Bedro, G. v Minister for Immigration & Ethnic Affairs
[1987] FCA 468
•26 AUGUST 1987
Re: GLORIA BEDRO
And: THE HONOURABLE MICHAEL JAMES YOUNG MINISTER OF STATE FOR IMMIGRATION AND
ETHNIC AFFAIRS
No. VG 160 of 1987
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.(1)
CATCHWORDS
Administrative Law - judicial review - decisions to refuse permanent resident status and order deportation - whether procedural fairness required opportunity for applicant to respond to statements allegedly made by departmental officer - whether policy applied without regard to merits
Administrative Decisions (Judicial Review) Act 1977 ss. 5(1)(a), 5(2)(f)
Migration Act 1958 ss. 6A, 18
Kioa v. West (1985) 159 CLR 550
HEARING
MELBOURNE
#DATE 26:8:1987
Counsel for Applicant: Mr N. Moshinsky
Solicitors for Applicant: Cooper Korbl & Co.
Counsel for Respondent: Mr C. Maxwell
Solicitors for Respondent: Australian Government Solicitor
ORDER
The decision of the respondent, dated 15 June 1987, refusing to grant a further temporary entry permit to the applicant be set aside.
The decision of the respondent, dated 15 June 1987, refusing to grant permanent resident status to the applicant be set aside.
The decision of the respondent, dated 15 June 1987, to refuse to allow the applicant to depart from Australia voluntarily be set aside.
The decision of the respondent, dated 15 June 1987, to order the deportation of the applicant be set aside.
The applicant's application for a further temporary entry permit be referred to the respondent for further consideration in the light of the reasons for judgment.
The applicant's application for permanent resident status be referred to the respondent for further consideration in the light of the reasons for judgment.
The respondent Minister pay the costs of the applicant, Gloria Bedro.
(Note: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules).
JUDGE1
This is an application by Gloria Bedro (the applicant) under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) for an order of review of decisions made on 15 June 1987 by the delegate of the Minister for Immigration and Ethnic Affairs (the delegate). The amended application, filed on 8 July 1987, described those decisions as follows:-
"1. That the applicant's continued presence in Australia not be authorised.
2. That the applicant's temporary entry permit not be:
(a) extended;
(b) renewed.
3. That the applicant not be granted a further temporary entry permit.
4. That the applicant not be granted permanent residence in Australia.
5. That the applicant did not fulfill one or more of the conditions of Section 6A(1) of the Migration Act for the grant of a permanent entry permit.
6. That there were no strong compassionate or humanitarian grounds for the grant of an entry permit to the applicant.
7. That the applicant be deported from Australia.
8. That the applicant not be permitted to depart Australia on a voluntary basis.
9. That the decision to deport the applicant from Australia not be revoked or alternatively the refusal of the respondent to make a decision whether or not to revoke the decision to deport the applicant from Australia."
At the applicant's request under s. 13 of the Judicial Review Act, the delegate furnished a statement of reasons, dated 29 June 1987 (the statement of reasons), for four decisions made by him on 15 June 1987 cp. paragraphs 3, 4, 7 and 8 above. In that statement he said that he had:-
". . . made the following decisions on 15 June 1987 in respect of Gloria Bedro (the applicant).
(i) I refused to grant a further temporary entry permit pursuant to Section 6 of the Migration Act 1958 (the Act);
(ii) I refused the grant of permanent resident status to the applicant under s. 6A of the Act;
(iii) I refused to allow the applicant to depart from Australia voluntarily;
(iv) I ordered the deportation of the applicant under s. 18 of the Act.
I based my decisions on the attached submission from Paul H Borg dated 15 June 1987 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."
The "attached submission from Paul H Borg" (the departmental submission), to which the delegate referred, included the following passages:-
"A. Findings on material questions of fact
2. Personal particulars Full name: Gloria Bedro Date and place of birth: 4 July 1957 - Philippines
Nationality/Citizenship: Filipina Details of arrival: 3 February 1984 - Melbourne
3. The subject entered Australia as a visitor on 3 February 1984 and was issued with a temporary entry permit
(TEP) subject to the condition "employment prohibited without written permission of an authorised officer" valid for six months from date of arrival, until 3 August 1984 and has now overstayed this permit by over two years and eight months.
4. The subject was located at her place of residence and employment on 11 May 1987 by departmental officers following receipt of anonymous information. She was not placed in custody, pursuant to section 38 of the Migration Act 1958 (the Act) as a suspected prohibited non-citizen, but was required to cease employment and to report twice weekly to the Department on Tuesday and Friday.
