Sheung, C.W. v Mahoney, J.R

[1987] FCA 202

CATCHWORDS

ADMINISTRATIVE LAW - Judicial renew - Immigratlon - Review of

decislon that appllcant be deported - Prior declslon that

applicant not entltled to benefit of Regularization of Status

Program - Document provlded by applicant in support of

entitlement with request that signatory thereto be interviewed -

Signatory does not support appllcant's case - Applicant not so

informed - rNhether a denial of natural justlce - Whether decision

so unreasonable that no person could have so exercised the power.

Admlnlstrative Decisions (Judicial Review) Act 1977 (Cth), s.5

Miqratlon Act 1958 (Cth), ss.6, 6A, 18

Mlqration Amendment ACE (No.2) 1980 (Cth), s.ll(l)

CHAN WOON SHEUNG v. JOHN RICHARD MAHONEY

No. ACT G 21 of 1987

,.I

Neaves J.

24 April 1987

Canberra

I

-	IN THE FEDERAL COURT	OF AUSTRALIA	1
I

AUSTRALIAN CAPITAL TFXRITORY	)
) No. ACT G 21 of 1987
DISTRICT REGISTRY	1
1
GENERAL DIVI-	1

BETWEEN: CHAN WOON SHEUNG

Applicant

AND: JOHN RICHARD MAHONEY

Respondent

MINUTE OF ORDER

JUCGE MAKING ORDER : Neaves J.

DATE OF ORDER : 2 4 April 1987

WHERE MADE : Canberra

I

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The, applicant pay the respondent's costs of the

application.

3. The order made on 10 April 1987 that the

aeportation order dated 25 March 1987 be stayed

until further order be vacated.

W : Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

AUSTRALIAN CAPITAL TERRITORY )

No. ACT. G 21 of 1987

-	DISTRICT REGISTRY	1
)
GENERAL DIVISION	)

BETWEEN: CHAN MOON SHEUNG

Applicant

AND : JOHN RICHARD IWONEY Respondent

a: Neaves J.

m: 24 April 1987

REASONS FOR JUDGMENT

!

This is an application by Chan Woon Sheung ("the

applicant") under s.5 of the Administrative Decisions (Judicial

Review) Act 1977 (Cth) ("the Judicial Review Act") for an order

of review in respect of the declsion made by John Richard

Mahoney ("the respondent"), a delegate of the Minister for

Immigration and Ethnic Affalrs, on 25 March 1987 pursuant to

5.18 of the Misration Act 1958 (Cth) ("the Migration Act") that

the applicant be deported from Australia. The grounds upon

which the okder of review is sought are -

(a) that a breach of the rules of natural justlce occurred in connection with the making of the decision (s.5(l)(a) of the

I Judicial Revlew Act); and

(b) that the making of the decision was an

improper exercise of the power conferred

I	-*.	by 5.18 of t h e Migration Act in that the
exercise of the power as so

unreasonable that no reasonable person

could have so exercised the power

(ss.5(l)(a) and 5(2)(g)).

Immediately prior to making the declslon that the appilcant be deported from Australia, the respondent made a

number of other decislons affecting the applicant. He

refused to grant to the appllcant a temporary entry permlt

under s.6 of the Migration Act, he determined that the

applicant did Reqularizatlon of Status Program announced on not fall within the purview of the

19 June 1980

and he refused to grant the applicant permanent resident

status under s.6A of t'ne Migration Act. He also refused

permission for the applicant to engage in employment and

refused the concession of voluntary departure.

It appears that the applicant was born in The

Peoples Republic of China on 1 November 1951. Prior to

coming to Australia he had been a resident of Hong Kong for

approximately five years. He has never been married. He is

said to have a brother who has been living in Australia

since 1965 and two brothers living in Hong Kong. His mother

and his two sisters live in China.

,

It is common ground that the applicant is a

prohibited non-cltizen (Migration Act, s.7(3)). It may be

accepted that he entered Australia illegally prior to May

1980, the exact date of his arrival being a matter of

dispute. There is no record of his arrival in Australia.

He claims to have arrived as an undetected stowaway on board

the vessel' "Potoi Island" which left Hong Kong on 14

3 .

