Barrett, I.L. v Immigration & Ethnic Affairs, Min. of State for

[1988] FCA 665

C A T C H W O R D S

ADMINISTRATIVE LAW - Administrative Decisions (Judicial Review)

Act 1977	-	application for extension of time for application to
review decision to deport	- relevant considerations	- whether

prospect of ultimate success on application - decision maker -

whether irrelevant considerations - whether failure to take into

account relevant considerations - no question of principle

involved.

Administrative Decisions (Judicial Review) Act 1977

Migration Act 1958

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR

m

James Boyd McPhee v	The Minister of State for Immigration, Local
Government and Ethnic Affairs (unrep. 23/8/88;	Lee J.)
-
ETHNIC AFFAIRS

ISAIAH LAMAR BARRETT V THE MINISTER OF STATE FOR IMMIGRATION

AND

1988

4 OCTOBER 1988

FRENCH J.
PERTH

.

IN THE FEDERAL COURT	)
OF AUSTRALIA	1
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	1
GENERAL DIVISION	) No. WAG 126 of 1988
B E T W E E N :	ISAIAH LAMAR BARRETT

Applicant

and

THE MINISTER OF STATE FOR

IMMIGRATION AND ETHNIC AFFAIRS

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER: FRENCH J.

DATE OF ORDER: 4 OCTOBER 1988

WHERE MADE:	PERTH
THE COURT ORDERS	THAT:

1. The application dismissed. be

2. Each party bear its own costs of the application.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT	)
OF AUSTRALIA	)
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	1
GENERAL DIVISION	1 NO. WAG 126 of 1988
B E T W E E N :	ISAIAH LAKAR BARRETT

Applicant

and

MINISTER THE STA OF FOR

IMMIGRATION AND ETHNIC AFFAIRS

Respondent

-	CORAM :	FRENCH J.
4 OCTOBER 1988

EX TEMPORE REASONS FOR JUDGMENT

ON APPLICATION TO EXTEND TIME FOR REVIEW

This is the hearing of an application for an extension

of time for the applicant to seek an order to review the decision

of a delegate of the Minister of State for Immigration and Ethnic

Affairs. The decision which it is sought to review, was made on

17 February 1988 and was a decision to order the deportation	of
the appellant.

This application comes under sub-s.ll(l) of the

Administrative Decisions (Judicial Review) Act 1977, which

provides that an application to the court for an order of review

shall, among other things, be lodged within the prescribed period,
Or within such further time as the court (whether before or after
the expiration of the prescribed period) allows. Now, it is plain

that the prescribed period, which is determined according to a

formula set out in s.11, has long expired and had expired at the

time that this application for extension was filed, namely on 29

August 1988.

In explanation of the delay, the applicant swore an

affidavit which indicates that since 29 January he has been in

custody by reason of certain outstanding criminal charges and in

relation to his status as a prohibited non-citizen under the

Migration Act 1958. On 16 June, as his affidavit discloses, he

was convicted and sentenced to a term of six months imprisonment

in relation to certain criminal offences. He is due	for	release
on 23 October 1988, but the convictions are under	appeal.	The

sentence is also under appeal by the Crown. The deportation order

dated 17 February 1988 was served on him, apparently while he was

in custody awaiting trial, and according to his affidavit, the

solicitor then acting for him advised that there was no point in

seeking to challenge that order until after his trial.

Counsel for the Minister has not sought in argument to

challenge the reasonableness or accuracy of the explanation

for the delay in bringing this application. If the matter turned

solely on that question and the question of prejudice, then I would have little hesitation in granting the extension sought.

But as I think both parties recognise, the real issue in this application is whether there is any prospect of ultimate

success on the application for review. If there are no merits in

the proposed application then to grant an extension would not only

be a waste of time and money, it would impose unnecessary hardship

by raising false hopes on the part of the applicant. By the

merits of the case, I do not mean the question whether the

Minister or his delegate were harsh or gave too much weight to one

factor and not enough to another,	or that they might perhaps have
made some factural error	so far as the drawing of inferences is

Court Decisions (Judicial Review) Act 1977 to examine questions of that has no power under the Administrative

concerned.	This
kind going to and only to the merits of the decision which	is
under challenge. Its jurisdiction is limited by the grounds set out in the Act. Their broad effect is that before this Court can

exercise its power of review, it must be able to identify in the

decision making process some error of law or procedure. If it

reaches the view that there has been some such error, then in all
but exceptional cases, the only remedy that the court can offer is
to set aside the decision and to send it back to the delegate for
reconsideration according to law, a result which, of course, does

not guarantee that the same decision will not be reached in the

end in any event.