5. At an interview on 11 May 1987, the subject stated that she:-
. had not previously visited Australia.
. had not sought migrant entry from overseas.
. had not sought a further temporary entry permit.
. had not sought permanent residence or any other form of change of status.
. had not made any approach to this Department for any purpose.
. was single.
. had no romantic relationships in Australia (a relationship in 1985 had terminated).
. had a sister in Australia and had parents, six brothers and a sister in the Philippines.
. had worked overseas as a Mid-Wife and in Australia had worked as a maid for two years caring for an elderly lady with whom she lived.
. was paid $180 per week with full board.
. had completed secondary schooling in the Philippines.
. had formal skills as a mid-wife and three years experience.
. had no return ticket.
. had no assets in Australia or overseas.
. was not criminally recorded either overseas or in Australia, and that she had not previously been deported or excluded from any country and had received no prior direction to leave Australia.
. wished to remain in Australia because:
- enjoyed living here - had a good job - saw a better future here - has a sister living here who is divorced.
. did not wish to be deported because she "would feel terrible and she has learned many things here".
. would advise on voluntary departure proposal in 48 hours.
. foreshadowed representations by her employer Dr. Leon Carp.
. had not received Social Security benefits and did not have a Medicare Card.
6. On 13 May 1987 an application for a further temporary entry permit and an application for resident status in Australia on compassionate grounds, pursuant to Section 6A1(e) of the Migration Act 1958, was lodged by Solicitors Cooper, Korbl and Co.
7. The grounds of the applications were twofold: Miss Bedro's own personal circumstances and those of an aged Australian resident, Mrs Mary Carp, of Flat 3, 40 Bruce Street Toorak Vic namely:
- for the care, on a full-time basis, of an extremely sick elderly woman.
- the subject, a trained nurse, has been caring for the resident since 27 March 1985.
- a strong bond has developed between the women so that there is now an emotional as well as a physical dependence.
- the subject is irreplaceable and it is highly unlikely that Mrs Carp would survive her departure.
- the subject would have no opportunity to work in the Philippines where she has elderly parents requiring her support.
8. The application was supported by statements from four medical practitioners:
1) Dr Julian Heinze, F.R.C.S., F.R.A.C.S., F.R.A.C.O., Cabrini Medical Centre, Malvern.
2) Alexander Friedman, M.B.B.S., B Med Science, F.R.A.C.P., Cabrini Medical Centre.
3) Mr Adrian L Polglase, M.S. F.R.A.C.S., F.R.C.S. (Eng. & Ed.) F.A.C.S., Cabrini Medical Centre.
4) Dr Leo Phillips, F.R.C.P., F.R.A.C.P., D.C.H., Cabrini Medical Centre.
9. The supporting statements read as follows:
Dr Julian Heinze - Mrs Carp is legally blind and severely debilitated and requires home help. I understand that she has recently had home help which has suited her needs very well indeed and I would recommend that this continue if at all possible. (Dated 12 May 1987)
Mr Alexander Friedman -
This elderly lady is totally dependent on Gloria Bedro who has been her constant companion for the past few years.
Without Gloria's constant help, Mrs Carp would not have successfully completed an eye operation. I found that nursing staff (and even family members) were not able to obtain co-operation from Mrs Carp, but Gloria managed that patient exceptionally well.
A substitute for Gloria would not be helpful, and without her, Mrs Carp will certainly become confused and unmanageable as had occurred in the past. (Dated 11 May 1987)
Mr Adrian L Polglase -
I have recently treated Mrs Mary Carp for a debilitating bowel condition and during Mrs Carp's inpatient stay was aware of the dedicated care which the above mentioned provided for Mrs Carp. I consider that she has had a very positive effect on Mrs Carp's health and well-being particularly as she seemed to be with her both day and night while she was an inpatient at Cabrini Hospital. I believe Mrs Carp's health could be seriously disadvantaged without Gloria's attention. (Dated 12 May 1987)
Dr Leo Phillips -
This is to certify that I have seen Mrs Carp medically on many occasions over the past two years during which time she has been looked after continually by Gloria Bedro.
Gloria has been her constant live in companion house keeper and nurse on a full-time basis, Mrs Carp is very elderly and has extremely poor vision being almost blind and also has a poor memory. She is incapable of independent care.
Without the full-time assistance of Gloria it would be necessary to admit her to a hospital or nursing home which her family are naturally reluctant to do.