September 1979 and arrlved at Sydney on 2 October 1979. The appllcant says that he swam ashore when the vessel arrived

at Sydney and went to	a house In Brumby Street, Surry Hills,
an inner suburb.

The applicant first came to the notice of the

immigration authorities on 7 July 1980 when he lodged an

appllcation for the grant of permanent resident status under

what was called the Regularizatlon of Status Program, a

program announced on 19 June 1980 which enabled many people

in Australia without permanent resident status to apply for

it. He was interviewed on 14 August 1980 during whlch he sald he had sneaked on board and off the ship and had paid

nobody at either end of the ~ourney. On that date he lodged

an application for an entry permit for a period of twelve

months. Pursuant to this application he was granted a

temporary entry permit valid until 14 February 1981. No

further entry permit has been granted to him.

As applicant on 14 August 1980 under the Regularization the fate of the application made by the

of

,

Status Program and of the reconsideration of that

application,by the respondent on 25 March 1987 looms large

in the submissions put to the Court on the applicant's

behalf, it 1 s convenient at this point to say something of

i

it.

The program was announced in the light of proposals

for amendihq leglslation which would, after a specified

4

date, restrlct the rlght of persons who were in Australia to

apply for and obtain permanent resldent status.

Prior to the commencement on 14 January 1981 of the

relevant provisions of the Miqration Amendment Act (No.2)

1980 (Cth), it was open to an officer (as defined) to grant

an entry permit entitling a person to resident status

whenever it was thought appropriate to do so (5.6). The

amendmg Act inserted, inter alla, s.6A whlch restricts the

circumstances in which an entry permit other than a

temporary entry permit may be granted to a person after his

or her entry into Australia. The circumstances in which

such an entry permit may now be granted are set out in

s.6A(1). By virtue of the transitlonal provisions contained

in s.ll(l) of the amendlng Act, the amendments were not to apply to or in relation to the grant of an entry permit (not

being a temporary entry permlt) to an Immigrant after 14

January 1981 if -

(a)

the applicatlon for the grant of the before 1 January 1981; and

,

(b) the immigrant entered, or last entered, Australia before 1 January 1980.

Applicants under the Regularization f Status Program had to

meet health and character requirements for migration. They

had to have been of good character before coming to

Australia and while in Australia and they and their

immedlate families had to have a genuine intention of

.,

residing permanently In Australia.

I I

l .'

I 5.

There is no doubt that the application made by the

applicant for the grant of permanent resident status was

made within the period mentioned. However, nelther the

officer who dealt initially with the application under the Regularlzatlon of Status Program nor the respondent accepted

that the applicant entered, or last entered, Australia

before 1 January 1980.

After the receipt of medical and character

clearances in respect of the applicant, the Department of

Immlgration and Ethnic Affalrs wrote to him on 21 July 1981

requesting that he provide vidence of his stay in

Australia. In response, the applicant provided -

I

. a savings bank passbook in respect of an

account i his name with the

Commonwealth Savings Bank of Australia,

Haymarket, Sydney branch which was

opened with	a deposit of $500 on 1 May
1980;

. a refund notice from the Australian

Taxation Office in respect of the year ended 30 June 1980 evidencing a refund of tax instalment deductions amounting

,/to $165.75; and

.	a statutory declaration dated 14 August
1981 which gave his address as 11 Brumby
Street, Surry Hills, New South Wales,
referred to his having arrived in
Australia as a stowaway on 2 October 1979 and declared that he first started
work from 12 October 1979 to 3 November
1979 as a casual kitchen-hand on Friday

and Saturday nights, with pay at the

rate of $20 per night, at the Jannali

Chinese R staurant, Bates Arcade,

Jannali, New South Wales. The

proprietress of the restaurant was said

to be a Mrs Vivian Tsetong.

I

6.

In support of his claim to have been employed between 12

October 1979 and 3 November 1979, the applicant submitted a typewritten document In the following terms bearing a

signature whlch was accepted as belng "V. Tsetong":

"TO ALL TO WHOM IT MAY CONCERN

This is to certify that Mr CHAN Woon Sheung has

been employed as a casual kitchen-hand in our

restaurant from 12th October, 1979, to 3rd

November, 1979. He left our employment out of his own accord.

