Perera v Minister for Immigration, Local Government and Ethnic Affairs
[1992] FCA 77
•27 FEBRUARY 1992
Re: DOMINIC FELIX MAXIMUS PERERA
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G122 of 1991
FED No. 77
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.(1)
CATCHWORDS
Administrative Law - natural justice - whether breached by failure to give applicant an opportunity to respond to material obtained relating to matters asserted by applicant - whether relevant considerations not taken into account - whether recommendation by Immigration Review Panel was an irrelevant consideration - whether recommendation vitiated by its reference to "special treatment" - whether decision "so unreasonable".
Administrative Decisions (Judicial Review) Act 1977
Migration Act 1958
Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 339
HEARING
MELBOURNE
#DATE 27:2:1992
Solicitors for the applicant: Howie and Maher
Counsel for the applicant: Mr P. Rose
Solicitors for the respondent: Australian Government Solicitor
Counsel for the respondent: Mr R. Huttner
ORDER
The application be dismissed.
The applicant pay the respondent's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Dominic Felix Maximus Perera, a citizen of Sri Lanka, ("the applicant") has applied under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") to review the following decisions of a delegate ("the delegate") of the respondent:-
"1. That the Applicant not be granted a further temporary entry permit;
2. That the Applicant not be granted permanent residence in Australia on compassionate and humanitarian grounds; ....
4. That the Applicant be required to depart Australia."
It was common ground between Mr Rose, who appeared for the applicant, and Mr R. Huttner, who appeared for the respondent, that the decisions were made under the provisions of the Migration Act 1958 in the form in which it existed immediately before the substantial amendments which came into operation on 19 December 1989.
The delegate's reasons for decision ("the delegate's reasons"), furnished under s. 13 of the Judicial Review Act in response to the applicant's request, included the paragraphs set out below. (It will be noted that those reasons at times refer to "the Applicant" and at other times to "the Applicants" - presumably referring to the applicant and his wife):-
"REASONS FOR MY DECISION
9. ....
I accepted that the Applicants would be eligible to be considered for the grant of resident status in Australia if their circumstances were such as to bring them within the two conditions specified in paragraph 6A(1)(e) of the Act, namely, that they are the holders of temporary entry permits which are in force and there are strong compassionate or humanitarian grounds for the grant of resident status in Australia.
10. The Applicants had valid temporary entry permits when their application for permanent resident status was lodged (and) I noted that it was open to me to grant further temporary entry permits to the Applicants to enable them to satisfy this legal requirement. I then set out to consider whether they satisfied the second condition of 6A(1)(e), namely whether there were strong compassionate or humanitarian grounds applicable to them for the grant of resident status.
11. In deciding whether the Applicant fulfilled the second condition of paragraph 6A(1)(e) of the Act, I accepted:
(i) That the Applicant had undergone bowel surgery in Australia and was required to maintain a special diet and undergo regular check-ups to keep his condition stable.
(ii) That the Applicant and the said son share a close relationship and the return of the Applicants to Sri Lanka may cause the son worry about his father's health and well being.
12. I did not consider however, that these claims either individually or collectively constituted strong compassionate or humanitarian grounds.
13. I accepted that Mr Perera's medical condition was of concern to both him and his family. However on the basis of all medical evidence available I formed the opinion that medical facilities and the availability of drugs in Sri Lanka are adequate to meet his needs. Whilst Mr Perera may need to alter his diet on return to Sri Lanka, there is no evidence to suggest that he could not follow a high protein/high energy diet there.
14. In reaching these conclusions, I have placed weight on the information received from this Department's International Section and the Department of Community Services and Health, which state that whilst some hospitals are still closed (particularly private hospitals), the situation has in fact eased and the medical services available in Colombo would be quite adequate to meet Mr Perera's needs.
15. I also placed weight on information received by Dr. Mary Stannard from Maribyrnong Medical Centre who stated that when Mr Perera was last seen he was quite well, therefore there was no reason why he could not travel and while his cancer could recur in the future, regardless of where he lives, there seemed to be no reason as to why he should remain in Australia.
