Lam, L.G. v Victorian State Director of Immigration, Local Government and Ethnic Affairs
[1988] FCA 299
•16 JUNE 1988
Re: LIM GEOK LAM
And: VICTORIAN STATE DIRECTOR OF DEPARTMENT OF IMMIGRATION, LOCAL GOVERNMENT
AND ETHNIC AFFAIRS and MINISTER FOR LOCAL GOVERNMENT, IMMIGRATION AND ETHNIC
AFFAIRS
No. VG 208 of 1988
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely(1) J.
CATCHWORDS
Administrative Law - immigration - Judicial Review - application for stay of deportation order - principles applicable - whether principles enunciated by Full Court in Minister v Maitan (24/2/88) are inconsistent with Full Court reasons in Minister v Tagle (1983) 48 ALR 566 at 571 - weight to be accorded to departmental submission in considering application for stay before s. 13 reasons furnished - whether purported findings of fact recommended in departmental submission could be adopted by delegate as "findings on material questions of fact" - whether stay should be granted until after s. 13 reasons furnished - whether applicant should be released from custody for purpose of marriage.
Administrative Decisions (Judicial Review) Act 1977 s. 5
Migration Act 1958 ss. 6, 6A, 7, 18, 39
Faingold v Zammit (1984) 1 FCR 87
M.I.E.A. v Maitan (unreported - delivered 24/2/88)
M.I.E.A. v Tagle (1983) 48 ALR 566
Palko v M.I.E.A. (unreported - delivered 6/3/87)
Unlugenc v M.I.E.A. (1982) 43 ALR 569
HEARING
MELBOURNE
#DATE 16:6:1988
ORDER
The application for interlocutory relief be dismissed.
The applicant pay the respondents costs of this application for interlocutory relief.
Note: Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.
JUDGE1
On 6 June, 1988 Mr. Keith Owen (the delegate), who is the Victorian State Director of Department of Immigration, Local Government and Ethnic Affairs and is the first respondent, signed an order under s. 18 of the Migration Act 1958 that the applicant be deported from Australia; he did so in his capacity as the delegate of the second respondent, the Minister for Local Government, Immigration and Ethnic Affairs (the respondent Minister).
On Friday last, 10 June 1988, the applicant filed, under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act), an application for an order of review of the delegate's decisions on 6 June 1988 which were described as:-
"(a) to refuse the applicant's application for an entry permit (permanent resident status);
(b) to refuse to grant a further temporary entry permit to the applicant;
(c) to refuse to allow the applicant to depart from Australia voluntarily;
(d) to order that the applicant be deported from Australia."
The application also seeks to review certain other decisions of the delegate, made between 1 and 3 June 1988, that the applicant not be released from custody and that she not be released from custody for the purpose of marriage on 6 June 1988. It may be added that the application, after referring to 6 June 1988, continued "or at any other time". However, as the respondents pointed out, there was no material suggesting that the applicant's requests related to "any other time".
The present hearing concerns an application for interlocutory relief in the form of orders that:-
"1. All proceedings to remove the applicant from Australia be stayed pending the hearing and determination of this application.
2. The applicant be released from custody pending the hearing and determination of this application.
3. The applicant be permitted by the respondent to marry Wong Pui Lam as soon as may be convenient to her."
The principles relating to the making of an order staying the operation of a deportation order are set out in the Full Court reasons for judgment in Faingold v Zammit (1984) 1 FCR 87. Mr. Cavanough, of counsel, on behalf of the applicant, referred to the reasons for judgment of Jenkinson J. in Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 61 ALR 471. That judgment was considered by me in Pal v Minister for Immigration and Ethnic Affairs (unreported - delivered 6 June, 1988) where I expressed the view that an applicant seeking a stay of the operation of a deportation order must show at least "some material to suggest an entitlement to relief"; those words appear in the reasons for judgment of Forster, Woodward and Wilcox JJ. in Aboriginal Development Commission v Ralkon Agricultural Co. Pty. Ltd. (1987) 74 ALR 505 at 510 - a case which did not relate to the Migration Act.
Mr. T. North, of counsel, on behalf of the respondents, has relied upon the reasons for judgment in Minister for Immigration and Ethnic Affairs v Maitan (unreported - delivered 24 February, 1988). In that case the Full Court unanimously allowed an appeal from a judgment which had set aside certain decisions of a delegate of the respondent Minister, including a decision to deport a prohibited non-citizen.
