Muslowie, O.a. v Minister for Immigration & Ethnic Affairs

Re: OFER ABRAHAM MUSLOWIE
And: CHRISTOPHER HURFORD as MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS OF THE
COMMONWEALTH OF AUSTRALIA
No. G302 of 1986
Administrative Law (Judicial Review) - Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.

CATCHWORDS

Administrative Law (Judicial Review) - immigration - decision to deport applicant on basis marriage to Australian citizen not ongoing - whether unreasonable - evidence of passport stamped with entry permit and later purportedly cancelled - whether decision-maker failed to take into account as relevant consideration.

Immigration - whether unreasonable decision that marriage to Australian citizen not ongoing - whether evidence of stamping of passport with entry permit and purported cancellation failure to take into account relevant consideration.

HEARING

SYDNEY

#DATE 22:8:1986

Counsel and Solicitors for Applicant: Mr. K.V. Taylor instructed by Allen Allen & Hemsley.

Counsel and Solicitors for Respondent: Mr. J.J. McGrath instructed by Australian Government Solicitor.

ORDER

The deportation order dated 10 July 1986 be set aside.

Liberty is reserved to any party to apply on three days' notice.

Costs reserved.

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

JUDGE1

The applicant, a citizen of Israel who entered Australia on 14 December 1982, seeks judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 of a number of decisions made by delegates of the respondent under the Migration Act 1958, including a decision made on 10 July 1986 that the applicant be deported.

Before describing the facts, it is necessary to refer to the relevant legislative scheme. The entry, presence and deportations of persons who are not Australian citizens (non-citizens) is dealt with by Part II of the Migration Act. A non-citizen who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited non-citizen (s.6(1)). An officer may, at the request and with the consent of a non-citizen, grant to the non-citizen an entry permit (s.6(2)). An entry permit shall be in a form approved by the Minister and shall be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both (s.6(3)). For the purpose of s.6(3), where a notation in a form approved by the Minister as a form of entry permit is made by an officer in a passport or other document of identity held by a person and the notation does not specify the name of any person as the person to whom it relates, the notation has effect as if it were expressed to relate to the person holding the passport or other document (s.6(4)). An entry permit may be granted to a non-citizen either upon his arrival in Australia or, subject to s.6A, after he has entered Australia (s.6(5)).
An entry permit that is intended to operate as a temporary entry permit shall be expressed to authorize the person to whom it relates to remain in Australia for a specified period only, and such a permit may be granted subject to conditions (s.6(6)). A clear distinction is thus drawn between a temporary entry permit on the one hand and a permanent entry permit on the other.
A permanent entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled:

(a) he has been granted territorial asylum in Australia;

(b) he is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit;

(c) he is the holder of a temporary entry permit which is in force and the Minister has determined that he has the status of refugee;

(d) he is the holder of a temporary entry permit which is in force, is authorized to work in Australia and is not a prescribed non-citizen; or

(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him.

(s.6A(1)).

An entry permit shall not be granted to a non-citizen in respect of whom the condition specified in s.6A(1)(a) is fulfilled (whether or not any other condition specified in s.6A(1) is also fulfilled in respect of him) otherwise than by the Minister (s.6A(2)).
In s.6A a reference to an entry permit shall be read as a reference to an entry permit other than a temporary entry permit (i.e. a permanent entry permit) (s.6A(8)).
The Minister may, in his absolute discretion, cancel a temporary entry permit at any time by writing under his hand (s.7(1)). While a temporary entry permit is in force or after the expiration or cancellation of a temporary entry permit, a further entry permit may, at the request of the holder, be granted to the holder (s.7(2)). Upon the expiration or cancellation of a temporary entry permit, the holder of the permit becomes a prohibited non-citizen unless a further entry permit comes into force upon that expiration or cancellation (s.7(3)).
A person who has become a prohibited non-citizen ceases to be a prohibited non-citizen if and when an entry permit or further entry permit is granted to him, and not otherwise (s.10).
The Minister may order the deportation of a person who is a prohibited non-citizen under any provision of the Migration Act (s.18).
There was no contest on the facts. As has been noted, the applicant is an Israeli citizen. He was born in Haifa on 7 December 1965. On leaving school at the age of 15 years, he served in the Israeli navy as a metal welder for 18 months in 1981 and 1982. He entered Australia on 14 December 1982 pursuant to a visitor's visa endorsed on his Israeli passport. On entry, the applicant was granted a temporary entry permit valid for two months, subject to the condition that he was prohibited from accepting employment without the written permission of an authorised officer.
On 27 January 1983, the applicant applied for a further temporary entry permit. The background to this application was that his mother, Ms. Galia Aviv, also an Israeli citizen, had divorced the applicant's father and had agreed to marry an Australian citizen, Mr. Joseph Hakim. It was proposed that, on her re-marriage, Ms. Aviv would live permanently in Australia. She planned to arrive here for this purpose in February 1983. The applicant sought a further temporary entry permit so that he could attend his mother's wedding.
It seems that Ms. Aviv's proposed departure to Australia was postponed for some months. A telex received on 9 February 1983 from the Tel Aviv office of the Department of Immigration at its Canberra office said:

"M40 SPONSORSHIP FORM FOR A/N'S (the applicant's) MOTHER GALIA AVIV RECENTLY RECEIVED FROM YOUR OFFICE. MS AVIV SCHEDULED FOR SELECTION INTERVIEW ON 15.02.83. MIGRANT PROCESSING WILL NOT BE COMPLETED UNTIL MID-MARCH.

2. A/N WAS ISSUED RESTRICTION AS MILITARY PERMISSION REQUIRED HIM TO RETURN TO ISRAEL ON 15.02.83. MR. MUSLOWIE IS SUBJECT TO ISRAEL ARMED FORCES DRAFT UPON RETURN.

3. NO OBJECTION TO APPROVAL IF A/N HAS RECEIVED NECESSARY PERMISSION TO EXTEND STAY FROM ISRAELI AUTHORITIES."

A further telex from the Tel Aviv office to the Canberra office dated 18 February 1983 said:

"MOTHER OF A/N AT FIANCEE INTERVIEW STATED SON WAITING IN AUSTRALIA FOR HER ARRIVAL AND PERHAPS REPEAT PERHAPS WILL RETURN TO ISRAEL IN TWELVE MONTHS TIME.

2. SUGGEST IN CIRCUMSTANCES AND BECAUSE OF HIS AGE THAT OFER BE FULLY PROCESSED RESIDENT STATUS AND RESULTS CABLED HERE WHEN AVAILABLE."

On 23 April 1983, before the respondent had given a decision on the applicant's application for a temporary entry permit, the applicant made an application to the respondent for a permanent permit to remain in Australia pursuant to s.6A(1)(b).
On 27 July 1983, Mr. J.R. Tuchin, Acting Director of Operations and Information Services Division wrote to Ms. Jeanette McHugh, M.P.:

"I am writing in reply to your representations made on behalf of Mr. Joseph Hakim of 14 Lang Road, Centennial Park, concerning the entry of his fiancee, Galia Aviv and the application for resident status of Ofer Muslowie.

I am pleased to advise that both Mrs Aviv and her son, Ofer have now met all requirements.

The Australian Embassy in Tel Aviv has been requested to issue Mrs Aviv and her family with visas to allow them to travel to Australia.

Mr Muslowie will be granted resident status after his mother has arrived in Australia and her status has been regularised following her marriage to Mr Hakim.

Mr Muslowie's passport has been endorsed with a further temporary entry permit to 30 December 1983 and has been returned direct to him."

The evidence does not indicate whether Ms. McHugh in fact communicated this message to her constituent. However, it is reasonable to infer that she did so and that Ms. Aviv or Mr. Hakim so informed the applicant.
On 31 July 1983, Ms. Aviv entered Australia pursuant to a temporary entry permit. On 23 October 1983, she married Mr. Hakim.
In September 1983, the applicant met, and subsequently agreed to marry, Ms. Ingrid Wohl, an Australian citizen. On 21 February 1984, the applicant and Ms. Wohl were married in Sydney.
On 10 January 1984, two notations under the Migration Act were made in the applicant's Israeli passport. The first notation was a temporary entry permit authorising the applicant to remain in Australia until 11 January 1984, subject to a prohibition of employment without the written permission of an authorised officer. The second notation permitted the applicant to remain in Australia for residence (i.e. permanently). I was informed during the hearing that the reason for the first notation, which purported to permit the applicant to remain here for one day only, was to enable the grant, pursuant to s.6A(1), of a permit to remain in Australia (i.e. permanently). It was suggested that this procedure envisaged the application of para.(e) of s.6A(1). It is not clear why, in the circumstances, para.(b) of s.6A(1) was not thought to be available except if the view were taken that the applicant, having attained the age of 18 years, was no longer the "child" of Ms. Aviv (see In Re Carlton (1945) 1 Ch 372; In Re EF (1948) SASR 97 at p 101).
It appears that, at about this time, Ms. Aviv was also granted permission to remain in Australia pursuant to s.6A(1). However, Ms. Aviv's marriage to Mr. Hakim was not successful and they separated towards the end of 1983.
On 12 January 1984, the officer in charge of the Department's residence section wrote a note dealing with Ms. Aviv's application to another officer, Mr. H. Blume, as follows:

"Applicant (Ms. Aviv) has advised Mr. Anderson her marriage is finished and she is returning home ASAP. Her two sons are expected to leave with her, their PR (i.e. permanent resident status) being dependent on her. She has indicated she wishes to leave ASAP.

Please cancel entry permits and TEP's (i.e. temporary entry permits) 'issued in error' and re-issue TEP's held until 12/2/84."

On 12 January 1984, Mr. Blume wrote the words "stamped in error" between two parallel handwritten lines on the temporary entry permit and the permanent entry permit granted to the applicant. On the same day, Mr. Blume spoke to Ms. Aviv and returned her passport, informing her that her permanent entry permit and her temporary entry permit had been cancelled and that she should return her passport if she wished to extend her temporary entry permit up to the time of her departure.
It will be recalled that, although s.7 contains a power to cancel a temporary entry permit granted pursuant to s.6(6), , there is no statutory power to cancel a permit to remain in Australia permanently granted pursuant to s.6A(1) (see Minister for Immigration and Ethnic Affairs v. Gaillard (1983) 49 ALR 277 per Neaves J. at p 287).
Although the applicant did not give evidence in the proceedings, there is no suggestion that he was informed of the Department's intention to cancel his permits. In particular, he was given no opportunity to be heard on the point.
On 3 March 1984, Ms. Aviv departed Australia.
On 2 July 1984, the applicant made a further application for a permit to remain in Australia permanently pursuant to s.6A(1). On this occasion, his application was grounded on the applicant's status as the husband of an Australian citizen resident here.
Difficulties arose in the applicant's marriage. On a number of occasions, he and his wife separated, though they were reconciled from time to time.
The Department considered the applicant's applications towards the end of 1985 and in early 1986. At this time, the applicant furnished the Department with statutory declarations giving his optimistic version of the condition of his marriage relationship. His wife, on the other hand, provided the Department with a statutory declaration to the effect that she had separated from the applicant in December 1985, that the marriage had broken down irretrievably, that she no longer wished to support his application for permission to remain in Australia and that she would be suing for divorce.
On 15 January 1986, an officer of the Department prepared the following report on the applications:

"A/N (the applicant) entered A/A (Australia) on 14/12/82 on a two month 'only' visitor visa...Purpose of visit was to visit his mother's fiancee. Mother's name Galia AVIV. Applied for COS (change of status) on 23/4/83 under 6A(1)(b) on basis of being dependant child of Galia AVIV...Galia AVIV entered A/A on K1041 RC5 visa on 31/7/83. She married but the marriage broken down. She advised the department she wished to leave the country ASAP...File confirms her departure on 3/3/86. Residence had been approved for applicant but he had not been given his passport with 'D' stamp. (A "D" stamp evidences a permit to remain in Australia)

Applicant applied for COS under 6A(1)(b) on basis of marriage to Ingrid WOHL an Australian citizen on 2/7/84....Ingrid WOHL has advised the Department in a statutory declaration that the marriage has broken down and that she no longer supports his application for residence.

Recommended.

That application for COS be rejected. Applicant has not met legal requirement under 6A(1)(b) with respect to his application of 23/4/83. His mother is not a permanent resident of Australia. With respect to his application of 2/7/84 applicant does not satisfy the policy requirement that the marriage relied upon be ongoing. His spouse, Ingrid WOHL has withdrawn her support for his application

Applicant has not presented any claims that would constitute strong compassionate grounds within the meaning of s.6A(1)(e) of the Act."

This recommendation was endorsed by Mr. R. Sharkey, assistant director of the Department's residence section, by a report dated 20 January 1986:

"A/N is not the minor child of an Aust. resident - both parents are resident overseas (as are his two siblings).

