Dodson, A.G. v Minister for Immigration, Local Government & Ethnic Affairs

[1991] FCA 589

Re: ALAN GREGORY DODSON
And: MINISTER FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WA G124 of 1990
FED No. 589
Administrative Law - Immigration
(1991) 31 FCR 451
(1992) 108 ALR 542

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Administrative Law - judicial review - immigration - refusal of grant of resident status - considerations personal to applicant - compassionate grounds - restrictive test - misunderstanding of statutory provisions - fettering of discretion - decision-maker's inferences - natural justice - relevant and irrelevant considerations - statement of reasons - findings of fact - undesirability of merely reviewing file under this head.

Immigration - grant of resident status - Business Immigration Programme - applicant authorised to work - threshold conditions for grant of entry permit satisfied - scope of discretion - compassionate grounds - whether only strong compassionate grounds to be considered - misapplication of statutory provision - fettering of discretion - natural justice - relevant and irrelevant considerations - reasonableness.

Migration Act 1958 s.6, s.6A

Migration Legislation Amendment Act 1989 s.64

Administrative Decisions (Judicial Review) Act 1977 s.13

Damouni v Minister for Immigration (1989) 87 ALR 97

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24

Vilarinov v Minister for Immigration (1989) 19 ALD 117

Abu Othman v Minister for Immigration Local Government and Ethnic Affairs (unrep Fed Ct 26/9/91; French J.)

HEARING

PERTH

#DATE 26:9:1991

Mr A.G. Dodson appeared on his own behalf.

Counsel for the Respondent: Miss. I. Petersen

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The respondent's decision of 13 September 1990 is set aside.

The applicant's application for grant of resident status be referred to the respondent for further consideration according to law.

Each party to bear his own costs.

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

JUDGE1

Alan Dodson and his family came to Australia to settle in June 1988 under the Business Migration Programme which is intended to attract successful business people whose capital and skills may be of benefit to this country. Upon his arrival in Perth he was refused permanent entry pending investigation of the failure of a travel business with which he was associated in England. After a long and convoluted process of consideration, decision, litigation and reconsideration by officials of the Department of Immigration Local Government and Ethnic Affairs, a decision was made on 13 September 1990 refusing to grant him and his family resident status. He has sought review of that decision on a number of grounds which appear below.

Factual Background

1. On 1 June 1988 Alan Gregory Dodson, his wife, Yvonne, and their three young children arrived in Australia from the United Kingdom. All are citizens of the United Kingdom. It was not the first time that Mr Dodson and members of his family had travelled to Australia where his mother, brother and sisters all live, but the previous occasions had been for temporary visits. In June 1988 they were coming to settle here. Mr Dodson, who had considerable experience in the travel and tourism industries, had applied in England for permission to migrate to Australia under the Business Migration Programme. That application was approved through the Australian Consulate in Manchester in or about April 1988. Also approved for migration to Australia under the programme at that time was his friend and business associate, Graham Markham.

2. Under the Business Migration Programme, resident status could be granted to business people in order to attract to Australia expertise and capital by ventures which would benefit this country through the creation or retention of jobs, the introduction of new or improved technology, the stimulation of export trade and the replacement of imports. Departmental policy which is expressed in a manual, Grant of Resident Status No. 13, requires an applicant for resident status under the programme to have a successful business background and equity and to demonstrate sufficient skills to ensure the viability of his or her proposed enterprise.

3. At para.2.4.11 of the manual it is said that:
   

"In detail, applicants should:

. have a successful business background . evidence their assets

. evidence their business skills and technical knowledge

. indicate their business intentions . evidence the financial capacity to invest in an intended enterprise

. be in a financial position to be able to make the intended enterprise viable . demonstrate permanent settlement intentions."

1. On 20 May 1988, Mr Dodson's passport was endorsed at the Australian Consulate at Manchester with resident visas for himself and his family. There was, however, a cloud on the horizon. He and Mr Markham had, prior to their departure from the United Kingdom, been directors of a travel company called Jetwing Holidays Ltd which had collapsed with an overall deficiency said to be in the region of 2,250,000 pounds. This was not known to the Consulate at Manchester until shortly before Mr Dodson and his family left England. Although Mr Dodson's involvement as a director of the company was mentioned in his original application under the Business Migration Programme, no detail was provided of its collapse and he was not asked for further information relating to it. On 24 May 1988 the managing director of a company called Travel and General Insurance Co. PLC wrote to the "Duty Officer Emigration Department" (sic) at Australia House in London with reference to Messrs. Dodson and Markham. He said in the letter that he understood them to be in the process of emigrating to Perth and that they were "due to leave the United Kingdom within the next few days". The letter went on in the following terms:
   

"Messrs. Dodson and Markham were directors of Jetwing Holidays Limited and our company, Travel and General suffered substantial losses under a Bond we had issued on behalf of the company when Jetwing Holidays Limited ceased trading last year.

I have been in correspondence with the Official Receiver in Bankruptcy who is investigating the affairs of the company. I understand that he has been advised by Mr Markham that he and Mr Dodson will be emigrating before the Official Receiver has completed his investigation. The Examiner has asked Mr Markham to confirm that he has advised the Australian authorities that he and Mr Dodson are subject to this investigation but, the Examiner advises me that he is not authorised to contact you directly in such a matter. I am therefore writing to you to advise you of the present situation."