I make that statement just to make clear the limits of

this Court's decision making power. AS Sir Anthony Mason said in

his judgment in Minister for Aboriginal Affairs v Peko-Wallsend

- Ltd (1986) 66 ALR 299 at p.309:

"The limited role of a court reviewing the exercise of an

administrative discretion must constantly be borne in

mind. It is not the function of the court to substitute

its own decision for that of the administrator by

exercising a discretion which the legislature has vested
in the administrator. Its role is to set limits on the
exercise of that discretion, and a decision made within

those boundaries cannot be impugned"

The application for extension of time specifies as its

only ground that:

"An application for Custody & Guardianship has been filed

in the Family Court of Western Australia and there is a

civil action a Writ of Summons to be heard	in	The
Supreme Court of Western Australia	No.1963,	along with
five Motions for Review."

That application was drawn by the applicant in person, and	I would
not expect that it	would necessarily disclose grounds in the way

that	one	drawn	in	accordance	with	legal	advice	would.	The
affidavit	sworn	by	Mr	Barrett	on	29	September,	indicates	at

para.11 that he intends to challenge certain of the findings upon which the delegate based his decision, they being set out in

paras. 16 and 20 of the submission on which the delegate acted.

There, it is said, incorrect inferences were drawn on the basis of insufficient facts.

I will turn in a moment to those particular matters. In

the course of argument, M e McIntyre, on behalf of the applicant,

handed up a notice setting out proposed grounds of review. It

does not appear to have been filed in court, but is evidently
intended to reflect grounds upon which review would ultimately be

sought. Although it appears that the notice was drawn by the

applicant in person,	it does show an awareness	of the statutory
grounds for review.	I	will refer to that notice later in these
reasons.

The evidence before the court includes, apart from the

affidavit sworn by Mr Barrett, a statement of reasons prepared by
the delegate who made the decision for which review is sought.
That statement adopts findings on certain questions of fact and
the reasoning set out in a submission embodying an assessment,
recommendation and attachments which were put before the delegate
on 16 February 1988. The submission was prepared by Mr P.D. Watt,
the officer in charge of the Compliance and Criminal Deportations

Section of the Department of Immigration and Ethnic Affairs.

In that submission, insofar as it relates to findings on

material questions of fact, it is indicated that the applicant is an American citizen who was born on 23 February 1954 in Illinois in the United States. He first arrived in Australia on 5 February

1985 for a visit and on	1 March in that year, he married Cynthia
Rhonda Carpio, an Australian citizen. He departed Australia on	2 1

March 1985. His last arrival in this country was on 2 1 October

1986 and at that time he was granted a temporary entry permit

which authorised a two month stay and was subject to the

condition, "Employment Prohibited".

On 18 November 1986, it is said that he applied for

resident status in Australia, on the basis of his marriage to an

Australian citizen, but that application was rejected on 13

November 1987 as the marriage had broken down and the Australian

spouse had withdrawn her support for his application. An

administrative appeal against the rejection was lodged, but was received, it is said, after the expiry of the appeal period and subsequently "declared invalid" by the Acting Director of Review

on 21 January 1988.

AS to the history of the temporary entry permit and the

applicant's authority to remain in Australia, it appears that

pending the determination of his application for resident status,

a letter was sent on	20 November 1986 which included the following
paragraph:

"In an endeavour to streamline administrative procedures,

extensions to temporary entry permits will not be issued

while applications for resident status are being

processed. You are permitted to remain in Australia

until a decision is made on your application."

And on 17 February 1987 a further letter was sent informing the

applicant that, based on the information he had provided, his
application had been approved "in principle" only. That	letter

contained a paragraph in the same words as those quoted from the

letter of 20 November 1986.

It would appear therefore, that it was accepted that no

temporary entry permit would be issued and that the applicant

would remain in Australia without the benefit of such a permit

pending determination of his application. On 30 September 1987, a

letter was sent to Mr Barrett from an officer acting on behalf of
the Reginal Director of the Department of Immigration and Ethnic

Affairs, asking questions relating to the current status of his

marriage and whether he or his wife had initiated divorce

proceedings. It referred to the fact that his wife had made a

public statement saying she believed that he had married her to

obtain resident status in Australia. He was invited to refute

that claim. He was also asked whether there were any other

factors not previously brought forward which he would like to	be
considered in his application.

