Shand, I.G. v Minister for Immigration & Ethnic Affairs

Re: IAN GEORGE SHAND; PATRICIA ANN SHAND and PAUL SHAND
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS, THE HONOURABLE MICHAEL
JEROME YOUNG
No. G517 of 1986
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.

CATCHWORDS

Immigration - judicial review sought of decisions to refuse temporary entry permits and resident status and to make deportation orders against family illegally here for over three years - family previously accepted as migrants - loss of resident status in 1978 because of migration to Canada in that year - return in 1983 after resident status lost - making of false statements in arrival cards - whether denial of natural justice or procedural fairness - whether irrelevant considerations taken into account or relevant considerations omitted from account - no question of principle.

Migration Act 1958, s. 18

Administrative Decisions (Judicial Review) Act 1977, s. 5

HEARING

SYDNEY

#DATE 31:3:1987

Counsel for the Applicants: Mr. A. Robertson

Solicitors for the Applicants: McGrath and Associates

Counsel for the Respondent: Ms. C. Simpson

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The application be dismissed.

The applicants pay the respondent's costs thereof.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application for judicial review brought in respect of a number of decisions made by a delegate of the predecessor of the respondent or by officers of either the Department of Immigration or the Department of Foreign Affairs. Sensibly, no point was taken by the respondent that the joinder of the delegate or any of the other officers was necessary. The principal decisions are decisions to make deportation orders against the applicants and to refuse them entry permits and resident status. The application was filed on 13 November 1986. An amended application was filed on 17 November 1986. The matter came before Lockhart J. on an application for a stay of proceedings on 18 November 1986. His Honour made orders accordingly. On 19 December last the matter came before me for a final hearing. Yet a further amended application was filed on that day. The matter was adjourned part heard to 22 December 1986 but at the request of counsel for both parties made to me in Chambers I stood the matter out of the list for that day and fixed it for hearing on 20 February 1987. The matter was then finalized and judgment was reserved. The reason for the adjournment from 22 December 1986 to 20 February 1987 was because the applicant had retained different counsel in the matter between 19 December and 22 December 1986.

