Fasano, B. v Minister for Immigration & Ethnic Affairs

FUTRIRD-CN

IN THE FEDERAL COURT OF AUSTRALIA	)
1

NEW	SOUTH WALES DISTRICT REGISTRY	)	NO. G.134 Of 1987
1

GENERAL DIVISION

BETWEEN:

BARBARA

F S NO

Applicant

AND :

MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

AND

ANOR

Respondent

Judge: Gummow J.

Place: Sydney

Date:

3 July 1987

REASONS -

FOR JUDGMENT

This is an

application

under

the

Administrative

Decisions (Judicial Review) Act 1977 ("the ADJR Act) seeking an

order for review

of a decision taken on 9 March 1987 to refuse

what was described as an application for an entry permit giving

the applicant permission to engage in employment whilst she

remains in Australia.

The applicant submits that there are grounds

for

review under s.S(l)(f)

(error of law) and under s . S ( l ) ( e ) in

conjunction with each of five paragraphs in

s . 5 ( 2 ) ,

namely

(a)

(irrelevant considerations),(b)(relevant considerations not

taken into account),(c)(extraneous purpose),(f)(rule

or policy

applied

the

without

r gard

(g)(unreasonableness).

',' .

,--r--r\

I should emphasize at the outset that the proceedings

are not by way

of appeal from the administrative decision in

question. In reviewing an administrative decision it is not the function of the Court to substitute its own decision for that of the administrator by re-exercising a discretion vested

by law in the administrator alone.

The concern of the Court

is thus not with the merits

the decision but with

the

manner in which

it was made, as is indicated by the grounds

relied

upon by the

applicant

which

I have

listed

above.

Further, the exercise of

an administrative discretion of

its

nature involves a choice between more than one possible course

of action, on which there

is room for reasonable people to

hold differing opinions as to

which is to be preferred. See

Minister for Aboriginal Affairs v ?eko-Wallrend Ltd (1986) 66 ALR 299 at 309, Secretary of State for Education and Science v

Tameside Metropolitan Borough Council [l9771 AC 1014 at

1064,

R v Entry Clearance Officer, Bombay

Ex parte Amln [l9831 2 AC

818 at 828-829,

Nottinghamshire County Council v Secretary of

State for the Environment [l9861 1 All ER 199 at 202-203.

The applicant is

a citizen of

the United States

America. She was born in New York

on 19 October 1958.

In the

United States she

had pursued a career as

professional

actress.

It is common ground

that for the purposes of these

proceedings the applicant

and has been at all relevant

times the --

de facto spouse

of another non-Australian citizen,

3 .

Mr David Novik, within the meaning of the expression "de facto

spouse" in the Department's

written policy "Entry Requirements

for Dependants of Non Temporary Residents". Mr Novik is employed by CBS Records Australia Ltd and he was sponsored by that company for temporary residence in Australia.

The applicant arrived in Australia

January

1986. She was permitted to enter with temporary entry status

and

her

employment

was

prohibited

without

the

written

permission

an authorised officer under the Migration Act

1958

("the

Migration

Act").

The

applicant

has,

since

January

1986,

left

and re-entered Australia

and

she

currently permitted to remain with temporary entry status

until 10 January 1988, Employment

is still prohibited without

written

permission

of an autho:ised officer

Ender

the

Migration Act. Since she has been in Australia the applicant has had a number of offers of employment by theatrical agents

and producers who wish to engage her for theatrical roles	for
which she would be well suited.

Sub-sections (6)and (6A)of s.6 of the Migration Act

provide as follows:-

(6) An entry

permit

that

is intended

operate as a temporary entry permit shall be

expressed to authorize the person to whom

relates to remain in Australia for a specified period only, and such a permit may be granted subject to conditions.

4 .

(6A) Without limiting the conditions

sub~ect

to which an entry permit referred

sub-section

( 6 )

may

be granted, such a

permit may be granted subject to

a condition

imposing restrictions wlth respect to the

work that may be performed by the holder

Australia, including

restrictions

performing

any work, or

work

other

than

specified work or work of a specified kind, without the permission, in writing, of an authorized officer.

It is common ground

that

the

applicant

was granted

her

temporary entry permit on the footing that she was

dependant

de facto spouse of

Mr Novik.

It is also not disputed that

the provisions I

have

mentioned

in s.6 carry

with

them

the

power,

during

the

currency of a temporary entry permit,

to vary or withdraw

conditions and that a decision in exercise of that power is a decislon under the Migration Act and a decision to which the

ADJR Act

applies

(cf Minister for Immigration and Ethnic

Affairs v e

(1985) 157 CLR 290).