16. I also placed considerable weight on information provided by the Australian High Commission in Colombo that hospitals in Sri Lanka were open again and there is no general boycott on the importation of drugs should Mr Perera require them. I also noted that on 18 October 1989, the Applicant's surgeon indicated to the case Officer that the Applicant did not require any medication at that time.
17. I accepted that the communal unrest in Sri Lanka may make travel more difficult in parts of that country. However the Applicants reside in Colombo and should have little difficulty accessing hospital services in that city.
18. I accepted that the Applicants' daughters may be hampered in providing assistance because of the communal unrest through strikes and curfews. However these are not permanent and the Applicants' daughters would have the same degree of mobility as other residents of Sri Lanka without private transport.
19. I accepted that Mr Perera would have to change his surgeon in Sri Lanka, however I did not accept that doctors in Sri Lanka would have difficulty in following his case.
20. On the basis of the information provided by the Department of Community Services and Health and the Australian High Commission in Colombo I accepted that the treatment of his condition is available in Sri Lanka and therefore I did not consider that Mr Perera's return there would jeopardise his health.
21. I did not accept that the communal unrest in Sri Lanka would prevent the Applicants applying for migrant entry to Australia from Colombo. Many migrant entry applications are lodged with the Australian High Commission in Sri Lanka daily. The Applicant and his wife and more recently their daughter who is on holiday in Australia were able to apply for and obtain visitor visas at the High Commission in Colombo despite the communal unrest.
22. Mrs Perera will turn 60 - the age at which women can retire in Australia - on 25 November 1990 as evidenced by her passport. As the legal precondition of age under 6A(1)(b) cannot be met until that date, consideration under this sub-section of the Act was not an option.
23. I also placed considerable weight on the recommendation of the Immigration Review Panel who had independantly (sic) examined the applicants case in total and recommend that they should be refused resident status.
24. I also took into account, but was not bound by, policy as set out in the grant of Resident Status Handbook (edition: 6)
Paragraph 2.3 states:
Compassionate circumstances relate to the misfortunes and sufferings which people experience in their personal lives brought about by unusual or distressing circumstances which relate to them as individuals.
25. In summary I considered that the Applicants claims seen individually or collectively, did not represent strong compassionate or humanitarian grounds and I decided therefore, that the second condition of paragraph 6A(1)(e) of the Act had not been fulfilled and that the application be refused. EVIDENCE OR OTHER MATERIAL UPON WHICH I RELIED IN REACHING MY DECISION
26. In reaching my decision based on the findings on material questions of fact, I had regard to: a) the original application for Resident Status lodged on 2 May 1988, including supporting documentation provided by the Applicant b) the letter from Maribyrnong Medical Centre dated 8 August 1989 concerning the Applicant's fitness to travel (folio 19)
c) the comment dated 8 August 1989 made by Dr Pincus, dated 8 August 1989 concerning the adequacy of medical services in Colombo (folio 21)
d) the Departmental report of 30 August 1989 e) the Departmental refusal letter of 31 August 1989 f) the Second Application under the Migration Regulations lodged on 22 September 1989, including supporting documentation provided by the Applicant g) the file note on Hospital Facilities in Sri Lanka dated 13 October 1989 h) the file note of Case Officer, Carmen Muscat recording her telephone conversation with Mr Ross dated 18 October 1989
i) the cable from the Australian High Commission Colombo dated 25 October 1989 j) the case officer's report to the Chairman, Immigration Review Panel dated 13 November 1989 k) the recommendation of the Chairman, Immigration Review Panel dated 3 December 1989 l) Grant of Resident Status Handbook."
The first "ground" in the application was numbered 2 and it is desirable that in these reasons the same numbers be used.
