Singh, Joginder v West, the Honourable Stuart, Minister for Immigration & Ethnic Affairs [1984] FCA 98

THE HONOURABLE STUART WEST MINISTER OF IMMIGRATION AND ETHNIC AFFAIRS

ORDER JUDGE MAKING ORDER : Fisher J. WHERE MADE : Adelaide DATE : 18th April 1984. THE COURT ORDERS THAT

1. The application be dismissed.
2. The applicant Joginder Singh pay the respondent's

Fisher J. This is an application pursuant to s.5 of the

Administrative Decisions (Judicial Review) Act 1977 ("the Review

Act") for a review of a number of decisions made or allegedly made by the Minister for Immigration and Ethnic Affairs ("the Minister") under the Migration Act 1958. The Minister objected to the competency of this Court to review two of these decisions, namely the decision of the Immigration Review Panel made on 2 March 1983 and the Statement of Reasons of the Minister dated 21 July 1983. In respect of each of these two decisions or alleged decisions it was contended that they were not decisions to which the Review Act applied. The applicant conceded the objection and

did not seek to argue to the contrary. A review was also sought

of the decision of the Minister made on 15 April 1983 refusing the applicant an entry permit under sub.s. 6(2A) of the Migration Act and the decision under s.18 of that Act to deport him. A statement of reasons in accordance with 5.13 of the Review Act was sought by the applicant and supplied by the Minister in

respect of the former decision but was not sought or supplied in

The applicant is an Indian citizen and it was common ground that he was a "person aggrieved" within the meaning of s.5 of the Review Act. He arrived in Australia as a visitor on 20 March 1980 and was granted a temporary entry permit fora period of 2 months expiring on 21 May 1980. It appears that in or about the month of April 1980 the applicant took steps to Marry an Australian citizen, but this marriage did not eventuate. The prospective bride made a statement to the effect that she had been offered money if she married the applicant. These facts are in themselves of very little if any relevance but they do explain why officers of the Department of the Minister went to some lengths to investigate the circumstances of the applicant's subsequent marriage. On 5 May 1980 the applicant applied for an extension of the period of his temporary entry permit but this was refused. Thereafter he was for a number of months in this

country as a prohibited immigrant by virtue of sub.s. 7(3) of the

On 29 November 1980 the applicant married an Australian

citizen and in reliance upon this marriage applied on 31 December 1980 for an entry permit, the consequence of the grant of which

would have been to give him "permanent residence status". As

the spouse of an Australian citizen at the time, he qualified under sub.s.6A(1) of the Migration Act to be considered for such a permit. After an interview on 12 February 1981, at which the departmental officer expressed some concern that the marriage had been entered into for the purpose of so qualifying the applicant, his request was deferred for 6 months. However a further temporary entry permit was granted for this period. Shortiy before the expiration of that period, namely on 14 August 1981, the applicant and his wife were again interviewed. The

applicant's request for a further temporary entry permit was on

that day refused. On the following day the wife of the applicant

In consequence of the refusal on 14 August 1981 of a further temporary entry permit the status of the applicant was again that of a prohibited immigrant. His brother made application on 24 May 1982 to sponsor the applicant as a migrant

and they were both, together with the applicant's solicitor,

interviewed on 7 June 1982. It appears that other efforts by the Department to interview the applicant were not successful, the

informed that his request for permanent resident status had been

refused on the ground that his marriage was one of convenience. He sought, on 3 December 1982, a formal review of this decision by the Immigration Review Fanel. This Panel heard his appeal on 2 March 1983 and found that irrespective of the bona fides of his Marriage there were insufficient compassionate or humanitarian grounds to justify a review. In s0 finding the Panel was doubtless referring to para GA(1)(e) of the Migration Act which prescribed one of the qualifying conditions for a grant of permanent resident status, namely

"Ce) he is the holder of a temporary entry permit which is in force and there are strong

compassionate and humanitarian grounds for the grant of an entry permit to him."

It appears that it was the practice of the Immigration Review Panel and also the Minister to consider whether the applicant could establish strong compassionate and humanitarian grounds even though this was strictiy of no relevance if he was not at the time the holder of a temporary entry permit. Tf a favourable conclusion was reached, arrangements were made for the grant of a temporarary entry permit thereby qualifying the applicant to be considered for the grant of an entry permit under para GA(1)(e). Otherwise sub.s.6A(1) denied the Minister the right to grant an entry permit. Sub-section 6A(1) is in the following terms, to the extent relevant:

"6A(1) An entry permit shall not be granted to an immigrant after his entry into Australia unless

one or more of the following conditions is fulfilled in respect of him, that 15 to say -

(b) he 1s the spouse, child or agent parent of an Australian citizen or the holder of an entry permit;

(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."

Sub-section 6(8) of the Migration Act provides that a reference to an entry permit in 5.6 is to be read as a reference to an entry permit other than a temporary entry permit. This means that officers of the Department are the only persons who can grant a temporary entry permit, whereas the Minister or any officer specifically authorised by the Minister for the purpose

are the only persons who can grant an entry permit (sub.s.6(2A)).

recommendation of the Immigration Review Panel and made the decision to refuse the applicant an entry permit. In so doing

the Minister stated that he expressly refrained from reaching a view or finding whether the marriage of the applicant was one of convenience. He considered that the matter of marriage was at that stage irrelevant, the wife having died. However notwithstanding the fact that this circumstance appeared to disentitle the Minister to grant the applicant an entry permit (para G6A(1)(e)) he gave consideration to the question whether there were strong compassionate or humanitarian grounds for the

grant to him of an entry permit. He was of the view that such

Was not the case and therefore refused the application, as he was

request by the applicant's decision were supplied in

The applicant seeks a review on the ground that a breach

would be permitted to reside consider this contrary to my opinion, sub.s.6A(1), a discretion

applicant having a reasonable permanentiy in Australia. and other grounds for a that the Minister

expectation that he I will review on the assumption, had, notwithstanding or refuse the applicant's

upon by the Minister and to give the applicant the opportunity to

"Whether or not there is any some exceptional case, would arise an obligation, conferred by s.18, to justice, remains

exercising the power the rules of natural It may be (Ratu's case and

Salemi's case), s.27 of the Migration Act has been amended to make it a criminal offence to remain in Australia upon the expiration of a temporary entry permit.

