Karunakaran, M. v The Minister for Immigration & Ethnic Affairs

Administrative Law - judicial review - .participant in scheme for

education of private overseas students in Australia

- decision of

Minister to deport participant

as illegal immigrant - whether

Minister obliged

to observe rules of natural justice in exercising

power to deport

- whether incorrect and prejudicial material

placed before Minister

- whether improper exercise

of power -

effect of irrelevant and relevant considerations

- observation on

role of appellate Court under Judicial Review Act

FEBRUARY 1985

IN THE FEDERAL COURT OF AUSWIA

)

NEW SOUTH W E S DISTRICT REGISTRY

1	No. G 223 of 1983

)

GENERAL DIVISION

B?ZIWEEN:

MARTIN KARUNAKARAN

Appellant

AND:	THE MINISTER FOR IMMIGPATION A
ETHNIC AFFAIRS

Respondent

JUDGES MAKING

-ORDER

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

' l l i

l	IN THE FEDFZAL COURT OF AUSTRALIA	1
1

NEW SOUTH MALES DISTRICT REGISTRY

No. G 223 of 1983

GENERAL DIVISION

BEZWEEN:

MARTIN KARUNAKARAN

Appellant

AND:

THE MINISTER FOR

IMMIGRATION AND ETHNIC

AETAIRS

Respondent

CORAM:

TOOHEY, MORLING and BEAUMONT JJ.

DATE: 22 FEBRUARY 1985

. ,

THE COURT:

This is an appeal from a decision^ of a judge of

the Court refusing

an application under the. Administrative

Decisions

(Judicial' Review) Act 1977

("the Judicial Review

Act") for an order

review of the decision of the respondent

made on

29 July 1983 that the appellant be deported from

Australia. The deportation order wa5 made pursuant to

6.18 of

the Miqration Act

1958.

The appellant was born in Fiji on 2 July 1961.

first arrived in Australia on

3 February 1978 and was given a

temporary entry permit. His purpose in coming to this country

2 .

was to further his education under

a scheme implemented by the

Governments of the Commonwealth and of New South Wales for the

education

private

overseas

students

Australia.

The

Department of Immigration and Ethnic Affairs

("the Department

of Immigration") must authorise the entry into Australia	of
students to enable them to study under the 6cheme.

After arriving in Australia the appellant enrolled at

Chevalier College in Bowral in Year

10, that being the year in

which students sit for their School Certificate examination. The obtaining of the school^, Certificate does not involve ~. .

passing an external examination.^

. ~ .~ The certificate is given on

.~ .

. . .

the basis

of an internal assessment by the school at which the

. -

. .:

pupil attends.

The appellant obtained

' a Grade 3 .~ result in

. .

English and'

a Grade

, 4 result- in^ mathematics.

he^ also studied

. .

I ,

I - ,. ~.

. .

