Tang, K.T. v The Hon. Hurford, C.J

Re: KHOI TRI TANG and ANOR
And: THE HONOURABLE CHRISTOPHER JOHN HURFORD MINISTER OF STATE FOR IMMIGRATION
AND ETHNIC AFFAIRS
No. VG 257 of 1985
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.

CATCHWORDS

Immigration - decisions of Minister to refuse residential status and to order deportation of prohibited non-citizen in Australia illegally for over two years - applicant married to Australian citizen - son of naturalized Australian parents in ill health - taking into account irrelevant matters - omission from account of relevant matters - lawfulness of policies applied in making decisions - whether such policies applied without regard to merits of particular case - whether decisions so unreasonable that they could not have been made by any reasonable person.

Migration Act 1958, ss. 6, 6A, 7, 10 and 18

Human Rights Commission Act 1981, ss. 3, 5, 9 and Schedule 1

Administrative Decisions (Judicial Review) Act 1977, s. 5

HEARING

SYDNEY
#DATE 20:12:1985

ORDER

The application be dismissed.

The applicants pay the respondent's costs thereof.

The existing stay of proceedings on the deportation order made on 11 November 1985 be continued up to and including 10 January 1986.

There be liberty to either party to apply on one day's notice for the dissolution or extension of the stay so granted. Such application may be made to any Judge of the Court.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application pursuant to s. 5 of the Administrative Decisions (Judicial review) Act 1977 ("the Judicial Review Act") in which the applicants seek the review of a number of decisions which have led to a deportation order being made against the first applicant, Mr. Tang. Two of the decisions were made on 11 November 1985. By them the Minister, by one of his delegates, determined that he would not grant to Mr. Tang an entry permit pursuant to s. 6A of the Migration Act 1958 ("the Act"), and, further, that he would order the deportation of Mr. Tang pursuant to s. 18 of the Act. The remaining decisions challenged were decisions made by the Minister, again by one of his delegates, to affirm his decision made on 11 November 1985 to refuse the grant of a permit pursuant to s. 6A of the Act and to affirm his decision to order the deportation of Mr. Tang.

The challenges to these decisions are based upon the provisions of sub-ss. (1) and (2) of s. 5 of the Judicial Review Act. The particular paragraphs of sub-s. (1) which are involved are para. (e) which provides that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made, para. (f) which provides that the decision involved an error of law and para. (j) which provides that the decision was otherwise contrary to law. The particular paragraphs of sub-s. 5(2) which are relied upon to establish that the making of the decisions was an improper exercise of power pursuant to para. 5(1)(e) were paragraphs (a), (b), (f) and (g). In short it was submitted that the making of each of the decisions involved the taking into account of irrelevant considerations, the failure to take into account relevant considerations, an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case and an exercise of a power that was so unreasonable that no reasonable person could have so exercised the power.
The facts of the matter are not in contest. The applicant was born in Vietnam on 23 February 1957. He entered Australia as a visitor on 30 March 1983 and was issued with a temporary entry permit subject to a condition, "employment prohibited without written permission of an authorized officer". The permit was valid for two weeks from the date of his arrival. On 4 April 1983 Mr. Tang was granted a further temporary entry permit until 27 May 1983 for the purpose of tourism. No further entry permit was issued to him. Mr. Tang did not leave Australia, and he became, after 27 May 1983, a prohibited non-citizen. He has had this status for the last 2 1/2 years. Officers of the Department of Immigration discovered Mr. Tang on 25 October 1985 at his place of employment in Melbourne. He was arrested pursuant to the provisions of s. 38 of the Act and held at the Immigration Detention Centre, Maribyrnong, Victoria. He has been in custody ever since.
On 24 September 1985 Mr. Tang married the second applicant, Mrs. Tang. It is accepted by the Minister that the marriage was genuine, not one of convenience and not entered into for the purpose of avoiding Mr. Tang's deportation.
Mr. Tang's mother and father live in Melbourne. They left Vietnam for Australia in 1979 and landed at Derby, Western Australia, on 12 April of that year. They came to Melbourne in May 1979 and have remained there ever since. They arrived with two younger children, now 15 and 13 years old respectively. On 16 February 1982, the father, mother and the two younger children became naturalized Australian citizens.
Mr. Tang has an older brother who is also believed to be in Australia. He is said to be living in Sydney but his whereabouts are unknown. There is a suspicion that he may be a prohibited non-citizen.
On 25 April 1984 Mrs. Tang senior suffered a stroke. She has continued to be disabled and to suffer from ill health since that time. Mrs. Tang is partially paralyzed and is dependent on others to look after her.
Mr. Tang senior also suffers from ill health. He has diabetes and has recently developed a calcified lymph node on his neck which requires treatment. He has been told that it may be cancerous and should be investigated by an operation.
In an application made by Mr. Tang for permanent residential status, he said that he had helped look after his younger sister and brother and also his mother. He said that he had assisted her daily with a physiotherapy and massage programme.
On 19 November 1985 the delegate of the Minister provided reasons for the decisions made on 11 November 1985 not to grant Mr. Tang residential status and to order that he be deported. The reasons were provided pursuant to s. 13 of the Judicial Review Act. In paragraph 6 of the reasons the delegate referred to the fact that on 31 October 1985 a letter was received from Mr. Tang's solicitors enclosing an application for residential status. The delegate said that the application had been considered by the Resident Status Section of the Department and a recommendation made that the application be refused.
In paragraph 7 of the reasons the delegate referred to the fact that in October 1985 the Minister had tabled in Parliament a policy statement on illegal immigrants in Australia. The policy became effective on 18 October 1985 and has since been taken into account by the Minister's delegates in the consideration of cases involving prohibited non-citizens. In due course it will be necessary to refer to the detail of the policy statement.
Mr. Tang was said to have advanced two grounds for wishing to remain in Australia. These were that he was married to an Australian citizen and that he was concerned about the medical condition of his parents and the welfare of his younger brother and sister who were "all permanent residents". Paragraphs 14, 15 and 16 of the delegate's reasons are as follows:-

