Altintas, H. v The Minister for Immigration, Local Government & Ethnic Affairs

[1993] FCA 772

HATICE ALTINTAS and RAMAZAN ALTINTAS v. THE MINISTER FOR IMMIGRATION, LOCAL
GOVERNMENT AND ETHNIC AFFAIRS
No. VG431 of 1992
FED No. 772
Number of pages - 16
Immigration
(1993) 32 ALD 339 (extract)
(1993) 45 FCR 553

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
SWEENEY J

CATCHWORDS

Immigration - Application for an order to review decision not to grant first applicant an Extended Eligibility Temporary Entry Permit (Family) pursuant to Regulation 127 of the Migration Regulations 1989 - construction of Paragraph 23(4)(b) Migration Act 1958, namely the words "the condition that, in spite of anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted an entry permit while he or she remains in Australia".

Migration Act 1958 (Cth) s.23(4)(b)

HEARING

MELBOURNE, 3 September 1993

#DATE 28:10:1993

Counsel for the Applicants: Mr K. Bell

Solicitors for the Applicants: Messrs Juliano, Ford and Co.

Counsel for the Respondent: Mr T. Hurley

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. the application for an order for review is dismissed; and

2. the applicants pay the respondent's costs of and incidental to the application including any reserved costs.

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

JUDGE1

SWEENEY J The outcome of this case turns on the construction of paragraph 23(4)(b) of the Migration Act 1958 (Cth) ("the Act"). The relevant portions of Section 23 read:

"23(1) Without limiting the generality of section 181, the regulations may make provision:

(a) in relation to the granting and refusal of visas with respect to travel to Australia, including the granting of visas:

(i) subject to conditions; or

(ii) subject to a limitation as to the time the holder is authorised to remain in Australia;

(b) for the recording and evidencing of visas;

(c) in relation to the effect and operation of visas; and

(d) in relation to the cancellation of visas ... ... (2) -(3) ...

(4) The conditions subject to which visas may be granted pursuant to regulations made under paragraph (1)(a) include, but are not limited to:

(a) ...

(b) the condition that, in spite of anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted an entry permit while he or she remains in Australia ..."

1. The firstnamed applicant, Mrs Hatice Altintas ("Mrs Altintas"), was born on 1 January 1944 and is a citizen of Turkey. The secondnamed applicant, Ramazan Altintas, is Mrs Altintas' brother ("Mr Altintas").

2. Mrs Altintas entered Australia on 19 November 1991 after being granted in Ankara a Class 663, Family Visa "valid until 19 November 1992". The visa was subject to a number of conditions including:
   

"No further stay (M.A. 23(4)(b)"

1. On 26 February 1992 Mrs Altintas applied for an extended eligibility (family) entry permit under regulation 127 of the Migrations Regulations 1989. On 6 July 1992 her application was refused by a delegate of the respondent Minister for Immigration, Local Government and Ethnic Affairs ("the decision").

2. On 16 July 1992 the applicants' solicitors sought a statement of reasons pursuant to s.13 of the Administrative Decisions (Judicial Review) Act 1977, which was furnished on 19 October and read in part:
   

"C. THE REASONS FOR THE DECISION

As an authorised officer under Section 34 of the Migration Act I considered the applicant's application for an Extended Eligibility

(family) Entry Permit.

8. The applicant had applied for an Extended Eligibility

(Family) Entry Permit and I addressed her claims against the prescribed criteria of Regulation 127 of the Migration Regulations;

9. I considered the applicant's claims against the provisions of Regulation 127 (a)(iii) which state: The following criteria are prescribed in relation to an extended eligibility (family) entry permit:

(a) at the time when the application for the entry permit is decided, the applicant:

(iii)is an aged dependent relative, remaining relative, special need relative or orphan relative in relation to a person living in Australia who:

(A) is an Australian citizen: or

(B) is an Australian permanent resident who has been resident in Australia for a reasonable period... Special Need Relative is defined in Reg 2 as follows- in relation to an Australian citizen or Australian permanent resident usually resident in Australia, means a relative who is willing and able to give substantial continuing assistance to the citizen or resident where:

(a) the citizen or resident has a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstances, affecting the citizen or resident personally, or a member of his or her family unit:

(b) the assistance cannot reasonably be obtained from:

(i) any other relative of the citizen or resident, being a relative who is an Australian citizen or an Australian permanent resident; or

(ii) welfare, hospital, nursing or community services in Australia

10. I considered Procedures Advice Manual Section 4.3.9 which states:

3.9.1 two examples of situations in which a special need relative might be approved are: . the death or serious illness of a spouse leaving the partner with problems in bringing up young children and coping generally; and

. a crippling disability, creating a need for physical assistance. 3.9.2 People should not be approved in this category: . to provide financial support, companionship or general domestic assistance;

. to provide assistance in bringing up teenage children;

. where there are relatives already in Australia who could reasonably be expected to provide assistance; . when welfare, hospital, nursing and community services, which are the normal and sometimes only course open to other Australian residents, are available. 3.9.3 The application is to be assessed by interviewing the Australian resident nominator to: . establish the need to have the nominated relative on a permanent basis in Australia;

. assess the applicant's ability, capacity and willingness to meet the need; . for the nominator to establish the reasons for the special need being unable to be met by community and health services or another relative in Australia. 3.9.4 If it is felt that the case should be supported by medical evidence, a report from a doctor or a social worker should be obtained showing: . the disability

. the degree of incapacitation; . the treatment;

. the prognosis.

3.9.5 Applicants are to be interviewed and asked to explain what they understand their responsibilities will be. Comments are to be compared with those of the nominator to ensure that there are no misunderstandings between applicants and nominators. 3.9.6 The applicant should be informed if their idea of what is required varies from the comments of the nominator. In some cases officers may consider it necessary to clarify the situation with the sponsor or the applicant. The case should proceed only if the officer is satisfied that the applicant is able and willing to meet the demands of the real situation. 3.9.7 Separate interviews for the applicant and nominator can be conducted if the decision maker considers it appropriate.

Nomination

3.9.8 To qualify for a PEPAE, the applicant must be nominated on the relevant section of the Form 887 by the relative requiring special need. That relative must be an Australian citizen or permanent resident. 3.9.9 A nomination is not required for a family EETEP. Assurance of support

3.9.10 An Assurance of Support may be required for a compassionate PEPAE, but is not required for a family EETEP.

11. I accepted the opinions of Mr Altintas' treating medical practitioners on his state of health and the prognosis of his medical conditions, and concluded that his state of health now and for the foreseeable future was such that he was likely to require significant long term assistance in his personal care and the care of his children.

