Conyngham, P. v Minister for Immigration & Ethnic Affairs

Re: PETER CONYNGHAM; SOUTH PACIFIC ENTERTAINMENT CORPORATION PTY LIMITED;
RAYMOND MOHAMED MANSON; MONROE EMANUEL POWELL; SHERMAN AVERY RAY; MARCIA
RAQUEL ROBINSON; EUGENE WILLIAMS; JOHN CLAY DAVIS; ALBERT JOSEPH STATTI; JUAN
LOUISE BENNETT and SAMUEL BUCK RAM
And: MINISTER FOR IMMIGRATION and ETHNIC AFFAIRS
No. NSW G273 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.

CATCHWORDS

Administrative Law - Immigration - Application for approval of sponsorship of entertainers - Consideration of application by National Disputes Committee - Whether application conformed with policy statement issued by Minister - Duty to comply with rules of natural justice - Whether Minister failed to take account of relevant circumstances - Whether decision invalid for unreasonableness - Power of Court to direct Minister to approve application.

Administrative Decisions (Judicial Review) Act 1977 ss.5, 16 Migration Act 1958 s.6

Kioa v West (1985) 60 ALJR 113, Peko Wallsend Limited v Minister for Aboriginal Affairs (1985) 59 ALR 51, Daganayasi v Minister of Immigration (1980) 2 NZLR 130, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, Wheeler v Leicester City Council (1985) 1 AC 1054, Re W (an Infant) (1971) AC 682, Bromley London Borough City Council v Greater London Council (1983) 1 AC 768, Willara Pty Limited v McVeigh (1984) 54 ALR 65, Water Conservation and Irrigation Commission v Browning (1947) 74 CLR 492, The Queen v Australian Broadcasting Tribunal; ex parte 2HD Pty Limited (1979) 144 CLR 45, The King v Port of London Authority; ex parte Kynoch Ltd (1919) 1 KB 176, British Oxygen Co Ltd v Board of Trade (1971) AC 610, Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, Legal Services Commission v Stephens (1981) 2 NSWLR 697, Rex v Torquay Licensing Justices; ex parte Brockman (1951) 2 KB 784, Humby v Woollahra Municipal Council (1974) 10 LGRA 56, Council of Civil Service Unions v Minister for the Civil Service (1985) 1 AC 374, Hamblin v Duffy (1981) 34 ALR 333, Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388, Pearce v Button (7 March 1986, not yet reported), Sordini v Wilcox (1983) 70 FLR 326 referred to.

HEARING

SYDNEY

#DATE 17:7:1986

Counsel for the Applicants: Mr C J Stevens

Solicitors for the Applicants: Morgan Meyer Barron Potts

Counsel for the Respondent: Mrs P Fleming QC with Mr R B Wilson

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The application lodged by the first applicant in respect of the entry into Australia of the third to eleventh applicants inclusive was within the policy guidelines issued by the respondent for the approval of sponsorship relating to grant of temporary entry permits.

The decision of the respondent to refuse the application of the first applicant for approval of a sponsorship by the second applicant of the visit to Australia of the third to eleventh applicants inclusive, being an approval for the purposes of the subsequent issue to the said third to eleventh applicants of temporary entry permits under s.6 of the Migration Act 1958 be set aside.

The respondent issue or cause to be issued within twenty-four (24) hours to the first applicant an approval of the application made by him on 29 May 1986 in respect of the sponsorship by the second applicant of the visit to Australia of the third to eleventh applicants inclusive, being an approval for the purposes of the subsequent issue of temporary entry permits under s.6 of the Migration Act, such approval being upon such terms and conditions as will permit the said third to eleventh applicants to fulfil the engagements itemised in the itinerary which is part of exhibit C herein.

The respondent pay to the applicants their costs of the Application.

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

JUDGE1

This Application, made under the Administrative Decisions (Judicial Review) Act 1977, concerns the entry into Australia of a group of American entertainers known as "The Platters". The members of that group are the third to eleventh applicants herein. The decision under challenge is a decision preliminary to the determination of applications by those applicants for the issue to them of temporary entry permits under s.6 of the Migration Act 1958. That section empowers the Minister for Immigration and Ethnic Affairs to issue temporary entry permits to persons wishing to visit Australia; but the Act does not specify any criteria to be applied in considering any particular case. However, the Minister has adopted a statement of policy and procedures in relation to the temporary entry into Australia of entertainers and associated personnel. That document contains the following statement of policy:

"The policy of the Government in relation to the temporary entry of entertainers, musicians, actors and other professional workers in the entertainment industry takes into account the need reasonably to safeguard the employment opportunities of Australians in the industry whilst facilitating the injection of a diversity of talent, new ideas and variety from overseas.

The temporary entry into Australia of personnel for the entertainment industry may be approved where:

. the entertainers/professionals concerned possess a level of talent of such merit as to lead to the continuing cultural enrichment of the Australian community or where the sponsor requires a particular artist/professional for example for reasons of racial or national authenticity or because of a particular talent or ability;

. entry is supported by sponsorship from an enterprise or person in Australia of good reputation and standing, with adequate financial resources and properly licensed if required by any Commonwealth or State legislation;

. full responsibility is undertaken by sponsors in respect of the nominee(s) for all obligations relating to performances, maintenance, payment of salaries and any other conditions referred to in the appropriate sponsorship form;

. the sponsor provides in advance full details on conditions of employment and engagements, ensures that the nominee(s) brought to Australia adhere to the specific purpose of the visit and will not undertake other engagements unless given specific approval by the Department of Immigration and Ethnic Affairs to do so, and undertakes to ensure departure from Australia on completion or termination of the nomiee's (sic) approved itinerary;

. there is no reason for objection to the application on employment, industrial relations, or other grounds including the ability of nominee(s) to meet the normal health and character requirements of the Australian Government for entry;

. sponsors undertake to comply with the standards for wages and working conditions provided in relevant Australian awards and industrial legislation;

. industrial disputes are not likely to arise because of well-founded objections by relevant unions."

