Borland, Paul James v Minister for Immigration & Ethnic Affairs

[1987] FCA 221

Re: PAUL JAMES BORLAND
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NSW G46 of 1987
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.

CATCHWORDS

Administrative Law - Immigration - Decision to refuse application for permanent entry permit - Applicant previously granted permanent residence - Effect of departure from Australia - Whether s.9 of Migration Act applies to permanent residents - Erroneous information supplied to applicant by Australian High Commission overseas - Whether any estoppel - Failure to take into account fact of inaccurate information - Basis upon which application considered.

Migration Act 1958 ss.6, 6A, 9.

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

HEARING

SYDNEY

#DATE 11:5:1987

Counsel for the Applicant: Dr G A Flick

Solicitors for the Applicant: Dibbs, Crowther & Osborne

Counsel for the Respondent: Mr D M Yates

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The decision made by the respondent to refuse the application of the applicant dated 7 January 1985 for the grant to him of a permanent entry permit pursuant to ss.6 and 6A of the Migration Act 1958 be set aside.

The said application be referred back to the respondent for further consideration according to law.

The respondent pay to the applicant his costs of this proceeding.

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

JUDGE1

This case is, in its nature, common enough. The applicant, Paul James Borland, challenges under the Administrative Decisions (Judicial Review) Act 1977 certain decisions made on behalf of the respondent, the Minister for Immigration and Ethnic Affairs, in connection with an application made by him for an entry permit, under s.6 of the Migration Act 1958, enabling him to remain permanently in Australia. However, the circumstances of the case are unusual. This is not the typical situation of a person whose status was merely that of a visitor, who has overstayed a temporary entry permit and who now seeks to resist deportation. At one time the applicant was a permanent resident of Australia but, in the view I take, he lost that status because of the operation of s.9 of the Migration Act and of a series of events for which each party bears some responsibility.

1. Mr Borland is a native of Canada. He came to Australia in December 1979, having recently attained his 19th birthday. He entered the country pursuant to a temporary entry permit, valid for nine months, which had been issued to him at the Australian Consulate General in Toronto. Within that period, in July 1980, Mr Borland applied for the grant to him of resident status. He sought, and was granted, a further temporary entry permit until 30 January 1981. He did not leave Australia by that date but, shortly afterwards, he applied for a permit to re-enter Australia. He wished to visit New Zealand. This application was granted and Mr Borland departed Australia on 11 April 1981, returning on 26 June 1981. In the meantime the Department of Immigration and Ethnic Affairs notified him of the grant of permanent residence. This notification was in the form of a letter dated 8 May 1981 as follows:
   
   

"I am pleased to inform you that your application for permanent residence in Australia has been approved.

If you have not already lodged your travel documents with our Regional Office, it is important that you do so as soon as possible for endorsement with evidence of your having been granted permanent resident status."

1. The reason for the duplication does not appear; but this missive was followed in August 1981 by another, more expansive letter:
   
   

"I am pleased to advise that your application for Resident Status in Australia has been approved. Enclosed is your travel document which has been endorsed with your permanent residence permit.

Whilst legally your permanent residence permit will not come into force until the expiry date of your existing temporary entry permit, the grant of residence status, will for practical purposes take effect from the date of issue of this permanent residence permit.

You will note that your permanent residence permit has no force or effect after you leave Australia. Therefore if you leave Australia for any purpose, and wish to return it is essential for you to obtain a re-entry visa BEFORE you depart Australia.

Under current policy you are also required to have twelve (12) months PERMANENT RESIDENCE to be eligible for the grant of a return endorsement. A return endorsement will allow multiple re-entries to Australia and is valid for the period of validity of your travel document, with a maximum absence of three (3) years for each journey.

However, should it be necessary for you to travel within twelve (12) months of the grant of permanent residence an application for a short term re-entry should be lodged with the Re-Entries Section of this Department for consideration.

I would like to take this opportunity to wish you well for your future in Australia."

1. The reference in the third paragraph of this letter to the permanent residence permit having no effect after leaving Australia was accurate. Section 9 of the Migration Act then provided:
   
   

"9. Where an immigrant who is the holder of an entry permit leaves Australia, the entry permit has no force or effect in relation to him upon or after his re-entry into Australia."

(This section remains the same today, save that in 1983 the words "a non-citizen" was substituted for "an immigrant".)

