Waniewski v Minister for Immigration and Ethnic Affairs
[1986] FCA 582
•27 NOVEMBER 1986
Re: ELIZABETH WANIEWSKA
And: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. VG377 of 1986
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Keely J.
CATCHWORDS
Administrative Law - judicial review - decisions to refuse permanent resident status and order deportation - breach of rules of natural justice - whether inference drawn was open on material - whether applicant entitled to opportunity to respond to adverse inferences draw - taking into account irrelevant considerations - failure to take into account relevant consideration where no real enquiry into applicant's claim - inadequacy of interpreter services - unreasonableness of conclusion reached - whether Australian policy applicable to citizens from country which prevents emigration to Australia.
Administrative Decisions (Judicial Review) Act 1977 ss. 5, 13
Migration Act 1958 ss. 6, 6A, 18
Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321
Kioa v. Minister for Immigration and Ethnic Affairs (1984) 55 ALR 669
Sinnathamby v. Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502
Singh v. Minister for Immigration and Ethnic Affairs (unreported, Wilcox J. 4/12/85)
HEARING
MELBOURNE
#DATE 27:11:1986
Solicitors for Applicant : Ellison, Hewison & Whitehead
Counsel for Respondent : Mr. R. M. Downing
Solicitors for Respondent : Australian Government Solicitor
JUDGE1
This is an application, dated 30 October 1986, for an order of review under s. 5 of the Administrative Decisions (Judicial Review) Act (the ADJR Act) in respect of four decisions, made on 27 October 1986, by a delegate (the delegate) of the respondent Minister. A stay of the decision to order the deportation of the applicant was granted by Jenkinson J. on 30 October 1986, which stay was continued by order of Ryan J. on 7 November 1986. Those four decisions were made under the Migration Act in respect of Elizabeth Waniewska (the applicant), and were set out in a statement of reasons, dated 31 October 1986, furnished by the delegate under s. 13 of the ADJR Act. The material part of that statement of reasons was as follows:
"(i) I refused to grant a further temporary entry permit pursuant to Section 6 of the Migration Act 1958 (the Act);
(ii) I refused the grant of permanent residence (sic) status to the applicant under S.6A of the Act;
(iii) I refused to allow the applicant to depart from Australia voluntarily;
(iv) I ordered the deportation of the applicant under S.18 of the Act.
I based my decisions on the attached submission from Paul H Borg and the annexures thereto.
I adopted the findings at Part A of that submission as my findings on material questions of fact.
I accepted these findings of fact on the evidence before me as set out in Part B of that submission.
I adopted the reasoning set out in the assessment at Part C of that submission and that sets out the reasons for my decision.
Keith T. Owen
Delegate of the
Minister of State for
Immigration and Ethnic Affairs 31/10/86"
Mr. R. Tracey, of counsel, who appeared for the applicant, announced during the hearing that the applicant was not pursuing her application to review the decision in (iii) above. The "attached submission from Paul H. Borg", (the departmental submission) referred to by the delegate consisted of more than 14 typed pages. Although all of it is relevant, it is sufficient to quote the introductory portion and then from paragraph 30 to the end. Those parts were in the following terms:
"Regional Director
Elzbieta Waniewska (the subject)
Purpose
1. To recommend that you adopt the findings on material questions of fact and the assessment set out below, having regard to the evidence at attachments (A) to (MM) and, if you accept the assessment:
- refuse the grant of a further temporary entry permit to the subject
- refuse the grant of resident status to the subject
- refuse voluntary departure in respect of the subject
- sign an order for the deportation of Elzbieta Waniewska
A. Findings on Material Questions of Fact
. . . .
30. The subject was located hiding in the ceiling of her relatives place of residence in Seddon on 16 September 1986 by departmental officers. She was placed in custody, pursuant to section 38 of the Migration Act 1958 (the Act) as a suspected prohibited non-citizen, at the Immigration Detention Centre Maribyrnong.
31. At an interview on 16 September 1986, conducted with the aid of a Polish interpreter, the subject stated that she:
. had not previously visited Australia.
. had not sought migrant entry from overseas. She added that had she done so the Polish authorities would not have permitted her to leave Poland.
. had sought a further entry permit on 30 July and 29 October 1985, and had been rejected by departmental letters dated 2 August and 14 November 1985.
. had sought permanent residence and lodged a written enquiry dated 26 June 1985 which was rejected in writing on 2 August 1985. (In fact she lodged a written enquiry as to her eligibility for change of status to permanent resident. She was counselled against applying and advised to depart from Australia.)
. had made several approaches to this Department through relatives, friends and political figures in order to remain here permanently.
. was single.
. had no close romantic relationship in Australia. She added that she had occasionally gone out with a male friend whose first name is Leszek and whose surname she does not know. (No mention was made of Tadeusz Kapelan, the man whom she had previously made arrangements to marry on 2 December 1985 and on the basis of which she had sought a further entry permit on 29 October 1985.)
. had an aunt and two cousins in Australia and had her parents, two sisters and a brother in Poland.
. had worked overseas as a teacher and that she had not worked in Australia.
. had completed technical college in the field of leather products and that she was also a qualified art, music and chemistry teacher in the lower grades.
. had formal skills and qualifications as a teacher and leather worker.
. had no return ticket (believed lost).
. had only clothing in Australia and no assets overseas.
. was not criminally recorded either overseas or in Australia, and that she had not previously been deported or excluded from any country and that she had received directions to leave Australia on 2 August, 18 October and 14 November 1985 and on 9 July 1986.
