Re: SURENDRA SINGH And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT and ETHNIC AFFAIRS No. N G268 of 1991 FED No. 81 Number of pages - 37 Administrative Law - Immigration

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Re: SURENDRA SINGH      
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT and ETHNIC AFFAIRS
No. N G268 of 1991
FED No. 81
Number of pages - 37
Administrative Law - Immigration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CWDS
  Administrative Law - Judicial review - procedural fairness - whether
discretionary power exercised in accordance with Government policy and without
regard to merits of particular case - whether applicant ought to be given
opportunity to comment upon information and guidelines - whether procedural
bias resulting from earlier decisions.
  Immigration - refusal of grant of resident status - occupational grounds -
employer nomination scheme - whether occupation "highly skilled" - strong
compassionate or humanitarian grounds - effect on applicant's family - effect
on child with Australian citizenship - weight given to breaches of immigration
laws.
  Administrative Decisions (Judicial Review) Act 1977 (Cth) - s 5(2)(f), s 13
  Migration Act 1958 (Cth) - s 6, s 6A, s 6A(1)(d), s 6A(1)(e), s 6(2), s
7(2), s  7(3)

HRNG
SYDNEY, 16 April, 28 August 1992
#DATE 26:2:1993
  Counsel for the Applicant:         P. Kintominas
  Instructed by:                     Benjamin and Khoury
  Counsel for the Respondent:        D.M. Yates (16 April 1992)
                                     with Ms J.R. Baird
                                     S.J. Gaegler (28 August 1992)
  Instructed by:                     Australian Government Solicitor

ORDER
THE COURT ORDERS THAT:
  1.  The application be dismissed;
  2.  The applicant pay the respondent's costs.
Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.

JUDGE1
FOSTER J.  This is an application pursuant to the Administrative Decisions
(Judicial Review) Act 1977 (Cth) (the "ADJR Act") seeking judicial review of a
decision made on 27 November 1990 by a delegate of the Minister for
Immigration, Local Government and Ethnic Affairs (the "delegate") refusing the
applicant's application for the granting to him of resident status pursuant to
provisions of ss 6 and 6A of the Migration Act 1958 (Cth) (the "Act").
2.  The applicant, Surendra Singh, is a national of Fiji and was born there on
21 November 1951.  He arrived in Australia, along with his wife, Mohinimala,
and three children, on 26 December 1981 on a visitor's visa and was granted,
pursuant to s 6 of the Act, a temporary entry permit valid for one month.
This did not entitle him to work in this country.  No further entry permits
have been granted and accordingly the applicant and his wife and three
children who entered Australia with him have been prohibited non-citizens,
within the meaning of the Act, since 27 January 1982.  They have,
nevertheless, remained in Australia in circumstances to which I shall refer
later.  For nearly all the time the applicant has been in employment.
3.  On 25 November 1988 the applicant applied, pursuant to s 6A of the Act,
for a grant of resident status ("GORS"), based on occupational grounds.  This
application was supported by his employer, Sheraton Products Pty Limited.
This application was refused, the applicant being notified by letter dated 28
March 1989.  He was further notified by the Department of Immigration, Local
Government and Ethnic Affairs (the "Department") that there was no right of
review of the decision.
4.  Thereafter, the applicant, through his solicitors, lodged another
application for GORS based on occupational, and strong compassionate and
humanitarian grounds (ss 6A(1)(d) and (e)).  This application was also refused
and the applicant duly notified on 2 April 1990.  On 31 August 1990, the
applicant lodged an application for reconsideration by the Immigration Review
Panel who, after consideration of the matter on 9 November 1990, recommended
that the application for GORS be refused.
5.  The delegate considered the Immigration Review Panel's recommendation, the
Departmental report on the applicant and the entire Department case file.  On
27 November 1990 the delegate accepted the Immigration Review Panel's
recommendation and refused the application. The delegate advised the applicant
of this result by letter dated 3 December 1990.
6.  The applicant, through his solicitors, then made the application for an
order for review on 29 May 1991.  This application was filed out of time.
However, counsel for the respondent indicated that the respondent was content
that the proceedings should be determined, and that in the event that the
applicant was successful, that the extension of time be duly granted.
7.  The grounds of the application were widely expressed but were refined in
argument to three propositions.
8.  The first was that the delegate erred in her approach to determining
whether the applicant's application for resident status based on occupational
grounds should be granted.  The essence of counsel's submission on this point
was that the delegate exercised a discretionary power in accordance with a
rule or policy without regard to the merits of the particular case, and
failed, also, to accord to the applicant the benefit of a particular procedure
provided for in the policy.
9.  The second was that the delegate had recourse to information held by the
Department in relation to the political and social situation in Fiji without
affording the applicant the opportunity to comment on it, and did not give any
proper consideration to the problems confronting the applicant and his family
when returning to Fiji after such a long period of residence in Australia.
10.  The third related to an allegation of procedural bias against the
applicant, on the basis that material which the delegate had before her in the
decision-making process had been "infected" by an improper approach made in
earlier decisions relating to the applicant arrived at by other Departmental
officers.  These documents in the Departmental file should have been
identified and disclaimed by the delegate as not having any weight during the
course of her decision-making.  In the absence of such disclosure, there was a
significant prospect that the earlier errors had been perpetuated.
11.  I shall refer to the substance of these submissions hereafter.  In the
first instance it is convenient to set out the relevant provisions of the Act
applicable to this case.  These provisions predate the amendments to the Act
in 1989 but are accepted by the parties as governing the applicant's
situation.
12.  Upon entering into Australia, a visitor could be granted an entry permit
by an officer of the Department: s 6(2).  Such an entry permit may be
expressed to be temporary for a specific period only and subject to
conditions: s 6(6).  This was the case with the applicant upon his arrival in
Australia.  The permit being for a period of one month and subject to the
condition that he could not work.  Section 7(3) provided that upon the
expiration of a temporary entry permit, the holder of the permit became a
prohibited non-citizen unless a further entry permit were granted.  Section
7(2) provided a discretion to grant a further temporary entry permit before or
after the expiration of an existing temporary entry permit.
13.  Section 6A barred the granting of an entry permit (other than a temporary
permit) to a non-citizen after entry into Australia except in specified cases.
The section, omitting provisions not relevant to this case, read as follows:-
      "    6A.   (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 -
           ...
           (d)   he is the holder of a temporary entry permit
                 which is in force, is authorized to work in
                 Australia and is not a prescribed non-citizen;
                 or
           (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."
