Leung, L. v. Gibbons, W.J. [1985] FCA 135

on 28th February 1985. An application for a stay was heard and

determined by Beaumont Jd. on 11 March 1985, He refused the application but nevertheless ordered suspension of the operation of the deportation order until 25 March 1985, On that daya renewed application came before me but at the request of the applicant I adjourned the matter until caday, ordering that the suspension continue until the further application for a stay was

There was no objection ta renewal of the application. His Honour in his reasons had pointed to the dearth of the relevant evidence and suggested that the situation might he

The applicant was born in China and is aged 30. She is married with two children, a son now aged 3 1/2 vears anda daughter aged a little over 18 months. The husband and wife. with the elder child, came to Australia and were granted entry permits for a month from 25 March 1982. They remained after expiration of the permits and, so far as appears, did not make

The vounger child was conceived and born in Australia and is an Australian citizen. The applicant has a grandmother aged 76 or 77 vears who is an Australian resident and it was one of the applicant's purposes in coming to Australia to see her.

The grandmother came here under the sponsorship of a son residing

here who undertook to care for her. Apparently he has not been doing this for some time although the lady in question is not in

Put shortly, the applicant's claim to remain revolves around the facts that the daughter is an Australian citizen and

that her grandmother has need of family comfort and support.

The grounds stated in the application are: one, that the first respondent, being the delegate of the Minister for Immigration and Ethnic Affairs, failed to take all relevant considerations into account when making his decision: two, that the first respondent either: (a) exercised his discretionary power in accordance with a rule of policy without regard to the real merits of the particular case; or (b) exercised his power so unreasonably that no reasonable person would have so exercised ' that power, No particulars were given. A request for reasons under s.13 of the Act was made on 4 March 1985 but none have as yet been forthcoming. However, relevant departmental documents are in evidence. The argument has not specifically rested on the

The applicant's solicitor informed departmental officers

on ll February that his clients, husband and wife, would file applications for resident status under paragraph 6A(1)(e) of the Migration Act 1958 on 12 February. This was done. The paragraph

"S.6A(1) An entry permit shall not be qranted to an immigrant after his entry into Australia wnless one or more of the following conditions is fulfilled in respect of him, that is to say -.....

fe) he is the holder of a temporarv entry permit which is in force and there are strong compassionate or

humanitarian grounds for the grant of an entrv permit to him."

The lastmentioned applications were considered immediately and by letter dated 15 February the solicitor was informed that the regional director was not satisfied that either case came under paragraph (e). At the same time a decision was made by the delegate (who was the regional director of the Department of Immigration) not to revoke the deportation order, There has not been any application to review these decisions and

On 7 February 1985 the applicant wrote to the Human Rights Commission about her position and she received a replv addressed to her husband and herself dated 13 February 1985 saying in essence that some issues had heen drawn to the

department's attention by letter dated 12 February 1985.

I originally rejected these documents as inadmissible on the basis that they were not before the deleqate or his subordinate at the relevant time, but an argument has heen advanced that the delegate should have consulted with the Commission and considered its views. T have therefore admitted

the documents in question into evidence. There was an awareness

of relevant views of the Commission at the time the decision was made and the letter from the Commission to the department may have reached the latter by the time the decisions of 15 Februarv

were made. I doubt that on the last-mentioned matter there was

The question before me is whether there is a serious question to be argued on the hearing of the application. such that the operation of the order be stayed in the meantime. In this connection I should say that there is perhaps a degree of unreality in thus approaching the matter because it appears that

I probably have all the evidence which would be tendered ata hearing and I have heard very full and helpful argument. There is of course the other side of the matter, namely that the refusal of a stay will probably result in the principal

I hope I do justice to the submissions so well and directly put on behalf of the applicant when I summarise them under a few headings. It was submitted that the delegate had failed to take into account relevant considerations. Qne of these was the position of the child and the fact that the child was an Australian citizen. This at one point or another was allied with views which have been expressed by the Human Rights Commission and which find their basis in the treaty annexed ta

the Human Rights Commission Act 1981. Perhaps the main aspect of

this argument is that 1t is sought to give the child a rather

independent position such that her Australian citizenship should be regarded as governing in substantial measure what 1s to happen to her parents. It is sufficient to say in relation to this submission that there is no evidence that the position of the child was not fully considered. I do not understand it to be suggested that if the parents are deported. the child or her brother will be left in Australia. On the contrary my belief is that they would all leave. It is. of course, a wish - we might think it is quite natural wish on the part of the applicant - that her child be brought up in Australia. One comment I might venture about that is that that could still happen, but not in the immediate present.

