Re Haider El-Sayed v Minister of Immigration Local Government and Ethnic Affairs [1991] FCA 63 (5 March 1991)

FEDERAL COURT OF AUSTRALIA

Re: HAIDER EL-SAYED
And: MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS
Nos. G519, G616 and G730 of 1990
FED No. 63
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Administrative Law - immigration - whether jurisdiction to review a decision made under the prerogative - refusal of refugee status - whether a breach of the rules of natural justice.

Migration Act 1958 (Cth) ss.6, 6A.

HEARING

SYDNEY
5:3:1991

Counsel for the applicant: Mr G. Johnson

Solicitors for the applicant: Parish Patience

Counsel for the respondent: Mr P. Roberts

Solicitor for the respondent: Australian Government Solicitor

ORDER

The applications be dismissed with costs.

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

DECISION

Mr Haider El-Sayed is a Lebanese citizen who arrived at Sydney airport on 10 October 1989. Despite his holding a visa to enter Australia for a period of 7 days, Mr El-Sayed was refused an entry permit and was put back upon the aircraft. As Mr El-Sayed complained that he was ill, the captain of the aircraft refused to fly until he was removed. Mr El-Sayed was then taken in custody, first to South Sydney Hospital, where he was kept under observation for 2 hours, and then to the Villawood Detention Centre where he has since remained in custody. By the operation of the then s.36A(8) of the Migration Act 1958 (Cth) ("the Act"), Mr El-Sayed was deemed for the purposes of the Act as not thereby having entered Australia. The visit to the hospital did not preclude the operation of the provision. While at Villawood, Mr El-Sayed sought refugee status and the grant of an entry permit. On 13 November 1989, he lodged a formal application for residency. There was a long delay in the resolution of these applications, apparently because of questions of national security which were ultimately resolved in Mr El-Sayed's favour and with which we are not now concerned.

2. On 19 October 1990, Mr M.A. Sullivan, a delegate of the Minister for Immigration, Local Government and Ethnic Affairs for the purpose of the determination of refugee status, made a decision that Mr El-Sayed did not have the status of refugee within the meaning of the Convention relating to the Status of Refugees made at Geneva on 28 July 1951 or the Protocol Relating to the Status of Refugees made at New York on 31 January 1967. On 12 December 1990, Mr P. Finley, presumably an officer of the Department of Immigration, Local Government and Ethnic Affairs, made a decision under s.6(1) of the Migration Act 1958 (Cth) ("the Act") refusing to grant an entry permit to Mr El-Sayed.

3. In Proceedings G519 of 1990, filed on 7 September 1990, Mr El-Sayed and his sister, Mrs Zahra Hammoud, sought an order of review with respect to the refusal of an entry permit on 10 October 1989, the day of his arrival, an order that Mr El-Sayed be released from detention and an order that the respondent be restrained from taking any action under the Act to enforce the departure of Mr El-Sayed from Australia. In Proceedings G616 of 1990 filed on 29 October, Mr El-Sayed and Mrs Hammoud sought an order, inter alia, that the decision on refugee status made on 19 October 1990 be set aside. In respect of that application, the respondent has filed a notice contending that the Court has no jurisdiction. In Proceedings G730 of 1990 filed on 10 January 1991, Mr El-Sayed and Mrs Hammoud sought an order, inter alia, setting aside the decision made on 12 December 1990 refusing the grant of an entry permit.

4. The relevant provisions of the Migration Act 1958 (Cth) ("the Act") appear, for our purposes, in reprint No. 2. See s.6 of the Migration Legislation Amendment Act 1989 (Cth) which introduced s.11ZL into the Act.

5. In Minister for Immigration and Ethnic Affairs v Mayer [1985] HCA 70; (1985) 157 CLR 290, Mason, Deane and Dawson JJ., Gibbs C.J. and Brennan J. dissenting, held that s.6A(1) of the Migration Act impliedly conferred upon the Minister for Immigration and Ethnic Affairs the function of determining whether an applicant for an entry permit, to whom s.6A of the Act applied, had the status of a refugee and that the Minister's determination of that matter was made under an enactment and was a reviewable decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). Subsequently, in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, in the circumstance that an applicant who had entered Australia sought refugee status and a temporary entry permit with a view to subsequently making an application for residency status, to which application s.6A would apply, Dawson and Toohey JJ. expressed the view that the decision made as to refugee status was a decision made under an enactment for the purposes of the ADJR Act, Gaudron and McHugh JJ. considered that the decision was conduct engaged in for the purpose of making such a decision, while Mason C.J., without expressing a concluded view, thought that there was a strong case for holding that the decision amounted to a decision under s.6A(1) and, if not, conduct engaged in for the purpose of making such a decision. What was there said with respect to "conduct" may, however, have to be read in the light of the distinction subsequently drawn by Mason C.J., with whom Brennan and Deane JJ. agreed in this respect, between a decision, either reviewable or not reviewable under the ADJR Act and conduct leading to the making of a decision. The ambit of "conduct" was limited by Mason C.J. to matters of a procedural nature. See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 64 ALJR 462 at 471.

