Singh, S. v Minister for Immigration, Local Government & Ethnic Affairs
[1993] FCA 81
•26 FEBRUARY 1993
Re: SURENDRA SINGH
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT and ETHNIC AFFAIRS
No. N G268 of 1991
FED No. 81
Number of pages - 37
Administrative Law - Immigration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)
CATCHWORDS
Administrative Law - Judicial review - procedural fairness - whether discretionary power exercised in accordance with Government policy and without regard to merits of particular case - whether applicant ought to be given opportunity to comment upon information and guidelines - whether procedural bias resulting from earlier decisions.
Immigration - refusal of grant of resident status - occupational grounds - employer nomination scheme - whether occupation "highly skilled" - strong compassionate or humanitarian grounds - effect on applicant's family - effect on child with Australian citizenship - weight given to breaches of immigration laws.
Administrative Decisions (Judicial Review) Act 1977 (Cth) - s 5(2)(f), s 13
Migration Act 1958 (Cth) - s 6, s 6A, s 6A(1)(d), s 6A(1)(e), s 6(2), s 7(2), s 7(3)
HEARING
SYDNEY, 16 April, 28 August 1992
#DATE 26:2:1993
Counsel for the Applicant: P. Kintominas
Instructed by: Benjamin and Khoury
Counsel for the Respondent: D.M. Yates (16 April 1992)
with Ms J.R. Baird S.J. Gaegler (28 August 1992)
Instructed by: Australian Government Solicitor
ORDER
THE COURT ORDERS THAT:
1. The application be dismissed;
2. The applicant pay the respondent's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
FOSTER J. This is an application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act") seeking judicial review of a decision made on 27 November 1990 by a delegate of the Minister for Immigration, Local Government and Ethnic Affairs (the "delegate") refusing the applicant's application for the granting to him of resident status pursuant to provisions of ss 6 and 6A of the Migration Act 1958 (Cth) (the "Act").
The applicant, Surendra Singh, is a national of Fiji and was born there on 21 November 1951. He arrived in Australia, along with his wife, Mohinimala, and three children, on 26 December 1981 on a visitor's visa and was granted, pursuant to s 6 of the Act, a temporary entry permit valid for one month. This did not entitle him to work in this country. No further entry permits have been granted and accordingly the applicant and his wife and three children who entered Australia with him have been prohibited non-citizens, within the meaning of the Act, since 27 January 1982. They have, nevertheless, remained in Australia in circumstances to which I shall refer later. For nearly all the time the applicant has been in employment.
On 25 November 1988 the applicant applied, pursuant to s 6A of the Act, for a grant of resident status ("GORS"), based on occupational grounds. This application was supported by his employer, Sheraton Products Pty Limited. This application was refused, the applicant being notified by letter dated 28 March 1989. He was further notified by the Department of Immigration, Local Government and Ethnic Affairs (the "Department") that there was no right of review of the decision.
Thereafter, the applicant, through his solicitors, lodged another application for GORS based on occupational, and strong compassionate and humanitarian grounds (ss 6A(1)(d) and (e)). This application was also refused and the applicant duly notified on 2 April 1990. On 31 August 1990, the applicant lodged an application for reconsideration by the Immigration Review Panel who, after consideration of the matter on 9 November 1990, recommended that the application for GORS be refused.
The delegate considered the Immigration Review Panel's recommendation, the Departmental report on the applicant and the entire Department case file. On 27 November 1990 the delegate accepted the Immigration Review Panel's recommendation and refused the application. The delegate advised the applicant of this result by letter dated 3 December 1990.
The applicant, through his solicitors, then made the application for an order for review on 29 May 1991. This application was filed out of time. However, counsel for the respondent indicated that the respondent was content that the proceedings should be determined, and that in the event that the applicant was successful, that the extension of time be duly granted.
The grounds of the application were widely expressed but were refined in argument to three propositions.
The first was that the delegate erred in her approach to determining whether the applicant's application for resident status based on occupational grounds should be granted. The essence of counsel's submission on this point was that the delegate exercised a discretionary power in accordance with a rule or policy without regard to the merits of the particular case, and failed, also, to accord to the applicant the benefit of a particular procedure provided for in the policy.
The second was that the delegate had recourse to information held by the Department in relation to the political and social situation in Fiji without affording the applicant the opportunity to comment on it, and did not give any proper consideration to the problems confronting the applicant and his family when returning to Fiji after such a long period of residence in Australia.
The third related to an allegation of procedural bias against the applicant, on the basis that material which the delegate had before her in the decision-making process had been "infected" by an improper approach made in earlier decisions relating to the applicant arrived at by other Departmental officers. These documents in the Departmental file should have been identified and disclaimed by the delegate as not having any weight during the course of her decision-making. In the absence of such disclosure, there was a significant prospect that the earlier errors had been perpetuated.
I shall refer to the substance of these submissions hereafter. In the first instance it is convenient to set out the relevant provisions of the Act applicable to this case. These provisions predate the amendments to the Act in 1989 but are accepted by the parties as governing the applicant's situation.
Upon entering into Australia, a visitor could be granted an entry permit by an officer of the Department: s 6(2). Such an entry permit may be expressed to be temporary for a specific period only and subject to conditions: s 6(6). This was the case with the applicant upon his arrival in Australia. The permit being for a period of one month and subject to the condition that he could not work. Section 7(3) provided that upon the expiration of a temporary entry permit, the holder of the permit became a prohibited non-citizen unless a further entry permit were granted. Section 7(2) provided a discretion to grant a further temporary entry permit before or after the expiration of an existing temporary entry permit.
Section 6A barred the granting of an entry permit (other than a temporary permit) to a non-citizen after entry into Australia except in specified cases. The section, omitting provisions not relevant to this case, read as follows:-
" 6A. (1) 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 -
...
(d) he is the holder of a temporary entry permit which is in force, is authorized to work in Australia and is not a prescribed non-citizen; or
(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."
