Caluya, A v Minister of State for Immigration, Local Government & Ethnic Affairs

[1993] FCA 885

ABRAHAM CALUYA v. MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND
ETHNIC AFFAIRS
No. SG82 of 1992
FED No. 885
Number of pages - 9
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
OLNEY J

CATCHWORDS

Immigration - judicial review - application for extended eligibility entry permit of a particular class - applicant ineligible for permit of class applied for - whether decision maker obliged to consider application in respect of some other class and whether lack of procedural fairness.

Migration Act 1958, s 34(4)

Administrative Decisions (Judicial Review) Act 1977, S 5(1)

Migration Regulations 1989, r 9(1), 127, 144, schedule 3

Elbourne v Minister for Immigration (1991) 22 ALD 211.

Minister for Immigration v Buksh 1991-2 26 ALD 399

Da Sousa v Minister for Immigration (unreported, 8 May 1992)

Hakim v Minister for Immigration (unreported, 25 November 1992)

HEARING

ADELAIDE, 22 November 1993

#DATE 26:11:1993

Counsel for the appellant: Mr T. Lisacek

Solicitors for the appellant: Lisacek and Co.

Counsel for the respondent: Miss S. Singh

Solicitor for the respondent: Australian Government

Solicitor

ORDER

The Court orders that:

1. The application be dismissed with costs.

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

JUDGE1

OLNEY J This is an application pursuant to s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 to review the decision of a delegate of the Minister for Immigration Local Government and Ethnic Affairs (the delegate) made on 6 October 1992 refusing an application by the applicant to be granted an extended eligibility temporary entry permit and a permanent entry permit (after entry).

THE APPLICATION FOR ENTRY PERMIT
2. The applicant lodged an application to remain permanently in Australia (form 887) at the Adelaide Office of the Department of Immigration Local Government and Ethnic Affairs on 2 December 1991. On the first page of the printed application form the following statements appear:

1. This is an application for an extended eligibility temporary entry permit in the following categories: CATEGORY NAME OF CATEGORY

820 Extended eligibility (spouse) 822 Extended eligibility (family) 823 Extended eligibility (economic) 826 Extended eligibility (interdependency) AND/OR

2. An application for a permanent entry permit in the following categories:

CATEGORY NAME OF CATEGORY

801 Spouse (after entry)

802 Child (after entry)

804 Aged parent (after entry) 805 Skilled occupation

806 Compassionate grounds

814 Interdependency (after entry)

At the head of the second page of the application form the applicant is required to -

Show the basis for your application to remain permanently in Australia by ticking the appropriate box(es) (tick all relevant boxes).

1. There is then set out a series of main headings relating to various grounds upon which permanent residence can be claimed. One of these grounds is:
   

Family relationship with an Australian citizen or permanent resident, if you are a:

* Dependent child.

* Aged parent (over 60 for women, over 65 for men) with at least as many children legally and permanently resident in Australia as overseas, or more children legally and permanently resident in Australia than in any single overseas country.

* Single dependent aged relative (over 60 for women, over 65 for men).

* Orphan unmarried relative under 18 years. * Brother, sister or non-dependent child who has no remaining relatives outside Australia.

* Relative who is needed to give substantial permanent or long-term help in dire circumstances (for example disability or death) and the help is not available from any other source in Australia.

1. The box beside -
   

Brother, sister or non-dependent child who has no remaining relatives outside Australia

has been ticked, but no other box has been so marked.

1. On the third page (item 9) the applicant's details are provided. His usual occupation is shown as "self employed". Pages 4 to 10 inclusive contain details of the applicant's place of birth (item 12), the date of his last entry into Australia (item 13), particulars of his family (item 35) and brief details relating to his health (item 37). Page 11 of the application form contains the following instructions:
   

All applicants aged 18 years or over must sign the Declaration on Page 21

Before doing this, if you are applying: on grounds of marriage - complete Section A and your spouse complete Section I as a dependent child - your parent/guardian complete Section I on grounds of being an - complete Section B illegal entrant who arrived

in Australia as a child and

has since turned 18

as an aged parent - complete Section C and your nominator complete Section I as a single dependent aged - complete Section D relative and your nominator complete Section I as an orphan relative - your nominator complete Section I as a remaining relative - complete Section E and your nominator complete Section I as a special need relative - complete Section F and your nominator complete Section I on grounds of an - complete Section G interdependent relationship and your nominator complete Section I on skilled occupation - complete Section H grounds and your nominator complete the applicable nomination form, Employer Nomination Form (Form 785) or Tripartite Negotiated Arrangement Form (Form 831) If you are applying::

as a former citizen or resident ) who has close ties with ) with Australia ) Go straight to the ) Declaration on Page 21 as an illegal entrant who ) arrived in Australia before ) 1 January 1975 and has not ) departed since )

