Videto v Minister for Immigration and Ethnic Affairs
[1985] FCA 449
•06 SEPTEMBER 1985
Re: WAYNE BRENTON VIDETO
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. WA G73 of 1985
Administrative Law - Immigration and Aliens
8 FCR 167
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.(1)
CATCHWORDS
Administrative law - application for stay of deportation order pending hearing of application under Judicial Review Act for review of Minister's decision to deport - whether applicant must establish a serious question to be tried - relevance of grave consequences flowing from refusal or grant of stay.
Administrative Decisions (Judicial Review) Act 1977 para.5(1)(e) and (g), sub-s.5(2)
Migration Act 1958 para.6A(1)(e), sub-s.7(2) and s.18
Immigration and Aliens - Prohibited immigrants - Deportation - Minister's discretion - Relevant considerations - Possible grant of temporary entry permit - Possible entry permit on compassionate grounds - Information not provided to Minister - Applicant misled by departmental officers - Minister's duty to initiate inquiries - Whether decision "unreasonable" - Migration Act 1983 (Cth), ss 6A(1)(e), 18.
Administrative Law - Judicial review - Relevant considerations - "Failure" to take into account - Relevant information not before decision-maker - Whether duty to initiate inquiries - Prohibited immigrant misled by departmental officers - Relevant information not provided - Deportation order by Minister - Decision "unreasonable" - Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(2)(g).
HEADNOTE
Held: (1) The Minister's decision to deport the applicant pursuant to s 18 of the Migration Act 1983 was not so unreasonable that no reasonable person could have come to it. This was so, even taking into account the information which the applicant could have provided to departmental officers, for inclusion in a report to the Minister, if he had not been led to think it was irrelevant.
McVeigh v. Willarra Pty Ltd (1984) 57 ALR 344; Prasad v. Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, applied.
(2) The Minister's attitude to the grant of a temporary entry permit and to the possible grant of an entry permit under s 6A(1)(e) of the Migration Act 1983 was an integral part of his decision that the applicant be deported. If the Minister's conclusions on those matters were affected by irrelevant considerations or by a failure to take into account relevant considerations, his decision to deport was similarly affected.
Kioa v. Minister for Immigration and Ethnic Affairs (1984) 53 ALR 658, approved.
(3) Section 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 does not, generally speaking, impose an obligation on the decision-maker to initiate inquiries to discover all relevant considerations, but much will depend upon the nature of the material before the decision-maker, the importance of the decision to be made and its consequences for the person to whom the decision relates.
Turner v. Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180; Kioa v. Minister for Immigration and Ethnic Affairs (1984) 53 ALR 658, approved.
(4) The Minister will have failed to take into account a relevant consideration in arriving at his decision to deport a person if
(a) an officer of his department withholds relevant information from the Minister, or
(b) an officer of his department, albeit innocently, dissuades or discourages a person from giving relevant information, particularly where the person has not had the benefit of any legal or other advice. (5) There was information in this case which, had the departmental officers not led the applicant to believe it was not relevant, would have played an important part in the Minister's consideration of whether a temporary entry permit should issue, whether there were strong compassionate or humanitarian grounds for the grant of an entry permit and hence whether a deportation order should issue. Accordingly, the applicant was entitled to an order for review on the grounds contained in s 5(2)(g) of the Judicial Review Act.
Minister for Immigration and Ethnic Affairs v. Haj-Ismail (1982) 57 FLR 133; Sezdirmezoglu v. Acting Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561, approved.
HEARING
Perth, 1985, August 30; September 2, 6. #DATE 6:9:1985
APPLICATION
Application under s 5 of the Administrative Decisions (Judicial Review) Act 1977 for an order of review of the respondent's decision that the first applicant be deported pursuant to s 18 of the Migration Act 1983.
D McKenna, for the applicants.
R. E Birmingham, for the respondent.
Cur adv vult
Solicitors for the applicant: Director of Legal Aid.
Solicitors for the respondent: Australian Government Solicitor.
FPC
ORDER
Proceedings under the decision of the Minister to deport the applicant be stayed until determination of this application or until further order.
