Singh, Joginder v West, the Honourable Stuart, Minister for Immigration & Ethnic Affairs

[1984] FCA 98

Re: JOGINDER SINGH
And: THE HONOURABLE STUART WEST MINISTER OF IMMIGRATION AND ETHNIC AFFAIRS
No. G16 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.

CATCHWORDS

Administrative Law - Judicial Review - Deportation of prohibited immigrant - Review of decision refusing entry permit - Powers of Minister to grant entry permit - Review of deportation order - Whether rules of natural justice apply to the power to deport - Whether Minister took into account irrelevant considerations.

Administrative Decisions (Judicial Review) Act 1977 s.5

Migration Act 1958 sub.ss. 6A(1), 6(2A), 6(8), 7(3) and s.18.

HEARING

ADELAIDE

#DATE 18:4:1984

ORDER

1. The application be dismissed.

2. The applicant Joginder Singh pay the respondent's costs.

JUDGE1

This is an application pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Review Act") for a review of a number of decisions made or allegedly made by the Minister for Immigration and Ethnic Affairs ("the Minister") under the Migration Act 1958. The Minister objected to the competency of this Court to review two of these decisions, namely the decision of the Immigration Review Panel made on 2 March 1983 and the Statement of Reasons of the Minister dated 21 July 1983. In respect of each of these two decisions or alleged decisions it was contended that they were not decisions to which the Review Act applied. The applicant conceded the objection and did not seek to argue to the contrary. A review was also sought of the decision of the Minister made on 15 April 1983 refusing the applicant an entry permit under sub.s. 6(2A) of the Migration Act and the decision under s.18 of that Act to deport him. A statement of reasons in accordance with s.13 of the Review Act was sought by the applicant and supplied by the Minister in respect of the former decision but was not sought or supplied in relation to the decision to deport.

1. The applicant is an Indian citizen and it was common ground that he was a "person aggrieved" within the meaning of s.5 of the Review Act. He arrived in Australia as a visitor on 20 March 1980 and was granted a temporary entry permit for a period of 2 months expiring on 21 May 1980. It appears that in or about the month of April 1980 the applicant took steps to marry an Australian citizen, but this marriage did not eventuate. The prospective bride made a statement to the effect that she had been offered money if she married the applicant. These facts are in themselves of very little if any relevance but they do explain why officers of the Department of the Minister went to some lengths to investigate the circumstances of the applicant's subsequent marriage. On 5 May 1980 the applicant applied for an extension of the period of his temporary entry permit but this was refused. Thereafter he was for a number of months in this country as a prohibited immigrant by virtue of sub.s. 7(3) of the Migration Act.

2. On 29 November 1980 the applicant married an Australian citizen and in reliance upon this marriage applied on 31 December 1980 for an entry permit, the consequence of the grant of which would have been to give him "permanent residence status". As the spouse of an Australian citizen at the time, he qualified under sub.s.6A(1) of the Migration Act to be considered for such a permit. After an interview on 12 February 1981, at which the departmental officer expressed some concern that the marriage had been entered into for the purpose of so qualifying the applicant, his request was deferred for 6 months. However a further temporary entry permit was granted for this period. Shortly before the expiration of that period, namely on 14 August 1981, the applicant and his wife were again interviewed. The applicant's request for a further temporary entry permit was on that day refused. On the following day the wife of the applicant was killed in a road accident.

3. In consequence of the refusal on 14 August 1981 of a further temporary entry permit the status of the applicant was again that of a prohibited immigrant. His brother made application on 24 May 1982 to sponsor the applicant as a migrant and they were both, together with the applicant's solicitor, interviewed on 7 June 1982. It appears that other efforts by the Department to interview the applicant were not successful, the applicant failing to attend when requested.

4. By letter dated 29 November 1982 the applicant was informed that his request for permanent resident status had been refused on the ground that his marriage was one of convenience. He sought, on 3 December 1982, a formal review of this decision by the Immigration Review Panel. This Panel heard his appeal on 2 March 1983 and found that irrespective of the bona fides of his marriage there were insufficient compassionate or humanitarian grounds to justify a review. In so finding the Panel was doubtless referring to para 6A(1)(e) of the Migration Act which prescribed one of the qualifying conditions for a grant of permanent resident status, namely
   
   

"(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate and humanitarian grounds for the grant of an entry permit to him."