14.  At the time of making his applications, the applicant did not have a
temporary entry permit in force, the only such permit ever granted to him
having expired on 27 January 1982.  However, the Court was informed by counsel
for the respondent that in appropriate cases the discretion under s 7(2) of
the Act may be exercised and a further temporary entry permit be issued so
that applicants may fulfil the precondition under s 6A of having a valid
temporary entry permit where they otherwise meet the requirements of the
section.  In this regard, counsel tendered and referred to a policy statement
by the Minister for Immigration, Local Government and Ethnic Affairs (the
"Minister") entitled "Illegal Immigrants".  He relied on statements contained
in this document as evidencing government policy as to the exercising of this
discretion.
15.  As this policy document clearly played a significant role in statements
made and views expressed in the decisions and reports of other Departmental
officers which were before the delegate, it is convenient to consider those
matters together with the applicant's third submission at this point in these
reasons.  Counsel for the respondent, correctly in my view, submitted that the
legislation provides for decision-making at two levels.  In the first place,
in circumstances where an applicant does not hold a temporary entry permit,
the decision-maker must consider whether under s 6A(1)(d) the circumstances
are such that an applicant may be "authorised to work in Australia" or, under
s 6A(1)(e) there exists "strong compassionate or humanitarian grounds" for the
grant of resident status.  If an applicant cannot bring himself within these
provisions, then the question of whether he should be granted a further
temporary entry permit to enable him to rely upon the sub-sections simply does
not arise.  If, however, it does arise, then a decision-maker must have regard
to the provisions of s 7(2). This section provides as follows:-
         "7. (2) At any time whilst a temporary entry permit is in
      force or after the expiration or cancellation of a temporary
      entry permit, a further entry permit may, at the request of
      the holder, be granted to the holder and, where such a
      further entry permit is granted while a temporary entry
      permit is in force, the further entry permit shall come into
      force only upon the expiration or cancellation of the
      existing entry permit."
16.  It will be observed that this sub-section provides the decision-maker
with a simple discretion unfettered by any express wording.  It is,
accordingly, on general principles, only limited by the scope and purposes of
the Act.  The Department, however, provided assistance to decision-makers as
to the exercise of this discretion by the formulation of statements of policy
to act as guidelines.  It is clear that these policy formulations were
produced in the general context that the overall scheme and purpose of the Act
was to provide for an orderly and fair regime for migration of foreigners to
Australia.
17.  These matters are dealt with in two documents tendered in evidence, being
first the Integrated Department Instructions Manual on "Grant of Resident
Status" and secondly, the Minister's policy statement "Illegal Immigrants"
tabled in the House of Representatives in October 1985 and generally available
in leaflet form from at least January 1986.
18.  Under the heading "Granting a TEP where no valid TEP is held or the TEP
has expired prior to lodgment of the application", a number of statements
appear.  The following two are of particular relevance:-
    "3.1  If an applicant satisfies the policy guidelines for the
          eligible categories in S6A(1) but does not hold a valid TEP,
          the decision maker should then consider whether or not to
          grant a TEP to the applicant.  The fact that a person meets
          the category policy requirements of 6A(1) does not imply
          that the grant of a TEP follows as an automatic consequence.
    3.2   In making this decision the decision maker is only bound to
          take into account the public interest (see Part 1, para
          3.13).  A fundamental element of this public interest is the
          policy set out in the section 'Applications to Remain in
          Australia' in the Minister's Parliamentary statement,
          October 1985 'Policy on Illegal Immigrants'.  The policy
          guidelines in this statement indicate that breaches of
          immigration law will weigh against an applicant being
          granted a TEP even though the applicant has satisfied the
          category requirements of S6A(1)."
19.  I think it appropriate to quote some passages from the "Policy on Illegal
Immigrants", as it is clear that the existence of the policy and, indeed, its
wording played a not insignificant role in the earlier Departmental decisions
relating to the applicant, and their formulation.  The preamble to the
document reads as follows:-
      "Australia has a planned migration program with selection
      processes carefully designed to balance the numbers that can
      be settled in various categories.  Management of the program
      relies heavily on issuing visas and entry permits in good
      faith to bona fide applicants.  Conditions of entry are
      specified at the time of visa issue and reaffirmed at the
      point of entry.  No one can fairly claim to misunderstand
      their obligations.
      Illegal immigrants (i.e. those people described in the
      Migration Act as 'prohibited non-citizens') threaten the
      orderly management of the program.  They also jeopardise
      Australia's attitude to the acceptance of a very large
      number of visitors.
      There will always be limits on the numbers of people
      Australia can absorb at a particular time.  There will be a
      continuing need to balance the numbers that can be settled
      in various categories, such as skilled workers, business
      migrants, refugees and family reunion.
      For many years the competition for migration to Australia
      has been very strong.  Most people are prepared to wait
      overseas and go through the normal selection processes,
      including health and character checks.  Unfortunately, some
      people are not prepared to do this.  They are not entitled
      to abuse Australia's immigration policy and laws at the
      expense of those waiting overseas, or at the expense of
      unemployed Australian residents.
      It is not open to people from anywhere in the world to
      decide, of their own volition, that they will live
      permanently in Australia.  If, in attempting to do so, they
      break Australia's laws, they must expect to face the
      consequences, including prosecution and removal from
      Australia, by deportation if necessary.
      A small proportion of the many people who come to Australia
      as visitors fail - or refuse - to leave.  There can be no
      doubt that many of them intended to do this before they even
      applied for a visa; in other words, they obtained their
      visas by deception.  Others claim that having entered
      Australia legitimately as visitors, they decided for one
      reason or another to remain here after their entry permit
      expired.
      'Overstayed visitors', whatever their reasons, are
      unlawfully in Australia.  Their status of illegal immigrants
      or 'prohibited non-citizens' is of their own making and it
      must be recognised as such.
      It is an accepted principle of justice and fairness that
      people should not derive benefit from an illegal act they
      have committed.  Illegal immigration is no exception.
      Illegal immigrants, simply by having succeeded in entering
      or remaining in Australia, do not earn a right to special
      privilege under migration policy; nor does their act of
      being in Australia illegally earn them special rights of
      review which are not available to those who abide by the
      rules and wait overseas.
      The ability of illegal immigrants to remain concealed in the
      community, and to support themselves by working - although
      without permission - or drawing upon cash benefits and
      various public services is sometimes portrayed as a virtue.