. . .

~~~

I . .

. .

science, geography, history and Asian studies. The, subsequent

history of the appellant's stay ~ in this country and

of his

. . ~.

schooling is set out in considerable detail in the judgment

under appeal and we do not find it necessary

to refer to all

i	that history in these reasons.

The

appellant

studied

for

the

Higher

School

Certificate for which he sat at the end of 1980. His results

were not satisfactory and he	received only 56 marks out of a
possible 500.

The appellant's temporary entry permit expired an 31

obtained a further entry permit and returned to this country in

November 1981.

May 1981

when he returned to Fiji. However

he subsequently

If the appellant had been ordinarily resident in

Australia, his School Certificate would have entitled him to enrol at a technical college in New South Wales in a number of courses in which he was interested. Notwithstanding that his School Certificate authorised him to enrol in a course at a

technical college

i~n

1982 for either

an accountancy certificate

an electrical engineering certificate, the appellant was

. .

unable to obtain enrolment in those courses.

He thereupon

. , . . I

~ ~.

attended a

centre known as

the Individual Learning Centre at

the North Sydney

. . technical.^

college'.

Such

'. centres

~ , - ~ .

give

~. ~ -. .

. . ,

. ~.

. .

- ..

intensive tuition to students

who need to improve their

skills~

in particular subjects.~ The appeilant attended the Learning Centre at North Sydney (and subsequently a similar- centre at

the

Sydney

Technical

College)

during

the'

whole

of 1982,

studying English and mathematics.

His grades in these subjects

in the School Certificate were mediocre.

English and mathematics are not of themselves courses

which are approved for private overseas students nor is any

Individual Learning Centre an approved institution for such

students under the scheme which

has

been implemented by the

Governments of the Commonwealth and New South Wales.

The fact that the appellant

was

enrolled

at an

Individual Learning Centre was not discovered by the Department of Immigration until-the end of 1982, and it was not until the

end of February

1983 that the Department became aware that the

appellant's studies were not approved courses for private

overseas students

by the,New

South Wales Education Department.

When these facts came to the knowledge of the Department

Immigration it refused to renew the appellant's temporary entry permit. Thereupon representations were made on behalf of the

appellant^ to

Mrs Hurst,., the officer

~ in: charge of the

Information centre^ for the New South Wales Department

. .

Technical and Further Education

(TAFE). Mrs Hurst arranged for

. .

~ .. . ~~,. - . ~ . ~ ~ ~

~ . .

the appellant to

be.. tested.,: by Mr~

Flynn, a Senior Student

. . .

and mathematics.

The counsellor reported that the appellant's

.~ .

.~~

ability in English'was-

atisfactorffor the courses in which

. .

wished to enrol, and that

in the

' 'mathematics test

he^ attained

the same score as 50% of a sample of, inter alios, electrical

engineering

certificate

s udents.

Notwithstanding

the

counsellor's report, Mrs Hurst on

6 April 1983 wrote to MS S.

Stubbing, the Education Officer in the Private Overseas Student

Branch of the Commonwealth Department of Education, referring

to the test and stating that she regretted to advise that the

appellant had not achieved

a sufficient result to be admitted

TAFE

course, and that she must decline to consider

placement of him in any class. On

7 April 1983 MS Stubbing

sent a memorandum to

Clarke, an

officer in the Overseas

Students Section of the Department of Immigration stating

that, following further testing, "TAFE has confirmed that the

student has qualified for entry into a certificate course."

MS Stubbing also wrote to the appellant saying that

having regard

to all the circumstances she was unable to

recommend an extension of his temporary entry permit to enable

him to remain in Australia for further studies, and advising

him that the Department of Immigration had been

so advised.

. -

Thereafter the Department of Immigration wrote to

, ~ . . .

. .

Flynn, through

whose. good offices the appellant was brought to

- .

Australia and who at all material times

has

represented the

- .

~.~

appellant in his ~~. dealings

~ witl-.,; the

, various:. departments,

. .

~ .~

advising him that the recommendation of the Department of

.~ .. .

Education had been .accepted with the result that the'appellant

. .

was required to depart from Aus.tralia before

14 S&, 1983.. The

appellant was required to produce evidence of his travel

arrangements before 3 June 1983.

The Department's request was

not complied with and the matter was referred to more senior

officers .

Eventually

Faubel,

the

Director

the

Enforcement5 Section of the Department of Immigration made

recommendation to the Minister that the appellant be deported.