As is so frequently the case with immigration matters, this case has a long and rather unfortunate history. But the Court has no general power to supervise the exercise of the Minister's discretion; it has no jurisdiction to intervene unless the applicants demonstrate the existence of one or more of the grounds provided for in s. 5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). The story begins with the marriage of the applicants, Ian Shand and Patricia Shand, in London on 27 July 1965. On 13 January 1969 Mr. and Mrs. Shand together with their son, Paul Shand (the third applicant), who is now 21 years old, and one Anthony Madden, who is now 22 years old, arrived in Australia as migrants. Mr. Madden is the son of Mrs. Shand and a stepson of Mr. Shand. On 17 November 1970, Mrs. Shand gave birth to Joanne Shand, who was born in Sydney and who is an Australian citizen. In January 1972 the four Shands and Mr. Madden left Australia and returned to England. In April or May 1974 they returned to Australia as returning residents. In March or April 1978 the five left Australia and travelled to Canada. Their passports were not endorsed with an exit/re-entry visa, the nature of which I shall explain a little later on. Documents which are in evidence suggest that they left Australia in order to migrate to Canada. In late 1980 or early 1981 the Shands decided that they would return to Australia. They were granted re-entry visas by the Australian Consul-General in Toronto. The visas expired on 19 March 1981 for Mr. Shand and on 2 April 1981 for Mrs. Shand. On 4 April 1981 Mr. Madden returned to Australia and is now an Australian citizen. He is married and lives here with his wife and family.
On 24 September 1982 Paul Shand returned to Australia on a visitor's visa. He was granted a six months' temporary entry permit. On 23 February 1983 Mr. Shand returned to Australia on a visitor's visa. He was granted a temporary entry permit for three months. On 14 April 1983 Mrs. Shand and the Shands' daughter, Joanne, returned to Australia. Mrs. Shand was granted a temporary entry permit for six months. The temporary entry permits granted to Mr. and Mrs. Shand, and to their son Paul, were each endorsed, "Employment prohibited without written permission of an authorized officer". The temporary entry permits expired in 1983, Paul Shand's on 24 March 1983, Mr. Shand's on 23 May 1983 and Mrs. Shand's on 14 October 1983. The Shands did not leave Australia in 1983 nor did they comply with the terms of the endorsement concerning employment. All are still here and have engaged in regular employment since their return to Australia.
On 20 October 1986 Immigration and Australian Federal Police officers visited the Shand home. Mr. Shand and Paul were taken to the Villawood Detention Centre and held in custody. On 24 October 1986 the three, that is, Mr. and Mrs. Shand and Paul, lodged applications for resident status on the basis of strong compassionate and humanitarian grounds. On 14 November 1986, the day after this application was filed, it was decided that the applicants be deported and that the grant of resident entry permits and permanent resident status be refused. Supervised voluntary departure was also refused.
There was nothing in the material which would suggest otherwise than that the Shands are hard-working and fundamentally honest people. They were accepted as migrants in 1969 no doubt on that basis. Nothing in their subsequent record, except matters I shall mention in a moment, would suggest that they were not suitable migrants for this country. Presumably the Canadian authorities took the same view when, in 1977 or 1978, they accepted the Shands as migrants to that country. That, however, was the circumstance that began their present problems.
The one blemish on the Shands' record - I exclude Paul from this - has been their attitude to Australia's immigration laws. I think the reasons for this are twofold. Primarily, I think the Shands are people who like moving about the world. In their early married life they lived in England. They migrated here. They returned to England for a while. They returned to Australia and lived here for some three years. They then decided to go to Canada where they stayed for some five years. It was when they decided to return to Australia that their problems arose. I do not think that they meant any harm by all this; they regarded the world as a place in which to move about and they saw, themselves, no harm in setting up house and taking jobs in a variety of places, whether in the United Kingdom, Australia or Canada. However, in moving from Australia to Canada and from Canada to Australia they necessarily had to produce passports, sign exit and entry cards and apply for visas. It is clear that, either they paid no real attention to what they were signing or, at times, deliberately misled Immigration authorities. I am unable to say whether much of what they did was casual omission or deliberate deception. It is unnecessary to draw a conclusion. If I had to say, I would say there was something of both in what they did.
I should interrupt this account by saying that it has always been lawful for those who have migrated to this country to leave Australia for an appreciable period without losing their resident status. So long as they advise the authorities of what their intentions are, they will be allowed to return. But the practice has been to endorse their passports with an entry which says that they may return as residents provided they do so within three years of their departure. Because the Shands had decided to migrate to Canada, they did not tell the Australian authorities that they might wish to return to Australia. They thus, in a sense, burnt their boats when they left Australia for Canada in March or April 1978.
In accordance with usual practice the Shands were required to sign outgoing passenger cards on their departure for Canada. These are dated 19 March 1978 in the case of Mr. Shand and 2 April 1978 in the case of Mrs. Shand. The card provides for three categories of departing passenger, namely, visitor or temporary entrant departing, resident departing temporarily and resident departing permanently. It is intended that the passenger indicate on the card into which category he or she falls. Both Mr. and Mrs. Shand filled in the information which was required of a resident departing permanently. In a space provided under the words, "Country of future residence", each wrote the word "Canada". If, as the Shands say in their evidence, they were reserving to themselves the right to return to Australia, one would have thought that they would have filled in the appropriate information under the classification, resident departing temporarily. Both have said in evidence that they did intend eventually to return to Australia. I do not find it necessary to decide whether I accept this evidence or not. I rather think, however, that it was not their intention then ever to return to Australia except perhaps as a visitor. But it may have been that they consciously made a false statement in the departure card because to do otherwise may, in their eyes, have affected the migrant status they had been given by the Canadian Government. Undoubtedly this enabled them to save money.
Apparently their Canadian experience did not go well. According to the Shands' evidence, this was mainly because of difficulties encountered by Joanne at various schools she attended. This was the trigger, so they said, for their return to Australia.
The Shands' passports confirm that they visited the Australian Consulate in Toronto and explained their problems to an officer there. This visit must have occurred in January 1981, for on that date their passports were endorsed with an entry which said that the endorsement was valid for return travel to Australia by the holder within three years from date of last departure from Australia. The endorsements bear the date 14 January 1981. Also endorsed on the passports was the date of departure from Australia which, in Mr. Shand's case, was 19 March 1978 and in Mrs. Shand's case, 2 April 1978. Pursuant to the endorsements Mr. Shand had until 19 March 1981 to return to Australia and Mrs. Shand until 2 April 1978. They therefore had about two months or a little more in which to return. The Shands said that it was quite impossible for them to leave within this time because they had problems to do with selling their home and other things needed to be done in order to tidy up their affairs in Canada.
This is understandable, but it seems a little difficult to accept that it took them some two years to wind up their Canadian affairs. It was for that reason that, when they returned, they were issued only with temporary entry permits and their passports were endorsed with conditions that they were not to work here. Their incoming passenger cards are in evidence. Again incoming passenger cards have three categories of entrant, a person migrating to Australia, a visitor or temporary entrant and a resident returning to Australia. In the case of Mr. Shand the categories, migrating to Australia and resident returning to Australia are crossed out. The category, visitor or temporary entrant, is completed and indicates an intention to remain in Australia for one month for the purpose of visiting relatives. It is difficult not to conclude that the statements made in that card by Mr. Shand were false. That conclusion is reinforced by the fact that in the card Mr. Shand described his country of citizenship as the United Kingdom and his country of residence also as the United Kingdom. Mrs. Shand's passenger card was filled out similarly. According to it, she was a visitor or temporary entrant intending to stay in Australia for four months for the purpose of visiting relatives and also having a holiday. Like her husband she said that her country of citizenship was Britain and that that was also her country of residence.
Paul Shand had returned on 24 September 1982, some months before his parents. But he had also filled out an incoming passenger card which indicated that he intended to stay in Australia as a temporary visitor for five months visiting relatives. As in the case of his parents, his country of citizenship was said to be the United Kingdom. However, he said that his country of residence was Canada. In 1982 Paul Shand was 16 or 17 years of age. One ought therefore be careful about drawing too adverse a conclusion on the false statements made in his incoming passenger card. But, whatever the explanation, it would seem that, as in the case of his parents, those statements were false to his knowledge.
There is an irresistible inference that the Shands returned to Australia knowing that they had lost their resident status. They deliberately decided to conceal from the authorities the fact that they had no intention of remaining here for a short period as temporary visitors. They were returning for good and intended to work here if they could find employment. That is precisely what occurred. In this way they became prohibited non-citizens. If matters had been left to them, they would have remained here indefinitely going about their daily affairs as ordinary citizens of this country. This flouting of Australia's migration laws and the policy of those who administer them is at the heart of the delegate's reasons for refusing resident status to the Shands and ordering their deportation.
No request for reasons for the delegate's decisions was made. However, the Departmental file is in evidence and the recommendation made to the delegate that the Shands be deported, which recommendation the delegate accepted, provides a clear indication of the reasons which moved the delegate to make the decisions he did. The recommendation sets out the essential facts of the matter much as I have set them out in the earlier paragraphs of these reasons. A number of documents are annexed to the recommendation. To some of these I shall later refer. Under the heading, "Assessment", are a number of paragraphs relevant to this application. In para. 22 reference is made to the current policy. The paragraph is as follows:-

