Palavi, S v Minister for Immigration, Local Government and Ethnic Affairs
[1992] FCA 652
•18 AUGUST 1992
Re: SOILETI PALAVI
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G223 of 1992
FED No. 652
Number of pages 12
Administrative Law
(1992) 28 ALD 214 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.(1)
CATCHWORDS
Administrative law - refusal of application for permanent residence - delegate had regard to wrong policy guidelines - improper exercise of power conferred by the Migration Act - meaning of "used sparingly" - meaning of "only in the most compelling cases" - whether part of policy inconsistent with Migration Regulation 131A - delegate had regard to irrelevant consideration.
Migration Act 1958
Migration Regulation, 131A(1)(d)(v)
Matter No. VG 223 of 1992
HEARING
MELBOURNE
#DATE 18:8:1992
Counsel for the Applicant: Mr T.V. Hurley
Solicitors for the Applicant: John E. Ketelhohn
Counsel for the Respondent: Mr K.H. Bell
Solicitors for the Respondent: Australian Government Solicitor
ORDER
1. The decision made by the respondent's delegate on 25 June 1992 to reject the applicant's application for permanent residence made on 10 June 1992, pursuant to Migration Regulation 131A, be set aside.
2. The matter to which the decision relates be referred back to the respondent to be considered according to law.
3. The respondent shall pay the applicant's costs of this application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
KEELY J. Soileti Palavi ("the applicant") has applied for an order to review the :
"decision made by ... the Respondent or his delegate ("the delegate") on 25 June, 1992 to reject the Applicant's application for permanent residence made on 10 June, 1992 pursuant to Migration Regulation 131A ("the decision")."
The applicant's counsel informed the court that the applicant did not pursue paragraph 1 of the application to review, which sought to review a decision made on or about 4 June 1992.
The applicant relied partly on an affidavit by his instructing solicitor, which exhibited a letter to the applicant (JE 5), dated 25 June 1992, from Mr A. Vasilopoulos, an officer in the respondent's Department, informing him that his application for permanent residence had been refused. That letter included the following:-
"Attached is a resume of your claims and the Departmental findings on which the decision was based. I hope this helps you to understand the reasons for this decision."
The attached "Departmental findings on which the decision was based" ("the Departmental submission") was signed by Mr Vasilopoulos as the "Case Assessment Officer". It was dated 25 June 1992 which was the same date as:
(a) the delegate's decision, and
(b) the letter to the applicant informing him of the decision.
The Departmental submission signed by Mr Vasilopoulos said that he had "had regard to Attachment A of Policy Control Instruction No. PC 1758, which outlines the policy guidelines endorsed by the Minister". It continued:
"As stated in the policy guidelines, the qualified wording of the criterion of Regulation 131A(1)(d)(v) is designed to ensure that this discretion ... be used sparingly and only in the most compelling cases."
The delegate on 7 July 1992 in a statement of reasons provided under s. 13 of the Administrative Decisions (Judicial Review) Act 1977 said:
". On 25 June I decided to refuse the grant of a December 1989 (temporary) entry permit to Mr Soileti Palavi (the applicant).
. On 1 July 1992, the Federal Court ordered that a statement of reasons for that decision be provided. . I make the following statement setting out my findings on material questions of fact, referring to the evidence or other material on which these findings were based and giving my reasons for the decision. ....
C. Assessment against the prescribed criteria
12. As the crux of the case concerned regulation 131A(1)(d), I turned my mind to that criterion first. The claims advanced by the applicant were relevant only to subparagraph (v).
13. In making my assessment, I was mindful of the high threshold set in reg 131A(d)(v). The hardship to the Australian party must be "extreme" or the prejudice "irreparable" before the criterion is satisfied. This has the effect that the subjective criterion is satisfied only in the most compelling cases, as pointed out in the policy guidelines endorsed by the Minister (see the Department's Policy Control Instruction PC 1758 Attachment A.)
14. ....
However, I assessed that the impact on the nominator did not constitute "extreme" hardship or "irreparable" prejudice.
....
D. Evidence on which the decision was based
16. In making my decision I had before me the following: . Departmental file V89/28034 ...; . Migration Act 1958;
. Migration Regulations; and
. Departmental Policy Control Circular PC 1758."
The applicant's counsel initially objected to the admissibility of the delegate's statement of reasons; (see Minister for Immigration, Local Government and Ethnic Affairs v Taveli (1990) 94 ALR 177 at 183 (per Davies J.) and at 204 (per Hill J.); - see also ruling that statement of reasons not admissible in Dallikavak v Minister of State for Immigration and Ethnic Affairs (delivered 22 March 1985 - unreported - at pages 14-19) and see 61 ALR 471 where an appeal was dismissed without expressing "any opinion on whether that ruling was correct or not" (at 477). The applicant's counsel contended (transcript 7) that the statement of reasons, prepared after the court had upheld his submissions in the interlocutory hearing on 1 July 1992, was an attempt to
"justify or re-write or shy away from the vigour (of the Departmental submission signed by Mr Vasilopoulos on 25 June 1992) because if one goes to paragraphs 12, 13 and 14 of the section 13 reasons it is our submission that to some extent there has been an attempt to back off, as it were, from the strict application of the policy, ..."