1. Section E (which is headed "Grounds of being a remaining relative") and Section I (which is headed "Nomination") have been completed. Relevantly, in item 87 (headed "Grounds for nomination") the nominator (the applicant's mother) has indicated that she wished to nominate the applicant for permanent residence in Australia because he is "a remaining relative". The box relevant to "my dependent unmarried child" has not been ticked. In the same section a line has been drawn through the whole of the items headed "Nominating a child", which include, inter alia, items relevant to a case in which the child is over 18 years.

THE DELEGATE'S DECISION
7. In dealing with the application, the Minister's delegate found as fact that the applicant was born in Mayantoc, Tarlac, in the Philippines on 29 June 1954 and is unmarried. He is a Philippine citizen who entered Australia on 28 August 1991 as a visitor and was granted a temporary entry permit valid for six months. On 2 December 1991 he applied for an extended eligibility (family) entry permit (Family EETEP) and a family and close ties entry permit. In support of the application, the applicant supplied some 25 documents, including a number of medical reports which were obtained for the purpose of ascertaining if the applicant met the prescribed health criteria. In making his decision the delegate had before him the relevant departmental file and he had regard to the Migration Act, the Migration Regulations and the Procedures Advice Manual - Health Requirements Booklets 1 to 6.

1. In considering the application for a Family EETEP the delegate assessed the applicant's claims against the criteria in Regulation 127 (as it stood at the relevant time) which so far as is presently relevant provided:
   

127. The following criteria are prescribed in relation to an extended eligibility (family) entry permit:

(a) at the time when the application for the entry permit is decided, the applicant:

(i) ...

(ii) ...

(iii) as the result of a death or permanent incapacitation:

(A) is an aged dependent relative, remaining relative, special need relative, or orphan relative; and

(B) the relative in Australia to whom that relationship relates is an Australian citizen, or an Australian permanent

resident who has been resident in

Australia for a reasonable period; or

(iv) ...

(v) ...

(vi) ...

(b) at the time when the application for the entry permit is decided, the applicant satisfies public interest criteria, as applicable, and the prescribed health criteria specified in Item 9 in Schedule 1.

The delegate found that the applicant's claims were relevant only to the remaining relative ground in paragraph 127(a)(iii), and from the information provided by the applicant both in his application and in addition to his application he found that the applicant satisfied the prescribed criteria of the definition of "remaining relative" in sub-regulation 9(1).

1. The delegate then turned to paragraph 127(b) and found that the applicant had satisfied the public interest criteria.

2. It is unnecessary to particularise in any detail the delegate's consideration of the medical evidence relating to the issue of the health criteria specified in item 9 in schedule 1. Sufficient to say that after quoting the relevant item in full, the delegate referred to a series of medical reports which culminated in an opinion of a medical officer of the Commonwealth that the applicant did not meet the prescribed health criteria as set out in item 9(c) of schedule 1 of the Migration Regulations in that the applicant has a condition which would "require significant care or significant treatment (or both)" and which would result in him "becoming a significant charge on public funds".

3. The delegate then referred to regulation 144 by which the Minister is able in some circumstances to waive compliance with the health criteria. Regulation 144 applies only in relation to specified kinds of entry permits of which a Family EETEP is not one. Accordingly, the question of waiver did not arise and the application was refused on the ground that the applicant did not satisfy the prescribed criteria of regulation 127.

THE APPLICATION FOR REVIEW
12. The application to review the delegate's decision was filed on 28 October 1992. It was subsequently amended by leave. In their final form the grounds upon which review was sought were as follows:

(1) That a breach of the rules of natural justice occurred in connection with the making of the decision in that:

(a) the applicant was not provided with the factual basis or circumstances upon which and/or reasons for the opinion of the Medical Officer of the Commonwealth that the applicant:

(i) suffers from poorly controlled epilepsy and will require life long monitoring and treatment for his epilepsy and is at risk of complications, such as seizure related trauma;

(ii) has hypercholesterolaemia, a significant risk factor for coronary vascular disease which condition will also require long-term monitoring and treatment;

(iii) would probably require long-term welfare support.

(b) the applicant had not been given the opportunity to provide further or any evidence and/or make submissions and be heard regarding the allegations aforesaid so as to be able to satisfy the prescribed health criteria.

