Ali, Mohammed Motahir v Minister for Immigration, Local Government & Ethnic Affairs

[1994] FCA 1096

MOHAMMED MOTAHIR ALI v. MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. NG 29 of 1993
FED No. 1096/94
Number of pages - 16
Immigration

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY

GENERAL DIVISION

WHITLAM J

Immigration - application for refugee status - whether application for entry permits made before repeal of former provisions of Act - refugee status refused - whether application for entry permit must be considered under other "grounds" of former provisions.

Administrative Decisions (Judicial Review) Act 1977, s 16

Migration Act 1958, ss 6, 6A (as in force prior to 19 December 1989)

Migration Act 1958, s 115

Migration Legislation Amendment Act 1989, s 6(4)

Migration Regulations, regs 22D, 119

Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Hamsher v Swift (1992) 33 FCR 545

Minister for Immigration, Local Government and Ethnic Affairs v Kumar (unreported, Full Court of the Federal Court of Australia, 31 May 1990)

Mohammed Motahir Ali v Minister for Immigration, Local Government and Ethnic Affairs.

SYDNEY, 26 February 1993 (hearing), 4 February 1994 (decision)

#DATE 4:2:1994

Counsel for the applicant: J R Dowd QC / M B Smith

Instructed by: Parish Patience

Counsel for the respondent: P S Hastings QC

Instructed by: Australian Government Solicitor

WHITLAM J

This is an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 and for relief under s 39B of the Judiciary Act 1903. The applicant is a citizen of Bangladesh, who has had extensive dealings with the Department of Immigration, Local Government and Ethnic Affairs ("the Department") administered by the respondent. Two decisions were the subject of the application, as filed, but the challenge to one of those decisions has been abandoned.

The terms of the decision, which remains the subject of the application, are said to be set out in a facsimile message dated 18 January 1993 from the Department to the applicant's solicitors. That message said, in respect of the applicant (inter alios), that "the Department does not accept that pre-December 1989 refugee applications amount to applications for entry permits."

The grounds of the application are:

"... that the decision or conduct involved errors of law, namely the incorrect opinions: 3.1 that the documents lodged by or on behalf of the applicant on 18 December 1989 were not, or did not include, a request for appropriate entry permits pursuant to ss 6(2) and 6A of the Migration Act 1958 (Cth) (as it stood prior to the Migration Legislation Amendment Act 1989 (Cth); and 3.2 that the said application for entry permits does not remain outstanding and undecided, in particular by reference to the ground specified in s 6A (1)(e) and the relevant policies adopted by the respondent as they stood prior to 19 December 1989, pursuant to the provisions of s 6(4) of the Migration Legislation Amendment Act 1989 (Cth)."

I shall set out what the evidence reveals of the applicant's circumstances and relevant dealings with the Department, against the background of constant change in the immigration laws and administrative procedures. The applicant had been issued a visa for travel to Australia on 27 June 1988. He had entered Australia on 5 July 1988, having been granted a temporary entry permit valid for six months. On 18 December 1989 the documents, which are referred to in ground 3.1 above, were lodged with the Department.

These documents comprised the Department's printed form M.306 (6.89) entitled Application for Refugee Status in Australia, which had been completed by the applicant, and two attachments. On the front of the application form the "Notes for the Applicant" said:

"RECOGNITION AS A REFUGEE IN AUSTRALIA

This application is to be completed by any person wishing to be recognised as a refugee in Australia. Australia is a signatory to the 1951 United Nations Convention and the 1967 United Nations Protocol relating to the Status of Refugees and, as such, is committed to the protection of persons with a well founded fear of persecution. To be recognised as a refugee in Australia, you need to successfully demonstrate that the United Nations Convention definition of a refugee applies to you.

DEFINITION OF A REFUGEE

A refugee is defined by the 1951 United Nations Convention relating to the Status of Refugees as amended by the 1967 Protocol as a person who:

"owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such a fear, is unwilling to return to it."

If you believe that this definition applies to you, you should complete this application form."

The first attachment to the application was a letter dated 18 December 1989 from the applicant's solicitors addressed to the Determination of Refugee Status ("DORS") Secretariat at the Department. I shall set out its full text:

" RE: LODGEMENT OF THIS APPLICATION

Please note, that as a result of the publicity surrounding the introduction of the amendments to the Migration Act, many people have approached my office in the last hours prior to the implementation of the previously mentioned amendments.

Obviously, my office is not in a position to provide an appropriate presentation of the instructions presented. For this reason, the application form has been completed in its basic structure only. Please understand this is entirely because of the approach at the time of the client leaving only a number of hours in some cases.

It is to be emphasised that every client has clearly been instructed to return to the office within four weeks to provide additional relevant instructions to supplement this application. It is to be noted that the D.O.R.S. Secretariat has been contacted, and I have informed your office of the circumstances surrounding the necessity to lodge prior to any instructions being taken.