. wished to remain in Australia because it is socially, politically and economically better than Poland where work conditions are bad. She added that what she teaches in Poland is dictated by the government rather than based on fact and that Australia offers a better future.
. objected to deportation because she wishes to remain in Australia for the reasons given above.
. would inform this office within forty-eight hours if she wishes to depart voluntarily rather than be deported.
. had representations made on her behalf previously (and answered by this Department).
. had not received Social Security benefits and did not have a Medicare Card.
. believed that if she returns to Poland she will never be allowed to leave again and that she will lose her employment.
32. On 17 September 1986 the subject's cousin telephoned this office to enquire about the possibility of voluntary departure and later on that same day Odra Travel confirmed that a ticket had been purchased for the subject's departure from Australia on 25 September 1986.
33. On 22 September 1986 the Acting Regional Director considered the question of the subject's voluntary departure and approved it, subject to departmental supervision of her movement from Australia. Arrangements were then made to have the subject's departure on 25 September 1986 supervised by the department.
34. However, on 24 September 1986, the subject's new solicitor lodged her application for resident status under Section 6A(1)(e) of the Act. In brief, the subject fears to return to Poland because, as a member of an illegal group, "The Society of Teachers for True Expression" she will be arrested and tried on her return and she will then face severe discrimination in employment, housing and the acquisition of food, clothing and other goods for the rest of her life. She also fears legal action against her to punish her for her attempts to leave the Polish State.
In her application she also claimed that in a telephone conversation with her aunt in Australia, her mother in Poland had advised that twelve of the 25 members of the society had been arrested and detained and that a list of members had fallen into the hands of police and therefore she would also be arrested and detained the moment she returned to Poland.
35. The subject's solicitor acknowledged that by lodging an application for change of status, his client was in effect refusing to depart voluntarily and he was advised that she will be deported should her application for residence be refused. He was also informed that she would not be released from custody pending consideration of her application. The solicitor also lodged a request under the Freedom of Information Act on 24 September 1986 seeking access to all documents held on the department's file in this case. On the same day the solicitor informed in writing that Ms Waniewska would not be leaving Australia voluntarily on 25 September 1986, pending the determination of the application for residence status.
36. In a cable from the Australian Embassy in Warsaw dated 1 October 1986 it was stated that:-
. in their judgement any person gaoled for the activities described by the subject (in her application for resident status in Australia) would have been released in the recent amnesty;
. should she now return to Poland the subject will have lost her job and will have difficulty getting another passport for deliberately overstaying her exit authority;
. the subject is unlikely to encounter any harassment or persecution on her return unless she immediately commences overt opposition activities.
37. On 14 October 1986 a telex was received from our Central Office (which had contacted the Australian Embassy in Warsaw) concerning the subject's grounds for applying for resident status and it stated that:-
. Warsaw Embassy sources did not know of the existence of the group to which the subject claimed membership;
. the subject's mother with whom she had lived in Poland until her departure for Australia had been interviewed and claimed that she was not aware of her daughter's political/union activities, that her daughter had never had any police problems or harassment from any source and that she did not have knowledge of her daughter's work colleagues being harassed or imprisoned.
. it was possible that the subject may not have confided in her mother, but unlikely that she could be an activist without her mother, with whom she lived, having some general knowledge of the situation.
38. On 14 October 1986 the subject's claims to resident status were assessed by the Resident Status Sub-Section. Although it was accepted that the subject would have some difficulty in obtaining another passport because she had overstayed her exit visa and that she had neither worked nor obtained benefits in Australia, her claims that she faced severe dificulties on her return to Poland were found to be unproved. Her application was recommended for rejection as she does not meet the conditions of Section 6A(1)(e) of the Act, and on 17 October 1986 the Acting Officer-in-Charge, Resident Status Sub-Section, supported the recommendation for rejection.
39. On 16 October 1986 the subject was interviewed, in the presence of her Solicitor, regarding the information obtained by our Warsaw Embassy in relation to her claims about her possible harassment on her return to Poland. In reply to several statements the subject stated that:-
. she was not surprised to hear that there was no trace of the secret organisation to which she belonged. She added that the organisation had been discovered by the School Director and that as it was a local matter, its existence would not be known nationally;
. she had, as stated by her mother, lived with her mother until the time she left for Australia;
. her mother did not know that she was involved with the organisation as it was illegal and kept secret. She confirmed that she had no police problems before her departure adding that the organisation had not been discovered by the authorities before she left Poland. She added that her mother found out about her involvement in the organisation only after she left for Australia;
. her mother had said that she was unaware of the imprisonment/ harassment of the subject's teaching colleagues because had she said otherwise, she (the mother) would be accused of assisting the subject's colleagues. She added that he mother had said she did not know, out of concern for her family in Poland;
. she agreed that it was only an assumption that people who had disappeared had been imprisoned;
. her letters to her mother had been confiscated;
. she thinks that her mother deliberately withheld information from our Warsaw Embassy out of her fear of the Polish Authorities.
40. On 17 October 1986 the report of the latest interview with the subject was referred to the Resident Status Sub-Section for assessment. It was concluded by the case officer in that section that:-
. the subject had failed to establish her connection with the "Teachers for Free Expression" organisation.
. even if she is connected with it, she failed to establish that she will be harassed or discriminated against on her return to Poland;
. the Australian Embassy in Poland believes it is unlikely that the subject will encounter harassment or prosecution unless she immediately commences overt opposition activities;
. the subject's application for resident status should still be rejected.
