Geroudis v Minister for Immigration, Local Government and Ethnic Affairs

Re: POLYKARPOS GEROUDIS
And: ASTRID NORGARD DELEGATE OF THE MINISTER OF
STATE FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WA G120 of 1989 FED No. 153
Migration - Social Security

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Migration - judicial review - prohibited non-citizen - stay beyond expiry of temporary entry permit- attempted deception as to existence of qualifying application for resident status - Regularisation of Status Program - adoption of false names - residence in Australia for over 9 years - receipt of unemployment benefits - decision to refuse resident status and to deport - natural justice - opportunity to comment on submissions or conclusions - no breach of natural justice - improper exercise of power - error of law - social security - entitlement to unemployment benefit - application for review dismissed.

Social Security - unemployment benefit - prohibited non-citizen - entitlement - pre 1987 amendment - whether "likely to remain permanently in Australia".

Migration Act 1958 sub-s.7(2)

Administrative Decisions (Judicial Review) Act 1977 Social Security Act ss.96, 107

Kioa v West (1985) 159 CLR 550

Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502

Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469

F. Hoffmann-La Roche and Co. v Secretary of State for Trade and Industry (1975) AC 295

Re Elsdon v Secretary to the Department of Social Security (unrep. 7/8/85)

Barrett v Minister for Immigration and Ethnic Affairs (1989) 18 ALD 129

HEARING

PERTH

#DATE 19:4:1990

Counsel for the Applicant: Mr I. Jones

Solicitors for the Applicant: Claudio Russo Shaw

Counsel for the Respondent: Ms. C. Francas

Solicitors for the Respondent: Australian Government Solicitor

ORDER

1. The application is dismissed.

2. The applicant to pay the respondent's costs of the application.

3. Liberty to apply on 24 hours notice for a stay pending appeal.

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

JUDGE1

Polykarpos Spyrou Geroudis came to Australia from Cyprus in 1980 to visit his brother Euripides who lives in Perth. He had only a temporary entry permit which, with extensions, expired on 11 August 1980. Instead of going home to Cyprus he decided to live in Australia. He changed his name and took work where he could get it and on occasions unemployment benefits where he could not. He helped look after his brother's family and became a respected member of the Greek Cypriot community. He is the presenter of a Greek Cypriot community radio program on Radio Station 6NR.

In August 1989 the authorities caught up with him and he was taken into custody. His subsequent application for resident status was refused and a further entry permit denied as was the option of voluntary departure from Australia. On 6 October an order was made for his deportation. He now seeks judicial review of that order and the associated decisions principally on the basis that the decision-maker has failed to observe the requirements of natural justice, has improperly exercised her power and has made an error of law in concluding that he was not entitled to the unemployment benefits which he received.
Factual Background
Mr Geroudis is a 36 year old citizen of the Republic of Cyprus. His older brother, Euripides, has lived in Australia since April 1975. In June 1977 Euripides nominated him for entry to Australia for residence but the nomination was rejected. The policy guidelines then applicable restricted eligibility for migrant entry to the spouses, dependent children or parents of persons resident in Australia in an occupation for which there was an unfulfilled demand. An inquiry made in late 1979 elicited a similar response.
On 31 January 1980 Geroudis was granted a visa for temporary entry into Australia for three months subject to the condition endorsed on the visa "EMPLOYMENT PROHIBITED". On 13 February 1980 he arrived at Perth Western Australia to visit his brother. He was not however in possession of a return ticket and was issued with a temporary entry permit valid for seven days only, after officers of the Department of Immigration and Ethnic Affairs had obtained an assurance from Euripides that he would purchase the necessary ticket. On 18 February 1980 he applied for and was granted a further temporary entry permit valid until 13 May 1980. His expressed reason for the extension was "... my relatives are in Perth and I like to tour Perth". The ticket was booked for departure on 11 August 1980. On 29 April 1980 he made an application for a further permit and this was granted valid until 11 August 1980. His expressed reasons were again to see his relatives and the State.
On 11 June 1980 the Chief Migration Officer at the Australian Embassy in Athens wrote to Geroudis at his address in Nicosia referring to the earlier refusal of his application to enter Australia for residence and to the policy which was then in operation. The letter continued:

"However, this policy has now been varied for applicants who have a close relative in Australia. This relative must be either an Australian citizen or have lived in that country for over five (5) years.

On re-examination of your original inquiry, it has been found that you may now meet these new requirements. Should you still be interested in migrating to Australia will you please complete the enclosed application forms and return them as soon as possible. It is not necessary for your relative in Australia to nominate you for entry until after your application has been processed."