Procedure For Lodgement

Please note that this application was personally lodged by a member of my office on 18th December. It is respectfully submitted that lodgement with the Immigration Department on 18th December obviously can be interpreted as facilitating entry to the Immigration Department prior to the implementation of the Migration Legislation Amendment Act. Hence reliance is obviously made upon Section 6A(1).

To emphasise, I will note again that lodgement of this application was effected prior to the 19th December. These papers were personally lodged with the Immigration Department.

Please understand the circumstances surrounding lodgement considering the extreme confusion and indeed desperation which apparently has surrounded the public with respect to ensuring lodgement prior to the unknown nature of the application of the new laws.

Should this office have any queries with respect to this matter, please do not hesitate to contact my office."

The other attachment to the application, undated but evidently prepared by the same solicitors, was in the following terms:

" Explanation with Respect to Attachments - Refugee

Application

Please note, you attention is addressed to the fact that a covering letter is included to indicate that the applicant approached my office, within hours of the 19th December. Clearly, the applicant was not in the position to be able to provide definitive reasons properly presented for a complete presentation to the D.O.R.S. Secretariat. I wish to emphasise, that this is the sole reason why there is not any attachment of a definitive nature. Rather, the applicant has been informed of the character of the new laws whereby section 17A as it existed on the 18th of December indicated automatic deportation regardless of any circumstances. It is to be noted, that my office has contacted the Immigration Department on a number of occasions to try to obtain clarification regarding the reconciliation of the application of Section 17A with the right to lodge refugee papers from a person who is illegal, who has been in Australia beyond the period of grace, but again it can only be emphasised, that there has not been any definitive policy statement as at the evening of the 18th of December to clarify the position of such applicants as is attached. Upon this basis, therefore, the primary priority of course has been to effect lodgement to enable at least consideration of the refugee application to be supplemented, to enable it to take place.

Again, apologies must be provided for any inconvenience caused to or by the Immigration Department of D.O.R.S. Secretariat. However, please understand the nature of the circumstances and the confusion that surrounds the practical application of the amendment to the Migration Act. I can only emphasise again that at this stage, there has not been any policy directive to ensure refugees have the right to lodge after the 19th of December. I emphasise in conclusion that further additional information will be forwarded to supplement this application. The applicant clearly has been informed of the urgent necessity to re-approach my office to provide substantive details."

Division 1 of Part II of the Migration Act 1958 (dealing with entry permits and including ss 6 and 6A) was repealed by s 6(1) of the Migration Legislation Amendment Act 1989 ("the Amendment Act"), which commenced on 19 December 1989. Section 6(4) of the Amendment Act provided:

"(4) In spite of the repeal effected by subsection (1), the provisions of the Principal Act relating to the granting of visas and entry permits as in force immediately before the commencement of this section continue to have effect after that commencement for the purposes of applications for visas or entry permits made before that commencement."

I should note at this point that the applicant submits that the question, whether there were pending "applications" for entry permits within the meaning of s 6(4), cannot be determined by reference to subsequent events. That may be so, but it is convenient to continue tracing those events before returning to consider this question.

On 6 February 1990 the Department received a further letter from the applicant's solicitors addressed to the DORS Secretariat, referring to his "application for refugee status... lodged prior to 19/12/89." Enclosed with this letter was a typed statement of nine pages signed by the applicant in which he sought to be characterised as an "economic refugee." He concluded this statement with a request that any formal assessment of his application not be made until he had a reasonable opportunity to procure "substantiating documentation in respect to my claims."

The application for refugee status was assessed by an officer within the Department's DORS Secretariat on 28 March 1990 as "manifestly unfounded." Nonetheless, on 4 April 1990 the Department's DORS Secretariat wrote to the applicant at his solicitor's address, referring to his "request for a refugee Temporary Entry Permit (TEP)" and asking him to send a "completed form 883 attached." Form 883 was entitled Supplementary Application for a Refugee Temporary Entry Permit. It provided for the applicant to complete one of two boxes, according to whether he had answered Yes or No to the question: "Have you been granted refugee status by (the respondent) or his delegate?" The applicant signed the No box, thereby applying for a temporary entry permit in the refugee C (restricted) and refugee D (restricted) classes. This application, dated 10 April 1990, was lodged with the Department.

These were new classes of temporary entry permits provided for by the Migration Regulations in force at that time, which had commenced on 19 December 1989. (Since the applicant did not hold a valid temporary entry permit, a refugee C (restricted) entry permit could not be granted to him.) The criteria for a refugee D (restricted) entry permit were prescribed by r 119 in the following terms:

"(a) the applicant has applied to the Minister to be granted refugee status; (b) at the time of the application for the entry permit the applicant is not the holder of a temporary entry permit that is valid for the purposes of section 47 of the Act; (c) at the time of the application, the applicant had not been granted refugee status by the Minister; (d) the applicant has a claim of substance to be granted refugee status."

