Caulton, S.J. & J.A. v The Minister for Immigration & Ethnic Affairs

[1987] FCA 425

Re: STEPHEN JOHN CAULTON and JENNIFER ANN CAULTON
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. VG60 of 1987
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Administrative Law - Judicial review - Application for reviews of denial of permanent resident status and consequent deportation orders - Natural justice - whether material on which decisions based need be made known to applicants - whether opportunity should be offered to applicants to deny or explain such material.

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

Migration Act 1958: s. 6A.

HEARING

MELBOURNE

#DATE 12:8:1987

Counsel and solicitors for the applicants: F. Costigan Q.C. with M. Heaton instructed by Messrs. Paul B. Connor Blackman & Co.

Counsel and solicitor for the respondent: R.M. Downing instructed by the Australian Government Solicitor

ORDER

The decisions of John Richard Mahoney, Delegate of the Minister of State for Immigration and Ethnic Affairs for the purposes of s. 18 of the Migration Act 1958, an authorised officer for the purposes of s. 6A of the Act and an officer for the purposes of s. 6 of the Act made on 15 January 1987 that Stephen John Caulton and Jennifer Ann Caulton:-

(i) be refused the grant of further temporary entry

permits;

(ii) be refused the grant of permanent resident status;

(iii) be refused the option of voluntary departure; and

(iv) be deported from Australia

be set aside.

The respondent, the Minister of State for Immigration and Ethnic Affairs, pay the costs of the applicants, Stephen John Caulton and Jennifer Ann Caulton of the proceedings.

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

JUDGE1

Stephen John Caulton and his wife, Jennifer Ann Caulton, seek orders of review under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") of decisions of the Delegate of the Minister for Immigration and Ethnic Affairs. The decisions were made by the Delegate on 15 January 1987 and were that:

(a) the grant of further temporary entry permits to the

applicants be refused;

(b) the grant of permanent resident status to the applicants be refused;

(c) the option of voluntary departure be refused; and

(d) the applicants be deported.

1. The grounds on which the decisions of the Delegate are challenged are, in general, that breaches of the rules of natural justice occurred in connection with the making of the decisions, that the procedures required by law to be observed in connection with the making of the decisions were not observed and that the making of the decisions was an improper exercise of the power conferred by the Migration Act 1958 under which they were purported to be made in that irrelevant considerations were taken into account and relevant considerations were not taken into account in the exercise of that power.

2. In evidence and in argument all four decisions were treated together. No separate consideration was given to any one decision as distinct from another.

3. A Minute dated 15 January 1987 was signed by Mr R. Neilson, Acting Director, Enforcement Section of the Department of Immigration and Ethnic Affairs. The Minute was submitted to the Delegate on that day. The Minute contains a full and detailed statement of matters which its writer regarded as relevant for the Delegate's consideration. The Minute contains thirty-four paragraphs and nine attachments.

4. I shall set out the paragraphs in the Minute which bear most directly upon the issues in the case.
   
   

"STEPHEN JOHN CAULTON

a.k.a. TERENCE RUSSELL

a.k.a. TERENCE MYERS

JENNIFER ANN CAULTON

a.k.a. JENNIFER RUSSELL

a.k.a. JENNIFER ANN PEACOCK

a.k.a. JENNIFER ANN MYERS

a.k.a. JENNIFER ANN BRAMLEY

BRITISH (U.K.) NATIONALS - PROHIBITED NON-CITIZENS QUESTION OF DEPORTATION

PURPOSE

To recommend that you adopt the findings on material questions of fact and the assessment set out below, having regard to evidence at attachments 'A' to 'H' and if you accept the assessment:

(i) refuse the grant of temporary entry permits;

(ii) refuse the grant of permanent residence;

(iii) refuse the option of voluntary departure; and

(iv) sign orders for the deportation of the abovenamed persons.

A. FINDINGS ON MATERIAL QUESTIONS OF FACT

2 Mr and Mrs Caulton have stated that their personal particulars are as follows:

FULL NAMES:

STEPHEN JOHN CAULTON JENNIFER ANN CAULTON and other aliases and other aliases

DATE OF BIRTH: 10 June 1937 10 April 1954

PLACE OF BIRTH: Derby U.K. Plymouth U.K.

