Demirovski, I. v Minister for Immigration & Ethnic Affairs

[1986] FCA 614

4dmlnlsrrat l -e Law - mlgrarlon - jludlc141 r5vle-d or' cieclslon

-

t o r e r u s e convlc t lon r c s l d c n t z c a t u s - -Jhether ,du+-:r t o l n c e s t i g a t e

- -;h?ther a p p l l c a n t 5 account conj ldered -

r e l evan t cons lde ra t lons - rel?vsnc? ot oplnlons expressed b.;

gther departmental n t f l c e r s - natural j u s t l c e - vh?ther du ty

EO p u t t o a p p l l c a n t s t a t e m e n t 8 made by l p p l l c a n t S brother -

.,-hether those statements irrelevant cons ldc ra t lons -

unrcasonablcness - vhether merlts conslderect

Adminis t ra t ive Decls lons (Judicial Hevlewr Act ss . 5 , l?

Mwration Act L958 ss . 6 . 6A. 1 2 , 15

Min. f o r Imm. S Ethnlc 4 f fa l r s $- Danlele (1981 ) 39 ALP. 649

Turner v Min. f o r i m m . L Ethn lc Af fa l r s 119811 35 ALR 388

Sean Investments 6tv. Ltd. '; MacKellar 11981) 38 ALR 363

ISMAIL IjEMIRWSKI. BZBIJE ~IEMIF.L*VSKI and XAJMTJE DEMIROVSRI

(by her next t r i m d . ISMAIL GEMIROVYKI 1 Y THE MINISTER FOR

IMMIGRATION AND ETHNIC AFFAIRS

KEELY J .

VG 51 OF 1486

MELBOURNE

10 EECEMBER. l986

Respondent

ThlJ 13 a jolnt appllcatlon by Isms11 ljcmlrovskl lthc flrst Rppllcant,, h13 w i r e and thelr chlld. Najml!e, under 3.

5 of the Admlnlstrat1?e Ijeclslons tJudlclsl Revlewr Act !the

ADJR Act, for an Drdcr of rcnew of a dcclslon. made under

ss. n and GA of the Miaratlon Act 1958, whrch refused the

grant, of permanent resident status to the 11rst appllcant

(the dcclsionl. The decl3lon was made by Mr. J. E. Machm

athe deleqateJ as the deleqate or the Mlnlster @I State T O T

lmmlgrstlon and Ethnlc Afralrs and vas nctlrred to the

applicant3 b y letter dated 21 FeDruary 13r?b.

l w:) n t n c n L U :'.u~-~.IJ 5 1 !13 . 'The

B p p l l c m t m 5 l c t f d t h l t l month w a s

t h e mxzlmum perloa r,?qulrcd. He

31gned the ';lsltor x s a a p p l l c a t l o n

snd m d l r a t e a 9 neqaC1-x response t o

tkL? .que3tlon on r h ~ z r o r m "Have you b.2e.n ion-JIcted of a crlmlnal or fence

I n any countr:r5"

'The visitor ' n s a declara t lon to rm

Includes a d e c l a r a t l o n s l g n e d by

~ p p l i c a n t s . That d e c l a r a t l o n

Includes the ~ ta t emenr : that t h e

3pp l l can t "4111 not seek s u t h o r l t y

t a zettle In >.u3tralla and 3111

lrav? on o r bcrore the end or t h e

authorised a l s l t per lod" . Fu r the r .

Che s p p l i c a n t a150 d e c l a r e s that

"all questions have been a swered

and t h e particulars p r m l d e d 0'; me

I r e t rue and co r rec t t o t h e bes t or

my kno-dledge and ablllty. ' I

'The Appl l can t a r r lvcd I n Aus t ra l13

on 1.4 Auguzt 19!~3. He m 5 ?ranted a temporary entr:r permit v a l l d f o r l month.

un L ; Auuust 1983, 3 d a ~ s a r t e r h l s

a r r i v a l i n A u s t r a l i a . t h e Appllcant

applied T O T a b months ex tensmn .

He p r o n d e d t h e f o l l o w l n a reasons:-

. that h i s r a t h e r had lust passed

avay ; . h13 mother needed support and

comfort;

. he wanted t o s t a y wl th h19 faml ly

and t r ave l w i t h them; and

. that l month 1s. not long enough

t o s e e v e r y t h i n g a n d v l s l t a l l

the p l aces tha t	he slould l l k e	t o
7133.t:

. he a l so stated that h l s employer

had g lven h m b - months leave .

vn th13 basls a rur ther t emporary

en t ry perml t a 3 ? r a n t e d t o h m m S

September 1 ~ 8 3 , vhlch cxplred on 14

February 1~84. No fur ther t emporary

4 .

....

1;. un 3 December 1'2133 3 cab le vas s e n t

t o the Aus t ra l l an Embassy l n

Belgrade tr, a s c e r t a i n details GI t h e

cons lc t lon and sen tence served .

L j . The Applicant married B z b l ~ e Daut l ,

a n B u s s r a l l a n c i t i z e n from the same

p a r t	@t Yugoslavia, on 2 7	IJctOber
1983.

14. The couple have a daughter born 4

Decembar 19-54 I n A u s t r a l l a . .;ha 1s

t h u s a n A u s t r a l l a n c l t l z e n .

15. The Appllcant has h i s mothsr and 5

j i b l i n g s B u s t r a l l a . a n d 2

: lbllnys In Turkey. Mrs . Demlrovskl

has her parents and 4 s i b l l n g s I n

. \us t ra l la	and	nother	s ib l lnq	In
._

rugosla-;la.

16.     On 13 fiecember lrR3 the Appllcant

.applied t o r r e s l d e n t s t a t u s I n

A u s t r a l l a on the basis af h15

m a r r l a y e t o an Australian c l t l z e n

and that h13 c l o s e ramlly members

l l v e I n B u s t r a l l a .

1 7 . The coupl? were lnterviesjed on 17

A p r i l lYY4. A t t h l s m t e r v l e w the

marriage was assessed as bona t l d e .