"14. An opinion was sought from Resident Status

Sub-section, who advised that the Migration Act and migration policy provide eligibility for consideration of the grant of permanent resident status for foreign nationals who have married an Australian resident but that eligibility to apply does not carry an automatic entitlement to residence. In taking into account the interests of the Australian spouse and the resident family the opinion was given that the history of the applicant's dealings with the Department and events leading to his status support refusal of his application.

15. In forming the opinion on the application for resident status the Resident Status section considered the case in light of the current policy announced by the Minister in October 1985. It was accepted that the applicant had married an Australian citizen on 24 September 1985 and noted that he had failed to lodge an application for change of status to permanent resident for over 2 years despite being fully aware of his prohibited non citizen status. In relation to his parents health problems it was felt that the presence of an older married brother in Australia would provide the necessary support. It was recommended that the application be refused and the applicant be required to leave Australia and be sponsored for migrant entry through normal family migration channels.

16. In considering his claims the following factors were taken into account:

. the applicant's marriage to an Australian citizen on 24 September 1985 was not contested but it was entered into when the applicant was illegally in Australia and it was not followed by an application for change of status until 31 October 1985 after the applicant's apprehension as a prohibited non-citizen at his place of employment on 25 October 1985.

. the applicant became a prohibited non-citizen on the expiry of his temporary entry permit on 27 May 1983 and has breached the conditions of his entry by remaining in Australia and engaging in employment without permission.

. the illness of his parents has occurred since the applicant's arrival in Australia but after the expiration of his temporary entry permit. I considered that it was not a mitigating circumstance in respect of the applicant's prohibited non-citizen status over two years. I further considered that the presence of other immediate family members legally in Australia would provide the support necessary for his mother.

. while deportation of the applicant was

(sic) temporarily disrupt his relationship with his wife and his family it is possible for him to be sponsored as a spouse. I considered that a temporary separation and the costs arising from return home to apply for migration in the normal manner were not mitigating circumstances to be accorded significant weight."

The delegate said that after weighing these factors carefully in the light of the Minister's policy statement of October 1985, he had decided to refuse the application for the grant of permanent resident status. He concluded:-

"18. In addition, I formed the opinion that it is

in the public interest to ensure that persons abide by normal migration selection processes and do not queue-jump by entering or remaining illegally in Australia to the prejudice of prospective migrants who abide by the procedures. The presence of such queue-jumpers is inimical to Government control of immigration programs as well as impacting upon job availability for legal residents. I considered that prohibited non-citizens should expect to face the prospect of deportation when located unless there are strong countervailing reasons to allow them to remain. I considered that the applicant's reasons for wishing to remain in Australia are insufficiently compelling to warrant departure from the policy on deportation of prohibited non-citizens, and I accordingly decided to deport the applicant from Australia."

The present application was filed on 19 November 1985, the same day as that upon which the reasons were provided. Interlocutory relief was sought and granted by the Court. In the course of one of the interlocutory hearings, it was suggested that the matter might be given some further consideration. This led to the further consideration of the matter on 27 November 1985 when the Minister, by his delegate, decided that he would affirm his earlier decisions. Further reasons were made available to the applicant. These refer to the interlocutory proceedings. In paragraph 4 it is said that in Court it was initially claimed on behalf of Mr. Tang that in fact there was no older brother at all in Australia. However, after an adjournment of the case, it was claimed that there was an older brother in Australia but that he lived in Sydney and was not available to provide the support required by the rest of the family. On 21 November 1985 a telegram was sent to Mr. Tang's solicitors requesting that the brother contact the Department for an appointment for an interview either in Melbourne or in Sydney. On 25 November 1985 Mr. Tang's solicitor spoke to a Departmental officer. According to the reasons he said that he had received the Department's telegram, that the brother was not likely to co-operate and that he, the solicitor, would not be putting any further submissions on behalf of Mr. Tang to the Department on this matter until the Court hearing.
On 25 November 1985 a further interview of Mr. Tang was conducted. The matters elicited at the interview were not substantially different from those earlier ascertained, although some detail was filled out.
In paragraph 10 of the reasons provided on 27 November 1985 (which took the form of a recommendation which was adopted by the delegate) it was said that the Department had attempted to contact the brother. It was not known whether Mr. Tang or his solicitors were in contact with the brother or had made any attempts to make contact with him. Paragraph 10 continued, "As it has not been possible to contact brother, it has therefore not been possible to establish beyond doubt brother's exact whereabouts (although claimed by subject to be Sydney) nor has it therefore, been possible to establish his capacity or willingness to provide assistance to the remaining members of the family legally resident in Australia". In paragraph 11 it was said that Mr. Tang's solicitors had been invited to make submissions on his behalf or on behalf of the remaining members of the family. It was said that they had chosen not to do so and that they had said that, if such submissions were to be made, they would probably not be made until the hearing.
In paragraph 12 the delegate referred to the further interview. He said that all material had been referred to the Residence Section. That Section was said to have made a review of the case and had recommended refusal of the grant of further entry permits. As to the ground based upon Mr. Tang's marriage to an Australian "resident", it was said that this matter had been previously considered and their recommendations in that matter stood for the reasons previously advised. Attention was then turned to the other ground. Paragraph 12 proceeded as follows:-

