Youseff, D. v The Minister for Immigration & Ethnic Affairs

Re: DAOUD YOUSSEF
And: THE MINISTER for IMMIGRATION and ETHNIC AFFAIRS
No. G280 of 1987
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Administrative Law - Migration Act - refusal to grant Permanent Resident Status under s. 6 A (i)(e). Whether consideration by delegate of material not disclosed to applicant a denial of natural justice - remission to delegate for further consideration.

Administrative Decisions (Judicial Review) Act, 1977

Migration Act, 1958

Kioa v. West (1985) 159 CLR 550

HEARING

SYDNEY

#DATE 16:11:1987

Applicant: W. G. Hodgekiss, Esq., G. A. Moore, Esq. and S. Y. Reuben, Esq. instructed by Messrs. Mitry French Walker.

Respondent: D. K. Catterns, Esq., instructed by the Australian Government Solicitor.

JUDGE1

The applicant, Daoud Youssef, by his Application, as amended, seeks the following orders pursuant to sections 5 and 16 of the Administrative Decisions (Judicial Review) Act, 1977 ("The Act"), against the Minister for Immigration and Ethnic Affairs:-

(1) That the decision of the respondent, dated 9 March 1987, refusing to grant permanent resident status to the applicant, be set aside; and

(2) The matter to be remitted to the respondent for reconsideration, having regard to the reasons.

The decision referred to was in fact arrived at by Anthony George Fortey, a Chief Migration Officer in the Review Branch of the Minister's Department, and a duly authorised officer for the purposes of s. 8 of the Migration Act, 1958. I shall refer to this gentleman hereafter as "the delegate".
The applicant had entered Australia pursuant to a Temporary Entry Permit issued under s. 6 of the Migration Act. It was endorsed "Employment Prohibited" and was issued to him on his arrival in Australia on 18 August, 1985. The permit allowed him to remain in Australia for a period of six months from that date.
Prior to the expiry of that permit the applicant applied, under s. 6A of the Migration Act, on 21 January 1986, for a further entry permit, the grant of which would accord to him permanent resident status. The decision by the delegate refusing this application is the decision appealed from.
It has been accepted in argument that the only provision under which the application could be granted is s. 6A (1)(e) of the Migration Act, which reads as follows:-

"(e) he is the holder of a temporary entry permit

which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him."

The delegate's decision that the application should be refused, for failure to establish these grounds, has been challenged on the basis that he failed to take relevant considerations into account (s. 5 (1)(e) and 2(b) of the Act) and that breaches of the rules of natural justice occurred in connection with the making of the decision (s. 5 (1) (a) of the Act).

