Palko, M.R.S.R v Minister for Immigration & Ethnic Affairs

[1987] FCA 131

Re: MARIE REINE SERIZETTE; RUBY PALKO and EDWARD PALKO
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. VG371 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.

CATCHWORDS

Administrative Law - immigration - review of decisions of delegate to refuse residence and order deportation - whether policy applied was inconsistent with legislation - whether breach of rules of natural justice - whether statement of reasons satisfied requirements of s. 13 ADJR Act - whether findings on material questions of fact made by delegate - uncertainty arising from delegate's adoption of departmental officer's submission satisfactory when officer did not make findings - duty of delegate to express his own "findings"

Administrative Decisions (Judicial Review) Act 1977 ss. 5, 13 Migration Act 1958 ss. 6, 6A, 18, 20

Kioa v. Min. for Immig. & Ethnic Affairs (1985) 62 ALR 321

HEARING

MELBOURNE

#DATE 6:3:1987

Counsel for the Applicant : Mr. A. Bonnici

Solicitors for the Applicant : Messrs. Walkers

Counsel for the Respondent : Mr. T. North

Solicitors for the Respondent : Australian Government Solicitor

JUDGE1

This is an application under the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) for review of three decisions of a delegate (the delegate) of the respondent Minister for Immigration and Ethnic Affairs, made on 24 July 1986, in respect of the first applicant, Marie Reine Serizette Ruby Palko. They are described in the application as being "the decision of the Respondent that:

1. The first Applicant be refused a further temporary entry permit.

2. The first Applicant be refused permanent residence in Australia.

3. The issuing of an order for the deportation of the first Applicant from Australia."

A statement of reasons in respect of the decisions, signed by the delegate on 6 November 1986, was furnished to the first applicant.

1. The second applicant became the husband of the first applicant on 23 August 1986 i.e. after the date of the three decisions. The first applicant had been married to one France K'Nell on 14 March 1984; in an affidavit she deposed that she was separated from him when, in May 1985, the second applicat, whom she had met on 24 December 1984, asked her to marry him.

2. Pursuant to orders made by Jenkinson J. on 31 October 1986 and Woodward J. on 5 December 1986, the applicants supplied further and better particulars of the grounds of the application for review which had been filed on 27 October 1986. Those particulars referred to a telegram to the applicants' solicitors, from one J. Stankevicius, dated 28 October 1986 (i.e. after the filing of the application for review). Because of the wording of those particulars, and the reference to the telegram, the applicants' solicitors were asked by my associate to serve on the respondent and file in the court a document containing sufficient information to clarify the grounds of the application. A document containing "amended further and better particulars of the grounds of the application" was filed on 13 February 1987.

3. On the first day of the hearing Mr. Tim North, of counsel, on behalf of the respondent, objected to any consideration by the court of the particulars contained in paragraphs 1(b), 2, 3(a) and 4 of the "amended further and better particulars". He relied, amongst other things, on the fact that those particulars related to events which had occurred after the date (24 July 1986) of the decisions which were the subject of the application for review. Those events included (1) the marriage of the two applicants on 23 August 1986, (2) an application by the first applicant, dated 21 October 1986 for permanent resident status as the spouse of an Australian resident and (3) a telegram dated 28 October 1986, on behalf of the Secretary to the Department of the respondent Minister, informing her solicitors, amongst other things, that "it is not possible to grant an entry permit to" her because she "is the subject of a deportation order".

4. Mr. North also submitted that the application for review could not be amended in such a way as to include those matters, relying on the principle referred to by the High Court in Wigan v. Edwards and Anor. (1973) 1 ALR 497. Those matters were the subject of some submissions, and the applicants counsel, Mr. Bonnici, said that he would call his instructing solicitor to give evidence as to what had occurred in the hearing before Sweeney J. on 24 October 1986; that evidence was to deal with the matter of what the solicitor had been led to believe as to the matters that could be raised in the present proceedings. However, on the last day of the hearing Mr. Bonnici stated on behalf of both applicants that they intended to lodge a fresh application for review in relation to those matters, instead of seeking to pursue them in the present hearing.

5. As a result, only two grounds were pursued in the present hearing - grounds 1(a) and 3(b) of the amended further and better particulars. It is convenient to deal first with the second ground as that can be done more briefly. As stated in the amended further and better particulars, filed on 13 February 1987, it was as follows:-
   
   

"That the "Policy on Illegal Immigrants" tabled in the House of Representations

(sic) by the Respondent in October, 1985 as applied to the firstnamed Applicant in paragraphs 32, 33, 34, and 42 in the Statement of Reasons adopted by A.J. Goward, Delegate to the Minister of State for Immigration and Ethnic Affairs dated 6th November, 1986 is inconsistent with the provisions of sections 6 and 6A of the Migration Act 1958."

