Re Pak Siu Ling; Wong Hei; Chu Tat Lam and Wong Wai Ka v the Minister of Immigration, Local Government and Ethnic Affairs [1991] FCA 29 (15 February 1991)

FEDERAL COURT OF AUSTRALIA

Re: PAK SIU LING; WONG HEI; CHU TAT LAM and WONG WAI KA
And: THE MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. WA G145 of 1990
FED No. 27
Migration

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Migration - illegal entrant - application for permanent resident status - strong compassionate grounds - wife of overseas student - one step-child, one child of marriage - husband completing degree in July 1991 - application for grant of permanent resident status for wife refused - application for grant of temporary entry permit not entertained - alleged refusal of temporary entry permit - no reviewable decision - no tenable grounds for review of application for grant of resident status - failure to comply with administrative directions and departmental pamphlet - not a failure to follow procedures prescribed by law - misunderstanding by applicant of effect of refusal of application for grant of permanent status - inability thereafter to apply for temporary entry permit as student dependant - quaere rigidity of Act and Regulations.

Migration Act 1958 ss.6A, 7, 37(2), 47

Migration Regulations

Migration Legislation Amendment Act 1989 (No. 59 of 1989) s.6(4)

Administrative Decisions (Judicial Review) Act 1977 s.13

Brelin v. Minister for Immigration and Ethnic Affairs (unrep. 14/5/87; Wilcox J.)

Khan v. Minister for Immigration and Ethnic Affairs (unrep. 11/12/87; Gummow J.)

Hindi v. Minister for Immigration and Ethnic Affairs (1988) 91 ALR 586

Minister for Aboriginal Affairs v. Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

HEARING

PERTH
15:2:1991

Counsel for the Applicant: Mr B.F. Stokes

Solicitors for the Applicant: Marks Healy Sands

Counsel for the Respondent: Miss I. Petersen

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The application is dismissed.

The applicants to pay the respondent's costs of the application.

NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Pak Siu Ling, a citizen of Hong Kong, came to this country on a visitor's visa in December 1984. She was initially authorised to stay here for 3 months. Her permit was later extended to 16 July 1985, when it expired. It has not been renewed. In May 1985 she gave birth to a child, Chu Tat Lam, in Sydney. Since the expiry of her permit she has remained in Australia unlawfully. In September 1989 she married Wong Hei, also from Hong Kong. He is studying at university for a Bachelor of Commerce degree and will complete his course in July 1991. He has a temporary entry permit which enables him to remain in Australia for that purpose. Ms Pak and Mr Wong had a child, Wong Wai Ka, in August 1990.

2. Ms Pak has applied for the grant of resident status and this has been refused. The application which is now brought by her and her husband and the two children seeks review of that refusal.
Factual Background

3. Pak Siu Ling is a citizen of the British Dependent Territory of Hong Kong, where she was born on 23 October 1959. In 1984 she was living in Hong Kong and working as a gem buyer for Asia-America Investment Inc. In that year she became pregnant. According to a statement later given to immigration authorities in this country, the father of the child, a 55 year old businessman, suggested that they go to Australia, where her sister Joanna is a resident, and marry. Ms Pak viewed this proposal as a way of avoiding disclosure of her extra-marital pregnancy to conservative relatives and peers in Hong Kong. She travelled to Australia on a visitor's visa in December 1984, arriving in Sydney on 17 December. On arrival she was granted a temporary entry permit valid for 3 months. It was a condition of the permit that she not undertake any employment during her stay. According to her statement, the father of her child did not arrive to marry her as promised. Nevertheless, her mother asked her to have the baby in Australia. This, she said, was because of her father's position in the Hong Kong community and the stigma which would attach to an illegitimate birth. On 13 May 1985 she gave birth to a son, Chu Tat Lam, in the Royal Northshore Hospital in Sydney. He is the third applicant in these proceedings. On 20 June 1985, she applied for an extension of her temporary entry permit and was authorised to stay for a further period of one month.

4. Ms Pak claimed in a statement to the immigration authorities that it was originally her intention to have the child and then leave Australia. However, he contracted a skin disorder and, according to her, she was given medical advice that a change of environment could worsen that condition. This contention was not substantiated in material placed before the Department. She decided to remain with him in Australia. Her permit expired on 16 July 1985 and no further extension was sought or granted.

