Aban, C. v Minister for Immigration, Local Government & Ethnic Affairs

[1991] FCA 496

Re: CECY ABAN
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G92 of 1991
FED No. 496
Citizenship Immigration and Emigration
(1991) 31 FCR 93

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Morling(1), Jenkinson(1) and Heerey(1) JJ.

CATCHWORDS

Citizenship Immigration and Emigration - Immigration - entry permits and change of status - Validity of regulations - Whether inconsistent with Migration Act 1958.

Migration Act 1958 - ss. 33, 47, 181

Migration Regulations - regs. 140, 141

Acts Interpretation Act 1901 - ss. 4, 48(1)

HEARING

MELBOURNE

#DATE 21:8:1991

Counsel for the Appellant: Mr P.N. Rose

instructed by Erskine H. Rodan

Counsel for the Respondent: Mr K.H. Bell

instructed by Australian Government Solicitor

ORDER

The appeal be dismissed.

The appellant pay the respondent's costs of the appeal.

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

JUDGE1

This is an appeal from a decision of Keely J. dismissing the appellant's application for an order of review under the Administrative Decisions (Judicial Review) Act 1974 ("the ADJR Act").

1. The appellant is a citizen of the Philippines, having been born in that country on 10 November 1956. She arrived in Australia on 15 January 1982 and was granted a temporary entry permit expiring on 14 March 1982. She came to Australia intending to marry an Australian citizen whom she had met in the Philippines. After her arrival this man decided not to marry her and she found herself in this country with no money.

2. Not long afterwards she met Victoriano Leoncio, a permanent resident of Australia who is of Filipino origin, and formed an association with him. They lived together from August 1982 until October 1982, from February 1983 until May 1983, from August 1983 until November 1983, from November 1987 until February 1988 and from April 1989 until September 1989. Mr Leoncio was married and during the periods he was not living with the appellant he returned to his wife and two children because she could not cope with the children on her own. She made threats to kill herself if her husband did not return. However, during these periods he and the appellant continued to see each other and sometimes spent the night together. They exchanged wedding rings and other presents. They visited friends together and shared many holidays.

3. In December 1986 the appellant became pregnant to Mr Leoncio but subsequently had a miscarriage. In March 1990 Mr Leoncio took his wife and children back to the Philippines on holiday. He subsequently returned to Australia, but not until after the decision which is the subject of this litigation had been made.

4. The appellant has a Bachelor of Arts degree in Mass Communications from Far Eastern University of Manila and has obtained a certificate in computer studies from a private organisation in Melbourne. Since September 1987 she has been employed by the Brotherhood of St Laurence as a receptionist clerk. The Brotherhood is willing to continue employing her and support her application to stay in Australia.

5. The appellant comes from the Laguna province of the Philippines. It is a very poor area. The National People's Army is very strong in the area and the appellant believes it is responsible for much crime and terrorism. She believes that if she returns to Laguna she will be a target for blackmail and extortion because of the time she has spent away.

6. On 5 April 1990 the appellant was arrested by officers of the Department of Immigration, Local Government and Ethnic Affairs and was placed in custody under s.92 of the Migration Act 1958.

7. On 9 April 1990 her solicitor wrote to the Department in terms which included the following:
   

"I enclose the following documents:-

1. Application for an extended Eligibility Temporary Entry Permit.

2. Form 853B.

3. Form 853C.

4. My trust account cheque for the sum of $250.00.

5. Statutory Declaration in the name of Elizabeth Kapitany.

6. Statutory Declaration in the name of Jano Kapitany.

7. Statement of the applicant.

You should note that the applicant claims the following grounds for her to change status to a permanent resident.

1/ Strong humanitarian grounds pursuant to section 478(1)(g) of the Migration Act. It is the applicant's belief that the Regulations prescribing the conditions for applying for strong humanitarian grounds are too narrow.

2/ In respect of her application on compassionate grounds she relies upon the provisions under Section 47(1)(f) of the Migration Act. She believes that the Regulations prescribing strong compassionate grounds is too limited.

