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

[1989] FCA 330

Re: THE MINISTER OF STATE FOR IMMIGRATION LOCAL GOVERNMENT AND ETHNIC AFFAIRS
And: ABDOL HAMID PASHMFOROOSH and MARZIEH PASHMFOROOSH
No. G1385 of 1988
FED No. 330
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Burchett(1) and Lee(1) JJ.

CATCHWORDS

Administrative Law - immigration - application for permanent resident status - whether strong humanitarian or compassionate grounds - natural justice/procedural fairness - rejection of substance of respondents' case without providing reasons - whether failure to take relevant considerations into account - whether decision based on facts that did not exist

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Migration Act 1958 (Cth) - ss.6, 6A(1)(e)

Freedom of Information Act 1982 (Cth)

Kioa and Ors v. West and Anor (1985) 159 CLR 550

Akers v. Minister for Immigration and Ethnic Affairs (Unreported, 22 December 1988, Federal Court, Lee J.)

Khan and Ors v. Minister for Immigration, Local Government and Ethnic Affairs (Unreported, 11 December 1987, Federal Court, Gummow J.)

Singh and Anor v. Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4

Television Capricornia Pty Limited v. Australian Broadcasting Tribunal and Ors (1986) 70 ALR 147.

HEARING

SYDNEY

#DATE 28:6:1989

Counsel for the Applicant: Mrs P Flemming QC with Mr T.S. Murphy

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr F.M. Douglas QC with Mr M.B. Smith

Solicitors for the Respondent: Legal Aid Commission of New South Wales

ORDER

The appeal be dismissed with costs.

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

JUDGE1

This is an appeal from an order of review made by a single judge of this Court setting aside a decision of the Minister of State for Immigration and Ethnic Affairs not to grant permanent resident status to the respondents, Abdol Hamid Pashmforoosh and Marzieh Pashmforoosh, and remitting the matter to the Minister for reconsideration. The position of the respondents' two children, Arash and Shabnam, would appear to be identical with that of their parents, but the decision of the Minister did not in terms apply to them.

1. The proceedings before the learned trial Judge were brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth)("the ADJR Act"). His Honour concluded that, in the consideration of the respondents' claims for permanent resident status, the principles of natural justice had not been complied with and that the Minister had failed to take account of relevant considerations and had based his decision upon facts which did not exist.

2. A decision not to grant to the Pashmforoosh family entry permits pursuant to and in accordance with ss.6 and 6A of the Migration Act 1958 (Cth) was made by a delegate of the Minister in October 1985. The delegate informed Mr Pashmforoosh that the information provided was insufficient to warrant the grant of permits on strong humanitarian or compassionate grounds, the ground authorised by s.6A(1)(e) of the Migration Act. The delegate wrote that Mr Pashmforoosh had been in full time employment prior to his arrival in Australia and had not demonstrated that he or his family had been discriminated against. The delegate advised Mr Pashmforoosh of his right to seek a review of the decision and enclosed a leaflet outlining review procedures.

3. Subsequently, Mr Pashmforoosh sought a review of the decision and supplied further information. The Marrickville Legal Centre wrote on Mr Pashmforoosh's behalf and assisted in the presentation of further information. On 11 September 1986, an Immigration Review Panel reviewed the situation of the respondents and their children and, by majority, recommended that they be granted permanent resident status. Subsequently, the matter was considered by the Minister personally and, on 31 October 1986, the Minister refused the applications of Mr and Mrs Pashmforoosh.

4. The principal allegation as to procedural unfairness in the above proceedings is that, in the documents communicated to Mr Pashmforoosh pursuant to a request under the Freedom of Information Act 1982 (Cth), ("the FOI Act") parts of two cablegrams were deleted as being exempt material under the FOI Act. The trial Judge considered that the cablegrams in their totality would have played a part in the handling of the applications and that Mr and Mrs Pashmforoosh should have been given an opportunity to comment upon the deleted material. However, on 4 August 1986, a departmental officer had noted with respect to the cablegram:-
   

"I understand the Embassy's concerns. However, these have no relevance to the validity or otherwise of the family's claims. As such I do not consider these views to be a factor in assessing whether the applicant satisfies the legal and policy requirements of ss.6A(1)(e) of the Migration Act".