5. After arriving in Australia and having the child, Ms Pak lived at Lane Cove in New South Wales until December 1985. She then moved to Western Australia and lived at 40 Collins Road, Willetton from March 1986 until March 1987. In March 1987 she moved to a house at 7 Balista Street, Riverton which, according to her December 1989 statement, is owned by her sister Joanna. Her statements to the Department of Immigration and Ethnic Affairs indicate that she neither undertook any employment nor received any government assistance or benefit during her time in this country. But she was not without resources. According to a statement made to immigration authorities on 21 December 1989, she had $A40,000 in cash and $A35,000 in gold and diamonds in 1985. She used these assets, together with funds supplied by her mother and sister, to support herself in Australia.

6. In September 1987 Ms Pak met Wong Hei. Mr Wong was born in China on 26 February 1964, but is a resident of Hong Kong. He came to Australia as a student on 13 July 1987. It appears from a letter he wrote to the Department of Immigration and Ethnic Affairs on 27 December 1989 that in 1987 and 1988 he studied for and obtained a Diploma of Marketing through the Australian Business College and the Marketing Council of Australia, and a further Diploma from the Australian Insurance Institute. In June 1988 he sought an extension of his temporary entry permit for study purposes on the basis that he was to be enrolled as a full fee paying student in a 3 year course for the degree of Bachelor of Business at the Western Australian College of Advanced Education. The course was to commence in February 1989 with an expected completion date of June 1991. At some point Wong's plans changed, and he enrolled in a course leading to the degree of Bachelor of Commerce at Murdoch University. He commenced that course in 1989 and expects to complete it in June 1991. He has the necessary temporary entry permit to enable him to continue with it.

7. According to Wong, his relationship with Ms Pak became serious in December 1987. They began living together in May 1989 and were married on 18 September 1989 at Perth. They reside in Ms Pak's sister's house in Riverton and share the expenses of the household. Ms Pak's first child, Tat Lam Chu, and Wong Wai Ka, a child of the marriage to Mr Wong, live with them. Her only other relative in this country is her sister Joanna, who is married and lives in Sydney. Her parents and two other siblings live in Hong Kong and another, with American citizenship, lives in Canada.

8. On 15 December 1989, Ms Pak, who had by that time been living in Australia as a prohibited non-citizen (now an illegal entrant) for nearly four and a half years, applied to the Department of Immigration and Ethnic Affairs for Grant of Resident Status in this country. The application, made pursuant to s.6A(1)(e) of the Migration Act 1958 as it then stood, was said to be based on strong compassionate grounds. In answer to a question on the application form whether she or any Australian citizen or permanent resident of Australia would suffer hardship if she were refused resident status, she prepared a six page handwritten statement. In it Ms Pak contended that illegitimate children are unacceptable in Chinese society. Her son would be regarded as illegitimate and would suffer serious discrimination if she were forced to return to Hong Kong. He is an Australian citizen and would need to apply for a permit to live in Hong Kong with the complications and attendant inconvenience of that process. If he were educated in Hong Kong and later wanted to return to live in Australia, he would have to readjust to the Australian environment and learn the English language. If he could not stay in Hong Kong he would be separated from her and she from him. And if she were forced to leave Australia she would be separated from her husband, who would have to continue and complete his studies. This would have a serious impact on their family and emotional ties. In Hong Kong she would be the subject of criticism from relatives and be made to feel ashamed.

9. Asked "What are the circumstances you say are 'strong compassionate or humanitarian grounds' for the grant of resident status while you are now in Australia?" she wrote:

"The main reasons are as follows:
First of all, my family is currently in Australia. My
husband is studying Bachelor of Commerce in
University. My son is going to school next year (i.e.
1990). As my son is still young and mother's love is
important to him, I have to stay with him to look
after him. Secondly, the uncertainty of Hong Kong
future will also give us burdensome. My husband has
been experienced hardship during the period of
Cultural Revolution in China. We all worry there
would be no freedom if Hong Kong is handed over to
China. Therefore if the Australian government give us
an opportunity to stay here, we shall do our best to
contribute to the society." (sic)

She also referred, in answer to further questions, to her separation from husband and son if she were required to leave Australia.