CITIZENSHIP: British (U.K.) British (U.K.)

MARITAL STATUS: Married Married

FAMILY: Australia: 2 Children 2 Children U.K.: Mother, Brother Parents 5 sisters, 2 children 2 sisters from previous marriage.

3 Mr and Mrs Caulton originally entered Australia on 2 November 1980 holding tourist visas (he as Terence Myers and she as Jennifer Ann Peacock) and departed after a stay of 5 days. Accompanied by their daughter Amy Laura Myers, born in the U.K. on 23 August 1982 they returned on 29 November 1982 (under the same names as used during their first visit) and departed on 13 July

1983. Mr Caulton was issued with a conditional - Employment Prohibited - temporary entry permit valid for three months until 29 January 1983. He obtained a three month extension until 29 April 1983. His wife and daughter were issued with a six month conditional - Employment Prohibited - temporary entry permit on arrival valid until 29 April 1983.

4 They were overstayed by approximately three months when they departed but did obtain one day extensions on the eve of their leaving Australia.

5 During their visit community information indicated that Mr and Mrs Caulton were working in Perth in contravention of the conditions of their entry permits. Investigation found this to be true - Mr Caulton was financing a bookmaker and his wife was working as a bookmaker's clerk. It was evident also that they had adopted aliases - they rented their house under the name Crosley and were employed under the name Williams.

6 On return to the U.K. Mrs Caulton obtained a new passport in her married name. The child Amy was included in this document. As the previous passport indicated that she had overstayed on her visit to Australia, the Chief Migration officer London sought advice from the Perth DIEA Office as to whether there were any objections to a visa issue when Ms Caulton applied for a new visa.

7 In view of the contraventions of the conditions of entry on the previous visit and the use of false names in Australia a reply was forwarded to London advising against the issue of visas. Consequently, the multiple entry visas of Mr and Mrs Caulton were cancelled and further visas refused - Attachment A.

8 In a submission from their solicitors (vide Attachment F) Mr and Mrs Caulton admit that 'they could not be considered (for visitor visas) because of their earlier breach of the Act by overstaying their visa. Because of this they changed their surnames by deed poll to Russell and obtained temporary entry permits (i.e. visas) to Australia'.

9 Mrs Caulton arrived with Amy on 20 September 1983, using the name Jennifer Russell, and both were issued with conditional - Employment Prohibited - temporary entry permits valid until 16 November 1983. Mr Caulton arrived on 15 February 1984 using the name Terence Russell and was issued with a conditional - Employment Prohibited - temporary entry permit valid until 14 May 1984.

10 It should be noted that when applying for their visas in the name of Russell neither person indicated on their application forms their former names or details of previous residence in Australia - Attachment G.

11 The temporary entry permits of Mr and Mrs Caulton and Amy have expired and no further entry permits applicable to them came into force upon that expiration or have been granted to them since. They are now prohibited non-citizens pursuant to sub-section 7(3) of the Migration Act 1958. It is likely that they are also prohibited non-citizens pursuant to section 16(1)(ba)(ii) of the Act in that at the time of or prior to the grant of their visas they made statements that were false or misleading in a material particulars

(sic).

12 Mr and Mrs Caulton came to notice when they approached the Melbourne DIEA Office through their solicitors Paul B. O'Connor, Blackman and Co. They were interviewed on 8 October 1986 and made aware of their status and of the policy relating to illegal immigrants. Mr Caulton stated (apart from the details related above) that he:

. had enquired about migration in 1983 from overseas but was told he was not eligible;

. had made no approach to DIEA following their recent entry;

. has an Australian-born son James Elliot Myers born in Tasmania on 7 January 1985;

. claims to have diplomas in Mechanical Engineering, Production Engineering and Mining Engineering but had worked as a self-employed sales organiser in UK;

. worked in Australia as a self-employed sales organiser;

. had no criminal record overseas or in Australia;

. claimed to have resided in Australia in Perth, Adelaide and Victoria. (Note: son was born in Tasmania);

. claims not to have been deported or excluded from any country (Note: he had been refused visas for Australia in 1983);

. wishes to remain in Australia having established a business with a large and increasing turnover which employs Australian citizens;

. objects to deportation as he would have difficulties in returning to Australia to run a business; and

. representations will be received from his solicitor.

