Bedwell, G.P. v The Minister for Immigration, Local Government & Ethnic Affairs

[1993] FCA 378

General dlstr~but~on not reauired

IN THE FEDERAL COURT OF AUSTRALIA	1 1
VICTORIA DISTRICT REGISTRY	1 VG 181 of 1992
1
GENERAL DIVISION	1

BETWEEN:

GRAFTAM PAUL BEDWELL

Applicant

THE MINISTER T;OR IMMIGRATION,
LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Respondent

MINUTES OF ORDER

3 June 1993	KEELY J.
THE COURT ORDERS THAT:-

PRINCIPAL

1. The appl~cation be d~sm~ssed.

1. The applicant pay the costs of the respondent.

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

FEDERAL COURT OF
AUSTRALIA

General distribution not reaulred

IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	) VG 181 of 1992
)
GENERAL DIVISION	)

BETWEEN.

GRAHAM PAUL BEDWELL

Applicant

THE MINISTER FOR IMMIGRATION,
LOCAL GOVERNMENT AND ETHNIC AFFAIRS

Respondent

REASONS FOR JUDGMENT

3 June 1993 KEELY J.

Mr Graham Paul Bedwell ("the apphcant") has apphed under the

Admi~tisnative Decisiorls (Judicial Review) Act ("the Act") for a review of certain	decisions of the respondent's delegate ("the delegate") and, in particular, a decision
refuslng an application for an entry permit ("the decision"). It was common ground that, in the circumstances of the applicant, it was necessary for him to meet, amongst other things, the requirements of sub-regulation 35AA.(l)(c)(lv) ("the sub-regulation") of the Migratiorz Regzilations. The sub-regulation relevantly prowded as follows:

" 35AA. (1) The Minister may, in spite of any provision of these Regulations except . . . grant a temporary entry permit to a person who is an illegal entrant if:

(iv)       the Minister is satisfied:

(A) that the person became an illegal entrant because of factors

I beyond hls or her control;

. . .

The applicant's counsel contended that the temporary entry permit, granted

on 27 January 1990, expired on 27 January 1991, whlch was a Sunday. The followmg

day being a public holiday, he accepted that the applicant's applicat~on for a further

entry permit should have been lodged no later than Tuesday, 29 January 1991. The respondent contended that the orlglnal entry permlt explred on 26 January 1991 and that the appllcant was requlred to apply for a further entry permit no later than 25 January 1991, being the last working day before its expiration. However, it is not

necessary to determine whether that submiss~on of the respondent 1s correct because it is common ground that the appllcant became an "illegal entrant" no later than 29

January 1991 and that hls application for a further entry permit was not lodged until

30 January 1991.

On 23 January 1992 the delegate made an inquiry by telephone of the applicant as to why he "had lodged his application for a further entry permit late". The delegate then made a similar inquiry of the applicant's then solicitors. Their

letter to the Minister's department, dated 31 January 1992, was marked "Attention

John Giaveris" (the officer who made the decision on 2 March 1992 as the Minister's delegate) and included the following:-

RE: GRAHAM BEDWELL
FILE NO.: V 911587

With reference to our telephone conversation regarding your request for a statement explaining why the abovenamed's apphcation was lodged three (3) days after the expiry of his valid visa, the following explanation 1s offered.

Due to an innocent oversight by our lodgement clerk, the application was not lodged pnor to the vlsa expiry date, which expired Sunday 27th January 1991. Even though the application was lodged on 30th January 1991, it was not intentional nor was it a prejudice (sic) act toward the Department.

We sincerely request that thls explanation be accepted by your

Department as it was a mere oversight by the lodgement clerk.

The respondent's department sent to the applicant, on 2 March 1992, a letter

informing him that his application for a further entry permit had been refused and

enclosing a copy of the "decislon record" to help hlm "to understand the reasons for
ths decision." The decislon record contalned the tollowng passage:

" The major lssue to be considered in t h ~ s case is whether the applicant became an illegal entrant as a result of factors beyond his

forward (by letter dated 31/1/92) by the applicant's solicitors and have	control. I have considered the reasons for the late application put
decided that they do not constitute factors beyond the applicant's control. The applicant's solicitors were acting on behalf of the applicant. "

I accept the subm~ssion of the respondent's counsel that the delegate considered the matters m the letter of 31 January 1992 and the responses to his inquiries by telephone on 23 January 1992. I also accept his submissions:

1. that the sub-regulation did not confer a discretionary power;

2.            that the power was to grant a permit only if the Mlnister was satisfied, amongst other thmgs, "that the person became an illegal entrant because of factors beyond his . . . control";

that the matter (2 above) as to which it was necessary that the Minister be
satisfied was a question of fact; and

that there was no error of law in the reasoning of the delegate m his
approach to the sub-regulation.