The hearing of this application be fixed for Friday, 30 August 1985 at 10.15 a.m.
Direct that the respondent file any affidavits in answer to the applicant's affidavits by Monday, 26 August 1985.
The applicant file any affidavits in reply by Wednesday, 28 August 1985.
Liberty to the applicant to apply for his release from custody.
Liberty to parties to apply generally.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
Application allowed
JUDGE1
This is an application under the provisions of the Administrative Decisions (Judicial Review) Act 1977 for a review of a decision by the Minister for Immigration and Ethnic Affairs that Wayne Brenton Videto be deported pursuant to s.18 of the Migration Act 1958.
On 9 August 1985, while I was in Sydney and there was no Judge of the Federal court in Western Australia, I heard by telephone a motion on behalf of the applicant that the respondent be restrained from executing the deportation order until the application for review had been determined. After hearing counsel for the applicant and the respondent, I granted an injunction until 19 August. On that day (yesterday) counsel appeared and made submissions relating to the continuance of the injunction. The applicant was due for deportation on Sunday 11 August.
The applicant is a Canadian citizen and he was born in Canada on 28 February 1942. He came to Australia in about 1969, decided to make Australia his home, went back to Canada to finalise his affairs in that country and returned to Australia about a year later. Early in 1971 he met Valerie Gillespie and they were married on 13 June that year. On 13 July 1973 their child Andrew James Videto was born.
In 1972 or 1973 the applicant was granted a permanent entry permit under the provisions of the Migration Act as they then stood. About a year after the child's birth, the applicant returned to Canada. Between the birth of his child and his departure for Canada the applicant seems to have spent little time with his family. The reasons, as deposed to in an affidavit sworn in support of the application for review, was that he needed to be elsewhere to get good jobs.
The applicant remained in Canada for 2 years or so and, in his words, "during this time the contact with my wife and child faded". He returned to Australia on a 6 months visitor's visa; although no date is mentioned for his return, it must have been in 1976 or thereabouts. The applicant was unable to make contact with his wife and child and after a few days returned to Canada.
A year or two later the applicant received a letter from his wife who was living with another man by whom she had two children. About a year later (no precise date is mentioned) the applicant once more returned to Australia, again on a 6 months visitor's visa. He spent about 10 days with his wife in Sydney and she then returned to Queensland where she was living. A reconciliation was discussed as Mrs. Videto was no longer living with the other man. The applicant again returned to Canada to wind up his affairs in that country with, he says, a view to returning to Australia to join his wife, their child, and his wife's other children. The applicant corresponded with his wife but some years must have gone by without any attempt by him to return to Australia.
At the end of 1983 the applicant received a letter from his wife saying that she was ill and early in 1984 another letter saying that she was worse. In fact she had cancer from which she died in 1984. Mrs. Videto's mother, Mrs. Gillespie, lives at Palm Beach in Queensland and has had the care of the three children since her daughter's death.
In November 1984 the applicant once more travelled to Australia, again on a 6 months visitor's visa. He did not go immediately to Queensland but went to the Northern Territory where he worked for a time. He sent $1,000 to his son and thereafter spent 3 weeks with Mrs. Gillespie and the child at her home in Palm Beach. In a search for work he went back to the Northern Territory and then moved to Western Australia. His visa expired and, on attending at the Immigration Department in Perth to seek an extension of the visa, he was apprehended and detained at the Immigration Detention Centre.
The applicant's account of his relationship with his wife and child is in many respects a curious one and leaves much unexplained. But at this stage I am not determining the substantive application, only deciding whether the existing order should continue. For this reason I propose to say little more about the family history other than that the applicant has produced correspondence evidencing a friendly relationship between him and his son.