13 . . .

14 Applications for resident status in Australia were lodged on 5 December 1986 relying on claims of strong compassionate and humanitarian grounds (paragraph 6A(1)(e)). This application confirmed most of the statements made during their interview (yet omits to mention Tasmania as a place of residence in 1985) and adds the following information:

. Mr Caulton had changed his name from Terence Russell to Stephen John Caulton by deed poll on 22 June 1986;

. Mr Caulton had convictions in Australia - $100 fine for working outside hall without a hawker's licence and in the UK - $500 fine for contravening mock auction regulation;

. Mr Caulton had no outstanding charges against him in any other country;

. their son Nicholas was residing in Australia (not mentioned during interview on 8 October 1986. Nicholas had been arrested in Perth as a prohibited non-citizen on 19 November 1986 and has since been deported from Australia);

. Mrs Caulton acknowledged that her visa was conditional and that employment was prohibited to her;

. Mrs Caulton admitted to a fine of 50 pounds in the UK for assisting contravention of mock auction regulations;

. Mrs Caulton changed her name from Peacock to Russell in September 1983 by deed poll (she arrived in Australia on 20 September 1983 using this name); and

. Mr Caulton changed his name from Myers to Russell by deed poll in January 1984 (he arrived on 15 February 1984 using that name).

15 In their supporting statement the solicitors expand the claim of Mr and Mrs Caulton for residence status on the grounds of 'compassion' and advise that the couple operate a partnership under the trading style of Steve's Liquidation Sales. It is claimed that the business is successful due to the organisational skills of Mrs Caulton and the distinct and unique selling style of Mr Caulton. Schedule 'B' of Attachment F gives details of how the business is operated and its financial record. The accountants K.M.G. Hungerfords advise that from a sales turnover of $701,488 the business made a nett profit in 1985/86 of $69,308. The business consists of itinerant sellers selling a wide range of stock from 200 locations annually.

16 The following points are highlighted in the solicitor's submission in support of the application for resident status:

. the birth of the child James on 7 February 1985 at Launceston;

. the demonstrated ability of the family to integrate into the Australian society;

. the fact that various people and organisations have become reliant upon the success of their business in the following terms:

- the business fills the employment needs of four full time employees and sixteen part timers. A refusal of residence would cause the loss of jobs with resultant hardship;

- the Australian public benefits from the sales and income tax paid through this business;

- the business contributes to several Melbourne wholesalers by the purchase of stock to an amount of $535,000 last trading year;

- other businesses such as printers ($45,000 pa) advertising, telephone ($8,000 pa), freight companies, vehicle repair, maintenance and running costs, motels and restaurants, all benefit from Steves (sic) Liquidation Sales; and

. local charities benefit from donations and sales at their own stall operated in conjunction with the visits of this business.

17 . . .

18 Neither Mr nor Mrs Caulton during their interview on 8 October 1986 admitted to any criminal convictions but in their application for resident status they lit minor offences (paragraph 14 above). However, an overseas police check (attachment I) has revealed the following:

. Mr Terence Myers

- numerous convictions for traffic offences;

- 1.12.61 larceny (2 charges) fined 25 pounds on each charge;

- 14.1.1969. Cheating at cards. Sentenced to nine months imprisonment. Suspended for 12 months; and

- 18.2.1982. Promoting Mock Auction (5 charges). Fined 100 pounds on each charge.

At present the records show he has been 'wanted' in England since 1983 for alleged fraud.

. Jennifer Ann Peacock:

- 18.2.82. Assisting in the conduct of a mock auction (3 charges) fined 50 pounds on each charge.