We like to add that while he was in our

employment, we found him a very diligent good

worker.

Dated 3rd November, 1979.

(Sgd) V. Tsetong

Jannali Chinese Restaurant

Bates Arcade, Jannali, 2226"

On 4 February 1982 the applicant attended at the

offices of the Department of Immigration and Ethnic Affairs

as requested by letter dated 25 January 1982 and agreed to

his fingerprints being taken the by police for

identification,purposes.

On'19 April 1983 the Department received a letter

from an unidentified source stating that the applicant was awaiting a reply to his application under the Regularization

of Status Program and had changed his address, the new

address being glven as	44 Station Street, Newtown, New South
Wales.

.U,

1 .

It was not untll 12 December 1984 that a decision

was taken refuslng the applicant's application under the

Regularization of Status Program. The ground of refusal was

that he had not established ls ell~lbility to be considered

under the program as he had not shown that he entered

Australia before 1 January 1980. A letter dated 1 2 December

1984 Informing the applicant of the decision and requiring

him to leave Australia within 30 days was sent to the

I

I	applicant by certified mail addressed to the Surry Hills
I
address. The letter was returned unclalmed. Some nine
months later, on 25 September 1985, a letter in similar terms was sent to the applicant by certified mail addressed
l	to the Newtown address referred to above. That letter was
returned with an endorsement that the applicant was not at
I
that address.

Nothing further was heard of the applicant until 16

January 1986 when he was located at his then place of

employment, the Grand Court Restaurant at West Cooma. He

was taken into custody under 5.38 of the Migration Act. He

was released from custody on 21 May 1986 and has since been

reporting regularly to the Department.

The applicant was interviewed on 17 January 1986

with the aid of an interpreter. He agaln stated that he had

arrlved in Australia in October 1979 as a stowaway but on

thls occasion he stated that he had paid $HKlO,OOO to a

member of the crew of the vessel "Potoi Island", half in

Hong Kong and the other half on arrlval at Sydney. He said

8.

he had made an inqulry in 1983-84 as to the progress of his

appllcatlon under Lne Regularization of Status Program and

was told that no declslon had yet been reached. He said he

enqulred again and was told "that he had to go home". There

is apparently no record In the Department of such a

conversatlon having taken place. The applicant agreed that

after 1983-e4 he changed his address many times but did not

inform the Department of any of his changed addresses. He

s a d he had continued to collect mail from his old address

but he denied havmg received either of the letters

informing him that his application had been unsuccessful.

He gave some details In Chlnese script of his employment

since being in Australia and it may be taken that the first

entry relates to his claim to have been employed as a

kitchen-hand at Jannali for about one month. No dates of

the employment were, however, recorded. The applicant said

that he wanted the Department to check details of his

arrival in Australia as he claimed to have arrived in time

to have the benefit of the Regularization of Status Program.

On 24 January 1986 the applicant was again

:,

interviewed. Prior to the interview a search of the

applicant's personal effects had revealed a document

described as a "Food Buslness Immunlzation Record Card"

relatmg to the applicant. The document records that the

applicant received anti-smallpox, TAB and anti-cholera

lnjections on 25 March 1977 and TAB and anti-cholera

injectlons on 30 May 1978 and 25 September 1979. The appllcant,"on interview, asserted that he arrived in Sydney

I

I : 9.

from Hong Kong on	2 October 1979 after a journey of 17 or 18
days. Confronted	with the record of the injections he had

recelved In Hong Kong on 25 September 1979, the applicant

claimed that he was not in Hong gong on that date, that the

document had unscrupulous doctor and that the document had been sent to been stamped a year in advance by an

him after his arrlval in Australia. He subsequently sald

the document had been received by him in Australia between

June and August 1980.

On 29 January 1986 a deportation order was signed

for the deportation of the applicant.

By letter dated 3 February 1986 the applicant’s

solicitor, recognislnq that the Department had reservations

concerning the date of the applicant‘s arrival in Australia,

requested that enquiries be undertaken to confirm that the

applicant was employed from November 1979 at the Chun Tze

May restaurant, Jannali, by a Mrs Jay Tai. It seems,

although it is not entirely clear, that this was intended to

refer to the same employment as that referred to in the

,

applicant's statutory declaration dated 14 August 1981. The

letter also requested a statement under s.13 of the Judicial

Review Act in respect of the decision to deport the

applicant. Such a statement was forwarded to the

applicant’s olicitor on 16 May 1986. The statement

referred, inter alia, to the rejection of the application

under the Regularization of Status Program on the ground

that the applicant had not established that he had entered

Australia prior to 1 January 1980.

