Singh, A v Castello, D
[1990] FCA 373
•16 JULY 1990
Re: ABHINDRA SINGH
And: DARIO CASTELLO; THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS and DONALD NEIL McALLISTER
No. G57 of 1989
FED No. 373
Immigration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.(1)
CATCHWORDS
Immigration - refusal to grant a permanent entry permit - whether the officer making the decision was an authorised officer - whether improper exercise of power - whether rules of natural justice observed - whether decision tainted by bias.
Singh v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 90 ALR 397.
Migration Act 1958 s. 6(2); 6A.
HEARING
BRISBANE
#DATE 16:7:1990
Counsel for the applicant: Mr. W. T. McMillan
Solicitors for the applicant: Paul Richards and Assoc.
Counsel for the respondents: Mr. J.A. Logan
Solicitors for the respondents: Australian Government Solicitor
Counsel for the respondents: Mr J.A. Logan
ORDER
The decision of the third respondent be set aside.
The application by Mr. Singh for the grant of a permanent entry permit be remitted to the Minister for Immigration, Local Government and Ethnic Affairs to be determined according to law.
The second and third respondents to pay the applicant's costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an amended application pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 seeking to review two decisions made by officers of the Department of Immigration, Local Government and Ethnic Affairs ("the Department"), concerning the grant of permanent residence to the applicant, Abhindra Singh.
The first decision was made by Mr. Dario Castello, the first respondent, who at all material times was the State Director of the Department.
The second decision was made by the third respondent, who was then the acting officer-in-charge of the review and ministerial services section, corporate services and review branch of the Department.
The precise characterisation of Mr. McAllister's decision must be considered later, but in his statement of reasons given pursuant to the Administrative Decisions (Judicial Review) Act (1977), Mr. McAllister describes himself as "an authorised officer by Instrument of Authorisation dated 30 December 1988". No such dated Instrument of Authorization appears in the evidence. There is an Instrument of Authorization, the handwritten date of which is much overwritten and difficult to read, but which appears to be 12 December 1988. The other instruments of authorization in evidence are dated 1989. He describes the reasons that he offers as the "reasons for my decision of 8 August 1989 made pursuant to 6A of the Migration Act 1958 (the Act) to accept the recommendation of the Immigration Review Panel to refuse the application for grant of resident status to the applicant..."
That the application is directed at two decisions reflects the difficulties brought about by the attempts to impose a fee for merit review of some decisions under the Migration Act 1958, such as the decision to refuse an entry permit.
On 10 April 1989, the Migration Regulations were amended, inter alia, by inserting Regulation 29B headed "Second Application - entry permit or further temporary entry permit". So far as is relevant, that regulation provided:
(12) Where, upon an application by a person:
(a) an authorised officer for the purposes of section 6A of the Act refuses to grant to the person an entry permit other than a temporary entry permit;
(b) the person was lawfully in Australia at the time the application was made;
(c) not later than 28 days after being notified of the refusal, the person, being present in Australia, lodges in Australia a second application for such an entry permit; the fee payable on lodging the second application is $240.00."
It should be noted that this fee of $240.00 imposed by the regulation is lower than the fee accompanying a first application, which is $300.00. There was at that time no procedure for internal review on the merits. Jenkinson J. in Minister for Immigration and Ethnic Affairs v. Akbas (1985) 7 FCR 363 describes the system that was followed in the Department prior to the introduction of the regime which included the "second application" concept. Subsequent to the events with which this application is concerned, a system of independent merit review has been established by statute, including the Immigration Review Tribunal. The questions that arise on this application therefore fall for determination in a peculiar statutory and non-statutory context.
Mr. Singh was born in Fiji on 2 June 1964. He is a citizen of Fiji and of Indian ethnicity. He arrived in Australia on 31 January 1981 holding a multiple entry student visa issued in Suva and studied at Grade 11 standard in Australia. On 28 November 1981 he departed for Fiji, returning to Australia on 26 January 1982 to continue his studies, using his multiple entry student visa. A further temporary entry permit valid to 10 March 1983 was issued to him on 12 February 1982. On 27 November 1982 he married an Australian citizen in Sydney. He visited Fiji from 1 December 1982 to 3 February 1983 and an entry permit valid to 10 March 1983 was issued to him on his arrival in Australia on 3 February 1983.
