Ju Sheng Xia v Minister for Immigration, Local Government & Ethnic Affairs]
[1992] FCA 337
•29 MAY 1992
Re: JU SHENG XIA
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. N G508 of 1991
FED No. 337
Administrative Law
(1992) 27 ALD 668 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)
CATCHWORDS
Administrative Law - Administrative Decisions (Judicial Review) Act - Immigration Law and Practice - breach of the rules of natural justice - whether failure to put matters of critical importance to decision-maker to applicant amounts to breach.
Administrative Law - Administrative Decisions (Judicial Review) Act - Immigration Law and Practice - relevant considerations - irrelevant considerations - role of policy - improper exercise of power - matters to consider.
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Act (1958) (Cth)
Migration Regulations 1989 (Cth)
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363
Rubrico v Minister for Immigration and Ethnic Affairs (1989) 86 ALR 681
Akers v Minister for Immigration, Local Government and Ethnic Affairs (1988) 98 ALR 261
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Council of Civil Servants Unions v Minister for Civil Service (1985) AC 374
Kioa v West (1985) 159 CLR 551
Surinakova v Minister for Immigration, Local Government and Ethnic Affairs, unreported, Federal Court of Australia, Hill J., 4 December 1991
HEARING
SYDNEY
#DATE 29:5:1992
Counsel for the Applicant: Mr S. Gaegler
Instructed by: Elsworthy Jones
Counsel for the Respondent: Ms R. Henderson
Instructed By: Australian Government Solicitor
ORDER
THE COURT MAKES THE FOLLOWING ORDERS:
1. That the decision under review be set aside;
2. That the matter be referred back to the decision-maker to be dealt with in accordance with these reasons;
3. That the respondent to pay the applicant's costs.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
JUDGE1
This is an application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act") seeking judicial review in respect of a decision by a delegate of the Minister for Immigration, Local Government and Ethnic Affairs (the "Minister") refusing the applicant's application for the granting to him of resident status pursuant to s 6A of the Migration Act (1958) (Cth) (the "Act").
The applicant, Ju Sheng Xia, is a national of China and was born in that country on 15 April 1948. He arrived in Australia on 4 September 1982 as the holder of a visitor's visa and was granted, pursuant to s 6 of the Act, a temporary entry permit ("TEP") valid for three months. The TEP was endorsed "Employment Prohibited". No further TEP's were granted and accordingly the applicant has been a prohibited non-citizen since 5 December 1982. On 28 November 1986 the applicant applied for a Grant Of Resident Status ("GORS"). The basis of his application as set out in his "Application for Resident Status in Australia" application form was "strong compassionate or humanitarian grounds" (s 6A(1)(e) of the Act). Specifically, the applicant suffered from a serious medical condition, the details of which are as follows.
In 1984 the applicant was diagnosed as having aplastic anaemia. In June of that year he received a bone marrow transplant for that condition, and since that operation has received treatment for the ongoing medical problems associated with the transplant. In his application form the applicant declared that:-
"It will be appreciated that such surgery is rare and there is plenty of medical opinion to say that I am very lucky to be alive still. Certainly were I to have been living in China I would not have survived. It is really because there are no adequate medical facilities for my follow up care available in Chain (sic) that I seek to remain permanently in Australia."
Attached to the application form was a letter of Dr Bradstock, the applicant's treating doctor, dated 12 June 1986 which authenticated the applicant's medical condition.
The applicant indicated in the appropriate section of the form that no other persons than himself were included in the application. He did, however, as required in the form, provide details as to his family in China. Also, he forwarded with the application a prescribed sponsorship form in favour of his wife and two sons resident in China. He stated that he would be hopeful that they might join him in Australia. The details in the form were incorrect. There were three children, not two as stated. Moreover, the sons were not in good health as stated. The applicant was notified on 15 January 1987 that his application had been received. By letter dated 20 January 1988 the Minister made inquiries relating to the applicant's illness and his capacity to undertake employment if permission to remain was granted. That was answered by the applicant's brother by letter dated 22 January 1988 which certified that he would be willing to offer the applicant a full-time position working in his market garden. By letter dated 10 February 1988 Dr Bradstock provided the details of the applicant's medical condition at that date. That letter stated that:-
"The applicant's progress ... has been generally very good, although he has suffered from a number of infections including an episode of severe herpes zoster and a probable left basal pneumonia. His blood count has normalised since his transplant, and his long term prognosis is good. However, he requires regular follow up, both from the point of view of the risk of further infective complications, and also because of the prospect of long term complications from bone marrow transplantation including second malignancies and endocrine abnormalities. In my view, it is the duty and responsibility of the transplant centre to provide this long term care, and I believe that this would not be available should he be forced to return to China."
However, the application was refused. Apparently it was considered that appropriate medical treatment was in fact available in China. The appropriate departmental officer stated that "(i)n balance, the applicant's improved health, the availability of appropriate care in China and the presence of his family in that country outweigh the availability of employment in Australia and the stated responsibility of the transplant unit here", and recommended to the Minister's delegate that the application be refused. The recommendation was accepted and refusal was notified to the applicant on 5 May 1988. He was also advised that he had no right to any departmental review of the decision.
