Kumar, M. v Minister for Immigration, Local Government & Ethnic Affairs

No judgment structure available for this case.

Re: MAYUR KUMAR and MANJU GOVIND
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G129 of 1989
FED No. 418
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Immigration - whether applicant for resident status was denied natural justice - whether decision-maker took into account irrelevant considerations or failed to take into account relevant considerations.

HEARING

SYDNEY

#DATE 4:8:1989

Counsel and Solicitors Miss C.C. Simpson instructed by
for Applicants: Messrs Craddock Murray & Neumann

Counsel and Solicitors Mr. P. Hastings instructed by
for Respondent: the Australian Government Solicitor

ORDER

Set aside the decisions dated 14 March and 23 March 1989 described in the further amended application for an order of review filed on 30 March 1989.

Remit the matter to the respondent for reconsideration according to law.

Make no order for costs.

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

JUDGE1

Judicial review is sought of two decisions made under the Migration Act 1958 ("the Act"): first, a decision refusing to grant a permanent entry permit ("resident status") to Mayur Kumar, the first applicant; and, secondly, as a consequence of that refusal, a decision ordering his deportation.

The history of the matter

The first applicant, a Fijian citizen, arrived in Australia on 8 October 1987, and was then granted a temporary entry permit, pursuant to s.6(6) of the Act, authorising him to remain in Australia for a period of one month. The permit was granted on the condition that the first applicant was prohibited from employment without official permission.
On 20 October 1987, the first applicant applied for the grant of a permanent entry permit, pursuant to 6A(1)(e) of the Act, on the basis that, as the holder of a temporary entry permit in force, there were "strong compassionate or humanitarian grounds" for the grant of a permanent entry permit. He also sought permission to engage in employment in Australia. Both applications were refused by the Minister's Delegate on 10 December 1987. The first applicant's appeal to the Immigration Review Panel was dismissed on 1 March 1988. Notwithstanding the refusal of his application, the first applicant remained in this country and, on 8 February 1989, he commenced work, but without seeking permission to do so. On 20 February 1989, he was arrested as a "prohibited non-citizen", pursuant to s.38 of the Act.
On 24 February 1989, the first applicant married Manju Govind, the second applicant. She is also a Fijian citizen, but she had been granted a permanent entry permit on 21 June 1988. It is common ground that the marriage was a genuine one.
On 22 February 1989, after his arrest, but before his marriage, the first applicant made a further application for a permanent entry permit. That application was refused on l4 March 1989 and a deportation order was then made. These decisions, which were confirmed on 23 March 1989 after further consideration of the matter, are the subject of the application for judicial review made in these proceedings.
Background facts
Judicial review is sought on very many grounds. In order to understand the nature of the case sought to be made by both sides, it is necessary to describe the background facts.
The first applicant was born in Fiji on 1 January 1967. He first entered Australia on 11 October 1986. He was then granted a temporary entry permit for a period of one month. He left Australia on 15 October 1986.
As has been said, he entered Australia on 8 October 1987 and, on 20 October, he applied for resident status.
First application for resident status (October 1987)
In his first application for resident status, the first applicant stated that his "marital status" was "never married" and that his "usual occupation" was "travel consultant". In response to a request for details of all his employment in the last 10 years, he stated that he had been employed as a "travel consultant" with a firm in Suva from June 1986 to October 1987. He also stated that his main four "strong compassionate or humanitarian grounds" were (1) "Life at danger"; (2) "Unemployment"; (3) "loss of property and valuables"; (4) "Devaluation of money which results in high cost of living". He said that, if his application were refused, he would be "out of (a) job and...won't be able to live a normal life as (he) used to. There would be a lot of problems and harrassment for me to face." He also said:
"...being an Indian (I) would face many problems because

Indians are the leading businessmen and holders of high posts in government departments. My life will be at danger because I won't be able to know when I will be attacked or will be robbed off. There will be also a danger of me going into shops or staying home because I won't be able to know when I can be caught up in a fire caused by a petrol bomb used in wiping out Indian shops and houses.

I will be unemployed and would not be able to support

myself for a better living since businesses are closing down and a high increase in inflation due to the great down fall in the country's economy."

As has been said, his application was refused and his appeal against that refusal was dismissed. On 28 April 1988, the Department wrote to him, asking him to contact the Department immediately regarding his departure arrangements from Australia. According to a file note, dated 3 May 1988, prepared by an officer of the Department:
"Les Hardy phoned in response to letter. Advises that

a/n lodged a notice of intent to marry with a celebrant and is due to marry in approx. 2 weeks. I have requested a/n to produce a letter from celebrant verifying this."

(It is common ground that Mr. Hardy is an immigration agent or consultant.)

On 4 May 1988, the officer made a further note on the file as follows:
"Mr. Hardy advised today that a/n has not lodged a

notice of intent as yet. Also that a/n's intended spouse is at present provisionally approved for residence. He had no further details. I have told Mr. Hardy to inform his client that we will not hold off action pending spouse's residence being granted. To make enquiries with visitors for FTEP and if approved O.K."

On 11 July 1988, an officer of the Department wrote to the first applicant informing him that he should make arrangements to depart Australia. On 13 September 1988, an officer again wrote to the first applicant, asking him to contact the Department "regarding (his) Immigration status." On 20 February 1989, a further letter was written to the first applicant, informing him that it had been established that he was a prohibited non-citizen within the meaning of the Act and liable to deportation; that, in the absence of any application for the regularisation of his status, a report of his circumstances would be put before a delegate of the Minister; and that the delegate would, on the basis of that report and any submissions he might wish to make, decide the question of his continued stay in or deportation from Australia. It appears that the letter was received by the first applicant on 20 February at the time of his arrest by Mr. Peter Davis, an officer of the Department.
Interview of first applicant on 20 February 1989
The Departmental file includes a report by Mr. Davis of an interview with the first applicant on 20 February. According to the report of the interview, (which was signed by the first applicant), although he stated, correctly, that he was not then married, he gave the following details of his relationship with the second applicant:
"2.6 What are the details of any other relationships

which you would wish to bring to notice?

(a) Name of person - Manju Pushpa Govind

(b) Nature and duration of relationship - wife-to-be. She has been my girlfriend for about 3 years.

2.7 If you claim to be married to or are in a defacto

or other relationship with a citizen or resident of Australia.

(a) what were the circumstances of your first meeting? First met in Fiji.

(b) is your relationship a serious one? If yes, when did it become so? Yes, about 2 years ago.

2.8 Did you inform your spouse or partner of your

status as an illegal immigrant? If yes, when and how did he/she become aware of it and what was his/her reaction?

Yes, after I got the IRP letter I told her. She was stunned. We decided to wait until her brother came in 1989 and then get married.

2.9 Are you currently living with this other party?

If yes, are you contributing towards household expenses?

She is living in Lakemba St., Lakemba. I give her money sometimes as she's just bought a place. We share our money.

2.10 If you contribute to household expenses, how much

do you contribute per week? (No answer)

...

2.12 If you were to depart Australia what would be the

effect on your spouse or partner and/or family? She'd be definitely upset. I don't know what she would do. She'd try to get me back.

3.12 Have you been asked in writing to leave Australia

by an officer of DIEA? If yes, what were the details and explain why you have not done so? Yes. My application was refused, but I didn't want to leave Manju. I was planning to marry her.

3.13 Are there any applications made to the Department

by you or on your behalf to which you have not yet received a decision in writing? If yes give further details:

"No. I was planning to lodge an application on marriage grounds this week."

The report dealt with his employment history as follows:

"4.4 Have you worked since arrival in Australia?

(Yes) If yes.

(a) when did you start work? 8/2/88.

(b) what kind of work have you done? Data entry operator

(c) where did you work and under what name? (list from most recent) State Bank 170 Reilly St Surry Hills Michael Kumar was my working name.

4.5 If you have worked how did you obtain employment?

e.g. CES referral, CES vacancy list, newspaper adverts, through friends, direct canvassing, other (specify)

Through CES. I told the State Bank at interview I was a resident."

The report dealt with "attitude to deportation/voluntary departure" as follows:

"...

6.2 What matters do you wish to be put before the decision-maker when he/she decides whether to

(a) allow you to remain in Australia? I like the country. There's lot of scope and future. The important thing is my love Manju is here. I do not wish to be separated from her... 6.3 Are there any other matters you wish to be taken into account?

Both of us would be affected if I had to leave

(emotionally). It could be drastic as Manju is very highly-strung and I don't want to feel responsible if she does a drastic thing. 6.4 Do you intend to make a written statement in support of or adding to the information you have given to me?

I intend to lodge a change of status application within the next couple of days based on my relationship with Manju and my plans to marry."

In addition to the answer to question 6.3, the first applicant added the following:
"I would have problems if I went back to Fiji

- struggling to find a job

- standard of living is decreased - I'll be a burden on my family."

Second application for resident status (February 1989)

By letter dated 22 February, the first applicant's solicitors informed the Department that an application for resident status had been lodged that day and that the "basis of the claim is (his) long standing relationship and impending marriage with an Australian resident, (the second applicant)." The solicitors said that supporting submissions would be lodged shortly.
In the application itself, dated 22 February, the first applicant stated the hardship which would result from refusal of his application would consist of "separation from (his) fiancee". At the same time, the first applicant sought permission to work.
On the Departmental file, there is a letter from Vin-Mala Sugrim of Narwee dated 23 February stating that she had known the second applicant for five years and that the said applicant "has been having a relationship with (the first applicant) for the last 3 years while she was in Fiji and since she has been here. She has informed me on many occasions that she intends to marry (the first applicant) as soon as they save enough funds. I know that (the second applicant) and (the first applicant) have taken holidays together here in Australia and spend their weekends together."
On the Departmental file there is a note from an officer, Mr. R. Wilson, Manager, Client Services, dated 23 February, stating that the first applicant's solicitors had informed him that the first applicant intended to marry on 24 February. The note recorded that, subject to an appropriate location (the first applicant was, of course, then in custody), the officer was "quite happy to facilitate the ceremony."
By memorandum dated 27 February, Mr. Davis, the "case officer" recommended to Mr. Wilson that the first applicant be maintained in custody for the following reasons:
"(The first applicant) has previously been instructed to

depart Australia and to contact this Department on a number of occasions but has failed to do so.