      Some illegal immigrants claim this as evidence of their
      ability to settle in Australia, which deserves a sympathetic
      response in the form of permission to live here permanently.
      The policy can give no such reward for offences under
      Australian law."
20.  Similar matters are considered in the document under the heading
"Applications to Remain in Australia".  This section contains (inter alia) the
following statements:-
      "The Migration Act severely limits the circumstances under
      which people illegally in Australia can change their
      immigration status to permanent resident.  These limited
      provisions are not an invitation for people to enter
      Australia as visitors, then seek permanent residence when
      they should have applied and qualified overseas for entry as
      migrants in the usual way.
      If a person illegally in Australia makes an application to
      remain in Australia, it will be accepted and processed
      specifically on the understanding that the policies outlined
      in this paper will be applied. ...
      People who are in Australia illegally, whether they entered
      without authority or they overstayed their entry permits,
      will not readily be given permanent residence while they
      remain in Australia.
      Their breaches of immigration law and requirements will
      weigh heavily against them.  In particular, in reaching a
      decision on an application to remain in Australia, the
      following circumstances (if they exist) will weigh heavily
      against the applicant:
      the applicant entered Australia unlawfully;
      the applicant, although entering Australia lawfully,
      violated conditions of entry, such as working without
      permission;
      the applicant misled the Minister or an officer in
      obtaining a visa or entry permit, e.g. fraudulent
      documents or false information of a material kind;
      the applicant avoided contact with, or ceased contact
      with the Department of Immigration and Ethnic Affairs...
      the period of illegal residence by the applicant
      ..."
21.  In the present case the applicant entered Australia on a visitor's visa
with his wife and three children aged, at that time, 4, 3 and 2 years
respectively.  It is to be noted that he had relatives who had settled in
Australia, including his parents.  The applicant commenced employment at
Sheraton Products Pty Limited on 5 February 1982, that is less than one week
after the expiry of his visitor's visa. Also, it is clear that, when she
entered Australia, the applicant's wife was pregnant with their fourth child,
a son, Anthony, who was born on 3 April 1982.  The inference must have been
overwhelming to the earlier decision-makers in the Department that the
applicant entered Australia on a visitor's visa, with his entire family, with
the intention of remaining as an illegal immigrant, illegally obtaining work,
and supporting his family from his earnings in Australia.
22.  It is clear, on uncontested facts, that he successfully lost himself and
his family in the Australian community.  He established home in Australia.
His children entered school in Australia and are currently being educated in
this country.  It would appear that neither the applicant nor any member of
his family has ever returned to Fiji since coming to Australia.
23.  The applicant's status as an illegal immigrant first became known to
Australian authorities in 1986 when he attended Newtown police station to
report an assault on his brother.  This led to his being questioned by the
police as to his resident status.  He was to return to the police station so
that inquiries might be furthered.  However, instead of doing so, he chose to
change his residential address and, in effect, go into hiding.  At this time
he notified his employer as to his illegal status.  His job with Sheraton
Products Pty Limited was, accordingly, terminated.
24.  In the following year, 1987, he was re-employed by Sheraton Products Pty
Limited in circumstances where, as the evidence indicates, that company had
been unable to find anyone who could fill his position satisfactorily.  It
seems that there was an understanding that the applicant would seek to
regularise his immigrant status.  In fact, he made his first application for
resident status on 25 November 1988. This application was rejected on 27 April
1989.  The reasons for rejection indicate that the decision-maker was not
satisfied that grounds for the granting of a temporary entry permit had been
shown.  In arriving at this conclusion consideration was also given to the
substance of the application, namely that permanent resident status was sought
on "occupational" grounds pursuant to s 6A(1)(d).  It appears that some
support for the applicant's being allowed to remain in Australia to pursue his
occupation as "chemical maker" with Sheraton Products Pty Limited was given by
the employer.  This was rejected on the basis that there was no compliance
with the Employer Nomination Scheme.  Although no reference is made to the
grounds provided in s 6A(1)(e), consideration was given to the situation of
the child born in Australia and his status as an Australian citizen.  It
appears that any hardship likely to be occasioned to that child was not
regarded as sufficient to alter the decision-maker's view that the application
should be dismissed on the merits.  So far as I can see, no attempt was made
in dealing with this application to distinguish between the two levels of
decision and discretion to which I have made reference above.
25.  The second application lodged on behalf of the applicant by his
solicitors on 15 December 1989 was more elaborate.  It sought a grant of
resident status on occupational grounds pursuant to s 6A(1)(d). The occupation
relied upon was "chemical plant supervisor" in the employ of Sheraton Products
Pty Limited.  It was indicated that the applicant held no trade certificate in
respect of this position but had acquired it through "knowledge and skills
acquired in on the job training to position of chemical plant supervisor".
26.  In the supporting statutory declaration of the employer, completed by the
operations manager Mr Bridge, the applicant's position was described as being
a "chemical plant supervisor" in which role he had authority over two people
engaged in production of the company's polishes and the packing of the
finished products, it being indicated that there were 130 specialised chemical
products manufactured by the company.  The qualifications sought for the
position were "on-job training to Sheraton standards", the skill and
experience required being "ability to plan production, operate steam
equipment, train and supervise staff, five years experience".  The salary was
$25,000 per annum which included overtime.  It was further indicated that
there was no trade certificate or industry training course available for the
position, that Sheraton had "its own quality control standards built up over
62 years" and that the applicant would be involved in the training of future
employees.
27.  It was further indicated that the position together with a job
description had been advertised through the Commonwealth Employment Service
and that no suitable applicant had been forthcoming other than the applicant.
28.  The applicant also based his application on "strong humanitarian grounds"
referred to in s 6A(1)(e).  In this part of the application he spoke of the
political and social situation in Fiji.  He stated that "problems arose after
we arrived in Australia and we were afraid to return due to the violence and
harassment we would have to face".  Specifically, in relation to the strong
humanitarian grounds relied upon, he cited the circumstances that "there has
been several uprisings/coups in Fiji, which have caused much violence in the
form of bombings, burning of temples and other buildings, as well as violence
of a physical nature together with harassment towards people of Indian Ethnic
background and beliefs".  He referred to attached newspaper clippings.  He
said that he expected the circumstances to continue indefinitely.  He said it
would be inappropriate for him to reside in Fiji as "there is much violence
occurring and we would be in fear of our lives, subjected to harassment,
denied our freedom as well as physical violence".  He also asserted that it
would be unreasonable for him and his family to return to Fiji and there apply
for migration to Australia as "if we have to return to Fiji and apply for
migration to Australia I would be denied employment, and unable to support
myself and my family. We would be subjected to harassment and physical
violence and due to being denied freedom would be unable to apply".  He
further asserted that he would be disadvantaged if required to return to Fiji
because:-
    "a)  The political system has worsened in Fiji.  I firmly
         believe in Democracy and if I had to leave Australia
         and return to Fiji, I would be denied my freedom
         together with the opportunity to seek employment to
         provide for daily living.
    b)   My wife and children being of Indian origin would be
         in danger especially when the Fijian population become
         aware that we have been living in Australia.  Since
         the various coup's many people have migrated to
         Australia and there is much media reporting of the
         violence etc.  The Fijian community and especially the
         government dislike the publicity which it receives in
         this country, and this would be held against them as
         well as myself.
