Cai, J.J. v Minister for Immigration, Local Government & Ethnic Affairs

Re: JIA CUN CAI AND ELIZABETH POLT
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. NG 1383 of 1988
FED No. 686
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Administrative Law - application for review under Administrative Decisions (Judicial Review) Act 1977 - interlocutory application to stay a deportation order - temporary entry permit cancelled on failure to fulfil condition to engage in study - the nature of the Court's review function - whether the decision was in breach of the rules of natural justice - whether the decision was unreasonable or failed to take into account a relevant consideration.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

HEARING

SYDNEY

#DATE 30:11:1988

Counsel for the applicant: Mr M.B. Smith

Solicitors for the applicant: Craddock, Murray & Neumann

Counsel for the respondent: Dr A. Gelbart

Solicitor for the respondent: Australian Government Solicitor

ORDER

The application for interlocutory relief be dismissed with costs.

The principal application be stood over the the directions list on 15 December 1988.

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

JUDGE1

These are always difficult matters. I think it appropriate that I should form a view now one way or the other so that the parties can then take whatever course seems to them to be desirable.

First I would make some general comments. This is a matter in which the principal application seeks orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The function of the Court under that Act is strictly the function of judicial review, not review of the merits. In Chief Constable of the North Wales Police v. Evans, (1982) 1 WLR 1155, Lord Brightman said, at p 1173:-

"Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."

In Kioa & Others v. West & Another (1985) 159 CLR 550, Mr Justice Brennan said, at p 622:-

"The distinction between method and merits is sometimes elusive. The merits are for the repository of the power alone, and a repository of power is not to be held in breach of the principles of natural justice merely because he has come to a decision which, to the eyes of the court, appears unjust: cf Chief Constable v Evans

(1982) 1 WLR 1155 at 1160-1, 1173-5; (1982) 3 All ER 141 at 143-4, 155; Re Evershed and The Queen (1984) 5 DLR

(4th) 340, at p 344)."

It is understandable that many persons who are the subject of or affected by an order of deporation wish to come to a court or to a tribunal to put their case on the merits and be heard thereon, but it must be understood that can not be achieved under judicial review. The merits cannot be looked at, and will not be until Parliament has established a tribunal to review decisions on their merits.
The next observation I should make is that Mr M.B. Smith, counsel for the applicants, has referred in a number of ways to what he suggests has been an inflexible procedure or an inflexible application of policy. I would observe likewise that procedures and policies and the manner of implementation of policies might, to some persons, appear to be unjust but it is for the administrators to determine what procedures should be adopted, what policies should be adopted and how flexible the administrator should be in the administration of those policies.
The courts have laid down a number of principles for determining the validity of administrative decision-making. One of those principles is that the decision-maker must not be hidebound by any policy but must give proper consideration to the facts before him. But that is the limit of the law and, provided that the administrator does consider a matter on its merits, taking the policy into account, and provided that he recognises that he has options, the fact that he has adopted what might be described as a rather inflexible approach to policy or procedure is not a matter calling for the Court's intervention. It is a matter for the judgment of the administrator.
The third observation I would make is that, in judicial review, ascertainment of the truth of factual situations going to the merits of the case is not a matter for the Court. Principles of law require administrators to take into account all material considerations and to omit from their consideration all immaterial considerations. Material or immaterial considerations are, however, not the same as correct or incorrect facts. Mr Justice Forster made observations on this point in Singh & Another v. Minister for Immigration and Ethnic Affairs (G17 and G12 of 1987, delivered 12 June 1987) in which he observed that "correct or incorrect facts are not to be equated with relevant/irrelevant facts." I cited those observations in Ruangrong v. Minister for Immigration and Ethnic Affairs (G478 of 1987, unreported, delivered 29 March 1988).
The application presently before the Court is an application for an interlocutory injunction staying deportation pending the determination of the principal application. Incidental orders such as the release from custody of the applicant, Jia Jun Cai, are sought. The principles to be followed on such an application are clear. It must be established that there is a serious question to be tried. Once that is established the matter will turn upon the balance of convenience.
I need not discuss in this case the balance of convenience as here, as in most cases involving the deportation of a person from Australia, the balance of convenience will strongly favour the grant of an injunction, provided it is established that there is a serious question to be tried. I leave on one side for further discussion, if necessary, the question of the release of Mr Cai from prison.
Mr Cai is a Chinese national who, in 1987, met the second applicant, Elizabeth Polt, who was visiting China. Mr Cai and Miss Polt became friendly. Mr Cai applied to come to Australia as a student. He arrived on 9 January 1988. He was given a temporary entry permit for a period of six months, subject to the condition that he study English. A further six months temporary entry permit was granted in July.
Mr Cai commenced study in English at the New South Wales Institute of Languages, but after some three months he discontinued that course and enrolled in a business course at the Campsie Business College. It appears that he did not attend that course.
There is a section of the Department of Employment, Education and Training called the Overseas Students Office ("the OSO"). The evidence does not disclose its precise function but it may be inferred that it plays a part in supervising the education and training of overseas students in Australia.
In October 1988, the OSO wrote to the Department of Immigration and Ethnic Affairs and advised that it no longer recognised Mr Cai as a student in Australia. That letter itself is not in evidence but there is in evidence a submission prepared for the consideration of Mr Luu, the Director for New South Wales of the Department of Immigration and Ethnic Affairs which states that, in correspondence dated 10 October 1988, his Department was advised by the OSO that they had withdrawn their support of Mr Cai's student status. It was advised that Mr Cai was no longer enrolled in an approved course.
Following that, a field officer attended Mr Cai's home on 26 October 1988, interviewed Mr Cai, directed him to report at the Chatswood office of the Department on the following day and noted:-

