Minister for Immigration Local Government & Ethnic Affairs v Kumar, M. & Govind, M

Re: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT and ETHNIC AFFAIRS
And: MAYUR KUMAR and MANJU GOVIND
No. N G572 of 1989
FED No. 227
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION Davies(1), Foster(2) and Hill(3) JJ.

CATCHWORDS

Administrative Law - immigration - natural justice - ministerial policy on illegal immigrants - departmental report - character of one consideration - whether relevantly prejudicial statement.

Administrative Decisions (Judicial Review) Act 1977 (Cth) Migration Act 1959 (Cth)

Kioa v West (1985) 159 CLR 550

R v MacKellar; ex parte Ratu (1977) 137 CLR 461

Salemi v MacKellar (No. 2) (1977) 137 CLR 396

Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502

Minister of State for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (unreported) Full Federal Court, 28 June 1989

Waniewska v Minister for Immigration, Local Government and Ethnic Affairs (1986) 70 ALR 284

Minister for Immigation Local Government and Ethic Affairs v Kurtovic (unreported) Full Federal Court, 7 February 1990

Taveli v Minister for Immigation, Local Goverbment and Ethnic Affairs (1989) 86 ALR 435

Giris Pty Ltd v Federal Commission of Taxation (1968-69) 119 CLR 365

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1985-86) 162 CLR 24

Minister for Immigration and Ethnic Affairs v Maitan (1988) 78 ALR 419

HEARING

SYDNEY

#DATE 31:5:1990

Counsel and Solicitors Mr P.S. Hastings
for Appellant: instructed by the Australian

Government Solicitor

Counsel and Solicitors Ms. C. Simpson QC and Mr. S. Gageler
for Respondents: instructed by Messrs Craddock Murray and Neuman

ORDER

The appeal be dismissed with costs.

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

JUDGE1

This appeal considers the decisions of Mr Tuong Quang Luu, then Director for New South Wales of the Department of Immigration, Local Government and Ethnic Affairs who, on 23 March 1989, confirmed decisions taken on 14 March 1989 that the first respondent, Mayur Kumar, be refused resident status, a temporary entry permit and the option of returning voluntarily to his homeland, Fiji, and that he be deported from Australia. There is no direct evidence of Mr Luu's reasons for decision. However, in the absence of evidence or any indication to the contrary, it may be inferred that Mr Luu agreed in substance with the submissions and recommendations dated 2 March 1989 which were put to him for his consideration by another officer, a Mr Davis.

In reviewing under the Administrative Decisions (Judicial Review) Act 1977 (Cth) a decision of an administrative nature, it is helpful to understand the context within which the decision was taken. I therefore turn to a matter which appears to have had a significant influence upon the decisions of Mr Luu.
On 17 October 1985, the Minister of State for Immigration, Local Government and Ethnic Affairs tabled in Parliament a policy with respect to illegal immigrants. That policy was influential thereafter in decision-making with respect to illegal immigrants, such as Mr Kumar. The policy was a public document. It concerned itself with persons who came to Australia without residency status and who, while not holding a temporary entry permit, sought residency status. This mischief, which may be spoken of colloquially as "queue jumping", was referred to in the policy as follows:-

"Australia has a planned migration program with selection processes carefully designed to balance the numbers that can be settled in various categories. Management of the program relies heavily on issuing visas and entry permits in good faith to bona fide applicants. Conditions of entry are specified at the time of visa issue and reaffirmed at the point of entry. No one can fairly claim to misunderstand their obligations.

Illegal immigrants (i.e. those people described in the Migration Act as 'prohibited non-citizens') threaten the orderly management of the program. They also jeopardise Australia's attitude to the acceptance of a very large number of visitors."

The policy took a firm stand against granting residency status to such persons, especially if they had been arrested while illegally in Australia. The policy stated:-

"'Overstayed visitors', whatever their reasons, are unlawfully in Australia. Their status of illegal immigrants or 'prohibited non-citizens' is of their own making and it must be recognised as such. ...

The ability of illegal immigrants to remain concealed in the community, and to support themselves by working - although without permission - or drawing upon cash benefits and various public services is sometimes portrayed as a virtue. Some illegal immigrants claim this as evidence of their ability to settle in Australia, which deserves a sympathetic response in the form of permission to live here permanently. The policy can give no such reward for offences under Australian law."

Moreover, persons who were deported after being arrested while illegally in Australia were to face another hurdle, that of a five years' wait before applying overseas for residency status. The policy stated:-

"In general, people who have been in Australia illegally would not readily be readmitted to Australia within the next several years. The general time limitations applied under this policy are:

. people who have been deported from Australia for any reason - five years from the date of their departure;"

and

"In the case of applications to remain made after apprehension, approval will be granted only in the most exceptional and compelling circumstances (e.g. where extreme hardship to an Australian citizen or permanent resident would flow from removal from Australia). A temporary separation and the cost arising from return home to apply for migration in the normal manner will not normally be regarded as mitigating circumstances accorded significant weight."

The policy outlined the following approach to be taken in the consideration of an application by an illegal migrant in Australia for residency status:-

"If a person illegally in Australia makes an application to remain in Australia, it will be accepted and processed specifically on the understanding that the policies outlined in this paper will be applied. ... ...

People who are in Australia illegally, whether they entered without authority or they overstayed their entry permits, will not readily be given permanent residence while they remain in Australia. Their breaches of immigration law and requirements will weigh heavily against them. In particular, in reaching a decision on an application to remain in Australia, the following circumstances (if they exist) will weigh heavily against the applicant: - the applicant entered Australia unlawfully; - the applicant, although entering Australia lawfully, violated conditions of entry, such as working without permission; - the applicant misled the Minister or an officer in obtaining a visa or entry permit e.g. fraudulent documents or false information of a material kind; - the applicant avoided contact with, or ceased contact with, the Department of Immigration and Ethnic Affairs, or in the case of overseas students, with the Overseas Students Office, and came to notice because of the applicant's illegal status; - the period of illegal residence by the applicant; - the applicant has improperly drawn upon Government cash benefits or other services e.g. social welfare payments, Medicare, free or subsidised adult migrant education programme; - the applicant has committed offences against Australian laws (apart from becoming a prohibited non-citizen or illegal immigrant). Changed circumstances advanced in support of an application to remain (e.g. development of ties in Australia), but which arose or developed after the expiry of an entry permit, normally will be given little weight."