"As a special need relative

While accepting that his mother suffered a stroke, the subject admits that only service he provides is that he visits his mother regularly to massage her arm. He does not claim any other form of assistance and his mother does not appear totally dependent upon him.

Although his father is on a waiting list for elective surgery he is not an invalid as such. It is therefore, reasonable to conclude that there is no pressing medical reasons for the subject's father not to be able to offer such assistance.

It is the opinion of Residence section that in line with Policy the claims advanced by the subject are not sufficiently strong to warrant the grant of an entry permit as a special need relative."

Attached to the reasons is a document setting out Departmental policy in respect of what are known as "special need relatives". It will be necessary to refer to this policy in due course.

Paragraphs 13 and 14 of the reasons of 27 November 1985 are as follows:-

"13. You should also take account of the following

further factors:

. Even were the massage for the mother required as essential medical therapy such a service is available from welfare, hospital, nursing and community services, which are the normal and sometimes only course open to other Australian residents. These factors are not considered to be sufficiently compelling for the grant of an entry permit as a special need relative.

. The subject has also expressed concern for the welfare of his younger siblings. However these two siblings are teenagers and they have their parents in Australia. Besides the subject does not reside at the same address. You may consider that this factor is not sufficiently compelling for the grant of an entry permit as a special need relative.

. While the mother is suffering from a crippling disability, the subject admits that he does not provide any other physical assistance to his mother beyond the regular massage of her arm as responsibility for the remaining physical assistance is the responsibility of his sister supported by the brother.

. the subject has not made any claims of physical assistance (or other assistance) for his father.

14. In view of all these factors and the other circumstances of the case you may consider that, even accepting that the older brother, resident somewhere in Australia, is unable (or unwilling) to assist the family were the subject to be deported, the reasons advanced by the subject in support of his claim for an entry permit as a special need relative are not considered to be sufficiently compelling for the grant of such a permit."

In paragraph 15, the final paragraph of the reasons, it was recommended that the delegate affirm the decision earlier made by him on 11 November 1985 to refuse the grant of a further temporary entry permit, to refuse the grant of permanent residence and to affirm the making of the deportation order. The delegate accepted these recommendations.
The policy statement presented to Parliament by the Minister in October 1985 opens with the statement that Australia has a planned migration programme with selection processes carefully designed to balance the numbers that can be settled in various categories. Conditions of entry are specified at the time of visa issue and reaffirmed at the point of entry. Illegal immigrants, i.e. prohibited non-citizens, threaten the orderly management of the programme. They also jeopardise Australia's attitude to the acceptance of a very large number of visitors. The policy says that there will always be limits on the numbers of people Australia can absorb at a particular time and that there will be a continuing need to balance the numbers that can be settled in various categories such as skilled workers, business migrants, refugees and families already here. The statement continues:-

"For many years the competition for migration to Australia has been very strong. Most people are prepared to wait overseas and go through the normal selection processes including health and character checks. Unfortunately some people are not prepared to do this. They are not entitled to abuse Australia's immigration policy and laws at the expense of those waiting overseas or at the expense of unemployed Australian residents.

It is not open to people from anywhere in the world to decide, of their own volition, that they will live permanently in Australia. If, in attempting to do so, they break Australia's laws, they must expect to face the consequences, including prosecution and removal from Australia, by deportation if necessary."

Later the statement says:-

"'Overstayed visitors', whatever their reasons, are unlawfully in Australia. Their status of illegal immigrants or 'prohibited non-citizens' is of their own making and it must be recognised as such.

It is an accepted principle of justice and fairness that people should not derive benefit from an illegal act they have committed. Illegal immigration is no exception. Illegal immigrants simply by having succeeded in entering or remaining in Australia do not earn a right to special privilege under migration policy, nor does their act of being in Australia illegally earn them special rights of review which are not available to those who abide by the rules and wait overseas."

A section of the statement deals with applications to remain in Australia. Under this heading the statement says amongst other things:-

"The Migration Act severely limits the circumstances under which people illegally in Australia can change their immigration status to permanent resident. These limited provisions are not an invitation for people to enter Australia as visitors, then seek permanent residence when they should have applied and qualified overseas for entry as migrants in the usual way.

. . . . . . . . . . . . . . . . . . . . . . . .

If detention is justified, the applicant will not be released simply because an application has been made to remain in Australia. The normal considerations relating to custody are to apply.

People who are in Australia illegally, whether they entered without authority or they overstayed their entry permits, will not readily be given permanent residence while they remain in Australia.

Their breaches of immigration law and requirements will weigh heavily against them."

