Teoh, A.H. v Minister of State for Immigration, Local Government & Ethnic Affairs

[1993] FCA 712

AH HIN TEOH v. MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. WAG11 of 1993
FED No. 712
Number of pages - 9
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
FRENCH J

CATCHWORDS

Immigration - judicial review - grant of resident status - criminal history - good character requirement - reference to criminal convictions - policy - whether policy applied inflexibly - natural justice - whether applicant was denied opportunity to make submissions as to character - relevant considerations - compassionate circumstances - whether failure to take into account.

Migration Act 1958

Kioa v. West (1985) 159 CLR 550

HEARING

PERTH, 3 September 1993

#DATE 3:9:1993

Counsel for the Applicant: Mr I. Jones

Solicitors for the Applicant: Franconi and Associates

Counsel for the Respondent: Mr P. Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDER

1. The application is dismissed.

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

JUDGE1

FRENCH J This is an application for an order of review of a decision of a delegate of the Minister of State for Immigration, Local Government and Ethnic Affairs refusing an application for the grant of resident status. The applicant, a Malaysian citizen, married to an Australian citizen and with children by that marriage, has been convicted in this country of a number of offences relating to the importation and possession of heroin. He was sentenced to six years imprisonment in respect of those offences. He claims that the refusal to grant him resident status reflects an inflexible application of policy relating to the disqualifying effect of criminal convictions, a failure of natural justice and a failure to take into account various relevant considerations.

Factual Background
2. Ah Hin Teoh is a Malaysian citizen who arrived in Australia on 5 May 1988 as a visitor. He was granted a temporary entry permit which was valid until 5 November 1988. On 5 July he married Helen Jean Lim who is an Australian citizen. Ms Lim had been the de facto spouse of the applicant's deceased brother. They had first met in Malaysia. At the time of their marriage Ms Lim had four children, the oldest of whom was the child of her first marriage. The remaining three were children of her de facto relationship with the applicant's brother. Following the marriage the applicant obtained an extension of his entry permit until 5 February 1989. On 5 January 1989 a child, Shari, was born to the applicant and his wife. Since that time they have had two further children. On 3 February 1989 the applicant lodged an application with the Department of Immigration and Ethnic Affairs seeking a grant of resident status. The application was supported by character references including one dated 3 February 1989 from Mr R. Deng and another from G.P. Grant. Also included was a reference from a former employer in Malaysia where the applicant had worked as a Chinese cook. There was also a bail recognizance dated 6 December 1988 requiring the applicant's appearance in the Central Law Courts at Perth on charges of dangerous driving and driving without a motor driver's licence. It appears he was ultimately convicted of driving without a licence and fined $200. While the application for resident status was still pending, the applicant was arrested on 16 November 1989 by the Australian Federal Police and charged with a number of offences relating to the importation and possession of heroin. On 30 November 1990, following a trial in the District Court at Perth, the applicant was convicted of six counts of being knowingly concerned in the importation of heroin and four counts of being in possession of heroin contrary to the Customs Act. It appears from the remarks of the sentencing judge that the heroin was sent into Australia from Malaysia by mail over a period of approximately 4 months from August 1989. In respect of the first five counts, the applicant was not charged on the basis that the quantity was in excess of the trafficable amount and thus was exposed to a maximum penalty of a fine of $2000 or imprisonment for 2 years or both. On the remaining four counts, all were found to involve importation or possession of a quantity of not less than the trafficable amount, which is 2 grams. On each of those counts the applicant was liable to a maximum penalty of $100,000 or imprisonment for 25 years or both. The trial judge, Keall DCJ, in sentencing the applicant, observed that there was no evidence of any remorse on the applicant's part in relation to the offences. The applicant had failed to discharge the onus of showing a lack of commercial involvement but the judge accepted that his wife's addiction to heroin had played a part in the importation of the drug. In the event, he was sentenced in respect of each of counts 1 to 5 to a term of imprisonment of 1 year. The sentence for count 2 was to be cumulative on that for count 1 and the sentences for counts 3 to 5 where to be served concurrently with that for count 1. In respect of the remaining four counts, the sentence on each of them was 4 years imprisonment to be served cumulatively on the sentences for counts 1 and 2 and concurrently with each other. The total effect was a sentence of 6 years imprisonment. The trial judge fixed a non-parole period of 2 years and 8 months. He remarked that the seriousness of the offences was such than no sentence other than imprisonment could realistically have been imposed.

