Sundar, Roshni Lata v Hurford, Chris

[1986] FCA 678

Re: ROSHNI LATA SUNDAR
And: CHRIS HURFORD, Minister for Immigration and Ethnic Affairs
No. G504 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.

CATCHWORDS

Administrative Law - Judicial Review - application for review of denial of: further temporary entry permit - concession of voluntary deportation - grant of permanent residence and consequent deportation order - what consideration should be given to policy - whether humanitarian and compassionate grounds available.

Administrative Decisions (Judicial Review) Act 1977 (Cth): s. 5.

Migration Act 1958 (Cth): s. 6A.

HEARING

SYDNEY

#DATE 27:11:1986

Counsel and solicitors for R.B. Wilson instructed by Appellant Levitt Zabow

Counsel and solicitors for P. Roberts instructed by Respondent Australian Government Solicitor

ORDER

The application for review be dismissed.

The applicant pay the respondent's costs of the application.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") for review of four decisions of the Delegate of the Minister for Immigration and Ethnic Affairs made on 16 October 1986, in respect of the applicant, Roshni Lata Sundar, namely:

1. to refuse the grant of a further temporary entry permit;

1. to refuse the grant of permanent residence;

1. to refuse the concession of voluntary departure; and

1. to order deportation.

2. The matter has a long history but the relevant facts may be briefly stated. Nor are they in dispute.

3. Miss Sundar is a citizen of Fiji who arrived in Australia on 27 June 1981. She was granted a temporary entry permit valid for one month. She was later granted two further temporary entry permits, the the second of which expired on 27 December 1981. On 15 October 1982 she was granted a further temporary entry permit valid to 15 October 1983. On 31 March 1982 she applied for permanent resident status. On 24 July 1982 she married a Mr. McIntyre, an Australian citizen. The marriage was unhappy and short lived. Miss Sundar says that because of the conduct of her husband they separated and she left the matrimonial home in February 1983. Proceedings were commenced in the Family Law Court and on 15 October 1985 the marriage was dissolved.

4. On 30 June 1983 Miss Sundar was told by the Department of Immigration and Ethnic Affairs that her application for permanent resident status was refused on the ground that her marriage was no longer "on-going". She was also informed that she was entitled to seek a review of that decision by the Immigration Review Panel (an administrative body not created by statute), but she did not pursue that course. Miss Sundar has been a prohibited non-citizen since 15 October 1983 when her last temporary entry permit expired.

5. Much correspondence has passed between Miss Sundar or her solicitors on the one hand and the Department on the other about her status as a prohibited non-citizen and her application for permanent resident status. On 11 October 1985 Miss Sundar's solicitors sent to the Department a document described as "Enquiry Form as to Resident Status". The status of this document is not entirely clear. Miss Sundar's counsel argued that it was simply a revival of her earlier unsuccessful application for permanent resident status. Whether it answers this description or should be regarded as a fresh application for permanent resident status or, as the Department said in the correspondence between itself and Miss Sundar and her solicitors, that it was simply an enquiry form, is perhaps a matter for argument; but nothing turns on this. In my opinion, it is probably best characterised as a fresh application for permanent resident status.

6. On 11 November 1985 the Department informed Miss Sundar that she did not "satisfy the legal and policy requirements" for a grant of permanent residence. The Department proceeded on the assumption that the document of 11 October 1985 was simply an enquiry form and suggested that she refrain from applying for resident status. On 11 October 1985 Miss Sundar was still lawfully married to Mr. McIntyre as the divorce was not made absolute until four days later (15 October 1985). Subsequently, the Department acknowledged that it was not correct for it to state in its letter of 11 November 1985 that she did not "satisfy the legal and policy requirements" for a grant of resident status. The Department appears to have had in mind para. 6A(1)(b) of the Migration Act 1958 ("the Act") which provides that an entry permit shall not be granted to a non-citizen after his or her entry into Australia unless he or she is the spouse of an Australian citizen.

7. There then ensued further correspondence between Miss Sundar's solicitors and the Department, including interviews with several Departmental officers. This culminated in the decisions made by the Delegate of the Minister to refuse, not only Miss Sundar's request for a further temporary entry permit, but also her request for permanent residence which resulted in the making of a deportation order against her. These decisions are not related to this present case, although they were the subject of earlier litigation in this Court, in early July 1986, which resulted in orders being made by consent revoking the deportation order and the matter being reconsidered by the Department.

