Mascenon, D.S. v Pomeroy, J
[1985] FCA 543
•24 OCTOBER 1985
Re: DAVID SORIANO MASCENON
And: JOHN POMEROY AND MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G 293 of 1984
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.
CATCHWORDS
Administrative law - application for judicial review - Decision refusing the grant of permanent resident status - No statement of reasons sought under statutory power - Interrogatories - Exercise of discretion.
Administrative Decisions (Judicial Review) Act 1977, ss.5, 13
HEARING
SYDNEY
#DATE 24:10:1985
ORDER
1. The application by David Soriano Mascenon that the respondents answer certain interrogatories set out in a notice dated 16 August 1985 and served on the respondents on 19 August 1985 is dismissed.
2. The applicant is to pay the costs of the respondents of and incidental to the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an application by David Soriano Mascenon ("the applicant") for an order directing John Pomeroy ("the first respondent") and the Minister for Immigration and Ethnic Affairs ("the second respondent") to answer certain interrogatories that were specified in a notice dated 16 August 1985 and served on the respondents on 19 August 1985.
The interrogatories were administered in a proceeding pending in the Court at the suit of the applicant under the Administrative Decisions (Judicial Review) Act 1977 (Cth). In that proceeding the applicant seeks an order of review in respect of the following decisions -
(a) the decision made by the first respondent, an officer of the Department of Immigration and Ethnic Affairs, on 17 April 1984 to refuse the grant of permanent resident status to the applicant pursuant to sections 6 and 6A of the Migration Act 1958 (Cth) ("the Act"); and
(b) the decision made by the second respondent on 11 March 1985 to maintain the departmental decision to refuse the grant of permanent resident status to the applicant.
It appears that the applicant, who was born in the Philippines and is a citizen of that country, entered Australia as a visitor on 15 October 1983 and was granted a conditional entry permit valid until 13 December 1983. He married an Australian citizen on 8 December 1983 and on the following day applied for resident status. That application was refused by the first respondent on 17 April 1984. Shortly thereafter the applicant was informed of the decision. He subsequently requested the first respondent to furnish to him a statement in writing in accordance with section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Such a statement, dated 13 July 1984, was furnished.
The decision to refuse the grant of permanent resident status to the applicant was subsequently reviewed by the Immigration Review Panel, a non-statutory body. That body, in a written statement to the second respondent, recommended that the departmental decision, that is to say the decision made by the first respondent on 17 April 1984, should be "maintained and explained". The statement bears a notation reading "I agree with Panel - Departmental decision to be maintained" followed by what appear to be certain initials and the figures "11/3".
The grounds upon which the application for an order of review is made are as follows -
"As to the Decision of the First Respondent
1. Error of Law
Particulars
(i) The decision was taken pursuant to a Departmental Policy which is inconsistent with sections 43 and 44(1B) of the Family Law Act 1974 (Cth).
(ii) The decision is inconsistent with sections 43 and 44(1B) of the Family Law Act 1974 (Cth).
2. Denial of natural justice.
Particulars
Subsequent to an interview with the Applicant on 2 March 1984 officers of the Department of Immigration and Ethnic Affairs interviewed the Applicant's wife but failed to give the Applicant an opportunity of either being present at that interview or an opportunity to comment on the information conveyed to those officers by the Applicant's wife.
3. Failure to take into account Relevant Considerations.
Particulars
In forming the conclusion that the Applicant's marriage was purely one of convenience, the Respondent failed to take into account, or to give adequate weight to, the following relevant considerations:-
(i) the terms and nature of the correspondence between the Applicant and his wife, and the period of time over which such correspondence extended
(ii) an acknowledgment by the Applicant's wife subsequent to 6 May 1983 that she wished to marry the Applicant
(iii) arrangements made by the Applicant's wife subsequent to 6 May 1983 for the purposes of the forthcoming marriage to the Applicant.
4. No Evidence.
Particulars
In forming the conclusion that the Applicant's marriage was one of convenience, the Respondent acted upon no evidence having logically probative weight, in particular the statement that the Applicant had harrassed his wife into marrying him.
5. Lack of Jurisdiction.
Particulars
The Applicant repeats those particulars provided for Ground 1 hereof.
6. Unreasonableness.
Particulars
The Applicant repeats those particulars provided for Grounds 1 to 4 hereof inclusive.
As to the Decision of the Second Respondent
7. Error of Law
Particulars
(i) The decision was taken pursuant to a Departmental Policy which is inconsistent with sections 43 and 44(1B) of the Family Law Act 1974 (Cth).
