Khan, S. & Ors v Minister for Immigration & Ethnic Affairs [1987] FCA 713

The third applicant submitted his thesis on 12 July 1984. Since the institution of the present proceedings in the Court, the thesis has been passed. The degree will be conferred on the third applicant in April 1988. In the period after July 1984, whilst awaiting the marking and possible amendment and resubmission of the thesis, the third applicant applied for a position as tutor with the School of Civil Engineering at the University of New South Wales. That position was advertised nationally and he was the successful applicant. He was offered and accepted a two year contract, commencing 1 February 1985.

The University of New South Wales supported the third applicant's application for permanent residence status, to which I later refer. Professor T.G. Chapman, Professor of Civil Engineering and Head of School at the University of New South Wales, stated on 26 April 1985 that the applicant had

fully justified his appointment, that he was very hard working,

he had accepted a heavy teaching load covering a wide range of civil engineering subjects in addition to his own field of soil mechanics. Professor Chapman has also stated that at a time when the Department of Civil Engineering Materials within the School had been decimated by the transfer of academic staff elsewhere, the services of the third applicant had enabled the School to continue its teaching programme.

When the third applicant was accepted into the University of Western Australia in 1979, the fourth applicant was pregnant and was advised not to travel to Australia with her husband. The second applicant, Ambereen, was born in Bangladesh on 9 November 1979. She travelled to Australia with her mother and arrived here on 22 February 1980. On 31 July 1981, in Perth, the fourth applicant gave birth to the second daughter, Sabrina. Sabrina is an Australian citizen and her status was not relevantly changed by the amendments effected by s.4 of the Australian Citizenship Amendment Act 1986.

The fourth applicant spent between January to June 1985 in Bangladesh with her two daughters. She was visiting her father who was aged and sick.

There was before the decision maker in respect of the events giving rise to this litigation a professional psychological evaluation of the potential impact upon the children of a return to Bangladesh. The report, by Dr. S.M. Hurt, was dated 1 October 1986, at a time when Ambereen was aged 6 1/2 years and Sabrina 5 years. The document included the following:

The children and their mother spent 6 months in Bangladesh, from January to June, 1985.

(It must be noted that the time spent in Bangladesh is not an inconsiderable period

for an adjustment trial.) Mrs. Khan reports physical, behavioural and emotional problems in both children which emerged and lasted for the 6 month period.

Physical: While both children are normally healthy, both were physically ill for the 6 month period in Bangladesh. Their reaction to the food, water and toileting conditions was extremely poor for the duration of the trip. The gastrointestinal disorders substantially interfered with the childrens [sic] ability to adjust to life in Bangladesh. The disorders are no longer apparent since returning to Australia.

Behavioural: The children experienced sleeping and eating difficulties as well as social difficulties at school and with relatives. They attended school for 3 months while in Bangladesh, finding the schooling system vastly different, and the experience stressful. Neither of the children were able to speak substantial Bangali {sic], were unable to write, and had difficulty in making friends.

Emotional: Both children are reported to have experienced depression and anxiety during their visit, wishing to return to Australia. They also showed some degree of emotional upset when exposed to the poverty and different lifestyle and conditions in the country.

The children recall the sickness' they experienced and the difficulty adjusting to the food, toileting and schooling systems. They also recall the lack of access to certain foods, transport, and noted the absence of "pets, flowers and butterflies". They complain of not being able to read or talk to the people there, the inability to make friends or enjoy school. They both said they would not enjoy living in a place where they would be sick, away from their home, their friends and their school.

The parents report that if the subject of returning to Bangladesh is discussed at home, the children become depressed and physically ill.

From the above reactions to the 6 month period in Bangladesh during 1985, the ability of the children to successfully adapt to a life in that country cannot be assumed. The 6 month trial of living in

Bangladesh has given insight into the physical, emotional and behavioural problems likely to be experienced by the children on returning to Bangladesh.

It could also be predicted that the reaction would be intensified by the additional and considerable adjustments that would need to be made by the family unit...