On 7 July Geroudis wrote to the Minister for Immigration and Ethnic Affairs enquiring about becoming a permanent resident of Australia. He attached a copy of the letter from the Australian Embassy which had been forwarded to him from Nicosia. In the letter he indicated that he could not afford to go back to Cyprus and then return to Australia. He said he had come to Perth to see his brother and relatives and that he had travelled to South Australia to see friends. There was no reference to visiting any other State nor to any earlier application within Australia for resident status. A copy of his birth certificate and employment references including one dated 15 January 1980 from the Ministry of Defence in Nicosia were enclosed. The letter was acknowledged by a ministerial officer on 23 July with the advice that it had been referred on to the Department.

On 29 July he lodged an application for a further temporary entry permit. The stated reason was that he had discovered relatives in Sydney whom he wished to visit. Again, there was no reference to any earlier visit to Sydney. This application was supported by a maintenance guarantee executed by one of them, a Michael Loizos, whose address was shown as 24 Byer Street, Enfield. It was also supported by a letter dated 29 July signed by a Senator Mulvihill of New South Wales. The application was evidently never granted.
On 15 August 1980, four days after the expiry of his last current temporary entry permit, Geroudis was informed by letter from Mr T.G. Beavis, on behalf of the Acting Secretary of the Department of Immigration and Ethnic Affairs, that his request for residence in Australia was not approved. The letter went on:

"The Governments immigration policy does not provide for people in your circumstances to remain in Australia for residence. Your application has been considered under the current regularisation of status program but unfortunately you do not meet the requirements for consideration under these arrangements. In these circumstances I am sorry to have to tell you that your application has not been approved and it is expected that you will now make arrangements to leave.

You are requested to inform the Regional Director Department of Immigration and Ethnic Affairs, Perth, within a period of fourteen days, of your departure date."

The Regularisation of Status Program ("ROSP") was announced on 19 June 1980 and the persons eligible for its benefits were those who:

1. Were in Australia legally or illegally prior to 1 January 1980 and were still here on 19 June 1980.

2. Entered Australia legally on or after 1 January 1980 and were still here legally on 19 June 1980 provided that prior to 19 June 1980 they had sought change of status and that fact was recorded with the Department.

Geroudis took no steps to leave the country as requested and on 3 December 1980 lodged an application for resident status under the Regularisation of Status Program. His residential address was then shown as 24 Byer Street, Enfield. With that application he enclosed what was said to be a copy of a letter to the Department in Sydney dated 24 April 1980 in the following terms:

"I arrived in Australia 14th. of February 1980 as a visitor on a three months tourist visa. I am now applying for a permanent visa to remain in Australia for good. Reason been I am a refugee from Cyprus. My only relative is one brother who lives in Wester (sic) Australia. I've lost all my belongings during the war in 1974, Turkish invasion.

I would like very much to stay in Australia and for a better future. I'll be glad if I become Australian Permanent resident. Thanking you,"

The copy letter showed the sender's address as 24 Byer Street, Enfield.

A report on the ROSP application dated 22 January 1981 by a departmental officer, S. Barton, observed that there was no evidence of any request for resident status before 19 June 1980 other than the lodgment of the "claimed" copy of the letter dated 24 April 1980. It was noted that Geroudis asserted that he had sent the original of the letter to the Sydney office of the Department while on a one week holiday in Sydney, that he had received no reply to it and so had written to the Minister in July. Reference was also made to the absence of any mention of that letter in his letter to the Minister of 7 July and the admitted fact that there had been no approach to the Perth office for a change of status. The reason said to have been given for this by Geroudis was that he was "too afraid". No trace could be found of the original of the April letter. The report noted also that he was advised on 15 August that he was ineligible for the ROSP but it was not until 3 1/2 months later that he lodged the ROSP application with the claimed copy of the April letter. The report concluded:

"We have tried hard to prove this man's claims to eligibility, but have been unsuccessful. Serious doubts exist as to the genuineness of the "letter" of 24.4.80."

On 28 January 1981 Geroudis wrote again to the Minister asking for reconsideration of his application. He said he had not been aware of the relevant dates at the time he wrote:

"When I did find out that persons arriving in Australia after the 1st of January 1980 untill the 19th of June 1980 were eligible to apply for permenant residence in Australia assuming that they apply for P.R. between these dates. I was in Sydney for one week only at the time for a holiday from Perth, I sent the enclosed letter dated 24th of April 1980 requesting a permenant visa in Australia for which I received no reply. On the 3rd of December 1980 I went to the Immigration Department and showed them this copy of the letter and I was told that I should apply for P.R. Immediately I filled out an application form and waited for an answer, which came on 15th January 1981 asking me to go for an interview on the 22nd January 1980. When I did go for the interview I was told that they could not find the original copy of the letter dated 24th April 1980 and I was refused permenant residence in Australia. I feel that I am being refused permenant residence because of a clerical error in not being able to find my original letter of application, and ask that you reconsider my application or make another attempt to find my original letter. I would be glad to hear from you sir as soon as possible." (sic)