(The first applicant) attempted to deceive and mislead

officers of this Department at the time of his location and arrest, by stating he was not working and that a certain other person was resident at his address. Both these claims have subsequently proven to be false.

He had previously changed his address given to the

Department without duly notifying the Department.

The grant of resident status application is incomplete

and submissions from his solicitors are expected shortly. It is not known what the content of those submissions will be.

For these reasons I am not satisfied that (the first

applicant) would honour any reporting arrangements and recommend that custody be maintained."

On 27 February, Mr. Wilson made a note on the file that the first applicant's solicitors had informed him that the first applicant had married and that the solicitors were preparing a submission based on that marriage.
By letter dated 28 February, the first applicant's solicitors forwarded documentation in support of the application for resident status and made the following comments:
"Since lodging the application (the first applicant) has

married (the second applicant), a permanent resident of Australia. He therefore now meets the legal requirements of s 6A(1)(b) of the Migration Act 1958, and we ask that his application be considered on that basis. In view of the changed circumstances of our client, we also ask that consideration be given afresh to the strong compassionate and humanitarian aspects of this application, with reference to s 6A(1)(e).

(The second applicant) and (the first applicant) became

engaged in 1987 in Fiji. (The first applicant's) family opposed the marriage for reasons outlined in the attached documentation. For cultural reasons this opposition was a serious impediment to their plans, although we are instructed that at no point did they abandon their intention to marry.

(The second applicant) came to Australia following the

military coup in Fiji in 1987. She is the sister of...a former Justice of the Supreme Court of Fiji who left that country as a result of his opposition to the new regime. The fact that (the first applicant) has now married into a family that is clearly identified with anti-regime sentiments in Fiji is, we submit, also a factor to be taken into account in considering his application for residence in Australia.

As the accompanying documentation attests, the marriage

between (the applicants) is genuine and intended to be permanent. We submit that it would be inappropriate to separate them by deporting (the first applicant) to Fiji where he would face the prospect of a lengthy wait for permission to migrate to Australia and possible hardship arising from his marriage into the Govind family.

As you will be aware, (the) former Justice was

probably the single most prominent individual in Fiji to express opposition to the coup by resigning his position and leaving the country. In this regard it should also be noted that (the second applicant) was granted permanent residence as part of a family unit centred on her brother. In the circumstances, to expect her to return to Fiji to be with her husband would mean exposing her also to possibly adverse attention from the regime..."

The material then forwarded by the solicitors included the applicants' marriage certificate and a statutory declaration by each applicant. In his declaration, the first applicant said:
"1. ...I first met (the second applicant) in Fiji in

1986 in the course of my employment.

2. (The second applicant) and I both worked as

travel consultants. We began going out together in February or March of 1987. We went to movies and social engagements as a couple.

3. A few months later we discussed marriage for the

first time. We both wanted to get married, but because (the second applicant) is several years older than me and belongs to a different Hindu caste, my family were opposed to the idea. Because of my cultural background, I considered it very important to have my family's consent to the marriage.

4. As a result of problems arising from the military

coup in Fiji, (the second applicant) and her family came to Australia in October of 1987. I followed a week later. I was granted a temporary entry permit valid for one month.

5. We decided that we would pursue our marriage

plans in Australia. We both lodged applications for permanent residence. (The second applicant) became a permanent resident in June 1988 but I was rejected.

6. I found myself in a desperate situation. I did

not wish to return to Fiji and be separated from (the second applicant), so I stayed on in Australia. (The second applicant) and I saw each other on a daily basis, and often spent weekends together. In late 1988 we spent a week together in Queensland, where we shared accommodation. During this time we developed a close physical and emotional relationship.

7. We came to the conclusion that we would never get

my family's approval for the marriage. While it causes me much distress to marry without the approval of my family, in view of our love for and commitment to each other, we decided to get married without that approval, and early this year we began making definite plans to marry at the end of March. Shortly before I was arrested by Immigration officers on 20 February 1989 (the second applicant's) brother Brahama Nand Govind arrived from Fiji to conclude the arrangements.

8. When I was arrested, we were faced with the

prospect of a lengthy separation, and the possibility that the marriage would be delayed indefinitely. We felt that even if I had to leave Australia, we should at least seal our love by marrying first, so (the second applicant) made some hasty preparations and we were married at the Fairfield Police Station on 24 February 1989.

9. We had genuinely intended to marry and raise a

family even before we came to Australia. We love each other and wish to be together. The marriage was not contrived for the purpose of gaining residence in Australia."

In her declaration, the second applicant said:
"1. ...I first met (the first applicant) in Fiji some

time in 1986.

2. Both (the first applicant) and I were employed in

Fiji as travel consultants. We met in the course of business and began to see each other socially in about February 1987.

3. By March 1987 we had started going out together

as a couple. We went to movies, parties, dinners with friends, etc.

4. Around the middle of 1987 we decided to marry.

However, it quickly became apparent that (the first applicant's) family was opposed to our plans. I am eight years older than (the first applicant) and belong to a different Hindu caste. For these reasons (the first applicant's) family did not want him to marry me.

5. My elder brother...was a Justice of the Supreme

Court of Fiji. As a direct result of his opposition to the military coups which took place in Fiji in 1987, we were obliged to leave our home country and come to Australia in October of that year. (The first applicant) came to Australia one week later. Before leaving Fiji, we decided that we would marry at some future date despite his family's opposition, although in the meantime we would do our best to achieve a reconciliation. It is very important in Hindu culture that people have the blessing of their families when they marry.

6. Both (the first applicant) and I applied for

permanent residence in Australia. My application was approved in June 1988, but (the first applicant's) was rejected.

7. While in Australia we have continued to see each

other almost daily. Whenever practical we have spent weekends together. We have become fully committed to each other both physically and emotionally. In late 1988 we spent a week together in Brisbane, where we shared accommodation.

8. My family in Australia, being my mother, sister

and my brother...are fully aware of our relationship and approve of our intention to marry.

9. My other brother, Brahma Nand Govind, arrived in

Australia a few days before (the first applicant) was arrested by Immigration officers in order to discuss plans for our wedding. I had arranged to take holidays at the end of March so that we could have the wedding then.

10. After (the first applicant) was arrested, we

feared that he might be sent back to Fiji and have to stay there for a long time before being allowed to return. We didn't want the marriage to be delayed any longer, even if (the first applicant) had to leave the country, so advanced our plans and were married on 24 February 1989 at Fairfield Police Station, where (the first applicant) is detained.

11. Our marriage is a genuine one which has come

about despite the adversity of family opposition and circumstances. It is not contrived for the purpose of obtaining residence in Australia for (the first applicant). We intend to live together as husband and wife and raise a family."

By letter dated 3 March, Mr. Wilson informed the first applicant's solicitors that his request for release from custody was refused. Mr. Wilson said:
"...I have noted the contents of your submissions, (the

first applicant's) application for the grant of resident status and (the first applicant's) changed marital state.

I have also noted (the first applicant's) Immigration

history, in particular his failure to comply with earlier directions to depart. I have further noted that his marriage was arranged and transacted following his arrest and that no applications were before the Department prior to his arrest.

I considered that a decision to refuse to release would

cause hardship to both parties. However, I decided in light of all the circumstances that custody is to be maintained."

Report on the second application for resident status

By a report dated 2 March 1989, Mr. Davis recommended that the grant of resident status be refused and that the first applicant be ordered to be deported. On 6 March, Dominic Downie, Regional Director, Southern Region agreed with the recommendation. On l4 March, Tuong Quang Luu, Director for New South Wales and Delegate of the Minister agreed also and signed the deportation order on that date. So far as is material, Mr. Davis' report is as follows:
"...
2. ...(The first applicant) is a citizen of Fiji who

arrived in Australia at Sydney Airport as the holder of a visitor visa on 8 October 1987. On entry to Australia he was granted a Temporary Entry Permit (TEP) valid to 8 November 1987 and endorsed 'Employment Prohibited without written Permission of an Authorised Officer'...

3. Since the expiration of the TEP granted to (the

first applicant) no further entry permit has been granted to him. He is therefore a prohibited non-citizen pursuant to Section 7(3) of the Migration Act 1958.

4. On 20 October 1987 (the first applicant) lodged

an application for the grant of resident status in Australia under Section 6A(1)(e) of the Act. (The first applicant's) claims for residence centred on the then current political and social situation in Fiji...

5. On 10 December 1987 an authorised officer decided

to refuse (the first applicant's) application and this decision was conveyed to him in writing on 16 December 1987...

6. On 12 January 1988 (the first applicant) lodged

an appeal against the decision with the Immigration Review Panel. The Panel unanimously recommended that the Departmental decision be maintained and (the first applicant) was advised of this decision in writing on 8 April 1988...

7. On 28 April 1988 (the first applicant) was sent a

further letter requesting him to advise his departure arrangements...

8.. On 3 and 4 May 1988 telephone advice was received

that (the first applicant) intended to marry a person who was provisionally approved for residence. However no further applications were received from (the first applicant) in this regard.

9. On 11 July and 13 September 1988 further letters

were sent to (the first applicant) requesting him to contact the Department regarding his departure. No reply was received...

10. On 20 February 1989 (the first applicant) was

located and arrested as a result of Departmental enforcement action. He was subsequently interviewed at Rockdale office and is currently held under Section 38 custody at Fairfield Police station.

