Krishna, v Minister for Immigration, Local Government and Ethnic Affairs

Re: VIJAY KRISHNA
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
Nos. V G185 and 357 of 1990
FED No. 94
Administrative Law - Judicial Review - Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)

CATCHWORDS

Administrative Law - Judicial Review - refusal of application for permanent residence on ground of marriage to Australian - reconsideration under regulation 173A of Migration Regulations - second refusal - end of cohabitation by separation - whether delay in processing application until after separation constitutes ground for judicial review - departmental submissions to and recommendations of Immigration Review Panel not reviewable per se - whether applicant still aggrieved by first refusal

Migration - whether applicant entitled to grant of resident status on ground of marriage to Australian citizen where separation/irretrievable breakdown of marriage before application decided - applicant subject of investigation into possible marriage racket - genuineness of marriage - policy requirements of bona fide marriage not met

Administrative Decisions (Judicial Review) Act 1977 sections 3(1), 5(1)

Migration Act 1958 sections 6(2), 6A(1)(b) (prior to 1989 Amendments) Migration Regulations 1989 regulation 173A

Perry v The Director of Public Prosecutions (1985) 6 FCR 578

Eskaya v The Minister for Immigration, Local Government and Ethnic Affairs Lee J, unreported 21 July 1989

The Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon and Anor Federal Court of Australia, Full Court (Northrop, Wilcox and French JJ) unreported 8 May 1990

HEARING

SYDNEY

#DATE 6:3:1992

Counsel and solicitor Mr T. Hurley instructed by
for the applicant Rossi Ryan and Raniga

Solicitors

Counsel and solicitor Mr S. O'Bryan instructed
for the respondent by the Australian Government Solicitor

ORDER

Application dismissed with costs.

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

JUDGE1

This case concerns the refusal by the Minister for Immigration, Local Government and Ethnic Affairs (the Minister) of an application by Vijay Krishna (the applicant) for resident status in Australia made on 29 July 1988 on the basis of his marriage to an Australian citizen. There were two applications to the Court for judicial review of the refusal. Matter no. VG 185 of 1990 concerned a refusal said to have been made on or about 23 May 1990. Matter no. VG 357 of 1990 sought to review a decision allegedly made on or about 11 September 1990 to the same effect following a reconsideration of the matter under regulation 173A of the Migration Regulations 1989.

After discussion with the parties, these applications, which were in a most confusing state, were by consent ordered to be consolidated in a single amended application for an order of review in matter no. V G357 of 1990. To the extent to which it was necessary, leave was given by consent to include in the amended application the earlier application which might otherwise have been out of time. In consequence, the matter now before the Court for resolution concerns these two decisions which are separately said to manifest errors of law capable of review by reason of section 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). I should note that the amended application, which was actually submitted after the hearing had concluded, and is still replete with misconceived and convoluted assertions, is quite different to the earlier applications. It alleges facts and raises grounds for review which were not in any previous document or raised orally at the hearing. For example, it claims several instances of denial of natural justice, words which were not even mentioned at the hearing. However, no objection to the filing of this amended application has been communicated to me and I shall therefore consider these matters as well as those actually litigated. It is less than satisfactory that the amended application still incorrectly dates the decisions to be reviewed.
It is common ground that because the applicant's original application for permanent entry preceded the substantial amendments of the Migration Act (the Act) made in 1989, the matters fall to be considered under the provisions of sections 6(2) and 6A(1)(b) of the Act as they stood prior to those amendments. They provided as follows:

6(2) An authorised officer may, in accordance with this section and at the request or with the consent of a non-citizen, grant to the non-citizen an entry permit. 6A(1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -

...

(b) he is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit.