Representations were then made direct to the Minister by the applicant's advisers (an immigration consultant) seeking reconsideration by him of the decision. This was, apparently, an accepted procedure in the absence of a prescribed method of appeal. The representations were supported by additional medical evidence and opinion as to the availability of appropriate treatment in China. After the receipt of these representations, further advice as to the availability and accessibility of medical treatment and facilities in China was sought on behalf of the Minister from the Australian Embassy in Beijing. This advice was to the effect that such treatment would not be available to the applicant.
On 23 June 1989 a Regional Director of the Department of Immigration, Local Government and Ethnic Affairs approved the applicant's application for GORS on strong compassionate grounds. This is evidenced in a hand written memorandum of that officer. The applicant's representatives were informed of this decision by a letter dated 18 July 1989, signed by the then Minister for Immigration, Local Government and Ethnic Affairs, Senator the Hon. Robert Ray, in which the Minister said:-
"As a result of your representations the case has been re-examined. Medical advice was also obtained from the Australian Embassy Beijing as to the availability of appropriate medical facilities to treat Mr Xia in China. After consideration of further relevant information in this case, I am pleased to advise that a decision has been made to grant Mr Xia Permanent Resident Status in Australia. Mr Xia should contact the Department's office 36-38 Raymond Street Bankstown to finalise the necessary processing." (emphasis added)
The immigration consultant who had been acting for the applicant, upon becoming aware of the Minister's decision as set out in this letter, wrote to the Regional Director of the Department at Bankstown. He enclosed a copy of the Minister's letter. The body of his letter to the Director read as follows:-
"In my assumption that you would not require Mr Xia to complete a fresh resident status application form I have enclosed here a form `Consent To The Grant Of A Resident Entry Permit.' As well, I have enclosed forms M2 and M481 and a Personal Particulars form. Mr Xia has a wife and three children living in China and, naturally, he wishes to sponsor them for migration to Australia and, to give effect the this wish, I have provided a form M40. You will note that I included two children only in Mr Xia's original resident status application when, in fact, he and his wife have three children. The discrepancy must have been caused by a simple oversight on my part when I completed the form. I would appreciate it if you would now give effect the the Minister's decision in the case and I would be pleased if you would let me know fairly soon should you require any further documentation. Thank you for your assistance."
The enclosed consent form was the official form commonly used to notify consent to GORS. It is reasonable to assume that the consultant forwarded this form so that it might be used to give effect in a formal way to the Ministerial decision referred to in the Minister's letter. The fresh sponsorship form, M40, was obviously intended to be substituted for the previous form forwarded in 1986 which contained the discrepancy in relation to the children in China. It is equally clear that this letter was sent in response to the statement in the Minister's letter that Mr Xia should contact the Bankstown office "to finalise the necessary processing". I am quite satisfied that, so far as Mr Xia and his adviser were then aware, the Ministerial grant of resident status had been made as evidenced by the letter from the Minister. Any further processing involved was simply a matter of completing any necessary forms for record purposes and attending to the application for sponsored immigration of Mr Xia's wife and three children in China. I am quite satisfied that in the applicant's mind his grant of resident status was a matter quite distinct of whether the sponsored migration of his family would be permitted. It may be borne in mind that he had been in Australia since 1982 and had been separated from his family in China for over seven years.
It is apparent from the documentary evidence in the case that, upon receipt of the further material from the applicant, the Bankstown branch proceeded to undertake the processing of the request for sponsored migration of the applicant's wife and three children. It seems that the applicant heard nothing from the department beyond receiving on 12 March 1990 a form which might have conveyed to him the message that his own application for grant of resident status was under consideration. I do not consider that it would necessarily have done so. It was a proforma document and was no doubt treated by him as a request for some additional information.
It is clear that this was in fact the applicant's appreciation of the situation because on 5 July 1990 he made a formal inquiry on a departmental document, "Grant of Residence Status Enquiry Form" seeking information as to the progress of the matter. He gave as his "reason for inquiry" the following: "I was informed by the Minister of Immigration on 18 July 1989 that a decision has been made to grant my permanent resident in Australia. I had done the needful to finalise the necessary processing since then , but up to now I haven't received any further news from your office".
It is apparent, however, that the departmental officers considering the matter had not treated the Ministerial letter as signifying that any final decision had been made in favour of the applicant. In an internal memorandum of 9 March 1990, sent by the Department to the Australian Embassy in Beijing, the basis upon which the departmental officers were proceeding is made quite clear. It reads as follows:-
"A/N (application) APPROVED IN PRINCIPLE FOR GORS. WIFE and THREE CHILDREN ALSO INCLUDED IN APPLICATION. ENCLOSED IS
M40. PLS INITIATE PROCESSING FOR IMMIGRATION."
For reasons to which I shall make more detailed reference later, the Department, despite the wording of the Minister's letter of 18 July 1989 treated the decision as being one "in principle" only. It was to be subject to further checking of the application and, most significantly, it was to be dependent upon the success of the application for immigration of the applicant's wife and children. They were regarded as being "also included" in the application.