In that case Beaumont and Gummow JJ. said:-
"(p. 4) It follows that no permanent entry permit could be granted to the applicant under s. 6A(1)(d) or (e) unless he held a temporary entry permit which was then in force (see Tang v Minister for Immigration and Ethnic Affairs
(1986) 67 A.L.R. 177 per Davies J. at pp. 182-3).
....
(p. 4-5) The power to grant a permit under ss. 6, 6A and 7(2) is clear; but the present question is not whether the relevant power exists; the question is whether the power should be exercised in the particular case and this is a matter for the decision of the Minister in the exercise of his statutory discretion. As Gibbs C.J. said in Kioa (at p. 565):
"A prohibited immigrant who seeks a permanent entry permit under s.6A asks for the exercise of two discretions in his favour - first under s. 7(2) and then under s. 6A. It is to be noted that the conditions stated in s.6A(1) restrict the power to grant a permit but not the power to refuse one. Only if a condition is fulfilled may an entry permit be granted, but the fulfilment of a condition does not oblige the Minister or other authorized person to grant an entry permit."
....
(p. 7) In the first place, it is necessary to consider the legal character of the initial discretion, that is to say, the discretion to grant a temporary entry permit. ...
(p. 7-8) In our view, the decision to refuse to grant a temporary entry permit was not vitiated by any error capable of review under the Judicial Review Act. Neither s.6(5) nor s.7(2) specify any criteria for the grant of a temporary entry permit. It follows that, although "entirely personal and whimsical considerations" will be excluded (per Stephen J. in Murphyores Incorporated Pty. Ltd. v The Commonwealth (1976) 136 CLR 1 at p.12; see also per Mason J. at pp.17-18), an examination of the subject matter and the scope and purpose of the Act is necessary to enable a court to hold that the reasons given for the exercise of a statutory discretion "to be extraneous to any objects the legislature has in mind" (per Mason J. in Murphyores at p. 23). In Murphyores, a challenge was made to the validity of a decision under the customs legislation. Mason J. said (at p.24):
"There is, I should have thought, every reason for supposing that, within the framework of customs legislation, a discretion to permit the exportation of goods by way of relaxation of a prohibition, a discretion which is not expressed to be subject to any limitation, was intended to be wide enough to embrace every consideration reflecting advantage or disadvantage, benefit or prejudice to Australia, flowing from the approval or refusal of an application."
In our opinion, this reasoning is equally applicable to the exercise of the statutory discretion to grant, or to refuse to grant, a temporary entry permit. In other words, the discretion is to be exercised in the light of what, in the judgment of the Minister, is in the best interests of Australia. In deciding what is in the public interest, the Minister will need to balance the competing claims of possible advantage on the one hand and of possible detriment on the other so far as the national interest is concerned ...
To determine whether it is in the interests of Australia to grant, or to refuse to grant, a temporary entry permit is essentially a matter for the judgment of the decision-maker (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd. (1986) 66 ALR 299 at p 309).
....
(p. 10) Whilst the decision-maker was entitled to take such a consideration ("occupational grounds") into account, the only matter which Mr. Luu was bound to take into account in this connection was the public interest. As has been said, how the national interest would best be served was essentially a matter for the judgment of the Minister or his delegate considered in the light of the circumstances of the particular case.
....
(p. 11) For completeness, it should also be noted that, given the circumstance that the respondent had become an illegal immigrant and that the Executive Government had in place a policy against "queue-jumping" by illegal immigrants, no claim could be made here that the decision to refuse a temporary entry permit was made perversely or unreasonably in the Wednesbury sense.
It follows, in our view, that no basis exists under the Judicial Review Act for challenging the refusal to grant the respondent a temporary entry permit. Whether Mr. Luu's decision was the "correct" one, in terms of the merit or lack of merit of the application, is not for us to consider."
In the light of submissions that were advanced, I have given consideration to the meaning of the passage quoted above from page 10 of the typed judgment. Mr. Cavanough referred to the reasons for judgment in Minister for Immigration and Ethnic Affairs v Tagle (1983) 48 ALR 566 where Sweeney and Woodward JJ., after referring to certain findings, said (at 571):-
"They should not be taken as a finding that all the personal circumstances of a prohibited immigrant have to be considered in all cases. They mean no more than that, in the circumstances of this case, where the Minister's delegate had material available to him from the Department and the prohibited immigrant, he should have looked at it (which he did), identified the circumstances (if any) in favour of the prohibited immigrant's case to stay in Australia, and given them such weight as he saw fit."
