Khan, M.A. v Minister of State for Immigration & Ethnic Affairs

[1994] FCA 480

MOHMMAD AZAM KHAN v. MINISTER OF STATE FOR IMMIGRATION AND ETHNIC AFFAIRS
No. NG139 of 1993
FED No. 480/94
Number of pages - 6
Immigration - Administrative Law
(1994) 35 ALD 47

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
WHITLAM J

CATCHWORDS

Immigration - application for entry permit by "innocent illegal" - meaning of applicant's "formative years" before turning 18 - policy guidance as to meaning of that expression in repealed regulation.

Administrative Law - powers and functions of delegate - no general policy direction by Minister - whether exercise of power unreasonable - whether power exercised in accordance with policy without regard to merits of particular case.

Migration Act 1958, s 179
Migration (1993) Regulations, Sch 2, cl 806.721(6)
Migration (1989) Regulations, reg 127(a)(iv)
Policy Control Instruction No. PC 1810

Raru v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 314
Sacharowtiz v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 25 ALD 245

HEARING

SYDNEY, 24 February 1994
#DATE 9:3:1994

Appearing for the Applicant: Mr T.P. Boyle

T.P. Boyle and Associates

Appearing for the Respondent: Miss R.M. Henderson of counsel

instructed by the Australian Government Solicitor

JUDGE1

WHITLAM J This is an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The decision, which is the subject of the application, is that of the respondent's delegate.

1. The Migration (1993) Regulations ("the Regulations") commenced operation on 1 February 1993. They provide for a class of entry permit referred to as Class 806 (Family and other close ties (after entry)). The prescribed criteria for the grant of such a Class 806 entry permit are set out in Part 806 of Schedule 2 to the Regulations. Subclause 806.721(6) of that Schedule provided:
   

"A person satisfies the requirement of this subclause if the person:

(a) has turned 18; and

(b) became a prohibited non-citizen, or an illegal entrant, before turning 18; and

(c) before turning 18, spent the greater part of the period that the Minister regards as the applicant's formative years in Australia."

1. The applicant was born in India on 9 October 1972 and is a citizen of India. He had arrived in Australia on 23 May 1988 and been issued with a temporary entry permit valid for only 6 months. No subsequent temporary entry permit was issued to him. There was no doubt that the applicant met the requirements of paragraphs (a) and (b) of subclause 806.721(6). Accordingly, on 4 February 1993 the applicant applied for a Class 806 entry permit on the grounds set out in that subclause. On 12 February 1993 the delegate refused the application.

2. In his reasons for decision the delegate described the claims of the applicant as follows:
   

"BACKGROUND

He states his father was an Indian diplomat who was posted to Fji

(sic), accompanied by his family which included the applicant, when he was 12 years of age. He visited and transited through Australia a number of times before last arriving, with his father, in 1988. They did not get on together and his father and the rest of the family returned to India leaving him alone, virtually abandoned, in Australia at the age of 15. He has not seen them since and only keeps in contact with his mother and siblings by mail. He still harbours a great deal of resentment towards his father. After arriving he was formally adopted by the Buksh family with whom he lived until he moved out to live independently more recently.

CLAIMS

The applicant has lodged his application on the grounds that he is an "innocent illegal". In regard to that part of his formative years prior to the age 18 spent in Australia, the applicant has put forward that there is no strict definition of the term "formative years" in migration law but that this is set down in policy as "the majority of the time between the ages of 5 and 18 years". He has put forward that under Migration regulation 55 (a)

(pre-1/2/1993) this was solely an arithmetic formula. He has further put forward that to thwart such a cold and deliberate arithmetic solution that the term formative years was introduced in respect of the December 1989 concessions. This allows each case to be assessed on its own individual merits. The applicant has put forward that although he has spent only the years from age 15 in Australia, these were quintessential formative years for him as he very quickly had to learn to assess a situation and make his own decisions. Prior to this he had always had Indian family, cultural and diplomatic network support."

The reference to "Migration regulation 55(a) (pre 1/2/1993)" is a reference to a criterion in relation to a former resident visa that an applicant must have "spent the greater part of his or her life before the age of 18 in Australia as an Australian permanent resident." (Such a provision had also survived in clause 151.321 of Schedule 2 to the Regulations.)

