Detsongjarus, N. v Minister for Immigration Local Government & Ethnic Affairs

[1990] FCA 519

Re: NUCHAPOHN DETSONGJARUS
AND: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS and JANET
PATRICIA BROOKS
No. G64 of 1990
FED No. 519
Administrative Law - Immigration
21 ALD 139

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)

CATCHWORDS

Administrative Law - judicial review - decision to refuse application for resident status - whether decision unreasonable - when and on what grounds factual errors may be reviewed - natural justice - what material decision-maker must consider in application for entry permit.

Immigration - de facto marraige alleged - whether "some basis" to reject permanence of relationship.

Administrative Decisions (Judicial Review) Act 1977 s.5(1), (2) and (3)

Migration Act 1958 s.6A

Migration Legislation Amendment Act 1989 s.6(4)

HEARING

BRISBANE

#DATE 19:9:1990

Counsel for the applicant: Mr L. Boccabella

Solicitors for the applicant: Devereaux and Associates

Counsel for the respondent: Ms C.E. Holmes

Solicitors for the respondent: Australian Government Solicitor

ORDER

The application be dismissed.

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

JUDGE1

This is an application under the Administrative Decisions (Judicial Review) Act 1977 (the "Judicial Review Act") to review a decision made on 20 April 1990 refusing an application made to the first respondent under s.6A of the Migration Act 1958 ("the Act"). That section was repealed by s.6(1) of the Migration Legislation Amendment Act 1989 (which came into force on 19 December 1989) but by virtue of sub-s.4 of that provision, the application to the first respondent is governed by the repealed section; that application was made on 17 November 1989.

1. Section 6A of the Act, so far as relevant, reads as follows:
   "(1) An entry permit shall not be granted
   

to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say-

...

(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him."

1. The applicant made an application to the first respondent for "grant of resident status in Australia" and that was treated as an application under s.6A of the Act. When the application was made, the applicant had no temporary entry permit and on the face of s.6A(1)(e), one of the conditions of grant of an entry permit was not fulfilled. However, the applicant was treated as seeking the grant of a temporary entry permit (under s.7(2) of the Act) and then the grant of an entry permit under s.6A: see Kioa v. West (1985) 159 CLR 550 at 561, 565 and 582.

2. The application to the first respondent was based on "the ground of a de facto marriage relationship with a resident of Australia", namely one Socka Bou. It was rejected mainly because the second respondent, as decision - maker, was not satisfied about the permanence of the relationship and also because of breaches by the applicant of migration laws.

3. The applicant claims in this Court, under the Judicial Review Act, that the second respondent's decision was unreasonable in a number of respects, that natural justice was denied and for other subsidiary reasons. The principal ground of the application to this Court was that a number of the findings made by the second respondent leading towards the ultimate conclusion as to the character of the de facto relationship were unreasonable or illogical.

4. Ms Holmes, who appeared for the respondents, contended that the ground of unreasonableness mentioned in s.5(2)(g) of the Judicial Review Act applies only to the ultimate decision, not to any steps along the way towards that decision.

5. Suppose a power is exercised on the basis of an ultimate finding of fact (A) which is in turn based upon other findings of fact (X, Y and Z). That is the situation here; on the basis of a number of views as to the facts, the second respondent arrived at an adverse conclusion as to the solidity of the de facto relationship. Largely because of that factual conclusion, the power given by s.6A was exercised adversely to the applicant. Ms Holmes' point is that, if one reads the expression of the ground of unreasonable exercise of power in s.5(2)(g) of the Act, it is plain that the ground applies to the exercise of power itself, not to the ultimate finding of fact (A), still less to any of the findings on which that is based (X, Y or Z). Sometimes the exercise of power may be, or incorporate, a finding of fact, but that is not so here.

6. However, while Ms Holmes' submission is plainly correct, it has become clear that the ground of unreasonableness can be used in attacking factual views of the decision-maker leading up to the exercise of power which is the subject of the application to the Court. The way in which this result has been achieved is explained in the reasons of the Chief Justice in Australian Broadcasting Tribunal v. Bond (1990) 64 ALJR 462. Apart from providing (by a combination of s.5(1)(e) with s.5(2)(g)) for a review of decisions on the ground of unreasonableness, the Judicial Review Act permits them to be reviewed on the ground of error of law and this brings in unreasonableness by another door: see s.5(1)(f) and (j).

7. However, it may be that only ultimate factual conclusions, arrived at by inference from findings of primary fact, can be attacked for unreasonableness - i.e. finding (A), and not those on which it is based (X, Y and Z).

