Surinakova, G. v Minister for Immigration, Local Government & Ethnic Affairs

Re: GABRIELA SURINAKOVA
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. G293 of 1991
FED No. 771
Administrative Law - Immigration
(1991) 33 FCR 87

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

CATCHWORDS

Administrative Law - judicial review - whether errors in report considered by Immigration Review Panel infect final decision by delegate to Minister - relevance of events occurring after initial decision to review under ADJR Act - whether failure to take into account relevant consideration an error of law.

Immigration - refusal to grant resident status on strong compassionate or humanitarian grounds - meaning of strong compassionate or humanitarian grounds - relevance of non-marriage situation - discretion of decision maker - applicant's position altered between date of application and date of decision - whether decision maker required to consider historical matters or act on up to date information - relationship between ss.6 and 6A Migration Act 1958 - relevance of policy to s.6A.

Administrative Decisions (Judicial Review) Act 1977

Migration Act 1958: ss.6, 6A

Judiciary Act 1903: s.39B

HEARING

SYDNEY

#DATE 4:12:1991

Counsel and Solicitors S.J. Gageler instructed by
for Applicant: Elsworthy Jones

Counsel and Solicitors R.M. Henderson instructed by
for Respondent: the Australian Government Solicitor

ORDER

The decision of the delegate of the respondent made on or about 14 May 1991 to reject the applicant's application for review of the decision made on or about 8 February 1991 for the grant of an entry permit be set aside.

The matter be remitted to the delegate of the respondent to reconsider in accordance with law.

The respondent pay the applicant's costs of the application.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant, Gabriela Surinakova, seeks judicial review pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") of a decision of the Minister for Immigration, Local Government and Ethnic Affairs, ("the respondent") made by a delegate to reject the applicant's application for review of a decision made on or about 8 February 1991 for the grant to her of an entry permit. The jurisdiction of the court is also invoked under the provisions of s.39B of the Judiciary Act 1903.

The applicant is a national of Czechoslovakia. She entered Australia as a visitor on 3 April 1989, when almost 24 years of age. The entry permit granted to her at that time was valid until 3 October 1989. She came to Australia to care for her aged and ill grandparents who, at that time, lived in Sydney and were naturalised Australian citizens. The need for her to come to Australia was, she says, urgent at the time.
On 5 July 1989, she applied for the grant to her of resident status on the basis that there were "strong compassionate grounds" for the grant of that status to her. The circumstances upon which she relied, as supported by her grandparents in that application, were the need for her to support her grandparents in their illness. She said in the application that she expected those circumstances to continue for as long as her grandparents lived. She referred to the circumstances that she would be considered as a deserter in her own country and would have difficulty in obtaining future advancement in her employment if she returned. She sought, at the same time, a further entry permit, prior to the expiry of the visitor's entry permit.
For some reason not explained, the consideration of her application was somewhat protracted, and it was not until 8 February 1991 that she was advised, in a letter of that date, that her application had been rejected. It is not necessary to detail here the grounds given for that decision. Suffice it to say that the actual decision was in the following terms:

"My conclusion based on the findings on material questions of fact is that all the circumstances, considered separately and cumulatively do not amount to strong compassionate or humanitarian circumstances within the meaning of section 6A(1)(e) of the Migration Act, 1958. No grounds are evident for the grant of resident status under any other part of section 6A(1) of the Act, and there are no features in this case which indicate that the application of normal policy would be unreasonable or unjust. The grant of resident status is REFUSED. A further temporary entry permit is REFUSED. Permission to work is REFUSED."

By the time that decision came to be made, both of the applicant's grandparents had died, her grandfather on 5 August 1989 and her grandmother on 12 November 1989. The political situation in Czechoslovakia also changed, at least to some extent.
By letter dated 7 March 1991, the applicant's then solicitors sought, on her behalf, a review of the decision refusing her permanent residence. In that letter, which was accompanied by a detailed application for reconsideration, the solicitors said, inter alia:

"Ms Surinakova has developed very close ties with Australia, having made many friends and become an integral member of the community. This is supported by the enclosed documentation. She has developed a close relationship with an Australian man..."