It is therefore necessary to consider the course of events, as disclosed by the evidence, and the material that the delegate had and did not have before him when he reached his decision to refuse the application.
The applicant is a Lebanese citizen, born on 24 June, 1924. He is a single man. He has a brother aged 76, who resides in Australia with his four children. He says that one of the children, an unmarried niece, resides in her own home. The evidence suggests that the applicant could be accommodated in this home and that a nephew, who has resided in Australia for ten years, could enter into a relevant maintenance guarantee.
The applicant has, since May 1953, been an ordained priest in the Maronite Church, an Eastern rite order of the Roman Catholic Church. It is an established Church in Lebanon with an ecclesiastical hierarchy and a strong code of clerical discipline. The church is also established in Australia with a large number of adherents in the local Lebanese community. It also has in Australia an established hierarchy with a similarly strong code of discipline. The Archbishop in Australia is Archbishop Abdo Khalife. It appears that, as part of the church's disciplinary code, a priest cannot move from one diocese to another without the permission of the Bishops of both dioceses.
It is clear that the applicant suffered considerable hardship in Lebanon as a result of the war in that Country. His Affidavit, and documentary material in the case, indicates that the churches in which he served as priest were destroyed by the Druze Militia in 1983 and that he then lost his home, his possessions, and his Parish.
The Maronite Church was unable to place him in another Parish or provide him with pastoral work in Lebanon. He was ultimately able to find ecclesiastical work with the Melkite Church in the Baalbek District of Lebanon. This church is another Eastern rite order of the Catholic Church. It is apparently separate from the Maronite Order but would appear to have features in common with it. It is an established church in Lebanon and in Australia, where it also has a number of adherents in the Lebanese community.
It appears that the applicant performed his pastoral work in the Melkite Church in the Baalbek area with the permission of the hierarchy of the Maronite Church in Lebanon. Whilst working as a priest in the Baalbek area, he suffered at the hands of the followers of the Ayotallah Khomeni, described as the Hizballah Khomaine Movement. According to his Affidavit, he was kidnapped and tortured on two occasions by these extremists, only narrowly escaping with his life. It is clear that the presence of these persons and their degree of control over the Baalbek area are seen by the applicant as constituting a very serious threat to his life and welfare should be return to that area.
In 1985, the applicant sought and obtained permission from Bishop Elias Zoghabi, the Melkite Bishop for the Baalbek area, to come to Australia to visit his relatives. This is confirmed by a letter from the Bishop which is Annexure A to the applicant's affidavit.
The applicant, accordingly, came to Australia and entered under the Entry Permit already referred to, having obtained a necessary visa from the Australian authorities in Damascus. He says that on arrival in Australia he approached the local bishop of the Maronite Church, presumably Archbishop Abdo Khalife, who, according to the applicant, informed him that there was no place for him in that church in Australia because he had not sought his permission in advance of coming to Australia, this being perceived apparently as a breach of the strict disciplinary code to which I have already referred.
The applicant says that he then approached the Melkite Church and obtained permission from that body to perform mass at a Melkite Church in Merrylands. However, after three months, the Maronite Archbishop intervened and the work came to an end.
It appears that the applicant has since then performed priestly work in his brother's home and that this, and other activities, have incurred the disapproval of the Maronite hierarachy. Although there is nothing to suggest that this church work has been particularly remunerative, it no doubt constitutes a breach of the condition of the Entry Permit.
It appears clear that since the applicant came to Australia, conditions in the Baalbek area of Lebanon have worsened. Although some initial confusion existed as to these facts, which I am satisfied resulted from language difficulties, it appears now to be accepted by the delegate that the Hizballah Khomaine Movement, whilst the applicant was in Australia, kidnapped the local Melkite Bishop and shot a priest, and that it would be highly dangerous for the applicant to return as a priest to that area of Lebanon.
It appears that the applicant wrote to the Maronite Patriarch in Lebanon, on 17 February 1986, seeking a Parish in that country or, alternatively, permission to stay in Australia. He received a reply, which is Annexure B to his Affidavit, advising him that only Archbishop Adbo Khalife could authorise him to stay and work as a priest in Australia. He was also advised that there was no vacant parish for him in Lebanon.
He was offered, as a "third solution", that he approach Bishop Habib Bashar, who would appear to be the superior of Bishop Zoghabi in the Melkite Church in Lebanon, to see if he could assist with pastoral work in that church in Lebanon.
It appears that reference in this letter, which, of course, is a translation, to the Greek Catholic Church, is a reference to the Melkite Order. It is worthy of note that in late 1985 the applicant had sought and obtained, from the Melkite Church authorities in Lebanon, letters confirming that he had been released, temporarily, from the Maronite Church to work with them in Baalbek, and that they had no objection to his saying mass in the Byzantine rite whilst on holiday in Australia. It was also confirmed that he had been permitted by the Archbishop of Baalbek, Archbishop Zoghabi, to visit his relations in Australia. These letters seem a clear indication of his close association with the Melkite Church in Lebanon in the manner that he has claimed.
As to his ability to obtain work in the Melkite Church in Lebanon, regard must be paid to a letter received by the applicant from the "Roman Greek Catholic Bishoproc. Baalbek region." A translation of this letter was forwarded to the Department in support of the applicant's Application. It is document 34 in the material annexed to the delegate's Affidavit.
The letter is clearly from the Melkite Church. It informed the applicant that his church and home had been destroyed on 25 November, 1985 by the Hizballah Kohmaine Movement, and that:-

"Due to the number of homeless people, we have no church in which you can serve or a home in which you can live. It is preferable that you remain in Australia amongst your relatives."