In my respectful opinion there is no conflict between that passage and the statement by Beaumont and Gummow JJ. referred to above. Their Honours' statement that "the only matter which (the delegate) was bound to take into account ... was the public interest" is not inconsistent with the statement by Sweeney and Woodward JJ. (at p. 571) that "in the circumstances of this case, where the Minister's delegate had material available to him from the Department and the prohibited immigrant, he should have looked at it (which he did), identified the circumstances (if any) in favour of the prohibited immigrant's case to stay in Australia, and given them such weight as he saw fit".
The applicant filed further particulars of the application, containing 14 paragraphs designed to supplement the detailed grounds and particulars (covering 3 pages) set out in the application. However, as pointed out to him, the submissions largely depend upon an assumption that the delegate, in reaching his decision on 6 June 1988, had (1) adopted, as his own "findings on material questions of fact", the so-called "findings on material questions of fact", appearing in paragraphs 2-16 of the departmental submission (2) adopted, as his reasons for decision, the "assessment" appearing in paragraphs 18-26 and (3) based whatever findings he made upon the material attached to that departmental submission. It was no part of the function of the officer who prepared, or of the officer who "examined" or of the officer who "cleared" that departmental submission to make any "findings" on any facts; nor to determine what facts were "material". Those were the functions of the delegate.
In Palko v Minister for Immigration and Ethnic Affairs (unreported - delivered 6 March 1987) I expressed some criticism of the adoption by a delegate of the various parts of a departmental submission.
In Palko reference was made to the role of the officer who prepared the departmental submission. The following passages are relevant:-
"(p. 16-17) His function appears to be to present to the delegate a document setting out information which he considers relevant, referring to "evidence or other material" regarded by him as being relevant to findings to be made by the delegate and to make a recommendation as to certain decisions. It appears from the departmental submission that the officer was recommending that the "findings" in section A be adopted i.e. they were proposed "findings" and not findings that the officer had made.
Difficulty arises from the practice of framing the departmental submission in a form which includes "A. Findings on material questions of fact" followed by "B. Evidence or other material on which the findings are based". That practice, in my opinion, is not consistent with the role of an officer of the department who does not have the function of making any "findings on material questions of fact"; it follows that it is not correct for him to set out, as the departmental submission seeks to do, his "findings", nor is it correct to list the "evidence ... on which the findings are based" and to say, as he did, that in "making the above findings I had regard to the following material".
The difficulty to which I have referred does not lie merely in the way in which the delegate's reasons and the departmental submission are worded. Section 13 of the Judicial Review Act required the delegate to prepare and furnish "a statement in writing setting out the findings on material questions of fact ... and giving the reasons for the decision". In my opinion the "findings" which the delegate has "adopted" are, in a number of instances, not "findings on material questions of fact". For example, paragraphs 26, 28 and 29 contained various summaries by the departmental officer.
....
(p. 18-19) However, having regard to the lengthy discussion on this aspect in the present hearing, it has seemed to me to be desirable to draw attention to the problems which can arise as a result of the practice of the delegate "adopting" the "findings on material questions of fact" and "the reasoning set out in the assessment" in the departmental submission.
Doubtless the pressures of work operating upon a delegate are such that he is greatly assisted by a practice which enables him to adopt the findings and the reasoning where he is persuaded that that is the proper course to follow on the material before him. However, in my opinion, the delegate should formulate in writing and express in his statement of reasons the conclusions which he has reached on all material questions of fact, having regard to the obligation on him, under the Judicial Review Act, to prepare and furnish, when requested, a statement under s. 13 of that Act.
It is in my view highly desirable that there be a clearer differentiation of function between that of the delegate on the one hand and that of the officer preparing the departmental submission on the other. The difficulty in ascertaining precisely what findings have been made by a delegate (which has been the subject of submissions in the present case) stems primarily, in my opinion, from the attempt to make the one document (i.e. the departmental submission) perform two quite separate functions.