The application form, which continued to rely upon the existence of strong compassionate or humanitarian grounds, included a statutory declaration by a Mr Ivan Pacak in the following terms:

"I have known Gabriela Surinakova for a few months. My first contact with Gabriela was made in the Slovak Church at Lidcombe. I have the privilege to take her to church on Sundays, and wish to maintain it. I have been seeing Gabriela after my night lectures, during which time personal feelings and ideas were discussed over coffee. A certain fondness has crept into our relationship. However, that relationship has been unable to culminate considering Gabriela's current predicament.

I solemnly believe that given time, a more genuine and lasting relationship would evolve. It would be very sad and an unpleasant feeling for me to bear, if we both were denied the opportunity."

In her own statement accompanying the application, containing some nineteen paragraphs, the following paragraph (para. 14) appears:

"I have also developed a close relationship with n (sic) Australian man through my local Church

(sic). We see each other regularly. I would be very upset if we were separated."

Also included with the application was a report of a psychiatrist which set out, inter alia, what, no doubt, is a second-hand version of matters advised to him by the applicant. In the course of the report the psychiatrist said:

"She has become a regular attender at her Orthodox Catholic Church. Three months ago she began keeping company with a young man who also attends the church.

Whilst it is a little early to consider marriage, she said that this was definitely a possibility, although she would be unhappy about marrying him if she had not obtained residency status in her own right. She says she does not want him to think that she might be trying to `use him to stay'."

That report is dated 25 March 1991.

The application for reconsideration ultimately resulted in the decision now challenged, maintaining the initial refusal to grant residency status. The decision was communicated in a letter dated 14 May 1991 to the applicant, which letter is relevantly in the following terms:

"I refer to your application for Reconsideration by the Immigration Review Panel of a decision refusing the grant of resident status in Australia. The review was conducted by the Immigration Review Panel, which examined the requirements of relevant legislation and Government policy and considered all the available evidence. The Panel took into account the particular circumstances of the case, including the information given in your request for review and in a report provided by the department. The Panel's recommendation was that the refusal decision should be maintained. A delegate of the Minister of Immigration, Local Government and Ethnic Affairs studied the report of the Immigration Review Panel and the other information available on the case. The Panel's recommendation that the refusal decision should be maintained was accepted. The enclosed papers set out the relevant policy issues and explain the reasons for the decision. They will help you to understand why the refusal decision has been maintained."

Accompanying that letter was a short note to the Minister from the Immigration Review Panel, attaching, inter alia, a document referred to as the "Departmental report of 10/4/91". That note says that the Panel has considered the matters raised in the application and the appeal and the Departmental report and had found no grounds upon which the Departmental decision should be reversed. Also included, presumably as part of the explanation for the reasons for the decision, was the Departmental report which is in handwriting. That report, which was the subject of criticism before me, set out, inter alia, matters of history. In particular, it commented upon various matters that had been raised in the application and rejected them as irrelevant to the application on the grounds of strong compassionate or humanitarian grounds. The report in full, reads as follows:

"Applicant arrived in A/A as a visitor on 3/4/89 and was granted a TEP valid to 3/10/89. She applied for GORS on 5/7/89 under the special need relative provisions of policy. Her grandparents were elderly and unwell and she wished to remain in A/A and care for them. Her grandfather passed away on 5/8/89 and her grandmother on 12/11/89. The applicant and her mother in Czechoslovakia were the beneficiaries. The mother appears to have transferred her share to her daughter (F.46.47).

The applicant was interviewed on 25/1/91 (Folios 61-62). The application was assessed in detail (Folios 68-71) but refused. An ARD was lodged 8/3/91. Letters supporting the application are at Folios 92-105, a submission from the applicant is at Folios 106- 109 and another from her solicitor at Folios 115-118.

