Mak, S.K. v Minister for Immigration, Local Government & Ethnic Affairs
[1990] FCA 225
•01 JUNE 1990
Re: SHIU KEI MAK
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT and ETHNIC AFFAIRS
No. G484 of 1989
FED No. 225
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)
CATCHWORDS
Administrative Law - Immigration - Judicial Review - application for permanent resident status refused - whether failure to take relevant considerations into account - whether irrelevant considerations taken into account - whether strong compassionate or humanitarian grounds - delay in execution of deportation order.
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5(1)(e), 5(2)(a) and (b)
Migration Act 1958 (Cth) - ss.6A(1)(e), 20
HEARING
SYDNEY
#DATE 1:6:1990
Counsel for the applicant: Mr D.J. Thorley
Solicitors for the applicant: Messrs W.A. Downe Xenos Vardas
Counsel for the respondent: Mr C.J. Stevens
Solicitor for the respondent: Australian Government Solicitor
ORDER
The application be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an application under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)("the ADJR Act") seeking an order of review with respect to a decision that the applicant, Shiu Kei Mak, be refused resident status in Australia, that is to say, an entry permit unlimited in time.
The subject decision was made by Ruth Sharkey, Regional Director, Southern Region, NSW, Department of Immigration, Local Government and Ethnic Affairs, on 30 May 1989.
The following are relevant findings on material questions of fact appearing in the statement of reasons issued by Ms Sharkey under s.13 of the ADJR Act:-
"1. The applicant, born on 16 May 1957, and his spouse Mak Chi Hing (nee Au Chi Hing) born on 5 May 1957, are residents of Hong Kong. The applicant and Ms Au (as she was then known) both entered Australia on 22 May 1982. The applicant and Ms Au travelled to Australia on visitor visas and upon arrival were granted entry permits valid for a one month stay. Their entry permits were subject to the condition "Employment Prohibited". Their entry permits were never extended and no further temporary entry permits have been granted to them.
...
3. On 7 February 1985 the applicant was taken into custody under section 38 of the Act by Mr D Gillies an officer under that Act and detained at the Immigration Detention Centre at Villawood. Also taken into custody were Ms Au, with whom he was living in a defacto marriage relationship, and her mother, Chau Wai Fong.
4. The applicant was interviewed on 7 February 1985 by Mr Greg Phillipson, an officer of the Department, and provided the following information: ...
. His normal country of residence was Hong Kong;
. He had resided in Wales; ...
. Since arrival in Australia he had not applied for a temporary entry permit; ...
. He had a defacto marriage relationship with Ms Au. He had no children; . He had no relatives in Australia. Overseas he had a mother and 2 siblings in Hong Kong, a father in Thailand and a sister in England; . He had schooling equivalent to HSC. He had obtained a Telecommunications Micro-electronic Degree (completed 1979) at Llandaff College in South Wales; . Overseas he had worked as an electronics inspector at Toshiba Corp. (HK), an export/import manager, and a manager/admin. officer at a digital electronics firm; . In Australia he had worked at the Dragon Den and Ming Wah Chinese restaurants for various periods. He was a waiter who earned $200 per week over 6 days;
5. A Deportation Case Summary was prepared dated 13 February 1985, which recommended that the applicant be deported from Australia. The summary stated, inter alia, that:
. 'Mr Mak would prefer to make a supervised departure however he is unable to because of insufficient funds and the lack of a travel document.' . 'He claims his passport was destroyed by an unknown person. This aspect is of interest to Investigations Branch because Mr Mak claims to have been involved in a scheme whereby a forgery of an 'A' stamp was placed in his passport for $20,000. The principal in this scheme has been arrested by the N.S.W. Fraud Squad and to date Mr Mak is the only 'victim' who has come to notice. The Fraud Squad intend to interview Mr Mak to ascertain if he can provide any evidence that will help them obtain a conviction.' . 'Mr Mak does not object to deportation.'
6. On 14 February 1985, Mr Wayne Gibbons, a delegate of the Minister, ordered pursuant to section 18 of the Act that the applicant be deported from Australia.
7. On 20 February 1985 a Release Order was signed by an authorised officer of the Department directing the applicant be released from custody.
8. It appeared from a file note dated 20 May 1985 that the NSW Police had requested the applicant be allowed to stay in Australia as he was to be a Crown witness in the "Curry" matter."
