Chaudhary, A.K v Minister for Immigration, Local Government & Ethnic Affairs
[1993] FCA 633
•10 SEPTEMBER 1993
ASHOK KUMAR CHAUDHARY v. MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. G294 of 1992
FED No. 633
Number of pages - 12
Migration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BEAZLEY J
CATCHWORDS
Migration - application for permanent entry permit on occupational grounds and strong compassionate grounds: s.6A(1)(d) and (e) Migration Act 1958 - whether failure to consider application under paragraph (d) constitutes error of law - nature of discretion under s.6(2) - "national interest" - public health policy as relevant aspect of national interest - exercise of discretion under s.6(2) - whether discretion miscarried - whether strong compassionate grounds outweighed relevant national interest - duty of inquiry - whether decision-maker failed to make sufficient inquiry into cost of health care - whether decision manifestly unreasonable - whether failure to take into account relevant considerations.
Tang v. Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177
Akers v. Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363
Minister for Immigration, Local Government and Ethnic Affairs v. Kumar and Govind (unreported, Federal Court, 31 May 1990)
Surinakova v. Minister for Immigration (1991) 33 FCR 87
Ates v Minister of State for Immigration and Ethnic Affairs 67 FLR 449
Minister for Immigration and Ethnic Affairs v Maitan 78 ALR 419
Videto v. The Minister for Immigration and Ethnic Affairs 69 ALR 342
Prasad v. Minister for Immigration and Ethnic Affairs 6 FCR 155
J. Wattie Canneries Limited v. Hayes and Ors 74 ALR 202
Chaudhary and Anor. v. Minister for Immigration, Local Government and Ethnic Affairs 19 ALD 496
Administrative Decisions (Judicial Review) Act 1977
Migration Act 1958 ss.6A(1)(d), (e), s.6(2),
Disability Services Act 1986
HEARING
SYDNEY, 11 August 1993
#DATE 10:9:1993
Counsel for the Applicant: J.R. Young
Solicitors for the Applicant: Newman and Associates
Counsel for the Respondent: N.J. Williams
Solicitors for the Respondent: Australian Government Solicitor
ORDER
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
BEAZLEY J This is an application under the Administrative Decisions (Judicial Review) Act 1977 to review the decision of the respondent, made on 7 May 1992 by the Minister's delegate, accepting the recommendations of the Immigration Review Panel (IRP) that the applications for permanent residence lodged on 15 August 1988 and 10 May 1989 by the applicant, on behalf of himself, his wife and two children, be rejected pursuant to the general discretion provided for in s.6(2) of the Migration Act 1958 (the Act).
The applications for permanent resident status
2. On 15 August 1988, the applicant applied on behalf of himself and his family for the grant of permanent resident status based on "strong compassionate grounds" pursuant to s.6A(1)(e) of the Act. On 10 May 1989, the applicant lodged a further application for the grant of permanent resident status, this time on both occupational and strong compassionate grounds: (ss.6A(1)(d) and (e) of the Act). These applications were refused (the initial decision). The applicant brought proceedings in this court to have the initial decision reviewed and, on 21 December 1989, orders were made granting the application. One of the bases upon which the applicant was successful was the court's finding that the delegate's decision, that there were no strong compassionate grounds, was manifestly unreasonable. The respondent appealed to the Full Court of the Federal Court. However on appeal, consent orders were made referring the matter back to the respondent to be dealt with in accordance with law, on the basis that the applications be considered under the Act as in force on 14 November 1989. The present application for review arises out of the Minister's reconsideration of the applications pursuant to the consent orders made by the Full Court.
The Act
3. As the proper construction and application of ss.6(2) and 6A(1) of the Act (being the provisions in force as at 14 November 1989) are central to this application, it is convenient at this point to set out their terms:
"6(2) An officer may, in accordance with this section and at the request or with the consent of a non-citizen, grant to the non-citizen an entry permit".
6A(1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -
(a) ...
(d) he is the holder of a temporary entry permit which is in force, is authorized to work in Australia and is not a prescribed non-citizen; or
(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him".