Attention was not directed in argument

to s.7 but the

provisions of ss.(l) and (2) of 5.7 may have importance in the

present case. They provide as follows:

7 . (1)

The Minister may, in his absolute

discretion, cancel a temporary entry permit

at any time by writing under his hand.

( 2 )

At any time while

a temporary entry

permit is in forcs

or after the expiration

or cancellation of a temporary entry permit,

a further entry permit

may, at the request

of the

holder, be

granted to the holder

and, where such

further entry permit is

granted while a temporary entry permit is in

force, the further entry permit shall come

into

force

only

upon

the

expiration

cancellation of the existlng entry permit.

I say this because In the letter of 13 March 1987 (which I

shall shortly describe) the application was identified as one

for an entry permit giving permission to engage

in employment

Australia.

This

consistent

with

a request

for

cancellation

of the existing temporary entry permit and the

granting of a further

temporary entry permit without the

condition on the

present

permit

prohlbition

employment. If the matter is seen

in this way then clearly

there would have been

decision to which the Act applied,

namely a decision under s.7.

The application in question in these proceedlngs was

made in writing by

the applicant's solicitors on her behalf.

The

application

was

upported

by a detailed

statutory

declaration by the

appllcant

and by further

statutory

declarations by other persons, some resident

in this country

and others resident

in the United States. The grounds upon

which the permission to work was sought were	set forth in the
application as follows:

"(a)

Because MS Fasano needs to work to maintain

professional

status

and level of career

development in a sense equivalent to

and

materially and in all the circumstances the

same as those where continuing employment

a person's usual occupation is necessary

(and not merely desirable) to maintain

6 .

professional registration	in that person's
home country; and

(b) in the particular

circumstances

of MS

Fasano's case the maintenance of a condltion

of her

temporary entry permit prohibiting

employment causes her and will

continue

cause her and	her	spouse	considerable
hardship; and

( c ) In light of the

matters set out in

(a) and

(b) above, it would

be unreasonable in the

circumstances to maintain the condition

prohibiting employment; and

(d)

It would in

all other relevant respects be

unreasonable

maintain

the

condition

prohibiting employment."

The refusal of the application was communicated by a letter

from the Department to the applicant's solicitors of 13

Harch

1987.

The immediately material portions

of that letter are as

follows:

l4s Fasano has authority to remain In

Australia

until 10 January 1988. Her temporary

entry

permit contains

a condition

prohibiting

employment.

Australian

The

Government's

Temporary

Residence

Policy

generally

excludes

dependants of temporary residents from permission

to work in Australla.

Applicants for

temporary residence Intending to

bring dependants with

them are informed of the

Government's policy and are required to

complete

an undertaking that their dependants will not engage in employment in Australia without written permission of the Department of Immigration and Ethnic Affairs. They are also informed of the

circumstances in which an exception

the

general employment prohlbitlon

can be made.

The policy exempts people eligible for temporary residence in their own right, people who need to work to maintain professional registration and,

in limited

circumstances,

people

who

are

financial difficulty.

7 .

MS Fasano

put

forward

as her

grounds

for

exemption from employment

prohibition

that

she

needs to

w rk

actor

maintain

professional standing and the momentum

her

career

development

and

that,

she

remains

excluded from employment in her occupation,

she

and

her

spouse

will

caused

considerable

hardship.

She

has supported

her

case

with

statutory

declarations which attest to the importance to her career of continuing to act professionally and to the adverse personal consequences of being

excluded from professional acting, in particular

the

effect

this

having

on her

facto

relationship.

MS Fasano's claims were considered by Mr John Davidson the Assistant Director, sponsored Entry Section. He concluded that the need to work for

purpose

the

maintaining

professional

recognition and career development is not a need

to work to maintain professional registration

within the meaning of the

Government's policy.

In particular he noted that there

1s no evidence

that professional registration

is a pre-requisite

to employment as an actor in the applicant's home

country.

Whilst the policy guidelines do not

contemplate

hardship other than financial hardship as grounds

removing

for

employment

prohibition,

the

Assistant

Director

considered

If the

"adverse

consequences"

raised

the

applicant

were

compelllng circumstance warranting a decision to

approve

employment

outside

the

guldelines.

concluded they were not. He based his conclusion

on the

fact

that

the

cause

of the

"adverse

consequences",

employment

prohibition,

was a

circumstance which the applicant

was aware of

before she came to

Australia.

Accordingly,

her

claim that she erred in her judgement about the

consequences of

accepting the condition to her

entry to Australia is not a strong reason for

releasing her from the condition.