"22. On 17 October 1985 the Minister for Immigration and Ethnic Affairs tabled in Parliament a comprehensive policy on illegal immigrants. In summary the policy stated among other things that it is in the public interest to ensure that persons abide by normal migration selection procedures and do not queue-jump by entering or remaining illegally in Australia to the detriment of prospective migrants who abide by the procedures. Presence of such queue-jumpers is inimical to Government control of Migration Programs as well as compacting upon job availability for legal residents. Their breaches of immigration law will weigh heavily against them and when located they should expect to bear the full weight of the law and face the prospect of deportation".

In para. 24 is contained a summary of the recommending officer's understanding of the Shands' submissions. The points made are as follows:-

"24. . . . . . . . . . . . . . . . . . . . . they have an Australian born child, Joanne Shand who is currntly sitting for the school certificate. She could legally stay in Australia but she only has her half brother Anthony to stay with. Anthony Madden is married with two young babies and could not cope with Joanne. For practical reasons therefore Joanne would have to leave Australia if Mr. and Mrs. Shand's application for residence were rejected. This would seriously disrupt her studies and her life;

they have a son Anthony Madden who is now an Australian citizen. He would be greatly affected if their application for residence were rejected;

if Joanne Shand remained in Australia while they had to leave, the separation would break Mrs. Shand's heart and devastate the family;

The Minister's policy that they should leave Australia and apply to return to Australia would cause great hardship to them and their daughter and should not be applied in their case. They had been accepted as migrants in 1969. Although they had subsequently migrated to Canada they had obtained return endorsements in Toronto. Only Anthony their son however had been able to make use of the return endorsement by returning to Australia within three years of departure. They had asked for an extension of the three year period, but it had not been granted. They had not been able to make use of the return endorsement as they could not sell their house in time;

there was no moral or important reason why the application for residence should be rejected. Although they applied for visitor visas while their intention was to reside in Australia there was nothing wrong in this. They had been Australian residents and had made attempts to retain their resident status although they had migrated to Canada. They had gone to Canada for the good of the family but it had been the wrong thing to do as the children could not settle there;

the ability to return to Australia had been wrongly taken from them;

Mr. McGrath, olicitor advised that Joanne Shand is entitled to the 'special privilege' of having her parents remain with her in Australia without the uncertainty of separation or being forced against her wishes, to depart Australia, so that she can be with her mother".

Reference was then made to the assessment made by an assessor of the application for residence. In summary the assessor noted the following points:-

"26. . . . . . . . . . . . . . . . . . . . . .

Joanne Shand was an Australian citizen, of sixteen (16) years. It was reasonable to assume that temporary accommodation could be arranged so that she could complete her academic year and that she would have some say in whether she stayed in Australia or returned to England with her parents. Some of her formative years had been spent in Canada as well as Australia;

Mr. and Mrs. Shand did not have the same right as their daughter to expect to continue to remain in Australia. They had shown disregard for Immigration law.

Mr. and Mrs. Shand had by failing to return to Australia within three years of departure in 1978 lost their status as residents of Australia. Instead of applying for migrant entry when they wished to reside in Australia they had applied for entry as visitors and had signed the associated undertaking. They had not adhered to those undertakings;

There appeared to be no features of the case that indicated that the application of policy would be unreasonable or unjust".

The writer went on to say that the Shands did not satisfy the legal requirement for the grant of resident status under para. 6A(1)(e) of the Migration Act 1958 because they were not the holders of temporary entry permits which were in force. It was pointed out to the delegate, however, that, for the purpose of satisfying the legal requirements of the paragraph, it was open to him to grant further temporary entry permits to the Shands if he were satisfied that strong compassionate or humanitarian grounds existed. The writer then continued:-

"29.Mr. and Mrs. Shand have an Australian-born child. In this context the Human Rights Commission has said that the existence of a family unit in Australia and of Australian-born children are decisive to your considerations. The Commission said that it is inconsistent with human rights to deport prohibited non-citizens who are parents of Australian-born children.

30. In this regard, in December 1985 the High Court in the case of Kioa v. Minister for Immigration and Ethnic Affairs found that whilst the presence of an Australian born child is a relevant matter to be taken into account, there is no legal requirement for a deportation decision to conform with the provisions of the International Covenant on Civil and Political Rights and the Declaration of the Rights of the Child.