The respondent's counsel polnted out that the delegate knew that one form was slgned on 21 January 1991, others were signed on 22 and 26 January 1991 and the employer's nomination was dated 30 January 1991 - yet each of those forms was not lodged untll 30 January 1991. I accept the submission of the Mmlster's counsel that all of that material, as well as the solicitor's letter dated 31 January 1992, was

before the delegate, who had also spoken on the telephone to the applicant's solicitors and also to the applicant on 23 January 1992.

The material before the delegate d ~ d not include any statement, oral or

written, as to whether the applicant at any time reminded his then solicitors of the fact that his existlng entry permit expired on 27 January 1991; in h s affidavit filed in

the Court he stated that he "was aware that [hls] temporary entry permit would expire on Sunday, 27 January 1991". The fact that various forms were signed on 21, 22 and 26 January 1991 was relevant, hawng regard to the absence of any material suggesting that he had ever reminded his solicitors of the expiry date of hls entry permit. Further, the applicant was telephoned on 29 January 1991 by his then solicitors and

"asked to attend . . . to sign documents . . . on the following day [30 January 19911". There was no matenal before the delegate to suggest that the applicant in that

conversation on 29 January 1991 asked h ~ s then solicitors to ensure that his application for an entry permit was lodged on 29 January 1991 Instead of waiting until the following day.

In my oplnlon, it was open to the delegate to reach the conclusion, on the

material before him, that he was not satisfied that the applicant became an illegal
entrant because of factors beyond hls control.

The appllcant's counsel also sought to rely upon the follow~ng passage from

the "decision record" (quoted earller in these reasons):-

" I have considered the reasons for the late apphcation put forward

(by letter dated 31/1/92) by the appllcant's solicitors and have decided

that they do not constitute factors beyond the applicant's control. The applicant's solicitors were actlng on behalf of the applicant."

He submitted that the delegate in that passage was saying that the stated "reasons for

the late application" dld not "constitute factors beyond the applicant's control" because the "solicitors were acting on behalf of the applicant" i.e. that they could not, as a matter of law, constitute such factors. The same polnt was made by the applicant's counsel in his written contentions of law where he wrote:-

"The respondent's delegate erred in concluding that the applicant was bound by the acts of his agent (the former Solicitors) which they performed negligently and outside the scope of their instructions and authority. For the Solicltors to so act is negligence."

I am unable to uphold that submission. In my opmion, on a fair reading of the

delegate's "deaslon record", he did not "conclude that the applicant was bound by the

acts of his agent (the former solicitors)"; the passage relled upon by the applicant's counsel did not mean that the delegate acted on the basis that the late lodging of the application was a matter whlch could not be beyond hls control because it was the default of the solicitors acting on hls behalf.

The appllcant's counsel also submitted that the sub-regulation "is of an amelloratlve nature to blunt the harshness of the Migration Act and Regulation, and should be interpreted accordingly". Assuming, wlthout deciding, that that submission is correct, m my oplnlon the plain meanlng of the sub-regulat~on is that the Mimster,

before exerclsing the power conferred by it, must be "satisfied that the person became

an illegal entrant because of factors beyond hls . . . control". The delegate was not satisfied. Counsel very properly referred the Court to S. 85 (l)(c)(i) of the Trade

Practices Act I974 where the words "cause beyond the defendant's control" appear.	Those words do not assist the applicant because of the words preceding them. The
relevant part of the provision reads:-

" 85(1)	. . . ~t is a defence if the defendant establishes: .
(C)	that:

(1) the contravention . . . was due to the act or default of another person, . . . or to some other cause beyond the defendant's control: . . ."

I am also unable to uphold the appllcant's submission that the decision was

"unreasonable" within the meaning of Associated Provirzcial Picture Houses Ltd. v.

Wednesbury Corporation [I9481 1 KB 223.

The application w~ll be dismissed and the applicant ordered to pay the

respondent's costs.

I certlfy that this and the preceding

six (6) pages are a true copy of the
reasons for judgment herein of

the Honourable Mr Justice Keely.

Dated: 3 June 1993

Counsel for the applicant:	Mr T. V. Hurley
Solicltor for the applicant:
Counsel for the respondent:	Mr K. H. Bell
Solicitors for the respondent:	Australian  Government
Solicitor
Date of hearing:	1 June 1993
Date of judgment:	3 June 1993