"1. Aware of OSO withdrawal support but claimed failure to study was medical problems - showed copy of medical certificate." (handwritten)

It appears from the submission to Mr Luu and other documents that the medical certificate was then received by the Department. However, the certificate itself has not been put in evidence.

It appears from the submission to Mr Luu that an officer of the Department contacted the OSO. The submission records:-

"An OSO officer was contacted and asked if Mr Cai's claims of poor health were known at the time support for his further stay was withdrawn. The officer advised that it was and that Mr Cai's general attendance had been dismal."

On the following day, Mr Cai attended at the Chatswood office of the Department. He was interviewed by Mr Robilliard who was an officer of the Department and a person authorised to cancel a permit.

As indicated in question 13 of that interview report, Mr Robilliard decided then and there to cancel Mr Cai's temporary entry permit. A formal cancellation to that effect was signed by Mr Robilliard that day, 27 October 1988.
Mr Cai was subsequently arrested under powers conferred by the Migration Act and was taken to the Villawood Detention Centre. He was interviewed on 31 October 1988 and he gave these answers to questions:-

"6.2 What matters do you wish to be put before the decision-maker when he/she decides whether to

(a) allow you to remain in Australia? I wish to complete my studies here and maybe through marriage I can stay here. But the decision for marriage will be made tomorrow. I would like my case reconsidered with all the facts put together. And I would like a visa to continue my study here. (handwritten)

(b) give you the option of making a voluntary departure?

If I get married I should be able to stay here. But my first priority is to continue my study here. But if my request is rejected I want to buy my own ticket and leave. (handwritten)

(c) sign an order for your deportation? No, I would rather buy a ticket and go home. (handwritten)

6.3 Are there any other matters you wish to be taken into account?

Just that if they can reconsider seriously my case, because I was sick & have a doctor's certificate & could not attend. And my visa was still valid for 6 or more months." (handwritten)

On the same day, he was handed a letter dated 31 October from the Regional Director of the Department of Immigration and Ethnic Affairs which read:-

"Dear Mr Cai

It has been established that you are a prohibited non-citizen within the meaning of the Migration Act, 1958 and liable to deportation. In the absence of any application for the regularisation of your status being before this Department, a report of your circumstance will be put before a delegate of the Minister of State for Immigration, Local Government and Ethnic Affairs. The delegate will, on the basis of that report and any submissions you wish to make, decide the question of your continued stay in or deportation from Australia.