The facts of the matter involve some detail. The applicant was born in Fiji on 8 February 1962. He is of Indian ethnic origin. On 24 September 1987 he arrived in Australia on a student visa and was granted a temporary entry permit valid to 30 September 1988 with provision for extension thereafter. It was in fact extended on 10 October 1988. Shortly after his arrival in the country, he commenced a computer programming course with an organisation called Computech or Computeach in St Kilda Road, Melbourne. The course was due for completion in December 1988. He boarded with a family in the Melbourne suburb of Clayton South.
In November 1987 he met Catherine Da Silva at a disco in St Kilda. Catherine was born in France on 24 January 1967 but was an Australian citizen at the time of their meeting. She lived in Moorabbin and her family lived in Western Australia. The applicant and Ms Da Silva commenced a personal association which primarily involved social outings, both alone and with mutual friends. One of the persons introduced to Ms Da Silva by the applicant was a man named Graham Sanyasi who was originally from Fiji but has become an Australian citizen and has been living here with his wife and children for some time. Mr Sanyasi had befriended the applicant shortly after his arrival in Australia and subsequently arranged part-time work for the applicant at ACI Plastics where Mr Sanyasi himself was a Production Supervisor. The applicant and Ms Da Silva became reasonably frequent visitors to the Sanyasis' home and the two couples went out to restaurants together on a number of occasions. Ms Da Silva apparently became quite close to Mrs Sanyasi and expressed significant interest in and a desire to learn about Indian culture and cuisine. She occasionally wore a sari and followed other Indian practices with Mrs Sanyasi's assistance.
In April 1988 the applicant rented a flat in Clayton South. Shortly afterwards Ms Da Silva moved into the flat and the couple commenced to live in a de facto relationship. Ms Da Silva also found work at ACI Plastics and they generally drove to work together in Ms Da Silva's car.
On 18 June 1988 the applicant and Ms Da Silva married in a civil ceremony which was held at the home of Mr and Mrs Sanyasi. Ms Da Silva wore a sari at her wedding. The couple made plans to visit Ms Da Silva's family in Western Australia in due course and to go through a Christian marriage in a church there to please the Da Silva family.
On 29 July 1988, supported by his wife, the applicant lodged his application for resident status with the Minister's department (the department) and he and his wife were interviewed by a female departmental officer. The officer was obviously interested in the genuineness of the marriage and apparently concerned to exclude the possibility that the marriage was contrived in the sense of its having been contracted for the purpose of achieving Australian residency for the applicant. The evidence reveals that the officer was satisfied about the genuineness of the marriage and set about organising or putting in train the other requirements before the application could be finally decided, including medical examinations and character checks.
Shortly after the marriage the applicant's wife lost her job and commenced to become estranged from the applicant. Her behaviour towards the marriage deteriorated to the point, on the applicant's account, where she was regularly not at home when the applicant returned in the evening and on some occasions did not return until the following day. This caused continuing friction and arguments between the couple. On 14 July 1989 the applicant arrived home to find that his wife had left the residence taking all her personal belongings and some household items. She left a note advising the applicant that the marriage was over, that she felt it had been a mistake and that she was going to rejoin her family in Western Australia. She expressed a wish that the applicant not contact her there.
The applicant explains that his wife was very young at the time of their marriage, that she obviously enjoyed going out to nightclubs and partying with friends but that when she realised the realities of married life, their cultural and age differences emerged more starkly and she appeared to lose interest in the marriage and the applicant. The applicant believes that his wife returned to Western Australia but the couple have not spoken to each other since the day she left. The evidence makes it clear that the chances of reconciliation are negligible.
The applicant thereafter took another male into his flat as a flatmate. On 12 October 1989 the flatmate was arrested after his New Zealand wife told authorities that she was paid money for marrying the man. This brought the applicant under notice as a potential suspect in a marriage racket designed to enable people, not otherwise entitled, to obtain Australian residency. It should immediately be said that further investigation failed to substantiate any reason for concluding that the applicant was in any way involved. Nor is there any evidence that his own marriage came about as a result of any impropriety or contrivance. In fact separation after just over a year of marriage is not consistent with the marriage having been procured by the payment of money or other improper means for the purpose of securing Australian residency where, as was the case here, residency had not been secured prior to the separation.