'They b o t h dec la red they d i d not have

any cr lmmal s t a t e d record. The Appllcant

that he would have not

nb ta lned a passpor t i t he had a

record, and he produced zi c l e a r

p e n a l c e r t l r l c a t e from the Yugoslav

a u t h o r l t l e s .

18. By c a b l e dated 24 J u l y 19S4 adv lce

%a3 rece lved f rom the Aus t ra l lan

Embass:; i n Belgrade that t h e

Applicant served 8 yea r s at a 1 2

r _ .

?car 3entence f;jr mlurder t ollowing

hls connctlsn .sn l; A p r i l 1-15.

19. un 3U Januar? 1'325 the couple were

qaln lnter-;leved. 'The Appllcant

arter tlrst repeatlnu that he had no

record admltt& to the convlctlon.

but stated that 1 s he had served hls

sentence there should no longer be a record because a~t the rehabllitatlon provlslons Yuqoslavla In- he

pomted to clear the p nal

certiricate that he had obtamed

from the iuqoslav authorltles as

proor of thls.

2 0 . His appllcatlon t o r resldent status

w a ~ rejected un L4 September lr85 on

the basis that his convlctlon

brought h l m m t h n the scope or

Zectlun L6 c.3t the Mlgratlon Act.

The decision-maker took Into account

the errect the declslon would have

upon the tuture and the marrlage or

the appllcant and hls wlte and

declded that the seriousness or the

crime ol whlrh the applicant vas

sonvlcted outwelghed the other

c lams.

21.  The Appllcant was mlormed of the

rejection ol Iils appllcatlon by

Letter on 4 October 1985.

2 2 . On H dctober 1385 the Appllcant

Lodged a Request tor Hevlew by the

Immigration Revlew Panel of- the

decision to refuse his appllcatlon

for resident status.

23. In hls request the Appllcant dld not

make any clalms but outllned the

events leadinq up to hls convlctlon.

and the reasons r o r not dlscloslng

It initially, and makes a plea f o r

hls future

in partlcularly mentlons that he has h13 famlly In Australla. Australla. He

24. 'he Panel conzldered the Appeal on 6

February 19P.b and Its unanlmous

recommendatlon to the Munster was

that the Appeal should be

dlsallowed. The Panel consldered

b.

the posltlon o f the xl fe . and the

Australian born dauqhtcr. it relt

that 1n3uxflclent tlme had elapsed

31nc? the appllcant 5 release from

qaol to netermlne whr- tmr he was

r u l l j ' rehabllltated.

25. In the capacity o r the Munster S

Delegate I agreed wlth thl s

recommendatlon. and a letter was

gent to the Applicant an 50 February

138b advising hlm ox m;; declsion.

"B.	The endence or other materlal on which
my rlndlngs are based.

2 6 . in maklng the above rlndings I had before me Department of Immlgratlon

and Ethnic Affairs tlles number

n4/14769 and number VY3115454. In

particular I had regard to the

rollowlng:

. a .	a sponsorshlp appllcatlon by Mr Taip Demlrl on behalf oi the Applicant;
G.	a cable rrom thc' Australian

Embassy In Belgrade dated 22

July 19Y3;

C .	notes of an lntervlev held with Mr As1p Ijemlrl on 29 July 1983 at th? Melbourne urflce
d.	a cable irom Belgrade dated 10

August lYt33;

e. an application Tor a further

entry permlt and ?xtenzlon of

stay by the Apphcant dated 2 2

August 1983

. #

h. copy ot a cable Yent to Belgrade

on 8 December 1583;

1. The Appllcant's appllcatlon for

resldent status dated 13

December 1 9 8 3 ; "

t T h l s document xi11 be rcferrea t o l a t e r )

" k . J rao?c I r a n the B u s t r a l l a n

Emms;;r In Belqradc ated 24

J Q ~ I J L y e 4 : "

(That cable lnc ludcd the followlng:

"Ne have nov rece lved rrom Mln l s t ry or

r'ut'elqn Sf ta l r s c o u r t t r a n s c r l p t whlch shovs

that ismall Ijemlrovskl born 3.9.1455 cpol lce

c e r t l f l c a t e shows 3 . 3 . 5 4 ) of ;rlllaqe u s t r e c ,	-1
Bltola.	r u q o s l a v l ~ was convicted I n the

D l s t r l c t Cour t B1tola on 17.4.75 of the

murder or Idr lz b e l m s k l . ljemlrovskl hot

<he n c t l m dead 71th a	pl3tOl on 2 . 1 0 . 7 4 .
7

I. He : J ~ S sentenced t o 12 Tears

Imprisonment.	He	xas	released	on
2 O . l O . k l f . l "

"1. a t u r t h e r lntervlew r e p o r t of Januar:r 1~95: 30

m. a r a s e scrbmlsslon wl th the

dcc l3 lon 01	relcctlon recorded
by Mr W.	J. Perry. Senlor

.

Asslstant Director. Operations

Branch. Melbourne OfflcP. dated

-4 September 19US;

n.	a letter to thc Rppllcant from
the Melbourne Ofilc,? dated -1
uctober 1 ~ 8 5 ;

0. the Appllcant S Request for

Revlew dated 3 October 1985;

Departmental the Case p.

Examlnatlon Report dated l b

January 198b;

q.	the Immlqratlon Revlew Panel S report or' 6 February 1986; and
r.	my letter to the Applicant of L0 February 1986.

l? . I 3150 had before me the Grant of

Resident Status and Temporary Entry

(Visitors and Temporary Residents]

Departmental Handbooks

assoclated policy clrculars.

"C. Th? reasons tor the declslon

28.  An appllcatlon for resident status must. as a matter of law, satlsry

the conditlons of at least one part

'31 Sectlon 6At l ) of the Migratlon

Act betore helshe may be consldered t o r resldent status. Also such appllcants should normally satisfy

the policy provlslons outlined in

the relevant handbooks, pollcy

Minlsterial	and	c1rculars
statements. Applicants should also satisfy normal health and character requlrements.