It would appear, therefore, that at or shortly after the time that he made his application for permanent resident status, the applicant was able to put forward a documented case that he would suffer considerable danger and hardship if he were required to return to Lebanon and that his vocation and home in the only area in which he had been able to work since 1983, had been taken from him.
He was also able to indicate that he could be housed and cared for in Australia by his brother, nieces and nephews. He was aware, of course, that he had received a rebuff from the Maronite Church in Australia, and that steps had been taken by the Archbishop to prevent him from working in a local Melkite Church.
It is clear, however, from the material before me, that he had no conception of the high degree of antagonism displayed to him by the Archbishop. From the time when the applicant applied for permanent resident status, it was made quite plain in a series of letters to the Minister and the Department that the Archbishop regarded the applicant's presence in Australia as unauthorised by the church, unwarranted and undesirable.
In the plainest possible terms, it was sought that the applicant be required to leave. The letters and records of telephone calls to this effect are annexed to the delegate's Affidavit. I shall not lengthen these reasons by setting them out in full.
I am satisfied that at all relevant times the applicant was quite unaware of this campaign that was being mounted against him. It is necessary, however, that I set out the sequence of events and consider aspects of the documentation that came into existence after the applicant made his application on 21 January, 1986.
On 29 January, 1986, a letter was sent to the Department of Immigration and Ethnic Affairs from the Maronite Episcopal residence on behalf of His Grace, the Archbishop, Abdo Khalife. The delegate summarises this letter in paragraph 8 of his statement of reasons furnished pursuant to s. 13 of the Act, as follows:-

"A letter dated 29 January 1986 to the Regional Director, Department of Immigration and Ethnic Affairs, NSW was received from The Rev Fr M Kairouz from the Maronite Diocesan Secretarist. The letter written at the request of the Maronite Archbishop of Australia, Archbishop Khalife, indicated that the applicant had no documentation to indicate the permission of his ecclesiastical superior in Lebanon for him to be in Australia, and that the Archbishop will not accept him in the Maronite Diocese which extends throughout Australia. The Archbishop had checked by telephone with the Maronite Patriarch and the applicant's Bishop in Lebanon and found that the applicant was in Australia without their permission. The letter stated that the destruction of the applicant's church and property was not a valid reason for claiming resident status because his Bishop in Lebanon could assign him to a different parish elsewhere. The letter also stated that Archbishop Khalife felt that the applicant's presence in Australia would cause trouble within the Maronite community and requested that the applicant's application for residence not be entertained on a permanent or temporary basis."

l8. It should be noted that the letter also contained the allegation that the applicant's activities had already caused trouble and offence to the ecclesiastical authority.

The applicant was interviewed at the Department's Parramatta area office on 20 May, 1986. It appears that this has been the only interview held with the applicant by the Department. Prior to this interview, a further letter had been forwarded to the Minister on behalf of the Archbishop on 25 February, 1986.
A stamp on it indicates that it, or a copy, was forwarded to the Temporary Entry Branch on 6 March, 1986. It is reasonable to assume that it was amongst the material available to the departmental officer, Mr. Donatiello, when he interviewed the applicant at Parramatta.
It reiterated the earlier complaints; it also requested that permission to stay be refused "to avoid any recurrence of the problems he caused in Lebanon." This appears to be the one and only reference in the documents to the applicant's having been some sort of troublemaker in Lebanon.
However, it must be noted that it comes in a document issuing from the highest authority in the applicant's church in Australia. Additionally, the Assistant Director, Community Affairs Section of the New South Wales regional office, was asked to provide background information and comment. He provided a memorandum, document 35 in the annexures to the delegate's Affidavit, which discussed the Maronite and Melkite Orders and provided advice which the delegate summarises in paragraph 10 of his reasons, as follows:-

"Advice was given by the Assistant Director on 11 March, 1986 that the applicant's activities since his arrival (selling religious items, organising functions for his village of origin group) were without the authority of the Archdiocese and were seen by the Maronite Diocese as a challenge to its authority. It was felt that the continued presence of the applicant, particularly if he engaged in community and religious activities, would increase tension in the Maronite community but that concern over this aspect was not thought to override any humanitarian compassionate considerations being examined."