8. In Bond's case, Mason C.J. said:
   

"So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place". (477)

1. I have treated "not reasonably open" as equivalent to "unreasonable".

2. His Honour also said:
   

"... a finding of fact will then be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts, which amounts to the same thing". (479)

1. The law as laid down in this judgment is consistent with the approach of McHugh J. in Chan Yee Kin v. Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412. That also concerned an application for entry permit under s.6A of the Act, the relevant provision being so framed that the question was whether the applicant was "owing to a well founded fear of being persecuted for reasons of ... political opinion ... outside the country of his nationality...". The impugned decision was based upon a number of findings mentioned in the judgment of McHugh J. (443). His Honour set out the issues arising in the case in the form of questions, of which the last may be taken as an example:
   

"Did the delegate act unreasonably in finding that there was no well-founded fear of persecution because the appellant's original preference, if deported, was to go back to China?".

1. It should be noted that here the test of unreasonableness is being applied, not to the ultimate decision as a whole, but to a factual element in the reasoning. McHugh J. also expressed himself, elsewhere in his judgment, in terms which suggest that the test of unreasonableness may be applied to factual views leading to the decision under review. His Honour said:
   

"Notwithstanding the time which has elapsed since his escape, it would be unreasonable to hold that there was no real chance that he would again be exiled or detained if he returned to China ... Important parts of the reasons of the delegate in paras 9 and 10 were therefore in error and cannot be supported on any reasonable basis". (452)

1. In Chan's case, the Chief Justice agreed with the reasons of McHugh J., subject to some comments which do not appear to me to detract from those remarks of McHugh J. which are relevant to the test of unreasonableness.

2. It is necessary to add that there is a third area of law, also discussed in Bond's case, relevant to the question of attacking administrative decisions as based on incorrect views of fact; s.5(1)(h) read with s.5(3) of the Judicial Review Act has to be considered. Bond's case (pp 477, 478) and some earlier authority show that the provisions just mentioned are not exhaustive of the subject of the review on factual grounds. To summarise, factual errors may be relied on as being or producing an unreasonable exercise of power (s.5(2)(g)), secondly, as giving rise to an error of law (s.5(1)(f) or (j)) and thirdly, on the statutory "no evidence" ground in s.5(1)(h); these three bases overlap.

3. The result is that the applicant may challenge factual inferences, and in particular the adverse inference as to the state of the de facto relationship, as being not reasonably open - or, more simply - unreasonable. Bond's case and others show that a strong case indeed is necessary to upset factual views on such a ground.

4. According to the application lodged with the Department for grant of resident status, the applicant arrived in Australia from Thailand (her place of birth) on 25 October 1988. The statement of reasons of the second respondent says she arrived on 25 December 1988, but that seems to be an error. The applicant received an entry permit valid for a stay of four months only (i.e. until 25 February 1989) but stayed on. The basis for the application for resident status was, to put it in old-fashioned terms, that the applicant had fallen in love with Socka Bou and he with her; she asked to be allowed to stay because of this and because she and Socka Bou were living together as man and wife.

5. It is unnecessary to set out the statement of reasons, signed by the second respondent on 13 June 1990, in full. According to Mr. Boccabella's argument, the second respondent's conclusion relies on a number of alleged discrepancies in the material placed before her, that conclusion being that "the couple had not presented sufficient evidence of their joint commitment to the relationship". The discrepancies were:
   1. Socka Bou said at interview that the
   

couple met on the first day the applicant arrived in Australia but statutory

declarations lodged with the applicant said they met in November 1988.

2. The applicant stated at interview that she

did not lodge an application previously because she did not think the relationship would last long.

3. The applicant stated at interview that she

had enough money to buy a ticket to depart from Australia, but Mr. Bou said that he would have to pay for the ticket.

1. In addition, the second respondent said that elements normally found in a legal marital relationship seemed to be lacking, apart from a joint bank account.

2. Mr. Boccabella made various criticisms of these views. As to that numbered 1, he described the discrepancy as to date of meeting as "not such a significant matter" and complained of the decision-maker's not having referred to demeanour or any other factor justifying the decision. As to the second, Mr. Boccabella said that the remark about not thinking the relationship would last long did not mean that, at the time when the application was before the second respondent, the applicant was pessimistic about her future with Mr Bou. As to the third point, Mr Boccabella suggested that there was a "rational explanation" for the discrepancy, namely that the applicant could have got the money to buy the ticket from Socka Bou.

3. How is this sort of application properly to be assessed by a decision-maker? Even as to personal friends of the decision-maker-people she knew well - it might not be so easy to predict how long a relationship would last, even a married one. When there is added, to the inherent problem of divining the depth of attachment between two strangers, that (as I assume) there were cultural differences to be contended with, it can be seen that the conclusion could never attain the certainty of the sorts of findings courts are more commonly called on to make. Of the three points listed above, only one, namely the reference to the applicant's not thinking the relationship would last long, should have had any significant weight. But that point, in itself, it seems to me, is enough to put the conclusion beyond challenge on the ground of unreasonableness. To refer again to the remarks of the Chief Justice in Bond's case, there was "some basis for an inference-in other words, the particular inference is reasonably open". It is true that the second respondent might possibly have construed the remark about the likely length of the relationship in a way which was more favourable to the applicant, but its natural meaning was such as to make it a rational consideration against the grant of the application. In response to a query as to why no entry permit application was lodged previously, the applicant said, among other things, according to the interviewer, "We were living together, I didn't think it would last long". This may conceivably have referred only to the time when the entry permit, which was in fact granted, ran out (February 1989). But to put that limited meaning on it seems unreasonably restrictive.