11. At the time of his location, (the first

applicant) did not open his door despite protracted knocking and verbal identification by the Immigration officers. It was only after a Search Warrant was obtained and produced that (the first applicant) admitted the officers to the premises. When questioned prior to his arrest, (the first applicant) denied that he was working. He also claimed that a person by the name of Alexandra Konstantinidis was residing there and that she lived there in a de-facto marital relationship with his brother Dipendra Kumar. A copy of the arresting officer's report is (annexed). (The report is referred to below.)

12. At interview (the first applicant) advised, inter

alia, that

- he had a current relationship with an Australian permanent resident, (the second applicant) and that he is planning to marry her.

- no date had been set for the wedding - he does not live with (the second applicant) - he did not leave when instructed because he wanted to stay and marry (the second applicant)

- he was planning to lodge a further application for resident status that week. - he was working at the State Bank. He had obtained this job by claiming he had resident status.

- both he and (the second applicant) would be emotionally upset if he was required to depart Australia.

- there is scope and future for him in Australia and he likes the country. - he does not wish to be deported and would prefer to make a voluntary departure if he had to leave.

- the reason he or (the second applicant) did not open the door prior to his arrest was that he was on the toilet and (the second applicant) was scared to open the door. A full copy of the interview report is (annexed).

13. In a Departmental letter dated 20 February 1989

(the first applicant) was advised of his immigration status and that a delegate would decide the questions of his continued stay and departure from Australia. He was also offered the opportunity to avail himself of a voluntary departure and invited to make submissions for the delegate's consideration...

14. On 21 February 1989 (the second applicant) was

interviewed at Rockdale office. During that interview she said, inter alia that - (the applicants) were planning to marry 'in a month' and intended to lodge a Notice of Intention to marry this week. - (the applicants) were fiancees and had been emotionally attached for three years. - (the applicants) had not been married as yet due to his family's disapproval and waiting for her grant of resident status (Granted 21 June 1988)

- they had not lived together, and had no joint financial interests or assets. - she might follow him overseas later if his application is refused, but her life is here in Australia and she would try to sponsor him back.

- she would be terribly upset if he had to leave and does not wish to be separated from him even 'for an hour'.

- she would not incur any financial loss if (the first applicant) was deported. - (the applicants) were planning to resolve his Immigration status at the time of his arrest...

15. On 21 February 1989 Ms Alexandra Konstantinidis

advised that she was not living at the premises and had not since circa October 1988. She further advised she was no longer in a de-facto relationship with Dipendra Kumar and had been separated since October 1988...

16. On 22 February 1989, an application for the grant

of resident status was received under Section 6A 1(e) of the Act. The application centred around (the first applicant's) relationship with (the second applicant). At that time (the second applicant) advised through her solicitor that a notice of intention to marry was being lodged at the Registrar-General's and that further submissions were being obtained. The application was not accompanied by the appropriate fee due to industrial action being taken by staff at the Rockdale office...

17. On 24 February 1989 (the second applicant)

submitted a Marriage Certificate dated that day in respect of her marriage to (the first applicant)...

18. On 28 February 1989 (the first applicant)

submitted, through his solicitors, the outstanding Part B of the application, statutory declarations from himself and his spouse, four letters from third parties and a submission from his solicitor. The material stated, inter alia, that

- The couple were engaged in Fiji prior to their respective arrival in Australia. - The marriage had not previously taken place due to (the first applicant's) family opposing the marriage on the grounds of age and caste difference.

- They had eventually decided to proceed with their marriage despite (the first applicant's) family opposition.

- (the second applicant's) brother Brahma Nand Govind had arrived in Australia one week before (the first applicant's) arrest to assist with the wedding arrangements. - The marriage was not contrived for the purpose of gaining resident status in Australia. - (the second applicant) is...(the) sister (of a former Fijian judge). By marrying into a family known to have anti-regime sentiments, (the first applicant) could come under adverse notice of the Fijian authorities...

B EVIDENCE OR OTHER MATERIAL ON WHICH FINDINGS ARE

BASED

19. In support of the above findings the following

material is attached.

A (the first applicant's) passport... B Application for the grant of resident status in Australia lodged 20 October 1987... C Assessment, decision and advice of decision in relation to Annex B...

D Immigration Review Panel application, decision and advice of decision... E Departmental letter of 28 April 1988... F Further Departmental letters requesting contact...

G Arresting officers report of 20 February 1989...

H Full copy of report of interview with (the first applicant) dated 20 February 1989... I Copy of the letter dated 20 February 1989 informing (the first applicant) of his Prohibited non-citizen status, offering him a voluntary departure and inviting further submissions...

J Full copy of report of interview with (the second applicant) dated 21 February 1989... K Statement by Alexandra Konstantinidis dated 21 February 1989...

L Application for the grant of resident status dated 22 February 1989... M Copy of Marriage Certificate dated 24 February 1989...

N Application Part B and accompanying submissions received 28 February 1989...

C ASSESSMENT

20. (the first applicant) is a prohibited

non-citizen. He has committed an offence under the Act by becoming a prohibited non-citizen. Further, he has worked in Australia without permission, and breached the undertaking given by all visitors that he would depart Australia at the end of his authorised stay.

21. On 17 October 1985 the Minister of State for

Immigration, local Government and Ethnic Affairs tabled in Parliament a comprehensive policy on illegal immigrants which is relevant to your deliberations. A part of that statement is titled 'Marriage' and says 'The Migration Act and migration policy provide eligibility concessions for foreign nationals who have married an Australian citizen or permanent resident or who have an Australian citizen child. But eligibility to apply for residence does not carry an automatic entitlement to residence. In such circumstances, the interests of the resident family or child are taken into account and are weighed, along with other factors, in the eventual decision.

Marriage to an Australian, or the existence of an Australians citizen child, does not confer upon illegal immigrants the right to choose their country of residence. Each case will be treated on its merits.'

22. It is appropriate to apply this part of policy in

respect of (the first applicant's) claims under Section 6A (1)(b) of the Act and determine his application on its merits as the policy requires, taking into account his marriage and all other relevant circumstances.

23. The factors in favour of the grant of resident

status are:

- (the first applicant) is the husband of an Australian permanent resident. The marriage is claimed by (the applicants) to have been intended by them for some time prior to (the first applicant's) arrest and in fact they claim to have become engaged in Fiji. There is nothing to suggest that (the first applicant's) relationship with (the second applicant) is anything other than genuine. - (the second applicant) strongly supports (the first applicant's) application. - If (the first applicant's) application is refused, and he is required to leave Australia both he and (the second applicant) would suffer emotional hardship through the separation. Additionally, (the second applicant) claims that her life is here in Australia and she would not wish to have to join him in Fiji.

- (the second applicant's) family in Australia support the application and would be saddened if (the first applicant) had to leave. - (the first applicant) likes Australia and feels there is more scope and future for him here. He would find it hard to find employment in Fiji, and the standard of living has decreased. Because of this (the first applicant) believes he will be a burden on his Fijian family if he has to return to Fiji. - (the first applicant's) solicitors have claimed that by marrying into (the) former

(judge's) family he may be identified as having 'anti-regime sentiments' and this may expose him to adverse attention from the Fijian authorities.

24. However weighed against the above factors in

favour of the grant of resident status, you may also consider that;

- Whilst there is no reason to doubt the relationship between (the applicants), they maintained that relationship without any legitimate expectation that (the first applicant), at first a visitor and then a prohibited non-citizen, would gain an automatic right of residence in Australia as a result of their marriage. - Although involved in their relationship for over three years, they had not previously disclosed its existence to the Department. Through their solicitor they claimed they were engaged in Fiji, but (the first applicant) did not disclose the existence of their engagement in any previous dealings with the Department. - (the second applicant) had ample opportunity to encourage (the first applicant) to return to Fiji and be sponsored back by her in the normal way as her fiancee. - (the first applicant) had not lodged any application for consideration of further stay in Australia prior to his arrest. - (the first applicant) was working in Australia without permission and had, by his own admission, obtained his employment by deception.

- (the first applicant) attempted to deceive and mislead officers of the Department at the time of his location by claiming he was not working and that Ms Konstantinidis resided at that residence.

- (the first applicant) had been previously instructed on several occasions to depart Australia but had chosen to disregard those instructions.

- (the second applicant) would not suffer financially if (the first applicant) were required to depart Australia. - Although claiming that as a result of his marriage he may experience adverse attention from the regime in Fiji, he has provided no evidence as to what form this 'adverse attention' may take, or indeed that he is in fact in a position of adverse notice. He has not claimed any particular political affiliation nor has he claimed to have experienced any persecution or human rights abuses in the past."

(Although not set out in this report, reference should be made, for present purposes, to another section of the Ministerial statement of 'Policy on Illegal Immigrants" where, at pp 9-10, it states:
"People who are in Australia illegally, whether they

entered without authority or they overstayed their entry permits, will not readily be given permanent residence while they remain in Australia.

Their breaches of immigration law and requirements will

weigh heavily against them. In particular, in reaching a decision on an application to remain in Australia, the following circumstances (if they exist) will weigh heavily against the applicant:

- ...

- the applicant, although entering Australia

lawfully, violated conditions of entry, such as working without permission;

- ...

- the applicant avoided contact with, or ceased

contact with, the Department of Immigration and Ethnic Affairs...and came to notice because of the applicant's illegal status;

- ...

Changed circumstances advanced in support of an

application to remain (e.g. development of ties in Australia), but which arose or developed after the expiry of an entry permit, normally will be given little weight.

In the case of applications to remain made after

apprehension, approval will be granted only in the most exceptional and compelling circumstances (e.g. where extreme hardship to an Australian citizen or permanent resident would flow from removal from Australia). A temporary separation and the cost arising from return home to apply for migration in the normal manner will not normally be regarded as mitigating circumstances accorded significant weight.")

25. (the first applicant) does not claim, nor does he

appear to fulfil any of the legal and policy requirements for the grant of resident status under any other Section of 6A (1) of the Act. If you accept the foregoing you may decide that the factors in favour of the grant of resident status are outweighed by those against, and I recommend accordingly.

