Pesava, Z. v Minister for Immigration, Local Government & Ethnic Affairs
[1989] FCA 254
•08 MAY 1989
Re: ZDENKA PESAVA
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. NG 185 of 1989
FED No. 254
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)
CATCHWORDS
Administrative Law - Immigration - Application for entry permit - Decision to refuse application - Validity of decision - Alleged error of law - Decision made by reference to requirements of s.6A(1) of Migration Act - Applicant arriving in Australia without any entry permit and deemed not to have entered Australia - Failure to take into account relevant circumstances, namely applicant's occupation - Assumption made without inquiry that applicant's qualifications would not be recognised in Australia - Failure to inquire as to nature of employment offered to applicant - Taking account of irrelevant considerations - Elements of hardship common to other persons in Czechoslovakia similarly situated - Release of applicant from detention pending a final determination of the application.
Migration Act 1958 ss.5, 6, 6A, 36A.
HEARING
SYDNEY
#DATE 8:5:1989
Counsel for the Applicant: Ms H G Murrell
Solicitors for the Applicant: Legal Aid Commission of
New South Wales
Counsel for the Respondent: Mr D J Thorley
Solicitor for the Respondent: Australian Government Solicitor
ORDER
The decision made by Lawrence James Smith on behalf of the respondent to refuse the grant to the applicant of an entry permit is invalid.
The decision referred to in declaration A hereof be set aside as from the date of that decision.
The application made to the respondent by the applicant for the grant of an entry permit be remitted to the respondent for further consideration according to law.
Upon the solicitor for the applicant filing with the Court and serving on the solicitor for the respondent an undertaking signed by Mr and Mrs Kratochvil to receive into their home and to provide accommodation for the applicant pending further order AND UPON the applicant undertaking to the Court that:
(a) pending further order, or a decision on his application, he will report to the office of the Department of Immigration, Local Government and Ethnic Affairs at its nearest office to the home of Mr and Mrs Kratochvil each Monday, Wednesday and Friday (public holidays excepted); and
(b) upon the final determination of the application for permanent resident status made by him on 17 January 1989 he will surrender himself to an officer of the said Department to be dealt with in accordance with s.36A(3) of the Migration Act,
the applicant be released from custody.
The respondent pay to the applicant his costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an application for review, pursuant to the Administrative Decisions (Judicial Review) Act 1977, of what are claimed to be three decisions made on behalf of the respondent, the Minister for Immigration, Local Government and Ethnic Affairs, in respect of the applicant, Zdenek Pesava. There is a question as to what decisions were made on behalf of the Minister by Mr Lawrence James Smith, an officer of the Department of Immigration, Local Government and Ethnic Affairs; but the facts surrounding the matter are not in dispute.
The applicant is a Czechoslovakian national who arrived at Sydney airport, with a Czechoslovakian passport but without a visa for Australia, on 20 September 1988. He was taken to Villawood Detention Centre where he has since remained. Upon arrival in Australia the applicant sought the grant to him of refugee status, an application which was eventually refused, on the recommendation of the Determination of Refugee Status Committee, on 22 December 1988. On 17 January 1989 the applicant submitted to the Department an application for a permanent entry permit under the Migration Act 1958. For that purpose he completed the form put out by the Department for use by applicants for resident status in Australia. In that form he revealed his occupation as machinist/toolmaker, his last employment in Czechoslovakia - which he had held for a period of six years - being that of a toolmaker/operator at a factory in Prague. The application was supported by a letter signed by Mr and Mrs M. Kratochvil, the proprietors of a manufacturing company Kratochvil Pty Limited, stating they were prepared to offer to Mr Pesava both accommodation and permanent employment if he were allowed to stay in Australia. Mr Pesava also set out a body of material, emanating both from himself and from others, as to the situation he would be likely to face if he were forced to return to Czechoslovakia, from which he claimed to have escaped by bribing a frontier guard. The material was summarised by Mr Smith in his statement under s.13 of the Administrative Decisions (Judicial Review) Act as follows:
"13. He was placed under great pressure in Czechoslovakia to join the Communist Party and his refusal to do so resulted in his receiving a lower salary than Communist Party members performing equivalent duties. He has also been denied promotion and access to government accommodation as a result of his refusal. His belongings were searched, in the factory dormitory, and when he changed the lock on his room he was threatened with expulsion from the dormitory and loss of his job.
