Aghedo, G.O. v Minister for Immigration & Ethnic Affairs

[1986] FCA 59

Re: GABRIEL OSAHENI AGHEDO
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. WA G104 of 1985
Judicial Review

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Muirhead J.

CATCHWORDS

Judicial Review - decision of Minister to deport and refusal of application for resident status - applicant a Nigerian citizen - original entry as student - plans to marry Australian citizen - long residence in Australia - whether failure to take into account relevant considerations - whether Minister took irrelevant considerations into account - whether improper exercise of power - exercised at the behest of another person - consideration of natural justice - consideration of form of report under s. 13 A.D.J.R. Act.

Administrative Decisions (Judicial Review) Act 1977 s. 5, s. 13.

Migration Act 1958 s. 6A(1)(e), s. 7, s. 18

Ansett Transport Industries (Operations) Pty Ltd v. Wraith and Others (1982-1983) 48 ALR 500.

Turner v. Minister for Immigration and Ethnic Affiars (1981) 35 ALR 388.

Stott and Another v. Minister for Immigration and Ethnic Affairs (1985) 59 ALR 747.

Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363.

Jason Kioa and Others v. Minister for Immigration and Ethnic Affairs and The Commonwealth of Australia (unreported - delivered 18 December 1985).

Elliott v. Southwark London Borough Council (1976) 1 WLR 499.

HEARING

PERTH

#DATE 7:3:1986

ORDER

1. The application is dismissed.

2. The order of Toohey J. dated the 31 December last pursuant to which the applicant was conditionally released from custody is discharged.

3. No order as to costs.

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

JUDGE1

The applicant is a citizen of Nigeria. He arrived in Australia on 3 July 1980 having gained initial entry as a student. Apart from visits to his home country in 1982 and 1983, he has remained here since. He in fact initially left Nigeria in 1971 and he worked and studied in Europe until his embarkation for Australia. He has effectively been absent from his homeland for about 15 years. Clearly he does not wish to return.

1. By a decision made on 24 December 1985 Mr Allan Goward, as Delegate of the Minister of State for Immigration and Ethnic Affairs (the Delegate), ordered that the Applicant, who was then in custody, be deported. He further decided that an application the applicant had made on 4th December 1985 seeking resident status in Australia be refused (s. 6A(1)(e) of the Migration Act 1958) and that an application for a further temporary entry permit, pursuant to s. 7(2) of that Act, be also refused.

2. On the 31 December 1985 an interlocutory application was heard by Toohey J. following an application for review under the Administrative Decisions (Judicial Review) Act 1977. His Honour then ordered that the applicant should be conditionally released from custody pending the hearing. On the 20 February last the substantive application for review under that Act came on for hearing. As to the decision to deport the applicant claims he is aggrieved on the following grounds:
   
   

"(a) the making of the decision to deport was an improper exercise of the statutory power under s. 18 of the Migration Act in that :-

(i) the Minister took irrelevant considerations into account in exercising the power; and

(ii) the Minister failed to take relevant considerations into account in exercising that power;

(iii) it was an exercise of power for a purpose other than the purpose for which the power was conferred;

(iv) it was an exercise of power at the behest of another person".

1. The grounds of complaint as to the refusal to grant permanent resident status are set out as follows:
   
   

"(a) the making of the decision to refuse permanent resident status pursuant to S6(a)(1)(e) of the Migration Act was an improper exercise of the statutory power in that the Minister's Delegate:-

(i) exercised his discretionary power in bad faith;

(ii) exercised his discretionary power at the behest of Mrs Joanne Grattidge; and

(iii) exercised his discretionary power in accordance with Ministerial policy of 17th of October, 1985 without regard to the merits of the applicant's case.

(iv) denied the applicant the benefit of an application for permanent residence on the basis of refugee status in breach of mandatory lawful procedures; and

(v) failed to advise the applicant of his possible eligibility as a refugee being a breach of the rules of natural justice".

It is further claimed that his refusal to grant an application for a temporary entry permit was an improper exercise of the statutory power contained in s. 7 of the Migration Act 1958.

1. The Delegate's decision was preceded by a report in the form of a memorandum furnished by Mr R.A. Neilson, Acting Director of Enforcement 2 Section (the Neilson report). To this were annexed about 21 documents, material which Mr Neilson stated he "had regard to" in formulating his findings. The Delegate's decision followed the recommendations contained in that report.