At the time of making his applications, the applicant did not have a temporary entry permit in force, the only such permit ever granted to him having expired on 27 January 1982. However, the Court was informed by counsel for the respondent that in appropriate cases the discretion under s 7(2) of the Act may be exercised and a further temporary entry permit be issued so that applicants may fulfil the precondition under s 6A of having a valid temporary entry permit where they otherwise meet the requirements of the section. In this regard, counsel tendered and referred to a policy statement by the Minister for Immigration, Local Government and Ethnic Affairs (the "Minister") entitled "Illegal Immigrants". He relied on statements contained in this document as evidencing government policy as to the exercising of this discretion.
As this policy document clearly played a significant role in statements made and views expressed in the decisions and reports of other Departmental officers which were before the delegate, it is convenient to consider those matters together with the applicant's third submission at this point in these reasons. Counsel for the respondent, correctly in my view, submitted that the legislation provides for decision-making at two levels. In the first place, in circumstances where an applicant does not hold a temporary entry permit, the decision-maker must consider whether under s 6A(1)(d) the circumstances are such that an applicant may be "authorised to work in Australia" or, under s 6A(1)(e) there exists "strong compassionate or humanitarian grounds" for the grant of resident status. If an applicant cannot bring himself within these provisions, then the question of whether he should be granted a further temporary entry permit to enable him to rely upon the sub-sections simply does not arise. If, however, it does arise, then a decision-maker must have regard to the provisions of s 7(2). This section provides as follows:-
"7. (2) At any time whilst a temporary entry permit is in force or after the expiration or cancellation of a temporary entry permit, a further entry permit may, at the request of the holder, be granted to the holder and, where such a further entry permit is granted while a temporary entry permit is in force, the further entry permit shall come into force only upon the expiration or cancellation of the existing entry permit."
It will be observed that this sub-section provides the decision-maker with a simple discretion unfettered by any express wording. It is, accordingly, on general principles, only limited by the scope and purposes of the Act. The Department, however, provided assistance to decision-makers as to the exercise of this discretion by the formulation of statements of policy to act as guidelines. It is clear that these policy formulations were produced in the general context that the overall scheme and purpose of the Act was to provide for an orderly and fair regime for migration of foreigners to Australia.
These matters are dealt with in two documents tendered in evidence, being first the Integrated Department Instructions Manual on "Grant of Resident Status" and secondly, the Minister's policy statement "Illegal Immigrants" tabled in the House of Representatives in October 1985 and generally available in leaflet form from at least January 1986.
Under the heading "Granting a TEP where no valid TEP is held or the TEP has expired prior to lodgment of the application", a number of statements appear. The following two are of particular relevance:-
"3.1 If an applicant satisfies the policy guidelines for the eligible categories in S6A(1) but does not hold a valid TEP, the decision maker should then consider whether or not to grant a TEP to the applicant. The fact that a person meets the category policy requirements of 6A(1) does not imply that the grant of a TEP follows as an automatic consequence. 3.2 In making this decision the decision maker is only bound to take into account the public interest (see Part 1, para 3.13). A fundamental element of this public interest is the policy set out in the section 'Applications to Remain in Australia' in the Minister's Parliamentary statement, October 1985 'Policy on Illegal Immigrants'. The policy guidelines in this statement indicate that breaches of immigration law will weigh against an applicant being granted a TEP even though the applicant has satisfied the category requirements of S6A(1)."
I think it appropriate to quote some passages from the "Policy on Illegal Immigrants", as it is clear that the existence of the policy and, indeed, its wording played a not insignificant role in the earlier Departmental decisions relating to the applicant, and their formulation. The preamble to the document reads as follows:-
"Australia has a planned migration program with selection processes carefully designed to balance the numbers that can be settled in various categories. Management of the program relies heavily on issuing visas and entry permits in good faith to bona fide applicants. Conditions of entry are specified at the time of visa issue and reaffirmed at the point of entry. No one can fairly claim to misunderstand their obligations.
Illegal immigrants (i.e. those people described in the Migration Act as 'prohibited non-citizens') threaten the orderly management of the program. They also jeopardise Australia's attitude to the acceptance of a very large number of visitors.
There will always be limits on the numbers of people Australia can absorb at a particular time. There will be a continuing need to balance the numbers that can be settled in various categories, such as skilled workers, business migrants, refugees and family reunion. For many years the competition for migration to Australia has been very strong. Most people are prepared to wait overseas and go through the normal selection processes, including health and character checks. Unfortunately, some people are not prepared to do this. They are not entitled to abuse Australia's immigration policy and laws at the expense of those waiting overseas, or at the expense of unemployed Australian residents.
It is not open to people from anywhere in the world to decide, of their own volition, that they will live permanently in Australia. If, in attempting to do so, they break Australia's laws, they must expect to face the consequences, including prosecution and removal from Australia, by deportation if necessary. A small proportion of the many people who come to Australia as visitors fail - or refuse - to leave. There can be no doubt that many of them intended to do this before they even applied for a visa; in other words, they obtained their visas by deception. Others claim that having entered Australia legitimately as visitors, they decided for one reason or another to remain here after their entry permit expired.
'Overstayed visitors', whatever their reasons, are unlawfully in Australia. Their status of illegal immigrants or 'prohibited non-citizens' is of their own making and it must be recognised as such.
It is an accepted principle of justice and fairness that people should not derive benefit from an illegal act they have committed. Illegal immigration is no exception. Illegal immigrants, simply by having succeeded in entering or remaining in Australia, do not earn a right to special privilege under migration policy; nor does their act of being in Australia illegally earn them special rights of review which are not available to those who abide by the rules and wait overseas.
The ability of illegal immigrants to remain concealed in the community, and to support themselves by working - although without permission - or drawing upon cash benefits and various public services is sometimes portrayed as a virtue. Some illegal immigrants claim this as evidence of their ability to settle in Australia, which deserves a sympathetic response in the form of permission to live here permanently. The policy can give no such reward for offences under Australian law."