Mr Kumar fell within the terms of the policy for he had come to Australia on a visitor's visa on 8 October 1987. He had been granted a temporary entry permit valid for one month, endorsed "Employment Prohibited without Written Permission of an Authorised Officer". In fact, Mr Kumar came to Australia wishing to be a resident, not a visitor. He applied on 20 October 1987 for the grant of residency status because of what he said were "strong compassionate and humanitarian grounds", mainly the then current political and social situation in Fiji. Mr Kumar's application for the grant of residency status was refused as was a subsequent appeal to an Immigration Review Panel. Mr Kumar remained in Australia after the expiration of his temporary entry permit and became a prohibited non-citizen whose presence in Australia was unlawful. He was in continuous employment. On several occasions, he was requested to leave Australia voluntarily. On 20 February 1989, Mr Kumar was arrested and was held pending consideration of his deportation. He again sought residency status, this time on an additional ground, namely his relationship with the second respondent, Manju Govind. In accordance with the policy on illegal immigrants, Mr Luu refused the application and ordered that Mr Kumar be deported from Australia.
In his submission to Mr Luu, Mr Davis listed a number of factors favouring the grant of resident status including:-

"Mr Kumar is the husband of an Australian permanent resident. The marriage is claimed by Mr Kumar and Ms Govind to have been intended by them for some time prior to Mr Kumar's arrest and in fact they claim to have become engaged in Fiji. There is nothing to suggest that Mr Kumar's relationship with Ms Govind is anything other than genuine. ...

If Mr Kumar's application is refused, and he is required to leave Australia both he and Ms Govind would suffer emotional hardship through the separation. Additionally, Ms Govind claims that her life is here in Australia and she would not wish to have to join him in Fiji."

It may be noted, though it is not an issue in the appeal, that these paragraphs appear to understate the hardship that would be caused to Ms Govind, who had fled from Fiji with her brother, the former Mr Justice Govind of the Supreme Court of Fiji, after the overturning of the Government by force. Her prospects of a happy marriage in Fiji were slight, as her husband's family had rejected her on religious grounds. She was faced with returning to Fiji where she was not welcome or with being parted from her husband for five years or more until he gained residency status in Australia. The understatement presumably reflected the policy that changed circumstances which arose or developed after the expiry of an entry permit should normally be given little weight.

Mr Davis' submission set out the following factors, inter alia, weighing against the grant of resident status:-

"- Whilst there is no reason to doubt the relationship between Mr Kumar and Ms Govind, they maintained that relationship without any legitimate expectation that Mr Kumar, at first a visitor and then a prohibited non-citizen, would gain an automatic right of residence in Australia as a result of their marriage. - Although involved in their relationship for over three years, they had not previously disclosed its existence to the Department. Through their solicitor they claimed they were engaged in Fiji, but Mr Kumar did not disclose the existence of their engagement in any previous dealings with the Department. - Ms Govind had ample opportunity to encourage Mr Kumar to return to Fiji and be sponsored back by her in the normal way as her fiancee. - Mr Kumar had not lodged any application for consideration of further stay in Australia prior to his arrest. - Mr Kumar was working in Australia without permission and had, by his own admission, obtained his employment by deception. - Mr Kumar attempted to deceive and mislead officers of the Department at the time of his location by claiming he was not working and that Ms Konstantinidis resided at that residence. - Mr Kumar had been previously instructed on several occasions to depart Australia but had chosen to disregard those instructions. - Ms Govind would not suffer financially if Mr Kumar were required to depart Australia."

As this statement of factors demonstrates, Mr Davis and Mr Luu did not turn their minds positively to the question whether, had Mr Kumar not been an illegal immigrant, Mr Kumar's application for resident status on the basis of his relationship with Ms Govind would have been granted. The factors listed do not suggest that Mr Kumar's application did not meet the ordinary criteria for the grant of resident status, apart from the special policy on illegal migrants.
One would feel happier with decisions such as those taken by Mr Luu if the decision-maker had been prepared to say that, although the application met the ordinary criteria for the grant of resident status, such an application by an illegal immigrant would be granted "only in the most exceptional and compelling circumstances" and that exceptional and compelling circumstances were not proven. The reasoning process actually adopted, reflecting Ministerial policy, proceeded rather on the footing that the factors listed as weighing against the application were weightier than the factors favouring the grant of the application. But this was not so unless the listed factors were read and given weight in the light of the Ministerial policy.
Nevertheless, the only matter now in issue is whether the trial Judge was correct in concluding that there had been a breach of the principles of procedural fairness in that certain matters were not brought to the applicants' attention. The two matters that his Honour thought flawed the decisions both involved the one paragraph of the factors set out above:-

"Ms Govind had ample opportunity to encourage Mr Kumar to return to Fiji and be sponsored back by her in the normal way as her fiancee."

The trial Judge thought that these matters would have taken Mr Kumar and Ms Govind by surprise and that they had not had an opportunity to deal with the allegations which had not been brought to their attention for comment.

I need not deal at length with the principles of natural justice which were considered in Kioa and Ors v. West and Anor (1985) 159 CLR 550. In the present case, it is the content of the principles of natural justice that is of importance. The general principle is clear. At p 585, Mason J. said:-

"In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case."

At pp 586-7, Mason J. referred to the need to give the person affected an opportunity to be heard:-

"... where the reasons for the making of the order travel beyond the fact that the person concerned is a prohibited immigrant and those reasons are personal to him, as, e.g., where they relate to his conduct, health, or associations.

...

In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it. F.A.I. (1982) 151 CLR 342 is one illustration. Cole v. Cunningham (1983) 49 ALR 123, is another, as are Reg. v. Gaming Board for Great Britain; Ex parte Benaim and Khaida (1970) 2 BQ 417, at p 431; and Daganayasi v. Minister of Immigration v. Minister for Immigration (1980) 2 NZLR 130."

At pp 628, Brennan J. said:-

"A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v. Government of Malaya (1962) AC 322, at p 337; Ridge v. Baldwin (1964) AC, at pp 113-114 per Lord Morris; De Verteuil v. Knaggs (1918) AC, at pp 560, 561. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made."