1. According to Mr Dodson, and it is not in dispute, he departed from the United Kingdom on 27 May. Two days before, on 25 May, the Australian Consular Office at Manchester had sent a cable to the Department of Immigration and Ethnic Affairs in Perth advising that after Mr Markham's departure and immediately preceding Mr Dodson's, advice had been received that closure of their joint travel company in the United Kingdom was subject to investigation by the Official Receiver. The cable went on:
   

"We are advised this might lead to charges being laid. In addition and subsequent to our telecon, information received from firm of solicitors concerning court orders brought down 24/5 against both Markham and Dodson concerning non-payment of professional fees to Peat Marwick and McClintock.

These developments introduce doubts as to the business backgrounds of these BMP Applicants, and after discussion with R.D., London, it has been agreed that they should not repeat not be granted residence upon arrival. Suggest TEP 6 months to allow adequate time for investigations to be completed by Official Receiver. Unable to advise Dodson of our decision prior to departure. Grateful your advice of action taken upon arrival."

1. When the Dodson family arrived in Perth on 1 June 1988 they were granted temporary entry permits only which were valid for a stay of six months. This was in accordance with the suggestion contained in the cable from Manchester. There was no condition preventing Mr Dodson or his wife from working during their stay. Pending departmental consideration of their long term status, they were granted further temporary entry permits. A process of inquiry by the Department and representation by the Dodsons at administrative and political levels followed. It was long and convoluted and it is unnecessary here to do more than set out salient features of that history which culminated in these proceedings.

2. On 6 June 1988, Messrs. Markham and Dodson wrote to the Department stating that during their business careers in England, spanning some 22 to 25 years for 17 of which they had worked together, they had operated several successful companies specialising in various aspects of the travel industry. They stated their intention to develop a similar type of organisation in Australia. In reference to Jetwing Holidays Limited, they said:
   

"Unfortunately our last company, Jetwing Holidays Limited, only traded for just over 2 years and due extreme competition and predatory trading by our competitors, we appointed our own liquidators in July 1987. The unbearable amount of pre-payments which are now common-place in the UK Tour Operation Industry, linked with forced discounting, led to us appointing the Receiver and ensured that we acted in the most honourable and courteous manner possible."

They went on to say that in December 1987 the company receiver had passed all documents over to the Official Receiver in Bankruptcy and that "various interviews during December and January occurred to clarify all points queries". No further notification was received until mid-May when they departed for Australia. They had previously mentioned the possibility of such a move to the Official Receiver's representative and wrote on two separate occasions to keep him informed. The letter went on to express surprise and concern at the events which occurred upon their arrival at Perth airport.

1. On 9 June 1988, Messrs. Dodson and Markham met with an officer of the Department, Mr Graham Jackson, and handed him their letter of 6 June. On the same day, and following that meeting, they prepared and delivered what they described as "a further and more detailed explanation of the situation concerning the notification you have received from your Manchester UK office". In that joint letter they explained that they had set up Jetwing Holidays Ltd in April 1985 and had brought in two new shareholders as working directors of the company in September of that year. They said they had made a profit of over 350,000 pounds for the year ended April 1986 and a further 150,000 pound profit on management accounts up to October 1986. During the winter of 1986/87, however, a slump in the travel industry occurred with falling prices which reduced cashflow and profits. They attempted, initially unsuccessfully, to raise venture capital. In April 1987 they arranged an injection of 200,000 pounds from a company called Owners Abroad Plc in consideration of an option over 26% of the company's shares. But, according to their letter, May and June 1987 were the worst months in the history of the UK travel industry and although they obtained various promises of further support during that period, none was forthcoming. Subsequently they voluntarily arranged for the appointment of receivers whom the company's bankers also appointed as receivers under a debenture. From August to November 1987 they were in constant touch with the receivers to answer all queries. In early December they were advised the company's files and the receivers' findings had been passed to the Official Receiver in Bankruptcy "for final liquidation". In late December 1987 and early January 1988 they, along with other directors and members of the senior management, were requested to attend interviews with the Official Receiver. Dodson and Markham attended three such interviews. There was no further communication until March 1988 when they received "a one paragraph note" stating that the receiver would be in touch again soon. In early April 1988, they wrote explaining that they had lodged applications to migrate to Australia. And that letter, they said, was delivered to the Official Receiver's office by hand by Mrs Markham. There was no response and in mid-May they wrote finally to explain they were departing within a few days and would be in touch from Australia in case there were any other queries to answer.

2. In relation to the alleged non-payment of professional fees to Peat Marwick and McClintock, these, they said, were fees claimed for the preparation of personal tax returns. They maintained, however, that the firm had been engaged to provide accounting and auditing services to Jetwing and had agreed as part of the services for which they were to be paid by the company, to prepare personal tax returns for Dodson and Markham. Five months after the returns had been completed they received separate invoices for the work. The account was disputed and a 20% reduction offered. A counter offer was made, but proceedings issued in March 1988. Shortly before they left the United Kingdom the accountants allegedly made application for and obtained a court order requiring payment into court of moneys sufficient to cover any judgment. They paid into court accordingly. The amount in issue so far as Dodson was concerned, appears to have been in the vicinity of 650 pounds. The outcome of the proceedings does not appear from the evidence.By their letter, Markham and Dodson asked that the matter of their permanent residence in Australia be resolved as soon as possible.