While there is not proof that the children would fail to adjust, the previous experiences of the children indicate that substantial difficulties and adjustment may be consequent upon such a move. It could be foreseen that these adjustment problems would be exacerbated by a_ range of additional factors adversely affecting the physical and emotional well being of the children concerned.

On his arrival in Perth on 30 August 1979, the third applicant was given an unconditional temporary entry permit with effect until 30 August 1980. Extensions were then granted from 15 August 1980 to 30 September 1981, from 10 December 1981 to 31 December 1982, from 17 December 1982 to 31 December 1983 and from 8 February 1984 to 31 October 1984. On 30 October 1984, the third applicant was granted an unconditional permit to remain in Australia until 30 June 1985. The position to which the third applicant was appointed at the University of New South Wales was advertised on 27 and 31 October 1984, and at the time of the third applicant's application he was the holder of the unconditional entry permit current to 30 June 1985. On 28 June 1985, the third applicant completed a formal application for resident status in Australia and in it he described his current employment as tutor at the University of New South Wales, with effect from 1 February 1985. Already, on 24 May 1985, Mr Khan had written to the Regional Director,

Permanent Residence Section of the Department of the present

respondent in Sydney. In his letter he stated he wished to

apply for permanent resident status, and, inter alia, gave very

full details of his then current employment by the University of New South Wales. Indeed, by letter dated 22 May 1985, the University had written to the Regional Director endorsing a copy of the statement by Professor Chapman which I have already described.

In para. 12 of the Departmental Statement to which I later refer, it was stated that the third applicant had accepted the position at the University of New South Wales "without authority from this Department and without applying for a change of his status from student to either that of temporary or permanent resident". In truth, at the time the third applicant took up the appointment, he was in possession of an unconditional entry permit, current to 30 June 1985, and on 28 June 1985, as I have indicated, he made formal application for resident status in Australia, in which he disclosed the position as to his current employment. The statement in para. 12 of the Departmental document is thus somewhat wide of the mark and unfairly suggests unmeritorious conduct by the third applicant. The matter is all the more unfortunate when it is borne in mind that the situation might accurately have been described in the Departmental Statement by reference to documents, originals or copies of which were or should have been in the possession of the Department.

In the formal application by the third applicant, reliance was placed upon the provisions of sub-s. 6A (1) of the Migration Act 1958. This provides that an entry permit shall not be granted to a non-citizen after his entry into Australia unless in respect of him one or more of five conditions is

(e) he is holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him.

The reference in sub-s. (1) to "an entry permit" is to be read as a reference to an entry permit other than a temporary entry permit and it is in this way that the permit sought is treated as an application for "resident status": Gunaleela v MIEA (1987) 74 ALR 263 at 275.

The purpose and effect of s.6A 1s to make it more difficult for immigrants who have entered Australia later to gain permanent resident status in the sense that (a) only if one of the conditions mentioned is fulfilled may an entry permit be granted and (b) fulfilment of one of those conditions does not oblige the decision maker to grant an entry permit: Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 296, Kioa v West (1985) 159 CLR 550 at 565, 600, Gunaleela v MIEA (supra) at 275-276.

On 11 February 1986, the third applicant was informed that the applications had been refused.

A request for review was then made on 25 February 1986

supported by representations by the applicants' solicitors

including the report by Dr. Hurt to which I have earlier

referred. The Immigration Review Panel also had before it a Departmental Report of 20 February 1987. I have already referred to para. 12 of that document.

The Immigration Review Panel reported on 12 March 1987 and on 20 March 1987 the Delegate of the Minister accepted the recommendation of the Panel which appeared in para. 14 of its report. This was in the following terms:

Accordingly, after considering the matters raised in the appeal, the Panel has

concluded that the circumstances of this case are not such as to warrant special

treatment and recommends that the departmental decision be maintained and explained.

The proceedings jin this Court were commenced on 23 April 1987. Initially, the two children, Sabrina and Ambereen, were the only applicants and each of them asserted that they were aggrieved by the decision of the Delegate.

