Re: VATCHAI CHUMBAIRUX

And: MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

No. NSW G322 of 1985

Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

Burchett J.

CATCHWORDS

Administrative Law - immigration - Application of policy without regard to the merits of the particular case - Grounds for extension of time - Application for entry permit on ground of marriage to an Australian citizen - Departmental requirement that marriage be "on-going" - Effect of statement in s.13 Reasons prepared two years later that "there was no reason not to apply the policy in this case" - Court not bound by such a formula when reasoning and actions of decision-maker showed the policy was applied without regard to the merits of the particular case.

Administrative Decisions (Judicial Review) Act 1977 - ss.5, 11, 13

Migration Act 1958 - s.6A(1)(b) & 6A(1)(e)

Hunter Valley Developments Pty Ltd v. Cohen (1984) 3 FCR 344

Pozniak v. Minister for Health, Burchett J., unreported, 14 March 1986

R. v. Port of London Authority; Ex parte Kynoch Ltd. (1919) 1 KB 176

In Re Clarkson (1982) 56 ALJR 224

Minister for Immigration and Ethnic Affairs v. Tagle (1983) 48 ALR 566

Howells v. Nagrad Nominees Pty Ltd (1982) 66 FLR 169

Drake v. Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

Tang v. Hurford, unreported, Full Court, Evatt, Davies and Pincus JJ., 4 July 1986

Turner v. Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388

Kaufusi v. Minister for Immigration and Ethnic Affairs, Smithers J., unreported, 20 September 1985

HEARING

SYDNEY



#DATE 17:9:1986

ORDER

The decisions under review be set aside.

The applicant's application for an entry permit be remitted for reconsideration according to law.

The respondent pay the applicant's costs.

JUDGE1

The applicant, Mr. Vatchai Chumbairux, seeks extensions of the periods prescribed by s.11 of the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act) for the making of applications to the Court for orders of review of decisions not to grant him an entry permit, made on or about 28 June 1983 and again on or about 22 February 1984. If extensions of time are granted, he seeks to pursue the applications in question pursuant to s.5 of the Judicial Review Act. In addition, he applies for review under s.5 of the decision made on or about 16 October 1985 to decline to reconsider his application, and to commence action to enforce his departure from Australia. The cases made under s.5 rely principally upon the ground that the discretionary powers in question were exercised in accordance with a rule or policy without regard to the merits of the case, but also rely on the grounds that the decisions involved an error of law, and were otherwise contrary to law. No objection was taken to the breadth of the statements of these grounds in the applications.

  1. The applicant, who is a native of Thailand, arrived in Australia on 30 March 1980, when he was granted a temporary entry permit for a period of one month. He remained in Australia, and formed a relationship with a young woman from Vietnam, Ly Tieu Linh. They married on 18 April 1981. Following the marriage, they lived together in suburban areas of Sydney until January 1984, apart from a brief separation for about a month in early 1983. On 3 March 1983 the applicant's wife, who had till then held an entry permit, was granted Australian citizenship.

  2. On 28 June 1983 the applicant was advised that an application for what was described as resident status in Australia, which he had made on 19 October 1981 on the ground of his marriage, was refused; but at the same time he was advised that he could within fourteen days lodge an application for review of this decision by the Immigration Review Panel. The applicant did lodge such an application for review. It should perhaps be noted that the letter advising him of the Department's decision and of his right to have it reviewed said nothing about the Judicial Review Act. In Pozniak v. Minister for Health (unreported, 14 March 1986) I said:



"It seems to me that where a Department, when notifying a decision, furnishes advice about appeal rights, whether because it is required to do so by some regulation or because it considers it appropriate to do so, it is important that the information should not be capable of misleading the recipient by suggesting that his avenues of appeal are more limited than they in fact are."

I pointed out that reference to one mode of appeal, when another mode open to an applicant was not mentioned at all, could easily have misled the applicant into thinking that only one course was available to him.

  1. The Immigration Review Panel considered the applicant's case on 30 November 1983. It then had before it his request for review of 11 July 1983, a departmental report of 21 November 1983 and the refusal letter of 28 June 1983. The document described as a departmental report appears to be identical with a document headed "Statement of Policy and Reasons". It is called in a much later s.13 statement, to which I shall refer in due course, "the Departmental Statement of Policy and Reasons of 21 November 1983". This document refers to the applicant and contains details of his family situation, and then continues:



    "Statement of policy legislation and criteria relevant to case.



The provisions governing the grant of resident status in Australia are enacted as s.6A(1) of the Migration Act. Visitors who marry residents of Australia after arrival are considered for residence under s.6A(1)(b). The marriage must be assessed as genuine and on-going before consideration may be given to the grant of resident status. ... Those visitors who fail to establish that there is a genuine intention to continue in a marital relationship after marriage are required to depart in accordance with the terms of their entry as visitors."