Mr Barrett responded by a letter of 4 October 1987

pointing out that his wife had left him in June 1987 and that	he
had heard nothing from her since she left. He had not initiated divorce proceedings and had nothing in the way of correspondence

or communication from her. As to her statement that he had

married her so that he could obtain citizenship in Australia,	he
said this was completely unfounded. When they married in March 1985, they had agreed to live in America. He had correspondence
that would prove this. His wife, he said,	is Aboriginal with very
strong family ties and after his return to America he received

word from her that she had changed her mind and wanted to remain in Australia. He returned to Australia, he said, after his wife refused to come to America. He claimed to have a copy of his

wife's application for immigration to America, initiated a couple

of months after their marriage in March 1985. He said, in his

letter, that he wanted to be re-united with her, as she was

carrying his child. AS a former United States marine who had

travelled a large part of the globe with eight years active duty,

he thought it would have been better for the marriage had they

lived in America. However, he is more concerned that both he and
his wife are happy, rather than where they live. He pointed out
that he had lived in Australia for a year and had been relatively

successful in business here and had many friends as well as

business clients. His heart, he said, would always be in

Australia as long as his wife and child were here.

Ultimately, on 13 November 1987, the application for

resident status was refused. According to Mr Barrett, he did not

receive a copy of the letter advising him of that refusal until 23

December 1987. He spoke to a secretary at the office of the

Department of Immigration and Ethnic Affairs and was told that the

deadline for filing an (administrative) appeal against he

decision of the Department was 22 January 1988. He lodged an

appeal on that date. That "appeal" was, in substance, a request

for reconsideration which was required under administrative review

arrangements, to be lodged within 28 days of the notice of the

decision in question. It was evidently accepted by the Department

that there might have been some confusion in relation to the

address to which the original advice was sent, and so a 28 day

extension to 20 January 1988 was granted within which to lodge the

appeal. However, acting, as he says, on the advice of a secretary

in the Department, Mr Barrett lodged his appeal two days out of

time. By a letter dated 28 January, an officer of the Secretariat of the review body, the Immigration Review Panel, advised Mr

Barrett that as he was out of time he was ineligible to seek

re-consideration by the Panel.

On 29 January, the applicant was apprehended by

officials of the Department as a prohibited non-citizen at the

East Perth lock-up, where he was being held in connection with

certain outstanding moment, to refer to the content of those particular charges. state charges. It is unnecessary, for the

When approached he was interviewed with respect to his

situation, including his marriage to Cynthia Rhonda Carpio. He
told the interviewing officer that he had a child by her but knew

personal circumstances and gave information concerning his

no further details. lie also said that he had a girlfriend, Sonya

Damjanovic, and that the duration of their relationship was five

months. That relationship had become s rious two m nths

previously, when Miss Damjanovic became pregnant. MC Barrett had

been living with her and contributed $180 per week to meet

household expenses. Miss Damjanovic was on a supporting mother's

benefit. As to Barrett's own family, the papers indicate that his

mother, four brothers and five sisters, live in Chicago in the

United States.

In the course of a subsequent interview, conducted on 8

February 1988, MC Barrett was recorded as saying that he had

worked as a bouncer at the Jules Night Club where he came into contact with many attractive women. He said one of these was a

woman called Vesna who was carrying his child. Besides his de

facto wife, Sonya, and the woman, Vesna, he had, he said, many lady friends. His counsel now points out that Mr Barrett was, at the time of that interview labouring under the mistaken belief, as

was his friend Vesna, that she was pregnant. This has turned out

not to be the case. He also said that he had a child named Lamar,

who had been born in November 1983 in the Phillipines, and whom he

had never seen, but to whose maintenance he had contributed.

Without going through the detail of the delegate's

submission, I refer to two paragraphs mentioned by the applicant's

counsel in relation to the merits of his case. The first is para.

16 in which the recommending officer submitted to the delegate.

"It would be open to you in the first instance to grant
Mr Barrett a further temporary entry permit. However

you may consider such a grant inappropriate in the face

of his breach of migration law and criminal convictions.

He came to Australia for a two month visit, applied for

resident status which was refused on 13 November 1987

and is still in Australia. You may take these matters
into account and decide against the grant of a further

temporary entry permit."

And it is said, that the time spent in Australia since his

application for resident status was refused, should not be weighed in the balance against him as that was a period taken up with the pursuit of possible review by the Department and that at least

from 29 January, some 19 days prior to this assessment submission,
he had been in custody.

11. ..

The reference in para.16 to the fact that, after

notification of refusal, he had remained in Australia instead of

leaving the country, is	a matter which one might justifiably say
should carry little weight in the mind of the delegate. And	it

was not submitted by the assessment officer, Mr Watt, that the

matter had to be given great or any particular weight. It was

simply put as a matter which, along with the applicant‘s criminal

convictions, could be taken into account.

