Re Jamilo Bano v Minister of Immigration, Local Government and Ethnic Affairs [1993] FCA 43; (1993) 30 ALD 863 (Extract) (19 February 1993)

FEDERAL COURT OF AUSTRALIA

Re: JAMILO BANO
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. N G260 of 1992
FED No. 135
Number of pages - 17
Administrative Law
[1993] FCA 43; (1993) 30 ALD 863 (extract)

COURT

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

CATCHWORDS

Administrative Law - judicial review - immigration - refusal of grant of resident status - decision based on assumptions of fact - applicant's credit doubted - whether interview required - natural justice/procedural fairness - whether proper genuine and realistic consideration given to application - whether decision-maker failed to take into account relevant considerations - whether decision-maker took into account irrelevant considerations.

Administrative Decisions (Judicial Review) Act 1977

Migration Act 1958, s.6A

Sacharowitz v. Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 2; (1991-1992) 33 FCR 480

Kioa v. West [1985] HCA 81; (1985) 159 CLR 550

Surinakova v. Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 596; (1991-1992) 33 FCR 87

Curragh Queensland Mining Limited v. Daniel and Ors. [1992] FCA 44; (1992) 34 FCR 212

HEARING

SYDNEY, 2 February 1993
19:2:1993

Counsel for the Applicant: Mr S. Gageler

Solicitors for the Applicant: Elsworthy Jones

Counsel for the Respondent: Miss R. Henderson

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. The decision under review be set aside.

2. The applicant's application for reconsideration be remitted for determination according to law.

3. The respondent pay the applicant's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

BEAZLEY J. This is an application, brought under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act"), to review a decision of a delegate of the respondent made on the recommendation of the Immigration Review Panel ("IRP") on about 27 April 1992, refusing to grant the applicant a permanent entry permit.

2. The applicant was born in Fiji on 5 December 1961. It seems that she has never been married and is described as illiterate and uneducated. She has never worked and until her parents migrated to Australia in early 1989 she had lived with them and was totally dependent upon them. After her parents left Fiji, she lived with her sister and brother-in-law and their family. Her parents continued to support her by sending her clothing and money.

3. The applicant first entered Australia on 18 September 1989. At that time, in addition to her parents, four of her six brothers and sisters were permanent Australian residents. A brother, and the sister referred to above, remained in Fiji. In her application for a visa she stated that she wished to come to Australia for medical treatment. Upon entry, she was granted a temporary entry permit, valid for one month. This was subsequently extended until 28 November 1989.

4. On 28 November 1989, the applicant applied for the grant of resident status on strong compassionate grounds under s.6A(1)(e) of the Migration Act 1958 which, at that time provided:

"(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".

5. The reasons advanced by the applicant in support of her application for permanent resident status were, in summary: she was totally dependent upon her parents; she had never lived on her own in Fiji; she had no means of supporting herself in Fiji; she had no home in Fiji; she had no-one willing to provide her with any form of assistance there, whereas, in Australia, her family were assisting her; her sister and her family, with whom she had resided in Fiji, had found her a financial burden, her brother-in-law taking all the money her parents had sent her; her "personal situation" had become increasingly difficult due to friction with her sister and her family; she could get ill and might not be able to get the medical treatment she required there; her mother and family in Australia would be worried and concerned for her wellbeing and health; and she would be "depressed and unhappy in Fiji" and "... could get very ill from the constant deprecion (sic) and worry" of being on her own.

6. The application was supported by a number of statutory declarations from the applicant's family, and by a number of medical reports. In one statutory declaration, Siras Ali, the applicant's sister, stated "I look forward to discussing my sister's application with you" and for the Department not to hesitate to contact her if further information was required. No particular matter was suggested as requiring further discussion. Counsel for the applicant submitted that this amounted to a request for an interview, which should have been granted. The submission as originally made was that there should have been an interview with the applicant, but was later expanded to a submission that the interview should have been with the applicant or her family. I shall deal with this submission later.

7. The original medical condition which caused the applicant to come to Australia was diagnosed as endometriosis. This condition was treated by Dr Zipser, gynaecologist, and apart from recommended follow up management, which he suggested could be better undertaken in Australia, no on-going treatment was required.

