Bharat, V.P. v Minister for Immigration and Ethnic Affairs

[1988] FCA 501

l

' C

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY	)	NO. G.llO1 Of 1988
)
GENERAL DIVISION	1

BETWEEN:

VIJENDRA PRAKASH BHARAT

Applicant

I

8-

.

- *, THE MINISTER FO

IMMIGRATION AND ETHNIC

AFFAIRS

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

This is an application for a stay of a deportation

order, made under s.18 of the Migration Act 1958, pending the

hearing of proceedings brought pursuant to the Administrataive

Decisions (Judicial Review) Act 1977 ("the Judicial Review Act").

The principal proceedings seek review of a decision to refuse the

applicant resident status and of the decision to make the

deportation order.

of law.

It should be mphasised that judicial review is

concerned with legal questions and, in partlcular, with the

grounds set out in s.5 of the Judicial Review Act. The Court has

no power to review on the merits a decision arrived at without
denial of natural justice, procedural impropriety or other error

For the purposes of the present application, it is

therefore necessary first to consider whether there has been made

out a serious question to be tried in respect of any of the

grounds which have been taken	or whether, having regard to what
has been shown in respect of any such ground,	it is just that an

interlocutory stay should be granted. In stating the broader

alternative, I have in mind the considerations discussed in

Aboriginal Development Commission v. Ralkon Agricultural Co.	Pty
Ltd. (1987) 74 A.L.R. 505, at 509-510.

The applicant, who is a Fijian Indian, came to Australia

on 15 November 1983.	upon expiry of his second temporary entry
permit on 21 February 1984,	he remained here, and was apprehended

in May	1985, following which a deportation order was made	in
respect of him on 25 June 1985.	Before it could be	carried out,

however, he scaped from custody, and shortly afterwards

committed serious a criminal offence involving homosexual

intercourse with a male person under the age of 18 and the

commission of an act of gross indecency with such a person.	He
pleaded guilty, and was sentenced to six years and nine	months'

imprisonment, with a	non-parole period of	three years and nine
months, to date from 3 October 1985.	Such a sentence carries its

own message as to the gravity with which the matter was viewed	by
the Judge who ordered	it.

Whilst In prison, the applicant married a widow, prem

Wati, an Australian citizen who	had	been an immigrant with	her
husband from Fiji.	His story is that	he had	committed adultery

with her in Fiji, as a result of which a child was born during

her marriage whose father he is, and that he had followed her and

her husband when they migrated to Australia, pursuing his

relationship with her here before his apprehension. Her husband

died after the applicant had gone to gaol.

It is apparent that the applicant is eligible to be

granted an entry permit in accordance with s.6A(l)(b) of the

Migration Act, but such a grant can only be made in the exercise

discretion. a of In considering that exercise, the

decision-maker may properly have regard to any applicable policy,

provided he does not abdicate his responsibility to consider the

individual merits of the case. The infinite variety of human

circumstances and relationships requires that a proper exercise

of discretion must	be much more than a mere fitting of the facts
Into a rigid mould of policy.	The policy cannot simply determine

the answer. I discussed the nature of the requirements of

s.6~(l)(b) in Chumbairux v.	Minister for Immigration and Ethnic
Affairs (1987) 74 A.L.R.	480, at 492-493.

The present case presents a contrast to Chumbairux's

case. There, a marriage had been allowed to continue in

Australia over a significant period, and to foster in Australia

those relationships which a married couple commonly establish.
Here, on the contrary, the applicant's clandestine affair did not

lead to a marriage until after he had already once been ordered

to be	deported, had escaped custody, had committed a serious
criminal offence, and	had been in prison for some time. In
Chumbairux's case, the invalid decision	was based on an automatic

application of what was seen as policy. Here, it seems to me

4 .   B

that the decision-maker carefully weighed the circumstances of

the applicant, his wife and the children, of one of whom he is

said to be the genetic father, against the other factors,

including the seriousness of the offence which the applicant has

committed.

In presenting the applicant's case, Mr. Littlemore

argued that each of a series of grounds raised a serious question

to be tried.

