Mendoza, R. v Minister for Immigration Local Government & Ethnic Affairs

Re: RODOLFO MENDOZA
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS; JOHN
DAVIDSON and THE SECRETARY, DEPARTMENT OF IMMIGRATION, LOCAL GOVERNMENT AND
ETHNIC AFFAIRS
Nos. N G392 and 426 of 1991
FED No. 585
Administrative Law - Migration
(1991) 31 FCR 405

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Administrative Law - Judicial Review - failure to take account of relevant considerations - taking irrelevant considerations into account - finding of non-existent facts - unreasonable decision - decision affected by policy without regard to merits - whether findings of fact are reviewable - whether partiality of evidence is relevant and reviewable

Migration - temporary entry permit - compassionate ground - extreme hardship or irreparable prejudice to an Australian - whether relevant to consider in terms of employer/employee relationship - illegal entrant - illegal employment - consideration of employer's circumstances - effect of policy guidelines

Words and Phrases - "to take account of" - "unreasonable" - "extreme hardship"

Administrative Decisions (Judicial Review) Act 1977 sections 5(1)(e)(f)(h), 5(2)(a)(b)(f)(g), 5(3)(b)

Judiciary Act 1903 section 39B

Migration Act 1958 section 33, 34, 83

Migration Regulations 1989 regulation 131A(1)(d)(v)

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24

Brunetto v Collector of Customs (1984) 4 FCR 92

Bastiani v Repatriation Commission (1985) 5 FCR 378 at 384

Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536

Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180

Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363

Khan v Minister for Immigration Local Government and Ethnic Affairs and Ors Gummow J. unreported 11 December 1987

Narish Holdings Pty Ltd v Commonwealth of Australia and Ors Davies J. unreported 7 December 1988

Secretary of State for Education and Science v Tameside Metropolitan Borough Council (1977) AC 1014

Bromley London Borough Council v Greater London Council and Another (1983) 1 AC 768

Metropolitan Water Board v St Marylebone Assessment Committee (1923) 1 KB 86

Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223

Stott v Sir William Arrol and Co (1953) 2 QB 92

Flowers v George Wimpey and Co (1956) 1 QB 730

HEARING

SYDNEY

#DATE 25:9:1991

Counsel and solicitor for the applicant: Miss C.C Simpson QC and

Mr N. Williams

Instructed by: Elsworthy Jones

Counsel and solicitor for the respondent: Miss R.M. Henderson

Instructed by: Australia Government Solicitor

ORDER

Application number NG 392 of 1991 dismissed.

Application number NG 426 of 1991 adjourned to 23 October 1991 for directions.

Liberty to apply on 48 hours notice.

Note: Settlement and entry of orders are dealt within accordance with Order 36 of the Federal Court Rules.

JUDGE1

Two separate applications are before the Court. In the first, presented on 18 July 1991, the applicant, a Filipino citizen aged 36 years, sought judicial review of and other orders relating to a refusal by the second respondent, a delegate of the first respondent Minister, to grant him an entry permit to Australia under regulation 131A(1)(d)(v) (the regulation) of the Migration Regulations 1989. At the same time the applicant who was then in or about to be placed in custody, filed a notice of motion seeking orders to restrain the Minister from deporting him under a deportation order issued on 20 June 1991 and from taking him into custody (or keeping him in custody). At an urgent hearing on 18 July, the Minister opposed the motion, taking the point inter alia that the Court had no jurisdiction to make the orders sought in relation to the applicant's detention. For the reasons given in my judgment of that date, I adjourned the motion to the hearing and expedited the hearing. Pending the hearing, I restrained the applicant's deportation and ordered his release from custody on similar conditions, including a condition not to work, with one exception which I added, to those set by Justice Davies on 25 June 1991. I shall come to the exception shortly.

By the time the application and the motion came on for hearing on 25 July 1991, an amended application had been presented, invoking the Administrative Decisions (Judicial Review) Act 1977 (Judicial Review Act) and section 39B of the Judiciary Act 1903 (section 39B). At the end of that hearing, the decision was reserved and the question again arose of the applicant's potential deportation and custody. The respondent did not again seek to argue against the orders made in this regard on 18 July except with regard to the additional condition I had added to those previously fixed by Justice Davies. This had had the effect of permitting the applicant to work as production manager for A.F. Bambach Pty Ltd (Bambachs), a position he had held for about 20 months and which was at the heart of his application for the refused entry permit. The respondents' counsel submitted that the Court had no power to attach a condition of this kind, arguing that by reason of section 83 of the Migration Act 1958, only the Secretary of the Department (the third respondent) could grant a work permit to an illegal entrant. Somewhat surprisingly having regard to the power being exercised, the applicant's counsel agreed that this was so and said that an application would be immediately made to the third respondent for this permission. Accordingly the exception to the condition not to work was revoked.
The application to the Secretary for permission to work, pending the outcome of the proceedings, was apparently made on 30 July 1991 and was refused on 6 August 1991. As a consequence, the applicant lodged, on leave to serve short notice, an application to review the refusal of permission to work. This is the second matter before the Court at this time. It was heard and reserved on 13 August 1991. Contrary to what I had hoped, this second matter cannot be resolved without and separate to the first application.
For reasons which will appear, the case has some uniqueness and urgency. These reasons for judgment reflect these characteristics to some extent, in that they do not review the legal principles in as much detail as I should have liked if there had been a little more time. However, a reasonably comprehensive review of the facts cannot be avoided, although I shall try not to repeat the matters already detailed in my judgment of 18 July 1991.
The applicant entered Australia from the Philippines on 20 October 1985 on what was called a conditional temporary entry permit which allowed him to stay here up to and including 24 April 1986. He has therefore been in Australia illegally since 25 April 1986. On 24 February 1986, although without permission to work, he commenced employment as a process worker with Bambachs, a manufacturer of electric cables at Brookvale. After a period as a leading hand and assistant production manager, he became its production manager on 1 November 1989. He had no formal or trade qualifications. He worked in that position up to his arrest and detention on 22 May 1991. Except for about eight weekdays on one occasion and about five weekdays on another in circumstances to be explained, he has not worked there since. The applicant's wife and two young children arrived here on 9 July 1989 and were permitted to stay as visitors until 11 January 1990. They have since also remained here illegally with the applicant. The raid in which the applicant was arrested involved 11 other Filipinos who were also said to be illegally in Australia.
On 27 May 1991 the applicant applied for what is known as a "December 1989 temporary entry permit". This type of permit was added to those already made available by the regulations as an incentive to persons who were illegally in Australia to make themselves known to the authorities after the substantial amendments made to the Migration Act which came into force in December 1989. By reason of sections 33 and 34 of the Migration Act, the regulation requires, if its criteria are met, the issue of an entry permit on