2. The Neilson report was a most comprehensive document in itself. It is not necessary to set it out in these reasons. It was prepared under three main sections. Section A was under the heading "Findings on material questions of fact". Section B constituted "Evidence or other material upon which the findings are based". Section C was headed "Assessment" and the report concluded with recommendations which the Delegate accepted. The Neilson report was thus in a form which could be conveniently utilised in the event of reasons for decision being sought under s. 13 of the A.D.J.R. Act.

3. Such reasons were sought and by Statement of Reasons dated 30 December 1985 the Delegate set out his reasons for the decision in the following terms:
   
   

"I based my decision on the attached Submission from Roger Neilson dated 24 December 1985 and the annexures thereto.

I adopted the findings at Part A of that Submission as my findings on material questions of fact.

I accepted these findings of fact on the evidence before me as set out in Part B of that Submission.

I adopted the reasoning set out in the assessment at Part C of that Submission and that sets out the reasons for my decision".

1. The material upon which the report was based was voluminous. It included memoranda from departmental files, correspondence, statements, and earlier applications. The applicant has been in Australia for over 5 years and during that time he has had extensive dealings with the department. As far as I can ascertain the report and its annexures constituted what was essentially a balanced and a fair collection of material. It included the applicant's own correspondence with the department, correspondence from his solicitor and fiancee and correspondence from Mr Terry Burke, a politician in Perth who espoused the applicant's cause and who sought the Minister's consideration of that cause and the applicant's predicament. It is of course in the very nature of things that this mass of writing which related to the applicant's residence here over many years would contain inconsistencies and some inaccuracies. The applicant's long continuing residence, at times after he became a prohibited noncitizen (or prohibited immigrant under the Act prior to the 1983 amendments), clearly caused the department concern and caused its enforcement officers to be suspicious of the steps the applicant took, or did not take, which have had the effect of prolonging his residence in Australia well beyond the time contemplated, and agreed to by him when he initially entered the country and when permission for further residence had been granted. But the Neilson report contains material favourable to the applicant in so far as his past, his character and intentions are concerned. Prior to this Application neither the applicant nor his solicitor had access to much of the material before the Delegate. However, his own correspondence, his applications and statements, his solicitor's letter of 5 December 1985, Mr Burke's letter of 28 November 1985, his fiancee's letters were all included in the material which I must accept was considered by Mr Neilson and the Delegate. To sum up the decisions were based on material which was not unfairly selective.

2. I have set out above the Delegate's reasons for decision supplied under s. 13, which essentially referred to the sections of the comprehensive Neilson report and which were adapted to set out the findings on material questions of fact, reference to the material on which such findings were based and the reasons for decision. No application was made for further and better particulars under s. 13(7) but the passage of this application has been swift. I have little experience of such applications but the respondent's counsel advised me that this is the form of reasons for decision usually adopted. In a case such as this where there is such a long and somewhat confused history, to set out the specific facts, findings and reasons which the Delegate himself finds persuasive is no mean task. But the omnibus type approach, however balanced the report upon which the Delegate's findings are based may be, does make it difficult to challenge the decisions and, perhaps, to decide the issues on review. I say this as the findings and material which may predominate in the mind of the decision maker are essentially unknown. The Neilson report and the decision both bear date 24 December last and I have assumed, as I believe I must, that the report received adequate and fair consideration. It would perhaps be more satisfactory to make some specific reference to those matters which predominated or proved decisive in the mind of the decision-maker. In Ansett Transport Industries (Operations) Pty Ltd v. Wraith and Others (1982-1983) 48 ALR 500 at 507 Woodward J made reference to the requirements of s. 13(1) which he observed requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: "Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging". A reference in a decision to a multitude of findings some of which may be of importance, others not, imposes difficulties upon subsequent analysis for the purpose of review.

3. The Minister's powers to grant a further entry permit after the expiration of a previous temporary entry permit are provided by s. 7 of the Act. The power to order the deportation of a prohibited non-citizen is found in s. 18. Section 6A(1) provides that an entry permit shall not be granted to a noncitizen after entry into Australia unless one or more conditions are fulfilled one of which is that "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". Hence the applicant sought a further temporary entry permit so that the compassionate or humanitarian grounds could be considered.

4. The grounds set out in para. 1 of the application are based on the statutory grounds set out in s. 5(1)(e), 5(2)(a), 5 (2)(b), 5(2)(c), and 5(2)(e) of the A.D.J.R. Act. Those in par. 2 are similarly based, and those in para. 3 upon 5(1)(e) based on the taking into account of irrelevant considerations there detailed, and failure to take into account relevant considerations also detailed in the application. Paragraph 3 asserts that the decision to deport was exercised for the purpose of preventing the applicant's pending marriage to an Australian citizen, and para. 4 asserts that the power was exercised at the behest of the mother of the applicant's financee.

