Sinnathamby, P. v Minister for Immigration and Ethnic Affairs

[1985] FCA 656

Re: PUSHPARANY SINNATHAMBY; STELLA PUSHPARANEE SIMEON; GRATIA ANTONOTE
DOMINIC; SUNTHARAL INGHAM SELLATHURAI; ROSEMALAR MANUELPILLAI
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Nos. G377; G378; G379; G380; G381 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling J.

CATCHWORDS

Administrative law - immigration - review of deportation orders - prohibited non-citizens - whether right to, and denial of, natural justice - whether application for resident status pre-judged by Department - whether applicant entitled to have application considered by the Immigration Review Panel - whether relevant facts not considered or irrelevant facts considered Administrative Decisions (Judicial) Review Act 1977, s.5

Migration Act 1958, ss. 6A, 7, 18

HEARING

SYDNEY
#DATE 24:12:1985

ORDER

THE COURT ORDERS AS FOLLOWS:

Applications dismissed.

No order as to costs.

Note: Settlement and entry of orders is dealt

with by Order 36 of the Federal Court Rules.

JUDGE1

These are five applications for orders of review in respect of decisions made by the Delegate of the Minister for Immigration and Ethnic Affairs that each of the applicants be deported from Australia. There is no significant difference between facts of any of the applications and if any one of the applications succeeds or fails, then the same result will follow in each of the other applications. In these circumstances, I shall first consider the application of Miss Manuelpillai and decide what order should be made in that matter.

1. On 13 December 1985 a deportation order was made against Miss Manuelpillai in the following terms:
   
   

"DEPORTATION ORDER WHEREAS ROSEMALAR MANUELPILLAI also known as ROSE MALAP MANUELPILLAI being a non-citizen, entered Australia on the twenty third day of October 1985

AND WHEREAS the said ROSEMALAR MANUELPILLAI is a prohibited non-citizen by virtue of section 7 of the Migration Act 1958 in that she was the holder of a temporary entry permit which has expired and no further entry permit applicable to her came into force upon that expiration or has been granted to her since

NOW I, WAYNE JULIAN GIBBONS, the Regional Director to the Department of Immigration and Ethnic Affairs, New South Wales, and delegate of the Minister of State for Immigration and Ethnic Affairs, DO HEREBY ORDER, pursuant to section 18 of the Migration Act 1958, that the said ROSEMALAR MANUELPILLAI be deported from Australia

Dated this 13 day of December 1985

(Sgd)

Delegate of the Minister of State for Immigration and Ethnic Affairs

1. The grounds upon which the applicant seeks a review of the decision are those referred to in paras. (a), (b) and (e) of sub-s. 5(1) of the Administrative Decisions (Judicial Review) Act 1977.

2. Miss Manuelpillai was born in Sri Lanka in 1957. She is of Tamil extraction, a minority community in Sri Lanka. She claims that Tamils have been the subject of assault, detention and torture in her country since July 1983. She entered Australia on 23 October 1985 as a transit passenger and on arrival was granted a Temporary Entry Permit valid until 26 October 1985.

3. On the morning of 24 October, she sought and obtained an interview with Mr David Begg of Amnesty International, who arranged for her to attend the offices of the Regional Director of the Department of Immigration and Ethnic Affairs where she was interviewed on 25 October. She was advised to return to the offices on 28 October 1985. When she returned on that date she was again interviewed and advised that she was under arrest because she was in Australia illegally. Thereafter she has been detained at the Villawood Detention Centre. On 29 October she was again interviewed at the Departmental Offices, with the assistance of an interpreter.

4. Miss Manuelpillai enquired of the Department as to the prospect of obtaining resident status as she claimed to be afraid to return to Sri Lanka. On 1 November 1985 she applied for Refugee Status in Australia. This application was considered by the Determination of Refugee Status Committee on 15 November 1985 and it was recommended that her application be rejected. This recommendation was endorsed by the Delegate of the Minister on 19 November 1985 and on that date a letter in the following terms was sent to Miss Manuelpillai:
   
   

"I am writing in regard to your application for refugee status in Australia.

Your claims for the grant of refugee status were examined carefully by the Determination of Refugee Status (DORS) Committee which is made up of representatives of the Departments of Immigration and Ethnic Affairs, Foreign Affairs, Attorney Generals and Prime Minister and Cabinet. The representative of the United Nations High Commissioner for Refugees is an adviser to the Committee.

The DORS Committee unanimously recommended against the grant of refugee status. This judgement was arrived at following consideration of detailed advice received from the several sources of information available to the Committee concerning both the general situation prevailing in Sri Lanka at that time and your known particular circum stances in Sri Lanka as they related to your claim for Refugee Status.