The statement lists a number of matters which it is said will weigh heavily against an applicant who seeks to remain in Australia. These include the circumstance that the applicant, although entering Australia lawfully, violated conditions of entry, such as working without permission; the circumstance that the applicant avoided contact with, or ceased contact with, the Department; and the period of illegal residence by the applicant. The statement proceeds:-

"Changed circumstances advanced in support of an application to remain (e.g. development of ties in Australia), but which arose or developed after the expiry of an entry permit, normally will be given little weight.

A temporary separation and the costs arising from return home to apply for migration in the normal manner will not normally be regarded as mitigating circumstances accorded significant weight.

In the case of applications to remain made after apprehension, it will be rare indeed that illegal immigrants will be granted permission to remain in Australia.

Any eligibility for review by the Immigration Review Panel lapses immediately a person becomes an illegal immigrant, or is ordered deported under the Migration Act."

The emphasis appears in the statement.

There follows a section of the statement dealing with marriage. There it is said:-

"The Migration Act and migration policy provide eligibility concessions for foreign nationals who have married an Australian citizen or permanent resident or who have an Australian citizen child. But eligibility to apply for residence does not carry an automatic entitlement to residence. In such circumstances, the interests of the resident family or child are taken into account and are weighed, along with other factors, in the eventual decision.

Marriage to an Australian or the existence of an Australian citizen child do not confer upon illegal immigrants the right to choose their country of residence. Each case will be treated on its own merits."

The emphasis again appears in the statement.

I next refer to the policy statement on special need relatives. The statement says that this category provides for the migration of a relative able and willing to assist an Australian resident on a continuing basis in a situation of permanent or long term need brought about by death, disability, prolonged illness or some other serious circumstances. Paragraphs 8.8.3 and 8.8.4 of the statement are as follows:-

"8.8.3 People will not be approved in this category

. to provide financial support, companionship or general domestic assistance

. to provide assistance in bringing up teenage children

. when there are relatives already in Australia who could help

. when welfare, hospital, nursing and community services, which are the normal and sometimes only course open to other Australian residents, are available.

8.8.4 Two examples of situations in which a special need relative might be approved are:

. the death or serious illness of a spouse leaving the partner with problems in bringing up young children and coping generally

. a crippling disability, creating a need for physical assistance."

One of the attachments to the reasons of 27 November 1985 is a document (Attachment E) which is an opinion and recommendation from the Residence Section made also on 27 November 1985. The special needs relative policy was attached to this opinion. The document refers to the stroke suffered by Mrs. Tang senior and to a letter from a Dr. Tang as to her condition. It is said that the letter does not elaborate on the nature of the therapy or further treatment necessary. It continues, "There is no prognosis as such".
The statement proceeds:-

"However, applicant, by his own admission, visits his mother regularly to massage her arm. He does not claim any other form of assistance as such. It appears then that his mother is not totally dependent on him. This function of arm massage may be performed by his other teenage siblings or his father."

The document goes on to refer to the father's condition. It says that the father is a diabetic "and is on the waiting list for elective surgery in order to have a growth removed. This situation is confirmed in a letter from St. Vincents Hospital".
The statement continues:-

"However, applicant's father is not, by definition, an invalid. He is 51 years of age and although has the above conditions, is able to offer the necessary massage treatment to his wife. Given the fact that the surgery to take place is elective, it is reasonable to conclude that there is no pressing medical reason for applicant's father not to be able to offer such assistance. In line with the Government's policy on special need relatives 'Chapter 8.8 of Migrant Entry Handbook - copy attached" applicant's claims are not sufficiently strong enough to warrant the grant of an entry permit."

The report from the St. Vincent's Hospital which is referred to is dated 30 October 1985 and says:-

"This is to certify that Mr. Cuu Tang (d.o.b. 12.1.1934) is suffering from non-insulin dependent diabetes, and is also on the waiting list for elective surgery to investigate a calcified lymph node in his neck".

It is next necessary to refer to the relevant provisions of the Act. Section 6 provides for the grant of entry permits. Sub-section 6(5) provides that an entry permit may be granted to a non-citizen either upon his arrival in Australia or, subject to s. 6A, after he has entered Australia (whether or not that entry took place before, or takes place after, the commencement of Part II of the Act in which s. 6 is to be found). Sub-section 6(6) provides that an entry permit that is intended to operate as a temporary entry permit that is intended to operate as a to whom it relates to remain in Australia for a specified period only and that such a permit may be granted subject to conditions. Section 6A of the Act, insofar as it is relevant, is as follows:-

"6A. (1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say

. . . . . . . . . . . . . . . . . . . . . . .

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

. . . . . . . . . . . . . . . . . . . . . . .

(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."