31. The legal position appears to be that you are required to take into account all relevant circumstances of prohibited non-citizens. The right of Australian-born children of a prohibited non-citizen would be one such circumstance to consider. Having done so it remains lawfully open to you to exercise your discretion to order deportation under section 18 of the Act".

Paragraph 32 emphasized the breaches of immigration law committed by the Shands and said that these must be weighed heavily against them. The matters mentioned were that Mr. Shand had remained illegally in Australia since 23 May 1983 and that Mrs. Shand had remained here illegally since 14 October 1983; both the Shands had worked without permission for a considerable length of time since their arrival; until located on 20 October 1986 the Shands had made no approach to the Department since their arrival in 1983 to regularize their status; and the Shands applied for visitor visas and signed the associated undertakings when it was their clear intention by their own admissions to reside permanently in Australia. It was then submitted that the circumstances advanced in favour of the Shands were not of sufficient weight to constitute grounds for the grant of resident status under s. 6A of the Migration Act. Reference was again made to the policy and the statement by the Minister that it would be rare indeed for illegal immigrants to be granted permission to remain in Australia if they make application only after being apprehended.
The final matter addressed by the writer was the question whether the Shands should be permitted a voluntary departure. It was said that they had been offered this course on 21 October 1986, but had failed to produce to the Department a ticket for departure from Australia within the 48 hours prescribed by policy.
The recommending officer was Mr. Wilson. His recommendations were agreed in by a Mr. Joseph, who is Director of the Immigration Branch. Mr. J.R. Tuchin, the Acting Director for New South Wales of the Department, who is a delegate of the Minister accepted the recommendations, refused resident entry permits and the concession of a supervised voluntary departure, and signed deportation orders.
There is a separate recommendation in respect of Mr. Paul Shand. This refers to the circumstances in which he returned to Australia in 1982, the fact that he has worked since, contrary to the condition endorsed on his passport, and has been a prohibited non-citizen for some years. Reference was made to the policy earlier referred to. A number of matters personal to Mr. Shand were mentioned. It was also recorded that he had asked that there be taken into account the reasons advanced by his father, Mr. Ian Shand, for wishing to remain in Australia.
Mr. Paul Shand is engaged to an Australian citizen, Miss Nazzari, whom he has known for two years. It was recommended that the delegate accept that a close relationship existed between Mr. Shand and Miss Nazzari and that emotional hardship would be caused to both if they separated. However, it was submitted that the relationship could not be considered as constituting grounds for the grant of resident status.
Paragraph 27 of the recommendation is as follows:-

"27.In deciding whether to grant residence status to Mr. Shand you should be mindful of the policy as outlined in paragraph 19 above. Mr Shand's breaches of immigration law must be weighed heavily against him, namely that he:

. has remained illegally in Australia since 24 March 1983;

. worked without permission since approximately 28 September 1982;

. concealed his whereabouts from the Department since 24 March 1983".

Paragraph 29 is also relevant. It is as follows:-

"29.Mr. Shand has not applied for a further TEP (temporary entry permit) and it is submitted in the event of such application that the circumstances advanced in support of a further TEP on behalf of Mr. Shand would not warrant the grant of a further TEP under existing Temporary Entry Policy".

As in the case of the Shands, the grant of resident entry status was refused as was the concession of a supervised voluntary departure. A deportation order was signed.
Annexed to each of the recommendations were a large number of documents. Because of the arguments which were relied on by counsel for the applicants, it is necessary to refer to some of these. Annexed to the recommendation concerning Mr. and Mrs. Shand is a telex sent by a Mr. Davidson, Senior Assistant Director, Immigration Branch, to Mr. John Spender, M.P., who had apparently made representations on the Shands' behalf. Amongst the statements made in the telex is a statement that the Shands had "claimed Government benefits to which they are not entitled". No such statement appears in the recommendation itself, but the telex is appended to it and is specifically referred to in para. 20. The origin of the statement was another document in the Departmental file which showed that Mr. Shand had claimed Medicare benefits to which he was not entitled because he was, at all material times, a prohibited non-citizen.
Another document in the file, which, at first sight, appears to relate only to Mrs. Shand, is a report recommending the refusal of the grant of resident status to Mrs. Shand. It is noted on the first page of the report that Mr. Shand and Paul Shand are also applying for permanent residence status. The document then proceeds as if it were a document relating to the application made by both Mr. and Mrs. Shand. Reference is made to a letter from the Shands' solicitor and to a number of points made by him in support of their application for the grant of resident status. The first referred to the problems associated with leaving Joanne behind. It was said that she was sitting for her School Certificate. After referring to a number of matters, including some related to the plight of Joanne Shand should she be left behind, the writer of the document expressed the opinion that he was unable to conclude that the Shands had advanced "strong, compassionate or humanitarian grounds within the meaning of s. 6A(1)(e) of the Migration Act". The document continued:-

"As Joanne Shand is an Australian citizen there is no reason for her present studies to be disrupted prior to the end of the academic year. Should Mr. and Mrs. Shand be required to depart before that time, it would be reasonable to assume that temporary accommodation could be arranged with son Anthony. At 16 years of age Joanne Shand would have some say in whether she would stay in Australia or return home with her parents. Although part of Joanne Shand's 'formative' years have been spent in Australia, she has also spent some of her formative years in Canada before leaving there for Australia. I note that Paul Shand's formative years were 'disrupted' at 9 years of age to come to Australia and again at 13 years of age to migrate to Canada and again at 17 years of age to return to Australia.