The respondent's counsel (transcript 7), in responding to that objection, said:
"Well, my learned friend is objecting to admissibility on the basis of a misunderstanding as to what he says is stated in the section 13 statement. I can understand him reacting to paragraph 13, but if I do explain what in truth is meant, I think the objection will fall away.
... we are certainly not seeking to avoid the issue in the case by reference to anything that is in paragraph 13. The policy was taken into account; the words in the policy complained of exist as a matter of fact. (p 8). You will see that in paragraph 2 (of the Policy Control Instruction) these words appear ... The qualified wording of the criterion is designed to ensure that this discretion to regularise the status of illegals be used sparingly and only in the most compelling cases.
Now, that policy was taken into account and referred to in a way that included the word "sparingly" in the submission that was made to the delegate who finally made the decision. ....
(p. 9) HIS HONOUR: Well, does it amount to this, Mr Bell, that as counsel for the Minister you accept that the decision-maker in reaching his decision took into account the policy and that policy was that the relevant discretion was to be used sparingly and only in the most compelling circumstances?
MR BELL: Yes, your Honour. ....
In the course of making that decision (the delegate) had regard to the policy which told him something as to what it was thought the regulation amounted to ... Later in his submissions Mr Bell said:
(p. 22) " ... that the decision-maker did was to ask himself the question whether there was established the existence of extreme hardship or irreparable damage, such as would occasion the exercise of a discretion which should only be exercised sparingly .... and only in ... most compelling cases. ... on a proper analysis of the regulation that is really not relevantly different, not inconsistent, just different ways of saying the same thing, rather."
Mr Hurley of counsel for the applicant thereupon withdrew his objection to the admissibility of the s. 13 reasons, saying (transcript 23):
"If the respondent concedes that the decision that was made that affected my client, was made under regulation 131A, having regard to that paragraph, sub-paragraph 5 in light of a policy that required that the discretion only be used sparingly and in the most compelling cases ... then we would submit that if that is the basis on which the decision has been made that is the basis on which to argue. HIS HONOUR: All right, do you accept that Mr Bell. MR BELL: Yes, I do, your Honour."
After the luncheon adjournment there was a further development in the case. The applicant's counsel, with the consent of the respondent's counsel, was given leave to file a further affidavit by his instructing solicitor, sworn during the adjournment. In that affidavit he (1) referred to Exhibit A in this case (Policy Control Instruction No. PC 1758 - issued 28 December 1990), (2) exhibited as JE 6 a copy of a further Policy Control Instruction No. PC 1787, issued 16 September 1991 (3) exhibited as JE 7 a copy of a third Policy Control Instruction No. PC 1801, issued 30 December 1991 and (4) explained that the "significance of the difference between these documents has only become apparent in discussions with counsel this morning."
The applicant's counsel relied upon that affidavit and its exhibits as establishing that the delegate had taken into account an irrelevant consideration, namely, the December 1990 Policy Control Instruction No. PC 1758, which had been superseded by Policy Control Instruction No. PC 1787, issued 16 September 1991, which in turn had been superseded by Policy Control Instruction No. PC 1801, issued 30 December 1991 under s. 179 of the Act. The respondent's counsel acknowledged that:
"... PC 1758 was not an instruction or direction given by the minister under section 179 (transcript 55 line 19). .... (the delegate) should have had regard to PC 1801. (transcript 55 line 11).
... the delegate did not in terms comply with PC 1801 which was a direction under section 179. ... the delegate did not know about, did not have regard to (it), it was not brought to his attention, PC 1801 (transcript 55 line 23). .... the delegate in the section 13 statement referred to the need for most compelling circumstances to be present which is something that exists in the first document but does not exist in the second." (transcript 56 line 13).
The respondent's counsel identified the 'first question' as "does it matter from a legal point of view" (transcript 54 line 14) that the delegate used the wrong Policy Control Instruction, and said (transcript 56 line 16):
"... if there be a material difference between the expressions, "most compelling" and "sparingly" on the one hand and "sparingly" on the other, then your Honour might find that there is difference in substance between the two documents. But what I submit, your Honour, is that there is no difference in substance in relation to that aspect of the policy and that your Honour can conclude that whether one says "used sparingly" or only in the "most compelling" cases, on the one hand or "used sparingly" on the other, what I submit, your Honour, is that really does amount to the same thing."