For the past two years since Mr Carp died Gloria has looked after Mrs Carp in a devoted and exemplary manner caring for her both day and night. Gloria as a trained midwife has used her expert skills as a nurse as well as a housekeeper.
Mrs Carp is fully dependent on Gloria both physically and emotionally and if she were to lose her expert care I believe she might very likely not survive the shock because of her delicate state of health.
Mrs Carp recently underwent major eye surgery and during this time Gloria stayed with her in hospital from 9 a.m. - 8 p.m. alternating care with a special night nurse.
It would certainly not be possible to replace Gloria with any other person or combination of persons to care for Mrs Carp and maintain her health in such an excellent manner.
Any resulting demise of Mrs Carp if Gloria was forcibly relieved of her current duties would be held by me to be the direct responsibility of the immigration authorities and an inhumane act to an old disabled citizen of this country.
On these strong and compassionate grounds I would respectfully request that Gloria not be deported back to her own country during the life time of Mrs M Carp. (Dated 12 May 1987)
10. An interview between an officer of the Resident Status Sub-Section, Gloria Bedro and a Mrs Phillips, daughter of Mrs Carp, was conducted on 26 May 1987. The responses as reported may be summarised as follows:-
Miss Bedro:
- she had commenced work as a live-in help for Mrs Carp on 27 March 1985, at first in Elwood and later at the present address in Toorak.
- she was a qualified midwife of three years training and three years experience.
- she was involved in her sister's marital problems and had a romantic attachment of her own in 1984/85.
- her sister is not in ill health but is now alone in Australia and needs sisterly comfort.
- an expected marriage did not eventuate through a romantic relationship in 1984/85.
- she is a qualified mid-wife and employment opportunities are few in the Philippines.
- she knew that she was not allowed to work and should have returned to the Philippines by 3 August 1984.
- she described a typical day: helping Mrs Carp out of bed, bathing and dressing her, preparing meals, taking Mrs Carp for a short walk, shopping, going to the coffee shops and cinema or visiting relatives.
- she is trusted in money matters and needs only to ask.
- she regards Mrs Carp and family as her family (and) would continue with her care for Mrs Carp for the rest of her (Mrs Carp's) life if allowed to remain.
- she had not explored the possibility of alternative employment.
- she does not know Mrs Carp's life expectancy.
Mrs Phillips:
- Miss Bedro is treated as one of the family.
- she is paid for her services in the form of free board, expenses and gifts from time to time. Funds of $150-180 per week are provided which are sufficient for food, taxi fares and entertainment for herself and Mrs Carp.
- she is not being exploited: The total cost to the family is no less than if they had engaged a housekeeper plus a part-time nurse.
- nursing home care could be provided but it is the supporting relationship provided by Miss Bedro which is beneficial.
- the family do not want Mrs Carp to be put into an institution and alternative care is not readily available.
- Mrs Carp's condition has deteriorated since Miss Bedro was located on 11 May 1987, instructed to stop working and temporarily replaced.
- Mrs Carp has been an invalid for some time and previous care was provided by Mr Carp who died at the age of 92.
- Mrs Phillips and her family would be prepared to guarantee that the subject would not be a burden on the Australian economy.
- Mrs Carp's eye operation in February 1987 was unsuccessful. She was in hospital for 7 days at the time and the subject was with her then. She had another operation in about March 1987 to remove a bowel obstruction and was in hospital for 3 days. She had had no long term serious after effects as a result of these operations. Part of the subject's duties are to ensure that Mrs Carp receives prescribed vitamins and other tablets.
11. On 30 May 1987 the Assistant Director, Temporary Entry considering Miss Bedro's application for permanent residence with due regard to its merits and the breaches of migration policy recommended that the application be rejected.
12. On 3 June 1987 Mrs Phillips telephoned an officer of the Department. During that conversation she mentioned that the subject was staying with her (the subjects) sister in Richmond and that Mrs Carp appeared to be getting used to her new housekeeper. Mrs Phillips was anxious to know the outcome of the subject's case so that she could advise this new lady whether she would be staying or not."
Part A of the departmental submission consisted of paragraphs 2-12 above, which constituted Mr Borg's recommendation to the delegate as to "findings on material questions of fact"; Part B contained a list of the "evidence or other material on which the findings are based". Part C contained Mr Borg's "assessment".