Although Joanne Shand has the 'right to expect to continue to remain in Australia' her parents do not have that same right as they have shown disregard for Immigration laws. Any future applications for migration from Mr. and Mrs. Shand will be considered according to the law and policy of that time".

The officer said that he had considered whether the application of policy was appropriate in this case. He said there were no features of it which indicated that the application of the policy would be unreasonable or unjust. There followed his recommendation that resident status be refused Mr. and Mrs. Shand. The officer's report was specifically drawn to the attention of the delegate in paragraph 16 of the recommendation made to him on 13 November 1986 by Mr. Wilson.
The file discloses that on 14 November 1986, after the recommendation had been made by Mr. Wilson, but before it had been submitted to the delegate, Mr. Joseph sent a memorandum to an officer, Ms. Murphy, requesting her to supplement his submission by reference to two matters. The first was the fact that Mr. and Mrs. Shand were permanent residents of Australia and, but for their losing their resident status by remaining overseas for more than three years, would have been entitled to remain or return here as permanent residents. The second matter was the welfare of "their teen-age (Australian Citizen) daughter, particularly as to her guardianship, place of residence and maintenance". The essential part of Ms. Murphy's response to this memorandum was as follows:-

"1.Mr. and Mrs. SHAND were permanent residents of Australia from 13 Jan 1969 to January 1972. They were also permanent residents of Australia from 1974 to 1978. They would still be permanent residents of Australia if they had returned to Australia within three years of their last departure from Australia in 1978.

2.You should also consider the welfare of Joanne SHAND their Australian born daughter, particularly in reference to her place of residence, maintenance and guardianship. Mr. McGrath, Mr. Shand's solicitor advised 07 Nov 1986 that he would be unavailable for a week. As he was not available Mr. Shand, Joanne's father, was contacted to express his view on the above matter. A departmental file note recording the telephone conversation is attached for your advice.

3.In the event that you decide to order the deportation of Ian George SHAND and Patricia SHAND you are requested to approve the allocation of government funds to enable their daughter Joanne SHAND to accompany them".