The applicant's wife and three children applied, on 13 August 1990, in Beijing, for migration to Australia. As part of the processing of their application they were required to undergo medical examinations. These examinations revealed that the applicant's two sons suffered from deaf mutism, a prescribed condition under s 16 of the Act and Reg 176(c) of the Migration Regulations 1989 (Cth). This, for practical purposes, had the effect of rendering rendered them ineligible for migration to this country. The Australian Embassy in Beijing advised the department in Australia that the applicant's two sons "failed health requirement" by telex message of 15 January 1991. The applicant's wife was formally notified of the refusal of her application by letter dated 11 February 1991. Therefore, in relation to the applicant's wife and children, the situation was and is that they are unable to enter Australia as migrants, whether sponsored by the applicant or not.
On 30 January 1991 a Mr Duong made inquiries of the Department on behalf of the applicant, who speaks no English. He was told that the Department was awaiting the reply from Beijing in relation to his family who were included in his application. Mr Duong said that Mr Xia stated that his family's inclusion should not effect his application since he has been approved by the Minister already. It was explained to Mr Duong that the family was part of the application and that it was necessary to wait for their processing before "we can do anything".
On 5 February 1991 Mr Duong was advised on behalf of the applicant that his sons had not met health requirements for migrant entry visas. It seems, also, that some remarks of a somewhat unclear nature were made in respect of Mr Xia's own application.
By 20 March 1991, the departmental officer, Mr Phan, who had been communicating with Mr Duong was able, in light of the finalisation of inquiries in Beijing, to report in writing to Mr Rodigari, the relevant Regional Manager of the department, and to make a recommendation in relation to Mr Xia's own application. This document read as follows:-
"Mr Xia, Ju Seng (dob 15.04.48)
(aka Ha, Kui Sang in Cantonese, file number N81/44690) PURPOSE
To obtain your decision on the grant of resident status to Mr Xia Ju Seng.
BACKGROUND
1. On 18 July 1989 the then Minister, Senator Ray, advised the applicant's consultant that the decision to grant Mr Xia Ju Seng permanent resident status has been made (folio 104).
2. The applicant's life would be in danger without expert medical treatments which are not available in China therefore the decision of approval by the Delegate was made on strong compassionate grounds (folio 98) subject to the applicant's dependants meeting all the normal migration requirements including health requirements.
3. Our post in Beijing has advised that Mr Xia's Dependants: spouse Cai Qun Zhen, daughter Xia Ai Hua are medically clear, but Mr Xia's sons Xia Sheng Xi and Xia Rong Xi failed health requirements due to deaf-mutism (folios 147, 150).
4. Copy of details of medical condition from Department of Community Services and Health has been requested from the Beijing post whose reply cable is on file (folio 152).
ISSUES
5. Mr Xia's dependent sons have not met the health requirements and Beijing post has decided to refuse their migrant entry application on medical grounds and will be advising applicant of refusal (folios 147, 150).
6. The extent of social welfare, medical, hospital or other institutional or day care likely to be required in Australia and the inability of the applicant or other family member to provide any special services and care at no public cost.
7. Mr Xia's dependants have failed to satisfy the health requirements for migrant entry to Australia and have failed to justify waiving them therefore Mr Xia's application for the grant of resident status must fail. (emphasis added)
RECOMMENDATION
8. That you refuse the grant of resident status in Australia to Mr Xia Ju Seng."
Mr Rodigari accepted this recommendation and accordingly the grant of resident status to the applicant was refused. This decision and the reasons for it were notified to the applicant by letter on 24 May 1991. The letter, so far as relevant, was as follows:-
"I refer to your application for the Grant of Residence Status which you lodged on 8/12/86. I regret to notify you that, after giving your case careful consideration, a Delegate of the Minister for Immigration, Local Government and Ethnic Affairs, has decided to refuse your application. This decision was made with reference to the Migration Act 1958, Government policy and the merits of your application. On 18 July 1989 the then Minister, Senator Ray, advised your consultant that the decision to grant you permanent resident status has been made and you should contact the Department's office to finalise the necessary processing. The decision of approval in principle by the Minister's Delegate was made on strong compassionate grounds subject to your dependants meeting all the normal migration requirements including health requirements. Our post in Beijing has advised that your spouse, Mrs Cai Qun Zhen, and daughter Xia Ai Hua are medically clear, but your sons Xia Sheng Xi and Xia Rong Xi failed health requirements due to deaf-mutism.
Yours sons have not met the health requirements and our Beijing post has decided to refuse their migrant entry application on medical grounds and will be advising the applicant of refusal.
Your dependants have failed to satisfy the health requirements for migration entry to Australia and have failed to justify waiving them therefore your application for the grant of resident status must be refused. The decision to reject your GORS application may be reconsidered by the Immigration Review Panel. I am enclosing information which outlines the reconsideration process."
On 30 May 1991 the applicant, through his solicitors, sought review of this decision by the Immigration Review Panel (the "Panel").
By letter of 11 June 1991 the applicant's solicitors made the following submissions to the Immigration Review Panel:-
"The decision maker found on 18 July 1989 the then Minister, Senator Ray, advised your consultant that the decision to grant you permanent resident status has been made and you should contact the Department's office to finalise the necessary processing.