Frequent identity checks and searches by the police gave rise to fear that his involvement in the duplication and distribution of banned tapes and books was known to the Czech authorities. Persons who are identified as opponents of the current regime in Czechoslovakia are dealt with harshly by that regime and are sentenced to long periods of imprisonment in institutions where the living and working conditions would be regarded by western nations as inhumane. He has been denied representative selection in the national volleyball team because of his refusal to join the League of Socialist Youth.
He is a Catholic and has been prevented from practicing (sic) his religion in Czechoslovakia.
His exit visa was only obtained as a result of bribing the various officials involved in endorsing such applications. He faces arrest and imprisonment on return to Czechoslovakia for overstaying his exit visa and for breaching Czechoslovakia's foreign exchange laws. He believes that he will not be allowed to leave Czechoslovakia again if he is sent back."
On 11 April 1989 Mr Smith made a decision, pursuant to s.6(2) of the Migration Act, to refuse the grant of an entry permit to Mr Pesava.
The amended Application filed in court today sets out a number of grounds for review of Mr Smith's decision. However, it seems to me only three points are fairly arguable and I will confine myself to those points. Through his counsel the applicant says that, in the course of addressing the matter before him, Mr Smith made an error in law. Counsel for the applicant submits that, on a fair reading of his s.13 statement, Mr Smith approached the matter as if s.6A(1) of the Migration Act applied to the case. Section 6A(1) provides:
"(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 -
(a) he has been granted, by instrument under the hand of a Minister, territorial asylum in Australia;
(b) he is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit;
(c) he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;
(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."
According to counsel, s.6A(1) did not apply to the case. Notwithstanding that, at the time of the decision, the applicant had been held at Villawood for over six months he was deemed never to have entered Australia. Section 5(2) of the Act provides:
"(2) For the purposes of this Act, a person shall be deemed to enter Australia -
(a) in the case of a person arriving in Australia by a vessel other than an aircraft - when he disembarks from the vessel in Australia; or
(b) in the case of a person arriving in Australia by an aircraft - when he disembarks from the aircraft in Australia or, if he so disembarks at a proclaimed airport, when he leaves the airport, whether or not he intends to return to the vessel or aircraft."
Section 36A deals with the situation of a person taken from a proclaimed airport, as is Sydney airport, to a detention centre. The section covers a number of different factual situations but it is common ground that subs.(3) applies to the present case. That subsection provides:
"Where a person, not being a person exempted, by instrument under the hand of the Minister, from the requirements of Division 1A, who has travelled to a port in Australia on board a vessel, whether or not that port is the first port of call of the vessel in Australia, has, after the arrival of the vessel at its first port of call in Australia, sought and been refused an entry permit, he may, if an authorized officer so directs, be kept in such custody as an authorized officer directs at such place as the authorized officer directs until the departure of the vessel from its last port of call in Australia or until such earlier time as an authorized officer directs."
Section 36A(8) provides that a person to whom subs.(3) applies shall not, for the purposes of the Act, be deemed to have entered Australia by reason only of having been taken from a proclaimed airport for the purpose of being held elsewhere in custody. The effect of these provisions was discussed by Burchett J. in Singthong v. Minister for Immigration and Ethnic Affairs (1988) 80 ALR 147 at 157 to 158. His Honour dealt with the question whether a person who was released by order of the court would then be deemed to have entered Australia. Referring to s.5(2) his Honour said:
"That provision makes a clear distinction between the reality of arrival in Australia and an artificially defined concept of entry into Australia. For the purposes of the Act, and in the case of a person arriving by air at a proclaimed airport, entry into Australia is deemed to occur when the person leaves the airport. The boundary of the airport is the statutory Rubicon. All that s 36A(8) does is to qualify the general provision where the particular circumstances which it specifies exist. A person leaving the airport in those particular circumstances will not, for the purposes of the Act, be deemed to have entered Australia by reason only of his having left the airport in those circumstances. There is no doubt that the person has actually entered Australia in such a case, just as there is no doubt that he had actually entered Australia upon his arrival at the airport before he left it. But neither his arrival at the airport nor his subsequent departure from it will, in the particular circumstances, for the purposes of the Act, amount to an entry into Australia. It only leads to confusion of thought if the reality and the statutory fiction are not kept separate and apart. No commerce can be admitted between fairyland and the real world. There is a real point of entry into Australia, and there is a point at which the statutory deemed entry happens. In neither case can things done within Australia after entry make any difference to the point at which the entry occurred. How can something done when a person is indubitably within Australia amount to a deemed entry pursuant to the statute unless it is something which the statute deems an entry? No provision of the statute deems the movement of a person in the position of the applicant from a place of custody, such as Villawood, to be entry into Australia. That is simply something done within Australia, entry into which has already actually occurred, and has either been deemed entry for the purposes of the Act or not, according to the application either of s 5(2) or of the qualification upon that provision in s 36A(8)."