The policy goes on to provide a procedure to be followed by entrepreneurs or agencies wishing to bring artists to Australia. This procedure requires the entrepreneur or agency to make application to the Department of Immigration and Ethnic Affairs for approval of the sponsorship of a particular artist or artists, the application being supported by full details of the proposed engagements. Provision is made for reference of each application to the relevant local union or unions for an indication to be given, within ten working days, of any objection. If no objection is received within that time, according to para.C(5) of the policy, "the Department will assume that the union has no objection to the sponsorship and it will be approved" subject to appropriate conditions. Where an objection is made, reasons are to be stated and the matter is to be brought to the attention of the Minister for his decision. The policy makes provision, "where the issue is not clearcut", for the Minister or his delegate to refer the matter to a committee, referred to in the policy as "the National Committee" but now known as the "National Disputes Committee", for investigation. The Committee is to consist of a senior officer of the Department, a person to be nominated by representatives of sponsors and a person to be nominated by representatives of what are said to be "the three unions most directly involved, namely, Actors Equity of Australia, the Musicians' Union of Australia and the Australian Theatrical and Amusement Employees' Association". The Committee is to "deliberate with a minimum of formality" and to hear the sponsor and the representative of the union or unions concerned. The document sets out the procedures then to be followed:

"C(12) Where, following a meeting of the Committee, the respective parties reach agreement, Departmental action (ie. to approve or not approve the sponsorship) will proceed.

(13) Where agreement between the two parties to the dispute is not reached the Committee will make a recommendation to the Minister for Immigration and Ethnic Affairs ... or his delegate at Central Office. A decision will then be taken.

(14) Where a sponsorship is approved the Department will notify the overseas visa issue office. Approval of an application overseas is subject not only to sponsorship requirements having been met but also the nominees meeting entry requirements."

The application for sponsorship approval

Peter Conyngham, the first applicant, is the principal of South Pacific Entertainment Corporation Pty Limited, the second applicant. In the past he has brought to Australia a number of overseas artists, including musical groups. On 29 May 1986 Mr Conyngham made application to the Department of Immigration and Ethnic Affairs for approval of the sponsorship by South Pacific Entertainment of the entry into Australia of The Platters. The letter of application disclosed that the group consisted of nine people: five vocalists, a drummer, a keyboards player and two managers. One of the managers, the eleventh applicant, Samuel Buck Ram, was referred to in the letter of application:

"This group is Buck Ram's Platters and is the original group that has continued since its inception.

Buck Ram is the original writer, producer and arranger of their most famous hits. Naturally, over their 25 years working as THE PLATERS (sic) members have come and gone. In some cases original members have formed their own versions of THE PLATTERS eg. Paul Robi and Zola Taylor (both of which have toured Australia previously).

No other group in the world can legally call their group THE PLATTERS, nor can any other group record under that name.

Fourteen people have been directly engaged for this tour plus another twelve employed in a closely allied situation. This is not including our own staff who have been working on it for three months, and the large number of miscellaneous people also gaining employment because of the tour.

We are looking forward as are many fans, to hearing and seeing THE PLATTERS in Australia.

We enclose some biographical material on THE PLATTERS and also on Buck Ram for your records and information."

With the application there was enclosed an itinerary showing an opening performance at Tweed Heads on Friday 18 July 1986, a series of engagements elsewhere in New South Wales, Victoria and Canberra, with a closing performance at Hornsby on 31 July 1986 and a departure from Australia on the following day.

On 2 June 1986 each of the three unions previously named were notified of the application. Neither the Musicians' Union nor the Australian Theatrical and Amusement Employees' Association made any objection. Actors Equity did, however, make an objection. The objection was apparently first notified by telephone to Mrs J Urquhart of the Department on 18 June 1986 -- one day outside the permitted ten working days. The objection was confirmed by a telex sent the next day which read as follows:

"ACTORS EQUITY WISHES TO LODGE THE STRONGEST POSSIBLE OBJECTION TO THE IMPORTATION OF THE ABOVE ARTISTS ON THE FOLLOWING GROUNDS:

1 WE DO NOT BELIEVE THAT THESE ARTISTS WILL CONTRIBUTE TO THE CONTINUED CULTURAL ENRICHMENT OF AUSTRALIAN SOCIETY ETC. AS IS REQUIRED BY DEPARTMENTAL POLICY.

2 THERE ARE TWO GROUPS OF PERFORMERS WHO CALL THEMSELVES 'THE PLATTERS'. ONE GROUP WAS PUT TOGETHER BY A PAST MANAGER OF THE ORIGINAL PLATTERS AND CONTAINS NO ORIGINAL MEMBERS OF THE GROUP. THE OTHER, KNOWN AS 'PAUL ROBI'S PLATTERS', WAS PUT TOGETHER BY PAUL ROBI, WHO IS AN ORIGINAL MEMBER OF THE GROUP. A LEGAL BATTLE HAS RAGED IN THE UNITED STATES AS TO WHO HAS THE RIGHT TO USE THE NAME 'THE PLATTERS'.

THIS SPONSOR APPLIED TO IMPORT PAUL ROBI'S PLATTERS IN 1982 AND 1983. AS A RESULT OF THIS UNION'S CONCERN REGARDING THE INTERNATIONAL STATUS OF THE GROUP, THE SPONSOR PROVIDED A GREAT DEAL OF MATERIAL, INCLUDING THE TRANSCRIPTS OF THE COURT CASE TO SUPPORT HIS APPLICATION

HE ARGUED VEHEMENTLY THAT THE GROUP HE WISHED TO IMPOTRT (sic) CONSTITUTED THE ORIGINAL PLATTERS AND THE JUDGMENT OF THE MAGISTRATE AS DETAILED IN THE COURT TRANSCRIPTS CONFIRMED THIS.