It is not necessary to set out the terms of paragraph 42 at this stage but it is desirable to give the text of paragraphs 32, 33 and 34 of the departmental submission, the "reasoning" of which was "adopted" by the delegate in the statement of reasons. They read as follows:

"32. On 17 October 1985 the Minister tabled in the House of Representatives a comprehensive policy on illegal immigrants. To summarise the policy on illegals in general, it stated, among other things, that illegal immigrants threaten the orderly management of Australia's planned migration program and jeopardise the acceptance of a very large number of visitors. Management of the migration program relies heavily on isuing visas and entry permits in good faith to persons prepared to abide by their conditions of issue. Persons who are not prepared to go through normal selection processes overseas and/or do not enter Australia in good faith are not entitled to abuse Australia's immigration policy and laws at the expense of both unemployed Australian residents and those persons properly waiting overseas. Persons who, in making their own decisions to live in Australia, break Australia's laws, must expect to face the consequences, including prosecution and removal from Australia.

33. Turning to the particular case of Ms. K'Nell (now Mrs. Palko, the first applicant) she is an illegal immigrant who is not the holder of an entry permit in force. Ms. K'Nell was twice refused the grant of a further temporary entry permit (TEP) in early 1984. It remains possible to regularize her status in Australia by the grant of a further TEP, but having regard to the applicable policy and the following factors you may be of the view that such a grant is inappropriate:

. her visitor visa was issued in the belief that the purpose of her visit was bona fide and of the availability of a return airfare;

. her applications after arrival for a further TEP were largely on the basis of matters that existed at the time of issue of her visitors visa and her entry into Australia. She was then directed to depart but did not do so;

. she has stayed in Australia well beyond the period normally granted to visitors to Australia;

. she could not reasonably be seen as having an intention to remain in Australia as a visitor.

34. On the question of eligibility for grant of a permanent entry permit (as distinct from a temporary entry permit), as the spouse of an Australian resident Ms. K'Nell fulfils the condition of paragraph 6A(1)(b) of the Migration Act 1958 for the grant of such a permanent resident entry permit. The policy statement on illegal immigrants includes a section headed "Marriage", which says:

"Marriage

The Migration Act and migration policy provide eligibility concessions for foreign nationals who have married an Australian citizen or permanent resident, or who have an Australian citizen child. But eligibility to apply for residence does not carry an automatic entitlement to residence. In such circumstances, the interests of the resident family or child are taken into account and are weighed, along with other factors, in the eventual decision.

Marriage to an Australian, or the existence of an Australian citizen child, does not confer upon illegal immigrants the right to choose their country of residence. Each case will be treated on its own merits."

It would be appropriate to apply this section of policy in respect to Ms. K'Nell's eligibility under section 6A(1)(b) of the Act and determine her case on its merits as the policy requires."

1. Paragraph 34 set out part of the policy. Mr. Bonnici submitted that the delegate had relied upon that policy in such a way as to inhibit the proper exercise of his discretion: in particular he submitted that the policy's reference to "illegal" immigrants (see paragraph 34) suggested that a person who did not have a temporary entry permit "has got to pass a higher test than somebody else who is not illegal". He sought to support that submission by reference to the reasons for judgment of Davies J., with which reasons Evatt J. agree, in Tang and Anor. v. Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177. He also relied upon the reasons for judgment of Lockhart J. in Sundar v. Minister for Immigration and Ethnic Affairs (unreported - delivered 27 November 1986). Having considered those decisions carefully I am unable to conclude that the applicants' submission gains any support from either of them. Accordingly that ground fails.

2. The first ground was stated in the amended further and better particulars, filed on 13 February 1987, as follows:
   
   

"The Statements contained in paragraphs 16 and 42 in the Statement of Reasons adopted by A.J. Goward, Delegate of the Minister of State for Immigration and Ethnic Affairs dated 6th November, 1986 are extremely prejudicial to the first named Applicant. The first named Applicant should have had the opportunity of replying to them but was not given the opportunity to do so."

1. That particular refers to paragraphs 16 and 42 of the departmental submission which were adopted by the delegate. They read as follows:-
   
   

"16. The Melbourne office file records that the Applicant's spouse telephoned the Department on 13 August 1984 and advised that the Applicant had left him on 29 July 1984 and had returned to live with her grandmother, and that the marriage had been agreed to only for the purpose of gaining permanent residence.

