Eskaya v Minister for Immigration, Local Government and Ethnic Affairs

Re: MUSTAFA ESKAYA
And: THE MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND
ETHNIC AFFAIRS
No. WAG 137 of 1988
FED No. 389
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Administrative Law - application to review refusal to grant further entry permit - whether special authorization of delegate required for decision by delegate under s.6A Migration Act - applicant in Australia pursuant to temporary entry permit - application for further entry permit on strong compassionate or humanitarian grounds - refusal based on policy in disharmony with s.6A - whether delegate should have applied policy rather than the relevant provisions of the Act - reconsideration by Immigration Review Panel - whether recommendation of Panel a 'decision' for ADJR Act purposes - whether delegate's decision on Panel recommendation a refusal to grant permit or refusal to reconsider - inference to be drawn from information surrounding delegate's decision - no disavowal of flawed reasoning in submission by Departmental officer.

Administrative Decisions (Judicial Review) Act 1977, paras.5(1)(e) and 5(2)(f); ss.13, 16 and 67

Australian Citizenship Act 1948

Migration Act 1958, ss.5 and 6; sub-ss.6(2) and 6(5); paras.6A(1)(a) and 6A(1)(e); sub-ss.6A(2) and 6A(3); para.6A(3)(b); sub-s.7(1); s.11B

Migration Amendment Act 1988

Ansett Transport Industries (Operations) Pty. Ltd. v. Commonwealth of Australia (1977) 139 CLR 54

Bannister v. See (1982) 72 FLR 313

Dhillon v. Minister for Immigration, Local Government and Ethnic

Affairs (1989) ACLD 306

Re Drake v. Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALR 634

Hindi v. Minister for Immigration and Ethnic Affairs, Unreported (Federal Court of Australia, Sheppard J., 30 September 1988)

Khan v. Minister for Immigration and Ethnic Affairs, Unreported (Federal Court of Australia, Gummow J., 11 December 1987)

Kioa v. West (1985) 159 CLR 150

McPhee v. Minister for Immigration and Ethnic Affairs, Unreported (Federal Court of Australia, Lee J., 23 August 1988)

Merman v. Cockburn Cement (1989) 84 ALR 521

Minister for Immigration and Ethnic Affairs v. Akbas (1985) 7 FCR 363

Perry v. Director of Public Prosecutions (1985) 6 FCR 578

Public Service Board of New South Wales v. Osmond (1986) 159 CLR 656

Tang v. Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177

HEARING

PERTH

#DATE 21:7:1989

Counsel for the Applicant: Mr B.F. Stokes

Solicitors for the Applicant: Messrs B.F. Stokes & Associates

Counsel for the Respondent: Mr P. Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The decision of the respondent's delegate made on 22 July 1988 refusing the applicant's application for the grant of an entry permit be set aside.

The applicant's application for the grant of an entry permit be returned to the respondent for reconsideration by him, or his authorized officer, according to law.

By consent, the respondent pay 75% of the applicant's costs of the application to be taxed.

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 "ADJR Act") for an order to review the several decisions of two delegates of the respondent refusing to grant to the applicant an entry permit under sub-s.6(2) of the Migration Act 1958 ("the Act").

Sub-section 6(2) of the Act provides that an authorized officer may grant an entry permit. The word "authorized" was inserted in the sub-section by the Migration Amendment Act 1988. An authorized officer, in relation to the exercise of any power or the discharge of any duty or function under the Act, is defined in s.5 as "a person authorized by the Minister to exercise that power or discharge that duty or function". The exercise of such a power is in the discretion of the authorized officer alone and the officer may not be directed how to exercise that discretion. (See Ansett Transport Industries (Operations) Pty. Limited v. Commonwealth of Australia (1977) 139 CLR 54 per Mason J. at pp 82-83.)
Under s.6 of the Act the grant of an entry permit to a non-citizen after the non-citizen has entered Australia is, by sub-s.6(5), made subject to the provisions of s.6A.
With regard to a person who has been granted territorial asylum in Australia by an instrument under the hand of a Minister and, therefore, is eligible for the grant of an entry permit under para.6A(1)(a), sub-s.6A(2) excludes the grant of such a permit from the powers exercisable by an authorized officer and reserves that power for the Minister alone by providing that such an entry permit shall not be granted otherwise than by the Minister.
Sub-section 6A(3) provides that an entry permit shall not be granted to a non-citizen after his entry into Australia otherwise than by:

a) the Minister; or

b) an officer authorized by the Minister by instrument in writing to be an authorized officer for the purposes of s.6A.

It appears that sub-s.6A(3) requires a further specific written authorization to be provided for the purposes of s.6A of the Act.

The limiting nature of sub-ss.6A(2) and 6A(3) and the requirement for specific authorization under para.6A(3)(b) may permit an argument that the Act intends the permits to which s.6A applies to be granted by the Minister personally or by an officer specifically authorized to so act and that an officer receiving a delegation of powers from the Minister, under s.66D of the Act, whether general or otherwise, may not be competent to exercise the power. I note, however, that in Kioa v. West (1985) 159 CLR 550 at p 561, Gibbs C.J. appeared to accept that a delegate of the Minister could exercise a Minister's powers under sub-s.6A(3).
It may be noted that in several other provisions the Act uses more express words to indicate an intent that the Minister exercise certain powers personally. (See sub-s.7(1) and s.11B; Dhillon v. Minister for Immigration, Local Government and Ethnic Affairs (1989) ACLD 305.)
The parties did not raise the question and no arguments were submitted on the point.
The applicant is a citizen of Turkey and is thirty-nine years of age. The applicant's sister, who is a year older than the applicant and his only sibling, migrated from Turkey to Australia with her husband and their one-year-old son in 1971. A daughter was born to the couple in Australia in 1975 and pursuant to the provisions of the Australian Citizenship Act 1948 as it then stood, she became an Australian citizen at birth.
After his sister had migrated to Australia, the applicant became aware that his sister was experiencing serious problems in her marriage. It was alleged that the applicant's sister and her children were assaulted by her husband and the sister held fears for the safety of her children.
The applicant made application to migrate to Australia in 1974 but his application was not approved.
In 1977 the applicant's parents visited their daughter in Australia and it was arranged that the daughter's children, then aged seven and two and a half, return to Turkey to live with their grandparents. The applicant, whose own marriage had failed, was living with his parents and working on their farm. In addition, he carried on business with his father as a carrier and obtained work on his own account as a bus driver.
The applicant and his sister's children lived with the applicant's parents between 1977 and 1986. The sole child of the applicant's marriage died in 1982.
In 1980 and 1981 the applicant applied to the Australian Embassy in Turkey for a visa to travel to Australia as a visitor. Each application was refused.
In 1986 the Embassy received an application from the applicant's sister to sponsor the applicant as a migrant to Australia and at the same time the applicant made a further application for approval to migrate. At that time the applicant's sister was anxious to have her children returned to her care. She and her husband were living together at Bundaberg in Queensland although they had separated for several months in 1985.
In October 1986 the applicant was granted a visa to travel to Australia as a visitor. The applicant arrived in Australia in November 1986 bringing with him his sister's children. Upon arrival the applicant was granted a temporary entry permit permitting the applicant to enter and remain in Australia for a period of three months. Subsequently, the applicant was granted a further temporary entry permit permitting him to remain in Australia until 10 April 1987.
On 10 March 1987 the applicant applied, under sub-s.6(2) of the Act, for the grant of an entry permit, not being a temporary entry permit. He contended that, pursuant to para.6A(1)(e) of the Act, he was eligible for the grant of such a permit on strong compassionate or humanitarian grounds. In his application the applicant stated that he had previously made application in Ankara for permission to migrate to Australia but the application had been refused. The grounds relied on by the applicant were that he had cared for his sister's children for nine years. Furthermore, his brother-in-law had mental problems and convictions for drug offences and the applicant was concerned about his sister's welfare, his sister having no other family in Australia.
Prior to the applicant returning to Australia with the children, his sister had suffered an illness and an operation had been recommended. She underwent that operation not long after the applicant arrived in Australia.
At the time the applicant arrived in Australia his brother-in-law was in custody as a sentenced prisoner. Several weeks after the applicant's arrival in Australia his brother-in-law's appeal against two of four convictions was successful and he was released on bail pending retrial on those charges. Following a retrial the applicant's brother-in-law was again convicted in July 1987 but no further sentence of imprisonment was imposed.