ON THIS BASIS AND AFTER MUCH CAREFUL INVESTIGATION, EQUITY APPROVED THE ENTRY OF PAUL ROBI'S PLATTERS.

NOW THIS SAME SPONSOR WHO MAINTAINED THAT PAUL ROBI'S PLATTERS WERE THE ONLY GROUP WHO COULD CLAIM INTERNATIONAL REKNOWN

(sic) AS 'THE PLATTERS' WISHES TO IMPORT THE 'OTHER' PLATTERS. WE FIND THIS TOTALLY UNACCEPTABLE.

3 THIS UNION DOES NOT VIEW THIS SPONSOR AS SUITABLE OR OF GOOD STANDING AS IS REQUIRED BY DEPARTMENTAL POLICY. WE WOULD REFER YOU TO YOUR FILES AND HENCE OUR OBJECTIONS REGARDING HIS SPONSORSHIP OF THE JOHN ROWLES TOUR IN AUGUST 1985. THE UNDERTAKINGS AGREED TO IN THIS SPONSORSHIP WERE SERIOUSLY BREACHED WHEN HE NEGOTIATED FILMING A PERFORMANCE ON SEPTEMBER 4TH BY THE ABC FOR AN ABC TELEVISION SPECIAL. NO ADVICE WAS GIVEN TO THE DEPARTMENT OR OURSELVES AND NO CLEARANCE SOUGHT.

THE SPONSOR DID NOT CONSULT WITH EQUITY REGARDING APPROPRIATE RATES OF PAY ETC., DID NOT ENTER INTO CONTRACTS WITH THE ARTISTS AND DID NOT COMPLY WITH AWARD PROVISIONS.

IN SPITE OF NUMEROUS CONTACTS THESE MATTERS ARE STILL OUTSTANDING.

ALL OF THE ABOVE CONSTITUTES THE MOST SERIOUS BREACHES OF DEPARTMENTAL POLICY, SPONSORSHIP UNDERTAKINGS AND RELEVANT AWARDS."

Mrs Urquhart informed Mr Conyngham of the fact of the objection and read the telex to him over the telephone. However, despite several requests, he did not actually receive a copy of the document until the afternoon of Wednesday 2 July 1986. In the meantime, on 27 June 1986, Mr Conyngham had been informed by Mrs Urquhart that Central Office had decided that the matter should go to the National Disputes Committee. A hearing date was fixed for Thursday 3 July 1986. Mr Conyngham was notified of the hearing date some time between 27 June 1986 and 2 July 1986.
On 19 June 1986 Ms Bronte Morris, an officer of Actors Equity, wrote a letter to Mrs Urquhart in relation to the application. That letter read as follows:

"I am enclosing relevant information regarding the two groups.

This information will serve as a back-up to our objections of the intended importation by South Pacific Entertainment Corporation of the second group of Platters this year.

I have provided a copy of the transcript of the proceedings of the Court case, a letter from Cabaret Attractions and proof that Peter Conyingham (sic) is breaching the Trade Practises (sic) Act by falsely advertising the Paul Robi Platters who have just toured, as the group he is intending to import.

I have in my possession a large poster provided by Cabaret Attractions (the company who have just sponsored Paul Robis (sic) Platters) which without doubt advertises the same Platters Peter Conyingham (sic) has advertised, ie. Paul Robi's Platters. We would like to keep the poster as there is only one and it is too large to copy.

I hope this makes the situation clearer."

Mr Conyngham was not informed of the receipt of this letter until 4 July 1986, that is after the meeting of the National Disputes Committee. He has never been provided with the enclosures to the letter.
Upon receipt of a copy of the telex objection of Actors Equity, Mr Conyngham made what preparations he could for the meeting on the following day. In the limited time available to him he obtained a deal of information about the group, including copies of favourable reviews of their performances. This material was tabled at the meeting of 3 July. But the evidence of Mr Conyngham, which was uncontradicted, is that the meeting was dominated by the matters raised in the second and third grounds of objection. Mr Conyngham explained in evidence that he was particularly concerned with the third ground since it called in question his company's future entitlement to sponsor overseas artists. Apparently, several allegations were made in relation to the compliance by the company with the requirements of various awards. Mr Conyngham said that he answered these allegations as best as he could with the information available to him at the meeting. There was apparently considerable time spent upon the second objection, concerning the question whether this particular group was entitled to use the name "The Platters"; and thereby to claim the mantle of the well known singing group of the 1950s of that name and of which Mr Ram was an original member. But, in the end, the Committee decided to reject the application on one ground only, namely its "belief that 'The Platters' did not possess a level of talent of such merit as to lead to the continuing cultural enrichment of the community and certainly no better than local talent who very often are denied scarce opportunities which exist locally".
According to Mr Conyngham's uncontradicted evidence, the only material put before the Committee critical of the talent or performances of the group was a review of a particular performance of the group which had been published in "The Denver Post" on 3 August 1985. Mr Conyngham said that he did not recall any discussion of the content of the various articles and reviews which were before the Committee, of which, apparently, twenty-three were favourable against the single unfavourable review, or of the level of talent of the members of the group.
Mr Conyngham became aware late on 3 July that the Committee had decided to recommend to the Minister that his sponsorship application be refused. Accordingly, on 4 July 1986, he delivered to Mrs Urquhart in Sydney a further letter containing additional material in support of his application.
The Minister dealt with the matter -- apparently in Canberra -- on the same day. It does not appear from the evidence whether the material forwarded by Mr Conyngham on 4 July was received by the Department before the Minister made his decision. Consequently, as it seems to me, it cannot properly be said that the Minister wrongly failed to take into account that information. The material contained in the letter of 4 July must be left out of account in considering the validity of the Minister's decision.
When he made his decision, the Minister had before him a Departmental Minute recommending that he accept the Committee's recommendation to refuse the entry of The Platters. That Minute read as follows:

"Sponsorship for the entry of the above group from the USA for a club tour of Australia was lodged by Peter Conyngham of South Pacific Entertainment Corp Pty Ltd, on 27 May 1986.