On 19 June 1990 the Department wrote to the applicant care of his solicitors as follows:

"I refer to your application for a Refugee Temporary Entry Permit (TEP) ... The Migration Regulations which came into effect on 19 December 1989 set out the requirements which must be met before an applicant can be granted a TEP in the above Classes. One such requirement is that an applicant must be assessed as having a claim of substance to refugee status. Following an assessment of your application and attachments we do not consider that you have met this requirement. Accordingly your application for a TEP cannot be approved. The decision not to approve your application for a Refugee TEP is without prejudice to the eventual decision made by the Minister or his delegate with respect to your refugee claims and no implication should be drawn about the eventual outcome of your application for refugee status from the fact that you have not been granted a TEP."

The Migration Regulations gave no right of review to the applicant in respect of the decision to refuse such an entry permit. Regulation 119 was repealed on 12 July 1990.

The application for refugee status was assessed in due course by the Department's case officer, who recommended against the grant of refugee status. This negative assessment was sent on 8 January 1991 to the applicant, his solicitors and the Representative in Australia of the United Nations High Commissioner for Refugees ("UNHCR"). They were asked to comment or provide any new material within twenty-one days.

The UNHCR Representative wrote on 16 January 1991, agreeing with the Department's assessment. However, by letter dated 24 January 1991 the applicant's solicitors replied, seeking to have the applicant's case favourably assessed for recommendation to the respondent under proposed guidelines for the grant of temporary entry permits to persons who could not meet the technical definition of a refugee.

This was a reference to a new system for determining humanitarian grounds for refugee claims which had come into operation on 10 December 1990. Under these new arrangements the respondent might permit "humanitarian" claimants to remain in Australia by using his residual discretionary power under s 115 of the Migration Act 1958 to overturn a review officer's decision not to grant a temporary entry permit to a person claiming to be a refugee. The final form of the guidelines was promulgated on 22 March 1991 in Ministerial Press Statement ("MPS") 15/91. In that statement the respondent noted that the humanitarian category was intended to incorporate a wider group of people than those that fall within the Convention definition of refugee. Recommendations were to be made by the Refugee Status Review Committee ("RSRC").

The RSRC was comprised of one representative each from the Department, the Attorney-General's Department and the Department of Foreign Affairs and Trade, as well as a community representative. In addition, a UNHCR officer participated in an advisory capacity. Under the review system put in place on 10 December 1990, an applicant who had been notified of a primary decision denying him refugee status had twenty-eight days within which to apply to the RSRC for review of the refusal decision.

In any event, the Department's case officer considered that the solicitors had not provided comments of a "substantive nature on the assessment of Mr Ali's application for refugee status." He submitted his recommendation to the respondent's delegate, who decided on 22 April 1991 not to approve the grant of refugee status. The applicant and his solicitors were informed that day of his right of review by the RSRC. The applicant was told to "provide details of any humanitarian circumstances which you consider are important to your claim to remain in Australia."

On 13 May 1991 the Department's Secretariat received a letter dated 9 May 1991 from the applicant's solicitors, headed "Formal Lodgement of RSRC Review" in respect of the applicant and four other Bangladeshi clients. The solicitors' said that they had no formal instructions, but felt "morally obligated" to lodge "appeals". The attached submissions sought to place all the solicitors' clients within MPS 15/91. They relied on "the devastating impact of the floods and cyclones which have totally destroyed large parts of Bangladesh." The submissions asserted that their clients "do not seek to remain in Australia for economic reasons," conceded that they "cannot meet the technical definition according to DORS," but sought "temporary help."

The Department wrote to the applicant's solicitors on 16 July 1991, indicating that a review by the RSRC could not proceed without formal instructions from their clients. On 9 August 1991 the applicant's solicitors sent by facsimile a reply dated 6 August 1991. This letter confirmed the desire of all their clients to be considered by the RSRC, and submitted that citizens of Bangladesh must fall within MPS 15/91. The solicitors also urged the RSRC to feel unconstrained by those guidelines in recommending their clients' cases to the Minister for the exercise of his discretionary power under s 115 of the Migration Act 1958.