         The country is totally unstable, many attacks not
         being reported openly due to fear of violence if
         feelings of a personal nature were expressed of what
         had occurred, in particular to women of Indian Ethnic origin."
29.  The application was based also on "strong compassionate grounds" as
provided in s 6A(1)(e).  In this part of the application, the applicant
referred again to the political turmoil in Fiji.  He stated that "I no longer
have a home in Fiji.  I lost all my properties during the civil upheaval.  We
would be homeless with out means of support."  In further elaboration of the
"strong compassionate grounds" he made the following claims:-
   "a)  Due to the opportunity I have received whilst in
        Australia I have progressed from process worker along
        the ranks and I now hold the position of Supervisor in
        a very complex field - chemical industry.  My
        employers have trained me as I displayed a great deal
        of enthusiasm together with adaptability for this type
        of work, so much so that they are prepared to support
        my application.  It would be a sad loss to me if I
        were unable to continue in this field of work, as
        would be the case if I return to Fiji.  I have all the
        moral support of my workmates as well as my family in
        Australia, all this would be lost to me too.
        My family, parents and siblings living in Australia
        are very close knit and we are a very supportive
        family unit, I would be constantly worried and
        distressed to be separated from them, not knowing when
        I would see them again, in particular my aged parents.
   b)   My wife has undertaken studies in shorthand, typing
        and word processing since our arrival to Australia and
        has achieved good results.  In Australia she
        assimilated and would be deprived of freedom in all
        areas of her life, if she was faced with returning to
        Fiji.  Australia is a peaceful and democratic country
        where life can be lived to its full potential, this is
        not so in Fiji - fear and anxiety would be a part of
        life which she does not wish to be faced with again.
        My children have assimilated in the school system and
        it would greatly disrupt their emotional growth and
        well-being if they had to live in Fiji.  It would be
        most disturbing for them to live in a Country where
        violence, racial discrimination, bombings and arson
        are regular occurrences.  They too would be separated
        from their grandparents and other family members who
        are resident in Australia, which would cause a great
        sadness as they would miss them a great deal if they
        could not be reunited permanently.
   c)   My father, mother, brother, sister-in-law, two sisters
        and a number of nieces are residents of Australia and
        they in turn would suffer if we were to be asked to
        depart Australia.
        My parents are no longer young and rely on me as is
        tradition, to attend to their needs, in all matters
        concerning their daily lives.  We are a close-knit
        family and my absence, lack of support together with
        anxiety and fear of what we would be subjected to in
        Fiji would be very detrimental to their health and
        emotional well-being.
        In closing I would like to add that we are hardworking,
        honest and have adapted to the Australian lifestyle, as have
        my children.  It would be a great loss to all concerned
        including my employer, who relies on me in the workplace to
        be reliable, responsible for delicate and intricate
        operations, which are involved in my daily duties."
30.  This application was assessed and refused.  The reasons of the assessing
officer, which are in evidence, indicate that, in the officer's opinion, the
applicant did not meet the requirement for GORS on occupational grounds under
s 6A(1)(d) nor for strong compassionate or humanitarian grounds under s
6A(1)(e).  It appears that the s 6A(1)(d) and (1)(e) considerations were
approached simply by an evaluation of the merits on the facts advanced by the
applicant together with information received from the Australian Embassy in
Fiji.  As these determinations were the subject of reconsideration and
re-evaluation in the decision under review, I shall not consider them further.
31.  However, further comments were made by the assessing officer which, on
the analysis referred to above, and, having regard to the policy document on
the grant of temporary entry permits, relate really to the exercise of
discretion under s 7(2).  These comments form part of the comments complained
of by the applicant as not having been specifically disclaimed in the decision
under review.
32.  Thus, the decision-maker said:-
      "Mr. Singh entered Australia on a Visitor Visas, for a stay
      of 6 weeks, his entry permit expired in 1982 and he has
      remained in Australia illegally since that date.  Mr. Singh
      has been in further breach of the Act by working without
      permission.  These breaches of the Migration Law are
      considered serious and are weighed heavily against Mr.
      Singh."
33.  The decision-maker further said that "it must be remembered that
Australia has a planned migration program, and the management of the program
relies heavily on issuing visas and entry permits to people in good faith.  Mr
Singh has deliberately breached that faith."
34.  On 31 August 1990 this decision was referred by the applicant to the
Immigration Review Panel for reconsideration.  The application for
reconsideration was accompanied by a letter from the applicant's solicitors
dealing in considerably more detail with aspects of the applicant's claim
under ss 6A(1)(d) and 6A(1)(e).  In accordance with practice, an officer of
the Department presented a written submission to the panel for its
consideration along with the applicant's further submission and all the other
material in the case.
35.  This submission makes a brief review of the material and then makes the
following final comment:-
      "Mr. Singh has knowingly and intentionally remained
      illegally in Australia and has brought any problems he may
      have in re-settling in his own country on his own head.  He
      has sought to avoid the normal migration processes.  It is
      not intended that residence in Australia should be granted
      as a reward for abusing the conditions of Visitor Visa issue."