The proposed tour by 'The Platters' is from 17 July to 1 August 1986 and involves performances at some 15 clubs in NSW and Victoria.

Actors Equity has lodged an objection to the entry of the group on the following grounds:

they do not believe the artists will contribute to the continued cultural enrichment of Australian society;

there are two groups who perform under the name 'The Platters' and legal action is apparently involved in the US over usage of the name. The sponsor brought one group to Australia some years ago claiming them to be the original group, but now claims that the other group which he has sponsored, is the only group which can claim international renown; they do not regard the sponsor as being of good repute. This relates to a previous sponsorship for the entry of 'The John Rowles Tour' when objections by Actors Equity were over-ruled by the Department.

On the other side the sponsor claims that both groups of 'The Platters' are of good standing in the industry and strongly disputed the contention that he was not of good standing as a sponsor.

The NDC met 3 July 1986 to consider the issue and unanimously recommended that entry of 'The Platters' be refused.

The NDC report is attached should you wish to refer to it."

The National Disputes Committee report was attached. The copy of the report has been initialled by the Minister. I therefore assume that he did in fact read that report before coming to his decision. The critical parts of the report are as follows:

"The Committee felt that despite a continuing dispute between Actors Equity and Mr Conyngham (concerning a previous tour by another group), the assertion that Mr Conyngham is not a person of good reputation and standing was not sustained by Actors Equity. On what has been presented at the hearing he is a suitable sponsor.

The Committee also believed that 'The Platters' did not possess a level of talent of such merit as to lead to the continuing cultural enrichment of the Australian community and certainly no better than local talent who very often are denied scarce opportunities that exist locally.

The Committee unanimously recommends the refusal of an entry permit to 'The Platters'."

No reasons were stated for the Committee's view relating to the level of talent of the group and no supporting material was cited. No reference was made to the second alternative in the opening paragraph of the policy viz. whether the sponsor required the particular artists.

Mr Conyngham apparently learned of the Minister's decision on Monday 7 July 1986. On Wednesday 9 July I granted leave to serve short notice of an Application for review of that decision returnable at 2.15 p.m. upon the following day. Upon the return of the Application some evidence was taken but counsel for the respondent was handicapped by lack of access to the Department's Canberra file. Accordingly, the matter was adjourned until Monday 14 July 1986 when further evidence was taken and argument ensued. The hearing concluded late in the afternoon of that day. It was important, if the third to eleventh applicants were to enter Australia at the scheduled time, to grant to the applicants the relief to which they were entitled. Accordingly, I made orders -- the details of which are set out later in these reasons -- and shortly stated my reasons therefor. I indicated that I would publish full reasons for judgment as soon as possible. What follows are my reasons for the orders which I made last Monday.
Natural justice
Counsel for the applicants challenges the legal validity of the Minister's decision on three separate bases. First, he says that a breach of the rules of natural justice occurred in connection with the making of the Minister's decision (Administrative Decisions (Judicial Review) Act s.5(1)(a)). Secondly, counsel contends that the Minister failed to take into account certain relevant considerations: s.5(1)(e) and (2)(b). Finally, he says that the decision of the Minister to adopt the recommendation of the National Disputes Committee and to refuse the application constituted an exercise of the power in a manner so unreasonable that no reasonable person could have so exercised the power: s.5(1)(e) and (2)(g).
In support of his submissions relating to denial of natural justice, counsel for the applicants relies upon the decision of the High Court of Australia in Kioa v West (1985) 60 ALJR 113 and in particular upon what was said by Mason J at pp.126-129, by Brennan J at pp.140-141 and pp.145-147 and by Deane J at pp.148-149. The cited passages include a statement of general principle by Mason J at p.127:

"The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention."

In Kioa the High Court held that there was no such manifestation of a contrary intention in the Migration Act in relation to the deportation pursuant to s.18 of that Act of prohibited non-citizens. Likewise, it is correct to say that there is no such manifestation in respect of applications for the grant of entry permits. A decision to approve or to refuse a sponsorship application affects not only the interests of foreign artists but also the business activities of Australian entrepreneurs. The principle enunciated by Mason J is directly applicable.
Brennan J, at p.147, dealt with the content of the duty to give natural justice in the following way:

"A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v Government of Malaya (1962) A.C. 322 at 337; Ridge v Baldwin (1964) A.C. 40, per Lord Morris at 113-114; De Verteuil v Knaggs

(1918) A.C. 557 at 560, 561. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v Environment Secretary (1981) A.C. 75 at 97:

'To 'over-judicialise' the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair.'

Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account."