... any other compassionate ground for the grant of an entry permit, to the effect that refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident. (the compassionate ground)

Although the evidence contains some findings adverse to the applicant in relation to the criteria prescribed by items (i) to (iv) of regulation 131A(1)(d), which it is not necessary to detail, it is not disputed that the applicant complies with all substantive criteria of regulation 131A relevant for present purposes except those provided for in the compassionate ground. In essence the applicant is seeking permanent residence in Australia for himself and his family, but this requires a temporary entry permit before it can be considered.
The application for a December 1989 temporary entry permit was rejected on 19 June 1991 but on or about 25 June 1991 the respondent undertook to reconsider the refusal on the basis of fresh evidence which the applicant desired to submit. At the same time the applicant was released from custody by the order of Justice Davies and either completely or with minor interruptions, he has remained at liberty ever since. The reconsideration was undertaken by the same delegate of the Minister as the earlier rejected application, but the applicant seeks no relief on this ground. The same decision, viz. to refuse an entry permit, was reached on 17 July 1991 and immediate steps were taken to arrange for the applicant's deportation. Only orders of the Court have prevented the deportation order from being executed since that time. Between 8 and 17 July the applicant was permitted by the third respondent to resume his work at Bambachs pending the reconsideration. My order on 18 July again permitted him to work between 19 and 25 July.
What therefore fell to be determined by the second respondent was whether the facts established that "extreme hardship or irreparable prejudice" would be caused to an Australian if the applicant was refused an entry permit under the regulation. What arises for my decision now is whether the delegate's finding that they did not, manifests one or more errors of law as to call for relief under the Judicial Review Act or section 39B. It is not open to this Court to review the case on its merits or to decide the case by weighing the facts for itself.
The applicant alleges that the delegate's refusal of the entry permit was based on the existence of one or more facts which did not exist (Judicial Review Act s. 5(l)(h) and (3)(b)) and was an improper exercise of the power conferred by the regulation (s. 5(1)(e)) in four respects. These are:

a) failure to take account of relevant considerations (s. 5(2)(b)) b) taking into account an irrelevant consideration (s. 5(2)(a)) c) exercise of the power in accordance with a rule or policy without regard to the merits of the case (s. 5(2)(f)) d) unreasonable exercise of the power (s. 5(2)(g))

No argument was put in relation to (c). The decision is also said to have involved an error of law in the construction of the regulation (s. 5(1)(f)).

The amended application attacks only the decision of 17 July, but the material provided prior to the 19 June decision was again considered during the subsequent reconsideration. It is therefore necessary to examine the material presented to the delegate prior to the 19 June decision and his decision on those facts.
It should first be observed that the 19 June decision was preceded by two considerations of the matter on 11 June by a departmental officer named G.W. Barrett. The delegate's decision of 19 June makes specific reference to his having considered these presentations of G.W. Barrett. Although the delegate differed with G.W. Barrett's refusal to find a causal nexus between the applicant's deportation and the claimed adverse effects on the identified Australian parties, he "concurs with much of the assessment". Indeed, significant parts of the delegate's decision embody word for word one or other of the Barrett papers, even down to misspellings ("it's 64 shareholders") and typographical errors ("Australia as whole"). It is accordingly reasonable to conclude that the delegate was significantly influenced by G.W. Barrett, thus making it necessary to consider this material.
G.W. Barrett's work reveals, correctly as later evidence discloses, that the applicant's case on the compassionate ground involves assertions that refusal of an entry visa to the applicant would cause extreme hardship and irreparable prejudice first and foremost to the applicant's superior at Bambachs, an Australian named William Gale and the company's 60 year old managing director. It is also said that that refusal would similarly affect Bambachs' shareholders, its 64 employees and the Australian nation as a whole. This officer's report reveals a policy guideline which states that applications on compassionate grounds should not be "solely or substantially based on ... involvement in commerce or industry" but that they should only be found to exist where there is "a familial link or close emotional attachment. A financial relationship, for example employer-employee, would not generally be accepted ... ".
None of these precepts appear in the regulation or are mandated by the Migration Act. However, G.W. Barrett used the fact that this guideline is not met in this case, to conclude that the applicant could not establish the compassionate ground unless there could be revealed, as apparently also permitted by policy, "any unusual, unforeseen or other feature which is deserving of a favourable response in the spirit of the compassionate provision". His conclusion was that no such feature exists here and no contrary argument has been put since.
G.W. Barrett formed the view, apparently communicated to and seen by the second respondent as the first respondent's delegate, that the applicant's deportation would not cause the claimed detrimental effects. In this assessment, any hardship/prejudice would in fact be caused by the employer's failure to

a) train other staff to replace the applicant in case his services should "be lost for 'normal' reasons such as resignation or illness"; or

b) "check the applicant's immigration status upon employing/promoting the applicant".

