Rojas, P. v Minister for Immigration & Ethnic Affairs

r .

i	9.	go3
i

CATCHWORDS

ADMINISTRATIVE

LAW - judicial review - immigration - application

for

review of authorized

officer's

cancellation

return

endorsement - Act giving "absolute discretion"

- whether doctrine

of natural justice applies	- whether requirement of procedural
fairness observed.

Administrative Decisions (Judicial Review) Act	1977 s.5
Micrration Act 1958 s~.6(2),9,11A,llB,16(1)

PERCY ROJAS

v MINISTER FOR IMMIGRATION

A D ETHNIC AFFAIRS

and JOHN DAVIDSON

No. G 476 of 1986

Woodward J.

Melbourne

10 November 1986

IN THE FEDEXAL COURT

OF AUSTRALIA 1

NEW SOUTH

MALES DISTRICT REGISTRY )

No. G 476 of 1986

)

DIVISION

GENERAL

)

1 I

I	i
!

Applicant

ROJAS

PERCY

and

MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

First.Respondent

J O H N DAVIDSON

Second Respondent

1 i

I	MINUTES OF ORDER
I

COURT : Woodward J.

m: 10 November 1986

PLACE:

Melbourne

THE COURT ORDERS

THAT:

I I

The injunction granted by Beaumont J on 17 October 1986

be discharged at

5 .00 pm on 11 November 1986.

Liberty be reserved to apply to

a single judge of the

Court, sitting in Sydney, for any further directions

orders;

and

Costs be costs in the cause.

I	(m:	Settlement and entry of orders	is deal	,t	with by 0.36	of
the Federal Court Rules.)
~
i

IN THE FEDERAL COURT OF AUSTRALIA	1
1

NEW SOUTH EIALES DISTRICT REGISTRY )

No. G 476 of 1986

DIVISION

GENERAL

)

BETWEEN:

PERCY ROJAS

Applicant

and

MINISTER FOR IMMIGRATION

AND ETHNIC

AFFAIRS

First

Respondent

JOHN DAVIDSON

econd

Respondent

COURT: Woodward

m: 10 November 1986

W: Melbourne

REASONS FOR JUDGMENT

This is an application for

an interlocutory injunction

to prevent the removal	of the applicant from Australia until after	I -
l '

the hearing and determination of his main application. That

originating

application

brought

under

the

Administrative

Decisions (Judicial Review) Act 1977 ("the Judicial Review Act")

seeking a review of the decision of an authorized officer of the

. .

L ,

first

respondent o

cancel

the

return

endorsement

the

applicant's Bolivian passport, pursuant to the provisions of	the
Misration Act 1958 ("the Act").

The basic facts

of the case are not in dispute.

The

applicant is a Bolivian national. A number of members of his

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family emigrated to Australia ten or more years ago. One of them,

a brother, in late

1982

sponsored the applicant as a

potential

migrant to Australia. In doing

he stated that the applicant

had never been married. In fact the applicant had married some

weeks before his brother signed the sponsorship form, but this

news had apparently not reached the brother before

he sent the

completed form

to the applicant in Bolivia.

The applicant noted

his brother's error but decided not

to correct it

and, when he was eventually interviewed by

Australian migration officer in May or June

1984, he maintained

the fiction that

he was single, even though

by this time his wife

had had	a child.	, .
l
I -
*.
t '

The reason he	now gives for this deception is that he	I ,'
f '

had at the time

a very low income and if

he had sought to have the

' .

necessary changes made in

his Bolivian passport

he would also have

had to make the same changes in other official Bolivian documents,

such as identification and health insurance cards. This,

he said

in evidence, would have been	a long and expensive process.	He
said,

' I . . _

I was hardly earning enough money to feed

family and I did not have any money to prepare all

the documents, so in the family we agreed

I would

come alone and then we would arrange for the rest

to come later on".

I accept his evidence that this was

a major reason for

his taking the line of least resistance and lying about his

marital status.

He may, however, have also realised that he was

more likely to achieve prompt entry to Australia

as a semi-skilled

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worker without dependents then as a married man with a wife and

I .

young child. There was some evidence in the material before me to

suggest that such a belief, if

he had it, would have been well

founded. -

I note,

passing,

that

before

his

marriage

the

applicant had worked

as an illegal migrant in Germany for some

months and had returned home because

he found he could not get an

Australian visa in Europe. He was not entirely unsophisticated in migration matters.

In the event, the applicant was accepted as a

migrant

and entered Australia with a migrant's visa on 10 May 1985.

was

then

granted a permanent

entry

permit.

After

being

Australia for some months, he sought to sponsor his wife and child

as migrants.

He spoke to an interpreter at the Sydney office of

the

Department

Immigration

and

Ethnic

Affairs

("the

Department")

who

advised

him to

write

the

appropriate

Australian Migration Office in South America, which was in Buenos migration as a single man due to my financial situation". This

letter was sent on

17 November 1985.

The Buenos Aires office apparently took some time to

reach and study this letter, but eventually sent a telex to the

Sydney office of the Department, on

March 1986, drawing

attention to the false statement in the applicant's original

migration papers.

