Re Abu Taiyab Mohammed Zahir Hossain and Anamur Rahman v Carol O'Connor and Minister of Immigration, Local Government and Ethnic Affairs [1991] FCA 43 (22 February 1991)

FEDERAL COURT OF AUSTRALIA

Re: ABU TAIYAB MOHAMMED ZAHIR HOSSAIN and ANAMUR RAHMAN
And: CAROL O'CONNOR and MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. ACT G31 of 1989
FED No. 43
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrative Law - Judicial review - Migration - Decision refusing application for visa for travel to Australia with a view to entry as a permanent resident - Delay in dealing with application - Application considered by reference to non-statutory Points Scale System - Change in minimum standard between date of application and date of decision - Whether error to apply standard prevailing at date of decision - Whether points system properly applied - Whether failure to inform applicant of change in minimum standard a denial of procedural fairness.

HEARING

CANBERRA
22:2:1991

Counsel for the applicant: Mr Finkelstein QC and Mr Scerri

Solicitor for the applicant: Arthur Robinson and Hedderwicks

Counsel for the respondents: Mr Searle

Solicitor for the respondents: Wisewoulds

ORDER

The application be dismissed.

The applicants pay the respondents' costs of the application.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the

DECISION

Abu Taiyab Mohammed Zahir Hossain ("the first applicant") and Anamur Rahman ("the second applicant") seek orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") in respect of certain decisions referred to in the amended application herein as having been made on 10 July 1988, 30 August 1988 and 27 April 1989 respectively by the Minister for Immigration, Local Government and Ethnic Affairs or his delegate and described as decisions "that the first applicant's application for migration to Australia dated 24 August 1986 be refused".

2. The proceeding was commenced by the filing of an application in this Court on 30 May 1989. At the hearing, an application was made on behalf of the applicants that the time within which the proceeding might be brought be extended up to and including that date. No objection was raised to that application by the respondents and the time was extended accordingly.

3. The evidence establishes that on 31 August 1986 the first applicant lodged with the Australian High Commission, Dhaka, Bangladesh a duly completed printed form of document, described as Form M47, headed "Immigration Application" and dated 24 August 1986. The form bore a notation that it was not to be completed by people who proposed only a visit to Australia or a period of temporary rather than permanent settlement. The form set out a series of notes intended to guide a person completing the form. Note 1 provided that married couples were to complete one form only and stated that usually the husband would be the principal applicant, but that a wife who was qualified in and intended to follow an occupation in demand in Australia might be considered the principal applicant. Note 2 provided that accompanying children, if part of the family unit, might be included in the parent's application form. Note 7 read:

"All principal applicants and spouses intending to work in
Australia should attach to the application certificates,
degrees, diplomas, apprenticeship papers or service
discharge records relating to any training as well as
employers' references covering work experience. A reference
from your current employer need not be obtained at this
stage unless you choose to seek one. Original documents
will be returned to you. If copies of documents are lodged
it will be necessary for you to produce the originals later."

The application was to be accompanied by recent photographs of each member of the family wishing to travel to Australia. (Note 8). Note 10 read:

"You should not leave your job, vacate your residence or
finally dispose of property for the purpose of migration to
Australia until you are informed by letter that your
application is approved. Taking such steps before approval
will not result in more favourable or prompt consideration
being given to your case."

It was also stated (Note 12) that the form would not be accepted unless a fee of $A25 was paid and that a further $A75 would be required later "if the application is allowed to proceed to health and other checking".

4. The form as completed included details of the first applicant, his spouse and his son. The details concerning the first applicant were shown under the heading "Principal Applicant". In relation to the first applicant's education, the completed form and its attachments stated that he had duly passed "the Secondary School Certificate Examination in Commerce Group held in the month of April 1979 and was placed in the Third Division"; that he had from June 1979 to December 1981 taken a course in accounting at the Dhaka Commercial Institute and had duly passed the Diploma-In-Commerce Examination held in March 1982 being placed in the First Division, in recognition whereof he had been awarded a Diploma-In-Commerce, the branch in which he was examined having been accounting; and that from February 1982 to December 1983 he had studied accounting at the Dhaka City College resulting in his having obtained the Degree of Bachelor of Commerce in the University of Dhaka at the examination of 1983, being placed in the Second Division. The form also showed that the first applicant had been employed as a "Part time Assistant Accountant" with an importing and exporting firm from April 1982 to December 1984 and as an "Accountant" with a life insurance company from April 1985 to August 1986. The completed form also showed that the first applicant had a job arranged for him in Australia with no time being limited within which it was to be taken up. The job was described as being that of "Assistant Accountant" with a named private company having an address in the State of Victoria. Attached to the form was a statutory declaration from the proposed employer stating the job title as being "Assistant Accountant" and the job description as being "Assisting with Accounting and E.D.P. functions". Average weekly earnings (including overtime and penalty rates) were shown at $400.00. The following information was also given:

"As noted in the departments files all the immediate members
of my Spouse's family i.e., Parents (permanent residents)
Five Brothers and a Sister all of whom are Australian
Citizens, are residing in Australia permanently. This in
effect makes my Spouse to be the last remaining member of
her family still residing in Bangla Desh. As you are aware
we are a very close knit family and since my Inlaws
departure for Australia in May this year my wife has
virtually been a mental wreck, simply because she was
terribly attached to them and this is the first time she
actually has been subjected to such a long separation from
her Parents. Reports from Australia about my Mother-In-law
also suggest that she is finding it very difficult to settle
herself down simply because she was terribly close to her
youngest daughter and more so towards her grandson. Bearing
in mind these long agonizing moments of separation between a
Parent and her Child and vice versa we would request the
authorities to be kind enough to view our application favourably
and give priority attention in processing our application.
I would also like to add that like my Brother-In-law's who
are serving the Australian Community as hard working
responsible Citizens in various facets of Australian
Industry, I also make that same promise to outshine them if
possible, to prove my worth to the Australian Community,
provided I am given that chance."