The applicant came to A/A as a visitor and was well aware of the conditions of her visa issue. She did not apply for an extension to this visa but chose instead after 3 months in A/A to stay permanently and applied accordingly. It is quite understandable that she would wish to remain in A/A for as long as her assistance was required by her grandparents. Sadly they both passed away within 7 months of her arrival. She had expected to stay in A/A for at least 6 months. It is not correct to state (F.117) that she had any expectations whatsoever that she would be entitled to remain in this country. It is not realistic to remain or expect to remain in any country in order to care for grandparents' graves. The applicant has no direct family here, her parents and 3 siblings all reside in Czechoslovakia. Ownership of property in A/A confers no right of residency upon the owner. It is not accepted that the applicant has closer ties to A/A after only 2 years of her almost 25 years here. It is appreciated that the applicant was distressed following the deaths of her grandparents, however this was more than 15 months ago. One would feel that she would seek the solace of her own family. It is not accepted that the GORS application would have been successful had it been processed prior to the death of the grandparents. It is claimed that the applicant would meet current migration requirements - if this is so then it is open to her to apply for migration through the normal channels following her return to her own country. The applicant has mentioned her close friendship with an Australian resident. As she is not in any marriage situation consideration cannot be given on the basis of this relationship. It is appreciated that the applicant has developed great fondness for this country, and, having now inherited property, would like to remain here. Nevertheless there are no circumstances which would warrant consideration under 6A(1)E. She is not eligible to apply under 6A(1)D or other sections of 6A(1). She may be distressed at the prospect of departing from A/A but this is not a medical condition which could alter the situation. Visitor visas are not intended to be used as a means of circumventing normal migration requirements. The current situation in Czechoslovakia may not be as desirable as one would wish but passports are now available and citizens may travel freely. Certainly the country is far more democratic than previously. The applicant will be free to come and go from her homeland. She previously worked there for 2 different Govt. Departments. It is appreciated that work may be difficult but she now has a substantial financial cushion from this country. This application does not appear to be one for approval.

Additional information was received at Folios 124-139.

Folios 124-134 consist of letters of support for the application from Mr Ted Mack M.P. and friends of the applicant. However no new material is enclosed.

Folios 135-139 consists of a covering note from the applicant's solicitor (F.139) and a report from a consultant psychiatrist (F.135-138). Folio 139 suggests that the applicant had a reasonable expectation that she would be granted residency in A/A after living here for a `lengthy period'. This `lengthy period' is 2 years - the applicant is almost 25 years of age. Her ties with her home country must be considered to be stronger.

The psychiatrist's report states that the applicant is `morose and mildly depressed'

(F.135). She does not appear to be having any treatment at all. She is depressed at the thought of returning to Czechoslovakia and economic prospects there. It is appreciated that the applicant enjoys living in A/A but the fact is that she came here purely for a visit. She was well aware that this inferred no right of residence here. It is not true that she would have been refused for migration solely because she was a single person (she would need to meet the requirements of the points test) nor that she was refused residence here solely because she has no relations in this country

(F.137). The reason is that she is expected to honour the conditions of her visit visa. She has inherited property which will be of enormous economic assistance to her in her homeland. Tending her grandparents graves cannot be considered grounds for acceptance under 6A(1)E. The applicant does not meet any of the requirements for acceptance under 6A(1)E."

Counsel for the applicant submitted that the decision should be set aside on one or more of 5 bases:

(1) That the Minister, in making his decision, had failed to take into account the relationship that existed between the applicant and Mr Pacak.

(2) That the Minister's decision involved an error of law because it proceeded on the basis that the close relationship of the applicant with an Australian resident, not being a "marriage situation" could not give rise to strong compassionate or humanitarian grounds within the meaning of s.6A(1)(e) of the Migration Act 1958 ("the Act").

(3) That the Minister had failed to take account of the strength of the factors which supported the applicant's claim at the time of her original application.

(4) That the Minister had failed to weigh the circumstances of the case as a whole, but rather had considered individual matters in isolation and therefore his decision was vitiated as involving an error of law.

(5) That in considering the question of whether there were strong compassionate or humanitarian grounds, the respondent had taken into account an irrelevant consideration being a self-imposed policy that a person entering Australia on a visitor's visa must ordinarily be required to depart Australia before applying for a permanent entry permit.