So whether or not the cablegrams played any part in the decision of the delegate in October 1985 - and they were not adverted to in any way by the letter he wrote communicating his decision - they did not after August 1986 play a part. The Immigration Review Panel specifically noted that the departmental view did not take the deleted material into account. Although the cablegram went to the Minister with the whole of the file for his consideration, the reasons stated by him pursuant to s.13 of the ADJR Act specifically mentioned that:-

"I did not consider these matters relevant to my decision to grant or refuse resident status and, consequently, I did not take into account this information while considering the applicant's application."

1. Procedural fairness does not require that every document that may be regarded as adverse to an applicant which is on a departmental file must be disclosed to the applicant. What is necessary to provide procedural fairness must be judged according to the circumstances of the case. As Mason J. said in Kioa & Ors v. West & Anor (1985) 159 CLR 550 at p 585:-
   

"... the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: cf. Salemi (No. 2) (1977) 137 CLR 396 at p 451, per Jacobs J."

Earlier at p 582 his Honour had referred to the traditional view that:-

"... generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v. Randwick Municipal Council (1976) 136 CLR 106, at p 109; Salemi (No. 2) (1977) 137 CLR 396 at p 419; Ratu (1977) 137 CLR 461 at p 476; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at pp 498-499; F.A.I. Insurances Ltd. v. Winneke

(1982) 151 CLR 342 at pp 360, 376-377; Annamunthodo v. Oilfields Workers' Trade Union

(1961) AC 945."

1. In the present case, the deleted material related primarily to a person other than the respondents. The Minister considered the matter raised to be irrelevant as did the Immigration Review Panel and the officer who had made an entry to that effect in August 1986. In these circumstances, there was no call to disclose the material to Mr and Mrs Pashmforoosh. A departmental file should not be regarded in the same light as material put before a quasi-judicial tribunal for its consideration. A departmental file is the repository of all documents relating to a particular matter. Not all those documents need be disclosed to an applicant.

2. Access to the deleted material in the allegations had been refused because the material was exempt under the FOI Act. If, subsequently, when the information was considered to be irrelevant, the Department had made the material available to the respondents for comment, the respondents would effectively have been called upon to deal with an extraneous matter which was not being taken into account. Such a course would have been the antithesis of good administration and was not required by principles of procedural fairness.

3. That is not to say that adverse information or submissions may always be withheld from a person the subject of a decision, simply on the ground that the decision-maker declares himself uninfluenced by the information or submissions. Even matters which in strictness are lacking in relevance may sometimes have a damaging potential which demands the granting of an opportunity to reply. A number of the cases are collected in Colpitts v. Australian Telecommunications Commission (1986) 9 FCR 52 at 71. In the particular circumstances of Kioa v. West (supra), at 602-603, Wilson J. declined to consider whether a paragraph of a submission, which there had been no opportunity to answer but which had received no mention in the decision, had in fact been in any way influential. See also the remarks at 628-629, of Brennan J. who referred to the risk of subconscious prejudice, and Youssef v. Minister for Immigration and Ethnic Affairs (Unreported, Federal Court of Australia, Foster J., 16 November 1987, pp 23, 25-26). However, the facts of the present case are far removed from matters of the kind their Honours were considering.

4. The other five matters to which the trial Judge referred in the context of natural justice were not strongly relied upon in this appeal by Mr F.M. Douglas QC, with whom Mr M.B. Smith of counsel appeared for the respondents. Three of these were simply findings of fact which were drawn from and which were open on the material which Mr Pashmforoosh had submitted. The other two matters were not mentioned in the Minister's statement of reasons and formed no part of his consideration. A decision-maker is not bound to give notice of every adverse comment that may have been made in a departmental file.