No application for resident status appears to have been made on behalf of the second applicant. None was appropriate in respect of Sabrina, the first applicant, because she was by birth an Australian citizen and, indeed, is the bearer of an Australian passport. It appears to have been assumed, no doubt quite properly, that in respect of Ambereen, the second applicant, her resident status would follow that of her parents. Likewise, it appears to have been assumed, no doubt in the circumstances quite properly, that the fate of the application by the fourth applicant is bound up inextricably with that of her husband.

In Kioa v West (1985) 159 CLR 550, the Tongan parents

of an infant daughter who was an Australian citizen sought

review of deportation orders made against them and of refusal

of their applications for further temporary entry permits and permanent entry permits. Their temporary entry permits had expired and they had remained illegally in Australia to raise money for relatives in Tonga who had suffered loss in a cyclone.

The High Court held that in the circumstances of the case, the infant daughter had no entitlement to be heard before the deportation orders were made against her parents, in essence because the effect of those orders upon her would be indirect and consequential and, in any event, it had been sufficiently considered by the Delegate of the Minister.

In Kioa v West (supra) the parents and child had each

made applications for an order for review in respect of decisions directly affecting the parents. In the Full Court of this Court, Jenkinson J. (4 FCR 40 at 59-60) made the following observations:

There can be no doubt that each of the first and second appellants is "a person who is aggrieved" within the meaning of that phrase in s. 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), by each of the two decisions with respect to him and her respectively. They being husband and wife and the third appellant being their infant child, the interest which each appellant has in being able to enjoy the society of each of the other two within Australia is probably sufficient to justify the conclusion that that appellant is "a person who is aggrieved by" each of the decisions which does not have that appellant for its subject.

I respectfully agree with what was there said and note that the approach there evinced to the construction of s.5 of the ADJR Act is consistent with later authority in the Full Court of

this Court: W.H. Broadbridge v Stammers, (4 November 1987, pp.

3-4 unreported). In the High Court, the debate in Kioa v

West was rather differently directed. As I have indicated,

the submission was that before a deportation order was made against her parents, the child should have been given an opportunity of presenting a case against the making of such an order and that the right to natural justice or, more accurately, the duty to act fairly extended that far: see 159 CLR at 588, 603, 629-630, 634. I conclude, therefore, that all four applicants were proper moving parties in the present proceedings.

On 23 March 1987, the Department wrote to the third applicant informing him of the Delegate's decision to maintain the decision to refuse the applications for resident status and requesting the third applicant to depart from Australia within 21 days from the date of the letter. As I have mentioned, the present proceedings were commenced on 23 April 1987.

In the Application, the decisions in respect of which review is sought are identified by reference to the letter of 23 March 1987. Review is sought on the ground that the making of the decisions involved errors of law within para. (f) of sub-s. 5 (1) of the ADJR Act. It was also, and principally, urged that there had been an improper exercise of power within the meaning of para. (e) in sub-s. 5 (1) (e) of the ADJR Act, in conjunction with various paragraphs in sub-s. (2). In particular, it was submitted for the applicants that there had been an improper exercise of power in the sense that there had been no real consideration of the relevant issues and para. (f) of sub-s. 5 (2) was relied upon. This provides that the

reference in para. 5 (1) (e) to an improper exercise of a power

shall be construed as including a reference to an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.

As I have indicated, the applications for "permanent resident status" could only succeed, in the circumstances of this case, 1f each applicant could show that he or she held a temporary entry permit which was in force and that there were "strong compassionate or humanitarian grounds" for the grant of a permanent entry permit.

Sub-s. 6A (1) refers to the objective existence of the conditions it enumerates, rather than to the opinion or satisfaction of some authority that the conditions or any of

them are fulfilled. In Kioa v West (1985) 159 CLR 550 at 582,

No doubt the existence or non-existence of many of the matters mentioned in pars. (a) to (e) inclusive may be readily established. However "strong compassionate or humanitarian grounds" stand in a different position and may be very much a matter of opinion.