The summary made by department officer Donatiello of his interview with the applicant is at page 39 of the annexures to the delegate's reasons. It was noted that the applicant spoke little English, and was accompanied by a person who claimed to be his cousin, and who acted as interpreter.
A reading of the notes raises some doubt in my mind as to the level of communication achieved. The applicant is recorded as saying that the Baalbek region was "predominantly a Maronite Parish". This does not seem to have ever been asserted elsewhere, and appears to be contrary to the fact. The applicant would have had no reason to make this misrepresentation; it suggests a failure of communication in the translation process. A note is made that "Brother is resident in Australia (no evidence provided)". There is no indication that the applicant was told of any requirement to provide such evidence. In any event, no suggestion is made at this stage as to any doubt as to the residence in Australia of the applicant's brother, nephew and nieces.
A further note is made that the applicant has three sisters, one residing in Beirut and the other two in North Lebanon, about 150 kilometres west of the applicant's Parish. It is said that the sisters are married and have suffered no hardship or displacement. No other information as to the sisters' financial situation, family responsibility or living arrangements is recorded. It is reasonable to assume that it was considered that such information was irrelevant to the assessment of the applicant's application.
There is a further note as to some apparent contradiction between information provided in the interview and something at folio 7 in a departmental file. The evidence does not enable me to understand this. In any event, there is no indication that any opportunity was given to the applicant to clear up an apparent contradiction, although this seems to have been regarded as a matter of importance, as reference is made to it in a portion of the report referred to as "assessment".
Also under "assessment" the officer notes the comments from the Maronite Church, and states that he believes the relevant point to be:-

"That Reverend Youssef has no permission to remain in Australia and that he is required to return to Lebanon, I assume to undertake his religious duties."

It seems obvious from this comment that the officer who got this information from the file did not discuss it with the applicant or give him an opportunity at that stage to refute or qualify it.

He also notes that:-

"His family support in Lebanon is satisfactory."

Presumably this is on the basis of the recorded information about the applicant's sisters. In my view, that information alone could not possibly lead to such a conclusion.

He also makes the comment that:-

"There is a lack of information concerning his brother in Australia and the support which he could provide."

There is no indication that the applicant was told that this was a matter of concern, or that he was offered any opportunity to provide further information on this subject.

The officer concluded his report of the interview by recommending that the application be refused. This recommendation was accepted by the Acting Senior Assistant Director, Immigration Branch, New South Wales Region, who refused the application on the 31st July, 1986.
The applicant was notified of this refusal by letter on 4 November, 1986. On 11 November, 1986 the applicant lodged a request for review by the Immigration Review Panel. It appears from a file note at page 47 of the annexures to the delegate's Affidavit that the Archbishop's office was informed of this by telephone, and that a request was made to the department that the review process be expedited and that the office be kept informed.
The application for review was prepared by a welfare worker with the Australian Lebanese Christian Federation Incorporated. It contained information, the absence of which had been commented upon in the Parramatta report. It gave details of the ability of the applicant's family in Australia to provide him with accommodation and maintenance.
It also gave more extensive detail of the applicant's problems in relation to return to Lebanon. It indicated that his sisters in Lebanon were older sisters aged 72, 74 and 67 respectively. Supporting documentation was supplied in the form of letters from Lebanon, already referred to, which verified the applicant's loss of his home and church on two occasions and provided evidence that his coming to Australia had been authorised by the Melkite Church authority in Baalbek.

On 19 December, Archbishop Khalife wrote to the Minister requesting expedition and reiterating that the applicant's activities were causing disquiet in one of the parishes. A letter in similar vein was sent on 10 January, 1987 and indicating that the archbishop had excommunicated the applicant. A further letter was sent to the Archbishop's local member of Parliament, who forwarded it to the Minister on 20 January, 1987.
This letter repeated earlier complaints and added the factual allegations that the applicant was a liar, that he had family in Lebanon, and that he had to serve a Parish in Lebanon and that he had a house in Lebanon and many assets. This material was, of course, in direct conflict with facts relied upon by the applicant relating to the problems he would face if he returned to Lebanon.
This material was placed before the Review Panel. The applicant and his representatives were not made aware of it. I am not aware whether the proceedings of this panel allowed an appearance by the applicant. In any event, it does not seem that he was present at any time.
In addition, a document containing comments on the application for review was also placed before the Panel. This document commences at page 84 of the annexures to the delegate's Affidavit. It notes the strong opposition of the Maronite Archbishop of Australia to the application. It further states that:-

"It is claimed that Father Youssef lost all his possessions when he fled the Alley District in 1983 where he had worked as a Maronite Priest. He was then received into the Melkite Catholic Church Diocese of Baalbek in the Beeka Valley and worked there. Subsequently to his departure for Australia for a visit to his relatives, the church in which he worked and his home were burnt down on 25 November, 1985. He claims he was given permission by the Bishop of Baalbek to visit Australia, and, following the events of November 1985, it was suggested to him that it would be preferable that he remain in Australia amongst his relatives."