1. It appears that it was the practice of the Immigration Review Panel and also the Minister to consider whether the applicant could establish strong compassionate and humanitarian grounds even though this was strictly of no relevance if he was not at the time the holder of a temporary entry permit. If a favourable conclusion was reached, arrangements were made for the grant of a temporarary entry permit thereby qualifying the applicant to be considered for the grant of an entry permit under para 6A(1)(e). Otherwise sub.s.6A(1) denied the Minister the right to grant an entry permit. Sub-section 6A(1) is in the following terms, to the extent relevant:
   
   

"6A(1) An entry permit shall not be granted to an immigrant after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -

(a) ...

(b) he is the spouse, child or agent parent of an Australian citizen or the holder of an entry permit;

(c) ...

(d) ...

(e) he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him."

1. Sub-section 6(8) of the Migration Act provides that a reference to an entry permit in s.6 is to be read as a reference to an entry permit other than a temporary entry permit. This means that officers of the Department are the only persons who can grant a temporary entry permit, whereas the Minister or any officer specifically authorised by the Minister for the purpose are the only persons who can grant an entry permit (sub.s.6(2A)).

2. On 15 April 1983 the Minister accepted the recommendation of the Immigration Review Panel and made the decision to refuse the applicant an entry permit. In so doing the Minister stated that he expressly refrained from reaching a view or finding whether the marriage of the applicant was one of convenience. He considered that the matter of marriage was at that stage irrelevant, the wife having died. However notwithstanding the fact that this circumstance appeared to disentitle the Minister to grant the applicant an entry permit (para 6A(1)(e)) he gave consideration to the question whether there were strong compassionate or humanitarian grounds for the grant to him of an entry permit. He was of the view that such was not the case and therefore refused the application, as he was in my opinion obliged to do in any event. In consequence of a request by the applicant's solicitor detailed reasons for this decision were supplied in accordance with sub.s.13(1) of the Review Act.

3. The applicant seeks a review on the ground that a breach of the rules of natural justice occurred in connection with this decision, the applicant having a reasonable expectation that he would be permitted to reside permanently in Australia. I will consider this and other grounds for a review on the assumption, contrary to my opinion, that the Minister had, notwithstanding sub.s.6A(1), a discretion to approve or refuse the applicant's request for permanent resident status. The breach alleged was failure to inform the applicant of the criteria and facts relied upon by the Minister and to give the applicant the opportunity to answer or refute them. Whilst it is accepted that the right of the Minister under s.18 of the Act to deport a prohibited immigrant is not an absolute right (Minister for Immigration and Ethnic Affairs v Tagle (1982-83) 48 A.L.R. 566) the question whether the applicant is entitled to the benefit of the rules is not so firmly settled. In the Full Court decision of Minister for Immigration and Ethnic Affairs v Haj-Ismail (1982) 40 A.L.R. 341 Bowen C.J. and Franki J. at p.348 said,
   

"Whether or not there is any room for contending that in some exceptional case, which has not yet emerged, there would arise an obligation, when exercising the power conferred by s.18, to observe the rules of natural justice, remains to be finally determined. It may be noticed that since those two cases (Ratu's case and Salemi's case), s.27 of the Migration Act has been amended to make it a criminal offence to remain in Australia upon the expiration of a temporary entry permit.

In the present case, we are of opinion the respondents are not shown to have had a "legitimate expectation" in the relevant sense.... We are of opinion that there was no obligation on the Minister to observe the principles of natural justice."

1. In Minister for Immigration and Ethnic Affairs v Gaillard (1983) 49 A.L.R. 227 the Minister had cancelled a temporary entry permit and made a deportation order. The members of the Full Court were generally of opinion that the Minister was not obliged to observe the rules of natural justice. Each member however considered whether the applicant had a "legitimate expectation" but held that no such expectation had been demonstrated.