The document then refers to the applicant's application of 19 October 1981, and continues:





"As some reservations were held about the genuineness of the marriage, the matter was postponed. At interview on 28 April 1982 a marriage certificate was produced showing that Mr. Chumbairux married a resident of Australia on 18 April 1981. As doubts were still held about the marriage, a further interview was requested for twelve months time i.e. April 1983. A further interview was arranged for 7 June 1983. ... At the interview on 7 June 1983 Mr. Chumbairux maintained that the marriage was continuing though his wife stated that this was not so. ... It was decided that the circumstances precluded the grant of residence under s.6A(1)(b). The department confirms the correctness of that decision and considers that there are no strong compassionate circumstances that would permit the grant of residence under section (illegible - scil. 6A(1)(e))."



  1. The application for review by the Immigration Review Panel asserted:



"My marriage is a genuine marriage. My wife and I love each other. We wish to have children and live in Australia."

It also referred to the applicant's half-brother aged 46, an Australian citizen who lives in Australia and provided a home for the applicant for about a year, and to the applicant's sister Prapatsorn, aged 28, who has permanent resident status and, it asserted, had applied for citizenship. The application also referred to attachments including the citizenship certificate of the half-brother, references and wedding photographs.

  1. The Immigration Review Panel referred to the letter of 28 June 1983 advising the applicant of rejection of his application. The only part of that letter which stated any ground for the rejection was the second paragraph which reads as follows:



"Section 6A(1)(b) of the Migration Act provides the legal basis for the consideration of an application for resident status from a person who is the spouse of an Australian citizen or of a person holding resident status. However, marriage, in itself, does not guarantee the grant of resident status and certain criteria has



(sic) been established for such applications. Amongst the criteria is the requirement that the marriage be assessed as a continuing satisfactory relationship. Your application has been considered within these provisions but it has been decided that it is not one for approval."



  1. The Panel noted that the consideration of the application involved both s.6A(1)(b) and s.6A(1)(e) and that the departmental letter "meets the requirements of administrative law only in respect of the provisions of s.6A(1)(b)." The Panel accordingly concluded its report as follows:



"In order for the appellant to have an adequate opportunity to pursue his appeal, the Panel requires that -
(a) he be informed of the provisions of s.6A(1)(e) and the relevant policies and
(b) invited to lodge a supplement to his appeal relevant to those provisions and
(c) also invited to lodge evidence which could refute the department's conclusion that the marriage is no longer an on-going one.



Please also ensure that the appellant is invited to attend the Panel sitting."

  1. Notwithstanding the terms of this decision of the Immigration Review Panel, it was not disputed that what the Panel had regarded as required in order that the applicant should have an adequate opportunity to pursue "his appeal", apart from the bare invitation to attend, was never complied with at all. No explanation was proffered, either by evidence or by way of submission, for this failure which appears to have been a matter of complete oversight. At the time the Immigration Review Panel deferred the matter, the applicant had a temporary entry permit valid until 14 January 1984. The evidence does not indicate when this was granted, but there are references to it in notes on the departmental file as far back as 20 June 1983. The evidence does not reveal whether any further entry permit was issued, but if not, the applicant could not reasonably be held responsible, without regard being had to the facts that he had lodged an application for review at a time when his permit had six months to run, that the Immigration Review Panel had decided that the Department had failed to meet the requirements of administrative law and had deferred the matter, and that no further hearing had been fixed before the Panel and there had been no compliance with what it considered to be the requirements of the case by the Department.

  2. Eventually the Immigration Review Panel was reconvened for 2 February 1984. Although its requirements had not been satisfied, the applicant was sent by a Mr. Ferry of the Review Branch a telegram addressed: "Mr. Vatchai Chumbairux, 7/14 Hill Street, Campsie 2194 NSW". The text of the telegram read:



"YOU ARE INVITED TO ATTEND AN INTERVIEW ON 2 FEBRUARY 84 AT 10 AM WITH MR. MURRAY AT WESTFIELD TOWERS (5TH FLOOR) 100 WILLIAM STREET SYDNEY REGARDING THE REQUEST FOR A REVIEW OF YOUR CASE.



2) IF UNABLE TO ATTEND CONTACT MR. FERRY 062-642703 FOR ALTERNATIVE ARRANGEMENTS."

The telegram was dated 25 January 1984.

  1. Unfortunately, the applicant had moved from the address shown on the telegram just before Christmas, and did not receive the telegram until after the date of the appointment made by it.

  2. There was no evidence whether or not the Department had been notified of the applicant's move, and no submission was put that any failure to advise the Department, which may have occurred, was of significance. Having regard to the shortness of the notice given by the telegram, the relative recency of the move, the emotional state of the applicant at the time (to which I shall refer), and the fact that the applicant in any case probably expected any communication to his former address to be passed on to him by relatives of his wife who continued to live there and did in fact send him at least two communications addressed to the old address, I do not think any such submission could have been maintained.

  3. Evidence was given by the applicant that his wife's niece handed him the telegram some time after the 5th or 6th of February. (The evidence, as originally given through an interpreter, was that it was his niece or nephew who gave him the telegram, but it was later clarified that the word in Thai which was so translated is a word of equivocal gender, and that the reference was really to his wife's niece). Within two or three days, the applicant took the telegram to a Miss Gray, his brother's common law wife, whom he had known from the time he first came to Australia. She is a registered psychiatric nurse and a native English speaker, whereas the applicant, it is accepted, has a poor command of English. He gave all his evidence through an interpreter. Miss Gray's evidence was that, the time for the interview having already passed, she telephoned Mr. Ferry, who was named in the telegram, "to find out what was going on and what would happen, seeing it was very late - the telegram arrived at an address that he had previously lived at. Mr. Ferry - I cannot remember exactly what he said - but it was something to the effect that it was going to be handled by Canberra and it was out of his hands and that Vatchai would have to contact them, so I suggested he write a letter to the Immigration Department." She recalled that this occurrence was "about a week or ten days after that telegram had been sent to Campsie." She was not cross-examined.