Before turning to these submissions, it is desirable to note first a submission advanced by counsel for the respondent, that the Departmental report which I have quoted, should be treated as virtually irrelevant. It was said, that even if errors of law could be shown in that report, the person who wrote the report was not the decision-maker. Rather, it was pointed out, that report was considered by the Immigration Panel which, in turn, made a recommendation to the Minister, whose delegate, in turn, made a decision and it should not be inferred that any mistakes made by the writer of that report infected the ultimate decision.
There are two answers to this submission. The first is, as the letter to the applicant from the Department of Immigration communicating the adverse decision to her points out, the relevant reasons for the decision were contained in the papers enclosed with that letter. The only reasons that are actually shown in any enclosed papers, are those that are set out in the handwritten document, being the Departmental report. In other words, the writer of the letter, who can be presumed to be acting with the authority of the delegate who made the decision, specifically adopted the reasons in the Departmental report as the reasons of the delegate.
Secondly, even if the letter of 14 May 1991 should not be taken as an adoption by the delegate of the reasons contained in the Departmental report, that Departmental report constitutes a recommendation that was made to the Immigration Review Panel. That Panel considered the Departmental report and the application and determined to maintain the original Departmental decision. It so recommended to the Minister, whose delegate can be assumed to have considered the Departmental report, which in fact was attached to the recommendation of the Immigration Review Panel. In these circumstances and in the absence of any evidence to the contrary from the delegate, it can be inferred that the Immigration Review Panel adopted the recommendation of the Departmental officer contained in the Departmental report and that in turn, the delegate of the Minister did the same. Indeed, the failure of the delegate to give any evidence as to the reasons for his decision enables me more confidently to draw that inference; cf Jones v Dunkel (1959) 101 CLR 298; Citibank Limited v Federal Commissioner of Taxation (1988) 88 ATC 4714 (affirmed on this point at (1989) 20 FCR 403) and Mohammed Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Hill J, 12 December 1989).

Accordingly, I am of the view that any error of law which affects the recommendation that ultimately went to the delegate can be taken as equally infecting the delegate's decision itself.
The failure to take into account the applicant's relationship with Mr Pacak
Counsel for the applicant submitted that it was clear that the respondent, in making its decision, had taken no account of the relationship between the applicant and Mr Pacak. That this was so was to be seen from the passage in the Departmental report which dismissed the relationship because it was not a "marriage situation". It was clear from the material before the decision-maker that the relationship between the applicant and Mr Pacak had been formed in an atmosphere of church society and it was said to be understandable that both the applicant and Mr Pacak had expressed their relationship in the way they did.
The applicant, in her case, sought to adduce evidence on affidavit that in the meantime Mr Pacak and the applicant had become engaged. That evidence was objected to by counsel for the respondent on the basis that it was not material that was before the decision-maker and accordingly was irrelevant to the application under the ADJR Act. With that submission I must agree. In determining whether any of the grounds of review contained in s.5(1) of the ADJR Act can be made out, the court is limited to considering matters put before the decision- maker himself, and cannot take into account material not then known to any of the parties. This is a concomitant to the principle that the proceeding before the court is one of judicial review and it is not for the court itself to make a decision, but rather to determine whether some error of law or principle is to be found in the decision-making process itself.
Nevertheless, I do not think that the evidence is entirely irrelevant. There may be occasions where evidence of events subsequent to the decision may have relevance, not in the sense that those events are matters which should have been taken into account at the time of the decision was made, but rather as showing that the probability of the subsequent event happening is one that could be taken into consideration. By way of analogy, reference might be made to a decision which involved a matter of valuation. It is clear enough that subsequent events cannot affect a valuation made as at a particular date. However, evidence of subsequent events is admissible as showing the probability that such events may happen; cf Weldon v Union Trustee Co of Australia Ltd (1925) 36 CLR 165; Trustees Executors and Agency Co Ltd v Commissioner of Taxes (Vic) (1941) 65 CLR 33 and Longworth v Commissioner of Stamp Duties (1953) 53 SR (NSW) 342. I would accordingly admit the evidence. The weight, however, in the present circumstances that could be given to such evidence is certainly very slight.
The applicant, in her application, certainly couched the information of her relationship with Mr Pacak in rather neutral terms. Counsel for the applicant preferred to put it that the applicant and Mr Pacak had both described their relationship in terms of some "delicacy". If there were no more than the material before the decision-maker as to the quality of the relationship expressed in the terms it was and that relationship had been taken into account by the decision-maker, I would have had no hesitation in concluding that the circumstances were not so compelling as to result in an unreasonable decision. There is, however, perhaps more which is to be found in the applicant's second submission.
That the applicant in ignoring the relationship with Mr Pacak committed an error of law
It will be recalled that the Departmental report put to one side the relationship with Mr Pacak because the applicant was not in any "marriage situation" with him. It was on this basis that the report said that consideration could not be given to the existence of this relationship. To the extent that this comment was made in the context of an application for residency on the basis of strong compassionate or humanitarian grounds, I am of the view that this constituted an error of law which vitiated the decision.
It is obvious that in considering whether there are strong compassionate or humanitarian grounds regard must be had to the whole matrix of facts which would be relevant to the existence of such grounds. No one matter will necessarily be determinative and it may be necessary to consider together a whole series of matters which cumulatively reveal the existence of the necessary strong compassionate or humanitarian grounds.
In Dahlan (supra) I considered the meaning of the ground set out in s.6A(1)(e). I said in that case (at 24):