Accordingly the Assistant Director decided to

refuse MS Fasano's applicatlon.

There

right

review

this

decision

the

Immigration Review Panel.

0 .

It will be apparent from this letter that in reaching

the

decision

regard was had primarily to a

particular

government policy and also

to hardship (other than financial

hardship) that might be a compelling clrcumstance warranting a

decision to approve employment outside

the

guidelines. The

policy referred to

is contained in a document which is in

evidence

and

which

is headed

"Entry

Requirements

for

Dependants of Temporary Residents."

The proper role of

a government policy

in a setting

such as the present one was described by Brennan J. in - Re Drake and Minister for Immigration and Ethnic Affairs (No. 2)

(1979) 2 ALD 634 at 640.

After observing that a policy must

be consistent	with	the statute in question,	his	Honour
continued -

It must allow

the Minlster to take into account

the relevant circumstances,

it must not require

him to

account

into

take

irr levant

circumstances, and it must not

serve a purpose

foreign to the

purpose

for

which

the

discretionary power was created.

A policy which

contravenes these criteria would be

inconsistent

with the

statute

... Also, it would be

inconsistent with ss 12 and 13 of

the

Migratlon

Act if the

Minister's policy sought to preclude

consideration of relevant arguments running counter to an adopted pollcy which might be

reasonably

advanced in particular

cases.

The

discretions

reposed in the

Minister by these

sections cannot be	exercised according to broad
and binding rules	(as some discretions may be:

see, eg, Schmidt v Secretary of State for Home

Affairs [ m 2

ch 149)

. The Minister must

decideeach of

the cases under

ss 12 and 13 on

its merits.

His

discretion

cannot

truncated by a policy to as preclude consideration of the merits of specified classes

of cases.

A fetter of that

kind

would

objectionable, even though it were adopted

by the

Minister on his own inltiative.

A Minister's

policy, formed for the purposes of

ss 12 and

of the

Migration

Act, must leave him free to

consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make

in the circumstances of a given case.

That is not

deny

the lawfulness of

adopting an appropriate pollcy which guides

but

does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applles. There

is a distinction between an unlawful policy which

creates a fetter purporting to limit the range of

discretion conferred by

a statute, and a lawful

policy

which

leaves

the

range

discretion

intact while guiding

the exercise of the power."

See also, for an example of a policy providing

guidelines

inconsistent with the

proper

observance of

statutory

criteria, Green v Daniels (1977) 51 ALJR 463 at 467.

The appellant submitted that the pollcy, as

framed,

directed

attention

away

from

considerations

which

were

relevant in the sense that the decision maker

was bound to

have

regard

them

within

the

meaning

Minister

for

Aboriginal Affairs v

Peko-Wallsend Ltd (1986) 6 6 ALR 299 at

308 .

It was

further submitted that although the

decision

maker went outside the strict conflnes of the policy (as appears from the penultimate paragraph of the portion of the

letter of 13 March 1987 which I have earlier set out),

there

was a failure to

consider the application upon its merits by

failing to take

into account matters to whlch the decision

maker was bound to have regard.

10.

As examples of matters to which the decision maker

should but did not have

regard in this case, the appellant

referred

(i) conditions

pertaining

the

particular

industry or pursuit in which the applicant sought to work, (ii) the potential contribution which might be made by the

applicant to that industry

or pursuit, and (iii) circumstances

peculiar to the applicant such as the length of time she would remain in Australia, personal hardship (that is to say not

only financial hardship) and change	of circumstances and the
like.

The applicant also submitted that the decision

maker

in this case had

wrongly taken into account the existence of

other procedures whereby

the applicant could possibly secure

employment in this country on a limited basls.

This was B

reference to a policy for granting of entry permits to entertainers and associated personnel. This policy, which is distinct from the policy I have previously referred to, also

was in writing

and was

in evidence. Central to

it is the

undertaking by

a sponsor that an artist will adhere to the

specific purpose

the

visit

and

not

undertake

other

engagements without prior approval of

the

Department.

However, what the present applicant sought was a general

permission to work

in the theatre, not approval pursuant

sponsorship for a particular engagement

or engagements.

11.

At the conclusion of the letter of 13 March 1987

was said that it remained "open to

Fasano to test her

eligibility for permission to work as a temporary resident in

her own right." The letter continued:-

This would entail the

lodgement of an application

for an entry permit giving permission to work

Australia (M314) supported

temporary

residence entertainer sponsorship

(M148) for a

specific

acting

engagement.

The sponsorshlp

would be

assessed against the standard policy

requirements

for

temporary

entry

entertainers.