On 7 February 1983 he lodged an application for resident status on the basis of his marriage to an Australian citizen. He moved to Brisbane in February 1983 to commence a course at the Queensland Institute of Technology and his wife stayed in Sydney. The application for resident status was withdrawn by Mr. Singh on 29 May 1985. He was issued with subsequent temporary entry permits and multiple entry visas as a student, the last ones valid to 15 March 1988. Between 20 June 1985 and 16 December 1987 he visited Fiji on 4 occasions. Following a letter to the Department by Mr. Singh's solicitor on 7 March 1988, an application for resident status was lodged on 9 March 1988, that is to say, prior to the expiration of his most recent temporary entry permit. In that application for resident status, Mr. Singh indicated, inter alia, that:
. his marital status was "married but separated"; . all his immediate family members resided in Fiji; . he was applying on occupational grounds and on grounds that strong . compassionate or humanitarian circumstances existed; . he would be denied justice in the illegal courts in Fiji; he would be the subject of discrimination in employment and education in Fiji;
. he would be separated from long term friends he has in Australia; . he would be subjected to harsh and oppressive treatment which would endanger his life and liberty if he were returned to Fiji.
He referred to the fact that he faced a charge concerning the possession of a weapon relating to a visit to Fiji late in 1987. He claimed that the weapon he was carrying was a kitchen knife that he had purchased for his physical protection, having been earlier twice assaulted by native Fijians in Suva.
On 8 September 1988, an officer of the Department decided that the grant of permanent residence should not be approved. Proceedings were instituted in the Federal Court seeking the review of that decision and that matter was set down for hearing in February 1989. There had on 14 October 1988 been a request by Mr. Singh for reconsideration by the Immigration Review Panel, which had been referred to in a letter from the Department to Mr. Singh. On 31 October 1988, the Department vacated the decision to refuse the application. In a letter of 10 November 1988 it acknowledges that an error of law had occurred in considering whether the applicant satisfied the conditions of s. 6A of the Act. The Department wrote to Mr. Singh on 30 November 1988, indicating that "a fresh decision is to be made."
The letter continued:
"In this regard, Mr. Singh is invited to lodge a written submission, setting out fully his claims to remain in Australia permanently, including any factors which may have arisen since his last contact with this office."
On 22 May 1989, Mr. D. Castello, the State Director of the Department, decided on the recommendation of Ms. A. Crossland to refuse the application for resident status. That recommendation is contained in a document of some thirty pages with seventy-eight numbered paragraphs. That is the first decision of which review is sought.
On 23 May 1989, an officer of the Department wrote to Mr. Singh. It is necessary to set out the full text of that letter:
"I refer to your application for resident status on the basis that you fulfil the conditions of Section 6A(1)(e) of the Migration Act 1958 and must inform you that it has been refused.
The decision has been made by an officer authorised under Section 6A(3) of the Migration Act 1958 with reference to Government policy after careful consideration of the information you have provided and the merits of your application. I am enclosing a copy of the submission which gives the reasons for the decision. Also, on the information you have provided, it appears that you are not in a position to fulfil any other conditions of Section 6A(1) of the Migration Act 1958, or to meet the relevant policy requirements. At this time there is no system for review of the merits of this decision. However you may be eligible to make a regulation second application which will be considered by an Immigration review panel and decided by the minister or a delegate of the minister. The enclosed second application under the Migration Regulations form gives details of who is eligible to apply, how to apply, time limits for making an application and the fee payable."
It is to be noted that it was communicated to Mr. Singh that the submission by Ms. Crossland "gives the reasons for the decision."
The form referred to in the ultimate paragraph of this letter is headed "Second Application under the Migration Regulations" and commences:
"At this time there is no system for merit review of migration decisions. However under the Migration Regulations certain people may make a second application which will be considered by the Immigration Review Panel in Australia (IRP) and decided by the minister or a delegate of the minister instead of by Departmental primary decision officers. In this form, such applications will be referred to as 'Regulation Second Applications'."
