Khan
TABLE OF CONTENTS
Introduction
In Sabrina Khan v Minister for Immigration & Ethnic Affairs G.159 Of 1987, 11 December 1987, Gummow J (as he then was as a justice of the Federal Court), considered that if a decision maker failed to give proper, genuine and realistic consideration to the merits of the case then there was an improper exercise of power which is a jurisdictional error. Here are some fuller extracts from that case:
Page 6 – 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……..
Page 13 – 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.
Page11/12 – 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 anyapplicable policy.
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 3). 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.
Page 15 – 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.