This letter also showed his address as 24 Byer Street, Enfield. On 1 June 1981 a letter was sent to the applicant at the Enfield address referring to his December 1980 application for resident status under the ROSP program. It outlined the criteria for eligibility in the program, noted that he was not within the eligible categories and that his application for ROSP could not be approved. The letter required evidence of confirmed departure plans within 14 days of receipt. It was returned marked "Return to Sender". By a further letter dated 8 July 1981 sent to him at the same address, Mr P. Wyld for the Secretary of the Department, reaffirmed that he was not in an eligible category for permanent residence and that he should make arrangements to leave Australia without delay and provide details of departure arrangements within 7 days to the Regional Director of the Department in Sydney. It was pointed out that he might apply for migration to Australia at any Australian visa issuing post overseas. The letter also said:

"You mentioned that you did not receive a reply to a letter dated 24 April 1980, a copy of which you attached with your latest correspondence. It is normal practice for letters to be acknowledged immediately on receipt and it has been explained to you that there is no record of having received this letter in this Department. You will recall that in your letter of 7 July 1980 to the Minister, written while you were residing at Nollamara, you wished "to enquire about being a permanent resident in Australia" and made no mention of the fact that you had previously applied to the Sydney office of this Department for permanent residence. It does seem unusual that you did not bring this fact to the notice of the Department."

This letter was posted on 9 July 1981 but was also returned marked "RETURN TO SENDER". Checks were later carried out to see whether there was any record of his departure from Australia. In a file note dated 5 November 1981 from an officer of the ROSP section to the Residence Control Section, the opinion was expressed that the copy letter of 24 April 1980 was a "put up job". Reference was made to the New South Wales address and the fact that the letter of 7 July 1980 mentioned only visits to WA and SA. It was suggested that a check be made on 24 Byer Street, Enfield to determine whether there was any support for Geroudis' claim to have stayed there in April. On 10 December 1981 an officer of the Department again wrote to him, this time at an address previously given at Nollamara in Western Australia. This letter also was returned. A file memo dated 28 July 1982 from an officer called Prexl indicated that inquiries had been made with the occupants of 24 Byer Street who confirmed that they were distant relatives of Geroudis and that he had stayed with them in Easter 1980.

According to Geroudis' affidavit in these proceedings, sworn on 12 October 1989, he first travelled to Sydney in April 1980 to visit relatives and stayed there with his aunt at 24 Byer Street, Enfield. He said that he remained in Sydney for about 3 1/2 years and made no attempt to conceal himself from the Department. There was no reference to any return to Perth before January 1985 when he went back to be with his brother. In a later affidavit sworn 4 December 1989, he said that he had adopted the name Paul Spyrou shortly after he "went to live in New South Wales". In July 1980 he said he purchased a car in that name and:

"From about that time I continued to use the name Paul Spyrou in all my activities in the community including my employment, telephone accounts, electricity accounts, driver's licence, motor vehicle registration and Social Security benefits."

He denied adopting the name to avoid detection by the Department. He claimed that Australians had difficulty in pronouncing and spelling his real name and that it is not unusual for members of the Greek Cypriot community to adopt their father's christian name as a surname. His father's christian name was Spyrou. He also swore that on 24 April 1980 he wrote the letter of that date to the Department. He was not cross-examined on his affidavit evidence. In or about August 1989 officers of the Department received anonymous information concerning his whereabouts and on 22 August 1989 located him while he was visiting friends at 191 Princess Road, Balga and there took him into custody under s.38(1) of the Migration Act 1958. He was placed in the Perth Immigration Detention Centre.

He said that when accosted by immigration officers at Princess Road he was asked what his name was and whether he knew any one called Paul Spyrou. He told them that was his name. Asked when he had come to Australia, he replied "in 1972 or 1973". He then showed them a driver's licence in the name of Paul Spyrou. Subsequently inside his friend's house he told the officers his correct name, that he had arrived in Australia in 1980 and that he was overstayed. Although he had told them initially that he arrived in Australia in 1972 or 1973 this was because he was "surprised and frightened by their sudden and unexpected arrival and because they were asking about Paul Spyrou".
In a file note of this initial encounter, prepared on the same day by one of the officers, it was said that:

"The question of his status was pursued further and the a/n (abovenamed) eventually admitted to being a P.N.C. (prohibited non-citizen). Claimed to have been in A/iA since early 1980 and that the Dept had his P/P (passport)."

