Patakh, P. v The Minister of State for Immigration Local Government and Ethnic Affairs

[1989] FCA 852

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	) )
GENERAL DIVISION	)

BETWEEN :

RAMNAND PATAKH and

KAMLESH LATA PATAKH

Applicants

AND :

Respondent

CORAM :	SHEPPARD J.
DATE :	17 NOVEMBER 1989

REASONS FOR JUDGMENT

HIS HONOUR: This is an application for judicial rev ,iew of two decisions said to have been notified by the respondent Minister in a letter dated 17 July 1989 written to the appllcants' solicitors. In substance the letter lnformed the applicants that:-

(b)	The Immigration Revlew Panel would not review a decision to
refuse the appllcants' mlgrant entry to Australia whilst the

(a) They were to leave Australia; and

applicants remained in Australia.

There is no issue between the parties that the letter did inform the applicants of these two decisions, but it is contended by counsel for the Minister that the second declsion was not a declslon under an enactment with the consequence that ~t is not open to review under the Administrative Decisions (Judicial Revlew) Act 1977.

The applicants are citizens of Fiji. Mrs. Patakh has a slster livlng in Sydney who has been a naturalised Australian cltlzen for over two years. The applicants wish to come to llve In Australia and make it thelr home.

In August 1987 Mrs. Patakhls sister, Plrs. Smlth, made an appllcation to the Australian Consulate in Suva in which she sponsored the applicants for migrant entry. The appllcation was made pursuant to S. 11A of the Migration Act 1958. The application was refused on 27 October 1988. In the meantime, on 11 July 1988, Mr. Patakh had been granted a visitor's visa in

Suva. On 24 July 1988 he arrlved in Australia and was granted a

temporary entry permit for two months. On 13 September 1988 Mr. Patakh was granted a further temporary entry permit which was to explre on 24 March 1989.

On 24 November 1988 Mrs. Patakh was granted a visitor's visa in Suva and, on 3 December 1988, she arrived in Australia where she was granted a temporary entry permit for one month. On 21 December 1988 she was granted a further temporary entry permlt which was to expire on 3 April 1989.

The facts to date show that, by the end of 1988, an application to sponsor the applicants as migrants had failed and that both applicants were in Australia as vlsitors each with a current temporary entry permit.

On 23 December 1988 Mrs. Smith made an applicatlon to the

Immigration Review Panel for the review of the declslon to refuse

her sponsorship applicatlon. The appllcation was made only in respect of ~ r s . Patakh and indicated that the decision, reconsideration of which was sought, was the refusal of an appllcation "for a migrant vlsa for travel to Australla as a settler". The reason why the application was restricted to Mrs. Patakh was that the Immigration Review Panel 1s not empowered by the Minister to deal with the revlew of sponsorship applications made in respect of persons other than relatives. As was remarked during the course of the argument, however, it would seem unlikely that the Panel would consider the matter otherwise than In the context of Mrs. Patakhts personal circumstances. These

would include the facts that she is married and that she wishes	to be able to live with her husband in Australla. It should be
assumed, therefore, that a successful review of the declslon may enable the two to come here as migrants and not just Mrs. Patakh.
Despite the fact that both temporary entry permits which were granted to the applicants expired in March and April 1989
respectively, both remain in Australia. On 23 Narch 1989 both
applied for further temporary entry permits. In support of their
applications for permits, the applicants relled upon the fact that Mrs. Patakh's "appeal" for permanent residence was pending.
On 2 May 1989, the applications for further temporary entry permits were refused. The decision was notified by letter slgned on behalf of the Regional Director for the South Western Sydney Reglon of the Department. After a reference to the application made by Mr. Patakh, the letter said:-

"Australia's visltor policy requires that applicants for further stay in Australia satisfy decision makers that they wlll ablde by thelr conditions of entry. This relates

specifically to the prohibition on their undertaking formal study or seeking

employment. Visitors are also expected to leave Australia after their lnitial period of authorised stay.

Visitor pollcy provides for an initial perlod of stay of 6 months to genuine visitors. In some cases, a further period of stay may be justified for certain categories of visitors.

The grounds presented in thls case are not sufficient to warrant further extension of temporary entry permit. Departmental pollcy is that the Review should be suspended until the applicant leaves Australia. Your solicitor was advised in writing of this on

Department of your departure so we could then the 30/3/89 and was required to notify our	proceed with the request for reconsideration.
As there are no other reasons presented to warrant further consideration of thls application I must inform you that your appllcatlon has been refused.
Please present evidence of a confirmed booklng to depart Australia within 14 days from the date of thls letter."