  4. There was no submission that I should not accept the evidence that the telegram arrived too late for the applicant to attend at the interview it appointed. Bearing in mind that, on the unchallenged evidence of Miss Gray, Mr. Ferry was told within a few days that the telegram had not been received in time, and bearing in mind also what the Immigration Review Panel had already decided in the previous November, it is very hard to understand why the Panel was not reconvened to give the applicant the opportunity it had already determined he was entitled to have. However the Panel appears to have remained completely unaware of what had transpired.

  5. So far as Miss Gray's suggestion to Mr. Chumbairux that he write to Canberra is concerned, his evidence is that he understood she would arrange for a doctor to write a letter on his behalf. In view of Miss Gray's occupation, the applicant's poor command of English, and the frustrations of his predicament and of the wearying delays he had already endured, I think it is very probable that there was such a proposal as he asserts. She may have overlooked it, or there may have been a misunderstanding by reason of the difficulty she must have had in communicating with the applicant. I am satisfied that he understood that she would arrange for a letter to be sent, but it was not in fact sent. I note, as a matter going to his credit, that he said he paid Miss Gray for the telephone call but, honestly, did not claim to have paid any postage for the letter.

  6. On 22 February 1984 the Minister approved a report, dated 2 February 1984, from the Immigration Review Panel which recommended that the departmental decision be maintained. Although the Panel report expressly refers to the Panel's previous findings of 30 November 1983, there is no reference to the Department's failure to comply with the Panel's requirements. It seems clear the Panel understood that those requirements had been complied with, for it is succinctly dismissive of Mr. Chumbairux's case:



"The appellant failed to meet the Panel."

That comment could only have meaning if the Panel understood that the applicant had been given the opportunity it had required him to be given to make further representations, with knowledge of his rights and that it was possible for him to lodge evidence with the Panel. Given that the Panel understood the applicant had declined to avail himself of the opportunity it thought he had been offered, it is not surprising it accepted that he must fail, that there was "nothing in the case as presented to (it which) raises any issues of sufficient substance as to bring it reasonably within the provisions of s.6A(1)(e)", and that it recommended as it did.

  1. On 1 March 1984, a letter was sent on behalf of the Secretary of the Department to the applicant, again addressed to his former address at Campsie. The letter makes no reference to the telephone conversation between Miss Gray and Mr. Ferry, and it is clear that either he had not obtained from her the applicant's new address or, if he had obtained it, he had not ensured that it was recorded in the appropriate files. The applicant again received the letter through his wife's niece. The letter refers to the Minister's consideration of "an independent report from the Immigration Review Panel which examined all facts, evidence and circumstances of your case placed before it as well as the relevant legislation and policy." It quotes s.6A of the Migration Act and proceeds:



"It is normal policy to grant resident status only when applicants for permanent residence can demonstrate that their marriage is genuine and on-going. As it has been confirmed that your marriage has broken down, the Minister has decided to maintain the decision to refuse you resident status.
In the circumstances, you should now make arrangements to depart from Australia no later than either the date of expiry of your temporary entry permit or within twenty-eight days of the date of this letter, whichever is the later. You should notify the nearest office of the Department of Immigration and Ethnic Affairs of your travel bookings as soon as possible."



  1. The applicant's evidence indicates that his marriage was certainly genuine, but it was the fact that its course had not run smoothly. After a previous separation for about a month, and some quarrels lasting perhaps a matter of days, it had ended abruptly in January 1984 when his wife had left him without any prior warning. The applicant accepts some blame for the break-down of his marriage, and it appears that pregnancies of the wife were twice aborted. The long uncertainty whether they could establish a secure home in which to bring up their children may have been a factor. The applicant's assertion that the marriage was genuine receives support from the evidence suggesting a continuing relationship with his wife's relatives even after she left him. Communications reached him through his wife's niece, and a friendly letter responding to his request for information about her after her departure, sent him by her sister in Singapore, was tendered in evidence. A letter to him from his wife after her departure is extremely revealing. It is dated January 18, 1984 but gives no address. It informs him:



"I am in U.S.A. now. Why (the question mark is omitted) Because I don't love you any more."



The letter's whole tone is hostile. In fact it is quite typical of the kind of letter commonly tendered in divorce cases. It concludes:





"I don't want you no more."

This letter, far from suggesting that the marriage was not genuine, breathes in every line the bitterness of a genuine relationship which has soured. But in a page of complaints about the applicant's alleged gambling, drinking, and lack of affection for her, there is not a word to suggest that the marriage was a sham, or that the parties had ever before been separated for any lengthy period. The letter makes it clear that their relationship had predated the marriage.