Should you wish to depart Australia of your accord, you must advise a Departmental Officer of this and produce an airline ticket and a valid travel document within forty-eight (48) hours of the date of this letter. Your departure must be on the first available flight and you should be aware that you will remain in custody until departure. If you wish to provide any submissions for the delegate's consideration you must ensure that they are delivered to the Manager of the Immigration Detention Centre or the Compliance Section, Zenith Centre Chatswood, by close of business on 4.11.88. If there is anything you wish to discuss you may telephone this Department on 413.5065 - Karen."

On 9 October 1988, the solicitors for Mr Cai forwarded to the Department a formal application by him for resident status. That application included a typewritten statement by Mr Cai and a typewritten statement by Miss Polt. Neither statement referred to the question of study. There was also a handwritten statement by Mr Cai which said, inter alia:-

"I attended NSW University Languages Dept. for 3 months. I felt the course did not provide a challenge So I descontinued studies at the Uni. and transferred to Campsie Business Collage on 14.4.1988. The Course began on 10 May 1988. Between May and September I began feeling unwell. So I went to see a doctor of traditional Chinese medicine. I rang the Collage and informed them of my situation.

In Sept. I went to St. Vincents hospital for a check up where they tested me and issued a doctor certificate for two months leave of absence. In August although I felt unwell I approached the collage and asked if I could rejoin the course. To my dismay they said no. They referred me to the Oversea Students office who informed me I needed a doctors Cert. which I obtained but they still refused too accept me."