Similar matters are considered in the document under the heading "Applications to Remain in Australia". This section contains (inter alia) the following statements:-
"The Migration Act severely limits the circumstances under which people illegally in Australia can change their immigration status to permanent resident. These limited provisions are not an invitation for people to enter Australia as visitors, then seek permanent residence when they should have applied and qualified overseas for entry as migrants in the usual way.
If a person illegally in Australia makes an application to remain in Australia, it will be accepted and processed specifically on the understanding that the policies outlined in this paper will be applied. ...
People who are in Australia illegally, whether they entered without authority or they overstayed their entry permits, will not readily be given permanent residence while they remain in Australia.
Their breaches of immigration law and requirements will weigh heavily against them. In particular, in reaching a decision on an application to remain in Australia, the following circumstances (if they exist) will weigh heavily against the applicant:
the applicant entered Australia unlawfully; the applicant, although entering Australia lawfully, violated conditions of entry, such as working without permission;
the applicant misled the Minister or an officer in obtaining a visa or entry permit, e.g. fraudulent documents or false information of a material kind; the applicant avoided contact with, or ceased contact with the Department of Immigration and Ethnic Affairs... the period of illegal residence by the applicant ..."
In the present case the applicant entered Australia on a visitor's visa with his wife and three children aged, at that time, 4, 3 and 2 years respectively. It is to be noted that he had relatives who had settled in Australia, including his parents. The applicant commenced employment at Sheraton Products Pty Limited on 5 February 1982, that is less than one week after the expiry of his visitor's visa. Also, it is clear that, when she entered Australia, the applicant's wife was pregnant with their fourth child, a son, Anthony, who was born on 3 April 1982. The inference must have been overwhelming to the earlier decision-makers in the Department that the applicant entered Australia on a visitor's visa, with his entire family, with the intention of remaining as an illegal immigrant, illegally obtaining work, and supporting his family from his earnings in Australia.
It is clear, on uncontested facts, that he successfully lost himself and his family in the Australian community. He established home in Australia. His children entered school in Australia and are currently being educated in this country. It would appear that neither the applicant nor any member of his family has ever returned to Fiji since coming to Australia.
The applicant's status as an illegal immigrant first became known to Australian authorities in 1986 when he attended Newtown police station to report an assault on his brother. This led to his being questioned by the police as to his resident status. He was to return to the police station so that inquiries might be furthered. However, instead of doing so, he chose to change his residential address and, in effect, go into hiding. At this time he notified his employer as to his illegal status. His job with Sheraton Products Pty Limited was, accordingly, terminated.
In the following year, 1987, he was re-employed by Sheraton Products Pty Limited in circumstances where, as the evidence indicates, that company had been unable to find anyone who could fill his position satisfactorily. It seems that there was an understanding that the applicant would seek to regularise his immigrant status. In fact, he made his first application for resident status on 25 November 1988. This application was rejected on 27 April 1989. The reasons for rejection indicate that the decision-maker was not satisfied that grounds for the granting of a temporary entry permit had been shown. In arriving at this conclusion consideration was also given to the substance of the application, namely that permanent resident status was sought on "occupational" grounds pursuant to s 6A(1)(d). It appears that some support for the applicant's being allowed to remain in Australia to pursue his occupation as "chemical maker" with Sheraton Products Pty Limited was given by the employer. This was rejected on the basis that there was no compliance with the Employer Nomination Scheme. Although no reference is made to the grounds provided in s 6A(1)(e), consideration was given to the situation of the child born in Australia and his status as an Australian citizen. It appears that any hardship likely to be occasioned to that child was not regarded as sufficient to alter the decision-maker's view that the application should be dismissed on the merits. So far as I can see, no attempt was made in dealing with this application to distinguish between the two levels of decision and discretion to which I have made reference above.
The second application lodged on behalf of the applicant by his solicitors on 15 December 1989 was more elaborate. It sought a grant of resident status on occupational grounds pursuant to s 6A(1)(d). The occupation relied upon was "chemical plant supervisor" in the employ of Sheraton Products Pty Limited. It was indicated that the applicant held no trade certificate in respect of this position but had acquired it through "knowledge and skills acquired in on the job training to position of chemical plant supervisor".
In the supporting statutory declaration of the employer, completed by the operations manager Mr Bridge, the applicant's position was described as being a "chemical plant supervisor" in which role he had authority over two people engaged in production of the company's polishes and the packing of the finished products, it being indicated that there were 130 specialised chemical products manufactured by the company. The qualifications sought for the position were "on-job training to Sheraton standards", the skill and experience required being "ability to plan production, operate steam equipment, train and supervise staff, five years experience". The salary was $25,000 per annum which included overtime. It was further indicated that there was no trade certificate or industry training course available for the position, that Sheraton had "its own quality control standards built up over 62 years" and that the applicant would be involved in the training of future employees.
It was further indicated that the position together with a job description had been advertised through the Commonwealth Employment Service and that no suitable applicant had been forthcoming other than the applicant.