5. Paragraph 5 claimed on various grounds that the Delegate's discretionary power was exercised in bad faith but that was rightly abandoned by the applicant's counsel.

6. With reference to the Delegate's refusal to grant him resident status the applicant complains:
   
   

(1) the power was exercised at the behest of Mrs Joanne Margaret Grattidge, the mother of the woman to whom the applicant is engaged and who he intends to marry next month.

(2) he applied policy matters without regard to the merits and failed to consider the wishes of the applicant's fiancee "on the compassionate ground in s. 6A(1)(e)".

1. The applicant also complains of the Delegate's failure to obtain and consider an application from the applicant for permanent residence on the basis of refugee status which, it is said "constituted an abuse of power and a denial of natural justice". This is based on the fact that a recommendation of a departmental officer that such an application should be considered "was ignored" and also on the basis that the applicant was not advised "of the existence of or his possible eligibility for such an application prior to the 24 December 1984". As a matter of history I mention that such an application was later considered by the appropriate committee and refused. The applicant further complains that the decision to refuse a temporary entry permit was an improper exercise of the power under s. 7 of the Act in that it was exercised "in bad faith to prevent the applicant and his fiancee marrying within the three month period thus rendering the applicant ineligible to apply for permanent resident status".

2. In the course of the application the applicant's counsel called oral evidence from the applicant, his fiancee and his fiancee's mother. He also called under subpoena several departmental officers who were examined - in fact to a large extent cross-examined - an area in which I exercised a degree of latitude. I have regard to that evidence which served to explain some matters but which did not raise in my mind doubts as to the essential thoroughness and fairness of the Neilson report.

3. It is important to bear in mind the function of this court under the A.D.J.R. Act a function more limited in scope than a review under the Administrative Appeals Tribunal Act 1975. Toohey J. made reference to this distinction in Turner v. Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 389 He observed (p. 390) that the Administrative Appeals Tribunal:
   
   

"may place itself in the position of the decision maker, exercising all the powers and discretions available to that person, and not confining itself to the material that was before him: . . . . . . . The jurisdiction and powers entrusted to the Federal Court by the Administrative Decisions (Judicial Review) Act 1977 proceed on a different footing . . . . . . . The court is not empowered to substitute its decision for that of the decision maker".

His Honour there referred to the comments of Lockhart J. in Hamblin v. Duffy (1981) 34 ALR 333 at 335 "The question for the court generally is whether the action is lawful in the sense that it is within the power conferred on the relevant Minister, official, or statutory body; or that the prescribed procedures have been followed; or that the general rules of law, including adherence to the principles of natural justice, have been observed".

1. In conducting a review under the A.D.J.R. Act the court "does not stand in the shoes of the decision-maker and its review jurisdiction is not the occasion of a fresh exercise of administrative power". Stott and Another v. Minister for Immigration and Ethnic Affairs (1985) 59 ALR 747 per Toohey J at 750.

2. In a challenge based on failure to take into account relevant matters or the taking into account of irrelevant matters it is of little purpose to exhaustively examine all matters which might appear of relevance and then to impugn the decision on the basis that it does not appear that one or more such matters were in fact taken into account. The Migration Act is silent as to relevant matters to be examined by the Minister in considering deportation orders. No criteria are specified. Provided fairness is exercised the decision remains essentially discretionary. As Deane J. observed in Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363 at 375 "it is largely for the decision maker, in the light of matters placed before him by the parties to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide".

3. It is not for me, sitting on review to consider or determine the weight which should have been given to one or more of the multitude of facts and considerations placed before the Delegate in the Neilson report. That is entirely for the Delegate who ultimately must determine the matter on all the material placed before him and in so doing it is inevitable that he must make his decision against a background of policy, a matter which goes to the public interest referred to by Brennan J. in Jason Kioa and Others v. Minister of State for Immigration and Ethnic Affairs and The Commonwealth of Australia (unreported - delivered 18 December 1985 at 85).

4. "It is worth repeating that the function of the court, where such issues are raised, is not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions" Elliott v. Southwark London Borough Council (1976) 1 WLR 499 at 507 (See also Akapan v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 47 and Borkovic v Minister for Immigration and Ethnic Affairs (1981) 39 ALR 186 at 188).