I think it follows from the statutory provisions to which I have referred, and which were analysed in that manner by Burchett J., that at all material times the position has been that the applicant is deemed not to have entered Australia, notwithstanding the fact that he has in fact been in Australia since 20 September last. This deeming provision applies for the purposes of the Act generally, including for the purposes of s.6A(1).
Counsel for the respondent agrees with the above analysis. He accepts that if Mr Smith had approached his task upon the basis that Mr Pesava had entered Australia for the purposes of s.6A(1) he would have erred in so doing. However, counsel disputes that Mr Smith took this course. He says that the decision was made under s.6(2) of the Act and that there was no justification for imputing to Mr Smith a belief that s.6A(1) applied to his decision. Section 6(2) of the Act is in simple form. It provides:
"(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."
In that context the phrase "entry permit" applies both to a permanent entry permit and to a temporary entry permit.
I agree that Mr Smith made his decision under s.6(2) of the Act. But I think that it is clear that, in so doing, he thought that s.6A(1) governed his decision, at least insofar as it related to a permanent entry permit. In his s.13 statement Mr Smith set out, at paras. 11 to 23, his assessment of the case. This section of his assessment commences as follows:
"11. I note that Mr. Pesava does not satisfy any of the legal preconditions for grant of resident status under Section 6A(1).
12. I am, however, aware that it is in my power as an 'officer' to grant, pursuant to section 6(2) of the Migration Act, a temporary entry permit to Mr. Pesava to enable him to satisfy a legal precondition for the grant of resident status under Section 6A(1).
13. In considering whether to grant a temporary entry permit to Mr. Pesava I have examined his various claims ... ."
Mr Smith then set out the claims which I have already summarized, and discussed those claims and his attitude towards them.
At paras.21 and 22 of the statement Mr Smith turned to the matter of employment using the following words:
"21.In my consideration of this application I have also taken into account the policy requirements applicable to Section 6A(1)(d) of the Migration Act, as the grant of an entry permit could entitle Mr. Pesava to consideration on occupational grounds.
22. Mr. Pesava has claimed to be qualified variously as a Fitter and Turner, Locksmith and Fitter/Toolmaker. Although Tool and Die Makers are included in the current Occupation Shares Schedule no evidence has been submitted which would lead me to believe that his qualifications would be recognised in Australia or that he would satisfy other policy criteria applicable to Section 6A(1)(d). I note also that Fitters, Fitters & Turners and Locksmiths are not included in the current Occupation Shares Schedule."
Mr Smith then went on to say that on balance he was of the view:
"that the circumstances advanced by Mr. Pesava do not warrant the exercise of my discretion pursuant to Section 6(2) of the Migration Act and I have decided to refuse the grant of an entry permit to Mr. Pesava."
It seems to me that the comments made in paras. 11 and 12 of the statements clearly indicate that he was considering this matter by reference to s.6A(1). Not only is there a reference to that subsection, but there is a reference which is repeated in paras. 21 and 22.
In the absence of s.6A(1) there would be no need for a temporary entry permit to precede the grant of a permanent entry permit, yet Mr Smith described his powers, in the opening words of para. 13 of his statement as being:
"considering whether to grant a temporary entry permit to Mr. Pesava".
The significance of Mr Smith's error was that s.6A(1) significantly limits the discretion which is available to an officer considering whether to grant a permanent entry permit. This fact was pointed out in Gunaleela v. Minister for Immigration and Ethnic Affairs (1984) 74 ALR 263 at pp 275-276. In that case the Full Court said this:
"Section 6A is not concerned with the issue of permits before entry into Australia. The purpose and effect of s 6A is to make it more difficult for immigrants who have entered Australia later to gain permanent resident status. Wilson J so described s 6A in Kioa v West (1985) 159 CLR 550 at 600; 62 ALR 321 at 358-9, and in the second reading speech in the Senate on the Bill for what became the Migration Amendment Act (No 2) 1980 (which introduced s 6A), the provision was described as design to restrict by law the categories of immigrants eligible to be granted permanent resident status subsequent to their arrival in Australia (Hansard, The Senate, 5 December 1980, 474-8): see also the observation of Gibbs CJ in Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 296; 61 ALR 609 at 613. The section achieves this objective by confining the generality of the discretion of the decision-maker and by requiring fulfilment of one or more designated conditions."