The applicant also based his application on "strong humanitarian grounds" referred to in s 6A(1)(e). In this part of the application he spoke of the political and social situation in Fiji. He stated that "problems arose after we arrived in Australia and we were afraid to return due to the violence and harassment we would have to face". Specifically, in relation to the strong humanitarian grounds relied upon, he cited the circumstances that "there has been several uprisings/coups in Fiji, which have caused much violence in the form of bombings, burning of temples and other buildings, as well as violence of a physical nature together with harassment towards people of Indian Ethnic background and beliefs". He referred to attached newspaper clippings. He said that he expected the circumstances to continue indefinitely. He said it would be inappropriate for him to reside in Fiji as "there is much violence occurring and we would be in fear of our lives, subjected to harassment, denied our freedom as well as physical violence". He also asserted that it would be unreasonable for him and his family to return to Fiji and there apply for migration to Australia as "if we have to return to Fiji and apply for migration to Australia I would be denied employment, and unable to support myself and my family. We would be subjected to harassment and physical violence and due to being denied freedom would be unable to apply". He further asserted that he would be disadvantaged if required to return to Fiji because:-
"a) The political system has worsened in Fiji. I firmly believe in Democracy and if I had to leave Australia and return to Fiji, I would be denied my freedom together with the opportunity to seek employment to provide for daily living.
b) My wife and children being of Indian origin would be in danger especially when the Fijian population become aware that we have been living in Australia. Since the various coup's many people have migrated to Australia and there is much media reporting of the violence etc. The Fijian community and especially the government dislike the publicity which it receives in this country, and this would be held against them as well as myself.
The country is totally unstable, many attacks not being reported openly due to fear of violence if feelings of a personal nature were expressed of what had occurred, in particular to women of Indian Ethnic origin."
The application was based also on "strong compassionate grounds" as provided in s 6A(1)(e). In this part of the application, the applicant referred again to the political turmoil in Fiji. He stated that "I no longer have a home in Fiji. I lost all my properties during the civil upheaval. We would be homeless with out means of support." In further elaboration of the "strong compassionate grounds" he made the following claims:-
"a) Due to the opportunity I have received whilst in
Australia I have progressed from process worker along the ranks and I now hold the position of Supervisor in a very complex field - chemical industry. My employers have trained me as I displayed a great deal of enthusiasm together with adaptability for this type of work, so much so that they are prepared to support my application. It would be a sad loss to me if I were unable to continue in this field of work, as would be the case if I return to Fiji. I have all the moral support of my workmates as well as my family in Australia, all this would be lost to me too. My family, parents and siblings living in Australia are very close knit and we are a very supportive family unit, I would be constantly worried and distressed to be separated from them, not knowing when I would see them again, in particular my aged parents.
b) My wife has undertaken studies in shorthand, typing
and word processing since our arrival to Australia and has achieved good results. In Australia she assimilated and would be deprived of freedom in all areas of her life, if she was faced with returning to Fiji. Australia is a peaceful and democratic country where life can be lived to its full potential, this is not so in Fiji - fear and anxiety would be a part of life which she does not wish to be faced with again. My children have assimilated in the school system and it would greatly disrupt their emotional growth and well-being if they had to live in Fiji. It would be most disturbing for them to live in a Country where violence, racial discrimination, bombings and arson are regular occurrences. They too would be separated from their grandparents and other family members who are resident in Australia, which would cause a great sadness as they would miss them a great deal if they could not be reunited permanently.
c) My father, mother, brother, sister-in-law, two sisters
and a number of nieces are residents of Australia and they in turn would suffer if we were to be asked to depart Australia.
My parents are no longer young and rely on me as is tradition, to attend to their needs, in all matters concerning their daily lives. We are a close-knit family and my absence, lack of support together with anxiety and fear of what we would be subjected to in Fiji would be very detrimental to their health and emotional well-being.
In closing I would like to add that we are hardworking, honest and have adapted to the Australian lifestyle, as have my children. It would be a great loss to all concerned including my employer, who relies on me in the workplace to be reliable, responsible for delicate and intricate operations, which are involved in my daily duties."
This application was assessed and refused. The reasons of the assessing officer, which are in evidence, indicate that, in the officer's opinion, the applicant did not meet the requirement for GORS on occupational grounds under s 6A(1)(d) nor for strong compassionate or humanitarian grounds under s 6A(1)(e). It appears that the s 6A(1)(d) and (1)(e) considerations were approached simply by an evaluation of the merits on the facts advanced by the applicant together with information received from the Australian Embassy in Fiji. As these determinations were the subject of reconsideration and re-evaluation in the decision under review, I shall not consider them further.
However, further comments were made by the assessing officer which, on the analysis referred to above, and, having regard to the policy document on the grant of temporary entry permits, relate really to the exercise of discretion under s 7(2). These comments form part of the comments complained of by the applicant as not having been specifically disclaimed in the decision under review.
Thus, the decision-maker said:-
"Mr. Singh entered Australia on a Visitor Visas, for a stay of 6 weeks, his entry permit expired in 1982 and he has remained in Australia illegally since that date. Mr. Singh has been in further breach of the Act by working without permission. These breaches of the Migration Law are considered serious and are weighed heavily against Mr. Singh."
The decision-maker further said that "it must be remembered that Australia has a planned migration program, and the management of the program relies heavily on issuing visas and entry permits to people in good faith. Mr Singh has deliberately breached that faith."
On 31 August 1990 this decision was referred by the applicant to the Immigration Review Panel for reconsideration. The application for reconsideration was accompanied by a letter from the applicant's solicitors dealing in considerably more detail with aspects of the applicant's claim under ss 6A(1)(d) and 6A(1)(e). In accordance with practice, an officer of the Department presented a written submission to the panel for its consideration along with the applicant's further submission and all the other material in the case.
This submission makes a brief review of the material and then makes the following final comment:-
"Mr. Singh has knowingly and intentionally remained illegally in Australia and has brought any problems he may have in re-settling in his own country on his own head. He has sought to avoid the normal migration processes. It is not intended that residence in Australia should be granted as a reward for abusing the conditions of Visitor Visa issue."