On 16 May 1989 the applicants' solicltors wrote to the
Minister seeklng his intervention in respect of the decislon not

to revlew the original appllcation made by Mrs. Smith whilst the

applicants were present in Australia. They sald that the

Minister's revlew was sought on the basis that the declsion was unreasonable and would cause unnecessary financial hardship to the applicants. A variation of the policy was sought. The letter set out the history of the matter and continued:-

"Our submlsslon is that whatever the normal policy applylng to reviews, the Department granted a TEP to the Applicant's husband to visit Australia pending consideration of the migrant application, and to the Applicant wlthin a month after its refusal. The Department would have been aware that a request to review the decision was available. We submit that to then decline to revlew the application whilst the applicant is in Australia is most unreasonable in those circumstances.

In addition, the requirement places an undue financial burden on the applicant and her

famlly, requiring them to pay fares to return to Flji, when a review of thelr appllcation, if successful, would permit them to remain in Australla, thus saving the expense."

After making some further comments, the solicitors informed

the Minister that, pending further consideration of the matter by

the Mlnister and the Department, the applicants had sought	further temporary entry permits pendlng the review.
The response to the sollcitors' letter wrltten to the Minister on 16 May 1989 was the Mlnlster's letter of 17 July 1989 to which reference has already been made. After acknowledging the sollcitors' letter, the Minister's letter continued:-

"I have noted your clalms that the applicants would experience financial hardship if they had to return to Fiji and that their appeal

for migrant entry should be approved.

The grant of a visitor vlsa carries no implication of future access to permanent residence or extended temporary stay or indeed the finallsation of an IRP appeal. Therefore, I am unable to accept that as Mr. and Mrs. Patakh had been Issued with visitor visas this conveyed a right to remain in Australia pending resolution of their IRP appeal. Visitor policy is to allow persons to visit Australia for short periods and is not an avenue for resolving immigration

applications.

Indeed Mr. and Mrs. Patakh were granted vlsitor visas to visit relatives in

Australia. Had the post known that they

would break the conditions of their visa condition they would not have been granted visitor visas. In vlew of these circumstances I do not belleve the flnanclal situation Mr. and Mrs. Patakh find themselves in can justify a decision outside of normal policy.

The resolution of their unsuccessful migrant entry application would best be declded by the IRP itself and not one in whlch I should intervene. When Mr. and Mrs. Patakh leave Australia their IRP application wlll continue to be considered which includes the migration points issue that was raised in your letter.

In vlew of these facts, and as there appears to be no new information to justlfy a decision outside of normal policy, Mr. and Mrs. Patakh should make arrangements to leave

Australia immediately.

AS their case has now been fully examined and

to avoid the need for any future enforcement action they should within the next 14 days notify the Department's South Western Regional Office at 36-38 Raymond Street, Bankstown of their travel arrangements."

The grounds upon which the applicants rely are the taklng lnto account by the Minlster of irrelevant considerations or his omission from account of relevant considerations (paras. 5(l)(e) and (2)(a) and (b) of the Judlcial Review Act), the exercise by the Minister of a discretionary power in accordance with a policy wlthout regard to the merits of the applicants' case (paras. 5(l)(e) and (2)(f)) and error of law (para. 5(l)(f)).

I need first to say something concerning the Mlnister's

submission that the second decislon in question, namely, that the

Panel would not review the decision to refuse the sponsorship application whilst the applicants remained in Australia, was not a declsion under an enactment. Counsel for the applicants relied upon the provisions of subsec. 3(2) of the Judicial Review Act which amplifies the meaning of the expression "the making of a declsion". By paras. (d) and (e) of the subsection, the expression includes the imposition of a condition or restriction and the making of a demand or requirement. The Panel is not established by the Mlgratlon Act but is constituted by the Mlnister to guide him in relation to a variety of decisions which need to be made in relation to the status of visltors to this country and of people, not Australian citizens, who are residents of this country. It is correct to say, I think, that in every case it acts to advise the Minister on decisions whlch are

delegates. So here the Panel, if it does embark upon a review,	eventually made under the Act by the Mlnlster or one of his
wlll make recommendatlons to the Mlnister on the question whether he should review the earlier decision to refuse the applrcants mlgrant status and, after all, grant them vlsas to enable them to come to thls country as settlers.
I think that counsel for the Mlnlster was correct in her submission that there is no decision under an enactment, but I think, as counsel for the appllcants submitted, that the
Minister, in what he is doing or failing to do, is engaging in
conduct for the purpose of "making a decision" wlthin the meanlng of S. 6 of the Act. The Minister has imposed the condition or made the requirement that the appllcants leave Australia before the Panel wlll embark upon the review of the decision made on the
sponsorship application. The case therefore falls within the
language used in subsec. 3(2) of the Act to which I have referred. The Minister's conduct is thus open to review under S. 6 of the Act. The grounds upon which review of such conduct may be undertaken are similar to those which are provided for in S. 5. The same considerations therefore apply in relatlon to review of the second of the decisions in questlon as apply to the revlew of the first. The grounds are identical with those provided for in S. 5 and it follows, in my opinion, that the second declslon, revlew of whlch is sought, is accordingly reviewable under the Judlcial Review Act.
I turn then to the various matters which are relied upon in support of the grounds to which I have referred. In support of
their contention that the Mlnister took irrelevant consideratlons into account, the applicants rely upon the following matters:-

"(a) The fact that the grant of a visltors visa carries no lmpllcation of future access to permanent residence or extended temporary stay or the f~nallsatlon of an Immlgratlon Review Panel appeal, when no implication was maintained by the Applicants;

(b) The fact that as the Applicants had been issued with visitors visas thls did not convey a right to remain in Australla pending resolution of their

Immigration Review Panel appeal, when

no such right had been asserted by
the Applicants;

(C) The fact that the Applicants have broken the conditions of their vlsas when applications to extend their stay have been made only as an adjunct to quite proper applications to the Respondent and thus there have been no such breaches of conditions."