It appears that in about October 1989, the applicant made a number of enquiries about his application for resident status. Quite apart from the fate of his flatmate, this was quite understandable bearing in mind that by this time his application had been pending for fifteen months. Documents obtained by the applicant's solicitors under the Freedom of Information Act reveal that one of the reasons for some delay might have been that the department had been trying to locate Mrs Krishna for interview, presumably in connection with its examination of the applicant's residency application, but perhaps also as part of its investigation into his possible complicity in improperly procured marriages. When she was unable to be found, it was decided that the applicant should be brought into the Dandenong office of the department for a further interview himself. He was to be asked to bring his wife with him but if he arrived alone, he would be asked to take the departmental officer to his wife on the spot. If he said that this was not possible, he was to be brought into the city office for further investigation of his application. An early time in the day was to be fixed for the interview so as to permit all these occurrences to take place on the same day.
Accordingly, a letter dated 22 November 1989 was written to him asking him to telephone a Mr Leon Colbert, an officer in the department's southern regional office. An instruction was given that when the applicant telephoned to fix the appointment, there was to be no mention of the department's activities and concerns regarding Mrs Krishna's whereabouts or their intentions for the day of the interview.
On 4 December 1989 the applicant called on his solicitor and made a statutory declaration concerning his wife's departure from the marital home. On 5 December 1989 the applicant telephoned the number given in the 22 November letter and made an appointment to be interviewed on 13 December 1989 at 9 am. The applicant informed the person to whom he spoke on the telephone that his wife had left him in the previous July. At the interview on 13 December, the applicant presented the statutory declaration and strongly asserted the genuineness of his marriage. The other plans of the department were then apparently dropped.
Nothing seems to have transpired in relation to his application for permanent residency for several months thereafter but on 16 May 1990 he telephoned the department to advise that he had moved back to the earlier address in Clayton South where he had been boarding soon after his arrival in Australia. On 17 May 1990 he telephoned the department to request a re-entry visa so as to permit him to travel to Fiji to see his mother who had apparently become very ill.
Meanwhile, unbeknown to the applicant, a report had been completed on 8 May 1990 by Mr Colbert recommending that the applicant's residency application be refused. I shall come back to Mr Colbert's report in more detail later. The report was considered on 19 May 1990 by a Mr R Hewson, described as A.D. Client Assessment, perhaps under the pressure of the telephone call of 17 May. Acting upon the recommendation of Mr Colbert, Mr Hewson refused the application (the first decision) and instructed Mr Colbert to advise the applicant. This was done on 23 May 1990 by a letter to which was attached Mr Colbert's detailed findings and recommendations of 8 May. The applicant was requested to leave Australia promptly.
The first of the two applications to the Court, filed on 28 June 1990, sought to have this decision reviewed. In the meantime, however, Statutory Rule No. 109 of 1990 embodying regulation 173A was introduced into the Migration Regulations with effect from 29 May 1990. This permitted one ministerial reconsideration of the merits of certain pending refusals. Shortly after the lodgment of the first application to the Court, the applicant's solicitor was advised that the applicant was entitled to apply for a merits reconsideration under regulation 173A. This application was made in August 1990. The department made a submission to this review that resident status be refused.
On 7 September 1990 one or more members of the Immigration Review Panel, an intra-departmental body set up to conduct regulation 173A reconsiderations, apparently with a brief to make recommendations to the Minister or his delegate, recommended that the departmental decision be maintained. The Minister's delegate accepted the recommendation on the same day (the second decision) and on 11 September 1990 the applicant was advised of the final refusal of his application and required to depart Australia immediately. The second application to the Court, filed on 3 December 1990, sought to review that refusal. A statement of reasons under section 13 of the ADJR Act was sought and completed on 4 March 1991. Pending the resolution by the Court of these matters, the applicant has remained in Australia as an illegal entrant.
The first decision (19 May 1990)
The Minister contends that the applicant has no right of review of this decision because the decision is no longer operative, or the applicant is no longer aggrieved by it, as required by section 5(1) of the ADJR Act. Some observations of Fisher J in Perry v The Director of Public Prosecutions (1985) 6 FCR 578 and of Justice Lee in Eskaya v The Minister for Immigration, Local Government and Ethnic Affairs (unreported 21 July 1989) were cited in support of this proposition. Because of the conclusions to which I have come, it is not necessary for me to decide this matter, and I propose to proceed on the assumption, without finding, that the Minister's submission is incorrect. Amongst other things it is difficult on the evidence before me to conclude one way or the other whether the first decision has any ongoing force. For example, if I were to quash the second decision, it is not clear whether the Minister would then seek to resurrect the first decision and proceed to deport the applicant. Moreover, there may be some doubt about the applicant's entitlement to the regulation 173A reconsideration which led to the second decision. If in fact and law the applicant was not entitled to that reconsideration, and there were legal errors in the first decision, it would be unjust to allow it to stand as a possible basis for deportation. I will therefore treat the first decision as operative and examine the applicant's criticisms of it.
The terms of the first decision, made by Mr Hewson on 19 May 1990, were:

It is quite clear that this marriage does not meet policy requirements. The Department is obliged to be satisfied that a marriage entered into for the purpose of obtaining residence is going to be ongoing (sic). There are no other compelling circumstances present in the application to warrant any other decision.

To make sense of this decision for the purposes of review under the ADJR Act, it is also necessary to consider Mr Colbert's findings and recommendations to Mr Hewson of 8 May 1990. However, as both men refer to departmental policy in their respective documents, attention must first be given to that policy at the relevant time. It is contained in the Integrated Departmental Instructions Manual (IDIM) under the heading "Grant of resident status Number 3", subheaded "Spouses of Australian citizens or holders of a permanent entry permit". The relevant parts of the policy are to be found in 2.3 under the heading "Policy Guidelines" and 3.1 under the heading "Breakdown of the relationship during processing". The policy guidelines are designed to ensure that the marriage is bona fide and continuing. There are five criteria suggested:

1. the Australian citizen/resident spouse should support the application;

2. the marriage should not have been contrived for the purpose of obtaining residence in Australia and there should be a genuine intention of maintaining a lasting relationship beyond migration considerations;

3. the applicant should be living with the spouse and the marriage should not have ended through divorce, separation or death;

4. the applicant and spouse should intend to live together on a genuine domestic basis; and

5. the applicant should not have an ongoing marriage or defacto relationship with a person other than the supporting Australian citizen or resident.

Additional items of evidence by way of leases, joint bank accounts, wills, children's birth certificates etc. are to be sought and referees are to be consulted.
If a marriage breaks down irretrievably during the course of processing an application for resident status of this kind, there is provision in 3.1.1 that the application should normally be refused unless there are what are called "other special factors". This guideline provides, in part:

In considering such cases, however, officers should give careful consideration to the compassionate aspects arising from the breakdown of the marriage. As the couple are not divorced, the legal requirement is still met and in the light of the individual circumstances, officers may still consider that a case exists for favourable consideration under section 6A(1)(b).

The applicant nominates five errors of law in, or bases for challenging, the first decision. All except the first are grounded in Mr Colbert's report of 8 May 1990 to Mr Hewson. It is thus assumed, I think correctly, that Mr Hewson adopted Mr Colbert's findings.
1. The first is delay. This is a claim that if the application had been processed earlier, the couple would have been living together and there would have been no ground for rejecting the application. No provision of the ADJR Act was quoted as supporting this contention. As I see it, this is not a ground for challenging the first decision under the ADJR Act. If raised during the period of consideration of the application, it might have been a ground for attacking the failure of the Minister to make a decision in the matter at all, but that opportunity has long since been lost.
Apart from the facts which I have outlined earlier, there seems to be no adequate explanation for the long delay in processing the application. I have often pointed out that excessive departmental delay is not only cruel to an applicant when an application is ultimately refused; it introduces a false issue into the judicial review of the ultimate refusal. However, the issue here is whether the applicant is entitled to a grant of resident status on the grounds of his marriage to an Australian citizen. Despite the applicant's assertion in the amended application for review, it is not unreasonable that this question should be assessed and considered at the time when the decision is made. Nor is it unreasonable, still less unlawful, to conclude that a marriage which has irretrievably broken down will not ordinarily provide a basis for a grant of residency pursuant to section 6A(1)(b). Contrary to the statement made for the first time in the amended application for review, no submission was made and no evidence was presented to establish that the delay itself was a contributing factor to the separation of the applicant and his wife. The fact that the separation occurred 13 months after the marriage, during the lengthy consideration of this matter, is unfortunate for the applicant but the refusal of the application does not manifest a legal error on this basis. It is fair to observe that the delay in processing the residency application was, at least in part, apparently due to the need to investigate the applicant's possible involvement in the marriage racket to which I earlier referred. There is nothing unreasonable or improper in departmental officers taking some time to satisfy themselves of the applicant's non-involvement in such activities, although if any discretions were operable now, unexplained delay may inure to the benefit of the applicant.
2. Mr Colbert's report contains the following sentence:

Although the couple separated in June 1989, the applicant did not disclose this to the Department until confronted (our Investigations section had already discovered this while investigating this case).

The applicant does not criticise the error in the date of separation but submits quite rightly that the link between disclosure and "confrontation", assuming that this meant the 13 December 1989 interview, is an error of fact in the sense that he revealed the correct position voluntarily by telephone on 5 December well before the interview. In fact, in his report of the meeting on 13 December, the interviewing officer noted that the applicant "never made any attempt to cover up the fact that he and his wife were now separated".
On the other hand, the history which I have noted does not reveal quite so pure a picture on the part of the applicant. Mrs Krishna left the matrimonial home in July 1989. Although the applicant had signed an undertaking to notify the department if there was any change in the basis of his application, it was understandable for him not to rush in to advise the department immediately his wife had left. No doubt he entertained the hope, possibly even the expectation, that reconciliation might be possible.
However, the department had been attempting to locate Mrs Krishna in October and early November. It is difficult to believe that this did not become known to the applicant. Moreover, he had received the department's letter of 22 November 1989, asking him to make an appointment for him and his wife to be interviewed, well before his telephone call on 5 December 1989 in which he first brought their separation to the notice of the department. Indeed the telephone call of 5 December was primarily to fix the time for the interview at which, as the letter had said, his wife was a necessary attendant. The applicant had made a statutory declaration regarding his wife's departure at his solicitor's office on 4 December. Whether, as seems at least possible, the 5 December revelation of the separation was prompted by his solicitor's advice, the fact is that at the time of the 5 December telephone conversation, the applicant really had no choice but to reveal his wife's departure.
Mr Colbert may therefore have somewhat overstated the matter when he said that the separation was not disclosed until the applicant was "confronted" on 13 December 1989 but the use of that term does not establish that the decision-maker took an irrelevant matter into consideration or made any other reviewable error of law.
3. Mr Colbert's report also contained the following statement:

Information on file shows that the applicant was under investigation because of a link with another case involving a contrived marriage. Whilst I acknowledge that an investigation was conducted, I have placed more weight on other considerations.

The applicant complains of the use of the term "more weight" and says that no weight at all should have been placed on this matter which turned out to be completely exculpatory of the applicant. This submission is quite correct but before categorising this loose terminology as an error of law, the statement must be looked at in context. Mr Colbert went on:

For example, the report that resulted from the investigation clearly indicated that no evidence existed linking this application with any others. Further and more importantly, the applicant's marriage has ended.

Since the applicant's marriage has ended and because there is little or no chance of a reconciliation, in the absence of other compelling circumstances, this application cannot succeed.

From these statements it may be seen that Mr Colbert's recommendation that the application be refused - and for this purpose I assume that Mr Hewson's decision was based on similar conclusions - was in truth a result of the ending of the marriage and not because any weight at all was placed, or any consideration given, to the fact that the applicant was investigated for possible implication in the alleged offences. Quite contrary to the assertion in the amended application for review, there is no evidence that the department ever treated the applicant's marriage as otherwise than genuine while it subsisted as a true marital relationship.
4. It was further submitted that Mr Colbert erred by concluding that the applicant's marriage had ended. It was said that a marriage does not legally end because of non-cohabitation. This is of course again strictly correct - and is clearly expressed in policy guideline 3.1.1 - but again the context must be given attention. Mr Colbert's findings actually commence with a statement that this application "clearly satisfies the legislative requirements of section 6A(1)(b)", thus demonstrating his acceptance that the subsistence of a legal marriage permits the applicant to be considered under the relevant legislative provision. However, he then went on to say:

I do not accept that policy requirements have also been satisfied. There is one important reason for reaching this conclusion, namely that the applicant's marriage has ended through separation.

