Othman, A v Minister for Immigration, Local Government & Ethnic Affairs

[1991] FCA 590

Re: AZIM ABU OTHMAN and ANTONIETTA ABU OTHMAN
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WA G149 of 1990
FED No. 590
Administrative Law - Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Administrative Law - judicial review - improper purpose - irrelevant considerations - scope of review - immigration - refusal of resident status - legitimate worker's compensation and sickness benefit claimed by applicant - whether relevant consideration - statement of reasons - findings of fact - summary of contents of departmental file - not findings of fact - reference to anonymous and other allegations - not taken into account - whether breach of natural justice.

Immigration - entry permit - refusal of resident status - irrelevant considerations - legitimate worker's compensation and sickness benefit claims - conclusions as to conduct and character of applicant - no logical connection.

Migration Act 1958 s. 31B(2), ss. 6, 6A

Migration Legislation Amendment Act 1989 No. 59 of 1989

Galligan - Discretionary Powers - Clarendon Press (1986)

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Sharp v Wakefield (1891) AC 173

Stenhouse v Coleman (1944) 69 CLR 457

HEARING

PERTH

#DATE 26:9:1991

Counsel for the Applicants: Mr B.F. Stokes

Solicitors for the Applicant: Messrs. B.F. Stokes and Associates

Counsel for the Respondent: Ms J. Adamson

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The decision of the respondent's delegate made 9 November 1990 be set aside.

The decision be referred back to the respondent for further consideration according to law.

The respondent pay the applicants' costs of the application.

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

JUDGE1

Azim Abu Othman was born in Israel on 2 October 1963 and lived there continuously until May 1987. On 7 January 1988, in Bangkok, he was issued with a visitor visa for travel to Australia. Upon arrival in Melbourne on 18 January 1988, he was issued with a temporary entry permit valid for one month. On 23 February 1988 he lodged an application for the grant of resident status in Australia relying upon "compassionate or humanitarian grounds". He was interviewed in relation to this application on 4 May 1988. On 19 May 1988 he lodged an attachment to his application indicating that he was now applying on the ground that he had married a resident of Australia, Ifeta Mesanovic, on 11 May 1988. He also applied for and was granted an authority to work under s.31B(2) of the Migration Act 1958 until 19 November 1988 pending consideration of his request for resident status. The marriage, however, was shortlived and ended in divorce, the decree becoming absolute on 6 February 1990. On 8 March 1990 he married again, this time to an Australian citizen, Antonietta Friguglietti.

1. On 18 May 1990 Azim Abu Othman's application for grant of resident status was refused. On 9 July 1990 he applied to an Immigration Review Panel in Victoria for reconsideration of the decision. This reconsideration was preceded by an internal departmental review which recommended on 5 October 1990 that the original decision should stand. On 2 November 1990 an Immigration Review Panel recommended that the departmental decision should be maintained. A delegate of the Minister, Bruna Lola Pasqua then decided on 9 November 1990 to accept the Immigration Review Panel's recommendation. Abu Othman was advised of the decision on 12 November 1990 and on 19 December 1990 lodged, in this Court, an application for an order of review of the original decision of 18 May 1990 and the reconsideration decision of 9 November 1990. An application amended by leave was filed on 8 February 1991. Under the amended application only the decision of 9 November is challenged (although it is referred to inaccurately in the amended application as a decision "to refuse to reconsider decision made 12 November 1990 pursuant to the Review Regulations"). The application came on for hearing on 9 May 1991. It is common ground that the relevant statutory framework is that in existence prior to the extensive amendments to the Act effected by the Migration Legislation Amendment Act 1989, No. 59 of 1989. In particular, Abu Othman's application falls to be considered by reference to ss.6 and 6A of the Migration Act 1958 as it stood prior to those amendments.

2. The applicants were Abu Othman and his present wife. They relied upon his affidavits sworn 19 December 1990 and 4 April 1991 and her affidavit sworn 3 April 1991. Those affidavits were received subject to objection by the respondent, which relied upon the affidavit of Bruna Lola Pasqua, the decision-maker, who was a delegate of the respondent for the purposes of ss.6 and 6A of the Migration Act 1958. Also tendered were three departmental manuals.