10. Shortly after making that application, Ms Pak was interviewed on 21 December 1989 as a "suspected prohibited non-citizen". The record of interview was on the papers before the Court, as was a contemporaneous interview with her husband. He elaborated in a letter of 27 December 1989 on their claims of hardship if she were required to leave Australia. He would have to remain to complete his degree course even if she does leave because he and his family have invested much in it in terms of money, time and effort. The completion of the course is very important to his prospects. If his wife were to leave he would have to look after her son as well as himself. His academic results would suffer and he would have to spend more money than at present as it would be necessary to employ part-time help to look after his stepson while he was at university. The child's health would be affected, as the skin disorder from which he suffers involves a sensitivity to particular kinds of food. His wife knows how to take care of the condition, and if she were not able to remain, it might become more serious. Mr Wong also referred to the breaking up of the family and the effect of separation on their emotional ties.

11. Early in May 1990, Ms Moses of the Department of Immigration and Ethnic Affairs telephoned Ms Pak and arranged a meeting to discuss her application for grant of resident status (GORS). The meeting was held on 7 May 1990. Ms Pak was pregnant at the time. Ms Moses told her that the GORS application would not be approved. She said that she had telephoned the Canberra office of the Department to get advice on the case. That advice was that she could withdraw her application for GORS and apply instead for a temporary entry permit as a student spouse. If granted, this would enable her to remain in Australia until Mr Wong completed his course of study. According to Ms Moses' file note, Mr Wong and Ms Pak appeared very distressed when she put this proposal to them. She explained that they could insist on a decision on the GORS application. However, it would be rejected and as there was no appeal provision, Ms Pak would be expected to depart within 28 days. She suggested they talk the matter over.

12. The Court was informed without objection from the bar table, by counsel for the respondent, that the advice to Ms Moses from the Canberra office of the Department was based upon the provisions of the Migration Regulations which would bar an application for a temporary entry permit being made if the GORS application were rejected. That element of the advice was evidently not communicated to Ms Pak and Mr Wong. Subsequently, Mr Wong made inquiries with other departmental officers about the likelihood of a temporary entry permit application being successful. No definitive answer was forthcoming and he formed the belief that the application would more than likely be unsuccessful. On this basis, he and his wife decided not to withdraw her GORS application. They attended a further meeting with Ms Moses who would not give them any assurance that a temporary entry permit application would succeed. Mr Wong then asked her for a decision on the GORS application. That decision was made on 31 May 1990 and the application was refused. The decision was made by Basil Lardicos, a delegate of the Minister for Immigration, Local Government and Ethnic Affairs.

13. A written advice of the decision was sent to Ms Pak by certified mail on 1 June 1990. Included with that notification was a document described as a "Record of Decision" setting out the findings of fact and reasons for the decision to refuse the application. She was allowed a period of 28 days grace from 6 June 1990 to make travel arrangements. On 13 June 1990, Messrs. McDonald and Sutherland, solicitors then acting for her, sought a statement of reasons under s.13 of the Administrative Decisions (Judicial Review) Act for the decision to refuse the grant of resident status. On 21 June 1990 an application for the grant of a temporary entry permit was lodged on her behalf. In support of that application, Ms Pak's solicitors pointed out that she was pregnant to Wong and that her departure from Australia would involve either breaking up the family or disruption to Wong's studies for a Bachelor of Commerce degree which would be completed by July 1991. The application was considered by Nelly Siegmund, a delegate of the Minister, who refused to accept it. She did so on the basis that s.37(2) of the Migration Act disentitles a person who has had an application for an entry permit refused from making any further application while or she remains in Australia unless there has been a prescribed change in the person's circumstances. The prescribed changes in circumstances are set out in regulation 40 of the Migration Regulations. No evidence of any such change of circumstances had been submitted with the application.

14. On 3 August 1990, Ms Pak gave birth to a daughter, Wong Kai Ka. On 28 August she applied to the Immigration Review Panel seeking reconsideration of the decision to refuse her the grant of resident status. She tendered a statement from her sister in New South Wales who confirmed that she and her husband were prepared to sponsor Ms Pak so that she would not be a financial burden on the Australian community. On 16 October 1990, the Immigration Review Panel recommended that her application for reconsideration be rejected. The recommendation was accepted by the Minister's delegate, Christine Rushworth, on 22 October 1990. On 2 November 1990 Ms Pak was advised by letter of that decision.

15. On 12 December 1990 an application was lodged with this Court seeking an order for review of:

"... the decision of the Respondent's delegate made 2
November 1990 to refuse to grant the First and Fourth
Applicant's (sic):
(1) further temporary entry permits pursuant
to Sec 7(2) of the Migration Act 1958 (the
old Act);
(2) unconditional entry permits pursuant to
Secs 6A(1)(e) and 6(2) of the Migration
Act 1958 (old Act) as amended."