6. Between the decisions of the High Court in Mayer and Chan, Morling J. held in Gunaleela v Minister for Immigration and Ethnic Affairs (1987) 14 FC.R. 591 that decisions as to refugee status with respect to persons who arrived at Sydney airport without a visa, who then sought refugee status in Australia and whose applications for refugee status were dealt with promptly, were not persons who were entitled to seek relief under the ADJR Act. Morling J. held that, as the applicants had been held in custody and were deemed by s.36A(8) of the Act not to have entered Australia, they were persons to whom s.6A of the Act did not apply and that the decision as to refugee status was not made under an enactment. His Honour did, however, go on to consider whether there had been any error in the making of the decision and held that no error had occurred. That decision was upheld by Sweeney, Lockhart and Gummow JJ. in Gunaleela v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 543. At p 556, the Court upheld the view that there were no decisions under s.6A of the Migration Act and therefore no decisions reviewable under the ADJR Act. The Court went on to say that what had occurred may have been conduct engaged in for the purpose of making such decisions but that it was not necessary to decide that point as there was no error of law made in the course of dealing with the issue of refugee status. See p 557.

7. In the light of these authorities, Mr P. Roberts, counsel for the Minister, submitted that the Court had no jurisdiction to examine the decision as to refugee status made in October 1990. However, on any view of the authorities, this Court has jurisdiction to review the decisions made not to grant entry permits to Mr El-Sayed. The Court may also examine the circumstances surrounding the intermediate decision, the refusal to grant refugee status, insofar as it is necessary to do so for the purpose of reviewing the decision refusing an entry permit made on 12 December 1990. See McCabe v Federal Commissioner of Taxation (1990) 90 ATC 4968.

8. Moreover, this Court has an additional source of jurisdiction, under s.39B of the Judiciary Act 1903, in respect of matters in which orders in the nature of prohibition or mandamus or an injunction are sought against an officer of the Commonwealth. Such a claim may be made with respect to a refusal to grant refugee status or territorial asylum, though the decision be made under the prerogative, not under an enactment. See Minister for Arts Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 at 224. Mr El-Sayed is physically present in Australia, though deemed by s.36A(8) not to have entered Australia for the purposes of the Migration Act. He is entitled to the protection of the law. The claim made is not non-justiciable.

9. As the Court has this jurisdiction, it is necessary to examine whether any error occurred in the decision-making process. If such an error is identified it will be necessary to examine more closely whether it is reviewable by the Court and whether the relief claimed may be granted.

10. It is submitted that the officers of the Commonwealth who dealt with Mr El-Sayed's applications were under administrative law duties to comply with the rules of natural justice, to take into account all material considerations known which were or ought to have been known, to put out of consideration matters which were irrelevant to a proper consideration of Mr El-Sayed's case and to deal with his applications without bias and without improper purpose.

11. Whether the duties exist was discussed in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 and by the Full Court in Gunaleela's case. The better view is, I think, that the duties exist in every case in which a decision of this type is made but that, having regard to the circumstances in which the decision is made, the urgency of the decision and the speed in which action is taken, the content of the duties may diminish to nothing, to use the expression of Brennan J. in Kioa's case at p 615. This was what Mason J. had in mind when, at p 587 he said:-

"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."

This is because of the discretionary nature of the decision to be made and the circumstances in which the decision is made. Mason J. did not indicate that the principles of natural justice did not apply, but simply that, if an application for an entry permit is determined taking into account the material that an applicant for a permit puts forward, that ordinarily is sufficient compliance with the rules of procedural fairness. In Gunaleela's case, the applicant arrived at an airport without a visa or with a visa improperly obtained, and her applications for an entry permit or for refugee status were speedily determined adversely to the person seeking entry. Thus, in Gunaleela, both at first instance and on appeal, the Court did not consider there had been any reviewable error made in the course of the decision-making process.