The decision of approval in principle by the Ministers' Delegate was made on strong compassionate grounds subject to your dependants meeting all the normal migration requirements including health requirements.' This finding involved a number of errors, namely;
(a) There was no approval in principle by the Ministers' Delegate.
What findings there were were made by the Minister personally and signed Robert Ray' signed 'Robert Ray'.
(b) The finding of the Minister was `I am pleased to advise that a decision has been made to grant Mr
Xia permanent resident status in Australia. Mr Xia should contact the Department's office, 36-38 Raymond Street, Bankstown to finalise the necessary processing.'
In our submission, our client was an Australian permanent resident from that date, 18 July 1989, and the only necessary processing was the proper endorsements in Mr Xia's passport.
The same compassionate circumstances which were extended to our client should have been extended to all his family members as they would, of necessity, been included in his application.
The application should have been considered against the criteria which existed at the time the application was lodged. At that time there was no bar to the health criteria being waived in respect of our client's dependants."
The matter raised in the last paragraph of this submission has, so far as I can see, never been pressed and was not argued before me. It can be put to one side.
As part of the review process, the department provided the Panel with a document referred to as a report. It referred to the early history of the application and its initial rejection. It then went on:-
"Following representations to the Minister for Immigration, Local Government and Ethnic Affairs, an internal review of the rejection decision was carried out. As a result of this review, the application was approved in principle in 23/6/89 by the then Regional Director fo the Department's Bankstown office. The approval in principle was in the basis of strong compassionate grounds under Section 6A(1)(e) of the Migration Act. The then Minister, Senator Robert Ray, wrote to the applicant's migration agent on 18/7/89, advising him of the outcome in the following terms: `After consideration of further relevant information in this case, I am pleased to advise that a decision has been made to grant Mr Xia permanent resident status in Australia. Mr Xia should contact the Department's office, 36-38 Raymond Street, Bankstown to finalise the necessary processing.' In order to finalise processing, Mr Xia's wife and 3 children in the PRC were requested to undergo medical checks. The checks revealed that Mr Xia's two sons suffered from deaf mutism, a prescribed illness under Section 16 of the Migration Act. As a consequence, the Regional Director, Bankstown, rejected the application on 20/3/91 on the basis that health requirements were not met. Mr Xia lodged an application for reconsideration on 30/5/91.
ADDITIONAL COMMENTS
The application for reconsideration essentially contains two arguments:
1) that the primary decision-maker incorrectly considered that the application had been approved in principle by a delegate of the Minister (ie., a Departmental officer), whereas it infact had been approved by the Minister personally; and 2) that the compassionate factors in the case justify a waiver of the normal health requirements. (See letter from Elsworthy Jones, Solicitors, dated 11/6/91, ff. 165-6). Who Approved the application in principle? The assertion by the Mr Xia's solicitors that the application was approved in principle by the Minister personally, rather than by a delegate of the Minister, is incorrect. The approval in principle appears at f. 98, and is clearly that of the then Regional Director, Bankstown Office, Mr Vincent Guica. Although the then Minister, Senator Robert Ray, personally signed correspondence in reply to representations on the case (f.104), he did not personally approve the application. Waiver of health requirements
Regulation 173A requires a total reconsideration of an application. Hence, before considering whether compassionate factors warrant waiving the normal health requirements in this case, it is first necessary to reassess the application against the legal and policy requirements for grant of resident status (GORS). Section 6A(1)(e) requirements
It is necessary to reconsider whether Mr Xia's circumstances amount to strong compassionate grounds for the grant of resident status under S6A(1)(e) of the Migration Act.
Mr Xia has claimed that, were he to return to the PRC, his life would be in danger, because he would not have access to the medical facilities he has required since he underwent a bone marrow transplant. The advice of the medical officer at the Australian Embassy in Beijing, provided on 10/5/89, tends to support Mr Xia's claim. The medical officer advised that Mr Xia would be at greater risk in the PRC, firstly because medical facilities are less advanced than in Australia, and secondly because access to the facilities which do exist in the PRC are more limited than access to facilities in Australia.
I consider that, in the circumstances, requiring Mr Xia to return to the PRC would result in hardship amounting to a strong compassionate circumstance. My assessment, therefore, is that the policy requirements for residents status on strong compassionate grounds under S6A(1)(e) are met.
Section 7(2) requirements
Mr Xia did not hold a valid TEP at the time he applied for resident status. He is therefore unable to meet the legal preconditions for resident status under S6A(1)(e). Given my finding that he meets the policy requirements for resident status under S6A(1)(e), it is necessary to consider whether Mr Xia ought to be granted a valid TEP with permission to work under S7(2) of the Act to enable him to meet the legal preconditions. A TEP may be granted under S7(2) where it is in the public interest to do so. This involves assessing a case fully on its merits.
The fact that Mr Xia's two sons suffer from deaf mutism is an important, although not exclusive, factor in deciding whether it would be in the public interest to grant a TEP under S7(2) in this case.