He went on:

As any hardship or prejudice which may affect the identified parties are not effects of the refusal to grant an entry permit, it is not necessary to determine the degree of that hardship or prejudice.

His conclusion was that

no compassionate ground has been established as neither the Nominator nor any other Australian party would suffer extreme hardship or irreparable prejudice as an effect of the refusal to grant an entry permit.

It appears that "the Nominator" referred to is Mr Gale.
The second of G.W. Barrett's papers on this matter is described as the "Assessment and Recommendation" for this application. This discloses, again correctly as other evidence reveals, that the claims of hardship in this case are based on Mr Gale's personal health and financial wellbeing, and on his company's and Australia's economic interests. Because the compassionate ground as described or defined in the policy guideline is not met, G.W. Barrett recommends the refusal of the application for the entry permit

... as the applicant does not meet all the prescribed criteria for the class of entry permit for which he has applied, and as there is no evidence to suggest that he is eligible for any other class of entry permit.

This document was apparently subscribed by the second respondent as the decision-making delegate on 19 June 1991 when his first decision was made.
In the narrow sense, G.W. Barrett's approach was erroneous and was in contravention of section 5(1)(e) and (2)(f) of the Judicial Review Act. Policy guidelines per se provide no means for expanding or construing the legislation. Although it is now settled law that matters of policy may be considered by the Court in certain circumstances, the exclusion of financial relationships or those "solely or substantially based on ... involvement in commerce or industry" can only be acceptable in this case if the regulation is properly so construed. In the Barrett papers, unlike the delegate's decision, this guideline is accepted as definitive.
In the wider sense, it is certainly possible that the regulation is intended to be limited to the types of circumstances suggested by the guideline. However as no such argument was put to me by the respondents, and neither of the decisions of the delegate relied on the guideline, it is not necessary to be determined in this case.
The facts presented to the delegate by the applicant contained a comprehensive review of Bambachs' business given by Mr Gale. It included:

1. that Bambachs had numerous staff and other problems affecting manufacturing in the years leading up to 1990

2. that the appointment in 1988 of an experienced graduate in engineering as production manager did not reverse the adverse trend

3. that these problems caused strains to Mr Gale and adversely affected his health, so that in early 1990 his blood pressure became "extremely high"

4. that 6 months after his appointment as production manager in late 1989, the applicant "came to grips with the major problems" and commenced to turn the business around

5. that since then the business has had very significant success due to the applicant's "control of the factory, his attention to detail, his working knowledge of every item of plant, plus his good human relations skills"

6. that the applicant is "vital" to continued factory progress and the maintenance of Mr Gale's health. In Mr Gale's own words: "Without him we would return to the times prior to his appointment. Heaven forbid. All my hard work down the drain and unacceptable stress levels". The applicant is also said to be "the key" to multi-million dollar expansion plans in the next several years

7. that the presence of the applicant in the factory permits Mr Gale to take holidays. In due course it will permit Mrs Gale, who will inherit control of the company upon the eventual death of her elderly father (A.F. Bambach), its founder and principal shareholder, to manage the company if and when her husband dies or is forced to retire. This will be important to the Gales' financial wellbeing as well

Mr Bambach himself wrote to the delegate that the absence of the applicant, whom he described as "an extremely important man" and again a "key person" for the company, has thrust on Mr Gale such a burden of work as to threaten him with a nervous breakdown. If Mr Gale is forced to retire as a result, Mr Bambach said that he would "be forced to seriously consider closing my manufacturing operations". Allowing the applicant to return to work would "avert a possible closing down of this entire organisation which has been operating for the past 60 years and holds a vital place in the Electrical Cable industry".
Dr Gwenyth Frances, Mr Gale's doctor since late 1984, wrote that Mr Gale first demonstrated symptoms of hypertension and high blood pressure in February 1990. The doctor believed that these conditions were due to work stress and pressure. A period of improvement followed treatment but the conditions recurred in about June 1991 apparently due to the loss of the applicant from the factory, the resulting loss of productivity and "the possible failure of his attempts to upgrade the manufacturing section". Dr Frances was of the opinion that this further stress would be detrimental to Mr Gale's health.

A letter from the applicant's solicitor, Ray Turner, dated 27 May 1991 was also before the delegate. It argued the compassionate case for the applicant, viz. the health of Mr Gale, the possible loss of jobs and income for the other Bambach employees, the losses of important import-competing and export production, and "the flow on effects" of these losses to other Australian manufacturers who purchase Bambachs' products (perhaps the author also had in mind those who supply Bambachs).
Mr Turner's letter attached a letter dated 26 May 1991 from Mr Gale to the federal Minister for Industry, Technology and Commerce. This letter put the applicant's continued employment by Bambachs as being "of immediate and extreme importance to Australia" because it is vital to ensure that the company maintain "its momentum with import replacement, export enhancement programs and job creation ...". The loss of the applicant would be "disastrous" for the Company. He is described as "THE key person" (sic) no less than four times. Mr Gale told Senator Button that:

With him we can continue to progress ... Without him we go backwards. I cannot emphasise enough the seriousness of such a loss to this company's production plans.

Significantly, Mr Gale said:

We did not know that he was an illegal immigrant because if we had we would not have employed nor promoted him.