29 . 1 accept that the applicant fulfils

the conditlons of Section 6A(l)(b)

ot the Migration Act by vlrtue ot

hls marriaqe to an Australian

cltlzen. His appllcatlon or

resident status 1s thus one that may

be considered.

30. Thc non-citlzen by virtue of Sectlon applicant 1s a prohibited

16(l)(c)(ii) of the Migratlon Act

. .

because of hls fallure to declare

his crlminal record at the tlme he applled f o r a nsltor ~ 1 5 9 . He has been a pronlblted non-citizen since

his srrlval In Auatrslla and the

tempc2rary cntr7 permits uranted to

the appllcant on ar r lva l and

subsequently have had no rorce

because they were not approprlately endorsed a3 requlred by Yectlon 16 ur the Mlgratlon Act.

31.  The applicant falls to satlsfy the

baslc character requlrement by

virtue ot hls criminal connction

Io r a serlous offence and by his

deceptlon In not declarlny that

con-llctlon. Normal policy In this

resard 1 s that where an appllcant

has been committed to prlson rot- one

year or more the appllcant is

refused ntry to Australla or

reIused resident status.

32. In considering the application I

also had regard to the fact that he

was married to an Australlan cltlzen, had a child born in Australla from that marrlaye. that the applicant had hls mother and 5 slbllnqs In Australia and that hls

w f e had her parents and 4 alblmgs

In Australla. I also not?d that the applicant had 2 siblings In Turkey

and hls wife had a jlbling In

Yugoslavia. I accepted that

marriage to an Australlan cltlzen

and the Iamlly dlsposltion of both

the applicant and hls wife provlded

compasslonate humanitarlan and

clrcumstances which needed to be

fully considered a3 a factor in the

decision. that co text In

partlcularly I also c nsidered

whether a decislon to refuse the appllcatlon t o r resldent s atus

would pose such	a hardshlp as to be
unreasonable.

33. In formlng my view on that aspect 1 had regard to the tact that both the appllcant and hls wlfe had siblings

outside Australia nd that he

brother Asip. In sponsoring the

appllcant as a */l.sltor. had

the commltment to iugoslavia. S

emphaslsed app lcant

that he

did not a n t to stay In Xustralla.

that the appllcant had a buslness In

fugoslavla in uhich he vas partner

and that he was reSpGnSlbk for manaqlng the tamilg properties stlll held In Yugoslavla.

34. 1 formed the vlew, after CGnSlderlng

these factors and the other

information avallable to me. that

the Interests of the Australian

communltg should be paramount and

that notwlthstandmg the appllcant S

ellglblllty under the Mlgratlon Act

to be consldered for resldent

status, the gKa'/ltjt Of the convlctlon was such as to preclude

the walver of normal charact?r

requirements. I therefcre dzclded

that his applicatlon for resldent

status should refused

be character grounds, arlsing from the on

criminal convlctlon a d prlson

xentence or murder In Yugoslavla. and the deceptlon by the appllcant

In this regard at the tlme of hls

applicatlon for a vlsltor vlsa and

for resldent status."

It wlll be noted that the passages in Part C glvinq the

delegate S reasons f o r decision are expressly based upon

"character grounds, arlslnq from the crminal convictlon ...

and the deception by the Crlrstl appllcant In this regard".

The grounds of the application. as amended by leave

granted by Smlthers J. on 15 August 1986, were very extenslve

and had obviously been careIully prepared, as had the

submlsslons advanced by Mr. L'avanough, of counsel, ln support

of each of the amended qrounds. Those grounds, Including

particulars, occupied 13 type-wrltten pages but It is not

necessary to quote them in f u l l .

11.

. I

The statement ot reasons, to deceptlon delegate reterred, In paragraph 34 ot the

by the tlrst appllcant "at

the tlme or his appllcatlon for a vlsltor visa and for

resldent status" (paragraph 3 4 ! - both of whlch appllcatlons

were made in 1983. It 1s convenlent to deal flrst wlth that

question to	whlch ground l(aa1	of the amended grounds was
dlrected.

The respondent put in evldence documents. referred to in the delegate s statement	of reasons as having been taken
into account by him. which	had been supplied to the first

applicant. They included "Document 1". which was a report of

an lntervlew wlth the tirst applicant and hls wlfe on 17

April 1984. It vas open to the delegate to accept the

accuracy of that departmental report.

Desplte Mr. Cavanough's vallant attempts to explaln

away the posltlon of the r1rst applicant, there was ample

materlal before the delegate to warrant a concluslon by hlm

that a considerable number of false statements were made In

that intervlew by the tirst appllcant. For example. he

denied that he had ever been in ja i l : he also sald. perhaps In an attempt to support that false denlal. that "if he had had problems with the police he could not have obtained a'

passport, visa, or the good conduct certlflcate (which was

obtalned from hls local munlclpality)". In what may have

been another attempt to support hls talse denlal, ~t 1 s

recorded that he sald that "he had been to court ... over a

polltlcal sltuatlon . . . He mslsted that he had no trouble

with the pollce and was only warned". In answer to certain questlons he "could not glve any explanation as to why

Belgrade would have recelved informatlon mdlcatlng that he

had had problems with pollce and been In ]all".

In my oplnlm It was plamly open to the delegate to

concluae that "deceptlon". conslstlng or the flrst appllcant had been guilty or

a dellberate attempt to conceal

the tact that he had served a lengthy prlson sentence In

respect of a crime: that attempt was continued durmg the

lntervlew on 17 Aprll 1984.

It gas also open to the deleqate to regard the report

of that interview as showlng that, m the course of that

lntervlew, the tlrst appllcant was prepared to go to some

lengths to conceal the deceptlon In whlch he had in fact

engaged at the tlme of h15 application tor resldent status.