Ground 2 read as follows:
"2. A breach of the rules of natural justice occurred in connection with the making of the decisions by the Respondent in that:
(a) the evidence relied upon by the Respondent is not reasonably capable of sustaining each decision that has been made;
(b) the Respondent did not properly consider all medical evidence submitted by the Applicant in support of his application and in particular the report of the treating surgeon, Professor Ross dated 12th September, 1989;
(c) the Respondent did not give Applicant any or any adequate opportunity to respond to the material obtained independently by the Respondent as to the availability and adequacy of medical and hospital services, the special dietary requirements needed by the Applicant, the availability of drugs in Sri Lanka and the extent and effect of the communal disruption in that country on provision of those medical and hospital services."
As to 2(a) I am satisfied that each decision made was one which was open to the delegate on the evidentiary material before her. The material before the court did not support the contention in 2(b) that the delegate did not properly consider all of the medical evidence submitted by the applicant, including the report of Professor Ross.
As to 2(c) in my opinion the principles of natural justice did not require that the applicant be given an "adequate opportunity to respond to the material obtained independently" by the delegate as to the matters set out in ground 2(c). As Mason J. said in Kioa v West (1985) 159 CLR 550 at 587:-
"The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward."
In my opinion the applicant's ground 2(c) does not gain any support from the reasons for judgment of Jenkinson J. and of Gummow J. in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 339 at 347-349 and 358-360 respectively.
Accordingly ground 2 cannot be upheld because it has not been shown that any breach of the principles of natural justice occurred in connection with the making of the decisions by the delegate.
Ground 3(a) read as follows:-
"3. There was an improper exercise of the power conferred on the Respondent in that:
(a) there was a failure to take into account all relevant considerations in the exercise of the power."
There followed particulars (i) to (ix) of "relevant considerations not taken into account" but particular (ix) was abandoned at the hearing of the appeal. Having considered each of the particulars (i) - (viii) inclusive, and examined the delegate's reasons, in my opinion it has not been shown that the delegate failed to take into account any relevant consideration.
Ground 3(b)(i), as amended by leave during the hearing, was in the following terms:-
"3. There was an improper exercise of the power conferred on the Respondent in that:
....
(b) the Respondent took into account irrelevant considerations in the exercise of its power namely -
(i) that the Applicant's daughters would have the same level of mobility as other residents of Sri Lanka during the civil strife in that country".
As to ground 3(b)(i) in my opinion the delegate's reasons (cf. paragraph 18) show that the delegate did not take into account the alleged irrelevant consideration; the words referring to the daughters' level of mobility were simply made by the delegate by way of comment after she had expressly "accepted that the Applicant's daughters may be hampered in providing assistance because of the communal unrest through strikes and curfews".
Ground 3(b)(ii) was added, by leave, during the hearing. It read as follows:-
"3. There was an improper exercise of the power conferred on the Respondent in that:
....
(b) the Respondent took into account irrelevant considerations in the exercise of its power namely - ....
(ii) the recommendation of the Immigration Review Panel that, having independently examined the applicant's case, it determined that the circumstances of the case are not such as to warrant special treatment and that the departmental decision be maintained and explained."
Leave to amend in those terms was granted after Mr Rose had sought to advance that contention in his address. Before the terms of the amendment were formulated, that proposed new ground appeared to the court to be one of some substance. However, having reflected on it and having read the transcript of the address in support of it by Mr Rose and that of Mr Huttner on behalf of the respondent, I have come to the conclusion that the ground cannot succeed. I accept the submission of Mr Huttner that the recommendation by the Immigration Review Panel was not an irrelevant consideration and was a matter which the delegate could take into account.
Mr Rose also attacked the delegate's decision on the ground that it placed considerable weight on the recommendation of the Immigration Review Panel, which recommendation, in his submission, was flawed in that the Chairman made the recommendation after he "concluded that the circumstances of this case are not such as to warrant special treatment" (Exhibit C). It was put that the reference to "special treatment" demonstrated that the Panel Chairman approached his task on a wrong basis i.e. that he considered that the applicant could not succeed in his application unless he established circumstances that would justify "special treatment" of his application.