I should add that no point was taken that the reference to the Tribunal affected the reviewability of Ms Rushworth's decision, and I proceed on that basis in determining this application.
The Statutory Framework

16. Under the Migration Act 1958 as it stood prior to the coming into operation of amendments on 19 December 1989, the Minister was empowered to grant a further entry permit to the holder of a temporary entry permit which had expired. The relevant parts of s.7 of the Act conferring that power provided:

"7(2) At any time while a temporary entry permit is in
force or after the expiration or cancellation of a
temporary entry permit, a further entry permit may, at
the request of the holder, be granted to the holder
and, where such a further entry permit is granted
while a temporary entry permit is in force, the
further entry permit shall come into force only upon
the expiration or cancellation of the existing entry
permit.
(2A) A request under sub-section (2) shall be taken
not to have been made unless:
(a) the request is in writing in accordance
with the relevant form approved by the
Minister; and
(b) any fee payable in respect of the request
has been paid.
(3) Upon the expiration or cancellation of a
temporary entry permit, the person who was the holder
of the permit becomes a prohibited non-citizen unless
a further entry permit applicable to him comes into
force upon that expiration or cancellation."

That power was constrained by s.6A of the Act, which set out the conditions, at least one of which was necessary before it could be exercised. Paragraph 6A(1)(e) is relevant for present purposes:

"6A(1) An entry permit shall not be granted to a
non-citizen after his entry into Australia unless one or
more of the following conditions is fulfilled in
respect of him, that is to say -
.
.
.
(e) he is the holder of a temporary entry
permit which is in force and there are
strong compassionate or humanitarian
grounds for the grant of an entry permit
to him.
.
.
.
(3) Subject to sub-section (2), an entry permit
shall not be granted to a non-citizen after his entry
into Australia otherwise than by -
(a) the Minister; or
(b) an officer authorized by the Minister, by
instrument in writing, to be an authorized
officer for the purposes of the section.
.
.
.
(8) In this section, a reference to an entry
permit shall be read as a reference to an entry permit
other than a temporary entry permit."

17. The Act was amended by the Migration Legislation Amendment Act 1989 (No. 59 of 1989). Sub-section 6(4) of that Act preserved the position of applications made but not determined as at 19 December 1989, so they would be decided under the pre-amendment law:

"6(4) In spite of the repeal effected by sub-section
(1), the provisions of the Principal Act relating to
the grant of visa and entry permits as in force
immediately before the commencement of this section
continue to have effect after that commencement for
the purposes of applications for visas or entry
permits made before that commencement."

But the rejection of the temporary entry permit application made on 21 June 1990 was based on s.37 of the Act which provided, with effect from 19 December 1989:

"37(1) This section applies to an illegal entrant who:
(a) has entered, and remains in, Australia;
(b) while in Australia, has been refused an
entry permit; and
(c) is not a person to whom section 36 applies
because of section 121.
(2) Where this section applies to a person, the
person is not entitled to make any further application
for an entry permit while he or she remains in
Australia unless:
(a) there has been a prescribed change in the
person's circumstances since he or she
last applied for an entry permit; and
(b) no deportation order has been made in
respect of that person under section 59."

The concept of the "illegal entrant" is defined by s.14 of the Act, which provides in sub-s.(3):

"14(3) A non-citizen who is the holder of a valid
entry permit becomes an illegal entrant if he or she
stops being the holder of a valid entry permit while
he or she is in Australia."

The "prescribed changes in circumstances" referred to in s.37 are picked up in Regulation 40 of the Migration Regulations, but none of those changes is relevant to the present case.

18. The successor to s.6A is s.47 which provides inter alia:

"47(1) A permanent entry permit shall not be granted
to a non-citizen after entry into Australia unless at
least one of the following paragraphs applies to the
non-citizen:
.
.
.
(f) he or she is the holder of a valid
temporary entry permit and there are
strong compassionate grounds for the grant
of a permanent entry permit to him or her;
(g) he or she is the holder of a valid entry
permit and there are strong humanitarian
grounds for the grant of a permanent entry
permit to him or her."