Sheppard J. spoke to like effect in Shand v MIEA (31 March

It could not be suggested that the circumstance that the refusal of an application might lead or contribute to the break-up of a family unit would necessarily give rise to strong compassionate or humanitarian grounds within the meaning of the legislation. However, what was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of

the case and be ready in a proper case to depart from any

applicable policy: Howells v Nagrad Nominees Pty. Ltd. (1982) 66 FLR 169 at 195, Kioa v West (supra) at 604, Chumbairux v

MIEA (1987) 74 ALR 480 at 492-494, That consideration included, in respect of each application, the effect or likely effect of refusal of the application upon members of the family; cf. Tabag v MIEA (1982) 70 FLR 61 at 67, referred to by

Wilson J. in Kioa v West ( supra) at 604. The assertion by a

decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense: Turner v MIEA (1981) 35 ALR 388 at 392, Chumbairux v MIEA (1987) 74 ALR 480 at 495-496.

I bear very much in mind the limited role of a court reviewing the exercise of an administrative discretion: Minister for Aboriginal Affairs v Peko-Wallsend Ltd. (1986) 162 CLR 24 at 40-41 per Mason J. It is not for the Court to study administrative decisions too finely or precisely; they are to be regarded carefully but sensibly, and not zealously in

the pursuit of error (Smith v MIEA (1984) 53 ALR 551 at 554 per

Lockhart J). Nevertheless, in my opinion, on the whole of the evidence, the applications in question were not each given proper, genuine and realistic consideration upon the merits.

In the Departmental Statement, reference is made in terms to sub-s. 5 (2) (f£) of the ADJR Act. Paras. 4 and 5 deal with policy in the following terms:

4. Government policy with regard to resident status aims to prevent circumvention of migrant entry policy by temporary entrants by

maintaining control over those who can enter or remain in Australia.

5. Towards this end, persons seeking admission to Australia under the Private Overseas Students Program

are required to sign an acknowledgment of conditions of entry which, inter alia,

incorporates the acknowledgment that they clearly understand and accept that they are to return home on completing their approved course of study or training, in accordance with the broad objective of the Australian Government's policy in admitting private students, and that temporary entry as a student confers no right of permanent residence in Australia at a later date.

Reference was also made to sub-s. 6A (1) (e) of the Migration Act and it was stated that claims were evaluated with regard to certain guidelines in the Grant of Resident Status Handbook but that the circumstances described in those guidelines did not purport to be the only circumstances in which the condition in para. (e) could be fulfilled. The document then dealt with the "background to the primary decision" and in the course of so doing, in para. 12, an inaccurate statement was made concerning the circumstances in which the third applicant applied for and was successful in obtaining a position as tutor at the University of New South Wales. I have already referred to this aspect of the matter. The impression created by para. 12 does, in my opinion, mean that, in a serious respect, the merits may not properly have been understood when they were evaluated in the light of policy.

The Departmental Statement went on (in para. 20) to state that while the third applicant and his family no longer

held temporary entry permits which were in force, it would

nevertheless be appropriate to issue further temporary entry

permits to bring them within the ambit of para. (e) of sub-s. 6A (1) if there were strong humanitarian or compassionate grounds for the grant of entry permits.

In para. 21 the document goes on to deal one by one with claims made in the request for review of the initial refusals. Sub-paras. (i) and (j) are in the following terms:

CLAIM: That insufficient consideration was paid to the likely adverse effects that resettlement abroad, presumably in Bangladesh, the country of Mr. and Mrs. Khan's citizenship would have on their two young children.

COMMENT: It is accepted that the children have spent what amounts to virtually all their formative years in Australia. They could be expected to encounter difficulties in readjusting to a new environment, particularly in two such culturally different countries as Australia and Bangladesh. However, it is noteworthy that Mrs. Khan saw fit to take them to Bangladesh for a visit of approximately five months duration in 1985...

Insofar as the words "saw fit" carry some pejorative connotation adverse to the merits of the applicants, it is to be noted that in truth the fourth applicant stayed in Bangladesh as long as she could so as to be with her father who was old and sick. She has given unchallenged evidence in these proceedings that in this period her relatives in Bangladesh, and particularly her father, urged her to return to Australia for the sake of the children. I would not go so far as to say that procedural fairness required the author of the Departmental Statement to query with the applicants the circumstances of the visit to Bangladesh before making a comment such as that found in sub-para. (J). Nevertheless,

this does, in my view, reveal another significant factor which

goes into the equation when assessing whether there was an exercise of a discretionary power adverse to the applicants in accordance with a rule or policy without regard, in the sense I have earlier described, to the merits of the particular cases. I return to the balance of the comment in sub-para.