3. The next event that appears from the departmental papers, is a letter dated 8 February 1989 from the Australian Consulate in Manchester to the State Director of the Department of Immigration Local Government and Ethnic Affairs in Western Australia, enclosing a letter recently received from the Official Receiver. The consular letter stated:
   

"We are aware of the considerable pressures being placed upon you to resolve the status of Messrs. Dodson and Markham; however, the Official Receiver's statement concerning a deficiency of 2.2 M by a company of which these two men were directors, coupled with the fact that they propose to open a similar business in Australia should perhaps give ground for a considered decision."

On 11 May 1989 the State Director of the Department wrote to Mr Dodson saying, inter alia:

"The information now held indicates that you did not meet the requirements of the Business Migration Programme at the time of your application and visa issue. If this information had been known at that time your application would have been refused. It has therefore been decided that further entry permits will not be granted to you and your families on the basis of your application for migrant entry under the Business Migration Programme. You are requested to depart Australia within 90 days of the date of this letter and to present evidence of your departure within 60 days of the date of this letter."

1. On 11 August 1989, a company called Artsem Pty Ltd, which carried on the business of business migration consultants and had been acting on behalf of Markham and Dodson, wrote to the Director of the Department of Immigration and Ethnic Affairs stating that its clients then accepted the situation that there was no point in trying to alter the decision of the Department regarding the Business Migration Programme application. Messrs. Markham and Dodson, it was said, also accepted that they must leave the country but asked that there be an extension of their final departure dates to enable them to finalise schooling for their children, arrange packing and flights back to the United Kingdom. In addition, as Mr Dodson's mother was then undergoing medical tests, it was asked that the extension be for a sufficient period to enable her tests to be completed.

2. Subsequently, however, Mr Dodson became aware that it was possible to make a fresh application for grant of resident status in Australia on strong compassionate or humanitarian grounds. He did so on 24 August 1989. That application disclosed that his mother, two sisters and a brother are all resident in Western Australia, and that he was then employed as a product development manager with a firm called Security Travel and had been so employed since June 1988. Factors relied upon in support of the application included the following:
   

1. That if he had to return to the United Kingdom Mr Dodson would no longer be able to work in the travel industry "due to the huge mega operators now controlling the market". He would therefore not have the opportunity of seeing his brothers, sisters or mother which would personally cause him great pain and hardship.

2. His wife and family would suffer both physical and mental hardship at the thought of returning to England. His children are close to their grandparents and aunts and uncles and would feel "great anguish that they would have to return to England and not be able to see them again".

3. Mrs Dodson has become close to Mr Dodson's mother and has assisted her with transport probleMs

4. The possibility of the Dodsons' return to England was causing "a great deal of worry" to his brothers, sisters and mother and stepfather.

5. It would be totally impractical and financial suicide to return to England and reapply. The family had already incurred tens of thousands of dollars in resettlement fees, shipping and travel costs. The thought of having to return to the United Kingdom with a rapidly reducing capital would mean a dramatic lowering of their standard of living. This would also affect the possibility of them ever being able to develop their own business which was the original intention.

6. Mr Dodson's mother had been undergoing medical tests for some months and the worry of their problems with respect to residency was not helping the situation. His departure would not only serious prejudice her health, but also weigh heavily on his children's minds for many years to come.

In a covering letter which accompanied the application, Mr Dodson said that his family had integrated extremely well into Australian society. He believed that there were unusual circumstances surrounding their application for migration under the Business Migration Programme and that these had caused a considerable amount of misfortune and suffering in his own personal life and that of his wife and three children since their arrival in Australia. He went on:

"The unusual circumstances arose because inadvertently and in ignorance of the requirements at the Manchester office in my actual application I did not specifically advise that the company in which I had previously worked with Mr Markham had been placed in receivership - it was the first time we had seen the form M47 and there was no question relating to any connection with a business which had failed. In addition, it was most unusual as we were not asked to provide any background company details which would have brought all the above information to light."

And further in the same letter:

"I can only apologise for the original error in not mentioning our previous company but can assure you this was not done deliberately as you can imagine there would have been no way we would have taken such action if we had believed it would have jeopardised our chances of remaining in Australia."

The application for grant of resident status was accompanied by a number of letters of support from people within Australia. Among those was the Chairman of the Western Australian Tourism Commission, who said that Mr Dodson had been known to him since shortly after his arrival in Perth. He referred to his employment with Security Travel Pty Ltd's inbound tour operation known as Auswide/Sportsworld Holidays. He said that Mr Dodson's professionalism applied in the development of programmes and the handling of tour groups had been of a consistently high standard. He concluded his letter by observing that:

"The skills and experience of people such as Mr Dodson are a valuable asset to the Tourism industry of Western Australia."

Mr W.A. Eastman, the Manager Sport Projects for EventsCorp Australia, a division of the Western Australian Development Corporation, also wrote that he had had regular business dealings with Security Travel and in particular, with Mr Dodson. He observed that:

"At all times, Alan presents an extremely professional approach to his work. His knowledge of inbound tourism is complete with specific skills in handling special interest and sporting groups. His expertise in this area is not readily available elsewhere in the local industry."