41. The Officer-in-Charge, Resident Status Sub-Section, concurred with the above assessment and recommendation on 17 October 1986.
B. Evidence or Other Material on Which the Findings are Based
42. The above findings of fact are based on the following attached material:-
. Polish passport No. 222508 issued to the subject on 1 April 1985 valid until 31 March 1987 which confirms her personal particulars and which contains her visitor visa No. 155 31416P and her conditional TEP (Attachment A);
. The subject's written enquiry of 26 June 1986 to determine her eligibility for change of status and the departmental assessment and verbal advice to the subject thereon of 29 July 1985 (Attachment B).
. Departmental letter of 2 August 1985 counselling the subject against applying for resident status (Attachment C).
. The subject's application of 30 July 1985 for a further entry permit and the departmental assessment thereon (Attachment D).
. Departmental letter of 2 August 1985 informing the subject that her application for a further TEP had been refused and directing her to leave Australia (Attachment E).
. Telephone and written representations of 31 July and 5 August 1985 respectively from the office of Mr Ralph Willis MHR (Attachment F).
. Letter of 14 August 1985 from the Mayor of Footscray (Attachment G).
. Cable of 26 September 1985 from the Australian Embassy Warsaw (Attachment H).
. Departmental letters of 18 October 1985 to Mr Ralph Willis, MHR, the Mayor of Footscray and to the subject in which the latter was directed to leave Australia (Attachment I).
. Telegram of 23 October 1985 to the
subject and her cousin's telephonic response (Attachment J).
. The subject's application of 29 October 1985 for a further TEP with a note dated 28 October 1985 from the Office of the Government Statist (Attachment K).
. File note of 14 November 1985 recording the decision by the Assistant Director, Residence, to refuse the subject's application for a further TEP in order to marry here (Attachment L).
. Departmental letter of 14 November 1985 informing the subject that her application for a further TEP had been refused and directing her to leave Australia (Attachment M).
. Letter of 25 October 1985 to the Minister from the subject's aunt (Attachment N).
. Departmental telegram of 20 November 1985 replying to the letter of 25 October 1985 from the subject's aunt (Attachment O).
. File note of 21 November 1985 recording a telephone conversation with the subject's aunt (Attachment P).
. File note of 22 November 1985 recording the interview with the subject's uncle regarding her departure booking (Attachment Q).
. Undated file note recording a telephone conversation with the subject with the assistance of the Telephone Interpreter Service. (Attachment R).
. File note of 23 December 1985 recording the interview with the subject's solicitor (Attachment S).
. File note of 24 December 1985 recording the two calls to the office of the subject's solicitor and a call to Qantas (Attachment T).
. File note of 19 February 1986 recording a telephone conversation with the subject's solicitor (Attachment U).
. File note of 25 February 1986 recording a further telephone conversation with the subject's solicitor (Attachment V).
. File notes dated 27 February and 4 March 1986 recording the visit to the subject's address, the information received from her relatives and a message from the subject's solicitor (Attachment W).
. File note of 12 March 1986 recording a telephone conversation with the subject's solicitor and the arrangements made to meet the subject at the airport (Attachment X).
. File note of 14 March 1986 recording a message from the subject's solicitor, the two attempts to contact him and the cancellation of the arrangements to meet the subject at the airport (Attachment Y).
. Letter dated 15 June 1986 to the Minister from Miss Helen Tybura (Attachment Z).
. Departmental reply of 9 July 1986 to Miss Helen Tybura in which it is stated that the subject was expected to make immediate departure arrangements (Attachment AA).
. Record of interview with the subject on 16 September 1986 (Attachment BB).
. File notes of 17 September 1986 recording telephone conversations with the subject's cousin and with her travel agent (Attachment CC).
. File note of 27 September 1986 recording the Acting Regional Director's decision to allow the subject to depart voluntarily (Attachment DD).
. File note of 24 September 1986 recording the interview with the subject's new solicitor (Attachment EE).
. The subject's application for resident status of 24 September 1986 together with her solicitor's covering letter, her application for a further TEP, and Freedom of Information request (Attachment FF).
. Letter dated 24 September 1986 from the subject's solicitor advising that the subject would not be departing voluntarily (Attachment GG).
. Cable dated 1 October 1986 from the Australian Embassy Warsaw (Attachment HH).
. Telex dated 14 October 1986 from Central Office (Attachment II).
. Assessment dated 14 October 1986 of the subject's application for resident status and the recommendation thereon (Attachment JJ).
. Record of interview of 16 October 1986 with the subject (Attachment KK).
. Further assessment, dated 17 October 1986, of the subject's claims for resident status and recommendation thereon (Attachment LL).
. Ministerial policy statement of October 1985 on illegal immigrants (Attachment MM).
C. Assessment
43. The subject is a prohibited non-citizen by virtue of sub-section 7(3) of the Act since she is not the holder of a valid temporary entry permit. She has committed an offence under Section 27 of the Act by becoming a prohibited non-citizen.
44. It remains possible to authorize the subject's continued presence in Australia by the grant of a further temporary entry permit. However it is considered that such a grant is inappropriate because she has already stayed in Australia for a longer period than that normally allowed to visitors to this country and she has stayed in breach of migration law and policy. Furthermore, she has contravened the undertakings made by visitors to Australia not to remain in Australia after the expiry of their entry permits and not to seek to remain permanently. No compelling reasons have been advanced in this case to justify the grant of a further temporary entry permit.