26. If you decide to refuse the grant of resident

status to (the first applicant) it is necessary to address his application for a further TEP. It is submitted that in light of a decision to refuse resident status, a decision to approve a further TEP would be inappropriate.

27. As there are no other applications before this

Department for consideration of further stay it becomes necessary to consider the question of (the first applicant's) departure which may be on a voluntary basis or by deportation.

28. The factors in favour of a voluntary departure

are

- no expense to the Commonwealth - (the first applicant) would not be subject to the five year embargo on return to Australia of deportees. This factor is particuarly relevant in light of (the second applicant's) stated intention to sponsor him back and the emotional hardship both (applicants) would experience through separation. - (the first applicant) has stated that he would depart voluntarily if he had to leave and does not wish to be deported.

29. The factors against a voluntary departure are

that (the first applicant) has been previously offered a voluntary departure and been instructed to depart Australia on 6 occasions and has disregarded those instructions. It is submitted that in view of this and all the other factors outlined in paragraph 24 above that it is inappropriate to again offer him such a concession.

30. If you decide against granting (the first

applicant) the concession of a voluntary departure, in regard to deportation, relevant to your consideration are those matters listed in paragraph 28 as matters weighing against deportation.

31. Against this you may consider (the first

applicant's) breaches of Immigration law, his activities since his arrival in Australia and his disregard for Departmental instructions, and having regard to all the facts and circumstances presented in this report decide to order his deportation.

D RECOMMENDATION

If you accept the findings on material questions of fact, and the assessment set out above, it is recommended that you:

i) Refuse the grant of Resident Status ii) Refuse the application for a further TEP iii) Refuse the concession of a voluntary departure

(iv) Order the deportation of (the first applicant)"

By letter dated 14 March, the applicants' solicitors sought a statement of reasons for the decisions refusing the first applicant's application for resident status and ordering his deportation.
On 16 March, these proceedings were instituted.
Further material which was considered by the Department after refusal of the second application
By letter dated 16 March, the applicants' solicitors forwarded to the Department a draft statutory declaration which, the solicitors said, would be declared by the first applicant. A fresh decision, on the basis of this matter, was sought. The draft declaration was as follows:
"1. My family in Fiji has always been strongly

opposed to the idea of my marrying (the second applicant) because of the differences in our age and Hindu caste. My family traces its roots back to the Gujurati branch of the religion, while (the second applicant's) family belongs to the Hindi branch. Differences of this kind can be a serious impediment to marriages in the Hindu tradition.

2. If I had married (the second applicant) in Fiji

my family would not have accepted her as a daughter-in-law. They would have insulted her, refused to cook food for her and told her to leave me.

3. Because of my family's opposition we postponed

our marriage in the hope that they would eventually change their minds.

4. After I was rejected for residence in Australia I

couldn't bear the thought of being separated from (the second applicant).

5. Returning to Fiji with (the second applicant) was

not an option, because she had left that country with her brother Kishor, who was a Justice of the Supreme Court and a prominent opponent of the military regime which took power in 1987. She would face arrest if she returned to Fiji.

6. (the second applicant) was granted residence in

Australia in mid-1988 on humanitarian grounds.

7. Throughout 1988 I telephoned my family in Fiji

about once a week, begging them to change their attitude. They did not.

8. In about December of 1988 (the second applicant)

and I took the decision that we would go ahead with the marriage despite my family's opposition. This was a serious breach of tradition, but we felt that our love for each other was stronger than our cultural values.

9. (the second applicant's) other brother Brahma had

remained in Fiji and had managed to dissociate himself somehow from Kishor in the eyes of the regime. (the second applicant) wanted him to come to Australia to take part in the arrangements for the wedding.

10. Brahma arrived in Sydney shortly before I was

arrested. It was decided with (the second applicant's) family that we would marry at the end of March.

11. (the second applicant) and I arranged to take

holidays at the end of March.

12. On the day I was arrested we intended to lodge

the Notification of Intention to Marry."

On the Departmental file there is a minute headed "Fijian applicant for COS under s.6(1)(e)". The minute enclosed a copy of the International Digest published by the Department dealing with the situation in Fiji. The minute noted that the Internal Security Decree in Fiji has been suspended as of 17 November 1988. The minute was noted by Mr. Luu on 23 March 1989. The section of the International Digest dealing with Fiji was as follows:
"1. The military coups in Fiji of 14 May and 25

September 1987 have resulted in extremely strong interest in migration to Australia and large numbers of applications for change of status being lodged by Fiji nationals in Australia. While the post has been exercising visitor policy rigorously, nevertheless an increased level of visitor visa abuse and immigration malpractice has been reported.

2. There is no doubt that over the period since the

coups Fiji has been subject to disruption and tension and that there has been a deterioration in the human rights situation since May 1987. That said, however, any assessment of the impact of the coups upon individuals in Fiji is subject to the following qualifications: . the coups were bloodless

. while there has been harassment, intimidation, short term detention and curtailment of some civil liberties, no one has 'disappeared', been summarily executed, tortured, or sentenced without trial to long term imprisonment or died in detention . while the Government has been established by military decree and lacks electoral or constitutional basis, it describes itself as 'interim' and has as its stated aim the return of parliamentary democracy and the promulgation of a Constitution . while the new draft constitution contains provision which would seek to ensure political dominance of indigenous Fijians and a special status for indigenous culture, traditions and customary laws, it also seeks to accommodate the needs of other races and to protect their fundamental rights and freedoms. . on the whole, law and order have been maintained in Fiji, with police continuing to carry out their normal functions and the courts continuing to hear the normal range of criminal and civil cases (albeit with delays caused principally by a shortage of judges; the Chief Justice of Fiji continues his efforts to maintain an independent and functioning judiciary despite the difficulties under which he is operating).

3. Of most concern in human rights terms is an

Internal Security Decree (ISD), proclaimed on 17 June 1988 in the wake of the discovery in Sydney and Fiji of illicit arms shipments (on 30 May 1988 a container load of military weapons in transit to Fiji was seized in Sydney). The decree, which is retroactive to 1 March 1988, reversed the onus of proof, provided for detention without trial, life imprisonment for unauthorised possession of firearms, entry, search and arrest without warrants, suppression of publications deemed to be detrimental to the national interest, increased powers of the security forces, designation of security areas, and restrictions of freedom of assembly and movement.

4. The decree, and the manner in which it had been

initially implemented, aroused widespread domestic and international concern at the potentially serious erosion of political and civil rights, and the possibility of advantage being taken to muzzle peaceful opposition to the interim Government.

5. From 17 June to the end of August 1988

approximately 30 people were detained under the ISD, for periods ranging from 8 hours to two weeks. At the end of August there were three persons in ISD detention, in relation to investigation into importation of 'pen pistols'*. *(Note: This investigation is separate from the arms smuggling affair which was a direct cause for the introduction of the Internal Security Decree - it concerns illegal importation of 'pen pistols' (primitive concealed handguns) by associates of one of the Taukei movement leaders who died in late July 1988 when a pen pistol in his possession accidentally discharged.) ISD detainees were a mixed group of people which included some former supporters of the Bavadra Government, a few critics of the interim Government or Fiji Military Forces

(FMF), some persons arrested for petty harassment (for trivial reasons), some victims of informers (both indigenous Fijians and Fijian Indians) satisfying personal grudges, and five foreigners.

following the detention under ISD of an Australian citizen in the second week of July 1988 and strongly worded Australian representations based on this incident, the number of ISD detainees has declined significantly. New detentions require prior written personal approval of Brigadier Rabuka.

6. The Government's antipathy has been directed

against a wide range of people but particularly against the deposed Coalition Government Ministers, their supporters and sympathisers. This has ranged from a loss of employment opportunities to petty harassment and intimidation as well as to arbitrary detention under the Internal Security Decree. . The Fiji security forces have also demonstrated their sensitivity about criticism in any form as undermining the efforts of the interim Government, causing division in the Fiji community and questioning the objectives of the coups, including indigenous Fijian political dominance.

7. Public service appointments in Fiji are subject

to the requirement of 50% indigenous Fijians or Rotumans at all levels. There are no appeals against appointment decisions.

8. The Fiji trade union movement believes its

activities have been severely curtailed since the first coup (14 May 1987), and particularly since the ISD (17 June 1988). Prior approval in writing is required to hold trade union gatherings and while unions continue to hold meetings in defiance of this directive, unapproved meetings may be broken up by the police. The industrial negotiation and arbitration mechanism has come effectively to a halt.

9. Claims are widely circulated as to the existence

of 'blacklists' of interim Government opponents. The only list known to be in existence is that of people who need to seek approval from the security authorities to travel overseas. While securing such approvals appears to be neither an easy nor a quick process, there are a number of cases on record where people so listed successfully obtained permission to travel. . While claims have been advanced of the existence of another list of persons prohibited from returning to Fiji, there has been no evidence of Fiji citizens being denied entry to Fiji.

. There is also no evidence to suggest that persons returning to Fiji after unsuccessful attempts to obtain refugee status or residence overseas would be subjected to human rights abuse solely on the basis of having made such applications. This could change, however, if the individual's specific allegations became the subject of widespread media attention outside Fiji or if applicants otherwise became the subject of special interest by the Fiji security forces.

10. Fiji caters for a wide range of religions,

including the major Christian denominations, most of the more popular Christian sects, Islam, the Hindu religion, Buddhism and the Ba'hai faith. The second coup (25 September 1987) has been accompanied by a revival of fundamentalist Christian assertiveness.

. The only practical expression of this trend to date has been a Sunday Observance Decree issued in October 1987 which banned most non-religious activities on Sundays. The decree was, however, amended in May 1988 to allow relaxation of the ban. . To date no legislative efforts or forceful activities have been undertaken to curtail the freedom of religion of non-Christians. The Government has not interfered with worship or education by the Hindu and Muslim communities. . Hindu and Muslim religious holidays continue to be observed as public holidays.