Mr Moshinsky, of counsel, on behalf of the applicant, sought leave to tender an affidavit, filed on 17 July 1987, sworn by Mrs Phillips, whose mother, Mrs Carp, is referred to in paragraphs 9, 10 and 12 of the departmental submission, which are set out earlier. The affidavit contained evidence as to the contents of the conversation (referred to above in paragraph 12) between Mrs Phillips and an officer of the Department (Mr Cote) on 3 June 1987. Mrs Phillips' affidavit evidence conflicted with the departmental record of the conversation (contained in an attachment to the departmental submission) and also conflicted with the statement in paragraph 12 of the departmental submission; Mrs Phillips deposed that she did not say that her "mother was getting used to her new companion . . ." and also deposed that she had said to Mr Cote that her mother "did not appear to accept the new companion and wanted the Applicant to return".
Mr Maxwell, of counsel, on behalf of the respondent, objected to the tender of the affidavit, submitting that it was directed only towards showing that there was a dispute as to the facts as distinct from being directed towards establishing the non-existence of a "fact". He contended that its admission would lead to the court making decisions as to matters of fact, going to the "merits" of the matter; those matters are, of course, to be determined by the delegate and not by the court.
The affidavit of Mrs Phillips was admitted in evidence but the parties were informed that the court would not determine any question of fact as to what was said in the conversation of 3 June 1987 - that not being any part of the court's function. In the result there was no cross-examination of Mrs Phillips as to the contents of her affidavit, nor of the departmental officer, Mr Cote, who gave oral evidence as to the accuracy of the file note made by him of his conversation with Mrs Phillips.
Mr Moshinsky advanced submissions in support of grounds 1 and 2(ii) of the amended application. It is convenient to deal first with ground 2(ii) which read as follows:-
2. The making of each decision was an improper exercise of the power conferred on the respondent in that:-
. . . .
(ii)there was an exercise of power in accordance with rules of policy without regard to the merits of a particular case."
In support of that ground Mr Moshinsky relied on paragraph 19 of the departmental submission, (the reasoning in which had been adopted in the statement of reasons), which read as follows:-
"19.In considering the circumstances of Ms Bedro's care for Mrs Carp you may consider that the provisions of policy as described in the Grant of Resident Status Handbook Chapter 3.9.2 and the Migrant Entry Handbook, Chapter 8.8, in relation to "Special Need Relatives" (although Ms Bedro is not a relative) have some relevance. Those guidelines are outlined at attachments J and K.
The medical evidence already referred to supports the subject's continued stay in Australia so that the care she has provided can go on. In particular Dr Phillips, in his letter of support dated 12 May 1987 states in part "Any resulting demise of Mrs Carp if Gloria was forcibly relieved of her current duties would be held by me to be the direct responsibility of the Immigration authorities and an inhumane act to an old disabled citizen of this country".
Whilst Dr Phillips has not substantiated his statement you may consider it reasonable to evaluate Mrs Carp's situation in terms of Chapter 8.8.3 of the Migrant Entry Handbook which states: . . . "People will not be approved in this category . . . - when welfare, hospital, nursing and community services, which are the normal and sometimes only course open to other Australian residents, are available."
Mrs Carp's family state that they have the resources to provide such assistance for her . . ."
Attachment K contained chapter 8.8 of the Migrant Entry Handbook (referred to above) which stated:-
"8.8 Special need relatives sub-category 1A5
8.8.1 This category provides for the migration of a relative able and willing to assist an Australian resident on a continuing basis in a situation of permanent or long term need brought about by death, disability, prolonged illness or some other serious circumstances.
. . . .
8.8.3 People will not be approved in this category
. . . .
. when welfare, hospital, nursing and community services, which are the normal and sometimes only course open to other Australian residents, are available.
8.8.4 Two examples of situations in which a special need relative might be approved are:
. the death or serious illness of a spouse leaving the partner with problems in bringing up young children and coping generally
. a crippling disability, creating a need for physical assistance."
Mr Moshinsky submitted that the delegate did not properly apply the policy to the facts as he did not consider the possibility that the facts might fall within the second matter in 8.8.4. above; further, that the delegate did not consider the true circumstances because the delegate, in his own words, had "adopted the reasoning set out in the assessment at Part C" of the departmental submission, which included the statement (see paragraph 19, above) that "you may consider it reasonable to evaluate Mrs Carp's situation in terms of Chapter 8.8.3 of the Migrant Entry Handbook which states '. . . People will not be approved in this category . . . when welfare, hospital, nursing and community services . . . are available'". Mr Moshinsky submitted that Mrs Carp did not come within that category as she was a person "who relies on personal attention from an individual person . . .".