10.

By a further letter, dated 20 February 1986, the

applicant's solicitor informed the Department that he had

located the spoken, through an interpreter, applicant's employer in 1979, that he had

to Mrs Vivian Tse Tong of a

stated Sydney address and that she had informed him that

the appllcant worked at her restaurant for a short time

prior to January 1980. He asked that Mrs Tse Tong be

interviewed with the assistance of an interpreter and a

photograph of the applicant. The solicitor further stated

that Mrs Tse Tong had informed him that she had previously

provlded evidence of the applicant's employment at her

former restaurant at Jannali and that the Department was in

possession of that material.

In an affidavit sworn by the applicant on 28 April

1986, a copy of which was forwarded to the Department, the applicant stated that he worked as a kitchen-hand at Jannali

though he did not recall the date when	he started. He said,
however, that it was some weeks after	his arrival at Sydney

on 2 October 1979 and before Christmas 1979. He referred to

the work reference which had previously been produced though

he referred to it as having been given by Mrs Jay Tai. He

also stated that in January and February 1980 he had

attended English language lessons at the Redfern Primary

School. In relation to the latter statement, enquiries

revealed that class rolls, the only form of student record

kept at that time, were retained for only two years before

being desfroyed. The applicant's claim in this regard,

therefore, could not be verified.

Under cover of a letter dated 13 May 1986 the

applicant’s olicltor forwarded to the Department an

appllcatlon by the applicant for a further entry permit for

a perlod of six months pending the conslderatlon of an

applicatlon under s.6A(l)(e) of the Mlgration Act for

permanent resident status also forwarded with the letter.

The latter applicatlon was made on the basis that the

appllcant had strong compassionate or humanitarian grounds

for the grant of permanent resident status.

When maklng his decisions on 25 March 1987, the

respondent also had before him three telex messages from the

New South Wales reglonal offlce of the Department, two dated

7 July 1386 and the third dated 25 February 1987. The first

of those dated 7 July 1986 read as follows:

!	“Refer your correspondence of 4/6/86. Spoke to
Mrs Tong on 2/7/86 with the aid of her daughters
who acted as interpreters. Mrs Tong does not
speak read or write English. She stated that the
letter was prepared by a friend of hers who asked
her to sign it to help Mr Chan obtain employment
(he was having trouble getting work). Mrs Tong
states sge only signed the reference to help a
friend and that Mr Chan had not worked for her.”

The second message dated 7 July 1986 was in the following

terms :

“Confirming our telecon of 7/7/86.

Contacted Mrs Tong. Who advised she signed the

reference after she sold the Jannali Chinese

Restaurant which was sometime after May 81.“

12.

The third message, that dated 2 5 February 1987, read as

follows :

“Contact made with Mrs Tong via her daughter Jean

Kwong . She advised mother not prepared to

provlde statement as she is concerned that there

could be reprlsals towards her. Mrs Tong is 64

years old and doesn’t want to get involved with

any possible court hearmgs. It is of note that

as Mrs Tong can not read or write English

therefore it was not posslble for her to have

prepared. employment reference.“

i	For some reason which remains unexplained, the
I

submission to the respondent upon which the decision to

deport was made referred (pars 23 and 39) to the receipt by

a departmental officer of “confidential information that Mr

Chan had not in fact worked for Mrs Tong“. However,

I

according to the submission, no information on this aspect of the matter was before the decision-maker in addition to

that contained in the telex messages to which I have

referred. There is nothing before the Court	to suggest that
this statement 1s other than correct.

Although it is the deportatlon order which is the

subject of the application for an order of review under the

Judicial R’eview Act, it is the decision denying to the applicant the benefits whlch the Regularization of Status

Program provided to those to whom it was applicable that the

applicant challenges. He seeks to have that decision set

aside with consequent effect upon the order for his

deportation.