I have assessed this application carefully on its merits. In so doing,
I have had regard to the guidelines on cases which fail to meet medical requirements, as set out in the Grant of Resident Status Handbook, 1987 edition, at 6.5.1 (attached at A), and in the Migrant Entry Handbook, September 1986 edition, at 5.13 (attached at B). I have also had regard to the oral advice provided by the Director, Medical Clearances Unit, Department of Health (see ff. 179-80). I have given this advice weight in my assessment, although I appreciate that it can only be used as a guide, especially as the Director did not have medical reports on the two sons before her at the time the advice was given.
I consider that the following factors weigh heavily against the grant of a TEP under S7(2) to Mr Xia: . that Mr Xia's two son's, owing to their deaf mutism, will almost certainly require special education and other training in Australia at considerable cost to the Australian public; and that the training will probably involve one-to-one< teaching, thereby< increasing its cost; . that there is considerable pressure on places in schools for the deaf in Australia, and that enrolling Mr Xia's two sons in a such a school may result in a loss of places for Australian< residents;
. that the children;s deaf mutism, combined with their Chinese linguistic background, is likely to result in grave adaptation difficulties should they migrate to Australia; . that there is some possibility that the children's condition has a hereditary cause, and consequently a possibility exists that it may be passed on to their progeny, if any, thereby creating considerable future costs to the Australian public;
. that the children's deaf mutism may significantly diminish their future employability, thereby creating a continuing, and possibly
a lifelong, cost to the Australian public; . that Mr Xia does not appear to have a strong family network in Australia which might help to relieve some of the potential burden to the Australian public of supporting his children - his only close relative in Australia is a sibling; the remainder of his family are in the PRC; . that Mr Xia's own ability to support his family in Australia may be limited by his medical condition. I have also taken into account the fact that Mr Xia breached immigration law by overstaying his entry permit by some four years before applying for grant of resident status. Although I consider that this factor militates against the grant of an entry permit, I have given it only very minor weight. My view is that Mr Xia's own illness, which is clearly very serious in nature, may have served to prevent him from approaching the Department about his immigration status. Against these negative factors, I have weighed the compassionate aspects of the case and any positive factors. In particular, I have weighed the fact that there would be undoubted hardship to Mr Xia were he now required to return to the PRC. This hardship stems in part from the possibility that Mr Xia's own life may be at greater risk in the PRC, owing to the the difference in medical facilities in Australia and the PRC. However, there is also hardship arising from the denial of an expectation that Mr Xia may have developed that he would be allowed to remain in Australia permanently, particularly after his application was approved in principle.
I have also given some weight to the offer of employment to Mr Xia from his brother (f.24).
My conclusion, in all the circumstances, is that it would not be in the public interest for Mr Xia to be granted a TEP. In my view, the detriment to the Australian public which would flow from granting a TEP to Mr Xia and allowing his family, including the children, to enter Australia, outweighs the positive and compassionate factors in the case. The long-term costs to the Australia public of allowing Mr Xia two sons to enter are a particularly significant consideration. I appreciate that this is a difficult case, especially as it involves balancing risks to a person's health against economic considerations. However, my conclusion is that the public interest test under S7(2) is not fulfilled. RECOMMENDATION
I recommend that the application be rejected."
There is no need to set out the attachments. I shall refer to considerations arising from them later in these reasons.
The Immigration Review Panel considered this report along with the applicant's application for reconsideration. It also had available the legislation, handbooks and the case files. It found no grounds upon which the departmental decision should be reversed and recommended that it be maintained. This report and recommendation went to the delegate of the Minister who accepted the recommendation with the result that the decision refusing resident status to the applicant was maintained. Although I do not have any reasons before me for the delegate's decision, I am prepared to accept that they corresponded with the recommendations made in the report to the Panel. It is the decision of the delegate which is the subject of these proceedings (see Surinakova v Minister for Immigration, Local Government and Ethnic Affairs, unreported, Federal Court of Australia, Hill J., 4 December 1991 at 10-12.
I note that the first submission made by the applicant in his request for reconsideration by the Panel would appear to have been misunderstood. As I understand the matter the applicant has always contended that the decision made by the Minister as notified to him on 18 July 1989 was a final decision granting him resident status. His complaint, fundamentally, was that it was later treated at a bureaucratic level as being merely provisional or conditional. The Department, however, appears to have treated the complaint as being of a different kind, namely that the decision, whatever its character, was made by the Minister personally and not, as the later decision-maker accepted, by a delegate. This accounts for the paragraph devoted to this topic in the report to the Panel in which it was asserted that it was the Regional Director at Bankstown who had made the "approval in principle" and not the Minister who had merely signed the correspondence.
In my view, this was a totally false issue, although I accept that it arose through misunderstanding. I am satisfied, the real basis of the applicant's complaint has been that a final decision notified after application had been made direct to the Minister to reconsider the first rejection was made in a final fashion and not, as being either "in principle" or "in principle ... subject to your dependants meeting all the normal migration requirements including health requirements" or as being a "provisional primary decision". This misconception is, however, in my opinion, of no consequence. There has always been a clear issue between the applicant and the Department as to whether there had been a final grant of resident status in favour of the applicant in July 1989.