I accept Mr Maxwell's submission that the policy was not applied directly but was considered by way of analogy only; some support for that view is given by the statement, in paragraph 19 of the departmental submission, "that the provisions of policy . . . (although Ms Bedro is not a relative) have some relevance". I am not prepared to uphold Mr Moshinsky's submission that there was an exercise of a discretionary power in accordance with a rule of policy without regard to the merits of the particular case. In my opinion ground 2(ii) has not been made out.
The other ground relied on in the application was ground 1 which read:
"1. A breach of the rules of natural justice and/or procedural fairness occurred in the making or failure to make each decision."
Mr Moshinsky submitted that procedural fairness required that the delegate give to the applicant an opportunity to respond to the matters alleged to have been said by Mrs Phillips in her conversation with Mr Cote on 3 June 1987. He contended that those matters went to the very essence of the applicant's case and relied upon the principles enunciated in Kioa v. West (1985) 159 CLR 550. The applicant had placed before the delegate matters relating to the likely harmful effects upon Mrs Carp's health of any decision to deport the applicant, having regard to the "emotional bond" which had developed between Mrs Carp and the applicant during the two years in which the applicant had been caring for her. That matter figured prominently in the application for resident status dated 13 May 1987 (see paragraphs 7, 9 and 10 of the departmental submission set out above) and was supported by statements by a number of medical practitioners.
It is true that the applicant could have taken steps to place before the delegate, before he made his decisions on 15 June 1987, further material as to what adverse effect upon Mrs Carp's health there had been as a result of her absence from Mrs Carp's home since 11 May 1987 and did not do so. However, the opportunity to take that action did not represent an opportunity for the applicant to respond to the statements, adverse to her application, said to have been made by Mrs Phillips on 3 June 1987 to Mr Cote.
The note by Mr Cote of the conversation included the following:-
"Mrs Phillips said that she is anxious to know so she can advise the present lady, who is looking after Mrs Carp on a temporary basis, whether she will stay on or not. Mrs P. said that the applicant is not with her mother and hasn't been since the arrest. She has been staying with her sister in Richmond. Mrs P. has done this on purpose because she doesn't want her mother to be confused. She said that her mother now appears to be getting used to the new lady."
The delegate in his statement of reasons adopted the reasoning in Part C of the departmental submission. That part included the following passages:-
"19.
. . . .
Mrs Carp's family state that they have . . . replaced the subject with another lady. When Mrs Phillips spoke to an officer of this Department on 3/6/1987 she stated that Mrs Carp appeared to be getting used to the new arrangements. The subject is now not living with Mrs Carp but is staying with her (the subject's) sister. You may consider therefore that Dr Phillip's fears are not substantiated and that there is insufficient justification for the subject's continued stay on a temporary or permanent basis to look after Mrs Carp. (emphasis added)
21.
. . . .
Mrs Carp has been in the care of another person since 11 May 1987 and although missing the ministrations of Ms Bedro appears to be developing a bond with the new housekeeper." (emphasis added)
On the material before the court, it appears that the statements said to have been made by Mrs Phillips led Mr Borg to suggest in the departmental submission that "Dr. Phillip's fears are not substantiated and that there is insufficient justification for the subject's continued stay on a temporary or permanent basis to look after Mrs Carp". The material does not disclose any foundation for the statement in paragraph 21 (above) that "Mrs Carp . . . appears to be developing a bond with the new housekeeper".
In my opinion the delegate rejected an essential basis of the application for permanent resident status, (namely, that it was important in the interests of Mrs Carp's health that the applicant should be permitted to stay) and in doing so placed reliance upon statements said to have been made by Mrs Phillips to Mr Cote.
It is clear that he gave the applicant no opportunity to respond to those statements. Had that opportunity to respond been given to the applicant, it may well be that she would have approached Mrs Phillips and that, as a result, the delegate, in considering the matter, would have been able to compare Mr Cote's record of the conversation with an affidavit by Mrs Phillips to the same effect as that admitted in this hearing and to take any further investigatory action that was proper in the circumstances.
The importance of affording an opportunity to respond to an adverse statement on a critical issue was referred to by Mason J. in Kioa's case (supra at 587) in the following terms:-
"In this respect, recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn . . ."
And Brennan J. observed at 629:-
"Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made."
As the delegate, in rejecting an essential basis of the application, placed reliance upon the statements, said to have been made by Mrs Phillips, in my opinion procedural fairness required that the applicant be given an opportunity to respond to those statements. In my opinion they constituted "adverse information that (was) credible, relevant and significant to the decision to be made" (per Brennan J. at 629). I adopt, with respect, that formulation and do not accept Mr Maxwell's submission that an applicant must show that the information was "extremely prejudicial" to his application. In any event, on my reading of the statement of reasons, the information said to have been given by Mrs Phillips was such that it did in fact work to the prejudice of the applicant.