On 16 August 1991 the Department received a letter dated 13 August 1991 from the applicant's solicitors addressed to the RSRC. I shall set out its full text:

" This correspondence constitutes a formal request whereby the applicant seeks to have his refugee status application reviewed by the Refugee Status Review Committee. I note that the original application was lodged prior to 19/12/89, and that as a consequence, the Refugee Status Review Committee is entitled to consider humanitarian grounds when assessing the applicant's claim. Consequently, a statement by the applicant is enclosed which outlines the circumstances that have arisen for the applicant and his family in Bangladesh since the beginning of this year owing to the terrible natural disasters that have taken place there. These grounds are submitted in addition to the original application of the applicant for refugee status. I would ask the Review Committee to consider the Minister's press releases in order to define the evidentiary test pertinent to humanitarian assessment. These clearly indicate that humanitarian assessment should be based on a threat to personal security which may, on occasions, not necessarily fall within the ambit of the refugee definition. I draw you attention in particular to M.P.S. 15/91, which clearly canvasses circumstances where it can be seen to be in the public interests of Australia as a humane and generous society to sympathetically assess the claims of people who may not necessarily meet the technical definition of refugee. It is respectfully submitted that the circumstances outlined in the applicant's initial claim for refugee status, along with the additional information based on the terrible natural calamities that have befallen Bangladesh this year, could clearly justify the implementation of the guidelines for humanitarian recognition in this case. It is clear that the applicant would suffer intense personal hardship if he were forced to return to Bangladesh. It is submitted that the circumstances which the applicant has outlined of his family's conditions in their home town, which was devastated by the floods earlier this year, circumstances which the applicant would himself be subject to on his return, clearly would put him in a position of extreme and intense personal hardship. Under the circumstances I would therefore maintain that if it is not possible to sympathetically reappraise the compelling nature of the originally presented grounds, the applicant clearly can base an alternative case successfully on the recommended guidelines for humanitarian assessment. Please therefore sympathetically consider this application."

The statement by the applicant referred to in that letter was a statutory declaration made on 14 August 1991. In that declaration the applicant sought to outline circumstances constituting humanitarian grounds to be considered by the RSRC along with his original application for refugee status. He concluded by asking to be favourably considered as an "economic refugee."

The Department then set in train the procedures required to establish the circumstances in which the respondent could exercise his power under s 115 of the Migration Act 1958, namely refusal of an application for a temporary entry permit. This involved consideration of a deemed application for a domestic protection (temporary) entry permit that the applicant was taken to have made by virtue of r 22D of the Migration Regulations in force at the time. Since one of the prescribed criteria for such a permit was that the applicant had been determined by the respondent to have refugee status (which the respondent's delegate had already refused on 22 April 1991), the deemed application had necessarily to be refused. On 16 September 1991, the respondent's delegate took this step, and notified the applicant by letter to his solicitors' address of his right to apply to the RSRC for a review of this decision. The delegate pointed out that: "You must lodge your application for review if you want the RSRC to consider whether you have any claims to remain in Australia on humanitarian grounds." No doubt, it would have been less confusing for the applicant and his solicitors, if the Department had attended to the requirements of r 22D back on 22 April 1991.

On 9 October 1991 the applicant completed the Department's prescribed form 909 Application for Review of a Decision to Refuse to Grant a Domestic Protection (Temporary) Entry Permit and paid the prescribed fee. The applicant's solicitors forwarded the application to the RSRC with their covering letter, undertaking to provide additional material within fourteen days, and with a letter to the RSRC dated 9 October 1991 from the applicant. These documents were received by the Department in Canberra on 14 October 1991. In his letter the applicant, whilst pointing once more to MPS 15/91, also asked that consideration be given to Policy Control Instruction No. PC 1775 issued on 23 May 1991. This instruction had amended the guidelines contained in the Department's instruction manual in relation to making decisions under s 6A(1)(e) of the Migration Act 1958, as in force prior to 19 December 1989 ("the old Act").

On 28 October 1991 the Department received from the applicant's solicitors a letter dated 11 October 1991 addressed to the RSRC. It contained passionate submissions in support of the applicant's claim to be sympathetically considered for humanitarian recommendation by the RSRC within the terms of the MPS 15/91 - the applicant was said to have been placed in a "life threatening position." Importantly, in my view, the solicitors referred to PC 1775. They noted that it related to the interpretation of the humanitarian grounds in s 6A(1)(e) of the old Act, yet they did not seek to have the applicant dealt with under that category. Instead, it was merely submitted that PC 1775 "could be used by way of analogy."

The RSRC considered both the application for review of the decision not to grant the applicant refugee status and the application for review of the decision to refuse the grant of a domestic protection (temporary) entry permit, the latter so that any recommendation for the exercise of s 115 power by the respondent could be made. The RSRC assessed the applicant as not meeting the criteria for the grant of refugee status and as not falling within the respondent's guidelines MPS 15/91. On 19 February 1992 the applicant was notified care of his solicitors of the provisional recommendation, furnished with a summary of the RSRC's deliberations, and asked to provide any comment or new material before a final recommendation was made to the respondent.