The Case for Review

19. The preliminary point was taken by counsel for the respondent that there was no relevant decision refusing a temporary entry permit. The decision of Ms Rushworth, published on 2 November 1990, was concerned only with the question of grant of resident status and by necessary implication the question of grant of an unconditional entry permit. Counsel for the applicants was asked to indicate how the refusal of a temporary entry permit could arise on the application. His submissions reduced to the proposition that the decision relating to the grant of resident status was or involved a decision on whether or not to grant an unconditional entry permit. But the prerequisite for the grant of such a permit under s.6A(1)(e) was that the grantee be the holder of a temporary entry permit. The rejection of the application for grant of resident status therefore implicitly involved a refusal to grant a temporary entry permit. It is clear, however, upon a perusal of the reasons for decision, that Ms Rushworth did not take the preliminary point that Ms Pak was not then the holder of a temporary entry permit. She proceeded to consider and reject the application for grant of resident status. That decision having been made, the question of granting a temporary entry permit became academic. There was before Ms Rushworth no application for a temporary entry permit and in my opinion, counsel for the respondent is correct in the submission that there was no decision rejecting any such application.

20. It is necessary now to turn to the grounds of the application in so far as they relate to the refusal to grant resident status or an unconditional entry permit. The first of these (ground 1.1) lists a number of irrelevant considerations said to have been taken into account by the decision-maker. In summary they were:

(a) that Wong Hei could return to Hong Kong to
complete his Bachelor of Commerce degree;
(b) that Ms Pak and her two children may be
permitted to return to Australia as
student dependents of Wong Hei after
making application in Hong Kong;
(c) that Wong Hei could have the care and
control of the 5 year old child Chu Tat
Lam in Australia until Ms Pak was
sponsored back to this country as a
student dependent, and could complete his
degree here at the same time;
(d) Ms Pak's ability to reside in Hong Kong.

These "irrelevant considerations" were little more than a vehicle for a challenge to the decision on its merits. As to paragraph (a), the decision maker in fact concluded no more than that, on the information supplied to her by Ms Pak's solicitors, there was "no evidence to suggest that Mr Wong would be unable to return to Hong Kong and complete his studies". As to para.(b) the point was made that there would be a mandatory exclusion period of 12 months after her departure from Australia during which Ms Pak would not be entitled to be granted a visa or an entry permit. It was argued that this was an irrelevant factor because Mr Wong's course would be completed within the 12 month period. But the observation complained of was a mere comment in answer to a submission by Ms Pak's solicitor that she would be excluded for a mandatory 3 year period. As to para.(c), Ms Rushworth accepted that Chu Tat Lam is an Australian citizen and could remain in Australia. If there was implicit in this a view that the child could stay with Mr Wong, that was a view which it was open to her to form. In the event it was not expressly enunciated in the reasons for decision. And as to the ability of the child to live in Hong Kong, she said in her reasons:

"I considered that in the case of the older child, any
disruption would be of a temporary nature since the
child had not commenced formal schooling and had not
had exposure to the Australian education system with
the attendant contact with the broader Australian
community. Consequently he would not be significantly
disadvantaged by returning to Hong Kong and that once
the child had started school he would quickly settle
to his new life, while the younger child would be too
young to be aware of any changes. I consider that
both children were too young to have become accustomed
to the Australian lifestyle outside of the immediate
family environment. This important family environment
would be maintained equally well in Hong Kong. I
considered therefore that the disruption would be a
compassionate ground, but that it would not be so
severe as to be considered to be a strong
compassionate circumstance."

Again, these were views which it was reasonably open to Ms Rushworth to form, and do not constitute irrelevant considerations in the context of an application based on humanitarian or compassionate grounds.

21. The next ground (1.2) complained of a failure to take into account various relevant considerations in making the decision under review. The particulars of the ground opened with the preamble that "In determining whether the First Applicant had established 'compelling personal reasons' under Reg 120(e)(i) the Delegate had not given any 'fair, realistic or proper consideration'" to some 12 matters which were then listed. The reference to "fair, realistic or proper consideration" was no doubt a reference to the observations of Wilcox J. in Brelin v. Minister for Immigration and Ethnic Affairs (unrep. 14/5/87) and Gummow J. in Khan v. Minister for Immigration and Ethnic Affairs (unrep. 11/12/87), cited with approval by Sheppard J. in Hindi v. Minister for Immigration and Ethnic Affairs (1988) 91 ALR 586 and 597. In Brelin's case Wilcox J. equated a failure to give an application "proper and adequate consideration" with a failure to carry out "a real exercise of discretion". And in Khan's case, Gummow J. said:

"... what was required of the decision-maker, in
respect of each of the applications, was that in
considering all relevant material placed before him,
he give proper, genuine and realistic consideration to
the merits of the case and be ready in a proper case
to depart from any applicable policy: Howells v.
Nagrad Nominees Pty Ltd (1982) 66 FLR 169 at 195; Kioa
v. West [1985] HCA 81; (1985) 159 CLR 550 at 604; Chumbairux v.
Minister for Immigration and Ethnic Affairs (1987) 74
ALR 480 at 492-4. That consideration included, in
respect of each application, the effect or likely
effect of refusal of the application upon members of
the family: cf Tabag v. Minister for Immigration and
Ethnic Affairs [1982] FCA 276; (1982) 70 FLR 61 at 67, referred to by
Wilson J. in Kioa v. West, supra, at 604. The
assertion by a decision-maker that he has acted in
this fashion will not necessarily conclude the matter;
the question will remain whether the merits have been
given consideration in any real sense: Turner v.
Minister for Immigration and Ethnic Affairs (1981) 35
ALR 388 at 392; Chumbairux v. Minister for Immigration
and Ethnic Affairs at 495-6."

The matters listed as relevant factors not properly considered were as follows:

"(i) the Second Applicant would complete his
Bachelor of Commerce Degree by the end of
June 1991 a period of only 7 months
temporary stay in Australia for the First,
Third and Fourth Applicants;
(ii) In the absence of the First, Third and
Fourth Applicants, the Second Applicant's
studies would suffer due to the emotional
stress caused by separation from immediate
family.
(iii) the means by which the First, Third and
Fourth Applicants would be supported in
Hong Kong.(iv)
the emotional distress separation from his Australian
environs would bring to the Third Applicant an
Australian citizen aged 5 years.
(v) the First and Fourth Applicants could be
granted temporary residence until end of
June 1991.
(vi) the First and Fourth Applicants could not
be sponsored back to Australia prior to
June 1991 as a 12 month or 3 year
mandatory and non-reviewable embargo would
apply to them once in Hong Kong preventing
them from applying by any type of return
visas to Australia.
(vii) the First and Third Applicants have
resided in Australia for 6 and 5 years
respectively and regard Australia as their
home.
(viii) the Respondent's refusal to
process student dependence entry permits
for the First and Fourth Applicants whilst
their application for unconditional entry
permits was on foot;
(ix) the Respondent's refusal to give the First
Applicant any assurances regarding the
success of an application for student
dependence conditional entry permits prior
to her withdrawing her application for
unconditional entry permits for herself
and the Fourth Applicant.
(x) the Third Applicant's inability to
initially assimilate into the Chinese
language based Hong Kong education system
and the effects of this on his education
long term, together with his greatly
reduced educational and career
opportunities in Hong Kong as compared to
Australia; and the denial of his
birthright as an Australian citizen;
(xi) the dislocation to the Third Applicant's
first years of education which he is to
embark upon should he be uplifted from
Australia.
(xii) the unavoidable shame and disgrace brought
upon the Second Applicant and his family
in Hong Kong were the First, Third and
Fourth Applicants to return to Hong Kong 7
months prior to the Second Applicant and
the inevitable deletarious (sic) social
effects on those Applicants."

I do not propose to deal with the above matters seriatim. They were barely addressed in argument. There was no evidence, and none suggested, to support a view that there had been anything less than a proper and adequate consideration of relevant matters by the decision-maker. The limits of this ground of review were addressed by Mason J. in Minister for Aboriginal Affairs v. Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39, where the principles governing its operation were set out. In summary they are:

1. The ground of failure to take into account
a relevant consideration can only be made
out if a decision-maker fails to take into
account a consideration which he is bound
to take into account in making that decision.
2. What factors a decision-maker is bound to
consider in making the decision is
determined by construction of the statute
conferring the discretion.
3. Not every consideration that a decision-maker
is bound to take into account but
fails to take into account will justify
the Court setting aside the impugned
decision and ordering that the discretion
be re-exercised according to law.
4. The limited role of a court reviewing the
exercise of an administrative discretion
must constantly be borne in mind. It is
not the function of the court to
substitute its own decision for that of
the administrator by exercising a
discretion which the legislature has
vested in the administrator. Its role is
to set limits on the exercise of that
discretion and a decision made within
those boundaries cannot be impugned.
5. The stated principles apply to an
administrative decision made by a Minister
of the Crown.