19 In their applications for visit visas (Forms M.48) applicants declare that:

. 'I have sufficient funds to support myself and all dependent members of my family during the period of the visit;

. I and my accompanying dependent family members will if granted visitor visas, travel to Australia on fully paid return tickets for travel to a destination beyond Australia, will produce these tickets on arrival in Australia and will return them while in Australia;

. I and my accompanying dependent family members WILL NOT SEEK AUTHORITY TO SETTLE IN AUSTRALIA AND WILL LEAVE AT OR BEFORE THE END OF THE AUTHORISED VISIT PERIOD;

. I and my accompanying dependent family members WILL NOT UNDERTAKE EMPLOYMENT OR ANY FORMAL STUDIES WHILE IN AUSTRALIA;

. I FURTHER DECLARE THAT ALL QUESTIONS HAVE BEEN ANSWERED AND THE PARTICULARS PROVIDED BY ME ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND ABILITY.'

B. EVIDENCE OR OTHER MATERIAL ON WHICH FINDINGS ARE BASED.

20 In making the above findings I had regard to the following material:

. copy of cables relating to refusal of visas August 1983 - Attachment A;

. copy of incoming passenger card dated 20 September 1983 in the name of Jennifer Russell - Attachment B;

. copy of incoming passenger card dated 20 September 1983 in the name of Amy Russel (sic) - Attachment C;

. copy of incoming passenger card dated 15 February 1984 in the name of Terence Russell - Attachment D;

. copy of interview report dated 8 October 1986 - Attachment E;

. submission received from solicitors Paul B. Connor, Blackman and Co dated 5 December 1986 - Attachment F;

. copy of cable from London High Commission with details of visitor visa application dated 2 December 1986 - Attachment G;

. copy of Form M48 'Application to visit Australia' - Attachment H;

. results of overseas police checks - Attachment I;

. policy on illegal migrants tabled in Parliament on 17 October 1985 - not attached.

C. ASSESSMENT

21 Mr and Mrs Caulton are prohibited non-citizens pursuant to sub-section 7(3) of the Migration Act 1958 in that their temporary entry permits have expired and no further entry permits have been issued to them. They have committed offences under the Migration Act in becoming prohibited non-citizens and have offended by working without the written permission of an authorised officer.

22 . . .

23 . . .

24 . . .

25 . . .

26 In assessing Mr and Mrs Caulton's claims to compassionate circumstances you are invited to consider that:

. they have by deception gained entry to Australia and considerable benefit as a result by virtue of the fact that they have been able to establish a business and seek residence on more favourable terms than had they applied overseas for migrant entry; and

. they acknowledged the conditions of their entry and have chosen to breach those undertakings.

Even if you accept that some economic disadvantage and employment displacement would be created by the winding up of Steve's Liquidation Sales it is submitted that such matters in themselves either as a general rule or in this particular case do not constitute strong or sufficiently compelling grounds to justify favourable consideration of the grant of permanent resident status. You may also consider it anomalous that the applicants rely on claims to support their application for residence which are generated by their employment when that very employment which is without the permission of an authorized officer is a prosecutable offence under the Act.

27 A consideration of any case for permanent residence in Australia must also include an examination of the personal character and behaviour of the applicants to assess their suitability to become members of the Australian community. There are numerous instances in their case which reflect unfavourably on their integrity. For example:

. they showed during their second visit to Australia that they were not prepared to honour the undertakings signed overseas not to engage in employment and to leave Australia before the expiry of their temporary entry permits;

. while here they adopted a false identity in obtaining employment and a false identity for use in the community at large;

. following their being refused a third visa for Australia and on their own admission, they assumed another identity and omitted answers to relevant questions on their application form with the express intention of gaining entry to Australia;

. their enquiries overseas regarding migration strongly suggest they were keen to gain residence in Australia and their subsequent actions show in retrospect that they had little intention of abiding by the actual conditions of their entry as employment was again undertaken and residence sought contrary to their statements at the time visas were sought;

. subsequently, another change of identity occurred;

. during their interview they also denied the existence of any criminal records and they failed to mention the son Nicholas, who was in Australia illegally. These omissions were repaired in the solicitor's submission and their application for residence status. Even so the admitted criminal record as stated by Mr Caulton is lacking in essential detail.

It is submitted that all these incidences of omission indicate this couple have a preparedness to break the law in order to achieve their own ends. In this regard you might be of the view that Mr and Mrs Caulton have shown scant regard for migration law and requirements, their actions in this regard do them little credit, and that they would be unsuitable members of the Australian community.

28 . . .