In support of thelr contention that relevant considerations were omitted, the applicants said that the Minister:-

"Failed to appreciate the significance of the Applicants being granted vlsitors visas, in the case of the male Applicant whllst an

application for migrant entry was pendlng,

and in the case of the female Applicant after the refusal of migrant entry had been communicated to the Applicants, but durlng the prescribed appeal period from such decision."

In support of their contention that the Minsiter exercised a
discretionary power in accordance with a policy without regard to

the merits of the applicants' case, the applicants contended

that :-

permlttlng the Immigration Review Panel to	"The Respondent applied a policy of not
proceed with a review of the Appllcantsl
application for migrant entry whllst the
Applicants were ln Australia, thus effectively losing their prlority before that Panel and being inconsistent w ~ t h the grant of temporary entry permits."

Finally, the error of law relied upon was sald to be that the Minister considered that a review by the Panel could not proceed while the applicants remalned in Australia.

In the course of hls submissions, counsel for the applicants suggested that the Minister's letter of 17 July 1989 was not, when properly analysed, responsive to the letter written by the applicants' solicltors on 16 May 1989. Having considered the two letters, I do not think that this is so. what the Minister was at pains to do was to point out to the solicitors that an application made by a sponsor for the purpose of securing the entry into Australia of those being sponsored as settlers, and the applications, firstly for visitors' visas and then for temporary entry permits, were two entirely different things and bore no relationship to each other. It was quite consistent with the general framework of the Act and the way in which the Act is administered for there to be a temporary vislt to Australia b y persons seeking migrant status through a sponsor. But it had to be understood that the vlslt was permitted because it was for the temporary purpose stated by the applicants and could have no effect one way or the other on the success of the sponsorship

application.

In my opinion these considerations show that the Minister's letter was responsive to the letter dated 16 May 1989. Plor? importantly, they put paid to the matters which are relied upon in support of the ground based on the taklng lnto account of irrelevant consideratlons and the omlssion from account of relevant consideratlons. The fact that the applicants may not have maintained that the grant of a visitors' vlsas carrled an

implication of future access to permanent residence or asserted a

right to remaln in Australia once they had been issued with

visitors' visas (or temporary entry permlts) 1s not the point.

What the Mlnlster was doing was making it clear that the two kinds of appllcation are different and Involve different considerations. The applicants appear, by what they have stated in thelr particulars, to be in agreement wlth thls and I fail to see how it can follow that irrelevant considerations have been taken Into account. The same applies to the complaint made about the Mlnisterrs statements that the applicants had broken the conditions of their visas (and temporary entry permlts). The fact that they may have made appllcatlons to extend their stay is not in contest. But the extensions were not granted and their

obligation was to leave Australia. This they dld not do, so that

it was quite correct to say that the conditions of the visas had
been broken.

The matter relled upon in support of the contention that relevant considerations were omitted from account is of a slmllar kind. It is suggested that the Minister failed to appreciate the significance of the grant of the visas during the time when the

prescribed perlod for an application for review to the Panel was	current. The submission Ignores the different nature and purpose
of the two appllcatlons, a sponsored appllcation for mlgrant entry on the one hand, and applications to remain temporarily In
Australia on the other.
The evidence establishes that the Minister has a pollcy not to allow the review of disallowed sponsorship applications to proceed whilst the persons, the subject of the application, are

'I; 12.

in Australia. There is nothing unfair or unreasonable about that

* .-l

policy. It exists for obvlous reasons, namely, to prevent

a

persons who come here from stealing a march over those who abide by the pollcy and await the fate of applications made on their behalf in their own countries. There is no evidence to suggest that there was any £allure on the part of the Mlnister to pay regard to the circumstances of the applicantsf case. His letter of 17 July 1989 shows that he was well aware of the financial difficulties in which the applicants found themselves and took those into account.

The contention that there was an error of law seems to involve the same considerations. Whether that be so or not, I am satisfied that no error of law is revealed in the conduct engaged in or the decisions made by the Mlnister or offlcers of hls Department.

In the result the application is dismissed with costs.

I certify that this and the // preceding

pages are a true copy of the reasons for ludgment herein of The Honourable Mr.

Justice Sheppard.

Associate

Dated , ,ddV.Gw-DER /989