By sub-sec. 6A(4) a reference to a child of a person in para. (b) is a reference to a child who has not attained the age of eighteen years or has attained the age of eighteen years but has not attained the age of twenty-one years and has been determined by the Minister to be an integral part of the family of that person. A reference to an aged parent is to be read as a reference to a parent who has attained the age upon the attainment of which an age pension might be granted to him under the Social Services Act 1947. Finally, in relation to s. 6A, sub-sec. (8) provides that a reference in the section to an entry permit is to be read as a reference to an entry permit other than a temporary entry permit.
Sub-section 7(2) provides that at any time while a temporary entry permit is in force or after the expiration or cancellation of a temporary entry permit, a further entry permit may, at the request of the holder, be granted to the holder. By sub-sec. 7(3), upon the expiration or cancellation 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 or cancellation. Section 10 provides that a person who has become a prohibited non-citizen ceases to be a prohibited non-citizen if and when an entry permit or further entry permit is granted to him, and not otherwise. Section 18 provides that the Minister may order the deportation of a person who is a prohibited non-citizen under any provision of the Act. Section 38 provides for the arrest of prohibited non-citizens and s. 39 for the arrest and detention of persons against whom a deportation order has been made.
The documents earlier referred to show that Mr. Tang made an application for residential status on 31 October 1985. That occurred after his arrest. The provisions of the Act which were relevant to the exercise of the discretion which the Minister had in relation to the application were ss. 6, 6A and 7 earlier referred to. In the language of the Act what Mr. Tang applied for was an entry permit, other than a temporary entry permit. He made his application on the grounds that he had married an Australian citizen and further, that he was needed in Australia to help care for his parents who were suffering ill health. He relied upon the provisions of para. 6A(1)(b) and (e). He was able to rely on the first of these paragraphs, notwithstanding that he held no temporary entry permit, because it is not a requirement of para. (b) that he be the holder of such a permit. But, insofar as his application depended upon the provisions of para. (e), he was not entitled to make the application because he held no temporary entry permit. It was, however, within the Minister's power to place him in a position where he could make such an application by issuing to him, first of all, a temporary entry permit; see sub-sec. 7(2). It was no doubt for that reason that Mr. Tang's application for resident status made on 31 October 1985 was accompanied by an application for a further entry permit.
The different position in which Mr. Tang was in relation to his application based upon para. (b) from that in which he was in relation to his application based upon para. (e) is important when one comes to consider the grounds upon which this application is made. Some of those grounds place special emphasis on the words of para. (e) namely, " . . . there are strong compassionate or humanitarian grounds for the grant of an entry permit . . ." But those provisions could not apply, at least directly, to the application which was made because Mr. Tang held no temporary entry permit. Until he became the holder of one he had no standing to make the application pursuant to para. 6A(1)(e). In order to enable him to obtain a temporary entry permit, he had to make application pursuant to sub-sec. 7(2), the provisions of which are quite unspecific about the matters which will guide the Minister in reaching a conclusion as to whether he should give effect to the application or not.
With that background in mind it is now possible to come directly to the grounds relied upon by counsel for the applicants. Substantial reliance was placed by him upon what he claimed to be the distinction drawn in the reasons of 19 and 27 November 1985 earlier referred to between the residential status of Mr. Tang's wife (always described as an Australian citizen) and his parents (described as residents). This was an indication, so counsel submitted, that the Minister, by his delegate, had failed to give proper weight to the fact that the parents and their younger children were also Australian citizens. An example of the language used in the reasons of 19 November 1985 upon which reliance was placed is found in para. 5 where the parents were said to be "permanent residents". In contrast it was said in the same paragraph that Mr. Tang had married "an Australian citizen". In the reasons of 27 November 1985 there is a reference in para. 9 to "the remaining members of the family legally resident in Australia". Similar words are to be found in para. 10.
In counsel's submission the reasons disclose a failure on the part of the delegate to take into account the fact that the parents were Australian citizens as distinct from persons who were merely "legally resident" here. The converse of this proposition was also relied upon, namely, that the delegate in describing the mother, father and younger children as residents, had omitted a relevant consideration, namely, that in fact they were citizens.
Mr. Tang's application of 31 October 1985 made it clear that the parents and younger children were Australian citizens. Certificates of their citizenship were attached to the application. In those circumstances I do not think that it would be correct to conclude that the delegate was not mindful of the fact that the parents were Australian citizens. I agree that there is a contrast in the language which has been used in relation to the wife, but her Australian citizenship was of special relevance because marriage to an Australian citizen is a ground specifically provided for in para. 6A(])(b) of the Act. On the other hand, so far as the parents were concerned, the important fact was that they were lawfully here and said to be in need of assistance. I have the impression that, whether that was so because they were Australian citizens or merely the holders of entry permits, the delegate's approach would have been no different. If the delegate were prepared to take into account compassionate grounds of the kind Mr. Tang relied upon in relation to his parents, the all important matter, given the lawfulness of their presence here, was their circumstances, particularly their ill health. In all the circumstances I consider the submission based upon the delegate's failure to mention expressly the fact that the parents and the younger children were Australian citizens should be rejected.
Then, relying on the same provisions of the Judicial Review Act, it was said that the delegate, in referring to the neck surgery which Mr. Tang senior has been advised to have, erroneously described the surgery as elective; see para. 12 of reasons of 27 November 1985 earlier quoted. This statement comes from Attachment E signed by Mr. Gekas of the Department on 27 November 1985. Mr. Gekas' use of the expression no doubt came in turn from the certificate furnished by the St. Vincent's Hospital on 30 October 1985. It says that Mr. Tang senior is "on the waiting list for elective surgery. . . "
Bearing in mind the nature of Mr. Tang's symptoms and the obvious concern of his medical advisers that the lump on his neck be investigated as soon as possible, the surgery hardly fits the description of "elective" understood in its more conventional sense. Theoretically Mr. Tang may choose not to have the investigation done, but it would seem unwise, and indeed, his decision to delay the operation apparently until the outcome of these proceedings seems not to be very sensible.
During the argument I expressed criticism of Mr. Gekas' language, particularly a statement in Attachment E in which he said, "Given the fact that the surgery to take place is elective, it is reasonable to conclude that there is no pressing medical reason for applicant's father not to be able to offer such assistance". The assistance referred to was assistance required by the mother as the result of her medical condition.
As I said in the course of argument, that statement was either callous or indicated that Mr. Gekas had no real conception of what might eventually be involved depending on what the outcome of the surgery was. But his statement does not appear in the reasons which were the subject of challenge. The certificate of St. Vincent's Hospital was before the delegate as was a certificate from Mr. Tang's doctor and statements made by Mr. Tang junior (the first applicant) conveying fairly fully what was involved. In those circumstances, however much sympathy one must feel for Mr. Tang senior and the family generally, it is going too far, in my opinion, to draw the conclusion that Mr. Tang senior's medical condition was not properly understood by the delegate himself who did no more than use the language used in the certificate from the Hospital. I therefore also reject the submission based on the reference in the reasons of 27 November 1985 to Mr. Tang senior being in need of elective surgery.
There were then submissions based upon the policy statements, both that presented to Parliament in October 1985 and the special needs relative policy earlier referred to. These were founded in part upon the provisions of paras. (a) and (b) of sub-sec. 5(2) of the Judicial Review Act. I would prefer, however, to deal with these when I come to deal generally with the submissions made by counsel in relation to the policies and the application of them by the delegate to the circumstances of this case. Before I come to that matter, there is one further submission based on para. (b) of sub-sec. 5(2) of the Judicial Review Act with which I deal. It was that the delegate had failed to take into account the provisions of Article 23 of Schedule 1 of the Human Rights Act 1981. Article 23, so far as it is relevant, provides that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State. It further provides that the right of men and women of marriageable age and to found a family shall be recognized. The Article was contained in the International Covenant on Civil and Political Rights. In the Human Rights Commission Act it is referred to as the "Covenant"; s. 3. Section 5 of the Act provides that the Act binds the Crown in right of the Commonwealth. Amongst the functions conferred on the Human Rights Commission by s. 9 of the Act is the function of enquiring into any Act or practice that may be inconsistent with or contrary to any human right. "Human right" is defined in s. 3 to mean, inter alia, the rights and freedoms recognized in the Covenant, that is, the Covenant set forth as Schedule 1 to the Human Rights Commission Act. In Kioa v. Minister for Immigration and Ethnic Affairs (1984) 4 FCR 40 Northrop and Wilcox JJ. said (p. 53):-

