Leung, L. v Gibbons, W.J

135

IN THE FEDERAL COURT OF AUSTRALIA	)
)

NEW SOUTH WALES	REGISTRY	)	of 1985
)

DIVISION

GENERAL

)

BETWEEN :

LA1 LEUNG

Applicant

AND

First Respondent

MINISTER FOR IMMIGRATION AND

ETHNIC AFFAIRS

Second Respondent

O R D E R

JUDGE

FOX J.

DATE OF ORDER:

WHERE MADE:

THE COURT ORDERS THAT:

1. The application be dismlssed.

T N THE FEDERAL

COURT OF AIJSTRELIA I

NEW SOUTH	MALES	R GISTFY	I	No. G41 nf 1985
I

GENERAL DIVISION

. I

F1t s t Respondent

A m

MJNISTER FOR IE4MIGFATIOM FiND

ETHNIC -AFFAIRS

Second Respondent

CORAM: FOX J.

D=:	28 March 1985

REASONS FOR JUDGMENT

f l 3 TEMPORE)

L .

on 28th February 1985.

An application for a stay was heard and

determined by Beaumont

J. on 11 March 1985.

He refused the

application but nevertheless ordered suspension

of the operation

of the deportation order until 25 March

1985.

On that day

renewed application came before me but at the request

the

applicant I

adjourned the matter until

coday, ordering that the

suspension continue until the further application for	a stay was
dlsposed of.

There was

no objection to renewal of the

application.

His Honour in his reasons had pointed

to the dearth nf the

relevant evidence and suugested that	the	situation miqht	be
curable.

The applicant was born in China and is aged

30. She is

married with two children. a son now aged 3 112 years and .?

daughter aged a little over 18 months.

The husband and wife.

with the elder child. came to Australia and were granted entry permits for a month from 25 March 19R2. They remained after expiration of the permits and, so far as appears, did not make any appllcation for thelr renewal or extension.

The younger child was conceived and born in Australia

and is

an Australian cltlzen.

The applicant has a grandmother

aged 76 or 77 years who is an Australian resident and

it w=,s one

of the

applicant’s purposes in coming to Australla to see

her.

The grandmother came here under the sponsorship

nf a s m residing

3 .

here who undertook to care for her. Apparently

he has not been

doing this for some time although the lady

in question 1 s not in

good health and needs care and assistance.

Put	shortly, the applicant's claim to remain rwrolves

around the facts that the daughter is an F-ustralian citizen and

that her grandmother

has need of family comfort and support.

The grounds stated in the application are: one. that

the first respondent, being the delegate

of the Minister for

Immigration and Ethnic Affairs, failed to take all relevant considerations into account when maklng hls decision; two, that the flrst respondent either: (a) exercised his discretionary power in accordance with a rule of policy without regard to the real merits of the particular case; or ( b ) exercised his power so

unreasonably that no reasonable person would have

so exercised

that power.

No particulars were qlven. A request

for reasons

under 5.13 of

the Act was made

on 4

March 1985 but none have

yet been forthcoming. However, relevant departmental documents

are in evidence. The argument has n o t speclflcally rested on the

absence of reasons.

The applicant's solicitor informed departmental offlcers

on 11 February that his clients, husband and wife. would flle applications for resident status under paragraph 6A(l)fe) nf the Micrration Act 1958 on 12 February. This was done. The paragraph

to which I have referred is

follows:

"S.tiA(1)

entry

permit

shall

not

qranted

immigrant after his entry Into Australia Imless one or more of the following conditions is fulfilled in

respect of him. that is to say

-.....

he is the holder of

a temporary entry permit which

is in force and there are strong compassionate

humanitarian grounds for the grant

of an

entry

permit to him.

The

lastmentioned

applications

were

considered

immediately

and by letter dated

February the solicitor was

informed that the regional director was not satisfled that either

case came under paragraph (e). At the same time

a decision was

made by the delegate

(who

was the regional director of the

Department of

Immluration) not to revoke the deportation order.

There has not been any application to review these decisinns and none has been foreshadowed.

On 7 February 1985 the applicant wrote

to the Human

Rights Commission about her position and she received

a reply

addressed to her husband and herself dated

13 February

1985

saying

essence

that

some

issues

had

been

drawn

the

department's attention by letter dated

12 February 1985.

I originally re3ected these documents as lnadmissible on

the

basis

that

they

were

not

before

the

delegate

his

subordinate at the relevant time, but an argument has been advanced that the delegate should have consulted wlth the Commission and considered its views. I have therefore admitted the documents in question into evidence. There was an awareness

of relevant views of the Commission at the tune the decision was

made and the letter from the Commission to the department may

have reached the latter by the tune the decislons

of 15 February

were made.	I doubt that on the last-mentioned matter there was
any evidence.

The

question before me is whether there

a serious

question to be argued

on the hearing

of the applicatlon. such

that the operation of the order be staged in the

meantime.

this connection

I should say that there is perhaps

a degree of

unreality in thus approaching the matter because it appears that

I probably

have all the evidence which

would be tendered at a

hearing and

I have heard very full and helpful argument. There

is of course the other side of the matter, namely that the refusal of a stay will probably result in the prlncipal application being defeated.

I hope I do justice to the submisslons

so well and

directly put

on behalf of the

applicant when I summarise them

under a few headlnus. It

was

submltted that the delesate

had

failed to take into account relevant conslderations. One

crf

these was the position of the child and the fact that the child

was

an Australlan citizen. This at one point

another was

allled with views which have been expressed by the Human Rlghts

Commission and which find thelr basis in the treaty annexed to

the Human Riqhts Commission Act

1981.