The Managing Director of Security Travel, Mr Underdown, who was also then President of the Australian Federation of Travel Agents, supported the application stating that Mr Dodson had been instrumental in his company securing several lucrative contracts for large sporting groups to visit Western Australia. He had, it was said, an excellent knowledge of the European tourism industry which had been invaluable in the company's dealings with the Western Australian Tourism Commission and EventsCorp. Mr Underdown went on:

"His expertise in our industry is very much needed and I would like to add my support to his application and would recommend him as a very hard working and creative tourism professional, vital in our task to develop more inbound tourism into Western Australia."

1. The next event of significance on the departmental file appears to have been the receipt by the State Director of the Department on 15 December 1989 of a letter dated 23 November 1989 from a Senior Migration Officer at the Australian Consulate in Manchester. The officer reported that he had contacted the Official Receiver's office which had been investigating "Jetwing Travel" and had been informed that they would not pursue the matter further. The letter went on:
   

"They told me that this does not mean that they have "cleared" Messrs. Dodson and Markham; their decision to cease the investigation was based largely on the fact that as Messrs. Dodson and Markham are no longer in the UK, and as they are unlikely to return here, any result coming from the investigation would be hypothetical. The OR's office has already expended considerable resources on their investigation, and they have decided to "cut their losses". They will not be seeking an order of the Court to have Messrs. Dodson and Markham declared unfit to hold company directorships in the UK as even this action is regarded as "too expensive" given that the declaration is only valid in the UK and, therefore, unenforceable."

The officer, a Mr Frew, went on to report that the final word from the Official Receiver was that if Messrs. Dodson and Markham ever returned to the UK, the Official Receiver might take up the investigation (sensible time limits permitting). The Civil Aviation Authority which had previously advised interested parties that it would take action to prevent them from holding licences to operate as travel agents in the UK was also "going cold". Mr Frew reported that they saw little point in that action as Messrs. Dodson and Markham would not be returning to the UK. The only interested party, he said, who was prepared to commit itself to paper was Travel and General Insurance Co. His letter concluded by saying:

"My instinct is that all "offended" parties in the UK will expend no further resources on Messrs. Dodson and Markham for the obvious reason that they do not see the need - as someone told me, they're our problem now. I don't believe that there is anything else we can do by way of providing information relevant to the decision on their application for GORS. If any of the interested parties had voiced their concerns prior to our issuing Messrs. Dodson and Markham with migrant visas, I doubt that their applications would have been approved."

On 22 January 1990, a departmental officer, Mr Mark Jones, prepared a submission to the Officer in Charge of the Residence Section, in which he concluded that Mr Dodson had not demonstrated sufficiently strong compassionate or humanitarian grounds for the grant of resident status under sub-s.6A(1)(e) of the Migration Act and did not meet policy requirements for the grant of resident status under sub-s.6A(1)(d). It is unnecessary for present purposes to canvass the content of that submission beyond noting that the officer in charge of the residence section endorsed upon it his note that he agreed that resident status should not be granted to Mr Dodson and family. They were so advised by a letter prepared by Mr Jones and dated 30 January 1990. The letter contended that there was no right of review of the decision and that as Mr Dodson's temporary entry permit had expired he must make immediate departure arrangements. He was further directed that if he were currently employed he was to cease work immediately.

1. Further representations were made by a letter dated 8 February 1990 from Mr Underdown of Security Travel to the Office of the Hon. Clyde Holding MHR. On 23 February 1990, Steven Yu, McCann and Associates Pty Ltd, Business Management Consultants, made a submission to the Department. An extension of the specified departure date was sought in writing on 14 March 1990 and refused on 15 March.

2. On 16 March 1990, proceedings were instituted in this Court in application number WA G19 of 1990 seeking an extension of time to make application for an order of review of the decisions of 11 May 1989 and 30 January 1990 refusing the grant of resident status. An application for review was filed at the same time. Programming directions were made on 19 March 1990 and the matter adjourned for hearing on 12 April. However, by a consent order made on 10 April the hearing was adjourned indefinitely and the application listed for directions only on 1 June 1990. That was further adjourned by consent on 1 June 1990 to allow reconsideration of the question whether an entry permit should be granted. It appears that at or about this time the Minister's delegate decided to revoke the decision of 30 January 1990 and consider the matter afresh. On 13 September 1990, a delegate of the Minister made a new decision refusing the grant of resident status to Mr Dodson. The application in WG 19 of 1990 became moot and following a motion filed by the Minister on 8 February 1991 it was dismissed. The Minister was ordered to pay Mr Dodson's costs, less the costs of the motion for dismissal.

3. In the meantime, on 6 November 1990, an application for an extension of time to apply for an order of review of the decision of 13 September 1990 was filed. The extension of time was granted by Lee J. on 28 November 1990.