  1. It is convenient to note at this point that departmental papers put into evidence before me indicate that in mid-1983 certain complaints had been made by the wife to an officer of the Department. No details of these complaints were however before me. A memorandum indicates that an officer of the Department drew the conclusion that:



"The wife is in fear of her life and the applicant appears to be prepared to stop at nothing to harass her and force her to help him."



In fairness both to the departmental officer and to the applicant, it should be said that complaints by marriage partners are notoriously difficult to assess, even by the most experienced marriage counsellors, and the Department did not of course have before it the wife's letter of 18 January 1984. There was not the slightest suggestion that that letter was other than genuine. Its emotional outpouring of resentment and accusation does not contain a single allegation which would support the notation in the departmental minute. She does not suggest he had threatened her, or had ever assaulted her, or that he had ever put her in fear of her life. The reference in the departmental minute of 7 June 1983 to "his threats to his wife" is completely unsupported by a document in which one would expect to find it asserted with vehemence, if it had any substance. The applicant's continuing relations with his wife's niece (who had shared their home for a year) and sister are of course also inconsistent with the idea that his conduct was particularly reprehensible. In the light of the letter, it now seems beyond question that the marriage involved a strong emotional attachment from the very beginning, and could not be regarded as other than genuine. I do not think this was challenged by counsel for the respondent.

  1. The applicant gave evidence that his wife's sudden departure, and the receipt of her emotional letter, caused him very great upset and he did not know what to do. I accept his evidence. In the circumstances, the receipt of the letter of 1 March 1984, when it was handed to him by his wife's niece, must have been a stunning blow. He knew that Miss Gray had explained to Mr. Ferry the reason for his failure to attend on 2 February, and he understood further representations were to be made on his behalf; he could hardly have expected the explanation Miss Gray had given to be brushed aside so brusquely. I infer from his evidence that, in his then emotional state, he felt quite unable to deal with the double problem of his marriage break-up and the Department's letter. He consulted his sister Prapatsorn "and then we decided to go and contact in the end, contact the solicitor." He explained that seeing a solicitor was difficult for him, because of his lack of knowledge of English. He procrastinated. It is uncertain what exactly was the period of the delay, since the evidence does not show precisely when his wife's niece delivered to him the letter of 1 March, which had been sent to the wrong address. However, he saw his present solicitor shortly before 9 August 1984. There was some cross-examination as to why he had not gone back to a previous solicitor, but having regard to the extraordinary delays since his application of 19 October 1981, culminating eventually in the rejection of his application for review without his even being called upon to supply details of his current position or being given an opportunity to be heard, it seems to me that confidence in his former solicitor must almost certainly have long since evaporated.

  2. It is conceded that from the time he saw his new solicitor, Mr. Doolan, the matter was handled with expedition. So far as the applications for extension of time are concerned, the sole basis on which the respondent relied was the delay between receipt of the letter of 1 March and retention of Mr. Doolan shortly before 9 August. It seems to me that at least part of this delay is explained by the failure of the letter of 1 March to mention the conversation between Miss Gray and Mr. Ferry, and the applicant's understanding that Miss Gray was arranging a further communication on his behalf. Substantially, the delay was due to the applicant's emotional predicament, and I accept the submission made on his behalf that he was not really in a fit state to take the prompt action which would otherwise have been expected of him. I do not accept the respondent's submission that he was simply concealing the break-up of his marriage - that submission is inconsistent with the clear statement in the letter of 1 March which he must have understood as indicating that the Department had been informed that his marriage had ended.

  3. Mr. Doolan sought access to the relevant documents, in reliance upon the Freedom of Information Act 1982. The process proved a long one. After its completion, on 18 September 1985 he wrote to the Minister a request for "a reconsideration of the decision of the Department and Immigration Panel Review (sic) not to approve (the) application to remain in Australia for residence". He submitted that the appropriate criterion was the genuineness of the marriage and not whether it proved ultimately on-going. He drew attention to the difficulty of fixing a point at which to determine whether a marriage, which has not been terminated by divorce, is to be viewed as "on-going". He also submitted that in this case the Department had accepted the complaints of the applicant's wife "without proper enquiry as to the truth thereof and without the husband being given an opportunity either to affirm or deny them." He drew attention in this regard to the applicant's difficulty with the English language. He pointed out that if the test of an on-going marriage were appropriate this marriage continued for a period of almost three years, and submitted, as evidence that it was still continuing only a month before the wife's departure, a wedding invitation addressed to the applicant and his wife by two of their friends who were married on 18 December 1983. So far as this request was based on the submission that the applicant had not had a sufficient opportunity to present his case, it was of course fully supported by the Immigration Review Panel's own views expressed on 30 November 1983. The applicant had been afforded no opportunity after that and prior to the making of the decision, reconsideration of which was sought by Mr. Doolan. So far as the ground under s.6A(1)(e), which the Panel found had not been explored, is concerned, Mr. Doolan submitted a statutory declaration from the applicant's married sister Prapatsorn living at 5/13 Loftus Street, Ashfield, which clearly showed that the applicant's presence in Australia, following his marriage and during the long period the Department had been considering the matter, had fostered close ties between the applicant and Australia. She declared:



"My brother and his wife often visited my home."