(c) had the applicant been given an opportunity of answering the aforesaid allegations and found to be nevertheless unable to satisfy the relevant prescribed health criteria he was denied the opportunity of having the said health criteria waived whereby the Minister might have exercised his discretion in favour of the applicant in that:

(i) the relevant prescribed health criteria could have been waived had the applicant applied as a "Dependent child" and/or on humanitarian grounds instead of as a "Brother or non-dependent child who has no remaining relatives outside Australia".

(ii) the applicant was not properly advised or advised at all of his entitlement to apply under a class appropriate to the circumstances of his case and thereby was denied the opportunity of being considered under an appropriate class.

(iii) the applicant was denied the opportunity of having his circumstances considered properly irrespective of which class he nominated to apply under.

(d) the applicant suffers from inter alia epilepsy, low average intelligence, retarded growth and growth hormone deficiency as a result of which the applicant is dependent upon his mother Estrellita Caluya, his sisters, Roseminda De Guia, Elene Ratcliffe, Beatriz Porter, Maria Lourdes Caluya and his brothers Alfredo Caluya, Antonio Caluya and Cirilo Caluya all of whom reside permanently in Australia and wish to continue to care for the applicant. Return by the applicant to the Philippines would put him at severe risk of seizure exacerbation with potentially life threatening consequences thereby creating special hardship for the applicant and the members of his aforesaid family.

(e) the circumstances of the applicant have not been properly considered and his application to remain in Australia permanently has been prejudiced through no fault of his own.

2. That the procedures that were required by law to be observed in connection with the making of the decision were not observed in that the procedures adopted were and are not fair.

3. That the making of the decision was an improper exercise of power in that there was a:

(a) failure to take a relevant consideration into account in the exercise of a power;

(b) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(c) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

4. That there was no evidence or other material to justify the making of the decision.

1. In a written statement of "Facts, Issues and Contentions of Law" filed on behalf of the applicant in advance of the review hearing, the "issues" were identified as:
   

1. Whether the information before the decision maker indicated that the applicant was a dependent child.

2. If the information aforesaid did indicate that the applicant was a dependent child whether the decision maker should have assessed the application of the applicant in view of that fact.

3. Whether the application by the applicant was restricted to an application relating only to the "category" of "remaining relative" and if so why.

4. If the application of the applicant was not restricted to the category of remaining relative whether the applicant should have been given the opportunity to be considered as a dependent child.

5. Whether the applicant was aware or could have been aware of his entitlement to apply as a dependent child.

6. Whether the application form and accompanying explanatory literature provided sufficient or any explanation as to his entitlement as a dependent child.

7. Whether the applicant has been prejudiced in the application form provided by the respondent.

8. Whether the applicant has been prejudiced in the process of the assessment of the application by not being provided with the opportunity of being considered as a dependent child.

9. Whether the decision maker failed to take into account the fact that the applicant was a dependent child.

10. Whether the decision maker failed to consider whether the health criteria might be waived in the circumstances.

11. Whether the decision maker failed to consider the relevant guidelines or policy control instructions as regards the assessment of the possibility of waiving health criteria.

THE APPLICANT'S CASE FOR REVIEW
14. In his argument in support of the application counsel for the applicant submitted that the delegate's failure to advise the applicant of his right to apply for an entry permit under some provision other than the one considered by the delegate amounted to a denial to the applicant of procedural fairness and represented a failure to take into account relevant considerations. It is said for the applicant that the applicant was entitled to have all reasonable possibilities of entitlement considered and that where an applicant is entitled to an entry permit under a classification provided by the regulations, the fact that the application was made in respect of a different classification does not relieve the decision maker from the obligation to consider the application under the appropriate classification.

1. Counsel for the appellant suggested that the application form did not make provision for the applicant to make an election as to the basis upon which he sought to remain permanently in Australia and as a corollary to that it is said that in dealing with the application, the decision maker should have had regard to all of the possibilities open to the applicant.

2. In the instant case, it is said that the information before the decision maker was such that there was a reasonable possibility that the applicant was entitled to be considered as a dependent child. The significance of this assertion is said to be that had the applicant been otherwise qualified to be granted an entry permit as a dependent child but was unable to satisfy the health criteria, the Minister would have been entitled pursuant to regulation 144 to waive the health criteria, something he was unable to do in respect of an application for a Family EETEP. Although the basis of this assertion was not challenged, I do not think it is correct. Relevantly, the kind of entry permit to which regulation 144 applies is "child". Schedule 3, which provides for the various classes of entry permits makes provision for both "child" and "child (after entry)". Regulation 144 does not apply to an entry permit of the class "child (after entry)" which is obviously the classification under which the applicant says his application should have been considered. The application for review was however argued on the assumption on both sides that the applicant's assertion as to the entitlement to waive health criteria would have applied in the case of the applicant having been found to be otherwise entitled to an entry permit as a dependent child. The question in issue before the Court was whether the delegate made a reviewable error in not having considered the application as if it were an application based upon a claim that the applicant was a dependent child.