In the context of a decision concerning the grant of resident status, a number of the factors listed in the application for review could quite properly have been given little or no weight, for they related essentially to the impact of temporary separation of Mr Wong from his wife and children pending the completion of his degree course. The proposition that Ms Pak and her daughter could be granted temporary residence until the end of June 1991 was not relevant to the grant of permanent resident status. No doubt it was included in this ground in so far as the ground was said to apply to the refusal to grant a temporary entry permit, a decision which, as I have found, was not made. A like comment is true of paragraphs (viii), (ix) and (xii). In my opinion the ground as a whole is without substance.

22. The decision was also attacked on the basis that it was an exercise of discretionary power in accordance with policy without regard to the merits of the particular case. The particulars of this ground were as follows:

"(a) No consideration was given as to how the
First, Third and Fourth Applicants would
cope with life in Hong Kong; and
(b) No consideration was given to the
feelings, hopes, desires and expectations
of the Third Applicant, an Australian
citizen who wished to remain in Australia
but would only be able to do so if he
became a ward of the state and was
fostered out to strangers."

Again argument on this ground was almost non-existent. The policy which was adhered to was not identified and the basis of the ground as particularised indicated that it was in substance the previous ground revisited.

23. By ground 1.4 it was contended that procedures required by law were not observed in that:

"(a) At no time were the First and Second
Applicants given the pamphlet "Limitation
on Further Applications" as is required by
PROCEDURES ADVICE MANUAL 2 "Processing
guidelines" paras. 7.5 and 7.9.
(b) At the P-N-C interview on 21 December 1989
the First Applicant was not advised that
she was a prohibited non-citizen as her
temporary entry permit had expired but
that she could regularise her status by
applying for a further T.E.P."

Counsel for the applicants referred to a Procedures Advice Manual entitled "EXTENDED ELIGIBILITY TEMPORARY ENTRY PERMITS 2 Processing guidelines". This document provides for limitations on grant of an entry permit to be explained to illegal entrants seeking a temporary entry permit. Paragraph 7.9 of the pamphlet was referred to, which is in the following terms:

"An enquirer who wishes to lodge a formal application
should be allowed to do so. However, where an
enquirer indicates that a previous application for an
entry permit has been refused, they should be advised
to carefully read the leaflet, "Limitations on Further
Applications to Stay in Australia", before proceeding."

Asked how failure to make the pamphlet "Limitations on Further Applications to Stay in Australia" available to the applicants constituted a failure to observe a procedure required by law, counsel responded:

"I can only answer that with a question sir. What is
the point of having all these procedure advice manuals
for offices to comply with in the processing and
giving effect to the Act and Regulations if they do
not have any binding effect. They are simply just a
guide and which can be diverted from with impunity."

This response disclosed no basis for saying, and no other was able to be advanced, that a failure to direct the applicant to a particular procedure advice manual was a failure to comply with procedures required by law.

24. The final ground related only to the alleged decision to refuse the grant of further temporary entry permits. As I have found that that decision was not made, the ground does not fall for further consideration.

25. Despite the fact that the application fails to disclose any sustainable ground for review, and the fact that Ms Pak is an illegal entrant, the case does excite sympathy if only for the position of the children. It is now five months or so until Mr Wong will have completed his degree. However, in the view that the Department has taken of s.37 of the Act and Regulation 36, an application for a temporary entry permit cannot be entertained because of the prior refusal of the application for grant of resident status. The advice given to Mr Wong and Ms Pak that she should withdraw her application for permanent resident status seems to have been misunderstood as a form of bureaucratic blackmail, when in fact it appears to have been intended to propose a procedure which offered some prospect of Ms Pak staying for the balance of her husband's course. The lack of entitlement to which s.37 and Regulation 36 refer appears to translate into a prohibition by virtue of s.34(4), which prevents the Minister from granting an entry permit where it appears that the applicant is not, under the Regulations, entitled to be granted an entry permit in the class concerned. The legislative scheme in this respect imposes a significant degree of rigidity upon the administration of the migration laws. Accepting that there may be good policy reasons underlying that rigidity, this is a case in which it seems the public interest would not be harmed and the legitimate interests of the family would be served if Ms Pak were able to be permitted to stay until the completion of her husband's course. It would be surprising if there were not some way in which this could be done. The application for the grant of permanent resident status was misconceived and the product of misunderstanding. But for the reasons I have given, the application for review must be dismissed.