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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