Depa, P. v Senator Robert Ray, Minister for Immigration, Local Government & Ethinc Affair
[1988] FCA 809
•13 DECEMBER 1988
Re: PAWELL DEPA
And: SENATOR ROBERT RAY MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS AND THE COMMONWEALTH OF AUSTRALIA
No. VG 413 of 1988
Immigration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.(1)
CATCHWORDS
Immigration - whether undertaking by Department to allow voluntary departure - expectation on part of applicant - whether failure to have regard to relevant considerations - irrelevant considerations
Migration Act 1958 s. 6A(1)(e)
Minister for Aboriginal Affairs v Peko Wallsend Ltd. (1986) 162 CLR 24
Borkovic v Minister for Immigration and Ethnic Affairs (1981) 39 ALR 186
HEARING
MELBOURNE
#DATE 13:12:1988
Solicitor for Applicant: Erskine H. Rodan
Counsel for Applicant: Mr D Whitchurch
Solicitor for Respondents: Australian Government Solicitor
Counsel for Respondents: Mr M Heaton
ORDER
The application be dismissed.
The applicant pay to the respondents their costs of the proceedings.
(Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.)
JUDGE1
The voluminous material that was before the delegate, has been placed before the court, together with a number of affidavits and exhibits. That material has been examined by the applicant's counsel in detail and at great length - more than 7 hours - in support of his submissions. The application for review contained what were nominally ten grounds, and 17 particulars - but counsel has relied principally upon three submissions.
The first submission was that the respondent Minister's department had entered into an agreement with the applicant, or alternatively had given an undertaking to him. It was put that that agreement or undertaking had given the applicant a reasonable expectation that he would be given a reasonable time in which to apply to the appropriate authority in New Zealand for a visa and a work permit, and that, on obtaining such visa and permit, he would be allowed to leave Australia voluntarily i.e. he would not be deported.
Having considered overnight the material and what counsel has said on that aspect, I am satisfied on the evidence that there was no breach of any agreement or undertaking. It may be added that there was no affidavit sworn by the applicant setting out what his expectations were or, if he had such an expectation, the matters which led him to have such an expectation. Faced with that difficulty the applicant's counsel asked the court to infer that the applicant had such an expectation. The first submission fails.
The second submission was that the applicant's case had not been fairly considered by the delegate; it was said that this had occurred by reason of a deterioration in the relationship between Messrs. J. & S. Shatin & Bernstein, the solicitors previously representing the applicant on the one hand, and the respondent Minister's department on the other. That deterioration was said to be due to offensive comments made in a number of passages in letters written by those solicitors. On my examination of the material I am quite unable to conclude that the delegate failed to fairly consider the applicant's case. There is nothing to suggest that the contents of those letters from the previous solicitors caused him to be unfair to the applicant. Nor is there any substance, in my opinion, in an associated contention, namely, that, because the delegate in his reasons had not referred to certain correspondence including those letters, he had failed to have regard to relevant considerations. If, contrary to that opinion, the delegate was under a duty to have regard to the contents of those letters, in my opinion, in the light of the material as a whole, those matters were "so insignificant that the failure to take (them) into account could not have materially affected the decision" per Mason J. in Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24 at 40. In forming that opinion I have taken into account the passage cited by the applicant's counsel from the judgment of Ryan J. in Chan v The Minister (unreported - delivered 8 December 1988). Accordingly the second submission fails.
A related submission was that the delegate had had regard to an irrelevant consideration in saying that the applicant "refused to co-operate with the interviewing officer" (paragraph 34 of his statement of reasons). I reject that submission because, in my opinion, there was evidence upon which the delegate was quite entitled to make that finding of fact.
I also reject a related submission that the delegate had failed to have regard to a relevant consideration, namely, that the applicant had been advised by his former solicitors to act in a way prejudicial to his own interests, by answering "no comment" to questions put to him in an interview.
Assuming, without deciding, that such a contention would otherwise be open to an applicant, that submission faces several difficulties: (1) the absence of any evidence by the applicant that he received such advice and acted on it; (2) the only evidence on that aspect is the affidavit of Mr. Kunz, sworn yesterday, which, it may be added, is only hearsay evidence of what the applicant said to him in August 1988; (3) that hearsay evidence does not even assert that the applicant told Mr. Kunz that he wished to answer the questions asked by the interviewing officer but did not do so because of the advice given to him by his former solicitors; (4) Mr. Kunz's affidavit, sworn yesterday, states that, after he saw the applicant's previous solicitor on 15 August 1988, he spoke to the applicant about his interview with the solicitor; yet, there is no suggestion that the applicant either then, or at any later time, told the departmental officers that he would answer the questions previously asked by the interviewing officer; (5) in any event, neither Mr. Kunz's affidavit, sworn yesterday, nor any other material to the same effect, was included in the material before the delegate. That submission also must fail.
The third submission was that the delegate had failed to consider a relevant consideration, namely, that there were "strong compassionate or humanitarian grounds for the grant of an entry permit to (the applicant)" - s. 6A(1)(e) of the Migration Act. However, that sub-section was expressly referred to by the delegate in his statement of reasons -
see, for example, paragraphs 50, 60 and 66.In paragraph 50 he referred to matters advanced by the applicant's solicitors, relevant to s. 6A(1)(e). In paragraph 60 he expressed the opinion "that the applicant's main concern and reasons for travel were economic". The delegate's conclusion was "that the applicant did not demonstrate that there were strong compassionate or humanitarian grounds for the grant of Resident Status under section 6A(1)(e) of the Migration Act 1958" (paragraph 66).
The applicant's counsel has spent considerable time, yesterday, in referring to the material that was before the delegate as to matters which, it was contended, had occurred and were likely to occur in Poland. However, these matters were expressly referred to by the delegate in his statement of reasons. For example, in paragraph 61 he said:-
"I noted and gave weight to the fact that the applicant's wife and family continue to reside in Poland. Although both the applicant and his wife claimed that they had been subjected to harassment and discrimination, no substantive evidence was provided by the applicant to indicate that he had experienced or would experience persecution or discrimination should he return to Poland."
This court has made it clear that its role in considering applications such as this does not include a consideration of whether the delegate reached the correct conclusion on matters of fact. The legislation gives the Minister and his delegate both the power and the duty to decide those matters.
In the present case the delegate has decided those factual matters against the applicant. It is not for this court to express a view as to whether it would have reached the same conclusion on that material. As Fox J. said in Borkovic v Minister for Immigration and Ethnic Affairs (1981) 39 ALR 186 at 188:-
"It is plain that under the Act in question this court does not have power to make a decision on the merits of the factual position for itself. It is plain that it is not invited or empowered under the Act to consider the facts for itself for the purpose of forming and declaring its own view thereon. Of course, in order to apply some of the provisions of the Act it is necessary to examine the facts quite closely, but this is not for the purpose of the court arriving at its own decision; rather is it to see whether the case comes within one of the specific provisions of the relevant sections of the Act."
As to each of the matters relied upon by the applicant's counsel, the delegate, in his statement of reasons, stated that those matters which had been placed before him were in fact considered by him - see, for example, paragraphs 5, 6, 11, 12, 14, 24, 28, 32, 33, 36, 51, 52, 54, 57 and 61 of his statement of reasons. The delegate expressly referred (in paragraphs 28 and 46) to the affidavit by the wife of the applicant, sworn 11 July 1988, to which considerable reference was made by the applicant's counsel yesterday. However, for the reasons given earlier, it was for the delegate to decide as to all factual matters and as to what statements he accepted for the purpose of his decision. The third ground has not been made out.
The application must be dismissed.
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