The applicant's solicitor's replied by letter dated 3 March 1992, urging that the applicant be accorded refugee status or that, in the alternative, he be given a favourable recommendation under the respondent's guidelines MPS 15/91. The applicant made his own submission by letter dated 16 March 1992. He effectively conceded that his application for refugee status could not succeed, but he sought to be re-considered for humanitarian recommendation under MPS 15/91. Finally, the applicant referred to PC 1775 and asked the RSRC to assess his case under those guidelines, noting that his application had been made before 19 December 1989 so that the RSRC was able "to consider also under the old law if any provision helps to determine my status."

The RSRC maintained its recommendation. The matter was then considered by the respondent's delegate, who determined that the applicant was not a refugee. In his determination dated 24 June 1992, the delegate gave these reasons for his decision:

"1 A refugee is defined in the 1951 United Nations Convention and 1967 Protocol relating to the Status of Refugees as a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable, or owing to such fear, is unwilling to return it. 2 The High Court in the case of Chan v. Minister forImmigration and Ethnic Affairs held that the appropriate test of fear of persecution being "well-founded" as whether there is a "real chance" that the applicant will be persecuted if he or she returns to his or her country of nationality. This is the test applied in assessing the applicant's claim to refugee status. 3 In reaching my decision I took into account the fact that the applicant had not provided evidence in support of his application for refugee status which could objectively be related to the Convention or the Protocol. The reasons for his departure from Bangladesh were of a purely economic nature and he came to Australia because of the better opportunities that this country afforded him. There is no doubt that the conditions caused by natural disasters in Bangladesh impose hardship on all the residents of that country. However, such circumstances, difficult though they may be, do not provide the basis for real fear of persecution for matters identified by the Convention. 4 After careful consideration of all the evidence available to me, I conclude that the applicant does not have a real chance of persecution should he return to Bangladesh. He has therefore not established a well founded fear of persecution. Accordingly, I determine that the applicant is not a refugee."

On 25 June 1992 a review officer affirmed the decision of 16 September 1991 not to grant the applicant a domestic protection (temporary) entry permit. Copies of these decisions were forwarded to the applicant on 25 June 1992, and the applicant was informed that the RSRC had concluded that his claims to remain in Australia on humanitarian grounds did "not satisfy the Minister's guidelines or raise other matters which warrant a recommendation for referral to the Minister."

The applicant wrote to the respondent on 9 July 1992, asking him to exercise his power under s 115 of the Migration Act 1958. On 19 August 1992 the respondent informed the applicant that he would not exercise his s 115 power.

After receiving that letter, the applicant evidently retained new solicitors who wrote to the Department on 21 September 1992 as follows:

" We have received instructions to act on behalf of Mr Ali who received a letter from the Minister dated 19 August 1992 advising him of a rejection of an application made to him under section 115 of the Act ...

We note that our client lodged his application on 18 December 1989. We now advise that it is our view that our client's application was an application which sought the Department's exercise of its general power under section 6(2) of the Act. As the only determination made to date in respect of that application has been under section 6A(1)(c) we submit that the application has not yet been finally determined and in particular there has been no determination of the application for the purposes of section 6A(1)(e).

In support of the contention we submit the following:

1. The Migration Act pre 18 December 1989 contained no definition of the term "application for entry permit." It did not specify classes of entry permits allowing for residence. Section 6A specified limited grounds for granting permanent entry permits to persons in Australia as a condition of the exercise of the general power in Section 6(2). There was no provision which could be interpreted as requiring an applicant for a permit to specify a section 6A "ground" in his request. See Akers v MIEA (1988) 20 FCR 363 at 369.

As the application may be characterised as an application for a permit satisfying section 6A(1)(c), then all other possibly relevant grounds would be required to be considered by the Department. We note that this is accepted by Departmental policies, see GORS IDIMS No 1 part 2 Para 2.3.3. As the Department has not yet considered these other grounds, the application has not yet been fully decided.

2. The Department may take the view that a request for an entry permit be made in the approved form and be accompanied by a fee is directory rather than mandatory. However, we submit that the doctrine of substantial compliance applies. See Acts Interpretation Act 1901 (Commonwealth) section 25C and Formosa -v- Secretary, Department of Social Security (1988) 9 AAR 260 at 266. It is our view that substantial compliance would be achieved where the applicant submitted an incorrect form of request provided it contains substantially similar information and if the Department was made aware in the body of the form or through surrounding circumstances (ie, the covering letter) of the true nature of the request being made.

3. In the alternative, section 6(2) empowers the grant of a permit by consent and without a request, so that an authorised officer retained a discretion to receive an informal request and grant a permit upon it. We submit that the Department is obliged to determine an informal request if the circumstances induced by or known to the Department make this an administratively fair procedure. see Attorney General (Hong Kong) -v- Ng Yuen Shiu 1983 2 AC 629 at 638, Attorney General (New South Wales) -v- Quin (1990) 170 CLR 1 at 18, 20, 23, 40, 56 and 58.