A copy

the

pollcy

and

procedural requirements is enclosed.

This, the

applicant

submitted,

showed

consideration

of a

matter to which it was not legitimate to have regard, viz the - possibility of the applicant securing employment here on some other and restricted basis.

As I have indicated, the appllcant submitted that the

case was one

for review under s.5(l)(f)

of the ADJR Act and

s.5(l)(e) together with paragraphs (a),(b),(c),(f),(g).

I turn

to consider the application of these provisions to the general

submissions I have described.

Where a statute confers a discretion which in its

terms

unconfined, the faLtors

that

may be taken

Into

account

the

exercise

the

discretion

are

similarly

unconfined except insofar

as they may be found in the subject

matter, scope and purpose of the statute. These may imply

12.

some limitation on the factors to which the decision maker may legitimately have regard. Likewise, where the complaint IS that a relevant consideration has not been taken into account

and the discretion is unconfined by the terms of the statute,

the court will not find that the decision maker is bound to

take a particular matter into account unless an implication

that he is bound to do so is to be found in the subject

matter, scope and purpose of the Act. Authority for these two

propositions i s to be found in

the Minister for Aboriginal

Affairs v Peko-wallsend Ltd (1986) 66 ALR

299 at 308-309.

It also is to be noted that on two recent

occasions

the

Full

Court

this

Court

has

indicated

that

discretions under

the

Migration Act both

to grant and to

cancel entry permits, whether

tempcjrary G K otherwise, and

grant

and

cancel

visas,

are

relevantly

unfettered:

Minister for Immigration and Ethnic Affairs v Conyngham (1986) 68 ALR 441 at 450-451, The Minister for Immigration and Ethnic

Affairs v

The Lebanese Moslem Association

(19 February 1987

unreported, pp. 17-18).

In my view, the nature

O G :ne

discretions conferred

by the provisions of the Migration Act concerned in the

present case is such that there was, withln the meaning of the

authorities,

taking

account

irrelevant

consideration and no failure to take into account

relevant

consideration.

It follows

that

no ground is made

out

13.

reliance upon s.5(l)(e) in

association with paragraphs (a)and

(b) of s.5(2).	The same is true of the reliance upon paragraph
(c) of s.5(2).

I turn then to consider paragraph (g) of s.5(2).

The

question here is whether the exercise of

power was so

unreasonable that no reasonable person could have

so exercised

the power in question. The interpretation of this provision

is sufficiently discussed in Minister for Aboriginal

Affalrs v

Peko-Wallsend (1986) 66 ALR

299 at 310.

The

concept

unreasonableness was perhaps

put

somewhat

differently

Prasad v Minister for Immigratlon and Ethnic Affairs

(1985) 6

PCR 155 at 167-170.

On either footing, in my view no case of

any unreasonableness in the necessary sense is made out in the

present case and, indeed, it was not strongly pressed for the

applicant.

That

brings me

paragraph

(f) s.5(2), namely

improper exercise of power because

the power was exercised

accordance with a rule

policy

without

regard

the

particular merits

of the case. In my

vrew,

the policy in

question was

applled with regard to to the merits of the

particular case as were

the

policies considered

in Leung

Gibbons (28/3/85, unrep.) and

Turner

Ninister

for

Immigration and Ethnic Affairs

(1981) 35 ALR 388 at 393-4.

Further, regard was had beyond the confines of the policy and the decision maker took a view of the particular merits as

14.

they lay outside the confines of policy.

That view of the

merits do not coincide with what had been put forward by the

applicant.

But

this

does not

mean

that he

power

was

exercised in accordance with a rule or policy and	wlthout
regard t o the merits of the particular case.

Finally it is said the decision lnvolves

an error of

law within the meaning of s.S(l)(f).

As I understand the

submissions for the

applicant, the error of

law flowed from

one or more or a combination of the other grounds upon

which

the decislon was impugned by the

appllcant. As they have

failed it follows that this ground also fails.

Accordingly, the application is dismissed

with costs.

I certify that this and the thirteen (13)

preceding pages are a

true copy of the

Reasons for Judgment of his Honour MK Justice

Gummow.

Associate: A d b .

Date :

3 July 1987

Counsel and Solicitors

for

Mr G.A. Flick with

Applicant:

Mr B. O'Sullivan

instructed by

Allen Allen and

Hemsley

Counsel and Solicitors for

Respondent:	Mr P. Robertson
instructed by Australian Government Solicitor.
Date of Hearing:	2 9 June 1987
Date of Judgment:	3 July 1987

[1987] FCA 386

3 Jul 1987