Mr Gale's letter to Senator Button also spoke of "the benefit of Australia and the livelihood of 64 other employees in these difficult times ... Surely Australia's benefits are paramount in these difficult times". Notwithstanding the current recession Bambachs have recently invested over $240,000 on new equipment. Mr Gale pointed out to Senator Button that Bambachs is the only maker of specialised electrical cables in Australia. If they close, he said, $5 million directly and $25 million indirectly will be added to Australia's import bill because of the loss of their products and those of other manufacturers who depend on Bambachs for essential supplies. Apparently contrary to part of the case sought to be made out here, Mr Gale said in the letter to Senator Button that because of Bambachs' present modest returns, the company's owners "would be financially better off" if the factory was closed and the buildings rented, but they do not want to do so because they are loyal Australians and want to keep 65 people in their present jobs, and perhaps more in the future.
Mr Gale's letter to Senator Button also contained two enclosures giving more details on the applicant's importance to the company. He gave even more information in another document dated 24 May 1991 made available to the delegate.
It is against this factual background that the decision of 19 June must be considered. Saying that there were no contrary claims, the delegate concluded first that none of the Australians mentioned (shareholders, employees, the people as a whole) would be more affected than Mr Gale if the applicant was deported. Although not stated, this was presumably making a comparison with Mr Gale's health and income. Thus the delegate felt that this application could be resolved by considering the effect of a deportation on Mr Gale alone.
It does not appear to have been considered by the delegate that the terms of the regulation may permit an interpretation that the cumulative effects on several nominated or specified Australians can be considered on the issue of whether the relevant hardship or prejudice criterion has been made out. However, because such a construction has not been argued by the applicant, except in the context of the whole nation, it is not necessary for me to decide the matter here.
The delegate accepted Mr Gale's evidence that had the company known of the applicant's illegal status, it would not have employed or promoted him, although taken with the company's other assertions, the logical consequence of this evidence is that the business would then have deteriorated or collapsed. The delegate asserted, seemingly without evidence, that the applicant made an "initial verbal claim to legality", and that the applicant "had duped" the company by claiming to be legally in Australia ...". However, a later additional reference to the applicant having "duped" Bambachs leads me to believe that what the delegate probably meant by this fairly inflammatory language was simply that the applicant failed to tell Bambachs that he was illegally in Australia and was illegally working.
It follows from Mr Gale's claim of ignorance of the applicant's illegal status that either Bambachs did not ask for or, if they asked and were told that he was legal, did not check the facts. This the delegate described as "naive" although this seems to be a generous description. In my view, Bambachs must either have been negligent or deliberate in not enquiring. The evidence shows that this company, in seeking to advance its own interests, has taken a significant even aggressive role in supporting and advocating Australia's national economic interest, apparently in part in the highly commendable name of loyalty to the nation. It is more than naive that such a sophisticated experienced company did not think to take steps to check the status of either the applicant or the 11 other persons arrested with him who had allegedly overstayed. In my opinion, the delegate was fair, even generous, to the applicant and the company in his assessment of these important issues.
On Mr Gale's health, the delegate accepted that the applicant's deportation may cause adverse effects and hardship. However, because he was of the opinion that many people of 60 years of age "suffer some deterioration of health including hypertension", the delegate did not accept that Mr Gale's health problems were solely related to being deprived of the applicant's industry and skills. The regulation does not speak in terms of a "sole" cause but merely whether the refusal of the permit would cause the relevant detriment.
The delegate did not feel that the hardship was established as "extreme" because it was not "long-term or permanent". These last terms were taken from a policy guideline apparently purporting to define "extreme hardship". It appears from the delegate's decision on this aspect of the case that his assessment of hardship reflects his acceptance of this guideline. Another guideline suggests that the compassionate ground is to be used to regularise the status of illegals "sparingly and only in the most compelling cases". Neither of the concepts expressed in these qualifications appears anywhere in the legislation. As a matter of construction, "extreme" may well bear a meaning similar to "long-term or permanent", at least in many cases. However, there is no reason on the face of the regulation why, as a matter of construction, the words "any other compassionate ground" should be conceptually restricted in terms of availability or should do other than merely raise the question in each case of whether the hardship/prejudice criterion is established to the required degree.
The delegate also accepted that hardship will be caused to the company and to Mr Gale in his capacity as its managing director, if deprived of the applicant's services, but similarly concluded that this hardship would not be extreme. While accepting that the applicant had succeeded where another apparently more qualified person had earlier failed, the delegate rejected the concept that the applicant was irreplaceable. His expectation was that with the high unemployment now existing, it should be possible to find someone to take the applicant's place, although he conceded that a replacement would take some time to understand and become adequately familiar with the job. This time lag would cause some but again not extreme hardship. The delegate likewise found that Mr Gale would not suffer irreparable prejudice and that there were not unusual, (un)foreseen or other features warranting "substantial departure from policy guidelines". This was an invocation of the policy referred to by G.W. Barrett which I have previously noted. The application for an entry permit was therefore rejected and the applicant was so notified by letter of 20 June.
All this material was again before the delegate in the reconsideration of the case after the 25 June proceedings before Justice Davies. However, there was also submitted a volume of fresh evidence. To understand the decision made on 17 July following this reconsideration, it is necessary to review the fresh evidence.
Concerned that he had omitted something of significance from his earlier extensive writings, Mr Gale again put pen to paper on 26 June. Part of this statement was in fact repetitive of other statements but it did supply the new information that in February 1991 the company had made the applicant two alternative generous offers to assist him to buy a two bedroom home unit, close to the factory. Neither offer was accepted by the applicant but the offers, which involved an assumption of debt by the company in the teeth of its debt reduction policy at the time, were put forward as indicating the directors' assessment of the applicant's worth to the business and to Mr Gale's continuing good health.
There was a further 4+ page statement from Mr Gale on 27 June 1991. This spoke of new and potential orders, especially from overseas, and of import replacement production, most of which, he said, will either not be able to be undertaken, or will be lost, without the applicant. If this occurs, Bambachs may have to close their branches in Brisbane and Newcastle and further reduce staff at Brookvale. The statement repeated that if Mr Gale's health does not hold up, Mr Bambach intends to close the factory.
A medical certificate dated 27 June 1991 from a relieving or supporting doctor in Dr Frances' practice who examined Mr Gale on 20 June, was also supplied. The doctor reported that at the consultation, Mr Gale had expressed concern about the raid in which the applicant and other staff were taken away. The doctor found that Mr Gale's blood pressure was high and attributed it to the raid and to concern at loss of productivity.
A statement, also dated 27 June, was provided from Terence John Aldini, Bambachs' General Manager and the applicant's immediate superior. He spoke of the increased efficiency and productivity in the factory as a result of the applicant's ability, and of the desolate future if his services are removed.
Leigh W. Purnell, Director Trade and Commercial of the Metal Trades Industry Association of Australia (MTIA), wrote to the delegate on 27 June of "the absolutely vital role which the production manager plays in the functioning of an engineering shop, especially in a company the size of A.F. Bambach". Mr Purnell expressed the view that "the overall viability of a company like Bambach's is severely threatened by any sudden withdrawal of its production manager".
All this material was enclosed and summarised in a covering letter from the applicant's solicitor to the delegate dated 28 June 1991. The solicitor apparently wrote again on 2 (or 3) and 9 July 1991. I have not been supplied with these two letters but they appear to have contained the remainder of the new evidence submitted in the form of two additional statements. In any event, another statement from Mr Gale dated 7 July was provided to the delegate. It revealed that the current recession is seriously affecting the company and some retrenchments and job shedding have occurred. This will further adversely affect already low profitability which next year may actually convert into a loss. The point of the statement is that this situation is said to be likely to become worse - "quite parlous" - without the services of the applicant, leading to further retrenchments and losses. His availability would minimise job and financial losses.
A statement by Mrs Hilda Gorton dated 8 July was the last in time of the new evidence supplied. Mrs Gorton, an Australian citizen, has been employed by Bambachs in various administrative roles for 20 years. For most of this time her work has required close co-ordination with the production manager. Since the applicant's enforced departure from the factory, Mrs Gorton has been occasioned increased stress. This is attributed to "the extra workload" and her "fear for the future of the factory's output and its employees" if the applicant is deported. Mrs Gorton said that there is no one on the present staff who could replace the applicant nor would advertising the vacancy provide a suitable person. This is because the factory is complicated and the production manager needs years of "on the floor" experience to do the job correctly. The applicant is described by Mrs Gorton as "critical to the continued performance of the factory and the livelihood of the employees". Medical certificates for 6 days off work for Mrs Gorton due to stress or hypertension were also submitted.
The decision of 17 July 1991 followed the consideration of this material. I have already pointed out that no criticism is made of the fact that it was given by the same person who made the earlier decision. In this later decision, the delegate resurrected, but then said that he disregarded, the policy guideline referred to earlier by G.W. Barrett that the compassionate ground requires a family link or close emotional attachment rather than a financial or commercial relationship. Although it is not clear where the personal illness of a work superior or colleague fits into this concept, the facts that the delegate dismissed the guideline from his deliberations altogether and that this approach has not been challenged in this case mean that it is not necessary for me to decide in this case whether the guideline represents the correct construction to be given to the regulation.
The delegate did not similarly disavow the other guidelines mentioned in the 19 June decision, viz. the correlation in relation to hardship between "extreme" and "long term/permanent" (which he clearly did rely on for that decision and did not contradict in the later one), and the limitation of the compassionate ground to "sparing" use only in the "most compelling" cases (which he did not specifically mention in either decision other than by the earlier concurrence with G.W. Barrett's views). As the applicant did not argue that the decision-making is flawed in this case because of the use, or possible use, of these additional guidelines, it is again not necessary to consider their effect or influence on the second respondent's 17 July decision.
The delegate addressed 3 questions:

1. Whether refusal to grant an entry permit to Mr Mendoza would have adverse effects on the operations of the Company

2. Whether any such adverse effects on the Company's operations would in turn cause hardship or prejudice to the nominated parties

3. Whether any such adverse effects on the nominated parties are sufficient to constitute extreme hardship or irreparable prejudice

The "nominated parties" are the same as those in the decision of 19 June with the addition of Mrs Gorton.
The delegate summarised much of the new evidence, in my view quite fairly, and repeated his earlier concerns about the company's failure to evidence objectively the unlikelihood of being able to replace the applicant, especially in the current employment market. He described the company's statements of the adverse impact of the applicant's absence on their likely success as "assertions and speculative claims". Mr Gale is taken as being "firmly of the view that the Company will be seriously affected if Mr Mendoza is unable to continue in his role of production manager". The delegate observed (paragraph 23):

No impartial opinion, external to the Company, on replacing Mr Mendoza has been submitted, eg from the Department of Employment, Education and Training (DEET); the Commonwealth Employment Service or professional recruitment agencies similar say, to Drake.

As to Mr Purnell's letter, he said:

While the MTIA letter supports the Company's claims and it's integrity in giving an opinion is not in question it is in fact a statement by an Employer's organisation in support of one of its membership and therefore not an opinion of the kind referred to in paragraph 23.

Thus the delegate reasoned:

... it is consistent with Mr Mendoza's stated development with the Company that the Company have neither claimed nor attempted to evidence that he cannot be replaced from within the Australian workforce.

This is at least partly wrong. There is no doubt that the company has always claimed and is still claiming that the applicant is to all intents and purposes irreplaceable. Their alleged failure to "evidence" this irreplaceability can only be understood as a reference to the absence of what the delegate had in paragraph 23 of the decision called "impartial opinion, external to the Company".
The delegate concluded:

Therefore in the absence of persuasive evidence to the contrary I am of the view that it would be neither as difficult nor as protracted a process to replace Mr Mendoza as has been claimed in support of his application.