5. On 25 July 1986, the second applicant, had signed a document sponsoring the immigration to Australia of the first applicant, his wife and son. The document included a statement that the second applicant was a brother of the first applicant's wife. It appears that the second applicant had acquired Australian citizenship pursuant to s.13 of the Australian Citizenship Act 1948 (Cth) on 18 November 1985. The document of sponsorship accompanied the Immigration Application.

6. On or about 19 November 1986 the first applicant's wife made application for a visa to visit Australia for a period of six months from a date early in December 1986. The purpose of the intended visit was stated to be to visit her brother, the second applicant. She was to be accompanied on the visit by her infant son.

7. At the relevant time, sub-s.6(2) of the Migration Act 1958 (Cth) provided that an officer might, in accordance with s.6 and at the request or with the consent of a non-citizen, grant to the non-citizen an entry permit. Sub-section 6(5) provided that an entry permit might be granted to a non-citizen upon his arrival in Australia or, subject to s.6A, after he had entered Australia. Section 11A provided that an authorized officer might, in accordance with the section, grant to a person, upon request by that person, a visa with respect to travel to Australia by that person and any person whose name was included in the visa while the visa remained in force. A visa granted under the Act was not to be deemed to be an entry permit and did not entitle the person to whom it was issued to enter Australia or to be granted an entry permit (s.11). The expression "officer" was defined in sub-s.5(1) in relation to the exercise of any power or the discharge of any duty or function under the Act. As so defined, it included an officer of the Department of Immigration and Ethnic Affairs and, after its creation in 1987, the Department of Immigration, Local Government and Ethnic Affairs and any other person who was, or who was included in a class of persons who were, authorized by the Minister to exercise that power or discharge that duty or function. The expression "authorized officer" was defined in sub-s.5(1) to mean, in relation to the exercise of any power or the discharge of any duty or function under the Act, a person authorized by the Minister to exercise that power or discharge that duty or function.

8. The decisions referred to as having been made on 10 July 1988 and 30 August 1988 and in respect of which orders of review are sought are, in truth, properly described as decisions refusing the first applicant a visa to enable himself, his wife and son to travel to Australia with a view to entry permits being granted upon their arrival in Australia authorizing them to enter Australia for the purpose of settling here as permanent residents. The second of those decisions, as will appear, was in fact made on 29 August 1988. I am satisfied that those decisions were made by authorized officers as defined. The third decision referred to in the amended application is a decision referred to as having been made on 27 April 1989. Some reference to that decision will be made later in these reasons.

9. At all times material to this application, the Minister having responsibility for the administration of the Migration Act 1958 (Cth) maintained what has been referred to as a "Migration Program". As part of that program the maximum number of migrants to Australia who would be accepted in a particular financial year was determined and that number was divided between various categories and components. One of those categories was described as "Independent and Concessional Migration". The aim of that category has been said to be "to select young, skilled, educated applicants who will make an early economic contribution through easy transition to the workforce".

10. As the number of applicants seeking permission to settle in Australia under this category was likely to exceed the number of places available, measures were introduced administratively to assist in determining the relative merits of the applicants. To assist in the assessment of their relative strengths, applicants were assessed under a "Points Scale System". The system provided for points, according to a predefined scale, to be awarded in respect of the factors of employability, skills, education and age with concessional or bonus points being awarded in certain specified circumstances. The points were added to ascertain whether a certain minimum standard was met. At all material times prior to 1 June 1988 when certain changes were made to the system, that minimum standard was 70 points out of a possible 95. The system was, at all material times, a non-statutory system.

11. The predetermined scale of points that might be awarded was as follows:

"A. EMPLOYABILITY
. Immediately employable in designated 25
occupation
. Sound and continuous employment 20
experience, no language or other
training required
. Sound and continuous employment - 15
limited language or other training
OR
Limited experience but no language
or other training required
OR
Job offer
. Limited experience, limited language 5
training required
OR
Sound and continuous experience,
extensive language training required
. Other 0
B. SKILLS
. Recognised professional, technical 20
or trade skills
. Professional, technical or trade 10
skills not recognised.
. Clerical, administrative, semiskilled 10
. Unskilled 0
C. EDUCATION
. Tertiary 20
. Secondary (12 Years +) 15
. Secondary ( 8 Years +) 10
. Primary (Less than 8) 0
D. AGE
. 20-34 15
. Less than 20, 35-44 10
. 45 + Years 0
E. BONUS
i) Sponsorship by parents/sibling 10
Sponsorship by uncle/aunt 5
ii) If sponsor Australian citizen 5"

12. The Points Scale System and guidelines to assist those assessing the points to be awarded to an applicant for migration to Australia were set out in Chapter 18 of the Migrant Entry Handbook, a document which, again, had no statutory authority. The Handbook provided, for example, that the maximum of 25 points might be awarded in respect of the factor "Employability" only if the following were satisfied:

". occupation appears on the list of designated
occupations; and
. applicant has recognised qualifications for the
occupation; and
. experience requirement, where stipulated, is met; and
. applicant possesses all the attributes which an
Australian employer would expect in the occupation; and
. all occupational training and other requirements
specific to the occupation are met."

The list of designated occupations included, so far as is relevant for present purposes, the occupation "Accountant". It was also provided that 20 points might be awarded in respect of the factor "Employability" only if the following were satisfied:

". at least 3 years current experience in the
intended occupation or in closely related
occupation(s); and
. requiring no training to engage in intended
occupation; and
. applicant possesses all the other attributes
which an Australian employer would expect in the
occupation to be immediately employable."

13. In relation to the factor "Education", it was provided that the maximum of 20 points might be awarded only where the applicant had successfully completed the local equivalent of a course at an Australian university or college of advanced education leading to the award of a bachelor's or a higher degree. For the purpose of awarding points in respect of this factor, information was available from the Council of Overseas Professional Qualifications ("C.O.P.Q."), now the National Office of Overseas Skills Recognition, established under the aegis of the Department of Employment, Education and Training for the purpose of assessing the relative value of qualifications awarded by educational and technical institutions outside Australia. At all material times the "Compendium of Guidelines for the Assessment of Overseas Qualifications" published by the Council contained the following entry in relation to degrees obtained after 1960 in the University of Dhaka:

"A Bachelor's degree, (Pass), in the First Division of
Class, or in the Second Division or Class with overall
average marks of at least 55%, is assessed as comparable to
one year of tertiary study."