The Sydney office also took some time to deal

with the matter, and gave consideration to the possibility of

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prosecution.

It then came to the notice of someone in that office

that the applicant had left Australia for

a trip to Bolivia.

Before doing so

he had applied for and received, on the day

left Australia,

18 July 1986,

a return endorsement on his

passport, which would have enabled him to return to Australia	at
the end of his visit.

At one stage

of the evidence it occurred to me that the

Department might deliberately have allowed the applicant to leave

Australia even though

his mis-statement had been discovered.

However I am prepared to accept,

as the evidence now stands, that

the officers involved in the issue of the return endorsement were

not aware of the difficulties which the applicant faced.

While

the

applicant

was

Bolivia,

authorized

officer of the Department, on

6 August 1986, cancelled the return

endorsement.

This action was notified to the brother who had

originally sponsored the applicant. It seems that he tried to

contact the applicant but failed.

The Department also notified

its office in Buenos Aires and asked that efforts be made to

inform the applicant of what had happened. Again it seems that

whatever

efforts

were

made

were

unsuccessful.

The

applicant

apparently spent a good part of

his time in Bolivia staying with

brother in a comparatively inaccessible part of the country.

L .

In any event, the applicant arrived back in Sydney, was

detained at the airport by immigration authorities, and steps were

!	taken to secure his removal	from the country by the airline which
had brought him in.

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A judge of the Court

issued orders staying thc rcmoval

of the applicant until further order

so that he might have a

chance

institute

proceedings

and

seek

interlocutory

injunction. That order remains in force and

I must now determine

whether it should be continued

or discharged.

The only ground for a continuation of the order

which

was finally urged upon me by counsel for the applicant, was that

he had been denied natural justice, in that

e had been given no

opportunity to reply

to the allegations against him before

his

return endorsement - and thus his right to reside in Australia	-
was cancelled.

Before considering the merits of the applicant's claim,

it is convenient to set out the legislative framework within which

such questions have to be answered.

The applicant, a non-citizen within the meaning of the

I -

I .

Act, was granted

permit to enter and remain in Australia

pursuant

to s . 6 ( 2 ) .

Section 16(l)(ba)(ii) provides, so far as

is relevant,

"16(1)

Where .... a person who

.... entered

Australia .... was not, at the time of that entry,

an Australian citizen and who

.....

(ba) .... prior to, the grant of a visa

....

in respect of the person, the person

.....

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(ii) .... made .... to an officer,

respect of the grant of that visa

in a material particular ....

.... a statement that is false ....

that person shall

.... be deemed to be a prohibited

-non-citizen .

The grammar is inelegant, to say the least. However

there can be

no doubt, in my view, that

a statement by an

5 .

intending migrant that

he has never been married, when in fact

is married with one child and living with

his wife and child, is

statement which is false in

a material particular.

This means

that the applicant

is deemed to be

a prohibited non-citizen.

Section 11A provides for the granting of visas, and of

return endorsements for holders of entry permits (other than

.I.,

temporary entry permits) who wish

to leave the country for

a time.

L .

This section has to be read with

s.9 which provides that, if the

holder of

entry permit leaves Australia, the permit "has no

force or effect" in relation to the holder upon or after his

re-entry into the country. However the return endorsement would

ordinarily entitle the holder to	a	fresh entry permit when	he
re-entered Australia.

Section 11B

is the crucial section for present purposes.

It provides

"The Minister or an

uthorized officer

may, in

his absolute discretion,

cancel a visa or

return

endorsement at any time

by writing under his

and."

The solicitor for the respondent argued, first, that

this

ection

meant

hat

here

was

bligation

the

I	.	- 7 -
l	I

decision-maker to afford natural justlce to the applicant. He

referred to the decisions of the High Court in Salemi

v MacKellar

(No 2 ) (1977) 137 CLR 396 and B

v MacKellar:

Ex p. Ratu

(1977)

137 CLR =l,

and said that they remained good authority for a case

such as this

spite

the

later

decision

(1985)

. -

60 ALJR 113. Alternatively,

was argued, the requirements of

natural justice had been met in the present case.

It is this

second argument which

I have found persuaslve.

' '.

The views of the members of the High Court in Kioa's

case who constituted the majority may be conveniently represented

by the following passages from the judgment

of Mason J at 127,

"The law has now developed to a point where it

may be accepted that there is

a common law duty to

act fairly, in the sense of according procedural

fairness, in the making

of administrative decisions

which

affect

rights,

interests

and

legitimate

expectations,

subject

only

the

clear

manifestation of a contrary statutory intention.	r':
......
I-

Where the decision in question is one for

which provision is made by statute, the application

and content of the doctrine of natural justice or

the duty to act fairly depends to

a large extent on

the

construction

the

statute.

Mobil

Oil

Australia

Pty

Ltd

v Federal

Commissioner

Taxation (1963) 113 CLR 475, Kitto J pointed out

(at 503-504) that the obligation to give

fair

opportunity to parties in controversy to correct or

contradict statements prejudicial to their view

depends on 'the particular statutory framework'.

