Akbas, K. v THe Minister for Immigration & Ethnic Affairs

[1985] FCA 219

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY	)
) VG NO. 7 2 OF 1985

DIVISION	GENERAL	)
Eetween: KEMAL AKEAS

(Applicant)

A A :

THE MINISTER FOR

IMblIGRATION AKD

ETHNIC AFFAIRS

(Respondent)

W: Smithers J.

Date: 4 June 1985

At the hearing it was left uncle or

would not amplify in writing the oral reasons for the decision

I gave. I think I dld not intend to do so. However, in view

of the appeal I would ampllfy what I said orally and add a

further consideratlon so that my reasons would read as

follows : - .. . . .

MR MOSHINSKY: ... We would ask your Honour for a ruling on

the interpretation of review Right No. 4 to enable the

department to know what your Honour’s views are?

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HIS HONOUR: Yes, well, I am happy enough to do that. Whether

or not you want me to go away and write something, I do not know, but I think I could state - well, I have practically stated my view to you this morning.

The view I take of revlew Right No. 4 is that it applies

to the people illegally here who are eligible for

consideratlon under 5.6A (l)(e) of the Miqration Act

1958. There is power in the Mlnister and his appropriate offlcer even with respect to such a person to issue a temporary entry permit to hlm. It is always within the competence of a person of the class we are considermg to apply for permanent residence and to

attach to that applicatlon an appllcatlon for a

temporary entry permit. The appllcant did this. And It

appears that thls is commonly done. Wtiether a temporary

entry permlt is granted may well depend on whether the

applicant is a person having grounds for compasslonate

admlnistration. If his grounds were strong enough to

attract a compassionate decislon and the appllcant were

granted a temporary permlt the (permanent) entry pernut

might be granted. If they are sufficient to indlcate

that the applicant probably has a case for conslderation

on compassionate grounds then the case is, one for

.. .

consideration as to whether a grant of an entry permit

should be given. Thus, in Kioa v. Minister f o r

Immisration & Ethnic Affairs & Anor (1984) 55 ALR 659 at

672 the approach of the delegate to such a situation is

exemplified In the following observations of the

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delegate. He said:-

“While a permanent entry permit may not be

granted to the applicants after their entry to

Australia by reason of s.hA(1) of the Act, I

accepted that it was possible to direct the

grant of a further temporary entry permit to

them for the purpose of allowing consideration

of an appllcatlon for grant of (permanent) entry

permit on the basis that the condltlons of

s.hA(1) ( e ) of the Act are fulfilled.

Accordingly I considered whether, apart from the

fact that the appllcants do not hold temporary

entry permits in force, there are strong

compassionate or humanltarian grounds for the

grant of (permanent) entry permits to them.

Based upon my findings and the representations

made on their behalf I considered and gave

weight to the clrcumstances of the applicants’

case and, In partlcular, to the fact that the

tragedy of the March 1982 cyclone in Tonqa

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necessitated Mr. Kioa giving financial

assistance to hls family in Tonga (which I

accept he was better able to do from Australia). circumstances there were not strong humanitarian

or compassionate grounds for the arar.t to them

of (permanent I entry permits. ”

A person illegdly in Australia but with compassionate

grounds worthy of consideration in relation to an

application for a grant of a permanent entry permit, is

a person eligible for such Consideration. The procedure

pursuant to which in such a case such a permit may be

granted consistently with. and pursuant o s.hA(l)(el 1s

one authorised by the statute. There is no prohlbition ..

agalnst consideration, when compassionate grounds

appear, of the quetion whether that procedure should be adopted. In this way, as a matter of practicality and,

in substance, a person such as this applicant is

eligible for consideratlon. A person illegally here,

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for instance a person whose temporary permit has expired, is a person who is eligible for conslderation f o r the issue of a permanent entry permit if, as in this

case, his grounds for a compassionate decision are meet

for conslderatlon in relation to his double application.

A temporary entry permit could be Issued without

contravening the prohibition contained in s.6A(l)(e).

The critical words of Right No. 4 are, "for

consideration", that is, eligible f o r consideratlon. It

does not say "eligible for a grant of an entry permit".

And when one locks at the reallty of the matter, it

really would be strange, if the Minister having provided

such extensive rights of review, a person who might have

quite strong grounds for extension to hint, of

compassionate considerations, would he excluded f ran the

renew body. And In the absence of a prohibltlon

against consideration on compassionate grounds of an applicant's case to decide whether steps should be taken

to qualify him to seek a permanent entry permlt there

would be no such exclusion. And such consideration

would seem to be part of a total exercise of considering

whether a permanent entry permit should be issued in

accordance with s.6A. * .

A person with a temporary entry permit would not be

illegally in Australia. Review right No. 4 extends to

persons illegally in Australia. To give it efficacy in

relation to an applicatlon for a permanent entry permit

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under s.6A(l)(e) a liberal interpretation of its

provisions is required. It has been introduced, I

suppose, on natlonal humanitarian grounds, to provide

for broad consideration of the situations of applicants.

I think, therefore, that too narrow a view was taken and

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the result was that when the delegate was considering

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the issue of deportatlon an error crept in. He took the view that review Right 4 was not relevant and that the

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applicant had no entitlement to review under his

application for revlew by the revlew panel. Also he did

I not consider whether he himself should have had the

benefit of the mews of the review panel.	In so dolng,	!
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he did not take Into account a relevant consideration.

I would refer also to a decision of Mr. Justice

Toohey, in Dean v . Kooavard, decided by him on 12

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December 1984, in Western Australia, G101 of 1994. That

was a case in which a deportation order had been made.

and the deportee had submitted that he had been denied

the right of review.

His Honour referred to the fact that the panel was

not a statutory body but indicated that the function f

the trlbunal appeared in a document puhllshed'under the

department, entitled the Review Rights, and referred to

! the essential requirements for ellgibility to lodge a

request for revlew. His Honour then went through the

various rights on which the particular applicant before

him relied and came to the conclusion that the applicant

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did not fall wlthln any of them.

Accordingly, his Honour did not say what would have

been the effect, had the applicant been a person within

any of the review rights set out In the document. The

fact that hls Honour went to the trouble of examining

l with great care whether the man caTp.e within any of them

indicated that his Honour felt that if the applicant had

been withln them, that would have been 2 matter for considet-atlon. It goes, I think, no further than that.

But the review panel having been set up It would seem to

have been a relevant step, prellmlnary to the m a k ~ n g cjf

the decision to deport, to conslder whether a review

right was available to the non-cltlzen and, If it were,

to proceed on the basis that	it should be made avallahle
to him.

In the case before me. I think that the applicant was

within Rlght No, 4 and that the deportatlon order

proceeded on the hasis that he dld not have any such right, and therefore, his posslble right of review was

not considered. That, I think, was a fallure to take

into account a relevant conslderation.

.. . . .

The result is, I feel, that I should order that the

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matter be r ferred back to the Minister for

reconsideration, in the light of the fact that the

applicant was eliglble for consideration by the review

panel In accordance with the request which e had made.

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I make that order.

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I also order that the appliant be released on

condition that he reports every second day beginning on

Thursday next to the police station at Main Street,

Thomastown, and that there be liberty to each party to

apply an8 that the question of costs be reserved.

I certify that this and the 6 preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr.

Justice Smlthers

Associate

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