14. At the time the first applicant lodged his application for migration to Australia and until October 1988, John Robert Monico, an officer of the Department of Foreign Affairs and, after its creation in 1987, an officer of the Department of Foreign Affairs and Trade, was stationed at the Australian High Commission at Dhaka. During that period there was no officer of the Department of Immigration and Ethnic Affairs (or, after its creation in 1987, the Department of Immigration, Local Government and Ethnic Affairs) stationed at the Australian High Commission at Dhaka. Mr Monico's duties included performing functions under the Migration Act, those duties occupying about 20 per cent. of his working time. He had the assistance of locally engaged staff who worked under his general supervision but who had no authority to make decisions under the Migration Act.

15. According to Mr Monico, and his evidence is not contradicted, it was the practice during the period he was posted to the Australian High Commission at Dhaka that, whenever an application for a visitor visa was received from a person who was also the subject of a pending application for migrant entry to Australia under the Independent and Concessional Migration category, an initial preliminary points assessment in relation to the application for migrant entry was made to see whether the latter application would be likely to succeed. Further, if the points awarded as a result of that preliminary assessment totalled less than what was then the minimum pass mark under the Points Scale System set out in Chapter 18 of the Migrant Entry Handbook with respect to the Independent and Concessional Migration category, the practice was to reject the application for a visitor visa unless the officer concerned could be satisfied that the applicant intended to return to Bangladesh and not stay longer in Australia than was authorised. That practice was followed with respect to the application lodged by the applicant's wife on or about 19 November 1986.

16. Prior to 14 December 1986 a preliminary assessment was made of the points that might be allocated to the first applicant in respect of his Immigration Application under the administrative procedures and guidelines to which reference has been made. It appears that that preliminary assessment was made by one of Mr Monico's staff who recorded the assessment made on a document headed "Preselection/Assessment Form". The assessment allocated 55 points to the first applicant comprising the following components -

A Employability 15
B Skills 10
C Education 15
D Age 15
E Bonus 0
Total 55

The form made provision for the person making the assessment to classify the person being assessed as falling within one of three categories being "Preselect in", "Preselect out" and "Assess Quals". As the total points allocated to the first applicant were less than the required 70 points, a notation was made on the form indicating that the first applicant fell within the second category.

17. In his affidavit sworn on 10 April 1990, Mr Monico deposed (par.7) that the preliminary assessment was made "for the sole purpose of deciding the Visitor Application lodged by Mrs Hossain" (see also par.10). A similar statement was made by John Douglas Caspersonn in his affidavit sworn on 22 March 1990. This evidence was admitted subject to an objection that the assessment was not made by either Mr Monico or Mr Caspersonn and that the only person who could speak as to the purpose for which the assessment was made was the person who actually made the assessment. In my opinion the evidence is admissible at least when deposed to by Mr Monico who, on the evidence, was the person who, at the relevant time, had the responsibility within the Australian High Commission at Dhaka for making decisions under the Migration Act and supervising the staff member who made the assessment. The assessment form itself provides some internal evidence that it was made for the purpose of determining the application by Mrs Hossain for a visitor visa as it refers to her, and not the first applicant, as being the principal applicant. There is every reason to suppose that, if the assessment had been made in relation to the Immigration Application, the first applicant would have been shown as the principal applicant.

18. On 14 December 1986 a message was sent by telex from the Australian High Commission at Dhaka to the Department of Foreign Affairs, Canberra reading as follows:

"VISITOR ENTRY -- ABU T.M.Z. HOSSAIN AND FAMILY FOR IMMIGRATION
A/N, WHO ARE M/E APPLICANTS, HAVE APPLIED FOR V/V FOR
STAY OF SIX MONTHS.
2. INITIAL ASSESSMENT OF POINTS FOR P.A. INDICATE HE
WOULD SCORE 55 POINTS ONLY. SPONSOR IS NOT BLOOD RELATIVE
AND SO BONUS POINTS NOT/NOT ALLOCATED. NO EMPLOYMENT, ETC,
DETAILS HAVE BEEN ADVISED FOR SPOUSE, WHO COULD GAIN BONUS
POINTS OF 15.
3. SPONSOR RECENTLY IN BANGLADESH AND STRONGLY URGED
APPROVAL OF V/V'S.
4. GIVEN HIGH INCIDENCE OF OVERSTAYING AND WORKING
ILLEGALLY IN A/A BY BANGLADESHI NATIONALS, AND TAKING
ACCOUNT OF LENGTH OF PROPOSED STAY (IT SEEMS UNLIKELY THAT
EMPLOYER WOULD AGREE TO SIX MONTHS LEAVE - A/N HAS ONLY BEEN
WITH EMPLOYER 18 MONTHS), BONA FIDES SUSPECT.
5. SPONSOR ADVISED OF ALL THIS.
6. CASE WOULD USUALLY BE ONE FOR REJECTION, BUT GIVEN
LIKELIHOOD OF MINREPS GRATEFUL YOUR ADVICE."

19. On or shortly before 5 January 1987 Mr Monico decided to refuse the application for a visitor visa lodged by the first applicant's wife. So far as appears, no reply had been received to the above telex message before that decision was made.

20. By letter dated 5 January 1987 signed by Mr Monico, the first applicant was informed as follows:

"I refer to your migration application and later visitor
application to visit Australia with your wife and son for
six months.
Initial points assessment of your migration application
indicates that you would score 55 points only and it is
likely that your application will fail. (We shall, however,
be in touch again in this regard.)
Because of this and because there is a high incidence of
overstaying and working illegally in Australia by
Bangladeshi nationals, and taking account of your length of
proposed stay (it seems unlikely that your employer would
agree to six months leave when you have only been with him
for 18 months), I have to refuse your applications to visit
Australia."

It would appear that Mr Monico and his staff mistakenly believed that the first applicant was included in the application for a visitor visa. Nothing, however, appears to turn on this.