According to that report he "was asked t o r speciflc detalls

regardlnq his addresses over the last 10 years". Instead of

frankly admitting that he had been In i a i l , he gave anwers

which were plalnly untrue. For example. he "advlsed that

most of the time he llved In hls father's house in the

village - Yolunska". Having regard to the materlal before

him. the delegate was quite entitled to conclude that that

~tatetwnt x i s untra?. The docl-lment records that the

appllcant also said that rrom " 1 3 7 5 - 1 9 7 S he w a s llvlng Cat1

2 5 Glovner Orltsa Manastlr Bltola (where he was ,doing the

barber's course)" and that he "returned to the vlllage trom

1978-79 and then worked as a barber In Monastir trom

1979-80". Agaln, the delegate was entltled to conclude that

those statements were untrue as the tirst applicant was not

released from ]ail clntil 20 October L382 (see document " k " ,

Yhlch 13 referred to	In paragraph 16 of the delegate's
reasons t o r decision).

In my opinlon the delegate was quite entitled to come

to the concluslon that there had been "deceptlon by the

CflrstJ appllcant In thls regard. at the tlme or his

appllcatlon for	a visltor vlsa and for resldent status"
(paragraph 3 4 ) .	The delegate was a l so entltled to retuse to

accept that there was any genulne bellef by the rlrst

appllc.ant that he was entltled to make untruthful statements

(1) denying that he had "been In ]ail" ( 2 ) stating he llved

at his father's house In Solunska most of the time, ( 3 )

statlng that from 1975-1978 he lived at another village dolng

the barber's course. and ( 4 ) stating that he "worked as a

barber In Monastlr trom 1979-80".

At a later interview, on 30 January 1985, as reported

ln materla1 before the delegate, In answer to a speclflc

question "whether he had ever been convicted", he said "No -

14.

3ee my pollce certiflcate rrom Yugoslavla". St was only xhen

he was conrronted n t h the name or the person who had been

killed by hlm ln Yugoslavla that he admitted the conalctlon.

He sald that the department "should not have known about the

case" and It

dlsclosed It "because he clalmed that he had pald hls prlce

to soclety" and. based on a 'Yugoslav practice. sald that he

was entltled to deny the convlctlon.

was recorded that he said that he had not

In my opinion the delegate, after conslderlng the

flrst appllcant's explanatlon as to why he had not dlsclosed

h i s convictlon and the prison sentence that he had served In

Yugoslavia, was entitled to refuse to accept It as true. Mr.

Cavanouqh crlticlzed the delegate's "lmplled re~ectlon" ot

that explanatlon but In my oplnion on all the material the

delegate would have been entitled to treat that explanatlon

as an attempt by the first appllcant to mlslead the

Department as	to the reason	f o r hls acts	of deception In
1983.

It is qulte clear that the attempt by the rirst

applicant to explain away hls earller "deceptlon" was not

accepted by the delegate; In my opinlon the delegate was not

requlred, as was submltted by Mr. Cavanouqh. to refer

expressly In his statement ot reasons to that explanatlon.

1 7 . Lne appl rcsn ts zubml t ted . unaer ?-round 11 a) , that t h c

delegate x i 9 i n e r ror in Ea1 Llnu to tske 1ntG Xclount

r e l e -mnt cons lde ra t lons . Sevcrai or' th? m a t t e r s v h l r n It x i s

said had not, t een t a k e n Into account were a5soclatcd v l t h the

con:iIction, on l 7 S p r i l 1?75, Ct the f i r s t s p p l l c a n t Tor the "murder ot Idrir: Balovski . . . on 2 Ijctober 1'374". The vords (quoted come from a translation ~f a document In the

Macedonian lanuuage, Ghich =as r e r e r r e d b t o . I n t h

departmental pap?rs and m t h e I p p l l c a n t 3 ?rounds for

r ~ n e w , u "the c o w s c r a n s c r l p t " . I n o rde r t o a-?rJId

rrJnrus1cn. rhat d c s c r l p t l o n - a l l bc ujed m chcsr- reasons r'qr ]udgment. but, lt should he pointed out tha t IT; 1 s not 3 t r a n s c r i p r i n the 3ense or' a t:?ped x r b a t l m record or

16.

evldence andlor submlsslons; trom Its wordlng. ~t appears to

be a copy or a record of the "declslon on 17/4/75''	of the
Gistrlct court m Eltola.

Varlous matters were relied upon under the particulars

to thls ground, mcludlng the delegate's tallure to go behlnd

the convictlon. It was also contended that the delegate

falled to glve any or any proper conslderatlon to the

explanatlon "put t o the lmmlgratlon fievlew Panel by the llrst

applicant reqardmg the clrcumstances of the offence". Mr.

Cannough cited Re Mitos and Mlnlster f o r Immlqratlon and

Ethnlc Affairs ( 1 3 8 4 ) 5 ALN N471 In support of this ground.

In that case 'Tribunal) considered the question of deportation under the Adminlstrative Appeals Tribunal (the

S. 12

of the Miuratlon Act and set our those factors which ought to

be taken Into conslderation In reachlnq such a declslon. It

Included "the serlousness of the orfence .. . and In

particular the clrcumstances In whch the offence was

commltted", addlng that In "the case ot murder It 1 s

necessary to conslder whether It was premedltated or

unpremedltated" .

The appllcants' counsel submltted that "there 1s no

relevant distmction for present purposes between the list of

matters set out In - M and those which the Minlster in thls

case would have been bound to take Cinto account]. They are

matters of common sense". A3 to thls submission, it may be

1 - .

noted that 3. 12 permlts the deportation of persons allowed

to settle In Australia. The matters Llsted as Lelng requlred

to be taken Into conslderatlon In S. l 2 declslons are those

whlch appear m a Mlnisterlal pollcy statement - see Re Drake

and Mmlster for Imrnlsratlon and Ethnlc Aftalrs (No. 7 )

( 1 9 7 9 ) 2 ALlj b34 at b 3 7 . As Brennan J. sald In that case, at

545, "When the Trlbunal 1 s revlewmg the exerclse 01 a

discretlonary power reposed In a Minister, and the Minlster

has adopced a ueneral pollc:; to qulde him In the exerclse 01

the power, the 'Trlbunal wlll ordinarily apply that policy In

revlewmg the declslon. unless the pollcg 1s unlawtul or

unless Its applicatlon tends to produce an un~ust declsion In

the circumstances of the particular case."

