Regulations are that:
(a) the applicant is the spouse of an Australian
citizen ... and was the spouse of that citizen
... at the time when the application was
lodged; and
(b) the applicant's relationship with that spouse
is a genuine and continuing one;
Under Regulation 2 of the Migration Regulations
"spouse" is defined as:
(a) a person who has entered into a marriage
recognised as valid for the purposes of the
Act, where:
(i) the marriage has not been ended by
divorce or the death of one of the
parties; and
(ii) the parties are not living separately
and apart on a permanent basis; or
(b) a de facto spouse;
Regulation 2 of the Migration Regulations defines a
"defacto spouse" as "a person who is living with
another person of the opposite sex as the spouse of
the other person on a genuine domestic basis
although not legally married to the other person".
There was no evidence that Ms Aban was married to
an Australian citizen or permanent resident.
However I took account of the evidence of Ms
Aban's statements and those on her behalf by Mr
and Mrs Kapitany that Ms Aban has had a
relationship with Mr Victoriano Leoncio, an
Australian citizen, since 1982. I considered that
the relationship described in those statements did
not meet the prescribed criteria outlined in
Regulation 126(1). Ms Aban stated in her
application that she and Mr Leongo (sic) lived
together for a few months at a time in 1982 and
1983 and that they again lived together from
November 1987 until February 1988 and from April
1989 until September 1989. Ms Aban gave as the
reason for their long periods of separation the
instability of Mr Leongo's (sic) wife's health and
the need for him to look after his two children.
This reason notwithstanding, I was of the view that
Ms Aban's and Mr Leongo's (sic) relationship did
not fall within the description of "a person who is
living with another person ... as the spouse of the
other person on a genuine domestic basis". They
were not living together on a domestic basis as
they did not maintain elements which in my view are
commonly attributed to domestic relationships; such
as the maintenance of shared accommodation on more
than a casual basis, mutual support in domestic
arrangements, or a continuing commitment to each
other. I therefore decided that Ms Aban's
relationship with Mr Leongo (sic) was not that of
a "defacto spouse" and therefore she did not
satisfy the prescribed criteria for the grant of an
Extended Eligibility (spouse) Entry Permit.
(ii) I held the view that Ms Aban was not eligible for
the grant of an economic class of EETEP in that she
did not meet the prescribed criteria under
Regulation 128, in particular, she had not held
temporary entry permits for an aggregate of twelve
months or had been the holder of a student entry
permit or a working holiday entry permit.
Furthermore she did not satisfy any of the
prescribed criteria in relation to labour
agreements, employer nomination, business migration
or distinguished talent visas.
In Section B9 of Form 853B Ms Aban appeared to be
applying under the Employer Nomination Scheme and
on the basis of having special skills, however no
documentation had been submitted to support this claim.
In my view her current employment as a receptionist
and clerk for the Brotherhood of St. Lawrence would
not qualify her under the Employer Nomination
Scheme as it did not meet the skill level
requirements. I also considered that her Bachelor
of Arts degree majoring in Mass Communications and
her computing certificate would not qualify Ms
Aban for the grant of an EETEP on the basis of
special skills. I therefore found that Ms Aban is
not eligible for the grant of an Extended
Eligibility (economic) entry permit.
(iii) Regulation 129 prescribes the criteria in relation
to the grant of an extended eligibility (other)
entry permit. Regulation 129(a) requires that
after the arrival of the applicant in Australia a
substantial political upheaval involving individual
danger to the applicant; a major natural disaster
involving the destruction of the applicant's home
and livelihood; or significant changes, involving
significant repression has taken place in the
applicant's usual country of residence and the
event has been specified by the Minister by notice
in the "Gazette".
Ms Aban's usual country of residence is the
Philippines and as the Minister had not published
any notices relating to the Philippines in the
"Gazette" since Ms Aban's arrival in Australia, I
found that Ms Aban's claim did not meet the
prescribed criteria of Regulation 129 and therefore
Ms Aban was not eligible for the grant of an
extended eligibility (other) entry permit.
8. In making the above decision I had before me the
following material:
(i) Department of Immigration, Local Government and
Ethnic Affairs, Melbourne Office file V90/2351
which at the time consisted of 75 folios.
In particular, I had regard to:
. report of interview with the applicant
conducted by J. Nougher, an officer of the
Department, on 5 April 1990;
. application for the grant of an EETEP, with
attachments;
. location report dated 5 April 1990;
. report by R. Wilmot, an officer of the
Department dated 19 April 1990;
(ii) Procedures Advice Manual, Extended Eligibility
Temporary Entry Permits, Numbers 2 (Processing
guidelines) and 3 (Spouse/De Facto)."
The applicant's fourth contention was in the following terms:
"Further, and in the alternative to the preceding
paragraphs, the purported decisions are invalid because the
decision-maker's exercise of discretion has been vitiated
because the decision-maker has:
(i) failed to take into account the true nature of the
Applicant's coming to Australia, remaining in
Australia, and relationship with Vic Leoncio - ...;
(ii) failed to take into account the personal danger to
which the Applicant would be exposed should the
Applicant be deported to the Philippines;
(iii) misconstrued the statutory provisions relating to
"compassionate" and "humanitarian" grounds - ...;
(iv) misconstrued the statutory provisions relating to
"spouses"; and
(v) denied the Applicant natural justice by applying
notions of "compassionate" and "humanitarian" in
accordance with the purported (new) Regulations and
therefore, effectively, denying the Applicant a
proper consideration upon compassionate and
humanitarian grounds within the meaning of the
Act - ..."