1. Mr Borland did decide to leave Australia, and within the twelve month period referred to in the letter. He said in an affidavit sworn in this proceeding that, in early September 1981, he applied for a resident re-entry permit to Australia with the intention of going overseas for about 12 months. He said that he proposed during that time to visit Canada in order to settle his affairs before returning to Australia.

2. I have difficulty in reconciling this evidence with the contents of an application for a visa for return travel to Australia, signed by the applicant on 11 September 1981 and produced in evidence on behalf of the respondent. That application refers to a projected departure on 2 October 1981, the "country of intended destination" being "New Zealand", the "purpose of journey" being "family" and the "intended period of absence from Australia" being "10 weeks". The application was endorsed with details of flight bookings, including a return flight to Sydney, apparently from New Zealand, on 16 December 1981. Mr Borland had no family in New Zealand, although he did go there after leaving Australia. However, although this is all very curious, I think that, in the end, nothing turns on the discrepancy between what he then told the Department and his present evidence; save insofar as it may affect his credit on any disputed question of fact. And in that regard it is necessary to remember that he is now recalling events which took place nearly six years ago, when he was just 21 years of age.

3. On 16 September 1981 Mr Borland's passport was stamped with an endorsement in these terms:
   
   

"Australia. Resident Visa.

No 002U 302742806

This Visa does not authorise entry to Australia. ENTRY is subject to the grant of an ENTRY PERMIT on arrival

SYDNEY

Valid for one journey by the Holder before 18th Dec. 1981.

Stay of/until: INDEFINITE

D. Bragg

Authorised Officer 16/9/81"

It is not clear to me that this endorsement had any legal effect whatever. By virtue of s.9 of the Act Mr Borland would lose the benefit of his existing permanent permit upon his departure from Australia. The endorsement specifically indicated that it was not to operate as an entry permit upon his return, but that such a permit must be sought upon arrival. All that the endorsement did was to indicate to any relevant officer that, upon that application being made, Mr Borland was to be treated as a permanent resident. Although the endorsement is ambiguous, it is accepted by the parties that the reference to 18 December 1981 was a reference to the date of the return -- not the outward journey -- and that "Stay: Indefinite" means the period of stay after return to Australia, not the period of stay overseas.

1. Mr Borland said in evidence that when this endorsement was made he pointed out to an officer of the Department that it covered only a three month absence and that he told the officer that he would be away for 12 months. He asked what he could do and was told that the Department did not issue re-entry visas for periods greater than three months and that he could extend the validity of the visa by contacting the nearest Consulate overseas.

2. Mr Borland departed Australia on 2 October 1981, travelling via Papua New Guinea and the Solomon Islands. He arrived in New Zealand on 8 November 1981. About one month later, according to his evidence, he went to the Australian Consulate in Auckland and had a conversation with a counter officer. He told this officer that he planned to travel to Canada and return to Australia in less than 12 months. He asked what he should do about extending his visa. The officer looked at his passport and told him that it was not possible to extend the re-entry visa at that time. The officer told him to "enquire from the nearest Consulate closer to the time of return".

3. Mr Borland described in his affidavit the building which he visited and its location. He did not know the name of the officer to whom he spoke. Not surprisingly, the respondent has not been able to obtain either confirmation or denial of the alleged conversation. But the respondent did not challenge Mr Borland's account of this conversation, nor the accuracy of his description of the Australian Consulate in Auckland. Consequently I accept that he did have a conversation at the Consulate to the effect claimed by him.

4. In the event, however, it was much later than 12 months before Mr Borland was ready to return to Australia. He remained in New Zealand until September 1982, departing then for a tour of various Pacific Island countries before arriving in Hawaii in December 1982. He stayed there for about six months. After visiting some other parts of the United States he reached his family home in Ontario, Canada in mid-August 1983.

5. Upon an unidentified day in early November 1983, according to his evidence, Mr Borland visited the Australian High Commission in Toronto. In his affidavit he described the office which he entered and the female officer who attended to him. Mr Borland said that he first sought and obtained some information about tertiary educational institutions in Australia. He then informed the officer that he planned to return to Australia, where he had been granted residence in 1981. He asked whether there was anything which he must apply for to re-enter. The officer examined his passport and took it to a side office. Another female officer -- also described -- came from that office holding the passport and spoke to Mr Borland. In his affidavit the applicant deposed to the following conversation:
   
   

"WOMAN: 'What's the problem?'