As formulated, the application for review relies upon para.5(1)(e) of the Judicial Review Act viz. that the making of the decision was an improper exercise of power. With reference to sub-s.5(2), the applicant relies upon para.(b) viz. failing to take a relevant consideration into account. The relevant considerations which, it is said, the Minister failed to take into account are the importance of the need to maintain and foster a close personal relationship between the applicant and his son, the fact that the boy is subject to a guardianship order in favour of his maternal grandmother and may therefore not join his father in Canada if that is his wish, and that the effect of the decision is to deny the applicant access to his son because of a governmental policy preventing deportees from returning to Australia within a period of 5 years from their deportation. These are matters the respondent says he has taken into account and points to correspondence with the applicant in which reference is made to his previous residence in Australia, his marriage and the existence of his son. The applicant's reply is that while the Minister may have had literal regard to these facts, he has made no assessment of their importance. At this stage the Minister has not furnished a statement of reasons.
What the applicant seeks to do is to gain a further entry permit under sub-s.7(2) of the Migration Act and, as the holder of a temporary entry permit, argue that there are strong compassionate or humanitarian grounds for the grant of an entry permit to him pursuant to para.6A(1)(e) of the Act.
Through his counsel the applicant has said that if the application proceeds to a substantive hearing he will seek to amend the application so as to contend, with reference to para.5(2)(g) of the Judicial Review Act, that there was an improper exercise of power in so far as the decision was so unreasonable that no reasonable person could have made it. I say nothing about that matter at this stage. But what seems to me of more importance is a contention in an affidavit sworn by the applicant in which he says that he was interviewed by an officer of the Department of Immigration and Ethnic Affairs. In the course of that interview he said that he believed his case to be one of strong humanitarian and compassionate grounds arising from his relationship with his son. The affidavit then continues:
"This person then said 'your son is twelve years old. He is out of the question. He can't sponsor you.' I believed as a result of this response that I had no grounds for pursuing an application for change of status. I was then asked if I had any other reason I wished to advance in support of an application and I did not say or put anything down on the form because I believed from what I had been told that I had no grounds".
In effect this amounts to a contention that the applicant was misled by the advice he received. In the absence of any answering affidavit, I express no view on the accuracy of the applicant's account of the conversation. Furthermore the applicant does not at this stage rely upon the conversation as a ground for review.
But when this matter is taken into account together with all the circumstances of the relationship between the applicant and his son, I am of the opinion that there is a serious question to be tried. I shall assume that to be the appropriate test, having regard to a number of recent decisions including Karatas v. Hurford (unreported decision of Wilcox J., delivered 14 June 1985) and Samuels v. Hurford (unreported decision of Woodward J., delivered 1 August 1985). Nevertheless I have strong reservations that this is indeed the appropriate test. Although reference is made in the papers to an interlocutory injunction, the appropriate relief is an order suspending the operation of the decision of the Minister or staying any proceedings under that decision, pursuant to s.15 of the Judicial Review Act. The analogy of any interlocutory injunction is not necessarily appropriate. In that regard I refer to the remarks of Jenkinson J. in Dallikavak v. Minister of State for Immigration and Ethnic Affairs (an unreported decision of a Full Court of this Court of which Jenkinson J. was a member, delivered 6 August 1985). His Honour said:
"There will be occasions when the exercise of the power is sought at a time when the refusal (or the grant) of a stay will have grave consequences, but it is impossible to form any view as to whether there is such a question to be tried. There will be cases in which the prejudicial consequences for the applicant of refusal of a stay (or for the community of grant of a stay) are of a kind or degree outside the contemplation of those who frame the criteria governing the grant of interlocutory injunctive relief in litigation concerning proprietary and contractual interests".
Jenkinson J. adopted with approval the criterion suggested by Keely J. in Perkins v. Cuthill (1981) 52 F.L.R. 236 at 238 - "s.15(1)(a) requires an applicant to satisfy the court that reasons or circumstances exist which make it just that the court should make the order sought". I respectfully agree.
I am of the opinion that it is just that there be a stay of the Minister's decision to enable the applicant to present his case for review. If it be necessary to go further, I am of the opinion that there is a serious question to be tried. Subject to what counsel may have to say as to the appropriate form of order, I am of the opinion that there should be a stay of the Minister's decision to deport the applicant, until the hearing of this application.
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