As these paragraphs show, after his arrest on 7 February 1985, Mr Mak disclosed that he had in 1983 paid a large sum of money to a person with a view to obtaining resident status. He was interviewed by the New South Wales Police and the prosecution of a Mr Curry followed. Notwithstanding the order made for his deportation on 14 February 1985, Mr Mak was released from custody so that he could assist in the prosecution. Yet, no temporary entry permit was granted to him.
This manner of dealing with Mr Mak's situation was unfortunate. Once the order for his deportation had been made, Mr Mak should have been deported forthwith, unless the order was revoked. Section 20 provided:-
"(1) Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revoke the order, be deported accordingly."
As was held in Mahoney and Ors v. Dillon (1987) 71 ALR 395, this section imposed a duty upon all relevant officers to give effect to the deportation order.
When it had been decided that Mr Mak should be allowed to remain in Australia to give evidence in the Curry prosecution, it should therefore also have been arranged that the deportation order be revoked. As the terms of s.20(1) show, Parliament intended that an order for deportation should be made at a time proximate to the deportation so that the person's circumstances, at that time, would be taken into account in the making of the order. The present position is that, if this application is not successful, Mr Mak will be liable to deportation under an order that was made five years ago, prior to his marriage to Miss Au, prior to the birth of their child in Australia, and prior to Mr Mak's having given evidence at the trial of Mr Curry.
Moreover, Mr Mak was released from custody and allowed back into the work force without it being made clear on what terms he was permitted to remain in Australia. The Migration Act provided for entry permits authorising stay in Australia. It did not provide for the granting of permission to remain in Australia by other informal means. And s.31B(2) of the Migration Act made it an offence for a prohibited non-citizen to work without having permission in writing to do so. If Mr Mak was to remain in Australia, it had to be expected that he would be gainfully employed. Thus, when Mr Mak was released from custody to assist in the Curry prosecution, a temporary entry permit should have been granted to him, and on that temporary entry permit there should have been endorsed an entitlement to undertake employment.
The failure to take this course tended to cloud a fair consideration of Mr Mak's circumstances by departmental officers. For example, on 19 May 1987, one officer noted:-
"A deportation order was subsequently signed against the applicant as a prohibited non-citizen on 14/2/85"
and
"Applicant's continued stay in Australia has not been authorised by the government as legal residence."
and
"Continued stay in Australia has not been due to any meritorious behaviour on the part of the applicant."
These statements were made notwithstanding that Mr Mak had been released from detention and allowed to remain in Australia so that he could assist the prosecution, which he did. These matters, though unfortunate, did not, however, flaw the subject decision by Ms Sharkey. No ground of challenge is raised with respect to them. Ms Sharkey reviewed the facts entirely afresh and recited the making of the deportation order merely as history. There is, for example, nothing in Ms Sharkey's statement of reasons which indicates that she was affected by any predisposition against Mr Mak by reason of the deportation order. Ms Sharkey accepted that, from a practical point of view, Mr Mak had been given permission to remain in Australia and that it was unrealistic to expect that he would not have worked.
Further relevant facts set out in the statement of reasons read as follows:
"11. On 25 February 1987 the applicant applied for change of status to permanent resident. The application included his spouse and child, Christopher Mak, born on 14 June 1986. The child was an Australian citizen by virtue of his birth in Australia. The application was based on strong compassionate grounds pursuant to paragraph 6(A)(1)(e) of the Act. ...
14. The Department refused the grant of resident status and advised the applicant of this decision by letter dated 10 June
1987. The applicant was also advised that there was no right of review of the decision by the Immigration Review Panel and: 'As the temporary entry permits of you and your wife have now expired you should contact the Enforcement Section of this Department to discuss your continued stay in Australia.'
15. The applicant's solicitors, John Bettens and Co, advised the Department by letter dated 10 July 1987 that they had made further submissions to the Minister. Those submissions dated 9 July 1987 were sent to the Minister and placed on Central office File (85/03362) concerning the applicant. The solicitors were advised on 26 August, 1987 that a senior officer of the Department would examine all the facts of the case and that the outcome of the review could take some time to complete.
The applicant also sent a letter to the Minister, received on 17 August, 1987, and he was similarly advised that a senior officer of the Department would examine all the facts of the case. ...