What is appropriate in terms

of natural justice

depends on the circumstances of the case and they

will

include,

inter

alia,

the

nature

the

inquiry, the subject matter, and the rules under

which

t e

d cision-maker

actins:

R V

Commonwealth

Conciliation

-Arbitration

and

Commission; Ex parte Anqliss Group (1969) 122 CLR

546 at 552-553; National Companies and Securities

Commission v

The News Corporation Ltd (1984) 50

ALJR 308 at 314, 318;

52 ALR 417 at 427-428, 434.

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In this respect the cxpression 'procedural

fairness'

aptly

conveys

the notion of a

flexible obligation to adopt fair procedures

which

are appropriate and adapted to the circumstances of

the particular case. The statutory power must be

exercised

fairly,

that

is, in

accordance

with

-procedures

that

are

fair

the

individual

considered

the

light

the

statutory

I .

requirements, the interests of the individual and

the

interests

and

purposes,

whether public

private, which the statute seeks to advance or

protect or

permits

to be taken into account as

iegitimate considerations: cf. Salemi

[No. 21 at

451, per Jacobs

When the doctrine of natural justice or the

duty

act

fairly

its

application

administrative declsion-making is

understood,

the need

for a

strong manifestation of contrary

statutory intention in order

for it to be excluded

becomes apparent. The critical question in most

cases is not whether the principles of natural

justice apply. It is: what does the duty to

act

fairly

require

the

circumstances

the

particular case?"

Applying the approach outlined by Mason

J t the present

case, I find that there was

a requirement to observe natural

justice - in the sense of procedural fairness

- in this case

as in

most other administrative decisions. But here the requirements of

procedural

fairness

were

considerably

circumscribed

the

statutory framework within which the decision had to be made.

Two elements

that

framework

are

particularly

relevant.

"he

first

that

the

cancellation

a return

endorsement pursuant to

s.llB of the Act will normally occur while

the person concerned is out of the country and unable to attend

hearing by the decision-maker.

The return endorsement normally

issues a short time before the holder leaves

on an

overseas trip,

and it has served its purpose when	he returns to the country and
receives a fresh entry permit.

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The second lmportant statutory element, also to be found

in s.llB, is that the decision to cancel may be made by the

Minister or authorized officer

"in his absolute discretion".

These words are not sufficient to oust the jurisdiction of the

Court

under

the

Judicial

Review

Act,

nor

eliminate

all

considerations of procedural fairness. But they must be given

appropriate weight.

Thus such a decision could still be challenged on the

ground that the person	who purported to make the decision did not	I !
i--
have jurisdiction to	do so - that is, was not an authorized

officer within the meaning of the Act (see Judicial Review Act

s.5(l)(c)), or that the decision was induced by fraud (s.5(1)(9)).

So	far as procedural fairness is concerned, It is my

view that Kioa's case (above) would require that the decision not

be based on anonymous information, harmful to the applicant,

which he was unaware and to which

he had been given no opportunity

to respond. I am by no means so sure, given the wording of

s.llB,

that the decision-maker could not act on information coming from	a
usually reliable official source about, for example, criminal

activities overseas of the holder of the return endorsement,

without being required to hear the representations of the person

concerned.

However this case is different from each

of those. Here

the decision-maker acted on information earlier supplied by the

holder

the

return

endorsement

himself.

formal

correspondence with the Department, he admitted supplying false

.I.

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information and, in

a few words, took the opportunity to give an

explanation for his actions. All that

he really complains of

now,

in the conduct of the decision-maker, is the failure to give

him

an opportunity to expand upon his explanation.

This

is not

material of a very cogent nature.

The applicant seemed to

me, as far as

one can judge on

the basis of fairly brief evidence given through an interpreter,

to be a person who might well make

a useful migrant to Australia

in due course. However the Minister and his Department cannot,

course, allow the idea

to get about that material false statements

in migrant visa applications can readily be excused later on

grounds

sympathy.

difficult

to believe

that an

opportunity to explain further would have been likely to affect

the ultimate decision.

Having considered all the facts put before

mer

and

bearing in mind the absolute discretion given to the authorized

officer, and the fact that the applicant is deemed by the Act to

be a prohibited non-citizen, I am unable to find that there is in

this case a

serious question to be tried which would justify a

further extension of the injunction earlier granted (see Fainsold

v Zammit (1984) 1 FCR 87 and Epitoma v m (1984) 3 FCR 55 at

58-9) .

The injunction will be discharged at

5.00 pm on the day

after which this judgment is delivered.

It was agreed between the

parties that the costs of this hearing should be costs in the

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cause.

I reserve liberty to apply to

a single judge of the Court

sitting in Sydney for any further directions or orders in this

matter.

I certify that this and the	l >
ten (10) preceding pages are a

true and accurate copy	of the	, ,
I .

Reasons for Judgment herein of The Hon Mr Justice Woodward

0 Associate

Dated: 10 November 1986

[1986] FCA 503

11 Oct 1986