The file note recording Ms. Murphy's telephone conversation with Mr. Shand discloses, amongst other things, that he told Ms. Murphy that, if he and Mrs. Shand had to leave Australia, Joanne would leave with them. Mr. Shand said that, if this occurred, he did not think that Joanne would get on well in England. He said that when she had last been at school in England, she had not done well. He went on to develop reasons for this.
The memorandum was furnished to Mr. Joseph who, underneath his statement of agreement with the recommendation, wrote, "See further material attached. I also endorse the recommendation at para. 3 of Ms. Murphy's minute of today's date". The delegate, Mr. Tuchin, noted that he had marked the material referred to by Mr. Joseph as Appendix Q. He added that he had considered it and accepted the recommendation. When making his decisions, including his decisions to sign the deportation orders, Mr. Tuchin noted, "In addition I approve the allocation of Government funds to enable Joanne Shand to accompany Ian George Shand and Patricia Ann Shand".
That completes the reference to documents appended to the recommendation made to the delegate in relation to the cases of Mr. and Mrs. Shand. It is unnecessary to refer to any of the documents appended to the recommendation concerning Paul Shand.
The re-amended application for an order of review sought the review of some 12 decisions. In summary these were to order the deportation of each of the applicants, to refuse to grant a supervised voluntary departure to each of the applicants, to refuse to grant resident status or permanent entry permits to each of the applicants, to refuse to grant temporary entry permits to each of the applicants, to grant return endorsements valid for return travel to Australia within three years from the date of last departure from Australia to each of the applicants, and not to extend that period, and to grant temporary entry permits in 1982 or 1983, as the case may be, to each of the applicants. The decisions to grant return endorsements valid for return travel to Australia within three years from the date of last departure from Australia and the decisions not to extend that period were decisions made more than three years prior to the filing of the original application for review. The applications were therefore out of time. The same is true of the decisions to grant them temporary entry permits in 1982 or 1983. To overcome the problem which there was because the applications to review these decisions were out of time, the applicants filed a notice of motion seeking an extension of the time within which to lodge an application. The application was made pursuant to s. 11 of the Judicial Review Act. The applications made in respect of the decisions to grant temporary entry permits in 1982 or 1983 were not opposed and I made orders extending the time accordingly. However, I am satisfied that I should accept the submission made about these decisions by counsel for the respondent that there was nothing to review because the applicants applied for temporary entry permits which were granted to them. In other words, they were given precisely what they asked for.
Counsel for the respondent opposed the grant of an extension of time in respect of the decisions to grant return endorsements valid for return travel to Australia within three years from the date of the applicants' last departure from Australia and not to extend that period. The ground of opposition was the substantial difficulty involved in ascertaining from appropriate officials then at the Australian Consulate in Toronto information or evidence of the circumstances in which the applications for a return endorsement were made and the decisions concerning them arrived at. Evidence of these difficulties was given by a Mr. R.K. Henderson, who is an officer in the Department. I accept his evidence. I have reached the conclusion that in the exercise of my discretion I should not accede to the applications to extend time and I refuse them accordingly.
The decisions, review of which is sought, are therefore the decisions to make deportation orders, the decisions to refuse supervised voluntary departures and the decisions to refuse to grant resident status, permanent entry permits and temporary entry permits to each of the applicants. In my consideration of the matter I can omit from account the decisions refusing supervised voluntary departures because this was not a matter separately relied upon by counsel for the applicants.
What the matter comes down to then, is whether the applicants have shown some failure on the part of the delegate or other officers concerned with the matter to observe proper procedure. I make it clear. as I was at pains to do during the hearing, at which the applicants were present, that this Court has no overriding power or jurisdiction to reach its own conclusion on the merits of the matter.
The grounds relied upon were that there had been breaches of the rules of natural justice in connection with the making of the decisions, that the delegate had failed to take relevant considerations into account and that the delegate took irrelevant considerations into account. Other grounds were relied upon, but only in respect of the decisions which were made in 1982 or 1983 which, for the reasons earlier given, do not arise for consideration.
In support of his submission that there had been a denial of natural justice, counsel for the applicants relied upon the decision of the High Court in Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321. In essence counsel for the applicants submitted that in a number of respects the applicants had been denied procedural fairness because matters relied upon by the decision-makers adversely to the applicants had not been put to them with the consequence that they were deprived of an opportunity of explaining them.
The first such matter was the statement in the telex to Mr. Spender that Mr. and Mrs. Shand had obtained Government benefits to which they were not entitled. As earlier mentioned, the basis of this statement was that Mr. and Mrs. Shand had obtained benefits from Medicare, to which, as prohibited non-citizens, they were not entitled. This matter was put to Mr. Shand at an interview. He readily conceded that he had obtained payments from Medicare. It does not appear that he appreciated that, at the time he obtained the benefits, he was not entitled to them. But, that matter notwithstanding, it must follow that what was written was objectively correct. Like the telex, the record of interview was appended to the recommendation and was available for both Mr. Joseph and the delegate, Mr. Tuchin, to read. In those circumstances I am unable to perceive how it could be said that Mr. and Mrs. Shand were denied procedural fairness by the making of the statement. If the matter had been put to Mr. Shand again, the reality is that his answer would have had to be precisely the same.
Furthermore, the recommendation itself does not refer in express terms to this matter. It is true that the telex in which the statement was made was annexed to the recommendation, but it seems to have been played little, if any part, in the reasons advanced for the decisions which were made. The recommendation and the accompanying documents were annexed to an affidavit sworn by Mr. Wilson. He was not asked any questions in cross-examination. In all these circumstances I have decided that the first submission made on behalf of the applicants should be rejected.
The next matter relied upon was a statement in another annexure to the recommendation, namely, the assessment report concerning the applications for the grant of resident status, in which it is said that Mr. and Mrs. Shand "have both avoided contact with Department" since they became prohibited non-citizens in 1983. Counsel for the applicants submitted that "avoided" was too strong a word to describe what he contended to be no more than a passive failure to go to the Department. In other words, so it was submitted, there was no positive step taken by either Mr. or Mrs. Shand which involved their deliberately and consciously avoiding contact with the Department. It followed, so it was said, that the statement that contact had been avoided should not have been relied upon at least without putting the matter to the Shands and giving them an opportunity to explain why they had not visited the Department.
In my opinion this submission should be rejected because it is contrary to realities. Mr. and Mrs. Shand arrived in 1983 and, so far as the contemporary documents diclose - there is nothing in their oral evidence which would lead to a different conclusion - decided to deceive Immigration officers into thinking that they intended to stay here for a short period to visit relatives. It was clear to them that they were not to work. Contrary to what their conduct would have led a reasonable person to believe, they immediately established themselves as permanent residents and took employment. They had thus embarked upon a deliberate course of conduct knowing that, if they were detected, they may be confronted with problems. The fact that they may not unreasonably have thought themselves hardly done by because they had originally been accepted as migrants is not to the point. They must have known that, if they made any contact with the Department at all, particularly as the period of their illegal stay continued, they ran the serious risk of deportation. What the officer meant when he said that they had avoided contact with the Department was that they had not been prepared to go to the Department and make a clean breast of what they had done. This is obviously the case. It follows that, if it had been put to them that they had avoided contact with the Department, they would have had nothing to say in opposition to the statement. That they were avoiding the Department is plain on the face of the documents and the Shands' known evidence.