As she was a married woman living with her husband, ties with him as well as with her are implied. She also referred to visits by her husband and herself to her brother and his wife, the last of which had been in December 1982 when they were living in Enfield. Counsel for the respondent suggested that this threw doubt on the continuance of the marriage during 1983, but the visits by the applicant and his wife to his sister's home were not said to have stopped at the end of 1982. The crowded situation of the applicant and his wife in 1983, when they shared premises with the wife's niece and her mother and a sister from Vietnam, obviously provide adequate reason why the visits are more likely to have been to the one home rather than the other. That the marriage was genuine and on-going in 1983 is confirmed, as I have said, not only by the terms of the wife's letter of 18 January 1984, which really leave no room for doubt, but also by the wedding invitation of 18 December 1983.

  1. On 19 September 1985 an officer of the Department interviewed the applicant, with the applicant's sister acting as an interpreter. The purpose of the interview seems to have been the completion of a form headed "REPORT OF INTERVIEW WITH PROHIBITED IMMIGRANT/DEPORTEE". The presence of the sister, and an answer indicating that she was custodian of $2,000-00 savings of the applicant, provided further confirmation of the applicant's close tie with her. The first reason given for his wish to remain in Australia was his desire to stay with his family already resident here. Mention was also made of the fact that he has good employment in Australia, whereas he would now find difficulty in obtaining employment in Thailand. The reference to his family in Australia clearly embraces his sister and his half-brother, and presumably his brother-in-law and Miss Gray.

  2. The decision upon the applicant's application for reconsideration was conveyed to his solicitor by a letter dated 16 October 1985 in the following terms:



"I refer to your letter of 18 September 1985 addressed to the Minister for Immigration and Ethnic Affairs regarding Mr. Vatchai Chumbairux.



On 22 February 1984 the Minister considered an independent report from the Immigration Review Panel and agreed that Mr. Chumbairux should be refused resident status in Australia. On 1 March 1984 this Department wrote to Mr. Chumbairux and advised him of the Minister's decision and explained the reasons behind it.



Departmental policy on applicants for the grant of resident status on the basis of marriage to an Australian citizen is quite clear. The marriage must be considered to be genuine and on-going. There is no doubt in Mr. Chumbairux's case that the marriage is not on-going and he therefore is not eligible for the grant of resident status in Australia.



Your letter of 18 September 1985 does not raise any matters which have not been considered before and it is inappropriate for Mr. Chumbairux's application to be reconsidered by the Minister. On the information I have Mr. Chumbairux fulfils none of the conditions of s.6A of the Migration Act 1958 for the grant of resident status in Australia. It is therefore open to this Department to seek a deportation order against your client and have his departure enforced.



However I am prepared to allow your client to depart voluntarily rather than seek a deportation order against him immediately. He should present immediate departure arrangements to Mr. Phillipson of this office within 72 hours of receipt of this letter.
Should he not depart voluntarily action will be taken to enforce his departure from Australia."



  1. The letter was signed for the Regional Director.

  2. The suggestion in this letter that there was nothing new in the application for reconsideration is explicable only on the basis that the history of the proceedings before the Immigration Review Panel was entirely ignored. Nor could the letter have been written by anyone who appreciated that within a few days Miss Gray had explained, to the departmental officer nominated in the telegram to be advised "if unable to attend... for alternative arrangements", the reason for Mr. Chumbairux's failure to attend. In fact, no matters had been "considered before" under s.6A(1)(e), since the invitation the Panel had intended to offer the applicant had never been offered, and consequently there had been no proper submission to consider. The Panel had simply acted on the basis that he had not appeared, and the Minister had accepted its recommendation.

  3. But the applicant's attack on the decision conveyed by the letter of 16 October 1985 concentrated upon its reference to departmental policy. I shall return to this aspect.

  4. The first matter to be decided is whether the applications for extension of time should be granted. I have already outlined the circumstances on which the applicant relies. The respondent, as I have said, confines his case against extension of time to the period of delay between the receipt of the letter of 1 March 1984 and the seeking of advice from Mr. Doolan shortly prior to 9 August 1984. It seems to me the applicant has provided a satisfactory explanation for his delay during this period. It is relevant also to remember that the Department was not simply left unaware that the matter would be taken any further. The telephone call by Miss Gray must at least have made it clear that there was good reason for the non-attendance of the applicant before the Immigration Review Panel, and that some attempt to reopen the matter, or have the decision reviewed, must be regarded as likely, while the earlier decision had been challenged in the only way suggested as available. The relevance of this consideration is confirmed by the reasoning of Wilcox J. in Hunter Valley Developments Pty Ltd v. Cohen (1984) 3 FCR 344 at 351. It is in accordance with the second of the principles he sets out at pages 348-9, distilled from the cases, to guide the exercise of the Court's discretion in such applications. The first principle requires that an acceptable explanation of the delay be shown.