11. No specific human right abuses have been publicly

endorsed or supported by the Government, neither have their perpetrators been publicly identified. Fiji's small population, however, (some 715,000 in the 1986 census) has meant that habitual perpetrators of human rights offences (in terms of physical mistreatment, harassment and abuse of powers) become widely known in the community. The Government of Fiji has taken unofficial action in the past against such offenders by relegating them to other duties.

12. The Australian Embassy in Suva advised in August

1988 that while individual cases may be found where individuals may have experienced more serious effects of the developments in Fiji, it is unlikely that the general situation alone could justify claims of persecution; humanitarian considerations should be carefully weighed on a case by case basis. . Political and economic consequences of the 1987 coups have heightened the already high level of interest in emigration from Fiji. . The emigration mentality has become firmly entrenched in large sections of the community and is seen as likely to remain, even if the general situation improves. Australia has been by far the most popular destination. Hope is widespread in the community that immigration criteria would be relaxed for Fiji nationals, contributing to the sustaining of demand and the increased incidence of visa system abuse and malpractice.

13. Our Embassy in Suva firmly believes that change

of status requests in Australia should be handled strictly in accordance with existing policies. Any perceived laxity in the administration of policy or premature suggestions of special programs would greatly escalate the demand, with profound workload and resource implications.

l4. DILGEA Central Office (International Section,

Policy Secretariat Branch) would wish to continue the existing practice of acting as a point of contact for additional advice where claims are such that a decision cannot be made in Australia on the basis of standard principles and policies. In view of the workload situation in Suva, enquiries to the post should be kept to the absolute minimum."

Confirmation (on 23 March 1989) of decisions made on 14 March

On 22 March, L.J. Smith, Client Services, Southern Region, reported in writing to Mr. Luu on the question of the deportation of the first applicant as follows:
"...On 16 March, 1989, a further submission was lodged

by (the first applicant's) legal representative. (see the letter of that date referred to earlier.)...

The matters raised in this latest submission are

relevant to your consideration of the question of (the first applicant's) continued stay or deportation. Some, however, have been addressed in Mr. Davis' submissions of 2 March, 1989.

. The claims contained in paragraphs l to 4 are not

new and have already been addressed in the submission of 2 March 1989.

. On the claim at paragraph 5, no evidence has been

supplied in support of that claim other than her relationship to former Justice Govind. (the first applicant), in his statutory declaration, has stated that his wife's other brother had remained in Fiji and has made no claims that this brother was the subject of any adverse attention because of his sibling relationship to (the Judge). The latest information available to the department indicates that there are currently no political detainees under the Internal Security Decree (I.S.D.) which was suspended on 17 November 1988. You may draw from this that the risk is no greater to (the second applicant) than to her sibling. A copy of the latest situation report on Fiji appears (annexed).

. The fact that (the first applicant's) wife was

granted resident status under the provisions of Section 6 A(1)(e) of the Migration Act is not disputed. The basis of the grant of resident status appears on file N87/25726 which is annexed.

. That (the first applicant's) family opposed his

marriage to (the second applicant) is not new information and was addressed in Mr. Davis' submission to you dated 2 March 1989. The frequency of his attempts to change his family's attitude are indicators of his feelings for (the second applicant) and, in fact, the genuineness of the relationship is not at issue.

. The issues raised in paragraphs 8, 9 & 10 were

addressed in Mr. Davis' submission to you dated 2 March 1989.

. Paragraphs 11 & 12 refer to the genuineness of

relationship, however, the existence of a genuine relationship is not disputed.

You may consider that the additional claims advanced by

the applicant in his latest submission are not sufficiently compelling as to warrant a variation of your previous decision to refuse his application for the grant of resident status and to order his deportation.

If you accept the assessment set out above it is

recommended that you maintain your previous decision to refuse the grant of resident status to order his deportation."

On the 23 March 1989, Mr. Luu made the following note on the report:
"My decisions dated 14/3/89 relating to (the first

applicant) are maintained."

In these proceedings, judicial review is sought of both the decisions made on 14 March and the confirmation of those decisions on 23 March. It is convenient to deal with each of the challenges separately.
1. The challenge to the decisions made on 14 March 1989
(1) Was there a breach of the rules of natural justice?

The first ground of review contended for by the applicants is that the decisions made on l4 March were made in breach of the rules of natural justice (see Administrative Decisions (Judicial Review) Act 1977, ("the AD(JR) Act") s.5(1)(a)). It is said, on behalf of the applicants, that several factors were taken into account by the decision-maker adversely to the first applicant without giving him an adequate opportunity to respond. In particular, it is contended that the following matters were taken into account adversely to the first applicant without his having the opportunity to meet the case put against him:

(a) that the second applicant had an opportunity to encourage the first applicant to return to Fiji and be sponsored back by the second applicant as her fiance; (b) that the sponsoring by the second applicant of the first applicant in this manner would be "sponsorship" in the normal way; (c) that the first applicant had not lodged any application for consideration of further stay in Australia prior to his arrest; (d) that the first applicant was working in Australia without permission and had obtained his employment by deception; (e) that the first applicant attempted to deceive and mislead officers of the Department at the time of his location by claiming he was not working and that another person was residing at that address; (f) that the first applicant had been previously instructed on several occasions to depart Australia but had chosen to disregard those instructions.

In this connection, reliance is placed by the applicants upon para.24 of the report of Mr. Davis, dated 2 March 1989. It will be remembered that the recommendations in the report were agreed by Mr. Downie, and adopted by Mr. Luu on 14 March. It will be recalled that para. 24 was as follows:

"24. However weighed against the above factors in

favour of the grant of resident status, you may also consider that:

- Whilst there is no reason to doubt the relationship between (the first applicant) and (the second applicant) they maintained that relationship without any legitimate expectation that (the first applicant), at first a visitor and then a prohibited non-citizen, would gain an automatic right of residence in Australia as a result of their marriage.

- Although involved in their relationship for over three years, they had not previously disclosed its existence to the Department. Through their solicitor they claimed they were engaged in Fiji, but (the first applicant) did not disclose the existence of their engagement in any previous dealings with the Department. - (the second applicant) had ample opportunity to encourage (the first applicant) to return to Fiji and be sponsored back by her in the normal way as her fiancee. - (the first applicant) had not lodged any application for consideration of further stay in Australia prior to his arrest. - (the first applicant) was working in Australia without permission and had, by his own admission, obtained his employment by deception.

- (the first applicant) attempted to deceive and mislead officers of the Department at the time of his location by claiming he was not working and that Ms Konstantinidis resided at that residence.

- (the first applicant) had been previously instructed on several occasions to depart Australia but had chosen to disregard those instructions.

- (the second applicant) would not suffer financially if (the first applicant) were required to depart Australia. - Although claiming that as a result of his marriage he may experience adverse attention from the regime in Fiji, he has provided no evidence as to what form this 'adverse attention' may take, or indeed that he is in fact in a position of adverse notice. He has not claimed any particular political affiliation nor has he claimed to have experienced any persecution or human rights abuses in the past."

Annexed to Mr. Davis' report and recommendation was a file note dated 20 February 1989 prepared by Mr. Davis describing the execution of a search warrant at the premises 12/11 Bayley Street, Dulwich Hill as follows:
"...the door was opened by a person now known to me as

(the first applicant). Also present in the premises was an Australian resident named (the second applicant)...

(the second applicant) gave her address as 6/171

Lakemba St. Lakemba, and said she was visiting (the first applicant).

The Search Warrant was shown to (the first applicant)

and a search of the premises conducted. (the first applicant) was asked if a person named Alexandra Konstantinidis resided there, to which he answered in the affirmative. No papers or other documents bearing her name were found in the premises at all although a few photographs of her wearing the same clothes were found. Also found were a number of photo-albums of photographs of Dipendra Kumar and his wife Bela Ben Kumar, a number of letters from Bela Ben to Dipendra dated 23/1/88, 30/9/88, 22/11/88 & under 2 of these letters bore the English words "I love you Dip".

When asked who Vebka Kumar was, (the first applicant)

advised Vebka was another name for Dipendra's wife. An insurance policy was found in the names Vebka and Dipendra Kumar. (the first applicant) was asked why he hadn't gone to Fiji as instructed by IRP. He said 'I'm going to lodge an application tomorrow.' Asked on what grounds, he said marriage to Manju. No intention to marry has been lodged as yet. (the first applicant) was asked if he was working. He denied this. He said that Alexandra had been living there since March 1988. He pointed at...clothing items and said they were hers. He could not explain why there was not more evidence of her residence (papers etc.)

(the first applicant) was arrested by me at 11.15

pursuant to section 38 of the Act..."