Mr. Singh made such an application dated 22 June 1989. This application was submitted for the consideration of the Immigration Review Panel on 27 July 1989 with a recommendation that the grant of resident status to Mr. Singh be refused. The panel considered that application on 3 August 1989, and concluded that:
"...the circumstances of this case are not such as to warrant approval of the Second Application."
Mr. McAllister, the third respondent, endorsed that recommendation with these words:
"I accept the panel's recommendation."
This endorsement was dated 8 August 1989. On that same day, an officer of the Department wrote to Mr. Singh and informed him:
"The Second Application has been considered by the independent Immigration Review Panel. The Panel examined the requirements of relevant legislation and Government policy and considered all the available evidence. The Panel unanimously recommended refusal of the Second Application. A delegate of the Minster for Immigration, Local Government and Ethnic Affairs, after considering the Immigration Review Panel's report and the other information available on the case, accepted the Panel's recommendation. Accordingly, your Second Application is unsuccessful."
On 8 September 1989, Mr. McAllister gave reasons for his decision "to accept the Panel's recommendation", pursuant to a request for reasons under the Administrative Decisions (Judicial Review) Act 1977. That is the second decision of which review is sought.
An application seeking review of both the decisions of Mr. Castello and Mr. McAllister was filed in the Federal Court on 20 June 1989. An amended application was filed on 22 September 1989 and was further amended by leave at the hearing on 18 April 1990.
It is contended on behalf of the applicant that both Mr. Castello and Mr. McAllister failed to take into account relevant matters which are particularised under paragraphs 1(a) to (q) inclusive in the amended application. It is also asserted that irrelevant matters particularised under paragraphs 2(a) to (o) inclusive were taken into account. Further it is said that each of the decision-makers acted in breach of the rules of natural justice in failing to give to Mr. Singh details of advice and information received by the Department as a result of their monitoring of the situation in Fiji. It was also said that Mr. McAllister "failed to direct his mind to the matters the subject of the application" and "failed to give adequate and separate consideration to the applicant's application." This allegation of bias against Mr. McAllister is based on the circumstance that the reasons given by Mr. McAllister on 8 September 1989 for his decision are almost word for word the submission to Mr. Castello on 22 May 1989, which was accepted by him and which the Department indicated to Mr. Singh gave the reasons for the decision.
Finally it was submitted that neither Mr. Castello nor Mr. McAllister was duly authorised under s. 6A of the Migration Act 1958 to make their respective decisions.
The Migration Act 1958 was substantially amended in 1989 and Division 1 of Part II dealing with entry permits was repealed and new and quite different provisions inserted. The new provisions came into force pursuant to s. 2(5) of the Migration Legislation Amendment Act No. 59 of 1959 on 19 December 1989. These amendments are not relevant to this matter, however, as both decisions under review were made before 19 December 1989, that is, before these amendments took effect.
At the dates with which this application is concerned, s. 6(2) appeared in the following form:
"An authorised officer may, in accordance with this section and at the request or with the consent of a non-citizen, grant to the non-citizen an entry permit."
Section 6A dealt with the conditions on which entry permits may be granted to non-citizens after their entry into Australia. Section 6A(1) provided:
"An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say - ..."
Five conditions are then set out.
Section 6A(3) provided:
"Subject to sub-section (2), an entry permit shall not be granted to a non-citizen after his entry into Australia otherwise than by -
(a) the Minister; or
(b) an officer authorized by the Minister, by instrument in writing, to be an authorized officer for the purposes of this section."
At all relevant times Mr. Singh was a non-citizen, and the question of the grant of an entry permit to him was to be considered after his entry into Australia.
I am therefore primarily concerned with authorization pursuant to s. 6A rather than s. 6(2).
There are in evidence three instruments of authorization. The first of these, Exhibit 1, is headed "APPOINTMENT OF AUTHORISED OFFICERS FOR THE PURPOSES OF SUB-SECTION 6(2) OF THE MIGRATION ACT 1958 (THE ACT)". By it, the Minister of State for Immigration, Local Government and Ethnic Affairs, authorised persons occupying or performing duties of specified positions to exercise the powers and discharge the duties and functions of an authorised officer for the purposes of the provisions of s. 6(2) of the said Act. Mr. Castello and Mr. McAllister occupied positions specified in the schedule to that Instrument of Authorisation which is dated 27 February 1989.