I am unable to uphold the submissions of the respondent's counsel, in dealing with the first question (i.e. whether there was legal significance in the fact that the delegate used the wrong Policy Control Instruction). As appears from the passage quoted above from the transcript (p 56), he submitted that there is no difference in substance between the words that the discretion "be used sparingly" and the words (in the earlier policy - PC 1758) that "this discretion be used sparingly and only in the most compelling cases". Those additional words ("and only in the most compelling cases") in my opinion made it less likely that the delegate would grant an application for permanent residence. A delegate could well decide that he could properly exercise his discretion to grant such an application in circumstances where he accepted that that discretion was to be used sparingly; the same delegate, on the same facts, could well decide that the application under consideration did not constitute a "most compelling" case and accordingly refuse the application.
In my view there is a significant difference in meaning between the words used in the Policy Control Instruction No. PC 1758, issued 28 December 1990 (Exhibit A), which was used by the delegate, and that dated 30 December 1991, which was the Policy Control Instruction current at the time of the delegate's decision. The delegate, in deciding to refuse the application, took into account a Policy Control Instruction No. PC 1758 which had been superseded; in so doing his making of the decision was an improper exercise of the power conferred by the Migration Act. It will be set aside and the application will be referred back to the respondent for further consideration.
The respondent's counsel said that, if the first question was decided against the respondent, it might be enough to dispose of the proceedings but asked the court (transcript 54 line 22) to express its opinion on the second question i.e. whether the December 1990 Policy Control Instruction No. PC 1758 (which the delegate took into account in the decision) was inconsistent with Regulation 131A. That was the question raised at the interlocutory hearing on 1 July 1992 and which the parties had argued in the present hearing.
I accept the respondent's submission, made with respect to both the first and the second questions (transcript 56 line 34), that the attack by the applicant was not upon the policy as a whole but upon paragraph 2 of attachment A to that policy. Mr Bell submitted that Policy Control Instruction No. PC 1758 should be looked at in a global way, placing paragraph 2 i n its proper perspective in the context of the whole. He said (transcript 57 line 9):
"... And placing paragraph 2 in proper perspective, in my submission, helps one to see that it does not in truth impose a new criterion at all on the top of the regulations."
Regulation 131A(1)(d)(v) relevantly provided as follows:
"131A(1) The following criteria are prescribed in relation to a December 1989 (temporary) entry permit: ....
(d) On 15 October 1990 and continuously until the Minister decides to grant, or not to grant, the entry permit: ....
(v) there is any other compassionate ground for the grant of an entry permit, to the effect that refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident;
...."
Mr Bell submitted that (transcript 58 line 12):
"an administrator reading this policy would see words such as "sparingly", "most compelling" and so on as just being shorthand ways to express the intention of the regulation itself.
... Thus the words (in the regulation) are ... "would cause extreme hardship" or "irreparable prejudice". ... They are strict and they are high and they are stringent and they are words that speak in such a way as to justify the description "sparingly" or "most compelling" ..."
In my opinion the words in the December 1990 Policy Control Instruction PC 1758 "that this discretion (should) be used sparingly and only in the most compelling cases" were not consistent with the provision in regulation 131A(1)(d)(v) set out above. In my opinion a delegate, when considering whether the refusal to grant an entry permit "would cause extreme hardship or irreparable prejudice to an Australian citizen or Australian permanent resident", is required by the regulation to consider the material before him as to the circumstances of the particular case, including the degree of the hardship likely to be caused and the question of what prejudice, if any, would occur and whether it would be irreparable.
The Policy Control Instruction PC 1758 expressly stated that "the wording of the criterion (in regulation 131A) is designed to ensure that this discretion ... be used sparingly and only in the most compelling cases". I am unable to accept the respondent's submission that the words in the regulation justify the words in the policy "be used sparingly"; nor do they justify the words "only in the most compelling cases". In my opinion the words "be used sparingly" were likely to lead the delegate to be frugal or grudging in making his decision.
The words "only in the most compelling cases" were likely to distract the delegate from his task of considering the circumstances of the particular case before him, including the degree of likely hardship and the nature of any prejudice; they might well lead him to consider whether the hardship or prejudice, in the case before him, could be properly held to be such as to make it a "most compelling case" when compared with the hardship or prejudice in other cases considered by him.
The delegate's duty was to consider the case before him in the light of the words in the regulation. Those who draft policy should remember the danger that lies in using different words from those used in the regulation. They should heed the warning given by Kitto J., who, in Federal Broom Company Pty. Limited v Semlitch (1964) 110 CLR 626 at 633, said "But fallacy lurks in paraphrase".
The delegate, in having regard to that policy, had regard to an irrelevant consideration and failed to properly perform his duty in accordance with the criteria prescribed by regulation 131A(1)(d)(v).
For the foregoing reasons the decision of the delegate will be set aside and the matter to which the decision relates shall be referred back to the respondent to be considered according to law.
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