This was a clear indication that he was reviewing the state of the marriage in terms of the government's policy prescriptions to which I have earlier made reference. In other words, separation is antithetical to a grant of resident status on the ground of marriage. When it occurs during the processing period and manifests irretrievable breakdown of marriage, the normal result will be a refusal of an application under this ground. Mr Colbert was merely carrying out what the policy prescribes. There was no attack on the policy itself. There was nothing unlawful or unreasonable about Mr Colbert's application of it.
5. The applicant also attacked Mr Colbert's final recommendation, the relevant section of which stated:

Having given the application for residence status full consideration, I do not consider that the claims, either individually or collectively, constitute strong compassionate or humanitarian circumstances as outlined in policy, nor do any other factors exist which make the application of policy unreasonable in this case.

The applicant submitted that what was required from Mr Colbert was a conclusion on the application based on marriage and not on the matters referred to. In my opinion, this submission is pedantic and without merit. Prior to the recommendation, Mr Colbert had concluded that because the marriage did not exist except in law, it then became his duty under the policy guidelines to consider whether there were any other special factors or compassionate matters which might nevertheless militate in favour of the granting of residency status. His conclusion that there were no such grounds was perfectly open to him and, on the material presented to him, was manifestly correct. In fact, nothing other than delay has been put before the Court in this application, even by way of offering from the bar table, suggesting that Mr Colbert omitted to consider any matter under this heading at all, let alone one that might or ought to have led to a different conclusion. I can find no basis for justly criticising Mr Colbert's findings in this regard.
I therefore conclude that the first decision withstands all the applicant's assaults on it. During the course of argument I raised with both counsel the possibility that the applicant might have been invited to make submissions or put material on the existence of compelling circumstances after the breakdown of his marriage. This matter also arises in the consideration of the second decision and I will therefore discuss its applicability to a review of the first decision at that time.
The second decision (7 September 1990)
The applicant first sought to attack aspects of a document headed "Departmental Submission for Consideration by Immigration Review Panel". In my opinion this document does not provide an opportunity for review by the Court under the ADJR Act. It is not a decision, still less "a decision of an administrative character made ... under an enactment" of which review may be sought: s 3(1) of the ADJR Act. It is what it says, namely a submission by an interested party to the regulation 173A reconsideration. It is true that the Immigration Review Panel is a departmental creation without explicit statutory authority and is apparently thought by some to be nothing more than a rubber stamp for previous departmental decisions or for approving the department's submissions to it. It is not known in this case, as it has not been known in others which have come before the Court, who or how many persons constituted the Panel and what actual time and consideration was given to its deliberations. In an appropriate case this might itself permit some adverse findings on its activities or methods. But in this case, the applicant does not criticise the Panel's deliberations as such. He sought a reconsideration under regulation 173A and, with the assistance of his lawyers, was perfectly able and entitled to make his own submissions to those authorised to conduct it.
Moreover, the Panel's conclusions are only recommendations and not reviewable decisions per se. The only matter the Court can consider in this connection is any of the statements of fact or law which the decision-maker adopts from the departmental submission or the Panel's recommendations. In this case, these may be found, if at all, only in the statement of reasons for the second decision. This was supplied by Ms Bruna Lola Pasqua, Manager of the CBD office of the Migration and Internal Review Office in Melbourne, who made the decision.
The applicant attacks three major matters in the statement of reasons:

1. The first is based upon paragraph 8 of the eleven paragraphs of factual findings. This says:

It should be noted that there was documentation on file suggesting that a group of Indians (and Mr Krishna's involvement was alluded to rather than actually specified) may have been involved in arranging marriages to Australian residents/citizens for the purpose of acquiring permanent resident status. The applicant was interviewed in this regard and emphatically denied that his marriage had been arranged.