Counsel contends in the present case that the duty to act fairly in relation to the application made by Mr Conyngham was contravened by the failure of the Committee, and subsequently by the Minister, to give to Mr Conyngham an opportunity to deal with the matters mentioned in the letter to the Department from Ms Morris of 19 June 1986. That letter contained allegations that Mr Conyngham had falsely advertised the identity of the group the subject of his current application. The allegation was said to be supported by documents, enclosed with the letter.
It seems to me that the claim of denial of natural justice is made out. The allegation made against Mr Conyngham was one of serious impropriety. If it were made out, it would follow almost inevitably that he ought not to be considered a suitable person to sponsor a visit to Australia by The Platters or, indeed, by any other artists. The allegation was seriously made, by a reputable person. It purported to be supported by documentary evidence. Particularly having regard to its source, it could not be discarded as incredible. The allegation was a matter properly to be taken into account, to the detriment of Mr Conyngham, in dealing with his application. Under the circumstances, it was clearly encumbent upon the Committee, and upon the Minister, to give to Mr Conyngham an opportunity to deal with the allegation.
It is true that, in the result, the Committee refused the application for reasons which did not include the allegation made by Ms Morris. Indeed, the Committee rejected the claim that Mr Conyngham was not a person of good reputation and standing. But, as Brennan J pointed out in the passage I have quoted, that fact does not answer the complaint of failure to accord natural justice. It is not enough that a decision-maker endeavour to shut damaging information out of his mind. There remains a real risk of prejudice, even unconscious prejudice.
In the present case there is no evidence that the Minister became aware at any relevant time of the precise allegation made by Ms Morris; although he was told in general terms that Actors Equity had submitted to the Committee that Mr Conyngham was "not suitable or of good reputation and standing". The Minister may not, therefore, have been directly affected by the particular allegation. It does not follow that the decision he made -- the effective decision upon the application -- was unaffected by the unfairness of Mr Conyngham being denied the opportunity to meet that allegation. The policy statement clearly envisages that the Minister will ordinarily act in accordance with the result reached by the Committee; to the point that it is stated that, if an agreement is reached between the contending parties at the Committee meeting, Departmental action will proceed accordingly. It may be expected that, ordinarily, the Minister will give very considerable weight to the recommendation of the Committee. Any prejudice, even unconscious prejudice, which may permeate that recommendation may, therefore, flow through into the decision of the Minister himself. And, as the authorities cited by Brennan J make clear, the mere possibility is enough.
The applicant has made out its case that a breach of the rules of natural justice occurred in connection with the making of the Minister's decision. It follows that the decision was bad in law. I therefore ordered that it be set aside.
Failure to take into account relevant considerations
The complaint made in relation to failure to take into account relevant considerations focusses upon the material put before the Minister at the time of his decision. There is no reason to believe that the Minister took into account anything other than the information contained in the Departmental Minute and the attached report of the Committee. That information did not include a number of items of information which had been placed before the Department by Mr Conyngham, and which were therefore notionally before the Minister: see Peko Wallsend Limited v Minister for Aboriginal Affairs (1985) 59 ALR 51 at pp.59-60, 73, 81-82 and Daganayasi v Minister of Immigration (1980) 2 NZLR 130. The items included the fact that, notwithstanding the opinion of the Committee relating to merit, the group had over a lengthy period of time enjoyed considerable demand both within the United States and elsewhere and had received numerous favourable reviews regarding its quality of performance, that, according to the material before the Committee, Mr Ram was both a member of the original Platters group and a person of considerable musical stature, that Mr Conyngham had strongly denied the damaging allegation made by Actors Equity -- and reported to the Minister in the Minute itself -- namely, that his company "brought one group to Australia some years ago claiming them to be the original group, but now claims that the other group which he has sponsored, is the only group which can claim international renown", that the objection of Actors Equity had been submitted after the expiration of the permitted ten working days, thereby occasioning a decision very close to the date of commencement of the tour, and that the refusal of the application -- especially at that late stage -- would be likely to lead to loss of revenue not only to the promoter of the tour but also to the clubs at which performances were scheduled and to loss of employment for supporting artists.
Information upon all of the above matters was available to the Committee, and to the Department. But it was omitted from the material placed before the Minister and, therefore, from his consideration. The weight to be given to these matters, both individually and in combination, was a matter for the Minister; but all of these matters were clearly relevant to the decision which he had to make. The failure of the Minister to take these matters into account furnished a further reason to hold that the Minister's decision was bad in law and must be set aside.
Neither of the grounds of challenge so far discussed would justify the Court in doing more than setting aside the Minister's decision and referring the application back to the Minister for further consideration, leaving to the Minister the choice of the correct decision upon the merits; but such choice to be made free of the procedural and legal errors the subject of complaint.
Unreasonableness