12. I accepted the advice of social and community service workers of the need for and lack of services which would effectively meet the needs of Mr Altintas and his children, and that the marriage of Mr and Mrs Altintas had broken down. I further accepted that the family was not in a strong financial position. I concluded that the services required by Mr Altintas and his family were not available within the community or from other family members, and that the family did not have the financial means to pay for private services.

13. In considering whether Hatice Altintas was entitled to the grant of the entry permit for which she had applied, I considered the effect of the condition subject to which her entry visa was granted that 'in spite of anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted an entry permit while he or she remains in Australia' (Section 23(4)(b) of the Migration Act).

14. I accepted advice from Legal Branch that the condition applied while Hatice Altintas remained in Australia. I further accepted that the condition was a condition under which the entry visa was granted, rather than one which applied only during the validity of the permit. I therefore concluded that the fact that Hatice Altintas' entry visa had expired at the time of my decision did not affect the operation of that condition.

15. I considered the wording of the condition under which Hatice Altintas' entry permit was granted, specifically the words 'in spite of anything else in this Act...' and the effect of these words on the power to grant entry permits conferred by Section 34 of the Act. I considered that I should accept the ordinary meaning of these words, and concluded that due to the operation of the condition there was no power to grant the entry permit for which Ms Altintas had applied, since she had no entitlement to be granted that entry permit.

16. I therefore decided to refuse the application for an Extended Eligibility (family) Entry Permit. I found that for the reasons stated above the applicant was also unable to satisfy the prescribed criteria for the grant of any other class of EETEP."

1. On 16 November 1992 the applicants' solicitors filed the following application for an order to Review on behalf of the applicants:
   

"Application to review decision and/or conduct of the Respondent that:

A. Decisions of the Respondent to be reviewed:

1. That the decision dated 7th July, 1992 not to grant the first applicant an Extended Eligibility Temporary Entry Permit (Family) pursuant to Regulation 127 of the Migration Regulations 1989 for which a formal Statement of Reasons pursuant to Section 13 of the Administrative Decisions (Judicial Review) Act was provided under cover of a letter dated l9th October, 1992.

B. Conduct of the Respondent to be reviewed:

1. The refusal to consider and accept a contrary legal opinion apparently provided by the legal branch of the Department of Immigration, Local Government and Ethnic Affairs to the effect that a Section 23 (4) (b) Migration Act 1958 condition only operates where prescribed criteria for the grant of an entry permit applied for refers to the Section 23 (4) (b) condition and accordingly that there is no such prescribed criterion for a grant of a Regulation 127 Migration Regulations 1989 Extended Eligibility Temporary Entry Permit (Family) and as such no bar on the grant exists."

1. The legal opinion provided by the legal branch of the respondent's department referred to in paragraph B.1 above was set out an internal minute prepared on 22 June 1992 which read as follows:
   

"I refer to your request for advice in relation to the above matter as it applies in the application of Mrs Altintas. My short answers to your questions are that there is a strong legal argument that Mrs Altintas cannot be granted any entry permit while she remains in Australia because there is a lawful and operative s.23(4)(b) bar on grant of such. While there is a contrary argument - set out below - the relevant policy area at this office prefers the argument that leads to the foregoing result.

Facts

2. The relevant facts as far as I can ascertain them from the documents you provided are as follows: . Mrs Altintas came to Australia on a visitor entry visa whlch had a s.23(4)(b) condition attached to it. . That condition was not a mandatory one for the class of visa but was imposed by the visa grantor because of a concern that Mrs Altintas would attempt to remain permanently in Australia. (And, there is nothing in the information provided to me which indicates that the imposition of the condition was flawed by any legal error.)

. Mrs Altintas has applied for a reg.l27 family EETEP and apparently meets the special need relative criteria.

The preferred legal view

3 The legal view preferred by the relevant policy area at this office is that set out above. That is, the s.23(4)(b) condition continues to operate whether or not the entry visa on which she came to Australia remains in force and therefore Mrs Altintas cannot be granted an entry permit while she remains in Australia.

4 I have attached a copy each of two legal opinions in which the reasons for the above view are set out in full. (Note that the reasoning in them applies equally to ss.23(4)(b) and 33(4)(b).

The other legal view

5 The contrary legal view is that a ss.23(4)(b) condition only operates where the prescribed criteria for the grant of the entry permit being applied for, refers to the s.23(4)(b) condition. For example, regs.120, 121 etc TEPs have the - prescribed criterion that the visa or entry permit that the applicant had, did not have a condition on it that the holder is not entitled to be granted an entry permit while he or she remains in Australia. That is, a ss.23(4)(b) or 33(4)(b) condition on it. On the other hand, there is no such prescribed criterion for the grant of a reg.127 EETEP (Among others) and therefore no bar on grant according to this legal view.

6 The rationale for the argument is as follows: . the Act and the regulations give an entitlement to be granted an entry permit if the applicant meets the prescribed criteria for the particular entry permit applied for;

. the ss.23(4)(b) and 33(4)(b) conditions are not equivalent to bars on grant such as s.45 of the Act; and

. the fact that the ss.23(4)(b) and 33(4)(b) provisions are expressly made part of the prescribed criteria in some of the entry permit classes, suggests that the bar on grant does not operate unless it is turned into a prescribed criteria for the entry permit being applied for, otherwise what is the point of having such a criterion.

7 On any judicial review of a decision to refuse an entry permit on the basis or 'the preferred legal view', a judge might well reject that argument, in a case which to the judge's mind had merit. That rejection being based on the last dot point set out at para. 6 above. Effect of a legally flawed decision to grant 8 You should note that if a decision was made to grant Mrs Altintas an entry permit (because the decision-maker prefers the argument set out at paras.5 and 6 above) that decision could not be set aside by the department on the basis that it was legally flawed, without Mrs Altintas' consent. The department cannot unilaterally set aside such decisions no matter how legally flawed they might appear."

1. The application continued:
   

"The applicants are aggrieved at each of the decisions and/or conduct because:

1. The first Applicant is the subject of the decision and conduct and desires to remain living in Australia.

2. The second Applicant is accepted by the Respondent to be a Special Need relative who is in need of the assistance of the first Applicant on an urgent basis.

3. The Respondent's decision involved an error of law in that there were two competing legal interpretations as to whether or not there was a bar to the grant of the Extended Eligibility Temporary Entry Permit (Family) to the first Applicant and the Respondent preferred the wrong legal view. PARTICULARS

The decision of the Respondent forwarded under cover of the letter of 7th July, 1992 noted on the final page that she had been advised by the Legal Branch of the Respondent that there were two legal opinions in relation to the ability of the Respondent to grant to the first Applicant an Extended Eligibility Temporary Entry Permit (Family). The first Applicant had arrived in Australia on a visitor visa which had a sub-paragraph 23 (4)(b) condition attached to it to the effect that the entry visa for the first Applicant to travel to Australia was granted in spite of anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted an entry permit while he or she remains in Australia'. The Respondent preferred the view that sub-paragraph 23 (4)(b) conditions continued to operate whether or not the entry visa on which the first Applicant came to Australia remained in force and therefore she cannot be granted an Entry Permit while she remains in Australia. The Respondent refused to take into account the contrary legal opinion that was provided to the Respondent that sub paragraph 23(4)(b) conditions under the Migration Act 1958 only operates where the prescribed criteria for the grant of the entry permit applied for refers to the said condition. Given that there is no such prescribed criterion for the grant of a Regulation 127 Migration Regulations 1989 Extended Eligibility Temporary Entry Permit

(Family) then there is no such bar on the grant of such an entry permit.