Having considered that argument, I have come to the conclusion that I should accept Mr Huttner's submission that the Chairman, in using (in Exhibit C) the words "not ... warrant special treatment" meant no more than that he (the Chairman) considered that the applicant had failed to show that his application for permanent resident status should be granted, notwithstanding the existing policy. The meaning would have been clearer if the Chairman had not used the words "special treatment"; however, in considering the meaning of the words used by the Chairman I have borne in mind the following statement in Smith v Minister for Immigration and Ethnic Affairs (1984) 53 ALR 551 at 554 by Lockhart J., with whose judgment Bowen C.J. and Sheppard J. agreed,:-
"As has been said by judges of this court more than once, it is not legitimate to scrutinize reasons for decisions of government officers too finely or precisely. Such reasons should be studied carefully but sensibly, and not zealously in the pursuit of error."
Accordingly grounds 3(b)(i) and (ii) cannot be upheld.
Under ground 3(c) the applicant claimed that there was an improper exercise of the power conferred in that the "exercise of power by the Respondent was so unreasonable that no reasonable decision-maker could have exercised the power in the way the Respondent did."
Particular (i) of this ground (which was amended by leave granted during the hearing) adopted the particulars sub-joined in paragraphs 2, 3(a) and 3(b). Paragraph 2 related to the alleged breach of the rules of natural justice; paragraph 3(a) to the alleged failing to take into account relevant considerations; paragraph 3(b) to the alleged taking into account of irrelevant considerations, including the recommendation by the Immigration Review Panel. Each of these particulars has already been referred to earlier in these reasons for judgment and it is sufficient to say that they do not support the contention that the decision was so unreasonable that no reasonable decision-maker could have so decided.
Particular (ii) of ground 3(c) is rejected because the delegate's reasons, set out earlier, show that the delegate did not fail to consider the matters alleged; they also show that the delegate did not rely "solely on those matters referred to in paragraphs 14, 15, 16 and 20 of the Statement of Reasons ...".
As to particular (iii) of ground 3(c), in my opinion the delegate was entitled to place weight on the statement by Dr Stannard (Exhibit A) that when the applicant "was last seen on 3rd March 1989 he was quite well ... there seems to be no immediate reason why he should stay in Australia". It was a matter for the delegate to determine what weight should be attached to that statement.
For these reasons I am quite unable to uphold the contention in ground 3(c) that the delegate's decision "was so unreasonable that no reasonable decision-maker could have exercised the power in the way (it was exercised)".
Ground 4 was that:-
"The Respondent's decision involved an error of law, in that there was no sufficient or no probative evidence before the Respondent to enable the making of several material findings in the Statement of Reasons of the Authorised Officer."
It then set out particulars (i), (ii) and (iii).
In my opinion the delegate did not decide, as claimed in particular (i), that "the applicant should have no difficulty accessing hospital services in Colombo"; she found that he "should have little difficulty" (cf. paragraph 17 of the reasons). That was a question of fact and degree for the delegate to decide on the material before her. As to particular (ii) of ground 4, in my opinion it was open to the delegate to find on the material before her, "that medical facilities and the availability of drugs in Sri Lanka are adequate to meet his needs" (cf. paragraph 13 of the reasons). Similarly it was open to her on that material to refuse to "accept that doctors in Sri Lanka would have difficulty in following his case" (cf. paragraph 19 of the reasons). As to particular (iii) in my opinion it was open to the delegate to find, on the material before her, that there was "no evidence to suggest that (the applicant) could not follow a high protein/high energy diet there" i.e. in Sri Lanka (cf. paragraph 13 of the reasons).
Lastly, it was contended in the applicant's written contentions of fact and law (paragraph 3(8)) that the delegate had only looked at the various matters on an individual basis and had "failed to take into consideration the collective and total effect of all the grounds on which the application was made". That contention was strongly pressed by Mr Rose but it is rejected. I accept that the delegate, in considering the application, acted in the manner described by her in paragraph 25 of the statement of reasons:-
"In summary I considered that the Applicants claims seen individually or collectively, did not represent strong compassionate or humanitarian grounds and I decided therefore, that the second condition of paragraph 6A(1)(e) of the Act had not been fulfilled and that the application be refused."
As none of the grounds has been upheld, the application will be dismissed and the applicant ordered to pay the respondent's costs.
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