4. The substantive application came on for hearing on 3 May 1991. Although it had been instituted through solicitors, they had ceased to act, and Mr Dodson represented himself at the hearing. He relied upon an affidavit sworn on 1 May 1991 and a bundle of documents separately tendered as Exhibit 1 which had been exhibited to an earlier affidavit of 22 April 1990. The earlier affidavit was not in evidence. A copy of statement of reasons for the decision prepared by the delegate, Ms Nelly Siegmund, Officer in Charge of the Resident Status Section of the Department, was received as Exhibit 2 and a copy of Volume 2 of the Integrated Departmental Instruction Manual relating to Grant of Resident Status as Exhibit 3. Mr Dodson's affidavit, which he had evidently prepared himself, contained much material by way of background, some of which might have been appropriate in a case of review of the decision on its merits. It also included what amounted to arguments or submissions that he wished to advance. The limits of the judicial review process were explained to him, but I decided after some discussion with the parties that the affidavit should be admitted subject to relevance to avoid lengthy debate over what parts of it were or were not admissible. In the event, the affidavit and documentary material tendered by Mr Dodson has very little part to play in this case which largely turns upon a consideration of the process of reasoning which led to the decision under review. In the circumstances, it is not necessary to refer to the substantial volume of material which he relied upon. Before turning to the delegate's reasons for decision, it is desirable to set out the relevant statutory provisions.
   Statutory Framework

5. It is common ground that the relevant provisions of the Migration Act 1958 were ss.6 and 6A as they stood prior to the 1989 amendments. Their application to the decision of 13 September 1990 being preserved by s.64 of the Migration Legislation Amendment Act 1989. Section 6 provided in the relevant parts:
   

"6(1) A non-citizen who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited non-citizen.

(2) An officer may, in accordance with this section and at the request or with the consent of a non-citizen, grant to the non-citizen an entry permit.

(3) An entry permit shall be in a form approved by the Minister and shall be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both." Paragraphs 6(4) to 6(8) are not material for present purposes.

Section 6A provided:

"6A(1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say- . . .

(d) he is the holder of a temporary entry permit which is in force, is authorized to work in Australia and is not a prescribed non-citizen; or

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

.

.

(7) For the purposes of sub-section (1), a person who is the holder of a temporary entry permit granted after 28 October 1979 shall be taken to be authorized to work in Australia-

(a) if that temporary entry permit was not granted subject to any condition imposing restrictions with respect to the work that may be performed by him in Australia; .

.

.

(8) In this section, a reference to an entry permit shall be read as a reference to an entry permit other than a temporary entry permit."

The Reasons for Decision

1. By her statement of reasons, the delegate outlined the history of the case from the time that the Dodson's arrived in Australia in 1988 (paras. 1 to 20). In addition to that history she referred to a lengthy and detailed submission given to the Department on 16 May 1990 by solicitors then acting for Messrs. Dodson and Markham (para.21). The following points from that submission were summarised:
   

1. That Messrs. Dodson and Markham met Business Migration Programme requirements or the majority of those requirements.

2. Their employers supported and would nominate them and provide contracts of employment.

3. There were strong compassionate grounds for the grant of an entry permit and the individual merits of the case would warrant approval.

4. That they were held in "high regard by their employers" and as "citizens in their social activities".

5. They placed no demand on welfare or public sector expenditure.

6. Their employers were unable to locate suitably qualified Australian citizens or residents to "take up the job in question".

7. That the failure of the company Jetwing was the "only reversal in the applicants' business careers" and that no criminal charges were to be laid nor any application to be made with respect to their holding company directorships in the United Kingdom and that there was ample testimony to their honesty and character.

8. That they were currently achieving the objectives of the Business Migration Programme and the Employer Nomination Scheme.

9. That their families are settled in Western Australia and that Mr Dodson has had the opportunity of cementing relationships with his relatives here.

Reference was also made in para. 22 to a letter from Mr Greg Underdown, Managing Director of Security Travel, dated 5 July 1990 in which he stated:

1. That he withdrew support for any application for residency for Mr Dodson.

2. That Mr Dodson and Mr Markham had originally approached him at Security Travel to form a joint company to develop tourism programmes into the State of Western Australia and supporting programmes worldwide and that despite "various proposals and numerous discussions they were never prepared to commit their own monies to the joint venture".

3. That Mr Dodson was dismissed from the company which had purchased Security Travel after discovery of a discrepancy in Security Travel cash. The matter had been referred to the CIB in Perth, however, no charges were laid "after Mr Dodson made full restitution of the moneys involved".

1. A further submission from Mr Dodson's solicitors on 9 August 1990 stated that he was then currently employed by Sundowners Travel Centre Pty Ltd and was in the process of finalising an agreement to form a new inbound operation into Perth. The submission also contended that whilst in the employ of Security Travel, Mr Dodson was "owed in excess of $7,000 in back pay and that he had been asked to leave the company for not having processed ticket moneys for five theatre tickets comprising $175 as quickly as possible". These outstanding monies were said to have been later processed through the new owners of Security Travel. Mr Dodson also instructed that he had not at any time been approached by the CIB in relation to Security Travel (para.23).

2. The history of events set out in paras.1 to 23 of the statement of reasons appeared under the heading "Findings on Material Questions of Fact". In large part it was a summary of various communications which appeared on the departmental file. The heading "Evidence or Other Material on Which Findings are Based" was used to described the various letters, communications and submissions summarised in the history.