. . . .

42. To balance against the factors in favour of Ms. K'Nell, described in the above paragraphs, I submit it would be appropriate to take into account the following:

. Ms. K'Nell nee Cossigny has been an illegal immigrant, now termed a prohibited non-citizen under the Migration Act, since the only TEP issued to her, on her arrival, expired in late January 1984;

. Ms. K'Nell subsequently was refused further temporary stay and was directed on 2 occasions to depart Australia but failed to do so;

. Ms. K'Nell committed an offence under the Migration Act in becoming a prohibited immigrant (later termed prohibited non-citizen);

. she later entered into marriage with Mr. K'Nell, and later again the relationship with Mr. Palko, when she was facing the prospect of being considered for deportation from Australia;

. Ms. K'Nell applied for permanent residence on the basis of marriage to Mr. K'Nell but her application was refused on 16/8/85 in view of the assessment that their marriage was not bona fide. At that time Ms. K'Nell was evidently involved in a relationship with Mr. Palko such as had led him to propose marriage but she did not so inform the Department - the relationship emerged only in the commencing of an application to the Federal Court for review.

. from the above it might reasonably be concluded that the marriage to Mr. K'Nell was entered into probably for the purpose of gaining permanent residence for the Applicant. This view is supported by the recently-emerged circumstance that, at the very time of interview of Mr. and Mrs. K'Nell in June 1985 when they purported to be man and wife, in the real sense, for the purposes of her application for permanent residence, Mrs. K'Nell had in fact earlier in May 1985 received and apparently accepted, a marriage proposal as the culmination of a relationship with Mr. Palko.

. On the other hand, if the marriage to Mr. K'Nell was not an arrangement of convenience for Mrs. K'Nell, then some shadow is cast on the relationship with Mr. Palko, at least at the time when both the marriage and the relationship were seemingly in parallel. Whatever the view of the matter, it would seem Ms. K'Nell has been deceitful in some of her statements to the Department."

1. The essence of this ground is a contention that the delegate denied natural justice to the first applicant by failing to give her an opportunity to reply to the allegation that her earlier marriage to Mr. K'Nell was not a bona fide marriage in that it "had been agreed to only for the purpose of gaining permanent residence" (paragraph 16).

2. The respondent submitted that the delegate was not under an obligation to give to the first applicant an opportunity to reply to that allegation, and, in the alternative, that if he were under such an obligation, he had given the first applicant an opportunity to deal with it. In my opinion the respondent's first submission cannot be upheld consistently with the principles enunciated by the High Court in Kioa and Ors. v. Minister for Immigration and Ethnic Affairs & Anor (1985) 62 ALR 321. The following passages are apposite:
   
   

"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." - per Mason J. (at p. 348)

"The allegation was clearly prejudicial to the application to be allowed to stay in Australia. Ordinarily, procedural fairness would require that such an allegation be put to them and they be given an opportunity to answer it before a decision was made. Unfortunately, that course was not followed." - per Wilson J. (at p. 360)

"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. . . . 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 para 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 a risk of prejudice which ought to have been removed." - per Brennan J. (at p. 380).

In my opinion procedural fairness required that the first applicant be given an opportunity of responding to the allegation (in paragraph 16) that her marriage to Mr. K'Nell had been "agreed to only for the purpose of gaining permanent residence".

1. As to the respondent's alternative submission, it was contended that an opportunity to respond to the allegation had been given on 11 October 1985 when the respondent's department supplied a copy of the statement of reasons (dated September 1985) for refusing "to grant resident status to her". That statement of reasons, under s. 13 of the Judicial Review Act, was prepared in response to a request by Messrs. Walkers, the first applicant's solicitors. They had been her solicitors since at least 29 August 1985 and had accompanied her to the department when she attended for a further interview on 23 April 1986. They were also her solicitors in the proceedings in this court, commenced on 10 September 1986, relating to the decision, made on 14 August 1985, in respect of which reasons were supplied on 11 October 1985.

2. The September 1985 statement of reasons contained, as a finding on material questions of fact, the following:-
   
   

"8. On 13 August 1984 Mr. K'nell telephoned Mrs. Magee to advise that his wife had left him on 29 July and returned to live with her grandmother. He stated that he had been informed that his wife agreed to the marriage only for the purpose of gaining permanent resident status."