Background facts
4. The applicant is married with two children, Eshna, born 15 September 1982 and Arishna, born 29 December 1983. All are citizens of Fiji, and entered Australia on 30 November 1987. At that time, the applicant was travelling on a business visa and when the family arrived in Australia, they were granted temporary entry permits, valid for a stay of two months. These TEPs were extended on two occasions up until 30 August 1988. On the last occasion that the TEPs were extended, approval was given for a change of visa category, from business to medical. The applicant and his family applied for further TEPs on 26 October 1989, but these were refused. As the family did not have current TEPs from that time, they became prohibited non-citizens: s.7(3).
The applicant is a qualified and experienced high school industrial arts teacher. The business visa on which the family travelled to Australia was granted to permit the applicant to attend a conference here. The change of visa category from business to medical occurred because of the circumstances of the applicant's daughter, Eshna. Eshna suffers from cerebral palsy with spastic quadriplegia and epilepsy. There is no dispute that she is severely intellectually and physically handicapped. There is also no dispute that the medical and other support facilities available in Australia are of a much higher standard than is available in Fiji. Eshna currently attends the Cairnsfoot School for severely handicapped children where, if she remained in Australia, she would stay until the age of 18 years. She is taught "living skills" and also receives occupational and speech therapy at the school. The annual cost to parents of placement of a child at Cairnsfoot is $72 per year, although the overall cost of a placement at the school was described as "extensive" and is borne by the State.
Eshna's progress in the first six months at Cairnsfoot was described as "amazing". She then settled down to slow improvement and it is not expected that she will have any further rapid progress. She has been fitted with a caliper and her walking has improved immeasurably. Eshna has minimal expressive language but has some communication skills. Her speech is described as "babble" with gesturing, although it was noted that her simple receptive language is improving. At the time that the matter was under consideration by the Minister's delegate, the speech pathologist at Cairnsfoot was interested in starting a symbol course to assist with her communication skills. She is not toilet trained and it is not expected that she ever will be, although she may be able to be adequately toilet timed. However, this would take some years of intensive training. It was also anticipated that she would eventually become independent in feeding. However, she will never have independent living skills and will always need supervision. Her epilepsy is controlled by Tegretol 200mgms daily. Her once aggressive turns are now minimal and she is reported to relate well to her sister and to be mostly happy, although she becomes bored in school holidays.
During the course of the reconsideration of the applications, Mr. Griffiths, the departmental officer dealing with the matter, who also made the initial decision, had before him substantial material relating to Eshna's medical condition, her current circumstances and her prognosis, both here and should she be returned to Fiji. He also made inquiries of the Departments of Social Security and Health, Housing and Community Services concerning the public cost implications of permanent residence for a person with Eshna's disabilities. He ascertained that Eshna would qualify for a disability support pension after she had been a permanent Australian resident for 10 years, this pension equating to the basic rate of unemployment benefits. He was also advised that whilst beneficiaries were under-aged, a youth disability supplement may make up the gap between the basic pension and the full adult rate depending upon individual circumstances. However, this supplement would not apply to Eshna, as, having regard to the 10 year residency requirement, she would not be entitled to a disability support pension until sometime after she turned 18, depending upon if and when she was granted resident status. In addition to the full adult rate of pension, the information obtained indicated that rent assistance may be payable if a beneficiary has no care giver or if the care giver is in straitened circumstances. If a beneficiary becomes institutionalised, the institution is permitted to take 85% of the pension for board and accommodation.
The Department of Health, Housing and Community Services provided information to Mr. Griffiths in relation to the Disability Services Program established under the Disability Services Act 1986. Under that program, the non-government sector provides services to beneficiaries by way of job placement and sheltered workshop activities as well as personal care, either in the home or in alternative accommodation. Funding of about $300 million per annum is provided by the Commonwealth to the Program. Mr. Griffiths was advised that there were some 16,000 beneficiaries of the accommodation support services, who were each subsidised to an amount of between $9,000 and $37,000 per annum, depending upon their circumstances, degree of involvement and needs. It was indicated that there was a potentially unmet demand of 93,000 people eligible for services provided under the Disability Services Act.