He was interviewed at the detention centre on 1 September 1989 in the presence of a solicitor, Mr B. Georgiou, by Mr R. Barry. In the course of the interview which was recorded on a printed questionnaire later signed by him and his solicitor, it appears that he admitted using the name Paul Spyrou "...because it was easier to pronounce by Australians and secondly because I overstayed". He had also opened a bank account in the name of Paul Georgiou. That was a name he started using in 1986. Various personal details were obtained which are not material for present purposes. He said that his brother's wife had recently, in 1989 suffered a nervous breakdown and that if he were to depart Australia his brother and his brother's three children aged 8, 6 and 3, would be without the assistance which he had been giving them. He had been looking after the children while his brother was at work. Geroudis himself, had worked as a self-employed house painter but not during the time he had been looking after his brother's children. His last job had been on 27 July 1989. Prior to that he had been unemployed for 2 1/2 years except for a period of about one month. He claimed in the course of the interview to have applied by letter for permanent residence in April 1980. He agreed that he had been asked to leave Australia in 1981 and said:

"I didn't leave Australia because I liked Australia and didn't want to leave."

He told the interviewing officers he had a Medicare card and that he had used it for dental work and "a few other claims". And during the period 1986 to 1989 he had received unemployment benefits to the extent of "$16,000 to $17,000". He had paid tax for money earned when employed.

At the conclusion of the interview Geroudis was invited to make such submissions as he wished on whether he ought to be allowed to remain in Australia, deported or allowed to depart voluntarily. He told the officers however that any representations would be made by another solicitor, Mr Jack Courtis. He was said to have indicated during the interview that he would be lodging an application for grant of resident status depending upon the availability of legal assistance. On 6 September he signed a statement that he was prepared to depart Australia voluntarily. This was evidently acceptable to the Department. The following day, on 7 September, however he filled out an application for the grant of resident status on strong compassionate or humanitarian grounds. In that respect he relied upon the fact that his sister-in-law had had a nervous breakdown and was not able to look after her three children for whom he had been caring for six months. He pointed out that if required to leave Australia where he had lived for 9 1/2 years he would have to return to a country and a life with which he was no longer familiar. He did not believe that Cypriot authorities would allow him to return to Australia as the country was on a war footing and the men required to remain there.
The application was accompanied by a hand written letter to the Minister dated 9 September in which he made the following points:

1. That his brother had applied for his entry into Australia as a resident in the late seventies, that the application had been followed up by an enquiry to the Australian Embassy in late 1979 and that the Embassy had written to him in Nicosia indicating that he could be eligible to enter Australia for residence. He pointed out that it would have been necessary for him to return to Cyprus to pursue that application and that he had failed to do that because of financial constraints and the ill health of his brother.

2. That he would have been qualified for resident status under the ROSP program if his letter of 24 April 1980 requesting permanent residence had not been "lost in transit". The circumstances behind this matter he said "were purely superficial administrative and clerical blunders and no fault of my own".

3. He pointed to his activities with the Greek community in Australia since arrival, the absence of any criminal record and the assistance that he had been able to give to his brother and his brother's family.

A further letter dated 12 September 1989 was sent to the Minister by his solicitors, Messrs. Claudio Russo Shaw, making representations on his behalf broadly along the same lines as those set out in his letter but including the assertion that he had left Cyprus in 1980 for political reasons as he had been threatened by a fanatical political group who accused him of supporting the then President of Cyprus, Archbishop Makarios. Letters of support from the Greek community were enclosed.

On 5 October 1989 Mr M.H. Richardson of the Compliance and Criminal Deportations Section of the Perth office of the Department of Immigration and Ethnic Affairs prepared a submission to the State Director of the Department, Miss Norgard, in which the history of Geroudis' entry into Australia, the contents of the interview on 1 September 1989, the lodgment of the application for resident status and the supporting letter of 9 September 1989 and the letter from his solicitors dated 12 September 1989 were all referred to and summarised. The history of correspondence between Geroudis and the Department and Minister in 1980 and early 1981 was set out, as were the circumstances of his apprehension on 22 August. Mention was made of his admissions in the course of the interview of 1 September 1989 that he had used Medicare periodically and that he had received unemployment benefits during the periods 1986 to 1989 amounting to between $16,000 and $17,000. The complaint in the letter of 9 September relating to "purely superficial administrative and clerical blunders" was said to "presumably" refer to the non receipt of "the claimed April 1980 letter". And in further reference to that letter it was said:

"The copy of this letter bore the address of 24 Byer Street, Enfield, NSW. No record was held of the receipt of this letter and serious doubts existed about its genuineness. "

The submission also contained under the heading "Findings of Fact":

"At the time of his location Mr Geroudis had initially attempted to mislead Departmental Officers by claiming to be one Paul Spyrou and evidencing this identity by production of a WA Motor Driver's License. He also claimed to have migrated from Cyprus in 1972."