8. Miss Sundar's solicitors were then invited to make further submissions on her behalf relating to the questions; first, whether a further temporary entry permit should be granted to her; second, whether she was eligible for the grant of resident status; and, third, whether an order for deportation should be made against her. Representations were made on her behalf by her previous solicitors in a letter to the Department following the revocation of the deportation order on 16 July 1986. The relevant Departmental officer made a submission to the Delegate of the Minister, dated 15 October 1986, recommending that the Delegate refuse the grant of a further temporary entry permit to Miss Sundar, refuse the request for permanent residence, decide against voluntary departure from Australia and sign the attached order for her deportation. The delegate adopted that submission and, on 16 October 1986, made the relevant decisions under challenge in this case. These proceedings were then instituted by Miss Sundar seeking a review of the decisions on one or other of the grounds specified in s. 5 of the Judicial Review Act.

9. The first submission by counsel on behalf of Miss Sundar was that the Delegate, in making all the decisions under challenge, made them contrary to law since they were all made by taking into account paragraph 52 of the submission by the relevant officer of the Department to the Delegate which set out what purported to be the policy of the Minister for Immigration and Ethnic Affairs relating to illegal immigrants. Paragraph 52 of the submission reads as follows:
   
   

"On 17 October 1985 the Minister tabled in the House a comprehensive policy on illegal immigrants. In summary the policy stated, among other things, that illegal immigrants threaten the orderly management of Australia's planned migration program and jeopardise the acceptance of very large numbers of visitors. Management of the migration program relies heavily upon issuing visas and entry permits in good faith to person prepared to abide by the conditions of issue. Persons who are not prepared to go through the normal migration selection process overseas and/or do not enter Australia in good faith are not entitled to abuse Australia's immigration policy and laws at the expense of both unemployed Australian residents and those persons properly pursuing migration overseas. Persons who break Australia's laws, in making their own decisions to endeavour to remain in Australia illegally, must expect to face the consequences including prosecution and removal from Australia."

1. It was submitted that the statement in paragraph 52 as set out above is illegal in that it was held by a majority of a Full Bench of this Court in Tang v. Minister for Immigration and Ethnic Affairs (4 July 1986 unreported) that this policy was contrary to the Act. In that case Davies J., with whose reasons for judgment Evatt J. agreed (but on relevant points Pincus J. dissented) said at p. 11:
   
   

"The policy or practice, which was applied in the present case, of insisting that Mr Tang, the spouse of an Australian citizen, should leave Australia, return to Taiwan and make his application from that country was, therefore, in my opinion, inconsistent with the intent and operation of ss. 6 and 6A of the Migration Act 1958 (Cth). Mr. Tang satisfied the criteria for making application for the grant for permanent residence and his application ought to have been considered on its merits. It is plain from the reasons given by Mr Owen that it was not so considered."

1. Davies J. expressed the opinion that, because Mr. Tang was married to an Australian citizen, he was not disentitled to the grant of an entry permit (see para. 6A(1)(b) of the Act). His Honour approached the case on the footing that the Delegate of the Minister who made the relevant decision to deport Mr. Tang did so because he regarded Mr. Tang as disentitled to apply for an entry permit in that he fell foul of government policy on, what has become known as, "queue jumping", namely, the practice whereby normal migration selection procedures are not adhered to and persons seek to enter or remain illegally in Australia to the prejudice of prospective migrants who abide by the normal procedures of application for entry.

2. Davies J. appears to have taken the view that the "queue jumping" policy was an overriding consideration in the mind of the decision maker such that it debarred him from considering Mr. Tang's case on its merits. However, on any view of the matter, Mr. Tang's case is clearly distinguishable from the present case. First, there is no question in this case that any of the conditions specified in sub-s. 6A(1) apply to Miss Sundar whereas in Mr. Tang's case para. 6A(1)(b) applied since he was married to an Australian citizen. Second, the statement of Government policy expressed in para. 52 of the submission is different in language from and not the same in substance as the understanding of Government policy which the decision maker appears to have had in Mr. Tang's case. Third, the evidence in this case does not support the conclusion that the policy expressed in para. 52 was of overriding importance in the mind of the Delegate. The evidence suggests that it was one of many matters which he took into account in reaching his decisions, as he was entitled to do.

3. Nothing said by Davies J., as I read his Honour's reasons for judgment, suggests that the "queue jumping" policy, as formulated in para. 52 of the submission in this case, would be contrary to sub-s. 6A(1) or any other provision of the Act unless it is treated by the decision maker as having some overriding significance such that an applicant for permanent residence would necessarily be required to leave Australia and apply "in the queue" from his country of residence as a pre-condition for the consideration of his application. The evidence falls far short of this in the present case.