The concept of procedural fairness is not fixed or rigid but takes account of the need for effective decision-making. One must have regard to the nature and purpose of the decision-making power. See Kioa's case at p 586 per Mason J., p 624 per Brennan J. And also of the particular circumstances of the matter. See Kioa's case at pp 584-5 per Mason J., at p 612 per Brennan J. and at p 633 per Deane J. In a case such as the present, the principles of justice did not require the granting to the affected persons of a formal hearing, as to which see e.g., Jeffs and Ors v. New Zealand Dairy Production and Marketing Board and Ors (1967) 1 AC 551 at 568-9, or the disclosure to them of all material which the decision-maker may have taken into account, as to which see, e.g., R. v. Secretary of State for the Home Department; Ex parte Mughal (1974) 1 QB 313. Thus, and the contrary was not alleged, Mr Kumar and Ms Govind were given a fair opportunity to deal with the general issue.
There was no general breach of the principle of audi alteram partem, the right to be heard. Cf. Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487. Nor is it alleged that matters set out in the challenged paragraphs were not relevant, as to which see, e.g. Shrimpton v. The Commonwealth and Anor (1945) 69 CLR 613, or were not supported by material which was before the decision-maker, as to which see e.g. Television Capricornia Pty Ltd v. Australian Broadcasting Tribunal and Ors (1986) 70 ALR 147 at pp 150-1 or that the material upon which the paragraph was based came from information supplied by a person other than Mr Kumar or Ms Govind, and for that reason ought to have been disclosed to them, cf. Bread Manufacturers of New South Wales and Ors v. Evans and Ors (1981) 38 ALR 93. It is therefore necessary to consider whether the challenged matter had some particular aspect about it that required that, if it be considered at all, it be brought to the attention of Mr Kumar and Ms Govind so that they could comment thereon.
In Kioa's case, Mason J. mentioned at pp 586-7, "reasons ... personal to him, as, e.g. where they relate to his conduct, health, or associations.", at p 587 the "critical issue or factor" and at p 588, a paragraph which was "extremely prejudicial". At p 602, Wilson J. said that that paragraph, which concerned Mr Kioa's involvement with other persons, was "clearly prejudicial". At p 629 Brennan J. said that the allegation was "credible, relevant and damaging". At p 633, Deane J. referred to "matters which are not already obvious."
In my opinion, none of these descriptions is apposite to the paragraph with which we are concerned. The subject paragraph simply reflected that which, having regard to the Ministerial policy, was the known critical factor, namely, Mr Kumar's status in Australia as a prohibited non-citizen.
Although the subject paragraph referred to Ms Govind, it did not raise a significant aspect of Ms Govind's personal conduct. The paragraph merely pointed out that the proper course would have been for Mr Kumar to return to Fiji and be sponsored back in the ordinary way, making his application outside Australia and not in Australia as a "queue jumper". The paragraph did not use that term but expressed the matter not very helpfully by reference to "ample opportunity to encourage". The point made was that the position of Ms Govind as well as that of Mr Kumar was weakened by Mr Kumar's status, having regard to the Ministerial policy. Mr Kumar and Ms Govind could not have been surprised by that.

Although the subject paragraph was listed under adverse factors, and expressed by reference to Ms Govind, the paragraph did not go to Ms Govind's personal qualities, for they were not challenged, but simply to the point, already stated in the first paragraph in a different way, that Ms Govind had maintained a relationship with a person whose stay in Australia was contrary to the Migration Act and to Ministerial policy.
A person such as Mr Kumar who breaks the immigration rules of the country to which migration is sought must expect that his position will be considered on the footing that he has done so. Mr Kumar and Ms Govind should not have been surprised about that, particularly as they had solicitors acting for them who would have been aware of the Ministerial policy on illegal immigrants. And Ms Govind must have been aware that, in a consideration of her position, the inference would be likely to be drawn that she was aware of Mr Kumar's status in Australia and that her awareness of it would weaken the weight given to her circumstances.
I am satisfied that the paragraph, although expressed enigmatically, did not raise any significant point that had not already been dealt with in the communications between officers of the Department on the one hand and Mr Kumar, Ms Govind and their solicitors on the other and that the principles of natural justice did not require that any further step be taken in respect thereof. Any difficulty with the paragraph arises, not from procedural unfairness, but from the fact that Mr Davis' submission was drawn in the light of and reflected the Ministerial policy. I have already dealt with that point and need say no more about it.
For these reasons, I would allow the appeal.
For the reasons given by my brother Hill J., I would not uphold notice of contention.
I would make the following orders:-

i. That the appeal be allowed and that the notice of contention be dismissed. ii. That the orders below be set aside and that in lieu thereof it be ordered that the application to the Federal Court be dismissed with costs. iii. That the Respondents pay the costs of the appeal.

JUDGE2

The appellant appeals from a decision of Beaumont J. by which his Honour set aside certain decisions of Mr Luu, Director for New South Wales of the Department of Immigration, Local Government and Ethnic Affairs (the "Department") and delegate of the Minister. Those decisions were that the first respondent, Mayur Kumar, be refused either resident status or a temporary entry permit, and that he be deported from Australia without being granted the option of voluntary return to his country of origin, Fiji. Mr Luu made these decisions after receiving, in the usual way, written submissions and recommendations from another departmental officer, Mr Davis. These were made in a document dated 2 March 1989. Mr Luu has furnished no written reasons for his decisions. It has, accordingly, been assumed throughout that he accepted the reasons advanced by Mr Davis against the granting of Mr Kumar's applications.

The essential facts would appear to be as follows. The first respondent and the second respondent, Ms Govind, were both, in 1987, citizens of and resident in Fiji. It does not appear to be disputed that they were engaged to be married; there were, however, some family and cultural difficulties involved which had not been resolved and which were causing postponement of the marriage. The second respondent came to Australia in 1987 with her family after her elder brother, who was a Supreme Court Judge in Fiji, had resigned his judicial position after the first military coup in that country. Ms Govind was in fact granted an entry permit, unlimited as to time, otherwise described as a permanent entry permit, on 21 June 1988. The first respondent followed her from Fiji to Australia, arriving shortly after her. Although he came to Australia with a visitor's visa which resulted in his being granted, on his arrival, a temporary entry permit for one month, he clearly came not as an intending short term visitor but with the hope of obtaining residence by making a suitable application after his arrival. It appears that he was in the travel industry in Fiji and is an educated man with some understanding of this country's immigration requirements and procedures.
Pursuant to this intention and within the period of his temporary entry permit he made application on 20 October 1987, pursuant to s 6A(1)(e) of the Migration Act 1958 ("the Act"), for the grant of a permanent entry permit on "strong compassionate or humanitarian grounds". In his application he also sought permission to work in Australia, this being forbidden by the terms of his temporary entry permit. This application was unsuccessful and an appeal to the Immigration Review Panel was also unsuccessful. The dismissal of this appeal occurred on 1 March 1988. Thereafter, letters were sent to the first respondent seeking advice from him as to his departure arrangements from Australia. It appears that on 3 and 4 May 1988 the first respondent provided information by telephone that he intended to marry the second respondent who, by then, had received provisional approval for permanent residence in Australia. Nothing further was heard in this regard and in July and September 1988 further letters were forwarded to the respondent seeking advice regarding his departure from Australia. These letters did not evoke any reply. In fact, the first respondent, who was by then a "prohibited non-citizen", had illegally taken up employment and was endeavouring to keep out of the way of the immigration authorities. He was living with his fiancee and, no doubt, hoping for the best. He was ultimately found by the enforcement section of the Department on 20 February 1989. He was arrested pursuant to s 38 of the Act as a "prohibited non-citizen". After arrest, on 22 February 1989 he applied once again for permanent resident status. Two days later he married the second respondent, who, as already indicated, had been granted permanent resident status.
On 14 March 1989 the first respondent's applications were refused. On 16 March 1989, the respondents made application to this Court under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
The proceedings were heard by Beaumont J. Many matters were argued on behalf of the respondents. They succeeded in respect of only one argument. Before turning to this, it is convenient to set out certain other matters by way of background. In the first place it is apparent that the decision made by Mr Luu was significantly guided by ministerial policy in relation to illegal immigrants. This policy was contained in a public document which had been tabled in Parliament on 17 October 1985 by the Minister. It spoke of Australia having "a planned migration program with selection processes carefully designed to balance the numbers that can be settled in various categories". It stated that "illegal immigrants (i.e. those people described in the Migration Act as 'prohibited non-citizens') threaten the orderly management of the program". The object of the policy was clear, namely: to prevent "queue-jumping" by rendering it extremely difficult for persons illegally present in Australia to make successful applications for permanent residence at what would be the expense of persons applying overseas through the proper channels. Various matters were set out as "weighing heavily" against applicants who were illegally in Australia and it was particularly noted that "changed circumstances advanced in support of an application to remain (e.g. development of ties in Australia), but which arose or developed after the expiry of an entry permit, normally will be given little weight".
It is clear that the first respondent inevitably fell foul of the policy in many respects. He had violated conditions of his entry permit in working without permission. He had avoided contact with the Department. He had also enjoyed a lengthy period of illegal residence. These and other matters were the subject of unfavourable comment in the report by Mr Davis to Mr Luu.
Another aspect of the policy had a clear bearing upon the case. It read as follows:

"In general, people who have been in Australia illegally would not readily be readmitted to Australia within the next several years. The general time limitations applied under this policy are:

people who have been deported from Australia for any reason - five years from the date of their departure;..."

and,

"In the case of applications to remain made after apprehension, approval will be granted only in the most exceptional and compelling circumstances (e.g. where extreme hardship to an Australian citizen or permanent resident would flow from removal from Australia). A temporary separation and the cost arising from return home to apply for migration in the normal manner will not normally be regarded as mitigating circumstances accorded significant weight."

It is clear that the first respondent made it known to the authorities that if his application for permanent residence status made after his arrest was not to be acceded to, then he particularly sought that he might be allowed the option of voluntary departure rather than face deportation with its five year penalty period. This request was made in the context that the second respondent, now his wife, could not , for good and sufficient reason, return to Fiji with him. It was also, of course, made in the context that he had been previously offered the voluntary departure option but had not availed himself of it, choosing rather to cease contact with the Department.
Mr Davis's report to Mr Luu set out in detail a large number of factual matters which were not in dispute. It then provided for the assistance of the decision-maker what was described as an "assessment". This made reference to the policy on illegal immigrants. It then made reference to factors in favour of the grant of residence status. These included the fact of the marriage which had taken place between the first and second respondents, together with an indication that there was nothing to suggest that the relationship between the two was "anything other than genuine". It was also indicated (inter alia) that the second respondent and her family supported the application and that if the respondent were required to leave Australia both the first and the second respondent "would suffer emotional hardship through the separation".
There followed the list of factors, to which I have already made reference, weighing against the grant of the application. They raised many matters which were the subject of decision by Beaumont J. The only statement in this list which led to a finding favourable to the respondents was the following:-

"Ms Govind (the second respondent) had ample opportunity to encourage Mr Kumar (the first respondent) to return to Fiji and be sponsored back by her in the normal way as her fiance."

It was conceded that this matter was a factor taken into account in Mr Luu's decision. It was further conceded that it was a matter that had never been put to either the first or second respondent so that they might respond to it. His Honour found that the failure to do so amounted to a denial of procedural fairness. His Honour said:-

"In my opinion, the matter was relevant material prejudicial to the first applicant. It was referred to by Mr Davis as weighing against the first applicant and it appears to have been relied upon by the decision-maker in arriving at a decision adverse to the first applicant. The first applicant was not the source of the material and had no means of knowing that this matter might be taken into account by the Department against him. The material concerned the first applicant personally. Yet he was given no opportunity to deal with it. The consequence must be that, to this extent, the first applicant was denied procedural fairness. It must follow that, prima facie, the decisions now challenged ought to be set aside."

It is submitted by the present appellant that, in so finding, Beaumont J. fell into error. Before turning to the substance of this submission, I should refer to the recommendations made by Mr Davis to Mr Luu. They were that he should:-

(i) refuse the grant of resident status,

(ii) refuse the application for a further temporary entry permit,

(iii) refuse the concession of a voluntary departure,

(iv) order the deportation of the applicant.

It is clear, in my view, that Mr Davis was putting forward the material set out above as something to be given weight in relation to all these recommendations, including the refusal of the concession of a voluntary departure.
The appellants submit that Beaumont J. erred in characterising this part of the assessment as being material which, consistent with authority, should have been brought to the attention of the respondents in order that they might have the opportunity of dealing with it. It was submitted that the material was, in truth no more than a bland description of a procedural alternative which, at all times, would have been known to the respondents as being available to them. It was further put that the respondents, by dint of their educational background, were not persons in respect of whom it could be said that it was incumbent upon the Department to ensure that they were aware of and understood the nature of available procedures. Moreover, it was put that they were at relevant times represented by experienced lawyers. If all this were so, there could be no doubt, in my view, that no relevant procedural unfairness would have occurred through a failure to bring to their attention this aspect of Mr Davis's report.
However, I am satisfied that the statement is far more than a mere reference to a procedural alternative of which, at all times, the respondents might be taken to have been aware. It contains, in my opinion, a clear criticism of the second respondent which is intended to be taken into account by the decision-maker in evaluating hardship which might be occasioned to her if either the application by her husband for permanent residence or the application for voluntary departure was not granted. The portions of the policy to which I have already made reference speak of "extreme hardship to an Australian...permanent resident" as being a "compelling circumstance" for consideration in relation to an application by an illegal immigrant. Mr Davis's statement quite clearly suggests that it was in her hands to mitigate her hardship by taking the course suggested and that she had had "ample opportunity" to do so. Accordingly, so the argument clearly runs, no significant weight should be given to any hardship occasioned to her should her husband be taken from her by deportation, even though that would involve a separation of, at the very least, five years.
Even if the factors weighing against the application for permanent residence were too onerous to permit it being granted, the hardship of the second respondent flowing from the inevitable separation would obviously be reduced if the concession of voluntary departure were granted. In my view, she was entitled to be heard in answer to the rather glib assumption in the statement that she had culpably failed to encourage her fiance to go back to Fiji and seek a sponsored return to Australia. Reasons that might have existed and which could have been put to the decision-maker, such as cost and the like, were suggested in argument. There is no need to speculate about them. It is sufficient that a serious risk of prejudice be shown. I consider that it was and that the learned trial Judge was not in error.
I do not find it necessary in these reasons to enter into a discussion of the authorities which have been fully discussed by my brethren in their judgments. Once the statement is seen in its true character as being pejorative and not merely expository, then it follows that a reasonable opportunity should have been accorded to the respondents to answer it. It being conceded that no such opportunity was given, there is, in my view, a breach of the rules of natural justice. It has not been suggested that, if this be so, the trial Judge erred in some discretionary way in making the order that he did.
Accordingly I propose that the appeal be dismissed with costs.
As to the notice of contention, I agree that it should not be upheld for the reasons given by Hill J.