It is submitted on behalf of the applicant that these comments have illegitimately entered into the decision-making process in the decision under review, in that they, in themselves, demonstrate an error in the approach which has not been disclaimed by the decision-maker. The error was, in the first place, put as one of prejudgment of the applicant's case by, in effect, holding against him his knowing and intentional breach of the migration law as regards entry into, remaining in and working in Australia to the extent that it precluded any rational consideration of the merits of the case. It was put that a certain extravagance in the language used was indicative of the decision-maker's having accepted that the applicant's breaches in this regard, in effect, constituted an insurmountable barrier to the success of his application. It became clear during the course of the case that the language did not, in fact, express some idiosyncratic attitude on the part of the earlier decision-makers but was simply a repetition of statements made in the Ministerial document tabled in Parliament. Seen in this light they were no more than an expression of Departmental policy in relation to the administration of the Act in respect of applications of this kind. It was then submitted that, allowing for this to be so, the use of this language in the context on which it was found indicated that a ground for review existed under s 5(2)(f) of the ADJR Act in that a discretionary power had been exercised "in accordance with a rule or policy without regard to the merits of the particular case".
There can be no doubt that if a decision-maker were to approach an application for GORS made by a prohibited non-citizen remaining in and working in Australia in breach of his original entry permit simply on the basis that those breaches were in themselves so heinous that they must inevitably overcome what other merits might be displayed by the applicant in his application, then there would be a failure to exercise the discretion in accordance with law. If, on the other hand, the breaches were to be considered as matters of substantial but not necessarily insuperable gravity when weighed in the balance with merits which might otherwise exist in the application, then the decision-making process would not be vitiated. This is sufficiently clear from the Ministerial statement itself and the application of that statement fairly and properly by a decision-maker would not, in my opinion, lead to reviewable error.
In the present case I have come to the conclusion that it is unnecessary further to consider this aspect of the appeal. The decision-maker who has produced the decision under review has supplied a statement of reasons pursuant to s 13 of the ADJR Act. This statement is very detailed. It does not, in fact, deal with the effect of the applicant's breaches of immigration law. This is because the decision-maker did not find it necessary to enter upon the question of whether the discretion under s 7(2) of the Act should be exercised in favour of the applicant. The decision-maker was satisfied that the applicant had not brought himself within the enabling provisions of ss 6A(1)(d) and 6A(1)(e). In these circumstances, even if it could properly be asserted that it was necessary in some way for the decision-maker to advert to the earlier pronouncements on the effect of breaches of the immigration law for the purpose of expressly disclaiming that they provided an insuperable bar to the applicant's claim, this was not, in any way, necessary in the present case because the decision-maker did not enter into that question at all.
I come, then, to the applicant's submission that the delegate in deciding that the applicant's case did not fall within the provisions of s 6A(1)(d) committed reviewable error.
The section, which is set out above contemplates, of course, that the applicant be the holder of a temporary entry permit and be authorised to work in Australia. The granting of the temporary entry permit, if thought appropriate, would be accomplished as the result of a favourable exercise of the discretion under s 7(2). Authorisation to work in Australia would, presumably, be attached to the grant of a temporary entry permit so that it would be in effect a "working visa" and subject to conditions, particularly as to time. Alternatively, the authority to work might be of a more specific kind granted on the basis that it was in the public interest that the applicant should be permitted to do work of a particular kind in Australia. Authorisation of this kind has been the subject of elaborate policy formulation which is to be found in the Department's Integrated Departmental Instructions Manual - Grant of Resident Status Number 12. Mr Singh's application for GORS on occupational grounds was considered in detail against the requirements of the policy set out in this document.
In her statement of reasons under s 13 of the ADJR Act the delegate indicated that she had had regard to the provision of s 6A(1)(d), the requirements of the Integrated Departmental Instructions Manual - Grant of Resident Status Number 12, the Australian Standard Classification of Occupations ("ASCO") Dictionary, as well as the full Departmental file in relation to the applicant's applications. The policy guidelines in the Manual were related to and bound up with a scheme provided for in the policy and known as the Employer Nomination Scheme ("ENS"). The purpose and essential requirements of the scheme are set out in the manual as follows:-
"2.5.1 The Employer Nomination Scheme (ENS) is designed to enable Australian employers to recruit highly skilled workers when they have been unable to fill their needs from the Australian labour market or through their own training efforts... 2.6 Summary of essential requirements: 2.6.1 General conditions for the approval of employer nominations are as follows: . the nomination form M785 must be fully completed and accompanied by appropriate documentary evidence of labour market testing . the nomination must be signed by the actual employer
. the nominated vacancy must be for an occupation which is highly skilled
. terms and conditions of the employment offered must comply with Australian awards and standards for the occupation concerned . the nominee's qualifications and experience must match the requirement of the vacancy . the employer must be able to demonstrate that labour market testing has yielded no suitable local applicants
. the nominator must be a genuine employer and the existence of the vacancy not in doubt . the nominee should be required to fill the vacancy on a permanent full-time basis . the employer must have a satisfactory training record."
In her reasons, the delegate indicated that she "focused on the following requirements":-
". the skill requirements of the vacancy; . the qualifications and experience of the applicant; . labour market testing undertaken; and . the company's training record."
In dealing with the first of those four requirements, the delegate engaged in a detailed analysis of the facts surrounding the applicant's employment position, which, at the time of his application, appeared to have been that of a leading hand chemical mixer/compounder. That portion of her reasons for decision reads as follows:-
"In considering whether the vacancy was for an occupation which was highly skilled for the purposes of the ENS I had regard to paragraph 2.8.1 of the GORS Handbook, Number 12: 'An occupation may be considered highly skilled when it is normally expected that a person will require the following in order to reach an average level of competence in the occupation:
. either 3-5 years formal training or 3-5 years on the job training;
AND
. a minimum of 3 years work experience. Part F of the application dated 30/10/89 indicated that the position was 'Chemical Plant Supervisor' and the qualifications and experience required were: 'On the job training to Sheraton standards. Ability to plan production - operate steam equipment, train and supervise staff - 5 years experience.' The CES vacancy display lodged on 27/9/89, the letter from Benjamin and Khoury solicitors dated 31/8/90, the job description dated 28/5/90, and the letter from Sheraton Products Pty Ltd dated 6/9/90, all confirmed that the position was chemical plant supervisor. I consulted the ASCO Dictionary which indicated at unit group 7305-11 that the entry requirement for chemical plant operators was:
i. education: a 1 year certificate; and ii. previous experience: 3 years as a trainee chemical plant operator. Usually, where an occupation required only a 1 year certificate it would not be considered highly skilled. However, as the entry requirement for a chemical plant operator required 1 year certificate and 3 years experience as a trainee, I consider that this could equate to 3-5 years on-the-job and formal training. The ASCO Dictionary indicated that a chemical plant supervisor would require 5 years previous experience as a chemical plant operator, which meant that a supervisor to reach an average level of competence in the occupation would require a minimum of 3 years work experience after that formal and on-the-job training. Accordingly, the occupation of chemical plant supervisor may be considered highly skilled for the purposes of the ENS.