A/N's marriage to Ingrid Wohl has broken down - irretrievably...and she has withdrawn her support for his COS app. No strong compassionate reasons have been advanced for the C.O.R.S. under 6Al(e). Application refused."

By letter written by Mr. Sharkey dated 13 February 1986, the applicant was informed that his applications for permission to remain in Australia had been rejected and that he should make arrangements to depart Australia. The letter stated that "(u)nder present law and policy a change of status to resident may be granted in exceptional circumstances but generally only to people who can demonstrate a marked change in their circumstances since their arrival in Australia." Mr. Sharkey then set out the provisions of s.6A and proceeded:

"There was no evidence before me to suggest that you fulfilled either s6A(1)(a) or S6A(1)(c) of the Migration Act as outlined above. Furthermore your entry into Australia as a visitor on a temporary entry permit without permission to work precludes you from consideration under s6A(1)(d). I therefore considered your case under the law and policy relating to grant of resident status under S6A(10(b) and S6A(1)(e).

In your application of 23 April 1983 you put forward as your grounds for consideration the fact that you were the dependent child of an Australian resident. As you are not the dependent child of an Australian permanent resident you do not satisfy the legal requirement under 6A(1)(b).

In your application of 2 July 1984 you put forward as your grounds for consideration your marriage to Ingrid Wohl an Australian citizen. As the spouse of an Australian citizen you satisfied the legal requirement under S6A(1)(b) of the Migration Act. However, the policy in relation to such cases requires that the marriage relied upon be ongoing.

Ingrid Wohl has advised the Department in a Statutory Declaration that your marriage has broken down irretrievably. She no longer supports your application for permanent residence. I am therefore unable to conclude that your marriage is ongoing.

Furthermore, after carefully considering the information on file, I am unable to determine that you have advanced any claims that would constitute strong compassionate grounds within the meaning of 6A(1)(e) of the Migration Act.

I also gave consideration to whether the application of normal policy was appropriate in your particular case but I decided that there were no features of the case which indicated that the application of normal policy would be unreasonable or unjust. I therefore decided to reject your application."

In May 1986, the applicant made further representations to the Department for the grant of a permit to remain in Australia. Officers of the Department conducted a further assessment of the matter. By a report dated 7 July 1986, Mr. A.Nicholl, assistant director of the Department's enforcement section, recommended against the grant of a resident entry permit and further recommended deportation. Mr. Nicholl's assessment was expressed as follows:

"ASSESSMENT

14. Mr. Muslowie is a prohibited non-citizen pursuant to Section 7(3) of the Migration Act 1958. He has committed offences against the Act by becoming a prohibited non-citizen and by working without the written permission of an authorised officer.

15. On 17 October 1985 the Minister for Immigration and Ethnic Affairs tabled in Parliament a comprehensive policy on illegal immigrants. In summary the policy stated among other things that it is in the public interest to ensure that persons abide by normal migration selection procedures and do not queue-jump by entering or remaining illegally in Australia to the detriment of prospective migrants who abide by the procedures. Presence of such queue-jumpers is inimical to Government control of migration Programs as well as impacting upon job availability for legal residents. Their breaches of immigration law will weigh heavily against them and when located they should expect to bear the fullweight of the law and face the prospect of deportation.

16 Mr. Muslowie first made application for Permanent resident status on 23 April

1983. At the time Mr. Muslowie was a minor and a dependent of Ms Galia Aviv who was awaiting permission to migrate to Australia and marry her fiance Joseph Hakim.

17. On 31 July 1983 Galia Aviv arrived in Australia and on 23 October 1983 she married Joseph Hakim. The marriage broke down before Ms Aviv was granted resident status and she left Australia on 3 March 1984.

18. On 1 July 1984 Mr Muslowie again applied for resident status, on this occasion on the grounds of marriage to an Australian Citizen, Ingrid Wohl. The marriage broke down and the applications for resident status received 23 April 1983 and 1 July 1984 were rejected on 20 January 1986 as they failed to fulfil the legal precondition and policy considerations respectively. The decision maker, after considering the information on file, was unable to determine that he had advanced any claims that would constitute showing compassionate grounds within the meaning of 6A(1)(e) of the Act.

19. Since his applications have been refused Mr Muslowie has made a number of representations to the Department to the effect that he was hopeful his marriage could be saved. However his wife has indicated their marriage has irretrievably broken down and she no longer wanted to have anything to do with him.