3/ Regulation 35AA. She believes that she comes under the provisions of Regulation 35AA insofar that she arrived in Australia in January, 1982 as a person engaged to be married to an Australian citizen, a Mr Emanuel Aguis. As a result of Mr Aguis bringing her to Australia he then left her and cashed her aeroplane ticket in the Philippines. This means that she had no opportunity to return to the Philippines because she did not have cash at hand at that particular time. Since Mr Aguis left her she has developed strong close personal ties with Australia in respect to her relationship with Victoriano Leoncio and her friends who are Australian citizens or permanent residents here. 4/ Employer Nomination. The Brotherhood of St Laurance where she works as a receptionist/clerk is willing to employ her. They back her Application for change of status and her Application for an EETEP strongly.

As you can note from the documentation which is enclosed in this particular submission especially Cecy's (Thereza) moving biographical notes about herself and what has happened to her in her relationship with Victoriano Leoncio, it would appear that she has a very good opportunity to be granted a Temporary Entry Permit under Regulation 35AA. Sadly Victoriano Leoncio is not in Australia at the present moment to assist her in her application. However you will note on page 2 of her notes that apart from the loving relationship that she has with Mr Leoncio she has also fallen pregnant from him and has suffered a miscarriage which of course has affected her in her relationship with him. As to the de facto relationship the applicant is aware that she has had to be subject to the whims of Victoriano's wife's claims to kill herself whenever he has been away from her for a period of time. However as noted in Elizabeth Kapitany's Statutory Declaration both Victoriano and Thereza (Cecy) believe that they are married insofar that they both have wedding rings of each other and lockets and necklaces of each other in recognition of their relationship. She believes it is a true relationship. Even whilst he has been in the Phillipines he has telephoned her prior to her being detained at the Immigration Detention Centre, on his birthday on the 23rd March, 1990.

With respect to the issue of Employer Nomination the Brotherhood of St. Laurance has indicated that they are willing to sponsor her. You should note that Cecy Aban has a university degree."

1. The letter went on to refer to a number of factual matters which were relied upon in support of the application.

2. On 19 April 1990 an officer of the Department, Mr Anthony John Joseph Cardillo, rejected the appellant's application. In a statement of reasons given under s.13 of the ADJR Act on 16 May 1990 he said that he considered the application on the basis that the appellant wished to be considered for the grant of a "spouse" class of extended eligibility entry permit ("spouse EETEP"), an "economic" class of extended eligibility entry permit ("economic EETEP") and an "other" class of extended eligibility entry permit ("other EETEP"). The prescribed criteria in relation to a spouse EETEP, an economic EETEP and an other EETEP were set out in regs. 126, 128 and 129 respectively of the Migration Regulations.

3. Mr Cardillo was of the opinion that the relationship of the appellant with Mr Leoncio did not meet the criteria prescribed in reg. 126(1) of the Migration Regulations for the grant of spouse EETEP, having regard to the definition of de facto spouse in reg. 2. In that regulation a de facto spouse is defined as "a person who is living with another person of the opposite sex as the spouse of the other person on a genuine domestic basis although not legally married to the other person". Mr Cardillo said "they were not living together on a domestic basis as they did not maintain elements which in my view are commonly attributed to domestic relationships; such as the maintenance of shared accommodation on more than a casual basis, mutual support in domestic arrangements, or a continuing commitment to each other."

4. Mr Cardillo also concluded that the appellant was not eligible for an economic EETEP under reg. 128 in that she had not held any of the temporary entry permits referred to in reg. 128(1)(a)(iii) and did not satisfy the prescribed criteria in relation to any of the classes of visas mentioned in reg. 128(1)(a)(iv).

5. He also concluded that the appellant did not qualify for any other EETEP under reg. 129 because the Minister had not, in relation to the Philippines, specified in any notice published in the Commonwealth Gazette any of the matters referred to in reg. 129(1).
   The Appellant's case

6. Not all of the arguments put to Keely J. were advanced on appeal. The case before us was as follows:
   1. The Migration Regulations are invalid because they purported
   

to be made on a date which was before the coming into force of the amendments made by the Migration Legislation Amendment Act 1989 ("the MLA Act") to the Migration Act and are inconsistent with the Migration Act before amendment.