1. The delegate gave the following reasons for refusing to grant the applicant a Class 806 entry permit:
   

"However I am not satisfied that the application meets part 806.721(6)(c). This part requires that the applicant must have spent the greater part of the period that the Minister regards as the applicants (sic) formative years in Australia. Policy Control Circular PC 1810 sets down that the Minister has determined that a persons (sic) formative years for the purpose of this regulation are between the ages of 5 and 18 years. Clearly an applicant would need to have spent more than 6 1/2 years in Australia during this period in order to meet this requirement. The applicant has spent only 3 years. He has put forward that these were his "quintessential" formative years however the regulation only refers to formative years and does not qualify this term in any way. As the term formative years is defined in policy, some discretion does exist when considering the applicability of that term. I appreciate the circumstances surrounding his arrival and stay in Australia. However I do not consider this in itself constitutes sufficient grounds for the exercise of this discretion although it supports his claims that the 3 years of his formative years until the age of 18 were his quintessential formative years. It is accepted that the years the applicant spent in Australia prior to age 18 were important formative years. However these 3 years are considerably less than the minimum of 6 1/2 set down in policy. The applicant has spent all his infant life, childhood and early adolescence overseas. These are very important formative years when a child establishes its own identity, and learns and absorbs its background, culture and place in a community. These years have not been identified as having any association with Australia. I consider this outweighs the shorter period spent in Australia. I do not therefore consider that this warrants the exercise of discretion to waive policy. CONCLUSION

. . . I have . . . considered the applicants (sic) claims under Schedule 2 Part 806 of the Migration (1993) Regulations. The applicant does not meet these requirements as he did not spend the greater part of the period that the Minister regards as the applicants (sic) formative years, before turning 18, in Australia."

1. The applicant submits that the decision of the delegate was an improper exercise of the power conferred by s 34 of the Migration Act 1958 ("the Migration Act") to refuse to grant an entry permit. The applicant relies on several of the grounds in s 5(2) of the ADJR Act. However, at the forefront of his submissions is the contention that the delegate took an irrelevant consideration into account. This submission is expressed this way in the ground of the application:
   

(i) The making of the decision was an improper exercise of the powers conferred by the Migration Act in that:

(a) the delegate took an irrelevant consideration into account, namely the delegate relied upon Policy Control Circular PC 1810 in deciding that the Minister had determined that a person's formative years for the purposes of Part 806.726 (6) (c) (sic) of Schedule 2 of the Migration (1993) Regulations are between the ages of 5 and 18 years. The said Policy Control Circular PC 1810 purports to incorporate a policy directive signed by the Minister on the 18th August 1991, however such policy directive does not include any definition of what the Minister regards as an applicant's formative years, as required by Part 806.726 (6) (c)

(sic) of Schedule 2 of the Migration (1993) Regulations."

1. Policy Control Instruction No. PC 1810 ("the PCI") had been issued on 13 April 1992 by Mr D.G. Wheen, First Assistant Secretary of the Migration Division of the Department administered by the respondent. Inter alia, the PCI set out procedures for processing applications lodged under concessions for person illegally in Australia announced by the respondent on 15 October 1990. Paragraph 3 of the PCI stated:
   

"3. The concessions apply to:

. person whose status as at 18 December 1989 was illegal but who can meet criteria on the grounds of a defined relationship with an Australian citizen or permanent resident, or on compassionate grounds (R131A and R142C) . persons who acquired their illegal status as minors and have since become adults (R127(a)(vi) and R140(d))."

The references in parentheses are to the Migration Regulations as in force at that time ("the old Regulations"), which had been amended on 10 December 1990 to reflect the concessions announced by the respondent.

1. Section 179 of the Migration Act empowers the respondent to give general policy directions. The respondent had given such a direction on 18 August 1991 in respect of reg 131A of the old Regulations, and it was attached to the PCI. The respondent had not given a s 179 direction in respect of reg 127 (a)(vi) of the old Regulations, which prescribed criteria for an applicant as follows:
   

"(vi) being a person aged 18 years or more:

(A) became a prohibited non-citizen, or illegal entrant, before attaining the age of 18 years; and

(B) has, before attaining the age of 18 years, been in Australia for the greater part of the period of time that the Minister regards as the applicant's formative years; and

(C) is not a member of, and does not reside with, the family unit (if any), within the meaning of regulation 7, with which the applicant first entered Australia;"

1. Nonetheless, the PCI purported (in paragraph 11) to specify in succeeding paragraphs the "criteria for . . . those, now adult, applying on the grounds of having become illegal as a minor." Under the heading "ILLEGALS WHO HAVE ARRIVED IN AUSTRALIA AS CHILDREN AND HAVE SINCE BECOME ADULTS", paragraph 19 of the PCI stated:
   

"19. Applicants for permanent residence under this concession must:

. have first become illegal while a minor (aged less than 18 years); and

. be aged 18 years or over at the time of application; and . have spent the majority of their formative years (the majority of the time between the ages of 5 and 18 years) in Australia: and

. no longer be an integral part of the family unit with which they entered Australia."

1. This brings me back to the applicant's primary submission. Plainly the delegate has considered the PCI. His statement that it "sets down that the Minister has determined that a persons (sic) formative years for the purposes of this regulation are between the ages of 5 and 18 years" is wrong. The respondent has made no such determination. Indeed, he may not do so under s 179 of the Migration Act.