Information was also obtained by Mr. Griffiths as to the services available to Eshna in Fiji. It was ascertained that Eshna would need to be toilet trained but not necessarily mobile to attend the Suva Crippled Childrens' School. At this school education and physiotherapy is provided. However, neither occupational therapy nor regular speech therapy is provided, although teachers provided some speech programs. Tegretol is available in Fiji and a patient's Tegretol level is able to be monitored, although this has to be done by sending blood samples to Wellington, New Zealand, for testing.
Mr. Griffiths concluded on the material before him "that strong compassionate grounds existed of sufficient strength that the applicant could meet the 'strong compassionate' requirement of 6A(1)(e) ..." Having found this criterion to have been satisfied, he stated it was unnecessary to consider that part of the application for resident status made under s.6A(1)(d). He then considered the discretion invested in him under s.6(2) and found that "Australia's interests argue against the granting of an entry permit".
The applicant sought an internal review of this decision by the IRP. In the departmental submission presented to the IRP, Mr. Griffiths' findings and reasons as to the existence of strong compassionate grounds were accepted. The focus of the submission was thus on the exercise of discretion under s.6(2) of the Act. The IRP adopted the reasoning of the departmental submission and recommended that the applications be rejected. The Minister's delegate, Ms. O'Connor, accepted the IRP recommendation. For the purposes of this application for review, it is thus necessary to consider Mr. Griffiths' report to the extent that it dealt with s.6A(1)(d) and (e), and the departmental submission in so far as it dealt with the exercise of discretion under s.6(2). As the delegate accepted the considerations and reasons set out in the departmental submission, I shall refer to it as the delegate's report and its contents as her considerations and reasons.
The applicant submits that the delegate's decision should be quashed, as she failed to consider the application under s.6A(1)(d) of the Act; that the exercise of the discretion under s.6(2) fundamentally miscarried; that it was not sufficient for the Department to make superficial inquiries in relation to the costing of treatment and care for the child when that factor was central to the discretionary considerations under s.6(2); that there was a failure to take into account relevant considerations; and that the decision was unreasonable.
Section 6A(1)(d)
13. When reconsidering the applications for resident status, Mr. Griffiths dealt first with that part of the application based on strong compassionate grounds under s.6A(1)(e). Having found that the requirement under this paragraph had been satisfied, he stated that it was not necessary to consider the application under s.6A(1)(d). This conclusion was apparently adopted by the delegate, as, having accepted Mr. Griffiths' finding in relation to the existence of strong compassionate grounds, she then considered the discretionary aspects under s.6(2), without considering the s.6A(1)(d) ground.
Counsel for the applicant contended that the applicant was entitled to have each part of his application dealt with, and the failure to deal with the application under paragraph (d) involved an error of law. Counsel for the respondent submitted that once any one of the preconditions in s.6A(1) had been satisfied, it was not necessary to consider whether any of the other paragraphs applied.
The Full Court of this court dealt with this issue in Tang and Anor. v. Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177, where the appellant had made application for an entry permit under paragraphs (b) and (e) of s.6A(1). The decision-maker found that paragraph (b) had been satisfied, but, without dealing separately with the application under paragraph (e), exercised the discretion against the appellant. Davies J, with whom Evatt J agreed, said at p 182:
"Having satisfied the criteria of para (b), he was entitled to have his application for permanent residence determined on its merits whether or not such grounds (under paragraph (e)) existed".
Pincus J said at p 186-187:
"It was enough that the appellant qualify for grant of an entry permit under para (b), as he did; there was no need for him to qualify twice".
In Akers v. Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 Lee J, in applying Tang, expressed the rationale for this approach in these terms at p 369:
"The satisfaction of the precondition in one paragraph of s.6A triggers the exercise of the broad discretion of the authorised officer to grant or refuse to grant an entry permit. Once that discretion is available, the authorised officer is then obliged to take into account all relevant circumstances, whether they are related to the original qualifying precondition or not, when deciding whether or not to grant an entry permit: See also Meggs v. Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Jackson J, 18 September 1986)".