In the Departmental file there is a statement by Alexandra Konstandinidis to the effect that she had lived at Flat 12, 11 Bailey Street, Dulwich Hill for about five weeks in September and October 1988. Although the first applicant and the second applicant were interviewed by officers of the Department on 20 and 21 February 1989 respectively, the first applicant gave evidence, in his affidavit, which was not the subject of cross-examination, that the officers of the Department did not inform him that any of the following matters would be taken into account in determining his application for a permanent entry permit: (a) that the second applicant had an opportunity to encourage the first applicant to return to Fiji and be sponsored back as her fiance; (b) that sponsoring the first applicant in the manner referred to in (a) is sponsoring him in the usual way; (c) that the first applicant had not lodged any application for consideration of further stay in Australia prior to his arrest; (d) that the first applicant was working in Australia without permission and had obtained employment by deception; (e) that the first applicant had attempted to deceive and mislead officers of the Department when located by them by claiming that he was not working and that another person was residing at his address; (f) that the first applicant had been previously instructed on several occasions to depart Australia but had chosen to disregard those instructions.
On behalf of the applicants, reliance is placed upon the decision and reasoning in Kioa v. West, (1985) 159 CLR 550. Gibbs C.J., dissenting in the result of the appeal, there also said (at p 569) that if (as the majority held) the rules of natural justice were applicable in the circumstances of that case, the appellants were entitled to a "fair opportunity to correct or contradict any relevant material prejudicial to them...(but that) does not mean that the Minister, or the delegate, having received material which the appellants wished to put before him, was required to let them see, and comment on, the Department's adverse comments on that material". Mason J. said (at p 587) that if the decision-maker intends to reject the application for an entry permit "by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter." In his opinion, the applicant should have had the chance to reply in respect of two matters in that case. First, a comment in a report that had the applicant been genuine in his desire to seek a legitimate extension of his stay in Australia, he might have sought a decision on his application "rather than change his address without apparently notifying the Department". Secondly, a statement (made in para.22 of the report) that the applicant's concern for certain other illegal immigrants and his active involvement with other persons who were seeking to circumvent Australia's immigration laws "must be a source of concern" (at p 588). Wilson J. agreed with Mason J. in respect of the statement made in para.22 of the report (at p 600). Brennan J. said that the allegation in para.22 was damaging to the prospects of Mr. and Mrs. Kioa being allowed to stay in Australia. Although the decision-maker appeared not to rely on it, (the statement of reasons for the decision did not refer to it) nonetheless it was contained in the material before the decision-maker which he proposed to consider in coming to a decision (at p 628). Brennan J. said (at p 629):
"As Lord Diplock observed in Bushell v. Environment

Secretary:

'To 'over-judicialise' the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair.'

Nevertheless in the ordinary case where no problem of

confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. The allegation in par.22 was apparently credible, relevant and damaging. The failure to give Mr. Kioa an opportunity to deal with it before making an order that Mr. and Mrs. Kioa be deported left a risk of prejudice which ought to have been removed. There was nothing in the circumstances of the case - neither in the administrative framework created by the Act nor in any need for secrecy or speed in making the decision - which would have made it unreasonable to have given Mr. and Ms. Kioa that opportunity. The failure to give Mr. Kioa that opportunity amounts to a non-observance of the principles of natural justice." (Emphasis added)

Kioa's Case was considered by a Full Federal Court in Sinnathamby v. Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502. It was there held by Fox and Neaves JJ. (Burchett J. dissenting) that the failure to make known to the appellant the information on which the decision as to her refugee status was based was not a denial of natural justice. The majority further held that the failure to inform the appellant that she was regarded as having sought entry into Australia by a subterfuge, involved no denial of natural justice since the appellant herself was the source of the relevant information.
Fox J. said (at p 506):
"In Kioa's case, the material held to require that a

chance be given to comment had come from a source other than the applicant. In the present case, as his Honour found, the material which was prejudicial to the appellant had been provided by the appellant herself. In the circumstances, I consider that the decision-maker was not required to give the appellant a chance to comment on the view that he had taken of it; to do so would amount to a general requirement that a decision-maker make known in each case his view or evaluation of the material that an applicant puts forward: see Kioa per Brennan J. at p 380. His thought processes, if not unreasonably based on evidence, or other material, are a matter for him."

Neaves J. said (at p 513):

"It was a matter for the delegate to evaluate the material placed before him and, as the whole of that material had its source in what the appellant had said, there was no obligation upon him to inform the appellant that that material might result in him forming a conclusion adverse to her."

In Minister of State for Immigration, Local Government and Ethnic Affairs v. Pashmforoosh, Full Federal Court (Davies, Burchett and Lee JJ.), 28 June 1989, unreported, the Court said (at pp 4-5), referring to Kioa's Case, that -

"(p)rocedural fairness does not require that every document that may be regarded as adverse to an applicant which is on a departmental file must be disclosed to the applicant. What is necessary to provide procedural fairness must be judged according to the circumstances of the case... In the present case, the deleted material related primarily to a person other than the respondents. The Minister considered the matter raised to be irrelevant as did the Immigration Review Panel and the officer who had made an entry to that effect in August 1986. In these circumstances, there was no call to disclose the material to Mr and Mrs Pashmforoosh. A departmental file should not be regarded in the same light as material put before a quasi-judicial tribunal for its consideration. A departmental file is the repository of all documents relating to a particular matter. Not all those documents need be disclosed to an applicant."

The Court further observed (at p 6):

"That is not to say that adverse information or submissions may always be withheld from a person the subject of a decision, simply on the ground that the decision-maker declares himself uninfluenced by the information or submissions. Even matters which in strictness are lacking in relevance may sometimes have a damaging potential which demands the granting of an opportunity to reply...In the particular circumstances of Kioa..., at 602-603, Wilson J. declined to consider whether a paragraph of a submission, which there had been no opportunity to answer but which had received no mention in the decision, had in fact been in any way influential. See also the remarks at 628-629, of Brennan J. who referred to the risk of subconscious prejudice, and Youssef v. Minister for Immigration and Ethnic Affairs (Unreported, Federal Court of Australia, Foster J., 16 November 1987, pp 23, 25-26.)"

Moves to consider removing an illegal immigrant from Australia should start as soon as his or her presence is known to the Department. It is not necessary for these processes to be activated only upon the arrest or physically locating the illegal immigrant. The Department's recording systems may reveal sufficient information to activate these procedures when the current whereabouts of the illegal immigrant is not known to the Department. Simply because illegal immigrants are able to conceal themselves from the Department does not constitute reason for the processes to be permitted to discriminate in their favour, nor to prevent the consideration of their immigration status in Australia or the making of a deportation order if necessary.

Illegal immigrants locatd by the Department should have an opportunity to present matters to be taken into account on their behalf. The time for them to take advantage of this opportunity is not unlimited. As a general policy, 48 hours is a reasonable period to allow. Refusal by, or disinclination of, illegal immigrants to take up these opportunities, or any other lack of co-operation, does not constitute reason to delay or defer the decision-making process. It is up to illegal immigrants to make the facts known, especially where those facts are within the personal knowledge of an illegal immigrant. Although reasonable access to solicitors and others is facilitated, there is no obligation on the Department or the Minister to seek out representation by solicitors, or favourable representations from others, on behalf of illegal immigrants.

REPRESENTATIONS

Representations on behalf of illegal immigrants and deportees are considered by the Minister or a delegate. There can be no presumption, however, that deportation will be delayed while representations are formulated and considered, especially if those representations contain no additional relevant information. APPLICATIONS TO REMAIN IN AUSTRALIA People who wish to remain in Australia should do so through the normal migration procedures and selection process overseas.

The Migration Act severely limits the circumstances under which people illegally in Australia can change their immigration status to permanent resident. These limited provisions are not an invitation for people to enter Australia as visitors, then seek permanent residence when they should have applied and qualified overseas for entry as migrants in the usual way. If a person illegally in Australia makes an application to remain in Australia, it will be accepted and processed specifically on the understanding that the policies outlined in this paper will be applied. A mere statement that a person wishes to remain, or representations to that effect, will not be regarded as an application for permanent residence. Applications should be on the comprehensive application form available from the Department. An application will not be accepted or processed unless the prescribed fee is paid. If detention is justified, the applicant will not be released simply because an application has been made to remain in Australia. The normal considerations relating to custody are to apply. People who are in Australia illegally, whether they entered without authority or they overstayed their entry permits, will not readily be given permanent residence while they remain in Australia. Their breaches of immigration law and requirements will weigh heavily against them. In particular, in reaching a decision on an application to remain in Australia, the following circumstances (if they exist) will weigh heavily against the applicant: -the applicant entered Australia unlawfully; -the applicant, although entering Australia lawfully, violated conditions of entry, such as working without permission; -the applicant misled the Minister or an officer in obtaining a visa or entry permit e.g. fraudulent documents or false information of a material kind;

-the applicant avoided contact with, or ceased contact with, the Department of Immigration and Ethnic Affairs, or in the case of overseas students, with the Overseas Students Office, and came to notice because of the applicant's illegal status;

-the period of illegal residence by the applicant;

- the applicant has improperly drawn upon Government cash benefits or other services e.g. social welfare payments, Medicare, free or subsidised adult migrant education programme; -the applicant has committed offences against Australian laws (apart from becoming a prohibited non-citizen or illegal immigrant). Changed circumstances advanced in support of an application to remain (e.g. development of ties in Australia), but which arose or developed after the expiry of an entry permit, normally will be given little weight.

In the case of applications to remain made after apprehension, approval will be granted only in the most exceptional and compelling circumstances (e.g. where extreme hardship to an Australian citizen or permanent resident would flow from removal from Australia). A temporary separation and the cost arising from return home to apply for migration in the normal manner will not normally be regarded as mitigating circumstances accorded significant weight.

Any eligibility for review by the Immigration Review Panel lapses immediately a person becomes an illegal immigrant, or is ordered deported under the Migration Act.

MARRIAGE

The Migration Act and migration policy provide eligibility concessions for foreign nationals who have married an Australian citizen or permanent resident or who have an Australian citizen child. But eligibility to apply for residence does not carry an automatic entitlement to residence. In such circumstances, the interests of the resident family or child are taken into account and are weighed, along with other factors, in the eventual decision.

Marriage to an Australian or the existence of an Australian citizen child do not confer upon illegal immigrants the right to chose their country of residence. Each case will be treated on its own merits.

Similar considerations apply in respect of defacto relationships.

LIMITATION ON RETURN TO AUSTRALIA Persons who have disregarded Australia's immigration laws, those who have been deceptive and those who have broken their own signed undertakings, must expect some suspicion if they later apply for another visit to Australia. A previous record of illegally entering Australia or overstaying an entry ermit (whether or not it resulted in deportation or enforced departure) is a factor whih can and should be taken into account in future. In the absence of convincing reasons that the person would not again breach undertakings or become an illegal immigrant such a history can militate against favourable consideration of re-entry requests.

The policy of placing general time restrictions on the return to Australia of former illegal immigrants and deportees is intended to discourage illegal immigration. Although the policy is intended to be firm, it recognises that some people may well make a case for legitimately travelling again to Australia. Approval for readmission to Australia inside the general time limits may be given in exceptional circumstances. Each such case would be considered on its merits overseas at the time, applying the normal entry policies, rules and procedures.