8. However, in about late 1990, the applicant came under the care of Dr Amar, psychiatrist. He diagnosed her as suffering from a "situational adjustment reaction". She had manifestations of a mild anxiety/depression and of psychogenic vomiting. During the course of counselling with Dr Amar, the applicant disclosed an incident which, she alleged, made her fearful of being molested or sexually assaulted by her brother-in-law in Fiji. In a report dated 17 January 1991, Dr Amar, who described the applicant as "a simple naive, uneducated lady", stated that if the applicant was left alone she could be vulnerable to psychological and social problems and was in need of family care and support. However, he did not consider she had any major psychiatric or physical problems. Dr Amar was of the opinion that "Any attempt to force her to go back to Fiji can trigger a major Depressive or Psychotic episode with possibility of a suicidal attempt". Dr Amar confirmed his opinion in a further report dated 14 December 1991.

9. The applicant had also consulted a consultant physician and gastroenterologist, Dr Grace Chapman, who concluded that the applicant's problems were "largely induced by severe psycho-social stress, (with separation from her parents playing a large part in this) but gastro oesophageal reflux disease is superimposed on this".

10. On 26 August 1991, the Department wrote to Mr John Sweeten who had provided a statutory declaration and other information in support of the application for resident status. Mr Sweeten was the applicant's prospective brother-in-law. The Departmental letter sought clarification of certain aspects of the application. These matters related to the applicant's dependency upon her parents, her intentions as to marriage, and whether the parents had intended to include the applicant in their application for migration. The parents in their migration application had made no mention of the applicant's dependency and the reasons for this were requested. In addition, an explanation was sought as to whether the applicant was supposed to have been included in the parents' application and if so, why the applicant had been left in Fiji. Information was also sought as to the applicant's intended marriage.

11. Mr Sweeten provided a response to these matters in a letter dated 6 September 1991. He gave an explanation as to the confusion which had arisen, both as to the applicant's dependency upon her parents and as to whether they had intended to include her in their application for migration. As to the question of the applicant's proposed marriage Mr Sweeten said: "As Miss Bano's application is based on compassionate grounds and not marriage grounds, the point regarding Mr Michael Trimmer (who Miss Bano had advised she intended to marry) is irrelevant".

12. The Department arranged a medical assessment by the Commonwealth Medical Officer who diagnosed a mild anxiety depression, which "will improve if she is allowed to live with her parents which I agree with her psychiatrist Dr Amar report (sic)."

13. The application for resident status was rejected by the Department and the applicant was so advised by letter dated 18 February 1992. Attached to the letter was an Assessment Report and Decision Record ("the assessment report"). It is clear from the assessment report that the grounds advanced by the applicant in her application were not only rejected on their merits, but the original decision-maker also had doubts as to the applicant's credibility.

14. The applicant applied to the IRP for a review of the decision. At that time, the IRP had been established administratively within the Department to provide a system of internal review of decisions made by officers of the Department. The application to the IRP was made by the applicant's migration agent in a letter dated 6 March 1992 ("the review application"). The grounds raised in the review application were dealt with in a departmental report to the IRP, prepared by an officer of the Department ("the reviewing officer"). The IRP also had before it and considered the assessment report and the information provided by or on behalf of the applicant in support of her application for resident status. The IRP recommended to the delegate that the application for resident status be refused. This recommendation was accepted. However, before dealing with the delegate's decision, it is necessary to consider the decision of 18 February 1992, as the applicant submitted that the IRP did not give the application for review proper, genuine and realistic consideration on its merits, but rather adopted the decision under review.

15. In rejecting the application, the original decision-maker found that if the applicant did not wish to live with her sister in Fiji, whether for financial reasons or because of the alleged sexual assault, she still had a brother and a number of uncles and aunts living there, "at least one of whom must surely wish to be of assistance to her". In this regard, the Department had ascertained from the applicant's parents' migration file that the applicant had seven married aunts and uncles in Fiji. It was thus concluded that the applicant could find accommodation with some other member of her family. The original decision-maker also concluded that the applicant could find employment in Fiji, as her brother-in-law had told the Department she had good cooking skills and he was able to employ her in Australia in his restaurant. It was for this reason, and also as it was considered that no adequate explanation had been provided for the parents' failure to bring the applicant with them when they migrated to Australia, that the original decision-maker doubted the applicant's claim for total dependence upon her parents.

16. The original decision-maker also questioned the applicant's marital status. The assessment report stated "it may also be the case that she is either married at the present time, has been married or intends to marry in the near future". This conclusion, such as it was, was based in part upon information provided by the applicant's parents in their migration application, and in part because the applicant had refused to provide details of her relationship with Mr Trimmer. As to her health, it was found the applicant was "reasonably healthy", the Commonwealth Medical Officer having medically cleared her for permanent residence.