Thus, in this case, once it had been determined that the applicant had satisfied s.6A(1)(e), it was unnecessary for the delegate to consider the alternate ground under s.6A(1)(d).
Accordingly, I reject the applicant's first submission. That leaves for determination the challenge to the exercise of discretion. As Mr. Griffiths' findings in relation to s.6A(1)(e) were taken into account in the exercise of discretion under s.6(2) it is convenient to first refer to those findings.
Section 6A(1)(e)
20. Mr. Griffiths considered Eshna's medical condition, her past and present medical treatment, milestones and other progress in her rehabilitation while in Australia, whether a new drug and therapy regime and the equipment associated with it might be available to her and ensure her continued progress in Fiji, the situation of her parents in Australia and their potential situation should they return to Fiji. The material contained in the medical reports which had been provided in support of the application was accepted as both accurate and credible and as reflecting her physical and intellectual condition. It was accepted that Eshna was severely developmentally and intellectually disabled, and that her needs for physiotherapy, occupational and speech therapy were profound and on-going. He concluded that because of the availability of Tegretol in Fiji and the availability of blood testing, albeit in Wellington, Eshna's seizures could be appropriately controlled in Fiji with the use of this drug.
Mr Griffiths also took into account the extent of treatment and care available in Fiji. He accepted that as she was not yet toilet trained, Eshna would not be entitled to full time enrolment at the Suva Crippled Childrens' School although she might be entitled to weekly attendance there, as she was before she left Fiji. He also accepted that she required much more intensive therapy and education than a weekly visit could provide and that although her parents had some experience in providing basic treatment relating to toilet training, practice with a walking frame and the like, "their expertise is not on a par with the professional assistance available in New South Wales and would only compensate for the absence of such professional help in a relatively small way". He also took into account the fact that Eshna had made steady progress as a result of her treatment in Australia and he set this out in detail.
Mr. Griffiths next considered whether Eshna's progress in Australia would be maintained and consolidated were she to return to Fiji. He concluded that there was at least a possibility that with the continuation of the drug Tegretol to control Eshna's epilepsy, she could "be expected to become eligible to seek full time admittance to the Fijian Crippled Childrens' School sometime in the future when she is toilet trained with the help of continued training by her parents". He also took into account the fact that it would be possible for the family to travel to Australia from time to time on medical visas to enable Eshna to receive short-term treatment in Australia. Mr. Griffiths accepted that the standard of care, therapy, treatment and education in Fiji was appreciably lower than that available in Australia and that the human cost to the applicant in taking on the almost full time care and education of Eshna and the financial cost in seeking occasional follow up treatment outside Fiji "would be very burdensome". He stated that even though he was of the view that "the consequences to Eshna would not be extremely prejudicial" if Mr. Chaudhary and his family were not allowed to stay in Australia permanently, overall, strong compassionate grounds existed such that s.6A(1)(e) had been satisfied.
Exercise of discretion under s.6(2)
23. The nature of the discretion under s.6(2) was discussed by Hill J (with whom Davies and Foster JJ agreed on this point) in Minister for Immigration, Local Government and Ethnic Affairs v. Kumar and Govind (unreported, Federal Court, No. 227 of 90, 31 May 1990) where his Honour said at p 20:
"Section 6(2) is a general provision conferring a discretion upon an officer to grant to a non-citizen an entry permit. The Act does not seek to limit in any way the matters to be considered by the officer in exercising that discretion and the discretion conferred upon the officer is untrammelled save that it must be exercised having regard to the policy and purpose of the Act ..."
See also Surinakova v. Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 99.