At the time the applicant's application was considered medical reports were before the decision-maker which stated that the applicant's brother-in-law had a long history of alcohol abuse, had exhibited violence towards his wife and police and had been involved in gambling and drug abuse. He had been unable to obtain steady employment because of his abuse of alcohol which had been the cause of a number of convictions. His incapacity to obtain employment was apparently well recognized by the Department of Social Security by the grant of an invalid pension.
On 10 May 1988 a decision was made to refuse the grant of an entry permit. By letter dated 25 May 1988 the applicant was advised of the decision and was given a copy of the submission prepared for the decision-maker's consideration ("the submission") and which, according to the letter, gave the reasons for the decision.
Counsel for the applicant argued that the decision was made on 25 May 1988, the date of delivery of the decision to the applicant, and that until such delivery, the respondent was bound to consider any fresh material that came to its notice in respect of the applicant.
I am unable to accept that submission. The decision was made on 10 May 1988. If fresh events or circumstances occurred thereafter, the applicant could have submitted another application seeking the grant of a permit, but the decision-making process on the original application was completed on 10 May 1988.
A perusal of the submission shows that a recommendation that the grant of an entry permit be refused flowed directly from an understanding that "policy requirements" required the applicant to demonstrate that he was relying on strong compassionate circumstances that were of indefinite duration and arose out of circumstances which had occurred after his entry into Australia. Considerable emphasis was placed upon the need for such circumstances to arise after the applicant's entry into Australia.
It is clear that the submission was fundamentally flawed and that by endorsing the recommendation of the submission and accepting its reasoning the decision to refuse the grant of a permit was equally flawed.
On 5 October 1988 the decision-maker provided reasons for his decision pursuant to s.13 of the ADJR Act. In those reasons the decision-maker referred to "policy guidelines referred to in the Department's 'Grant of Resident Status Handbook'". The guidelines required an applicant to demonstrate that "he is relying on compassionate circumstances that are of indefinite duration; these circumstances having occurred after his last entry into Australia". The reasons confirmed that the decision-maker assessed the grounds relied upon by the applicant according to whether any part of those grounds related to events occurring after the applicant's entry into Australia. The reasons stated a conclusion that the claims advanced by the applicant did not constitute strong compassionate or humanitarian grounds. It is quite apparent, however, that the assessment by the decision-maker of the weight of the grounds was confused by the application of an item of departmental policy which was in disharmony with the provisions of the Act under which, and according to which, the decision-maker's discretion was to be exercised.
The same element of policy was considered by Sheppard J. in Hindi v. Minister for Immigration and Ethnic Affairs, Unreported (Federal Court of Australia, 30 September 1988). With respect, I endorse his Honour's conclusion that the application of such a policy would be contrary to the proper construction of para.6A(1)(e) of the Act.
Amongst the relevant matters to be brought within the decision-maker's consideration was the conduct of an orderly migration program. That consideration could not, however, be regarded to the exclusion of other relevant matters. The qualifying factors provided by s.6A for the grant of an entry permit recognize that such an application will be made by a person who has entered Australia without permission to migrate. It will be relevant to assess the strength of the compassionate or humanitarian grounds by testing whether in truth the application is no more than an attempt to avoid the announced requirements of a scheme of orderly migration. Nevertheless, the prime test of para.6A(1)(e) will be to determine whether there are strong compassionate or humanitarian grounds having regard to a variety of interests and irrespective of when those grounds arose.
The interests to be considered in the present case would include the continued welfare of the applicant's sister and her children, being migrants accepted for absorption into the Australian community and in the daughter's case, an Australian citizen; the likelihood of irreparable breakdown in the sister's marriage and the prospect that the Australian community would have to provide for her and her children's support thereafter; the closeness of the family relationship between the applicant and his sister and his niece and nephew; and the extent to which the applicant may be able to provide support and assistance for his sister in the raising of her children and their resettlement in the Australian community.