  5. The same judgment draws attention to the relevance of any prejudice to the respondent occasioned by the delay. Although absence of prejudice is not in itself enough to justify the grant of an extension, it is material to note that no prejudice was alleged in the present case. Among the other matters which may be taken into account, Wilcox J. held, is the question of the merits of the substantial application. In the present case, the view of the Immigration Review Panel in November 1983 that the applicant was entitled to have the decision reconsidered after he had been apprised of the relevant issues and given an opportunity to be heard, together with the subsequent history of the matter, provides an example of substantial merits of, I think, a unique order. In Pozniak v. Minister for Health (unreported, 14 March 1986), I reviewed the authorities, including the Hunter Valley Developments Pty Limited Case, at some length, and emphasised the untrammelled nature of the discretion conferred on the Court by s.11 of the Judicial Review Act, which requires the Court to decide each application upon its own particular circumstances. There is no need to repeat that discussion. In the present case, I have reached the conclusion that the extensions of time which have been sought should be granted.

  6. I turn to the substantial issues. The applicant challenges each of the decisions made on or about 28 June 1983, 22 February 1984 and 16 October 1985. Although, in supporting the application for extensions of time in respect of the first and second of these decisions, the applicant raised and relied upon issues going to natural justice and failure to take relevant considerations into account, as I have indicated, the argument on the substantial applications themselves concentrated upon one issue. That was the applicant's assertion that, within the meaning of s.5 of the Judicial Review Act, the making of each decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made, by reason that it involved an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.

  7. The applicant's argument drew attention to the explicit language in which the final decision to refuse reconsideration, made 16 October 1985, was expressed. The third paragraph of the letter, which I have set out above, after stating that the policy was "quite clear" and that "the marriage must be considered to be genuine and on-going", stated:



"There is no doubt in Mr. Chumbairux's case that the marriage is not on-going and he therefore is not eligible for the grant of resident status in Australia." (Emphases added).



Quite precisely, and as a matter of the plain meaning of ordinary English words, this is to make the decision turn on nothing but the fact that the marriage fell within the particular category of marriages that are "not on-going". The applicant "therefore is not eligible". In the next paragraph, though this is only to gild refined gold, it is added:





"Mr. Chumbairux fulfils none of the conditions of s.6A of the Migration Act 1958 for the grant of resident status in Australia."

Leaving aside questions arising under s.6A(1)(e), with which no doubt the fourth paragraph of the letter is primarily concerned, the expression "fulfils none of the conditions" involves a reassertion of the proposition that the applicant was not eligible for the exercise of any discretion based on his particular circumstances. Therefore it was "inappropriate for Mr. Chumbairux's application to be reconsidered by the Minister", and it was possible to take the view that nothing new had been disclosed, notwithstanding statutory declarations and statements going to discretionary issues, because the exercise of discretion simply did not arise - the applicant was "not eligible".

  1. Despite the plain language of the letter, if the actions of the Department had suggested that the Regional Director did not really intend to apply the policy in the way he said he was applying it, the Court might struggle to find some more acceptable meaning in the letter. But the contrary is the fact. The actions of the Department confirm that the policy was set in concrete. There is no indication in the material put before me to suggest that any enquiries were made about, or that (unless in the disregarded minute of the Immigration Review Panel of 30 November 1983) any attention was given to, any of the particular circumstances of the applicant or the other questions going to an exercise of discretion in his case, apart from the issue whether or not his marriage was "genuine and on-going". The Department was told that the applicant had a half-brother who was an Australian citizen, and a married sister living in Australia with permanent resident status who, at least as far back as the middle of 1983, had applied for Australian citizenship. There is no trace in the papers put before me of any query as to what had happened to her application for citizenship, and whether exclusion of the applicant would shortly mean the exclusion of a close relative of two Australian citizens. Notwithstanding the applicant's obvious difficulties of communication in English and the brevity of the materials put forward by him, suggestive of the possibility that the full picture may not have been elaborated, there is no indication of any attempt to ascertain the extent to which his marriage, and subsequent continued presence in Australia while its genuineness was assessed (and as I have said ultimately could not be disputed), had fostered ties with his relatives and friends in this country, and loosened his remaining links with Thailand. Nor is there any suggestion that the explanation to Mr. Ferry, demonstrating the absence of an opportunity before the decision of 22 February 1984 to put forward discretionary matters, was regarded as of any concern at all. I do not recite these matters critically. I recite them because it seems to me that if the Department had thought the matter involved the exercise of a discretion, its papers would undoubtedly have revealed a quite different picture. The significance of the matters I have mentioned is that they confirm the plain statement in the letter of 16 October 1985 - the applicant was regarded as simply not eligible. Had he been regarded as eligible, elementary considerations of fairness would have required the most anxious consideration before an application made as far back as October 1981, and deferred upon grounds later demonstrated to have been erroneous, could have been rejected simply because a marriage subjected to the stresses inherent in the circumstances had ultimately broken down.

  2. Section 6A(1) of the Migration Act provides, in part, as follows:



"(1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say - ...
(b) he is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit."

  1. In unambiguous terms, this provision makes eligible for the issue of an entry permit the spouse of an Australian citizen. Eligibility is not confined to one kind of spouse. It does not depend on whether the marriage can be described as "genuine", except in the sense that a purported marriage might not fulfil the requirements of a marriage in the true sense of the word. Still less does the section require that the marriage answer the description "on-going", a description in any case, as the solicitor for the applicant pointed out, beset with enormous difficulties.