The Minister's delegate has endorsed the Committee's recommendation and has decided that your application for refugee status in Australia must be refused. The Department has also determin ed that there are no other grounds on which your continued stay in Australia can be approved."

1. Thereupon on 25 November 1985 Miss Manuelpillai applied for resident status in Australia claiming to meet the legal and policy requirements of para. 6A(1)(e) of the Migration Act 1958.

2. This application was rejected on 3 December 1985, and on that date a letter in the following terms was sent to the applicant by the Regional Director of the Respondent:
   
   

"I refer to your application for grant of resident status. I must inform you, that after giving your case careful consideration, I, the Acting Director, Immigration Branch, an authorised officer under S6A of the Migration Act 1958, have decided to reject your application.

Under present law and policy a change of status to resident may be granted in exceptional cases but generally only to people who can demonstrate a marked change in their circumstances since their arrival in Australia.

Section 6A(1) of the Migration Act prescribes restricted categories of people who may be considered for the grant of resident status. This means it is not possible in law to grant resident status to a person after their arrival in Australia unless one or more of the following conditions is fulfilled in respect of that person, namely:

(a) he has been granted, by instrument under the hand of a Minister, territorial asylum in Australia;

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

(c) he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;

(d) he is the holder of a temporary entry permit which is in force, is authorised 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.

There was no evidence before me to suggest that you fulfilled S6A(1)(a), S6A(1)(b) or S6A(1)(c) of the Migration Act as outlined above. Furthermore your entry into Australia as a visitor on a temporary entry permit without permission to work precludes you from consideration under S6A(1)(d). I there fore considered your case under the law and policy relating to grant of resident status under S6A(1)(e).

In your application you put forward as grounds for consideration the claim that as a Tamil, you would suffer gross and discriminatory denial of fundamental freedom and basic human rights, if you returned to Sri Lanka. You also stated that in view of the circumstances of your brother's departure for West Germany and your residence abroad, you might be arrested or killed.

After carefully considering your claims, I am unable to conclude that your grounds constitute strong humanitarian grounds within the meaning of Section 6(A)(1)(e). On the material presented by you, I am not satisfied that you would suffer gross and discriminatory denial of fundamental freedom and basic human rights on your return to Sri Lanka, greater than the hardship and adversity experienced by the generality of Tamils in Sri Lanka.

I also gave consideration to whether the applic ation of normal policy was appropriate in your particular case but I decided that there were no features of the case which indicated that the application of normal policy would be unreasonable or unjust. I therefore decided to reject your application.

As your temporary entry permit has now expired the Enforcement Section of this Department will be contacting you."

1. Miss Manuelpillai was interviewed by an officer of the Department on 28 October 1985. She appears to have given the interviewing officer a frank account of the circumstances in which she came to Australia. She told him that she travelled to Singapore in 1981 where she secured work as a sewing machine operator in a clothing factory. She said that she had been directed to leave Singapore before the expiry of her work permit and had complied with the direction. She has no romantic attachments in Australia. She does not have a criminal record and has never been asked to leave or excluded from any country. She said that she did not wish to return to Sri Lanka because she was a Tamil and would face persecution there. She told the interviewing officer that she had decided to attempt entry to Australia when she was advised by the Singapore Government that her work permit would not be extended. She said that a travel agent in Singapore had advised her that it would be difficult to obtain a visa for entry into Australia and that she could gain entry by posing as a passenger in transit to Fiji. She was given the opportunity to make written submissions to the Minister, but none were made by her personally. However, representations in writing were made on her behalf by the Australian Legal Aid Office and by the Australasian Federation of Tamil Association. Miss Manuelpillai supported her application for resident status with a statutory declaration in which she stated:
   
   

"In February or March 1984 my family home in Jaffna was ransacked by members of the Sri Lankan Army. My brother was arrested and detained for one month. He was ordered to report once a month to the authorities but in April 1984 fled to Germany. He is now in a refugee camp. The authorities continue to harass my parents. If I return to Sri Lanka I will immediately come to the attention of the authorities. I fear arrest at the airport or when I returned home. I also fear violence at the hands of the Sinhalese majority who indiscriminately assault, rape or kill Tamils."

All this material appears to have been considered by the Delegate prior to the making of the deportation order.

1. I turn now to consider the argument, based upon s.5(1)(a) of the Judicial Review Act, that a breach of the rules of natural justice occurred in connection with the making of the decision to deport the applicant. I should observe that, in the present case, there does not appear to have been a formal application made on behalf of the applicant that she be granted a further temporary entry permit. However, it is plain that if such an application had been made it would have met with rejection. Indeed, I think it is a fair reading of the departmental file that the applications were treated as including, in effect, an application for a temporary entry permit. Likewise, it is fair to read the Delegate's decision as a rejection of the application for a further temporary entry permit.