36.  It is submitted on behalf of the applicant that these comments have
illegitimately entered into the decision-making process in the decision under
review, in that they, in themselves, demonstrate an error in the approach
which has not been disclaimed by the decision-maker.  The error was, in the
first place, put as one of prejudgment of the applicant's case by, in effect,
holding against him his knowing and intentional breach of the migration law as
regards entry into, remaining in and working in Australia to the extent that
it precluded any rational consideration of the merits of the case.  It was put
that a certain extravagance in the language used was indicative of the
decision-maker's having accepted that the applicant's breaches in this regard,
in effect, constituted an insurmountable barrier to the success of his
application.  It became clear during the course of the case that the language
did not, in fact, express some idiosyncratic attitude on the part of the
earlier decision-makers but was simply a repetition of statements made in the
Ministerial document tabled in Parliament.  Seen in this light they were no
more than an expression of Departmental policy in relation to the
administration of the Act in respect of applications of this kind.  It was
then submitted that, allowing for this to be so, the use of this language in
the context on which it was found indicated that a ground for review existed
under s 5(2)(f) of the ADJR Act in that a discretionary power had been
exercised "in accordance with a rule or policy without regard to the merits of
the particular case".
37.  There can be no doubt that if a decision-maker were to approach an
application for GORS made by a prohibited non-citizen remaining in and working
in Australia in breach of his original entry permit simply on the basis that
those breaches were in themselves so heinous that they must inevitably
overcome what other merits might be displayed by the applicant in his
application, then there would be a failure to exercise the discretion in
accordance with law.  If, on the other hand, the breaches were to be
considered as matters of substantial but not necessarily insuperable gravity
when weighed in the balance with merits which might otherwise exist in the
application, then the decision-making process would not be vitiated.  This is
sufficiently clear from the Ministerial statement itself and the application
of that statement fairly and properly by a decision-maker would not, in my
opinion, lead to reviewable error.
38.  In the present case I have come to the conclusion that it is unnecessary
further to consider this aspect of the appeal.  The decision-maker who has
produced the decision under review has supplied a statement of reasons
pursuant to s 13 of the ADJR Act.  This statement is very detailed.  It does
not, in fact, deal with the effect of the applicant's breaches of immigration
law.  This is because the decision-maker did not find it necessary to enter
upon the question of whether the discretion under s 7(2) of the Act should be
exercised in favour of the applicant.  The decision-maker was satisfied that
the applicant had not brought himself within the enabling provisions of ss
6A(1)(d) and 6A(1)(e).  In these circumstances, even if it could properly be
asserted that it was necessary in some way for the decision-maker to advert to
the earlier pronouncements on the effect of breaches of the immigration law
for the purpose of expressly disclaiming that they provided an insuperable bar
to the applicant's claim, this was not, in any way, necessary in the present
case because the decision-maker did not enter into that question at all.
39.  I come, then, to the applicant's submission that the delegate in deciding
that the applicant's case did not fall within the provisions of s 6A(1)(d)
committed reviewable error.
40.  The section, which is set out above contemplates, of course, that the
applicant be the holder of a temporary entry permit and be authorised to work
in Australia.  The granting of the temporary entry permit, if thought
appropriate, would be accomplished as the result of a favourable exercise of
the discretion under s 7(2).  Authorisation to work in Australia would,
presumably, be attached to the grant of a temporary entry permit so that it
would be in effect a "working visa" and subject to conditions, particularly as
to time.  Alternatively, the authority to work might be of a more specific
kind granted on the basis that it was in the public interest that the
applicant should be permitted to do work of a particular kind in Australia.
Authorisation of this kind has been the subject of elaborate policy
formulation which is to be found in the Department's Integrated Departmental
Instructions Manual - Grant of Resident Status Number 12.  Mr Singh's
application for GORS on occupational grounds was considered in detail against
the requirements of the policy set out in this document.
41.  In her statement of reasons under s 13 of the ADJR Act the delegate
indicated that she had had regard to the provision of s 6A(1)(d), the
requirements of the Integrated Departmental Instructions Manual - Grant of
Resident Status Number 12, the Australian Standard Classification of
Occupations ("ASCO") Dictionary, as well as the full Departmental file in
relation to the applicant's applications.  The policy guidelines in the Manual
were related to and bound up with a scheme provided for in the policy and
known as the Employer Nomination Scheme ("ENS").  The purpose and essential
requirements of the scheme are set out in the manual as follows:-
      "2.5.1   The Employer Nomination Scheme (ENS) is designed
               to enable Australian employers to recruit highly
               skilled workers when they have been unable to fill
               their needs from the Australian labour market or
               through their own training efforts...
      2.6      Summary of essential requirements:
      2.6.1    General conditions for the approval of employer
               nominations are as follows:
               . the nomination form M785 must be fully completed
                 and accompanied by appropriate documentary
                 evidence of labour market testing
               . the nomination must be signed by the actual
                 employer
               . the nominated vacancy must be for an occupation
                 which is highly skilled
               . terms and conditions of the employment offered
                 must comply with Australian awards and standards
                 for the occupation concerned
               . the nominee's qualifications and experience must
                 match the requirement of the vacancy
               . the employer must be able to demonstrate that
                 labour market testing has yielded no suitable
                 local applicants
               . the nominator must be a genuine employer and the
                 existence of the vacancy not in doubt
               . the nominee should be required to fill the vacancy on
                 a permanent full-time basis
               . the employer must have a satisfactory training
                 record."
42.  In her reasons, the delegate indicated that she "focused on the following
requirements":-
      ".   the skill requirements of the vacancy;
       .   the qualifications and experience of the applicant;
       .   labour market testing undertaken; and
       .   the company's training record."
43.  In dealing with the first of those four requirements, the delegate
engaged in a detailed analysis of the facts surrounding the applicant's
employment position, which, at the time of his application, appeared to have
been that of a leading hand chemical mixer/compounder. That portion of her
reasons for decision reads as follows:-
      "In considering whether the vacancy was for an occupation
      which was highly skilled for the purposes of the ENS I had
      regard to paragraph 2.8.1 of the GORS Handbook, Number 12:
      'An occupation may be considered highly skilled when it is
      normally expected that a person will require the following
      in order to reach an average level of competence in the
      occupation:
      .    either 3-5 years formal training or 3-5 years on the
           job training;
           AND
      .    a minimum of 3 years work experience.
      Part F of the application dated 30/10/89 indicated that the
      position was 'Chemical Plant Supervisor' and the
      qualifications and experience required were:
      'On the job training to Sheraton standards.  Ability
      to plan production - operate steam equipment, train
      and supervise staff - 5 years experience.'
      The CES vacancy display lodged on 27/9/89, the letter from
      Benjamin and Khoury solicitors dated 31/8/90, the job
      description dated 28/5/90, and the letter from Sheraton
      Products Pty Ltd dated 6/9/90, all confirmed that the
      position was chemical plant supervisor.