• . . The solicitors acting on behalf of the Khan family commissioned a psychological evaluation to estimate the potential impact of the children living in Bangladesh. The information presented in this report has been noted but it is not considered that it amounts to a persuasive reason for granting change of status to the family on strong compassionate or humanitarian' grounds. There 1S no reason to suppose that the human rights of Mr. and Mrs. Khan's Australian born child would be at risk if she were to return to Bangladesh with her parents.

I have set out, earlier in these reasons, significant passages from the report of Dr. Hurt. To say of the report merely that "the information presented" in it has been "noted" but that "it is not considered that it amounts to a persuasive reason for granting change of status" indicates consideration so limited as to be indicative of a perfunctory and cursory consideration rather than a proper genuine and realistic consideration of what was a substantial element in the merits of the particular cases.

The Departmental Statement concluded with para. 22 in the following terms:

Having regard to the totality of the Khan family's circumstances as they are known to the Department, including the claims advanced in support of the review request

considered individually and in conjunction with one another, they have failed to

establish strong compassionate or humanitarian grounds for the grant of an entry permit. The primary decision to

refuse the application for a change of status has therefore been maintained.

I turn now to consider the report of the Immigration Review Panel dated 12 March 1987. In para. 7 (d) of that document, it is stated that the request for review challenges

the previous decision inter alia on the ground that:

no se@rious analysis was made of the potential impact on the children of living in Bangladesh - and in that regard a psychological evaluation by Dr. S.M. Hurt 1s submitted. The request also asserts that the Department treats Australian children, who cannot put their own views forward, most unfairly.

In the final analysis it is asserted, on the basis of Dr. Hurt's report, that there are sufficiently strong compassionate and humanitarian grounds for the issue of an entry permit. The Panel went on to refer to the contents of the Departmental Statement and continued, in para. 11, by saying: In considering this appeal, the Panel had the benefit of a further paper from the Department covering cases involving the parents of children born here. This has been added to the departmental statement.

The further Departmental document was prepared in response to a request by the Panel for "some statements appropriate to cases involving the parents of children born in Australia". The writer set out summaries of what he described as "the best samples that I have been able to locate". The first sample is an extract from what 1s described as the "Residence Control Manual". This states that parents who are or who have become prohibited non-citizens are liable to deportation and that they are expected to take with them a child born in Australia even though the child has acquired

Australian citizenship at birth; however, the child is free to

remain, if they so wish, under satisfactory arrangements made by the parents or "by Child Welfare". The second "sample" is an extract from a policy statement in October 1985 by the Minister on the subject of "illegal immigrants". What was there said would not have any immediate relevance to the position of the third and fourth applicants when in June 1985 they made their applications for permanent resident status. Thus, the statement in this "sample" that the "existence of an Australian citizen child does not confer upon illegal immigrants the right to choose their country of residence. Each case will be treated on its own merits" would either be irrelevant to the situation before the Panel or if treated as relevant would have potential to be misleading.

The third sample contains a discussion of Kioa v West

(supra), with particular reference to the position of the child born in Australia to Mr. and Mrs. Kioa. Mr. Kioa had been apprehended, placed in custody as an illegal immigrant and his application for an extension of his temporary entry permit had been formally refused. Although the child in question had been born in Australia, as has Mr. and Mrs. Khan's daughter Sabrina, the position under the Australian migration law of Mr. and Mrs. Kioa at material times differed significantly from that of Mr. and Mrs. Khan. The document in which the "samples" appeared did not point this out.

The last "sample" was from "statements surrounding the

amendments to the Citizenship Act". This dealt with the

amendments to the Australian Citizenship Act 1948 effected by

the Australian Citizenship Amendment Act 1986, which came into force on 8 August 1986. I have already indicated that this

legislation had no effect upon the status of Sabrina. It was thus of use to the Panel only as background information.