The recommendation was accompanied.by

a detailed account of the

circumstances of the case.

The recommendation was made on 28

l	Paragraphs 13,	14 and 16 of Mr Faubel's recommendation
I

!	were in the following terms:
I

"13. In advices dated 28 February 1983 and 7 March

1983, the NSW office of Department of Education advised our Sydney office that Karunakaran had not been enrolled in approved studies since his

return

Australia,

that

had

been

authorized to

apply for entry

to a TAFE

certificate course

in 1983 but that the

NSW

TAFE

department had advised that

he was not

eligible for enrolment.in any

approved (TAFE).

course.

!	t	14.
Sydney Office of DIEA wrote to Karunakaran on of Education ~ had. advised ~ that he: was not
~:. .	eligible for enrolment in any approved course

: of study in 1983

. and that as

his^

temporary

. entry permit had ex pi red^^ he should.^: now leave-.

Australia;'. Dr Flynni-it. seems, then approached

NSW TAFE authorities who decided to provide an

~~. opportunity for Karunakaran to

have testing in

respect of mathematics and English but without

. any confidence or

promise that he might obtain

a place in a TAFE course. ~

16.

NSW office. of Education advised on

7 April 1983

that despite the extra testing referred to

above, TAFE

confirmed that Karunakaran is not

qualified for entry to

a certificate course and

that his request for further remedial tuition

was

rejected.

The

above

advice was also

conveyed to Dr Flynn by TAFE in a letter of

April 1983

(copy attached at

'C'). That

same

day Sydney office wrote to Dr Flynn that the Education Department . had confirmed that Karunakaran was not qualified for entry to any

approved course of study for

1983, that

should

leave

Australia

and

should

present

within 14 days	evidence	departure	of
arrangements."

The	Minister was asked to provide reasons for his

decision to sign the deportation order pursuant to

6-13 of the

' l	Judicial Review Act. Paragraph 26 of his statement of reasons was in the following terms:

"26. While I considered and gave weight

to the

matters in para

16 supra (that is, of the

reasons,

not

recommendation),

and

particular to the fact that he has a desire to

remain here for educational purposes,

has no

skills qualifications nor independent financial

resources, and

the

representations

made

behalf of the applicant, those considerations

did not

outweigh the public interest in

ensuring that non citizens abide by immigration

law and

policies.~

The applicant has been given

every opportunity

over a considerable period of

time to benefit-

froia the

private^ Overseas

Students Program but

has failed to achieve

minimal academic requirements and

has remained

unlawfully in Australia after the expiration

his permit. "

. . .

. .. ~.

-. .,

,. .

.~ . . ~~

. ~ . , ~ ~

, . ~ ~

. ,

The appellant was apparently

able to enrol at a

technical college in an

Accountancy Certificate course during

1983.

remained there for the balance

that year and was

re-enrolled

for

the

1984 academic

year.

He was

admitted

to the course because it was thought that

he was qualified to

enrol because of his holding	a School Certificate. He did not
complete either year.

It'	is to be noted that, as at the date when the

Minister made his decision to deport the appellant, the person

who was responsible for allowing the appellant to enter into

TAE'E course, i.e. Mrs Hurst, had decided that he

should not

enter

such a course

and

had

informed

the

Commonwealth

Department of Education that he would not be given a placement

i	in any	TAFE course. Whether Mrs Hurst made that decision
l

!	because she	had formed the view that the appellant	was not
! !

eligible to enter upon

a course or because she believed that

~	did not have sufficient capacity to complete and	pass such a
!

course does not appear to us to be of any moment. Hhat

was

relevant to the Minister's consideration of the question

whether the appellant should be permitted to stay in Australia

was that the decision had been taken that the appellant would

not be given a placement

in any TAFE course..;

~ The Minister's

decision was necessarily taken upon the basis of the material

. .

. .~

- , . :

available to him at the time

he took his decision and we

do not

. .

- . ~

. .

~~ . ..

. ~~~

i	think it	is to the' point	that'^ ai~	a - subsequent point	of time a
!
'! !

courses may have been taken by other persons.

The case for the appellant was based, both at first instance and on appeal, upon paras.

5(l)(al,

5(l)(e), and

5(l)(h) of

the Judicial Review Act. It was submitted that the

Minister was obliged to observe the rules

of natural justice in

making his decision that the appellant be deported and that

breach of those rules occurred in connection with the making of

the

decision.

The learned

.primary

judge

rejected

this

submission upon the ground that the Minister was not obliged to

observe the

rules of

natural justice. In our opinion his

Honour

was

plainly

correct