1. At about the same time, the applicant's wife was charged with offences relating to heroin to which she pleaded guilty and in respect of which she was given an 18 month suspended sentence. She had a serious drug addiction which, according to the applicant, led to her imprisonment in December 1991.

2. On 2 January 1991 the applicant was sent a letter on behalf of the State Director of the Department of Immigration, Local Government and Ethnic Affairs. In that letter he was informed that an authorised officer under the Migration Act 1958 had decided to refuse his application for the grant of resident status. Enclosed with the letter was a copy of the record of decision which set out findings of fact and reasons for the decision to refuse the application. The letter pointed out that the applicant's entry permit had expired, that his application had been refused and that he was thereafter an illegal entrant. He was informed of his review rights by way of a leaflet entitled "Migration Internal Review Office". He was told that he should apply for review within 28 days of the date of the letter. He was also informed that an officer of the compliance section of the department would contact him prior to his release from prison to discuss departure plans or possible deportation from Australia. The reasons for decision enclosed with the letter appear to have taken the form of an internal departmental document entitled "Submission for Decision under Subsection 6(2) Migration Act 1958". An annexure B to that document, entitled "Reasons for Decision", referred to a departmental policy manual relating to the grant of resident status and then made the following points:
   

"1.1. It is a policy requirement for grant of resident status tha applicants be of good

character;

1.2. Amongst other points, one of the basis (sic) of assessment is whether the applicant has a criminal record;

1.3. All applicants aged 16 years or over are subject to the character requirement. "In this case the applicant cannot meet the character requirement as he has a criminal record. (He) is currently serving 6 years imprisonment with a 2-year 8-month non-parole period...

On completion of sentence it is likely he will be considered for deportation under section 14(1) of the Migration Act."

The document was signed by the authorised officer and dated 24 December 1990.

1. On 29 and 30 January 1991, the applicant and his wife completed an application for reconsideration of his application for resident status by the Immigration Review Panel. That was lodged at the department on 5 February 1991. A number of documents were annexed to the application. Among them was a copy of the character reference dated 29 January 1990 from Mr R. Deng, which included the following observations:
   

"Mr Teoh is a sincere person. He is quite reserved not sociable but friendly and easy to get along. He is helpful and a friend I can rely on. He is very diligent at his work. Genuinely want to learn and improve his job skills.

Since knowing Mr Teoh and his family. I found he is a good father and very responsible family man. Despite his many hardships, he always placed his wife and children before his own interests. He cares for them and provide their needs.

I hope Mr Teoh is given an opportunity to prove himself. May he be found beneficial to your company."

This reference obviously related to possible employment. Another handwritten testimonial from P.D. Grant, undated, was also enclosed. It referred to the applicant as a concerned father and a great help to his wife who was a drug addict. It was asserted that he had tried hard to keep her out of trouble and to care for his children. According to this reference, it would be a great tragedy for the whole family if he were to be deported. The applicant was described as hardworking and only wanting what was best for his family. The reference went on:

"Since being in prison Jean (the applicant's wife) has found it difficult to cope with the children as Hin is the stable influence in her life. Her previous husband died a few years ago (Hin's brother, Tony) and Hin is the children's "Daddy". (T)wo children are Hin's and they all love him very much. He tried hard to keep Jean away from the bad influences in her life and is the one person that can keep the family together. I know that Hin loves Jean and the children and will always do his best to be a good and worthy citizen of Australia. (H)e is a good man, a victim of Jean's circumstances."

There was a also a supporting letter from the applicant's wife referring to hardships that she had undergone and the need that the family had for the applicant's continued presence. On 25 July 1991, the Immigration Review Panel recommended that the application for reconsideration of the grant of resident status be rejected. In short reasons for that recommendation, the Panel referred to the applicant's personal history, including his marriage to Ms Lim, the prior approval of the application for grant of resident status in principle, and his conviction on the various drug charges to which reference has been made earlier. It noted that he was then currently serving his sentence in Canning Vale Prison and that his application for grant of resident status had been rejected on the grounds that he failed to meet character requirements. The reasons for the recommendation continued:

"Mrs Teoh, the applicants sponsor and a former employer have made claims on Compassionate Grounds for the application for Reconsideratio to be approved. Mr Teoh states that she and the 5 children will suffer great financial and emotional hardship if the Applicant is deported. Mrs Teoh is receiving Community support during her husband's imprisonment and will be dependent on Social Services if he is forced to leave Australia.