29 . . .

30 . . .

31 To balance against these matters, you may consider the following:

. Mr and Mrs Caulton took it upon themselves to gain visas to Australia by deception and to establish themselves within the community outside migration law and requirements;

. they have contravened conditions of their entry, committed offences under the Act and have now remained in Australia without authority for almost three years;

. their lack of success in gaining entry as migrants appears to have caused them to go to significant lengths to gain entry as visitors and it is clear with hindsight that their intentions as visitors were not bona fide;

. they do not fulfil any of the change of status

provisions referred to at section 6A of the Migration Act and as prohibited non-citizens without eligibility to remain, they clearly fall within that category of persons in the Minister's policy as those who, having broken Australia's laws, must expect to face the consequences of their own actions and the prospect of deportation.

32 A relevant factor is the existence of an Australian-born child (almost 2 years of age) and is one aspect you must consider. Deportation of the parents does not prejudice the child's citizenship and he retains the right to return to Australia at a later date. There is no evidence to suggest that the child would not accompany its parents should they be required to leave. In considering the circumstances of the child you may form the view that he is of a tender age and would not be likely to be separated from his parents, and so it would not be unreasonable to expect, in all circumstances, that there would be immediate repercussions of an intolerable nature upon the child if his parents were to leave Australia.

33 It is open to you, having regard to the matters above and taking into account the facts and circumstances in this case, to decide that the factors in favour of deportation outweigh those against and I recommend accordingly.

D. RECOMMENDATION

34 If you accept the findings on material questions of fact and the assessment as set out above, it is recommended that you:

(i) refuse the application for further temporary entry permits;

(ii) refuse the application for permanent residence;

(iii) refuse the option of voluntary departure; and

(iv) sign the attached orders for the deportation of Mr and Mrs Caulton."

1. Affidavits were filed on behalf of the applicants. There was no cross examination of the deponents. No evidence was called by the Minister.

2. The applicants attacked the Delegate's decisions on two bases. First it was contended that the Minute, when read as a whole, contains various statements which, though innocuous if read in isolation from each other, when read together, convey a false and misleading impression of the character of the applicants; especially as the overtones and innuendoes may suggest that they are disreputable people, unfit to remain in Australia and that the best course to take would be to deport them. Second, it was contended that the Minute contains certain serious statements about the character and reputation of the applicants which were damaging to the prospects of success of their applications for entry permits and permanent resident status. These statements were not brought to the applicants' attention and thus they were denied an opportunity to answer them. It is to these specific matters that I shall first turn.

3. The primary criticism of the applicants had its genesis in paragraph 18 of the Minute which outlined their criminal convictions. Although I have already set out the contents of paragraph 18 I shall do so again, notwithstanding repetition, to facilitate an understanding of the contention. Paragraph 18 of the Minute provides:
   
   

"18 Neither Mr nor Mrs Caulton during their interview on 8 October 1986 admitted to any criminal convictions but in their application for resident status they list minor offences (paragraph 14 above). However, an overseas police check (attachment I) has revealed the following:

. Mr Terence Myers

- numerous convictions for traffic offences;

- 1.12.61 larceny (2 charges) fined 25 pounds on each charge;

- 14.1.1969. Cheating at cards. Sentenced to nine months imprisonment. Suspended for 12 months; and

- 18.2.1982. Promoting Mock Auction (5 charges). Fined 100 pounds on each charge.

At present the records show he has been 'wanted' in England since 1983 for alleged fraud.

. Jennifer Ann Peacock:

- 18.2.82. Assisting in the conduct of a mock auction (3 charges) fined 50 pounds on each charge."

1. It will be remembered that in paragraph 14 of the Minute it is stated that the applications for resident status in Australia, lodged on 5 December 1986, mentioned that Mr Caulton had convictions in Australia including a $100 fine for working outside a hall without a Hawker's licence and in the United Kingdom including a fine of $500 for contravening mock auction regulations. Paragraph 14 also recorded that the application for resident status said that Mr Caulton had no outstanding charges against him in any other country. The same paragraph also stated that Mrs Caulton in her application for resident status had admitted to a fine of 50 pounds in the United Kingdom for assisting in the contravention of mock auction regulations.