so finding:

see

Salemi

9 .

MacKellar (No. 2 ) (1977) 137 C.L.R.

396;

R. v. MacKellar, ex

parte

(1977) 137 C.L.R.

461; Minister for Immigration and

Ethnic Affairs v Hai-Ismail (1982) 40 A.L.R. 341; Minister for

Immiqration and Ethnic Affairs

Gaillard (1983) 49 A.L.R.

277; Smith

v Minister for Immiqration and Ethnic Affairs

(1984) 53 A.L.R. 551 and Fainqold v Zammit (1984) 1 F.C.R.

87.

we understood the argument

for

the appellant, it was

conceded that, as a general rule, the Minister is not obliged

to observe the rules of natural justice when making

decision

under 6.18

of the Miqration Act. But it was contended that

there were special 'circumstances

in the present^ case which did

place such an obligation upon the Minister.

The special

. .

circumstances were alleged

to be the "mass of

incorrect and

, , ,~ .~;

,.-...

. . ~ .

~ ...

~ .~

prejudicial material" p1aced:~'before the minister'^, which gave

. .

rise, so it was argued,

. . a.ieqitirnate expectation

_ .

the part.

~ . ~. ..

. . .

_ .

.	.	~. . . , ~	.	.~	.~
. .

of the appellant that

he would be allowed to stay

in Australia

"at least long enough to be able to fully present his case to

.~ .

. .

the Minister".

It is true that in Hai-Ismail the c.ourt left open the

question whether there might

quite exceptional cases the

facts of which would oblige the Minister to afford natural

justice when considering whether to exercise the power to

deport under 6.18.	Thus Bowen C.J. and Franki J. said at
p.348: -

"Whether or not there

any room for

contending that

some

exceptional case, which has

10 *

not yet emerged, there would arise an obligation,

when exercising the'power conferred by

6.18,

observe the rules of natural justice, remains to	be
finally determined."

See also per Davies

J. at p. 358.

But there is nothing in the

facts of the present case which make it

so exceptional that the

general rule is not applicable to it.

The account that we have

already given of the facts demonstrates that this is

SO. The

last temporary entry permit granted to the appellant has

expired and the Minister has declined to grant him

a further

permit. In these circumstances the appellant has become

prohibited immigrant and liable

to be deported under

6.18.

There is nothing in the evidence to indicate that the appellant

was justified in entertaining any

legitimate expectation that

. ,.. .

.~ ,. . .

~~.

he would not^ be deported. :

' . ~

W e do

not accept,:

' nor did the

... ...

primary judge, that..

. .

a . mass. of L incorrect and., prejudicial:,

. .

..~ . .

~.~... . .

. ~.

. .

material wa6 placed before the Minister.

our opinion the

Minister was^ given a balanced~ and fair account

of the

appellant's circumstances as they existed

at the time he made

his decision. ~ If

there were any inaccuracies in the material

placed before the Minister they were not of such a kind as

would have obliged him to have given the appellant a further

opportunity

replying to them. The major inaccuracy of

which the appellant complained was that Mrs Hurst's letter

of 6

April 1983 misstated the position

as to his eligibility to be

enrolled in a TAFE course., But we do not think this was the

case. The primary judge said on this matter:

11.

"On the face of. things, it appeared that Mrs

Hurst may have misunderstood Mr Flynn's report on his testing of the applicant. Until she was called

I thought

that

she

had

mistakenly

equated

the

applicant with Canother student3 whose results were

unsatisfactory, That was because Mr Flynn appeared

saying

that

the

applicant

had

performed

reasonably well, both in the English and Mathematics

tests. That led me to

think'that the statements in

Mr Faubel's

recommendation to the Minister and the

Minister's reasons that the

applicant had performed

poorly academically and was ineligible for enrolment

were wrong. But

I am

persuaded by Mrs Hurst's

evidence that that is not

so.

She did intend to say

that the applicant	had not performed well enough in
Mr Flynn's tests.	That is because she requires a

higher standard than the applicant displayed for

entry into a technical certificate course. She does

so because the experience of the NSW Department is

that overseas students

. are out of their environment

and are unlikely to succeed

at such

a course unless

they display

a standard higher than do Australian

students. She knows that for an Australian student ~.

entry to a technical certificate course is usually available upon the basis of a pass in the School: Certificate alone. No external testing is required.

But it is the policy of^ the N.S.W.

department as

administered, by her not

to-take the 6ame~.view

. . ,

overseas students..

~ It may have been better if

~ she':

had explained this in her letter to

MS Stubbing of

the Commonwealth department.. But the fact that she

did

notes

not

change

the

position.

Notwithstanding the apparently satisfactory results achieved by the applicant, he did not. peform well