20. To regularise his status Mr Muslowie could apply for a further TEP. He has not done so nor has he provided any circumstances that would indicate such an application if made would meet with approval under existing temporary entry policy."

On 8 July 1986, Mr. E. Joseph, director of the respondent's Immigration branch, agreed with Mr. Nicholl's recommendation. On 10 July 1986, Mr. Tuchin, as the Department's acting director for the region of New South Wales, signed a deportation order as the respondent's delegate.
On 14 July 1986, the applicant made a further application for resident status under s.6A(1)(b). In support of that application, he provided the Department with a statutory declaration from his wife dated 14 July 1986 in which she stated, inter alia, that they had reconciled and that she wished again to sponsor his application to remain in Australia. This evidence was corroborated by statutory declarations provided by others.
On 16 July 1986, an officer of the Department reported by way of assessment of the application. After reciting the history of the matter, the officer said that he was not convinced that the relationship between the applicant and his wife had been "ongoing" since June 1986. The assessment proceeded:

"Mr. Muslowie's Deportation Order was made out for circumstances which now have changed. Whilst Ms. Wohl and Mr. Muslowie claim they are together in a lasting relationship, there are flaws in their claims as illustrated above. Mr. Muslowie has been without a TEP since 14.2.1983. He has been working without authority. He avoided contact with the Department after he was instructed to depart in February 1986. He only came forward in May 1986. Ms Wohl claims that if her husband were required to undertake normal migrant processing overseas (she is prepared to sponsor him) he would be liable for military service of 3 years. I do not accept that his obligation for Military service (a law of the land) constitutes undue hardship as it is a requirement for all citizens (of this age group) of Israel. Whilst Ms Wohl could be free to join her husband in Israel during any forced separation, she has expressed a view that she would not wish to leave her father, her closest relative in Australia in order to join her husband in Israel.

In May 1986, Mr. Muslowie said he did not have funds to pay for his departure. At that time, his wife did not support his application to remain in Australia. She now supports his continued stay in Australia.

Whilst Mr. Muslowie satisfies the legal requirement for the grant of resident status under s6A(1)(b), from the information before me I am not satisfied that he satisfies all the policy requirements. In addition he has committed breaches of immigration law by working without permission and avoiding contact with the Department after being advised to make departure arrangements.

I gave consideration to whether the application of normal policy in this case was appropriate and decided there were no features of the case to indicate that the application of policy would be unreasonable or unjust.

As applicant is unable to satisfy the policy requirements for grant of resident status, I recommend rejection."