-.

13.

There may well be very good grounds for supposing

that the applicant would have been granted permanent

resident status under the Regularization of Status Program

been satisfaction that, in truth, he entered Australia, albeit able to establlsh to the respondent's

if he had

Illegally, before 1 January 1980. The respondent, however,

determined that he was not so satisfied and that

determination must stand unless the applicant can succeed on

either of the grounds argued in support of the application.

The first of those grounds is that the decision

is vitiated by a breach on the part of the respondent of the

rules of natural justice, to use the language of s.5(l)(a) of the Judicial Review Act, or, as it is now more usually put, by a failure on his part to accord procedural fairness

to the applicant. It is submitted on behalf of the

I

applicant that the respondent was obliged to inform the

applicant, by providing him with copies of the three telex

messages already referred to or by some other appropriate

means, of the substance of what Mrs Tse Tong had said to the

Departmental officers concerning the applicant's claim to

:'

have been employed in her restaurant in October and November

1979 so tha: the applicant might have an opportunity to make

further submissions in relatlon to the matter.

In reconsidering the application u der the

Regularization of Status Program, the respondent was, in effect, exercislng the powers conferred by the relevant

provlsionskf the Migration Act in the form in which they

14.

stood prior to the amendments effected by the Miqration

Amendment Act (No.2) 1980 (Cth). It was the amendments

effected by that Act which, in the main, led the High Court

Ln v. Unlster for Immlqration and Ethnic Affairs

(1985) 62 A.L.R. 321 to reach a different conclusion

concerning the applicability of the rules of natural justice

I

m relation to the exercise of powers under the Migration

Act than had been reached in Salemi v. MacKellar CNo.23

(1977) 137 C.L.R. 396 and The Oueen v. MacKellar; Ex parte

(1977) 137 C.L.R. 461, decisions upon the provisions

previously in force. Notwithstanding the relevance of the

earlier provisions to the decision which the respondent was

called upon to make, no argument was presented on his behalf

that, on the reasoning of the High Court in the earlier,

decisions, the rules of natural justice were wholly

displaced.

Nevertheless, in considering whether, in the

particular circumstances of this case, there has been a

failure to accord procedural fairness to the applicant, it

is of some importance that the question concerning the date

>

of the applicant's entry into Australla arose, not in

relation to the decision that he be deported, but in

relation to the anterior decision whether the applicant was

within the purview of the Regularization of Status Program.

!	The applicant had applied to be dealt with under that
program and it was that application which was under
consideration. He had in August 1981 put forward in support
of the apphcatlon the document said to have been signed by
Mrs Tsetong on 3 November 1979.

15.

The crltical issue or factor, namely whether had

entered Australla prior to 1 January 1980, on which his

application under the Regularizatlon of Status Program

depended had been brought to the applicant's notice at the latest when he was taken into custody in January 1986. It

was also a matter of whlch the applicant's solicitor was

aware at about that tlme. They must have appreciated that

it was essential, if the benefits of the Regularization of

Status Program were to be extended to the applicant, that material be placed before the Department establishing that

he entered Australia prior to 1 January 1980. At the

interview on 17 January 1986 the applicant stated that he

wanted the Department to check details of his arrival In

Australia. His solicitor was even more specific in his

letters dated 3 and 20 February 1986, requesting that the

Department interview Mrs Tse Tong, this request being made after the solicitor had apparently been in communication

with her. It was in the above context that officers of the

information which did not support what the applicant had

asserted.

Department approached Mrs Tse Tong and were given

The following passage from the judgment of Mason J.

in v. Minister for Immiqration and Ethnic Affairs

(supra) at p.348 is apposite:

' I . . . . this is not to say that fairness will

necessarily, or even generally, require that an

applicant for a further entry permit be given an

opportunity to bc hcard even whcrc dcportation

may follow from its refusal. The grant of an

entry permlt 1 s a matter of discretion. Indeed, the cancellation of a temporary entry permit 1 s expressed to be a matter of absolute discretlon