enough to indicate to Mrs Hurst that

he was capable

of undertaking

course either in electrical

engineering or accountancy

as he wished to do."

Ne see no reason to depart from his Honour's view on

this matter.

Whether or not the existence of

such

an expectation

would be sufficient to give rise to

an obligation on the part

of the Minister to observe the principles

of natural justice is

a question which we need not determine in this case. When the

12.

question falls to be decided, the decision in

&&g v Cunninsham

(1983) 49

A.L.R.

123 and the cases therein referred to will

afford guidance as to the type of circumstances which may give

rise to such

an expectation.

We turn now to consider the submission based upon

para. 5(l)(e) of

the Judicial Review Act. Before the primary

judge it

was

submitted that the making

the decision in

question was an

improper exercise of the power conferred by the

enactment in

pursuance of which it was purported to be made.

The basis of this submission was

that the Minister's decision:

deport the appellant was' made in pursuance of

a- rule

' . .

policy without regard to the merits of the

~ particular case.

. -

, ~ .

. .

. -

.~ . .

~. .

. , This submission was 'not pressed on appeal..^

Rather

the

. .

. .~

...

,,sub~&sion.~ia$ that.

in making:his decision the'Minister~. either

' . .

,~ 1

. . . .

. ~

.~~

. . .

~ ~

. . .

. . . .

. .

took

an^ irrelevant consideration into account.,

failed to

take

relevant

consideration

into

account

vide

paras.

5(2) (a).

and

(b) of the Judicial' Review Act-

which' expand the

operation

para.

5(l)(e).

Before

considering

the

appellant's argument 'on this point, it is important to observe set aside the decision merely because it comes to the view that

that a person who is aggrieved by a decision to which the

the decision is wrong. Leaving

' para. 5(l)(h) aside

for the

moment, what the appellant had to show in the present case was

that the Minister failed to take

a relevant consideration into

account or took

an irrelevant consideration into account. As

13.

Deane J. said in Sean Investments Ptv. Limited

v. MacKellar

(1981) 38 A.L.R.

363 at p.375:

"The ground of failure

to take

into account a

relevant consideration will only be

made good if it

is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there

to be a valid exercise of the power

to decide."

Counsel for the appellant put everything that could be

put in support of this branch of his argument. His

arment

tended to equate considerations of relevance or irrelevance

particular matters with

the correctness of those matters.

The argument for the appellant:. was founded upon: the letter

written by

Mrs Hurst to

MS Stubbing on 6 April 1983 which led

. .

= '

.. . . .

to the statement in the recommendation to the.^ Minister by Mr

,~ .

. ~ ~ :

.. ,.

. .

. ~ . .

Faubel that ike~	applicant^^: was-,	n o t eligible:~ to	I enrol in a	:~
~.

technical

course.

~ was submitted that

fir Faubel's

. .

recommendation

was

unfavourable

and

prejudicial

the

appellant in

that it stated that

he was^ not eligible for

enrolment in any approved

TAFE course and was not qualified for

entry to any approved course of study for

1983.

Much time was taken up in argument, and at the hearing

before the learned primary judge, in seeking to show that the appellant was eligible to undertake an approved course of study. He have already expressed our concurrence with the

view of the primary judge that Mrs Hurst's letter did not

misstate the appellant's prospects of being admitted to

a TAFE

14.

course. But even if we had been persuaded

the contrary

view, the appellant's case would not have been advanced. (We

again leave aside the argument based on para.

5(l)(h).) What

the appellant was required to show on ,this branch of the

argument was that the Minister failed to take into account the

extent to which the appellant was capable

profitably

continuing his studies

in Australia. We

do not think the

Minister's consideration of that matter turned upon whether

he .

regarded it

as being a question whether the appellant

was

qualified to be enrolled in an approved course or a question

whether he

had reasonable prospects of completing the course,

. if enrolled.

is beyond question that Mr. Faubel's report

. .

placed squarely before the Minister the appellant's record

as a

. -

. .

. .~

student -in

Australia~~

and the levei-~

of his academic ability.

Indeed, in.

1 the statement

o f . . his -reasons. for his

decision :the

. .. . ~.~

.- .

. .. ~. .~ .

. ~.

Minister gave as one of his reasons that "the.

applicant has

been given every opportunity over

a considerable period of time

to benefit from the Private Overseas Students Program

but h a s

failed to achieve minimal academic requirements ' . . . ' l .

We do

not think that any case is made out that the Minister failed to

take into account any matter touching upon the appellant's

educational prospects. hIhether he made a correct assessment of