JUDGE3

The Minister for Immigration, Local Government and Ethnic Affairs ("the appellant") appeals from the judgment of a judge of this Court which judgment set aside certain decisions of the appellant on the basis that the appellant had denied to the respondents, Mayur Kumar (the first respondent) and Manju Govind (the second respondent) procedural fairness in making that decision. The respondents filed a notice of contention submitting that his Honour had erred in failing to find that the appellant had misdirected himself as to the true construction of ss.6A and 7(2) of the Migration Act 1958 ("the Act").

Background

The first respondent, a citizen of Fiji, arrived in Australia on 8 October 1987 and was, on arrival, granted a temporary entry permit pursuant to s.6(6) of the Act authorising him to remain in Australia for a period of one month. That permit was granted on condition that the applicant not seek employment in Australia without permission.
On 20 October 1987 the first respondent applied for an entry permit pursuant to s.6A(1)(e) of the Act on the basis that, being the holder of a temporary entry permit in force, there were "strong compassionate or humanitarian grounds" for the grant of a permanent entry permit. He also sought permission to engage in employment in Australia. His application for an entry permit was refused as also was his application for permission to work and the first respondent thereafter unsuccessfully appealed to the Immigration Review Panel. Notwithstanding the refusal of his application to commence employment, the first respondent in fact sought and obtained employment without permission. He was arrested on 20 February 1989, pursuant to s.38 of the Act, he then being a "prohibited non-citizen". On 22 February 1989 he made further application for an entry permit and two days later married the second respondent who was also a Fijian citizen but who had been granted an entry permit unlimited as to time (colloquially referred to as a permanent entry permit) on 21 June 1988. The first respondent's application for an entry permit was refused on 14 March 1989 and the appellant determined that he should be deported. An application was thereupon made to this Court under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for a review of those decisions. A request that the first respondent's application for residency in Australia be reconsidered, having regard to the marriage of the first respondent to the second respondent, was also rejected on 23 March 1989 and the application for judicial review was amended to provide for review of that later decision as well.
There were, as his Honour observed, very many grounds upon which judicial review was sought in the application to this Court. All but one of those grounds were ultimately rejected by his Honour. It is unnecessary for the purposes of the present appeal to canvass the numerous matters raised by the respondents and dealt with by his Honour in the judgment. For the purposes of disposing of the appellant's appeal it is necessary to consider only the one matter in respect of which the respondents were successful.
It was common ground that the decisions of the Minister were based upon a report dated 2 March 1989 of Mr Davis, an officer of the Department, which report was agreed to by both Mr Downie, the Regional Director, Southern Region and by Mr Luu, the Director for New South Wales and delegate of the Minister who made the decisions under review.

The report, after setting out a number of facts not in dispute and the material upon which the findings of fact were based continued in paragraphs 23 and 24 as follows:

"23. The factors in favour of the grant of resident status are:

- (The first respondent) is the husband of an Australian permanent resident. The marriage is claimed by (the respondents) to have been intended by them for some time prior to (the first respondent's) arrest and in fact they claim to have become engaged in Fiji. There is nothing to suggest that (the first respondent's) relationship with (the second respondent) is anything other than genuine. - (The second respondent) strongly supports (the first respondent's) application. - If (the first respondent's) application is refused, and he is required to leave Australia both he and (the second respondent) would suffer emotional hardship through the separation. Additionally, (the second respondent) claims that her life is here in Australia and she would not wish to have to join him in Fiji. - (The second respondent's) family in Australia support the application and would be saddened if (the first respondent) had to leave.

- (The first respondent) likes Australia and feels there is more scope and future for him here. He would find it hard to find employment in Fiji, and the standard of living has decreased. Because of this (the first respondent) believes he will be a burden on his Fijian family if he has to return to Fiji. - (The first respondent's) solicitors have claimed that by marrying into (the) former

(judge's) family he may be identified as having 'anti-regime sentiments' and this may expose him to adverse attention from the Fijian authorities.

24. However weighed against the above factors in favour of the grant of resident status, you may also consider that; - Whilst there is no reason to doubt the relationship between (the respondents), they maintained that relationship without any legitimate expectation that (the first respondent), at first a visitor and then a prohibited non-citizen, would gain an automatic right of residence in Australia as a result of their marriage. - Although involved in their relationship for over three years, they had not previously disclosed its existence to the Department. Through their solicitor they claimed they were engaged in Fiji, but (the first respondent) did not disclose the existence of their engagement in any previous dealings with the Department. - (The second respondent) had ample opportunity to encourage (the first respondent) to return to Fiji and be sponsored back by her in the normal way as her fiancee.

- (The first respondent) had not lodged any application for consideration of further stay in Australia prior to his arrest. - (The first respondent) was working in Australia without permission and had, by his own admission, obtained his employment by deception.

- (The first respondent) attempted to deceive and mislead officers of the Department at the time of his location by claiming he was not working and that Ms Konstantinidis resided at that residence. - (The first respondent) had been previously instructed on several occasions to depart Australia but had chosen to disregard those instructions.

- (The second respondent) would not suffer financially if (the first respondent) were required to depart Australia. - Although claiming that as a result of his marriage he may experience adverse attention from the regime in Fiji, he has provided no evidence as to what form this 'adverse attention' may take, or indeed that he is in fact in a position of adverse notice. He has not claimed any particular political affiliation nor has he claimed to have experienced any persecution or human rights abuses in the past."