3. Counsel for the respondent indicated that whatever view was taken of the objections to the applicant's affidavits, it was not her intention to call any further evidence. It was suggested therefore that she could indicate as part of her general summing up, what parts of the applicants' affidavits should be disregarded, there being substantial portions which were irrelevant or argumentative. That course was agreed to and the applicants' affidavits were able to be read, subject to any submissions that parts of them should be disregarded.
   Grounds for Review

4. The grounds of review were seven in number, heavily particularised and representing in large part a crude attempt to invoke merit review. They were in substance as follows:
   

1. The making of the decision was an improper exercise of power in that the delegate took into account irrelevant considerations.

2. The making of the decision was an improper exercise of power for failure to take into account relevant considerations.

3. The making of the decision was an improper exercise of power in that it was the exercise of a discretionary power in accordance with policy and without regard to the merits of the case.

4. The decision was made without procedures required by law being observed.

5. The decision was so unreasonable that no person acting reasonably could have made it.

6. The decision was made when there was no evidence or material to justify its making.

7. The seventh ground, added by amendment at the hearing, raised a breach of rules of natural justice for failure to provide Abu Othman with an opportunity to answer certain allegations raised against him.

Decision-maker's Reasons for Decision

1. Reasons for the decision under review were exhibited to the affidavit of Ms Pasqua. There was no challenge to their accuracy as a statement of the evidence relied upon, facts found and the reasons, based upon those facts, for the decision of 9 November 1990. I accept therefore that they constitute an accurate statement of the decision-maker's reasons. Under the heading "My Findings on Material Questions of Fact", the decision-maker referred to Abu Othman's arrival in Melbourne on 18 January 1988, the issue to him of a visitor visa in Bangkok for travel to Australia, and the fact that upon arrival he was "suspected of not being a bona fide visitor" and issued with a temporary entry permit valid for one month only. His application for grant of resident status lodged on 23 February 1990 was referred to and the "strong compassionate and humanitarian grounds" relied upon were identified as follows:
   

"(a) that his life is in danger in Israel because he was arrested in a demonstration in Israel, imprisoned for 12 months and harshly treated.

(b) that his parents are deceased, he lost contact with them during the war. He has two siblings, one sister in Jordan and one brother whose whereabouts are unknown.

(c) that he cannot work in Israel and could not support himself.

(d) that he was unfit to travel as he was recovering from Hepatitis B.

An interview conducted on 4 May 1988 was summarised (para.4) and the 19 May 1988 attachment to his application on grounds of marriage to Ifeta Mesanovic noted (para.5). The application for grant of an authority to work in Australia until 19 November 1988 was also recorded (para.6). Paragraph 7 referred to a telephone call of 17 August 1988 to the Department from his first wife in which it was said she gave the following information:

1. Mr Abu Othman was wanted by the police following a serious car accident where he was driving without a licence in a car registered in her name and a driver in the other car was seriously injured. He ran away from the scene of the accident.

2. That she had told her husband to leave her on 12 August 1990 and had not seen him since. She had given Russell Street police his passport.

3. She believed that Australia does not need this sort of person.

4. She believed that her husband might have a criminal background.

5. That after she was married she became aware that he was involved with some Palestinian friends in smuggling cigarettes from Queensland to Victoria (avoiding the higher taxes applicable in Victoria).

6. After obtaining permission to work her husband found employment with "VDO Instruments" but after one week went on Workcare although he did not appear to be injured. Prior to this he had been employed under the name Ajim Abtmen.

Advice from the Glen Waverley Police on 21 November 1988 that Abu Othman had been charged with "aggravated rape" and was in custody pending a committal hearing was mentioned (para.8), as was their subsequent advice that he had been found not guilty of the charge on 21 April 1989 and released from custody (para.9). On 22 May 1989 he had contacted the Department asking about the progress of his application for grant of resident status and advising that he had "lost contact" with his first wife while in prison. Paragraph 11 referred to an anonymous letter received by the Department on 20 October 1989 which alleged that:

1. Mr Abu Othman had lied about his name, his background and his family.

2. He had been in gaol in Israel not for "political reasons" but for drug trafficking and embezzlement.

3. He married Miss Mesanovic in order to stay in Australia and "conned" many people by falsely representing himself as a religious Muslim.