In a list headed "Evidence or other materials on which findings based" there was a further sceptical reference to the letter of 24 April in the following terms:

"The copy of a R.O.S.P. application by Mr Geroudis dated 3 December 1980 and a copy of a letter to DILGEA, Sydney for Mr Geroudis dated 24 April 1980 purporting to be seeking resident status as at that date - Attachment "F"."

Under the heading "Assessment" Richardson dealt first with the possibility of granting Geroudis a further temporary entry permit under sub-s.7(2) of the Migration Act. This, it was said, might be considered inappropriate by the director having regard to factors which included the following:

"He had received benefits from the Australian community to which he had no entitlement in the form of Medicare Benefits and Unemployment Benefits amounting to a total of between $A16,000 and $A17,000.

He had attempted to mislead Departmental Officers at the time of his location by falsely claiming to be a permanent resident of Australia under the assumed name of Paul Spyrou."

In relation to Geroudis' argument about his eligibility under the ROSP program the submission noted his contention that he should not have been disadvantaged by the absence of any departmental record of the receipt of his letter of 24 April 1980 seeking resident status but went on:

"He has been unable, however, to successfully contest the assessment leading to refusal of his R.O.S.P. application, nor has he addressed the issue as to why he had chosen thereafter to remain in Australia illegally until his application on 22 August 1989."

The submission referred to the matters advanced as "compassionate or humanitarian grounds" for the grant of permanent resident status and concluded that they did not amount to such grounds. The delegate was told that in exercising her discretion she should bear in mind, inter alia, that Geroudis had:

1. Claimed unemployment benefits for a period of over 2 years and received from the Australian community around $16/17000.

2. Used Medicare and attended Carlisle Technical College for a year, notwithstanding that he was not entitled to use those facilities.

3. Assumed a false identity by using the names of Paul Spyro and Paul Georgiou to prevent detection and attempted to mislead departmental officers at the time of his location by initially maintaining his false identity and by claiming to be a permanent resident of Australia.

Richardson further submitted that the circumstances did not warrant the exercise of a discretion to grant a temporary entry permit or permanent entry. He recommended that Geroudis not be permitted to depart voluntarily from Australia and that he should be deported. At the foot of the submission in block letters was the following:

"GRANT OF A TEMPORARY ENTRY PERMIT APPROVED/NOT APPROVED

RESIDENT STATUS APPROVED/NOT APPROVED VOLUNTARY DEPARTURE APPROVED/NOT APPROVED DEPORTATION ORDER SIGNED/NOT SIGNED"

As appears from the document in evidence the delegate proceeded to delete the "APPROVED" option in each case and the "NOT SIGNED" option in relation to the deportation order. She then signed the submission and dated it as at 6 October 1989.

Also received in evidence was an affidavit by the delegate exhibiting a statement of reasons for the decisions prepared by her on 1 November 1989 in accordance with s.13 of the Administrative Decisions (Judicial Review) Act 1977. She was not cross examined on her affidavit, which I take as her evidence that the reasons exhibited were in truth the reasons for her decisions.
After reviewing the history of the matter along lines similar to those set out in the Richardson submission she commented in relation to the letter of 24 April 1980 that the officer who interviewed Geroudis on 22 January 1981 "had noted that serious doubts existed as to the genuineness of the letter of 24 April 1980". She observed at para.16 of the FINDINGS ON MATERIAL QUESTIONS OF FACT that:

"At the time of his location Mr Geroudis had initially misled Departmental Officers by claiming to be Paul Spyrou. He produced a WA Motor Driver's Licence as evidence of this identity. He also claimed to have migrated from Cyprus in 1972. He had subsequently admitted his true identity and status when questioned further."

Reference was again made to the interview of 1 September 1989 and the admissions relating to the receipt of Medicare and unemployment benefits. Further claims relating to the letter of 24 April 1980 as set out in Geroudis' letter of 9 September and that from his solicitors on 12 September were also canvassed.

Under the heading "REASONS FOR MY DECISION", reflecting the "ASSESSMENTS" section of Richardson's submission, she rejected Geroudis' contention that he would have been accepted for migration from Cyprus or under ROSP and in particular said:

"I found on the evidence available that the issues and his claims on these matters, including the need to return to Cyprus to establish possible eligibility and whether the letter dated 24 April 1980 had been sent and/or received by the Department, had been addressed and settled in 1980-81. I therefore gave no weight to these claims."