However, in this case the applicants go further. They submit that the decision made by the Minister was so intrinsically unreasonable that no reasonable person in the position of the Minister could have made that decision and that, accordingly and in the particular circumstances of this case, they are entitled to an order that the Minister determine the application for sponsorship in their favour.
In Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p.167-169 I endeavoured to collect the authorities in respect of this ground of review under the Administrative Decisions (Judicial Review) Act, together with the major cases upon the common law ground of unreasonableness of which s.5(2)(g) of that Act is a statutory expression. To that list should now be added the decision in Wheeler v Leicester City Council (1985) 1 AC 1054 wherein Lord Roskill, with whom the other members of the House of Lords agreed, held to be unreasonable, in the relevant sense, a decision of the respondent council to deny to a local football club the use of a particular recreation ground. However, notwithstanding the occasional use of unreasonableness as a basis for holding an administrative decision to be invalid in law, it remains important to remember, as was said by Lord Hailsham LC in Re W (an Infant) (1971) AC 682 at p 700, that "not every reasonable exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable". Before a decision may relevantly be stygmatized as "unreasonable", it must be possible to say that it is a decision "that, looked at objectively", is "so devoid of plausible justification that no reasonable body of persons could have reached" it: see per Lord Diplock in Bromley London Borough City Council v Greater London Council (1983) 1 AC 768 at p.821. Can it, then, be said that the Minister's decision in this case was so devoid of plausible justification that no reasonable person could have reached it?
The decision of the Minister was, in substance, that the applicant had not satisfied the requirements of the first of the criteria set out in the policy statement. It will be recalled that this criterion is stated in the alternative. Firstly, the application may be approved "where the entertainers/professionals concerned possess a level of talent of such merit as to lead to the continuing cultural enrichment of the Australian community"; secondly, "where the sponsor requires a particular artist/professional for example for reasons of racial or national authenticity or because of a particular talent or ability".
In relation to each of the alternative tests there are problems of interpretation. What is meant by "the continuing cultural enrichment of the Australian community"? Given the nature and range of the policy, it may confidently be said that the word "cultural" is not used in a narrow sense. It does not refer only to performers who practise specialised arts, patronised only by the minority, such as leider, opera, chamber music or ballet. The word is used in its full and true sense as pertaining to our civilisation. So "cultural enrichment" of the Australian community is that which adds to the myriad of positive experiences available to members of that community. Of course, tastes vary considerably. That which exalts and inspires one person may leave another indifferent; worse, that other may actively dislike, and therefore reject, the offering. It is doubtful whether any form of entertainment has universal appeal. And the aficionados of a particular art may differ sharply about the level of talent of an artist or the quality of a particular performance. But the circumstance that not all will appreciate a particular entertainer, or his or her performance, does not prevent that performance representing an enrichment of the culture of the community, by extending the opportunities and range of those who do appreciate it.
I do not mean that all performers, however incompetent, must be said to answer the first alternative in the paragraph. The relevance of competence is shown not only by the word "enrichment", with its connotation of worth, but also by the reference to "a level of talent of such merit". The notion, as it seems to me, behind this alternative is that the particular entertainer should possess such a level of competence as to be able to make a positive addition to the available range or diversity of cultural experiences within the community; that, whatever the particular entertainer might do and whether that something appeals to a wide or to a narrow audience, he or she must do it well.
I have considerable difficulty in seeing how, upon the information before the Committee, it could reasonably have concluded that the Platters failed to satisfy a test so formulated. The material included reviews spanning the period June 1979 to May 1986, during the whole of which period three of the present five vocalists have been members of the group. It is not necessary to set out, or even to summarize, this material. It is enough to say that it is laudatory of the group, with emphasis upon the diversity of talents of its members and its success in evoking the music and mood of the 1950s. Many of the articles refer to the appeal of the group to people who remember with affection the songs of that period. There are numerous references to the contributions which were made by Mr Ram to the songs of that period, as composer or arranger, and to his role in maintaining the standards of the present group and the authenticity of its presentation.
It may immediately be conceded that many people in the Australian community will derive little or no pleasure or other benefit from hearing or rehearing songs of the 1950s delivered in 1950s' style. But -- as is demonstrated by the volume of advance bookings made for this very tour -- there are others in the Australian community, perhaps those who remember that period or who are students of the history of popular music, who feel differently. How can it be said that a presentation of such music in an authentic and skilful manner, appreciated by a significant number of people, fails to lead to "the continuing cultural enrichment of the Australian community"?
The second alternative in the merit criterion, read literally, is merely that "the sponsor requires a particular artist/professional". That which follows is stated merely by way of example. So read, the alternative is extremely wide. Indeed, it is difficult to see how it would ever fail of satisfaction. A sponsorship application must relate to a particular entertainer or group of entertainers. An application will only be lodged where the sponsor requires the services of that particular person or group of people. The condition will be fulfilled by the making of the application itself.