4. Under the former legislation, an "initiating request" could be an informal document gains further significance when considering the effect of section 6(4) of the 1989 Act. That Act allowed the continued examination under the old law of "an application for a permit". By using a word without special definition and which must be read as a deliberate departure from the previous terminology of a "request", the parliament [sic] was clearly indicating a duty to continue to process all outstanding requests for a permit without added conditions as to their form. On this construction, the only requirements of form arising from the transitional provision were those already found in the previous law which was to continue to have affect [sic]. The provisions of the new scheme as to forms of application and payment of fees therefore have no relevance to the present case. Thus, for the purposes of the transitional provisions, an application existed if before 19 December 1989 there had been a request for an entry permit which substantially complied with the previous form. In relation to this request, it remains open after 18 December 1989 to give effect to section 6(2A)(b) by tendering to the Department the fee payable under the old law.

5. For similar reasons, section 6(2A)(b) should be construed as not strictly requiring the simultaneous lodgement of any fee with the request but only as requiring such lodgement prior to determination of the request. To this extent the requirement for payment of the fee is thus similarly directory rather than mandatory.

We expressly advise that the applicant will now tender payment of the fee once you confirm that you will process the application and we expressly request that no formal decision be made rejecting the application on the basis that no fee had as at that date been tendered, to enable our client to make the payment of the fee prior thereto.

6. The documents submitted by the applicant on 18 December 1989, together with the refugee application form and the accompanying letter from his former solicitor, should be properly read as indicating that the application carried a request for the issue of an entry permit under all section 6A(1) grounds, according to the old legislation as well as a refugee determination.

For the foregoing reasons we ask the Department to now proceed to consider our client's application as an application under section 6A(1)(e). Upon receiving your confirmation that you will do so we advise that we will attend to payment of the filing fee and will also make further detailed supporting submissions."

Having canvassed the events antedating the application to this Court, it is now convenient to set out the relevant terms of ss 6 and 6A of the old Act:

"6. (2) An authorised officer may, in accordance with this section and at the request or with the consent of a non-citizen, grant to the non-citizen an entry permit.

"(2A) A request under subsection (2) shall be taken not to have been made unless:

(a) the request is in writing in accordance with the relevant form approved by the Minister; and

(b) any fee payable in respect of the request has been paid.".

(3) An entry permit shall be in a form approved by the Minister and shall be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both.

(4) For the purposes of sub-section (3), where a notation in a form approved by the Minister as a form of entry is made by an officer in a passport or other document of identity held by a person and the notation does not specify the name of any person to whom it relates, the notation has the effect as if it were expressed to relate to the person holding the passport or other document.

(5) An entry permit may be granted to a non-citizen either upon his arrival in Australia or, subject to section 6A, after he has entered Australia (whether or not that entry took place before, or takes place after, the commencement of this Part).

(6) An entry permit that is intended to operate as a temporary entry permit shall be expressed to authorize the person to whom it relates to remain in Australia for a specified period only, and such a permit may be granted subject to conditions.

(6A) Without limiting the conditions subject to which an entry permit referred to in sub-section (6) may be granted, such a permit may be granted subject to a condition imposing restrictions with respect to the work that may be performed by the holder in Australia, including restrictions on performing any work, or work other than specified work or work of a specified kind, without the permission, in writing, of an authorized officer.

...

6A. (1) An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -

(a) he has been granted, by instrument under the hand of a Minister, territorial asylum in Australia;

(b) he is the spouse, child or aged parent of an Australian citizen or the holder of an entry permit;

(c) he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;

(d) he is the holder of a temporary entry permit which is in force, is authorized to work in Australia and is not a prescribed non-citizen; or

(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.

(2) An entry permit shall not be granted to a non-citizen in respect of whom the condition specified in paragraph (1)(a) is fulfilled (whether or not any other condition specified in sub-section (1) is also fulfilled in respect of him) otherwise than by the Minister.

...

(8) In this section, a reference to an entry permit shall be read as a reference to an entry permit other than a temporary entry permit.

These provisions were very helpfully explained by Hill J. in a passage, with which both Davies J. and Foster J. agreed, in Minister for Immigration, Local Government and Ethnic Affairs v. Kumar (unreported, Full Court of the Federal Court of Australia, 31 May 1990). His Honour said (at pp. 19-22);

"Division 1 of the Act is concerned with entry permits. The Act contemplates that there are two classes of entry permits, a temporary entry permit, which, in accordance with s.6(6) authorises the person to whom it relates to remain in Australia for a specified period only (such a permit may be granted subject to conditions); and other entry permits which by implication are not temporary entry permits and therefore do not expire. The latter form of entry permit is apparently colloquially referred to as a permit granting permanent resident status although this appellation does not appear in the Acts.