And the Applicant claims:

1. By interim and interlocutory relief orders:

(i) Any proceedings to remove the first Applicant from Australia be stayed pending reconsideration of the decisions by the Respondent according to law.

2. By way of principal relief orders:

(i) The decision of the Respondent be quashed and set aside.

(ii) The Respondent reconsider the decisions and conduct subject to which such directions as the Court thinks fit."

1. On 1 December 1992 Keely J ordered that the applicants file and serve their contentions of fact and law on or before 12 February 1993 and that 'the respondent file and serve his contentions of fact and law on or before 27 February 1993". The applicants' contentions were filed on 30 August 1993, but were served earlier. Extracts from these contentions are set out in Schedule A to these reasons.

2. When the matter came on for hearing on 3 September 1993 counsel for the applicants filed an outline of argument which superseded the earlier document entitled "Applicants' contentions of Fact and Law".

3. Extracts from these contentions are set out in Schedule B to these reasons. Extracts from the respondents contentions are to be found in Schedule C.

4. During the course of the hearing, counsel spoke to their submissions and after the close of oral argument were given the opportunity to make further written submissions, including any submissions relating to the legal characteristics of a visa.

5. Counsel for the respondent filed the following submission with which counsel for the applicant agreed:
   

"4. Legal Characteristics of a Visa:

By the Act, 'visa' refers to permission to travel to Australia, whereas an 'entry permit' refers to permission to enter or remain in Australia.

The scheme of the Act is that a person obtains a visa which permits them to be carried to Australia. The visa is of various classes of visa created by the Migration (1989) Regulations. When a person applies for a visa, the person may be granted an 'entry visa' (subss.17(4) and (5). In the normal course, when the holder of an entry visa enters Australia, the entry visa has effect as an entry permit

(s.18). Where a person is granted a visa that is not an entry visa, the holder of the visa must apply for an entry permit before entering Australia. The above reflects the law as at 12 December 1991.

More specifically, this applicant:

(1) Made application for visa:

Provision for visas is found in Migration Act, Division 2, ss.23-32. Subdivision A of Division 2

(s.23-28) contains general provisions for the grant of visas. By s.23(1) and s.181, Regulations may be made creating classes of visas. The applicant applied for a Close Family Visitor Visa (Reg.89).

(2) Grant of Visa:

Having made application for the visa and paid the appropriate fee (s.24(1)(a) and (b)) the Minister then granted the firstnamed applicant a visa (s.24(3)). The firstnamed applicant was granted an 'Entry Visa'. The visa represented 'permission to travel to Australia'

(s.4(1), 17(2)).

The firstnamed applicant then journeyed to Australia.

(3) Entry Permit:

When the firstnamed applicant arrived in Australia by aircraft, she entered Australia when she left the proclaimed airport at which she arrived (s.4(5)(b)). Immediately after she entered Australia, her entry visa had effect as an entry permit granted subject to the same conditions, including limitations as to time, that were specified in the visa (s.18). She became a non citizen lawfully in Australia

(s.14(1)(b)) until the expiry of her entry permit (s.14(3))."

1. Extracts from the further contentions filed on 10 September 1993 by the respondent are to be found in Schedule D.

2. Extracts from the applicants' reply filed 24 September 1993 are set out in Schedule E.

3. In accordance with the terms of paragraph 23(4)(b) of the Act, the visa here in question was issued subject to "the condition that, in spite of anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted an entry permit while he or she remains in Australia".

4. This paragraph is expressed in strong terms. The ordinary meaning of the word "condition" is a stipulation which is fundamental in nature. The phrase "in spite of anything else in this Act" lends additional strength to the paragraph. The provision that the holder will not be entitled to be granted an entry permit is also telling. It denies to the holder of the visa to any entitlement to be granted an entry permit.

5. The Parliament might have provided for the grant of a visa, subject to the right to apply, after arrival in Australia, for an entry permit while remaining in Australia, so as to permit the holder to seek an entry permit in reliance upon whatever circumstances might be relevant at the time of that application. In my opinion, it has chosen quite a different course. It has said that, in spite of anything else in the Act, such a holder will not be entitled to be granted an entry permit. It is not helpful to observe that circumstances have changed between the time of the grant of the visa and an application for an entry permit. Such changes are obviously possible but the paragraph does not entitle the holder of such a visa as the present one to rely upon them. What the Parliament has done is to enable some would-be travellers to this country to be offered a conditional visa. If they accept this offer, they are bound by the condition.

6. There is, in my opinion, nothing in the submissions of the applicants which would justify me in departing from what I regard as the ordinary and natural meaning of the words of the paragraph. I have found the submissions of the respondent generally persuasive.

7. In my opinion, when Mrs Altintas applied, while still in Australia, for an Extended Eligibility (family) entry permit the authorised officer rightly concluded "that due to the operation of the condition there was no power to grant the entry permit for which Mrs Atlintas had applied, since she had no entitlement to be granted that entry permit".

8. The Court orders that:
   

1. the application for an order for review is dismissed; and

2. the applicants pay the respondents' costs of and incidental to the application including any reserved costs.

Schedule A Extracts from Applicants Contentions of Fact and Law, filed

30 August 1993

"3. The delegate made the decision because the delegate considered that by virtue of s.23(4)(b) of the Migration Act 1958 (Cth) ('the Act') the holder of a visa or permit subject to a condition of the relevant kind could never be granted an entry permit while he or she remains in Australia. That decision was wrong in law.

4. On its proper construction s.23(4)(b) creates a regulation-making power pursuant to which, if regulations of the specified kind are made, a condition may be imposed of the kind specified. The Act does not require expressly or impliedly that where that regulation-making power is exercised and the condition is imposed, an applicant is unable to be granted an entry permit under the Act and the Regulations in circumstances in which the applicant otherwise qualifies for the permit.