On 10 November 1988, Mr Cai's solicitors wrote a formal submission to the Department and on the same day an officer of the Department interviewed Miss Polt.
On 22 November 1988, Mr Robilliard forwarded a submission to Mr Luu, the director for New South Wales, and I shall subsequently mention some particular paragraphs of that submission. The submission recommended that Mr Luu refuse the grant of a further temporary permit, refuse to grant resident status, refuse the concession of a supervised voluntary departure and order the deportation of Mr Cai.
Those recommendations were adopted by Mr Luu and he made his decisions accordingly. On 24 November 1988, Mr Luu signed a formal order for the deportation of Mr Cai.
Two other matters of fact should be mentioned. One is that, subsequent to 31 October, Mr Cai obtained a ticket for his departure overseas but apparently did not make arrangements for its use as he wished to have favourable decisions made for his stay in Australia and, secondly, on 29 November 1988, notices of the marriage of Mr Cai and Miss Polt were given.
I turn now to the submissions that were put by Mr Smith on behalf of the applicants. The first and perhaps most vital of the decisions was the decision of Mr Robilliard on 27 October 1988 to cancel the temporary entry permit. Mr Smith submitted that the decision was made following a summary procedure adopted in relation to the cancellation of permits and that the decision was founded on an allegation of a breach of the permit. Mr Smith submitted that, in such a procedure, it was critical to ascertain the truth of any explanation put forward to show that the breach was not wilful. He submitted that the record of the interview on 27 October 1988 showed that there was a failure to make such a finding. He submitted that there had been a failure to take into account a relevant matter, namely the truth of the allegation made by Mr Cai that he had been prevented from studying by his ill health.
Mr Smith submittd that it was manifestly unreasonable to make a decision cancelling the permit having regard to the truth of what Mr Cai had had to say and manifestly unreasonable to adopt a summary procedure in the circumstance that Mr Cai was blameless.
I should also refer to another possibility, which was not precisely put by Mr Smith, but may be involved, namely that the decision was made in breach of the rules of natural justice.
However, Mr Cai came to Australia under a temporary entry permit which had a condition on it with respect to study. That was a matter which the Department would have considered him to be aware of and of which, indeed, it appears, he was aware.
Notwithstanding that condition, which on his answer to question 4 of the interview of 27 October 1988 was that he study English for six months, Mr Cai himself abandoned the course of English he had undertaken at the New South Wales Institute and he himself enrolled at Campsie Busines College which he did not attend.
There was no evidence that these matters were discussed with the OSO or with the Department. It appears that Mr Cai had subsequent communications with the OSO and was advised by the OSO that it would not approve the continuation of his studies. It further appears from the interview of 27 October 1988 that the OSO said that it was up to the Department to say if, in these circumstances, Mr Cai could remain in Australia to study. Mr Cai did not, however, contact the Department. It was the Department which first contacted him.
No decision was made on first contact, which was on the 26th, but the problem that had arisen was made known to him and the report of 26 October shows that Mr Cai was aware that the OSO's support had been withdrawn. He was therefore aware what was to be the subject matter of the interview of 27 October.
The facts do not disclose that Mr Cai was not given a reasonable opportunity to put his case or that a decision was taken without considering his particular circumstances or without the making of further inquiry. A medical certificate had been examined and there had been a communication with the OSO respecting the medical certificate. The OSO had advised that it had been aware of the medical problems before it had withdrawn its support for Mr Cai's further study in Australia.
It appears also from the report of the interview of 27 October, that careful attention was given to the allegations made by Mr Cai as to his health. The matters concerning the breach of the conditions of the permit were put to him and he was asked as to how these breaches came about. He gave an explanation that set out the substance of the matter.
The position confronting Mr Robilliard at that time was that Mr Cai was a person who had come to Australia under a temporary entry permit which required him to undertake a course of study. Mr Cai had not completed the course of English which he had undertaken; he had entered upon another course which he had not attended. He was not at that time enrolled for any course in Australia and he was not a person who was approved by the OSO for further study.
In these circumstances, it would seem that the basis for the permit had disappeared. That in itself would have been sufficient to justify Mr Robilliard's decision to cancel the permit which had been given on that condition or basis. Mr Smith contended that Mr Robilliard was bound to determine whether the conditions had been breached innocently or wilfully or in some blameworthy sense. It seems to me, however, that Mr Robilliard was not required to make any full investigation of that matter. He was faced with the position that a permit had been granted on one basis and that basis seemed on 27 October no longer to be appropriate.
For those reasons, it seems to me that the allegation that there was a failure to take into account a relevant matter is not sustainable. It appears that Mr Robilliard did take into account the matters which are set out in the interview and which involve an explanation of the health of Mr Cai. The submission that the decision was unreasonable is also not sustainable. It was a decision to which a reasonable administrator could have come on the facts before him. Mr Robilliard was not bound in law to go further to examine in more detail the state of Mr Cai's medical condition.
It was, after all, not a case where Mr Cai had been prevented from coming to the Department to explain his position, or had been prevented from seeking approval from the OSO for a further course of study.

