Videto, W.B. & Anor v. The Minister for Immigration & Ethnic Affairs [1985] FCA 449

Federal Court of Australia|1985-09-06|Before: Toohey J

\ s Administrative law - judicial review - detasion by delegate of

Minister to deport applicant who had failed to comply with terms of six months visitor visa - decision based upon written record of interview between department officer and applicant - principal submission on behalf of applicant (who was unrepresented) made by applicant orally to interviewing officer - allegation that officers of department advised applicant he had no grounds under Migration Act to seek to stay in Australia thereby causing

applicant not to refer to certain matters said to be relevant considerations ~ whether advice by officers of department affected responses by applicant when interviewed to the extent that irrelevant matters were before the delegate - whether information before interviewing officer but not in record of interview constructively before delegate - alleged breach of rules of

natural justice and unreasonable exercise of power - extent if any

to which delegate must inquire beyond record of interview

Administrative Decisions (Judicial Review) Act 1977 sub-s5s.5(1) and (2)

Videto & Anor v. The Minister for Immigration and Ethnic Affairs

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

IN THE MATTER of an Application for a Stay pursuant to the Administrative Decisions (Judicial Review) Act 1977 as

ANDREW JAMES VIDETO by his next friend and grandmother JOCELYN JEAN GILLESPIE

The decision of the respondent that the first applicant he deported pursuant to s.18 of the Migration Act 1983 be set aside and that the matter of the farst applicant's

deportation be referred to the respondent for further

Liberty to apply as to the costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

and IN THE MATTER of an Application for a Stay pursuant to the Administrative Decisions (Judicial Review) Act 1977 as amended BETWEEN: WAYNE BRENTON VIDETO First Applicant

ANDREW JAMES VIDETO by his next friend and grandmother JOCELYN JEAN GILLESPIE

This is an application under 5.5 of the Administrative

Decisions (Judicial Review) Act 1977 to review a decision of the

Minister for Immigration and Ethnic Affairs that Wayne Brenton

Videto, the first applicant, be deported pursuant to s.18 of the

The application invokes a number of the grounds mentioned in 5.5. It will he necessary to deal with each in turn; but first some reference must be made to the history of this

Mr. Videto was born in Canada on 28 February 1942. He is a Canadian citizen. He came to Australia in about 1969 in what proved to be the first of a number of visits to this country. He decided to live in Australia, went back to Canada to finalize his affairs and returned here in 1971. Shortly thereafter he met Valerie Frances Gillespie and they were married on 13 June 1971. On 13 July 1973 their child Andrew James Videto, the second applicant, was born. Mr. Videto was away working when Andrew was born and he did not see the child for some months. His work pattern then seems to have been much as it is now, travelling around and taking a job where the best opportunity presented itself. In the present hearing he described his occupation as general labourer; apparently he has no particular qualifications or skills. Mr. and Mrs. Videto agreed to separate when the child was about six months old. According to one of the affidavits sworn by Mr. Videto for the purpose of the present application, the separation took place because Mrs. Videto was not prepared "to travel around with the baby following me to areas of gaod

employment opportunity". Mr. Videto continued to keep in contact

Later Mr. Videto went back to Canada, in his own words "to check cut the employment opportunities on the basis that if it was better than in Australia I would prepare to bring my wife and child to Canada with me". This he said was pursuant to an arrangement that if he settled down in Canada, his wife and child would join him. He was vague about the date of his return to Canada but it seems that it was early in 1976. Mr. Videto remained in Canada for about two and a half years. Employment opportunities were not as he had hoped. Contact with Mrs. Videto and Andrew faded. In about 1978 Mr. Videto returned to Australia on a six months visitor visa. He said that he did 50 with the intention of rejoining his wife and child but on arrival was unable to contact them as they had moved. After about ten days he

As I said earlier, this is in some respects an unusual matter. In particular, Mr. Videto's frequent return visits to Canada and Australia, often for the purpose of taking up permanent residence, continued over a number of years though often without any apparent correlation with what was happening to his wife and child. This and other matters calling for some explanation were not probed closely during the hearing of the application and rightly so since the application is one to review the Minister's

decision and not to establish, on the merits, a case for remaining

Me. Videto remained in Canada for about three years. During that time he received a letter from his wife, telling him

that she was living with another man and had two more children.