5. The true purpose of s.23(4)(b) is to provide for the making of regulations which permit the imposition of the condition so that a choice can be made by the delegate at the point of grant as to whether to impose the condition for the purpose of bringing the particular visa or permit within or taking the particular visa or permit outside the definition of 'valid temporary entry permit' in s.47(7) of the Act as it was originally introduced (see s.11ZD as set out in the Migration Legislation Amendment Act 1989 (Cth)). The purpose and effect of s.23(4)(b) is not to impose an absolute prohibition on the grant of a permit to a person who held or may have held a visa or permit containing the relevant condition even though the person otherwise satisfies the eligibility criteria and the Regulations in relation to the permit.

6. The regulation-making powers in ss.23 and 181 of the Act are amply wide enough to permit the making of regulations which provide for the grant of a permit to persons that may or may not hold or have held a visa containing a s.23(4)(b) condition, depending on the terms of the regulations so made. In making regulations which, on the one hand, expressly prevent the grant of a permit to a person who is the holder of a visa or permit containing such a condition (see eg reg. 120) and which, on the other hand, do not include any reference to this consideration as a relevant criteria (see eg reg.127), the regulation-maker has employed the generality of the regulation-making power in the Act to make regulations which deliberately distinguish between the appropriateness of the inclusion of such a consideration in relation to different kinds of permits. The consideration has been deliberately excluded from reg. 127, the terms of which the firstnamed applicant satisfied, and s.34(3) of the Act demands that the application be granted.

7. In the alterative the condition expired when the entry visa (which became an entry permit after entry by virtue of s. 18 of the Act) expired, and, the condition no longer applies." Schedule B - Applicants outline of 3 September 1993. "1. The scheme of the Migration Act 1989 (Cth) and the Migration Regulations 1989 (Cth) (as fundamentally changed by the Migration Legislation Amendment Act 1989 (Cth) (No 59 of 1989) and the Migration (Criteria and General) Regulations 1989 (Cth) (SR 365 of 1989) has two central elements:

(a) s.23 (in relation to visas) and s.33 (in relation to entry permits) confer power to make regulations which prescribe the criteria that must be satisfied before a person is entitled to be granted a visa or an entry permit; and,

(b) s.24(3) (in relation to visas) and s.34(3) (in relation to entry permits) in substance require a visa or an entry permit to be granted to a person who satisfies the prescribed criteria.

2. In such a scheme a condition imposed pursuant to s.23(4)(b) (in relation to visas) or s.33(4)(b) (in relation to entry permits) might be expected to operate in one of two ways:

(a) the regulations might specify when the condition is to be a disqualifying criteria in relation to a subsequent visa or entry permit; or,

(b) the regulations might be silent on this question on the basis that the condition is assumed always to be a disqualifying criteria.

3. From the beginning of the introduction of the scheme the Regulations have operated in the first way specified above. Both under the Migration (Criteria and General) Regulations 1989 and the Migration Regulations 1989 (Reprint No 2) the prescribed criteria are deliberately expressed so as to specify whether the existence of a condition imposed under s.23(4)(b) (in relation to visas) or s.33(4)(b) (in relation to entry permits) is a disqualifying criteria in relation to an application for a further visa or permit. For example see the following:

Migration (Criteria and General) Regulations 1989 Not disqualifying:

Reg. 123 Reg. 124 Reg. 127 Reg. 128 Reg. 129 Reg. 130 Reg. 131

Disqualifying:

Reg. 120 Reg. 121 Reg. 122 Reg. 125

Migration Regulations 1989 (Reprint No 2) Not disqualifying:

Reg. 117A Reg. 117B Reg. 118(1) Reg. 119B Reg. 119C Reg. 119F

Reg. 119G Reg. 119H Reg. 119J

Reg. 119K Reg. 119L Reg. 119M

Reg. 124 Reg. 126 Reg. 127 Reg. 128 Reg. 129 Reg. 130A Reg. 131 Reg. 131A Reg. 134 Reg. 135

Disqualifying:

Reg. 120 Reg. 121(2) Reg. 122(2) Reg. 125(2) Reg. 125A Reg. 125AA Reg. 125C

4. These Regulations are valid under ss.23 and 33. Sections 23(4)(b) and 33(4)(b) are not intended to limit or qualify the broad regulation-making powers set forth in ss.23 and

33. Under ss.23 and 33 regulations may be made which in effect provide that a person is eligible to be granted a visa or entry permit notwithstanding that a previous visa or entry permit might have been issued subject to a condition imposed under ss.23(4)(b) or 33(4)(b).

5. The Migration Legislation Amendment Act 1989 which

introduced ss.23(4) and 33(4) of Reprint No 3 as ss.11D(4) and 11P(4) respectively attached only one immediate consequence to the imposition of a condition under those sections. That consequence was that the visa or entry permit could not be a "valid temporary entry permit' for the purposes of s.47 of the Act (as it is to be found in Reprint No 3) which was originally introduced as s.11ZD. Thus a visa or entry permit issued subject to such a condition could not itself form the basis upon which an applicant might apply after entry for permanent residence of Australia. But the Act as it originally was and as it remained was otherwise silent in relation to the consequences of the imposition of such a condition. In particular the Act has never -

(a) expressly prohibited the grant of a further entry permit to a person who holds or held a visa or entry permit issued subject to such a disqualifying condition (cf s.45(1) where the legislature demonstrates that can make an express prohibition when it clearly intends to); or,

(b) limited the regulation-making powers in ss.23 and 33 so that regulations could not be made permitting the issue of a further entry permit to a person who holds or held a visa or entry permit issued subject to such a condition.

6. If the intention of the legislature was that a person who holds or held a visa or entry permit issued subject to a condition imposed under ss.23(4)(b) or 33(4)(b) could never be granted a further entry permit, one would expect to find in the Act -

(a) an express prohibition as in s.45(1); and/or,

(b) express limitations on the regulation-making powers set forth in ss.23 and 33.

7. It has never been mandatory under the Act to impose a condition under ss.23(4)(b) or 33(4)(b) on a visa or entry permit. Under the Migration (Criteria and General) Regulations 1989 the only visa or permit in relation to which the imposition of such a condition was mandatory was the Class 661 'tourist (special arrangements)' visa or entry permit: see schedule 5. The Migration Regulations 1989 (Reprint No 2) are to the same effect. The visitor visa issued to Hatice Altintas is a Class 663 'close family visitor' visa and is not a visa in respect of which the imposition of such a condition is mandatory. In all cases other than the Class 661 'tourist (special arrangements)' visa or entry permit the scheme allows the delegate at point of issue of the visa or entry permit to determine as a matter of discretion whether or not to impose such a condition. This happened in the instant case.

8. Nor has it ever been mandatory for regulations to be made which expressly exclude the possibility of a person being granted a further visa or entry permit when they hold or held a visa or entry permit issued subject to a condition imposed under ss.23(4) or 33(4). Sections 23 and 33 confer a discretion on the regulation-maker to decide whether or not regulations will be made in those terms. What then is the function of ss.23(4) and 33(4) in the statutory scheme?