The second Instrument of Authorization is headed "APPOINTMENT OF AUTHORIZED OFFICERS FOR THE PURPOSES OF THE MIGRATION ACT 1958" and by it the Minister authorized persons occupying or performing the duties of specified positions on the staff establishment of the Department in Queensland to be "authorized officers" for the purposes of s. 6A of the Act, and those positions also nominate the positions occupied at the relevant times by Mr. Castello and Mr. McAllister. That Instrument of Authorization is dated 9 May 1989 and is Exhibit 2 in these proceedings.
The next instrument of delegation, Exhibit 3, is headed simply "INSTRUMENT OF AUTHORIZATION" and commences:
"I, ROBERT FRANCIS RAY, Minister of State for Immigration, Local Government and Ethnic Affairs, hereby:
(i) REVOKE all previous instruments appointing officers as delegates of the Minister for the purpose of deciding appeals to the Immigration Review Panel (the IRP); and
(ii) AUTHORIZE the officers holding or for the time being occupying or performing the duties of the undermentioned positions on the staff establishment of the Department of Immigration, Local Government and Ethnic Affairs to decide appeals where the appeal was considered by the IRP and the IRP, unanimously or a single IRP chairperson sitting alone, recommended that the primary decision be maintained and the officer deciding the appeal accepts the IRP recommendation."
There is then specified various position in the Australian Capital Territory, New South Wales, Victoria, Queensland, South Australia and Western Australia. The two positions specified for Queensland are the positions occupied at the relevant times by Mr. Castello and Mr. McAllister. The date of that Instrument of Authorization which is hand-written has been amended several times but appears to be 12 December 1988. From the factual material referred to in the reasons for judgment of Keely J. in Singh v. Minister for Immigration (1990) 90 ALR 397, it appears that Exhibit 2 in these proceedings is similar to the Instrument of Authorization dated 16 September 1988 before Keely J. in that case, and Exhibit 3 before me the same document as the Instrument of Authorization dated 12 December 1988 referred to in his Honour's judgment at pp 400-401 in the proceedings before him. The relevant decision in Singh's Case was made on 7 March 1989. The amendment to the Migration Regulations made by Statutory Rule No. 66 of 1989 is dated 10 April 1989. Those amendments to the Regulations make no reference to the Immigration Review Panel, which thereupon continued to have no statutory recognition. The authorization of 12 December 1988 speaks of "appeal considered by the I.R.P." and of a recommendation "that the primary decision be maintained" and of the "officer deciding the appeal" accepting "the I.R.P. recommendation".
It was submitted on behalf of the third respondent that, when Mr. McAllister decided to accept the recommendation of the Immigration Review Panel, he was not acting under the Instrument of Authorization of 12 December 1988 because, on the introduction of the "second application" regime, it was not an appeal being considered by the IRP but a second application on which it was making a recommendation.
However, having regard to Regulation 29B, it is noteworthy that such an "application" applies, pursuant to sub-section (2), only where an authorised officer has refused to grant to the person an entry permit otherwise than a temporary entry permit, and the application had to be lodged no later than 28 days after the notification of the refusal. The fee in lodging the second application was $240.00 as opposed to $300.00 for the "first" application for an entry permit. Importantly, under Regulation 29BE where, as the result of the second application the relevant entry permit is granted, the person is entitled to a refund of an amount equal to the amount of the fee so paid. The "second application" regime has all the features of an appeal from the decision refusing the first application, without using that description. It is not immaterial that the recommendation to the Immigration Review Panel contained the statement "As Mr. Singh has not mentioned any additional fresh facts, I have perused files, papers and the submission to the delegate, and can find no flaw in the original Departmental assessment."
In my opinion, Mr. McAllister, in deciding to accept the recommendation of the Immigration Review Panel, was acting in reliance on the Instrument of Authorization of 12 December 1988.