She suggested that Mr. Videto write to his son. It is not clear whether Mr. Videto acted on that suggestion but he wrote to his wife to say that he wished to see her again and that he intended returning to Australia. This he did some six to twelve months later, arriving here on a six months visitor visa during the Commonwealth Games in 1982. Clearly he was in contact with Mrs. Videto because they met in Sydney, she having journeyed from Queensland. In evidence Mr. Videto said that they spent ten days together, though his passport suggests that the period was shorter than that. Mrs. Videto was no longer living with the other man and a reconciliation was discussed. According to Mr. Videto, he was not aware that he had then been divorced. In fact a decree nisi had issued on 27 April 1976 and was made final on 27 May in that year. Mr. Videto once more arranged to go back to Canada to finalise his affairs, with a view to returning to set up family

with his wife and the three children. He left Australia on 6

October 1982. Thereafter he corresponded regularly with Mrs. Videto. He sent money to Andrew on his birthday and made some

Late in 1983 Mr. Videto received a letter from his wife, saying that she was ill, and another letter early in 1984 saying that her condition had worsened. By the time he received the second letter she had died from cancer. Mrs. Gillespie, Mrs. Videto's mother, lives in Palm Beach Queensland and has had the care of Andrew and the two other children since Mrs. Videto's death on 13 March 1984. She wrote to Mr. Videto, offering to pay his air fare to Australia and to provide accommodation. However

Mr. Videto said that, because of Mrs. Gillespie's financial

condition, he felt that he could not accept the offer. He saved

his air fare and travelled ta Australia in December 1984, again on

a six months visitor visa. During this period he wrote to Andrew

In oral evidence Mr. Videto said that Mrs. Gillespie and Andrew knew that he was coming to Australia though, rather oddly, they did not know the particular date. On arrival in Sydney, Mr. Videto flew immediately to Brisbane and there telephoned Mrs. Gillespie. However he did not go to Palm Beach but travelled to the Northern Territory in his words "to work and get the money to be able to pay my own way without being a burden on my mother-in-law, Mrs. Gillespie". I shall not detail Mr. Videto's various journeyings over the next few months except to say that they were inthe Northern Territory and Western Australia except for a period of ten days which he spent at Palm Beach. There was no accommodation in Mrs. Gillespie's home so he stayed with her mother, Mrs. Hicks, who lived close by. In duly Mr. Videto arrived in Perth in his perennial activity of looking for work. I take it that any money he earned from work during the few months he was in this country was consumed in travelling expenses and in keeping himself, though he did send

This brief history has been necessary to provide a background to the present application. But the events immediately giving rise to the deportation order took place in Perth shortly after Mr. Videto's arrival. He spoke to an employee of a mining

company about the prospects of a job in the north west of this

State. Because of his accent, the employee told him that he should check to see that all his papers were in order. His entry permit had then expired. Both his visa and entry permit were endorsed "Employment Prohibited". However he thought that the

time limit and work restriction did not apply to him because he

had been granted an entry permit in 1971 which carried no such limitation or restriction. The passport he held at that time had been mutilated and his new passport did not mention the entry permit of 1971. He took up these matters with the Canadian Consulate in Perth and was told to see the Department of Immigration and Ethnic Affairs. On 24 duly he went to that department, where, in his own words, "I produced my passport and explained I had been granted an entry permit in 1971 and my personal circumstances. I was then taken to the first floor where Iwas arrested". From the evidence of departmental officers, it appears that Mr. Videto first went to the visitors' section of the department and was then referred to the enforcement section. He spoke to Mr. White, an investigator, who referred him to Mr. O'Rourke, an enforcement officer. Mr. O'Rourke conducted an interview with Mr. Videto, in the course of which he prepared a "Report Of Interview With Prohibited Non-citizen". A deportation submission was prepared dated 31 July 1985 and a deportation order was made by the Minister's delegate the same day. This Court made an order staying the deportation until the determination of the