In dealing with those matters, consideration would have to be given to the rather unusual fact that the applicant had shared an unbroken relationship with his sister's children for a period of nine to ten years from rather tender ages and the part he had already played in their upbringing. The return of children to a stable family after such a period of absence may not raise an apprehension of compassionate or humanitarian concerns. Return to an unstable family relationship after no contact at all with their parents over such a long period and commencement of life afresh as adolescents after leaving an apparently stable relationship with an uncle and grandparents would raise the need to consider the grant of an unlimited entry permit to the uncle on compassionate or humanitarian grounds.
The reasons for decision also stated that the decision-maker had considered whether the applicant would be eligible to migrate under the "special need relatives" category of migrants and concluded that such policy guidelines would not assist the applicant. There was no indication in the reasons that this aspect was considered other than as an application of policy and it was not part of an analysis of whether strong compassionate or humanitarian grounds existed under para.6A(1)(e) of the Act.
If this decision had been an operative decision, I would have granted an order to review on the ground that it involved an improper exercise of power under para.5(1)(e) of the ADJR Act and set the decision aside, but the matter did not rest there.
After being notified of this decision, the applicant completed a form apparently prepared and issued by the Department entitled "Request for Reconsideration of a Migration Act Decision".
There is no provision in the Act for any process of reconsideration of a decision made under the Act or for the review of such a decision. The reconsideration procedure has apparently been established by administrative instruction. The procedure is described in a pamphlet issued by the Department entitled "Reviews and Appeals - Reconsideration of Migration Act Decisions by the Immigration Review Panel (September 1987)".
Similar administrative arrangements, as they then stood, were considered by the Full Court in Minister for Immigration and Ethnic Affairs v. Akbas (1985) 7 FCR 363 per Sweeney J. at p 363, Morling J. at p 365 and Jenkinson J. at p 368 et seq. As in that case there was no testimony in the present case concerning the functions and operations of the Immigration Review Panel. The function of the Panel has to be gleaned from the documents received in evidence and from matters agreed by counsel.
The Departmental form of request for reconsideration of a decision purports to levy a fee of $240 for the process of reconsideration. There are no regulations pursuant to which this fee is levied and a perusal of s.67 of the Act shows that the section makes no specific provision for regulations in respect of such fees.
The use of administrative arrangements for the establishment and function of the Immigration Review Panel may mean that some decisions resulting therefrom are not decisions capable of being reviewed under the ADJR Act.
Firstly, a recommendation of the Panel would not be a decision under an enactment for the purposes of the ADJR Act. (See Merman v. Cockburn Cement (1989) 84 ALR 521). Secondly, if the decision of the Minister's delegate, or authorized officer, does not bear the character of a refusal of a grant of a permit but has the character of a refusal of a request to further reconsider an existing decision, it may be difficult to regard such a decision as being a decision under the Migration Act 1958 which does not provide for such decisions to be reviewed.
The Minister, or his officers, have a duty to make a decision on any request for the grant of an entry permit made under the Act and any determination thereon or refusal to consider such a request would be, of course, a decision under the Act. It may be matter of fact in any given case whether a request for a reconsideration of a decision by an Immigration Review Panel has in fact been treated as a request for the grant of an entry permit and the merits of the request reassessed de novo. (See Bannister v. See (1982) 72 FLR 313 per Woodward J. at p 318.)
Neither counsel submitted that the Panel, and eventually the Minister's delegate, had been involved in no more than determining whether there were grounds to review the initial decision to refuse the grant of a permit.
From a consideration of the documents presented in evidence, it would seem that relevant material necessary for the formation of a fresh decision was available to the Panel in formulating its recommendation to the delegate, and to the delegate in making his decision.