5. These basic principles as to the restricted function of this court have not, as I understand the decision, been altered or modified by the High Court in Jason Kioa and others (above) which examined natural justice considerations following legislative changes which succeeded Salemi v. MacKellar (No. 2) (1977) 137 CLR 396 and Reg. v. MacKellar; Ex parte Ratu (1977) 137 CLR 461 The court there emphasised that in so acting the Minister is required to act with procedural fairness.
   
   

"When taken with s. 13 of the Judicial Review Act, I have no doubt that there is no longer a relevant statutory framework which evinces the intention of the legislature that in ordering the deportation of a prohibited immigrant the Minister is not obliged to observe the dictates of procedural fairness. It is therefore open to the appellants to seek a review of the deportation orders on the ground that a breach of the rules of natural justice occurred in connection with the making of the decision".

per Wilson J. at p. 58. Deane J. (at p.96) having dealt with the far reaching consequences of a deportation order to the individual went on to observe:

"In the absence of a clear contrary legislative intent, a person who is entrusted with statutory power to make an administrative decision which directly affects the rights, interests, status or legitimate expectations of another in his individual capacity (as distinct from as a member of the general public or of a class of the general public) is bound to observe the requirements of natural justice or procedural fairness. The making of the deportation orders in respect of Mr. and Mrs. Kioa plainly involved the exercise of a statutory power to make such an administrative decision. Each deportation order directly affected the rights, interests and status of the person (Mr. or Mrs, Kioa) in respect of whom it was made and against whom as an individual it was directed. In the context of the A.D.J.R. Act and of the amendments made to the Migration Act after the decisions in Salemi and Ratu, it is no longer possible - if it ever was - to discern in the provisions and scheme of the Migration Act a clear legislative intent excluding the applicability of the ordinary principles of procedural fairness in respect of the making of such an order. That being so, it was incumbent upon the delegate of the Minister to observe those requirements in the making of the deportation order against each of Mr. and Mrs. Kioa."

1. As I understand it, that decision does not intrude upon the right of the Minister to make his decisions ex parte, it does not lay down procedural methods of inquiry, it does not decide what factors must or must not be considered. Nor does it require the Minister to state those facts or circumstances he regarded as important or those which did not weigh with him. What it insists upon is that the Minister in reaching his decision should (when circumstances permit) have regard to material advanced by or on behalf of the person whose interests are affected. If the material before him includes matters of importance prejudical to such person he or she should have the opportunity of putting the other side of the story or replying to it. In other words it is necessary that the decision can be properly termed balanced, in that the material upon which it is based is comprehensive and fair. If that material is based on heresay, gossip or mere suspicion and if it assumes significance, then fairness dictates that the person involved should have opportunity to meet it. This is not to say that the Minister should ignore the government policies which it is his responsibility to administer provided the plight or situation of the individual is not ignored or unnecessarily prejudiced in the process.

2. The applicant's residence in Australia has been surprisingly long, bearing in mind the circumstances of his entry. He was born in 1947 and left his home country in 1971. He appears to have studied naturopathy in West Germany until 1977. He worked as a naturopath in Paris until 1980 and he arrived in Australia on a student visa to enable him to study for an associate diploma in health education, an anticipated 1-year course. In September 1981 his temporary entry permit was renewed until March 1982. He transferred to a mental health course. His father, a man of means who assisted the applicant financially, died in late 1981. In February 1982 he returned to Nigeria for a short time and on his return he unsuccessfully applied for Australian citizenship. In February 1983 he again visited his country, these trips apparently being made to assist in administration of his deceased father's affairs. He borrowed money to make these trips and has since been substantially in debt. He was granted a further temporary entry permit authorizing residence until March 1983 and this was again renewed until March 1984. In June 1983 he advised the department of a pending marriage to a woman called Matthew. The marriage did not eventuate. In early September 1983 he was advised to leave Australia but he was subsequently allowed to continue with his course which involved little lecture time and which enabled the applicant to work practically full time. He obtained his Diploma in Health Education in 1984. In October 1984 his last temporary entry permit was granted terminating on 31 December 1984. He has since been a prohibited non-citizen. In that month he applied, again unsuccessfully, for permanent residence. In January and in February 1984 he applied for political asylum. In January 1985 he was appointed an AMP representative. In the meantime he had met Miss Grattidge. They hope to marry in March next. In August 1985 he commenced work with 'Red Rooster'. In April 1985 and in November 1985 he sought permanent residence - his intended marriage to Miss Grattidge being a ground of the application. He was eventually taken into custody on 26 November last. He complains now that he was not earlier advised by the department of his right to make such application. On the evidence there had been some consideration of his qualifications for such status within the department. In early December 1985 he applied again for a further temporary entry permit and for permanent residence, applications which have now been denied him by reason of the Delegate's decision. The deportation order was made on 24 December last.