17. I considered the application and Mr Lieu's (sic) recommendation, in January
1988. I considered that the application should not be one for approval. However, a decision was not made by me at that time. I was informed by Mr Howard Porter that the Currie case was unlikely to be heard before 1989. The applicant's case was given to another departmental officer in June 1988 to complete.
18. The Department was advised in February 1989 that the charges against Currie were heard in Sydney in February and were subsequently dismissed. ...
20. On 30 May 1989 the case was returned to me. I noted that my assessment of January 1988 had not been completed or acted upon, and that subsequently no other assessment had been made. Accordingly on 30 May 1989 I reconsidered the case and completed my assessment.
21. I decided on 30 May 1989 to refuse the application for resident status.
22. At the time of my decision I believed that the applicant had four close family members (apart from his wife and child): mother and two siblings in Hong Kong and a sibling in the UK. I believed that Mrs Mak had close family members: parents and two siblings in Hong Kong, and three siblings in Australia."
I now turn to the allegation that Ms Sharkey failed to take into account the following relevant considerations:-
(i) That the Applicant has spent over seven years in Australia.
Ms Sharkey took into account the time spent in Australia.
(ii) That the Applicant was the victim of fraud and as such held the reasonable view that his stay in Australia was legal between the years 1982 and 1985.
It was open to Ms Sharkey to take the view that, when Mr Mak paid a large sum of money in 1983 to gain a permanent entry permit, he knew that he was not making a proper and lawful application.
(iii) That the Applicant's stay was authorised thereafter.
Ms Sharkey correctly understood that Mr Mak's stay in Australia was not authorised in law but that, as a matter of fact, he had been allowed to remain in Australia during the prosecution of Mr Curry.
(iv) That the Applicant was requested to stay thereafter, and be a prosecutions witness in criminal proceedings.
This matter was taken into account.
(v) That the Applicant was told that he would be granted resident status upon conclusion of criminal proceedings.
Mr Mak was not so informed. There was some difference between the evidence of Mr Scott, an officer of the department, and the evidence of Mr Mak. However, Mr Mak gave this oral evidence:-
"Now what was said when you spoke to Paul Scott?---When I ask him is there a possibility for me to stay in Australia after the court case, and then he say to me, you know, you may as well hop into court case, take as long as possible, and then after two years time you may be able to apply resident permission yourself and probably you will get it."
This was not significantly different from the view taken by Ms Sharkey who deposed:-
"I considered that he should reasonably have been aware that his circumstances would be looked at when the need for him to remain in Australia as a witness was finished, but that resident status had not been guaranteed."
Mr Mak did in fact apply after two years for the grant of residency status. His appplication was refused in 1987 and again in 1989.
(vi) That the Applicant placed himself at considerable disadvantage by agreeing to remain and give evidence as a prosecution witness in criminal proceedings.
Ms Sharkey took into account the fact that Mr Mak had remained and had given evidence as a prosecution witness in criminal proceedings. The weight to be given to that factor was a matter for Ms Sharkey.
(vii) That the Applicant would encounter severe
personal and professional problems and considerable dislocation should he be required to return to his country of birth.
Ms Sharkey took into account that Mr Mak, who was a waiter in Australia, would have to relocate himself in Hong Kong but she thought that he would be able to do so. Ms Sharkey accepted that Mr Mak would be better off in and wished to remain in Australia.
(viii) The Applicant has settled into the Australian
community well and has established strong family ties.
This matter was taken into account.
(ix) It would cause undue hardship on the Applicant and his family should be be required to return to his country of birth.
The hardship was taken into account. Whether or not the hardship was undue was a matter of judgement for Ms Sharkey.
I see no legal error in Ms Sharkey's consideration of the above matters.
It is further alleged that Ms Sharkey took the following irrelevant considerations into account:-
(i) That the Applicant did not hold a valid temporary entry permit at the time his application for resident status was submitted.
Whether or not a valid temporary entry permit was held at the date of the submission was not critical. What Ms Sharkey was required by s.6A(1)(e) of the Migration Act to take into account was that a valid temporary entry permit was not held at the date of her decision. There was no error in this regard.
(ii) That the requirements of s.6A(1)(e) of the Migration Act had not been met by the Applicant.