4. More generally, it does not appear to me to be enough, when a number of factual matters taken together are treated by a decision-maker as tending against an applicant, to show that each of them can be argued to have an opposite or neutral tendency.

5. It is my opinion that the ground of unreasonableness (that the factual views taken were not reasonably open) is not made out.

6. Mr Boccabella also advanced a further contention. He argued, on the basis of the decisions, in Prasad v. Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 and Kioa v. West (1985) 159 CLR 550, that the second respondent should not, without further inquiry or reference to the applicant, have made the findings of fact against her on which rejection of the application was based. Reference was also made to the remarks of the Chief Justice in Chan v. Minister (1989) 87 ALR 412; these cases were reviewed by the Full Court in Luu v. Renevier (1989) 91 ALR 39 at 45 and at 49 and 50.

7. The central point of these cases is that a decision-maker does not necessarily accord, to an applicant for an entry permit, that degree of fairness to which the latter is entitled by considering only the material produced by the applicant. The authorities appear to me to support the following general propositions.

8. Firstly, the decision-maker is not obliged to make the applicant's case. Secondly, the decision-maker ordinarily may decide the application on the basis of such information and material as the applicant puts forward. Thirdly, the decision-maker may sometimes be obliged to make further inquiries where a proposed ground of objection is information obtained from a source other than the applicant, which information has not been dealt with by the applicant. Next, further information may have to be sought where the decision-maker knows that there is available other factual material likely to be of critical importance in relation to a central issue for determination.

9. These last two points are, however, merely examples of the general proposition.

10. Here, the application showed evidence of care in preparation. It was sent in under cover of a letter signed by a Community Welfare Worker on the letterhead of South Brisbane Community Legal Service Inc. Apart from the forms provided by the Department, duly completed, the applicant included other material, namely three well prepared statutory declarations each witnessed by a solicitor, as well as a photostat copy of the cover of a savings passbook. Mr Boccabella said that the Department's forms did not provide for or encourage the supplementing of answers to questions in them by additional information; but there is nothing in that, for the applicant was plainly aware that she was entitled to supply further material and she did so.

11. It is true that, as must almost invariably be the case, the decision-maker must have been aware that making further inquiries would bring more details to her knowledge and perhaps alter the interpretation of some of what was already supplied. But Mr Boccabella was unable to point to any obvious gap in the materials supplied or any additional source of information which the decision-maker must have been able to see would have been likely to provide a basis for a substantially more confident conclusion. It is repetitive to say so, but it seems clear on the authorities that, prima facie, the second respondent was entitled to decide the application on what the applicant chose to place before her.

12. To add strength to this line of argument, Mr Boccabella called evidence illustrating the sort of information which the decision-maker could have obtained had she sought more information. I do not propose to review that evidence comprehensively; nothing of a critical kind emerged.

13. Indeed, on one important aspect of the decision-maker's reasons, it appears that further inquiries would have hurt and not helped the applicant's case. The second respondent relied in her reasons on the absence of "elements normally found in a legal marital relationship"; she excepted the "joint bank account to which I have given little weight". Had the question of the joint bank account been further investigated, it is my opinion that the applicant's case for an entry permit would have seemed, not stronger, but less strong. It seems odd that the applicant, or those advising her, chose to include only the outside cover of the relevant passbook with the application. The evidence made it clear that the joint bank account was opened simply to strengthen the case for an entry permit. Mr Bou continued to have his own bank account, into which his own separate income was paid. The parties' evidence dealing with the content of the joint bank account differed markedly; the passbook itself was not tendered, so that one could not ascertain which of Mr Bou or the applicant was to be accepted on that point.

14. It is necessary to deal with one other matter. In a memorandum (Exhibit 3) dated 20 April 1990, the second respondent said:
    

"There is little evidence on file supporting long term cohabitation. Neither has any evidence of de facto spouse's PR been submitted".

1. It appears to me that it would have been a legal error for the second respondent to have decided the application adversely to the applicant on the ground of lack of evidence of Mr Bou's status. The application described Mr Bou as an Australian citizen and it seems to me odd that the memorandum to which I have referred mentions a deficiency as to evidence of "PR", which presumably means permanent residence. However, Mr Bou is described in the statement of reasons as an Australian citizen and it seems unlikely that the decision was made against the applicant on the basis that Mr Bou was not an Australian citizen.

2. I have come to the conclusion that the points relied on by the applicant's counsel must fail and the application is dismissed.