All the evidence for this Application has been carefully examined, including the claims of Ms Teoh. It is realised that Ms Teoh and family are facing a very bleak and difficult future and will be deprived of a possible breadwinner as well as a father and husband if resident status is not granted. However the applicant has committed a very serious crime and failed to meet the character requirements for the granting of Permanent Residency. The Compassionate claims are not considered to be compelling enough for the waiver of policy in view of Mr Teoh's criminal record it is recommended that this application is rejected."(sic)

The recommendation was endorsed as accepted by Christine Rushworth, a delegate of the respondent, on 26 July 1991. In the meantime, on 26 August 1991, the applicant had been visited by an officer of the Department at Canning Vale Prison and advised that his possible deportation was under consideration. The applicant then lodged a further application for resident status on 4 September 1991 but was unable to raise the money to pay the required fee. By a letter dated 12 September 1991, he was advised that because no fee had been paid his further application could not be considered. According to the applicant he was still interested in pursuing his application and contacted solicitors to assist him. He completed an application for legal aid which was granted on 2 December 1991 for the purpose of an investigation of his position. In the meantime he had written direct to the Minister asking him to intervene on his behalf. On 30 January 1992 he received a letter from the State Director of the Department indicating that under current migration legislation, there was no provision for waiver or acceptance of part-payment of fees. As the Minister's ability to intervene was strictly limited under law, he was unable to set aside the normal legal provisions. The applicant had also approached the Human Rights Commission for assistance in this regard but the approach was of no avail.

1. On 18 February 1992, a delegate of the Minister, Graham Alexander Broom, made an order under s. 60 of the Migration Act 1958 that the applicant be deported from Australia. The stated basis for the order was that the applicant was an illegal entrant by virtue of sub-s. 14(3) in that he was the holder of a valid entry permit which had expired and no further valid entry permit applicable to him had come into force upon that expiration or had been granted to him since.

2. By letters dated 20 February and 21 April 1992, the applicant's then solicitors advised that they did not consider there was any further action he could take in respect of the refusal of permanent resident status or his deportation. They had obtained a statement of the reasons for the decision to deport and they provided him with a copy of that. They had also obtained a copy of his departmental file under the Freedom of Information Act and they provided him with a copy of that. By the middle of 1992, according to the applicant, he had become unhappy with his then solicitors. He applied to the Legal Aid Commission for the transfer of the assignment of legal aid to his new solicitors but this was rejected by a letter dated 10 April. According to the applicant, he did not then know what further action he could take to challenge the refusal to grant resident status or the deportation order. Subsequently, however, his present solicitors agreed to act for him and legal aid was granted ultimately on 17 December 1992.

3. According to the applicant, since lodging his application for resident status in February 1989, he had never been interviewed by the Department in relation to his personal circumstances. He became aware after the initial decision that the reason for refusal was related to his convictions. He says that he believed at the time and until recently advised by his present solicitors that the convictions precluded him altogether from making submissions to the Department on the question of his good character. He contends that he is a person of generally good character.

Extension of Time
9. On 29 January 1993, the applicant lodged an application for an extension of time in which to seek an order of review of the decision made on 26 July 1991 refusing the grant of resident status and the decision of 17 February 1992 that the applicant should be deported. On 23 March 1993, I ordered that the application for an extension of time be heard concurrently with the argument on the substantive application. On the question of the extension of time, I accept that there was a most substantial delay between the making of the decisions complained of and the lodging of the present application. Having regard, however, to the applicant's comparative helplessness as a prison inmate since the time that the decisions were made, the history of his attempts to obtain legal assistance, the seriousness of the consequences of the decision for his Australian wife and their children, and the absence of any demonstrated prejudice to the respondent, I am prepared to extend time to enable the application to be determined on its merits now.

The Grounds of the Application 10. The grounds of the application so far as they relate to the decision to refuse the grant of resident status allege in broad terms:

1. breach of the rules of natural justice by reason of the absence of any opportunity to the applicant to contradict or otherwise deal with the finding that he was not of good character;

2. improper exercise of power by failure on the part of the respondent to take into account relevant considerations;

3. improper exercise of power in that the discretionary power was exercised in accordance with a policy without regard to the merits of the applicant's case.

A contention that the exercise of the discretion was vitiated by Wednesbury unreasonableness was not pressed. In relation to the deportation decision, it was said to be tainted by an error of law somewhat obscurely expressed but dependent upon the proposition that the refusal to grant resident status was an unlawful and void decision. There is no doubt that this ground will fail if the challenge to the refusal to the grant of resident status fails.