2. Alternatively, regs. 140 and 141 of the Migration

Regulations are invalid because they impose restrictions on the "compassionate" and "humanitarian" grounds specified in paras. 47(1)(f) and (g) of the Migration Act as amended by the MLA Act.

3. The delegation to Mr Cardillo of power to make the decision

complained of had terminated before his decision was made because the Minister who made the delegation had resigned.

4. There had been a breach of the rules of natural justice

because her solicitor's letter of 9 April 1990 should have been taken as an application for any sort of permit that was available or alternatively her solicitor should have been informed of other permits that might have been available to her.

5. Also in breach of the rules of natural justice, her

solicitor should have been asked what further information Mr Leoncio might have been able to provide.

(1) Invalidity of Migration Regulations

1. The Migration Regulations were made under ss. 33 and 181 of the Migration Act (that is to say the Migration Act 1958 as amended in 1989 by the MLA Act). Those provisions were introduced by sub-s.6(1) and s.33 in Part 2 of the MLA Act. Under sub-s.2(5) of the MLA Act, Part 2 of that Act commenced on 19 December 1989, being the first day after the end of the six months period beginning on the day on which the MLA Act received the Royal Assent which was 19 June 1989. In this regard, reference should be made to the definitions of "month" and "calendar month" in paras 22(1)(b) and (g) of the Acts Interpretation Act 1901.

2. The making of the Migration Regulations was notified in the Commonwealth gazette on 18 December 1989 and would, if Part 2 of the MLA Act had been on that date in operation, have taken effect from the date of notification : Acts Interpretation Act 1901, sub-s.48(1).

3. Any difficulty which might seem to arise from the fact that the regulations purport to have effect from a time prior to the coming into force of the Act under which they are made is overcome by sub-ss. 4(1) and (2) of the Acts Interpretation Act which are in the following terms:
   

"4.(1) Where an Act (in this section referred to as the Act concerned), being -

(a) an Act enacted on or after the date of commencement of this section that is not to come into operation immediately upon its enactment; or

(b) an Act enacted before the date of commencement of this section that did not come into operation on or before that date, is expressed to confer power, or to amend another Act in such a manner that the other Act, as amended, will confer power, to make an appointment or to make an instrument of a legislative or administrative character (including rules, regulations or by-laws), then, unless the contrary intention appears, the power may be exercised; and anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment or instrument into effect, before the Act concerned comes into operation as if it had come into operation.

(2) An appointment or instrument made by virtue of sub-section (1) or, in the case of such an instrument containing a number of provisions, each of those provisions, takes effect -

(a) on the day on which the Act concerned comes into operation; or

(b) on the day on which the appointment, instrument or provision, as the case may be, would have taken effect if the Act concerned had been in operation when the appointment or instrument was made,

whichever is the later."

1. The result is that the Regulations took effect from 19 December 1989 and no question arises of any inconsistency with the Migration Act before the amendments made to it by the MLA Act.

2. It was argued that sub-s.4(1) was of no application because a contrary intention appeared. However a contrary intention would have to appear in the MLA Act. It is "the Act concerned" for the purposes of sub-s.4(1). We see nothing in the MLA Act indicating a contrary intention. Indeed it seems typical of the kind of enactment contemplated by sub-s.4(1).
   (2) Regulations 140 and 141 - Compassionate and Humanitarian Grounds

3. These regulations will only be invalid if the Migration Act evinces a legislative intention that the power to make regulations is subject so some "right" of a person to obtain a permit under s.47.

4. But s.47 is not the source of any rights. Its function is to limit the circumstances in which permanent entry permits may be granted to non-citizens after they have entered Australia. It operates in a way analogous to s.6A of the Migration Act in the form it took before the enactment of the MLA Act which imposed limits on the exercise of the power to grant permits conferred by sub-s.6(2) : Gunaleela v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 543 at 555.