It was accepted by behalt of the respondent. that, where the decision-maker Plr. T. J. North. 01 counsel, on

is

conslderlng the fact that an appllcant for permanent resldent

status has been convlcted In his own country, "there 1s no

distinctlon between the sectlons (1.e. S 16 and S. 6A of the

Miaratlon Act on the one hand and 3. 12 on the other) for the

purpose of declding what the duty ot the declsion-maker 1 s "

(Transcript p. 9 6 ) . Accordmgly, havlnq heard no contentlon

or submlssions to the contrary, I shall declde thls

appllcatlon on the assumption	- wlthout decldlng	- that there
1s no such distlnctlon.

In AfSsIrz tl9i311 Q BLN C139 a Full	IjeqerL1	v	Mlnlstl?r	f o r	Immluratlon and Ethnlc
Court or thls court

consldered a declslon of the Trlbunal under S. 12 or the Mlqratlon Act. The court sald "the correctness 01 the

convlctlon and the ralrness of the trlal procedures whlch

resulted in the verdlct of the ~ury are not the concern of

the Trlbunal. They are the concern of the Crlmlnal Appeal

Courts . . . ' I . The court sald that the duty of the Trlbunal

was to "mvestlgate. Inter alla. the tacts concernlng the

appellant's crlmlnal behavlour. not for the purpose of

reviewing the convlctlon but to evaluate hls conduct." Mr.

Cavanough conceded on behalr of the appllcant - correctly. m

my opinion - that the duty to "1nvestlgate" was not a duty to

lnacpendcntly enqulre Into tnose matters but rather a duty to

g lve proper conslderatlon to "whatever matter the appllcant

seeks to put to hlm" in relatlon to thc conduct whlch led to

the conviction.

A slmilar questlon was consldered by a Full Court of

thls court in Mlnlster for Immluratlon and Ethnlc Affalrs v

Danlele (1981) 39 ALR 649. In that case Danes J., at b56.

sald "it 19 not the functlon of the Trlbunal to renew the

proprlety of the relevant conviction. That 1s the functlon

of appellate courts. . . . But that 1 s not to say that, ... It

wlll never be necessary or useful to give detalled

conslderatlon to the clrcumstances of the rlal or t o attempt

to ldentlfy precisely the conduct whlch was accepted by the

"He s u d t h a t t h e k l l l l n q t o o k p l a c e I n t n e

heat o t the msment m d because of p a z t r t u d s

betveen t h e two Iamllles rapparent ly . h l s

'ilrtlm had kllled a p p l l c a n t 3 brother Mevlut

I n N h o f o r p o l l t l c a l r e a s o n s , a n d b e c a u s e

h15 n c t i m was on qood terms wl th the local

~ommisaar. and because he had Inf luence In

th? Communist P a r r y , he sentenced to 10

montrhs mprlsonment . Thls acc3rd iny t o

l p p l l c a n t was n o t l u s t . Hatred developed, lead lnu eo the circumstances or his cr1me.l"

Mr. Cavanouqh has suumitted that the delegatc? paid no

proper regard to that materla1 and relled upon che Tact that

the delegate rild not expressly wfer to It In Part : 1 of his

statement of reasons. It may be sald immediately that a

failure by a decision-maker to expressly refer to partlcular

material in the reasons for	decisicn 1s not sw-rlclent. in
Itself, t o demonstrate that	he failed to have proper regard

to that material - see too he:^ J. in Turner *I Minister for

Immisratlon and Ethnlc Affairs 1.!?81) 35 ALR 388 at 3 5 2 .

In ang ?-rent, thc n!at-?rlal In question is rcrerred to

In the list cjf material upon FJhich the delegate S rlndinus were based; In addition. in his "findings on material questions or fact". the delegate expressly stated (paragraph

2 3 ) that the applicant "outllned the events leadlnq up to hls

conviction, and the reasons for not disclosing It mitlally,

and makes a plea for his future In Australia." 01. course,

the delegate zas not bound to accept as true what the first

applicant had said as to "the events leadlng up to his

conviction" - particularly when viewed against hi3 deception

01 the department. Accordingly, the applicants' submlsslon

on this matter cannot be upheld.

The applicants translation of the court transcript was not consldersd submitted at one stage that he

by the

delegate. It may be added, parenthetically. that in another

submission (dealt with later, it wa3 put that. if the

delqate considered the translatlon or the court transcrlpt,

then he erred in iaGj DV faillng to suppi7 the first appllcant

m t n a copy or the material. 'The trmslaElon 1 s not rererred

to speclflcally bjr the delegate in the statement of reasons

but It formed part of an internal departmental submlsslon

expressly referred CO by the delegate !see Part B, paraqraph

26( 1) ) as part of the materla1 to ;shlch he had "had regard"

in maklng his flndlngs, whlch refers to a "transcrlpt and

Engllsh translatlon". In addition. it appears to have formed part of "the Departmental Case Examlnatlon Report" forwarded

to the Immigration Review Panel. whlch recorded that It had

"read the court transcript". That report vas also before the delegate - see parauraph 26i(p1 - and paragraph 34 of the statement of reasons reterred to "the crlminal convlctlon and

prison sentence for murder". Looklnq .at the statement of

reasons as a -,hole I mfer that the delegate took Into

account, in the exercise of hls power. Doth the appllcant S

statement as to the events surroundmq the crime and the

court transcript - see 'Turner supra.

Counsel for the applicant further submitted that the

delegate failed to take into account three other relevant

conslderatlons, namely, the first appllcant's rehabilltatlon,

the risk of recidlvlsm and the hardship to the flrst

applicant and his family which would flow from refusing

resldent status; he relied on the three cases rercrred to

2 2 .

above dealing Miqratlon Act, namely Re Mitos, Deqerll and Danlele. wlth declslons made under S . 12 of the

As to

rehab1litatlon. In my oplnion the appllcant's "apparent

rehabilltatlon" was a matter expressly reterred to in the

material before the delegate. There 1 s nothing in the

statement o& reasons or In the material to suggest that the

delegate took into account, as a factor adverse to the first

applicant, any danger of recidivism.