The first matter was an allegation that there had been a

failure to consider adequately the human rights situation in

Fiji, insofar as it may impact on the applicant. It was

suggested that there was a duty to consider this because of

Australia's accession to international treaties, and also as a

matter that is in any event relevant to the making of the

decision required by the Migration Act. NO particular section of the legislation, to which reference was made, was cited, nor any treaty provision of the treaties to which that legislation is

designed to give effect. The legislation was the Racial

Discrimination Act 1975 and the Human Rights and Equal

Opportunity Commission Act 1986. Article 13 of the International

Covenant on Civil and Political Rights set out in Schedule 2	to
the latter Act provides:

"An alien lawfully	in the territory of a State
Party to the present Covenant may	be expelled

therefrom only in pursuance of a decision

reached in accordance with law and shall,

except where compelling reasons of national

security otherwise require, be allowed to

submit the reasons against his expulsion and

to	have	his	case	reviewed	by, and be
represented	for	the	purpose	before,	the

competent authority or a person or persons

especially designated by the competent

authority."

I cannot see that there has been any breach of this article, or

of any other relevant obligation imposed upon Australia by

international convention or treaty. I am also satisfied that

careful consideration was given to the human rights situation in

Fiji, and to any impact it may have upon the position of the

applicant. A departmental review of the situation in Fiji,

prepared as recently as 23 May 1988, was considered and, not

content with that consideration, the decision-maker had it

updated to as close as could reasonably be expected to the actual

moment of decision. Specific reference was made, in the

assessment accepted by the decision-maker and adopted by him, to

this factor, as a factor weighing in the applicant's favour. It

was stated that:

"He will be disadvantaged if he should return

to Fiji because of the Draconian laws and

decrees that infringe upon human rights."

I cannot see anything to support the factual basis of these submissions made on behalf of the applicant.

The next matter which was put was that there had been a

failure to consider the applicant's eligibility for certaln

special programmes, such as that relating to refugees, or programmes initiated to protect human rights and promote famlly

reunion. The evidence discloses that the applicant had

solicitors acting for him over a period of a number of months

before the decision, which was only made after the revocation of

a previous decision and a reconsideration of the whole matter.

The applicant	was made fully aware of the matters taken into
account in the previous	decision, and was invited to put his case

as to why a different decision should be reached. I think it is
plain that the department was entitled to consider the matter on

the case put by the applicant after such an ample opportunity had

been offered to him. The situation might perhaps, in some

circumstances, be different, if the department found itself

confronted with a case clearly unskilfully, ineptly or ignorantly put, but this is not such a case. I have been referred to a recent decision, as yet unreported, of Mr. Justice Fisher delivered on 18 July of this year in Re Nand. At page 10 of that

decision, his Honour referred to a similar argument which was

presented to him. He said that the applicant in that case was not informed that he had the right to apply for refugee status. His Honour commented: "There is no obligation in law for the

Department or its officers	to advise the applicant concerning
refugee status and the delegate had	no authority to determine

this status". He rejected the ground, and in this case also I

can see no substance in it.

The next matter put was that there had been a failure to

consider the interests of the child, who is claimed to be

genetically a child of the applicant. However, the assessment

contains the following statement: "Mrs. Bharat's two younger

daughters are said to regard him as a father, and would also

suffer hardship if Hr. Bharat is deported." This statement is to be read in the light of the fact that the assessment also makes it clear that Mr. Bharat claimed to be the father of one of those

children, and that the declslon-maker accepted that the children

did in fact regard hlm "as a father figure." The assessment

pointed out that he had been less than truthful in his previous

dealings with the department, a statement amply supported by	the
material before the decision-maker, and that there	was a paucity
of evidence produced to show that in fact he	was the father of

the child in question. It seems to me that the hardship of the

child was in fact quite expressly considered. The argument

advanced seems simply to derive from the fact that the department

did not accept, as necessarily established, that the child was in

fact his, she having been born during her mother's previous

marriage; but all the information about the child's position was

taken into account, and her hardship was considered on the basis of that information. In the circumstances, there is no reason to

think that here could possibly be anything further the

department should have done in that regard, having interviewed

the people concerned and taken into account the information they

provided and the hardship of the child which that information

suggested might possibly be involved.

It was then submitted that an irrelevant consideration

was taken into account, being the fact that the applicant on a

prior occasion, having been apprehended as prohlbited a

non-citizen, had escaped from custody. This point seems to	me to
be without any substance whatever,	and ultimately It was not

pressed, but a further allegedly irrelevant consideration was

then put forward. It	was said that the decision-maker had taken
into account Mrs. Bharat's knowledge, at the time	of her marriage

8.   I,

to the applicant, that he was at that time llable to deportation.

I think this polnt also is without substance, since the factor

taken into account was clearly relevant to a consideration of the

discretion arising under s.6A(l)(b).

Then it was said that there was an unreasonable exercise

of power, insofar as the assessment stated:

"Whilst the skills he claims to have are in

demand in Australia, Mr.	Bharat has produced
no evidence of his	qualifications."