21. In March 1987 the second applicant requested a review of the decision to award the first applicant only 55 points. That request went to the Immigration Review Panel within the Department of Immigration and Ethnic Affairs which requested information from the Australian High Commission at Dhaka.

22. On 29 July 1987 a message was sent by telex from the Australian High Commission at Dhaka to the Department of Foreign Affairs, Canberra reading as follows:

"FOR REVIEW BRANCH - IRP IMMIGRATION
REF YOUR REQUEST FOR FILE FOR A/N.
2. A/N AND FAMILY WERE REFUSED VISITORS VISAS ON GROUNDS
OF HIGH INCIDENCE OF OVERSTAYING BY BANGLADESHI NATIONALS
AND JUDGEMENT THAT, IN THE CIRCUMSTANCES OF THE CASE,
OVERSTAYING WAS A STRONG LIKELIHOOD.
3. A/N AND FAMILY HAVE NOT/NOT BEEN REJECTED FOR M/E. IN
CONTEXT OF REFUSAL OF VISITOR VISA, THEY WERE ADVISED THAT
IT WAS UNLIKELY (UNDERLINE ONE) THEY WOULD GAIN SUFFICIENT POINTS.
4. WE HAVE REVIEWED FILE HERE AND IT WOULD NOW/NOW APPEAR
MR HOSSAIN COULD GAIN SUFFICIENT POINTS AS PRINCIPAL
APPLICANT, IF HE WERE TO BE AWARDED BONUS POINTS AS SPOUSE
OF SPONSORED RELATIVE.
5. IN VIEW OF ABOVE, GRATEFUL ADVICE IF YOU STILL WISH US
TO FORWARD FILE.
6. ALSO GRATEFUL CLARIFICATION ASAP THAT BROTHER-IN-LAW
AS PA AND SPOUSE OF SPONSORED RELATIVE SHOULD GET BONUS POINTS."

23. A reply by telex sent on 4 August 1987 and received at Dhaka on the same day contained the following statement:

"APPEARS THAT AS SPONSOR ANAMUR RAHMAN IS MRS HOSSAIN'S
BROTHER AND ALSO AN AUSTRALIAN CITIZEN, 10 PLUS 5 EQUAL 15
PTS WOULD BE DUE."

24. A revised assessment was subsequently made in relation to the first applicant. This resulted in the allocation of 70 points assessed as follows:

A Employability 15
B Skills 10
C Education 15
D Age 15
E Bonus 15
Total 70

The Preselection/Assessment Form recording this assessment was initialled by Mr Monico indicating that he had checked the assessment and regarded it as being correct. Mr Monico also made a notation on the form indicating that the first applicant fell within the category "Preselect in". This meant only that, in Mr Monico's judgment, the first applicant met the minimum point score under the Points Scale System and that his application could proceed towards a final assessment. The date upon which the revised assessment was made does not appear. The only evidence as to when the assessment was made is provided by Mr Monico's recollection that the document "was probably created towards the end of 1987".

25. On or about 9 February 1988 the Australian High Commission at Dhaka, in common with all other overseas posts, was instructed by the Department of Immigration, Local Government and Ethnic Affairs to defer dealing with outstanding migration applications under the Independent and Concessional Migration category pending a review of the Points Scale System. The so-called "freeze" on dealing with such applications continued until June 1988.

26. According to Mr Monico's evidence he caused to be sent to the first applicant a letter dated 26 May 1988 reading as follows:

"I refer to your application for migration to Australia.
We shall call you and the persons included in your
application for an interview as soon as resources permit,
but I regret that we are unable to advise you of the date at
this stage.
We would be grateful however, if you and your family could
arrange to undertake medical and x-ray examinations with our
panel doctors, to whom you should present the attached forms.
It is also required that you obtain documentary evidence of
the following -
. Date of birth for you and all the persons
included in your application. An official
document is required.
. Police clearance for all persons included in your
application over 16 years of age. A certificate
can be obtained from your local Police Station.
. A marriage certificate with an official English translation.
Please forward these documents to this office as soon as
possible to facilitate the application process."

On the same day, letters were sent to two doctors requesting reports on the medical condition of the first applicant and his family. The evidence does not establish how those letters came to be sent having regard to the instructions of early February 1988. The evidence, however suggests that the letter dated 26 May 1988 was never received by the first applicant. In any event, no additional material was received by the Australian High Commission at Dhaka in response to the letter. Neither the first applicant nor his wife was interviewed.

27. On 1 June 1988, the Minister announced details of the Migration Program for the financial year 1988-89. For present purposes it is sufficient to note that the immigration intake level within the Independent and Concessional Migration category was reduced by some 4,000 on the number of migrants within that category (49,500) accepted during the previous financial year. The Minister also announced that, because of the vigorous demand for places in this category, only those applicants achieving the highest marks were to be selected rather than all those who met a fixed pass mark. The changes to the selection mechanism were expressed in the following terms:

"The former selection mechanism for the I and C category,
based on a fixed pass mark of 70, is replaced by a flexible
selection system which emphasises those scoring highest
overall and performing strongly on the employability factor.
Selection will target applicants scoring 80 or more overall,
or 75 overall including 25 on employability. Applicants
scoring less than 75, except those scoring 70 including 25
on employability, will be rejected, while remaining
applications may be considered subject to the number of
available places."