"It follows that we agree with Smithers J. that the enactment of the Human Rights Commission Act 1981 could not, and did not, give rise to any new legal rights or derogate from any existing legal powers. In particular, the powers of the Minister and his various delegates under ss. 6, 7 and 18 of the Migration Act 1958 (Cth) were left unaffected. We would differ from Smithers J. only to the extent that his Honour conceded any relevance at all to the terms of the Human Rights Commission Act 1981, as such and divorced from the general humanitarian principles to which it refers and which are relevant in their own right.

We see no basis in law for the conclusion that, by reason of the Human Rights Commission Act 1981, the delegate was obliged specifically to turn his attention to the various rights and principles enunciated in the relevant international agreements. He did have an obligation to consider the effect of the proposed deportations on the family. That subject matter happens to be similar to that of the relevant articles and principles in the agreements referred to in the Human Rights Commission Act

1981. As we have already said, he did consider these matters by referring to the material before him which related to the effect upon the family of a deportation of Mr. and Mrs. Kioa. As Woodward J. observed in Tabag (Tabag v. Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705) the provisions of the Covenant (and we would add that the Declaration of the Rights of the Child) really only 'act as a reminder, if one were needed, of the importance of the family and of the protection of children in our society'".

I refer also to the judgments of Gibbs C.J. and Brennan J. in Kioa v. West (High Court of Australia, 18 December 1985) at pp 20 and 94. The dissent of Gibbs C.J. was not on this point.

Counsel for the applicant recognized that Kioa's case stood in the path of his submission, but he endeavoured to say that it was a matter which the delegate should have taken into account in reaching his decisions, as I understood the submission, in an express way. In my opinion this submission must be rejected. As Northrop and Wilcox JJ. have said the Act adds nothing to the "general humanitarian principles to which it refers and which are relevant in their own right".
The most critical submissions made by counsel for the applicants centred upon the two policy statements earlier referred to, particularly that tabled in Parliament in October 1985. Counsel's submissions were directed in the main to three paragraphs of that statement. I shall set these out again but it is important to emphasize that each needs to be read in the context in which it appears. The statements are:-

1. People who are in Australia illegally, whether they entered without authority or they overstayed their entry permits, will not readily be given permanent residence while they remain in Australia.

Their breaches of immigration law and requirements will weigh heavily against them.

2. In the case of applications to remain made after apprehension, it will be rare indeed that illegal immigrants will be granted permission to remain in Australia.

3. . . . eligibility (based on marriage to an Australian citizen) to apply for residence does not carry an automatic entitlement to residence. In such circumstances, the interests of the resident family or child are taken into account and are weighed, along with other factors, in the eventual decision. Marriage to an Australian or the existence of an Australian citizen child do not confer upon illegal immigrants the right to choose their country of residence. Each case will be treated on its own merits.