2. In the light of the recent decision of the High Court in Kioa v West (18 December 1985) it must now be accepted that, in some circumstances, the Minister will be under an obligation to observe the requirements of the rules of natural justice when deciding whether or not to make a deportation order under s.18 of the Migration Act. But as is pointed out by Mason J. (pp.39-40) there will be other cases in which a deportation order can properly be made without notice being given to the prohibited immigrant of the intention to make the order, and of the grounds upon which it is to be made. At pp.39-40 his Honour said:
   
   

"But what does procedural fairness entail in its application to the exercise of the discretionary power conferred by s.18? It would be going too far to say that fairness requires that in all cases in which a deportation order is to be made notice should be given to the prohibited immigrant of the intention to make such an order and of the grounds upon which it is to be made. The Migration Act plainly contemplates that in the ordinary course of events a deportation order will be made ex parte. And the prohibited immigrant may be a person who, intent upon remaining in Australia without lawful right or title, has evaded the authorities and will continue to do so. He may even be a person who has been required under s.31A to leave, but has declined to do so. To insist that he be notified of the intention to make a deportation order would serve only to facilitate evasion and frustrate the objects of the statute. These consider ations indicate that, in the case where the reason for the making of the order is that the person concerned is a prohibited immigrant, the dictates of natural justice and fairness do not require the giving of any advance notice of the proposed making of the order (Salemi (No. 2), at pp. 452-453, and Ratu, at p.480).

But it may be otherwise where the reasons for the making of the order travel beyond the fact that the person concerned is a prohibited immigrant and those reasons are personal to him, as, for example, where they relate to his conduct, health, or associations. And if the order is made in consequence of a refusal to grant a further entry permit to him, the reasons on which that refusal is based may require that as a matter of fairness the person affected should have the chance of responding to them.

1. I do not think that anything that is said in Kioa's Case assists the applicant in the present case. If the assumption be made in favour of the applicant that the Minister was required to observe the rules of natural justice when deciding whether or not to deport her, there is nothing in the evidence to support a claim that the Delegate failed to observe those rules. This is not a case (as was Kioa's Case) in which an allegation of impropriety was taken into account by the Minister without the applicant being afforded the opportunity of answering it. I have carefully perused all the material which was before the Delegate of the Minister at the time the deportation order was signed. There is nothing in that material which, consistently with the above dictum of Mason J., should have been referred to the applicant prior to the making of the decision to deport her. As his Honour said later in his judgment:
   
   

"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)."

The applicant was given an adequate opportunity of placing before the Delegate any material that she thought might support her application. This opportunity was accepted, and due consideration was given to the representations made on her behalf, and on her own statements in support of her application.

1. However, it is argued on behalf of the applicant that the statement made in the last sentence of the letter of 19 November 1985 shows that the Department pre-judged the subsequent application for resident status and that a breach of natural justice occurred in connection with the making of the decision to deport the applicant because that decision had been effectively made on 19 November before she had placed before the Delegate all the material upon which she relied. I do not think this argument is valid. The statement made in the letter of 19 November was made in the light of the circumstances as they then existed. The author of that letter was Mr C.V. Robson, and no doubt the letter reflected the view which he then took of the merits of the applicant's case. The application for resident status was dealt with by Mr J.R. Tuchin, the Acting Director of the Immigration Branch. There is nothing to show that he did not give the application fresh and independent consideration. Further, the decision to deport the applicant was made by Mr W.J. Gibbons, and the departmental file makes it plain that his decision was based upon a recommendation made to him by two officers other than Mr Robson. I therefore do not think there is any basis for saying that the statement made in the last sentence of Mr Robson's letter of 19 November indicates that there was any infraction of the rules of natural justice in the making of the decision to deport the applicant.

2. The next ground upon which relief is sought is that procedures that were required by law to be observed in connection with the making of the decision to deport the applicant were not observed. It was argued that the applicant was entitled to have her application considered by the Immigration Review Panel and that the Minister's failure to refer her application to the Panel vitiated his decision.

3. The nature and constitution of the Immigration Review Panel were considered in Minister for Immigration and Ethnic Affairs v Akbas (Sweeney, Morling and Jenkinson JJ. - 25 July 1985, unreported). As is pointed out in that case, the Immigration Review Panel does not have any statutory basis. It is a body set up administratively to advise the Minister on applications made to him from time to time by persons seeking permanent residence in Australia. For the guidance of persons who wish to have their cases reviewed by the Panel, the Minister has issued a document styled "The Review Rights", in which are listed what are described as twelve Review Rights. The applicant claims that Review Right 4 applied to her case. That Right is expressed to apply to "refusal of permanent residence to a person illegally in Australia who is eligible for consideration under the provisions of Section 6A of the Migration Act".