Even if I had not formed that opinion, the applicant would succeed because, as Brennan J. said in Kioa (at 629):-
"It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. The allegation in par. 22 was apparently credible, relevant and damaging. The failure to give Mr Kioa an opportunity to deal with it before making an order that Mr and Mrs Kioa be deported left a risk of prejudice which ought to have been removed. . . . The failure to give Mr Kioa that opportunity amounts to a non-observance of the principles of natural justice. The result is that the condition governing the power to make the deportation orders was not satisfied and the orders must be set aside."
A similar opinion was expressed in Kioa by Wilson J. who said (at 603):-
"In any event, it is not necessary to show that the allegation contained in par. 22 did work to the prejudice of Mr and Mrs Kioa. It is enough to show that the way was open for it to do so: see Kanda v. Government of Malaya (1962) AC 322, at pp 337-338."
Mr Maxwell also sought to distinguish Kioa on the basis that in that case the relevant information had come from a source other than the applicant and in the present case it came from a source associated with or identified with the applicant. He referred to the following statement by Mason J. in Kioa at 587:-
". . . if, in fact, the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter." (emphasis added)
Mr Maxwell also cited the reference (at 602) to "the source of the allegation", by Wilson J. who said that "there is nothing in the material submitted to the delegate on behalf of Mr and Mrs Kioa which would justify or support it" (emphasis added). Mr Maxwell relied on the words "on behalf of" used by Wilson J., and also on the decision of Neaves J. in Chan Woon Sheung v. John Richard Mahoney (unreported, delivered 24 April 1987), as supporting his submission that material obtained from some person on behalf of the applicant cannot be regarded as material "from another source", within the meaning of those words of Mason J.
The reasons for judgment in Sheung's case refer to a typewritten document, signed by the applicant's employer, which stated that the applicant worked in Australia "as a casual kitchen-hand in our restaurant from 12 October, 1979, to 3 November, 1979". That document was relied on by the applicant for the purposes of showing that he had entered Australia prior to 1 January 1980 (which was a critical issue in the case); further, it was strongly urged by the applicant's solicitor (who was aware that the Department had doubts as to the applicant's date of arrival) that the signatory to the document be interviewed. After that matter was checked by departmental officers, the decision-maker had before him telexes which cast doubt on the veracity of the employer's earlier statement. Neaves J. decided that procedural fairness did not require that the information contained in those telexes be put to the applicant, saying (at p. 16-17 of the typed copy):-
"he (the decision-maker) cannot . . . properly be said to have been relying on information obtained from another source which had not been dealt with by the applicant in support of his application. It was obtained from the very source on which the applicant relied".
In my opinion that case is distinguishable because there it was the applicant who had put forward the particular piece of evidence and, through his solicitor, requested the Department to interview the signatory. In the present case it has not been suggested that the statements, said to have been made by Mrs Phillips, were made in the presence of or with the knowledge of let, alone with any authority from, the applicant; on the contrary, in an affidavit, sworn 8 July 1987 and filed in this matter, the applicant complained of the failure to inform her of those alleged statements. Although Mrs Phillips had accompanied the applicant and made statements at the interview of 26 May 1987, in my opinion the statements said to have been made by her to Mr Cote on 3 June 1987 constituted material which could not fairly be said to have been "from the very source on which the applicant relied" (per Neaves J.). For the same reason the dictum of Wilson J. does not support the respondent's submission. It may be added that the present case is also distinguishable from Sinnathamby v. Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502, where the relevant material had been supplied by the appellant herself.
Finally, it was also submitted by Mr Maxwell that in Kioa, there was only "a limited reversal" of earlier decisions, citing Brennan J. at 612-613 as to the "variable content" of natural justice principles. However, in my opinion, the principles of natural justice expounded in Kioa required that the applicant be given an opportunity to respond to the statements recorded by Mr Cote as having been made by Mrs Phillips. Accordingly I find that ground 1 of the application is made out.
For the reasons given, the four decisions made by the delegate (items (i), (ii), (iii) and (iv) in his statement of reasons dated 29 June 1987) must be set aside and the applications for a further temporary entry permit and for the grant of permanent resident status must be referred to the Minister for further consideration in the light of these reasons for judgment. The respondent must pay the applicant's costs.
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