The applicant submits that this statement leaves this whole matter up in the air and unresolved. He says that he was entitled to a complete disavowal of his complicity in criminal conduct and that the failure to exclude that matter from consideration, in express terms because of its seriousness, manifested an error of law. Whatever the form of words used, it is obvious that if any substantive reliance was placed even on the applicant's possible complicity in this misbehaviour, the decision would be seriously weakened.
Neither the amended application nor the submissions identified the error of law in terms of any provision of the ADJR Act, but reliance was placed on some observations by a Full Court of this Court (Northrop, Wilcox and French JJ.) in The Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon and Anor, unreported 8 May 1990, at page 9:

It cannot be too strongly emphasised that a primary responsibility of a statutory decision maker is to reach firm conclusions about those facts which are relevant to his or her decision. If the decision maker is subsequently called upon to state his or her findings, he or she should do so in clear and unambiguous terms; not being reticent in expressing findings adverse to particular people, if in fact they were the actual findings reached at the time of the decision. Contrary to the submission put by counsel for the Minister, it is not correct to discount a factor favourable to an applicant b y reference to conflicting evidence or doubts. A person affected by a statutory decision is entitled to have the case determined by reference to found facts, not suspicions or conflicts of evidence. Only if this is done is it possible for the affected person to understand precisely the reason why the decision went as it did. Only if this is done it is (sic) possible for a judicial reviewer to determine whether there was evidence before the decision maker to support the finding. In making the above observations we bear in mind that there may be cases, for example risk assessment in the case of a suspected terrorist, where the relevant finding is that a risk exists. If that fact be found it may be proper to be influenced by it. But, of course, motions of risk assessment have nothing to do with this case.

I would respectfully agree with their Honours but the full context of this statement of reasons makes clear that the decision-maker treated the applicant's denial of involvement in arranged marriages as the final word in the matter and gave no further attention to the subject at all. The precise reasons for decision were given in paragraphs 12, 13 and 14 of part C of the statement:

12. In making my decision on this application I was mindful that it is the Department's policy to consider Applications for Reconsideration of a Decision (ARD) afresh. I accepted that, according to that policy, the circumstances which ought to be taken into account are the facts and circumstances as they exist at the time of lodgement of the ARD and at the time of my decision. As the applicant was still the spouse of an Australian citizen, I was satisfied that he met the requirement of section 6A(1)(b) of the Act. I had to then consider the exercise of my general discretion. However I found that the applicant's marriage had not been contrived for the purpose of acquiring resident status. I accepted the applicant's denials in this regard. In my view, the crux of the case was that, as the couple had been separated for a period of over a year at the time of the lodgement of the ARD application, (during which time there had been no contact between the applicant and his spouse) there was an absence of the policy components required for the grant of resident status, such as cohabitation, spouse support for the application and the intention to maintain a lasting marriage relationship.

Moreover the applicant advised that there was no prospect of reconciliation with his wife.

13. I also considered whether the applicant's misfortune in the breakdown of the marriage or any other factors in the case suggested I should approve the application outside of policy requirements. Although I felt sympathy for the applicant, I decided that there were no factors in this case that would lead me to conclude that the applicant should be granted resident status.

14. I therefore decided to refuse the application.

This statement of reasons manifestly complies with the Full Court's stern injunction and no error of law emerges.
2. The applicant next submitted that Ms Pasqua failed to address the policy prescription appropriate when a breakdown of marriage occurs during the processing of an application for residency status on the grounds of marriage to an Australian. He argued that his personal circumstances were unknown to the decision-maker at the time of her decision on 7 September 1990. Ms Pasqua summarised the applicant's claim for a reconsideration in paragraph 7 of her factual findings as follows:

... notwithstanding the irretrievable breakdown of his marriage, the Department should have accorded weight to the reasons that led to that breakdown (which in his view, were a consequence of the significant age and cultural differences with his wife). The applicant claimed that as he was not the party responsible for the separation, it would be grossly unfair if his application for permanent residence status was refused on these grounds.