Despite the s.13 statement the precise course of reasoning adopted by Mr Smith is not clear. However, during his evidence today, Mr Smith stated that he did not consider Mr Pesava's prowess as a sportsman to be relevant to an application upon humanitarian grounds. This answer supports the inference that I would in any event have made, that Mr Smith assessed the applicant by reference to the question whether the applicant had demonstrated strong and compassionate humanitarian grounds. I think that this inference arises irresistibly from a consideration of the matters discussed in his s.13 statement. Plainly such an approach was erroneous in point of law.
The second matter to which reference should be made is Mr Pesava's occupation. I have already stated that he shows his most recent occupation on his application as toolmaker/operator. In a letter sent to Mr Smith prior to his decision, the solicitor for the applicant said that the applicant had advised her that "he is best classified as a fitter/toolmaker".
In considering the application Mr Smith made reference to a document published by the Department of Immigration, Local Government and Ethnic Affairs listing those occupations in relation to which qualified people were in short supply in Australia. This document, called "Occupational Shares Schedule", showed that, for the year 1988/89, some fifty tool and die makers would be required. Mr Smith made no inquiries as to the number of toolmakers who were still required as at the date of his decision. He said that he regarded the fact that Mr Pesava had an offer of employment as relevant to his decision, but that he gave this matter little weight as the letter from Mr and Mrs Kratochvil gave no indication of the nature of the job which they were offering. Despite the fact that Mr Smith had the precise name and address of their business he made no effort to contact Mr and Mrs Kratochvil to ascertain this matter. The reason for this omission, apparently, was that Mr Smith assumed that Mr Pesava's particular qualifications would not be recognized in Australia. He made that assumption without making any inquiry of the relevant trade authority.
I find this course of events somewhat curious. The very purpose of the Occupational Shares Schedule is to alert officers of the Department to the need, in Australia's interests, to obtain particular numbers of persons who have specified trade qualifications which are here in short supply. The present applicant appears to be such a person; but no attempt was made to check his qualifications for the nature of the work which was being offered to him. I accept that, in a decision made only under s.6(2) of the Act, to which s.6A(1) has no application, the range of matters to be considered by the decision-maker is confined only by the scope and purpose of the Act. It was for Mr Smith to determine what matters he would regard as relevant to his decision. However, having elected to regard as a relevant matter the nature of Mr Pesava's qualifications and employment, and Mr Pesava's potential to fill one of the vacancies shown in the Occupational Shares Schedule, Mr Smith was then bound to give that matter a real consideration. This he did not do, with the result that the decision was one to which s.5(2)(b) of the Administrative Decisions (Judicial Review) Act applies, namely, it was one in which the decision-maker failed to take a relevant consideration into account.
The third matter to which I propose to make reference also arises under s.5(2)(b) of the Administrative Decisions (Judicial Review) Act. This matter arose out of the way in which Mr Smith dealt with the various claims, made by and on behalf of the applicant, as to the fate which was likely to befall him if he were sent back to Czechoslovakia. In this connection I should say that, during cross-examination, Mr Smith stated that, except where he had indicated to the contrary in his s.13 statement, he accepted the validity of all of the claims upon those matters made by Mr Pesava, and which I have already summarised.
In his assessment Mr Smith dealt with the various claims. In some cases he simply set out the nature of the claim, without adding any observation of his own. In respect of some matters he noted a lack of evidence. As to matters of that nature, I do not think that any complaint can properly be made.
However there are some claims which Mr Smith accepted - in the sense that he did not dispute - the factual correctness of what was stated, but which he, in effect, discounted because he was not persuaded that Mr Pesava would be treated any more harshly than other people in a like situation. The first example of such a matter appears in the sixth subpara. of para.14 of the s.13 statement. It is in this form:
"Mr. Pesava has denied any involvement in political activities nor has he claimed to have ever been detained, arrested or imprisoned. Whilst he may face prosecution over his breaches of exit visa and foreign exchange regulations there is no evidence to suggest he would receive harsher treatment than any other offender."
In the final subparagraph of para.14 Mr Smith said this:
"I accept that Mr. Pesava has suffered discrimination in his employment as a result of his refusal to join the Communist Party, however his own statements lead me to believe that he has not been singled out and that the discriminatory practices referred to apply equally to all non party members working at his factory."
In para.13 Mr Smith indicated that he accepted Mr Pesava's statements that his living quarters were searched and that he was subjected to identity checks and personal searches by police. He referred to information said to have been supplied by the Department of Foreign Affairs and Trade which confirmed that, whilst identity checks are common in Czechoslovakia, searches as described by Mr Pesava are not a common occurrence although they are carried out by police as a normal search for banned material. Mr Smith commented:
"In this regard Mr. Pesava is in the same situation as any other Czech citizen."