The next group of submissions is based either on a failure to take relevant considerations into account or upon the taking of irrelevant considerations into account. The first matter relied upon is the circumstances of Mr. and Mrs. Shand's departure from Australia in 1978, particularly the circumstance that they had not been advised on departure that the policy requirement was that they obtain a return endorsement on their passports and that such an endorsement was limited to a period of three years. In other words, so it was submitted, the delegate, when considering whether he should make a deportation order, should have taken into account the failure of immigration officers to tell the Shands that, if they remained away from Australia for more than three years, they would lose their resident status.
One difficulty about this submission is a factual one. Having considered the Shands' evidence in its entirety, I am by no means satisfied that they were not told what the policy was. It would appear that they must have had previous experience with the policy when they returned to England in 1972 and remained there for over two years before coming back to Australia. Be that as it may, there is a reason why the policy would not have been relevant to the Shands' position when they left for Canada in 1978. Ostensibly they had decided to leave Australia for good because they said that they were migrating to Canada. That is what appears on their departure cards. If they had had some intention of returning and showed that intention on their cards, there seems little doubt that the officer on duty would have endorsed their passports with the return endorsements.
It should be clear that the submission is not based directly on this evidence but upon an alleged failure on the part of the delegate to take these matters into account in determining what he should do in relation to their deportation. But the submission needs a factual basis to support it. For the reasons I have given that factual basis is not there.
The matter was put somewhat differently in a separate submission which was that the delegate had failed to take into account the Shands' length of residence in Australia as permanent residents and their intention to retain Australian domicile. But in 1978 all the indicia were to the contrary of this being the case. They were leaving Australia permanently as migrants to Canada. There is little evidence thereafter of their intention to return to Australia as permanent residents except what they say themselves. What they have said is quite inconsistent with what they wrote on their incoming passenger cards when they returned in 1983. They then stated that they were coming here as visitors not seeking employment for the purpose of visiting relatives. It was also submitted that no attention had been paid to the very short period given the Shands to return to Australia between the time of their visit to the Australian Consulate in Toronto in January 1981 and the expiry of the re-entry endorsements then made in their passports. In accordance with policy the re-entry endorsements expired, in the case of Mr. Shand, on 19 March 1981 and, in the case of Mrs. Shand, on 2 April 1981. It was submitted that it was obvious that these periods were far too short to enable the Shands to wind up their affairs in Canada and return to Australia by the beginning of April. The challenges the Shands would have made to the decision of the officer at the Consulate to grant the re-entry permits for such short periods, if they had been allowed to pursue their application to have this decision reviewed, would have been that the periods involved were far too short with the consequence that consideration should have been given to extending them notwithstanding that this would have involved some relaxation of the policy.
There is nothing in the material before me to suggest that the delegate was ever asked to take this matter into account by the Shands or their solicitor. Furthermore, the Shands did not return to Australia until 1983, more than two years after their visit to the Consulate in January 1981. I do not accept that it could have taken them two years to wind up their Canadian affairs. There must have been other reasons for their continued stay. By 1983 when they did come here, the 1981 visit to the Consulate was very much in the past and it was upon their arrival over two years afterwards that the Shands embarked on the deliberate course of deception which is partly, if not principally, the cause of their present problems.
Having considered these various submissions and the matters connected with them, I have reached the conclusion that it has not been shown that the delegate failed to take relevant considerations into account. The submissions are therefore rejected.
Separate matters relied upon were the failure of the delegate to take into account the Shands' relationship with their stepson, Anthony Madden, and his family and also with their son, Paul, and daughter, Joanne. Anthony Madden is an Australian citizen and intends to stay here with his family. Paul is also a prohibited non-citizen. His case needs to be considered separately but, if it fails, he will be deported from Australia. He will not, therefore, be here. It is difficult to see how the Shands can rely on a consideration of their relationship with Paul in these circumstances.
Of more significance is their relationship with Joanne who is an Australian citizen and, although 16 years of age, still in her formative years. During the hearing I expressed some criticism of suggestions made in the recommendation which, if the Shands had been deported last year, would have involved her in staying with Anthony Madden whilst she completed her School Certificate year in Australia. But circumstances have overtaken that consideration. That year is now over and she has completed the School Certificate.
The answer to the submission is I think to be found in documents to which I have earlier referred which plainly indicate that Mr. Joseph was very concerned about the welfare of Joanne. He did not accept the recommendation made by Mr. Wilson at its face value, but directed that further inquiries take place in order to find out what would become of Joanne if her parents were deported. This led to Ms. Murphy's interview with Mr. Shand in which he said that she was part of the family. If he and his wife had to leave Australia she would leave with them. He did say that he did not think that Joanne would get on well in England and gave various reasons for this which are set out in the record of the telephone conversation which Ms. Murphy had with him. It was this information which led to the recommendation being made that, assuming the Shands were deported, Government funds would be made available to enable Joanne to travel with them. In these circumstances I am unable to conclude that the consideration relied upon was omitted from account. On the contrary, it seems to me to have been given very full consideration by Mr. Joseph and also Mr. Tuchin, the delegate, when the matter came to him. The submission must therefore be rejected.
There were then some matters relied upon which were said to show that irrelevant considerations had been taken into account. Some of these find their counterpart in the matters already dealt with, namely, that the Shands had validly been granted a return endorsement for a period of three years only and that they failed to show a commitment to permanent residence in Australia by not returning within the three year period of their return endorsement. These matters are very much bound up with the circumstances in which the Shands left Australia in 1978 as migrants to Canada. This is a matter already dealt with and I do not repeat what I have said about it. The submission is rejected.