The delegate accepted that time would be needed to train a new production manager and that hardship would thus be caused to Mr Gale and the Company if the applicant is denied an entry permit. His conclusion, however, was that this was not sufficient to constitute the compassionate ground.
A similar conclusion was reached in relation to Mr Gale's health. The delegate commented, with evident correctness, that both medical practitioners whose certificates were supplied spoke confidently about the success of medication to lower his blood pressure and relieve his tension. Neither of them gave any true prognosis or any indication that his condition cannot be managed with medication under supervision. Neither doctor was called to give evidence. Nor was Mr Gale who, despite placing extensive personally prepared or authorised material before the delegate and the Court, made no comment at all on the effects of the treatment he has received and detailed no other means he has been adopting to lessen his tension and improve his longevity.
While making no finding, because no evidence was submitted, as to her importance to Bambachs, the delegate accepted that Mrs Gorton's health has been adversely affected by the events under consideration and that this may continue if the applicant is refused an entry permit. Once again, however, he concluded that it falls short of the requirement of the compassionate ground. He formed a similar view of the hardship that the applicant's deportation will cause, in a professional and financial sense, to Mr Gale, Mrs Gorton, the Company's other employees, the Company itself, its shareholders and customers, and Australia as a whole.
The applicant submitted two affidavits to the Court to supplement the evidence before the decision-maker. One was from Mr Gale merely testifying that the various statements of his were true. The second was from a Mr M.G. Gerber, an expert in executive recruitment, who for the last two and a half years has been supplying such services to Bambachs. The affidavit asserts that Mr Gerber knows the company, its production process, its position in the relevant Australian market, and the work of its production manager and other employees. He has observed the applicant's work and the company's operations during the applicant's absences this year. He describes the applicant as having "unique skills gained from his experience of the last five years with the company". His view is that such persons cannot be recruited on the Australian labour market but must be "carefully trained within the organisation". A person can be recruited with the ability to acquire the necessary skills but would take at least 3 years to train.

This evidence was objected to as irrelevant and inadmissible on an application such as this. As the delegate accepted every relevant fact deposed to by Mr Gale, the verification adds nothing relevant on the facts. However, it enables the applicant to meet the suggestion by the delegate that the applicant's irreplaceability was not claimed or evidenced. The respondents did not argue specifically against the admission of this affidavit and I admit it.
Mr Gerber's affidavit was objected to on the basis that it was not before the delegate. The question of whether evidence not before the decision-maker can be admitted in judicial review matters appears to depend on the type and circumstances of the case. In Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536, Justice Lockhart said at 539-40:

The admissibility of evidence not before the decision-maker depends upon the grounds of review on which the applicant relies before the Court. In the case of some grounds of review (for example, if the decision-maker failed to take into account a relevant consideration) (s 5(2)(b) of the Judicial Review Act) or took into account an irrelevant consideration (s 5(2)(a)) it is difficult to see the relevance of material not before the decision-maker. Other grounds of review (for example, unreasonable exercise of the power (s 5(2)(g)) will generally, lead to the evidence consisting primarily of the material before the decision-maker. Where the ground relied upon is error of law (s 5(1)(f)), the trend of judicial opinion is that the evidence before the Court is confined to the material before the decision maker: Attorney-General (NT) v Minister for Aboriginal Affairs (unreported, Federal Court of Australia, Wilcox J., No G235 of 1988, 3 August 1988), p 13; Ruangrong v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Davies J., 29 March 1988), p 7.

His Honour acknowledged that in respect of some of the grounds set out in section 5, it may be appropriate for additional material to be received by the Court in some circumstances.

Although not directly in point on this issue, the trend of what Justice Davies said in Narish Holdings Pty Ltd v Commonwealth of Australia and Ors unreported 7 December 1988 at page 17 is of assistance:

(It is) ... submitted that, in this application under s.39B of the Judiciary Act, it is not for the Court itself to come to a view of the facts but only to determine whether the officers ... who have considered the classification, have erred in law. (It was) submitted that a determination as to a classification for the purposes of the customs tariff is primarily a question of fact and that this Court's jurisdiction under s.39B is limited to reviewing errors of law made by officers of the Commonwealth. He submitted that the Court may not review findings of fact made by those officers.

However, his Honour disagreed with these submissions. At pages 17-18, he said:

... the jurisdiction of the Court under s.39B of the Judiciary Act is not limited ... . If an application is brought for an injunction against an officer of the Commonwealth, the Court has jurisdiction to determine all matters of fact or law upon which the rights and obligations of the parties and the grant of an injunction may depend. See, eg., Textron Pacific Ltd v Collector of Customs (Qld

(1987) 78 ALR 547 at 547-8. In many applications brought under s.39B of the Judiciary Act, the grounds relied upon will be grounds which can be found stated in ss.5 and 6 of the Administrative Decisions (Judicial Review) Act 1977, the ordinary grounds of judicial review. However, the jurisdiction of the Court under s.39B of the Judiciary Act is not limited to those grounds. In the present case, the applicant's claim necessitates a consideration of and a finding as to the correct tariff classification of the subject goods. In my opinion, this is an issue which it is within the jurisdiction of the Court to consider.