45. The subject has applied for the grant of permanent resident status in Australia under Sub-section 6A(1)(e) of the Act. Essentially, the application relies on the grounds that, as the member of an organisation opposed to the government, she would be harassed and discriminated against for the rest of her life in Poland.
46. The Officer-in-Charge, Resident Status Sub-Section, has considered the subject's application for the grant of resident status in Australia under Sub-Section 6A(1)(e) of the Act on the basis of her claims that she faces harassment and discrimination in Poland and has taken into account the claims by the subject, the events leading to her status and all other relevant issues, having regard to the current policy on illegal immigrants.
47. The subject's claims that she will face harassment and discrimination on her return to Poland have been assessed in the light of information provided by the Australian Embassy in Warsaw which also recently interviewed her mother. On the 16 October 1986 the subject was also given the opportunity to comment on the advice provided by the Australian Embassy in Warsaw as well as the information provided by her mother to the Embassy officers on her claimed involvement in political activities.
48. On the basis of this information the Resident Status Section of this Office formed the conclusion that the subject was not able to substantiate her claim to membership of a Teachers organisation opposed to the Polish Government or that she faced or would face difficulties or persecution on her return to Poland on account of her involvement with such an organisation. Accordingly the Officer in Charge of that section has recommended rejection of the residence application on these grounds.
49. It is accepted that she may have now lost her employment in Poland and that she may have some difficulties in getting another passport from the Polish authorities because she has overstayed her exit authority. However, the subject was counselled by the visa issuing office prior to her entry into Australia and she agreed to a restricted visa in order to return to Poland to resume her occupation. It is contended that the subject should not derive benefit from deliberately overstaying her entry permit in Australia. Her completion of a resident status enquiry form within five days of her arrival could suggest that she was not a bona fide visitor in the first place.
50. In a period of approximately 16 months since her arrival the subject has lodged a number of applications to remain in Australia for a period longer than that originally approved on her visitors visa and her initial temporary entry permit. The various grounds for these applications have been as follows:
26.6.85 enquiry re change of superior economic and status to permanent political situation resident in Australia.
30.7.85 - further temporary - to spend more time entry permit with relatives and see major places of interest
29.10.85- further temporary to marry in Australia entry permit (This marriage did not subsequently take place)
15.6.86 - permanent residence Letter from Miss Tybura, elderly Australian, seeking permanent residence for subject in order that subject could assist her due to her failing health.
24.9.86 - permanent residence - fear of persecution on return to Poland due to membership of an illegal organisation while in Poland, and fear of punishment for leaving Poland for a longer time than allowed.
51. Each of these applications has been unsuccessful and a number of legal, parliamentary and other representations have been received in respect of these decisions to refuse the applications. These representations have led to review of the subject's case on several occasions and the respective decisions have been upheld on review. The subject has failed to depart from Australia despite several written directions to do so.
52. Given the frequency of applications to remain in Australia and the variety of grounds put forward to remain in Australia it would not be unreasonable to form the opinion that the subject has from a very early date after entry to Australia, if not before entry, resolved to remain in Australia and not return to Poland despite signing undertakings to leave Australia on or before the expiration of her approved temporary entry permit.
53. In considering the question of the subject's deportation, you may wish to bear in mind the following factors:
(i) the subject has ignored four written directions to depart Australia
(ii) she has twice failed to leave voluntarily after having made definite arrangements to do so.
(iii) she attempted to extend her stay on the pretext of a marriage arranged to a person who has made no approach to this office on her behalf and whom she has not mentioned again.
(iv) she attempted to avoid apprehension by hiding in the ceiling when she was located by departmental officers.
54. Persons who enter Australia as holders of visitor visas are expected to honour the undertakings contained in visa applications signed overseas. It is in the public interest to ensure that such persons abide by normal migration selection processes and do not circumvent them by entering or remaining illegally in Australia to the prejudice of prospective migrants who abide by the procedures. The presence of such illegal immigrant "queue-jumpers" in Australia is inimical to Government control of immigration programs as well as impacting upon job availability for legal residents. Prohibited non-citizens should expect to face the prospect of deportation when located.
55. Voluntary departure is not recommended in this case as the subject has deliberately ignored four directions to depart and twice failed to honour her bookings to depart. It is suggested that it is no longer appropriate to again extend this option to the subject.
56. It is considered that, in all the circumstances of the case, it is appropriate and just to apply the policy on deportation of prohibited non-citizens.
Recommendations
57. If you accept the findings on material questions of fact and the assessment set out above, it is recommended that you:
- refuse the grant of a further TEP to the subject;
- refuse the grant of permanent resident status to the subject;
- refuse voluntary departure in respect of the subject;
- sign the attached deportation order in respect of Elzbieta Waniewska.
58. If you do not accept any of the findings or the assessment you are invited to add further reasons for your decision or comments below.
Case Officer: L J Grasso Cleared By: P Borg"
Mr. Tracey supported the application on a number of grounds. As has been seen, the delegate in his statement of reasons wrote that he "adopted the reasoning set out in the assessment Part C of that submission and that sets out the reasons for my decision". Part C of that submission included paragraph 53(iii) which was in the following terms:
"53. . . . .
(iii) she attempted to extend her stay on the pretext of a marriage arranged to a person who has made no approach to this office on her behalf and whom she has not mentioned again."