Perhaps the main aspect of

this argument

is that It is sought to give the child

a rather

independent position such that her Australian citizenship should

be regarded as qoverning In substantial measure what

1 s to happen

to her parents. It is sufflcient to say in relation

to thls

submission that there is

no evldence that the positlon of the

child was not fully considered.

I do

not understand it to be

suggested that if the parents

are deported. the child

or her

brother will be left in Australia. On the contrary

my belief is

that they would all leave. It

is, of

course, a wish - we miqht

think it is quite natural wish

on the part of the

applicant -

that her child be brought up in Australia. One comment

I miqht

venture about that is that that could stlll happen. but not in

the immediate present.

The other matter concerns the qrandmother.

is true

that the material before me does not show that the deleqate. when

making his decision, had full details

the

grandmother's

health or, indeed, of the degree

of her dependency on the

applicant.

For myself

I think that perhaps the department mlght

have gone further in its inquirles In that reqard but

I do not

see that there is any relevant error in Its failure to

s o .

Certamly the material put before the delegate refers

on several

occasions to the qeneral sltuation affectinq the grandmother and

I do not think one can conclude that there was a failure

to take

into account a relevant consideratlon

so far as it affected her.

There is one matter that

has arisen in relation to

several aspects

of the arquments that

have been put before me and

that is whether further inquiries on this matter or that matter

should not

have

been pursued or whether in the absence

particular comment it should be presumed that some matter was not

explored or

sufficient explored.

The fact is that the onus in

these matters is on the applicant and within reasonable limits it

1s not for the court to assume that adequate inquiries were not

pursued. One adds to that comment, the fact that under thls Act

one is dealinq with what are essentially questions of law.

The

evaluatlon of

facts and in general the degree to

which matters

are to

be pursued 1s

a matter for the fact finding body whose

decision it is sought to review.

Allied with the

declsion

concernlng

the

applicants

grandmother was a submission based upon section 6A(l)(er of the Miqration Act which is the provision I have earller set out. The

material

whlch

made up the submission that went before the

delegate contains reference to section

6A by saying in substance

that the applicant was not qualified under

it.

This is strlctly

the positlon because she

was not the holder of a temporary entry

permit "which is in force". That was self evident.

It has been

stated by the solicitor appearing for the applicant that the

practice is - and I understand this not to be disputed

- that If

a person who does not currently hold

a permit which is In force

nevertheless seeks to show strong compassionate

or humanitarian

grounds for the grant

of resldent status to him

or her, the

Department will commonly consider whether the compassionate or

the humanitarian grounds exist. If the Department

is satisfied

that they do, for the purpose

of making para (e) operate, it will

issue a temporary entry permit then and there, and then apply the

paragraph with the result, as I understand it, that the applicant

becomes a permanent resident.

There are,

of course, a number of features about that

method of

approach and indeed one

has to bear in mind the

consequences which follow. The

effect of applying it is to turn

somebody who is present after

his or her entry permit

has

expired, perhaps for some considerable

time, as is the case

here,

into a holder of a permanent entry permit.

Reference to section

6A was further brought into the

papers by a diary note which referred to the communication

I have

already mentioned on

11 February from the applicant's sollcltor

in which it was stated that an application would be made under para. 6A(l)(e) the following day. I do not think one could

properly conclude that the existence and relevance

para.

6A(l)(e)

was

not before the decision maker and one cannot

conclude in the circumstances that

did not take it into

account so far as was appropriate for

his purposes.

It is further argued that, based upon what appears in

the department's handbook, the decision was founded

on policy

without due regard to the facts of the particular case.

It is,

of course, open for government departments to apply policy and

indeed, if they did not have a policy, decision making would

9 .

all the more chaotic. What is required, in

case such as the

present, is that they do pay attention to the facts of the

particular case. There is

evidence which would satisfy me

that the policy

was applied in this case wlthout consideration of

the position of the applicant. Indeed, quite

amount was

written about the applicant and

in addltion there was

the result

of an interview with

her, with an interpreter present. Any

difficulty she had with

the language - and I do not know that she

did have any

- would have been overcome in that way.

I am not

satisfied under the head just mentioned there is any adequate

ground to review the decision.

The final head is that the decision was unreasonable in

the sense in which that is used in the Judicial Review Act, the

relevant paragraph being

para. 5(2)(g) and I quote it:

"An exercise of the power that is so unreasonable that

no reasonable person could have so exercised the power."

I think what I have already said covers

the submissions

on this ground.

appreciate that what are pressed here are

humanitarian grounds and grounds of concern for the position of the grandmother and of the child but the delegate 1 s entitled to

take into account a whole situation, indeed has	his duty to
perform under the Migration Act.

is a matter for him to weigh

up these things and

there does not seem to me at the moment to be any basis for

10.

interference under this headlng.

. .

matter that should

be mentioned finally and was

raised by counsel

for the respondent, concerns the

view which has

been expressed as to the status that a decision of the Human Rights Commission or of any part of the Act under which it operates, should have in proceedings such as the present. Every

case, of course, has to be examined in the light

of its own facts

and while I fully appreciate that there is before the

High Court

a case which will probably

- or at least possibly - provide

enlightenment on this aspect, it

does not seem to be to be likely

that the Court will make any decision which

will affect the

outcome of the present case.' I therefore do not think there

is a

case for staying the proceedings until the	High Court's decislon
is known.

I therefore dismiss the application.

[1985] FCA 135

28 Mar 1985