3. In January 1986 he made application for refugee status, which as I have said has recently been refused. That is not a matter of weight in the present application. It is not a function of the department to persuade or encourage people who enter on temporary permits to convert limited or conditional residence to permanent residence. As is to be expected over the years he has had much contact with officers from different sections of the department in connection with education, status and the requirements that he should leave. He is experienced in his dealings with the department. The departmental files are thus voluminous. Having heard the applicant give evidence I assess him as a most intelligent person, well educated, fluent in English, a member of the Roman Catholic faith. He is, to use a term he used, well "westernized". He is most anxious to remain in Australia evidenced by his repeated and varied applications. He says he is apprehensive of his fate should he return to Nigeria. The Neilson report contained abundant evidence of these matters, his character and his apparent capacities.

4. There is I am afraid nothing to be gained by dealing specifically with all the grounds and facts set out in the Application and I mention but a few. Paragraph 1(a) of the grounds refer to the erroneous report of a departmental officer Peacock in September 1984 in which he wrote "There is at least one suspended sentence recorded against Aghedo". Peacock was called, he agreed he was mistaken. He was apparently confused by a court order or arrangement as to periodic payments of the applicant's debts. This was a serious error but it could hardly have influenced the Delegate's decision. The Neilson report (p. 6) set out the applicant's personal circumstances provided by the applicant in December 1985 as follow: "He is not criminally recorded either overseas or in Australia and he has not previously been deported or excluded from any country". This was reiterated by the applicant in his interview after he was taken into custody (Annexure "A") and in his formal application for resident status in Australia (Annexure "T"). Peacock, in the same report mentioned that "Aghedo is considering declaring himself bankrupt". The applicant denies that he did so, Peacock has no present memory of the conversation, and it is not for me to decide whether or not that was a fair report. The applicant has in the past referred to the clearing of his debts as one factor why he wishes to remain in Australia and the Neilson report deals with this at para. 39, no mention being made of bankruptcy. The fact is that Aghedo was in December last upon information he supplied "in debt to the level of $10,000" (Annexure "Q") and there is much reference to his debts, the reasons why they were incurred and his efforts and determination to meet them. Complaint is also made of references to periods of illegal employment without departmental permission. Again upon analysis, that if it stood alone, may be unfair. But upon the evidence called before me there were undoubtedly periods when the department was unaware of the extensive nature of his employment as part of his course of studies. The situation of his employment was well documented in his solicitor's submission (Annexure "S") and in material, the source of which was the applicant himself. Much was said at the hearing of the conduct and intentions of Miss Grattidge's mother, a very anxious mother, who by letter dated 7 November 1985 (Annexure "M"), wrote to the Minister expressing her concern. She there stated "Mr Aghedo is an extremely desperate, determined and persistent man whose objective is to marry an Australian girl and stay in our country". It is claimed on the applicant's behalf that the decision to deport was made at the "behest" of Mrs Grattidge and reference is made in the application to submissions based on Mrs Grattidge's fears and factors influenced by the circumstances of his previous engagement. The applicant's counsel called evidence from Mrs Grattidge and her daughter. I would only say having heard from the applicant, his fiancee and her mother that the latter's fears and concern are understandable. But the "genuiness" of the proposed marriage was well documented in the material considered by the delegate and the fact is that the Neilson report (para. 38) states: "Notwithstanding submissions to the contrary, you may accept that Mr Aghedo and Miss Grattidge share a genuine intention to marry".

5. I do not intend to deal specifically with all the grounds or submissions put to me. Mr Stokes has said all that can be said on the applicant's behalf and has acted with thoroughness in his interests. One feels considerable sympathy for the applicant in his desire to remain in Australia, but that can play no part in my decision. Whilst the Neilson report made the recommendations which have resulted in the decisions complained of, I am far from persuaded that it was deficient, unfair or one-sided. It was, as I have said, comprehensive and balanced and it contained most relevant material which really could be put on behalf of the applicant. Mr Stokes summarized his submissions by stating his client had not been given "a fair go", i.e. natural justice had not been extended. I do not agree. No grounds for review have been established and the application must be dismissed.