      I consulted the ASCO Dictionary which indicated at unit
      group 7305-11 that the entry requirement for chemical plant
      operators was:
      i.   education: a 1 year certificate; and
      ii.  previous experience:     3 years as a trainee
                                    chemical plant operator.
      Usually, where an occupation required only a 1 year
      certificate it would not be considered highly skilled.
      However, as the entry requirement for a chemical plant
      operator required 1 year certificate and 3 years experience
      as a trainee, I consider that this could equate to 3-5 years
      on-the-job and formal training.  The ASCO Dictionary
      indicated that a chemical plant supervisor would require 5
      years previous experience as a chemical plant operator,
      which meant that a supervisor to reach an average level of
      competence in the occupation would require a minimum of 3
      years work experience after that formal and on-the-job
      training.  Accordingly, the occupation of chemical plant
      supervisor may be considered highly skilled for the purposes
      of the ENS.
      I then looked at the skill level of the nominated vacancy to
      see whether the position required a person with a 1 year
      certificate and 3 years traineeship (ie the occupation's
      entry requirement as indicated at ASCO Dictionary 7305-11)
      and 3-5 years work experience in that occupation.
44.  Documents in the applicant's file indicated as follows:-
        i. Part F of the applicant's first application dated
           18/10/88 at section 2 indicated that no qualifications
           were required, only 'many years of experience with the
           products, the production, the people, the acceptance
           of responsibility and common sense.'
       ii. Attached to the applicant's first application was a
           copy of a former training agreement between the
           nominator and an employee, for a chemical mixer, in
           which training took only 12 months.  I believe that
           this was produced to indicate on-the-job training
           previously given to employees in the position.
      iii. Part F of the applicant's second application dated
           30/10/89 at section 2 indicated that no qualifications
           were required, only 'on the job training to Sheraton
           standards' and 'ability to plan production - operate
           steam equipment, train and supervise staff - 5 years
           experience'.
       iv. The CES job vacancy card dated 27/9/89 indicated that
           an applicant 'must have 5 years experience in above
           duties with emphasis on staff training and
           supervision'.  No qualification was required.
        v. In a letter from Benjamin and Khoury dated 31/8/90 the
           solicitor stated that the applicant worked as
           'basically a general labourer' for 2 years.  He then
           received '2 years extensive training from Mr Haggley,
           on the job, and after all his years of employment with
           the company he is still learning on the job'.
       vi. In a letter from Sheraton Products Pty Ltd dated
           6/9/90 Mr Post, Managing Director, stated that the
           applicant had been employed as a 'Specialist Chemical
           Formulator' for the last 3 to 5 years of his
           employment since 5/2/81.
      vii. In his application the applicant indicated that he
           worked as a 'leading hand chemical maker' from 9/2/82
           to 19/3/86, from 20/3/86 to 21/1/87 as a wood
           machinist, and from 23/1/87 to 6/11/89 (the date of
           the application) as a chemical plant supervisor.
45.  I concluded that the position required:
      i.   2 years on-the-job training as a trainee;
      ii.  experience with the company's products, equipment and
           production methods;
      iii. 5 years training and experience overall;
      iv.  no formal qualification.
      The position did not meet the general entry requirement for
      a chemical plant operator of a 1 year certificate and 3
      years as a trainee chemical plant operator.  The position
      did not require any formal qualifications and the applicant
      apparently began working as a chemical plant operator after
      only 2 years on-the-job training.
      When assessed against the ENS guideline of 3-5 years
      training and a minimum of 3 years work experience, it was
      apparent that the position only required 2 years training in
      order to begin to perform it.  Whilst the employing company
      also stated the position required 5 years experience
      overall, the applicant was working in the position after
      only 2 years training and had been nominated by the company
      by an application dated 18/10/88, ie. when the applicant had
      only at best 2 years specific training and about 21 months
      experience (23/1/87 to 18/10/88).  Accordingly, the position
      at best required 2 years training and about 2 years
      experience, and less than 6 years training and experience
      overall.
      Accordingly, as the position did not meet either the general
      entry requirements for a chemical plant operator or the ENS
      guidelines for a 'highly skilled' occupation, I concluded
      that the position may not be highly skilled for the purposes
      of the ENS.
      Additionally, paragraph 2.10.4 of GORS Handbook Number 12
      stated that:
      'Assessing officers should use market rates of
      remuneration as a guide for occupations not covered by
      an award.  As a general rule, nominated positions
      receiving a salary below average male weekly ordinary
      time earnings will not be considered sufficiently
      skilled to warrant approval under ENS.'
      I noted that Part F of the application dated 30/10/89 gave
      the salary as $23,000 p.a. for 40 hours per week plus $2,000
      overtime, and the CES job vacancy card indicated $440 per
      week (ie. 22,880 p.a.) plus overtime.  The ARD was lodged on
      31/8/90 and did not indicate any change in the salary for
      the position.  I was aware that in November 1989 the average
      male weekly earning (ordinary time, adults) was $547, ie.
      $28,444 p.a.  Therefore, the salary offered of $23,000 p.a.
      was below average male weekly ordinary time earnings.  I
      considered that this was a further indication that the
      position may not be of a 'highly skilled' nature for the
      purposes of the ENS.
      I next looked at whether the qualifications and experience
      of the applicant matched the requirements of the vacancy.  I
      was aware that the nominating company was satisfied with the
      applicant's skills and strongly supported his application.
      However, the nominated vacancy had to be for a 'highly
      skilled' occupation and the applicant had to have
      qualifications and experience which matched the 'highly
      skilled' vacancy.  Therefore the applicant generally had to
      have 3-5 years training and a minimum of 3 years work
      experience relevant to the occupation.  I concluded from the
      letter from Benjamin and Khoury dated 31/8/90 that the
      applicant had only 2 years training before undertaking the
      duties of the position.  Apparently he worked:
      .    9/2/82 to about 2/84 as a 'general labourer';
      .    2/84 to 19/3/86, on-the-job training as a leading hand
           chemical maker;
      .    20/3/86 to 21/1/87 as a wood machinist;
      .    23/1/87 to date of application as a chemical plant
           operator.
      Subsequent experience would of course involve 'learning
      on-the-job' and did not indicate the level of training acquired
      by the applicant.  He did not have a 1 year certificate and
      3 years as a trainee chemical plant operator before
      undertaking the duties of the position.  Accordingly he did
      not meet the entry requirement for the occupation of
      chemical plant operator and did not meet the ENS guidelines
      for a 'highly skilled' occupation.  I noted that his
      specific knowledge of the nominating company's products,
      equipment and production methods did not by themselves
      satisfy the skill level test in the ENS guidelines.  I
      decided that he was not highly skilled for the purposes of
      the ENS."