In the present case, we are of opinion the respondents are not shown to have had a "legitimate expectation" in the relevant sense.... We are of opinion that there was no obligation on the Minister to observe the principles of natural justice."

Gaillard (1983) 49 A.L.R. 227 the Minister had cancelled a temporary entry permit and made a deportation order. The members of the Full Court were generally of opinion that the Minister was not obliged to observe the rules of natural justice. Each member however considered whether the applicant had a "legitimate expectation" but held that no such expectation had been

In this present matter I am firmly of the opinion that there are no exceptional circumstances and no legitimate

expectation which require the observance by the Minister of the rules of natural justice. The most exceptional feature of the

case is the length of time the applicant has been enabled to remain in this country a5 a prohibited immigrant. But in any event I can not see that the existence of an obligation to observe natural justice would advance the applicant's case. His counsel contended that he ehould have had an opportunity to place all of his personal circumstances hefore the Minister, tncluding

Facts to refute the suspicion that his marriage was one of

convenience. On this latter point not only were the contentions of the applicant before the Minister together with a strong and favourable statement by a third party, but the Minister expressly and specifically denied reliance upon this aspect of the matter. The applicant had placed before the Immigration Review Panel much information concerning his personal affairs, which information was before the Minister, and his counsel could not refer me to

any aspect of such affairs which was not before the Minister. It follows that if the rules of natural justice were applicable,

there was in this matter no failure to observe such rules.

Tt was then contended that the making of the decision was an improper exercise of power in that the following irrelevant considerations were taken into account.

(1) a strong suspicion by a departmental officer that

(3) that the bona fides of the applicant's marriage

It is not easy to understand exectly what was the applicant's complaint in this regard. There are no guide lines un the legislation to indicate what the decision maker is or is not obliged or entitled to take into account. In these circumstances the matter of relevant or irrelevant considerations

is very much in the hands of the decision maker. (See per Deane

J. in Sean Investments Pty. Ltd. v MacKellar (1981-82) 38 A.L.R.

The applicant produced no convincing argument to the effect that any one or more of these considerations were irrelevant and on at least one occasion relied upon the fact that his Australian wife had earlier died and that the bona fides of the marriage were not now in issue. Furthermore the Minister expressly excluded from his consideration any suspicion that the Marriage was one of convenience. I reject this ground as well as the contention that the Minister failed to take into account

relevant considerations such as period of residence in Australia,

family ties etc. All of these matters were before the Minister and there was not a tittle of evidence to suggest he failed toa take them into account. The true position is that the Minister went further than he was obliged and, to assist the applicant, gave consideration to these matters for the purpose of assessing

whether there were strong humanitarian or compassionate grounds.

The applicant also contended that the Minister exercised a personal discretionary power at the direction or behest of the Immigration Review Panel. As amatter of fact this is quite incorrect and although the Minister accepted the Panel's recommendation he did not wholly accept its reasoning. There was no evidence whatsoever that the Minsiter exercised anything other than an independant discretion. Likewise I reject the contention

that the decision was 50 unreasonable that no reasonable person

could have exercised the power in this mnner. Ail the circumstances point to it as a reasonable exercise of power and the applicant's counsel could not point to any ground upon which

it could fairly be said to be unreasonable. There was plenty of

evidence and material which justified tha making of the decision.

There are no grounds upon which I would order a review of the decision of the Minister to refuse an entry permit,

assuming, he had at the time power to grant such a permit.

On the matter of a review of the deportation order the applicant is considerably restricted in his challenge as no reasons as such for the decision have been sought or supplied. There is however evidence of the considerable amount of material

which was before the delegate of the Minister at the time the

decision was made and it can not be assumed that he did not take this material into account. In addition to all that was before the Minister at the time of the refusal of the entry permit, the delegate had an additional long and detailed letter from the applicant's solicitor setting out exhaustively the personal

I will not repeat what I have already said on the possible obligation to observe the rules of natural justice. In my Opinion the delegate was when exercising his discretion under

s.1B of the Migration Act, under no such obligation. In this

instance however he did give consideration to all the personal

circumstances of the applicant and it can not be suggested he was not given an opportunity to be heard or to put his case. There were no exceptional circumstances which would entitle the applicant to the observance of the rules and in the light of the happenings in prior years it could not be said that he hada legitimate expectation that he would be permitted to remain. On the question of improper exercise of power, the lack of reasons for the decision denied the applicant the ability to demonstrate what considerations were or were not taken into account. Suffice to say that all the considerations alleged in the grounds for review as relevant were before the delegate and without doubt taken into account. Certainly there was no evidence to the contrary. Likewise it can not be contended that the decision was Made ain accordance with a rule or policy and personal considerations excluded. The decision was a reasonable decision

in the circumstances and there was evidence and material to

{ certify that this and the /O preceding pages are a true copy of the Reasons !c Judgment of Mr. Justice Fisher