1. It was suggested by counsel for the respondents that a success on the challenge to the first decision would not have the legal consequence that the second decision is vitiated, and I think that is correct for the deportation decision depended on the status of the applicant as an illegal entrant at the time that it was made. That is not to say that success in respect to the first decision would be futile. Indeed, it seems likely that the deportation question could be resolved administratively if necessary.

The Policy Question
12. At the forefront of the applicant's case was the contention that the respondent's decision to refuse the grant of resident status was based upon the exercise of a discretionary power in accordance with policy and without regard to the merits of the applicant's case. As particularised the ground was expressed thus:

"The respondent inflexibly applied his policy that a criminal conviction was determinative of bad character in relation to an Applicant for the grant of resident status and, therefore, any such Applicant should be refused resident status."

To qualify for the grant of an entry permit, necessary to remain permanently in Australia, the applicant had to satisfy one of the conditions in s.6A of the Migration Act 1958 as it stood when the application was made. That section provided, inter alia:

"(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."

Although the Act was extensively amended in 1989, transitional provisions allowed the application to continue to be treated through the reconsideration process as an application to which s.6A and other relevant provisions of the pre-amendment Act applied. The application for the grant of resident status expressly invoked the ground of marriage to a resident of Australia. The relevant policy governing the exercise of the discretion to grant resident status and thereby a permanent entry permit was identified by counsel for the applicant as contained in a document entitled "Integrated Departmental Instructions Manual, Grant of Resident Status, Number 17". Paragraphs 1.1 to 1.3 inclusive of that document stated:

" 1.1 It is a policy requirement for grant of resident status that applicants be of good character. 1.2 There is a three-fold basis of assessment: whether the applicant is likely to be a threat to Australia's security by being reasonably likely to engage in or be involved in acts of espionage, sabotage, politically motivated violence or foreign interference, or in promotion of communal violence

. whether the applicant has a criminal record . whether the applicant has other history of criminal activity, anti-social behaviour or immigration offences. 1.3 All applicants aged 16 years or over are subject to the character requirement."

Paragraph 3.2 provided:

" Penal and other aspects: Applicants who come within Section 16(1)(c) of the Migration Act... are not considered to meet the good character requirement and their applications would normally be refused unless they could show strong cause why policy should be waived in their case. Decisions on such cases would normally be taken only by Regional Directors. Some may warrant Ministerial consideration."

Reference should also be made to para 3.3:

" Applicants who do not come within Section 16(1)(c) of the Act may also fail to meet the good character requirement. The nature, number or recency of the offences or activities concerned and the potential for continuance or recidivism may be such as to warrant refusal on the overall merits of the case. Similar considerations apply to applicants who have been dishonourably discharged from military service."

1. Section 16(1)(c) of the Migration Act 1958, as it then stood, provided that:
   

"16(1) Where, after the commencement of this Part or before the commencement of this Part but after the commencement of the Immigration Restriction Act 1901, a person who enters or entered Australia is not, or was not, at the time of that entry, an Australian citizen and who-

.

.

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(c) at the time of entry is or was a person of any of the following descriptions, namely: .

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.

(ii) a person who has been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of not less than 1 year;

(iii) a person who has been convicted of 2 or more crimes and sentenced to imprisonment for periods aggregating not less than 1 year;

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.

.

that person shall, notwithstanding section 10, be deemed to be a prohibited non-citizen unless he is the holder of an entry permit endorsed with a statement that the person granting that permit recognises him to be a person referred to in this sub-section."

The criterion of criminal conduct which vitiates a non-endorsed entry permit was thus adopted administratively as a criterion against the grant of resident status. It is to be noted, however, that the policy did allow for the possibility of showing strong cause why policy should be waived in a particular case. In his submissions on this ground counsel for the applicant contended:

1. The respondent gave consideration to the waiver of policy requirements on the question of good character;

2. The decision, however, proceeded on the basis that the criminal conviction alone and without further consideration grounded a finding that the applicant was not of good character, relying on the provisions of section 16(1)(c) of the Migration Act 1958;

3. The Migration Act 1958, as it then was, provides no legislative warrant for a policy on good character which makes absolute the question of criminal conviction;

4. The proper course for the respondent was to give consideration to all of the material and then to form a view on character. The applicant, it is noted, was not given an opportunity to comment on or submit additional material on the position of good character.