No other grounds of unfairness or for compassionate consideration were put forward in the application for reconsideration or at any other time, including during these proceedings. No other matters were even suggested from the bar table. In the circumstances, this criticism is difficult to sustain if it is merely put as a theoretical or hypothetical flaw in the decision. I cannot see that an investigation into culpability for the separation, which would not even be examined by the Family Court, should be required of the Minister or of this Court. In any event, it could not usefully be carried out in the absence of Mrs Krishna's point of view.
As with the first decision, I raised with counsel the question of whether the decision in this regard was capable of being impugned on the grounds that the applicant was not specifically invited to make submissions or submit material on this subject. The applicant's counsel did not embrace this invitation to consider another possible ground for judicial review with any particular enthusiasm, although the matter does make an appearance in the amended application for review presented after the hearing. The Minister's counsel submitted that nothing had been put forward to suggest that there were any other compassionate or compelling circumstances to be considered. He mentioned by way of examples the absence of evidence or contention that:

. the applicant would be at personal risk if he returned to Fiji . the applicant had assimilated into the Australian community such that he would suffer hardship by being removed from Australia . employment in Australia had opened up to him significant occupational possibilities or skills which would advantage Australia and not be available in Fiji . he had Australian-born children to care for . he had been subjected to any unfairness or denied general fairness

in the treatment of his application

The suggestion of risk if the applicant is forced to return to Fiji is actually raised in the amended application for judicial review for the first time. It says that the situation in Fiji as pertains to the applicant would be reasonably available to the respondent. If I take judicial notice of the two military coups in Fiji, I must also do so of subsequent events. While no one can be happy about these developments, especially as regards the disquieting constitutional position of ethnic Indian Fijians, I am in no position to find that the applicant would face personal danger if he returned. There is absolutely no evidence to support this assertion. The applicant's failure to mention this matter until after the hearing completely absolves the Minister's advisers from a charge of failing to give it consideration in the light of their knowledge of the current Fijian situation.
So far as assimilation is concerned, the Minister submitted that the evidence really went the other way in the sense that the applicant's wife had adopted a number of Indian practices during their short period of association and marriage. The general argument was that decision-makers do not have to guess about these matters but are entitled to rely upon those submitted by applicants. This applicant was fully advised legally at the time and clearly turned his mind to the need to submit everything that might assist his application, including the existence of special or compassionate circumstances.
As it seems to me, there is no merit in this argument of the applicant and none in my formulation of an alternative but related ground for relief. The decision-maker committed no legal error in the way she dealt with this particular aspect of her duties when she put her name to paragraph 13.
3. The applicant said that the reasons given by Ms Pasqua assume that the errors claimed by the applicant to have existed in the first decision were incapable of criticism or overturning by the Court in its review of that decision. Even if true, this is not a ground for review under the ADJR Act. In fact the statement of reasons does not in terms or by implication make any such assumption. Indeed Ms Pasqua was at pains to separate the application for reconsideration from the first decision by stressing that reconsideration applications are to be considered afresh, with the matters to be taken into account being the facts and circumstances as they exist at the time of lodgment of the application for reconsideration and the decision thereon.
This demonstrates the problem caused by the applicant's insistence on attacking the defendant's submission to the regulation 173A reconsideration. For this criticism of the decision is really a challenge to that departmental submission. While emphasising that the reconsideration should be considered afresh on the circumstances at the time of lodgment of the application for reconsideration, the department also told the Immigration Review Panel that the reconsideration should be assessed "according to the law and policy in force at the time the original application was lodged on 29 July 1988". The applicant does not challenge this formulation and it seems to have been precisely what Ms Pasqua did. It completely contradicts this submission of the applicant.
It is true that the departmental submission expressly contends "that there was no error in law in the making of the primary decision and that it was not unreasonable for the decision-maker to make that decision". However, Ms Pasqua either did not accept or disregarded that submission and made no such finding.
In the circumstances I can find no legal basis for this application for judicial review which is therefore dismissed with costs.

[1992] FCA 94

06 MARCH 1992