In general, people who have been in Australia illegally would not readily be readmitted to Australia within the next several years. The general time limitations applied under this policy are:

.people who have been deported from Australia for any reason - five years from the date of their departure;

.persons who were illegal immigrants detected in the community as a result of departmental enforcement action but who were not deported, or visitors found to have worked without authority - three years from the date of their departure (irrespective of whether they departed 'voluntarily' or under the supervision of departmental officers); and .people known to have been illegally in Australia and who have departed of their own volition without departmental enforcement action - l year from the date of their departure. People who have overstayed their entry permits for less than 28 days and left Australia of their own volition would not normally be subject to any specific re-entry limitation under this element of the policy although the full extent of their previous immigration history legitimately may be taken into account in deciding any future application to enter Australia. RECOVERY OF DEPORTATION COSTS

The Migration Act provides for recovering costs associated with detaining and removing an illegal immigrant who has been ordered deported. In the interests of protecting Australian taxpayers' funds, all reasonable steps will be taken to recover any debt so incurred. Recovery action should be continued, to the extent practicable, even after the departure of the deportee from Australia.

Should a person who has not discharged a debt of this kind wish to return to Australia, it is expected the debt be discharged before a visa is granted. But if entry to Australia is granted without the debt being discharged, then recovery action should be resumed in Australia. A person who has been liable to reimburse any costs under these provisions, but who is not subsequently deported, is not relieved of the debt. Even if permanent residence is subsequently approved, the expectation is that the debt should be settled first. If it is not, recovery action should be instituted."

The applicants rely upon the following statement by

Gummow J. in Khan v. The Minister, 11 December 1987, unreported (at pp 11-12):

"It could not be suggested that the circumstance that the refusal of an application might lead or contribute to the break-up of a family unit would necessarily give rise to strong compassionate or humanitarian grounds within the meaning of the legislation. However, what was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy: Howells v. Nagrad Nominees Pty. Ltd. (1982) 66 FLR 169 at 195, Kioa v. West

(supra) at 604, Chumbairux v. MIEA (1987) 74 ALR 480 at 492-494. That consideration included, in respect of each application, the effect or likely effect of refusal of the application upon members of the family; cf. Tabag v. MIEA (1982) 70 FLR 61 at 67, referred to by Wilson J. in Kioa v. West

(supra) at 604. The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense: Turner v. MIEA

(1981) 35 ALR 388 at 392, Chumbairux v. MIEA (1987) 74 ALR 480 at 495-496.

I bear very much in mind the limited role of a court reviewing the exercise of an administrative discretion: Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 162 CLR 24 at 40-41 per Mason J. It is not for the Court to study administrative decisions too finely or precisely; they are to be regarded carefully but sensibly, and not zealously in the pursuit of error (Smith v. MIEA (1984) 53 ALR 551 at 554 per lockhart J). Nevertheless, in my opinion, on the whole of the evidence, the applications in question were not each given proper, genuine and realistic consideration upon the merits."

In Pashmforoosh's Case, supra, the Full Court said (at p 11):
"However, a decision-maker, who is required by s.13 of

the ADJR Act to give reasons for his decision, may be found to be in error if the statement simply rejects the substance of an applicant's case without giving reasons which can rationally support that rejection.

Federal legislation emphasises the need for reasoned

decision-making. See eg. the FOI Act, s.13 of the ADJR Act, ss.28(1) and 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). Thus, decisions may be set aside because, being insufficiently supported by reason, they appear to be an improper exercise of the power conferred or arbitrary or because there was no evidence or other material sufficient to justify the making of the decision or the decision was so unreasonable that no reasonable person could have so exercised the power. The making of, or failure to make, a particular finding of fact in the course of the reasoning process may equally be attacked on any such ground. The taking into account of a fact found unreasonably or the failure to take into account a fact that a reasonable decision-maker would have found and taken into account provides a ground of review under ss.5(1)(e) and 5(2)(a) and (b) of the ADJR Act."

After referring to Khan's Case, supra, and Hindi's Case (Sheppard J., (1988) 16 ALD 526 at pp 528-9), the Full Court observed (at p 13):
"Although the Minister's reasons are four pages in

length and set out much factual information, the reasons do not fairly state the respondents' case or fairly address the point made by the majority of the Immigration Review Panel, a relevant consideration, that by their actions, the Pashmforoosh family had put themselves at risk should they return to Iran.

Because the Minister proceeded upon facts which were

not the facts put by the respondents and the assertions made by the respondents were not squarely addressed and reasons given for rejecting them, the Minister failed to take into account material considerations and proceeded on the basis of facts that were not before him. A case such as this is well described by the words of Gummow J. in Khan and Ors v. Minister for Immigration and Ethnic Affairs, cited above and by Davies J. in Minister for Immigration & Ethnic Affairs v. Daniele (1981) 61 FLR 354 at p 369."

In my opinion, apart from the "sponsorship" question (see 1(1)(a), above, Mr. Davis' report did contain a proper evaluation of the relevant considerations tending in favour of, and against, the application. To that extent, the report dealt with the individual merits of the first applicant's case.

(5) Was the exercise of statutory power so unreasonable

that no reasonable person could have so exercised the power?

The applicants rely here upon s.5(2)(g) of the AD(JR)

Act.

On behalf of the applicants, reliance is placed upon

the following observations by Woodward J. in Tabag v. Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705 (at pp 710-12):

"I find myself, with great respect, unable to agree with Jenkinson J that if the wrong weight is given to a relevant consideration and this results in a wrong and unjust discretionary decision, that does not necessarily involve an error of law. Jenkinson J, while conceding the fineness of the distinction, says that only if the decision is one to which no reasonable mind could have come (or if the misattribution of weight has violated an accepted principle of law) will the fault amount to an error of law.

I have difficulty with this distinction for two reasons. In the first place, if a decision is reached which 'no reasonable' judge or tribunal could have reached, it will usually be because a serious error has been made in identifying and giving weight to the various factors requiring consideration in the particular case. Only rarely will it be due to an error of law in the strictest sense - the violation of an accepted principle of law or misinterpretation of an enactment. I see no difference in principle between the former, more usual, case and one in which the error in identifying and giving weight to factors is apparent from the reasons for decision of the judge or tribunal or from some other material before the appellate court.

The second difficulty I have with the distinction is that to categorize a decision as one which no reasonable judge or tribunal could reach, is merely a prejorative way of saying that the decision is clearly wrong. It will often be apparent that the judge or tribunal member is an eminently reasonable person; all that can be meant is that on the particular occasion he or she has reached an unreasonable result; and to say that is to say no more than that he or she was clearly wrong - in other words that the strong presumption in favour of the correctness of the judge's or tribunal's decision has, to the satisfaction of the appellate court, been displaced.

Thus I would prefer to say that no reasonable mind (in the impersonal, analytical sense in which that phrase is here being used) could come to a wrong and unjust (as distinct from a questionable) discretionary decision. In my view, if it is clear from the reasons stated that no sufficient weight has been given to an important relevant consideration, then an error of law has occurred, the court of appeal must examine closely the way in which the discretion has been exercised, and if it reaches the conclusion that the final result is wrong and unjust it should reverse that exercise of discretion.

This is not to say that, once an error of law is found, the appellate court should necessarily substitute its own discretion for that of the tribunal or judge whose decision is being reviewed. It should continue to give weight to that discretion, which may well have been correctly exercised in spite of the error of law. Obviously, the more serious or numerous the errors identified, the less weight can be attributed to the primary exercise of discretion.

But if the appellate court is satisfied that the error of law has contributed to a result which appears to it to be wrong and unjust, I believe it must allow the appeal.

I do not think that this is such a case. I accept that in deportation cases the breaking-up of a close-knit family is a consideration of major significance. A similar degree of significance should be given to the uprooting of a child from thoroughly familiar Australian surroundings, and the placing of that child into a totally foreign setting, where language, culture and opportunities for personal development are completely different. It is clear that the Tribunal in this case recognized the hardships involved and I am not satisfied that it undervalued them to the point where it could be said to have erred in law."

Given the evaluation of the factors for and against the

application carried out by Mr. Davis, no case of "irrationality" can be sustained.

(7)Did the Minister proceed contrary to law (see s.5(1)(f)

of the AD(JR) Act) by requiring the first applicant to complete a form applying for "resident status" which form deflected the first applicant from supplying material information to the Department?

The applicants rely upon the affidavit of Michael

Terence Jones sworn 21 March 1989. In his affidavit, Mr. Jones said:

"1. Since January 1989 I have been employed as an

immigration consultant and am also employed as a law clerk by Craddock, Murray and Neumann, Solicitors.

2. From February 1985 until February 1988 I was employed in the Australian Public Service as an officer of the Department of Immigration local Government & Ethnic Affairs, ("the Department")

3. During the above term I held the following positions in the Department's Central Office.

(a) February 1985 - January 1986 - Assistant Research Officer, Freedom of Information Section, Education Branch, Personnel Branch, Refugees Branch,

(b) January 1986 to June 1986 - Clerical Administrative Officer Class 6, Refugees Branch.

(c) June 1986 - October 1986 - Clerical Administrative Officer Class 8 (Acting), Ethnic Affairs Branch

(d) October 1986 - December 1987 - Clerical Administrative Officer Class 7, Refugees Branch.

4. From January 1988 until February 1988 I held the

position of Clerical Administrative Officer Class 7 in the residence Section of the Department in Sydney.

5. During my period of employment with Craddock,

Murray & Neumann I have made use of my experience with the procedures of the Department of Immigration local Government and Ethnic Affairs to advise that firm's partners and employed solicitors on cases involving immigration matters.