Counsel for the applicant accepted, as was submitted by the respondent, that the discretion under s.6(2) was to be exercised in the "best interests of Australia": Ates v Minister of State for Immigration and Ethnic Affairs 67 FLR 449 at 455. In Minister for Immigration and Ethnic Affairs v Maitan 78 ALR 419 Beaumont and Gummow JJ stated at 428:
"... the discretion is to be exercised in the light of what, in the judgment of the Minister, is in the best interests of Australia. In deciding what is in the public interest, the Minister will need to balance the competing claims of possible advantage on the one hand and of possible detriment on the other so far as the national interest is concerned: see Salemi v. McKellar (No. 2) (1977) 137 CLR 396 at 402; 14 ALR 1; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 655; R. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd. (1979) 144 CLR 45; 27 ALR 321; Minister for Immigration and Ethnic Affairs v. Conyngham (1986) 68 ALR 441 at 450".
See also Minister for Aboriginal Affairs and Anor v Peko-Wallsend Ltd. and Ors (1985-1986) 162 CLR 24; Puhlhofer and Anor v Hillingdon London Borough Council (1986) AC 484 at 518.
The delegate stated, and counsel for the applicant accepted, that it was permissible to "pay regard to policy issues when considering the exercise of discretion under s.6(2)": See Kumar and Govind; Surinakova. The delegate identified the relevant policy in this case as "the avoidance of an undue burden on Australian public health and other resources which might be created by people with serious disabilities which might require ongoing care at public expense". She also accepted that "compassionate grounds" should be taken into account and weighed with other factors in the exercise of discretion. The factors stated as being relevant to this issue of the cost to the public health system were: the applicant's past history of paying for aspects of his daughter's treatment in Australia; the charges which were being borne by the public health and welfare system in Australia and which were likely to be a public expense in the future; medical evidence as to Eshna's condition and her future prospects and the policy implications of a visitor being granted an entry permit in those circumstances.
The delegate found that it was not possible to calculate the actual cost to the Australian taxpayer of Eshna's care and upkeep, should she remain in this country, but it was considered that such costs would be significant, having regard to her degree of disability. Counsel for the applicant did not cavil with this as a general proposition, but submitted that the decision-maker was required to consider the matter with greater particularity. I shall deal with this submission shortly. The delegate also considered that the taxation and Medicare levy which would be paid by the other members of the family "would be unlikely to meet the real costs of Eshna's care and treatment".
The benefits to which Eshna was and was likely to become entitled were then identified. The delegate first referred to the invalid/disabled pension to which she would be entitled 10 years after she had been granted resident status. The delegate noted that under current Social Security legislation, the amount of that pension whilst Eshna was under 21 years, would equate to the amount paid by way of unemployment benefits together with a youth disability allowance. Once she turned 21, she would be entitled to the full adult rate of pension, which at the time of the delegate's consideration of the matter, in April/May 1992, was slightly less than $8,000, plus rental assistance.
The delegate next referred to the Disability Services Program and in particular to the cost of accommodation support under that program. There was no express finding that Eshna would become a beneficiary under the scheme. However, the delegate found:
"Given the social security benefits, rent assistance, special schooling and training facilities and medicare, all of which would be available to Eshna, it is reasonable to believe that she would represent a charge on the community significantly greater than the Medicare levy and taxation contribution paid by her parents. This is especially so given the degree of her disability and the uncertainty of her parents' ability to support her at home for the entirety of her lifetime".
The delegate concluded therefore, that there was a strong national interest in avoiding adding to the very great demand for services such as were available to Eshna in Australia by waiving a requirement designed for that specific purpose. She stated that the health policy guidelines had been designed with the Australian community's interests in mind and those interests were strongly in favour of the family's return to Fiji.
Counsel for the applicant submitted that this exercise of discretion miscarried, as the delegate failed to give the consideration which was required by the Act to be given to the compassionate circumstances of the applicant's daughter. It was submitted that as strong compassionate grounds had been found to exist under s.6A(1)(e), those strong compassionate grounds must be considered under s.6(2). This submission was put in two ways. First it was said that the delegate had not taken into account that the applicant had already established that there were "strong compassionate" factors involved in the application, but rather had treated the applicant's circumstances as only giving rise to "compassionate" circumstances. In other words, she had set the consideration of this issue at "too low" a standard. Secondly, it was submitted that once an applicant had established "strong compassionate" grounds for the purpose of s.6A(1)(e), it would take strong countervailing circumstances for the Minister to decline to exercise his discretion in favour of that applicant. In this regard it was submitted that the question of cost would have to outweigh the strong compassionate grounds, and that required the costing to be done with some precision and with reference to the circumstances of the case at hand. It was not sufficient, it was argued, to consider the matter in a general way only, as it was said the delegate had done.