BORLAND: 'I'm planning to return to Australia and I wanted to check that everything was all right.'

WOMAN: 'You are a permanent resident of Australia, as long as you return within the life of your passport there are no problems.'

BORLAND: 'I don't need a re-entry permit then?'

WOMAN: 'No, that's not necessary.'"

He said that the woman waved her hand, gave him the passport and he then left the office. Mr Borland's passport was valid until 18 September 1984.

1. Mr Borland did not immediately return to Australia. His father was seriously ill and he wished to be with the family at that time; and also to help his brother cope with the recently extended family farm. In July 1984 Mr Borland left Canada and travelled via Europe to Australia, arriving in Sydney on 3 August 1984.

2. Upon arrival at Sydney Mr Borland was told by an immigration officer that he did not have a valid visa. He explained that he had been told that if he returned prior to the expiration of his passport there would be no problem. The officer granted a temporary entry permit and advised Mr Borland to report to the office of the Department in Chifley Square. He did so within a few days; and was told that he had forfeited his resident status by staying overseas and that his only option was to re-apply for permanent residence on compassionate grounds. He was told that there would be no objection to his obtaining employment.

3. On 7 January 1985 Mr Borland lodged an application for a permanent entry permit. The application was supported by a letter of explanation and a batch of references speaking in high terms of his character and capacity as a chef. But, so far as the Department's file reveals, during the 16 month consideration of his application, no attention was ever given to the question whether he would be a desirable addition to the permanent population of Australia. The only question addressed was the circumstances surrounding his absence from Australia.

4. On 17 September 1985 a telex was sent to the Australian High Commission in Toronto seeking confirmation of Mr Borland's claim to have been advised at that office that he would have no problem in re-entering Australia prior to the expiration of his passport. No description of the relevant officers was supplied. It took seven months, and one reminder, before Toronto replied cryptically "file does not indicate any such advice was given". On 24 April 1985 Mr J J Davidson, Assistant Director, Sponsored Entry Section, Immigration Branch of the Department, made a decision to refuse the application. The validity of that decision, which was notified by a letter dated 6 May 1986, is the principal issue in the present proceeding.

5. On 8 July 1986 Mr Borland applied for review of Mr Davidson's decision by an Immigration Review Panel. The Panel apparently recommended dissallowance of Mr Borland's application for review. The matter went to the then Minister, Mr Hurford. By letter dated 11 February 1987, Mr Borland was informed that the Minister had studied the Panel's report and had decided that the decision to refuse resident status was to be maintained. That letter contained the following, by way of explanation of the Minister's position:
   
   

"Each year there are only about 100,000 places available for people wishing to migrate to Australia and we must say no to at least nine out of ten applicants. As a matter of policy the Government discourages the grant of resident status to people after their arrival as this interferes with the orderly management of the migration program and could be said to discriminate against those who apply overseas in the normal way. On your return overseas you may apply to migrate to Australia and your application will be assessed against the globally applied selection criteria at that time."

1. The Application filed on behalf of Mr Borland on 3 February 1987 complains of four decisions: the decision on 3 August 1984 to grant Mr Borland a temporary entry permit valid for only three months, the decision on 3 August 1984 to grant entry on a basis other than that the applicant was a permanent resident of Australia, the refusal notified on 6 May 1986 of permanent residence and a refusal on 3 July 1986 of a further application for a temporary work permit.

2. Counsel put a bold submission -- relevant to the complaint that the Department erred in treating Mr Borland, upon his return to Australia, as not being entitled to permanent resident status -- that, notwithstanding s.9 of the Act, Mr Borland did not, by his departure from Australia in 1981, lose his permanent resident status. The submission was that there is an inherent inconsistency between granting to a person the right permanently to reside in Australia, on the one hand, and the divesting of that right if the person chooses to leave Australia, however temporarily and whatever the circumstances.

3. It is not difficult to see that, unless the effect of s.9 was modified by a sympathetic attitude in respect of the grant of new entry permits, there would be cases in which the section would bear harshly upon individuals. A permanent resident may be constrained by pressing and laudable reasons to leave Australia for a short time. It would be unfortunate if this resulted in the loss of his or her entitlement to be re-admitted to Australia as a permanent resident. The evidence suggests that administrative policies have in fact been devised to deal with such cases. Their adequacy is not a any harshness in result is a matter for the Parliament, not for the Court.