Mr Smith submitted that the procedure adopted was a summary one because question 13 contemplated that a decision would be made to cancel or not to cancel the permit at the end of the interview. I cannot draw from the form of the interview report any conclusion that Mr Robilliard thought himself bound to make a decision at that time. It seems to me that question 13 is simply a question on a form which could be completed and answered or not as the circumstances at the time seemed appropriate.
Mr Smith submitted that an interview procedure of that type was inappropriate to a case where a person was putting forward a view that he had been precluded by ill health from attending his course of study. However, although the procedure was somewhat summary and expeditious, it was for the Department and for Mr Robilliard to determine what procedure should be adopted in the circumstances. The facts do not disclose an error of law in the procedure adopted.
Mr Smith further submitted that the decision was taken as a result of advice from the OSO and that there is at least a suggestion that Mr Robilliard blindly followed a policy of applying the OSO decisions without considering the merits of the case and that, in effect, he acted under the direction of the OSO in this case. However, I do not think it is possible to draw that conclusion from the material presently before the Court. The advice from the OSO was a matter which was relevant and significant. It appears that the OSO had been given the task of supervising the status of overseas students in Australia. It was appropriate to take note of its view and of what it had done. The facts presently before the Court do not suggest to me that anything occurred other than that Mr Robilliard took into account a relevant consideration.
Mr Smith also submitted that Mr Robilliard gave no consideration to the timing of the decision to cancel the permit, and no consideration to the effect it might have upon Mr Cai. He submitted that there was a failure to take into account a relevant matter, namely, that the date of the cancellation of the permit could have been postponed to allow Mr Cai to arrange an orderly departure or to make representations to the Department.
The only matter, however, on which any inference to this effect can be drawn is from question 13 on the interview form, to which I have already referred, and the fact that Mr Robilliard did then and there make a decision as to the cancellation of the permit. One cannot draw from those matters a conclusion that Mr Robilliard did not take into account the effect of the cancellation upon Mr Cai or the fact that he had an option to delay his decision until some later time.
It seems to me, indeed, that the interview did give Mr Cai an opportunity to raise the matters upon which he wished to rely. The inference from the decision and from the interview report is that Mr Robilliard considered that there had been a breach of the permit - which indeed there had - and that, in the circumstances, it should be cancelled.
I turn now to the submissions as to the four decisions of 22 November to refuse a further temporary entry permit, to refuse the grant of resident status, to refuse the concession of a supervised voluntary departure and to order Mr Cai's deportation.
Mr Smith relied first upon what he said was the invalidity of the decision to cancel the temporary entry permit. Had his submission that this decision was invalid been accepted, I agree that this would have brought down the subsequent decisions made on 22 November. However, I have already dealt with that matter.
Mr Smith then referred to paragraph 18 of Mr Robilliard's submission to Mr Luu, which read:-

"Nevertheless, you are invited to accept that a relationship does exist between Mr Cai and Ms Polt on the evidence before you. Your attention is drawn to the couples statements and those of their solicitor, as to the nature of the relationship. It is said that the relationship, in its current, serious, form has existed since the couple became engaged on 9 October 1988 but has existed in a less formal nature since they met in China in November

1987. Mr Cai and Ms Polt have not shared a defacto marital relationship and do not claim any of the elements, commonly associated with such a relationship. Ms Polt has said that they had not co-habited because her parents do not approve of such a relationship."

Mr Smith submitted that this paragraph shows that an irrelevant factor was taken into account, namely that Mr Cai and Miss Polt were not sharing a de facto relationship, and that a relevant factor was not taken into account, namely, that Mr Cai and Miss Polt had a relationship which might be described as an old fashioned engagement to marry.
Paragraph 18 should not be so read. Paragraph 18 does say Mr Cai and Miss Polt have not shared a de facto marital relationship and do not claim any of the elements commonly associated with such a relationship. That is simply a matter of fact that was appropriate for Mr Robilliard to set down for Mr Luu's consideration. He had to describe the relationship between Mr Cai and Miss Polt. One cannot draw from that statement that any irrelevant factor was taken into account or that any relevant factor was omitted.
Mr Smith further pointed to paragraph 19, which read:-

"As matters stand, Mr Cai may not be granted resident status pursuant to section 6A(1)(b) of the Act because he is not married to an Australian citizen or permanent resident and therefore does not meet the legal pre-condition for such a grant. Additionally you may not regard a mere intention to marry, expressed subsequent to Mr Cai's becoming a prohibited non-citizen upon cancellation of his TEP for failing to adequately comply with the conditions of his stay in Australia, coupled with the short duration of the relationship as a strong compassionate or humanitarian factor warranting the grant of resident status pursuant to section 6A(1)(e) of the Act."