1. In my opinion the communication to the first applicant's solicitors on 11 October 1985, of the statement made in that paragraph of the September 1985 statement of reasons, was sufficient to fulfil the respondent's obligation to give to the first applicant an opportunity to respond to the allegation that her marriage to Mr. K'Nell had been "agreed to only for the purpose of gaining permanent residence". The respondent's reliance upon that communication was supported by the fact - conceded by Mr. Bonnici - that on 20 November 1985 the first applicant's solicitors had in their possession documents from the departmental file; those documents included the file note (folio 38) relating to the telephone conversation on 13 August 1984 in which it was suggested that the first applicant's marriage to Mr. K'Nell had been entered into "only for the purpose of gaining permanent residence".

2. Accordingly, in my opinion the first applicant was given an opportunity to respond to that allegation and the respondent's alternative submission must be upheld. It should be added that the applicants sought to place reliance upon the fact that paragraph 16 of the departmental submission, adopted by the delegate in the statement of reasons dated 6 November 1986, was in somewhat different terms from paragraph 8 (above) which accurately recorded the file note (folio 38 of the departmental file) relating to the telephone conversation on 13 August 1984. However, in my opinion there is no substance in that submission because the opportunity which in my opinion was given to the first applicant to respond was an opportunity to respond to the allegation as it was recorded in paragraph 8 above and in the file note in folio 38. Accordingly the first ground, as stated in the amended further and better particulars, filed on 13 February 1987, fails.

1. It is desirable to refer to the form of the delegate's statement of reasons although, as Mr. North pointed out, no attack was made by the applicants upon the form of the statement of reasons. A considerable amount of time was spent during the hearing in seeking and hearing submissions as to precisely what "findings on material questions of fact" had been made by the delegate - particularly on the matter going to the ground based upon the principles of natural justice. The respondent's counsel submitted that the delegate found that at the time of his decision the marriage was not genuine and was a marriage in name only. Because it appeared to be relevant to any such finding, counsel was asked whether there was a finding that the marriage was not genuine at the time of its celebration; that question was asked in the light of the allegation, referred to in paragraph 16 of the departmental submission, "that the marriage had been agreed to only for the purpose of gaining permanent residence". In connexion with that question, counsel's attention was drawn to the following passage in paragraph 42 of the departmental submission (the full text of which has been set out earlier), namely:
   
   

". . . from the above it might reasonably be concluded that the marriage to Mr. K'Nell was entered into probably for the purpose of gaining permanent residence for the (first) Applicant."

(It will be noted that that paragraph is one of the paragraphs in section "C. Assessment" of the departmental submission, as to which the delegate said that he "adopted the reasoning set out in the assessment at Part C of that submission and that sets out the reason for my decision.")

1. In response to the question, the respondent's counsel submitted that the delegate did not make a finding that the marriage was not genuine at the time of its celebration; however, he submitted that the material on that question was "one of the factors balanced" by the delegate in reaching his conclusion that, at the time of his decision, the marriage was one in name only. Counsel's attention was drawn to the difficulty of "balancing", in the exercise of a discretion, a material fact in respect of which no conclusion has been reached by the delegate.

2. The difficulty in ascertaining precisely what "findings on material questions of fact" had been made by the delegate arose from the fact that the delegate had not expressly formulated, in his one page statement of reasons, his "findings on material questions of fact"; instead, he had "adopted the findings at Part A of" the departmental submission. It appears that, in following that course, the delegate was acting in accordance with a practice followed by delegates.

3. The departmental submission contained, as is the practice, a section headed "A. Findings on material questions of fact". However, notwithstanding that heading, the departmental submission in my opinion did not contain any "findings on material questions of fact" made by the officer signing it; nor would it have been any part of his function to make any such findings. The departmental submission stated its "purpose" as including a recommendation to the delegate "that you adopt the findings on material questions of fact and the assessment set out below . . .". However, despite that reference to "the findings", despite the headings to sections A and B of the submission and despite the officer's use, in paragraph 30 in section B, of the words "(I)n making the above findings I had regard to . . .", that submission does not mean, in my opinion, that the officer had made findings. His function appears to be to present to the delegate a document setting out information which he considers relevant, referring to "evidence or other material" regarded by him as being relevant to findings to be made by the delegate and to make a recommendation as to certain decisions. It appears from the departmental submission that the officer was recommending that the "findings" in section A be adopted i.e. they were proposed "findings" and not findings that the officer had made.

4. Difficulty arises from the practice of framing the departmental submission in a form which includes "A. Findings on material questions of fact" followed by "B. Evidence or other material on which the findings are based". That practice, in my opinion, is not consistent with the role of an officer of the department who does not have the function of making any "findings on material questions of fact"; it follows that it is not correct for him to set out, as the departmental submission seeks to do, his "findings", nor is it correct to list the "evidence . . . on which the findings are based" and to say, as he did, that in "making the above findings I had regard to the following material".