In counsel's submission these statements placed the Minister's delegates in strait jackets, for practical purposes dictating to them in advance what their decision in any given application would be. The inflexibility which the policy revealed took away the ability of delegates to give proper consideration to the individual circumstances of an applicant and the merits of his application. The policy thus supplanted the provisions of the Act itself. Its confining and restrictive effect on those charged with the administration of the Act was contrary to law and its application to the making of the decisions in this case infected those decisions with illegality. Alternatively, it was submitted that the application of the policy meant that decisions made pursuant to it were made pursuant to the application of a policy without proper consideration of the merits of an individual case and that the taking of the policy into account involved the taking into account of an irrelevant consideration.
In considering these submissions it is important to bear in mind that Mr. Tang had no standing to seek permanent residential status except on the ground of his marriage to an Australian citizen; para. 6A(1) (b) of the Act. He was not entitled to rely on their being strong compassionate or humanitarian grounds for the grant of an entry permit to him (para. 6A (1) (e) because he held no temporary entry permit. By that I mean that, although it was open to the delegate to take those matters into account in determining whether he would grant him a temporary entry permit, Mr. Tang was not in nearly so strong a position as he would have been in if he had been the holder of a temporary entry permit. The immediately relevant provisions of the Act were those contained in sub-sec. 7(2) which empower the Minister to grant a further temporary entry permit notwithstanding that an earlier temporary entry permit may have expired. The discretion conferred by that provision is at large. No grounds are provided upon which it may be exercised. It is in relation to the grant of applications made pursuant to that provision that the first two of the policy statements relied upon by counsel for the applicants apply. That is because those statements deal only with the way in which applications made by prohibited non-citizens are to be approached.
There is, of course, nothing improper or unlawful in the formulation of a policy pursuant to which a particular Act of Parliament will be administered. Indeed the formulation of a policy is very often beneficial, not only to those who have the task of administering the Act, but also to those who may need to know in what way particular discretions are likely to be exercised or what considerations will be considered as important and significant cf. Thurecht v. Deputy Commissioner of Taxation (1984) 3 FCR 570 at p 588. As was said by Brennan J., when President of the Administrative Appeals Tribunal, in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at p 640:-

"There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process".

However, Brennan J. also said:-

"Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute (see Murphvores Incorporated Ltd v. The Commonwealth (1976) 136 CLR 1; Drake v. Minister for Immigration and Ethnic Affairs

(1979) 24 ALR 577 at p 589 and the cases there cited). Also, it would be inconsistent with ss. 12 and 13 of the Migration Act if the Minister's policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases. The discretions reposed in the Minister by these sections cannot be exercised according to broad and binding rules (as some discretions may be: see, eg, Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch 149)".

Earlier Bowen C.J. and Deane J. in Drake v. Minister for Immigration and Ethnic Affairs (1979) 577 had said (p. 590) that ordinarily an administrative officer charged with the exercise of discretionary power will be entitled, in the absence of specifically defined criteria or considerations, to take into account government policy. They added that the propriety of paying regard to general policy considerations was most evident in a case where there were no specified statutory criteria for the exercise of the discretionary power and where the power was entrusted to a Minister of the Crown responsible to Parliament.