4. Section 9, in the form it took in 1981, referred to "an immigrant who is the holder of an entry permit". It provided that, where such a person left Australia, "the entry permit" had no further force or effect. The term "entry permit" was defined by s.5 as a permit issued under s.6 of the Act. Section 6(2) authorized the grant to an immigrant of "an entry permit". As was made clear by s.6(6), a temporary entry permit was seen as a particular type of entry permit, namely one authorizing the person to whom it related to stay in Australia for a specified period only. This concept was reflected throughout Part II of the Act, dealing with immigration and deportation and in which s.9 appears. The term "entry permit" was used whenever the draftsman wished to refer to any type of entry permit -- permanent or temporary. When the draftsman wished to speak of a temporary entry permit those words were used. It would have been consistent with this pattern for the draftsman in s.9 specifically to refer to a temporary entry permit, if the intention had been to limit the operation of that section to that type of permit. That permit" was used.

5. In the face of the consistent pattern evidenced in Part II it would require a strong case of absurdity for a court to conclude that Parliament meant, by the words "entry permit", to refer only to a temporary entry permit. Although, as I have indicated, administrative measures would need to be taken to guard against undue harshness in operation, the result cannot be regarded as absurd. It is one thing for the Australian Government to permit a non-citizen to continue to remain in Australia indefinitely, subject to the provisions of the Act regarding deportation. It is another thing for it to be bound to re-admit that person at any time, no matter what the circumstances and the length of time which has elapsed since his or her departure from Australia. I think that the officers of the Department were correct in treating Mr Borland, upon his return in 1984 and thereafter, as no longer having the right of permanent residence in Australia.

6. The critical question in the case is whether the decision of Mr Davidson was attended with legal error. On behalf of the applicant a number of propositions are put: that Mr Davidson erred in law in believing that the permanent return to Australia within 12 months of departure, that -- having regard to the statement made to Mr Borland in Auckland -- the Minister was estopped from refusing a permanent entry permit and that, in assessing the application, Mr Davidson failed to take into account a relevant consideration, namely the information given to Mr Borland in Auckland and in Toronto.

1. I do not think that there is any substance in either of the first two points. In his Statement of Reasons for the decision to refuse the application for permanent residence, given pursuant to s.13 of the Administrative Decisions (Judicial Review) Act, Mr Davidson said:
   
   

"13. The applicant remained overseas far in excess of the validity of his resident re-entry visa and returned to Australia on 3/7/84 without re-entry facilities. I considered that the applicant forfeited his right of residence by being absent from Australia for more than 12 months within the first 12 months of being granted resident status in accordance with 10.2.3 of the Resident Re-entry Handbook. I accepted that paragraph 10.2.3 of the Resident Re-entry Handbook does not constitute an inflexible ruling and that favourable consideration could be given to the applicant's claims if he had demonstrated particularly strong ties with Australia during his absence, e.g., family ties, friends in Australia, property held and capital invested in Australia. However, after carefully considering the applicant's claims I was unable to conclude that he had demonstrated strong ties with Australia during his long absence."

1. The Resident Re-entry Handbook referred to by Mr Davidson is in evidence. Part 10 of that booklet deals with the "grant of resident return visas to people who are not residentially qualified to apply for return endorsements". Section 10.1 deals with grants of visas in Australia; 10.2 with grants at overseas posts. Paragraph 10.2.3, referred to by Mr Davidson, says:
   
   

"10.2.3 As a general rule, a person who leaves Australia before becoming eligible to apply for a return endorsement and who does not return within 12 months of departure is to be considered under migrant entry policy if he or she wants to come back to Australia for residence."

1. The submission on behalf of the applicant is that Mr Davidson treated the grant of permanent residency in 1981 as being, in effect, conditional; the condition being that Mr Borland would not absent himself from Australia for more than 12 months. It must be said that para.13 of the Statement of Reasons exhibits confusion of thought. In the first place, it is difficult to see what para.10.2.3 of the Handbook had to do with the matter at all; given the fact that the application was being made in Australia. Secondly, the applicant forfeited his resident status not by being absent for more than 12 months within the first 12 months of being granted resident status but by the mere fact of leaving Australia; under s.9 of the Act, not by anything in the Handbook. But -- leaving aside for the moment the scope of the matters for consideration -- Mr Davidson correctly directed himself upon the two principal matters: that Mr Borland, having had a right of permanent residence, had now forfeited that right; and that, notwithstanding, he -- Mr Davidson -- had power to accede to the application before him for the grant of a further permanent entry permit.