Neither of these cases were based on section 5(1)(h) as explained in section 5(3)(b) of the Judicial Review Act, but it seems to me that their Honours' reasoning would tend to support the admissibility of Mr Gerber's evidence in such a case.
This is a section 39B application as well as one for judicial review. The judicial review application is partly grounded in an alleged finding of a non-existent fact. Such a case may require proof of the truth in a way which was not before the delegate or to disprove something which could be shown to have been wrongly found by the delegate. Here the matters deposed to in Mr Gerber's affidavit were in substance before the delegate and he came to clear conclusions about them. Thus this evidence raises no fresh issue on which the delegate has not pronounced.
Moreover, a case as important as this must be brought to an end and decided on as fully informed a basis as possible. Whilst it is vital that the balance of justice be held evenly between litigants, and the expense of the law must be seen as often caused by the complexity of this task, the primary task ought always to be a comprehensive and conscious attempt to get at the truth and decide the real issues between the parties. The public and litigants in particular will never understand that if something adverse to a party can be proved by evidence to be different or untrue, they are prevented from doing so, and may lose, by esoterica steeped in legal tradition. Lawyers simply must find ways of adapting their practices and theses to the urgent and critical need for litigation to be carried on with this end in view, as speedily and economically as possible.
If Mr Gerber's affidavit is admitted, the respondent says that it should be given no weight as Mr Gerber is not independent and at arm's length. I take note of the respondent's point but also draw attention to the fact that strictly arm's length evidence may not be appropriate in a case where the task is the assessment of a particular person in a particular job in a particular factory. This could hardly be done by a total stranger unless at considerable expense and over long periods. The opportunity to cross examine Mr Gerber was refused. I admit his affidavit.
This then represents the evidentiary and decision-making scenario to which the applicant directs his attack. The first criticism is that the delegate "expressly failed or refused" to take into account seven critical facts, viz.

1. that the applicant cannot readily be replaced

2. that the loss of his services would have a major financial impact on his employer's business

3. that this will very likely result in serious financial losses that would otherwise not occur or be as extensive

4. that the least result of these occurrences is likely to be retrenchments of some employees

5. that there is a possibility of the whole business having to be closed, with a loss of 64 jobs, some, presumably most, of which are presently held by Australians, and a loss of the value of the shares of the shareholders who I assume are also Australians

6. that Australia will lose an import-competing or replacement industry and existing and potential exports

7. that some ill-health will be suffered by two Australians

The applicant did not argue, quite correctly on the evidence, that the delegate did not consider each of these matters. What is disputed is whether he took them into account. This gives rise to the question of whether findings of fact on such matters are reviewable.
In Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379 at 391, Mason C.J. counselled against "trespassing into the forbidden field of review on the merits". However, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 340-1, the Chief Justice said in this connection:

The next important question of principle is whether a finding of fact can amount to a reviewable decision and, if so, in what circumstances. The answer to the first part of this question does not present much difficulty. If the statute requires or authorizes the decision-maker to determine an issue of fact as an essential preliminary to the taking of ultimate action or the making of an ultimate order, then it would follow from what has already been said that the determination of the issue of fact would be a reviewable decision. ...

However, in ordinary circumstances, a finding of fact, including an inference drawn from primary facts, will not constitute a reviewable decision because it will be no more than a step along the way to an ultimate determination. Of course an ultimate determination which depends upon a finding of fact vitiated by error of law or made without evidence is reviewable: see s. 5(1)(f) and (h). In such a case the finding of fact may be challenged as an element in the review of the ultimate determination. But the point remains that ordinarily a finding of fact will not be susceptible to review independently of the ultimate decision.

It is thus apparently permissible to undertake an examination as to whether a decision is vitiated by an omission of considerations which are made relevant to the decision in question by reason of the "subject matter, scope and purpose of" the appropriate legislative enactment: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40. Here it is the regulation and the compassionate ground, specifically the expression "extreme hardship or irreparable prejudice", which determine relevance. Despite the policy guideline excluding purely economic non-familial concerns, it was not contended by the respondents here that any of the seven matters identified by the applicant are not relevant.
The respondents say that simply because some material in support of some elements of the compassionate ground are placed before the Minister does not bind him to grant an entry permit. Because section 33(3) of the Migration Act only requires him to do so "where it appears" to him that the applicant is so entitled, the implication is that he must merely consider the material presented. The respondents say that everything presented in support of this application was considered and a decision made that the relevant criteria of the compassionate ground were not established. Hardship, and presumably prejudice, were established but they were not respectively extreme and irreparable. The respondents contend that this provides no basis for judicial review or the operation of section 39B.
This dispute raises a quite fundamental question. In substance the applicant's argument is that where evidence is unchallenged and is believed or is not inherently unlikely, to take an argument "into account" means that it must or ought to be accepted. The Oxford Dictionary defines "to take into account" as "to take into consideration as an existing element, to notice". The Macquarie Dictionary defines it in terms of being a matter of "estimation" or "judgment".
The principles applicable to taking account of relevant considerations were discussed by Mason J. in Peko-Wallsend at 41ff. They and other cases on the point are usefully summarised in Flick: Federal Administrative Law at No. 3169. The concept is that all relevant matters must be taken into consideration in a real and conscientious way. Moreover, in Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180 at 184, Toohey J. when a member of this Court said:

In many cases it will be clear whether or not the decision-maker has taken a relevant consideration into account. That is not to say that the mere assertion by a decision-maker that he has done so will conclude the matter. It may be possible to demonstrate from a consideration of all the reasons leading to the decision, or indeed from the decision itself, that a consideration has not been taken into account in any real sense. Conversely the omission of an express reference to some consideration will not inevitably lead to the conclusion that it was not taken into account. An examination of the reasons for the decision and the decision itself may justify the inference that it was.