Under the first ground of the application, Mr. Tracey submitted that the delegate denied natural justice to the applicant by taking into account that prejudicial material without first giving the applicant an opportunity to respond to it. That matter (the alleged "pretext of a marriage") was never put to the applicant and accordingly she was given no opportunity to deny the suggestion that the marriage was simply a "pretext" used by her to support her application in October 1985. Mr. Downing, of counsel, on behalf of the respondent, submitted that one of the dictionary meanings of "pretext" is "ostensible reason" and that accordingly the use of the word "pretext" was not a finding adverse to the applicant. That submission would have to be considered in the light of the definition of the word "ostensible", given by the same dictionary, namely "professed, for show, put forward to conceal the real". So read, the submission does not assist the respondent.
I am unable to uphold Mr. Downing's alternative submission that, in the totality of the matter, paragraph 53(iii) was of minor significance. A finding that the applicant had "attempted to extend her stay on the pretext of a marriage . . ." necessarily meant, in my opinion, that the delegate formed the opinion that the applicant had been guilty of deception in October 1985 when asking the department for a further entry permit. The formation of any such opinion would be potentially a serious matter in any case relating to possible deportation. That is made clear by the Policy Statement of the respondent Minister tabled in October 1985 which expressly referred to persons who "obtained their visas by deception" (p. 1), "persons who obtain . . . entry permits by false representations" (p. 3), "the illegal immigrant's having . . . deceived the Department" (p. 4) and, in the section dealing with persons seeking to "change their immigration status to permanent resident", says (p. 10):-
" . . . in particular, in reaching a decision on an application to remain in Australia, the following circumstances (if they exist) will weigh heavily against the applicant
the applicant misled the Minister or an officer in obtaining a visa or entry permit, e.g. fraudulent documents or false information of a material kind;"
In the present case, the finding of deception by the applicant was even more serious because of the likely effect upon the mind of the delegate, who adopted the reasoning in paragraph 48 of the departmental submission and decided that the applicant "was not able to substantiate her claim to membership of a Teachers organisation opposed to the Polish Government or that she faced or would face difficulties or persecution on her return to Poland". That matter is dealt with in more detail later in these reasons.
In my opinion the delegate's failure to give to the applicant an opportunity to respond to the suggestion that she had advanced such a "pretext of a marriage" constituted a non-observance of the principles of natural justice and in itself is a sufficient ground to set aside the decisions.
A question arises as to whether it was open to the delegate to find, on the material before him, that there had been such a "pretext" advanced by the applicant in October 1985. It would appear that the delegate inferred that there had been a "pretext of a marriage" and based that inference upon two matters (a) her statement, made at an interview on 16 September 1986, that at that time she "had no close romantic relationship in Australia" and (b) her failure to mention "Tadeusz Kapelan, the man whom she had previously made arrangements to marry on 2 December 1985 and on the basis of which she had sought a further entry permit on 29 October 1985" (see the seventh matter in paragraph 31 of the departmental submission). It should be added that the material does not suggest that, at that interview or at any other time since December 1985, the applicant was ever asked any question as to why that marriage had not taken place.
In my opinion there was no material before the delegate from which he could draw an inference that there had been any "pretext" by the applicant as to the proposed marriage in December 1985. The finding appears to have been based not on an inference but on mere conjecture, which stemmed mainly from her failure to mention, in September 1986, the marriage she had intended to enter into in December 1985. In my opinion the delegate, in having regard to that insupportable finding, had regard to an irrelevant consideration.
Mr. Tracey also submitted, under the first ground of the application, that the delegate had denied natural justice to the applicant by concluding that "she was not a bona fide visitor in the first place" (see paragraphs 49 and 52 of the departmental submission). In my opinion the delegate reached that conclusion and was influenced by it in his decision. It may be added that, even if it were not clear that the delegate was influenced by it, the following passage from the reasons for judgment of Brennan J. in Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321 at 380, would be apposite:-
"Nevertheless, in the ordinary case where no problem of confidentiality arises, an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account."
Mr. Downing has submitted that there was no denial of natural justice. He sought to meet the applicant's argument on this aspect by relying upon the principle referred to by Fox J. in Sinnathamby v. Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506:-
"As a general rule, when some consideration personal to the applicant is to be taken into account against him or her the rules of natural justice require that the applicant be given a chance to comment or contradict: see Kioa, per Mason J at p 348. The guideline is fairness; in general the party should have an opportunity of dealing in an appropriate way with matters with which he can reasonably be expected to be able to deal, and which might assist his or her case.
In Kioa's case, the material held to require that a chance be given to comment had come from a source other than the applicant."
It should be mentioned, at this point, that Mr. Tracey in his final address submitted that the last statement was incorrect, in that in Kioa's case the material concerned had in fact come from the applicant. He referred to Kioa (at p. 334) per Gibbs CJ. (see also Northrop and Wilcox JJ. in the Full Court in Kioa (1984) 55 ALR 669 at 682). It is not necessary for me to express an opinion on that submission, as to which the respondent did not have an opportunity to address.
Fox J. continued:-
"In the present case, as his Honour found, the material which was prejudicial to the appellant had been provided by the appellant herself. In the circumstances, I consider that the decision-maker was not required to give the appellant a chance to comment on the view that he had taken of it; to do so would amount to a general requirement that a decision-maker make known in each case his view or evaluation of the material that an applicant puts forward: see Kioa per Brennan J at p 380. His thought processes, if not unreasonably based on evidence, or other material, are a matter for him."
I accept, with respect, the principle there enunciated that "the decision-maker was not required to give the appellant a chance to comment on the view he had taken of" material supplied by the applicant - assuming that, as Fox J. expressed it, "his thought processes (were) not unreasonably based on evidence or other material".