4. The second submission on behalf of Miss Sundar was that the relevant decisions are vitiated because of the statement of Government policy in para. 52 as set out above. It was submitted that there is no evidence that Miss Sundar entered Australia otherwise than in good faith. There are statements in the documents which were before the Delegate when making his decisions stating that Mr. McIntyre, the former husband of Miss Sundar, asserted that she married him for the purpose of enhancing her application for permanent residence in this country. But these assertions are strongly denied by and on behalf of Miss Sundar in the documents which were included in the submission to the Delegate. There is no evidence to suggest that the Delegate, when making the relevant decisions, paid any regard (or any undue regard) to these assertions of Mr. McIntyre. Indeed, if I may say so, this was a most carefully prepared submission to the Delegate which, quite properly, drew his attention to the assertions of Mr. McIntyre and to the counter assertions by and on behalf of Miss Sundar relating to the question whether she entered Australia in good faith or not.

5. Paragraph 61 of the submission states:-
   
   

"The solicitors include submissions entitled 'Allegations by Mr McIntyre' concerning a document headed 'Resident Status Enquiry Form', and suggest that the letter should not be taken into account one way or the other in relation to the matters under consideration. Given that the marriage is over, it appears appropriate to make no findings on the views of either party in this regard in your deliberations."

1. The third submission on behalf of Miss Sundar, again based on para. 52 of the submission, was that the attention of the Delegate should not have been drawn to Government policy (if, indeed, it be such) that:
   
   

"Persons who break Australia's laws in making their own decisions to endeavour to remain in Australia illegally must expect to face the consequences including persecution and removal from Australia."

It was submitted that there was no evidence that Miss Sundar endeavoured to remain in this country illegally at any time. However, the fact is that Miss Sundar was in this country illegally from 27 December 1981 to 15 October 1982 when no temporary entry permit or other entry permit was in force and she has been in Australia illegally since 15 October 1983. She remains here of her own volition. It seems to me that she falls squarely within the statement of Government policy in the last part of paragraph 52; especially as she must have known that she was here with no legal status.

1. Irrespective of this particular question, all that the statements of Government policy in para. 52 demonstrate, is that the attention of the Delegate was drawn to those statements. What weight was given to any of them was entirely a matter for him. It is well established that it is no function of this Court, in exercising its power of review under the Judicial Review Act, to substitute its own views as to the weight which should be given to relevant matters by decision makers unless it is demonstrated that one of the grounds of review is made out. That is not the case here.

2. The fourth submission on behalf of Miss Sundar was that the Delegate erred by not taking into account, in making his decisions, any humanitarian and compassionate considerations in favour of Miss Sundar. It was submitted that the submission to the Delegate, upon which he relied to make his decision as appears from his statement under s. 13 of the Judicial Review Act, proceeded upon the correctness of the statement in para. 54 of the submission that para. 6A(1)(e) of the Act was not available to Miss Sundar as she was not the holder of a current temporary entry permit. Paragraph 54 states:
   
   

"The latest submission of 15/8/86 from Ms Sundar's solicitors states inter alia at the penultimate paragraph 'Because of the substantial detriment that will be suffered by Mr Roach if Ms Sundar is required to leave Australia, we suggest that there are strong humanitarian and compassionate grounds on entry permit. In addition our client will lose all prospects of obtaining a verdict in her Family Court proceedings if she is forced to leave Australia prior to the resolution of those proceedings'.

From this it would seem that the primary request is for Ms Sundar to be granted an entry permit for permanent residence in Australia on strong humanitarian and compassionate grounds. Insofar as reference to those grounds in the solicitor's submission is related to the terms of section 6A(1)(e) of the Migration Act, I submit that recourse to that provision of the Act is not available to Ms Sundar as she is not the holder of a temporary entry permit which is in force."

It was submitted that, whilst it may be correct to say that Miss Sundar could not bring herself within para. 6A(1)(e) of the Act unless she was both the holder of a temporary entry permit and had available strong humanitarian and compassionate considerations, nevertheless the Delegate should have taken into account those considerations generally in the exercise of his discretion. This argument must fail. Plainly, unless one of the grounds of qualification in sub-s. 6A(1) applies, there is no point whatever in the decision maker going through an artificial process of determining an application for an entry permit knowing that at the end of the process he will be bound by law to refuse the grant of an entry permit because of the absence of one or more of the qualifying factors in the sub-section.