12. In the present case, the decision as to refugee status was made one year after Mr El-Sayed's arrival at Sydney airport and after his detention for twelve months at Villawood and long after he had lodged a formal application for residency. The duties I have mentioned undoubtedly applied and the principles of natural justice had substantial content. There was no element of urgency affecting the consideration of the matter and much had passed between the Department of Immigration, Local Government and Ethnic Affairs on the one hand and Mr El-Sayed and his solicitors on the other.

13. Mr El-Sayed is 26 years of age. Most of his family live in Beirut where he grew up. In about 1987, Mr El-Sayed decided to leave Lebanon and to come to Australia where his sister, Mrs Hammoud, lives. Mr El- Sayed went to Cyprus and applied for a visa to enter Australia. That application was refused. After some months, Mr El-Sayed returned to Beirut. Subsequently, he took the opportunity of going to Nigeria to work as a sound recordist. While there, he paid a sum equivalent to $A150 to a person who obtained for him a visa to visit Australia for seven days. The application for the visa, which was signed in Mr El- Sayed's name but not by him, contained false particulars such as the fact that Mr El-Sayed was married and that he was visiting Australia on business and that he wished to visit also New Zealand and Vanuatu. Mr El-Sayed knew that these matters set out in the application for the visa were false. It appears that visas were being granted by an official in Nigeria for money but it has not been shown what, if anything, Mr El-Sayed knew of this practice. Having obtained the visa, Mr El-Sayed flew to Sydney via Rome.

14. On his arrival at Sydney airport, Mr El-Sayed was questioned briefly by an officer. He did not claim refugee status but rather that he intended to return to Lebanon after a short visit to Australia. Later the same day, Mr El-Sayed was questioned by an officer with the assistance of an Arabic linguist. The following questions and answers inter alia were recorded:-
7. Who are your contacts in Australia
7A. El Sayed answered: I have numerous relatives in Australia, mainly

from the three families: Hammoud, Bashir and Sayed. Some of my
relatives are: Ahmed Hammoud, Hammoud Hammoud, Ahmed Moussa
Hammoud, Ali Moussa Hammoud, Ali Hammoud and Moussa Bashir.

8. Have you ever had any trouble with police/military forces in Lebanon?
8A. El Sayed answered: No
9. You escaped from Lebanon to Cyprus because you were in fear of your life?
9A. El Sayed answered: I left of my own accord. In fact I returned to

Lebanon, by sea, on 15 June 1989.

10. What problems have you had with militias in Lebanon?
10A. El Sayed answered: In 1984 I was detained by Amal during my last

visit to Beit Lif. Amal suspected me of being a collaborator with
Israel. My family is known as having been supporters of Kamel
Assaad previous speaker of the Lebanese Parliament.
In 1986 members of my family and I were detained because of family
support for Asaad.

11. Why did you come to Australia.
11A. El Sayed answered: My parents had two sons. My older brother is

infertile. Consequently I am the only one who can continue the
family line. It would be safer for me to do so in Australia rather
than Lebanon.

12. From whom is your life in danger?
12A. Amal.
13. Why is this?
13A. The villagers of Beit Lif are split into Amal and Kamel Asaad

supporters. Only 10-15 people there would support Hizballah.
During the period 1983/84 a villager from Beit Lif, Hassan
Moustafa, murdered by Hammoud Hammoud. Moustafa's family and my
own expelled Hammoud and his family from Beit Leif. Since then my
family has problems with Amal.

14. That incident occurred some years ago. Recently Amal has been

fighting Hizballah and Christian forces in East Beirut. You would
not be in danger from Amal now?

14A. El Sayed answered: This year cousins of mine have been beaten up,

shot and had their cars bombed by members of Amal from Beit Lif.

15. Amal has been fighting Hizballah this year. I suggest that the

attacks on your cousins are because they belong to Hizballah.

15A. El Sayed answered: Members of my family do not belong to

Hizballah. In fact, Hizballah regarded Kamel Asaad as a traitor
even before Amal.

Mr El-Sayed did not then seek refugee status. He still sought to enter under the seven day visa, though it is clear from his answer to question 11 that he intended to remain in Australia.