5. The effect of s.34 of the Migration Act is that an entry permit (whether temporary or permanent) can only be granted if application is made in accordance with the regulations and there appears to the Minister to be an entitlement under the regulations to the permit. The legislative intention to remove residual discretion in this area and make the process of permit granting subject to regulations is clear.

6. Section 33 gives power to make regulations which provide for different classes of entry permits and prescribed (i.e. prescribed by the regulations; see sub-s.4(1)) criteria in relation to those classes. We see no inconsistency with that section or with s.47 in regulations which provide for a class of entry permits on compassionate grounds and a class of permits on humanitarian grounds. Nor is there inconsistency in the regulations prescribing criteria which provide an objective test to determine whether the statutory requirements of strong compassionate or strong humanitarian grounds have been met by the applicant for a permit. It was not suggested, nor could it be, that the actual subject matter of regs. 140(2) and 141(2) respectively was not in itself relevant to the existence of compassionate or humanitarian grounds in relation to an applicant.
   (3) Termination of Delegation

7. The evidence showed that Mr Cardillo was acting under an instrument of delegation dated 13 March 1990 made under sub-s.176(1) of the Migration Act by the then Minister for Immigration, Local Government and Ethnic Affairs, Senator the Honourable Robert Francis Ray. On 4 April 1990 Senator Ray ceased to hold that office and the Honourable Gerard Leslie Hand was appointed Minister.

8. In our opinion the delegation was not revoked when the office of Minister passed to a new holder. We respectfully adopt the language of Neaves J. in Kelly v Watson 1985) 10 FCR 305 at 318 as being equally applicable to the legislation under consideration. His Honour said:
   

"... the recipient of a delegation of powers under the subsection is not in any real sense the agent of the person who exercises the power to delegate. The effect of the delegation is to confer upon the delegate an authority which he must exercise in accordance with the requirement of the statute but independently of any direction which might be given to him whether by the person delegating the power or any other person. He must exercise the powers delegated in accordance with his own independent discretion having regard only to those considerations which the statute, expressly or by implication, obliges him to take into account. There is, therefore, nothing in the relationship between the person delegating the power and the delegate, as there would be if the relationship was one of principal and agent, which would require that the delegation should cease to have any valid operation upon the delegator ceasing to hold office.

Further, there is nothing in the language of the statute which requires the conclusion that a delegation should cease to operate in such an event. Any convenience of administration suggests that a statutory power to delegate should not be construed so as to produce such an inconvenient result unless that construction is compelled by clear and unambiguous language, language which is nowhere to be found in the provisions under consideration."

See also Benwell v Gottwald (1977) VR 253 at 255.

(4) Natural Justice - Availability of other Permits

1. In the circumstances of this case, the appellant could not be granted a permanent entry permit unless she was the holder of a valid temporary entry permit : Migration Act paras. 47(1)(b), (f) and (g).

2. The only valid temporary entry permits possibly available to the appellant among the temporary entry permits prescribed in Division 5 of Part 3 of the regulations were a spouse EETEP, an economic EETEP and an other EETEP. These were the only temporary entry permits applied for. The appropriate forms were used. The evidence showed the forms had been approved by the Minister under s.175. No permit could have been granted other than in accordance with the regulations : s.34.

3. In his letter of 9 April 1990 the appellant's solicitor sought all the temporary entry permits that could have been available to his client, so no question of breach of the rules of natural justice arises. In any event, on the facts of this case, we do not think the rules of natural justice required the decision-maker to give gratuitous legal advice to the appellant's legal representative.
   (5) Natural Justice - Further Information

1. On the facts of this case there is nothing to indicate what extra information Mr Leoncio might have provided. The decision-maker's reasoning did not indicate any lack of belief in the primary facts advanced on behalf of the appellant. There is no indication that he drew any adverse inference from the absence of any direct evidence by Mr Leoncio.

2. This ground is without foundation.
   Conclusion

3. It follows that the appeal must be dismissed with costs.