It has been held by this Court that that form of authorization is invalid. In Singh v. Minister for Immigration, Local Government and Ethnic Affairs (1989) 90 ALR 397, Keely J. was apparently concerned with the same Instrument of Authorization as in this case. His Honour said at p 402:
"In my opinion, Mr. Bell's submission on behalf of the respondent Minister as to the meaning of para (ii) of that later instrument is correct. The Minister's later instrument was intended to have the effect that, in considering an IRP recommendation, the officers 'authorised' by him were only authorised to refuse an application for resident status. They were not authorised to grant an application."
His Honour on the same page held:
"In my opinion the respondent Minister was not empowered by those words in s. 66D(1) of the Migration Act 1958 and in s. 34AB of the Acts Interpretation Act 1901 to delegate to an officer the power to decide against granting resident status to an applicant whilst at the same time deliberately withholding from that officer the power to grant the application for resident status. In my opinion, an instrument so framed that the officer could only exercise the power against an applicant is not a valid delegation of the Minister's power to grant resident status. The power is the one indivisible power to grant resident status; it necessarily includes the power to decide that an application will not be granted but there is no separate power to refuse to grant it. A test umpire who is given the power to decide whether a batsman is out or not out is given one power not two."
There was no appeal from his Honour's decision. I respectfully agree with it. In my opinion, the existence of the s. 6(2) authorization in this case makes no difference. In my opinion, Mr. McAllister was not purporting to act under the s. 6(2) authorization, given the matters surrounding the "second application" regime to which I have referred.
Regulation 29B(2) refers specially to "an authorised officer for the purposes of s. 6A of the Act."
In the context of the statutory and administrative framework then operating, (which included the introduction of Regulation 29B), Mr. McAllister was acting in purported reliance on the authorisation of 12 December 1988, and he was not acting pursuant to the general "6A" delegation of 9 May 1989. His expressed reasons support this conclusion, though the date of the delegation he therein quotes is wrong.
As to the submissions based on relevant/irrelevant considerations, the power to grant entry permits was contained in s. 6 of the Act - after a person's entry into Australia, the grant of an entry permit was subject to the person's satisfying one of the criteria in s. 6A of the Act: (s. 6(5)). There is no doubt that Mr. Singh satisfied the criterion in s. 6A(1)(b) in that he was the spouse of an Australian citizen. He also claimed to satisfy the criterion expressed in s. 6A(1)(e), namely, that he was the holder of a temporary entry permit which was then in force and there were strong compassionate or humanitarian grounds for the grant of an entry permit to him.
The power to grant an entry permit is discretionary and that discretion is unfettered: Kioa v. West (1985) 159 CLR 550 at 587 per Mason J.
In Minister for Immigration and Ethnic Affairs v. Conyngham (1986) 11 FCR 528, Sheppard J., with whom Beaumont and Burchett JJ. agreed, said at 538:
"The discretion both to grant and to cancel entry
permits, whether temporary or otherwise, and to grant and to cancel visas is unfettered: see ss. 6(2), 7, 11A and 11B of the Migration Act 1958."
In Minister for Immigration and Ethnic Affairs v. Lebanese Moslem Association (1987) 17 FCR 373 at 383 Jackson J. referred to the above observations of Sheppard J., and Fox and Burchett JJ. agreed with Jackson J. In Gunaleela v. Minister for Immigration and Ethnic Affairs (1987) 15 FCR 543 at 558, the Full Court (Sweeney, Lockhart and Gummow JJ.), having referred to the Conyngham Case (supra) and the Lebanese Moslem Association Case (supra) and Mason J.'s observations in Kioa v. West, (supra) said:
"These references to the wide nature of the discretion involved in the issue of entry permits, in particular temporary entry permits, are to be understood in the light of the principles propounded by the High Court in Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 CLR 492 at 505 and later cases. Those principles appear from the following remarks of Mason J. in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 60 ALJR 560 at 565: 'The factors that may be taken into account in the exercise of the discretion are...unconfined, except insofar as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard...