1. Also, one must read para. 54 in conjunction with paras. 53 and 64. The paragraphs read as follows:
   
   

"53. While Ms Sundar has the status of a prohibited non-citizen it would be possible to alter that status in Australia by the grant of a further temporary entry permit. An application in this regard was lodged by Ms Sundar on 3/12/85 was rejected on 3/1/86 in Sydney and is currently under challenge in the Federal Court.

. . .

64. As mentioned previously it remains possible to regularise the Applicant's status in Australia by the grant of a further TEP. The grant of such an entry permit would bring Ms Sundar to the threshold of consideration under section 6A(1)(e) of the Migration Act 1958 for the grant of permanent residence on strong compassionate and humanitarian grounds which has been sought. In this regard you are invited to balance the factors both for and against the Applicant as discussed above taking into account relevant policy considerations. In all the circumstances you may find that the grant of a further temporary entry permit is inappropriate and that Ms Sundar should be refused permanent residence."

Indeed, one must read these two paragraphs in the context of the submission as a whole including its many annexures. Upon their true construction they simply suggest to the Delegate that, since Miss Sundar does not fall within any of the paragraphs of sub-s. 6A(1), especially para. (e), she cannot obtain an entry permit.

1. In para. 64 it is stated that it may still be possible to regularise Miss Sundar's status in Australia by granting a further temporary entry permit to her. If this was done it would bring her within the first limb of para. 6A(1)(e) and, provided she fulfilled the second limb, namely, that were strong compassionate and humanitarian grounds, she would be entitled to be considered as a person to whom an entry permit may be granted. Paragraph 64 is simply directed to the question of the grant of a temporary entry permit and suggests that the Delegate first balance the various factors for and against Miss Sundar as mentioned elsewhere in the submission and second take into account the relevant policy considerations. It is true that para. 64 relates the grant of a further temporary entry permit to the question of permanent resident status; but I see no vice in that. Nor do I see any conflict between paras. 54 and 64 notwithstanding that it was suggested by counsel for Miss Sundar that such conflict did exist.

2. It is plain that the Delegate could have granted a temporary entry permit and then, provided the second limb of para. 6A(1)(e) was established, grant an entry permit if, in all the circumstances, he considered it was appropriate to do so. The Delegate was aware of this possible use of the grant of a temporary entry permit, but he decided not to take that course.

1. The fifth submission was that the Delegate erred in making his decisions, in particular, in deciding to refuse the grant of a temporary entry permit because he should have taken into account the whole of the relevant history of the matter. That history was said to be that Miss Sundar was the previous holder of valid temporary entry permits, that she had lodged her initial application for permanent residence on 31 March 1982 at a time when she was not a prohibited non-citizen but was the holder of a current temporary entry permit and that at such a time compassionate and humanitarian grounds were available to her but were ignored by the Delegate. I make no finding of fact as to whether these grounds were available to her at that time or, indeed, at any time. I see no substance in this submission. It seems clear to me that the Delegate took into account all matters relating to the history of Miss Sundar when making his various decisions and, even if he had not taken into account the history of the matter to which I have just referred, in making his decision, he did not err in law in that respect. This argument was advanced in more than one form, but I see no good purpose in expressing its refinements. I have considered all the arguments and in the circumstances find that none of the challenges to any of the decisions of the Delegate have been established.

2. I must say that the submission to the Delegate in the present case was very comprehensive. It contains sixty-seven paragraphs and many annexures. It has been said more than once by Judges of this Court that it would be wrong for Courts either to scrutinise submissions to Ministers or Delegates of Ministers as if they were wills or conveyances or to analyse words and phrases with an eye keen to detect error. The decision making process must be examined fully and carefully and, if error be found, it must be exposed with all the attendant consequences; but the decision making process must be examined sensibly. I must say that in this case, having carefully examined the submission to the Delegate and the various attachments, together with the s. 13 statement, in my view Miss Sundar's case has been given careful consideration by the Department and no grounds of attack have been established. Everything that could be said in support of her case has been said by her counsel, but I am not persuaded to accept those submissions.

3. Finally, I should say that in matters of this kind the Court's primary function is to determine if the decisions are contrary to law or are vitiated by a denial of the rules of natural justice. It is not the Court's task to review the decision on the merits and substitute its own discretionary findings for those of the Minister or the Delegate. These are hard cases, generally involving the interplay of high human emotions; but the Court's task is to decide these questions dispassionately.

The application for review is dismissed with costs.