In relation to the possibility of a further limited stay in Australia under a temporary entry permit the delegate set out, among adverse factors that:

1. He had received benefits from the Australian community to which he had no entitlement in the form of unemployment benefits, amounting to a total of between $16,000 and $17,000.

2. At the time of his apprehension he had misled Departmental Officers by claiming to be a permanent resident named Paul Spyrou. It was also noted that it is an offence under the Act to mislead an officer in the exercise of his powers or the performance of his duties under the Act.

In dealing with the option of voluntary departure, she noted that he had failed to leave when given that opportunity in 1981 and had breached Australia's migration laws in the eight years since then. She considered in all the circumstances that deportation was warranted.
The Grounds for Review
By his amended application, Geroudis seeks to review all four decisions of the delegate taken on 6 October 1989. Broadly stated the grounds upon which review is sought are breach of natural justice, improper exercise of power by taking account of irrelevant considerations and failing to take account of relevant considerations and unreasonable exercise of the power. It was also contended that there was no evidence or other material to justify the making of the decisions and that they involved an error of law.
As further particularised and after certain concessions, these resolved to the following submissions:

1(a) The applicant was given no opportunity to contest the contentions put to the delegate that:

(i) the copy letter of 24 April 1980 was not genuine;

(ii) he had misled departmental officers at the time of his apprehension;

(iii) he had received benefits from the Australian community totalling $16,000 to $17,000 to which he was not entitled.

(b) Implicit in the above contentions was the suggestion that the applicant was a person who did not tell the truth, a suggestion which he was given no opportunity to refute.

2. The delegate took into account an irrelevant consideration namely the various addresses of the applicant since 1980 and the return of certain letters from the Department to the applicant undelivered.

3. The delegate failed to take into account relevant considerations namely:

(a) the applicant's claim that he had complied with the requirements of the ROSP program;

(b) the claim that he would have difficulty in returning to Australia if deported to Cyprus;

(c) the approval of his migration to Australia by the Australian Embassy in Greece in 1980;

(d) the fact that he may have been legally entitled to a significant proportion of the social security benefits which he received.

4. There was no evidence or other material to justify the findings that:

(a) he was not entitled to the social security benefits;

(b) his letter of 24 April was not genuine or had been manufactured;

(c) that the issues and the applicant's claim in respect of his need to return to Cyprus to establish possible eligibility for migration to Australia and whether the letter dated 24 April 1980 had been sent and/or received by the Department had been addressed and settled in 1980/81.

5. The decisions involved an error of law in so far as they involved a determination that Geroudis was not eligible to have received any part of the $16,000 to $17,000 in social security benefits.

Natural Justice Grounds

Counsel for Geroudis submitted that it was apparent from Richardson's submission to the delegate that he was urging upon her the view that the copy letter was not genuine, a view she implicitly accepted and which Geroudis had no opportunity to refute. Accepting that Richardson's submission embodied that conclusion and that it was adopted by the delegate, it is necessary to consider whether natural justice required that Geroudis have an opportunity to comment upon it.
The judgment of the High Court in Kioa v West (1985) 159 CLR 550 establishes that the Migration Act 1958 as it stood at the times material to this case, does not displace the duty to act fairly in accordance with natural justice (see at p 585 per Mason J., 600 per Wilson J., 625 per Brennan J., 632 per Deane J.) The content of the duty will vary according to the circumstances. Where deportation is considered the prospective deportee can support his case by appropriate information and material but cannot complain if it is not accepted. If some factor personal to him based on information from another source is likely to have an effect on the outcome, he should be given an opportunity of dealing with it - Kioa (supra) at p 587 per Mason J. and p 628 per Brennan J.. The duty so expressed does not require the decision-maker to expose his or her conclusions for comment before taking the decision in question. Within the bounds of rationality the views formed upon material advanced by a prospective deportee are a matter for the decision-maker - Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at p 506 per Fox J., p 513 per Neaves J.; Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469 at p 499 (Lockhart J.). The dicta in those cases reflect the general proposition set out in the judgment of Lord Diplock in F. Hoffmann-La Roche and Co. v Secretary of State for Trade and Industry (1975) AC 295 at p 368:

"The rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."