(T)he court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.' "
The observations of Beaumont and Gummow JJ. in Minister for Immigration and Ethnic Affairs v. Maitan (1988) 78 ALR 419 at 428, while directed to a grant of a temporary entry permit under s. 7(2) of the Act are equally applicable to the exercise of the power to grant a permit under s. 6. Their Honours said:
"To determine whether it is in the interests of Australia to grant, or to refuse to grant, a temporary entry permit is essentially a matter for the judgment of the decision-maker: see Minister for Aboriginal Affairs v. Peko-Wallsend Ltd
(1986) 66 ALR 299 at 309. As Lord Brightman said in Puhlhofer v. Hillingdon London Borough Council (1986) AC 484 at 518: 'Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of the fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely. In R. v. Secretary of State for Social Services; Ex parte Wellcome Foundation Ltd. (1987) 1 WLR 1166, Sir John Donaldson M.R. said (at 1175): 'Good policy-making, administration and decision-making involve studying problems from all angles. It is a practical process and must never be allowed, and still less induced, to become a theoretical or legalistic exercise.'"
The ground expressed in s. 5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977, being the failure to take into account a relevant consideration, is the subject of exposition by Mason J. in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 162 CLR 24. Having set out definitively some propositions relevant to that ground, his Honour said at 41:
"It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty. Ltd. v. MacKellar (1981) 38 ALR at p 375; Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. (1965) 113 CLR 177, at p 205; Elliott v. Southwark London Borough Council (1976) 1 WLR 499, at p 507; (1976) 2 All ER 781, at p 788; Pickwell v. Camden London Borough Council (1983) QB 962, at p 990."
As I understand the submissions on behalf of the applicant, the complaint is not really one of either relevant or irrelevant considerations, but that these considerations were not given the weight that Mr. Singh in his case thinks they properly deserve, or were given too much weight than they deserve. My conclusion in this respect is the same as Toohey J. in Brunetto v. Collector of Customs (1984) 4 FCR 92 at 97-8 where his Honour held that the assertion that the decision-maker had failed to take into account relevant considerations in that case amounted to no more than a contention that he had failed to give those matters the weight the applicant felt they should have had.
In my opinion also, there has been no breach of the rules of natural justice. In particular, there has been no breach in respect of the failure to communicate to the applicant details of the advice or information received as a result of inquiries into the situation in Fiji, particularly as it impacted on the justice of any hearing concerning the charge he faces in Fiji. In this case the applicant put up to the Department what he thought appropriate in support of his application and what he suggested were reasons why he should not be deported to Fiji. The Department made inquiries concerning the validity of this ground. Mr. Singh's claim is that this information ought to have been communicated to him so that he could make further submissions. If the requirement to accord natural justice meant that the Department had on each occasion to inform an applicant of the results of inquiries that it made in its efforts to assess the validity of claims made by the applicant, the result would be a never-ending procedural ping-pong.
In Singh (Heer) v. Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4, Forster J. said at p 11:
"Were I in a position to review at large the exercise of the Minister's discretion, I would be quite unable to say that he was wrong to disbelieve Heer. It is, however, complained that Heer should have been told that his credibility was in question so that he could make efforts to shore it up. The short answer to this is that it was Heer's application for refugee status. He had professional advice from a solicitor and expert advice from Amnesty International and if he did not put enough information or argument in his application the responsibility is his and that of his advisers. The failure to give him a second chance to make a better application in my view reveals no reviewable error."
Also in Kioa v. West (supra), Mason J. observed at 587:
"In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject 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 consideration personal to the applicant on the basis of information obtained 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 requires that he be given an opportunity of responding to the matter: In re H.K. (An Infant) (1967) 2 QB 617."
There is no suggestion in this case that the respondent took into account information independently received by it for any purpose other than to investigate the validity of the claims made by the applicant himself. As such, in my opinion there was no obligation on the Department to communicate to the applicant the results of their inquiries into his concerns so as to enable him to make further submissions on those results.
For the reasons which I have expressed above, in my opinion, no reviewable error attaches in respect of the decision made by Mr. Castello on 22 May 1989.
However, as counsel for the respondents made plain, the decision by Mr. McAllister is in essence the crucial one. For reasons expressed above, I am of the view that Mr. McAllister was not authorised to exercise his power in respect of the application for resident status, as the Instrument of Authorisation on which he purported to rely was invalid. This in itself would be sufficient to vitiate his decision, but I am satisfied also that there is a stronger basis on which the decision of the third respondent must be set aside.