The weight accorded the policy by the delegate in each of his decisions is to be seen in the passages from those decisions earlier quoted. In short the reasons of 19 November 1985 disclose that a number of matters favourable to Mr. Tang were taken into account in paragraph 16 but were not considered sufficient to warrant the grant of resident status when weighed "in light of the Minister's policy statement". The matters referred to in paragraph 18 of those reasons earlier quoted are not put as emanating from the policy, but, so it seems to me, they echo what is in substance the policy which has been formulated in relation to applications by persons who are illegally in this country. The reasons of 27 November 1985 were given in relation to a decision to affirm the earlier decision. Really what was involved was a reconsideration of the matter bearing in mind certain additional material and submissions which had been made in the meantime. So far as the policy of October 1985 was concerned, there is no more than an indication in the reasons of 27 November 1985 that that policy had been applied and adhered to in the reconsideration of the matter. But applied it plainly was.
In my opinion there is nothing unlawful about the policy insofar as it applies to persons illegally here who make applications for further entry permits, whether temporary or otherwise. That is because the discretion conferred on the Minister by sub-sec. 7(2) of the Act is at large; there are no criteria or guidelines specified in it directing the Minister to take into account or omit from account any matter or thing. Furthermore, one has to give substantial weight to the nature of the subject matter which is being dealt with. It is the question of whether persons who have come here illegally or, by reason of the expiry of an entry permit, have become illegal residents should be allowed to stay here and if so, upon what terms and conditions they should be permitted to remain. The question is a serious and important one affecting as it does the national interest. In the absence of any provision in the statute to the contrary, it seems to me to be perfectly proper for the Minister to take into account and, if he deems it appropriate, to put to the forefront of his decision, considerations such as are mentioned in para. 18 of the reasons of 19 November 1985. As earlier said, this is but a restatement of the purport of the policy in relation to applications for entry permits by persons who are unlawfully here.
In relation to the statements numbered 1 and 2 above then, the only question which remains is whether the Minister applied the policy without taking into account Mr. Tang's particular circumstances. I would prefer to come to that question when I have considered the lawfulness or otherwise of the third statement in the policy of which counsel for the applicant complains. That statement deals particularly with applications made inter alia, on the ground that the applicant is married to an Australian citizen. The case made on behalf of Mr. Tang on this ground may be said to be somewhat stronger than that based on the earlier statements because Mr. Tang is able to bring himself squarely within the provisions of para. 6A(1) (b) of the Act. There is no issue but that he is the spouse of an Australian citizen. The ground, or condition as it is described in the section, is available to him, notwithstanding that he is not the holder of a temporary entry permit. But the Minister nevertheless has a discretion. The purport of the policy which was applied in his case is that just because an applicant for residential status who is unlawfully here has married an Australian citizen, he is not entitled as of right to the residential status which he seeks. The fact that he is an illegal immigrant is still of importance. In my opinion that is a matter which the Minister may properly take into account in dealing with an application of this kind. It is important that he take into account the fact of the marriage but it is only one of the factors which will guide him as to what decision he will make in a given case. It follows that I see nothing unlawful in a policy such as that which is laid down in the third of the above paragraphs. Again the only question is whether the policy has been applied without taking into account the particular circumstances of Mr. Tang.
It is next relevant to look at the other policy of which complaint is made. That is the policy concerning special need relatives. If the Minister were bound to consider Mr. Tang's application pursuant to para. 6A(1) (e), I think there may be a question as to whether the application of a special needs relative policy such as was applied here was too restrictive. That is because of the use in the paragraph of the expression "strong compassionate or humanitarian grounds". It does not seem to me that a policy which restricted entry to persons falling within the various provisions of the special needs relative policy would permit the Minister and his delegates to give sufficient flexibility to the expression "strong compassionate or humanitarian grounds" which obviously is intended to encompass a great variety of matters. But as I have shown, the provisions of para. 6A(1) (e) of the Act have no relevance to the present case because Mr. Tang is unable to make an application based on that provision. To apply it in relation to an application made pursuant to sub-sec. 7(2) is an entirely different matter. So far as an application of that kind is concerned, I see nothing unlawful about the application of a policy such as is laid down in the special needs relative policy. It follows that it was not unlawful to apply that policy in the present case.
The question is then whether the delegate, having applied each of the policies to which I have referred, nevertheless failed to take into account Mr. Tang's individual circumstances; in the language of the Judicial Review Act, the merits of his particular case. I have set out extensive passages from the decisions. I have read them as a whole. I have taken into account the supporting documents. Having given the matter due consideration I have reached the conclusion that the applicants have not shown that the Minister, by his delegate, did not take into account the many matters upon which Mr. Tang relied. Furthermore, I am satisfied that he took them into account both individually and cumulatively. Paragraph 16 of the reasons of 19 November 1985 are a sufficient indication that this is so but it is by no means the only indication.
That conclusion disposes of the final ground relied upon by counsel for the applicants, namely, that the decisions were so unreasonable that no reasonable person could have made them. All that I have said indicates that the Minister's decisions were decisions to which he might reasonably come.
It follows that I am not persuaded that the applicants have established a case for relief. In consequence their application must be dismissed, but before I conclude there are two things I wish to say. No submission was made concerning the particular circumstances of Mrs. Tang. I can find no reference in the various exhibits to any case being put to the Minister specifically on her behalf. She is a person aggrieved under the Judicial Review Act and entitled to make this application in her own right. But in the absence of special matters on her behalf being put to the Minister or to the Court, it would seem difficult for her to make a case different from that made by her husband.
The other matter which I wish to make clear is that this is an application for judicial review. The only jurisdiction which the Court has is to review the Minister's decisions in order to see whether they have been made lawfully. The Court is not seized with the merits of the matter. Whether Mr. Tang goes or stays is a matter peculiarly for the Minister and his delegates. It is the Minister who is entrusted with the administration of the Act and who is empowered alone to make decisions of the kind in question here. The converse of what I have said is that he, and not the Court, takes responsibility for what is being done. To some this may seem a particularly sad, and even tragic case. Mr. Tang is married to an Australian citizen. The marriage is genuine; that is not in contest. He is the son of a mother and father who are now Australian citizens and whose two younger children have also been naturalized. Mrs. Tang senior is an invalid and will remain so for the rest of her life due to the stroke which she has suffered. She needs care and attention, not only in a physical sense, but in a supportive sense in the way that care is given within families. Mr. Tang senior has a cloud hanging over his health. Until the investigatory procedures which he has been advised to have are undertaken and the results known, his future is in doubt. Notwithstanding all those matters, it is the Minister's decision that Mr. Tang must go perhaps even before the outcome of his father's surgery is known. As I have said, these matters all appear to me to have been considered by the Minister and thought not sufficient to overcome the fact that Mr. Tang has been here illegally for a period of over two years and has not, until recently, done anything to attempt to regularize his position.
In the course of the argument it became clear that there was a likelihood that the applicants would appeal in the event of the decision being adverse to them as it is. In normal circumstances I would not have made any further stay of the deportation order. But, bearing in mind the time of the year and the many demands upon both the profession and the Court at this time, I have decided that I should stay the operation of the deportation order up to and including Friday, 10 January 1986. Liberty will be reserved to either party to apply either to dissolve the stay or to apply for its extension.
The formal orders which I make are as follows:-

1. The application is dismissed.
2. The applicants pay the respondent's costs thereof.
3. The existing stay of proceedings on the deportation order
made on 11 November 1985 be continued up to and including 10
January 1986.

4. There be liberty to either party to apply on one day's notice
for the dissolution or extension of the stay so granted.
Such application may be made to any Judge of the Court.

[1985] FCA 638

20 DECEMBER 1985