4. He had "conned" $5,000 from his first wife and run up several large Telecom bills under false names.

5. He had worked three different jobs and had three different Workcare claims overlapping.

6. He had been twice arrested and charged with possession of drugs of addiction and once charged with trafficking in drugs.

7. He was making a lot of money through selling drugs and transferring the money through Westpac bank in High Street, Northcote to the Bank of Jordan, Al Zarka and back.

8. He continued to receive Workcare payments from VDO and had opened a shop in Northcote Arcade called Azim Jeans.

9. He was planning to marry another Australian citizen when his divorce was finalised. His intended wife was only 19 years, single and still living at home.

Abu Othman and his second wife were interviewed on 24 April 1990 and gave an account of how they met in September/October 1988, the continuance of their relationship while he was in gaol, his family associations in different parts of the world and their hopes of establishing a clothing factory (para.12). He provided evidence of his divorce from his first wife (para.13).

1. Various convictions recorded against him in Victoria on 9 February 1990 and 13 February 1990 were noted at para.14, they being:
   

(a) 9 February 1990 - wilful damage - Melbourne Magistrates' Court - fined $300 with $200 damages to be paid to the Victorian Police.

(b) 13 February 1990 - conviction for possession of drug of dependence (Heroin) - Heidelberg Magistrates Court - fined $250

(c) 11 August 1990 - two counts of possession of drug of dependence (Heroin) - Melbourne Magistrates Court - fined $800 two counts of use of drug of dependence (Heroin) - Melbourne Magistrates Court - fined $800

It is not apparent whether there was only one fine of $800 or whether he was fined $800 on each conviction.

Mr and Mrs Abu Othman were separately interviewed on 3 May 1990 about their marriage and summaries of those interviews set out at paras. 16 and 17. The refusal of the application for grant of resident status on 18 May was noted at para.18 and the stated reasons set out at para.19:

1. Abu Othman was no longer married to Mrs Ifeta Mesanovic.

2. His statements in relation to his claim for grant of resident status on compassionate or humanitarian grounds lacked credibility in view of the conflicting information he had given to departmental officers on different occasions.

3. There were no matters contained in his application which would warrant making a decision outside policy guidelines.

There was a further telephone interview with both Abu Othman and his wife on 14 September 1990, presumably pursuant to his application for reconsideration by an Immigration Review Panel. Again these interviews are summarised in the reasons for decision (paras.20, 21 and 22).

1. Advice from a Detective Sergeant Buckingham of the Australian Federal Police, received by telephone on 21 September 1990, was referred to at para.23:
   

"On 21/09/1990 Det.Sgt.Buckingham from the Australian Federal Police Perth telephoned to advise of his contact with Mr Abu Othman. He stated that Mr Abu Othman came to his notice because Mr Abu Othman had been going around to several banks and building societies asking about cashing traveller's cheques for very large sums - approx.$A1 million -. Det.Sgt. Buckingham stated that when he spoke to Mr Abu Othman there appeared to be a plausible reason for his actions. Mr Abu Othman had told Det.Sgt. Buckingham about his previous convictions (the drug convictions) and he had informed Det.Sgt. Buckingham that his father had been an important member of the Jordanian Govt. but no longer. Mr Abu Othman told Det.Sgt. Buckingham that his father held a Jordanian passport and that he had held a Jordanian passport in 1981. Det.Sgt. Buckingham believed that Mr Abu Othman was on sickness benefit for a psychiatric illness. Det.Sgt. Buckingham said that Mr Abu Othman's bank in Western Australia holds a power of attorney for Mr Abu Othman which gives Mr Abu Othman access to his father's bank account in Melbourne. Det.Sgt. Buckingham was unaware of the name of Mr Abu Othman's father. He was also unaware that Mr Abu Othman owned a house in Victoria."

By that time, Mr and Mrs Abu Othman had travelled to Perth and on the same day their solicitor rang to say that he had been authorised to act on their behalf. According to Ms Pasqua the solicitor had no new information and was told that he was free to submit further information before the case was considered by the Immigration Review Panel (para.24). An officer of the department in Perth advised the Victorian office that Abu Othman was in regular contact with the Perth office. A record of an interview with Abu Othman on 8 September 1990 was noted.