17. The original decision-maker appears to have attached significance to an inconsistency perceived between Dr Amar's prognosis that "a forced return to Fiji may precipitate a psychiatric crisis or suicidal attempt" and his diagnosis of the applicant's current condition that she was not suffering any major physical or psychiatric problem. It was also considered that Dr Amar's prognosis may have been based on "contradictory, misleading or false information provided to him by the applicant". In drawing this conclusion, the original decision-maker relied, amongst other things on the alleged history of sexual assault reported to Dr Amar, as contrasted with the ground put forward by the applicant "that she did not wish to live with her sister because she was a burden upon her". It is important to note, however, that although the matter of the assault was not expressly raised in her application form, as distinct from the supporting material, the applicant did refer in the application form to "friction" between her, her sister and family. Another apparent discrepancy was identified between the applicant's statement to Dr Amar that she had been and was still dependent upon her parents, whereas it was thought that she had either been planning marriage or was married or had been married. Other inconsistencies in the application and supporting documentation were commented upon.

18. The final decision-maker was the Minister's delegate. By letter dated 30 April 1992, the applicant was advised that the delegate had rejected her application. The letter stated the delegate had "studied the report of the Immigration Review Panel and the other information available on the case". The applicant was provided with a copy of the departmental report, and advised that it set out the relevant policy issues and explained the reasons for the decision. No separate IRP report was tendered in evidence, and I assume that the reference in the letter to such a report was a reference to the departmental report. In any event, the departmental report is clearly the relevant report and was so treated by counsel. There was no Section 13 statement tendered in evidence.

19. Before turning to the specific grounds raised in the application before the Court, it is convenient to consider the departmental report. In dealing with the claim of dependency, the reviewing officer concluded that the applicant's parents "had no compunction whatsoever in leaving her behind in Fiji" and would continue to help support her should she return there. It was thought the applicant had sufficient cooking skills to enable her to be usefully employed. As to any concern of sexual harassment, the reviewing officer did not accept "that the members of this family would permit or condone (its) continuation ... by any one of them".

20. The reviewing officer did not accept that it was likely that the applicant would become homeless in Fiji. It was considered that if it was difficult for her to live at her sister's home, she had the opportunity to live with her brother or her family members and "it is assumed that members of the family would be available to assist Ms Bano if necessary as this is deeply ingrained in the cultural habits of her community". In this regard reference was made to the seven married uncles and aunts in Fiji. As well, it was assumed that there would be a large number of cousins and extended family members who could assist.

21. The reviewing officer also cast doubt upon Ms Bano's marital stat us, "the family (having) done little to refute the suggestion" that she had been married. In relation to the medical evidence, the reviewing officer stated that the medical opinion on file contained "many contradictions". In particular, reliance was placed upon the fact that the Commonwealth Medical Officer had cleared Ms Bano for the purposes of migration and would not have done so had there been any serious doubt as to her physical or mental health. Finally it was not considered that an interview with any of the parties concerned was necessary, as it would not "add anything of substance for consideration".

22. Counsel for the applicant identified the central aspect of the application for resident status as the "uncontradicted medical evidence ... that the applicant would suffer anxiety and depression if again separated from her parents". This submission was based on the reports of Dr Amar and Dr Chapman and also on the Commonwealth Medical Officer's apparent endorsement of Dr Amar's report. Having regard to the doubts the original decision-maker had as to the applicant's credit, it was submitted that the Department should have granted the applicant an interview to enable it to evaluate her version of events as well as other matters raised in her application. Alternatively, it was submitted that the refusal to interview the applicant was indicative of a failure to give proper, genuine and realistic consideration to the application. Other matters were pointed to as revealing a failure to give such consideration to the application, namely: that the decision-maker merely adopted the decision under review; that relevant considerations were not taken into account; and that irrelevant considerations were taken into account. These last two matters also formed separate grounds of challenge to the decision, as did claims that findings of fact were made on no evidence and the decision was unreasonable.

23. Counsel for the respondent submitted that the real basis of the application for resident status was the applicant's need for emotional and financial support and that the medical issue had been raised by counsel to a higher level than it had ever been in the application. Further, counsel for the respondent did not agree with the submission that there was "uncontradicted medical evidence" as alleged on behalf of the applicant. She submitted that the Commonwealth Medical Officer had only endorsed Dr Amar's diagnosis, and had not necessarily accepted the history and prognosis in his reports. Although I agree that the Commonwealth Medical Officer's report is not clear, on balance I consider it does accept the whole of Dr Amar's report. Even if the report did only endorse Dr Amar's prognosis, that does not answer the complaint made by the applicant that the respondent did not give proper, genuine and realistic consideration to the issue of her likely mental health should she be returned to Fiji. The decision-maker must take into account all relevant matters: (See Surinakova v. Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 596; (1991-1992) 33 FCR 87 at 94).