28. On or about 10 July 1988, Mr Monico decided to refuse the first applicant's migration application. On that date a letter was sent from the Australian High Commission at Dhaka to the first applicant reading as follows:

"I am writing about your application to migrate to Australia
which is being considered in the independent and
concessional category.
Applications in the independent and concessional category
world-wide have far exceeded Australia's capacity to accept
them. The processing of applications in this category has
therefore recently been subject to a temporary suspension
pending a review of policy by the Department of Immigration,
Local Government and Ethnic Affairs in Australia.
Changes to policy affecting the independent and concessional
category are now in place and include the replacement of the
fixed pass mark of 70 points by a flexible selection system.
Under the revised system those cases in which applicants
achieve either a total score of 75 points with full points
(25) for the 'employability' factor or 80 points will be
allowed to proceed to finalisation (subject to health and
character checks).
Those cases in which applicants achieve either a score of 70
points including full points for the 'employability' factor
or 75 points will be held in a pool with further processing
subject to the number of available places in the independent
and concessional category.
A careful assessment of your application and supporting
documentation reveals that you have not achieved a
sufficient score under the points selection system. Details
of the points you have scored under the selection factors is
attached. I am sorry to have to inform you therefore that
your application for migration to Australia has been refused.
This decision is one which is reviewable through the
immigration review panel process. The enclosed leaflet
explains the requirements and procedures. The right to
request that a decision be reconsidered is limited to any
close relative you may have, who is also an Australian
citizen or permanent resident in Australia.
Before you decide to seek a reconsideration of this
decision, you should consider carefully the reasons for the
refusal decision measured against the selection criteria.
Having done this, you will be in a better position to assess
whether it is worthwhile asking the eligible person in
Australia to lodge the request on your behalf. You should
know that the review panels require substantial reasons to
overturn a soundly based decision. If you decide to appeal
against the decision to refuse your application you should
be aware that an appeal will not be accepted against the
provisions of the revised policy itself. In considering
whether or not to seek a review of the decision, you should
therefore consider only whether the revised policy has been
correctly applied in your case.
If you decide to seek reconsideration of this decision, and
the person in Australia is eligible and willing to request a
reconsideration, you should provide to that person the
following:
. A copy of this letter
. The decision record
. The attachments to the record
. Clear and detailed guidance on why you disagree
with the decision and why a different and
favourable decision should have been made."

29. Mr Monico's evidence, which I accept, is that he took the view that the first applicant did not meet the new pass score. He accepted that the first applicant had been correctly assessed at 70 points. His evidence (par.14 of his affidavit sworn on 10 April 1990) continued:

"I took the view the point score of 70 points arose as follows:-
(a) I formed the view that Mr Hossain's
qualifications, revealed by his Immigration
Application ..., would not be recognised in
Australia as equivalent to more than one year of
tertiary study. I believed that Mr Hossain
would require considerable further training and
experience in Australia to work as an
Accountant. I accepted that he had a job offer
from ..., as revealed by his Application, but I
took the view that he was only qualified by his
academic achievements and work experience to
work as someone who supported an Accountant
rather than as an Accountant.
(b) I saw Mr Hossain as someone who would be
regarded in Australia as someone with clerical
or administrative skills. I did not believe
that his professional qualifications in
Bangladesh would be recognized in Australia. As
indicated above, I saw the educational
qualifications revealed by Mr Hossain's
Immigration Application as being the equivalent
of only one year of tertiary study. I
accordingly regarded Mr Hossain as scoring 10
points for 'skills' and 15 points for 'education'.
(c) Mr Hossain was aged between 20 and 34. I
accordingly regarded Mr Hossain as scoring 15
points for 'age'.
(d) I saw Mr Hossain as entitled to 15 'bonus
points' because Mr Rahman was his sponsor and
his wife's brother.
I do not recall whether I actually looked at the Compendium
of Guidelines for the Assessment of Overseas Professional
Qualifications published by COPQ when assessing the points
score applicable to Mr Hossain's application for Migrant
Entry, but that document was available within the Australian
High Commission in Dhaka at the time. I was familiar with
those pages from that document dealing with the
qualifications gained in Bangladesh..."

30. During the period 19 August to 9 September 1988, John Douglas Caspersonn, an officer of the Department of Immigration, Local Government and Ethnic Affairs who was stationed at the Australian Embassy at Bangkok, Thailand, performed duty at the Australian High Commission at Dhaka. During that visit he took over the performance of functions under the Migration Act leaving Mr Monico free to undertake other duties. During the period of his visit Mr Caspersonn worked through a backlog of migration cases, in which was included that of the first applicant. It appears, however, that Mr Caspersonn was in error in believing that the first applicant's case had not been dealt with by Mr Monico. According to his evidence, he undertook consideration of the first applicant's case because there was no copy of the letter dated 10 July 1988 on the first applicant's file and it appeared from the presence on the file of another document that no decision had at that time been made on the application. In any event, Mr Caspersonn considered that application afresh. He made a decision thereon on 29 August 1988 refusing the application.

31. Mr Caspersonn gave evidence concerning the considerations which he took into account in arriving at his decision. Paragraphs 17-23 of his affidavit sworn on 22 March 1990 state -