Mr. Videto does not dispute that, in terms of 5.18 of the Migration Act, he is a prohibited non-citizen. He arrived in

Australia on 7 December 1984 as a visitor and was granted a

conditional temporary entry permit for a stay of six months. That permit expired in June 1985 and no further permit has issued. However he contends that the Minister's decision should he reviewed because a breach of the rules of natural justice occurred in connection with the making of the decision; that the decision was an improper exercise of power because the Minister took into account an irrelevant consideration and failed to take into account relevant considerations; and that the exercise of power was 50 unreasonable that no reasonable person could have 50 exercised it. The arguments advanced by counsel for the applicants were very much variations on one theme viz. that Mr. Videto was misled by officers of the Department of Immigration and Ethnic Affairs into acknowledging that he did not and could not meet any of the requirements of sub-s.6A(1) of the Act and that the matter therefore went forward to the Minister's delegate for decision on what was essentially a false footing. That is not to say that Mr. Videto claimed to be eligible for an entry permit under s.6A. But he did contend that, in all the circumstances and in particular because of his relationship with his son, he should have been told that he could seek a temporary entry permit and with such a permit put forward a case on "strong compassionate or humanitarian grounds" for the grant of an entry permit. Paragraph 6A(1)(e) contains one of the conditions upon

which an entry permit may be granted to a non-citizen after his

"(Ce) 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".

To assess the force of this argument, it is necessary to

look in some detail at the circumstances of Mr. Videto's interview

and at the documentary material which arose from that interview.

Mr. Videto had the brief conversation with Mr. White and then the formal interview with Mr. Q'Rourke already mentioned. Mr. Videto, Mr. White and Mr. O'Rourke was each cross-examined on the affidavit or affidavits sworn by him. There are some differences in the evidence of Mr. Videto on the one hand and

Messrs. White and O'Rourke on the other but no serious question of

According to one of Myr. Videto's affidavits, he was taken to Mr. White's office where, after identifying his passport and acknowledging that he had been working in Australia, he was told that he was under arrest as an illegal immigrant. He told Mr. White that he had heen granted permanent residence in Australia in 1970 or 1971, that he had thereafter married an Australian citizen by whom he had a son who was an Australian citizen, that he had heen granted a permanent entry permit in Sydney, and had been told that he could later apply for Australian citizenship. He mentioned that he had travelled to and from Canada over a number of years, that his wife had died, but that he

had ason in Brisbane. He believed that he had the right to remain in Australia because of an endorsement to his passport in

In another affidavit Mr. Videto said Mr. White told him

that there were five grounds upon which a person could change his

status while in Australia (this was a reierence to s.GA of the

"He said the categories of Political Asylum, Refugee, and person authorised to work in Australia did not

apply. He said 'Your wife's deceased, she no longer counts. You can't use her and your son is twelve years old and he can't sponsor you.' He said I did not

qualify for any of the categories of change of status. He told me that my entry permit, granted in 1971 no longer applied since the amendment to the Migration Act

in 1971, despite the fact I may have thought otherwise".

Mr. Videto said that he made some further references to his son in

"T said 'You mean to tell me that because I married an Australian girl who unfortunately died and have a twelve year old son I can't stay'. He said 'No. The Act is6 very strict'. I said 'My young lad is here and Iocan't stay?' He said 'The permit you were given in 1971 doesn't apply any more'."

In his affidavit Mr. White said that he had an informal discussion with Mr. Videto "to ascertain his present circumstances". He explained that because Mr. Videto was illegally in the country and because of the provisions of the Migration Act, it was unlikely he would be able to remain. He asked if Mr. Videto was ahle to leave voluntarily and the latter said that he was unable to do so0 because he had no money and no

"He said to me that he more or less had expected that he would have to go and he was resigned to this fact".