20. Under contention 4(i) the applicant's counsel submitted that on the material before him the delegate "should have determined that she met the definition of ... de facto spouse". Mr Cardillo gave evidence that he "formed the view that it was not a de facto relationship in the true sense". In my opinion the delegate, on the material before him, was plainly entitled to conclude that there was no genuine de facto relationship. I have accepted Mr Cardillo's evidence that he "acted on the basis of the information that was provided (by the applicant), and his (Mr Leoncio's) presence here (in Australia) would have only perhaps confirmed what she had told us ...". The applicant's counsel submitted that the delegate "should have found out what he (Mr Leoncio) had to say in case he ... may have fleshed it out or established more firmly a de facto relationship". In my opinion there was no duty on the delegate to take any steps to ascertain whether Mr Leoncio may have done so.

21. It is convenient to state at this point that, as the evidence given by Mr Cardillo has been accepted, it is not necessary to decide whether the evidence given by Mr Rodan, which was objected to by the respondent, was admissible. However, after considering the question I came to the conclusion that the objection should be upheld and the evidence held to be not admissible; in fairness to the applicant's counsel it should be added that he called Mr Rodan as a witness in relation to certain questions raised by the court as to counsel's submissions.

22. As to the applicant's contention 4(ii) I accept the respondent's contention that this factor was expressly referred to in the statement of reasons (see paragraph 6(iii) of that statement - set out earlier) and was taken into account by the delegate; I accept also his contention that it could only have been relevant to the application made by the applicant for an "other" EETEP under regulation 129, which application had been rejected by the delegate because the Minister had not published the relevant notice in the Gazette.

23. In my opinion there is no substance in the applicant's contention (in 4(iii)) that the delegate misconstrued the statutory provisions relating to "compassionate" and "humanitarian" grounds.

24. As to the applicant's contention 4(iv) I accept the contention of the respondent that the delegate did consider whether the applicant since her arrival in Australia had become the spouse of an Australian citizen or an Australian permanent resident and whether the relationship with her spouse was a genuine and ongoing one, that he applied the definitions of "spouse" and "de facto spouse" in regulation 2 and applied regulation 34A, which provided that the applicant "must satisfy the prescribed criteria ... at the time of application and as applicable at that time"; further, that, in considering and applying those regulations, the delegate did not misconstrue any of them.

25. Under the applicant's contention 4(v) it was submitted that the respondent denied natural justice to the applicant by denying the applicant a proper consideration upon compassionate and humanitarian grounds within the meaning of sub-sections 47(1)(f) and (g) of the Act. I accept the respondent's contentions that under sub-section 47(1) of the Act a consideration of the question whether strong compassionate or strong humanitarian grounds exist is necessary only where there is a valid application for a permanent entry permit and where the applicant is the holder of a valid temporary entry permit; further, that the only valid applications made by the applicant were the EETEP applications, which were considered by the delegate, and that the Act and the regulations precluded the delegate from considering the existence of strong compassionate and strong humanitarian grounds when he was considering those applications because those grounds were not included in the criteria prescribed in the regulations in relation to the relevant extended eligibility entry permits.

26. The amended application also alleged breaches of the rules of natural justice in failing to "take into account the real nature of the (Applicant's) relationship" (paragraph 2(a)) and failing to "consider whether the Applicant was in a genuine de facto relationship" (paragraph 2(b)). There is no substance in those allegations which have already been dealt with earlier in these reasons in considering the applicant's contention 4(i) that the delegate had failed to take into account those matters.

27. Under the heading of breach of the rules of natural justice the applicant also alleged a failure to "consider the question whether the Applicant was at risk should she return to the Philippines". That matter also has been dealt with earlier in considering the applicant's contention 4(ii).

28. For the above reasons the applicant has not succeeded on any of her contentions and her application must be dismissed.