"The courts have not sought to create an all embracing test of what constitutes strong compassionate or humanitarian grounds; nor would such an exercise be either possible or desirable. The words are very broad. Compassion is an emotion akin to pity; it is felt when the circumstances of others excite our sympathy so that we suffer with them. Hence compassionate grounds will exist when the circumstances of an applicant are such as to enliven in the reasonable man his compassion. By humanitarian grounds are meant no doubt grounds the denial of which would be inhumane having regard to the ordinary views of mankind. The adjective `strong', involves as French J pointed out in Damouni v. Minister of State for Immigration, Local Government and Ethnic Affairs `a judgment that the relevant hardship be substantial'. I agree with his Honour in that case that there is little point to be gained by examining the subtleties of the differences between `compassionate' and `humanitarian' for both words in the collocation invite, as his Honour said `a normative judgment'."

Counsel for the respondent conceded that the existence of a relationship with a person outside a marital relationship was a relevant matter to take into account in determining whether strong compassionate or humanitarian grounds existed. However, she pointed to what was said by Mason J in Minister for Aboriginal Affairs v Peko Wallsend (1985-6) 162 CLR 24 at 39-40 to found a submission that the Minister, or his delegate, was not bound to take that matter into account in a case such as the present. In that case his Honour set out a number of propositions drawn from the decided cases concerning the ground of failure to take into account a relevant consideration as follows:

"(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is `bound' to take into account in making that decision ...

(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard ... By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision ..."

Where the issue for determination by a decision-maker is whether there are strong compassionate or humanitarian grounds for the grant of an entry permit, the decision-maker does not have a discretion to determine whether or not to take into account a particular matter. The context of the decision which he is bound to make is not in its terms unconfined so that its scope is to be found in the subject-matter, scope and purpose of the statute itself. The decision-maker is required to make a finding on what is a question of fact, once the meaning of the collocation of words strong, compassionate and humanitarian grounds is understood; cf Chan v Minister of State for Immigration, Local Government and Ethnic Affairs (Ryan J, unreported, 8 December 1988). In making that decision, he is required to consider all relevant material which is placed before him giving, in the words of Gummow J in Khan v Minister for Immigration, Local Government and Ethnic Affairs, (unreported, 11 December 1987, at 11-12):

"...proper, genuine and realistic consideration to the merits of the case."