Mr. White said that he then discussed Mr. Videto''s hackground with him and was told of his marriage to an Australian woman, of the separation, of the child and of his wife's subsequent remarriage (the reference to remarriage was not put to Mr. Videto or Mr. White in examination-in-chief or cross-examination but there is no suggestion that Mrs. Videto had remarried, only that she had lived with another man for some

time). Mr. White said he went through the provisions of s.6A of

"I told him that in my view he was not eligible under that Section but that he would have an opportunity to put forward submissions at the substantive interview if

he felt he had any ground for applying to Australia to stay in Australia".

"At no time did Mr. Videto raise the fact that he had a s0n in Queensland as a hasis for staying in Australia.

The child was mentioned only in passing when discussing his background".

In oral evidence Mr. White said that Mr. Videto had been

referred to the enforcement section because, in the visitor's section, he had been seeking permission to work. (Mr. Videto's evidence was that he went to the department to clear up the question of his ability to work.) Mr. White also said that Mr. Videto mentioned that he had been in Australia previously, that he had married an Australian citizen, that there

was a child, that the relationship did not persist for very long

and that he had had very little contact with the child over the

last ten years. Mr. White said he went through the provisions of

"la. I went right through and I considered that on the

facts he had given me he did not meet any of the eligibility criteria".

Australian citizen or of the holder of an entry permit".

"T said ... 'you are not the spouse, as your wife is deceased, neither are you the dependent child or the aged parent of an Australian citizen'. I believe I did

deviate there to say that having a child here would not make him eligible under that provision".

As to para.(e) of sub~s.6A(1), Mr. White said that he dwelt on that provision and pointed out that it is within "our

"I also told him that I did not believe that on the basis of what he had told me such an application would be successful and that, therefore, I still considered he was not eligible under that provision of the act".

Mr. White agreed that it was open to Mr. Videto to apply for a temporary entry permit for the purpose of invoking para. (e) and that the decision in that regard lay with the entry branch of

Counsel for the respondent placed much reliance upon the report of interview. This 15 mot surprising for it was the primary material before the Minister's delegate. The departmental submission was in large part a paraphrase of that document. The report is a pro forma in which the anterviewing officer records answers to various questions, listed under particular categories. Like all such documents, it suffers from the defect that the recorder inevitably notes responses in a very abbreviated form and is guided in his questioning by the document itself. It is unnecessary to set out the whole of the record of interview but some of the questions and answers assumed particular importance during the hearing of the application. I propose to mention those

questions and answers, indicating in each case the category in

Previous visits to Australia (indicate if alias was used)

States been to Australia 4 times, details in previous passport - not available.

States was a resident of A/A from 1970-1976 - never has used an alias.

MARITAL STATUS/FAMILY COMPOSITION AND DISPOSITION 5. Other relatives in Australia. Addresses.

Son in Palm Beach Qld 1200 Gold Coast Hwy ANDREW JAMES (RICHARDS) VIDETO

12 y.0. Being cared for by the childs grandmother on the mothers side.

If no application to DIEA is outstanding, indicate whether any of the conditions under section 6A of

If subject claims to fulfil one or more conditions under Section 6A, indicate on what

prepared to make immediate arrangements voluntary departure?

Reason/s for not departing voluntarily Cannot afford to.

In one of the affidavits sworn by him in support of the

application, Mr. Videto referred to what he described

question relating to "the categories under which I could apply to

change my status". I assume this to be a reference to questions 2

and 3 in the category Present Circumstances. He added:

"T agreed that I did not come under the earlier categories relating to refugee status and marriage to an Australian citizen and said that I believed my case was one of strong humanitarian and compassionate

person then said 'your son is twelve years old. He is

believed as a result of this response that I had no grounds for pursuing an application for change status. I was then asked if I had any other reason I

wished to advance in support of an application andtTI did not say or put anything dewn on the form hecause I

believed from what I had been told that I had no grounds".

It will be remembered that, according to Mr. Videto, Mr. White had

"Your wife's deceased, she no longer counts. You can't

use her and your s50n is twelve years old and he can't Sponsor you".