However, in my opinion that principle does not govern the present case. The conclusion of the delegate, which is adverse to the applicant, was that she was not a bona fide visitor. That conclusion was not one which was apparent on the face of any statements made or documents supplied by the applicant. The delegate's conclusion was based upon an inference which the delegate drew from the mere "frequency of (her) applications to remain in Australia" (paragraph 52) and the early date of her first inquiry as to the possibility of obtaining resident status (paragraph 49). Assuming, without deciding, that such an inference was open to the delegate upon the material before him, it was certainly not an inference which would necessarily be drawn. It was not an inference the drawing of which was in fact anticipated by the applicant; nor was it, in my opinion, an inference the drawing of which by the delegate should, in all the circumstances, have been anticipated by the applicant.
In Sinnathamby the factual situation was quite different in that the applicant there had herself told the departmental officials that "her intention was to come to Australia and she only said that she was going to Fiji to gain entry to Australia." The department considered, on her own statement, that she had entered Australia "by a subterfuge" and, as Fox J. said (at 506), the use of that abstract noun to describe her conduct "accords fairly closely with the facts".
In the present case it was accepted by the respondent that it was never put to the applicant that she was not, or that she might not have been, a bona fide visitor. As I have said, there was nothing in the circumstances of the case to lead the applicant to anticipate that the respondent was likely to infer that she was not a bona fide visitor.
In Kioa, immediately following the passage quoted earlier, Brennan J. (at 380) said:
"The allegation in para 22 was apparently credible, relevant and damaging. The failure to give Mr Kioa an opportunity to deal with it before making an order that Mr and Mrs Kioa be deported left a risk of prejudice which ought to have been removed. There was nothing in the circumstances of the case - neither in the administrative framework created by the Act nor in any need for secrecy or speed in making the decision - which would have made it unreasonable to have given Mr and Mrs Kioa that opportunity. The failure to give Mr Kioa that opportunity amounts to a non-observance of the principles of natural justice. The result is that the condition governing the power to make the deportation orders was not satisfied and the orders must be set aside."
In my opinion the inference drawn by the delegate was "relevant and damaging". In my opinion that passage supports the applicant's submission that the principles of natural justice required the delegate to give her an opportunity to deal with the suggestion that she was not a bona fide visitor, before making the extremely adverse finding that that was the fact.
In my opinion the failure to give the applicant the opportunity to deal with that suggestion amounted to a non-observance of the principles of natural justice and is in itself a sufficient ground to set aside the decisions.
Under ground 2(b) Mr. Tracey submitted that the delegate failed to take into account relevant considerations, including to consider the applicant's claim that the Polish State police had a list of 25 members of the Society of Teachers for Free Expression, that 12 out of the 25 persons on that list had been arrested and detained and that it was likely that the applicant would be so arrested and detained on her return to Poland because she was a member of that Society and her name was on that list.
Section 6 of the departmental form for applications for Resident Status in Australia required the applicant to answer, amongst other things, a question (Section 6.3) as to whether she considered there were "any reasons why relevant policy requirements for grant of resident status in Australia, in part or in full, should not apply?" The applicant answered yes and attached a separate statement in answer to section 6.3.
In that statement the applicant stated, amongst other things, that she was "a member of a group in Poland called the Society of Teachers for Free Expression", that her name was "on a list of members" of that Society and that that list had "fallen into the hands of the (Polish) State Police". Further, that on the previous day her mother in Poland had telephoned the applicant's aunt in Australia and made statements to her as to the arrest of persons in Poland and the likelihood of the applicant being arrested and detained on her return to Poland. That statement by the applicant as to the telephone conversation between her mother and her aunt was before the delegate (see paragraph 34 of the departmental submission).
Mr. Downing on behalf of the respondent accepted that there was no material to suggest that the department was unable to speak to the aunt as to that telephone conversation had it desired to do so. He said, however, that there was no issue as to whether the conversation between the aunt and the mother took place and that the issue was as to the truth of the contents of that conversation. He said that the Department had acted upon the basis that the mother had telephoned the aunt and told her what the applicant had set out in her statement pursuant to section 6.3.
It follows that the respondent accepted as a fact that the mother had made an international telephone call from Poland to the applicant's aunt in Australia and had told her two things, namely:-
1. that 12 people out of the 25 on a list of members of the Society of Teachers for Free Expression had been arrested and detained.
2. that the applicant would also be arrested and detained the moment she returned to Poland.Mr. Downing referred to paragraphs in the departmental submission and submitted that, on a question of fact which was a matter for the decision-maker and not for this court, the delegate (1) took into account all of the claims by the applicant, (2) having done so, he accepted the conclusion of the case officer that she "had failed to establish her connection with the "Teachers for Free Expression" organisation", and (3) he accepted that "even if she is connected with it, she failed to establish that she will be harassed or discriminated against on her return to Poland".
In paragraph 47 (which appeared in Part C, as to which the delegate said that he "adopted the reasoning") it is stated that her claims had "been assessed in the light of information provided by the Australian Embassy in Warsaw which also recently interviewed her mother" and that on "16 October 1986 the subject was also given the opportunity to comment on the advice provided by the . . . Embassy as well as the information provided by her mother to the Embassy officers on her claimed involvement in political activities".
A cable (attachment HH) from the Embassy, dated 1 October 1986, stated that "we are unaware of the group but will make inquiries through our contacts and the applicant's family". A subsequent telex from the department in Canberra (apparently based upon a further cable from the Embassy in Warsaw) stated, as to the "Society of Teachers for Free Expression" that "enquiries made through our embassy connections have proved negative. Whilst the group may exist our sources do not know of its existence". The telex also stated that the applicant's mother had called (at the Embassy) for an interview that day and had "advised . . . to her knowledge daughter was not a political/union activist" and "to her knowledge none of her daughter's work colleagues had been harassed or imprisoned".