I return to the text of the report of the Immigration Review Panel. After stating that in considering the appeal the Panel had had the benefit of the Departmental paper just described, the Panel continued:

12. The Panel finds that the legislation, policy and critera relevant to this appeal have been correctly applied.

13. The Panel does recognise that there are compassionate circumstances, especially in relation to _ the children, but considers that these are not sufficient to meet the requirements of para. 6A (1) (e) of the Migration Act. Further in relation to the Australian born child, under the policy explained by the Department and applicable in this case, there is no automatic right on [sic] her parents or other children to remain.

14. Accordingly, after considering the matters raised in the appeal, the Panel has concluded that the circumstances of this case are not such as to warrant special treatment and recommends that the departmental

As I have mentioned, the Panel recommendation in para. 14 was accepted by the Delegate on 20 March 1987.

Counsel for the applicants directed attention to the terms of para. 14 of the Panel's report. He submitted that

misapprehension as to the effect of para. (e) of sub-s. 6A (1) of the Migration Act. In particular, he submitted that the reference to warranting special treatment in para. 14 was a reflection of the statement in para. 13 that in relation to an Australian born child there was no automatic right of the parents or other children to remain in this country. In para. 13, the reference to the absence of an "automatic right" was said to be drawn from the policy as explained by the Department. The submission proceeded that this in turn directed attention back to para. 11 of the Panel's report and to the incorporation there of the further paper from the Department. That further paper was expressed so as not to be of substantial assistance in considering the merits of the particular cases before the Panel, and indeed was apt to mislead, as I have mentioned.

In the circumstances, counsel for the applicants submitted that there was manifest an error of law as to the meaning of the expression "strong compassionate or humanitarian grounds" in para. (e) of sub-s. 6A (1) of the Migration Act; this attracted review under para. (f) of sub-s. 5 (1) of the ADJR Act.

In my view, this argument is not without some force. In particular, the statement in para. 14 of the Panel's report May perhaps be thought to suggest that the Panel was of the view that compassionate circumstances would not be sufficiently "strong" for the purposes of para. (e) of sub-s. 6A (1) unless the circumstances were such "as to warrant special treatment", that is to say treatment above and beyond that generally given

applicants in the ordinary or routine application of policy.

But I believe it would be going too far to hold that in the setting of this case the expression "such as to warrant special treatment" went beyond more than a fair attempt at an expression giving a meaning synonymous with the force added to the expression "compassionate or humanitarian grounds" by the epithet "strong". In my view, there has not been on this ground an error of law within the meaning of para. (f) of sub-s. 5 (1) ADJR Act.

Nevertheless, the statement in para. 13 of the report by the Panel that, whilst it recognises there are compassionate circumstances, especially in relation to the children, it "considers these are not sufficient to meet the requirements of para. 6A (1) (e) of the Migration Act", when read with what precedes it, is further indication that the applications in question were not each given proper, genuine and realistic consideration upon the merits. I have already referred to other matters each of which points to the same conclusion, in the course of dealilng with para. 12 of the Departmental Statement, sub-para. 21 (j) of the same document, and the "samples" in the further Departmental document.

Accordingly, I find that the applicants have made out their case under sub-para. 5 (1) (e) of the ADJR Act, in conjunction with sub-para. 5 (2) (f£) of that Act. The decisions in question are those of the Delegate of 20 March 1987. As I have indicated, I have taken those decisions as

being in respect of the applications for permanent resident

status by the third and fourth applicants. The decisions must be set aside and the applications for permanent residence status in Australia be referred back for further consideration.

The respondent must pay the costs of the applicants.

I certify that this and the preceding 20 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Gummow.

Dated: 11 December 1987. Date of Heanng (7 November (187

Counsel and Solicitors Mr. T. Lynch instructed by for the Applicants: Messrs. Craddock, Murray

& Neuman Counsel and Solicitors Miss C.C. Simpson instructed for the Respondent: by The Australian Government