2. In this present matter I am firmly of the opinion that there are no exceptional circumstances and no legitimate expectation which require the observance by the Minister of the rules of natural justice. The most exceptional feature of the case is the length of time the applicant has been enabled to remain in this country as a prohibited immigrant. But in any event I can not see that the existence of an obligation to observe natural justice would advance the applicant's case. His counsel contended that he should have had an opportunity to place all of his personal circumstances before the Minister, including facts to refute the suspicion that his marriage was one of convenience. On this latter point not only were the contentions of the applicant before the Minister together with a strong and favourable statement by a third party, but the Minister expressly and specifically denied reliance upon this aspect of the matter. The applicant had placed before the Immigration Review Panel much information concerning his personal affairs, which information was before the Minister, and his counsel could not refer me to any aspect of such affairs which was not before the Minister. It follows that if the rules of natural justice were applicable, there was in this matter no failure to observe such rules.

3. It was then contended that the making of the decision was an improper exercise of power in that the following irrelevant considerations were taken into account.
   
   

(1) a strong suspicion by a departmental officer that the applicant's marriage was one of convenience,

(2) the fact that the applicant's wife died on 15 August 1981,

(3) that the bona fides of the applicant's marriage was no longer a central issue.

1. It is not easy to understand exectly what was the applicant's complaint in this regard. There are no guide lines in the legislation to indicate what the decision maker is or is not obliged or entitled to take into account. In these circumstances the matter of relevant or irrelevant considerations is very much in the hands of the decision maker. (See per Deane J. in Sean Investments Pty. Ltd. v MacKellar (1981-82) 38 A.L.R. 363 at p.375).

2. The applicant produced no convincing argument to the effect that any one or more of these considerations were irrelevant and on at least one occasion relied upon the fact that his Australian wife had earlier died and that the bona fides of the marriage were not now in issue. Furthermore the Minister expressly excluded from his consideration any suspicion that the marriage was one of convenience. I reject this ground as well as the contention that the Minister failed to take into account relevant considerations such as period of residence in Australia, family ties etc. All of these matters were before the Minister and there was not a tittle of evidence to suggest he failed to take them into account. The true position is that the Minister went further than he was obliged and, to assist the applicant, gave consideration to these matters for the purpose of assessing whether there were strong humanitarian or compassionate grounds.

3. The applicant also contended that the Minister exercised a personal discretionary power at the direction or behest of the Immigration Review Panel. As a matter of fact this is quite incorrect and although the Minister accepted the Panel's recommendation he did not wholly accept its reasoning. There was no evidence whatsoever that the Minsiter exercised anything other than an independant discretion. Likewise I reject the contention that the decision was so unreasonable that no reasonable person could have exercised the power in this mnner. All the circumstances point to it as a reasonable exercise of power and the applicant's counsel could not point to any ground upon which it could fairly be said to be unreasonable. There was plenty of evidence and material which justified tha making of the decision.

4. There are no grounds upon which I would order a review of the decision of the Minister to refuse an entry permit, assuming, he had at the time power to grant such a permit.

5. On the matter of a review of the deportation order the applicant is considerably restricted in his challenge as no reasons as such for the decision have been sought or supplied. There is however evidence of the considerable amount of material which was before the delegate of the Minister at the time the decision was made and it can not be assumed that he did not take this material into account. In addition to all that was before the Minister at the time of the refusal of the entry permit, the delegate had an additional long and detailed letter from the applicant's solicitor setting out exhaustively the personal circumstances of his client.

6. I will not repeat what I have already said on the possible obligation to observe the rules of natural justice. In my opinion the delegate was when exercising his discretion under s.18 of the Migration Act, under no such obligation. In this instance however he did give consideration to all the personal circumstances of the applicant and it can not be suggested he was not given an opportunity to be heard or to put his case. There were no exceptional circumstances which would entitle the applicant to the observance of the rules and in the light of the happenings in prior years it could not be said that he had a legitimate expectation that he would be permitted to remain. On the question of improper exercise of power, the lack of reasons for the decision denied the applicant the ability to demonstrate what considerations were or were not taken into account. Suffice to say that all the considerations alleged in the grounds for review as relevant were before the delegate and without doubt taken into account. Certainly there was no evidence to the contrary. Likewise it can not be contended that the decision was made in accordance with a rule or policy and personal considerations excluded. The decision was a reasonable decision in the circumstances and there was evidence and material to justify its' making.

7. The application will be dismissed with costs.