The other matter concerns the grandmother. It is true that the material before me does not show that the delegate, when making his decision, had full details of the grandmother's health or, indeed, of the degree of her dependency on the applicant. For myself I think that perhaps the department might have gone further in its inquiries in that regard but I do not see that there is any relevant error in its failure ta do so. Certainly the material put before the delegate refers on several occasions to the general situation affecting the grandmother and I do not think one can conclude that there was a failure to take

into account a relevant consideration so far as it affected her.

several aspects of the arguments that have been put before me and

that is whether further inquiries on this matter or that matter should not have been pursued or whether in the absence of particular comment it should be presumed that some matter was not explored or sufficient explored. The fact is that the onus in these matters is on the applicant and within reasonable limits it 1s not for the court to assume that adequate inquiries were not pursued. One adds to that comment, the fact that under this Act one is dealing with what are essentially questions of law. The evaluation of facts and in general the deqree to which matters are to be pursued is a matter for the fact finding bodv whose

Allied with the decision concerning the applicants grandmother was a submission based upon section 6A(1l)(e) of the Migration Act which is the provision I have earlier set out. The material which made up the submission that went before the delegate contains reference to section 6A by saying in substance that the applicant was not qualified under it. This is strictly the position because she was not the holder of a temporary entry permit "which is in force". That was self evident. It has been stated by the solicitor appearing for the applicant that the practice is - and I understand this not to be disputed - that 1f a person who does not currently hold a permit which is in force nevertheless seeks to show strong compassionate or humanitarian grounds for the grant of resident status to him or her, the

Department will commonly consider whether the compassionate or

the humanitarian grounds exist. If the Department is satisfied

that they do, for the purpose of making para (e) operate, it will issue a temporary entry permit then and there, and then apply the

paragraph with the result, as I understand it, that the applicant

There are, of course, a number of features about that method of approach and indeed one has to bear in mind the consequences which follow. The effect of applying it is to turn somebody who is present after his or her entry permit has

expired, perhaps for some considerable time, as is the case here,

Reference to section 6A was further brought into the papers by a diary note which referred to the communication I have already mentioned on 11 February from the applicant's solicitor in which it was stated that an application would be made under para. 6A(1)(e) the following day. I do not think one could

properly conclude that the existence and relevance of para.

6A(1)(e) was not before the decision maker and one cannot conclude in the circumstances that he did not take it into

account so far as was appropriate for his purposes.

It is further argued that, based upon what appears in the department's handbook, the decision was founded on policy without due regard to the facts of the particular case. It is,

of course, open for government departments to apply policy and

indeed, if they did not have a policy, decision making would be

all the more chaotic. What is required, in a case such as the present, is that they do pay attention to the facts of the particular case. There is no evidence which would satisfy me that the policy was applied in this case without consideration of the position of the applicant. Indeed, quite an amount was written about the applicant and in addition there was the result of an interview with her, with an interpreter present. Any difficulty she had with the language - and I do not know that she did have any - would have been overcome in that way. T am not satisfied under the head just mentioned there is any adequate

The final head is that the decision was unreasonable in the sense in which that is used in the Judicial Review Act, the

relevant paragraph being para. 5(2)(g) and I quote it:

"An exercise of the power that is so unreasonable that na reasonable person could have so exercised the power."

I think what I have already said covers the submissions on this ground. I appreciate that what are pressed here are humanitarian grounds and grounds of concern for the position of the grandmother and of the child but the delegate is entitled to take into account a whole situation, indeed has his duty to

It is a matter for him to weigh up these things and

there does not seem to me at the moment to be any basis for

A matter that should be mentioned finally and was raised by counsel for the respondent, concerns the view which has been expressed as to the status that a decision of the Human Rights Commission or of any part of the Act under which it operates, should have in proceedings such as the present. Every case, of course, has to be examined in the light of its own facts and while I fully appreciate that there is before the High Court a case which will probably - or at least possibly - provide enlightenment on this aspect, it does not seem to be to be likely that the Court will make any decision which will affect the outcome of the present case. I therefore do not think there is a case for staying the proceedings until the High Court's decision

preceding pages are a true copy of the Reagous for Judgment herein of his Honour Mr. dustioe Fox