This ground must be consldered In the light of what

Deane J. sald in Sean Investments Ptv. Ltd. v MacKcllar

(1981) 30 ALR 363, 375 "This does not, however, mean that a

party affected by a declslon 1 s entltled to make an

exhaustive list ot all the matters which the declsion-maker

mlght conceivably regard as relevant and then attack the

declsion on the ground that a partlcular one ot them was not

speclfically taken lnto account. . . . where relevant

consldcratlons are not speclfied, it is largely for the

declsion-maker, in the llght of matters placed before him by

the partles, to determme whlch matters he regards as

relevant and the comparatlve lmportancc to be accorded to

matters whlch he so regards. The ground o& failure to take

into account a relevant consideratlon wlll only be made good

if It 1 s shown that the decislon-maker has falied to take

into account consideratlon a whlch was, e in the

c~rcumstances, bound to take into account for there to be a

valid exercise ot the power to declde."

It will be noted that that passage refers to "matters

placed before him by the parties" (see also the ~udgment of

the F u l l 1:ourt In Minister for Immiuration and Ethnic Arfalrs

v llY8J, 48 ALX Sh6 at Si31. The first applicant took

the opportunity to put berore the delegate an cxplanatlon of

the circumstances of the offence and of the hardshlp to be

sutfered by himself and hls tamlly should he be required to

leave Australm. I am satlsfled that both of those matters

were taken lnto account by the delegate. The delegate stated

expressly \paragraph 3 2 ) that he:-

married to an Australian cltizen. had a	''... also had regard to the fact that he was
chlld born in Australla from that marrlage,
that the applicant had hls mother and 5
slbllngs in Australia and that h i s wlfe had
her parents and 4 slbllngs in Australla. I
also noted that the appllcant had 2 sibllngs
in Turkey and hls wife had a sibling In Yugoslavla.
The delegate, through lntervlews by departmental

officers, obtalncd applicant's personal situation in Australla. He was much lnformation about the first

invited

to put any additional informatlon which he wlshed to have

considered. In addition, he had provided information for the

Immigration Review before the delegate and referred to by Panel. The report of the Panel was

him; it referred to

the need to consider "the relative merits of the applicant's

apparent rehabilitation combmed with his own and wider

tamily support and the serious conviction agalnst him."

'mere is nothlng to suggest that the delegate failed to take

into account, in reaching his decision, any of those matters,

including the "apparent rehabilitation" of the first

24.

. .

appllcant.	As to thls ground, In my oplnion It has not been
shown that	the delegate falled t o take lnto account any

relevant conslderatlon.

The applicants also

error In taking Into account Irrelevant conslderatlons. The

matters sald to have been wrongly taken lnto account are

submitted that the delegate was In

contained In paragraph 33 of the statement of reasons and

relate to statements by the flrst appllcant’s brother. Prlor

to the first appllcant’s arrival In Australla, hls brother,

who had sponsored the appllcant as B visitor. was lntervlewed

by a departmental officer. The delegate said that the

brother “emphaslsed the applicant’s commitment to Yugoslavia,

that he did not want to stay In Australla, that the appllcant

had a business in Yugoslavia in whlch he was a partner and

that he was responsible tor managlng the famlly propertles

stlll held in Yugoslavla”.

The first applicant deposed, In a affldavit flled In

the court, that, if his brother had “sald those thlngs . . . he

was Inaccurate to a certaln extent In that I was not a

partner but merely an employee In the hairdressmg buslness

and in that the famlly propertles conslsted ot nothrng but a

few small pleces of worthless land for whlch ... I. had no

real responsibility”. However, on the materlal before the

delegate, the appllcant had hlmself made the same statements

as those made by his brother, other than the brother’s

25.

. .

reference to the family propertles. The materlal before the

delegate included a statement, dated 2 2 ,July 1983, that the

flrst appllcant "clalms father is seriously 111 does not want

to stay in Australia as he earns plenty of money here

CYugoslavial is a partner in barber shop".

In considering this ground It is necessary to keep in

mind the distmction between the questlon of whether the

Intormation was an "irrelevant conslderation" and the

question of whether the information was correct. Certaln

items in the material before the delegate contalned

conflicting informatlon. As a Full Court of this court

(Toohey, Morling and Beaumont JJ.) said in Karunakaran v

Minister for Immiqratlon and Ethnlc AtSairs (unreported, 22

February 1985) at p . 15:

"It was open to the Minister to come t o the view that the statements made to him were

correct. I t is not for thls Court o

examine each statement and to reach	its own
conclusion as to its correctness."

It may be added that it was plalnly open to the

delegate to consider the situation which the first applicant

was likely to face upon his return t o Yugoslavia, in the

event ot his application t o r residence being refused,

including the rirst applicant's own statement, in 1983, that

he "is a partner in La3 barber shop". Taking into account all that has been advanced by Mr. Cavanough, I am unable to

uphold the submission that the delegate took into account

irrelevant conslderatlons.

26 .

Another ground advanced by the applicants was that the

delegate exercised hls dlscretlon In accordance wlth a rule

or pollcy without regard to the merlts of the partlcular

case. In Part C of the statement of reasons, the delegate

recorded that "normal pollcy In thls regard 1 s that where an

applicant has been commltted to prlson tor one year or more

the appllcant is refused ... resldent status". But the

delegate also referred (In paragraph 32 In a passage referred

to marrlage to an Bustralla cltlzen. and hls chlld born the applicant's famlly dlsposltion, hls

to earller)

In

Australla and consldered the hardship 111Eely to result ~f he

returned to 'Sugoslavla. The delegate expressly accepted the

existence of "compassionate and humanltarlan clrcumstances

whlch needed to be fully consldered as a factor In the

declslon". In my oplnlon there 1s nothlng In the materlal to

support the contention that the delegate slmply apphed the

pol lcg wlthout regard to the merlts of the case.