One function - which appears to be its appropriate function - is to make recommendations to the delegate; the submission includes a summary of factual material which may vary in its significance from material which may well be regarded by the delegate as being of considerable relevance, on the one hand, to material that may well be regarded by him as being background information of little relevance on the other.
The other function of the departmental submission, as it is drafted in practice, appears to be to provide the delegate, at a time when he has not decided the matter (and perhaps has not even given any consideration to the matter) with a document drafted in such a way that it can be "adopted" by him for the purpose of fulfilling his statutory obligation under s. 13 of the Judicial Review Act "to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision". There are obvious difficulties in drafting a document intended to fulfil that function before the decision has been made."
The opinion that the adoption, by the delegate, of a departmental submission can result in a "quite unsatisfactory" statement of reasons (under s. 13 of the Judicial Review Act), was expressed in the reasons for judgment of Wilcox J. in Maitan v Minister for Immigration and Ethnic Affairs (unreported - delivered 7 September 1987).
There is no evidence that the delegate, Mr. Owen, merely adopted the so-called "findings of fact" and the "assessment". Given the statements in Palko and by Wilcox J. in Maitan it would be surprising if the delegate did so. There is nothing to suggest that he did not fully consider the matter - bearing in mind that he had previously decided, on 5 April 1988, to order the deportation of the applicant and had reconsidered the matter on 9 May 1988.
A statement of reasons has been requested by the applicant under s. 13 of the Judicial Review Act but has not yet been supplied. Mr. Cavanough has submitted that, as a result, the applicant is placed at a disadvantage. However, Parliament, in enacting the Judicial Review Act, gave to persons, such as the present applicant, a right (s. 13(1)) to request a statement of reasons but provided (s. 13(2)) that the decision-maker "shall ..., as soon as practicable, and in any event within 28 days after receiving the request ... furnish it ...". Notwithstanding that prescription of 28 days s. 15(1) of the Act provides that:
"The making of an application to the Court under section 5 in relation to a decision does not affect the operation of the decision or prevent the taking of action to implement the decision but -
(a) the Court or a Judge may, by order, on such conditions (if any) as it or he thinks fit, suspend the operation of the decision; and
(b) the Court or a Judge may order, on such conditions (if any) as it or he thinks fit, a stay of all or any proceedings under the decision."
Having regard to those provisions of s. 13 and s. 15, in my opinion there is no legislative intention that, in a case where there is nothing to show that there has been an error of law by the decision-maker, a stay should be granted for the purpose of enabling the person affected by the decision to consider the reasons for decision, after they have been supplied in accordance with s. 13, in the hope that they may disclose an error.
During the long weekend I studied the application, the departmental decision dated 6 June 1988 and the extensive attachments to it. Since then I have further considered the material including the further particulars and the affidavits which have been filed. I have had the benefit of a very detailed examination of that material in the submissions by Mr. Cavanough. On all the material, in my opinion it was plainly open to the delegate to come to the conclusion that any de facto relationship that existed between the applicant and Mr. Wong had come to an end on or before 25 March 1988 and that she had voluntarily commenced work in a brothel on 26 March 1988. It is not significant that she only worked there for one day; the reason for its short duration is that she was arrested by the Police.
There is nothing to support the contention that the delegate failed "to give full and fair consideration to the applicant's (claim that she had a permanent de facto marriage relationship with Mr. Wong)". There is nothing to suggest that he failed to give consideration to the affidavit material filed in court before Woodward J. on 24 May 1988; however, that material plainly did not require the delegate to find that there was in existence on 6 June 1988 - or at any time since 25 March 1988 - a genuine and on-going de facto relationship. Again, there is no material to support the contention that the delegate's refusal to accept the existence of that relationship "was wholly or partly based on certain alleged discrepancies between various statements".
Apart from other material, the report on the interview with the applicant on 29 March 1988 would give support to a finding that the relationship was not in existence at that time, that her current residential address was not that of Mr. Wong and that no de facto relationship was claimed by the applicant; further, that she had voluntarily sought or obtained, through a friend, employment as a prostitute at the address where she was working when arrested on 26 March 1988. At the end of the report of that interview, it was declared by an accredited interpreter that he had acted as interpreter and read to the applicant the report of the interview. The applicant has attempted to give reasons as to why those statements were made by her on 29 March 1988. However, the delegate was not obliged to accept those statements. On the material as a whole he was quite entitled to reject them.