9. In the context of the statutory scheme, the function of ss.23(4)(b) and 33(4)(b) is twofold. First, the presence of the power in ss.23(4) and 33(4)(b) to impose a condition enables regulations to be made which operate on the imposition of such a condition by specifying when the condition will be a disqualifying criterion in respect of a further visa or entry permit. Secondly, the combination of the power in ss.23(4)(b) and 33(4)(b) to impose a condition on the one hand and the making of particular disqualifying regulations on the other enables the delegate issuing a visa or entry permit to know that the imposition of such a condition will disqualify the holder from being eligible for the particular visa or entry permits in respect of which the condition is a disqualifying criterion under the Regulations. The function of ss.23(4)(b) and 33(4)(b) in the scheme is not to operate as an automatic and comprehensive prohibition on the issue of a further visa or entry permit whatever be the circumstances.

10. According to the view preferred by the delegate in the instant case no further visa or entry permit can be granted to a person holding a visa or entry permit issued subject to a condition imposed under ss.23(4)(b) or 33(4)(b) even in circumstances that are life threatening, positively in Australia's interests or completely changed from when the original visa or entry permit was issued. For example:

(a) a person who came to Australia on an entry visa that was subject to a condition imposed under s.23(4)(b) and who then married an Australian citizen would not be eligible for an extended eligibility (spouse) entry permit under reg. 126 or a spouse (after entry) entry permit under reg. 135;

(b) a person who had to flee his home country and managed secretly to escape to Australia by obtaining an entry visa but whose entry visa was issued subject to a condition imposed under s.23(4)(b) would not be eligible for a territorial asylum entry permit under reg.134;

(c) a person who was permitted to enter Australia on an entry visa that was issued subject to a condition imposed under s.23(4)(b) and who has distinguished talents or business skills such as to satisfy reg. 128(1)(a)(iv)(A) would not be eligible for an extended eligibility (economic) entry permit under reg.l28;

(d) to take a case under the Migration (Criteria and General) Regulations 1989, a person who came to Australia on an entry visa subject to a condition imposed under s.23(4)(b) and whose home country was subsequently subject to a Gazetted disaster or upheaval would not have been eligible for an extended eligibility (other) entry permit under reg.129 or an extended eligibility (limited) entry permit under reg.130;

(e) a person who was permitted to enter Australia pursuant to an entry visa issued subject to a condition imposed under s.23(4)(b) and who needed to obtain a processing entry permit under reg.131 (of the Migration (Criteria and General) Regulations 1989 or the Migration Regulations 1989 (Reprint No 2)) would not be eligible for such a permit and would become an illegal entrant with all the consequences thereof upon the expiration of their current entry permit despite the fact that he or she applied for the new permit before his or her existing permit expired; and,

(f) a relative of an Australian citizen or resident who was permitted to enter Australia pursuant to an entry visa issued subject to a condition imposed under s.23(4)(b) is not eligible for an extended eligibility

(family) entry permit under reg. 127 in order to stay in Australia to care for that Australian citizen or resident should he or she fall grievously ill and need long term or permanent care which is not otherwise available.

11. Conditions under ss.23(4)(b) or 33(4)(b) might be imposed by delegates at overseas posts at a particular time or in particular circumstances when the imposition of such a condition might seem to be justified. But there may be a whole range of considerations rendering the continued operation of such a condition unjustified or undesirable (such as those set out in the last preceding paragraph) and of which the issuing delegate might not have been or could not have been aware. It is therefore extremely unlikely that the legislature would have intended that conditions imposed under ss.23(4)(b) or 33(4)(b) would have an automatic and comprehensive operation.

12. In the alternative a condition imposed under ss.23(4)(b) or 33(4)(b) has operation only during the period of operation of the visa or entry permit in respect of which the condition was imposed and the condition no longer applies in the instant case because the entry visa (which later became an entry permit) which was issued to Hatice Altintas had expired by the date of the decision under review." Schedule C Extracts from the respondents' contentions. "4. The effect of the condition is that the holder of the visa will not be entitled to be granted an entry permit after that person enters Australia. The condition is effective while the person remains in

Australia and is not merely limited to the duration of the visa or entry permit.

...

7. (i) The opening words of subsection 23(4) state that the condition is one pursuant to which visas may be 'granted'. The condition is not limited to the validity of the visa or any entry permit issued as a consequence of the visa having been issued. The express words of paragraph (b), 'while he or she remains in Australia' clarify that the condition applies while the visa holder remains in Australia whether the visa and/or entry permit have expired or not.

(ii) Where the holder of a s. 23(4)(b) entry permit applies for a further entry permit, and the person appears to be otherwise entitled to the entry permit applied for, the wording of s. 23(4)(b) and any condition imposed pursuant to that section, clarifies that the effect of the condition is that the person is not 'entitled to be granted' the entry permit applied for. The condition is to be viewed as a bar to the granting of the entry permit applied for.

(iii) The words 'in spite of anything else in this Act' in s. (4) (b) make it quite clear that the effect of the condition prevails even when the person would otherwise be entitled to be granted an entry permit pursuant to the regulations in that they have otherwise met the criteria applicable.

8. Further, it is contended that sub-section 24(4)(b) clearly gives power to impose the condition when granting a visa pursuant to the regulations. Thus the subsection relates not to the ambit of the regulations, but rather the power to impose conditions. A condition is thus imposed upon a visa not by the operation of the regulations, but by the Act. That being so the condition, based upon the Act is paramount to any of the regulations if there should be any inconsistency. In fact subsection 24(4)(b) is itself to be interpreted as being paramount to any provision of the Act to the contrary, as is made clear by the expression 'in spite of anything else in the Act'.

9. In respect of the contentions referred to in paragraph 4 of the Applicants' Contentions the following is said: It is understood that the Applicants assert that s. 23(4)(b) is not expressed as an absolute prohibition if applied. It is contended to the contrary. The wording of s. 23(4)(b) is quite clear. That which is contended for by the Applicants would lead to an absurd interpretation of Section 23(4)(b) because the Act and reg 17 authorise the imposition of the condition.

10. In respect of paragraph 5 of the Applicants' Contentions the

following is contended for by the Respondent:-

(i) if the argument asserted in paragraph 5 is valid then s.23(4)(b) would have exactly the same effect as s.23(4)(a) and would be superfluous. Attached is a copy of the original form of section 23 and a copy of extracts of the original Explanatory Memorandum. There has always been a distinction between paragraphs (a) and (b). It is asserted that it was intended that the condition imposed by (a) was intended to prevent a person from applying for a permanent entry permit whereas the condition imposed by paragraph (b) was intended to prevent a person from being granted any further entry permit whilst that person remains in Australia;

(ii) If the argument so asserted by the Applicant is valid, the words 'permanent entry permit' would have been used instead of 'entry permit'.