In those communications of information from the Embassy in Warsaw there was no reference to the statements, made by the applicant's mother to the applicant's aunt, as to the 12 arrests and the likelihood of the applicant being arrested the moment she returned to Poland - although the department had acted upon the basis that those statements were in fact made by the mother in her telephone conversation. On that aspect being raised during Mr. Downing's address, he had inquiries made and later tendered to the court the cable sent by the department to the Embassy in Warsaw on 30 September 1986. He did so for the purpose of responding to the court's inquiry and pointed out that that document was not part of the material listed by the delegate as the material upon which he made his material findings of fact (although it was apparently a document upon the departmental file).
The contents of that cable from Australia to the Embassy in Warsaw made no reference to the telephone conversation between the mother and the applicant's aunt. That would explain why the communications from the Embassy in Warsaw made no reference to the contents of that telephone conversation i.e. a conversation of which the Embassy personnel in Warsaw were not aware as far as appears from the material presently under consideration. On that basis it would seem probable that, in the interview at the Australian Embassy in Warsaw, the mother was not asked any questions as to the fact that she had telephoned the applicant's aunt in Australia and had made to her the statements, set out earlier, as to the arrest of 12 people out of 25 on the list of the Society of Teachers for Free Expression. Further, that she was not asked any questions directed towards her statement to the aunt that the applicant would also be arrested and detained the moment she returned to Poland.
Given the fact that the department had acted upon the basis that the telephone conversation had taken place and its acceptance of the applicant's account of what was said by the mother in that conversation (although it had not decided to accept the truth of what was said by the mother in that conversation), in my opinion the delegate failed to take into account a relevant consideration, namely, the applicant's claim that it was likely that she would be arrested and detained the moment she returned to Poland. In referring to the claim as to the likelihood of that occurring I am not making any assumption that the claim is true or not true. It is relevant that the interview at the Embassy in Warsaw with the mother did not deal in any direct way with the question whether there was such a "likelihood"; doubtless that was because the Embassy was not given sufficient information. However, whatever the cause, in my opinion that question was not the subject of any real inquiry at all - either in Poland or in Australia. In my opinion this matter was one of those:-
" . . . occassions when the adequate consideration of a relevant matter necessarily involves the making of some inquiry as to the facts."
per Wilcox J. in Singh v. Minister for Immigration and Ethnic Affairs (unreported - 4 December 1985).
At the interview on 16 October 1986, the applicant gave a possible explanation of her mother's answers to questions at the Embassy. The record of that interview concluded as follows:-
"Conclusion: It would appear that Miss Waniewska thinks her mother was deliberately withholding information from us because of her fear of Polish authorities."
That conclusion indicates that the interviewing officer accepted that the applicant believed that her explanation (of her mother's statements at the Embassy in Warsaw) was correct.
In my opinion the delegate's failure to have regard to the applicant's claim as to events in Poland and the likelihood of her arrest on her return was a failure in respect of an important matter and in itself is sufficient to warrant an order setting aside the decisions.
It is convenient to add, at this point, that Mr. Tracey also relied upon that failure by the delegate as supporting ground 2(d) of the application, as amended, namely, that "the manner of the exercise of the power was so unreasonable that no reasonable person could have so exercised the power". There is much force in that submission but it is not necessary to determine it.
Other matters were relied upon in support of ground 2(d). I do not accept Mr. Tracey's attempt to rely, under that ground, upon the fact that the delegate failed to defer making his decision in the matter for some weeks, in order to allow for the arrival in Australia of a letter from the applicant's mother. Nor is the applicant assisted, on this ground, by the fact that the respondent did not make any inquiry from the aunt. As has been mentioned earlier, Mr. Downing has accepted that the applicant's mother telephoned the applicant's aunt and said to her those matters set out in the applicant's statement in answer to question 6.3. In those circumstances the delegate was not under a duty to attempt to contact the aunt and ask her whether those matters were said.
Reliance was placed, under ground 2(d), upon two other matters. One was the failure of the delegate to make any enquiries as to whether, in the grant of exit visas, the practice of the Polish authorities was as the applicant had claimed. Mr. Downing accepted that there is no material to show that such an enquiry was made. This matter is dealt with later in considering ground 2(c).
Under ground 2(d) Mr. Tracey also relied upon the fact that the interview of the applicant on 16 October 1986 was conducted without the benefit of an interpreter being present at the interview - although an interpreter's services were availed of by use of a conference telephone. He also pointed out that the interpreter, instead of giving a verbatim translation of the words spoken, gave the substance of the answers - a method of "interpreting" which, for good reason, is not permitted in Court hearings.
The attempt to use an interpreter by telephone was, of its nature, fraught with difficulty. It may be noted that the department itself recognized the advantage of having the interpreter present at interviews. The typed format of the "report of interview with suspected prohibited non-citizen/deportee" (used for the report of the earlier interview with the applicant on 16 September 1986) had typed on it the following:-
"(The question of whether an interpreter is required should be determined prior to interview. If an interpreter is used then he/she should also sign and date each page of interview report)."
The same page recognized the possibility of a misunderstanding occurring; the interviewing officer was there required to tell the interviewee "that you will be given the opportunity of reading, amending if necessary, and signing each page of this report of interview. Do you understand?"