The Review Panel upheld the primary decision. In its reasons, it made the following comments at page 77 of the annexure to the delegate's Affidavit:-

"The Panel carefully examined the departmental commentary and the papers in the three attached files. One factor is not in dispute - Fr Youssef's presence in Sydney has caused disruption in the affairs of the Lebanese Christian community. We now note that, not withstanding Fr Youssef's claims of membership with the Melkite Church, the Maronite Archbishop of Australia, Abdo Khalife, has notified the Minister that Father Youssef is excommunicated. Evidence shows that he has, without authority from his archbishop, been gaining an income by holding religious services in private homes, and by selling religious books, etc.

We note that the Archbishop has had great problems with his congregation during the past ten years, therefore he has reason to be concerned whenever his authority is challenged.

The Panel would like to record, that in reaching its decision, it disregarded the unsubstantiated allegations made by Archbishop Khalife about the applicant."

It is difficult to reconcile these statements. Moreover, it was not possible to say that there was no dispute as to the applicant's causing disruption. The matter had never been put to him for comment. I also note that the document placed before the panel seems to be mainly an adversarial document. It, in effect, puts the department's case in favour of the maintenance of the original decision.
It would seem that no copy was ever given to the applicant and no opportunity given to him to deal with it before the Panel. The delegate indicates in paragraph 18 of his reasons that he accepts the recommendation of the Panel. He went on to indicate as follows in paragraphs 19 to 24 of his reasons:-

"19. I noted that support has been provided to the applicant by his brother and family, including accommodation and the offer of a maintenance guarantee. I considered that the applicant would need to avail himself of the support of his family or the Australian social welfare system. He has no prospect of an official position within his Church in Australia and his presence is strongly opposed by the Archbishop of the Maronite Church in Australia. He also has three sisters in the Lebanon who could be expected to offer assistance if none was forthcoming from his Church. However, it is also thought that his church, to which he has given long service in the Lebanon, could provide some assistance in his re-settlement in a new area of that country.

20. I noted the letters attached to the request for review from the Roman Greek Catholic Bishopric, Baalbek region and the Maronite Patriarchate of Antioch and all the Orient. It is stated that the applicant's home and church in the Baalbek region have been destroyed and no parish is available there. The Maronite Patriarchate wrote that there was no parish available at that time but suggested that the applicant seek assistance from the Greek Catholic Church. I considered that although it was stated that no parishes were available in the Baalbek region the Greek Catholic Church may be able to assist in another area.

21. I noted that the applicant could not safely return to the region in which he lived. He faced danger in following his vocation in the Lebanon. This was a situation which had existed for many years and had not come about since his arrival in Australia.

22. With regard to the representations made by, and on behalf of, Archbishop Khalife seeking the departure of the applicant, I considered these relevant to the review only in so far as they affect the applicant's ability to follow his vocation in Australia. I feel that the issues relating to ecclesiastical authority and tension within the Lebanese Christian community are matters of concern but are not matters which I have taken into account in making a decision on the application for permanent resident status.

23. I noted that the applicant came to Australia as a visitor and was granted a Temporary Entry Permit (employment prohibited) for a stay of six months. I found that he did not fulfil any of the conditions of Section 6A(1) of the Migration Act necessary for the grant of a permanent entry permit. In particular, I noted that the applicant had applied for consideration on strong compassionate and humanitarian grounds under Section 6A(1) (e) of the Migration Act and was the holder of a temporary entry permit at the time of his application. I accepted that there were compassionate circumstances relating to the situation in Lebanon and reunion with his brother in Australia.