15. An uninformative application for refugee status was completed on 11 October 1989. On 19 October, Mr El-Sayed's solicitors, Parish Patience, wrote a long letter containing a statement from Mr El-Sayed setting out events which were said to amount to persecution. Of particular significance were an event said to have taken place in March 1985 when Mr El-Sayed was stopped by members of the Amal militia group and an event in 1988 when Mr El-Sayed was stopped while driving his car and taken to a detention centre by Amal, held for three months, beaten and subjected to electric shocks and the like. Mr El-Sayed said that he escaped on 31 December 1988 during a New Year's eve party. The letter set out a translation from Mr El-Sayed's statement in Arabic. Who was involved in writing the original statement was not explained.

16. Mr El-Sayed was interviewed at length on 12 October 1989.

17. On 9 November 1989, an application for the grant of resident status was completed. This was accompanied by a letter from Parish Patience dated 9 November 1989 which adopted the contents of the letter of 19 October 1989 and of a further letter of 30 October 1989.

18. Subsequently, Parish Patience supplied to the Department a copy of a letter purporting to be written by the Amal movement to Mr El-Sayed's father in Beirut stating, inter alia, that "It is your responsibility if you do not hand him over to us immediately once you have known his place of residence, so that he would be punished for his dealings with a Political Party opposed to Amal movement in Lebanon." Also supplied was a document purporting to be a record of Mr El-Sayed's imprisonment by the Amal movement on 14 November 1988. This document was said by Parish Patience to be a receipt for Mr El-Sayed's personal belongings which was given to him when he was imprisoned.

19. Because of Mr El-Sayed's claims that he had been tortured, the Department of Immigration, Local Government and Ethnic Affairs had Mr El-Sayed examined by Dr R. Bull, who reported:-

"When questioned about the exact nature of his physical and
psychological abuse Mr El Sayed stated his English was poor and he
did not fully understand the questions. However he states he was
subject to beatings about 2-3 times weekly for about a month last
year (1988). It was alleged the beatings were across his back and
were carried out with a large batten about a metre long.
...
On examination there was some evidence of possible trauma to back
but this was not likely to have been carried out with a large
object. There was no evidence of multiple trauma."

20. Mr El-Sayed was examined again by Dr Bull on 6 December 1989, this time with the aid of an interpreter. Dr Bull reported:-

"On examination, as previous there was some evidence of past
trauma to his back was a brownish discolourisation about 4 mm wide
and about 12 cm long on the left side of his back (2 lesions) and
a shorter lesion in the axillary line.
The lesions were not consistent with injuries from a rifle butt
nor was there evidence of multiple trauma or electric burns. At
his previous examination he stated the beatings were carried out
with a large batten."

21. Mr El-Sayed's solicitors obtained a report from Dr Ruth Tarn, MBBS, who reported on the letterhead of STARTTS, the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors. This report was three pages in length. No physical examination appears to have been made of Mr El-Sayed. Most of the report contains the content of an interview held by Dr Tarn with Mr El-Sayed on 29 November 1989. Dr Tarn concluded:-

"The symptoms described are those of a post traumatic stress
disorder and in my opinion Mr El Sayed has been psychically and
psychologically tortured."

22. Parish Patience thereafter remained in communication with the Department and sent several letters over the period. Mr El-Sayed was interviewed again at length on 9 April 1990.

23. On the material before it, the Determination of Refugee Status Committee (DORS) recommended that refugee status not be granted. The minutes of the meetings of the DORS Committee show that the members constituting the Committee rejected much of what Mr El-Sayed claimed due to many discrepancies in his statements and also because of the general circumstances in which he lived in Beirut. Thus, even on Mr El-Sayed's own story, he had had no difficulty with the army or any militia in Lebanon other than Amal, indeed, in the course of his work as an electrician, Mr El-Sayed travelled widely in both West and East Beirut and in the country; he remained in West Beirut for two months at his sister's house after his alleged escape from detention in 1988; he travelled to Cyprus and back of his own volition in 1989, then he travelled to Nigeria without difficulty; and no claim for refugee status was made in Cyprus or in Nigeria or, indeed, when Mr El-Sayed arrived at Sydney airport.

24. In coming to his decision, Mr Sullivan took much the same view. He concluded that, although Mr El-Sayed may have been detained by Amal at some stage, perhaps in 1985 or 1986, it was unlikely that he had been detained as alleged in 1988 and he considered that Mr El-Sayed did not reasonably hold any fear of a real risk of persecution. Mr Finley took a like view.