I do not agree that the delegate failed to take into account the "strong compassionate" factors which applied to the applicant. When using the word "compassionate" in the report, the delegate was referring to the circumstances which had been accepted as constituting strong compassionate grounds under s.6A(1)(e). In any event, in the exercise of discretion, the delegate was entitled to give such weight to these matters as was considered appropriate.
Before dealing with the second limb of this submission, which involves a consideration of the costing aspect of the health care and other benefits which might be available to Eshna, it is convenient to deal with the submission that the department failed to make sufficient inquiries as to the cost of these health services and benefits.
Failure to make sufficient inquiry
33. It was submitted that as the question of costing of the relevant health care was a factor which the respondent wanted to have taken into account, it had the onus to obtain material which would enable it to be adequately informed, such that the discretion under the section could be properly exercised. It was submitted that there was no costing of the medical treatment which Eshna would require, and that was a relevant consideration. Further, it was said that the costing of other care and benefits available to Eshna was "almost insulting in its generality and its superficiality".
Counsel for the respondent did not concede that the respondent had any duty of inquiry, but submitted that even if it could be said that there was such a duty, it was of a limited nature, and the departmental officers had done more than was necessary to satisfy that duty.
The duty of an administrative decision-maker to make inquiries has been considered on a number of occasions by this court. In Videto and Anor. v. The Minister for Immigration and Ethnic Affairs 69 ALR 342 Toohey J at 353 said:
"As a broad proposition, I do not think that the Act imposes an obligation on a decision-maker to initiate inquiries ... much will depend upon the nature of the material before the decision-maker ...".
See also Turner v. Minister for Immigration and Ethnic Affairs 35 ALR 388 at 392-3 per Toohey J; Kioa v. Minister for Immigration and Ethnic Affairs 53 ALR 658 (Keely J at p 670); (Singh (Heer) v. Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4; Waniewska v. Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284).
In Prasad v. Minister for Immigration and Ethnic Affairs 6 FCR 155 the obligation on the decision-maker to inquire was described by Wilcox J at 169-170 in these terms:
"The circumstances under which a decision
will be invalid for failure to inquire
are, I think, strictly limited. It is no
part of the duty of the decision-maker to
make the applicant's case for him. It is
not enough that the court find that the
sounder course would have been to make
inquiries. But, in a case where it is
obvious that material is readily available
which is centrally relevant to the
decision to be made, it seems to me that
to proceed to a decision without making
any attempt to obtain that information may
properly be described as an exercise of
the decision-making power in a manner so
unreasonable that no reasonable person
would have so exercised it. It would
follow that the court, on judicial review,
should receive evidence as to the
existence and nature of that information".
This passage was cited with approval by the Full Court in J. Wattie Canneries Limited v. Hayes and Ors. 74 ALR 202 at 217.
In this case the delegate was bound to take into account the "national interest" (Ates; Maitan). The delegate determined that the relevant aspect of the national interest was the cost to the community of the provision of health care and other services and benefits to Eshna. It seems to me, that in circumstances where the delegate determined that the relevant aspect of the national interest was the cost to the public health system, as she was entitled to do, and in circumstances where the applicant could not reasonably be expected to provide any information on that matter, except to the extent of the individual costs incurred and benefits received by Eshna, the Department was required to obtain the material upon which its own policy consideration was based. It is not possible to lay down any general proposition as to what is required to satisfy such an obligation. Each case will depend upon its own circumstances. It may be, for example, that in a given case, the delegate will already have sufficient knowledge (including the knowledge of the department generally) of the matter which is central to the consideration of the "national interest", so that additional inquiries are not necessary. At the other extreme, if the delegate has no material, including within the department's own store of knowledge, experience and expertise, upon which to base the considerations of the relevant aspect of the national interest, there would be an obligation to make inquiries. The extent of the inquiries would vary depending upon the circumstances involved.