(s.7(1)). In the ordinary course of granting or

refusmg entry permits there 1 s no occas1on for

the principles of natural justice to be called

Into play. The applicant is entitled to support

hls application by such information and material

as he thinks appropriate and he cannot complain if the authorltles relect his application because

they do not accept, without further notice to

him, what he puts forward. But if, In fact, the decision-maker intends to reject the application by reference to some consideratlon personal to

the applicant on the basis of information

obtalned from another source which has not been

dealt with by the applicant in his application

there may be a case for saying that procedural

fairness reauires that he be aiven an omortunitv

of responding to the matter-(Re HK (An Infant1

C196731 2 Q.B. 617). "

In my opinion, the circumstances in whlch the

inquiries came to be made of Mrs Tse Tong were such that

there was no obligation on the respondent to inform the

applicant that, contrary to his expectation, the information

she had given did not support his case and thus to provide

him with yet a further opportunity to substantiate that he

had, in fact, been employed at the restaurant at Jannali in

October - NovePer 1979. The weight to be given to what Mrs

Tse Tong had said and to the circumstance that she appears

to have made inconsistent statements concerning the

applicant's employment to his solicitor and the departmental

I

officers was a matter solely for the respondent in reaching

hls declsion. But, in so far as he relied on the

Information contained in the telex messages in reaching his

decision, he cannot, in my view, properly be said to have

S .

17.

been relying on information obtained from another source

whlch had not been dealt with by the applicant In support of

his application. It was obtained from the very source on

whlch the applicant relied.

The first ground an which the applicant seeks to

nave the decision set aslde, therefore, fails.

!JXe second ground on which the applicant relies is

that the decision that the applicant is not within the

purview of the Regularization of Status Program is an

exerclse of the power that is so unreasonable that no

reasonable person could have so exercised the power

(ss.5(l)(e) and 5(2)(g) of the Judicial Review Act).

The respondent was clearly faced with conflicting

material on the question whether the applicant had entered

Australia prior to 1 January 1980. There was, of course,

the conflicting material concerning the applicant's claim to

have been employed at the restaurant at Jannali in October -

November 1979 to which reference has already been made. He

also had, on the one hand, the applicant's repeated

assertion that he had arrived at Sydney on 2 October 1979

having departed, from Hong Kong on 14 September 1979 and, on

the other, the evidence provided by the "Food Business

Immunization Record Card" that he was, in fact, in Hong Kong

on 25 September 1979, some eleven days after the vessel on

which he claimed to have stowed away had sailed. There was

I -I

, . I l

I 18.

also the applicant's account of how the relevant entries

came to be made on the card. The respondent was also

entitled to take Into account the conflicting statements

which the appllcant had made concernlng the payment of

moneys in respect of the voyage. The account he gave on 14

August 1980 was that no payment had been made whereas on 17

January 1986 he said that he had paid $HKlO,OOO to a member

of the crew of the vessel.

It was open to the respondent to accept what the

applicant had asserted notwithstanding the other material

that he had before hlm. Equally, so it seems to me, it was

open to the respondent, on the whole of the material that

was before him, to reach the conclusion which he did, namely

that the applicant had not satisfied him that he had entered

Australia before 1 January 1980. In my opinion, it cannot

be said

with material, only one conclusion, any degree of conviction that, on that

a conclusion in favour of the

applicant, was possible. To use the language of Lord

Diplock in Bromley London Borouqh City Council v. Greater

London Council t19833 1 A.C. 768 at p.821, the decision,

looked at objectively, cannot be said to be so devoid of any

plausible justification that no reasonable person could have

reached it: see also Prasad v. Minlster for Immiqration and

Ethnic Affairs (1985) 6 F.C.R. 155.

This ground, therefore, also fails.

19.

In the result, the application is dismissed. The

appllcant must pay the respondent’s costs. The order made

on 10 April 1987 that the deportatlon order be stayed until

further order is vacated.

I certify that this and

the preceding 18 pages are

a true copy of the Reasons

for Judgment herein of the

Honourable	Mr Justice
Neaves .

Associate

Dated: 24 April 1987

Counsel for the applicant : Mr J.P. Hamilton Q.C. and Mr S.L. Walmsley

Solicitor for the applicant : Bernard Collaery

Counsel for the respondent	: Mrs J. Bonsey
Solicitor for the respondent	: Australian Government Solicitor

hearing Date of : 10 April 1987

I

!