If the requirements of s.6A(1)(e) had not been met, Ms Sharkey was bound to take that matter into account. As to whether the requirement of strong compassionate or humanitarian grounds was met and as to whether, in the exercise of discretion, temporary and permanent entry permits should be granted was a matter for Ms Sharkey.
(iii) That the Applicant was under no duty to assist
police in their inquiries in relation to a fraud prosecution.
Ms Sharkey properly took into account the fact that Mr Mak chose to stay in Australia and to assist the New South Wales Police in the prosecution of Mr Curry.
(iv) That the Applicant was naive and incorrect in his belief that he held legal resident status in Australia.
In her evidence to the Court, Ms Sharkey deposed:-
"I considered that Mr Mak knew or was wilfully or recklessly ignorant of the fact that he was here illegally after the expiry on 22 June 1982 of his authorised stay."
This conclusion was a matter of fact which was open to Ms Sharkey as Mr Mak had had reasonable education, had previously travelled to the United Kingdom and had worked in Wales and had not, prior to his arrest, made any application to a proper authority in Australia for the grant of resident status. Ms Sharkey took into account that, in 1983, Mr Mak had paid a very large sum of money to a person who was not an officer of the Department of Immigration and Ethnic Affairs. It was open to Ms Sharkey to conclude that Mr Mak had sought to obtain a permanent entry permit by unauthorised means.
(v) Not relied upon.
(vi) That the Applicant's Australian born child could adapt to the lifestyle of the Applicant's country of birth.
It was relevant and proper for Ms Sharkey to take into account the effect of Mr Mak's deportation upon his child. She therefore considered what capacity the child would have to adjust to life in Hong Kong. This was a matter of fact for Ms Sharkey to decide.
(vii) That the Applicant has failed to supply
adequate evidence that it would be unreasonable or unjust to have the Applicant returned to his country of birth.
It was relevant for Ms Sharkey to consider whether it would be unreasonable or unjust to return Mr Mak to Hong Kong. On the material before Ms Sharkey, it was open to her to conclude that it was neither unreasonable nor unjust to take that course.
(viii) That the Applicant failed to provide strong
compassionate grounds in his application to warrant the grant of resident status pursuant to s.6(1)(e) of the Migration Act.
Whether strong compassionate grounds sufficient to justify the grant of a permanent entry permit were established was a matter primarily of fact for Ms Sharkey to decide. What was involved was a value judgement on her part. Once she had decided that strong, compassionate or humanitarian grounds were not present, Ms Sharkey was bound to take that matter into account in her decision.
The above points were put in a number of ways; but it would not be useful to discuss them further. Counsel for Mr Mak particularly pressed the fact that Mr Mak had spent almost $20,000 in 1983 to obtain a permanent entry permit and had lost that sum. Counsel submitted that this fact established a strong, compassionate ground for Mr Mak to remain. Ms Sharkey did not so regard the matter. Ms Sharkey was entitled to give little or no credit to Mr Mak for having attempted to purchase from an unauthorised source an entry permit which he was not prepared to apply for through the proper channels.
Counsel also relied upon what was said to Mr Mak by Mr Scott about the time he was released from custody in 1985. However, Ms Sharkey was entitled to conclude, and her conclusion accords with Mr Mak's evidence, that Mr Scott did not promise that, if Mr Mak remained in Australia, he would be granted a permanent entry permit.
Whether Mr Mak's circumstances amounted to strong compassionate and humanitarian grounds was, as I have said, a matter of value judgment to be made by Ms Sharkey. And whether, if so, temporary and permanent entry permits should have been granted to Mr Mak was a matter for the discretionary judgement of Ms Sharkey. Another decision-maker may have come to another view for, by 1989, Mr Mak and his wife had been in Australia for 7 years. They had settled into this country and their child had been born here. And for much of the time, officers of the Department had been content that Mr Mak should remain in Australia to give evidence in the prosecution of Mr Curry. It would have been open to Ms Sharkey to conclude that strong compassionate grounds existed justifying the grant of resident status. But it was also open to her to come to the contrary view.
Ms Sharkey's decision was not expressly attacked on the ground that no reasonable decision-maker would have come to the decision she did. However, I should indicate my view that Ms Sharkey's decision was not unreasonable in this sense. I see no reviewable error in Ms Sharkey's approach to the issues before her.
For these reasons, I am of the view that no ground for the issue for an order of review has been established. The application must therefore be dismissed with costs.