In the present case, Mr. Griffiths ascertained the extent of Eshna's present care and treatment. He made inquiries as to the cost of that care and treatment, including medical treatment. Whilst Mr. Griffiths did not ascertain the precise cost of a placement at Cairnsfoot, other than the yearly cost to parents, he obtained details of the type of schooling and treatment provided, including the teacher-pupil ratio, and was told the cost was "extensive". In addition, he obtained information as to the types and rates of pensions and other social security assistance available, as well as the programs available under the Disability Services Program, the total public funding of that program, as well as the ambit costs of the accommodation assistance provided thereunder. In circumstances where it would not be known what assistance Eshna would be entitled to under that Program until she made application, and where the requirements for such assistance might vary from time to time, I am of the opinion that it was sufficient and reasonable for the delegate to have regard to the range of costs involved. In that regard, Mr. Griffiths only had available to him costing information in relation to accommodation assistance. However, the other benefits available under the Program were considered and these benefits clearly involved a cost to the Australian public. In my opinion, these constituted sufficient inquiries to enable an adequate and proper consideration to be given to the public health cost aspect of the national interest.
Costing of Medical Care and Benefits
40. It is thus necessary to return to the second limb of the submission that the exercise of the discretion miscarried. It will be recalled that this was that once strong compassionate grounds had been established under s.6A(1)(e) it would take strong countervailing circumstances for the Minister to decline to exercise his discretion in favour of the applicant, and that where the opposing consideration involved a matter of cost to the public, the costing would have to be done with some precision to enable this to be done. As I have accepted that adequate inquiries were made, this submission amounts to an argument that the delegate is, in effect, required as a matter of law in certain circumstances to give greater weight to one aspect of a discretionary consideration than to another. Such submission is not sustainable. The delegate is entitled to give such weight to the relevant factors taken into account as is considered appropriate. In this case, notwithstanding the existence of compassionate factors, the delegate decided that the "interests of the Australian community outweigh all of the other factors". In coming to this conclusion, the delegate gave precedence to the "health policy guidelines". However, as was said by Hill J in Surinakova (p 98), a decision is not challengeable merely because it was made in accordance with policy. In this case it was not suggested that the policy was followed slavishly although that may be implicit in the submissions which were made on behalf of the applicant. However, should that be the case, such a submission is not made out. The delegate determined, notwithstanding the existence of compassionate grounds, that the health policy factors outweighed those grounds. That decision was one which was open to the delegate to make, notwithstanding its harshness, given the circumstances of the applicant and his family, and in particular of Eshna. It follows from what I have said that I also reject the submission that the decision was manifestly unreasonable.
Failure to take into account relevant considerations
41. It was submitted that the delegate failed to take into account the likelihood of Eshna falling into the target group of persons to whom the Disability Service Program applied. In looking at this matter, it was necessary, according to the submission, to also take into account the age, occupation and possible health of the major breadwinner and the position of Mrs. Chaudhary. I do not consider there is any substance in this submission.
The applicant's date of birth is stated in the first paragraph of the delegate's report. There is no reference to his wife's age, but as the relevant departmental file was before the delegate, it is reasonable to infer that her age was known. The applicant's occupation was known and it must be remembered that the delegate also had before her an application under s.6A(1)(d). Neither Mr. Griffiths nor the delegate made express reference to the health of the applicant in their reports. However, no adverse inference was drawn against the applicant in this regard and both reports appear to be predicated upon the applicant having normal health. Counsel for the applicant did not submit that there was any particular health issue which was relevant and not taken into account. The submission is only as to the applicant's possible health, whatever that may mean. In my opinion, if there was any relevant matter of this nature which should have been taken into account, it was incumbent upon the applicant to raise it: (See Prasad at p 170). In any event, as I have said, the inference which was drawn by the delegate was of normal health. Similarly no adverse inference was drawn as to Mrs. Chaudhary's health; consideration was given to the possibility of her working, as the "future taxation contributions of the applicant, his wife and, in due course, his younger daughter" were taken into account. In addition, other family assistance which might be available to the applicant and his wife was taken into account.