(ii) The decision is inconsistent with sections 43 and 44(1B) of the Family Law Act 1974 (Cth).
8. Denial of natural justice.
Particulars
(i) The Second Respondent relied upon and endorsed a recommendation of the Immigration Review Panel which took into account a record of an interview with the Applicant's wife and her father without making known to the Applicant either that such an interview was held on 11 April 1984 or making the notes of that interview available to the Applicant for comment prior to the Immigration Review Panel making its recommendation to the Second Respondent or, alternatively, prior to the Second Respondent placing reliance upon the recommendation of the Immigration Review Panel.
(ii) The Second Respondent relied upon and endorsed a recommendation of the Immigration Review Panel which took into account a Statutory Declaration of the Applicant's wife dated 17 April 1984 without making known to the Applicant either that such a Statutory Declaration was made on 17 April 1984 or making that Statutory Declaration available to the Applicant for comment prior to the Immigration Review Panel making its recommendation to the Second Respondent or, alternatively, prior to the Second Respondent placing reliance upon the recommendation of the Immigration Review Panel.
9. Lack of Jurisdiction.
Particulars
The Applicant repeats those particulars provided for Ground 7 above.
10. Unreasonableness.
Particulars
(i) The Applicant repeats those particulars provided for Grounds 7, 8 and 9 hereof inclusive.
(ii) The findings of fact as made in paragraphs 11, 12, 13, 15 and 16 by the Immigration Review Panel's Report to the Second Respondent and dated 17 January 1985."
A directions hearing (one of a number of such hearings) took place before Burchett J. on 28 June 1985 when certain directions were given by consent. The directions fixed times within which the respondents were to file and serve all affidavits on which they intended to rely, the applicant was to file affidavits in reply, the applicant was to file and serve interrogatories and the respondents were to file and serve answers thereto. As has already been mentioned the applicant served notice to answer interrogatories on the respondents on 19 August 1985.
On 28 August 1985 a verified statement in answer to the interrogatories was filed and served on behalf of the respondents. By the answers that were made the respondents admit, in effect -
(a) that the document a copy of which (though not of all the documents referred to therein as attachments) had previously been made available to the applicant was the report including the recommendation of the Immigration Review Panel forwarded to the second respondent;
(b) that the second respondent made a decision upon that report and recommendation on 11 March 1985, that decision being evidenced by the notation upon that report to which reference has already been made; and
(c) that the notation referred to is in the handwriting of the second respondent and that the initials forming part of that notation are his.
The respondents, however, objected to answering certain of the interrogatories on grounds falling within sub-rule 6(3) of Order 16 of the Federal Court Rules.
It is convenient to refer first to the interrogatories set out in sub-paragraphs 2(a), (b) and (d) of the relevant notice. Objection was taken to answering those interrogatories on the ground that they do not relate to any matter in question between the respondents and the applicant. The interrogatories objected to are in the following terms -
"(a) Was the Recommendation of the Panel a majority or unanimous recommendation to the Minister?
(b) If the Recommendation was a majority Recommendation, which members of the Panel formed the majority
....
(d) If there is any established or usual practice as to the signing or initialling of Recommendations to the Minister by one or more Panel members, please identify such practice."
On the hearing of the application the applicant did not press for an answer to interrogatory 2(d).
As to interrogatories 2(a) and (b), the applicant has failed to satisfy me that the factual material sought by those questions could have any relevance to the issues which the applicant has raised in the substantive proceeding. The second respondent clearly had before him a report and recommendation made by the Immigration Review Panel and upon that report and recommendation the second respondent made the decision of 11 March 1985. It can be of no significance whether in making that report and recommendation the Immigration Review Panel was unanimous or otherwise. The issue is whether the report and recommendation which was acted upon by the second respondent discloses any of the legal errors alleged in the amended application.
Interrogatories 3 and 7(c) may be considered together. Interrogatory 3 is in the following terms -
"3. At the time the handwritten notation to page 5 of "A" was added to that folio, what materials, documents or information was (sic) before the person who wrote that notation?"
The reference to the notation to page 5 of "A" is a reference to the second respondent's notation on the report made to him by the Immigration Review Panel. Interrogatory 7(c) asks what materials, documents or information the second respondent had before him at the time of making the decision of 11 March 1985.
The respondents objected to answering these questions on the ground that they are vexatious.
The matter was debated before me on the basis that interrogatory 3 is expressed elliptically and was intended to ask what materials or documents were, or what information was, before the second respondent at the time he made the decision evidenced by his handwritten notation of 11 March 1985, that is to say, it was intended to be in terms similar to interrogatory 7(c). It may be noted that, so read, the interrogatories are wider in scope than the requirement which section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) imposes on a decision-maker who is obliged to furnish a statement pursuant to that provision. Such a decision-maker is obliged to refer only to the evidence or other material on which his findings on material questions of fact were based.