In my opinion, however, the submission wrongly characterises the policy as setting up a general good character test and limiting it by reference to convictions. What it does, in effect, is to treat convictions for serious criminal offences as one of a number of matters which prima facie militate against the grant of resident status. The policy is consistent with the disqualifying criterion in s.16(1)(c) of the Act as it then stood. It does not require an exploration of the global moral character of an applicant. It is an appropriate benchmark.

1. Particular circumstances may warrant a departure from the policy and that possibility is allowed for here, but the conclusion that there was no strong cause for departure from it was open to the delegate to arrive at. Although there were no s.13 reasons provided in relation to the delegate's decision to accept the Immigration Review Panel's recommendation, it may be taken that the reasons for that recommendation were adopted by her having regard to her unqualified endorsement of it. In those reasons, the Panel specifically referred to "great financial and emotional hardship" claimed by the applicant's wife and her children in the event that the applicant were not allowed to remain in Australia. There was a specific finding that the applicant's wife and family are facing "a very bleak and difficult future and will be deprived of a possible breadwinner as well as a father and husband if resident status is not granted", but the compassionate claims were not considered compelling enough for the waiver of policy in relation to character. It cannot be said, therefore, that the policy requirement was applied without reference to factors which might justify a departure from it. As to other aspects of the applicant's character, these were before the delegate in the form of documents which were submitted with the application for reconsideration by the Panel. The delegate said in her affidavit that she relied upon the various documents annexed to it in making her decision. The character testimonials were among those. It is perhaps not surprising that they were given little weight. Nine convictions relating to the importation and in some cases possession of heroin in excess of the trafficable quantity constituted a very serious criminal record indeed, well above the threshold set by the policy. There was nothing in the sentence imposed in respect of them to suggest that they should be regarded as other than serious offences. I am satisfied that the allegation that the respondent inflexibly applied a policy to the exercise of the discretion in this case is not made out.

Natural Justice
15. This and the remaining grounds can be disposed of quite shortly. As expressed by the applicant, the natural justice ground was thus:

"The applicant had no opportunity to contradict or otherwise deal with the finding of the Respondent that he was not of good character.

The submissions made by counsel for the applicant on this ground were, in substance, as follows:

1. The duty of procedural fairness involves the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case, and reference was made to Kioa v West (1985) 159 CLR 550.

2. In the original decision no notice of the proposed finding of bad character was given to the applicant. That finding was available at the time of the Immigration Review Panel application but its terms were such that there was no apparent room for dispute.

3. A copy of the policy was not given to the applicant.

4. The applicant's circumstances were such that there was a duty to act fairly.

5. The respondent had to do more than was done in this case to put the applicant in a position to make appropriate submissions.

This ground fails because the factual substratum for it is not made out. By the time he applied for reconsideration of the decision to refuse the grant of resident status, the applicant was well aware that the application had been refused in the first instance because of his criminal record. There was no reason to suppose that good character in other respects would not be at least considered by the Panel and the delegate. In fact material relating specifically to that issue was before the Panel when it made its recommendation and the delegate when she made her decision.

Failure to Consider Relevant Factors
16. The matters which, it is said, the respondent's delegate failed to take into account and which she was bound to take into account were as follows:

(a) the hardship to the applicant were he to be refused resident status and thereby be inevitably separated from his family;

(b) the extreme hardship that the applicant's wife and her children had already undergone as a result of the applicant's imprisonment;

(c) the applicant's support within the Australian community;

(d) the circumstances surrounding the applicant's convictions; and

(e) by amendment at the hearing of the application, material placed before the Immigration Review Panel relating to the good character of the applicant.

It is to be remembered that this ground cannot be made out unless the factors said not to have been taken into account are factors that the decision-maker was bound to have regard to. It requires the applicant to establish by evidence that there has been a failure to take into account the factor suggested. There is no doubt that the Panel and the delegate took into account the compassionate claims of the applicant's family. In the absence of comprehensive reasons for decision, the applicant cannot establish that the delegate failed to take into account the other factors which could reasonably be regarded as of lesser importance than the impact of his departure on his family. Some aspects of the history of hardship suffered by the applicant's wife and family were indeed before the Panel and there was reference in Mr Grant's letter to the hardship that the applicant himself had suffered. I do not consider that the delegate was obliged to take into account the level of support that the applicant enjoyed within the Australian community or to investigate that question. Nor was the delegate bound to investigate the background to the convictions. As to the additional ground, there was material relating to the applicant's character before the Panel. There is no evidence that it was disregarded by the delegate and her uncontested evidence is to the contrary.

1. In my opinion it has not been demonstrated that the power was exercised improperly in any of these respects. The application will therefore be dismissed.