1. The internal review of the case in October 1990, the decision of the Immigration Review Panel on 2 November 1990 and the delegate's decision of 9 November to refuse the grant of resident status were recorded in paras. 26 and 27.

2. A list of documents relied upon as evidence or other material upon which the findings were based was then set out (paras. 28 to 36 inclusive).

3. Under the heading "Assessment" Ms Pasqua proceeded by reference to s.6A(1) and 6(2) of the Migration Act 1958 to assess Abu Othman's application. She observed that the original decision-maker had refused the application on 18 May 1990 on the ground that the first marriage had been dissolved. Ms Pasqua, however, accepted that the second marriage should have been taken into consideration for:
   

"Once satisfied that there was a legal marriage to an Australian citizen there was no requirement for the decision-maker to consider whether there were compassionate or humanitarian grounds to bring the case within s.6A(1)(e)."

She was satisfied that the case came within s.6A(1)(b) of the Act and examined the policy guidelines in the three departmental manuals which are in evidence. Absent any evidence to the contrary, she considered the second marriage was "genuine and ongoing". On departmental policy requirements relating to character, however, she found that Abu Othman failed to demonstrate that his application warranted the exercise of the power granted in s.6(2). In this regard she said:

"With respect to the policy requirements relating to character, however, I found that Mr Abu Othman failed to demonstrate that his application warranted the exercise of the power granted in s.6(2). Two factors led me to this decision: Mr Abu Othman's criminal record in Australia; and the claims that he has made on Australian resources." (para.42)

The delegate summarised his criminal record in para.43, noting in para.44 that all convictions had occurred within a six month period between 9 February 1990 and 11 August 1990. The assessment then went on:

"Given the recent high number of convictions within a short period of time, I determined that there was a strong indication that Mr Abu Othman would re-offend. The drug-related convictions were still relatively recent and therefore it cannot be assumed that Mr Abu Othman has overcome his drug dependency."

Abu Othman's conduct since arriving in Australia was found to have "imposed significant costs on the community" in that he had "utilised" the Victorian Workcare provisions, the Australian Justice and Penal Systems, the Australian hospital system and the Australian Social Security provisions.

1. In para.46 the delegate referred to Abu Othman's claim that his life would be in danger in Israel due to his previous imprisonment in that country and treatment by Israeli authorities. It was recognised that his wife is an Australian citizen who would find it difficult to move to another country if her husband were to be refused an entry permit. There was in the delegate's view, however, "insufficient evidence that these factors should outweigh the likelihood of Mr Abu Othman re-offending and the costs he has imposed on Australia resources".

2. Before turning to the grounds for review, it is appropriate to set out the relevant provisions of the Migration Act 1958 in force for the purposes of this application.
   Statutory Framework

3. At the times relevant for the purpose of these proceedings, s. 6 of the Migration Act 1958 provided:
   

"6(1) A non-citizen who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited non-citizen.

(2) An officer may, in accordance with this section and at the request or with the consent of a non-citizen, grant to the non-citizen an entry permit.

(3) 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." Paragraphs 6(4) to 6(8) are irrelevant for present purposes.

Section 6A provided:

"6A(1) An 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 in respect of him, that is to say- .

.

.

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

.

.

(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."

The Applicants' Contentions

1. Under the first ground of review, it is contended that the decision-maker took into account a number of irrelevant considerations and thereby improperly exercised her discretion under s.6(2) of the Act. The first two of these (1.1(a)(i) and (ii)) were not relied upon at the hearing as they apparently related only to the decision made on 18 May 1990. The third and fourth collapsed into the one point that the decision-maker took into account Mr Abu Othman's criminal record "without consideration of the surrounding and mitigating circumstances in assessing his character". The criminal record was plainly a relevant factor. It could not be transformed into an irrelevant factor by saying that other relevant factors were not considered.