"When I reached paragraph 3 of part F of the report I read through the five conditions of Section 6A of the

Migration Act and explained each condition to Mr. Videto. T asked if he claimed to fulfill any of the conditions and he said no. He then asked 'what about my son?'. To the best of recollection I said to

him 'after you return to Canada you would be eligible to be sponsored because of a blood relative here but

your son could not sponsor you until he turned 18".

Mr. White denied using the word 'sponsor'. Mr. O'Rourke said he used it. Whether or not Mr. Videto was confused as to the speaker is not crucial. The import of what he was told was that he had no claim for residence based on his deceased wife or on his child. In the course of his oral evidence Mr. O'Rourke agreed that he did not mention to Mr. Videto that he could apply for a temporary entry permit. His reason for not doing 50 was that he did not consider Mr. Videto had any prospect of obtaining such a permit. The issue of entry permits is governed by 5.6 and their cancellation by 5.7. The Act does not prescribe particular

There 15 «+ real element of Catch 22 here. Mr. Videto said in affect that he gave Mr. O'Rourke no more than the bare details of his son's existence and whereabouts because he had been led by Mr. White and Mr. O'Rourke to helieve that he could not obtain a temporary entry permit and that there were no "strong compassionate or humanitarian grounds" available to hin. And although at the Immigration Detention Centre he wrote to the Minister, his references to Andrew were largely factual save for asking for residence "to make a home for myself an (sic) Son if possible", On the other hand Mr. White and Mr. O'Rourke said they saw no reason to take the nature of the relationship between Mr. Videto and Andrew any further because of the lack of

There is mo basis for being critical of Mr. White or Mr. O'Rourke or for that matter of Mr. Videto in relation to the interviews. I have little doubt that Mr. Videto did play down his relationship with his son, partly because of the unsatisfactory nature of that relationship over the last ten years or so. Even now Mr. Videto has made it clear that he does not intend to interfere with the arrangement whereby Andrew is cared for by his grandmother and remains with his step brother and step sister. While Mr. Videto has expressed an intention, if allowed to remain in Australia, to live in Palm Heach with the family, his lifestyle seems always to have been a rather itinerant one. However this is not a matter upon which the Court can or should pass any judgment; I mention it only because I think it helps to

throw some light upon Mr. Videto's state of mind and it therefore

helps to understand his attitude during the interviews.

However Io am satisfied that, because Mr. White and Mr. O'Rourke were from the outset adamant that Mr. Videto did not and could not meet any of the conditions in sub-s.6A, Mr. Videto was denied the opportunity to put forward all relevant information regarding his relationship with his" son. There is no dispute that Mr. Videto travelled to Australia in December 1984 because of his family. Although his decision to go to the Northern Territory for work rather than to see his child immediately may seem strange, he did thereafter spend ten days with Andrew and sent hima substantial sum of money for his

"Apart from one week that I spent with my son in Palm Beach earlier this year I kept close contact with him whilst travelling about looking for work. I 'phoned him four times from Katherine, once from Darwin, wrote two letters whilst I was working on a station out of Darwin and 'phoned him on other occasions."

It is unlikely that Mr. Videto would have made no reference to such recent events or even the history of correspondence with his s0n before 1985 unless he had been led to believe that these were not material considerations. But they were considerations relevant to the question of a further temporary entry permit and relevant to the existence or non-existence of "strong compassionate or humanitarian grounds for the grant of an entry

I must make it clear, if it is not already clear, that none of what I have said is intended to suggest that a further

temporary entry permit should have been granted to Mr. Videto and

that, with such a permit, he met the requirements of para.6A(e). These are matters for the Minister and his department. The only question for the Court to determine is whether a case has been made out for review of the Minister's decision by reference to any