I then looked at the skill level of the nominated vacancy to see whether the position required a person with a 1 year certificate and 3 years traineeship (ie the occupation's entry requirement as indicated at ASCO Dictionary 7305-11) and 3-5 years work experience in that occupation.
Documents in the applicant's file indicated as follows:-
i. Part F of the applicant's first application dated 18/10/88 at section 2 indicated that no qualifications were required, only 'many years of experience with the products, the production, the people, the acceptance of responsibility and common sense.' ii. Attached to the applicant's first application was a copy of a former training agreement between the nominator and an employee, for a chemical mixer, in which training took only 12 months. I believe that this was produced to indicate on-the-job training previously given to employees in the position. iii. Part F of the applicant's second application dated 30/10/89 at section 2 indicated that no qualifications were required, only 'on the job training to Sheraton standards' and 'ability to plan production - operate steam equipment, train and supervise staff - 5 years experience'.
iv. The CES job vacancy card dated 27/9/89 indicated that an applicant 'must have 5 years experience in above duties with emphasis on staff training and supervision'. No qualification was required. v. In a letter from Benjamin and Khoury dated 31/8/90 the solicitor stated that the applicant worked as 'basically a general labourer' for 2 years. He then received '2 years extensive training from Mr Haggley, on the job, and after all his years of employment with the company he is still learning on the job'. vi. In a letter from Sheraton Products Pty Ltd dated 6/9/90 Mr Post, Managing Director, stated that the applicant had been employed as a 'Specialist Chemical Formulator' for the last 3 to 5 years of his employment since 5/2/81.
vii. In his application the applicant indicated that he worked as a 'leading hand chemical maker' from 9/2/82 to 19/3/86, from 20/3/86 to 21/1/87 as a wood machinist, and from 23/1/87 to 6/11/89 (the date of the application) as a chemical plant supervisor.
I concluded that the position required:
i. 2 years on-the-job training as a trainee; ii. experience with the company's products, equipment and production methods;
iii. 5 years training and experience overall; iv. no formal qualification.
The position did not meet the general entry requirement for a chemical plant operator of a 1 year certificate and 3 years as a trainee chemical plant operator. The position did not require any formal qualifications and the applicant apparently began working as a chemical plant operator after only 2 years on-the-job training.
When assessed against the ENS guideline of 3-5 years training and a minimum of 3 years work experience, it was apparent that the position only required 2 years training in order to begin to perform it. Whilst the employing company also stated the position required 5 years experience overall, the applicant was working in the position after only 2 years training and had been nominated by the company by an application dated 18/10/88, ie. when the applicant had only at best 2 years specific training and about 21 months experience (23/1/87 to 18/10/88). Accordingly, the position at best required 2 years training and about 2 years experience, and less than 6 years training and experience overall.
Accordingly, as the position did not meet either the general entry requirements for a chemical plant operator or the ENS guidelines for a 'highly skilled' occupation, I concluded that the position may not be highly skilled for the purposes of the ENS.
Additionally, paragraph 2.10.4 of GORS Handbook Number 12 stated that:
'Assessing officers should use market rates of remuneration as a guide for occupations not covered by an award. As a general rule, nominated positions receiving a salary below average male weekly ordinary time earnings will not be considered sufficiently skilled to warrant approval under ENS.' I noted that Part F of the application dated 30/10/89 gave the salary as $23,000 p.a. for 40 hours per week plus $2,000 overtime, and the CES job vacancy card indicated $440 per week (ie. 22,880 p.a.) plus overtime. The ARD was lodged on 31/8/90 and did not indicate any change in the salary for the position. I was aware that in November 1989 the average male weekly earning (ordinary time, adults) was $547, ie. $28,444 p.a. Therefore, the salary offered of $23,000 p.a. was below average male weekly ordinary time earnings. I considered that this was a further indication that the position may not be of a 'highly skilled' nature for the purposes of the ENS.
I next looked at whether the qualifications and experience of the applicant matched the requirements of the vacancy. I was aware that the nominating company was satisfied with the applicant's skills and strongly supported his application. However, the nominated vacancy had to be for a 'highly skilled' occupation and the applicant had to have qualifications and experience which matched the 'highly skilled' vacancy. Therefore the applicant generally had to have 3-5 years training and a minimum of 3 years work experience relevant to the occupation. I concluded from the letter from Benjamin and Khoury dated 31/8/90 that the applicant had only 2 years training before undertaking the duties of the position. Apparently he worked: . 9/2/82 to about 2/84 as a 'general labourer'; . 2/84 to 19/3/86, on-the-job training as a leading hand chemical maker;
. 20/3/86 to 21/1/87 as a wood machinist; . 23/1/87 to date of application as a chemical plant operator.
Subsequent experience would of course involve 'learning on-the-job' and did not indicate the level of training acquired by the applicant. He did not have a 1 year certificate and 3 years as a trainee chemical plant operator before undertaking the duties of the position. Accordingly he did not meet the entry requirement for the occupation of chemical plant operator and did not meet the ENS guidelines for a 'highly skilled' occupation. I noted that his specific knowledge of the nominating company's products, equipment and production methods did not by themselves satisfy the skill level test in the ENS guidelines. I decided that he was not highly skilled for the purposes of the ENS."