The other matter relied upon under this heading was that Paul Shand's formative years had been disrupted. This is a matter referred to in the recommendation. Undoubtedly it is factually correct. Paul was brought in his early years from England to Australia. After a few years here he returned to England for two more years. He was then back in Australia for four years before going to Canada where he remained for a further four years. Added to this was the fact that the family seems to have moved about Canada fairly extensively. In these circumstances it is a plain background fact that Paul Shand's formative years must have been disrupted.
I therefore reject submissions based upon an alleged failure to take relevant considerations into account and the alleged taking into account of irrelevant considerations. Before proceeding, however, I should pause to mention that counsel for the respondent conceded in the course of her argument that the welfare of Joanne Shand was a consideration which the Minister was bound to take into account. She made this concession after discussion of the effect of the decision of the High Court in Minister for Aboriginal Affairs v. Peko-Wallsend Limited (1986) 66 ALR 299, especially per Mason J. (as he was) at pp 308-311 and whether what was said in that case was relevant to the question of the Court's powers to determine, for the purposes of s. 18 of the Migration Act, what were, and what were not, relevant or irrelevant considerations. The section is in general terms. There is not to be found within its language any specification of the criteria which are to guide the Minister in making his decision. Such criteria must be found in the scope, purpose and policy of the Migration Act. For this reason it may be that a number of the matters relied upon by counsel for the applicants in this case were not matters which the Minister was either bound to take into account or bound to omit from account. That is not a matter upon which I need to express any opinion and I do not.
The matters to which I have referred were the matters relied upon in relation to Mr. and Mrs. Shand both in respect of the decision to make deportation orders against them and the decisions to refuse them both temporary entry permits and resident status. It follows that, insofar as these decisions are concerned, the submissions relied upon must also be rejected.
That leaves the case of Paul Shand which was separately dealt with by the delegate. Again a breach of the rules of natural justice was relied upon. In the account of Paul Shand's application for resident status the same statement was made as was made in the case of his parents, namely, that he had concealed his whereabouts from the Department since 24 March 1983 and had avoided contact with the Department. For reasons similar to those given in the case of Mr. and Mrs. Shand I reject the submission in so far as it is based on these statements. A further matter relied upon was a statement in the recommendation that Paul Shand "claimed" he first entered Australia on 13 January 1969. The objection is to the use of the word "claims" when in fact it was common ground that he had entered Australia on that day. It was said that the use of the word "claims" cast doubt on the accuracy of the statement that he had then entered Australia and thus reflected generally on his credibility. I regard this complaint as de minimis and reject the submission based on it.
A further ground was the omission from consideration of relevant considerations. These were in substance the same matters as were relied upon in the case of Mr. and Mrs. Shand but, so far as Mr. Madden and Joanne were concerned, looked at the matter rather from the point of view of Paul Shand and not from that of Mr. Madden or Joanne. I do not think that this difference is of any consequence. For the reasons already given the matters were either not relevant considerations or were properly taken into account.
The ground alleging the taking into account of an irrelevant consideration was based on an allegation that Paul Shand had been granted a return endorsement on his passport for a period of three years only. This raises considerations similar to those already dealt with and I do not need to say more of the matter. The submission is rejected.
As in the case of Mr. and Mrs. Shand the same matters were relied upon in relation to the decisions to refuse the grant of a temporary entry permit and resident status. The same considerations apply with the consequence that the submissions are rejected.
It follows that I have rejected each of the submissions relied upon by the applicants. The consequence is that their application must be dismissed. Before I conclude, I should, however, say this. A reading of the recommendations made to the delegate discloses, as I have earlier said, a very strong reliance on the breaches of the law and the misleading statements which all the Shands have committed or made. Strong reliance is also placed upon the current policy. There was no submission in this context that the delegate had applied the policy without taking into account sufficiently the individual merits of the Shands' cases. I have not considered the matter fully, but I think it likely that such a submission would have failed. I do say though that this is a case where the applicants have in the past been regarded as fit and proper persons to become migrants. They have lived in this country for a number of years partly as legal immigrants and partly as prohibited immigrants. During this time they have worked. There is nothing to suggest that they have been otherwise than good citizens. None appears to have committed any offence or to have done anything which is at all discreditable except in relation to their entry into Australia when they returned in either 1982 or 1983 as the case may be. I would be the first to agree that it is vitally important that those who seek residence here should be frank with immigration authorities and not mislead them in any way. But having said that, the deportation of the Shands and the consequent splitting of the family, even if Joanne returns with her parents, seems a harsh punishment for the transgressions of the law to which I have referred. I emphasize that these matters are not for the Court but for the Minister and his delegates. However, I do wonder whether it would not be wise for the case to be looked at again to see whether, after all, there ought not be made an exception from the operation of the policy in these cases.
Particularly is that so when one has regard to the provisions of para. 6A(1)(e) of the Act which contemplates the grant of an entry permit to the holder of a temporary entry permit where there are strong compassionate or humanitarian grounds for the grant of an entry permit. The provision is not of direct relevance in this case and no submission based on it was made by counsel for the applicants. Nevertheless, there is reference in the material to this matter having been considered, the view being taken that the circumstances of the case did not disclose strong compassionate or humanitarian grounds. No doubt minds may differ on the question of whether particular circumstances justify the conclusion that they fall within or outside these words. It would seem to me to be open to the Minister or his delegate to take the view that such grounds do exist in this case. The grant of temporary entry permits to the applicants would permit the grant of resident status.
In the result, however, the application in this case must be dismissed with costs.

[1987] FCA 125

31 MARCH 1987