2. Then it was said that the decision-maker took into account Mr Abu Othman's "relation of apparently contradictory history of his family background and antecedents in the assessment of his credibility". This was evidently a reference to a comment in the submission made by the Departmental Review Officer on 5 October 1990 before the case went to the Immigration Review Panel. At the second last page of that consideration, he wrote that he had examined Abu Othman's claim for grant of resident status on compassionate or humanitarian grounds, but found he could not give any weight to his alleged fears and other claims "given his poor credibility which is a result of the conflicting information he has presented regarding his life and family overseas and his circumstances in Australia". On that basis the Review Officer had not accepted that Abu Othman satisfied the requirements for grant of resident status on compassionate or humanitarian grounds. Now because the Internal Review Report was a document attached to the reasons and said to form part of the evidence or other material upon which the delegate based her findings of fact, it is said that she took into account the adverse views of Abu Othman's credibility formed by the Review Officer. Not only is there nothing in the reasons to support that conclusion, but in the assessment she noted that once satisfied there was a legal marriage to an Australian citizen in force, there was no need to consider the alternative condition or strong compassionate or humanitarian grounds under s.6A(1)(e).

3. No argument was advanced in respect of ground 1.1(a)(vi) which in any event, as framed, did not make sense. Grounds 1.1(a)(vii), (viii) and (x) raised the complaint that Abu Othman's receipt of Victorian Workcare payments, an admission to Fairfield Hospital and his receipt of sickness benefits were taken into account against him "in assessing Australia's public interest". The relevant finding of facts was that in a telephone interview on 14 September 1990, Abu Othman said that he had worked for about one month when he injured his arm and went on Workcare. He remained on Workcare until October 1989 when it was stopped because he had a business. When the business failed he went on sickness benefit. The finding was a finding that he had said this in an interview. It was nevertheless implicit in the decision-maker's reasons that she accepted the accuracy of what he said in that regard. It would be more satisfactory if the reasons had made that clear. The section of the statement of reasons for decision dealing with findings of fact should be more than a mere review or summary of what appears on the departmental file. Where an applicant or some other person has made a statement to the department, it should be indicated whether that statement is taken into account and accepted or rejected in whole or in part. This is of some significance in the present case because reference had also been made to a telephone call from Abu Othman's first wife saying that he had gone into Workcare one week after commencing his employment and did not appear to be injured (para.7). And the anonymous letter received by the Department on 20 October 1989 claimed that he had worked in three different jobs and had three different Workcare claims overlapping. In para.45 of the reasons under the heading "Assessment", the delegate wrote:
   

"I also considered that

- Mr Abu Othman's conduct since arriving in Australia has imposed significant costs on the community. He has utilised the:- - Victorian Workcare provisions;

- Australian Justice and Penal Systems;

- Australian hospital System; and

- Australian Social Security provisions"

1. Although the delegate took into account against Mr Abu Othman that he had "utilised the Australian hospital system", there was no more specific finding about the "utilisation" than that. When referring in her findings of fact to the telephone interview of 14 September 1990, she noted that he had said that he was then suffering from ulcers and was having a small operation in the following week to see if a larger operation were needed. There was nothing in the delegate's reasons to suggest that she had formed the view that he had other than a legitimate claim on Workcare and the sickness benefits which he received. Nor was there anything to suggest that his use of the hospital system was reflective of any underlying susceptibility likely to impose a continuing burden on the Australian community. Paragraph 45 asserted that Mr Abu Othman's "conduct since arriving in Australia had imposed significant costs on the community". There was no evidence before the delegate that the accidental injury which resulted in the Workcare and sickness benefit claims was a consequence of or had anything to do with his conduct. Similarly, nothing in the delegate's findings supports the inference that his use of the hospital system was related to his conduct. In his own affidavit, Mr Abu Othman said he spent a month at Fairfield Hospital from 8 January 1988 to February 1988. He also said that soon after coming to Australia he had caught a venereal disease and was treated with medication. It is not clear whether this was related to his time at Fairfield Hospital or not. The question of the relevance of these matters and their proper place in the decision-making process will be considered below.