46.  As can be seen from a perusal of her reasons, the delegate gave detailed
consideration to both the policy guidelines and the merits of the applicant's
case.  Counsel for the applicant submitted that it was "a sterile, arid, (and)
academic exercise" and that the delegate did not have regard to paragraph
2.8.5 of the GORS Handbook, Number 12, which reads as follows:
      "2.8.5   Difficult cases which appear to involve high skill
               level but do not match the skill definition may be
               referred to DEET for advice."
47.  It is apparent that para 2.8.5 of the GORS Handbook, Number 12 does not
contain a mandatory direction to officers undertaking the task of assessing
the skill level of jobs of applicants for GORS under the Employer Nomination
Scheme to refer to the Department of Employment, Education and Training
("DEET").  The delegate here looked at the objective criteria as specified in
the policy guidelines and then applied those to the applicant's subjective
circumstances.  It is apparent that the delegate was of the opinion that there
was no need to refer this particular case to DEET, as each of the objective
criteria specified in the GORS Handbook, Number 12, were not met.  It is
difficult to see how the delegate could be criticised for her approach to
assessing whether the applicant's position complied with the requirements
under the Employer Nomination Scheme.  The s 13 statement sufficiently
indicated that she gave the matter full consideration in deciding whether the
applicant's job was "highly skilled", according to the policy guidelines.
48.  The applicant also submitted that, in any event, the delegate ought to
have notified him that she proposed to use the guidelines in the GORS Handbook
and also have recourse to the ASCO Dictionary, and afforded him an opportunity
to make submissions if he disagreed with the classifications therein.
49.  It may well be that consideration of procedural fairness in some cases
require that a decision-maker disclose to an applicant policy considerations
which are being applied by the decision-maker so that the applicant has an
opportunity to deal with them.  However, I am satisfied that this is not such
a case.  The applicant was legally represented. The existence of the ENS was
well known and the details of its requirements readily available.  The
application forms sufficiently indicate that a non-citizen seeking GORS should
provide all the information upon which he relies with his application.  The
applicant did in fact supply detailed information which was extensively
supplemented in the subsequent letter from his solicitor forwarded when review
was being sought of the first decision.  The evidence of Mr Bridge, in my
view, only indicated that if the Department had made inquiry of him personally
in relation to the applicant's application and the position he wished him to
fill, nothing of any further significance would have been ascertained.  The
applicant had a flair for mixing the chemicals required for the manufacture of
the company's products which was difficult to find in other applicants for the
job.  He will be difficult to replace at least at the salary level offered.
This is not sufficient to make the job a "highly skilled" one.
50.  I am quite satisfied that no error has been demonstrated in the
delegate's approach.  She was not simply applying policy without regard to the
merits.  She was under no obligation to seek the assistance of DEET.
51.  I come to the rejection by the delegate of the applicant's case based
upon strong compassionate or humanitarian grounds pursuant to s 6A(1)(e) of
the Act.
52.  "Strong compassionate grounds" are dealt with in GORS Handbook Number 6
and "strong humanitarian grounds" are dealt with in GORS Handbook Number 10.
The delegate dealt with the policy requirements set out in those documents and
their effect on her consideration in the following passage from her s 13
statement of reasons:-
      "GORS Handbook Number 6 concerned 'strong compassionate
      grounds'.  Paragraph 2.1 provided, inter alia, that to be
      granted resident status in Australia on the basis of strong
      compassionate grounds, the applicant and any family unit
      members included in the application must:
      .    Satisfy the policy guidelines relating to 'strong
           compassionate circumstances'; and
      .    meet public interest policy requirements which
           included the health requirements, character
           requirements, and other as relevant.
      Although the wording 'must' was used, I was aware that I
      should look at the case on its merits.
      GORS Handbook para 2.3 provided that:
      'Policy guidelines:  In general, compassionate circumstances
      relate to the misfortunes and sufferings which people
      experience in their personal lives brought about by unusual
      or distressing circumstances which relate to them as
      individuals.'
      GORS Handbook para 2.5 provided that:
      'Both policy and law require that strong compassionate
      circumstances exist for the Grant of Resident Status.  Thus
      any compassionate circumstances put forward must be
      significantly severe, and burdensome.  Simple inconvenience,
      discomfort or disadvantage either to themselves or to an
      Australia citizen or resident as a result of an applicant
      not being allowed to remain in Australia are not
      sufficient.'
      I concluded that in order for strong compassionate
      circumstances to exist, the applicant had to demonstrate
      that if he and his family were not allowed to stay in
      Australia the consequences to him and/or his family, would
      be of a significantly severe and burdensome nature so as to
      constitute strong compassionate grounds.
      Gors Handbook number 10 indicated at para 2.3.2 that
      applicants for grant of resident status on the basis of
      strong humanitarian grounds would generally need to
      demonstrate that:
      .    it would be significantly unfair or unjust to expect
           the applicant to return to their country of origin or
           last residence because severe hardship would result;
      .    residence elsewhere would be inappropriate;
      .    the circumstances on which the claim relies should be
           of indefinite duration or, if no longer current, have
           so severely affected the applicant as to render
           effective rehabilitation in the country of previous
           residence unlikely."
53.  It is clear from the delegate's reasons that in reaching a view as to the
political and social situation in Fiji, insofar as it might affect the
applicant and his family should they be forced to return to that country, she
had regard to the assertions as to considerable disadvantage made by the
applicant, which have been set out above, and also the newspaper clippings
which he forwarded with his application.  She also had regard to information
available to her from the Australian Embassy in Fiji and from a publication,
an international digest, which provided information on Fiji gathered from
various sources.  The applicant's counsel made two main complaints in relation
to this aspect of the delegate's deliberations.
54.  First, he complained that the delegate had indicated a view that the
newspaper clippings that had been provided in support of the applicant's case
were "selective".  It was submitted that, insofar as this view involved some
criticism, it should have been referred to the applicant for further comment.
It was not indicated to the Court what that further comment might have been.
No doubt that applicant had forwarded newspaper clippings which supported his
contention that there was some breakdown of law and order and potential
physical danger in Fiji.  It is clear that the delegate considered them and
indeed made some evaluation of them.  In the circumstances of the case, I do
not regard the comment as an unfair one, nor the failure to afford an
opportunity to comment as an error requiring curial intervention.
