Can, Lu v Martin Robyn
[1995] FCA 708
•5 SEPTEMBER 1995
CATCHWORDS
Practice and procedure - Claim disclosing no reasonable cause of action - Dismissal.
Federal Court Rules O 20 r 2
General Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 CLR 125
Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
LU CAN v ROBYN MARTIN AS DELEGATE OF THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS VG 385 of 1994
COURT:Sundberg J
PLACE:Melbourne
DATE:5 September 1995
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No VG 385 of 1994
GENERAL DIVISION )
BETWEEN:LU CAN
Applicant
AND:ROBYN MARTIN AS DELEGATE OF THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First Respondent
AND:THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Second Respondent
COURT:Sundberg J
DATE:5 September 1995
PLACE:Melbourne
MINUTES OF ORDER
The Court orders that:
The Application be struck out as disclosing no reasonable cause of action.
The applicant pay the respondents' costs of the Motion.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No VG 385 of 1994
GENERAL DIVISION )
BETWEEN:LU CAN
Applicant
AND:ROBYN MARTIN AS DELEGATE OF THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First Respondent
AND:THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Second Respondent
COURT:Sundberg J
DATE:5 September 1995
PLACE:Melbourne
REASONS FOR JUDGMENT
SUNDBERG J:
The applicant seeks to review the decision of the first respondent that the applicant and members of his family be refused permission to migrate to Australia. The first respondent is the delegate of the Minister for Immigration and Ethnic Affairs. The second respondent is the Minister.
The respondents have applied under Order 20 r.2 of the Federal Court Rules for the proceeding to be dismissed as disclosing no reasonable cause of action.
The decision attacked is contained in a letter to the applicant dated 16 November 1992 signed by "Robyn Martin, Manager, MIRO Victoria". I will call this letter "the Martin letter". It is on notepaper headed "Immigration Review Panel" and sub-headed "Secretariat - Migration Internal Review Office". That is the Office (MIRO) of which Robyn Martin is Manager. The letter referred to the applicant's application to the Immigration Review Panel for reconsideration of a decision refusing him and his family permission to migrate to Australia, and continued:
A review has been conducted by the Immigration Review Panel, which examined the requirements of the relevant legislation and Government policy and considered all the available evidence. The Panel took into account the particular circumstances of the case, including the information given in your review application and in a report provided by the Department.
The Panel recommended that the decision to refuse the application to migrate to Australia be maintained. A delegate of the Minister for Immigration, Local Government and Ethnic Affairs studied the Panel's report and other information available on the case and accepted the Panel's recommendation. The enclosed papers will help you understand why the decision has been maintained.
The "enclosed papers" consisted of two documents. The first, dated 9 November 1992, is headed "Departmental Submission on an Application for Reconsideration of a Decision (ARD) to refuse the Grant of Migration Visas", and is signed by Wal Zammit, ARD Case Officer. I will call this document "the Submission". From the Submission it appears that the Australian Embassy in Bangkok refused to grant migrant visas to the applicant and his family. The application for reconsideration was made under reg.173A of the Migration Regulations 1989 which enables a person whose application for the grant of a visa or entry permit has been refused to apply to the Minister "to reconsider the decision".
The Submission recorded that visas had been refused because the applicant's daughter did not satisfy the health requirements set out in Ch.5 of the Migrant Entry Handbook, that upon the making of the application for reconsideration fresh "medicals and specialists reports" were obtained and despatched to the Department of Community Services and Health (DCSH) for its assessment, and that DCSH reported that the daughter has severe myopia with retinal degeneration. The report contained these passages, which were set out in the Submission:
In my opinion, her condition is likely to continue to worsen and she eventually will become legally blind and thus eligible for the "blind pension". She is only 27 years of age and has no training to prepare her for this eventuality.
Under the circumstances, I have no option but to uphold the findings of the Regional Medical Director that Ms. Lu fails to meet health requirements for permanent residence. She is likely to require recurrent medical attention (reason 9) and is suffering from a defect which can not be cured by treatment and which eventually will prevent employment (reason 11).
Reasons 9 and 11 (which appear in the Migrant Entry Handbook) were then set out. Reason 9 refers to "People who would be in persistent and recurrent attendance at out-patient departments or clinics, or would be likely to require constant medical attention". Reason 11 refers to "People suffering from defects which cannot be cured by medical treatment and which prevent employment".
Based on the DCSH medical report Mr. Zammit concluded that the daughter did not meet the medical standards. He continued:
Where health requirements are not met, I need to consider whether there are reasons to justify the waiver of the usual health standard.
The principal applicants have two children in Australia and four in Vietnam and accordingly the family reunion and compassionate factors are not strong.
The medical treatment which Ms. Lu will require will involve a potential lifetime charge to the Australian public funds. Added to this is the evident entitlement to a "blind pension".
[Taking] all matters into account I do not believe that the family reunion factors outweigh the potential cost to the Australian taxpayer, which Ms. Lu's medical condition represents.