2. Grounds 1.1(ix), (xi) and (xii) were not relied upon. Ground 1.1(xiii) raised as an irrelevant consideration, allegedly taken into account by the delegate, the fact that Mr Abu Othman's wife, Antonietta, would be able to relocate in what would be to her an alien culture. The drafting of the ground rendered it virtually unintelligible, but I have expressed the thrust of it. The delegate's reasons indicate that on 14 September 1990 Mrs Abu Othman said that she would prefer to live in Australia with her husband, but if he were refused resident status, she would have no choice but to travel overseas with him. At para.46 the delegate expressly referred to the difficulty that Mrs Abu Othman would face moving to another country if her husband's application were unsuccessful. There is no tenable basis for this ground. Nor was there for ground 1.1(xiv) which alleges that the delegate took into account that Mr Abu Othman "was a Palestinian and therefore an undesirable settler in Australia".

3. Ground 1.2 alleges a failure to take into account relevant considerations. The first of these is the difficulty that Mr Abu Othman experienced in his interview at the airport with officers of the department by reason of his inability to speak English and by reason of the use of an interpreter who spoke only Lebanese Arabic, whereas he himself spoke only Palestinian Arabic. Linked with these factors it is alleged "extreme racial prejudice" on the part of the interviewing officers. The circumstances of the initial interview, however, have no part to play adverse to Mr Abu Othman in the delegate's assessment. There is no basis for the contention that language difficulties were a matter which she was required to take into account in that context. Nor was there any support for the view that Mr Abu Othman was the victim of "extreme racial prejudice" at the point of entry.

4. Ground 1.2(b) complains that the delegate failed to take into account the mitigating circumstances of offences for which he had been convicted. In her assessment she referred to their recency, particularly in connection with the drug related convictions, and determined that there was a strong indication that Mr Abu Othman would reoffend and that it could not be assumed that he had overcome his drug dependency. She was plainly not required to undertake an inquiry into the full circumstances of each offence and the conclusion of a risk of recidivism was open to her to draw. Other matters referred to in ground 1.2(b) do not disclose any tenable basis for review. Ground 1.2(c) is an unsuccessful attempt to recast some of the irrelevant considerations referred to in 1.1(a) as relevant considerations not taken into account. Ground 1.2(d), although expressed in terms of a failure to take into account relevant considerations i.e. the disruptive effect of relocation on Mrs Abu Othman, was in substance, as the argument disclosed, a complaint about the weight given to that factor. No ground of reviewable error is disclosed on that basis.

5. Ground 1.3 alleges that the decision was made in the exercise of a discretionary power according to a policy and without regard to the merits of the case. The particulars identified no such policy but set out factors, which if relevant, at best went to the merits of the case. Counsel referred to cl.3.3 of a Departmental Instruction Manual entitled "Grant of Resident Status - Number 17 - Character Requirement". That clause refers to s.16(1)(c) of the Act which treats as prohibited immigrants persons who have entered Australia and have been convicted of criminal offences attracting certain penalties prior to entry. Clause 3.3 reads:
   

"Applicants who do not come within section 16(1)(c) of the Act may also fail to meet the good character requirement. The nature, number or recency of the offences or activities concerned and the potential for continuance or recidivism may be such as to warrant refusal on the overall merits of the case..."

1. As is apparent, the policy itself requires that the "overall merits" of the case be considered. Its application is not inconsistent with the proper exercise of the delegate's discretion. Counsel, however, submitted that the delegate's reasons disclose a concentration on Mr Abu Othman's failure to meet character requirements. In this regard it is to be noted that at para.42 of her assessment the delegate linked his failure to meet policy requirements relating to character not only to the criminal record in Australia but also to the "claims he has made on Australian resources". This reference necessarily imports the further reference to the Workcare and Social Security claims and the use of "the Australian hospital system". That aspect of the assessment is connected with the complaint that irrelevant considerations were taken into account and it will be considered below.

2. Ground 1.4 alleged a failure to comply with procedures required by law, but no such procedures were identified. Ground 1.5 alleges unreasonableness but merely raises under that head the delegate's alleged failure to take into account the problems that would be faced by Mrs Abu Othman in assimilating into a Jordanian community, the difficulty of raising children there and the effect upon her and her family of virtually permanent separation. This again was a complaint about the merits of the decision. Unreasonableness in the relevant sense was not demonstrated.

3. Ground 1.7 as particularised was as follows:
   

"The making of the decision was contrary to procedural fairness for at no time was the First Applicant advised that any of the allegations contained in paragraph 42 of the statement of reasons would weigh against him thus denying him an opportunity to put his side of the story by way of explanation or mitigation."