"17. When making my decision on 29 August 1988 to
reject the Application for Migrant Entry lodged
by Mr Hossain on behalf of himself, his wife and
his child, I had before me that Application. I
accepted all matters of fact contained in the
said Application and I took those facts into
account in reaching my decision. I also had
regard to Chapter 18 of the Migrant Entry
Handbook as it was at the time of my decision,
which was in the terms of Annexure 'H' to this
Affidavit. I also took into account certain
information available from COPQ, referred
to below, the Migration Act 1958, my knowledge
of the practice and policy of the Department of
Immigration Local Government and Ethnic Affairs
with respect to Migrant Entry, my own knowledge
and experience relating to the qualifications
and experience required in Australia to work as
an Accountant and my own view of the Australian
equivalents of the educational qualifications of
the First Applicant referred to in his
Application for Migrant Entry.
18. I accepted, as revealed by the Migrant Entry
Application lodged by Mr Hossain, that Mrs
Hossain had six siblings residing in Australia,
including Mr Rahman. I noted that Mr Rahman was
an Australian citizen and was Mr Hossain's
sponsor. I accordingly awarded the maximum 15
'concessionary points' to Mr Hossain and I
included those 15 points on the 'Migrant
Selection Assessment' form (M49) beside the word
'Adjustment'.
19. I further noted that the date of birth of Mr
Hossain was 26 October 1962, placing him within
the 20-34 year old age group and I accordingly
awarded 15 points beside the word 'Age' on the
'Migrant Selection Assessment' form (M49).
20. I did not regard the tertiary qualifications
achieved by Mr Hossain outside Australia, set
out in his Migrant Entry Application, as being
the equivalent of Australian tertiary
qualifications. I considered that the
qualifications achieved by Mr Hossain were the
equivalent of one year of tertiary study in
Australia. In reaching this conclusion I had
regard to the relevant pages of the 'Compendium
of Guidelines for the Assessment of Overseas
Qualifications' published by C.O.P.Q.. Annexed
hereto and marked with the letter 'U' is a copy
of the pages of that compendium to which I had
regard. The conclusion reached by reference to
the pages which are now Annexure 'U' to this
Affidavit was in accordance with my own
perception of the Australian equivalents of the
educational qualifications achieved by Mr
Hossain. I accordingly awarded Mr Hossain 15
points beside the word 'Education.' on the
'Migration Selection Assessment' form (M49).
21. Beside the heading 'Skills' on the 'Migration
Selection Assessment' form (M49), I awarded Mr
Hossain 10 points. This was based partly upon
my view, explained above, that Mr Hossain's
educational qualifications would not be
recognised in Australia as the equivalent of
Australian tertiary qualifications. I
concluded, having regard to all of the
information in Mr Hossain's application,
Annexure 'U' to this Affidavit and my own
understanding of standards and expectations in
Australia that Mr Hossain's skills would not be
recognised as professional and technical.
Rather, I concluded, Mr Hossain would be
regarded in Australia as having clerical,
commercial and administrative skills, or as a
service occupation or semi-skilled worker...
22. Beside the heading 'Employability' on the
Migration Selection Assessment form (M49), I
awarded Mr Hossain 15 points. Based upon the
information before me, referred to above, I
formed the view that Mr Hossain had limited
employment experience as an Accountant and would
require training to work as an Accountant in
Australia. I was mindful that he had a job
offer ... and I was prepared to assume that he
had gained further work experience in Bangladesh
since lodging his Migrant Entry Application, but
I did not regard Mr Hossain as qualified to work
in Australia as an Accountant as opposed to
someone who provided clerical or other support
to an Accountant. I did not consider that Mr
Hossain was someone who was immediately
employable as an Accountant (or in any other
'designated occupation' within the contemplation
of paragraph 18.2.6 of Annexure 'H'), or as a
person who otherwise had such experience and
training so as to attract a higher point score
under the heading of 'Employability'.
23. The aggregate point score allocated by me to Mr
Hossain when completing the Migrant Selection
Assessment form (M49) on 29 August 1988 was
accordingly 70 points. That aggregate was not
enough to meet the minimum points score of 80
points, or 75 points with full points for the
'Employability' factor, required for approval
under the Points Score System, set out in
Annexure 'H' to this Affidavit, which applied
with respect to the Independent and Concessional
Migration Programme at the time of my decision.
If I had thought that there were such
compassionate and humanitarian circumstances as
to warrant departure from the policy set out in
Annexure 'H', I would have raised the issue of
whether Mr Hossain's Migrant Entry Application
should be approved with my Central Office in
Canberra and, subject to their advice, I would
have approved the said Application for Migrant
Entry or referred the Application to Canberra
for consideration. In my view, however, there
were no compassionate or humanitarian
circumstances which would have warranted
departure from the Department's usual policy in
this particular case. I was aware that
approximately two years had passed between the
lodgement of Mr Hossain's Application for
Migrant Entry and the date of my decision. I
was also aware that Mr Hossain would have met
the minimum points score which prevailed under
the policy contained in Chapter 18 of the
Migrant Entry Handbook as it read from September
1986 to June 1988 and that, subject to meeting
other requirements, his Application for Migrant
Entry would have been successful if it had been
decided earlier. Yet, there were many Migrant
Entry Applications on foot at the time that the
pass mark under the Points Score System to which
I have referred was increased and there were
many more people wanting Migrant Entry to
Australia than Australia could accept. There
was a period, earlier in 1988, when applications
for Migrant Entry were 'frozen' pending a review
of Australia's Migrant Entry Policy and it was
not unusual, particularly at posts such as Dhaka
where functions under the Migration Act 1958
were performed by officers of the Department of
Foreign Affairs and Trade on a part-time basis
together with other responsibilities, for delay
in the finalisation of applications to develop.
I took the view that I should have regard to the
policy which prevailed at the time of my
decision and not to any earlier policy that had
been superseded."

32. In cross-examination, Mr Caspersonn confirmed that, in considering the migration application, he had accepted the statements made by the first applicant as being true. He said he had also accepted that the prospective employer was satisfied that the first applicant was acceptable as an employee. He agreed that there was nothing in the material before him to suggest that the first applicant would not be able to carry out the duties of the position offered, which the employer had designated as a position of "Assistant Accountant", those duties being identified by the employer as "Assisting with Accounting and E.D.P. functions". He further agreed that he caused no independent inquiries to be made of the prospective employer. He said he did not regard it as necessary to do so: the assessment of 15 points in respect of the factor "Employability" was made simply on the basis that the first applicant satisfied the requirement of the Points Scale System that he had a job offer. Mr Caspersonn further said that he looked at other matters to determine whether the first applicant was entitled to additional points as a person immediately employable in the designated occupation of "Accountant" or as a person with sound and continuous employment experience over at least three years in the intended occupation and requiring no training to engage in that occupation. He concluded that the first applicant was not such a person. He said that, in considering whether the first applicant properly fell within the second of the above categories, he had assumed that the first applicant had been working on a full-time basis as an accountant since the migration application was lodged on 31 August 1986 but that he considered, having regard to the first applicant's educational qualifications, that he would require additional training to work in Australia in the designated occupation of "Accountant". Mr Caspersonn also agreed that he had awarded 10 points in respect of the factor "Skills" because he was satisfied that the first applicant had "Clerical, commercial and administrative" skills but did not possess "Recognised professional and technical skills" as an Accountant and had awarded 15 points in respect of the factor "Education" because he was not satisfied that the first applicant could properly be regarded as having successfully completed a course of study equivalent to a Bachelor's degree in Australia. He also reiterated that he did not regard any of the circumstances set out in the first applicant's application or the manner in which the application had been dealt with as amounting to compassionate or humanitarian grounds sufficient to warrant a departure from the policy guidelines in accordance with which he had made his decision. He agreed that he had mistakenly marked the final assessment document in such a way as to indicate, to those who were aware of the significance of the coded symbols, that the application had been rejected following an interview with the first applicant whereas no interview had, in fact, taken place.