Mr. Zammit concluded that the compassionate grounds relied on were not sufficient to warrant approval of the application "as a special case outside policy", and recommended that the decision refusing migrant entry be maintained.
Section 5.13.1 of the Handbook provides the context for Mr. Zammit's reference to "a special case" and a "waiver of the usual health standard". It states:
While failure to meet the health requirements generally results in refusal of the application there may be special circumstances, especially compassionate ones, which justify consideration being given to waiving the usual standards.
The second of the documents accompanying the Martin letter is dated 11 November 1992 and is signed by the Chairperson of the Immigration Revue Panel. I will call this "the Panel recommendation". It is addressed to the Minister, and states that the writer has considered the application for reconsideration, the Submission and Departmental files, and had before her, inter alia, the Migrant Entry Handbook. She concludes that the circumstances "are not
such as to warrant special treatment", and recommends that the Departmental decision be maintained.
The principle to be applied in applications under O.20 r.2 is not in doubt. In General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 C.L.R. 125, at p.129 Barwick C.J. said that the jurisdiction summarily to terminate an action is to be sparingly employed, and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. With a view to saving court time, the parties invited me to read in my Chambers the Application and the documents the contents of which I have described. After I had read them, the matter was argued for two and a half hours, and as it was then 5.00 p.m. I reserved my decision. I am satisfied, as indeed were the parties, that I had before me all the material I needed in order to reach a definite conclusion. I was also assisted by the fairly full submissions of counsel, though time constraints prevented a leisurely argument.
Later in the General Steel Case Barwick C.J., after again observing that the lack of a cause of action must be clearly demonstrated, said:
I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.
The first of the grounds in the Application alleges an error of law on the face of the record "in that the record does not disclose in documentary form what, if any, decision was made by a delegate of the Minister". The applicant treated the Martin letter and the enclosures as "the record". The assertion that the Martin letter does not disclose in documentary form what decision the delegate made is untenable. The letter says that the delegate has studied the papers and has accepted the Panel's recommendation that the Department's decision be maintained. It was contended that the identity of the delegate was not disclosed by the Martin letter. But the Amended Application describes Robyn Martin, the writer of the Martin letter, as the delegate of the Minister, and she is sued in that capacity. The Application is to review her decision to refuse permission to migrate. In the Particulars to the first ground it is said that the documentation accompanying the Martin letter "makes no disclosure of a decision having been made by a delegate of the Minister". This is of course correct, because the matter had not reached the delegate when the enclosures were written. But the fact that the enclosures do not disclose a decision having been made by the delegate is neither here nor there, because the Martin letter does disclose the delegate's decision.
The second ground is that the delegate's decision was an improper exercise of power in that it was so unreasonable that no reasonable person could have made it. The Particulars assert that the Panel recommendation "does not specify whether the 'special treatment' refers to the Applicant's application (the inherent merits or otherwise) or the application of 'special treatment' based on a policy made by the Secondnamed Respondent within the exercise of power conferred by the Migration Act 1958". There is no substance in this ground. It is clear that the "special treatment" referred to in the Panel recommendation is to the "special circumstances" referred to in s.5.13.1 of the Handbook which justify a waiving of the usual health standards. See in particular the passages I have quoted from the Submission. The reference to "special treatment" in the Panel recommendation is to both the merits of the application and the policy made by the Minister. There was therefore no occasion for the Panel recommendation to distinguish between the two, and it cannot be unreasonable in the relevant sense (or at all) for the decision-maker to have relied upon and accepted it.
I will defer consideration of the third and fourth grounds until I have dealt with the sixth ground. The fifth ground is that relevant considerations, namely the full financial circumstances of the applicant's family, were not taken into account. Any financial information put forward by the applicant was in the Department's files that were considered by the Chairperson of the Panel and by the delegate. There is nothing to support this ground.
The seventh ground is that the decision was an improper exercise of power in that it was made at the direction of DCSH. This ground is based on Mr. Zammit's (and thus the delegate's) acceptance of DCSH's medical assessment of the daughter. There is no evidence to support the "direction" claim, and this ground is without substance.
The eighth ground is that the decision was an improper exercise of power in that it was so unreasonable that no reasonable person could have made it. The Particulars assert that it was unreasonable to accept that the daughter's condition "will eventually prevent employment", and unreasonable to find that the treatment she will require "will involve a potential lifetime charge to the Australian public" as well as involving eventual entitlement to
a "blind pension". The material before the Department and the delegate clearly justified each of those findings, and there is no substance in this ground.