I turn then to consider the applicant's submissions in support of his application to the Court. The first submission made on behalf of the applicant as to the invalidity of the delegate's decision refusing him a grant of resident status is that there was a lack of jurisdiction to make this decision, in that there was a decision of the Minister granting the status, which had not been revoked. It may be noted that no claim in estoppel is made based upon the terms of the Minister's letter of July 1989. Such a claim could not, in any event, have been maintained (Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, per Gummow J. at 209 et seq).
The applicant submits that the Minister's decision effectively granted him permanent resident status and that the reference in the Minister's letter to "finalising" indicated no more than, as previously mentioned, the mechanical implementation of that decision by its evidencing in any necessary forms, endorsements, etc. There can be no doubt that the expressions in the letter are demonstrably final in form. I think it to a high degree reasonable that the applicant or any reader would have formed the view that the Ministerial grant had occurred. I have little doubt that the text of this letter was a source of some embarrassment to the department in its later dealings with the applicant. Phrases were regularly applied to the Ministerial statement to portray it as provisional or conditional only. I have already made reference to those phrases.
However, the question for the Court is not whether the Ministerial decision so conveyed had every appearance of finality but whether it was in fact a final decision. A consideration of the whole of the background as it emerges in the evidence satisfies me that, despite its appearance, it was not actually a final decision. It must be remembered that the applicant's original application referred incorrectly to the children in China and in particular to their state of health. It did not suggest any problems which could apply to their immigration to Australia. It stressed the primary claim of the applicant was to be granted a permanent entry under s 6A(1)(e) of the Act. The question that this raised immediately was the availability in China of adequate facilities for the applicant's care, having regard to his serious medical condition then under treatment in Australia. That issue was decided against him in the first instance, on the basis that sufficient facilities existed in China. Further representations made directly to the Minister supported by cogent additional material produced a reversal of this finding. This reversal was, unfortunately, expressed in the form of a grant subject to finalisation processes.
These processes were not further defined in the letter. However, the fact is that as a matter of clearly defined departmental policy, they required inquiries as to the circumstances, including state of health, of the applicant's family in China. It is quite plain, from the evidence, that these inquires would have been undertaken in the ordinary course of events, notwithstanding the fact that the application of the applicant was solely for a grant to him of resident status. As it will be remembered, he expressly stated that no-one else was included in his application. However, he expressed the wish that his family might join him in Australia and together with the application he forwarded the necessary sponsorship documents. I am satisfied, however, that even if he had not done so, the departmental officers would have undertaken investigations through the Australian Embassy in China to obtain necessary information about the applicant's family in that country. It is clear, after all the evidence is in and considered, that the purpose of seeking particulars of the applicant's family overseas in the standard application form was to enable these inquiries to be made even if the applicant was not seeking as part of his own application that these family members be permitted immediately to migrate to Australia and become themselves permanent residents.
As these inquiries had not been made at the time of the initial refusal of the application on the basis that the necessary humanitarian and compassionate grounds had not been made out, it was a necessary part of the subsequent "finalisation processes" that they be made after the Minister had decided that the ground was in fact made out. It has been submitted to me on behalf of the department, and I accept, that these inquiries were regularly made and were a critical part of the consideration of a claim for resident status. This was because a person granted resident status not infrequently would seek that permission be given to his family overseas to migrate to Australia to join him. If it should transpire that the family or members of it were ineligible as immigrants then an unfortunate situation would occur whereby a person having been granted resident status was unable to fulfil his wish that he be joined by his family. It was to avoid the occurrence of this type of human tragedy that consideration of family circumstance took place at the time of the original application for resident status. If the situation was that the overseas family members were unable to migrate, then, as a matter of policy, the primary application would be refused.
This policy is amply demonstrated and expounded in a departmental instruction manual entitled "General Visa And Entry Permit No 2 - Family Unit and Dependency", which became part of the evidence in the case. Clearly, inquiries in accordance with these policy requirements were outstanding at the time when the matter went back to the Bankstown office for "finalisation processes". They were matters critical to the application which could not proceed in their absence. Indeed, significant aspects of the information provided with the application proved to be incorrect in light of these inquiries.
I am therefore satisfied that, despite its appearance, the original Ministerial decision was not a final one. This attack upon the delegate's ultimate decision must therefore fail.
The next attack made upon the decision is that it involved an improper exercise of power. This was said to be based upon the fact that the course of events in relation to the application indicated that it was dealt with in a manner involving a fundamental misconception as to its nature on the part of the respondent. It was treated as though it were a joint application made by the applicant on behalf of himself and the family members in China whereas, in truth, it was an application made solely for the grant of resident status to himself, albeit there was foreshadowed an application to sponsor the migration to Australia of the family members mentioned in the application. What I have already said disposes of this particular attack. Clearly enough the application was not treated as a joint application. It was treated as an application on behalf of the applicant for resident status for himself. However, as a matter of policy, the grant or refusal of that application involved a consideration of the circumstances and health of overseas members of the family whose entry into Australia as migrants might be sought then or later. That was the purpose of seeking particulars of them in the form, even though the form itself provided for the furnishing of information as to whether the application was made on behalf of the applicant alone, or the applicant and others. I am satisfied that the application was not dealt with on the basis of the misconception alleged.