Section 6(2) is a general provision conferring a discretion upon an officer to grant to a non-citizen an entry permit. The Act does not seek to limit in any way the matters to be considered by the officer in exercising that discretion and the discretion conferred upon the officer is untrammelled save that it must be exercised having regard to policy and purpose of the Act:

...

Section 7(2) of the Act provides that at any time while a temporary entry permit is in force or after its expiration or cancellation a further entry permit may be granted. That section likewise does not seek to confine in express terms the discretion conferred.

Section 6A, which qualifies both ss.6 and 7, provides that an entry permit is not to be granted to a person who is a non-citizen after his entry into Australia unless in respect of that person one or other of the conditions referred to in paragraphs (a) to (e) is satisfied. Those paragraphs include cases of territorial asylum, refugee status, strong compassionate or humanitarian grounds as well as the case where the person in question is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit.

The obvious purpose of s.6A, when read together with ss.6(2) and 7(2) is to ensure, in the case of a person who has entered into Australia, that the entry permit to be granted under s.6(2) (or to the extent to which s.7(2) provides an independent power to grant an entry permit that section) will be granted only if at least one of the grounds referred to in s.6A has been made out. Thus in the case of a person in the position of the first respondent who is in Australia and seeks to apply for any entry permit, that person must first satisfy the provisions of s.6A before the discretion under s.6(2) is exercised. Not surprisingly therefore, it is customary to refer to an applicant for any entry permit who makes his application in Australia as applying on one of the grounds referred to in s.6A although that may be said to be technically incorrect in that, at least in form, s.6A is expressed as a disqualifying clause by the use of the word "unless" rather than as qualifying clause. However, its substantial effect is as a qualifying clause although ultimately the application will be determined under s.6(2)."

It is agreed by the parties that as at 18 December 1989 there was no form of request approved by the respondent under s 6(2A) of the old Act. In addition, as French J pointed out in Hamsher v. Swift (1992) 33 FCR 545 at 566, the old Act made no explicit reference to applications for entry permits. This makes it no easier to identify what are "applications" for the purposes of s 6(4) of the Amendment Act.

In confronting the applicant's primary submission that the documents lodged on his behalf on 18 December 1989 constituted an application for entry permits, the respondent has very sensibly not relied upon any meretricious submissions about "approved forms", payment of fees or the like. The respondent squarely submits that the documents so lodged were, in form and substance, an application for recognition of refugee status and nothing more. The respondent relied upon the distinction between the processing of an application for refugee status and of an application for an entry permit recognized in the judgments in Chan v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

However, I think that the documents in question sought far more than mere recognition as a refugee. The explicit reference to s 6A(1) of the old Act in the letter dated 18 December 1989 makes that clear. Most importantly, that letter also refers to "the amendments to the Migration Act" and to "implementation of the Migration Legislation Amendment Act." This is the context in which the documents were lodged. What was obviously important to the applicant were the changes about to take effect next day in the law relating to entry permits. Only "applications for visas or entry permits" could benefit from the transitional provision in s 6(4) of the Amendment Act. There was to be no change to Australia's obligation as a Contracting Party to the Convention, and the determination of refugee status was to continue to have significance under the Migration Act 1958 and the Migration Regulations. There was no necessity for any urgency in lodging an application for refugee status, except in the context of the condition specified in s 6A(1)(c) of the old Act. That condition also required the grant of a temporary entry permit. Since s 6A of the old Act was concerned with the grant of "permanent" entry permits, it follows, in my view, that the documents lodged on behalf of the applicant did have effect as applications for both a temporary entry permit and a permanent entry permit under the old Act.

The next submission by the applicant involves the proposition that the application, outstanding as at 19 December 1989, had also to be determined by reference to the condition specified in s 6A(1)(e) of the old Act and the "relevant policies adopted by the respondent." These policies were identified in the letter dated 21 September 1992 from the applicant's solicitors as "GORS IDIMS No 1 part 2 Para 2.3.3." GORS IDIMS is an acronym for "Grant of resident status Integrated Departmental Instructions Manual." The Number 1 manual dealt with general processing procedures and, in Part 2 para. 2.3.3, provided:

"... when assessing an application officers must consider it against all GORS eligibility categories (including occupational eligibility), before reaching any decision to reject. Thus if the application fails on the ground on which it was submitted, eg a marriage to an Australian citizen was invalid or the Australian residents (sic) had died, then it may be that the application can be considered on compassionate grounds. In these circumstances, officers may determine whether or not to approach applicants for additional information. It is usually desirable that such an approach be made in order to ensure that any decision to reject is as fully substantiated as possible in order to reduce problems at the review stage. In general, however, most applications for approval will simply fall into one category."