55.  The second complaint was to the effect that the applicant should have
been made aware by the delegate that she was having regard to the information
obtained from the Embassy and in the digest.  This information tended to play
down the degree of social and political problems in Fiji resulting from the
coups.  It tended to show that the situation was returning to normal.  I do
not feel that there is any substance in this complaint.  It would surely have
been recognised that the Department would have regard to information coming
from other sources bearing upon the general situation in Fiji and that it
would have access to such information.  It is clear that there was nothing in
the information which was personal to the position of the applicant or his
family such that it would have been unfair for them not to have been afforded
an opportunity to reply to it.  I am satisfied that no reviewable error has
been demonstrated in this respect.
56.  So far as matters falling under the heading of compassionate grounds are
concerned, it is clear that the applicant sought to make a case based upon
hardship not only to himself and his wife, but also to his children and his
parents should he and his children be required to return to Fiji.  So far as
his parents were concerned he made the claim, set out above, that they would
be deprived of his care in their old age. In this regard, the delegate, in her
reasons, made the comment that "the applicant did not produce any evidence to
substantiate this claim".  The applicant complains that he should have been
advised of this view of the delegate so that he could have met it by the
production of evidence.  I am not impressed by this complaint.  In the first
place strong compassionate grounds would not be established merely by the
ordinary pain of separation between members of the family.  Some special
deleterious result would need to be advanced.  If, indeed, there were any
special problems which would arise from the departure of the applicant to Fiji
then it might reasonably have been expected that these would have been the
subject of detailed treatment in the application together with supporting
statements from the parents and anybody else who could provide relevant
information.  This was not forthcoming in the application, with the result
that the delegate's comment was justified. Nor was it suggested in argument
that particular hardship could have been demonstrated if the opportunity had
been provided.  Indeed, it is clear in the evidence that other members of the
family are legally resident in Australia and able to provide support to the
applicant's parents.  Indeed, the applicant does not currently reside with his
parents and would not appear to provide constant daily support.
57.  The applicant had made the claim that he and his family would face
particular difficulty and hardship on returning to Fiji as they would be seen
as having resided in Australia for many years.  It was said that this was a
circumstance which would lead to particular hardship being visited upon them.
It must be noted that this claim was no more than a mere unsupported assertion
in the applicant's application.  If there was evidence to support it, even if
only anecdotal evidence supplied by members of his family still resident in
Fiji, then it could have been forwarded with the application.  It is clear
that the matter was considered by the delegate and given little weight.  I see
no indication of error.  Weight was peculiarly a matter for her.
58.  The situation of the applicant's four children has occasioned me concern.
The youngest child, now aged ten, was born in Australia shortly after the
arrival of the applicant and his wife and is an Australian citizen.  He is
entitled to remain in Australia but if his parents are forced to leave he will
either be deprived of the presence of his parents or of the benefits of his
Australian citizenship.  The other children are teenagers and have been
brought up in Australia.  It does not appear that they have ever been to Fiji
since their arrival in Australia and, presumably, would have no recollection
of it.  Obviously their schooling has been in the Australian educational
system and they have been brought up simply as Australian children.  It is no
fault of theirs that they are illegal immigrants.  Although they have
relatives in Fiji and, apparently, would be accepted into the Fijian school
system for the completion of their education, the dislocation and disruption
involved in their being required at this point of time to leave Australia and
return to Fiji would no doubt be substantial.  The situation of these children
was considered by the delegate.  She refers to these considerations in the
following paragraphs of her reasons:-
      "Anthony Singh born on 3/4/82, some 3 months after Mrs
      Singh's arrival in Australia, is an Australian citizen as a
      result of his birth in Australia.  Mrs Singh was about 6
      months pregnant when she arrived in Australia.  The fact
      that the child is an Australian citizen gives no right of
      residence or citizenship to the parents.  However the
      welfare of the child was a prime consideration.  The child
      was approximately 8 years old and was too young to decide
      where he wanted to live.  I accepted that the applicant was
      in a genuine on-going marriage and the welfare of the child
      would be best served by being with his parents and siblings
      as part of a family unit, be that here or in Fiji.  I
      believe that he was able to reside with his parents, and
      receive appropriate schooling in Fiji.  The International
      Guide to Qualifications in Education indicated that the
      education system was still closely related to that of New
      Zealand with the medium of instruction being English.
      Tertiary education is available through the University of
      the South Pacific.  I did not consider that the child's
      welfare and education would suffer should he and his parents
      go to Fiji to live.
      The 3 older children were Fijian citizens but had lived a
      large proportion of their lives in Australia as a result of
      their parents' illegal residence.  I considered that they
      could also receive appropriate schooling in Fiji and that
      their welfare would not suffer if they returned to Fiji to
      live.  I acknowledge that the childrens' only grandparents
      were in Australia and that they felt close to them and the
      other family members in Australia.  Nonetheless the children
      had many family members in Fiji, and there was no indication
      that if they lived in Fiji they would be unable to see their
      relatives in Australia in the future by visiting them or
      vice versa."
59.  She further said that she considered "that the emotional, family,
employment, social and other ties that the applicant, Mrs Singh and their
children had formed in Australia were not of such significance that he and his
family would be severely disadvantaged if required to depart Australia.  Nor
did I consider that the applicant's Australian-born child and other children
would be severely disadvantaged if they departed Australia."  She was
accordingly not satisfied, in respect of the children, that strong
compassionate grounds had been made out.
60.  It is not, of course, for this Court in any way to reconsider this
decision on the merits.  Undoubtedly the potential effect of requiring that
the children lose their home in Australia and start afresh in Fiji in reduced
and probably difficult circumstances excites one's sympathy.  However, the
question is whether the decision and its reasons indicate grounds for review
under the ADJR Act.  Has there been a failure properly to consider the
question whether strong compassionate and humanitarian grounds have been
demonstrated in respect of the children?  It must be noted that no particular
material relating to the children as individuals was supplied in support of
the applicant's application although the possibility of hardship to them was
raised.  I can see no indication that there has been any failure on the part
of the delegate to take into account hardship to the children and the degree
of it.  The decision that she made that the hardship, real as it obviously
was, did not constitute strong compassionate and humanitarian grounds was, of
course, essentially one of fact.  I am not satisfied that any reviewable error
has been demonstrated in the making of the decision.
61.  In these circumstances I must dismiss the application.  I do so and order
the applicant to pay the respondent's costs.