11. The clear purpose and effect of s. 23(4)(b) is to impose an absolute prohibition on the grant of a permit to a person who held or may have held a visa or permit containing the condition.

12. In regard to the argument outlined in paragraph 6 of the Applicants' Contentions, it is contended that:-

(i) For the argument in paragraph 6 of the Applicant's Contentions to succeed, a person must be entitled to an entry permit under regulations made pursuant to the power in section 181 and 33, despite the operation of a condition imposed pursuant to s.23(4)(b). Section 181 authorises the making of regulations that are 'not inconsistent with this Act' and the s. 23(4)(b) condition is expressed to operate 'in spite of anything else in this Act'. This wording does not support the view that an entry permit could be granted to the holder of an entry permit subject to a s. 23(4)(b) condition as clearly to grant such would be inconsistent with the direct provisions of s. 23(4)(b) which must be interpreted as being paramount.

(ii) The argument outlined in the last half of paragraph 6 of the Applicant's Contentions presumes that the regulations were enacted at the one time, and a deliberate decision was made to include a prescribed criteria such as reg. 120(b) in some regulations but not in others. In fact, the Regulations have been subject to numerous amendments that have taken place at different times.

13. In regard to the argument outlined in paragraph 7 of the Applicants' Contentions, it is contended:

(i) that this would potentially place an illegal entrant who applied for a further entry permit in a better position than a person who applied while their entry permit was still valid. The principle that any interpretation that allows a person to benefit from their own misfeasance is wrong. It would be entirely inconsistent with the nature of the law and contrary to the clear policy behind the Act. See Holden v. Nuttall (1 96411 WLR 807 and Woodcock v. South Western Electricity Board (1975) 1 WLR 983.

(ii) this interpretation would effectively render a s. 23(4)(b) condition useless as a person could wait until their entry permit expired to defeat the imposition of the condition. Such an interpretation would be inconsistent with the purpose of the provision, which is evident in the strong language used in the section: 'in spite of anything else in this Act'."

Schedule D - Extracts from the Further Contentions of the Respondent filed on 10 September 1993.

"2. ... the applicants are seeking to review the wrong decision - they should have reviewed the decision on 19 November 1991 to place the s.24(3)(b) condition in the firstnamed applicant's visa."

3. In response to paragraphs 1 to 10 of the applicants' outline of argument:

3.1 To paragraph 1 thereof:

The scheme which the applicants outline has the two central elements indicated. However, Parliament has reserved the power for officers to issue visas subject to the conditions set out in s.23(4)(a),(b) and (c). The power in s.23(4)(a) and (b) has been exercised in relation to the firstnamed applicant. 3.2 To paragraph 2 thereof:

The operation of the Regulations is subject to any condition imposed under s.23(4)(b). 3.3 To paragraph 3 thereof:

The applicants incorrectly assume, from the fact that no reference is made in a particular Regulation to the s.23(4)(b) condition, that the Regulation permits the statutory condition to be overridden. The absence of a reference does not mean the s.23(4)(b) condition does not apply in relation to an application for an entry permit of that class; it only means the Regulation is silent. Where the Regulation does refer to the s.23(4)(b) condition, it does so to highlight its existence.

3.4 To paragraph 4 thereof:

The power given in s.23(4)(b) is intended to qualify the effect of any Regulations made under other provisions of s.23. The general Regulation-making power is found in s.181 of the Act. Section 23 gives additional powers. Section 181 authorises Regulations to be made 'not inconsistent with this Act'. If Regulation 127 has (by the absence of a reference to s.23(4)(b)), the effect contended for by the applicants in the third sentence of paragraph 4 it would be inconsistent with the clear words found in s.23(4)(b) and invalid. The Court should lean against such a construction. Such a construction would have effect that all the entry permits which the applicants assert are 'not disqualifying' are invalid in the face of an s.23(4)(b) condition. 3.5 To paragraph 5 thereof:

The applicants' submission avoids the fact that by the former s.47(7), 'valid temporary entry permit' was defined as one which did not include a temporary entry permit, or visa, subject to a condition set out in s.23(4)(a) or (b), or s.33(4)(a) or (b). The Regulations make provision for the conditions in s.23(4)(a) (and 33(4)(a)) to be overcome by the applicant applying for a class of entry permit known as 'EETEP' (Extended Eligibility Temporary Entry Permits). By this means a person can seek permanent entry to Australia on the basis that the holder of an EETEP may apply for a permanent entry permit (see Reg.24(2) which determines which entry permits are permanent, and see Regs.135-137, 140 for classes of entry permit where a prescribed criteria is that the applicant hold an EETEP). The applicant could have used this 'stepping stone' if her entry permit only contained the s.23(4)(a) condition. It is only the s.23(4)(b) condition which, relevantly, prevents the applicant obtaining an entry permit under Reg.127. 3.6 To paragraph 6 thereof:

The words used in s.23(4)(b) show that such conditions are an express prohibition.

3.7 To paragraph 7 thereof:

Except in the case of Class 661 Entry Permits, the imposition of such a condition is discretionary. It is a decision which could have been reviewed. 3.8 To paragraph 8 thereof:

There is no need for such Regulations, as the condition imposed by s.23(4)(b) has this effect. 3.9 To paragraph 9 thereof:

The function of s.23(4)(b) is to operate as an automatic and comprehensive prohibition. If such a condition is imposed, there is no need for it to be referred to in the Regulations. Where it is referred to in the Regulations, it is surplusage. 3.10 To paragraph 10 thereof:

The condition imposed on an entry visa under s.23(4)(b) is imposed with the knowledge of the person. The person elects to accept the condition by journeying to Australia and receiving an entry permit with like conditions: s.18. If the events outlined in the applicants' submissions occur, the non-citizen becomes an illegal entrant at the expiry of the entry permit and is liable to deportation in accordance with the powers given under the Act. The consequences of the condition would have been known to Parliament. The imposition of the condition is a reviewable decision.

Where the words of the statute are clear, the perceived harshness of the operation of a statute should not regulate its interpretation. Parliament knew there could be harsh results from the imposition of an s.23(4)(b) condition. By the exclusion of such conditions from ministerial review, following review by the IRT (Migration Act s.131(7)) and the limitation on a Minister's power to set aside internally-reviewed decisions to grant an entry permit with the s.23(4)(b) condition (Migration Act s.115(11)), Parliament clearly knew the consequences of imposing such a condition.

The papers reveal that the applicant was granted the visa upon a successful application to MIR0 under the Migration (1989) (Review) Regulations Reg.2A(1), 2(1), 'internally reviewable decision', and Schedule 2, Part 26: see Exhibit 'PDBB-1' under the heading, 'Background Information - Nominee' in the second paragraph:

'On 19 September 1990 (the applicant) applied for a Close Family Visitor Visa to Australia to participate in a circumcision ceremony for her three sons. The review application was lodged with MIRO subsequent to Ankara's refusal to grant her a visa. MIRO overturned Ankara's decision and (applicant) arrived in Australia on 12 December 1991 on a Close Family Visitor Visa which had an s.23(4)(b) condition attached to it.'