The report considered as well the question whether the first respondent should be permitted to depart voluntarily from Australia as against an order of deportation and made the submission that in view, inter alia, of the factors outlined in paragraph 24 that it was inappropriate to again offer such a concession. The recommendation of the report was in the following terms:

"If you accept the findings on material questions of fact, and the assessment set out above, it is recommended that you:

i) Refuse the grant of Resident Status ii) Refuse the application for a further TEP (temporary entry permit) iii) Refuse the concession of a voluntary departure

iv) Order the deportation of (the first respondent)"

The confirmation of the decision made on 23 March 1989 was preceded by a report from a Mr Smith, Client Services Southern Region which report recommended that the previous decision be maintained. It was accepted that the decision so to do made by Mr Luu was in part at least dependent upon the original recommendations of Mr Davis.
The Decision Below as to the Denial of Natural Justice
It was submitted to his Honour that the appellant should have given the first respondent the opportunity to answer the allegations made in paragraph 24 that the second respondent "had ample opportunity to encourage the first respondent to return to Fiji and be sponsored back by her in the normal way as her fiancee". This was a matter, it was said, that was credible, relevant and damaging and the failure to put it to the first respondent meant, it was submitted, that the appellant had denied to the first respondent procedural fairness by not giving him the opportunity to deal with the matter. This submission was upheld and in so doing his Honour said:

"In my opinion, the matter was relevant material prejudicial to the first applicant. It was referred to by Mr Davis as weighing against the first applicant and it appears to have been relied upon by the decision-maker in arriving at a decision adverse to the first applicant. The first applicant was not the source of the material and had no means of knowing that this matter might be taken into account by the Department against him. The material concerned the first applicant personally. Yet he was given no opportunity to deal with it. The consequence must be that, to this extent, the first applicant was denied procedural fairness. It must follow that, prima facie, the decisions now challenged out to be set aside."

Ultimately his Honour considered and rejected a submission that as a matter of discretion, judicial review should not be granted and accordingly set aside the decisions in question and remitted the matter to the appellant for reconsideration in accordance with law.
Following the decision of the High Court in Kioa v. West (1985) 159 CLR 550, it can no longer be doubted, as a general proposition, that the requirements of natural justice or procedural fairness apply to the appellant's consideration of whether or not to deport a person from Australia. It is necessary to examine in some detail the facts of that decision and the reasoning adopted by the members of the High Court as both sides relied upon what was said in that case in support of the submissions made by them.
Mr Kioa, a citizen of Tonga, had entered Australia on a temporary entry permit valid for three months. His wife and daughter subsequently arrived in Australia and were also granted temporary entry permits. After Mr Kioa's entry permit had expired he applied for a further extension of his temporary entry permit but as a result of a change of address was initially unaware of the response to his application. Mr Kioa remained in Australia, commenced employment and was subsequently arrested. In the meantime a second child had been born to Mr and Mrs Kioa in Australia. His application for an extension of the temporary entry permit was ultimately refused and a decision was made for both his wife and him to be deported, their children to accompany them at Commonwealth expense. This decision was made on the basis of a report reproduced at p 573 of the judgment which contained, inter alia, the following two paragraphs:

"21. If Mr Kioa had been genuine in his desire (in Dec 1981) to seek a legitimate extension of his stay, it would have appeared likely that he might have sought a decision on his application rather than change his address without apparently notifying the Department. Then when his wife's TEP expired around the time of the Tongan cyclone no attempt was made to lodge a formal application to regularise their status...

22. Mr Kioa's alleged concern for other Tongan illegal immigrants in Australia and his active involvement with other persons who were seeking to circumvent Australia's immigration law must be a source of concern."

The Court was divided on whether the amendments to the law made in consequence of the introduction of the Administrative Decisions (Judicial Review) Act 1977 brought about the result that the ordinary rules of procedural fairness should be applied. Mason, Wilson, Brennan and Deane JJ. were of the view that the Administrative Decisions (Judicial Review) Act 1977 did have that effect; Gibbs C.J. dissented on this point. Accordingly the decision in R v. MacKellar; Ex parte Ratu (1977) 137 CLR 461 applying Salemi v. MacKellar (No 2) (1977) 137 CLR 396, which had held that the power conferred by s.18 of the Migration Act to deport, as in force at the times material to those decisions, was not subject to the general duty to observe the principles of natural justice, was not followed.
Gibbs C.J. was of the view that if the rules of natural justice were applicable there was no breach of them in the case before the Court. His Honour said at 569:

"If the rules of natural justice were applicable, the appellants were entitled to a fair opportunity to correct or contradict any relevant material prejudicial to them: National Companies and Securities Commission v. News Corporation Ltd

(1984) 156 CLR at pp 314-6. That does not mean that the Minister or the delegate, having received material which the appellants wished to put before him, was required to let them see, and comment on, the Department's adverse comments on that material. This case in my opinion bears no analogy to a case in which misconduct is alleged against a person who has no knowledge of the allegation."

In his Honour's view, on the facts, the officer had made his disapproval of the conduct of the illegal immigrants, with whom Mr Kioa had admittedly been involved, plain and the matters referred to in paragraph 22 were not referred to in the statement of reasons as matters affecting the delegate's decision. Commenting on paragraph 22 his Honour said at 570:

"Even if (contrary to my opinion) the nature of the contents of par. 22 was such that the appellants should have been given an opportunity to answer them, it cannot be said that there was a risk of prejudice once it is accepted that the comment in para.22 did not in fact form one of the reasons for the delegate's decision."

His Honour made no reference to the matters referred to in para.21 at all.

Mason J. expressed the fundamental rule of the common law doctrine of natural justice in the following terms at 582:

"...generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it..."

In considering the application of that doctrine to the discretionary power of deportation conferred by s.18 his Honour stressed that it was going too far to state that fairness requires in all cases that notice be given to the prohibited immigrant of the intention to make an order and of the grounds on which it is to be made. However, his Honour went on to say at 586-7:

"But it may be otherwise where the reasons for the making of the order travel beyond the fact that the person concerned is a prohibited immigrant and those reasons are personal to him, as, e.g., where they relate to his conduct, health or associations. And if the order is made in consequence of a refusal to grant a further entry permit to him, the reasons on which that refusal is based may require that as a matter of fairness the person affected should have the chance of responding to them. ... In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter."

His Honour indicated that both paragraphs 21 and 22 of the report were examples of matters in respect of which fairness demanded that the applicant should have the chance of replying. So far as paragraph 21 is concerned, his Honour's reasons rather suggest that it was the matter concerning change of address without notification to the Department which gave substance to his Honour's decision.