It was said that this was unreasonable because Mr. Bharat's

imprisonment would have made it impossible for him to provide

such evidence; but the qualifications in question are

qualifications as an electrician, and it cannot be thought that

it would be beyond the capacity of a man represented by

solicitors over a period of many months to provide some evidence

that he was a qualified electrician, if that were the case, and

he considered	it	relevant to his application. In any case, I
find as a fact,	on all the evidence in this case, that this

particular matter was not a matter which could possibly have

affected the decision. It is clear that the decision did not

turn on the nature and extent of the applicant's qualifications

as an electrician. As I have already remarked, the evidence

shows that he was expressly invited, and indeed urged, to submit documentary evidence in support of claims whlch he thought would assist his application.

Then it was said that there had been an unreasonable

exercise of power, insofar as there had been reliance on the

presumption of law regarding the paternity of the child born in

the	course of the prior marriage, and in the treatment of what
the applicant and	Mrs. Bharat had to say about that matter as
constituting claims, rather than	as establlshing as fact what

they claimed. I do not see how it can possibly be an error of

law to have, and express, doubts about claims of an applicant who

admits he has lied about his relationships in the past, and who has been convicted of a very serious criminal offence against a minor. To that consideration must be added the legal and natural

presumption that a child born during a marriage is in fact a

child of that marrlage, but here the conclusion is not for the

Court. The conclusion was for the decision-maker, and there has been no evidence whatever placed before me to suggest that	he did
other than consider the applicant's claim	on all of its merits.

Then it was said that there was an unreasonable exercise

of power, insofar as a government policy was taken into account regarding those seeking resident status who have been convicted of a criminal offence. That policy includes the statement:

"The objective of the character requirement is

to	protect	he	interests	of	Australian
citizens	and	residents	by	ensuring	that

people who are likely to represent a law and

order or security problem are not allowed to

remain Australra. It is a policy

requirement	that	people	to	be	granted
resident	status	be	of	good	character.

Applicants aged 16 years or over are to be

checked to establish whether they have been
convicted of an offence in any country."

In this case it should be borne in mind that the

applicant, at the time of the commission of the offence to which

he pleaded guilty, was well over 30 years of age. I cannot see

any substance in the suggestion that it would be an unreasonable

exercise of power for	a	decision-maker to take into account	a
policy stated in those terms.	As I	have already pointed	out,

taking into account a policy is quite a different thing from

automatically applying it. The anxious consideration, which, as

the evidence in this case reveals, was given to the whole of the situation of the applicant, his wife and children, makes it plain

that there was no failure to appreciate the true legal position

of policy considerations.

Finally, it was said that there had been a denial of

natural justice, and two matters were adverted to under this

heading. First, it was said there had been no notice given to

the applicant of the case considered against him, that is, of the

matters which gave rise to concern and were adverse to the

upholding of his application, and secondly, that he was not given

an opportunity to put forward evidence of his professional or

trade qualifications. I think the simple answer to both these

points is that there is not a shred of evidence to suggest that

there existed any factual basis for either of them. The

applicant, as I have said, had solicitors acting for him, and was

notified in detail of the matters that had led to the previous
deportation order and the previous refusal of resident status.

Those matters clearly remained the substantial matters which were

reconsidered when the later decisions were made. Through his

solicitors, the applicant had the most full opportunity to present his case. It was made clear by the decision of the Full

Court in	Sinnathamby v.	Minister for Immigratlon and Ethnic
Affairs (1986) 66 A.L.R.	502 at p..506, and	I quote from the

judgment of Mr. Justice Fox:

"There is, for example, no general requirement that an applicant be informed of the sources

of all the information which the Department

receives concerning his or her case, or the content of that information. As a general rule, when some consideration personal to the

applicant is to be taken into account against

him or her the rules of natural justice

require that the applicant be given a chance

to comment or contradict:  see Kioa, p e ~

Mason J. at p.348. The g u i d m e IS

fairness; in general the party should have	an
opportunity of dealing in	an appropriate way
with matters with which he can reasonably	be
expected to be able to	deal, and which might

assist his or her case."

I can see nothing in the evidence in the present case to suggest

that the applicant did not have, to the fullest extent, the

opportunity he was required to be given by the law as so stated.

For these reasons, I have concluded that there is not a

serious question to be tried, and the application is accordingly

dismissed with costs.
I	certify that this and the

preceding ten (10) pages are a
true copy of the Reasons for
Judgment herein of hls Honour

Mr. Justice,Burchett.

Dated: 4 8 July, 1988.