3.11 To paragraph 11 thereof:

The intention of Parliament is to be discerned from the words used.

3.12 To paragraph 12 thereof:

The respondent contends that this submission would mean that persons who became illegal entrants would thereby obtain an advantage: they would no longer be subject to any of the conditions under which they obtained entry to Australia...

...5. Relief:

The respondent agrees that, in the event the Court is satisfied relief should be granted, the decision be remitted to the decision maker. The respondent does not accept that there are no matters for the respondent to decide. The appropriate order is for the matter to be remitted to the respondent, to be determined according to law."

Schedule E - Extracts from the Applicants' Reply filed 24 September

1993.

"1. In this reply the applicants' outline of argument dated 3

September 1993 is referred to as 'the applicants' outline' and the further contentions on the part of the respondent dated 9 September 1993 are referred to as 'the respondent's further contentions'.

2. In reply to paragraph 2 of the respondent's further contentions the applicants say that the decision sought to be reviewed is the decision dated 7 July 1992 to refuse to grant the firstnamed applicant an extended eligibility

(family) temporary entry permit pursuant to reg. 127 of the Migration Regulations 1989 (Cth) ('the Regulations'). As the undisputed facts show, that permit was applied for in circumstances which arose after the first applicant entered Australia on her former entry visa. Until those circumstances arose it was neither necessary nor possible for the firstnamed applicant to apply for an extended eligibility (family) temporary entry permit under reg. 127 on the particular grounds upon which she relied. According to the circumstances known to the delegate in Ankara who issued the firstnamed applicant's former entry visa, it may well have been appropriate to impose a condition under s.23(3)(b) of the Migration Act 1989 (Cth) ('the Act'). Judicial review now of the decision to impose that condition would be impractical and not involve a consideration of the real issues in the present case. Further, it is not sensible to suggest that the applicants should now seek to review the decision to impose that condition when the circumstances upon which the firstnamed applicant made her application for the extended eligibility (family) temporary entry permit arose after the imposition of the condition. In the alternative, it is irrelevant to the issues raised in the instant case whether or not the applicants might be able to seek judicial review of the decision to impose the condition.

3.1 The applicants agree that the power in s.23(4)(a) and

(b) of the Act has been exercised in relation to the firstnamed applicant as contended in paragraph 3.1 of the respondent's further contentions. They say that the fact that Parliament has reserved the power for officers to issue visas subject to the conditions set out in ss.23(4)(a), (b) and (c) must be understood in the context of the two central elements of the statutory scheme (as identified in paragraph 1 of the outline and conceded by the respondent in paragraph

31. of the respondent's further contentions). The consequence of understanding the power in that context is that the power to impose the condition is to be read subject to the power in s.23 to make regulations prescribing criteria and the provisions in s.24 which require a visa to be granted to a person who satisfies such criteria.

3.2 Paragraph 3.2 of the respondent's further contentions fails to address the issue raised in paragraph 2 of the applicants' outline. Paragraph 2 seeks to demonstrate that Parliament had two options open to it as to how the new statutory scheme should deal with the fact that conditions might be imposed under s.23(4)(b) (in relation to visas) or s.33(4)(b) (in relation to entry permits) of the Act. The succeeding paragraphs of the applicants' outline seek to show that the new scheme has always been based on the option specified in paragraph 2(a), which suggests that the legislature did not intend that the imposition of a condition under s.23(4)(b) or s.33(4)(b) in respect of one visa or permit would be automatically disqualifying in relation to an application for another and did not intend the regulation making powers in s.23 or s.33 to be qualified by reference to the condition imposing powers in s.23(4)(b) or s.33(4)(b). 3.3 The applicants confirm that reg. 126 should not be included in the 'disqualifying' sub-section of the Migration (Criteria and General) Regulations 1989 section of paragraph 3 of their outline. The applicants note that in paragraph 3.3 of the respondent's further contentions the respondent does not dispute that the regulations identified (by way of example) in paragraph 3 of the applicant's outline as specifying or not specifying the disqualifying condition have been accurately described in that paragraph and further does not dispute that the choice to specify or not specify that condition as disqualifying is deliberate. The respondent argues that the purpose of specifying or not specifying the condition is to highlight the existence of the condition. This is extremely unlikely. If the respondent's contentions are correct then a condition imposed under s.23(4)(b) or s.33(4)(b) is automatic in operation and it is not possible to make regulations which cut down or qualify the operation of such a condition. It follows that it would be completely unnecessary to 'highlight the existence' of the condition. The more likely purpose of specifying or not specifying the condition is that the regulation-maker has exercised a conscious choice with the intention that the regulations which do not specify the condition will create visa and permit categories which will be available to a person who held or holds an earlier visa or person containing the condition. It is very unlikely that a scheme which has operated on this basis without controversy since 1989 would have been based on a fundamental misapprehension as to the operation of s.23(4)(b) and s.33(4)(b) and the width of the regulation making powers.

3.4 The applicants confirm that in paragraph 4 of their outline the reference in line one to s.24 should be a reference to s.33 and the two references in line three to s.34 should be references to s.33. If, as contended in paragraph 3.4 of the respondent's further contentions, the power given in s.23(4)(b) of the Act was intended to qualify the effect of any regulations made under the other provisions of s.23 then express words would have been used. In fact clear words are used in s.23(4)(b) only insofar as that section confers a power to impose a disqualifying condition. Clear general words are used in s.23 (and s.33) to confer power to make regulations and these are not expressly qualified by reference to s.23(4)(b) (or s.33(4)(b)). The applicants' construction is not inconsistent with the Act and therefore conforms to the requirements of s.181 because that construction recognizes both the power to impose conditions under ss.23(4)(b) (and 33(4)(b)) and the power to make regulations which act upon the exercise of the power to impose such conditions. The applicants' construction reserves to the regulation-maker the power to make appropriate regulations applying to persons who hold or held visas, entry visas or permits having a disqualifying condition under s.23(4)(b) (or s.33(4)(b)). It is the respondent's construction that is inconsistent with the Act because it is both contrary to the statutory scheme and the width of the regulation making powers in ss.181, 23 and 33 of the Act.