24. The departmental report identified the basis of the application, in so far as it is relevant to this aspect, as "the requirement for further medical treatment". Having regard to the evidence before me, this statement appears to be a reference to the applicant's condition of endometriosis. If this is correct, there was a failure to recognise that the applicant's future medical health formed a significant part of her application. If, however, it refers to the applicant's mental health, it does not identify, or at least adequately deal with Dr Amar's prognosis. In my opinion therefore, there was a failure to give proper, genuine and realistic consideration to a relevant matter.

25. In addition to this failure, the reviewing officer made assumptions about the availability of relatives in Fiji to provide assistance to the applicant, such that she was not likely to become homeless there. These assumptions were made on the basis of the Department's perception of the "deeply ingrained cultural habits of Ms Bano's community". Whilst it may be appropriate for the Department to have regard to its accumulated knowledge of the cultures of various communities, it is not entitled to do so without specific regard to the circumstances at hand. In this case, no inquiry was made of the applicant, or of anyone else, of the particular circumstances of any of the relatives about whom the assumption was made.

26. An essential aspect of the application of the rules of natural justice, or procedural fairness as it is more appropriately called, is that the person affected by a decision must have the "critical issue" brought to his or her attention, so as to permit an opportunity to deal with it (per Mason J in Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 at 587; see also Sinnathamby v. Minister for Immigration and Ethnic Affairs 66 ALR 502 at 517, Broussard v. Minister for Immigration and Ethnic Affairs 21 FCR 472 at 481; Somaghi v. Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; 31 FCR 100 at 108). The applicant, having been given no opportunity to address these matters, was denied procedural fairness.

27. I now return to the question of whether the Department should have interviewed the applicant. In his submission that an interview was required to fulfil the dictates of natural justice, counsel for the applicant relied upon the decision of Burchett J in Sacharowitz v. Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 2; (1991-1992) 33 FCR 480 at 489 where his Honour, in dealing with an application under s.6A(1)(e) stated:

"... The statement that an interview would not assist must mean
that the circumstances, which, on any view, must excite feelings
of compassion and humanity, fall so far below what could amount to
strong compassionate or humanitarian grounds that no understanding
of the emotional force and depth of the feelings involved, and no
explanation, which an interview might afford, could elevate them
to a level where they could possibly be held to be strong
compassionate grounds. For if they could possibly be so regarded,
the refusal of the Immigration Review Panel even to hear the
applicant and his wife seems to me to be inexcusable. It was
their duty to give the matter genuine consideration."

28. His Honour's statement is a particular application to the facts before him of the basic principle that "the rules of natural justice are flexible requiring fairness in all the circumstances ..." per Gibbs C.J. in Kioa v. West at 564. Whether an interview is required depends upon all the circumstances of the particular application, including the information provided by the applicant and the manner in which the Department deals with it. I have referred earlier to the submission that a request for an interview had been made by the applicant's sister. However, it is not clear to me that the "invitation" in Ms Siras Ali's statutory declaration was a request for an interview either with the applicant or with Ms Ali. In the application for review complaint was made that no interview had been granted and counsel submitted that this also amounted to a request for an interview. Whether or not this is correct, the issue of the need for an interview, at least by that stage, had been clearly raised.

29. The mere fact that an interview is requested is not determinative of the matter. In this case the Department did seek additional information from Mr Sweeten and also arranged for its own medical examination of the applicant. However, at no time did it seek clarification of the "possible contradictory misleading or false information" which it considered formed the basis of Dr Amar's prognosis. Nor, in my opinion did it sufficiently indicate to the applicant that her credit was in issue. As I have also stated above, the Department took into account information provided by the applicant's parents in their migration application, it made certain assumptions and relied upon its understanding of the cultural habits of the applicant's community. None of these matters were brought to the applicant's attention. The combination of these factors, together with Dr Amar's prognosis and his opinion that there was a possibility of suicide should the applicant return to Fiji, in circumstances where the applicant was relying on family members and others to convey information to the Department, where there were matters of family sensitivity involved and the applicant herself was illiterate and uneducated, lead me to conclude that the applicant ought to have been granted an interview. I do not consider however that an interview with the family was also essential. Information which they could provide, if any was required by the Department, could have been provided other than in an interview. However, the failure of the Department to interview the applicant resulted in her being denied natural justice or procedural fairness.