5. We can see no element of procedural unfairness in the way the Minister and his department handled the respondents' applications.

6. However, we agree with the trial Judge that the Minister failed to take into account relevant considerations and failed to consider the substance of the respondents' case.

7. Mr and Mrs Pashmforoosh had spent some years in the United States of America and their son, Arash, had been born there and thus held American citizenship. Mr Pashmforoosh had put the case that, in part because of the family's known association with America and in part because of his association with a number of persons who were suspected of supporting the Mujaheedin cause, the family had been the subject of surveillance and harassment. The son, Arash, aged 9, had faced difficulties at school and had been required to attend re-education and para-military classes. Mr Pashmforoosh had been detained and questioned for 24 hours in 1982 and was questioned again for 24 hours approximately two months before the family left Iran. Mr Pashmforoosh alleged that he had been constantly harassed by government agents who somehow identified him as having a hostile attitude to the Islamic revolution. He made it clear that he had come to the view that he and his son were both in danger so that it was necessary to leave Iran quietly and without fuss and that it was for that reason that he had obtained the 4 months tourist visas authorising entry into Australia. Corroborative of Mr Pashmforoosh's story is that the application for permanent resident status was formally lodged with the Department within this 4 months period.

8. It may well be that, as the decision of the delegate not to grant change of status and the reasons for decision of the Immigration Review Panel suggest, the position of the Pashmforoosh family was not so unusual that, had they applied for permanent resident visas while in Iran, the visas would have been granted - though we would not overlook the remarks of Burchett J. in Sinnathamby & Ors v. Minister for Immigration & Ethnic Affairs (1986) 66 ALR 502 at p 516. Nevertheless, the majority of the Immigration Review Panel thought that the possible repercussions on the Pashmforoosh family, particularly the son, should they return to Iran, were such as to provide strong compassionate and humanitarian grounds for the grant of permanent residency. The majority thought that the Pashmforoosh family had put itself at risk by coming to Australia and that strong compassionate and humanitarian grounds were established.

9. The report of the Immigration Review Panel went to the Minister with a note dated 17 September 1986 from an officer of the Department:-
   

"This is one of a number of resident status cases where Iranians base their claims on possible repercussions if required to return to Iran, dislike the conditions in Iran and the family member is likely to be called, in the future, for military service. I support the minority recommendation to maintain the decision refusing resident status."

On 31 October 1986, the Minister noted on the report of the Immigration Review Panel:-

"I have received further information and agree with the minority. Change of status refused."

The further information appears to have been the note of 17 September 1986.

1. The note of 17 September 1986 did not do justice to the substantial merits of the respondents' case for it treated the respondents' case as if it were simply a case in which Iranians disliked conditions in Iran and a family member could be called up for military service. The note did not mention the specific problems which Mr Pashmforoosh had encountered because he and his family had spent time in America and because he was suspected of association with persons who might have been supporters of the Mujaheedin cause. Moreover, the reference to the possible call-up for military service of a family member scarcely did justice to the point that the son, Arash, only 9 years of age, might be called upon to 'volunteer' to assist the armed forces, a possibility which had been recognised by the majority of the Immigration Review Panel.

2. A like failure to consider the actual circumstances of the Pashmforoosh family appears in the reasons stated by the Minister under s.13 of the ADJR Act. In particular, paragraphs 17 and 18 said inter alia:-
   

"... Nevertheless, I found that the first Applicant has no political profile: he was never detained, arrested or interrogated. ... (T)he circumstances outlined by the first Applicant did not appear to be specific acts of discrimination against him or his family. They could equally apply to the majority of the Iranian population."

This was not the story that Mr Pashmforoosh had put. In his original application, he claimed that he had been continually harassed. In his further submission to the Immigration Review Panel, he gave details of harassment and of problems personal to his family including two instances, one in 1982 and one two months before he left Iran when he had been detained for questioning for 24 hours. Such details provided evidence in support of the application for residence status.