Two of the grounds of the application may be dealt with quite shortly. The first is that a breach of the rules of natural justice occurred in connection with the making of the decision. The question whether the Minister is obliged to observe the rules of natural justice in making a decision to deport a prohibited non-citizen pursuant to 5.18 of the Migration Act has been before

the Federal Court ona number of occasions. The cases are noted

in Karunakaran v. Minister for Immigration and Ethnic Affairs (unreported decision of Full Court of the Federal Court, delivered 22 February 1985). The general rule is that the Minister is not so obliged though there may be some quite exceptional cases in which the rules of natural justice must be observed. I find it unnecessary to add yet another contribution to this debate because I am not persuaded that there was, on the part of the Minister, a failure to observe those rules. Indeed, when the applicants' submissions on this point are analysed, they amount to little more than that the Minister took into account an irrelevant consideration and failed to take into account relevant considerations. These are matters which, by reason of

para.5(1)(e) of the Judicial Review Act read with sub-s.5(2),

Equally the contention that the Minister's exercise of power was so unreasonable that no reasonable person could have so exercised the power proved on analysis to be oanly ancther way of putting the argument that there was an improper exercise of power because the Minister took inte account an irrelevant consideration and failed to take into account relevant considerations. The scope of para.5(2)(g) of the Judicial Review Act was discussed by

a Full Court of this Court in McVeigh v. Willarra Pty. Ltd. (1984)

"It is the exercise of power with which the court is

concerned. But it is appropriate, when considering the reasonableness of the exercise of power, to refer to all the material before the Minister. An examination of that material might yield the conclusion that no decision maker, acting reasonably, could have made the decision sought to be reviewed. Borrowing the language of criminal appeals, the Court may conclude that the exercise of power was perverse. It is important to keep in mind the distinction drawn by Menzies J. in Parramatta City Council v. Pestell (1972) 128 C.L.R. 305 at 323:

'There is, however, a world of difference between justifiable opinion and sound opinion. The former iS one open to a

reasonable man; the latter is one that is not merely defensible ~- it is right'".

When para.(q) is invoked, the question is mot whether the Minister's decision was right; it is whether it was perverse in the sense that no reasonable person could have reached that

decision. No such case was established by the applicants.

In arriving at this conclusion I am prepared to adopt the approach taken by Wilcox J. in Prasad v. Minister for Immigration and Ethnic Affairs (unreported decision, delivered

26 February 1985). His Honour held that, for the purpose of

para.5(2)(q)} of the Judicial Review Act, "the Court is entitled ta consider those facts which were known toa the decision maker, actually or constructively, together only with such additional facts as the decision maker would have learned but for any unreasonable conduct by him" (at p.27). But even adopting that approach, and taking into account the information Mr. Videto would have provided if he had not heen led to think it irrelevant, I am not persuaded that the exercise of power by the Minister was s0 unreasonable that no reasonable person could have so exercised it. In the matter of deportation the Minister has a broad direction and matters of policy are relevant as well as the facts of the

It is necessary then to turn to the question whether the Minister's decision was vitiated because he took into account irrelevant considerations or left out of account considerations that were relevant. Each may constitute an improper exercise of power and thereby be a ground for review under 5.5 of the Judicial Review Act. However it is not enough to make an exhaustive list of all the matters which the Minister might conceivably regard as relevant and then attack the decision on the ground that a particular matter was not specifically taken into account. Sean

Investments Pty. Ltd. v. MacKellar (1981) 38 A.L.R. 363 at 375.

And if I may repeat what I said in Turner v. Minister for

Immigration and Ethnic Affairs (1981) 35 A.L.R. 388 at 392:

"In many cases it will be clear whether or not the decision maker has taken a relevant consideration into account. That is not to say that the mere assertion by a decision maker that he has done so will conclude the matter. It may be possible to demonstrate from a consideration of all the reasons leading to the

decision, or aundeed from the decision itself, that a consideration has not been taken into account in any

real seanse. Conversely the omission of an express reference ta some consideration will not inevitably lead to the conclusion that 1t was not taken into account. An examination of the reasons for the

decision and the decision itself may justify the inference that it was".