If it be that Richardson's submission and the delegate's decision incorporated an opinion or finding that Geroudis' copy letter of 24 April 1980 was not genuine, it was an opinion based upon factual material provided by Geroudis. And not only was it in the circumstances a reasonable view, but one which on the evidence before the decision-maker was justified. The fact that Geroudis swore an affidavit to the contrary in these proceedings is not to the point. He was not cross-examined on that affidavit but that omission was, I think, deliberate and based upon the general submission put by counsel for the delegate when the hearing commenced, that material going to the findings was not relevant in these proceedings unless it was before or available to the delegate when the decision was made. And without wishing to elevate that submission to the level of principle, it was correct in the circumstances of this case. It is not for this Court to determine whether or not the copy letter of 24 April was genuine.
On the assumption that there was a positive contention advanced to the delegate or finding made by her that the copy letter of 24 April was not genuine but represented an attempt to mislead the Department, there was no failure of natural justice in that finding. In fact Richardson's submission goes little further than to report considerable scepticism about the authenticity of the copy. Generally speaking, statements of doubt or suspicion have little proper function in such submissions if they cannot lead to positive findings. That is not to say that there may not be occasions when suspicion is relevant to the assessment of risk associated with allowing a person to remain in Australia. For example, a reasonably based suspicion that a person has been involved in drug trafficking or terrorist activities in which the person concerned cannot dispel may be relevant. Even so, findings of "suspicion" are to be treated with the greatest caution by decision-makers. In the event the delegate appears to have dismissed Geroudis' contention that he had sent the letter of 24 April on the basis that that was a matter addressed and settled in 1980-81.