  2. It is impossible to suppose that Parliament imagined, when it enacted the broad discretion given by s.6A(1)(b), that all the marriages and filial relationships it covers would continue in the long term. Parents die, and marriages are notoriously fragile. The provision recognises that the foreigner who inevitably severs some ties and weakens others with his own land when he stays here with an Australian wife or parent, and inevitably develops intimate links with a circle of Australian relatives and friends, has a special claim. It is a claim understood, wherever our inherited culture has been known, for well over 2000 years. It is the theme of the Book of Ruth.

  3. This is not to say that a policy may not properly have regard to the quality of the relationship which is the source of statutory eligibility. But it cannot blot out from notice a large section of those Parliament has declared eligible. It cannot assume they have no particular circumstances calling for consideration. Broken marriages do not disappear from the surface of our community like stones marked only by a ripple. They are living casualties in a network of relationships which often survive and continue to grow. The nature and quality of those relationships, the effects upon the foreigner and others of rupturing them, and the circumstances under which the marriage was able to persist in Australia and so to develop them, cannot simply be ignored in favour of total exclusion from consideration, so long as s.6A(1)(b) retains its present form.

  4. It is of course well recognised that a general discretion, such as that conferred by s.6A of the Migration Act, may be guided in its exercise by some general policy. But as is stated in de Smith, Judicial Review of Administrative Action 4th ed. page 311:



"A tribunal entrusted with a discretion must not, by the adoption of a fixed rule of policy, disable itself from exercising its discretion in individual cases."

In R. v. Port of London Authority; Ex parte Kynoch Ltd. (1919) 1 KB 176 at 184-5 the distinction was drawn between a general policy properly adopted to guide the exercise of discretion unless there is something exceptional in an individual instance, on the one hand, and on the other, a policy obdurately to exclude certain types of application which in the Court's view would be "a refusal to exercise (the) discretion". Gibbs C.J. put it briefly in In Re Clarkson (1982) 56 ALJR 224 at 228 when he said:





"There is a general principle that a tribunal which is called upon to exercise a discretion does not perform its duty if it acts in blind obedience to a rule or policy that it had previously adopted."



In Minister for Immigration and Ethnic Affairs v. Tagle (1983) 48 ALR 566 at 571 Sweeney and Woodward JJ. summarised the view of Keely J., which they upheld, in the statement:





"All relevant considerations would have to be taken into account, and the policy or rule could not be applied automatically."

  1. In a number of the cases (for example Re Clarkson (supra) and British Oxygen Co. Ltd. v. Minister of Technology (1971) AC 610) it has been pointed out that the legal principle involved allows for some flexibility in its application according to the nature of the discretionary decision involved. But in Howells v. Nagrad Nominees Pty Ltd (1982) 66 FLR 169 at 195 the joint judgment of Fox and Franki JJ. makes it clear that the principle is particularly applicable where a discretionary power is given, to be applied to particular cases individually. The joint judgment states:



"Where the power given relates to the consideration of individual cases, it is not to be denied that the predominant aspect must be the consideration of the particular case. The merits of that case must be considered genuinely and realistically; there must always be a readiness to depart from policy. The policy does a disservice to those who have to measure it against the individual situation if it is expressed in dogmatic or mandatory terms."



  1. The joint judgment goes on to state that the term "policy" is a term which "does not include ... a series of fairly precise requirements." If, when a policy or guideline is issued, this principle is overlooked, the joint judgment states, "the use of so-called policy can readily become antithetical to the proper making of a decision related to the particular case." These comments are in my view peculiarly applicable to the situation which occurred in respect of Mr. Chumbairux.

  2. In Drake v. Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 Brennan J. said:



"A policy must be consistent with the statute. ... His (i.e. the Minister's) discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. ... That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power."

  1. In Tang v. Hurford (unreported, Full Court, Evatt, Davies and Pincus JJ., 4 July 1986) the majority of the Full Court held unlawful a view of policy which erected a barrier against a prohibited non-citizen's resort to s.6A(1)(b). Davies J. (with whom Evatt J. agreed) said:



"By providing that an entry permit may be granted to a person who is the spouse of an Australian citizen, notwithstanding that he is not the holder of a permanent entry permit, ss.6 and 6A of the Migration Act 1958



(Cth) necessarily imply that such a person may make application for an entry permit and that that application, once made, should be considered on its merits. ... Mr. Tang satisfied the criteria for making application for the grant for permanent residence and his application ought to have been considered on its merits. It is plain .. that it was not so considered."



  1. In my opinion, on the whole of the evidence in the present case, it is plain that Mr. Chumbairux's application for reconsideration was not considered upon its merits. It was rejected upon an erroneous view that he fell within a category of spouses of Australian citizens who were not entitled to have the merits of their cases considered.

  2. But were the earlier decisions of 28 June 1983 and 22 February 1984 vitiated by the same error of law? I have already quoted that part of the letter of 28 June 1983 which states the ground for rejection of Mr. Chumbairux's application. It refers to "the requirement that the marriage be assessed as a continuing satisfactory relationship". Although "requirement" is a strong word, standing alone this might not be thought to indicate that the merits of the individual case were excluded altogether from consideration. However the letter does not stand alone. When review of the decision was sought, it was forwarded to the Immigration Review Panel together with certain other documents which I have also referred to earlier in these reasons. It will be recalled that the departmental "Statement of Policy and Reasons" was completely consistent with the view taken later. It stated:



"The marriage must be assessed as genuine and on-going before consideration may be given to the grant of resident status."