1. In Akbas' Case the Court was of the unanimous opinion that Review Right 4 did not apply to a person illegally in Australia who does not hold a temporary entry permit. It is unnecessary in the present case to repeat the reasons given by the Court in Akbas' Case for arriving at that decision. The applicant does not hold a temporary entry permit and is illegally in Australia. Sub-section 7(3) of the Migration Act provides, inter alia, that upon the expiration of a temporary entry permit the person who was the holder of the permit becomes a prohibited non-citizen unless a further entry permit applicable to him comes into force upon that expiration. Since Miss Manuelpillai did not obtain a further entry permit upon the expiration of the temporary entry permit issued to her on 23 October 1985 and which expired on 26 October 1985, she has been a prohibited non-citizen in this country since the last-mentioned date. This being so, she cannot bring herself within the provisions of para. 6A(1)(e) as she is not the holder of a temporary entry permit which is in force. The mere fact that there may be strong and compassionate or humanitarian grounds for the grant of an entry permit to her is not a sufficient basis for the making of an application under that paragraph.

2. It therefore cannot be said that the Minister erred in any way in not referring the applicant's case to the Immigration Review Panel since her case was ineligible to be considered under Review Right 4.

3. It should be added that even if the applicant's case had fallen within Review Right 4, it does not follow that she would have been entitled to relief in the present application. As I have observed, there is no statutory basis for the Immigration Review Panel. This being so, I do not think it can be said that the procedure of referring the application to the Panel was one "required by law to be observed in connection with the making of the decision" - vide para. 5(1)(b) of the Judicial Review Act.

4. The third ground upon which relief is sought is that the decision to deport the applicant was an improper exercise of power in that, in arriving at his decision, the Delegate failed to take into account relevant considerations and took irrelevant considerations into account. The relevant considerations which, so it was alleged, were not taken into account were the existing conditions being faced by the Tamil community in Sri Lanka, and the especially difficult circumstances which the applicant would find herself in were she to be returned to that country. In this respect it was argued that the fact that the applicant had been living abroad for some time would be regarded with suspicion by the Sri Lankan authorities, who might regard her absence abroad as indicating support by her for the Tamil separationist movement. The irrelevant consideration which it was submitted was taken into account was that the applicant was not a member of a political party. As I understood this part of the argument, the submission was that the fact that the applicant was not a member of a political party would not diminish the dangers and disadvantages which she would encounter should she return to Sri Lanka. Another irrelevant consideration which, so it was alleged, was taken into account was that the applicant would not suffer hardship greater than that which would be suffered by other Tamils were she to be returned to Sri Lanka.

5. I do not think that the evidence establishes that the Delegate failed to take into account those matters which the applicant claims were relevant to be considered. All the material which was submitted on behalf of the applicant appears to have been considered. It is true that the Delegate may not have placed as much weight on the various factors relied upon by the applicant as she would have liked, but that is not to say that he failed to have regard to them. It is also true that it was noted on the information supplied to the Delegate that neither the applicant nor any member of her family had been involved with any political party or organisation. I do not think this can be said to be an irrelevant consideration. It is not difficult to understand that active participation in the affairs of a political party espousing Tamil causes might be relevant in determining whether a person being returned to Sri Lanka might encounter political or other disabilities. Likewise, non-participation in the affairs of such a political party might also be relevant. In any event, the evidence does not establish that the fact of the applicant's non- participation in political activities played any part in the Delegate's decision that she be deported.

6. As Deane J. said in Sean Investments v Mackellar (1981) 38 A.L.R. 363 at pp 374-375:
   
   

"As has been seen, a failure to take a relevant consideration into account in the exercise of a power is, under s.5(1) and (2)(b), a permissible ground for attacking a decision pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977. This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account. In this regard, I consider that the following comments of the United Kingdom Court of Appeal (Megaw, James and Geoffrey Lane L JJ) in Elliott v Southward London Borough Council (1976) 2 All ER 781; (1976) 1 WLR 499 at 507, in relation to a local authority, are appropriate in respect of the recommendations of the Committee and the decision of the Minister in the present case: 'It is clear that the matters which the local authority should consider ... vary from case to case. It is not for the court to prescribe a list of matters which must always be considered or to prescribe which factors should be given more weight than others. It is worth repeating that the function of the court, where such issues are raised, is not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decision has acted in accordance with the statutory provisions.'

In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circum stances, bound to take into account for there to be a valid exercise of the power to decide."

1. In my opinion these observations are relevant to the circumstances of the present case.

2. Since no basis has been shown for the making of an order of review on the application of Miss Manuelpillai, her application must be dismissed. Whilst there are some slight differences in the facts upon which the other applications are based, they are not such as to lead to different results in those cases, and those applications must also be dismissed.