On 16 July 1986, Mr. Nicholl, senior assistant director of the immigration branch, supported these recommendations. On 21 July 1986, Messrs Joseph and Tuchin concurred.
By his application for judicial review, the applicant seeks to review the following decisions: (1) the decision made on 20 January 1986 refusing his application for resident status dated 23 April 1983; (2) the decision made on 20 January 1986 refusing his application for resident status dated 2 July 1984; (3) the decision to deport made on 10 July 1986.
The grounds for review relied on by the applicant are first, that the decision-maker failed to take into account a relevant consideration, viz. that, on 10 January 1984, the applicant had been granted a permit to remain in Australia (see Judicial Review Act s.5(1)(e) and (2)(b)); and secondly, that the exercise on behalf of the respondent of the powers here in question was so unreasonable that no reasonable person could have so exercised the powers.
It should be noted that the applicant sought to reserve, for other proceedings if necessary, any challenge to the decisions in question by relying on two additional grounds: (1) that the purported cancellation of his permit to remain in Australia was void as beyond power in that the power of cancellation contained in s.7 extended to temporary entry permits only; thus, it was said, the permit to remain in Australia stood with the consequences that the applicant was not a prohibited non-citizen and the power to deport contained in s.18 was not available (see Judicial Review Act, s.5(1)(d); and as to whether there is any inherent power to cancel a permanent entry permit see Ex parte Renouf (1924) 24 SR 463 per Street ACJ. at pp 466-7; see also Ex parte Little (1962) NSWR 471; and as to whether such a permit may be granted without delivery to the applicant see Koon Wing Lau v. Caldwell (1949) 80 CLR 533 at pp 568, 574 and 591; Ex parte Lee Yum Bo; Re Morony (1964) 6 FLR 235; and see the definitions of "entry permit" and "the holder" in s.5(1) and see s.6(2); cf. s.11(1)); alternatively, (2) that in purporting to cancel the permit to remain in Australia, the respondent failed to observe the rules of natural justice by affording the applicant a reasonable opportunity to be heard, with the consequence that the cancellation was void and the power to deport under s.18 was not available (see Judicial Review Act s.5(1)(a) and (d); and see Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321; Salemi v. MacKellar (1977) 137 CLR 396 per Stephen J. at p 439).
I turn now to the applicant's first argument that the respondent failed to take into account a relevant consideration, viz., the grant to the applicant on 10 January 1984 of a permanent entry permit pursuant to s.6A(1). As I understood it, the argument assumed, for present purposes, that the permit was no longer subsisting, either because it was not validly granted (presumably by reason of a change of circumstances (see Halsbury's Laws of England, 4th ed., vol. 4, pp 480-1; Zamir v. Secretary of State for the Home Department (1983) 2 WLR 321) or because the permit was never issued to the applicant (see below), accepting that there can be no estoppel here (see Brickwords Ltd. v. Warringah Corporation (1963) 108 CLR per Windeyer J. at pp 477-9). The applicant's contention is that, even if the permanent entry permit were not validly granted or were validly revoked, the fact that it was purportedly granted was a relevant matter to be taken into account at least in deciding to order the applicant's deportation.
In Minister for Aboriginal Affairs v. Peko-Wallsend Limited, High Court of Australia, unreported, 31 July 1986, the High Court considered the failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision as an instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action (see, for example, per Mason J. at pp.12-13). For this purpose it may be accepted that the discretion conferred by s.18 is a broad one. But in Minister for Immigration and Ethnic Affairs v. Tagle (1983) 48 ALR 567, it was held that an order under that provision should be set aside because, inter alia, the Minister failed to take into account a relevant consideration in the form of a letter written by a non-citizen seeking a temporary entry permit (see per Sweeney and Woodward JJ. at p.573; per Fitzgerald J. at p.575).
In my opinion, the present case is stronger than Tagle. It is true that mention is made in the Departmental assessment of 15 January 1986 of the grant to the applicant of the permanent entry permit on 10 January 1986. But the permit is there treated as having no more than historical significance. Certainly, it was accorded no substantive weight in favour of the applicant. The subsequent, and decisive, treatment of the applicant's position makes no reference to the grant of the permit. In particular, no reference to its grant is to be found in Mr. Sharkey's letter of 13 February 1986. Likewise, Mr. Nicholl's report dated 7 July 1986 and the subsequent assessment made on 16 July 1986 are silent on the question.
In my view, the fact that such a permit had been purportedly granted (even if technically speaking, invalid - a matter I leave open for present purposes) was a most important and perhaps even fundamental consideration in deciding to deport the applicant (cf. Re Hunt; Ex parte Sean Investments Pty. Ltd. (1979) 53 ALJR 552 per Mason J. at p 554). This is especially so when the matter is viewed in the context that, in the previous year, the applicant had been informed, through Ms. McHugh, that his application for resident status had been successful. In other words, this is not a case of the Department merely seeking to correct an internal administrative slip which was never known to the applicant. Rather it is a case of the applicant being informed, through Ms. McHugh, that he was to be granted a permanent entry permit and the permit subsequently being granted but being sought to be withdrawn because of a supervening event.
The grant of the permit, whatever its legal efficacy, was a significant matter which should have been taken into consideration when deciding whether to deport the applicant. It was ignored for that purpose, and the decision to deport should be judicially reviewed.
It is not necessary to deal with the applicant's second argument, viz., that the powers here employed were exercised "unreasonably".
I propose to set aside the deportation order. In the circumstances, it is not appropriate that I express any view on the efficacy of the purported cancellation of the applicant's permanent entry permit or on the related question whether that entry permit was validly granted notwithstanding that it was not delivered to the applicant. If necessary, these matters and other outstanding questions can be dealt with pursuant to the liberty to apply which I propose to reserve. Since the case was urgent, it was appropriate to deal now only with the issues as pleaded notwithstanding that the argument may have touched on other matters.
I also propose to reserve costs.
I make the following orders:
Order that the deportation order dated 10 July 1986

be set aside.

Reserve liberty to any party to apply on three

days' notice.

Reserve costs.

[1986] FCA 360

22 AUGUST 1986