As can be seen from a perusal of her reasons, the delegate gave detailed consideration to both the policy guidelines and the merits of the applicant's case. Counsel for the applicant submitted that it was "a sterile, arid, (and) academic exercise" and that the delegate did not have regard to paragraph 2.8.5 of the GORS Handbook, Number 12, which reads as follows:
"2.8.5 Difficult cases which appear to involve high skill level but do not match the skill definition may be referred to DEET for advice."
It is apparent that para 2.8.5 of the GORS Handbook, Number 12 does not contain a mandatory direction to officers undertaking the task of assessing the skill level of jobs of applicants for GORS under the Employer Nomination Scheme to refer to the Department of Employment, Education and Training ("DEET"). The delegate here looked at the objective criteria as specified in the policy guidelines and then applied those to the applicant's subjective circumstances. It is apparent that the delegate was of the opinion that there was no need to refer this particular case to DEET, as each of the objective criteria specified in the GORS Handbook, Number 12, were not met. It is difficult to see how the delegate could be criticised for her approach to assessing whether the applicant's position complied with the requirements under the Employer Nomination Scheme. The s 13 statement sufficiently indicated that she gave the matter full consideration in deciding whether the applicant's job was "highly skilled", according to the policy guidelines.
The applicant also submitted that, in any event, the delegate ought to have notified him that she proposed to use the guidelines in the GORS Handbook and also have recourse to the ASCO Dictionary, and afforded him an opportunity to make submissions if he disagreed with the classifications therein.
It may well be that consideration of procedural fairness in some cases require that a decision-maker disclose to an applicant policy considerations which are being applied by the decision-maker so that the applicant has an opportunity to deal with them. However, I am satisfied that this is not such a case. The applicant was legally represented. The existence of the ENS was well known and the details of its requirements readily available. The application forms sufficiently indicate that a non-citizen seeking GORS should provide all the information upon which he relies with his application. The applicant did in fact supply detailed information which was extensively supplemented in the subsequent letter from his solicitor forwarded when review was being sought of the first decision. The evidence of Mr Bridge, in my view, only indicated that if the Department had made inquiry of him personally in relation to the applicant's application and the position he wished him to fill, nothing of any further significance would have been ascertained. The applicant had a flair for mixing the chemicals required for the manufacture of the company's products which was difficult to find in other applicants for the job. He will be difficult to replace at least at the salary level offered. This is not sufficient to make the job a "highly skilled" one.
I am quite satisfied that no error has been demonstrated in the delegate's approach. She was not simply applying policy without regard to the merits. She was under no obligation to seek the assistance of DEET.
I come to the rejection by the delegate of the applicant's case based upon strong compassionate or humanitarian grounds pursuant to s 6A(1)(e) of the Act.
"Strong compassionate grounds" are dealt with in GORS Handbook Number 6 and "strong humanitarian grounds" are dealt with in GORS Handbook Number 10. The delegate dealt with the policy requirements set out in those documents and their effect on her consideration in the following passage from her s 13 statement of reasons:-
"GORS Handbook Number 6 concerned 'strong compassionate grounds'. Paragraph 2.1 provided, inter alia, that to be granted resident status in Australia on the basis of strong compassionate grounds, the applicant and any family unit members included in the application must: . Satisfy the policy guidelines relating to 'strong compassionate circumstances'; and . meet public interest policy requirements which included the health requirements, character requirements, and other as relevant. Although the wording 'must' was used, I was aware that I should look at the case on its merits. GORS Handbook para 2.3 provided that: 'Policy guidelines: In general, compassionate circumstances relate to the misfortunes and sufferings which people experience in their personal lives brought about by unusual or distressing circumstances which relate to them as individuals.'
GORS Handbook para 2.5 provided that: 'Both policy and law require that strong compassionate circumstances exist for the Grant of Resident Status. Thus any compassionate circumstances put forward must be significantly severe, and burdensome. Simple inconvenience, discomfort or disadvantage either to themselves or to an Australia citizen or resident as a result of an applicant not being allowed to remain in Australia are not sufficient.'
I concluded that in order for strong compassionate circumstances to exist, the applicant had to demonstrate that if he and his family were not allowed to stay in Australia the consequences to him and/or his family, would be of a significantly severe and burdensome nature so as to constitute strong compassionate grounds. Gors Handbook number 10 indicated at para 2.3.2 that applicants for grant of resident status on the basis of strong humanitarian grounds would generally need to demonstrate that:
. it would be significantly unfair or unjust to expect the applicant to return to their country of origin or last residence because severe hardship would result; . residence elsewhere would be inappropriate; . the circumstances on which the claim relies should be of indefinite duration or, if no longer current, have so severely affected the applicant as to render effective rehabilitation in the country of previous residence unlikely."
It is clear from the delegate's reasons that in reaching a view as to the political and social situation in Fiji, insofar as it might affect the applicant and his family should they be forced to return to that country, she had regard to the assertions as to considerable disadvantage made by the applicant, which have been set out above, and also the newspaper clippings which he forwarded with his application. She also had regard to information available to her from the Australian Embassy in Fiji and from a publication, an international digest, which provided information on Fiji gathered from various sources. The applicant's counsel made two main complaints in relation to this aspect of the delegate's deliberations.
First, he complained that the delegate had indicated a view that the newspaper clippings that had been provided in support of the applicant's case were "selective". It was submitted that, insofar as this view involved some criticism, it should have been referred to the applicant for further comment. It was not indicated to the Court what that further comment might have been. No doubt that applicant had forwarded newspaper clippings which supported his contention that there was some breakdown of law and order and potential physical danger in Fiji. It is clear that the delegate considered them and indeed made some evaluation of them. In the circumstances of the case, I do not regard the comment as an unfair one, nor the failure to afford an opportunity to comment as an error requiring curial intervention.