Under ground l(d) Mr. Cavanough submltted that the

"exerclse of the power was so unreasonable that no reasonable

person could have so exercised It". He relled on passages In

Prasad v Minlster for Immlsration and Ethnlc Affairs (1985)

65 ALR 549, but it may be noted that Wllcox J. said, at

568-5, "I bear in mlnd the strength of the case requlred

berore it may be said that a decislon 1s legally Invalid on

the ground of unreasonableness..."

2 7 .

Mason J. said in Peko-Wallsend Ltd. (19861	Munster t o r Aborlqinal Affalrs v
5 b ALR 299, at 309-310.

"The llmlted role 01 a court reviewing the

exercise of an admlnlstrative discretlon

must constantly be borne In mmd. It is not the tunction of the court to substltute Its

own decislon for that of the admlnlstrator

by exerclslnq a dlscretlon which the

leqlslaturc has vested In the adminlstrator.

Its role is t o set llmlts on the exerclse of

that discretlon. and a declslon made wlthln

those boundaries cannot be impugned

(Wedncsburv Corporatton Ct13481 1 KB 2 2 3 j at

228) .

It tollows that, In the absence of any

statutory indication of the welqht to be given to various conslderations, It 1s generally tor the declslon-maker and not the

court to determlne the appropriate weight to

be given to the matters whlch are requlred to be taken into account In exerclsmg the

statutory power ... I say "generally"

because both prlnciple and authorlty

Indicate that in some clrcumstances a court may set aside an admlnlstratlve declslon

whlch has ralled to glve adequate welght to

a relevant factor of great importance or has

glven excessive welght to a relevant factor

of no great importance. The preterred

ground on which thls 1s done, however, is

not the fallure to take into account

relevant conslderatlons or the taking into

account of irrelevant conslderatlons, but

the that declslon 1s 'manifestly

unreasonable' . "

It was contended that the delegate Ignored comments

made by departmental offlcers lncludlnq a rcport by the

officer who report, he submltted, favoured the grant last interviewed the first appllcant which

of resldent status

to the first appllcant. The reports were reterred to in the

2 8 .

evldence sectlon of the statement of reasons but not in Part

C , in settmg out "the reasons tor the declslon".

The intervlewing otflcer's report. dated 1 February

1985, contalned the followlng passage "I do not like

recommendlng persons convlcted of murder for Cresldencel In

Australia, but the clrcumstances of hls application would

leave no other reasonable alternatlve, ... Perhaps a long

term (say 12 monthsi" temporary entry permlt "wlth a vlew to

consider after thls tlme would be another option. I tavour processing to continue." The appllcants also sought to rely

upon a report to the Immigration Review Panel, dated 16

January 1986, by another departmental o r f l c e r .

It must be bQrne In mind that the delegate's duty was

to form his own opinlon on the relevant matters and to make a

decision - not to adopt the view, recorded In the flle, of

another officer of the department. Thc materlal in this

case, In my oplnion, falls a long way short of establishing

that the decislon was legally mvalld on the grounds of

unreasonableness. As Wilcox J. sald In Prasad, (supra) at

562, after referring to the reasons for Judgment of Menzles

J. in Parramatta Clty Councll	v Pestell (1972) 128 CLR 305 at
3 2 3 : -

"The distinction made by Menzles J between a

Iustiflable opinion and a sound oplnlon Is,

of course, fundamental to the distinction

between judicial review of an administrative

declslon and renew ni that same declslon

upon its merlts by a body such as the

Administrative Appeals Tribunal."

The appllcants' reference to a partlcular n e w of the materlal by less senlor offlcers. who were not charged wlth the responsiblllty ot maklnq the declslon, appears to me to overlook the distinctlon between a ~ustlf~~ble oplnion by the

delegate, on the one hand. and a sound oplnlon, on the other.

Thc delegate did not act unreasonably In the manner in

which he dealt with the reports of those departmental

offlcers whlch were before hlm: in my opmlon there was no

duty on hlm to set out specitlcally hls reasons for not

aqreelnq with the views of those departmental officers. which

were based on prlmarjr materlal. It may be added that, If thc

news of those orflcers were to be taken lnto account by the

delegate, then it would have been proper Tor hlm to also take

Into account the fact that that materlal was considered

subsequently by two more senior departmental offlcers and by

members or the Immlgratlon Review Panel, all of whom

recommended refusal of the appllcatlon. In my oplnlon It was

not lncumbent on the delegate, In formulatmq h l s reasons for

declsion. to expressly refer t o the oplnlons of all those who

had consldered the case earller. As 1: have already said, hls

duty wm33 to conslder the applicatlon on Its merits and to

make hls own declslon.

IJnder ground 2 Mr. Camnough submitted that "breaches

or the rules ot natural ~ustice occurred In connexion with

the maklncr G r the decislon." He relied on passages in the

]udqmenz3 in v Minlster r o r Immluration and Ethnlc

Affairs 1 1 9 8 5 1 62 ALR 321 of Mason J. at 348-9, Brennan J. at

378 and Ueane J. at 3B3-4 as to the applicatlon of the

prxnciplcs of natural ~u3tice	to decisions under 3. 6A of the
Miaration m.

He contended that the delegate in reaching his

decision had taken into account the court transcript and

translatlon. which materlal was pre~udicial and had not been

put to the first appllcant. That material was obtained from

the department by the applicant S solicltors in July 1986

under the Freedom or Information Act; the department was not

itself in possession or it untll July 1984 and obtained an

English translation in November 1984.

The first and second applicants attended an interview

at the department in April 1484 and a second interview In

January 1985. As to the latter the interviewing orficer

recorded "I asked him speciflcally whether he was ever

convicted and he sald "No - see my police certificate from

Yugoslavln. I then mentioned Idriz Balovski ... He then

began to talk freely and admitted to the convlction." Thc

appllcant went on to give to the interviewing officer his

account of the circumstances surrounding the offence. That '

31.

account has already been set out more fully in these reasons,

in dealing with the applicants' contentlon, under ground

lta)(l), that the delegate had falled to take lnto account

"the circumstances	in	which	the	alleged	offence	was
committed".