In para.17 Mr Smith dealt with Mr Pesava's claims regarding his ability to practice his religion. After noting that Mr Pesava does not claim that he was ever arrested, detained or otherwise harassed as a result of religious beliefs, and after referring again to information said to have been obtained from the Department of Foreign Affairs and Trade, Mr Smith commented:
"Although it is not encouraged, religious practice in recognised churches is allowed. Mr. Pesava's situation is no different to that of other Czechs wishing to practice their religion."
In para.20 of the statement Mr Smith returned to Mr Pesava's claims regarding prosecution if he were returned to Czechoslovakia. Once again there is a comment that there is nothing to suggest that Mr Pesava would be treated in any way differently to any other Czech citizen who committed a similar offence.
The complaint made by counsel for the applicant, in respect of the various passages to which I have referred, is that the task of Mr Smith was to assess this application upon its merits. It was for Mr Smith to decide the ambit of relevant matters. He did accept that the position which Mr Pesava would face if he were returned to Czechoslovakia was a relevant matter for his consideration. That being so, says counsel, it was necessary for Mr Smith to consider those matters upon their merits. It was not a proper answer to those claims for him to say, even if it were true, that, in being subjected to particular disabilities, harassments or punishments, Mr Pesava would be in no worse position than other people in a like category.
It seems to me that the submission made by counsel has to be accepted. It would have been possible, as a matter of law, for Mr Smith to have considered each of these claims and to have come to the view that they did not constitute a sufficient reason to cause him to exercise his discretion in Mr Pesava's favour. Mr Smith might perhaps have concluded that, although there were factors of personal hardship, their importance was outweighed by other considerations, such as the maintenance of immigration control in Australia or the like; so that, notwithstanding that personal hardship, Mr Pesava should be denied a permanent entry permit. But it seems to me that it was not open to Mr Smith to decline to consider the matters put before him by Mr Pesava because they were disabilities no worse than those suffered by other people in a like position. The point is well made in a comment of Burchett J. in Sinnathamby v. The Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502. In dealing with a like submission, in respect of a person of Tamil origin who complained of likely discriminatory treatment if he were returned to Sri Lanka, Burchett J. said at p 516:
"Section 6A(1)(e) does not require an applicant to suffer uniquely. There may be 'strong compassionate or humanitarian grounds for the grant of an entry permit' to an applicant who happens to be able to apply, because already outside his country, though thousands of his compatriots are desperately situated, but cannot even apply. The plight of German Jews in 1938 provides a ready illustration."
That reference has to be read subject to two comments: firstly, in the present case s.6A(1)(e) was not directly relevant; although, no doubt, the matters of personal hardship which were relied upon by Mr Pesava and which were not considered by Mr Smith are similar in their consequences. Secondly, it is true that the example of German Jews in 1938 is an extreme example of persecution; nonetheless, it seems to me that the principle which was being emphasised by his Honour applies to the present case. Once it is accepted that an applicant's personal position, and his likely hardship if returned to another country, are relevant matters for consideration, those matters have to be considered on their own merits. They are not to be brushed aside by reference to the question whether the applicant is in no worse position than other people who might still be in that country. Of course, it should be added that, insofar as Mr Pesava was referring to his position if he were returned from abroad to Czechoslovakia, no meaningful comparison could be made with people who had remained in Czechoslovakia. The apt comparison would be to people who had returned to Czechoslovakia from abroad.
It is true, as counsel for the respondent points out, that the decision under review, that is to cause the applicant to be removed from Australia, is not in the nature of an extradition order requiring that he should be returned to a particular country. However, given the fact that he has no travel papers other than his Czechoslovakian passport, it seems to me that it would have been unrealistic for Mr Smith to have assumed otherwise than that the various carriers who are concerned with him will decide that there is no alternative other than to cause him to be returned to Czechoslovakia. There is no evidence to suggest that any other country will accept him. Despite the time during which Mr Pesava has been held in detention in Australia, apparently no attempt has been made by anybody to procure the consent of some other country to his going there. It seems to me that the third point to which I have referred is also made out.
The decision made by Mr Smith, on behalf of the respondent, is invalid in point of law and must be set aside.
A question arose during the argument of the matter as to whether the Court has power to give effect to an application, made on behalf of the applicant, for an order for his release from detention pending a final determination of the case. It seems to me that that question is concluded in favour of the applicant by the decision in Singthong, to which I have already referred. I will however hear counsel as to whether that discretion should be exercised in the applicant's favour and, if so, upon what terms.
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