The second complaint was to the effect that the applicant should have been made aware by the delegate that she was having regard to the information obtained from the Embassy and in the digest. This information tended to play down the degree of social and political problems in Fiji resulting from the coups. It tended to show that the situation was returning to normal. I do not feel that there is any substance in this complaint. It would surely have been recognised that the Department would have regard to information coming from other sources bearing upon the general situation in Fiji and that it would have access to such information. It is clear that there was nothing in the information which was personal to the position of the applicant or his family such that it would have been unfair for them not to have been afforded an opportunity to reply to it. I am satisfied that no reviewable error has been demonstrated in this respect.
So far as matters falling under the heading of compassionate grounds are concerned, it is clear that the applicant sought to make a case based upon hardship not only to himself and his wife, but also to his children and his parents should he and his children be required to return to Fiji. So far as his parents were concerned he made the claim, set out above, that they would be deprived of his care in their old age. In this regard, the delegate, in her reasons, made the comment that "the applicant did not produce any evidence to substantiate this claim". The applicant complains that he should have been advised of this view of the delegate so that he could have met it by the production of evidence. I am not impressed by this complaint. In the first place strong compassionate grounds would not be established merely by the ordinary pain of separation between members of the family. Some special deleterious result would need to be advanced. If, indeed, there were any special problems which would arise from the departure of the applicant to Fiji then it might reasonably have been expected that these would have been the subject of detailed treatment in the application together with supporting statements from the parents and anybody else who could provide relevant information. This was not forthcoming in the application, with the result that the delegate's comment was justified. Nor was it suggested in argument that particular hardship could have been demonstrated if the opportunity had been provided. Indeed, it is clear in the evidence that other members of the family are legally resident in Australia and able to provide support to the applicant's parents. Indeed, the applicant does not currently reside with his parents and would not appear to provide constant daily support.
The applicant had made the claim that he and his family would face particular difficulty and hardship on returning to Fiji as they would be seen as having resided in Australia for many years. It was said that this was a circumstance which would lead to particular hardship being visited upon them. It must be noted that this claim was no more than a mere unsupported assertion in the applicant's application. If there was evidence to support it, even if only anecdotal evidence supplied by members of his family still resident in Fiji, then it could have been forwarded with the application. It is clear that the matter was considered by the delegate and given little weight. I see no indication of error. Weight was peculiarly a matter for her.
The situation of the applicant's four children has occasioned me concern. The youngest child, now aged ten, was born in Australia shortly after the arrival of the applicant and his wife and is an Australian citizen. He is entitled to remain in Australia but if his parents are forced to leave he will either be deprived of the presence of his parents or of the benefits of his Australian citizenship. The other children are teenagers and have been brought up in Australia. It does not appear that they have ever been to Fiji since their arrival in Australia and, presumably, would have no recollection of it. Obviously their schooling has been in the Australian educational system and they have been brought up simply as Australian children. It is no fault of theirs that they are illegal immigrants. Although they have relatives in Fiji and, apparently, would be accepted into the Fijian school system for the completion of their education, the dislocation and disruption involved in their being required at this point of time to leave Australia and return to Fiji would no doubt be substantial. The situation of these children was considered by the delegate. She refers to these considerations in the following paragraphs of her reasons:-
"Anthony Singh born on 3/4/82, some 3 months after Mrs Singh's arrival in Australia, is an Australian citizen as a result of his birth in Australia. Mrs Singh was about 6 months pregnant when she arrived in Australia. The fact that the child is an Australian citizen gives no right of residence or citizenship to the parents. However the welfare of the child was a prime consideration. The child was approximately 8 years old and was too young to decide where he wanted to live. I accepted that the applicant was in a genuine on-going marriage and the welfare of the child would be best served by being with his parents and siblings as part of a family unit, be that here or in Fiji. I believe that he was able to reside with his parents, and receive appropriate schooling in Fiji. The International Guide to Qualifications in Education indicated that the education system was still closely related to that of New Zealand with the medium of instruction being English. Tertiary education is available through the University of the South Pacific. I did not consider that the child's welfare and education would suffer should he and his parents go to Fiji to live.
The 3 older children were Fijian citizens but had lived a large proportion of their lives in Australia as a result of their parents' illegal residence. I considered that they could also receive appropriate schooling in Fiji and that their welfare would not suffer if they returned to Fiji to live. I acknowledge that the childrens' only grandparents were in Australia and that they felt close to them and the other family members in Australia. Nonetheless the children had many family members in Fiji, and there was no indication that if they lived in Fiji they would be unable to see their relatives in Australia in the future by visiting them or vice versa."
She further said that she considered "that the emotional, family, employment, social and other ties that the applicant, Mrs Singh and their children had formed in Australia were not of such significance that he and his family would be severely disadvantaged if required to depart Australia. Nor did I consider that the applicant's Australian-born child and other children would be severely disadvantaged if they departed Australia." She was accordingly not satisfied, in respect of the children, that strong compassionate grounds had been made out.
It is not, of course, for this Court in any way to reconsider this decision on the merits. Undoubtedly the potential effect of requiring that the children lose their home in Australia and start afresh in Fiji in reduced and probably difficult circumstances excites one's sympathy. However, the question is whether the decision and its reasons indicate grounds for review under the ADJR Act. Has there been a failure properly to consider the question whether strong compassionate and humanitarian grounds have been demonstrated in respect of the children? It must be noted that no particular material relating to the children as individuals was supplied in support of the applicant's application although the possibility of hardship to them was raised. I can see no indication that there has been any failure on the part of the delegate to take into account hardship to the children and the degree of it. The decision that she made that the hardship, real as it obviously was, did not constitute strong compassionate and humanitarian grounds was, of course, essentially one of fact. I am not satisfied that any reviewable error has been demonstrated in the making of the decision.
In these circumstances I must dismiss the application. I do so and order the applicant to pay the respondent's costs.
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