2. There are well known difficulties about an argument that the depository of a statutory discretion is estopped from exercising that discretion in a particular way. Counsel referred to two cases: Re Liverpool Taxi Owners Association (1972) 2 All ER 589 and Attorney General of Hong Kong v. Ng Yuen Shiu (1983) 2 AC 629. But I need not stay to consider the applicability of those two cases to the conversation in New Zealand. The outer limit of any estoppel must be the statement relied upon. In the present case, according to Mr Borland's own evidence, he informed the officer in the Consulate in Auckland that he planned to return to Australia within less than 12 months. In that context he was told that he should enquire from the nearest Consulate closer to the time of return. Even if the doctrine of estoppel had application, it could bind the Minister only in respect of a return within the indicated period of 12 months.

3. The final argument of the applicant is more substantial. Prior to the decision of Mr Davidson, Mr Borland did not inform the Department of the conversation in Auckland. This being a matter entirely within his knowledge he cannot now complain of the failure of Mr Davidson to take that conversation into account: see Singh v Minister for Immigration and Ethnic Affairs (Wilcox J, not reported, 4 December 1985) at p.17. It follows, in my view, that the validity of Mr Davidson's decision was not affected by his failure to take into account the Auckland conversation.

4. The Toronto conversation is another matter. Mr Borland informed the officers of the Department about this conversation upon more than one occasion, including immediately after his return to Australia. It is true that he did not supply a full description of his visit to the High Commission office but he was never asked for this. If the Departmental officers had doubted his story, and desired to check its accuracy, they could readily have obtained that information.

5. I find as a fact that Mr Borland did have the conversation he claimed. Notwithstanding the confusion about his application in September 1981 he appears to be an honest person. He has consistently maintained his version of the Toronto incident. He has also supplied, by his affidavit, a detailed description of the office which he claims to have visited and the officers he claims to have seen. I do not think that he could have accurately described the office without visiting it; and there is no suggestion that he visited it on any other occasion. Had his description been inaccurate it would have been easy for counsel for the Minister to expose that fact. Not only was there no attempt to do this. Counsel did not suggest to Mr Borland in cross-examination that his evidence regarding the conversation was false.

6. It follows from this conclusion that Mr Davidson made his decision upon the basis of the non-existence of an event which had in fact occurred and whose occurrence had been drawn to the attention of the Department prior to the decision. Worse, he made the decision upon the basis that Mr Borland's claim was false. He is not personally to blame for the error. The telex from Toronto was quite misleading. The statement "file does not indicate any such advice was given" could easily be interpreted as indicating that there was in fact a file which negatived the claim. In fact, as is indicated by information obtained for the purpose of these proceedings in March 1987, there was no relevant file and, according to the Toronto office, it would be unlikely that a file note would have been kept of a routine enquiry. It was said by Toronto that a note would be kept only if advice given required the exercise of a discretion or a departure from policy. The officer who spoke to Mr Borland, on his story, clearly did not regard herself as making any decision but as simply informing him -- wrongly, as it turned out -- of the position. It would not be an occasion for a file note.

7. Unfortunately Mr Davidson read the Toronto telex as indicating that there was a file which disproved Mr Borland's claim. The findings on material questions of fact in the s.13 Statement is as follows:
   
   

"10. Australian High Commission, Toronto advised on 16/4/86 that their file on Mr Borland indicated that he was not advised that he would have no problem re-entering Australia as long as he returned prior to the expiration of his current passport."

In the reasons section of the Statement Mr Davidson said:

"16. From information received from the Australian High Commission, Toronto, I am unable to conclude that the applicant was misinformed overseas regarding his right of re-entry to Australia outside the validity of his resident re-entry visa and prior to the expiry date of his current Canadian passport."