Counsel for the respondents relied upon the circumstance that, although the applicant had made a request for a statement under section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of the decision made by the first respondent and such statement had been furnished, no such request had been made in respect of the decision made by the second respondent on 11 March 1985. Counsel submitted that, not having requested such a statement, it was not appropriate to seek by way of interrogatories information that the second respondent would have been bound to furnish in that statement had it been requested. Counsel referred to the unreported decision of a Full Court of this Court in Lloyd v. Costigan (9 May 1983) and, in particular, to the following passage in the judgment of the Court (at p 18) -
"There is much to be said for the view that it is not open to a party simply to allege that a decision was made without basis and then to seek to use the process of the Court to attempt to make out a case and indeed to find out if his allegation has any foundation: cf W.A. Pines Pty. Ltd. v. Bannerman
(1980) ATPR 40-163. Such a use of legal proceedings would tend to delay and frustrate the normal operations of a Royal Commissioner.
A person aggrieved by a decision of a Commissioner has the rights given by the Act, s.5. He may request reasons under s.13. We are satisfied that, if the request is refused or not complied with, the Court has power to order reasons to be given, certainly once there are proceedings commenced to review a decision. Such a construction plainly accords with the intent of the legislation. A person aggrieved may apply for an order of review on any of the grounds specified in the Act. If he does so, the onus of proving his case rests upon the applicant. He may have his statement under s.13, but the procedures of discovery and interrogatories will often be inappropriate. Generally, at least, the information to which a person is entitled under that Act is intended to be obtained in the manner which the Act prescribes."
Counsel for the applicant submitted that because the respondents had consented to the directions given by Burchett J. on 28 June 1985, including the directions relating to interrogatories, the respondents were precluded from relying on that ground. It was said that the appropriate time to raise the issue was at the time the directions concerning interrogatories were sought.
I am unable to accept the applicant's submission. There is, of course, no doubt as to the Court's power to order a decision-maker who is a party to a proceeding in this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to answer interrogatories. The question is whether it is appropriate in the circumstances to do so. The Court will not lend its assistance to an applicant by ordering a respondent to answer interrogatories unless it is satisfied that that is a proper course. The matter raised by the respondents is clearly a relevant matter for the Court to consider in determining whether it should make the order sought.
In determining how the Court's discretion should be exercised in this case I have had regard to the principles enunciated in the Full Court in Lloyd v. Costigan (supra) and the width of interrogatories 3 and 7(c). It was not suggested that those interrogatories were directed to ascertaining factual material relevant to the grounds set out in the amended application. It was put simply that the applicant was entitled to be informed by way of interrogatories of all the material that was before the decision-maker at the time the decision was made. Interrogatories 3 and 7(c) appear to be directed to enabling the applicant to determine whether there is material which might support a challenge to the second respondent's decision on grounds other than those referred to in the amended application filed on his behalf. In the circumstances I am of opinion that the applicant has not established that the interests of justice require that the respondents answer interrogatory 3 or interrogatory 7(c).
Interrogatory 6(a) asks the respondent to identify those to whom a copy of the recommendation of the Immigration Review Panel was forwarded for consideration. Apart from admitting that the recommendation was made to the second respondent, the respondents objected to answering the interrogatory on the ground that it does not relate to any matter in question in the proceeding.
Nothing that was put to the Court on behalf of the applicant has demonstrated the relevance of this interrogatory to any issue that arises in the substantive proceeding.
Interrogatory 10(c) relates to the decision of the first respondent and asks -
"In addition to the Sydney Office file N83/56134, referred to in paragraph 9 of 'B', what other materials, documents or information were before Mr John Pomeroy at the time he made the decision referred to in 10(b) hereof?"
The document referred to as "B" was the statement dated 13 July 1984 furnished to the applicant by the first respondent pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The decision described as the decision referred to in 10(b) was the decision of the first respondent refusing the applicant's request for permanent resident status. Answering the interrogatory was objected to on the ground that it is vexatious.
The statement furnished by the first respondent under section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) set out the evidence or other material on which the findings of material fact by the first respondent were made. There being nothing in the material before the Court to suggest that the first respondent failed in his duty under that section to refer to all of the material on which those findings were made, no sufficient ground has been shown to justify the respondents being required to answer interrogatory 10(c).
In the result the application is dismissed. The applicant is to pay the respondents' costs of and incidental to the application.
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