5. The difficulty to which I have referred does not lie merely in the way in which the delegate's reasons and the departmental submission are worded. Section 13 of the Judicial Review Act required the delegate to prepare and furnish "a statement in writing setting out the findings on material questions of fact . . . and giving the reasons for the decision". In my opinion the "findings" which the delegate has "adopted" are, in a number of instances, not "findings on material questions of fact". For example, paragraphs 26, 28 and 29 contained various summaries by the departmental officer. Paragraph 26 summarized parts of an affidavit by the first applicant in support of an application to the court on 10 September 1985. Paragraph 28 summarized matters set out in a statutory declaration by her, dated 23 April 1986, and paragraph 29 contained his summary of matters dealt with in a statutory declaration by the second applicant, dated 6 June 1986. In my opinion those paragraphs, notwithstanding that they were included in the departmental submission under the heading "findings on material questions of fact" and notwithstanding that those "findings" were "adopted" by the delegate as his "findings on material questions of fact", did not contain any such findings by the delegate in respect of the statements made in the affidavit and the two statutory declarations. The contents of those three paragraphs could only be said to be "findings" that the statements had been made by the applicants.

6. The matters as to the form of the delegate's statement of reasons and the departmental submission, to which I have referred, have not affected the conclusions already expressed as to those grounds which have been the subject of submissions. However, having regard to the lengthy discussion on this aspect in the present hearing, it has seemed to me to be desirable to draw attention to the problems which can arise as a result of the practice of the delegate "adopting" the "findings on material questions of fact" and "the reasoning set out in the assessment" in the departmental submission.

7. Doubtless the pressures of work operating upon a delegate are such that he is greatly assisted by a practice which enables him to adopt the findings and the reasoning where he is persuaded that that is the proper course to follow on the material before him. However, in my opinion, the delegate should formulate in writing and express in his statement of reasons the conclusions which he has reached on all material questions of fact, having regard to the obligation on him, under the Judicial Review Act, to prepare and furnish, when requested, a statement under s. 13 of that Act.

8. It is in my view highly desirable that there be a clearer differentiation of function between that of the delegate on the one hand and that of the officer preparing the departmental submission on the other. The difficulty in ascertaining precisely what findings have been made by a delegate (which has been the subject of submissions in the present case) stems primarily, in my opinion, from the attempt to make the one document (i.e. the departmental submission) perform two quite separate functions.

9. One function - which appears to be its appropriate function - is to make recommendations to the delegate; the submission includes a summary of factual material which may vary in its significance from material which may well be regarded by the delegate as being of considerable relevance, on the one hand, to material that may well be regarded by him as being background information of little relevance on the other.

10. The other function of the departmental submission, as it is drafted in practice, appears to be to provide the delegate, at a time when he has not decided the matter (and perhaps has not even given any consideration to the matter) with a document drafted in such a way that it can be "adopted" by him for the purpose of fulfilling his statutory obligation under s. 13 of the Judicial Review Act "to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision". There are obvious difficulties in drafting a document intended to fulfil that function before the decision has been made.

11. The difficulties which may arise in seeking to ascertain what conclusions of fact on material matters have been reached by the delegate are illustrated by the wording of the passage, quoted earlier, from paragraph 42 of the departmental submission that "it might reasonably be concluded that the marriage was entered into probably for the purpose of gaining permanent residence . . ." (emphasis added). That passage was part of "the reasoning" which was expressly adopted by the delegate as setting out "the reason for (his) decision". That is the passage which, in the submission of the respondent's counsel (referred to earlier), did not amount to a finding that the marriage was not genuine at the time of its celebration; it was one of the factors "balanced" by the delegate. In referring to that it should be made clear that no criticism whatever is intended of the respondent's counsel, who defended the departmental submission in a very able manner; it is the manner in which the departmental submission was drafted and its adoption by the delegate that is open to the criticism which has been made in these reasons.

12. Shortly before reserving my decision in this matter, counsel for the parties put submissions as to possible future steps in the matter. The applicants' counsel stated that a fresh application would be filed based upon matters which he had sought to argue in the present proceedings. Those matters were the subject of objection by the respondent's counsel on a number of grounds, including (a) the fact that they related to a "decision" given on 28 October 1986 i.e. after the lodging of the application the subject of these proceedings, and (b) contentions that there was no relevant "decision" and that the first applicant, because she was the subject of a deportation order, could not, as a matter of law, make the application the subject of the "decision".

13. For the reasons given the applicants have failed to establish either of the grounds advanced at the hearing.