3.5 Paragraph 3.5 of the respondent's further contentions

does not address the main contention advanced of paragraph 5 of the applicants' outline. That contention is that the Act has never expressly prohibited the grant of a further entry permit to a person who holds or held a visa or entry permit having a disqualifying condition. Nor has the Act ever expressly limited the regulation making powers in ss.23 and 33 so that regulations could not be made permitting the issue of a further entry permit to a person who holds or held such a visa or entry permit (see paragraphs 5(a) and (b) of the applicants' outline). The respondent's further contentions deal with the operation of the EETEP regulations which are not directly apposite to this point. Further, the applicants contend that the legislature has demonstrated its capacity expressly to prohibit the grant of an entry permit to a person who held a visa or temporary entry permit subject to a disqualifying condition: see ss.115(11) and 137(7) which apply in the special circumstances of internal and tribunal reviews. These provisions would not be necessary if the respondent's further contentions were correct because, according to those contentions, a condition imposed under s.23(4)(b) or s.33(4)(b) is automatic in operation. The presence of the limitation on the Minister's powers in ss.115(11) and 137(7) illustrates that the prohibition contained in those provisions is not provided for elsewhere in the Act and that, but for the limitation in those provisions, the Minister would have had the power to grant a permit to the person after the internal or tribunal review notwithstanding that the person held or had a visa or temporary entry permit that was subject to a condition imposed under s.23(4)(b) or s.33(4)(b). 3.6 The applicants dispute the contention in paragraph 3.6 of the respondent's further contentions that the words used in s.23(4)(b) show that conditions are an express prohibition. The words in ss.23(4)(b) (and 33(4)(b)) make provision in relation to the conditions that might be imposed on visas and permits. They do not expressly qualify the regulation making power or the visa or entry permit granting power, and certainly do not make express provision limiting the operation of the statutory provisions in relation to regulation making or visa or entry permit granting. The respondent is seeking to squeeze out of ss.23(4)(b) (and 33(4)(b)) a general prohibition when such a prohibition, if it had been intended, would have been created by express words, as advanced in paragraph 6 of the applicants' outline and paragraph 3.5 of this reply.

3.7 In reply to paragraph 3.7 of the respondent's further contentions the applicants refer to and repeat the contentions set out in paragraph 2 of this reply. 3.8- Paragraphs 8 and 9 of the applicants' outline 3.9 draw on the previous paragraphs of the outline, which identify the central elements of the statutory scheme, and offer a coherent explanation as to the function of ss.23(4) and 33(4) of the Act in that scheme. Paragraphs 3.8 and 3.9 of the respondent's further contentions do not refute the explanation of the scheme offered by the applicants and merely repeat the respondent's main contentions. The one exception is the contention in the last sentence of paragraph 3.9 that the reference to the disqualifying condition in particular regulations is surplusage. It is most unlikely that the regulations would use surplusage with such frequency and consistency as is evident from the list of regulations in paragraph 3 of the applicants' outline.

3.10 In paragraph 3.10 of the respondent's further

contentions it is assumed that the construction for which the respondent contends would have the consequences specified in paragraphs (a) - (f) of paragraph 10 of the applicants' outline. The respondent argues that 'it would have been known to Parliament' that these consequences would follow from the imposition of a disqualifying condition under ss.23(4)(b) or 33(4)(b) of the Act. The applicants contend that the respondent's argument is based upon a misapprehension of Parliament's intention. Paragraph 10 of the applicants' outline seeks to identify the true intention of the Parliament by spelling out (accurately it is conceded by the respondent) the consequences of the construction of the respondent and then asking whether or not it is sensible to conclude that Parliament would have had the intention of enacting legislation with such harsh and impractical consequences. The applicants submit that as soon as the consequences set out in paragraphs (a) - (f) are admitted then it must follow that Parliament would not have intended ss.23(4)(b) and 33(4)(b) to operate in the manner contended by the respondent. If Parliament did have the intention contended for by the respondent it would have provided for such consequences expressly and directly in provisions separate from or different to ss.23(4)(b) and 33(4)(b) and not through those sections the language of which is quite indirect from the point of view of expressing such an intention. The words of ss.23(4)(b) and 33(4)(b) are clear only insofar as they confer power to impose a condition on a visa or permit, the existence of which power is not disputed by the applicants. The provisions do not in terms do anything else, and certainly do not make clear provision in the terms contended for by the respondent. The so called 'perceived harshness' to which the respondent refers in paragraph 3.10 are the extraordinary and absurd results of the respondent's interpretation as set out in paragraphs (a) - (f). These consequences are not merely hard cases, but practical illustrations of what Parliament would not have intended to happen without using express language.

It is assumed that the reference to s.131(7) of the Act in the second paragraph of paragraph 3.10 of the respondent's further contentions is a reference to s.137(7). In reply to the contentions in that paragraph the applicants say that ss.115(11) and 137(7) occupy a special place in the Act. They deal with particular Ministerial action following internal and tribunal reviews. They limit the powers of the Minister to make a favourable decision in relation to an applicant who has not been successful upon such an internal or tribunal review. In specifying such a limitation the Act expressly admits of the possibility that, but for the limitation, the Minister could have granted a permit to such an applicant despite the fact that the applicant might hold or have held a visa or permit subject to a disqualifying condition under ss.23(4)(b) or 33(4)(b). The powers which the present applicant is seeking to have invoked and which the respondent denies are not the powers of the Minister under sub-s.115(5) or (6) or sub-s.137(1) or (2) but the power of the Minister (or the Minister's delegate: see s.176(1)) under s.34 to grant an entry permit. This power is not limited in the manner that the powers of the Minister are limited under ss.115(11) or 137(7). The fact that the powers of the Minister are limited under ss.115(11) and 137(7) but not under s.34(3) is explicable on policy grounds. The powers of the Minister under the former sections only arise where an applicant has been unsuccessful on an internal or tribunal review and such powers are only exercisable where the public interest requires. The powers are to make a decision more favourable to the applicant than was made on the internal or tribunal review. The legislature has apparently chosen to limit the powers of the Minister in such circumstances by reference to whether the applicant held or holds a visa or a temporary entry permit that was issued subject to a disqualifying condition. The applicants contend that the third paragraph of paragraph 3.10 is not relevant.

3.11 The contention advanced in paragraph 11 of the applicants' outline was that any construction of ss.23(4)(b) and 33(4)(b) of the Act needs to take into account the fact that (as Parliament is taken to have known when it enacted the legislation) conditions of the kind specified in those sections might be imposed by delegates at overseas posts at a particular time or in particular circumstances when the imposition of such a condition might seem to be justified but that in different circumstances the continuing operation of such a condition might be unjustified or undesirable. Paragraph 3.11 of the respondent's further contentions does not address this point and refers to the words used by the Parliament. The applicants say for the reasons hereinbefore set out that those words do not make express provision for the consequences of the imposition of a condition under ss.23(4)(b) or 33(4)(b).

3.12 The applicants join issue with paragraph 3.12 of the respondent's further contentions. ... ... 5. The applicants join issue with paragraph 5 of the respondent's further contentions."