2. The applicant suggests in the grounds, as filed, of his application to this Court that a "policy directive", including a definition of what the respondent regards as an applicant's formative years, is required by subclause 806.721(6)(c) of Schedule 2 to the Regulations. It is common ground that no such direction exists. However, such a submission misconceives the position of the delegate. His true position was explained in Raru v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 314 per Burchett J (at 320):
   

"But where a minister has a power of delegation, and appoints a delegate pursuant to that power, the delegate acting as such is not an agent exercising the ministers powers, but is exercising his own power as a delegate. Re Reference under s 11 of the Ombudsman Act 1976 for an Advisory Opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86 at 94."

This means that it is for the delegate to make up his own mind what period he regards as the applicant's formative years.

1. The delegate may have mistaken the source of the policy guidance in paragraph 19 of the PCI, if he thought that it emanated from the respondent, rather than Mr Wheen. That appears to have been the case. However, the PCI makes it quite plain that the respondent's direction under s 179 of the Migration Act related only to reg 131A of the old Regulations. A delegate would be bound to exercise his powers in accordance with a s 179 direction. There is nothing to suggest that the delegate felt bound by the guidance in paragraph 19 of the PCI.

2. Nor do I think that consideration of that paragraph by the delegate was irrelevant. The expression "formative years" is not defined in the Regulations. There can be no objection to the delegate considering guidance as to the meaning of that expression given in the same context under reg 127 (a)(vi)(B) of the old Regulations. I emphasize that it is for the delegate to make up his own mind in the circumstances of the case.

3. It may be that the delegate could have stated his conclusion more felicitously. There is a faint suggestion of deference to a supposed view of the respondent in the way in which the conclusion is expressed. However, I think that the delegate is merely finalizing his decision by paraphrasing the requirements of subclause 806.721(6)(c). I am strengthened in this opinion by the way in which the delegate had earlier dealt with the policy guidance. Accordingly, the applicant's first submission fails.

4. The applicant also submitted that the delegate gave improper weight to "an alleged requirement (under the PCI) that the applicant would need to have spent at least six and a half years in Australia between the ages of 5 and 18 years" so as to have exercised his power unreasonably within the meaning of s 5(2)(g) of the ADJR Act. The delegate does refer to "the minimum of 6 1/2 (years) set down in policy." However, I am unable to discern anything unreasonable in the delegate's approach to deciding what were the applicant's formative years. He appears to accede to the slightly metaphysical submission urged on behalf of the applicant that the "3 years of his formative years until the age of 18 were his quintessential formative years." The delegate then considers what are obviously other important matters of acculturation and societal development. The weight to be given to all the factors identified by the delegate is a matter for him, and this submission too must fail.

5. Next, it is contended that the delegate misconstrued the meaning of "formative years." If the delegate had felt confined to a mere arithmetical calculation of the time spent in Australia between 5 and 18 years of age, this might be so. I do not think that he did and, in construing "formative years" as meaning something other than those relating to physical development, I think that the delegate was correct. In this respect, I do not understand the applicant to contend otherwise.

6. The applicant also relied upon s 5(2)(f) of the ADJR Act to submit that insufficient weight was given, in effect, to his claim about the "quintessential" formative years being spent in Australia. There is something a trifle tentative about the delegate's statement: "As the term formative years is defined in policy, some discretion does exist when considering the applicability of that term." But the discussion which follows does not evince to me, at least, any unwillingness to depart from a policy that a person's formative years are between 5 and 18 years of age. On the contrary, the delegate seems to avert to most of the factors that readily spring to mind in human development and conditioning. The weight he gives them is, of course, a matter for him. I am, of course, conscious of the need to be astute to ensure that policy statements do not erect extra-legislative hurdles for applicants. See Sacharowitz v. Minister for Immigration, Local Government and Ethnic Affair (1992) 25 ALD 245. The delegate here does use expressions such as "sufficient grounds for the exercise of this discretion" and whether something "warrants the exercise of discretion to waive policy." However, in my opinion, on a fair reading of the whole of his reasons, the delegate has considered the merits of the applicant's case unconstrained by the gloss contained within the parentheses in the third dot point of paragraph 19 of the PCI.

7. There remains one final matter. The applicant apparently did not use the correct approved form to apply for a Class 806 entry permit. The form that he used was meant for a Class 812 entry permit. Strictly speaking, this may have meant that the delegate did not need to deal at all with the applicant's claim to be recognized as an "innocent illegal." The respondent very properly does not rely on this fact to defend any flaw in the delegate's decision making. Nonetheless, the applicant asserts that the delegate failed to observe a procedure required by law contrary to s 5(1)(b) of the ADJR Act. The applicant suggests that the approved form is required by the PCI (a curious position for the applicant to take), but the respondent points out that it is required by subclause 806.711 of Schedule 2 to the Regulations. Further, since the applicant had formally applied for a Class 812 entry permit, the delegate solemnly considered his entitlement to that class of permit and pointed out shortcomings in the application. The applicant submits that the delegate so took into account an irrelevant consideration. This maybe so, but nothing turns on these points. They should have been abandoned. None of them affected the delegate's consideration of the applicant's claim for a Class 806 entry permit.

8. The application is dismissed with costs.