If, therefore, a circumstance be a relevant circumstance in the matrix of facts necessary to be considered to reach the conclusion of fact that strong compassionate or humanitarian grounds exist, then the decision-maker is bound to take this circumstance into account, and his failure so to do will constitute an error of law. The present is such a case.
In the present case, there is great difficulty in understanding precisely what the decision-maker meant by his comment confining the matters relevant to his decision to relationships involving a "marriage situation". Counsel for the respondent submitted that the passage in question was not directed at the issue whether a strong compassionate or humanitarian ground existed, but rather to a consideration of whether the applicant had made out a case under some other paragraph of s.6A(1). The only relevant paragraph in s.6A(1) could be paragraph (b) which relates to whether the non-citizen in question is the spouse of an Australian citizen or of the holder of an entry permit. A difficulty with this submission is that the immediately following lines of the report continue to deal with s.6A(1)(e) and it is only some five lines later that the writer refers to the fact that the applicant does not fulfil any of the criterion in other parts of s.6A(1). The implication is strong. The reference to "marriage situation" is made in the context of the decision under s.6A(1)(e), rather than as submitted as a vague reference to s.6A(1)(b). This inference is again made easier to draw by the failure of the decision-maker himself to give evidence.
I have anxiously considered the question whether, in the present circumstances, it may be said that the failure to take into account the relationship with Mr Pacak and the error of law in confining relevant relationships to those which are marital, was nevertheless a matter that was so insignificant that it could not have materially affected the decision. However, I am mindful of the limited role of the court in judicial review in so doing. It is not the function of the court to substitute its own decision for that of the administrator. Although it is possible that the decision-maker would not have arrived at any different conclusion before him, having taken into account the relationship of the applicant with Mr Pacak, I do not think it can be said that in considering the whole matrix of facts that that relationship could not have made any difference to the conclusion. The weight to be given to each factor in that matrix will, of course, be a matter for the decision-maker himself. In particular I do not think it can be said that the error made by the decision-maker is so manifestly insignificant that it could not have affected his decision.
It follows, therefore, in my view, that the decision made should be set aside and it should be remitted to the decision-maker to determine again in accordance with law.
The failure of the decision-maker to take into account the strength of the applicant's case at the time of the original application
It was submitted, on behalf of the applicant, that at the time of her original application she had had a very strong case for the existence of the necessary strong compassionate or humanitarian grounds in that she was required to look after her aged and ill grandparents. Although her application was made during the course of their lifetime, a considerable period of time had elapsed before it was decided. During this time circumstances had changed. It was said that the decision-maker was required to take into account the totality of the situation in which the applicant found herself, including these historical matters. It was conceded that the decision-maker was required to act on up-to-date information, but it was said, nevertheless, that he should have taken into account the historical circumstances which led to the situation in which the applicant found herself at the time of the decision. The implication was, at least, that if the lapse of time could be seen to have worked injustice to the applicant, the failure to take that fact into account involved a failure to take into account a relevant matter and vitiated the decision.
With respect I do not understand this submission. The decision presently impugned was made in the context of a review of a decision refusing to grant to the applicant resident status. In conducting that review, as the applicant concedes, the decision-maker was bound to take into account the situation at the time he made his decision. Thus, if some fact had intervened favourable to the applicant between the date of the original decision and the date of the decision on review, the decision-maker would have been bound to take into account that fact in favour of the applicant. Conversely, if circumstances changed in this period adversely to the applicant, then that fact too would need to be taken into account by the decision-maker in reaching his conclusion.
Whether or not it be the case that the applicant had a strong case at the time of her original application, a matter I do not find it necessary to decide, the fact is that the death of her grandparents was a fact that had intervened between the time of the original application and the time of the decision on review presently under attack. No doubt it can be said, in some abstract way, that the fact that the decision took a long time may have contributed to the circumstances changing. A sense of injustice may, almost always, be seen as accompanying any undue delay of a decision. But in the determination of whether there are strong compassionate or humanitarian grounds (essentially an issue of fact), a sense of abstract justice plays no part. Either there exist at the time the decision is made strong compassionate or humanitarian grounds or there does not.
In my opinion, the decision-maker did not err in law in failing to take into account the historical circumstances as submitted on behalf of the applicant.
The failure of the decision-maker to weigh the totality of circumstances
It was submitted for the applicant that in reaching his conclusion the decision-maker, as illustrated in the Departmental report, had considered a number of individual circumstances to determine whether these circumstances on their own constituted strong compassionate or humanitarian grounds, but had not ever turned to consider the totality of circumstances in combination to test whether strong compassionate and humanitarian grounds existed.
It is true that the writer of the report did not specifically say that he had considered the totality of circumstances and found that the applicant's claim should fail. What the report did was to consider individual circumstances. However, there is nothing on the face of the report that suggests that its writer did not consider the situation as a whole. The conclusion reached was that there were no circumstances which would warrant consideration under s.6A(1)(e). In reaching that conclusion there is no reason to believe that the decision-maker did not consider the totality of circumstances and adopt what counsel for the applicant referred to as a wholistic view.
Whether the decision-maker erred in applying a policy to the factual tests in s.6A(1)(e)
It will be noted that the Departmental report contains reference to the applicant returning to her own country and applying through normal channels for return to Australia. Reference is made to circumventing normal migration requirements. These passages, it may be inferred, arise because of the acceptance by the decision-maker of the policy against what is colloquially referred to as "queue jumping". Details of the policy as enunciated by the Minister of State for Immigration, Local Government and Ethnic Affairs on 17 October 1985 are to be found in the judgment of Davies J in Minister for Immigration, Local Government and Ethnic Affairs v Mayur Kumar and Manju Govind (full court of the Federal Court, unreported, 31 May 1990, at 2-5).
There can be no challenge to a decision merely because a decision was made in accordance with a policy. To ensure consistency of administrative decision-making, it will often be appropriate for a policy to be issued containing guidelines. The policy of the Minister, to which I have referred, is one such example. However, a decision-maker must take care to ensure that he does not slavishly follow a policy and disregard the particular circumstances of a case. As Gummow J said in Khan's Case (supra at 11-12):

"...what was required of the decision-maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy...".