25. No substantial challenge has been or could be made to the refusal of an entry permit on 10 October 1989. The challenge was directed to the decisions of 19 October 1990 and 12 December 1990. The case which has been put on behalf of Mr El-Sayed is that, if Mr El-Sayed had been detained and tortured in 1988 as he alleged, it was possible or probable that the trauma he suffered had disturbed his psychological state and that this explained all the discrepancies in his statements and his failure to act in a straightforward manner as soon as he arrived at Sydney airport.

26. In this light, many grounds of challenge were relied upon. They were encompassed within the following particulars of the more formally expressed grounds:-

"1. There was expert medical opinion that the First Applicant was
tortured and had post traumatic stress disorder. There was no
medical expert evidence that he had not been tortured or that he had
no such disorder.
2. The material or contentions relied upon to reject the First
Applicant's allegation that he was tortured was insufficiently
probative to overcome such expert medical evidence."
However, the decision-makers, Mr Sullivan and Mr Finley, were not
bound to accept Dr Tarn's assessment. Dr Tarn made no physical
examination but simply expressed a conclusion based on a version of
events which Mr El-Sayed had had time to develop. Nor did Dr Tarn
discuss any stress which Mr El-Sayed may have been displaying as a
result of his detention and his anxiety to be free. The weight to
be given to Dr Tarn's report was a matter for the decision-makers.
Dr Bull's reports were material to be taken into account and the
decision-makers were entitled to give weight to them.
"3. There was no evidence explaining the reasons for detention and
torture of the First Applicant other than his own account that this
was persecution by Amal for his non-commitment to Amal or for o ther
reasons of actual or perceived:
- membership of a social group or
- political opinion."
It was submitted that there was a mark on Mr El-Sayed's back and
there was no evidence of any explanation for it other than the
torture for the reasons which Mr El-Sayed had given. However, the
mark on Mr El-Sayed's back was simply one matter to be taken into
account. It was of itself too slight a matter to establish a
well-founded fear of persecution or compassionate or humanitarian
circumstances.
"4. Credibility factors of the kind relied upon to found the decision
are irrelevant to the determination of refugee status.
5. It was illogical, unfair and a failure to have regard to relevant
considerations to expect the applicant on each occasion he was
interviewed to give a complete, accurate account of his entire
history if:
(a) he had been tortured and had a post traumatic stress disorder
secondary to detention, interrogation and torture;
(b) the process of being detained and interrogated was such as to
in fact aggrevate (sic) that condition;
(c) English was not his first language;
(d) His answers were generally responsive to questions asked;
(e) His answers were on relevant matters not contradictory, so much
as incomplete;
(f) length of time in custody."
I have read Mr Sullivan's and Mr Finley's reasons for decision.
Credibility was, of course, a factor to be taken into account for it
was relevant to the ascertainment of facts. I am satisfied that Mr
Sullivan and Mr Finley gave fair and careful consideration to the
whole of Mr El-Sayed's circumstances, including the matters mentioned.
"7. The delegate did not consider, investigate or put to the applicant
so the applicant could deal with:-
(a) the question of whether, if the applicant had been tortured as
alleged, such evidence of multiple trauma or electric shocks as
was found lacking by Dr Bull on examination would in fact still
be present so long after torture of the kind alleged.
...
9. There was no evidence in support of any non-torture explanation for
the lesions noted by Dr Bull."
I have already dealt with the point that the lesion on Mr
El-Sayed's back did not, of itself, establish torture as alleged by Mr
El-Sayed or that Mr El-Sayed had a well-founded fear of persecution.
Certainly, Dr Bull did not say that if Mr El-Sayed had been tortured
as he alleged, he would still have marks of that torture. But what
inferences should be drawn from Dr Bull's report was a matter for
the decision-makers, for they were the judges of the facts.
"7. The delegate did not consider, investigate or put to the applicant
so the applicant could deal with:-
...
(b) whether Dr Tarn would in fact have adhered to her opinion if
the whole of what was before the decision-maker was put to
her."
Natural justice did not require that the whole of the material
before the decision-makers should have been put to Dr Tarn. The
question before the decision-makers did not turn principally upon Dr
Tarn's view. Dr Tarn's report was simply one of the factors which
the decision-makers had to take into account. It was also submitted
that there was a breach of the principles of natural justice in that
the decision-makers did not advise that they had in mind not to
accept Dr Tarn's opinion. But that approach misunderstands the
principles of natural justice. Those principles, when applicable,
require that a fair opportunity be given to affected persons to put
forward their case. That opportunity was given to Mr El-Sayed. Mr
Sullivan and Mr Finley each had the duty of making a decision on the
material before him, not the duty of discussing each element of his
reasoning process with Mr El-Sayed and his advisers.
"10. Certain facts appear to have been taken into account which did not
exist:-
(a) Payment of bribe for visa;
(b) Sending of passport from Lebanon to Nigeria (without
applicant) for entry of visa;
(c) Involvement/membership in Hezbolloh."
I need not discuss these matters in detail. They were peripheral
matters. Mr Sullivan and Mr Finley properly took into account as
part of the background material that Mr El-Sayed had obtained a
seven day visa after payment of a sum of money without himself
attending at the Migration Office in Lagos and pursuant to an
application form which contained false particulars. Those matters
did not establish that Mr El-Sayed was not a refugee but they were
part of the background history to be taken into account. Mr
Sullivan and Mr Finley did not rely upon an involvement in or
membership of Hezbolloh. The material merely raised the question
of Hezbolloh as a possible reason why Mr El-Sayed's family may
have had problems with Amal. Other material rejected any such
involvement by Mr El-Sayed.
"11. The decision-maker failed to have regard to the underlying
consistency of the First Applicant's claim that he had suffered
detention, interrogation and torture for convention-related
reasons and became preoccupied with fine-tooth combing the
applicant's statements for differences of detail."
I am satisfied that Mr Sullivan and Mr Finley gave a fair
consideration to Mr El-Sayed's claims and did not reject the
application for refugee status because of fine-toothcombing
statements for differences of detail. Certainly, the differences
in detail were relevant and were taken into account and brought Mr
Sullivan and Mr Finley to the view that the 1988 incident had not
occurred. Other decision-makers may have come to a different
view. But Mr El-Sayed had travelled widely in East Beirut and
West Beirut in the course of his work as an electrician, he had
had no difficulty with any army or militia other than Amal, he had
lived with his sister in Beirut even after the alleged 1988
incident and he had travelled to and from Cyprus. These matters
led to the view that Mr El-Sayed did not leave Lebanon because of
a well-founded fear of persecution in the Convention sense but
because the difficulties and dangers of living there and of
carrying on a trade and of raising a family were such that Mr
El-Sayed preferred to migrate to Australia.
Mr Sullivan and Mr Finley doubted the authenticity of the two
documents purporting to emanate from Amal. They were entitled to
do so as the documents were produced at a late stage and were not,
on their face, patently authentic.
"12. The delegate misapprehended or misapplied to the facts as found,
the test to be applied in the determination of refugee status.
Alternatively, he failed to consider the appropriate test."
Mr Sullivan applied the test laid down in Chan's case. I see no
error of law in his approach. The decision which he made was open
to him on the facts before him.