I think that this was an admirable instruction with the laudable aim of achieving great fairness in the Department's administrative procedures. However, such an instruction cannot control the meaning of "applications" in s 6(4) of the Amendment Act. Necessarily that meaning must emerge from the provisions of the old Act. In my view, s 6A(1) of the old Act envisages a claim, that "one or more" of the conditions there specified is fulfilled, being made by the claimant indicating the applicable condition or conditions. That is why it is natural to speak (as Hill J does in Kumar) of "grounds referred to in s 6A", although the word "ground" is not used in the statutory provision. (I should say that I cannot extract from what Lee J said in Akers v. Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 389 the proposition for which the applicant's solicitors contended in their letter of 20 September 1992.) In the present case the applicant sought permission to remain in Australia on the basis that the condition in paragraph (c) of s 6A(1) of the old Act was fulfilled. There was no obligation upon the respondent to inquire whether any other condition was relied upon by the applicant. It follows that I reject the applicant's submission to the contrary.

It was not until 6 February 1990 that the Department would have had an inkling that the applicant, in seeking to be treated as an "economic refugee", was relying on what his counsel describe as "essentially non-Convention grounds for residency." It was not open to the applicant to change the nature of his pending application so as to gain the benefit of s 6(4) of the Amendment Act. Indeed, he did not seek to do so at that time.

On the other hand, it should have been obvious to the applicant's solicitors when they received the Department's letter of 4 April 1990 to their client that the Department was not treating the documents lodged on 18 December 1989 as an application for entry permits under the old Act. The applicant, however, applied on 10 April 1990 for a temporary entry permit in one of the new classes introduced on 19 December 1989. This action was entirely inconsistent with asserting an interest in maintaining a pending application for an entry permit of any description under the old Act. Without going into details, the refugee D (restricted) entry permit was effectively a processing permit intended to permit consideration of claims under a new and entirely different scheme of permanent and temporary entry permits. Again, when the applicant received the Department's letter of 19 June 1990, it should have been apparent that the only outstanding matter, in the eyes of the Department, was the discrete question of his application for refugee status.

It was not until 24 January 1991 that the applicant sought explicitly to be dealt with on any basis other than as a refugee within the Convention's definition. The applicant then sought to have the respondent exercise his power under s 115 of the Migration Act 1958. This power was conferred by the Migration Legislation Amendment Act (No 2) 1989, which although it was taken to have commenced on 19 December 1989, was not assented to until 28 December 1989. A request for the exercise of such a power could not have been made under the old Act on 18 December 1989. In May 1991 the applicant's solicitors sought to rely on natural disasters occurring earlier that year. This suggested yet another basis for a claim to remain in Australia, this time only temporarily.

In the letter from the applicant's solicitors dated 13 August 1991 there is a statement that "the original application was lodged prior to 19/12/89, and that as a consequence, the Refugee Status Review Committee is entitled to consider humanitarian grounds when assessing the applicant's claim." This is, at first glance, an equivocal statement. However, it is most likely a reference to the requirement of r 22D of the Migration Regulations, as in force at the time, that an application for refugee status must have been lodged before 27 February 1991 in order to be treated as an application for a domestic protection (temporary) entry permit. In substance, the letter again seeks to have the respondent exercise his s 115 power. I have set out earlier in some detail the course of subsequent correspondence on behalf of the applicant. Despite the early oblique reference to s 6A(1)(e) of the old Act in October 1991, reliance upon the provision is implicitly eschewed in the letter dated 11 October 1991, and it is not until the applicant's letter of 16 March 1992 that there is a plea to be considered under the old Act. Unfortunately this comes, in my view, much too late in the day. Quite apart from the temporary permit applied for in April 1990, the applicant's pursuit of a domestic protection (temporary) entry permit during 1991 is entirely inconsistent with a claim to be considered for the grant of temporary and permanent entry permits under the old Act. It is quite plain that from the beginning of 1991 the applicant's focus was on the exercise of s 115 power by the respondent on grounds that vacillated from natural disasters to economic circumstances.

In my view, the Department did err in law in its treatment of the documents lodged on 18 December 1989. They should have been considered as an application for temporary and permanent entry permits on the ground specified in s 6A(1)(c) of the old Act. This error was manifest by April 1990. There can, however, be no criticism of the Department for not considering the various cases advanced by the applicant since February 1990 against the requirements of s 6A(1)(e) of the old Act. The claim was initially pressed as a matter of refugee status under the new laws which came into effect on 19 December 1989. From January 1991 until March 1992 those cases were always pressed by the applicant in the context of the respondent's guidelines MPS 15/91. For these reasons I think I should say that, had I reached a different conclusion about the true nature of the application outstanding on 19 December 1989 (that is, that it had also to tested under s 6A(1)(e) of the old Act), I would in the exercise of my discretion under s 16 of the Administrative Decisions (Judicial Review) Act 1977 not have granted the relief sought.

The application is dismissed. If requested, I will hear the parties on costs.