After referring to the indications, as at that stage, of break-down of the marriage, it continued:





"It was decided that the circumstances precluded the grant of residence under s.6A(1)(b)." (Emphases added)

  1. The language of the letter of 1 March 1984, by which the decision of 22 February 1984 was conveyed to the applicant, which I have also quoted above, is less explicit. It qualifies its reference to policy by the adjective "normal". Nevertheless the only reason it states for rejection of the applicant's request for review of the earlier decision is the break-down of his marriage. It does not otherwise discuss the circumstances and, of course, there cannot be left out of account the facts that, firstly, it confirmed without further hearing the applicant, and without updated information as to his current circumstances, the earlier decision which had been frankly based on the break-down of his marriage alone; and secondly, that it did so despite the fact that the applicant had been denied the opportunities the Immigration Review Panel had thought in November he was required to be given. These facts, apart from the question they raise as to whether there was a denial of natural justice, which it is unnecessary to consider further, certainly suggest that the earlier view, that consideration of the merits of his case was "precluded" by the break-down of his marriage, was still maintained. Even without the further light cast on the matter by the views subsequently expressed in October 1985, I think the proper conclusion is that the decision of 22 February 1984 was also made without regard to the merits of the particular case, on the basis that a pre-condition to consideration of those merits had not been satisfied.

  2. In reaching this conclusion, I have not overlooked the terms of the s.13 Reasons which were produced in respect of the decision of 22 February 1984. Those reasons did not come into existence until almost two years after the event. They were signed respectively by the former Minister and the present Minister on 17 January 1986 and 5 February 1986. They refer to the Statement of Policy and Reasons, to which I have already several times alluded, and the findings and report of the Immigration Review Panel. They say nothing of the ex parte nature of the Panel's report. The first reason given in them is:



"The applicant is a prohibited non-citizen by virtue of sub-s.7(3) of the Act, since his temporary entry permit has expired."

There is no mention of this reason in the contemporary letter of 1 March 1984, which purported to explain the decision. Even more significantly, the last paragraph of that letter makes it clear that the Department assumed the applicant still had a current temporary entry permit: it asks him "to depart from Australia no later than either the date of expiry of your temporary entry permit or within 28 days of the date of this letter, whichever is the later." As I noted earlier in these Reasons, there is no evidence whether or not this assumption was correct, but there is evidence that in June 1983 the applicant had a temporary entry permit which was then valid until 14 January 1984. As the failure to deal with his application in November 1983, well before that temporary entry permit would expire, was entirely due to the Immigration Review Panel concluding that the Department had failed to meet the requirements of administrative law in dealing with the applicant's case up to that point, I cannot think that, when the matter was reasonably fresh in the memories of those concerned, the decision could have been based on anything so unreasonable as the view that the applicant had become debarred by the effluxion of the period of his temporary entry permit. Of course if that view had been held, it would in itself have constituted an error of law: Tang's Case (supra).

  1. I think the s.13 Reasons should be taken into account, but not without bearing in mind the great difficulty of drafting such reasons two years after the event. In my view, in all the circumstances of the present case, notwithstanding the terms of the s.13 Reasons, the proper conclusion is that which I have already stated.

  2. Had I accorded the s.13 Reasons a prime place as a statement of the reasons for the decision of 22 February 1984, my ultimate determination would not have been different. They do not purport to be reasons for either of the other two decisions the subject of the present application. Nor do they express the policy in significantly different language. Their statement of it is: "that the marriage must be a genuine and on-going one to entitle a spouse of a permanent resident to be granted permanent residence." (Emphases added). It will be apparent that there are difficulties about this statement. Strictly a spouse whose marriage has been on-going for fifty years is not entitled to be granted permanent residence - he is entitled to have his application considered on its merits in accordance with the Migration Act. It is apparent that the word "entitle" has been used rather in the sense of "qualify". The s.13 Reasons do add, as the many other statements to which I have referred in these reasons do not, the assertion: "There was no reason not to apply the policy in this case." But I do not think the Court is bound to accept a formula of that kind as conclusive of compliance with the obligation to consider the individual merits of the case: see Howells v. Nagrad Nominees Pty Ltd supra at 195; Turner v. Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392; Kaufusi v. Minister for Immigration and Ethnic Affairs (Smithers J., unreported, 20 September 1985).

  3. It is unnecessary to consider the other grounds taken in the application.

  4. For these reasons I shall set aside each of the decisions, and order that the applicant's application for an entry permit be remitted to be dealt with according to law. As the application was made at a time when the applicant held a valid temporary entry permit (see also Tagle's Case, supra, at 575) and relied on s.6A(1)(e) as well as s.6A(1)(b), and having regard to the comments of the Immigration Review Panel, the form of the orders may need some attention. Accordingly, I direct the applicant to bring in Short Minutes, after consultation with the respondent's representatives. The respondent must pay the applicant's costs.