While, no doubt, the Ministerial policy on queue jumping is significant, it may well be that not every case will require the conclusion that the applicant be required to return to his or her own country and then reapply. If the circumstances are such that the application would, if made overseas, immediately be granted and the only consequence of the slavish enforcement of a policy is the incurring of considerable costs, circumstances may exist where the policy should be departed from. But that is not to the point here.
The argument proceeded on the basis of the construction of the provisions of ss.6 and 6A of the Act. It was said that ss.6A and 6A(1)(e) in particular raises purely a question of fact in respect of which no element of discretion arises. In determining whether an applicant is the holder of a temporary entry permit, it is clear enough that any application of Ministerial policy against queue jumping would be irrelevant. So too, in determining whether strong compassionate or humanitarian grounds existed for the grant of an entry permit, no element of discretion is involved to which the policy could be relevant. Policy matters are only relevant to the application of s.6(2) of the Act.

In Minister for Immigration, Local Government and Ethnic Affairs v Mayur Kumar and Manju Govind (supra) I discussed the structure of ss.6 and 6A as they then stood in a judgment with which, on this point, Davies and Foster JJ agreed. I said relevantly (at 20-22):

"Section 6(2) is a general provision conferring a discretion upon an officer to grant to a non- citizen an entry permit. The Act does not seek to limit in any way the matters to be considered by the officer in exercising that discretion and the discretion conferred upon the officer is untrammelled save that it must be exercised having regard to the policy and purpose of the Act...

Section 6A, which qualifies both ss.6 and 7, provides that an entry permit is not to be granted to a person who is a non-citizen after his entry into Australia unless in respect of that person one or other of the conditions referred to in paragraphs (a) to (e) is satisfied. Those paragraphs include cases of territorial asylum, refugee status, strong compassionate or humanitarian grounds as well as the case where the person in question is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit. The obvious purpose of s.6A, when read together with ss.6(2) and 7(2) is to ensure, in the case of a person who has entered into Australia, that the entry permit to be granted under s.6(2) ... will be granted only if at least one of the grounds referred to in s.6A has been made out. Thus in the case of a person ... who is in Australia and seeks to apply for an entry permit, that person must first satisfy the provisions of s.6A before the discretion under s.6(2) is exercised. Not surprisingly therefore, it is customary to refer to an applicant for an entry permit who makes his application in Australia as applying on one of the grounds referred to in s.6A although that may be said to be technically incorrect in that, at least in form, s.6A is expressed as a disqualifying clause by the use of the word `unless' rather than as a qualifying clause. However, its substantial effect is as a qualifying clause although ultimately the application will be determined under s.6(2)."

As I have already indicated, it is clear enough that the decision as to whether or not strong compassionate or humanitarian grounds exist is a question of fact in respect of which no matter of policy can intrude. The submission was that in the passages to which I have referred, the writer of the report had intruded matters of policy, i.e. matters arising under s.6(2) in his decision of the question of fact under s.6A. With respect, I do not think that this is so. It is true that the report addresses, perhaps somewhat indiscriminately, both the issue of strong compassionate or humanitarian grounds on the one hand, and the issue of discretion under s.6(2) on the other. But that does not mean that the decision, as to strong compassionate or humanitarian grounds, was made having regard to the policy or that as a result the decision is vitiated. While it may appear confusing to move from matters relevant to s.6A(1)(e) to matters relevant to s.6(2) without clearly differentiating the two, I do not think that the report demonstrates in this respect any error of law. I should say, that if the writer of the report was purporting to consider the exercise of the discretion under s.6(2), the report might be criticised for failure to draw attention to the numerous statements enclosed with the application illustrating how the applicant had, in the time she was in Australia, performed voluntary work assisting old persons and pensioners as well as working in a kindergarten in a voluntary capacity. No doubt, those would have been matters that should have been weighed in the balance against the Ministerial policy. However, no submission to this effect was made and I refrain form considering it further.
It follows, for the reasons given, that the application should succeed and the matter should be remitted to the delegate to consider again in accordance with law. The respondent must pay the applicant's costs of the application.

[1991] FCA 771

04 DECEMBER 1991