The other issues addressed under the rubric of natural justice can be disposed of quite shortly. The submission to the delegate that Geroudis had "initially attempted to mislead departmental officers" when apprehended in August 1989 was clearly correct and not really disputed as a matter of fact. Some complaint was made of the file note of 22 August in which it was said that after "...the question of his status was pursued further... the A/n eventually admitted to being a PNC.". This was said to have given a false picture of what had occurred and that had Geroudis been permitted to comment on it he would have explained that he had volunteered his true name and details of his arrival in Australia without being "pursued further". In my opinion no unfairness is disclosed. It is undisputed that he gave a false name and arrival date to officers when first apprehended and it is clear that the officers did not accept those statements at face value. These matters were fairly reported in the file note and in the submission to the delegate. This is not a case of the kind referred to by the Full Court in Barrett v Minister for Immigration and Ethnic Affairs (1989) 18 ALD 129 at p 133, where a decision may be vitiated if based upon an ex parte departmental submission which is seriously misleading as to the facts.
The third point made under the natural justice ground related to Richardson's submission that Geroudis had received unemployment benefits to which he had no entitlement. The benefits in question were received over the years 1986 to 1989 inclusive. Amendments to the Social Security Act which took effect in 1987 effectively excluded persons who were prohibited non-citizens from eligibility for benefit. Now although it appears to be conceded by reason of that amendment that Geroudis had obtained benefits to which he was not entitled, it was contended that it was arguable that he was entitled to benefit in the periods for which he had received them prior to the amendments. Support for the legal proposition was said to be derived from a decision of the Administrative Appeals Tribunal in Re Elsdon v Secretary to the Department of Social Security (unrep. 7/8/85). That case involved the eligibility of a prohibited immigrant for payment of Family Allowance in respect of her infant son. It was a condition of eligibility under s.96 of the Social Security Act that the claimant "has during the period of 12 months immediately preceding the date on which the claim was lodged had his usual place of residence in Australia". In the alternative the residence condition would be met if the Secretary "were satisfied that the claimant and the child are likely to remain in Australia" (s.96(2)(a)). The Tribunal took the view that a person who was a prohibited immigrant under the Migration Act 1958 as it then stood could nevertheless satisfy the Secretary that he was likely to remain in Australia and was entitled to receive family allowance. This determination arose out of the particular statutory provisions applicable to that class of benefit. Section 107 of the Act relating to unemployment benefit as it stood prior to the 1987 amendment, required as conditions of eligibility that the applicant "...resided in Australia throughout the relevant period and on the date on which he lodged his claim for benefit" and that he satisfied the Secretary "that he is likely to remain permanently in Australia". I make no comment on the correctness of the Tribunal's conclusion in Re Elsdon (supra), and I leave open the question whether a person who was a prohibited non-citizen in 1986 could under any conceivable circumstances have met either but more particularly the second of the two conditions. In the circumstances of the case as they were known to the decision-maker based upon the factual material which emanated from the applicant, there is no way that the applicant could have satisfied the second condition. As a prohibited non-citizen and absent any real question of refugee status or strong compassionate or humanitarian grounds, there was no reasonable basis for any argument that he was "likely to remain permanently in Australia". The legal conclusion that Geroudis was not entitled to the benefits he received was in my opinion correct and there was nothing he could have said had he been given the opportunity which could have altered that conclusion.
It was also contended that Geroudis had no opportunity to refute the implication in the submission to the delegate that he was a person who did not tell the truth. But this, as expounded, was a rolled up version of the arguments advanced on the individual questions already mentioned. For these reasons the applicant fails on the natural justice ground.
Irrelevant Considerations
In Richardson's submission to the delegate it was noted that in his application for the grant of resident status on 8 September 1989, Geroudis had given his residential address as 110 Widgee Road, Noranda. In answer to questions in the course of his interview he had said he lived at 12 Quondong Street, Nollamara from February 1980 to November 1980 and that from November 1980 to December 1984 he was living at 24 Byer Street, Enfield. Yet, it was noted, a letter sent to the latter address on 3 June 1981 was returned unclaimed. This was said to be essentially irrelevant to the discretions to be exercised by the delegate. But as counsel conceded these matters were taken no further in the assessment portion of the submission. In my opinion, they are matters of comment upon Geroudis' claims which seem to have played little part in the ultimate decision. The delegate was entitled to be informed of the history of his movements within Australia and to consider advice of an evaluative character on those claims, without inviting further comment from Geroudis. There is no basis for review of any of the decisions on this ground.
Failure to Take into Account Relevant Considerations
The delegate is said to have failed to take into account considerations relevant to the discretion to grant resident status to Geroudis or to deport him. The various considerations referred to have already been set out in the outline of the grounds of the application.
The claim of compliance with the requirements of eligibility under the ROSP program in 1980 was considered and dealt with on the basis that it was not established that any application for resident status within Australia had been made prior to 7 July 1980, a corollary of the rejection or non-acceptance of the copy letter of 24 April 1980 as evidence of such an application. The fact that Geroudis would have difficulty in returning to Australia if deported to Cyprus is also said not to have been taken into account. This was a reference to his contention in the application for resident status made on 8 September 1989 that Cypriot authorities would not allow him to return to Australia as Cyprus was on a war footing and the men were required to remain there. This is a matter not expressly mentioned in the Richardson submission. It is evident that at one level Geroudis might well have difficulty in coming from Cyprus to Australia because of financial constraints. But the fact that local conditions arising because of the domestic political situation might impede his departure from that country was not of itself a consideration of such importance to the exercise of the various discretions concerned in the case that failure to consider or advert to it constituted an improper exercise of power. It is peripheral in the face of the difficulties that Geroudis would encounter in persuading Australian authorities in the short term to let him return to this country following his deportation from it.
The "approval of his migration to Australia by the Australian Embassy in Greece in 1980" was said to be another relevant factor not taken into account. The fact is that there was no such "approval" but a letter of 11 June 1980 indicating that he might meet the new requirements for migration of relatives of Australian residents. The letter left open the question whether an application made from Cyprus in June 1980 would have succeeded. It did no more than raise a possibility previously not available. In the event, it had no role to play in the disposition of the decisions now under review.
The question of Geroudis' possible legal entitlement to some of the social security benefits claimed has already been delat with under the natural justice ground, and does not give rise to any fresh consideration in relation to the allegedly improper exercise of power.
No Evidence or Other Material
This ground can be disposed of shortly. The conclusion that Geroudis was not entitled to the social security benefit he has claimed and received was plainly supported by the evidence. And if there was a positive finding implied in the reasons for the decisions made that the copy letter of 24 April 1980 was not genuine, then there was evidence to support that finding. The fact that this and other questions relating to Geroudis' application in 1980 had been addressed and settled was also a conclusion open on the evidence. There is no ground of review disclosed under this head.
Error of Law
This ground raises again the question whether the submission made and evidently accepted by the delegate that Geroudis was not entitled to the unemployment benefit he received was correct as a matter of law. Assuming an issue of this kind to lie within the purview of error of law as a ground of review under the ADJR Act, I am satisfied that there was no such error in the view expressed in Richardson's submission.
CONCLUSION
For the reasons outlined above, the application must be dismissed. The dismissal is not an endorsement of the merits of the decisions. It follows simply from the conclusion that, in making them, there has been no unfair procedure, irrationality or error of law. It does not reflect the human dimension of those decisions. Geroudis has now lived in Australia for 10 years. He has evidently become a respected member of the Greek Cypriot community. Had he stayed a few months longer in Cyprus in 1980 he might well have been a successful applicant for resident status. But government policy which applies to cases such as the present is directed to the control of migrant flow to Australia. The prevention and deterrence of illegal entry, overstaying and other contraventions of the immigration laws are proper means for the enforcement of that policy. That is not to say that the result in this case is not a sad one. At the individual level it seems unlikely that Australia would have suffered if Mr Geroudis had been allowed to stay.

[1990] FCA 153

19 APRIL 1990