Tam. L.Y. v Minister for Immigration and Ethnic Affairs

[1987] FCA 774

Re: LI YUN TAM
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. G702 of 1987
Migration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Migration - non-citizen - application for entry permit - strong compassionate or humanitarian grounds - application refused - no denial of natural justice - no failure to take into account relevant matters - application for judicial review - application refused.

Migration Act 1958, s. 6A(1)(e)

HEARING

SYDNEY

#DATE 17:12:1987

ORDER

Application dismissed.

Applicant to pay respondent's costs.

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

JUDGE1

This is an application by Miss Tam under the Administrative Decisions (Judicial Review) Act 1977 for review of a decision made under the Migration Act 1958 ("the Act"). Section 6A(1) of the Act provides that an entry permit shall not be granted to a non-citizen after his entry into Australia unless one of a number of conditions in fulfilled in respect of him. The relevant condition is that referred to in s.6(1)(e), i.e. that the applicant 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.

1. On 27 October 1987 a written application for resident status was made on behalf of the applicant and supported by a letter from her solicitor. Without going into the detail of the application, it can be said that two grounds were relied upon: first, that the applicant had entered into a de facto relationship with a young man who was a resident of Australia and wished to reside in this country to maintain that relationship; and secondly, that the applicant had an elderly uncle and aunt who were citizens of Australia and their circumstances were such that they were sorely in need of assistance. It will be unnecessary to further mention the first ground as counsel for the applicant does not rely upon that in support of the application under the Judicial Review Act.

2. The application was initially reported on by Mr Clive Robson, an officer of the Department of Immigration, Local Government and Ethnic Affairs. His report is in evidence. He said in his report that when considering Miss Tam's application, he had regard to the information which was contained in a statutory declaration which was lodged in support of it, a written submission from her solicitor, a medical report in respect of her uncle's medical condition and information gathered from interviews conducted with Miss Tam and Mr Quong, the gentleman with whom she said she had formed a de facto relationship.

3. In relation to that part of Miss Tam's application which was founded upon the circumstances of her uncle and aunt, Mr Robson stated that he had been informed by Miss Tam that her aunt had something wrong with her arm; that her uncle had a daughter who stayed with him occasionally and who was getting married, and that he had other relatives who lived further away and had families of their own.

4. Mr Robson said in his report that he had considered Miss Tam's application with the guidance of the policy guidelines laid down in a document known as Grant of Resident Status Handbook. After dealing in some detail with Miss Tam's relationship with Mr Quong, Mr Robson referred to a statement in the Handbook (chapter 8.8) that provision exists for the migration of a relative able and willing to assist an Australian resident on a continuing basis in a situation of long term need due to serious circumstances such as prolonged illness. He referred to other statements in the handbook to the effect that people will not be approved in this category when there are relatives already in Australia who could help and when community services are available. In this respect, he noted that the uncle had family and relatives in Australia who could assist him and that the local council where he resided (Willoughby Council) provided community services to help the aged and infirm. He said: "I have also considered Miss Tam's family position and disposition and whether or not undue hardship would result from a requirement to depart Australia. My conclusion is that all her circumstances, considered separately and cumulatively, and her uncle's situation do not amount to strong and compassionate or humanitarian grounds within the meaning of section 6A(1)(e) of the Migration Act."

5. Accordingly, Mr Robson recommended that Miss Tam's application for resident status be refused. Her application was subsequently considered by Miss Stanley, a more senior officer of the Department who, having read Mr Robson's report, agreed with his recommendation. She concluded that she could find no grounds on which to approve the grant of resident status and accordingly refused the application.

6. The application under the Judicial Review Act founds upon five arguments. The first is that the decision-maker failed to take into account a relevant consideration, namely, the domestic and medical dependency of the applicant's Australian relatives, that is, her uncle and aunt. This argument is not supported by the evidence. It is true that favourable consideration was not given to the application on the ground of the domestic and medical situation of the uncle and aunt, but the passages to which I have referred demonstrate, in my view, that that matter was in fact taken into account.

7. The second argument put in support of the application is that, by adopting Mr Robson's conclusion, Miss Stanley purported to exercise a discretionary power without regard to the merits of the particular application. It is submitted that no subjective examination of the merits of the application was undertaken and that it was rejected on objective grounds set out in the handbook. The matters to which I have already referred demonstrate that this submission is not well founded. It is true that Mr Robson referred to the Handbook but he also took into account the special matters Miss Tam urged in support of her application. The second argument therefore fails.

8. The third argument is that there was a breach of the rules of natural justice when the application was considered because the decision-maker intended, in any event, to find adversely to Miss Tam on the issue whether there were relatives available in Australia to assist her uncle and aunt. I am not certain that I fully understand the submission. I take it to be a submission that the decision-maker approached the application with a closed mind. If that is the basis of the submission I do not think the evidence supports it. From what I have already said it is clear that Miss Tam was interviewed and that what she said at interview was considered by Mr Robson and subsequently by Miss Stanley. Not only was she interviewed but Mr Quong also was interviewed and the letter from her solicitor was also considered.

9. It was perhaps intended to include as part of the third submission a further or subsidiary argument that more steps should have been taken by the decision-maker to ascertain the facts as to the uncle and aunt's medical and domestic situation before the decision was taken to refuse the application. There may be some cases in which the obligation to observe the rules of natural justice require a decision-maker to make independent inquiries as to certain facts before reaching his decision. But I do not think that any breach of the rules has been established in this case. What happened was that a written application was made and supported by material from her solicitor and medical advisers. That material was considered and the applicant was interviewed. The decision-maker was acquainted with the medical condition of the uncle and aunt and was also acquainted with the fact that the uncle and aunt had two daughters who were residents of Australia. One of those daughters was unmarried and was known to live near her parents and another daughter, who was married, was known to live about 20 km away. Unless it be assumed that the rules of natural justice required in this case that the decision-maker should personally interview the two daughters, I find it difficult to see the basis for any such submission. I do not think it was obligatory on the decision-maker to personally interview the two daughters. Had the applicant wished to place any material from those persons before the decision-maker, she could and should have done so.

10. I might add that the failure of the daughters to furnish statements to the decision-maker is readily understandable. They are long time residents of Australia and the unmarried daughter lives within a mile or so of her parents. The daughters have a much higher moral obligation to their parents than does the applicant, who recently arrived in this country from Canton.

11. The fourth argument is that there was no evidence before the decision-maker that relatives of the uncle and aunt were in fact available to assist them. I do not think that it would have been obligatory on the decision-maker to accept statements, if they had been made by the daughters, that they were not available to assist their parents. The decision-maker had to take into account all the material in front of him and part of that material established that the uncle and aunt did indeed have two daughters living in areas not too remote from where they lived. There was nothing to suggest that they were estranged from their parents or would refuse to help them.

12. The final argument is that it was obligatory on the decision-maker to give notice to the applicant of the intention to refuse the application so as to give the applicant the opportunity of answering any conclusions which the decision-maker might have arrived at adverse to the applicant. I do not think there is any substance in this submission. The applicant was given the opportunity of putting in front of the decision-maker any material which she wished to be considered and she availed herself of that opportunity.

13. The application is dismissed. The applicant must pay the respondent's costs.