24. I did not however consider that the circumstances outlined in paragraphs 20 to 23 were sufficient, particularly bearing in mind the applicant's vocation in the church in the Lebanon and the presence of most of his family in the Lebanon, to establish the existence of strong compassionate or humanitarian grounds for the grant of resident status. Accordingly, I decided to refuse the grant of resident status."

I turn to the applicant's complaint in relation to this decision. It is put that the delegate failed to take into account relevant considerations and did not accord to the applicant natural justice in certain important respects. I consider that in this case the significant attacks on the decision can best be considered under the general question of whether the applicant has been denied natural justice.
In Kioa v. West (1985) 159 CLR 550, Mason, J. (as his Honour then was) says at page 584:-

"The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention."

His Honour proceeds at page 585 by saying:-

"When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?

Further guidance is to be obtained from what his Honour said at page 587:-

"In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter: In re H.K. (An Infant) (1967) 2 QB 617. If the application is for a further temporary entry permit and it is made in circumstances which are relevantly similar to those in which the earlier permit was granted, the applicant may have a legitimate expectation that the further entry permit will be granted or will not be refused in the absence of an opportunity to deal with the grounds on which it is to be refused. And if the refusal is to be attended by the making of a deportation order, the case for holding that procedural fairness requires that such an opportunity be given is unquestionably stronger.

In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it."

In the present case, it is clear that departmental officers dealing with the application in the first instance, the review panel, and finally the delegate, had before them considerations relating to the applicant's position should he be required to return to Lebanon as the result of the refusal of an Extended Entry Permit and also his situation in Australia should he be allowed to stay.
So far as his situation in Lebanon was concerned, a view appears to have been formed at an early stage and persisted in that the applicant's three sisters in Lebanon:-

"Could be expected to offer assistance if none was forthcoming from his church".

I have already pointed out that there seems to be a great paucity of material to support this assumption. More importantly, however, it quite obviously came to loom large in the department's assessment of the case. I am firmly of the view that, in the interests of justice, the applicant should have been apprised of this fact and should have been given an opportunity to respond to it by placing before the department, before the primary decision was made and thereafter, any material relevant to this question that he wished to adduce.
Additionally, the delegate formed a view which was obviously of considerable significance in his assessment of the applicant's potential situation in Lebanon that:-

"Although it was stated that no parishes were available in the Baalbek region, the Greek Catholic Church may be able to assist in another area."

This view is expressed in paragraph 20 of the Statement of Reasons (see above) and relates to the documents received from the Maronite and Melkite authorities in Lebanon to which reference has already been made.
It is difficult to see how this view could be formed from these documents. I would venture to think that the thrust of the documents is to the effect that the only work available to the applicant was in the Baalbek region, and that that was now denied him as a result of developments in that region since his leaving for Australia. In any event, justice required, in my view, that the applicant be advised that this opinion was held or likely to be held and that he be given an opportunity to respond to it. It had obviously assumed critical importance in departmental thinking. Had the applicant been made aware of this, he could, no doubt, have sought urgent clarification of the position by communicating with the Melkite authorities in Lebanon.
Similar problems exist in relation to the Australian situation. It is clear that the applicant's statement that he could be housed and maintained by his Australian relatives was viewed with some suspicion, or at least reserve. There is, of course, nothing wrong in that. Indeed, it is no doubt desirable that such assertions be examined with care. However, it would appear the applicant was not apprised that this aspect of his case was other than accepted. He was thus robbed of an opportunity of producing supporting material which might have allayed the suspicions and indicated that he would not, "need to avail himself of the support of the Australian Social Welfare system." In my view, this opportunity should have been given him.
Somewhat more difficult is the problem resulting from the attacks made on the applicant in the communications from the Maronite Church. I have already indicated my view on the evidence that the applicant was unaware of the degree of hostility to him from this quarter or the way in which it was being manifested.
The delegate makes it plain in paragraph 22 of his reasons that he had regard to these matters only in relation to the applicant's ability to follow his vocation in Australia and did not take into account "issues relating to ecclesiastical authority and tensions within the Lebanese Christian community."
There is no question in this case as to the bona fides of this statement. It relates, however, in terms only to "representations made by and on behalf of the Archbishop Khalife seeking the departure of the applicant." It does not clearly relate to factual assertions made in the communications as to the applicant's having caused problems in Lebanon or, for instance, as to his having a home and many assets there. These assertions are, it must be remembered, emanating from the head of the applicant's church in Australia. They are not the product of some anonymous poison pen. Given the obviously strong connection between the Maronite ecclesiastical hierarchies in Australia and in Lebanon, it might be thought that allegations of fact relating to the financial and social situation in the Lebanon of a priest in the hierarchy emanating from the Australian Archbishop of the order could carry considerable weight and warrant the according to the applicant of an opportunity to respond to them.
I think it proper also, in considering what natural justice requires in this situation, to bear in mind the impact upon the applicant of the revelation that, unbeknownst to him, the decision-maker had been the recipient of this intensely hostile material, to which he had been given no chance of reply. Could the situation be perceived by him as other than one of injustice?
Reliance is placed by the applicant upon the words of Mr. Justice Brennan in Kioa's Case, at page 629, where his Honour, after considering relevant authority, said:-