The next attack made on the delegate's decision is that it was arrived at as a result of the application of policy without regard to the merits of the applicant's case (ss 5(1)(e), 5(2)(f) ADJR Act). I do not consider that this objection can be sustained. The departmental report and recommendation placed before the Immigration Review Panel, which received its acceptance and thereafter the acceptance of the delegate, is a closely reasoned document. Whilst it pays full regard to the policy expressed in the departmental manual, it does not fail to take into account the special situation of the applicant, having regard to his medical needs. The case was, in my view, seen as an unusual one in so far as the applicant had a health and medical need to remain in Australia whilst the serious disabilities of his children rendered them inappropriate for migration to Australia. A difficult balancing process was undertaken which resulted in a recommendation against the granting of the applicant's application. This was approached in the basis that the considerations relating to the eligibility of the children as migrants formed a critical part of the applicant's own application. The problems associated with their entry into Australia, which are fully set out in the departmental report, were obviously regarded as outweighing the detriment suffered by the applicant should the application not be granted.
I am satisfied that there was no blind application of policy to the exclusion of consideration of the applicant's case on its merits. This ground of objection accordingly fails.
It is next submitted that the delegate's decision should be set aside on the basis that there was exhibited a failure to take account of relevant considerations. There was therefore an improper exercise of power (s 5(1)(e); s 5(2)(b) ADJR Act). Specifically it was said that the delegate failed to take into account the following matters:-
"(a) that the applicant had been separated from his family since his arrival in Australia in 1982;
(b) that a separate application for migrant entry by the applicant's wife and children had already been refused;
(c) that the applicant may have wished to remain n Australia even if his family were unable to join him;
(d) that the applicant had not been presented with the choice of remaining in Australia by himself or returning to the People Republic of China to join his family."
It was submitted that these were considerations that the delegate was bound to take into account in the proper exercise of his power under s 6(2) of the Act (Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39; Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363 at 375; Rubrico v Minister for Immigration and Ethnic Affairs (1989) 86 ALR 681 at 708-709).
With some hesitation, I have come to the conclusion that these were not matters which the delegate was relevantly bound to take into account. It was clear that the delegate was not approaching consideration of the application on the basis that Mr Xia might wish to stay in Australia even if his family could not join him. The Department treated the application at all relevant times as one that involved the consideration of the circumstances of the family in China. The applicant had sought that they be allowed to immigrate from the inception of his application in 1986. Although he had indicated in the application form that it was made on his behalf only, he, nevertheless, forwarded the necessary sponsorship form for their migration. An updated form was forwarded when the matter went back to the Bankstown office after the Ministerial letter of July 1989. In all the circumstances surrounding the application I consider that these matters might properly have been considered by the delegate but in the absence of their being brought to his attention as specific issues, I am of the view that a failure to advert to them did not involve a breach of the section.
It is next submitted that irrelevant considerations were taken into account. This submission was tied to that section of the report to the Immigration Review Panel, apparently accepted by it and the delegate, which dealt with the applicant's application for a TEP pursuant to s 7(2) of the Act. In order to obtain the benefit of a finding that he had strong compassionate or humanitarian grounds for the granting to him of an entry permit pursuant to s 6A(1)(e) of the Act, it was necessary by virtue of the provisions of that sub-section that the applicant also be the holder of a TEP. Of course, he had no such TEP as the one which had originally been granted to him had long since expired. However, under s 7(2) he could be granted a further entry permit after the expiration of one previously in force. It is clear that where the delegate of the Minister decided, in any given case, that it was appropriate for resident status on strong compassionate or humanitarian grounds to be granted pursuant to s 6A(1)(e) that it was customary to give effect to this decision by the granting of a temporary entry permit under s 7(2). This was a merely ancillary matter (Akers v Minister for Immigration, Local Government and Ethnic Affairs (1988) 98 ALR 261 at 270; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 394, 403-404, 412 and 420-421). The applicant's submission is to the effect that there was an improper use of power in that the delegate took into account in determining whether a temporary entry permit should be granted under s 7(2) matters which more properly fell for determination under s 6A(1)(e), namely matters relating to the circumstances of the applicant's family in China.
I do not know why this particular approach was adopted by the delegate. It may have stemmed from perceived difficulties in relation to the Ministerial letter of July 1989 leading to consideration of those matters in relation to the grant of the temporary rather than permanent entry permit. However, I do not see any weight in this submission. So far as applications for entry under s 6A(1)(e) are concerned, in circumstances where an original temporary entry permit of short duration had expired, the two applications (one for temporary entry under s 7(2) and the other for permanent entry under s 6A(1)(e)) could, in my view, for practical purposes, be viewed as a single application. Given that the considerations relating to the applicant's family were relevant in the application under s 6A(1)(e), I am satisfied that they had similar relevance in relation to the application under s 7(2). I therefore reject this objection to the delegate's decision.