Now unless I could be satisfied that there is some

prospect of showing that that consideration was quite irrelevant

to the determination that the delegate had to make it would not,

in my opinion, constitute a ground for review. As Lee 3. in

James Boyd McPhee v The Minister of State for Immigration, Local Government and Ethnic Affairs (unrep. 23/8/00: Lee J.), said at p.30-31:

“TO establish such a ground for judicial review it

is necessary to demonstrate that the decision-maker has

treated such irrelevant considerations as elements

leading to the formation of his decision and has not
merely recited such items as part of the background or

context in which his decision was formed.

Some examples of the latter class of considerations

have been identified earlier in these reasons. They may

be seen as matters of marginal or peripheral relevance	that did not loom large in the mind of the delegate,
notwithstanding that they should not have b en
considered at all.”

Having regard to all the material that was before the

delegate, including the precise circumstances under which the

notification of the refusal of the application for resident status and the disallowance of the application for review arose, there is nothing to suggest that he did not have regard to those facts, and

weigh appropriately the fact of the applicant's remaining in this

country after his application had been refused. And in the

reasons of 8 March 1988 which are attached to Watt's submission,

he indicates that he based his decision not only on that

submission, but also on the annexures thereto.

The other matter eferred to is para.20 of the

assessment in which it is said inter alia:

"You may give reduced weight to Mr Barrett's de-facto

relationship inview of his statements that i) apart from

his wife and MS Damjanovic he has another girl Vesna

Zovko pregnant to him and he has a child in the

Philippines whom he has never seen, and ii) "besides

Sonya and Vesna I have many lady friends".

Counsel for the applicant submitted that the existence

of a child in the Phillipines is an irrelevant matter and that

there could be evidence adduced that the statement as to the

pregnancy of the woman, Vesna Zovko, is factually incorrect albeit

it was a statement made by the applicant in the mistaken belief

that it was true.	In my opinion, however, the matters mentioned
in para.20	are to be weighed in the balance in assessing the
nature of the applicant's	relationship with his de facto wife and,
perhaps, also whatever relationship might have existed with his	de
jure wife. The fact of the "false alarm" pregnancy itself is	of
less importance, perhaps, than the indication of a relationship	of

intimacy with Vesna Zovko. In my opinion, the question of the

weight to be given to the relationship with the de facto wife,

having regard to these other factors, is a matter that could be

taken into account and be assessed by the decision maker. I am

not satisfied that the mere consideration of them and the

possibility of giving reduced weight to the de facto relationship

is indicative of any error. These are matters which go to what

may properly be called "the merits of the case".	They do	not, in
my opinion, disclose any error in principle.

So far as the draft notice of grounds of review is

concerned, there are various grounds set out in it, including

failure to take into account as relevant factors the fact that the

marriage might have been reconciled, that there	is a child of the
marriage, that the inability of the child to see his father	or of

the father to have access to the child will cause a great deal of

suffering, that the de facto wife was seven months pregnant at the

time the deportation Order was signed and that the applicant's

daughter, who was born on 5 April 1988, is five months old. As to

that latter ground, it is relevant to note that the birth of the

daughter post-dated the decision in respect of deportation by a

period of some three months. There is also reference to the

application of an inflexible policy in denying the applicant the

right to appeal. That is evidently a reference to the application

for eview by the Immigration Review Panel. Aground of

unreasonableness is also raised on the basis that the respondent
had decided to deport the applicant after his Australian born wife

. 14.

had been separated from him for only five months. As to that,

there appears to have been conflicting evidence before the

respondent. The uncertainty of the marriage being reconciled

existed at the time the order for deportation was signed.

The respondent, it is said, also failed to take into

account as relevant considerations the fact that the	applicant's
application for permanent residence had been approved	in principle

and a Worker's permit issued, and that he had set up his own

business "Dog Training in Your Home", and that he was very

successful in it.

Having regard to the materials before the Court, none of

the grounds, in my opinion, go to anything other than the question
of review on the merits. If there were such a facility available
it might well be that some of these would disclose factors that
could be taken into account in deciding what the proper decision

on deportation should be. Given, however, the role of this Court,

I am satisfied that the applicant has disclosed on the material, no basis for holding out any hope that he might succeed on a substantive application and in my opinion, on that basis, the

application for extension of time must be dismissed.

, .

15.

I certify that the preceding

fourteen (14) pages are a true copy of

the Ex Tempore Reasons for Judgment of

his Honour Justice French.

Associate: %L

Counsel for the Applicant: Mr G. McIntyre
Solicitors for the Applicant: Aboriginal Legal Service of Western

Australia (Inc)

Counsel for the Respondent: Miss I. Peterson

Solicitors for the Respondent: Australian Government Solicitor

Date of Hearing:  4 October 1988

Date of Judgment: 4 October 1988