1. During cross-examination Mr Davidson agreed that there was a significant difference between a positive conclusion that Mr Borland was not advised that he would have no problem in re-entering Australia and a statement that the file does not indicate that any such advice was given. He further agreed that the position notified by Toronto, as he understood it, formed a significant part of his decision and that, if what Mr Borland says was correct, his decision "could well have been different".

2. Counsel for the respondent submitted that, notwithstanding this error of fact and Mr Davidson's concession of its importance, the decision should not be set aside. If the position is properly analysed, he claimed, the error could have made no difference. He pointed out that, at the time of the alleged conversation, Mr Borland had already been away from Australia for over two years; thus exceeding the period of 12 months' absence during which the Department apparently regards applicants as having some special claim for favourable treatment. Had Mr Borland been correctly informed in Toronto in November 1983 he would have been in no better position than he was on arrival in Sydney in August 1984.

3. I do not agree with this analysis of the position. Leaving aside, firstly, any prejudicial effect upon the application of Mr Borland's having apparently been caught out in a lie to the Department and, secondly, the circumstance that between November 1983 and August 1984 he planned his affairs on the basis that he would definitely be able to settle permanently in Australia and that he had journeyed back to Australia for that purpose, it appears from the Department's file that the circumstance that the application for permanent residence was made after return to Australia changed the whole nature of the enquiry. If Mr Borland had been informed of the true position in Toronto, he could have there lodged an application for a permanent entry permit. That application would have been assessed upon the basis of his suitability for admission as an immigrant; a criterion upon which his claims appear to be formidable. But, under the circumstances operating in Sydney, none of these matters were considered. The application lodged in Sydney was assessed upon a different criterion: whether there were strong compassionate or humanitarian grounds for Mr Borland's admission to the Australian community. As an able-bodied, single man without family in Australia this was a test almost impossible for Mr Borland to satisfy.

4. The officers of the Department who dealt with the application lodged by Mr Borland in Sydney correctly appreciated that, he being then in Australia, s.6A(1) of the Act -- which limits the circumstances under which a non-citizen already in Australia may be granted an entry permit -- was applicable. But they confined their attention to para.(e), which deals with strong compassionate or humanitarian grounds. No doubt this was a reflection of the Department's general policy that, save in compassionate cases, people who are in Australia should not be granted permanent entry permits. It is a policy designed to discourage "queue jumpers", people who come here on a temporary entry permit and then seek permanent residence.

5. In Mr Borland's case the focus of the enquiry was upon the period of his absence from Australia, why he had not sooner returned to Canada after leaving Australia and what had happened at Toronto. He was treated much as if he were a person who had breached immigration rules by over-staying a tourist visa. This emerges clearly from Mr Davidson's Statement (especially paras.14, 15 and 18). It is graphically demonstrated by the extract from the letter of 11 February 1987, conveying the Minister's decision, which I have quoted above. In that extract the distinction is drawn between the decision which had been made and a decision on an application to migrate which would "be assessed against the globally applied selection criteria at that time".

6. The position is that Mr Borland was misled by the information given to him in Toronto into returning to Australia without first making an application as a migrant. The decision made by Mr Davidson failed to take into account that fact. Had the true position been appreciated the Department would have assessed the January 1985 application by reference to the current migrant assessment criteria. It is this assessment to which Mr Borland is entitled. There would have been no difficulty about the Department taking this course, notwithstanding that Mr Borland was already in Australia. Paragraph (d) of s.6A(1) permits the grant of a permanent entry permit to a person who is the holder of a temporary entry permit which is in force, who is authorized to work in Australia and is not a prescribed non-citizen. Mr Borland was not a prescribed non-citizen: see s.6A(4)(c). Immediately after his return he held a temporary entry permit. Although this expired, a fresh temporary entry permit could have been issued to him at any time. The prohibition of s.6A(1) does not apply to temporary permits: see s.6A(8). If Mr Borland was not in fact authorized to work, such authorization could have been given at any time.

7. I do not think that, in the exercise of its discretion, the Court should decline to set aside the decision. On the contrary, justice can only be done in the case if Mr Borland's application is considered afresh and in the light of the incorrect information given to him in Toronto. He is entitled to have that application assessed by reference to the same criteria as if he had applied for permanent residence whilst in Toronto: the migrant criteria, not s.6A(1)(e). The decision to refuse the application for permanent residence will be set aside and remitted for further consideration. The respondent must pay the costs of the applicant.