It is also submitted that the decision to refuse the applicant's application for the permanent entry permit was so unreasonable that no reasonable person could have made it (ss 5(1)(e) and 5 (2)(g) of the ADJR Act). This amounts to a submission that the delegate's decision was "so outrageous in its deficiency of logic or accepted moral standards that no reasonable person who had applied his mind to the question to be decided could have arrived at it" (Council of Civil Servants Unions v Minister for Civil Service (1985) AC 374 at 410 per Lord Diplock). Even if a wider view is taken of the ground provided by this section, I do not consider that the decision can fall into this category. It was approached on the basis that Mr Xia wanted permanent resident status in Australia and also wanted his family to migrate. In the eyes of the decision-maker, his latter wish, in the circumstances, prevented the granting of the former. In the narrow way in which the matter was approached, I cannot hold that this was a totally unreasonable decision to make.
In my view, however, the applicant is on much stronger ground when he submits that there has been a breach of the rules of natural justice involved in the making of the decision (s 5(1)(a) ADJR Act). There can be no doubt, in my opinion, that the applicant upon receipt of the Ministerial letter of July 1989 could reasonably have assumed, consistent with the terms of the letter, that he had been the recipient of the grant of permanent resident status subject only to formalities. Although the form that he had filled out, with the assistance of the immigration consultant, had sought details as to his family in China, it did not, on the face of it provide any indication as to why that material was sought, let alone spell out the critical importance of it. In fact, it specifically inquired, in two places, whether other persons were included in the application. In response to each inquiry the applicant answered in the negative. It is not suggested that there is anything in the form which, in those circumstances, would direct attention on the part of the applicant to the department's intentions to make inquiries, as part of the processing of his own application, as to the circumstances and health of the family members overseas. Certainly, there was no indication that the results of those inquiries could be quite critical in considering whether the applicant's application would be granted. In other words, the application form did nothing to acquaint the applicant with the department's policy in this regard. Obviously, in the great majority of cases this would create no problems. In an unusual case such as the present, however, it most certainly did.
Neither in the application form, nor in any communication thereafter was it brought to the attention of the applicant that his own application for resident status would be crucially dependent upon whether or not the right to immigrate would be granted to his wife and children in China. It may have been hinted at; as a matter of reading between the lines, the applicant could, perhaps, have gleaned that there was greater significance being attached to the inquiries as to his family than he had previously been aware of. However, I can detect nowhere in the material placed before me any clear indication given to the applicant to the effect that if his family in China were not cleared for immigration to Australia, his application would necessarily be refused. This was so, notwithstanding that this was clearly the policy of the department.
It must be noted, also, that the policy in this area was not totally rigid. Paragraph 14.2.4 of the policy document to which I have made reference provides as follows:-
"Where an applicant has family unit members over-seas who are not included in the application, the application should only proceed if the decision maker is satisfied that those family unit members do not intend to migrate, and if the principal applicant signs an acknowledgment of understanding (see Attachment 1)."
The attachment provided for an applicant signing a form of acknowledgment before a witness to the effect that approval of his entry to Australia would not guarantee subsequent approval for entry of other family members and that any application for such members would be considered on its own merits "in the light of the law and policy in force at the time of any such application".
It is clear that the existence of this procedure was not brought to the attention of Mr Xia during the processing, over a lengthy period of time, of his application and its reconsideration. The relevant officers of the Department proceeded, it appears, at all times, on the basis that Mr Xia wished the family members in China to be permitted to migrate to Australia. They were no doubt led to this view by the fact that Mr Xia had forwarded the necessary sponsorship forms with his application. However, a time came when the information from China indicated that Mr Xia's application could not, as a matter of policy be granted, because of the health problems of his two sons. I am satisfied that he was not made aware that those problems were necessarily going to lead to the rejection of his own application. Clearly, had he been made aware of these matters and of their critical importance, he could have given consideration as to whether he would seek to proceed with his own application on the basis that he would abandon any request that his family be allowed to join him in Australia. Obviously this would have been a difficult and tragic decision for him to make, but, in the context that his compulsory return to China would have constituted a severe threat to his life, through the absence of necessary ongoing medical treatment, both he, and no doubt his family, may well have decided that the only reasonable choice was for them to abandon their request to migrate. Certainly, it would have been most reasonable that an opportunity be afforded for the choice to be made, before a final rejection of the applicant's application.
Bearing these matters in mind, I have come to the conclusion that this is a case where procedural fairness required that there should have been brought to Mr Xia's attention the critical issue or factor on which the administrative decision was likely to turn so that he might have had an opportunity of dealing with it (Kioa v West (1985) 159 CLR 551, per Mason J. at 586-587). I cannot escape the conclusion that had the applicant been told precisely what effect the information as to the health problems of his sons was to have upon the grant or refusal of his own application, he would have given earnest consideration to signing a form of acknowledgment and persisting with his own application on the basis that he no longer sought the migration of his family members from China.
In my view, failure to bring this critical matter to his attention vitiates the delegate's decision. It should be set aside so that the applicant may have a full and proper opportunity to consider whether he should deal with this problem by withdrawing any request that his family should migrate to Australia now or in the future so that his application may be considered simply on its own merits without reference to those probleMs
Accordingly, I make an order setting aside the decision under review. I refer the matter back to the decision-maker to be dealt with in accordance with these reasons. I order the respondent to pay the applicant's costs.
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