those prospects is not for the Court

t determine.

Counsel for the appellant relied upon a number

other

matters

which,

his

submission,

were

put

unfavourable and prejudicial way before the Minister

at the

time he made his

decision. These included statements that the

appellant

had

enrolled

the

Individual

Learning

Centre

without approval, that

he had associated with

a student who was

avoiding detection, .that he had

no work in Australia, that he

had no return ticket to Fiji and was taking no action to

procure a return ticket, and that

Dr Flynn had made groundless

complaints against Departmental officers.

do not find it

necessary to consider these matters in any detail. It was . open to the Minister to come to the view^ that the statements

made to him were correct. It is not for this Court

to examine

each statement and

to reach its. own-. conclusion as to its

correctness.

It is sufficient for

'us to say that

~ We are not

~~ .

. ~ .

. .~

persuaded that the Minister

failed.to take into account

any of

. ~. . . .

~~ .

.. . . ~.

the matters which were

relevant~to

the making of his decision

. .

under S. 18 tc deport the

.~~

appellant.

. . :.

.. N o r . . has

~~ it

~ been shown

that any irrelevant consideration was taken into account.

. .

We do not

' think

is for the court upon

application for a review of a decision under the Judicial

Review Act

determine for the decision-maker every matter

which he should regard

as being relevant to the making of his

decision.

No doubt there will be some matters which, upon any

view of the nature of the decision, must be relevant or

irrelevant to the making of it.

But, as Deane

J. said in

. .

.I	Investments v MacKellar (supra) at p. 375:
I

"This does not, however, mean that a party

affected by a decision is

entitled

to make an

16.

exhaustive list.of all the matters which the

decision-maker

might

conceivably

regard

relevant and then attack the decision on the ground that a particular one of them was not

specifically

taken

into

account.

this

regard, I consider that the following comments of the United Kingdom Court of Appeal (Megaw,

James

and Geoffrey Lane

LJJ) in Elliott v

Southwark London Borouqh Council E19763

2 All

ER 781; C19763 1 WLR 499 at 507, in relation to

a local authority, are appropriate in respect

of the recommendations of the Committee and the

decision of the Minister in

the present case:

'It is

clear that the matters which the local

authority should consider

... vary from case to

case. It is not for the court to prescribe a

list of matters which must always be considered

or to prescribe which factors would be given

more weight than others. It is worth repeating

that the function of the court, where such

issues are raised, is

not to substitute its

own

opinion or decision on matters which Parliament

has left to the judgment of the local authority

but^ to decide whether

~ the local. authority in

reaching its decision has acted in accordance

. . .

~~ with the statutory provisions.

. . .

~. . .

. .

~ ~. ~

...

.~ -

- , .

. .~ .~ ~

He	are therefore of-. the opinion that the 'learned

primary judge was correct

in his finding that it had not been

established that there was any ground for the making of an

order of review on the ground referred to in paras. 5(2)(a) and

(b)

There remains to be considered the argument that there

was	no evidence or other material which would justify the

making of the decision to deport the applicant.

In our opinion

there is no substance in this submission. There was abundant

material before the Minister which could properly have led him

to.make

his decision. At the time

he made the decision the

applicant was

a prohibited immigrant by reason

f s.7(3) of the

l	C "
i
i

17.

Miqration A c t .

The

last entry

permit

which

had

been

granted

to the applicant had expired on

10 March 1983, i.e. some 4 112

months prior to the making

the decision. The facts as they

i	existed as	at the time he made his decision provided adequate
l

l	material justifying the making	of that decision.
~

Upon the hearing of

the appeal the appellant sought

the court's leave to adduce fresh evidence.

The

evidence .

consisted of letters written shortly prior to the hearing of the appeal by the Principal of one College of Technical and

Further Education and the Assistant Principal

of another such

college. We admitted into evidence, could

are

of khe

opinion

that

neither

letter,

have any relevance to

any

question as to whether the^. Minister's decision

was

open to

review. Accordingly,

we think the application to adduce the

further evidence should be rejected.

For the reasons given, the appeal must be dismissed

with costs.

I certify that this and the sixteen

preceding pages are a true copy

the Reasons for Judgment herein

their Honours Mr.

Justice Toohey;

Mr.

Justice Morling and Mr.

Justice

Beaumont .

Associate

Dated:

February

1985

[1985] FCA 43

22 Feb 1985