Part of that material consisted of new material presented by the applicant in a further submission. The two important elements of that fresh material were that the applicant's sister's marriage had ruptured and that her husband had returned to Turkey. In addition, the applicant's sister had been involved in incidents in which other members of the Turkish community had threatened her and the children. Members of the Turkish community had blamed the sister for a Department of Social Security investigation which resulted in certain members of the community losing social security benefits. It was confirmed by Departmental officers that the sister, her children and the applicant had left Bundaberg to come to Western Australia after they had been given an ultimatum by the Turkish community in Bundaberg.
As part of the request for reconsideration of the decision to refuse the grant of an entry permit, the applicant was able to make a further submission which drew attention to the changed circumstances. The applicant's further submission also made comment upon the Departmental submission which had recommended that his application for an entry permit be refused and had been endorsed by the decision-maker on 10 May 1988. The applicant's further submission was prepared for the applicant by a local Member of the State Parliament, a legal practitioner, from information provided by the applicant and his sister in the course of several interviews. In addition, the Principal of the Primary School attended by the applicant's niece provided a letter offering the opinion that it would be a serious setback to the girl's re-assimiliation in Australia if her uncle were required to leave.
A Departmental officer made some further observations in a handwritten submission on the applicant's request for the reconsideration of the decision to refuse the grant of an entry permit.
Those observations accepted that the applicant had a close relationship with his niece and nephew and that the father of the children had left Australia on 5 May 1988. The submission also acknowledged that the applicant held a genuine concern for his sister's welfare and wished to provide financial support for his sister and her children.
The submission concluded with an expression of opinion that "policy" had been correctly applied and that the applicant had not demonstrated "sufficiently strong grounds" for the grant of an entry permit under para.6A(1)(e) of the Act. The submission concluded that "the primary decision is therefore maintained".
It appears from the content of the submission that the grounds for the expressed conclusions were to be found in the inability of the applicant to obtain approval for migration to Australia if he had been an applicant to migrate as the relative of an Australian resident in special need. The submission recited part of a published statement on that aspect of migration policy but did not state any understanding of the purpose of the policy or the range of circumstances to which it may apply. The submission's conclusions were also grounded on assumptions that the applicant's sister would be eligible to receive benefits under social security legislation and would have access to various community welfare agencies for additional assistance. The opinion that the applicant's sister had the option of returning to Turkey if she felt that the assistance available in Australia was insufficient was apparently also regarded as a relevant consideration.
On 19 July 1988 the applicant's request for reconsideration of the decision to refuse an entry permit was considered by an Immigration Review Panel. The Panel recommended that the decision be maintained and explained. The Panel made a short record of its consideration of the request. It found that "legislation, policy and criteria relevant to this appeal have been correctly applied". The form of words of that finding and of the recommendation of the Panel were selected from a form containing alternatively worded findings and recommendations.
On 22 July 1988 the delegate of the Minister accepted the recommendation of the Panel.
It is not clear from the documents what function was undertaken by the delegate on 22 July 1988. It is possible that the delegate limited his role to assessing the correctness of the decision previously made on 10 May 1988. On the other hand, he may have made his own determination on the whole of the material before him and decided that a permit should not be granted under the Act. Only the latter course would be an operative decision replacing the decision made on 10 May 1988.
The decision was recorded by crossing out the negative alternative to acceptance of the Panel's recommendation endorsed on the record of the Panel's consideration of the request for reconsideration of the earlier decision. There is no record of the evidence or material to which the decision-maker made reference, of any of his findings of material facts nor reasons for his decision.
A letter advising the applicant of the outcome of his request for reconsideration of the decision of 10 May 1988 stated that the decision had been maintained. The applicant was informed that a reconsideration had been conducted by an Immigration Review Panel and that the recommendation of that Panel and other information available on the case had been studied by a delegate of the Minister who had accepted the Panel's recommendation that the decision to refuse the grant of an entry permit be maintained.
The delegate would have received little assistance from studying the Panel's recommendation if he were engaged in making a fresh decision on the merits of the case. The recommendation was in the following form:

"After considering the matters raised in the

appeal, the Panel has concluded that the

circumstances of this case are not such as to warrant special treatment and recommends that the Departmental decision be maintained and

explained."

The task of the decision-maker was not to determine whether the circumstances warranted "special treatment", but was to examine the eligibility of the applicant to be granted an entry permit under the terms of para.6A(1)(e) of the Act and to exercise a discretion whether to grant such a permit after having regard to and duly assessing all relevant matters.
After the decision was made on 22 July 1988, the applicant's solicitors sought reasons for the decision of 10 May 1988 pursuant to s.13 of the ADJR Act apparently believing that the decision of that date was the operative decision. The respondent argued in these proceedings that the decision of 22 July 1988 was a fresh decision on the merits of the case and that thereafter the decision of 10 May 1988 was no longer an operative decision. (See Perry v. Director of Public Prosecutions (1985) 6 FCR 578.) In those circumstances perhaps the reasons for decision supplied should have been those relevant to the decision of 22 July 1988 and not the decision of 10 May 1988, notwithstanding the nature of the request received from the applicant's solicitors.
However, having regard to the fact that the decision-maker studied information which included substantially fresh material and a fresh submission, I accept that the decision-maker understood his decision of 22 July 1988 to be a decision not to grant an entry permit, made under the Act, and that it rendered the decision of 10 May 1988 inoperative. It is, therefore, necessary to determine whether any ground for review has been demonstrated in respect of the manner of exercise of the discretion involved in the latter decision.
The absence of any statement of what factors were given weight or discounted, and of what findings of fact were made and the absence of reasons for the decision do not of themselves permit an assumption to be made that the discretion miscarried. (See Public Service Board of New South Wales v. Osmond (1986) 159 CLR 656.) Section 13 of the ADJR Act requires disclosure of those elements of the decision-making process to be given if the decision-maker is requested to provide them, but it does not impose an obligation on the decision-maker to attach those details to the decision at the time the decision is made. However, the material surrounding the decision may be of such a nature that an inference should be drawn that the decision was founded upon error.
In so far as the decision was the endorsement of a recommendation that a decision be maintained, it may be concluded that the material which had a significant role in the process of formation of that decision was the material upon which the recommendation that the decision be adhered to was based.
As I have set out above, the original decision displayed error and were it the operative decision it would have been subject to review. The subsequent submission by a Departmental officer on the applicant's request for reconsideration of that decision did not repeat the flaw in the reasoning of that decision, but it did contain its own erroneous advice capable of leading the decision-maker into error.
The submission recommended that the "primary decision" be maintained after concluding that "policy" had been correctly applied. If, as appears to be the case, the policy referred to was the policy relating to the migration of relatives of Australian residents who were in special need, the task of a decision-maker faced with an application for the grant of an entry permit under sub-s.6(5) and para.6A(1)(e) would have been to assess the application in the terms of the Act and not to limit the exercise of the discretion granted by the Act to make it conform with elements of an administrative policy directed at a different question. In any event, a statement of policy may not be applied in the same manner as a statutory list of disqualifying events without regard to the Act or the merits of the case. Normally, such statements of policy are intended to operate as guidelines under which a range of significant matters to be addressed by decision-makers is detailed and some indication is given as to the weight that may be attached to certain elements. (See Re Drake v. Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALR 634 per Brennan J. at pp 640-641; Tang v. Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177.)
The policy was not so treated and it was incorrect to say that it was "correctly applied".