2. It will also be remembered that in paragraph 12 of the Minute reference is made to the interview of 8 October 1986 at which Mr Caulton is said to have stated that he had no criminal record overseas or in Australia.

3. Attachment 'E' to the Minute is a copy of a report of an interview, dated 8 October 1986, with Mr and Mrs Caulton and a Mr Richard Featherston, an interviewing officer of the Department. On page five of that record of interview under a heading "PART E ADDITIONAL BACKGROUND" are paragraphs numbered three and four which read:
   
   "3 Criminal record overseas No
   

4 Criminal record in Australia No"

Mr Caulton signed that page. In Mr Caulton's affidavit of 16 April 1987 he swore in paragraphs 5, 6, 7 and 8 as follows:

"5. I refer to the attachment E page 5 part E

additional background questions 3 and 4. In relation to question 3 relating to criminal record overseas I do not precisely recollect the question asked of us by Mr Featherston. I do however recollect that in response to a question from him I referred to motoring offences and the mock auction offence. Mr Featherston asked me the penalties and I said about 500 pounds. He then said words to the effect that there was nothing serious and must have put 'no' down on the page later signed by myself. I did not refer to the matters listed in attachment 1 in 1961 and 1969 as they had happened such a long time ago and I had fulfilled the suspended sentence. I simply considered them as being of no relevance to my application and unimportant.

6. The 1961 convictions arose out of events a couple of years earlier. A person who had moved into my town and with whom I became acquainted asked me if I knew anyone to whom he could sell some electrical equipment and I introduced him to two people. I was charged a year or two later (long after this person had left the town) as a result of questioning of him about other matters. I believe the offences against me had something to do with larceny as a bailee for which I pleaded guilty and was fined 25 pounds on each charge. I did not have legal representation. The acquaintance and the persons to whom he sold the electrical equipment received gaol sentences. I received no benefit whatsoever out of the matter. I was only about 22 years of age at the time of the offences. The 1969 conviction of cheating at cards related to an accusation that I was getting extra cards in blackjack from a girlfriend. I maintain my innocence to this day in relation to that offence but was nevertheless found guilty. I fulfilled the suspended sentence given to me.

7. Approximately two years ago a room was booked at the San Remo Hotel for a sale. The room was too small and I obtained permission from the hotel management to sell in the car park of the hotel. At the end of the sale the police said I needed a hawker's licence which I did not believe I did. After consulting a solicitor and taking into account costs of defending the charge of selling without a hawker's licence, I sent a letter to the Court pleading guilty and explaining the circumstances. I was fined $100.00.

8. Since the 8th of October 1986 I have been convicted of selling goods from the Masonic Temple in Werribee contrary to a provision of the Town & Country Planning Act. I was fined $150.00 plus $850.00 costs. I had no idea there was any contravention of any act and have hired many Masonic Temples throughout Australia for sales. The conviction occurred on the 18th day of February 1987."

1. In his affidavit of 20 March 1987 Mr Caulton swore:
   
   

"15. In the findings on material questions of fact it is said that records show I have 'been 'wanted' in England since 1983 for alleged fraud'. I have sought advice from a solicitor in the United Kingdom as to this statement. I am advised by the solicitor Mr B.E. Taylor of Moody & Wolley, of 40 St. Mary's Gate, Derby, England and believe there is no warrant out for my arrest and that the situation is that a police inspector merely wants to discuss some betting transactions with me. No request for information or confirmation of the statement in the findings on material questions of fact has been sought from me in relation to this matter nor has any explanation been sought from me."

1. Attachment I to the submission to the Delegate is a document titled "RESULTS OF OVERSEAS POLICE CHECKS" and that document contains the following statements:
   
   

"Overseas Police checks confirm the following admitted offences committed by Mr S. Caulton.

18.2.82 Promoting Mock Auction (5 counts). Fined 100 pound each count.

but adds

1.12.61 Larceny (2 charges) Fined 25 pounds on each charge.

14.1.69 Cheating at cards. Sentenced to 9 months imprisonment. Suspended for 12 months.

He is 'wanted' in England since 1983 for alleged fraud.

The same checks confirm the admitted offences committed by Ms J. Caulton.