1. As noted above, para.42 of the delegate's statement of reasons referred to the criminal record and claims made on Australian resources. The factual matters there referred to were not in dispute. Much of the history mentioned came from Mr Abu Othman himself as appears from the telephone interview of 14 September 1990, referred to in para.22 of the statement of reasons. The assessment does not indicate that any other matters, especially those arising out of the telephone call from Mr Abu Othman's former wife and the anonymous letter (paras. 7 and 11 of statement of reasons) were given any weight. They seem rather to have been mentioned in passing as elements of the departmental file in the summarising process which, as I have already mentioned, ought to be clearly distinguished from the fact finding part of the statement of reasons. It is desirable that where such documents or communications are referred to there should be no doubt on the question whether they are taken into account. I am satisfied, however, on reading the reasons as a whole that these communications did not play a part in the delegate's decision-making. The complaint of a breach of the rules of natural justice therefore fails.
   Irrelevant Considerations

2. When a statute confers a discretion which, in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined except in so far as some implied limitation may be found in the subject matter, scope and purpose of the statute. And where an irrelevant factor is taken into account that would not have materially affected the exercise of the discretion, then the decision in question will not be vitiated on that account - Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J.). But whatever the range of considerations permitted by the statute in question, there is a pervasive requirement of rationality in the exercise of discretion that informs and limits decision making under it. That requirement is expressed in a well known passage in the judgment of Lord Halsbury L.C. in Sharp v Wakefield (1891) AC 173 at 179:
   

"... when it is said that something is to be done within the discretion of the authorities... that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke's Case (5 Rep 100, a); according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself."

This grounding of discretion in rationality is applicable to the exclusion of irrelevant matters from consideration - Stenhouse v Coleman (1944) 69 CLR 457 at 467 (Starke J.).

1. The requirement for relevancy in the selection of factors bearing upon the exercise of a discretion may therefore be seen as an aspect of rationality in decision-making. It has been said to manifest in two ways. The primary question may be asked whether a factor is so logically or rationally related to the objects of a discretion that it ought to be taken into account. And there may be a secondary question whether it serves a policy which is within the range of those permitted by the statute - Galligan - Discretionary Powers - Clarendon Press (1986) at pp 308-309. Judicial treatment tends to collapse these two approaches and it may be that they do nothing more than separate out direct and indirect relevance. They do, however, highlight the need for a rational connection between the factors considered and the statutory objects or policies served.

2. It would no doubt be a lawful policy within the wide discretion conferred by s.6 of the Migration Act 1958 that persons who are likely to be a continuing burden on community resources should not be treated as favourably as those who will be able to make their own way. And if the conduct of an applicant prior to the application has imposed costs on the community, that may be a factor relevant to the question whether that person is likely to impose further burdens. In the present case, the delegate made a finding that Abu Othman's conduct since arriving in Australia has imposed significant costs on the community. I accept that such a conclusion, if properly grounded, would be relevant. The conclusion is not, however, able to be supported by reference only to findings that Abu Othman had made claims for and received worker's compensation and subsequently sickness benefits. Nor can it be sustained by the mere finding that he has been hospitalised. These are facts which taken by themselves have insufficient rational relationship to the delegate's conclusion. And it cannot be assumed that this is a case in which those findings and those factors did not have a material bearing on the delegate's decision. Of serious concern also in this regard, is the delegate's statement in para.42 expressly linking the "claims made on Australian resources" to policy requirements relating to character. It is clearly appropriate to take into account the character of an applicant. But the fact that he has made a claim for worker's compensation and sickness benefits or has been hospitalised, taken alone and absent some evidence that the claims were illegitimate or the result of his own misconduct, cannot support a finding adverse to his character.

3. These matters were important elements in the exercise of the delegate's discretion. The fact that they were taken into account in the way they were offends against the requirement that the exercise of a statutory discretion must, within the range allowed by subject matter, scope and purpose of the statute, be rational. It must be done "according to the rules of reason". In the circumstances, the delegate's decision in this case must be set aside and the matter remitted for reconsideration in accordance with law.