3. Whilst it is true that the same form is used for applications for several categories of extended eligibility permits and for several categories of permanent entry permits, without requiring the applicant to specifically identify the category in respect of which the application is made, the fact is that when asked to "show the basis for (his) application to remain permanently in Australia" the applicant identified only that he claimed a family relationship with an Australian citizen or permanent resident as a "brother sister or non-dependent child who has no remaining relatives outside Australia". He did not indicate that he claimed to be a dependent child of an Australian citizen or permanent resident. Indeed, the information provided in the application form suggests that the applicant did not claim to be a dependant of his nominator or anyone else. By completing Section E and having his nominator complete Section I of the application the applicant made it perfectly clear that his application was based on his claim as a remaining relative.

THE RESPONDENT'S CASE
18. The respondent says that the delegate was under no obligation either to advise the applicant of his eligibility to apply under a particular regulation or to consider the application under a class other than that applied for.

1. Counsel referred to and relied upon a passage from the judgment of Davies J in Elbourne v Minister for Immigration (1991) 22 ALD 211. In Elbourne the claim had been made that there had been a failure to accord natural justice to an applicant for an extended eligibility entry permit in that she was not advised as to the correct form to fill in, and that the decision refusing her application had been made on a wrong basis as no consideration had been given to her true circumstances which, it was said, indicated that she had a good case for the grant of a temporary permit as a supported dependant. In his reasons, Davies J said of this submission (at p 212):
   

In considering this submission, it must be kept in mind that good administration does not preclude the giving of help and assistance when it appears to be needed. But the principles of procedural fairness do not require that, in the generality of cases, the circumstances of a person seeking to make an application for a permit should be considered in detail and advice given as to the application that can best be made. Indeed, s.34 of the Act provides that a person making an application for an entry permit shall make application for an entry permit of a particular class in accordance with the Regulations and, until that has been done, the Minister "is not required to consider an application at all".

In addition to the provisions of s 34 to which Davies J referred, ss (4) of the same section provides:

Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit.

1. The passage from Davies J's reasons in Elbourne quoted above was referred to and expressly approved by the Full Court in Minister for Immigration v Buksh 1991-2 26 ALD 399 and applied by French J in Da Sousa v Minister for Immigration (unreported, 8 May 1992) and by Heerey J Hakim v Minister for Immigration (unreported, 25 November 1992).

CONCLUSIONS
21. Counsel for the appellant argued that the present case is not one which falls within the scope of Davies J's dictum in that, as it is said, this case is not one which falls within the generality of cases, but rather is a special case which on its facts distinguishes it from the generality.

1. Central to that submission is the assertion made by the applicant that the information before the decision maker indicated that the applicant was a dependent child. With respect, such an assertion is contrary to the facts.

2. As indicated earlier in these reasons, item 3 of the application form invited the applicant to indicate the basis of his application by ticking "all relevant boxes". He ticked only the box relating to "brother, sister or non-dependent child". He described his occupation as "self employed". He completed the section of the form relevant to an applicant applying as "a remaining relative" and his nominator described him as "a remaining relative" and not as "my dependent unmarried child". Further, the nominator gave no particulars of any dependency on his nominator nor upon anyone else. On any view of the application form as completed and submitted to the department it was "an application for an entry permit of a particular class" (s 34(1)), and it having appeared to the Minister's delegate that the applicant was not, under the regulations, entitled to be granted an entry permit "of the class concerned", the Minister was obliged to refuse to grant such an entry permit (s 34(4)). Unless and until the applicant makes an application for an entry permit of a different class in accordance with the regulations, the Minister is not required to consider such an application (s 34(3)).

3. There may well be cases in which the information contained in an application form is ambiguous or in some way suggests that the applicant is making multiple claims to entitlement to be granted an entry permit. In such a case the Minister would be obliged to deal with the application in an appropriate manner and consider all of the claims being made, but that case is not this case. Here there is no ambiguity about the application. It relies upon one, and only one, basis to support the application and was dealt with by the Minister's delegate in a manner appropriate to such an application.

4. In the circumstances the applicant has not demonstrated any denial of natural justice, absence of procedural fairness nor the failure of the decision maker to have regard to relevant considerations. The application must fail and will be dismissed.