27. In his decision rejecting the application for residency status on compassionate and humanitarian grounds, Mr Finley was, in the exercise of his discretion to grant or refuse an entry permit under s.6(1) of the Migration Act, entitled to give substantial weight to the circumstances in which Mr El-Sayed had obtained the visa for travel to Australia. He was also entitled to take into account, as he did, that Mr El-Sayed's application for refugee status had been refused.

28. A ground was relied upon that, in making his decision, Mr Finley failed to take into account that Mr El-Sayed had been detained in custody since October 1989 and had failed to consider the periods of time that Mr El-Sayed had had to wait while in custody pending determination of his applications and had failed to take into account the consequences thereof having regard to his post traumatic stress disorder. However, these matters were taken into account by Mr Finley. The weight which he gave them was, of course, a matter for him.

29. For these reasons, I find no error in the decisions taken or in the processes leading to them. It is unfortunate that more than 12 months was allowed to elapse in the decision-making process. Indeed, Mr Sullivan's and Mr Finley's decisions were not taken until after the institution in this Court of proceedings G519 of 1990. Good administration demands reasonably prompt action. Delays such as occurred in this case are highly undesirable and should be avoided whenever possible. But I make no criticism of what occurred in the present case, for the circumstances have not been examined.

30. For the reasons I have given, the applications will be dismissed with costs.