Mr Smith put the point that there was an irrelevant factor taken into account, the irrelevant factor being that the intention to marry had been expressed subsequent to Mr Cai's becoming a prohibited non-citizen. Mr Smith pointed to the fact that Mr Cai was under no obligation to advise the Department of any such intention at an earlier time. Mr Smith also said that an inference of blame was to be drawn from the reference to the cancellation of Mr Cai's temporary entry permit "for failing to adequately comply with the conditions of his stay in Australia".
However, it does not seem to me that either of these matters raise factors that were irrelevant to take into account. The intention to marry had in fact been formalised only on 9 October 1988. It was not inappropriate for the Department to keep an open mind about expressions of intention and it was for the decision-maker to place such weight as he thought fit upon the fact that the intention had been expressed to the Department at a late stage. As to the other clause, it does not appear to me to raise a matter of blameworthiness on Mr Cai's part though it might well have been better expressed.
The point being put by that paragraph was that the question of marriage was raised after there had been a failure to comply with a condition of a temporary entry permit. When I say "raised", I mean raised with the Department. As I say, it was for the decision-maker to make up his own mind about a matter such as that.
Mr Smith submitted that paragraphs 15 to 20 of the decision of the submission, all of which I do not set out, indicated that there had not been a genuine and realistic consideration of the merits of the case. Again, in relation to this, I say that the submission could have been expressed in other terms but it was a submission of 8 pages in length and appears to set out the substance of the matter. I cannot draw any conclusion from it that Mr Luu, or Mr Robilliard for that matter, did not give the particular facts of the case genuine consideration.
Finally, Mr Smith raised an issue with respect to the failure to permit Mr Cai to depart voluntarily. He referred to paragraph 22 of the submission which read:-

"Alternatively, you may accept the following factors weighing in favour of you ordering Mr Cai deported: . he did not adequately comply with the conditions of his stay in Australia; . he is a prohibited non-citizen and liable for deportation;

. he was offered the concession of voluntary departure upon the cancellation of his TEP and did not take advantage of that offer; . Government policy, which says, in part: 'Any offer to provide an airline ticket is not a bargaining point to avoid deportation ...." 'Even if an opportunity for voluntary departure is made available by an officer at the time of apprehension, due process will proceed unless, within 48 hours of apprehension, the illegal immigrant satisfies the department that he/she has firm arrangements to leave Australia by the first available transport.'

. although Mr Cai had produced a ticket he has made no firm arrangements to leave and appears to be using the ticket as a bargaining point to avoid deportation."

Mr Smith submitted that it was not relevant that Mr Cai was a prohibited non-citizen and liable to deportation. That was, however, I hardly need to say, a fact that had to be taken into account. Mr Smith submitted that government policy was not relevant and was not an appropriate policy having regard to Mr Cai's personal situation, which was that he was in Australia seeking to have an application for permanent residence considered and favourably granted. Mr Smith submitted that there was an application by Mr Luu of an inappropriate policy and that the policy was applied without regard to the merits of the case.

Again, in this matter, it seems to me that the application of government policy was a matter for Mr Luu, not for the Court. I am satisfied that government policy as to the circumstances in which voluntary supervised departure will be offered to a prohibited non-citizen is a relevant matter to be taken into account. The appropriateness of the policy and its application to the facts of a particular case are matters for the decision-maker to judge, not for the Court.
Now for those reasons, which I have expressed at length, in case a party wishes to have them considered elsewhere, I think that there has not been shown any serious question to be tried.
Certainly, there are aspects of the case on which arguments can be turned and certainly there are aspects which show some possibility that other material, if ascertained, might show an arguable case. However, it seems to me that on material which is presently before the Court and which appears to set out the substance of the administrative decision-making process in this case, no serious question has been demonstrated.
No reference from what I have said should be taken as an indication that the Court itself would have come to the same conclusion as the decision-maker or that deportation is more appropriate than voluntary supervised departure. It is for the Court to make up its own mind as to those matters and I have not attempted to do that or to form a view as to what significance ought to be given to the relationship between Mr Cai and Miss Polt or as to whether or not Mr Cai should have a permit for permanent residency. Those are not matters upon which the Court can form a view for its function is, as I have said, simply to ascertain whether there has been an error of law in the decision-making process which is under its consideration, or in this case, as to whether that issue is seriously arguable.
The final matter that I should mention is that I have not attempted to form a view as to whether or not, if the decision were otherwise, Mr Cai should be released from custody. I think that this is a matter which, if a decision had to be made, ought to be the subject of further consideration.
However, for the reasons I have mentioned, the application for interlocutory relief must be dismissed with costs. The principal application is stood over to the directions list on 15 December 1988.

[1988] FCA 686

30 NOVEMBER 1988