Given the width of the literal meaning of this alternative, it may be appropriate to read it down by adding a requirement that the sponsor requires the particular entertainer or group of entertainers for a particular reason, of which examples are stated. I am content to construe the paragraph in this way. However, the stated examples are merely examples; they do not represent an exhaustive list of the permissible reasons for a sponsor requiring a particular person or group. Upon this construction the alternative would be satisfied if the sponsor is able to show, first, that he or she does in fact require a particular performer or group and, secondly, the existence of a plausible reason for that requirement. No doubt the reason must be genuine but the policy does not require that others share the sponsor's view about the desirability of the entertainer having the particular characteristic or skill sought by the sponsor. For example, a sponsor who wished to import a particular person, a yodeller of Swiss nationality, in order that he could promote his performance as that of "a genuine Swiss yodeller" would comply with this alternative. It would be no answer to say that there were yodellers of equal -- or even superior -- ability, but not of Swiss nationality, already available in Australia. Those persons would lack the particular characteristic required by the sponsor.
It is clear upon the evidence that Mr Conyngham, in pursuit of his company's commercial interests and in reliance upon his assessment of audience demand, requires to import into Australia a group having the ability authentically to recreate the music and the mood of the 1950s. In aid of authenticity, he requires to be able to use a group with a direct continuing link to a famous group of that time: the original Platters. There is no doubt that the present Platters, comprising the third to eleventh applicants, fulfil these requirements. That matter is not in issue. Even the writer of the unfavourable review in "The Denver Post" conceded as much; though the result was not to her taste.
I think that it is strongly arguable that -- upon the material before the Committee and, therefore, notionally before the Minister -- Mr Conyngham satisfied the first of the two alternatives in the first criterion of the policy: "continuing cultural enrichment". But it is not necessary to determine that matter since it is clear beyond argument that the second alternative was fulfilled. The information before the Committee demonstrated, without contradiction from anybody or from any other material, first, that South Pacific Entertainment required to import this particular group; secondly, that this requirement was for a particular reason related to the likely commercial success of the importation; and, thirdly, that the reason actuating Mr Conyngham was a genuine one. That is sufficient, as it seems to me, fully to comply with this alternative. The material being compelling and unchallenged, any conclusion adverse to the applicant upon this issue would be a decision, looked at objectively, so devoid of plausible justification that no reasonable person could have reached it.
In fairness to the members of the Committee and to the Minister I should say that it is doubtful whether either the Committee or the Minister did look at the matter in this way and reject the overwhelming evidence in favour of the applicant. The Committee appears to have allowed itself to have become distracted by the essentially irrelevant issue raised by Actors Equity: which group were the true heirs of the original Platters. It was not irrelevant that Mr Ram -- apparently like Mr Robi of Paul Robi's Platters -- was an original Platter; but the relevance of this fact was that it supported Mr Conyngham's belief that the group would be able authentically to recreate the music and mood of the 1950s. It was not inconsistent with that prospect that other groups, whether or not employing a name which included the word "Platters", had a similar capacity. In the result the Committee did not go beyond the first alternative in the criterion. It did not address the second alternative, requirement by a sponsor, at all. Moreover, in considering the first alternative, both the Committee and the Minister appear to have engrafted upon it a requirement not stated in the policy itself. The Committee referred to the level of talent of the group as "certainly no better than local talent". It is sufficient for me to say that there is nothing in the first alternative which requires the level of talent of the required entertainer or group to be unique or even special; it is enough that it is such as to lead to continuing cultural enrichment, in the sense that I have explained.
Having regard to the reasons adopted by the Committee and the Minister, it may be that either or both of them would wish to see more stringent tests imposed for the importation of overseas artists. In particular, it may be desired to limit approvals to entertainers who are able to offer a talent or an experience not otherwise available in Australia. Such a limitation would make relevant the comparison made by the Committee between the level of talent possessed by The Platters and that which is available locally. Whether such a limitation is desirable is a complex question of policy upon which I offer no comment. I merely observe that, if this is the Minister's desire, it is open to him to so provide. He is entitled to amend his policy at any time. But, unless and until the Minister does amend his policy, the policy must be interpreted according to its ordinary and natural meaning and any conclusion of the Minister that fails to recognize that particular material does in truth satisfy the stated test must be condemned as unreasonable, in the relevant sense. The attack upon the decision, based upon s.5(2)(g) of the Act, must succeed.
Orders
In view of this conclusion the question arose whether, as the applicants claim, the Minister ought to be ordered to approve their application. A finding that a particular decision is unreasonable will not ordinarily lead to an order that the decision-maker determine the application in the opposite way. Typically, as with the other grounds provided by s.5(1) and (2) of the Administrative Decisions (Judicial Review) Act, the decision will be set aside and the matter referred back for further consideration. This was the order made in each of the two earlier cases in which s.5(2)(g) has been successfully invoked: Willara Pty Limited v McVeigh (1984) 54 ALR 65 and Prasad. But that is because the ambit of relevant matters is normally unconfined, except by exclusion of matters "definitely extraneous to any objects the legislature could have had in view": see per Dixon J in Water Conservation and Irrigation Commission v Browning (1947) 74 CLR 492 at p.505 and The Queen v Australian Broadcasting Tribunal; ex parte 2HD Pty Limited (1979) 144 CLR 45 at p.49. It follows that, although the particular decision is devoid of plausible justification upon the reasons stated, it may be open to the decision-maker to reach the same conclusion by reference to other, perhaps wider, reasons.
The present case is, however, exceptional. The Minister has chosen to adopt a policy to guide his consideration of sponsorship applications. It has long been recognized that a statutory decision-maker may lawfully adopt a policy to guide him or her in the making of particular decisions provided only that he or she does not apply that policy inflexibly or deny to a particular applicant the opportunity to argue that the policy should not be applied in the instant case: see The King v Port of London Authority; ex parte Kynoch Ltd (1919) 1 KB 176 at p.184, British Oxygen Co Ltd v Board of Trade (1971) AC 610 especially per Lord Reid at p.625, Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, Legal Services Commission v Stephens (1981) 2 NSWLR 697. But, although a policy is never to be applied in a rigid manner, it must be applied fairly. Without fair application it loses its claim to validity: see Rex v Torquay Licensing Justices; ex parte Brockman (1951) 2 KB 784 at p.785, Humby v Woollahra Municipal Council (1974) 10 LGRA 56 at p.67. The situation is not unlike that considered in Council of Civil Service Unions v Minister for the Civil Service (1985) 1 AC 374 at pp.400-401 wherein it was held that a consistent practice of consultation with affected unions had given rise to a general duty to consult.
In the present case the Minister, being free to do otherwise, elected to adopt a policy in which he provided that, in the absence of any objection by an affected union within ten working days of notification of an application for sponsorship, his Department would approve the application, as a precurser to the subsequent issue -- other visitor requirements being satisfied -- of relevant temporary entry permits. There was in the present case no objection within ten working days, although an objection was entered shortly after the expiration of that period. It is not shown that Actors Equity was an affected union but, the matter not having been disputed by Mr Conyngham prior to the Minister's decision, I shall assume that it was. Two of the three grounds of objection were dismissed by the Committee; and, it is not disputed, rightly dismissed. The third ground was upheld but the decision to uphold that ground of objection was unreasonable. That ground should also have been dismissed. The Minister has, by his policy, adopted a position that, absent a proper objection, approval will follow. It would be inconsistent with the policy for the Minister to now re-open the application to objection by affected unions or, there being no extant valid objection, to fail to grant to the applicant his approval. The true position, as it seems to me, is that the Minister has bound himself by his own policy, in the circumstances which have happened, to grant his approval.
Section 16(1) of the Administrative Decisions (Judicial Review) Act provides that, on an application for an order of review in respect of a decision, the Court may, in its discretion make:

"(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties."

The applicants sought an order under s.16(1)(c) for a declaration that the application lodged by Mr Conyngham in respect of the third to eleventh applicants was within the policy guidelines issued by the respondent for the approval of sponsorship relating to temporary entry permits. For the reasons I have indicated, I am of the opinion that the application was within those guidelines. It being desirable to definitively determine that issue, I made a declaration accordingly.
Counsel for the respondent contended that, notwithstanding s.16(1)(d), the Court had no power to make an order requiring the Minister to approve the sponsorship application; and, alternatively, that, in its discretion, the Court should not do so. In relation to power, reference was made to various authorities in which, in general discussion about the nature of judicial review, the observation has been made that a court exercising judicial review does not substitute its own decision for that of the primary decision-maker: see, for example, Hamblin v Duffy (1981) 34 ALR 333 and Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388. There is no doubt that this is the usual position. As I have already said, mere legal error or procedural irregularity would not normally justify an order for a decision the opposite of that under challenge. It may be the position that the possibility of an order that the decision-maker make a particular decision can only arise where s.5(2)(g) is successfully invoked; and then only in a case in which the decision-maker is precluded -- either by legislation or by the requirement fairly to apply an adopted policy -- from any decision other than that sought. In other words it will be a very rare case in which an applicant is able to contend that, as a matter of law, he or she is entitled to a positive decision different from that invalidly made by the decision-maker. And only in such a case will s.16(1)(d) authorize the Court to direct the decision-maker to make a particular order. However, if what I have so far said is correct, this is such a case.
By way of an alternative argument, counsel for the Minister refer to the Full Court decision in Pearce v Button (7 March 1986, not yet reported) in which Fox and Spender JJ each held that s.16(1)(c) did not authorize the Court, in reviewing a decision to seize goods pursuant to s.203 of the Customs Act 1901, to make a declaration that the goods were forfeit to the Commonwealth within the meaning of s.229 of that Act. However, that case is readily distinguishable. The Court was there concerned with two matters. The first, the decision to seize, was within the jurisdiction conferred upon the Court by the Administrative Decisions (Judicial Review) Act. The second matter was one not ordinarily within the jurisdiction of the Court. Fox and Spender JJ held, in effect, that s.16(1)(c) should not be interpreted in such a manner as to extend the jurisdiction of the Court.
In the present case there is only one relevant decision, the decision to refuse approval of the sponsorship application. This decision, being preliminary to a decision in relation to the grant of temporary entry permits, is within the ordinary jurisdiction of the Court under the Administrative Decisions (Judicial Review) Act. That jurisdiction may be exercised in an appropriate case by making any one or more of the orders referred to in s.16 of that Act.
It is clear that the powers conferred by s.16 of the Act are discretions. The Court ought to consider, in each particular case, what orders are appropriate to be made. Even in a case in which the Court concludes that, as a matter of law, an applicant is entitled to a particular decision it may sometimes be preferable simply to say so, perhaps making a declaration under s.16(1)(c), and then to refer the matter back to the decision-maker in order that the appropriate decision may be made in accordance with the usual administrative procedures.
In the present case, however, there were circumstances of extreme urgency. As I have said, the hearing before me concluded late on Monday 14 July 1986. The third to eleventh applicants were due to arrive in Australia, travelling from Europe, early on Thursday 17 July 1986. That schedule required their departure from Europe during the evening of Tuesday 15 July 1986, European time. Unless a sponsorship approval was granted by that time, it would be unsafe for them to incur the risk of travelling to Australia. Without a sponsorship approval prior to arrival, they would not be able to be issued, upon arrival and upon compliance with the usual requirements for visitors, with temporary entry permits permitting them to work whilst in Australia. And, in addition, it was necessary for them to obtain visas to enter Australia, which could not be issued until after approval of the sponsorship application. Under all of these circumstances it was critical to their plans that they obtain a sponsorship approval not later than the afternoon of Tuesday 15 July, Australian time.
I could have made an order referring the matter back to the Minister with a direction to reconsider the application and to make a decision on Tuesday 15 July. However, the adoption of this course would have meant that, if the Minister had failed to grant an approval, there would have been no effective redress available to the applicants in time to allow them to travel as planned. It would have been impracticable for the Court to deal before Wednesday with any refusal to approve which might have been notified late on Tuesday.
Taking the view, as I did, that, in the special circumstances of this case, the applicants were, as a matter of law, entitled to a favourable decision from the Minister, I saw no reason to expose them to the risk I have mentioned. It seemed to me appropriate to make an order under s.16(1)(d) of the Administrative Decisions (Judicial Review) Act that the Minister make the only decision which, in my opinion, was legally open to him.
It is true that such an order is unusual, under the Administrative Decisions (Judicial Review) Act, although not unprecedented: see Sordini v Wilcox (1983) 70 FLR 326. However, it is commonplace for courts to make orders of mandamus requiring various people, including Ministers of the Crown, to carry out the duties imposed upon them by law. There is no new principle involved in the making of such an order, in the rare case in which it is appropriate, under s.16(1)(d) of the Administrative Decisions (Judicial Review) Act.
For the above reasons, on 14 July 1986, I made orders as follow:

1. That the Court declares that the application lodged

by the first applicant in respect of the entry into Australia of the third to eleventh applicants inclusive was within the policy guidelines issued by the respondent for the approval of sponsorship relating to grant of temporary entry permits.

That the decision of the respondent to refuse the

application of the first applicant for approval of a sponsorship by the second applicant of the visit to Australia of the third to eleventh applicants inclusive, being an approval for the purposes of the subsequent issue to the said third to eleventh applicants of temporary entry permits under s.6 of the Migration Act 1958 be set aside.

That the respondent issue or cause to be issued

within twenty-four (24) hours to the first applicant an approval of the application made by him on 29 May 1986 in respect of the sponsorship by the second applicant of the visit to Australia of the third to eleventh applicants inclusive, being an approval for the purposes of the subsequent issue of temporary entry permits under s.6 of the Migration Act, such approval being upon such terms and conditions as will permit the said third to eleventh applicants to fulfil the engagements itemised in the itinerary which is part of exhibit C herein.

That the respondent pay to the applicants their costs

of the Application.

[1986] FCA 283

17 JULY 1986