In Metropolitan Water Board v St Marylebone Assessment Committee (1923) 1 KB 86 at 99, Lord Hewart C.J. drew a distinction between taking account of figures in a mathematical calculation and "paying attention to a matter in the course of an intellectual process". In Stott v Sir William Arrol and Co. (1953) 2 QB 92, it was said that the words "There shall be taken into account ... rights" in the Law Reform (Personal Injuries) Act 1948 (c. 41) s.2(1), permitted the court to take into account rights accruing after the period of disablement. "Taken into account" in this sense meant no more than that the court had to make as accurate a valuation as it could of the rights to be taken into account: Flowers v George Wimpey and Co. (1956) 1 QB 73.
Thus the applicant's reasoning is that the delegate's failure to take the identified considerations into account is demonstrated by his refusal to find that, being accepted as facts, they amounted to or established the compassionate ground. This cannot be correct. The term "relevant" is not synonymous with "factually correct". In other words, an allegation of a failure to take relevant considerations into account cannot be used as a cover for challenging the factual correctness of the decision in question: Brunetto v Collector of Customs (1984) 4 FCR 92. Nor can a person aggrieved by a decision draw up a list of conceivably relevant matters and then complain that they were all rejected, in the sense of found not to establish a sufficient basis for a favourable decision, or that one of them was not specifically considered: Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363. It is also not a failure to take a relevant consideration into account per se if the decision-maker considers the matter differently to the way in which it was presented: Bastiani v Repatriation Commission (1985) 5 FCR 378 at 384.
So in this case, it is not a relevantly improper exercise of the power conferred by the regulation for the delegate to have considered the evidence presented at length, in many instances twice, and then to have decided, for example, that however capable and valuable to the business the applicant is, he is not irreplaceable, even in the medium term. To the contrary. A finding that he was so irreplaceable may well have been legally flawed; it is at best a colourful, even highly exaggerated, proposition.
Despite a significant volume of evidence and pleading, which must have taken some time respectively to compile and fashion, there was no evidence that any professional "headhunting" exercise has been undertaken or that any professional recruitment or employment agency in the public or private sector has been commissioned or contacted to try to find a suitable replacement. There was no evidence that even a single newspaper advertisement has been inserted to test the market place. Mrs Gorton said that it was no use advertising for someone to fill the applicant's position but her qualifications to make that technical assessment were not disclosed. Mr Gerber said that a replacement could only come from within the organisation but there was no evidence of whether there was now an assistant production manager, as the applicant had once been, or anyone else who had an interest in or a potential for the production manager's position. If not, Mr Gerber's proposition would mean that the whole task of replacement was impossible for the foreseeable future. This need not be accepted as the basis for a decision in this case.
Indeed the evidence on this whole subject seems to have appealed to the delegate, as it struck me, as general, speculative, even anecdotal - and overstated. If any of the people who wrote on this subject had been cross examined, they would in my view have been hardpressed to give facts, figures and examples to back their proposition of the applicant's virtual irreplaceability. In these circumstances, it does not, in my opinion, manifest an error of law, as opposed to a challengeable or disputable finding of fact, for the delegate to have concluded that the present or near future employment market, both within and outside Bambachs, may very well include a suitable person.
It is strange to me to find the delegate being criticised for failure to take into account the impact on Bambachs of the enforced absence of the applicant. The delegate accepted these facts. The company has been operating for the best part of 60 years. It was obviously a basically successful business, with some uniqueness, before the applicant joined it. Despite having being previously promoted at least twice during his nearly 4 years of employment at Bambachs prior to his appointment as production manager, the applicant still took 6 months to "come to grips" with the job and its requirements. In other words, he has been providing his valued and no doubt valuable managerial services for less than one and a half of Bambachs' 60 years. During that period, he has been of great assistance to the business. Although the applicant has naturally not been able to save the company from some adverse effects of the current recession, these effects may well and probably would have been worse if the applicant or a person with the applicant's abilities had not been there.
Far from failing to consider these matters and draw appropriate conclusions, it would have seemed to me to be stretching the facts more than a little if the delegate had concluded from them that if Bambachs collapses in a heap and shuts up shop, it will be because the applicant is not available to them as production manager. Obviously if it occurs, 64 people will lose their jobs and with them, at least for a time, their incomes, personal or family security, human dignity and personal esteem. Without incomes for lengthy periods, some may lose their homes and other possessions. The resulting financial stress, if prolonged, may break up marriages and impoverish families. It would have been outrageous if the delegate had decided that such happenings, if they occurred, would not amount to extreme hardship for these persons, at least for a time. He did not do so. What he decided was that the "refusal to grant the entry permit" being sought by the applicant would not bring about this hardship. This was not a failure to take these matters into consideration. It was a finding well open on the evidence. It is not tainted by illegality.
I recall in passing the earlier noted evidence, presented to the delegate, that the shareholders of the company would be financially better off, at least for the present, if the business closed and the factory was rented. In one sense this disposes of their supposed hardship if the applicant is deported. But there are other ways to examine their interests. No evidence was given of the present value of the shares. In fact no shareholders actually claimed financial hardship or prejudice. The delegate presumably assumed that the recession will end at some time. It would have been wrong for him to have done otherwise. He was not similarly bound to conclude that Bambachs will survive the recession, with or without the applicant. Indeed there was evidence that they may not. It is not unlikely that such a collapse may have adverse effects on everyone concerned, including the applicant, if he was there, who would then lose his job. Yet the evidence was that it would benefit the shareholders, presumably because there would be increased profits in applying the company's assets to other activities.

In these circumstances, there is no need to decide the second application for review of the refusal to permit the applicant to work pending this decision. Even if that refusal were legally flawed, there would be no basis to exercise in the applicant's favour the discretion to order relief. However, in case there is an appeal against this decision on the first application, I should not as yet dismiss the second application.
The first application is dismissed. The second application will be adjourned for mention on a date convenient to the parties and the Court in about one month.

[1991] FCA 585

25 SEPTEMBER 1991