Ground 4A of the amended application advances a claim that "(T)he third respondent has failed to direct his mind to the matters the subject of the application by the applicant in that the reasons supplied on the 8th day of September 1989 are almost word for word the reasons given by the first respondent on the 22nd May 1989 and to that extent has failed to give adequate and separate consideration to the applicant's application." While the terms of the ground might be more precisely expressed, the submission based on this ground is that a reasonable observer on this material would be left with the impression of bias and that the decision by the third respondent lacked both fairness and impartiality. The issue here advanced is the same as in Livesey v. The New South Wales Bar Association (1983) 151 CLR 288 at 299, viz. that it is "...the appearance and not the actuality of bias" which is the relevant issue.
Recently, Dawson J. declined to grant orders nisi directed to Keely J. and the Australian Federation of Air Pilots to show cause why Keely J. should not be prohibited from further hearing and determining a matter brought by the Australian Federation of Air Pilots in the Federal Court. The claim was that in his conduct of the proceedings in the Federal Court for interlocutory relief, Keely J. displayed apparent or ostensible bias against them. Dawson J. (at p 8 of his unreported judgment of 25 June 1990) said:
"The airlines accept as the test to be applied in any consideration of an allegation of apparent or ostensible bias, that which was recently set out in Grassby v. The Queen
(1989) 168 CLR 1, at p 20:
'The test which is to be applied when bias is raised has been clearly laid down. It is whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter before him: see Livesey v. New South Wales Bar Association (1983) 151 CLR 248; Reg. v. Watson; Ex parte Armstrong (1976) 136 CLR
248. If so, then the judge ought not to proceed to hear the matter. Of course, as Gibbs C.J. pointed out in Reg. v. Simpson; Ex parte Morrison (1984) 154 CLR 101, at p 104, the mere expression of bias does not establish that it is reasonably held; that is a matter which must be determined objectively.'"
The letter of 23 May 1989 to the applicant extended to him the opportunity of making "the second application", which would be considered by an Immigration Review Panel. The letter made it clear that the Immigration Review Panel did not have the power to decide the question but could only make recommendations to the Minister or to the Minister's delegate, who was to make the final decision. In purported exercise of the statutory power under s. 6A the third respondent, as the Minister's delegate, was obliged to act fairly. If a fair-minded observer would entertain the apprehension that the third respondent had not in fact brought his mind to bear on the merits of the application, but had merely rubber stamped the findings and the decision of an earlier decision-maker, then it could not be said that the decision was fair and impartial. In this regard it can be seen that Mr. McAllister gives as his reasons for accepting the recommendation not only the exact findings, but also findings expressed in exactly the same words as that in the recommendation by Ms. Crossland which Mr. Castello accepted. The omission of a phrase (in para. 61 of Mr. McAllister's reasons) from the expression of Ms. Crossland's recommendation to Mr. Castello does not at all change the impression of ostensible bias. That this second decision appears as an unquestioning acceptance of the decision by Mr. Castello becomes even more probable when it is known that Mr. Castello is the State Director and Mr. McAllister is subordinate to him.
I find it impossible to avoid the conclusion that a fair-minded observer might well conclude that the third respondent did not in fact give the "second application" genuine consideration, and that there was a failure to bring "an impartial and unprejudiced mind" to the resolution of the question. Public confidence in administration will be lacking unless it be perceived that there is a fair consideration given to the matters calling for determination.
The view I take of the matter might be seen as unduly technical. Confidence of the community in public administration, however, depends on it being exercised fairly. It seems to me that not only the applicant but other disinterested persons, aware of the findings and the manner of expression used by Mr. McAllister, could not fail but to have genuine apprehension as to whether in fact the applicant had received that to which he is entitled.
In my opinion, the decision of the third respondent should be set aside and the application by Mr. Singh for the grant of an entry permit be re-submitted to the Minister to be heard according to law.
I am presently minded to order the second and third respondents to pay the applicant's costs, but that is a question on which I will hear the parties further.
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