The sixth ground asserts that the decision was an improper exercise of power in that it was made in accordance with a rule or policy without regard to whether it was appropriate to apply the policy in the circumstances of the applicant's case. The Particulars claim that the delegate treated the health standards as if they had legislative standing, and adopted a policy whereby the application was to be refused unless the applicant's circumstances were such as to warrant special treatment. The applicant attacked the propriety of reliance on the health policy contained in the Handbook. His counsel said that reg.173A conferred an unfettered discretion on the Minister which had been "abdicated" by the application of the policy. He relied on Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 A.L.R. 577, at p.590 where Bowen C.J. and Deane J. said:
Ordinarily ... an administrative officer charged with the exercise of discretionary power will be entitled, in the absence of specifically defined criteria or considerations, to take into account government policy. The propriety of paying regard to general policy considerations is most evident in a case such as the present where there are no specified statutory criteria for the exercise of the discretionary power and where the power is entrusted to a Minister of the Crown responsible to Parliament. ... Indeed, the consistent exercise of discretionary administrative power in the absence of legislative guidelines will, in itself, almost inevitably lead to the formulation of some general policy or rules relating to the exercise of the relevant power.
...
In the present case reg.173A contains no criteria or considerations which are to guide the Minister in his reconsideration of a decision. Where the question is whether a person should be granted an entry visa, a policy that prima facie excludes those suffering from ill-health that will impose a burden on the Australian taxpayer is a policy which can properly be adopted and to which the Minister can properly have regard.
Bowen C.J. and Deane J. then said:
In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.
The relevant policy is in my view that those who might become a burden on the community should not be permitted to enter the country. The delegate did not treat that policy as if it had legislative standing. By accepting the Panel recommendation the delegate in turn accepted Mr. Zammit's recommendation. Mr. Zammit found that the daughter did not meet the health requirements, but went on to consider whether there were other considerations that took the case outside the general rule. He examined the compassionate grounds relied on,
weighed them against the potential cost to the taxpayer which the daughter's medical condition represented, and determined that those grounds did not outweigh that cost. Accordingly, in adopting Mr. Zammit's recommendation the delegate did not abdicate her function of determining whether the decision to refuse entry visas was the correct one in the circumstances of the particular case by simply applying the health exclusion policy.
Counsel for the applicant identified the relevant policy not as exclusion for health reasons, but exclusion for health reasons subject to a waiver on the ground of special circumstances. As I have said, I do not think that is the policy, and it was not the policy identified by Mr. Zammit and thus by the delegate. In announcing his conclusion Mr. Zammit said that the claims advanced were not sufficiently strong to warrant approval of the application "as a special case outside policy". It is plain that the policy he purported prima facie to apply was the health exclusion policy. If, contrary to my view, the policy is the more ample one contended for, the delegate did not apply it in a manner which abdicated her function of determining whether the decision made was, on the material before her, the correct or preferable one. Mr. Zammit (and thus the delegate) had regard to all the material propounded by the applicant which bore on "family reunion", "compassionate factors" and the "merits of the case", and concluded that what was put forward did not justify approval of the application. Accordingly, if the delegate did, as claimed in par.(b) of the Particulars to ground 6, adopt a policy whereby the application was to be refused unless the applicant's circumstances were such as to warrant special treatment, the adoption of such a policy did not amount to a failure to consider what was the correct or preferable decision to make in the circumstances of the particular case.
The third ground alleges that there was an error of law in the making of the decision in that the delegate failed to undertake a full reconsideration of the application pursuant to reg.173A, and wrongly required the circumstances of the case to be "such as to warrant special circumstances". What I have said in relation to the sixth ground disposes of this ground.
The fourth ground alleges that an irrelevant consideration was taken into account, namely whether the case was such as "to warrant special treatment". There is no substance in this ground. For the reasons I have given when considering the sixth ground, the health policy (including the waiver element) was clearly not an irrelevant consideration, though the delegate was not entitled to be controlled by the policy.
The result is that none of the grounds contains "a real question to be determined": cf. Dey v. Victorian Railways Commissioners (1949) 78 C.L.R. 62, at p.91. They are all in my view so clearly untenable that they cannot possibly succeed: cf. General Steel, at p.130.
I have, as invited by the parties, dealt with the matter as it was argued. The respondents made no challenge to the status or form of the Application, which although expressed to be an amended "application for an order of review under section 39B of the Judiciary Act 1903" has all the appearances of an application under the Administrative Decisions (Judicial Review) Act 1977, and for the most part uses the language of that Act. Prior to its amendment, the application had been made under that Act and under the Judiciary Act, and had been struck out in so far as it sought relief under the 1977 Act. However, because no
point was made of the form of the Application by counsel for the respondents, I will not pursue the matter.
I will order that the Application be struck out as disclosing no reasonable cause of action.
I certify that this and the preceding 11 pages are a true copy of the reasons for judgment of the Honourable Justice Sundberg
........ ........ ........ ........ ........ ........ .....
Associate
5 September 1995
Counsel for the Applicant: S Jones
Solicitors for the Applicant: Barlow & Co
Counsel for the Respondent: W Mosley
Solicitors for the Respondent: Australian Government Solicitor
Date of Hearing: 24 August 1995
Place of Hearing: Melbourne
Date of Judgment: 5 September 1995
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