1. Mrs P. Flemming QC, with whom Mr T.S. Murphy of counsel appeared for the Minister, submitted that the facts were for the Minister and that he was entitled to reject the assertions made by the respondents. She submitted that the Minister must be taken to have rejected what Mr Pashmforoosh had put both in the original application and in his further submission on review.

2. However, a decision-maker, who is required by s.13 of the ADJR Act to give reasons for his decision, may be found to be in error if the statement simply rejects the substance of an applicant's case without giving reasons which can rationally support that rejection.

3. Federal legislation emphasises the need for reasoned decision-making. See eg. the FOI Act, s.13 of the ADJR Act, ss. 28(1) and 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). Thus, decisions may be set aside because, being insufficiently supported by reason, they appear to be an improper exercise of the power conferred or arbitrary or because there was no evidence or other material sufficient to justify the making of the decision or the decision was so unreasonable that no reasonable person could have so exercised the power. The making of, or failure to make, a particular finding of fact in the course of the reasoning process may equally be attacked on any such ground. The taking into account of a fact found unreasonably or the failure to take into account a fact that a reasonable decision-maker would have found and taken into account provides a ground of review under ss.5(1)(e) and 5(2)(a) and (b) of the ADJR Act.

4. The point has been put in many different ways. Thus, in Singh and Anor v. Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4, Forster J. said at p 10:-
   

"If assertions of important facts were disbelieved without reason then I should suppose that the decision-maker would be guilty of 'failing to take a relevant consideration into account.'"

In Television Capricornia Pty Limited v. Australian Broadcasting Tribunal and Ors (1986) 70 ALR 147, Wilcox J. said at p 150-151:-

"A finding made without appropriate evidence will generally be erroneous in point of law: see Smith v. General Motor Cab Co Limited

(1911) AC 188 at 190."

In Akers v. Minister for Immigration, Local Government and Ethnic Affairs (WAG 147 of 1988, delivered 22 December 1988) Lee J. said:-

"To proceed to a decision upon the misapprehension of matters material to the decision, may be described as an improper exercise of power (see Minister for Immigration and Ethnic Affairs v. Haj-Ismail

(1982) 40 ALR 341 at pp 348 and 365 and Sezdirmezoglu v. Acting Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561 at pp 572-573)."

In Khan and Ors v. Minister for Immigration and Ethnic Affairs (G159 of 1987, delivered 11 December 1987) Gummow J. said:-

"It is not for the Court to study administrative decisions too finely or precisely; they are to be regarded carefully but sensibly, and not zealously in the pursuit of error. (Smith v. MIEA (1984) 53 ALR 511 at 544 per Lockhart J.). Nevertheless, in my opinion, on the whole of the evidence the applications in question were not each given proper, genuine and realistic consideration upon the merits."

See also the remarks of Sheppard J. in Hindi v. Minister for Immigration & Ethnic Affairs (1988) 16 ALD 526 at 528-9.

1. Although the Minister's reasons are four pages in length and set out much factual information, the reasons do not fairly state the respondents' case or fairly address the point made by the majority of the Immigration Review Panel, a relevant consideration, that by their actions, the Pashmforoosh family had put themselves at risk should they return to Iran.

2. Because the Minister proceeded upon facts which were not the facts put by the respondents and the assertions made by the respondents were not squarely addressed and reasons given for rejecting them, the Minister failed to take into account material considerations and proceeded on the basis of facts that were not before him. A case such as this is well described by the words of Gummow J. in Khan and Ors v. Minister for Immigration and Ethnic Affairs, cited above and by Davies J. in Minister for Immigration & Ethnic Affairs v. Daniele (1981) 61 FLR 354 at p 369..

1. We would therefore uphold the judgment of the trial Judge that the Minister's decision be set aside and that the matter be remitted for reconsideration. The appeal should be dismissed with costs.