3. Under the heading "Reasons for My Decision", the delegate began by observing that Mr Dodson would not qualify for the grant of a permit under s.6A(1)(a), (b) or (c) of the Migration Act 1958 (para.25). At the time he had made application for a permit, however, he was the holder of a temporary entry permit in force under which he was authorised to work. She accepted therefore that it was open to her to grant a temporary entry permit under Reg.131 if she considered that he apparently met the requirements for the grant of permanent residence (para.26). This amounted to a determination that the condition for the grant of an entry permit prescribed by para.6A(1)(d) had been satisfied. The delegate then moved to consider the exercise of the discretion to grant an entry permit. She mistakenly characterised this process as "assessing Mr Dodson under sub-section 6A(1)(d)", but I accept that her misidentification of the statutory provision under which that discretion arose did not affect its exercise (para.29). She identified the relevant policy requirements and procedures as those of the Business Migration Programme and referred to the objectives mentioned in the manual (para.27). Time limits prescribed by the policy requiring approval of an initial stay of 12 months were not to be applied against Mr Dodson (para.28). She directed herself, in accordance with the policy, to take account of the requirements that Mr Dodson must have a successful business background and demonstrate that he had assets, business skills, technical knowledge, "business intentions", and the financial capacity to invest in an intended enterprise. She also adverted to the requirement that he be in a position to transfer sufficient funds to make the intended enterprise viable and that he could demonstrate permanent and realistic settlement plans (para.29). She found in Mr Dodson's favour that he had provided evidence of assets and the necessary financial capacity, that he planned permanent settlement, had realistic settlement plans and sufficient resources to cover the costs of settlement. Further, he had the ability to transfer sufficient funds to make his intended enterprise viable (para.30).

4. Adversely to Mr Dodson, the delegate found that he "would not be assessed as possessing a successful business background and that this (had) in turn affected his ability to evidence business skills and business knowledge" (para.32). She considered his years of experience in the travel industry and "his claims that his businesses had been successful with the exception of Jetwing". The facts that Jetwing experienced difficulties over a two year period, that those difficulties involved substantial sums of money and that Mr Dodson was closely involved in its operation and financial affairs were canvassed (para.33). She appears to have proceeded in this part of her reasons on the basis that even if it were to be assumed that Mr Dodson had been successful in business from 1967 to 1985, the failure of Jetwing prevented him from being characterised as a successful businessman for the purposes of the policy.

5. The delegate also found that "the inability of Mr Dodson and Mr Markham to avert Jetwing's liquidation must reflect on their ability as managers and business people". This finding was coupled to a general proposition which she expressed thus:
   

"Any business failure must in part reflect upon the business acumen of the owners/directors and their potential to conduct businesses in the future." (para.37)

In the context of her reasons this imported an inference that the failure of Jetwing indicated a deficiency of some degree in Mr Dodson's management and business skills. But the very sketchy evidence of the failure did not support that inference. To so say is not to criticise the weight she gave to it in assessing business success. It was a relevant factor and its weight was a matter for her. But its inferential effect is another matter. It could not be used in the absence of any other material to support a finding that Mr Dodson lacked business ability. The failure of a major business may well give rise to suspicion about the abilities of its owners or managers. And it could be said that in such a case it would be for an applicant under the Business Migration Programme to dispel that suspicion. But the delegate did not proceed on that basis. It is noteworthy that in her summary of the lengthy (56 page) submission received from Mr Dodson's former solicitors on 16 May 1990, she made no reference to the contention that the Jetwing failure was due to adverse economic circumstances and that it was "only one of a vast number of tourist agencies affected in dire times". The submission identified major reverses suffered by other travel agents and tour operators in the United Kingdom in the mid to late 1980's. A list of businesses which had "collapsed or disappeared" was annexed to it, together with the names of some 49 members of the relevant industry association who had ceased trading in 1987. The absence of any reference to these matters in her reasons suggests that the delegate considered the failure of the Jetwing business sufficient to support her adverse inference and did not direct her attention to explanations consistent with Mr Dodson being a person possessed of managerial and business ability.

1. The delegate also mentioned Mr Dodson's omission to disclose the Jetwing failure in the application for Business Programme Migration submitted to the Manchester Consulate. Her findings stop short of a determination that there was any deliberate deception of the Consular's officers concerned (see paras.34 and 36). Nevertheless, she concluded that the Jetwing experience should not have been omitted from the otherwise detailed submission at the Consulate (para.36). She decided that the recency of the Jetwing failure, the amount of money lost and Mr Dodson's direct involvement "must override" the consideration that it was his first business failure (para.38).

2. The delegate then turned to the question whether Mr Dodson's continued presence in Australia could be assessed as having a clear benefit to this country (para.39). She adverted to his employment history since arrival and the letters of support for his application. She indicated also that she was aware that Mr Underdown of Security Travel, had withdrawn support for Mr Dodson on 5 July 1990. She summarised the allegations contained in his letter and also "took into account" Mr Dodson's responses to those claims (para.42). How, and to what effect, those matters were taken into account is not apparent from the reasons. The delegate made no express finding about them. While the statement of reasons provided under s.13 of the Administrative Decisions (Judicial Review) Act 1977 is not expected to be written with curial precision, assertions by a decision-maker that he or she has "considered" or "taken into account" evidence is of little utility as an indication of the reasons for a decision or conclusion if it is not clear whether the evidence was accepted or rejected or whether any finding was made as a result of it.