Counsel for the applicants submitted that, although the formal decision sought to be reviewed was the deportation order, there were in truth three decisions involved - whether a temporary permit should be granted, whether there should be an entry permit under s.GA and whether Mr. Videto should be deported. This was the approach taken by Keely J. in Kioa v. Minister for Immigration

and Ethnic Affairs (1984) 53 A.L.R. 658 though it would seem that

the application in that case identified a number of decisions. In

the present case the statement of reasons furnished Ey the

"8 While I accepted that it was possible to authorize the Applicant's continued presence in Australia by the grant to him of a further temporary entry permit, I was satisfied that such a grant was inappropriate in the circumstances bearing in mind the policy as stated and the Applicant's circumstances as set out above".

The policy in question is that persons who enter Australia as the holders of visitor visas are expected to honour the undertakings contained in the visa applications and it is in the public interest to ensure that persons abide hy normal immigration selection processes and do not queue jump. The

applicant's circumstances consisted of a number of formal

statements regarding Mr. Vaideto's history, taken from the report

The statement of reasons continues with a reference to

5.6A, after which the delegate arrived at the following

"190 Based upon my findings and the statements made by the Applicant at interview, I considered and gave weight to the circumstances of the Applicant's case and in particular to the fact that his son is in Australia in the care of his maternal grandmother, that he would prefer to part voluntarily but has insufficient assets to enable him to do so0 that he has no romantic attachments in Australia. However I was of the view that there were no strong compassionate or humanitarian

grounds for the grant of a permanent entry permit to him".

Strictly speaking, the delegate did not have "the statements made by the applicant at interview"; he had Mr. Videto's answers to

The application for review identifies only one decision viz. the decision to deport Mr. Videto. That is the decision to be reviewed; but the delegate''s attitude towards a temporary entry permit and the grant of an entry permit under 5.6A were an integral part of his decision that Mr. Videto should be deported. If, in the conclusions he reached about those matters, the delegate took into account irrelevant considerations or left out of account relevant considerations, it would be unreal to suggest that these were not matters which bore upon the decision to

The irrelevant considerations said to have been taken into azcount by the Minister may be summarised as the information in the report stating that Mr. Videto did not claim to fulfil any

ef the conditions under s.6A of the Migration Act and that he

wished to depart voluntarily. The statement of reasons furnished by the delegate does not assert that Mr. Videto did not claim to fulfil any of the conditions under s.6A. There is mention that Mr. Videto "has few assets and although he would prefer to depart voluntarily, he 15 umable to do so". However it is a reasonable inference, from the material furnished to the delegate that he would have assumed that Mr. Videto did not claim to fulfil any of the conditions under 5.6A and that he wished to depart voluntarily. Such an assumption would have been literally correct but it would have been made with an incomplete understanding of

Minister failed to take into account are as follows:

(i) The fact that Mr. Videto had been granted an entry permit in 1971 and that as a result he had an honest though mistaken belief that he was

(ii) The relationship existing between Mr. Videto and Andrew and the importance of the need to maintain and foster that relationship, particularly in view of Mrs. Gillespie's age and

(iii) Because of Mrs. Gillespie's guardianship of the child, Andrew would be unable to join his father in Canada even if he wished and he would he reluctant to do so because of the break from the

Civ) The deportation order denied Mr. Videto reasonable access to his son because of the policy of the Department of Immigration and Ethnic Affairs preventing deportees from returning to Australia within five years and also because Mr. Videto's financial position

(w) The wrong advice given by departmental officers that Mr. Videto had no grounds for applying

Subsection 5(2) of the Judicial Review Act spells out the elements that may constitute an improper exercise of power for the purpose of para.i(e) of that section. Paragraph (2)(g) specifies "failing to take a relevant consideration into account in the exercise of a power", It does not say "such considerations as were before the

decision maker or ought to have been before him". But equally it

does not, ian its terms, impuse an the decision maker an obligatisn to anitiate inquiries. The words used call for some judicial exegesis though 1t 15 undesirable te be dogmatic in expounding the

As abroad proposition, I donot think that the Act imposes an obligation on a decision maker to initiate inquiries.

In Turner v. Minister for Immigration and Ethnic Affairs at

"... I do not think, at least in the present case where the applicant had the benefit of family and legal advisers in making submissions to the Minister, that it

was the Minister's obligation to go beyond that material".