Having listened, at the request of both parties, to a tape of the interview of 16 October 1986, it appears that, in the circumstances of this case, it led to some problems of communication and may have led Mr. Featherston (the departmental officer) into wrongly believing, at one stage, that the applicant had given contradictory answers. On the other hand, as pointed out earlier, his conclusion, at the end of that interview, indicated that he accepted that the applicant believed that her explanation was correct; presumably, at the end of the interview he did not believe that the applicant had given contradictory answers. The interpreter obviously had difficulty more than once in understanding what had been said - doubtless because she was not present in the room and was dependent upon hearing over the telephone both the questions asked by Mr. Featherston in English and the answers given to her by the applicant in Polish.
Mr. Tracey also relied upon the fact that the interview was conducted and completed notwithstanding an objection to the accuracy of the translation; that objection was made by Mr. Terlecki, a Polish friend of the applicant, who deposed that he spoke both English and Polish fluently. As against these matters, Mr. Terlecki was told that he could raise any objections at the conclusion of the interview and he did not do so; further, there is affidavit evidence that the translation was "an accurate translation". Although there is much force in the criticisms made by Mr. Tracey, I have not found it necessary to decide whether that matter, either on its own or in conjunction with the other matters, is sufficient to establish ground 2(d) of the applicant's grounds.
Under ground 2(c), Mr. Tracey submitted that the making of the decision was, in each case, an improper exercise of the power conferred by the Migration Act in that it was an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the applicant's case. It was contended - and not disputed by the respondent that the delegate had not inquired into the applicant's claim that it was the practice of the Polish authorities to prevent its citizens from emigrating to Australia - as distinct from making visits as tourists - until they are aged 50 years. Mr. Tracey submitted that the delegate failed to take into account that consideration in considering whether to apply the policy to the applicant. The departmental submission referred to the applicant's claim as to the practice by the Polish authorities (see paragraph 31, the second sub-paragraph, apparently based upon a statement by her at the interview conducted on 16 September 1986).
The applicant's claim as to the existence of such a policy in Poland was set out in her application in her statement in answer to the department's question in Section 6.2. That statement included the following:-
"The Polish Authorities will not let me apply for migration to Australia in the same way people from democratic nations are able to apply. The Commandant of Police will not let people leave Poland until they have given their working lives to the socialist state. No one younger than fifty is allowed to leave."
Mr. Tracey submitted that, in the light of that statement, the delegate's duty was not only to enquire as to whether such a practice existed in Poland but also, if those enquiries revealed its existence, to give consideration to the question whether it was proper to apply the Minister's Policy statement on illegal immigrants to the applicant, as a citizen of Poland.
Had that matter been considered, it might have been concluded that it was not proper to apply the policy, or alternatively that less weight should have been given to the policy, in respect of persons from a country, the policies or practices of which were directed towards preventing its citizens from emigrating. At all events there is much to be said for the submission that that was a relevant consideration which the delegate was obliged to consider. For example, it may be that, because of its practices, none of the citizens of such a country can ever fall into the category of being people "prepared to wait overseas and go through the normal selection processes" (see the first page of the Minister's policy). Similarly, it may be that other citizens of such a country can not properly be regarded as being in the category of persons who "fail to wait overseas ...". As to this it should be noted that the delegate adopted, as part of the reasons for his decision, the statement in paragraph 54 of the departmental submission that "The presence of such illegal immigrant "queue-jumpers" is inimical to Government control of immigration programs . . . ". If the delegate had, upon enquiry, concluded that the Polish authorities had the practice of preventing emigration in the manner claimed, it may be that he would have concluded that it was not appropriate to treat the applicant as falling within the category of those who "abuse Australia's immigration policy and laws at the expense of those waiting overseas . . . " (the Minister's policy - first page).
There is nothing in the material to suggest that the delegate addressed his mind at all to those questions or to the general question whether it was proper to apply the Minister's Policy on illegal immigrants to the applicant if the practice of the Polish authorities was as she had claimed. It seems unlikely that the delegate addressed those matters because Mr. Downing informed the court (Transcript 125):
". . . I am instructed further that the view that is taken often by the department is that an application to migrate to Australia is an application to migrate to Australia from whatever country it is made, and there are no special arrangements in Australia, or contained within the Act or regulations for people from countries where there may be difficulties - - -
His Honour: Or impossibility.
Mr. Downing: Or impossibility, if that is proven, sir."
It appears likely, in all the circumstances, that the delegate did not consider whether that practice (if it existed) was itself a matter to be taken into account in deciding whether to apply the policy to the applicant.
Mr. Downing, on behalf of the respondent, has submitted that it was not necessary for the delegate to address those questions as to the application of the Minister's policy because the applicant had not substantiated her claim that there were "strong compassionate or humanitarian grounds for the grant of an entry permit" (s. 6A(1)(e) of the Migration Act). In this connexion it will be noted that the delegate adopted, as part of the reasons for his decision, the statement in paragraph 56 of the departmental submission that:
"56. It is considered that, in all the circumstances of the case, it is appropriate and just to apply the policy on deportation of prohibited non-citizens."
There is much force in the submissions advanced by Mr. Tracey on the ground relating to the application of the Minister's policy. However, it is not necessary to determine that question because of the conclusions already expressed in dealing with other grounds in the application.
For the reasons given, the three decisions made by the delegate (items (i), (ii) and (iv) in his statement of reasons dated 31 October 1986) must be set aside and the applications for a further temporary entry permit and for the grant or permanent resident status referred to the Minister for further consideration in the light of these reasons for judgment.
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