18.2.83 Assisting in the conduct of Mock Auction. Fined 50 pounds (3 charges)."

1. In his affidavit of 6 August 1987 Mr Caulton swore:
   
   

"4. Attachment I to the submission to the delegate and the contents thereof were not put to me or my wife and we were never given any opportunity to answer them. No request for confirmation or explanation thereof was ever sought from myself or my wife."

1. It was contended by counsel for the applicants that not only does paragraph 18 of the Minute contain a number of inaccurate statements, in particular, the statement that "at present the records show he has been 'wanted' in England since 1983 for alleged fraud" but also, whether accurate or not, the serious allegations were not brought to the attention of Mr Caulton and he did not have an opportunity to answer them.

2. It is not of course the function of this Court to substitute its discretion for that of the Delegate or to determine an application as if it were a hearing on the merits. It is the function of the Court in matters of this kind to determine whether a relevant error has been committed by the decision-maker. The courts do not approach this question with a fine eye for minutiae or trivia. It is where clear and significant error is established that intervention by the the Court may be called for: Tang v. Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177 per Pincus J. at 192.

3. Also in point is the following passage from the judgment of Fox J. in Sinnathamby v. Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506:
   
   

"Reliance was placed on the decision of the High Court in Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321 as authority for the proposition that the delegate of the respondent was under an obligation to put her his views before reaching a final decision.

The effect of Kioa is that while the Department is obliged to accord natural justice when acting under s. 18 of the Act, the extent of the requirement is conditioned by the particular facts in each case. There is, for example, no general requirement that an applicant be informed of the sources of all the information which the Department receives concerning his or her case, or the content of that information. As a general rule, when some consideration personal to the applicant is to be taken into account against him or her the rules of natural justice require that the applicant be given a chance to comment or contradict: see Kioa, per Mason J. at p. 348. The guideline is fairness; in general the party should have an opportunity of dealing in an appropriate way with matters with which he can reasonably be expected to be able to deal, and which might assist his or her case."

1. The statements made in paragraph 18 of the Minute about the criminal record of Mr Caulton are serious and they obviously would militate strongly against him in the mind of the decision-maker. Putting to one side any questions regarding the accuracy of the statements in that paragraph, it is not in dispute that Mr Caulton was not afforded an opportunity of answering the statements or making submissions with respect to them. A particularly serious allegation is the statement that the records show that Mr Caulton has been "wanted" in England since 1983 for alleged fraud. He has sworn that no request for information or confirmation of the statement or any explanation was sought from him.

2. In my opinion the contents of paragraph 18 should have been brought to Mr Caulton's attention before the Minute was prepared and submitted to the Delegate. He should have been given an opportunity to consider the allegations and deal with them. The statements made in paragraph 18 about Mr Caulton are not matters of trivia or minutiae. They are critical to his applications for entry permits and resident status. The failure to give Mr Caulton an opportunity to deal with those allegations constitutes a clear denial of natural justice.

3. Although the statements made in paragraph 18 with respect to Mrs Caulton are not inaccurate, the Minute relates, of course, to both Mr and Mrs Caulton. It is impossible in my opinion to sever the contents of the Minute, including paragraph 18, into two parts: one relating to Mr Caulton and the other to Mrs Caulton. The officer who signed the Minute made the submission with respect to both Mr and Mrs Caulton and they were considered together by the Delegate. The impression conveyed by paragraph 18 to the decision-maker about Mr Caulton must have had an adverse effect on the decision-maker's deliberations with respect to Mrs Caulton.

4. The impression conveyed by the Minute as a whole, in particular paragraph 18, is that Mr Caulton is a thoroughgoing scoundrel and that Mrs Caulton is not much better. Whether this is the fact or not is not, of course, for me to say but it is impermissible to sever the contents of paragraph 18, or for that matter any other part of the Minute, into statements about Mr Caulton on the one hand and those relating to Mrs Caulton on the other, as if the two are in some way distinct from each other, for the purposes of the decision-maker.

5. In view of these findings it is not necessary for me to consider the other grounds of attack on the decisions under review.

6. I would set aside the decisions under review and order that the respondent pay the costs of the applicants of the proceeding.