33. I accept Mr Caspersonn as a witness of truth. In particular, I accept that pars.17-23 of his affidavit set out above accurately reflect his decision-making process.

34. On 30 August 1988, Mr Caspersonn caused a letter to be sent from the Australian High Commission at Dhaka to the first applicant. Except in one respect which is not material for present purposes, the text of that letter is in identical terms to that of Mr Monico's letter dated 10 July 1988. The annexure to Mr Caspersonn's letter which Mr Caspersonn caused to be sent was, however, different from that to the letter dated 10 July 1988. The annexure to the letter set out, in the following terms, the reasons why the criteria were not met:

"Assessed as having skills not recognised as professional or
technical in Aust. (therefore) 10 points.
Employability - Limited employment experience as
accountant - training would be required for entry into field
in Aust. 15 points applicable.
Education - not equivalent of Aust. tertiary quals. 15 points.
Age and Sponsorship - 15 points both."

35. On 7 October 1988, Mehboob Obaidur Rahman, a brother of the first applicant's wife and of the second applicant, submitted to the Department of Immigration, Local Government and Ethnic Affairs a request for reconsideration of the decision dated 10 July 1988 described as "Non achievement of sufficient score under the Points Selection System". That request was considered by the Immigration Review Panel which recommended that the decision to refuse the first applicant's migration application be affirmed. On 27 April 1989, an officer of the Department of Immigration, Local Government and Ethnic Affairs accepted that recommendation and Mr M.O. Rahman was informed by letter dated 28 April 1989 of the decision.

36. On 5 February 1990, when the application was listed for hearing but adjourned, the Court was informed by counsel for the respondents that the respondents conceded that the officer of the Department who purported to make the decision accepting the recommendation of the Immigration Review Panel had no authority to make such a decision. No further reference to that decision was made during the subsequent hearing of the amended application, the matter proceeding on the basis that the operative decision was that made by Mr Caspersonn on 29 August 1988 and communicated to the first applicant by the letter dated 30 August 1988.

37. As I have understood it, the primary submission advanced by counsel for the applicants was that Mr Caspersonn, in exercising the wide discretion reposed in him, should have resolved the question whether the first applicant had met the minimum standard under the Points Scale System by applying the minimum standard, namely 70 points, that prevailed at the date of the lodging of the migration application, namely 31 August 1986, and continued to prevail until the change made on 1 June 1988. A combination of circumstances was referred to as supporting this submission. One of those circumstances was the length of time that had elapsed between the date of lodging of the application and the respective dates of the change in the minimum standard under the Points Scale System (1 June 1988) and of Mr Caspersonn's decision (29 August 1988). Another was the mistake which had been made in the preliminary assessment consisting in the failure to award the first applicant 15 bonus points to reflect the sponsorship of his application by the second applicant, a mistake which resulted in the application not proceeding to the next stage of the assessment process which, it was submitted, would have occurred if the mistake had not been made and would have occurred before the so-called "freeze" and certainly before the change in the minimum standard made in June 1988. A further circumstance relied upon was the fact that, notwithstanding the so-called "freeze", the first applicant had been asked by letter dated 26 May 1988 to arrange medical and X-ray examinations for himself and his family. In written submissions made after the conclusion of the oral argument, counsel for the applicants expressly disclaimed any suggestion that the delay in dealing with the application was, of itself, sufficient to support the setting aside of Mr Caspersonn's decision or that the first applicant had an accrued right to have the application determined on the basis that the minimum standard under the Points Scale System was 70 points. The submission was that Mr Caspersonn had automatically applied the minimum standard announced in June 1988 without considering whether the circumstances to which reference has been made required the application to be dealt with on the basis of the minimum standard that prevailed prior to that change. Being satisfied that the first applicant was entitled to be awarded 70 points and that that number of points would have met the minimum standard that prevailed prior to June 1988, the application, so it was submitted, should not have been refused but should have been allowed to proceed to medical and character checks, the next stage in the assessment process. That was said to have been the appropriate course because of the unusual features of the case and the failure of Mr Caspersonn so to decide was said to have resulted in his decision being tainted by error of law. It was also submitted that Mr Caspersonn's failure to take into account the combination of circumstances already referred to, including the fact that the first applicant had met the minimum standard of 70 points that prevailed prior to June 1988, was to fail to take into account relevant considerations and that to apply, as he did, the minimum standard announced in June 1988 was to take into account an irrelevant consideration. The further submission was made that the first applicant had a legitimate expectation that his migration application would be dealt with in accordance with the policy guidelines operative at the date of the lodging of the application and that the failure of Mr Caspersonn to deal with the application on that basis amounted to a denial of procedural fairness.

38. In my opinion, the applicants' primary submission is misconceived. The evidence clearly establishes that Mr Caspersonn was well aware that the migration application had been lodged as long ago as 31 August 1986 and that it had been dealt with in the manner set out earlier in these reasons. He had the first applicant's file before him when he made his decision. He recognised that the preliminary assessment had mistakenly failed to give the first applicant the benefit of the bonus points referable to the sponsorship of his application by the second applicant and he accepted that under the Points Scale System the first applicant was entitled to score 70 points. I am satisfied that he took these matters into account and that, having done so, he concluded that there was no sufficient reason why he should not apply the minimum standard that prevailed after the change in June 1988.