"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."

(See also, per Brennan, J. Minister for Aboriginal Affairs & Anor. v. Peko Wallsend Ltd. & Anor., 66 ALR 299, pp 325 et seq.)

It is put on behalf of the respondent that this passage must be read in the light of what Mr. Justice Mason said in relation to the same material in Kioa's Case at page 588, where his Honour makes reference to the fact that the prejudicial effect of the material was not disavowed by the decision-maker. It is put that the delegates disavowal of any reliance on the Archbishop's representations in the present case robs them of any significance. I do not read Mr. Justice Mason's statement as an indication that a decision-maker's bona fide disavowal of prejudicial influence will in all circumstances operate to produce procedural fairness in a situation where prejudicial material has been introduced into the decision-making process without an opportunity to respond being given to the party potentially adversely affected by it. In my view, it must always be a question of fact and degree.
In the present case, the factual information contained in the communications, having regard to its source, was clearly credible. It would not have been possible or proper for the delegate simply to ignore it as being intrinsically unreliable. Equally, it was obviously relevant and significant to the humanitarian and compassionate grounds relied upon by the applicant, both as to his situation in the Lebanon and in Australia.
Moreover, the attack on the personal character and integrity of the applicant, having regard to the fact that it was made by an archbishop against a priest in the church hierarchy, could not be regarded as insignificant on the question of the general credibility of the applicant and hence, of his application.
Absent the delegate's disavowal of any influence of this material upon his decision, there would, in my view, be the clearest possible case of failure of procedural fairness, if the applicant were not permitted to respond to it, probably in a personal interview, in which he would have the opportunity also of dispelling, if possible, any adverse impression of his character and credit. He could be left only with a deep sense of injustice if a decision were made adverse to his interests without this opportunity being given to him.
Does the disavowal operate to remove this procedural fairness? Accepting as I do - and I stress that this was conceded by counsel for the applicant - that the disavowal is in every respect bona fide and that the delegate sought to act fairly towards the applicant, I am nevertheless left with a clear impression that the applicant has been denied natural justice in relation to the assertions made by and on behalf of the archbishop against him and his case.
Whilst a decision-maker can, by an effort of will, exclude from his conscious deliberations the effect of material of this kind and even convince himself that he has totally ignored it, the potential of influence at a subconscious level remains, with the possibility of the creation of an adverse attitude towards the party at whom the material was directed. That this can and does occur is clearly recognized in the passage cited from the judgment of Mr. Justice Brennan in Kioa. It is indeed a problem of which judicial decison makers are acutely aware and against which they must constantly be on guard.

In my view, in this case, the strength of the attack, especially having regard to the quarter from which it came, was such as almost inevitably to colour the decision maker's subconscious attitude towards the applicant. The only way of achieving confidence in a fair decision was to raise the matter with him and provide an opportunity to him to respond to it.
In all the circumstances which I have set out in these reasons, I have decided that there has been a significant failure of procedural fairness in this case.
Accordingly, I set aside the respondent's decision of 9 March, 1987 by which he refused to grant permanent resident status to the applicant. I remit the matter to the respondent for reconsideration and the taking of further procedural steps, having regard to these reasons.
I order the respondent to pay the applicant's costs of these proceedings.

[1987] FCA 757

16 NOVEMBER 1987