On 4 October 1985 the applicant was advlsed of the

refusal of hls application tor resldence: In that letter it

was explamed that "Information on file shows that you do not

meet this [character] requirement as you were convlcted of a

serious crime applicant sought review of this decision by the Immigration in Yugoslavla." On 8 October 1965 the

Review Panel. He wrote "I respectfully deslre to place the

following facts before the Review Committee for consideration

... The ser'lous crime you refer to in the letter Cot 4/10/853

refers to a charge which Involved the killlng of another

person by me in Yugoslavia ... the complete circumstances

are as follows. "

In my opinion, the first applicant was afforded an

opportunity of responding to the significant fact, namely,

that he had been "convictcd of a serious crlme in

Yugoslavia". He took full advantage of the opportunity by

settlng out ln considerable detail his account of "the

complete clrcumstances relating to that serious crime". The

applicant sccks to Impugn thc decislon on the ground that he

was not provided with a copy of the court transcrlpt and

3 2 .

translation. As Brcnnan J. said In U, at 3 7 9 , "the court

must place itself in the shoes of the reposltory of thc power

to detcrmlne whether thc procedure adopted was reasonable and

falr". Applymg that dlctum I am qulte unable to accept that

procedural falrness required the delegate to provide the first applicant wlth a copy of that materlal.

The applicants also submitted that the delegate

breached the rules ot natural ~ustice in falllng to put

before the flrst applicant statements made to the department

by his brother whlch were part of the material to whlch the

delegate had "had regard" in considering whether a refusal of

"the application tor resident status would pose such a

hardship as to be unreasonable".

The brother S statements have been quoted earlier in dealing with the contentlon that the delegate took Into

account irrelevant considerations. It 1s there pointed out

that the first applicant had himself made the same statements

as those made by his brother, other than the brother's

rererence to family properties.

In m (supra) Mason J. said, at 348:-

"The grant o r an entry permit 1s a matter of

discretion. In the ordinary course of

granting or refusing entry permlts there is

no occasion tor the principles of natural

lustice to be called into play. The

applicant is entitled to support hls

3 3 .

appllcatlon by such lnformation and materlal

as he thlnks approprlate and he cannot

complain ~f the authorities relcct hls

appllcatlon because they do not accept,

wlthout further notlce to hlm, what hc puts

forward. But l t , In fact, the

decision-maker Intends relect to the

appllcation reference bY some to

consideratlon personal to the appllcant on

the basis ot mformatlon obtalned from

another source which has not been dealt wlth

by the applicant In hls appllcation there

may be	a case for saying that procedural
talrness	requlres that he be qlven an

opportunlty or rcspondlng to the matter

HK ( A n Infant, C14671 2 QB 61/)."

At 379 Brennan J. referred to an allegation "which was

damaging to the prospects of Mr and Mrs Kioa belng allowed to

stay in Australia" and, at 380, referred to:-

"an opportunlty to deal with relevant

matters adverse to hls interests whlch the

repository of the power proposes to take

into account In declding upon Its exercise

... the ordinary case where no problem of

confidentialltg arises. opportunlty an

should be given to deal with adverse

lnformation that is credible. relevant and

slgnlflcant to the declslon to be made."

In my opinion the prlnclples enunciated by the High

Court In did not requlre the delegate. as a matter of

procedural fairness. to give the flrst applicant an

opportunlty to respond to the statements made by the brother.

The only statement whlch had not been made by the first

applicant himself was the reference to hlm as being

"responslble for mansglng the famlly propertles still held In

Yugoslavia".

34.

In my oplnlon it 13 clear that the only use made of

that statement by the delegate - and thc only use that In my

oplnlon could have been made of It - was ln conslderlng

whether a refusal of the appllcatlon "would pose such a

hardship as to be unreasonable". As to that matter the

delegate already had statements by both the flrst applicant

and his brother that the flrst appllcant "had a buslness in

Yugoslavia In whlch he was a partner". Those statements were

doubtless relevant to the question of whether the flrst

applicant would suffer flnanclal hardship ~f he were to

return to Yugoslavla. As to that questlon It may be added

that he has not suggested, either to the department or In h13

affldavit, that he would suffer financlal hardshlp by reason

of inabllltg to earn a living In Yugoslavla.

In my oplnion, when the brother S statement 1s viewed

in that context, procedural fairness did not requlre that the

first appllcant be glven an opportunity to respond to the

statements by his brother.

Lastly, the applicants, In ground 3 , contended that

the "declslon otherwlse Involved errors of law". Mr.

Cavanough submitted that thc Immlqration Revlew Panel asked itself the wrong question and that the delcgatc In aqreclng

wlth the Panel's recommendation had erred slmllarly.

However, the delegate did not simply adopt the flndlnqs of

the Panel without himself conslderlng the merits of the case.

. " ' 35.

r d *

It is clear from Part C of the statement of rcasons that the

delegate considered the merits of the case in the Llght of

the policy and arrived at an independcnt decision.

Accordlngly there was no error of Lax.

Mr. Cavanough submitted further that the delegate

failed to have regard to the distmction to be drawn between

applicants for resident status whose applications are

considered under ss. 6Acl)tal and (b) and those whose

appllcations are considered under s s . 6A(1), (c), (d) and (e)

of the Miqration Act. He relied on '&g v Minister for

Immicrration and Ethnlc Affairs (1986) 67 &R 1 7 7 , and specifically on passages from the judgment of Davles J. at 182-4, as support for his submission that "a preference, a special attitude has to be taken to persons who are the

spouses of Australian citizens." In my oplnion there is no

principle stated in T s which runs counter to the delegate S

declsion - particularly when reference 1 s made t o the

importance attached by the delegate to the first applicant's

crlminal conviction and his deception.

The application is dismissed and the applicants are

ordered to pay to the respondent their costs of the

application.

Dates of Hearing	:	18. 30 September 1986
Counsel t o r the Applicant	:	Mr. A. Cavanough
Solicitors. for the Applicant	:	Galr & Brahe
Counsel f o r the Respondent	:	Mr. T. J. North
Solicitors f o r the Respondent	:	Australlan Government Solicitor

.. .