39. The discretion which Mr Caspersonn was exercising under s.11A of the Migration Act is unfettered: Minister for Immigration and Ethnic Affairs v. Conyngham (1986) 11 FCR 528 at pp 538-9; see also Minister for Immigration and Ethnic Affairs v. Lebanese Moslem Association (1987) 17 FCR 373 at p 383 and Gunaleela v. Minister for Immigration and Ethnic Affairs (1987) 15 FCR 543 at pp 558-560. The statute does not prescribe matters which a decision-maker is bound to take into account in making a decision under that section nor does it specify matters which he is bound not to consider. In those circumstances, it is a matter for the decision-maker to determine what matters are relevant to the decision-making process and it is for him to determine the weight to be given to each of those matters: Minister for Aboriginal Affairs v. Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 per Mason J. (as he then was) at pp 39-42. Mr Caspersonn was, in my opinion, clearly entitled to consider the first applicant's application by reference to the minimum standard that prevailed after the change made in June 1988. There is no basis for saying that he erred in failing to apply the minimum standard that prevailed prior to the change. He was certainly not required by law to apply that standard although he may have been free to do so if he considered it material to the exercise of the wide discretion vested in him. Further, there is nothing in the evidence to found the submission that the first applicant had a legitimate expectation that the application would be dealt with in accordance with the minimum standard that prevailed prior to June 1988.

40. Against the possibility of the primary submission not being accepted by the Court, counsel for the applicants submitted that, in applying the Points Scale System, Mr Caspersonn fell into error in determining the number of points to which the first applicant was entitled in respect of the factors "Employability" and "Skills". It was submitted that Mr Caspersonn had failed to take into account relevant considerations. Those considerations were the first applicant's qualifications, his work experience in Bangladesh in the accountancy field and the material relating to the job offer that was open to him. It was said that Mr Caspersonn failed to measure the first applicant's qualifications for the position which had been offered to him against the requirements of that position and had failed to take into account that the prospective employer regarded the first applicant as having the necessary qualifications and experience to carry out the duties of that position. As a corollary it was said that Mr Caspersonn had asked himself an irrelevant question, namely whether the first applicant had tertiary qualifications as an Accountant which would be recognised as such in Australia. It was further submitted that had Mr Caspersonn properly applied the Points Scale System to the first applicant he would have awarded him a larger number of points than the 15 awarded in respect of the factor "Employability" and a larger number than the 10 points awarded in respect of the factor "Skills", resulting in the total points awarded meeting the minimum standard that prevailed after the change made in June 1988.

41. In my opinion, these submissions cannot be accepted. Much of what was put involved, in my opinion, a mis-reading of the categories in the Points Scale System and the guidelines as to their application. It is sufficient to say that the evidence clearly establishes that Mr Caspersonn took into account the first applicant's qualifications and work experience and the fact that he had open to him an offer of employment in Australia. Indeed, Mr Caspersonn clearly made his assessment of the points to which the first applicant was entitled on the basis of accepting as true all that had been put before him in the migration application and its attachments in relation to those matters. I am unable to conclude that there was any misunderstanding on his part of the factual material put before him or that he made any error in applying the Points Scale System to those facts. In those circumstances, the question whether a departure on his part from the Points Scale System or the guidelines relating to its application, if such a departure had been made, would have provided a basis for relief under the Judicial Review Act does not arise.

42. Finally, it was submitted that there had been a denial of procedural fairness in that, before a decision was taken upon the application, the first applicant should have been informed of the change in the minimum standard under the Points Scale System and given an opportunity, either at interview or otherwise, to supplement the information in support of his application.

43. A similar argument, though in a different statutory context, was considered and rejected by Wilcox J. in Peninsula Anglican Boys' School v. Ryan [1985] FCA 387; (1985) 7 FCR 415. At p 430, his Honour said:

"There is, however, a more fundamental reason for holding
that the failure by the Minister to give warning of the new
policy was not unfair. It is settled law that, in cases to
which the obligation of natural justice applies, a decision-maker
must give fair warning to an affected person of the
existence and nature of adverse allegations of fact; in that
way ensuring to the person an opportunity of meeting those
allegations before any decision is made: see Kanda v.
Government of the Federation of Malaya (1962) A.C. 322 at
337-338; Kioa v. Minister for Immigration and Ethnic Affairs
(1984) 4 FCR 40 at 54-55. But, so far as I am aware,
there is no case in which it has been held that a decision-maker
is bound to give an affected person notice of the
policy considerations likely to be taken into account in
arriving at his or her decision. This is not surprising.
To impose such an obligation would be to impose a serious
impediment to efficient decision-making. Policy
considerations are almost infinitely variable. In one case
they may loom large, in another they may be insignificant.
The relevance and weight of policy considerations may not be
apparent until the matter is fully considered by the
decision-maker. A rule which required the then imminent
decision to be deferred whilst notice was given of the
policy considerations which appeared to be relevant would
be, at least, highly inconvenient. Moreover, policy
considerations change from time to time; sometimes quickly
and frequently. The inconvenience and delay attendant upon
giving notice of each shift of wind is obvious."

44. In Kioa v. West [1985] HCA 81; (1985) 159 CLR 550, Mason J. (as he then was) said at p 587:

"In the ordinary course of granting or refusing entry
permits there is no occasion for the principles of natural
justice to be called into play."

The same must be true in the ordinary course of granting or refusing, under s.11A of the Migration Act, a visa to enable a person to travel to Australia with a view to an entry permit being granted to him on his arrival in Australia authorizing him to enter Australia for the purpose of settling here as a permanent resident. In this connection it may be noted that par.(d) of Schedule 2 to the Judicial Review Act excludes from the classes of decisions to which s.13 of that Act applies decisions under the Migration Act, being decisions in connection with the issue or cancellation of visas. Neither the circumstance that there was considerable delay in dealing with the first applicant's application nor the other matters to which counsel for the applicants drew attention are, in my opinion, sufficient to warrant a different conclusion.

45. Before parting with the case I should mention a procedural matter. Mr Caspersonn is not named as a party respondent to the application. However, as the decision under review was made by him as an "authorized officer" and not as a delegate of the Minister, it may be that he should have been joined as a respondent, there being, so far as I am aware, no provision in the Act corresponding, in relation to an authorized officer, to the provisions of sub-s.66D(2) in relation to a delegate. However, as the question was not raised at the hearing, I shall say no more about it.

46. For the reasons set out above the application is dismissed. The applicants must pay the respondents' costs of the application.