Rojas, P. v Minister for Immigration & Ethnic Affairs

[1986] FCA 503

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CATCHWORDS

ADMINISTRATIVE - LAW - judicial review - immigration - application

for review of authorized officer's cancellation of 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

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IN THE FEDEXAL COURT . OF AUSTRALIA 1 1

! NEW SOUTH MALES DISTRICT REGISTRY ) No. G 476 of 1986

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DIVISION GENERAL )

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I Applicant ROJAS PERCY

and

MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS First.Respondent

J O H N DAVIDSON Second Respondent

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I	MINUTES OF ORDER
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!	COURT : Woodward J.
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I	m: 10 November 1986
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I	PLACE: Melbourne

THE COURT ORDERS THAT:

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I	1.	The injunction granted by Beaumont J on 17 October 1986
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be discharged at 5 .00 pm on 11 November 1986.
i	2.	Liberty be reserved to apply to a single judge of the
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I	Court, sitting in Sydney, for any further directions r
orders; and
3.	Costs be costs in the cause.
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I	(m:	Settlement and entry of orders	is deal	,t	with by 0.36	of
the Federal Court Rules.)
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IN THE FEDERAL COURT OF AUSTRALIA	1
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NEW SOUTH EIALES DISTRICT REGISTRY ) No. G 476 of 1986

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DIVISION GENERAL )

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BETWEEN:

PERCY ROJAS Applicant

and

MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS First Respondent !

JOHN DAVIDSON econd Respondent

COURT: Woodward J.

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 -
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the hearing and determination of his main application. That

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originating application is 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	. .
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first respondent o cancel the return endorsement on 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 so 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

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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 an .-

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

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 .

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, in passing, that before his marriage the

applicant had worked as an illegal migrant in Germany for some 18

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. He

was then granted a permanent entry permit. After being in

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

as migrants. He spoke to an interpreter at the Sydney office of i

the Department of Immigration and Ethnic Affairs ("the

Department") who advised him to write to 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 10 March 1986, drawing

attention to the false statement in the applicant's original	!-
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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 he

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.

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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 in Bolivia, an 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 a

brother in a comparatively inaccessible part of the country.

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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

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chance to institute proceedings and seek an 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

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Act, was granted a 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 -
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(ba) .... prior to, the grant of a visa ....

in respect of the person, the person -

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

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

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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 he

is married with one child and living with his wife and child, is a

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

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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 an 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 no bligation on the

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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 in spite of the later decision in v (1985) . -

60 ALJR 113. Alternatively, it was argued, the requirements of

natural justice had been met in the present case. It is this

second argument which I have found persuaslve.

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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 to clear

manifestation of a contrary statutory intention.	r':
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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 of the statute. In Mobil Oil

Australia Pty Ltd v Federal Commissioner of

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

(at 503-504) that the obligation to give a 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 of the

inquiry, the subject matter, and the rules under

which t e d cision-maker actins: is 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' more aptly conveys the notion of a

flexible obligation to adopt fair procedures which

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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 to the individual

considered in the light the of statutory I . ,

requirements, the interests of the individual and

the interests and purposes, whether public or

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 J.

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When the doctrine of natural justice or the

duty to act fairly in its application to

administrative declsion-making is so 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 i

justice apply. It is: what does the duty to act

fairly require in the circumstances of 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 by the

statutory framework within which the decision had to be made.

Two elements of that framework are particularly

relevant. "he first is that the cancellation of 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 a

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 to 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 !
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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, of ' .,

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

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activities overseas of the holder of the return endorsement,

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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 of return endorsement himself. formal In

correspondence with the Department, he admitted supplying false

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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

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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, of

course, allow the idea to get about that material false statements

in migrant visa applications can readily be excused later on

grounds of sympathy. It is difficult to believe that an

opportunity to explain further would have been likely to affect

the ultimate decision.

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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.

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

true and accurate copy	of the	, ,
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Reasons for Judgment herein of The Hon Mr Justice Woodward

0 Associate

Dated: 10 November 1986

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