30. In support of its contention that the IRP merely adopted the assessment report and did not independently apply its mind to the application, it was submitted that the departmental report was a defensive statement of the position which had been taken by the original decision-maker, and no fresh consideration was given to the matter. I do not accept this submission. The reviewing officer was entitled to have regard to the matters considered and the opinion expressed by the original decision-maker. Those matters and that opinion could either be accepted or rejected in whole or in part. Whilst there was a substantial overlap in the matters raised in each report, and the reviewing officer accepted opinions expressed in the assessment report, the reports are not identical. There was nothing in the departmental report which would lead me to conclude that the reviewing officer did not independently consider the matter. Likewise, the letter dated 30 April 1992 indicates that the delegate applied its mind to the application and did not merely rubber stamp either the views expressed in the departmental report, or those of the decision-maker as disclosed in the assessment report.

31. It is also alleged that the decision-maker took into account irrelevant considerations, namely that the applicant had signed an undertaking before leaving Fiji, that the applicant had lodged her application on the last day of visa validity and that the application had been previously considered and refused. In support of this argument, counsel for the applicant relied, in part, upon the format of the departmental report. Each of the matters relied upon appeared directly under the heading "ASSESSMENT", the reference to the date that the application had been lodged was underlined and the information relating to the application having been previously considered and refused was highlighted.

32. I do not attach any significance to the fact that the matters referred to appeared under the heading "ASSESSMENT". That heading has every appearance of being the heading of the whole report and not a specific heading in relation to those matters. Although the highlighting and underlining gave an appearance of emphasis, these were proper matters to be put before the decision-maker. Accordingly I do not consider this ground to be made out.

33. During the course of the hearing counsel for the applicant sought and was granted leave to amend the application to add a further particular to paragraph 2 of the application, namely, that the decision-maker took into account an irrelevant consideration being:

"that the applicant's entry visa was issued largely due to the
presentation of a fax from Dr Zipser and that this fax was a
forgery".

34. This issue was dealt with in the departmental report under the heading "Summary and Recommendation" in these terms:

"Ms Bano came to Australia solely for the purpose (of) medical
treatment and this has been satisfactorily achieved.
THE FACT THAT THE VISA WAS ISSUED LARGELY DUE TO THE PRESENTATION
OF A FAX FROM DR ZIPSEN (SIC) AND THAT THIS FAX WAS A FORGERY IS
A MATTER OF GREAT CONCERN"

35. As I have stated above Dr Zipser was the applicant's treating doct or. Counsel for the applicant admitted that the fax was not written by Dr Zipser. However there was no evidence as to whether the fax was or was not authorised by Dr Zipser and the applicant made no admissions in that regard. There was no dispute between the parties that Dr Zipser did treat the applicant when she came to Australia.

36. It was submitted for the applicant that the question whether the fax was a forgery was irrelevant to the question whether there were strong humanitarian or compassionate grounds. This submission is difficult to deal with when I do not know whether the fax was authorised by Dr Zipser. If it was not authorised by him, I would have considered it a relevant consideration in the overall consideration of the applicant's claim. If it was authorised, the fact it was not written and/or not signed by the doctor may well have been irrelevant. However, in the present state of the evidence I am not able to make a decision on this part of the applicant's claim. In other circumstances it may have been appropriate to bring the parties back to enable further consideration to be given to this matter. However, as I have found that the applicant has succeeded on a number of other grounds, I do not consider it necessary to adopt such a course.

37. The applicant also alleges that there was no evidence or other material to justify the making of a decision based upon the existence of a particular fact which the material before the decision-maker showed did not exist (ss.5(1)(h) and 5(3)(b) of the ADJR Act). The particular matter relied upon was the assumption made as to the help which would be provided by the applicant's extended family. There was no additional evidence adduced by the applicant and no detailed submissions were directed to this issue. Having regard to the principles which govern the application of ss.5(1)(h) and 5(3)(b) I do not consider that this ground has been made out: Curragh Queensland Mining Limited v. Daniel and Ors. [1992] FCA 44; (1992) 34 FCR 212.

38. Finally, it is alleged that the whole decision is unreasonable. As I understand it, this ground was a "rolled up" claim and no particular submission was directed to it. I do not consider that this ground has been made out.

39. Accordingly, the decision of the respondent should be set aside and the matter remitted to the respondent for re-determination according to law. The respondent is to pay the applicant's costs.