In determining whether the compassionate or humanitarian grounds relied upon by the applicant were strong grounds within the meaning of para.6A(1)(e) of the Act, the decision-maker could have regard to the guidelines of policy relating to the manner in which an application to sponsor the migration of a relative may be considered. The decision-maker would, however, have to bear in mind that the statement of policy was not exhaustive in its statement of examples and was not a statement of policy expressly designed to assist in the performance of the duties imposed on the authorized officer under para.6A(1)(e) of the Act.
In any event, two qualifying elements of the policy referred to were demonstrated in the facts of the applicant's case namely, that the applicant's sister had no relatives in Australia who could assist her and that her spouse had left her on her own to deal with the problems of bringing up her children including providing for them financially and otherwise, and with coping generally. Those facts would have required assessment and evaluation in determining what assistance could be gained from consideration of the policy in the course of making a decision.
A proper decision under para.6A(1)(e) required the decision-maker to assess the strength of the compassionate or humanitarian grounds by considering the interests of the Australian residents and an Australian citizen being the applicant's sister and her two children as well as the interests of the applicant. (See McPhee v. The Minister of State for Immigration, Local Government and Ethnic Affairs, Unreported (Federal Court of Australia, Lee J., 23 August 1988 at pp 33-36).)
Due consideration of those interests would require that particular regard be given to the role of the applicant in the ten formative years of the lives of the children to date; the position of the applicant's sister who had lived in Australia for seventeen years and had chosen to make Australia her home and who was now faced with the disturbing hostility of her compatriates who may otherwise have provided support after her husband's desertion; and the return of the children to Australia to an unsettled household and the impact upon them if they were deprived of the surrogate support provided by their uncle. Other matters that would have required appropriate consideration would have been the fact that the applicant's sister suffered from a nervous condition, had suffered the strain of marriage to an alcoholic and violent husband and was now required to resume responsibility on her own for the education and upkeep of the two children and to re-establish her relationship with them after a separation of ten years. The suggestion that the applicant's sister had the option of returning to Turkey would not have assisted the decision-maker in arriving at a proper decision under the Act.
The preponderance of likelihood is that the Minister's delegate was influenced in arriving at his decision of 22 July 1988 by the expression of reasoning contained in a submission of a Departmental officer. This submission supported the recommendation that the application for the grant of an entry permit be rejected on the ground that the published migration policy with regard to relatives in special need had not been satisfied. There was no disavowal of that reasoning in the adoption of the recommendation by the decision-maker on 22 July 1988. In all the circumstances, it should be concluded that that reasoning became incorporated into the reasons for decision of the decision-maker resulting in the discretionary power being exercised in accordance with a rule of policy without regard to the merits of the particular case and thereby being an improper exercise of the power conferred by the Act (ADJR Act paras.5(1)(e) and 5(2)(f)). The course of the decision-making process outlined above also indicates that essential elements in support of the application were not given proper genuine and realistic consideration upon the merits thereby resulting in an improper exercise of power. (See Khan v. Minister for Immigration and Ethnic Affairs, Unreported (Federal Court of Australia, Gummow J., 11 December 1987, at pp 11-12); Minister for Immigration, Local Government and Ethnic Affairs v. Pashmforoosh, Unreported (Federal Court of Australia, Full Court, 28 June 1989.)
It is appropriate, therefore, that an order to review be made pursuant to s.16 of the ADJR Act.
I will order that the decision of the respondent's delegate made on 22 July 1988 refusing the applicant's application for the grant of an entry permit be set aside and the application be returned to the respondent for further consideration by him, or his authorized officer, according to law.

[1989] FCA 389

21 JULY 1989