6. I have also devoted a large part of my efforts

during the above period of employment to familiarizing myself with current policy and procedures of the Department of Immigration local Government and Ethnic Affairs as they relate to migration and residence matters. To this end I have collected and kept up to date an extensive library of manuals and circular instructions obtained from the Department under the Freedom of Information Act 1982 and other sources.

7. In my experience as a matter of practice the

Department of Immigration local Government & Ethnic Affairs requires applicants for grant of resident status in Australia to complete forms prepared by the Department. A copy of such forms is annexed hereto and marked 'A'."

(FORMS OMITTED)

Mr. Jones was not cross-examined.

The applicants submit that the decision-maker proceeded

on the basis that marriage to an Australian resident constituted a ground, and not that marriage to an Australian resident was one of a number of pre-conditions permitting the grant of Australian residence and accordingly misdirected himself as to the true construction of ss.6A and 7(2) of the Act.

It is argued for the applicants that the Minister, by

his officers, approached the first applicant's application by requesting him to complete the standard forms of application; that those forms contain an erroneous construction of the provisions of the Act, especially s.6A, and deflected applicants from providing, and a decision-maker from receiving, relevant information; for example, the applicant is asked on what ground (drawn from what are in fact properly seen as pre-conditions) under s.6A he is applying; having so narrowed the approach and therefore the consideration, the Minister directed the applicant to answer the questions set out in the corresponding section of the form; in each section, the questions asked are similarly narrowed in their application; thus an applicant who, having had his attention focused on making an application under the "marriage ground" is asked only a series of factual objective questions, and nothing about, for example, the contribution he could make to Australia, or his occupational skills and prospects. The applicants submit that this is the kind of error which infected the decision set aside in Meggs v. Minister for Immigration and Ethnic Affairs, unreported, 18 September 1986, Jackson J. In Meggs, Jackson J. said (at pp 6-8):

"In those circumstances the authorized officer might have taken the view that taking into account the other circumstances of the case, such as her long period of residence in Australia, and the difficulties which she might face if she went back to Indonesia, the case was yet one where an entry permit should not be granted. The course taken by the authorized officer in the present case, however, was different. It was that after noting that the marriage had broken down and that government policy required the marriage to be bona fide and ongoing, he then went on immediately, as the statement of reasons shows, to say:- '15 However, I accepted that it was possible to grant a temporary entry permit to the Applicant to allow consideration of an application for the grant of a permanent entry permit on the basis that the conditions of section 6A(1)(e) of the Act are fulfilled. Accordingly, I considered whether there were strong humanitarian or compassionate grounds for the grant of a permanent entry permit to her.'

I should add that paragraph 16 of the authorized officer's affidavit suggests, without elaboration, that the authorized officer, before moving to a consideration of s.6A(1)(e), considered in relation to s.6A(1)(b) whether the policy should be applied. His oral evidence on the point was somewhat conflicting and involved, it seems to me, the application of some hindsight in suggesting that he adopted that course. I am satisfied, having seen and heard his evidence, that the approach in fact taken by him was as he stated in his statement of reasons, namely that he accepted that the marriage was valid, regarded the policy as being thus applicable, treated the particular case as not falling within the policy, and then moved immediately to a consideration of the application of s.6A(1)(e).

The adoption of that course meant that in considering whether the case was one to which, if a temporary entry permit were granted, s.6A(1)(e) would apply, the authorized officer was necessarily directing his attention to the question whether there were strong compassionate or humanitarian grounds to the grant of an entry permit to the applicant, and did not direct his attention to the question whether there were other factors which, though not amounting to strong compassionate or humanitarian grounds in terms of s.6A(1)(e), were yet factors relevant to be taken into account in relation to s.6A(1)(b).

I am conscious, of course, that s.6A(3) does not enumerate the factors to be taken into account but I think it is clear that, taking into account the 'subject matter, scope and purpose of' s.6A in its context in the Act (see per Mason J. in Minister for Aboriginal Affairs v. Peko-Wallsend Limited,

(supra)..., there were factors in the present case which might not have amounted to strong compassionate or humanitarian grounds, but which it was appropriate for the authorized officer to consider, the weight to be given to them being a matter for him.

Such matters included, but were not limited to, the length of time during which the applicant had in fact resided in Australia, and her situation if she returned to Indonesia.

The approach taken by the authorized officer unduly limited the matters to be considered by him, and in my view involved an error of law."

In so construing the pre-conditions, the applicants

argue, the Minister commits an error of law the consequence of which was to deflect the first applicant from supplying relevant information and to deflect the decision-maker from a proper consideration of the true issues. The applicants submit that, whilst a decision-maker is not obliged by the Act to institute relevant inquiries (see Turner v. MIEA (1981) 335 ALR 388 at pp 392-3), where the decision-maker deflects an applicant from supplying such information, he cannot then rely on the applicant's failure to supply it. The applicants refer to the following statement by Toohey J. in Videto v. Minister for Immigration and Ethnic Affairs (1985) 69 ALR 342 at p 353: "Sub-section (2)(g) specifies 'failing to take a relevant consideration into account in the exercise of a power'. It does not say 'such considerations as were before the decision-maker or ought to have been before him'. But equally it does not, in its terms, impose on the decision-maker an obligation to initiate inquiries. The words used call for some judicial exegesis though it is undesirable to be dogmatic in expounding the paragraph. As a broad proposition, I do not think that the Act imposes an obligation on a decision-maker to initiate inquiries. In Turner v. Minister for Immigration and Ethnic Affairs, supra, at pp 392-3 I said: '...I do not think, at least in the present case where the applicant had the benefit of family and legal advisers in making submissions to the Minister, that it was the Minister's obligation to go beyond that material': see also Kioa v. Minister for Immigration and Ethnic Affairs, supra, at p 670. But much will depend upon the nature of the material before the decision-maker, the importance of the decision to be made and its consequences for the person to whom the decision relates. In this regard I confine my comments to a decision that a prohibited non-citizen be deported. In such a case it may be that the material placed before the Minister or his delegate contains some obvious omission or obscurity that needs to be resolved before a decision is made. This is more likely to be the case where the person concerned has not had the benefit of any advice. If an officer of the Department withholds information from the Minister or his delegate, it is no answer to a complaint that the decision-maker failed to take into account a relevant consideration to say that the matter was not before him. That information was constructively before him. And, in my view, if an officer of the Department, albeit innocently, dissuades or discourages a person from giving information that is relevant to the decision to be made, it is no answer to a complaint in terms of s 5(2)(e) to say that the decision-maker did not have the matter before him. It was nevertheless a relevant consideration. Clearly much will depend upon the circumstances of each particular case."

In my opinion, the form used by the Department could

not reasonably be said to have deflected the first applicant from providing any relevant information to the Department. The first applicant put his case to the Department on the two principal grounds, first, his marriage and, secondly, "humanitarian" considerations arising out of the situation, family and political, in Fiji. In presenting his case, the first applicant was in no way inhibited by the Department's form. He had legal representation and provided a deal of information in addition to what was put in the form. Nor, in my view, was the decision-maker in any relevant sense restricted by the format of the Department's documents in his consideration of the application.

(8) Was there no evidence or other material to justify the

making of the decisions in the sense that the decision-maker based his decisions on the existence of particular facts and those facts did not exist?

The applicants, relying upon s.5(1)(h) and s.5(3)(b) of

the AD(JR) Act and the decision of Foster J. in Fisher v. The Minister, unreported, 21 October 1988, say that

(i) it is not the case, and the first applicant denies, that in an interview by an officer of the decision-maker, the first applicant stated that no date had been set for the wedding between the first applicant and the second applicant; and (ii) it is not the case, and the applicants deny, that their relationship had not been disclosed by them to the Department prior to the arrest of the first applicant.

As to (i) above, it will be recalled that in para. 12

of Mr. Davis' report, it was stated that, in his interview, the first applicant had "advised, inter alia, that -

"...No date had been set for the wedding..."

It will also be remembered that in the report of his

interview, the first applicant spoke of his plans to marry the second applicant and of their decision "to wait until her brother came in 1989 and then get married". (para. 2.8).

As has already been said, the decision-maker accepted

that the marriage was a genuine one so that the prior notification of the proposal to marry is of peripheral significance only.

As to (ii) above, it will be recalled that in para. 24

of Mr. Davis' report, it is stated that "(a)lthough involved in their relationship for over three years, (the applicants) had not previously disclosed its existence to the Department." It will also be remembered that there were notes on the Department's file dated 3 and 4 May 1988 recording messages from Mr. Hardy that the first applicant intended to marry in approximately two weeks and that his intended spouse had been "provisionally approved for residence".

The comments made in (i), above, apply here also.

2.The challenge to the decisions made on 23 March 1989

The applicants seek to challenge these decisions on

several grounds. It will be recalled that Mr. Luu was also the decision-maker here.

In essence, the first applicant relies upon the same

matters as vitiating the "confirmatory" decisions made on 23 March. The material put to the Department on this occasion, in its essentials, cover the same ground as the material that was considered for the purposes of making the decisions on l4 March. For the reasons given in rejecting the challenge to the earlier decision, except in respect of 1(1)(a), above, I am of the opinion that no ground for judicial review has been demonstrated in respect of the later decisions.

Discretion

In the result, the first applicant has shown that he

was denied natural justice in one respect (1(1)(a), above). The balance of convenience indicates that, in my discretion, an order for judicial review should be granted, setting aside the decisions in question and remitting the matter to the decision-maker for reconsideration in accordance with law.

Costs

Since the applicants succeeded on one ground but failed

on very many others, it is appropriate that there be no order as to costs.

Orders

I make the following orders.

1. Set aside the decisions dated l4 March and 23

March 1989 described in the further amended application for an order of review filed on 30 March 1989.

2. Remit the matter to the respondent for

reconsideration according to law.

3. Make no order for costs.

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Citations

Kumar, M. & Anor v. Minister for Immigration, Local Government & Ethnic Affairs [1989] FCA 418

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[1989] FCA 418

04 AUGUST 1989