There is also no substance in the more general submission, that the delegate failed to take into account the likelihood of Eshna falling into the target group to whom the Program applied. The benefits available under the Program to a person with Eshna's disabilities were considered. Given that Eshna was not yet eligible for the services provided under the Program, the approach of the delegate relevantly dealt with this issue and was reasonable.
Next, it was submitted that the delegate failed to take into account the past and present cost to the community of Eshna's care and treatment. However, this matter was referred to by both the delegate and Mr. Griffiths. Some costs were not quantified. However, as the delegate stated, it was "difficult to assess" the specific costs that Eshna's stay in Australia has presented to the Australian taxpayer. The delegate had regard to the range of services and benefits which were utilised and could be utilised by Eshna. Although counsel for the applicant eschewed any reliance upon a contention that an actuarial assessment was required, it is difficult to know with what greater precision the decision-maker could have dealt with the matter, given that I have found that the inquiries made were sufficient. In my opinion, the approach of the delegate was reasonable and did not involve any error of law. My finding in this regard also deals with the submission that there was no costing of the medical treatment which Eshna would require and the balance of the costing was "almost insulting in its generality and its superficiality".
It was next submitted that when considering the exercise of the discretion, the delegate failed to take into account the following matters: the life expectancy of the child Eshna, the likelihood of the father's undertaking that he would be responsible for Eshna's medical expenses being honoured, and whether there were other persons who could provide assistance. It is true that there was no mention in any of the information obtained by Mr. Griffiths, or in his report, of Eshna's life expectancy, and it was accepted by both counsel that that was also the case in respect of the other material before him. Nor was there any reference to life expectancy in the delegate's report. However, this matter was the subject of evidence during the course of the review of the initial decision, a substantial passage of which is set out in the reported reasons for judgment of the primary judge: (Chaudhary and Anor. v. Minister for Immigration, Local Government and Ethnic Affairs 19 ALD 496 at 505). That evidence was, that should Eshna remain in Australia and have the level of care and treatment which is available, she could expect to live till 30 to 40 years of age. However, her life expectancy would be considerably reduced if she was not properly managed. As I have said, Mr. Griffiths was the officer whose decision was challenged in the first hearing in this court. His report indicates that at the time of his reconsideration of the applications for permanent resident status, he had regard to the departmental file, and in particular, the application and affidavits filed in the Federal Court proceedings. Admittedly, there is no reference to the judgment being on the file. However, the inquiries made by Mr. Griffiths are all predicated on the applicant's daughter utilising services and benefits in the future, should she be allowed to remain in Australia.
Similarly, the whole thrust of the delegate's report was that Eshna presented and would present in the future a cost to the Australian community by her utilisation of the resources and benefits which were available to her here. That consideration only makes sense if the delegate took into account or inferred, that Eshna's life expectancy was such that she would live for a sufficient time to use such resources.
It was also submitted that the delegate, in considering only that the undertaking given by the applicant to pay Eshna's medical expenses was not legally enforceable, failed to consider whether it was likely to be honoured. It was submitted that the delegate, in this regard, should also have considered the age and health of the parents, and the future earning capacity of both parents. In addition, it was submitted that the delegate should have considered whether there were other persons who could provide assistance, should it become impossible for the undertaking to be honoured by the applicant.
I have already referred to the various aspects of these matters which were considered by the delegate and it follows that this submission is not made out.
In her consideration of the undertaking, the delegate noted that it was an undertaking to pay for all of Eshna's medical costs. She pointed out, however, that medical costs were only one aspect of the cost of Eshna's care, and the material before the delegate revealed that overall that was a small cost, and that in any event, the undertaking was not legally enforceable. I do not consider that any error of law is disclosed in this regard. The undertaking was taken into account as were other considerations which might affect it.
It follows from what I have said that no error of law is revealed in the decision rejecting the applications for permanent resident status. Accordingly I dismiss the application.