3. The delegate then moved on to consider whether Mr Dodson could be granted an entry permit under the Skilled Category (Employer Nomination Scheme) which she described as a "component of section 6A(1)(d)". This characterisation again mistook the provision of the Act which was under consideration but, as before, I do not regard it as a matter which would vitiate the exercise of her discretion. In that context she addressed the question whether, in accordance with the requirements of the Scheme, there was documentary evidence of labour market testing (para.45). She concluded that there was not (para.46) and also that Mr Dodson's occupation could not be classified for the purposes of that policy as highly skilled (paras.47-48). On these findings he would not meet the requirements "under the Employer Nomination component of assessment under sub-section 6A(1)(d)" (sic).

4. The delegate then specifically considered the claim for grant of resident status based on strong compassionate or humanitarian grounds. In so far as Mr Dodson's claim in this regard was designed to demonstrate that he satisfied the condition under s.6A(1)(e) of the Act, her separate consideration of these grounds as threshold issues was unnecessary. Mr Dodson, as she had found, already satisfied the condition under s.6A(1)(d). At this point, however, the conceptual confusion between determination of threshold criteria under s.6A and the exercise of discretion under s.6 becomes important. It is reflected in para.50 of the reasons where it was said:
   

"Both policy and law require that strong compassionate circumstances exist for the grant of resident status."

So far as that purports to be a statement of the law, it is not correct. Strong compassionate or humanitarian grounds are required to satisfy the threshold condition under sub-s.6A(1)(e) of the Act. But if, as in this case, one of the alternative conditions imposed by s.6A is satisfied, then the range of compassionate grounds which may be taken into account by a decision-maker in the exercise of the discretion under s.6 is not limited to those necessary to meet the requirements of s.6A(1)(e). The scope of the expression "strong compassionate or humanitarian grounds" was discussed in Damouni v Minister for Immigration (1989) 87 ALR 97 at 102-103. The delegate's misconception in this case may have been critical to the decision she ultimately made. For after reviewing the substantial economic and emotional impact on the Dodson family of a forced return to the United Kingdom, she concluded:

"...I accept the existence of compassionate factors as claimed by the applicants, however, I have decided that these factors are not sufficiently significant to warrant their assessment as strong compassionate grounds for the grant of resident status." (para.59)

1. To the independent observer, it might seem that, applying the criteria in Damouni, there was an arguable case for the existence of "strong compassionate grounds". However, within the bounds of reasonableness, that is an evaluative judgment dependent upon the weight given to various factors by the delegate. But where the delegate has misconceived the provision under which her discretion arose and, in the result, as in this case, fettered her discretion by a more stringent rule than the Act demands, then there is an error of law and the decision is reviewable.

2. This issue was not raised on the application as filed. But, having regard to the fact that Mr Dodson was representing himself, I considered it appropriate that it be raised with counsel for the respondent in the course of argument. Indeed, she accepted that although not formulated on his application, the question of compassionate grounds was central to much of what Mr Dodson was putting in argument. Given that the matter had arisen in the course of argument, I invited counsel to make a supplementary written submission on that point should she wish to do so. The invitation was accepted and a written submission was filed in the week following the hearing. Before returning to that issue, which is decisive in this case, it is appropriate to refer to the grounds of the application as filed.
   Ground of the Application

3. By his application, as filed, Mr Dodson complained of breaches of natural justice in connection with the making of the decision. In ground 1(a) it was alleged that the delegate took into account evidence adverse to him which "should have been excluded because it was improper and/or inadequate to support any conclusion". The evidence referred to was the statement contained in the letter received by the Department from the Manchester Consulate on 15 December 1989 where it was said that the Official Receiver in England had decided to cease his investigation largely because Messrs. Dodson and Markham were no longer resident in the United Kingdom. Also complained of under this ground, were the associated statements attributed to the Official Receiver that the cessation of the investigation did not mean that Mr Dodson had been cleared and that it might be taken up again should he return to the United Kingdom.

4. Ground 1(a) was not really a natural justice point at all, but a contention about the adequacy of certain evidence taken into account by the delegate. The letter from the Manchester Consulate was referred to at para.13 of the reasons. It appeared in the section entitled "Findings on Material Questions of Fact", most of which, as already remarked, appeared to be a review of the principal contents of the departmental file. In the section headed "Reasons for My Decision" it was not mentioned. Beyond the reference at para.13, there is nothing to suggest that the letter played a part in the delegate's reasoning process. In so concluding, I do not wish to be taken as endorsing what appears to be a common form approach to statements of reasons which includes, under the heading "Findings on Material Questions of Fact, a review of the contents of the departmental file sometimes regardless of their role in the decision-making process. But it would be unrealistic to expect of decision-makers that their statements be expressed with the precision required in judicial proceedings. The Court must look to the substance rather than the form of the reasons provided. In my opinion ground 1(a) is not made out.

5. Ground 1(b) set up a failure to give Mr Dodson an opportunity to test, comment upon and/or contradict the evidence referred to in ground 1(a) and the further allegations that:
   

(i) Most of the information given by Dodson and Markham to Travel and General Insurance Co. concerning Jetwing could, at best, be described as unreliable.

(ii) Dodson and Markham had been involved in operating another company prior to Jetwing which had produced substantial losses.

(iii) Travel and General Insurance Co. would not be prepared to have any further dealings with Mr Dodson.