Wilson J., having determined that it was open to the appellants to seek a review of the deportation orders on the ground that a breach of the rules of natural justice had occurred, expressed the view that save with respect to paragraph 22 there could be no room for complaint of unfairness in the procedures followed by the Minister. His Honour however was of the view that procedural fairness would require that an allegation of the kind set out in paragraph 22 be put to the appellants and that they be given an opportunity to answer it before a decision was made. That course not having been followed, his Honour was of the view that the deportation order should be set aside.
Brennan J., after determining that a decision-maker must adopt a fair procedure having regard to the matters he is bound to take into account or proposes to take into account, expressed the view that with the exception of paragraph 22 such a fair hearing had been undertaken by the decision-maker. Dealing with that paragraph his Honour said at 628:

"A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Cander v. Government of Malaya (1962) AC 322 at p 337; Ridge v. Baldwin (1964) AC at p 113-4 per Lord Morris; Deverteuil v. Knaggs

(1918) AC at pp 560, 561. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed ... Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. The allegation in par.22 was apparently credible, relevant and damaging. The failure to give Mr Kioa an opportunity to deal with it before making an order that Mr and Mrs Kioa be deported left the risk of prejudice which ought to have been removed.... The failure to give Mr Kioa that opportunity amounts to a non-observance of the principles of natural justice."

Deane J. was of the opinion that Mr and Mrs Kioa were entitled to be given the opportunity to be heard and in particular the opportunity of dealing with the matters raised against them including the matters raised in both paragraphs 21 and 22. The failure to extend to them the opportunity of dealing with the matters raised by these paragraphs had the consequence that the decision was invalidated.
It is clear from Kioa and from the decisions which have thereafter followed that case, e.g. Sinnathamby v. Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502; Minister of State for Immigration, Local Government and Ethnic Affairs v. Pashmforoosh (unreported) Full Federal Court (Davies, Burchett and Lee JJ.) 28 June 1989, that not all matters which are adverse to the person affected by the decision need be put to that person. For example if the adverse matter itself comes to the attention of the decision-maker from the applicant himself there is no obligation upon the decision-maker to inform the applicant that that material might result in his forming a conclusion adverse to the applicant (Sinnathamby), and confidential matters contained in a decision-maker's file, as in Pashmforoosh, need not be disclosed to an applicant.
Cases where the requirements of natural justice or procedural fairness require that a matter be put to a person the subject of a deportation order may be illustrated by Kioa in its application to paragraph 22 and in a number of more recent decisions.
For example, in Waniewska v. Minister for Immigration, Local Government and Ethnic Affairs (1986) 70 ALR 284 Keely J. set aside a decision to deport the applicant because of the failure of the delegate in that case to give the applicant an opportunity to deal with the suggestion that she was not a bona fide visitor before making the adverse finding that that was the fact. There was nothing in the circumstances of the case to lead the applicant to anticipate that the delegate would draw the inference that she was not a bona fide visitor. Accordingly, his Honour held that this inference was, in the words of Brennan J. in Kioa "relevant and damaging" (p 297).
Again, in Minister for Immigration, Local Government and Ethnic Affairs v. Kurtovic (unreported) Full Federal Court 7 February 1990, each member of the Court held that a deportation order issued against the respondent should be set aside on the ground that the respondent had been denied procedural fairness by the Minister. In exercising his discretionary power to deport the respondent, the Minister took into account, and gave weight to, certain matters adverse to the respondent contained in reports prepared by officers of the Parole Service of New South Wales and the New South Wales Prison Medical Service. Neither these reports nor the substance of their contents had been made available to the respondent by the New South Wales Parole Board. Consistently with what was said in Kioa's case the Court found the appellant's conduct to be a breach of procedural fairness in that the respondent ought to have been given an opportunity to respond to the adverse matters in the reports (per Neaves J. at 8-9; per Ryan J. at 16 and per Gummow J. at 40-43). To the same effect is the decision of Wilcox J. in Taveli v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 86 ALR 435 where the decision of the delegate was set aside because it was based inter alia upon a submission that the applicant in that case, Mr Faka'osi had been located after his apprehension by New South Wales police at a hotel brawl. In fact Mr Faka'osi was in no way at all involved in the brawl. That case is presently upon appeal to the Full Court of this Court, but the subject matter of that appeal does not affect the present principle.