In my opinion it has notbeen shown that there is a serious question to be tried in respect of any of the grounds of the application. There is nothing to suggest that the delegate failed to take into account any relevant consideration or that he took into account any irrelevant consideration. I am quite unable to find any reason to support the contention that the decisions were so unreasonable that no reasonable person could have made them. Nor is there any substance in the ground that there were breaches of the principles of natural justice.
As to the fifth ground, Mr. Cavanough submitted that the Judicial Review Act contains an expanded concept of the "no evidence rule". He accepted that it has traditionally been the role of the delegate to determine, on the basis of all the material properly before him, whether or not such a relationship existed. However, he made what he described as a "bold submission", namely, that if the delegate came to the conclusion that a genuine de facto relationship did not exist, it would be open to the court to find that facts existed which established the existence of such a relationship. He submitted that the delegate had reached a conclusion on the basis of a non existent fact and that that raised a "serious question" to be tried, thus satisfying one of the grounds necessary for a stay of the deportation order.
In my opinion there is no serious question to be tried in respect of the "bold submission"; the facts are matters for the delegate and it is not for the court to consider evidence as to those facts. If, contrary to that opinion, it is open to the court to do so, then in my opinion on an examination of the material before the court, it has not been shown that there is a serious question to be tried, on the facts, as to whether such a relationship existed between 25 March and 6 June 1988.
In my opinion no serious question to be tried has been established in respect of any of the decisions made on 6 June 1988 and in all the circumstances it would not be just to stay the deportation order.
The applicant has also claimed by way of interlocutory relief that "the applicant be released from custody pending the hearing and determination of the hearing of this application" and further that "the applicant be permitted by the respondent to marry Wong Pui Lam as soon as may be convenient to her". In Elmi v Minister for Immigration and Ethnic Affairs (unreported - delivered 10 March 1988) Gummow J. expressed doubts as to whether the court has power to make an order that the applicant be released from custody, notwithstanding decisions of single judges of the court that the power exists. I have not heard full argument as to the existence of the power to make such an order and accordingly have formed no opinion on that question.
Assuming the existence of the power, the question is whether the power should be exercised. In Unlugenc v Minister for Immigration and Ethnic Affairs 43 ALR 569 at 573 Lockhart J. quoted with approval the following statement by Northrop J. in Piroglu v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 323 at 328:-
"The policy of the Migration Act is clear. Prohibited immigrants should not be left at large in the community pending deportation unless the Minister or an authorized officer exercises his discretion in accordance with s. 39. ... I consider this type of case to be very different from the normal "bail" case. In those cases a person has been arrested and charged with a criminal offence but has not been convicted. He is being held in custody pending trial and, prima facie, is entitled to bail. In the present case the applicant has not been charged with any criminal offence. He is a prohibited immigrant and under the Migration Act prima facie should be held in custody. Time limits are imposed by s. 38 of the Migration Act and once a deportation order has been made a deportee, prima facie, should be held in custody until deported, s. 39 Migration Act. The court should not interfere with that policy except in exceptional circumstances."
Applying the principle there enunciated, in my opinion, after considering all of the material the applicant has failed to show any exceptional circumstances that would support the making of an order for her release - either in general or for the purpose of marriage.
As stated to her counsel during his argument, the court accepts, without any need for supporting authority, that the "institution of marriage is a social and legal concept which is a fundamental part of the social system" - without the need to rely upon the passage, cited by counsel, from the argument of the Solicitor-General for the Commonwealth (Sir Kenneth Bailey) in Attorney-General for the State of Victoria v The Commonwealth of Australia (1961) 107 CLR 529 at 536; nor to the passages cited from the judgment of Taylor J.
An allied submission by counsel for the applicant was that a delegate must consider, among other matters, the interests of the citizens of the country he serves, including Australia's reputation in the eyes of the world; accordingly, that it would be against Australia's national interest if a delegate were to "banish" the applicant in circumstances where she wished to marry and establish a life here in Australia.
Accepting that a delegate is bound to consider the national interests of his country, an examination of the circumstances of this case, as revealed by the material before the court, gives no support to the suggestion that any detriment to Australia's international reputation could fairly result from the refusal of the applicant's request that she be released from custody for the purpose of marriage.
For the above reasons the application for each of the orders sought by way of interlocutory relief is dismissed.
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