The reference to the complaint from Travel and General Insurance was contained in para.13 of the reasons. It formed part of the background referred to, but was not reflected in the reasons expressly relied upon by the delegate to support her decision. In addition, the substance of the statement attributed to the Official Receiver was referred to and made the subject of comment in the submission of 16 May 1990 from Mr Dodson's former solicitors (at p 42). So too, was the letter from Travel and General Insurance (at p 51). Given the limited role that it played in the delegate's consideration and the fact that Mr Dodson was conscious of and did comment upon these matters through his solicitors, there was, in this respect, no procedural unfairness that would constitute a breach of natural justice.

1. By ground 2 it was contended that the making of the decision was an improper exercise of power because irrelevant considerations were taken into account and relevant considerations overlooked. The irrelevant considerations referred to were the statements attributed to the Official Receiver in the letter received from the Manchester Consulate on 15 December 1989. But as already indicated, these matters do not appear to have played any direct role in the substantive decision-making process. The other matter of irrelevant fact referred to was the delegate's observation that it was reasonable to conclude that the Jetwing experience should not have been omitted from Mr Dodson's original application to migrate to Australia. That observation, which appears at para.36 of the statement of reasons, does not in terms led anywhere in the delegate's decision-making process. It is a comment which she was entitled to make and to some extent it may have coloured her assessment of Mr Dodson's candour. It cannot be dismissed as irrelevant. On the other hand when the reasons are read as a whole, it does not appear to have played a significant part in the outcome. This part of ground 2 therefore fails.

2. Ground 2(b) lists a number of relevant considerations which, it was said, were not taken into account. In substance, they are as follows:
   

(ii) That prior to his departure from the United Kingdom Mr Dodson had been informed by the Department that his application to migrate to Australia had been granted.

(ii) That he had acted to his considerable detriment in reliance upon that information.

(iii) That in making the application to migrate to Australia, he had truthfully answered all questions addressed to him and provided all relevant information required of him.

Applying the principles enunciated in the judgment of Mason J. in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-42, there is, in my opinion, no case of reviewable error here disclosed except to the extent that the "considerable detriment" suffered by Mr Dodson in migrating to Australia had a bearing on the consideration of compassionate grounds to which reference will be made later in these reasons.

1. Ground 2(c) contended that the exercise of her power by the delegate was so unreasonable that no reasonable person could have so exercised it. The first element of this ground relies upon the delegate's assessment that Mr Dodson could not be regarded as possessing a successful business background because of the failure of Jetwing. I am satisfied in that regard that the evaluative policy judgment made was open to the delegate. But the further inference drawn in her reasons that Mr Dodson lacked business skills, is another matter to which further consideration will be given below. The other grounds upon which the decision was said to be unreasonable, relate to inferences drawn by the delegate about the state of the local labour market in relation to Mr Dodson's occupation and skills. These matters did not, in my opinion, disclose any reviewable error.
   CONCLUSIONS

2. At the end of the day notwithstanding the failure of the grounds raised on the application, there are two areas in which, in my opinion, the delegate erred in a way that attracts the jurisdiction of this Court under the Administrative Decisions (Judicial Review) Act 1977. The first and most significant of these, is the restrictive approach taken to the consideration of compassionate grounds favouring the grant of resident status. The delegate, because of a legally erroneous confusion between the functions of ss.6 and 6A of the Act, adopted a high threshold test effectively excluding all but "strong compassionate grounds" from consideration in determining whether to make the grant of resident status. In so doing, she was in error and the error may well have affected her decision. In my opinion, she was entitled, in the exercise of the discretion under s.6, to take into account compassionate grounds and weigh them in the balance with other relevant factors. I should emphasise that to so conclude is not to find that she was bound to take them into account as relevant factors. I would add, however, that in my opinion, where the impact of the refusal of resident status on the individual applicant and members of his family are as serious as in this case, it is difficult to imagine that the legislature would not have intended that they be taken into account as factors, albeit that their weight would be a matter for the decision-maker - see e.g. Vilarinov v Minister for Immigration (1989) 19 ALD 117.

3. The other important feature of the case arises out of the finding that Jetwing's failure reflected upon Mr Dodson's business ability. That was a conclusion which did not bear a rational relationship to the material upon which the delegate acted. Lacking any logical connection with that material or findings that she could have made from it, it was at least an irrelevant consideration which should have played no part in the decision. Further, it was a consideration which cannot be excluded as of merely peripheral importance. In this regard I apply, without repeating, the analysis in Abu Othman v Minister for Immigration Local Government and Ethnic Affairs (unrep Fed Ct 26/9/91; French J.) at pp 22-24.

4. In the circumstances I propose to set aside the decision under review and remit it to the respondent for reconsideration according to law. Whether or not a similar decision will emerge from that reconsideration, is a matter for the respondent. But for what it is worth, I hope that it does not. This saga has gone on long enough. The compassionate considerations which can properly be taken into account by the respondent weigh substantially in favour of the Dodson family. Further, despite concerns properly generated by Jetwing's failure, there are positive indications that Mr Dodson may possess a level of expertise and drive in an export related area that could be of benefit to this country. That view is supported by the determination with which, in the conduct of these and earlier proceedings, he has sought to remain in Australia. As I have said, however, these considerations are peculiarly within the province of the Minister and his officers who have the responsibility for the administration and enforcement of the provisions of the Migration Act 1958.

5. I should add that on the matter of costs it seems to me that having regard to the fact that the decision has been set aside on grounds which were not raised specifically in the application, I should make no order as to costs.