For the appellant it was submitted that the matter in paragraph 24 of the submission relating to the first respondent returning to Fiji and being sponsored back by the second respondent was simply a reference to a procedural alternative available to the first respondent, which was implicit in the circumstances of the application made by him whilst in custody in Australia as a prohibited non-citizen. It was said that the first respondent was not in any way a disadvantaged person, that he spoke English, had worked in Australia, had been employed as a travel consultant in Fiji and therefore was presumably familiar with immigration requirements and had been represented initially by an immigration agent and thereafter by a firm of solicitors with expertise in immigration law. It was submitted that the matter taken into account was intrinsic to the circumstances of the first respondent and there was no duty to inform him that it might result in a conclusion adverse to him.
It was accepted by all parties to the appeal that the matter not put to the first respondent was a matter taken into account by the decision-maker in making his decision. It was submitted for the respondents and denied by the appellant, that the matter under challenge was "credible, relevant and significant to the decision to be made".
As is obvious from the foregoing analysis of the judgments in Kioa, all the members of the Court were of the view that not every matter that was taken into account adversely against a person subject to deportation needed to be put to that person. It is of course not to the point in determining whether a matter is required to be put to a person that that person may ultimately have no answer to it. It is the failure to give the person the opportunity to be heard that constitutes the breach of procedural fairness, not the question whether that person does in fact have an answer to the adverse matter which might affect the decision.
It is necessary to examine what precisely was meant by Mr Davis in the relevant part of paragraph 24.
The first possible meaning is merely a statement of fact, namely that the first respondent had not taken an opportunity available to him to return to Fiji and make application there with the sponsorship of his wife to return to Australia. The decision-maker does not seem to have turned his mind to the question whether if such an application had been made it would have been approved, but that was not a matter relied upon by any party. If that is all that the relevant passage entails, it is hard to see that it would be a breach of procedural fairness if it was not put to the first respondent. It would be a matter of fact known from the outset to the first respondent and inherent in the situation in which he found himself. Indeed, there would be no point in having it put to the first respondent because nothing at all could be said against it as a matter of fact. So read, the relevant paragraph is but a reflection of the policy apparent in the Act itself and expressly stated in a document entitled "Policy on Illegal Immigrants" which was tendered in the case. That policy favours those prepared to wait overseas and go through the normal selection process as against those who "abuse Australia's immigration policy and laws at the expense of those waiting overseas or at the expense of unemployed Australian residents".
If that is all the paragraph means then it is, further, hard to see that it is, in the sense used by Mason J. (as he then was) in Kioa a matter personal to the applicant. It is a matter relevant to the applicant and inherent in his situation but not personal to him in the same sense as the suggestion that he had participated in a brawl was personal to Mr Faka'osi in Taveli, or the fact that in Kioa, Mr Kioa had encouraged other illegal immigrants.
However, the paragraph is not expressed in the form merely of a statement of fact. It is expressed in a form that seeks rather to disparage the second respondent, implying that while she had the opportunity to encourage proper conduct on the part of the first respondent she had not done so. I have some doubt as to the relevance of such a matter to the decision made by the decision-maker but it must be recalled that it appears among a catalogue of matters which Mr Davis regarded as adverse and appears in his recommendation which recommendation was ultimately adopted by the decision-maker. If seen as a matter disparaging to the second respondent and reflecting therefore upon the first respondent it stands in a quite different category to the paragraph as first interpreted.
The first interpretation is rather similar to that involved in paragraph 21 in Kioa which the majority of the Court did not regard as a matter necessary to be put to the deportee in that case. On the second interpretation however, the matter in the paragraph is not such that it can be said that there could be no possible point in putting it to the first respondent. The first respondent may well have been able to have given some explanation as to the conduct of the second respondent which could have put a quite different complexion upon the matter. In this sense it is, in the language of Mason J., a matter "truly personal" and not a matter that arose from the source of the first respondent himself or one that was inherent in his situation. Since it may be inferred to have been taken into account by the adoption of the submission, it is a matter which must be taken to have been prejudicial to the first respondent and by the adoption of the submission regarded by the decision-maker at least as both credible and relevant.
While the present case seems to me to be somewhat of a borderline one, it must be recalled that underlying the notion of procedural fairness is not the question whether the failure to put the matter in a case such as the present in fact creates prejudice, but rather whether there is a real risk of prejudice which should be removed.
Accordingly I would disallow the appellant's appeal.
The Notice of Contention
The respondents' argument in respect of the notice of contention was not easy to comprehend.
It was submitted that the form completed by the first respondent in connection with his application for resident status in Australia directed attention to the matters in s.6A of the Act and did not permit the first respondent to put matters in connection with the real issue to be decided by the decision-maker, that is to say the matters going to the general discretion contained in s.6(2) of the Act. By virtue of the form being so limited, it was said, that the focus of the decision-maker was similarly limited so that the decision-maker had as a result committed an error of law by relying upon an erroneous construction of the provisions of ss.6A and 7(2) of the Act.
To understand the submission it is necessary to comment briefly on the relevant statutory context pursuant to which the submission is made. Division 1 of the Act is concerned with entry permits. The Act contemplates that there are two classes of entry permits, a temporary entry permit, which, in accordance with s.6(6) authorises the person to whom it relates to remain in Australia for a specified period only (such a permit may be granted subject to conditions); and other entry permits which by implication are not temporary entry permits and therefore do not expire. The latter form of entry permit is apparently colloquially referred to as a permit granting permanent resident status although this appellation does not appear in the Act.
Section 6(2) is a general provision conferring a discretion upon an officer to grant to a non-citizen an entry permit. The Act does not seek to limit in any way the matters to be considered by the officer in exercising that discretion and the discretion conferred upon the officer is untrammelled save that it must be exercised having regard to the policy and purpose of the Act: cf Giris Pty Ltd v. Federal Commissioner of Taxation (1968-69) 119 CLR 365 at 384, Minister for Aboriginal Affairs v. Peko Wallsend Ltd (1985-86) 162 CLR 24 at 39-40 and cases there cited. Applying these principles Beaumont and Gummow JJ. in Minister for Immigration and Ethnic Affairs v. Maitan (1988) 78 ALR 419 at 428 expressed the view that the discretion under s.6(2) was to be exercised in the light of what in the judgment of the Minister is in the best interests of Australia. As their Honours said at 428:

"In deciding what is in the public interest the Minister will need to balance the competing claims of possible advantage on the one hand and of possible detriment on the other so far as the national interest is concerned."

Section 7(2) of the Act provides that at any time while a temporary entry permit is in force or after its expiration or cancellation a further entry permit may be granted. That section likewise does not seek to confine in express terms the discretion conferred.
Section 6A, which qualifies both ss.6 and 7, provides that an entry permit is not to be granted to a person who is a non-citizen after his entry into Australia unless in respect of that person one or other of the conditions referred to in paragraphs (a) to (e) is satisfied. Those paragraphs include cases of territorial asylum, refugee status, strong compassionate or humanitarian grounds as well as the case where the person in question is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit.
The obvious purpose of s.6A, when read together with ss.6(2) and 7(2) is to ensure, in the case of a person who has entered into Australia, that the entry permit to be granted under s.6(2) (or to the extent to which s.7(2) provides an independent power to grant an entry permit that section) will be granted only if at least one of the grounds referred to in s.6A has been made out. Thus in the case of a person in the position of the first respondent who is in Australia and seeks to apply for an entry permit, that person must first satisfy the provisions of s.6A before the discretion under s.6(2) is exercised. Not surprisingly therefore, it is customary to refer to an applicant for an entry permit who makes his application in Australia as applying on one of the grounds referred to in s.6A although that may be said to be technically incorrect in that, at least in form, s.6A is expressed as a disqualifying clause by the use of the word "unless" rather than as a qualifying clause. However, its substantial effect is as a qualifying clause although ultimately the application will be determined under s.6(2).
There are passages in the application form, which in accordance with the evidence, was said to be the standard form for use for applicants applying for resident status in Australia and said from the bar table to be used only for persons applying in Australia and not for persons who apply outside Australia. The form proceeds on the basis that the applicant is asked to produce information in support of his grounds for application in terms of the language used in s.6A.
However, it must be noted that the form is quite comprehensive. It requires details to be submitted of a personal nature, details concerning the background of the applicant, details in respect of marriage if the marriage ground in s.6A is relied upon, details in respect of occupational status (not directly a ground in s.6A but no doubt relevant to a discretion under s.6(2)), matters to be urged in respect of strong compassionate humanitarian grounds if that ground in s.6A is to be adopted and so on. It may further be noted that in section 6 to the form there appear three questions under the heading "Further Information - All Questions Must Be Answered". The first of those questions is in the following form "Is there any information (not included elsewhere in this form and attachments) which you think is relevant to your application?" The applicant is required to answer "yes" or "no" and is then told that if he has answered "yes" he is to attach a detailed statement in relation to each question and list in Part H of the form. Part H of the form is provided to enable a person to attach additional material or statements in support of his application.
In my view the respondents' submission fails at the outset because the form on its face clearly indicates that it is not confined merely to the matters referred to in s.6A. Indeed the applicant is given the opportunity to put any matter which he believes to be relevant to his application and that of course would include matters relevant to the exercise of discretion under s.6(2).
It is impossible to infer from a study of the form that the decision-maker was in any way restricting the ambit of his consideration merely to those matters referred to in s.6A. The use of the form does in no way suggest that the decision-maker erred in construing the provisions of ss.6(2), 6A or 7(2) and accordingly in my opinion his Honour was correct in rejecting this argument below.
In the result I would dismiss the appeal with costs.

[1990] FCA 227

31 MAY 1990