See also Kioa v. Minister for Immigration and Ethnic Affairs at

But much will depend upon the nature of the material before the decision maker, the importance of the decision to be made and its consequences for the person to whom the decision relates. In this regard I confine my comments to a decision that a prohibited mon-citizen be deported. In such a case it may be that the material placed before the Minister or his delegate contains some obvious omission or obscurity that needs to be resolved before a decision is made. This is more likely to be the case where the person concerned has not had the benefit of any advice. If an officer of the department withholds information from the Minister or his delegate, it is no answer to a complaint that the decision maker failed to take into account a relevant consideration to say that the matter was not before him. That information was

constructively before him. And, in my view, if an officer of the

department, albert aunnacenmtly, diccuades ur discourages a person from giving information that is relevant to the decision to be made, it 25 no answer to a complaint in terms of para.5(2)(e) to say that the decision maker did not have the matter before him.

Tt was nevertheless a relevant consideration. Clearly much will

depend upon the circumstances of each particular case.

Applying those principles to the present application, relevant information that officers of the department failed to forward to the delegate and relevant information that might have been put before them had they not led Mr. Videto to believe that the information was not relevant may be urged in support of the contention that the Minister failed to take into account relevant considerations. The record of interview was for all practical purposes Mr. Videto's submission. This is the crux of the applicants' case and in the end it falls within a narrow compass. The delegate undoubtedly had before him the existence and whereabouts of Andrew but he did not have the letter written from the detention centre nor did he have details of the relationship between the applicants. These details are reflected in the matters listed in the application to review though they go beyond them. These were details that, if known, must have played an important part in his consideration of whether a temporary entry permit should issue, whether there were strong compassionate or humanitarian grounds for the grant of an entry permit to

Mr. Videto and hence whether a deportation order should issue.

I must say again, because it is important that this

aspect be not misunderstood, that the Court in no way seeks to

substitute 1t4 own decisiun for that of the Minister wr ta dictate what that decision should he. But in a case such as this, where close family and personal relationships are involved, ait is important that the delegate have hefare him all relevant material that the person concerned may be able to furnish. As I said @arlier, in the ordinary course there is no obligation on the Minister to go bheyond the material furnished to him, particularly where the proposed deportee has had the benefit of legal advice in making submissions. And I do not suggest that in the present case the Minister was under any such obligation. SBut the fact that Mr. Videto did not have the benefit of any legal advice, or for that Matter any advice other than that given by officers of the department, made it all the more important that the totality of the information furnished by Mr. Videto went forward ta the delegate and, more crucially still, that he was not dissuaded from furnishing relevant information by reason of what he was told by

Again I intend no criticism of anyone involved in the interviews or in the making of the decision. But I am satisfied that Mr. Videto was led to believe that, because of his former wife's death and his son's age, it was not open to him to seek a further temporary entry permit and thereby to present a case on strong compassionate and humanitarian grounds that he he allowed to remain in Australia. The material furnished to the delegate was thereby incomplete. The delegate necessarily failed to take all relevant considerations into account. The applicants' case is not one that, all relevant matters being before the delegate, he

failed to give them the weight they deserved. If that were all

thal could be shown, it would not ordinarily provide a sufficient ground for this Court to exercise its powers under the Judicial Review Act. The applicants' case goes much further. Tt is that the record of interview was incomplete; because it was incomplete

the delegate's evaluation was necessarily incomplete. See

Minister for Immigration and Ethnic Affairs v. Haj-Ismail

(1981-82) 40 A.L.R. 341; Sezdirmezogiu v. Acting Minister for

Immigration and Ethnic Affairs (1983) 51 A.L.R. 561 at 573.

T am satisfied that in all the circumstances the application should be granted. There will be an order quashing the decision of the Minister to deport Mr. Videto. The matter of his deportation will be referred to the Minister for further consideration in the light of these reasons.

preceding pages are a true copy of the Reasons for Judgment herein of his

At a glance

Court

Decision date

Before

Source

Judgment (199 paragraphs)