Booth, Russell Harold v Minister for Immigration & Ethnic Affairs

C A T C H W O F n S

Admlnlstratlve La3 - judicial review - lnmlqratlor - fnzrants

ararted temporary entry pzrmiC, for 3 months - alw3y-j lntendlnq to

stay permanently notwlthscanding expiry 3f permit - applir2klons

for further permits refused - whether "strong ccrpassloqare or

humanitarian grounds" for grant of permits - whether richr; to,

and clenial of, natural- justice

- "legitmate expectation".

_ _

Administrative Declsions (Judicial Review) Act

lQ77 55.5,

6 . 16.

Migration Act 1953

SS. 6. 6B. 7.

RUSSELL "OLD

BOOTH, BA?.B>RA JEAN BOOTH AND LEE WJSSELL BOOTH, a

minqr, bv his r.ext friend. 8>3.BAR-A

J2F.N BOOTH v. THE M??iTST'E', FOR

TWTGRATION AND

E T r I N I C P.FF?.Ii?S

ORS.

No. NSW G344 of L984

McGregor J.

Sydney

RUSSELL WXOLD aOoTH, R.;IRBARA

JEAN BOOTH AND LEE RUSSELL BC)OTH a minor. bv his next

THE MINISER FOR IMMIGRATION

AND FTHirIIC AFTAIRS

First Respondent

AIm :

WILLIAM MacKINEJON

Second Respondent

AND:

WILHELMUS

VMJ

H E R N M D E

Third Respondent

MIMTJTE OF OFDER

JUDGE M-LXING ORDER : McGregor J.

DATE OF ORDER:	: 6 June lc135
WERE [.LADE	: SydneTJ

THE COURT OFDERS THAT:

1. The application 1 s disnlssed.

2. The applicancs are 50 pay the respondents' cnsts.

GE!?ER.AL

DIVISION

BETWEEN

Applicants

THE MINISTER FOR IPfMIGRI1TIOIJ

dND

F'NIC

X F A I R S

First Respondent

AND

WILLIAN MacXIWNON

Second Respondent

AND

WILHELMUS T7AN HERWXIRDE

TQird Respondent

McGrecor J.

m: 6 Zune 1985

R E L S O N S

FOF

SVDGMEIKC

:..lmlnist!-L-rlve

W r l s i n n s

l . i ~ l l : ~ a l

G e x : ~ = w l >.:L

1977

:ne

AUJR

Act), applled for an order \ z f review of the decislcn of iXTLHELL.lIJS

V.UJ	HZRPTAARDE (thlrd respond5nt) made on or about 7 5zpcember

1934 that the

applicanTs' aplication for

entry

permlts be

refused.

The application souckt also to revlew conduct ln which

the respondents,

viz. the

YINISTEIi

FOR IMMIGRATION AND ETHNIC

AFFAIRS (the Minister);

the first respondenc. and

WLLIAM

_ _ d . .

MacKINNON [the

second respondent) and the third respondent

are

--."e

enqaqinq, o r proposing to enqaue in, by ;ray of enforcement of the

decision of -the third respondent.

Zelevant sections of the Mirrration Act

1958

(the Act)

lnclude -

"5.(1) In this

Act.

unless

the

contrary

intention appears:-

....

"entry permit" means a permit issued under section

six of thls 4ct:

...

"temporary entry

pernnlt" means an entry permit

referred to in sub-seccicn	( 6 ) of section	SIX of
thls Act;
....

6.(1)

ir. non-cltlzen who, not beinq the hQlder

of an entry

Permit

tnat

force.

enters

Australia chercupon	becomes	a	prohiblced
non-clcizen.

(1)

Pm o f f ~ c ? r may, in accorciance

wich this

secc ion and at -.?-F r q u e s c or with he consent nf a

- --,_-

non-cLrlzo?.	..	. m _	r.2	che n~n-c~tiz?r	an entry
permls.
....

( 5 1

An -.ncL-:r permir: may

granted. c o 3

non-citizen either upon his arrlval in AustraL;?. or, sublect to section 6 A . after he ?.as entered

Australia (whetnet- or not that entry

took plac?

before, or	takes place after. rhe convr-Trenent	r-f
this Part).

( 6 ) Fn entry permit that 15 intended C O operarre

as a	temporary entry permit shall be expressed T O

authorlze the

person to whom it relates

to remain

in Australia for

a specifiea p e r i o d only, and such

a permit may be uranted subject

co conditlons.

_-__-.

__5-

. .. .

..-

( B j - G A . child under the age

of sixteen years who

enters Australla in the company

of, and =nose nape

is included l n the

passport

of, or

any

other

document of identity of, a parent of the child

shall be deemed to be included In any entry permit

granted to that parent before

r:he entry of that

parent

and

written

on that

passport or other

document of identity, unless che contrary

is scated

in the entry permit.

6A.<1) An

entry permit shall not be qranted to

a non-citlzen after

his entry into Australia unless

one or more of the following

conditions

1 s

fulfilled in respect	of him, that is to say	-
....

(e)

.he is the holder of a temporary entry perrnit

which is in force and there

are

stronq

compassionate or

humanltzrian ?rounds fo r rhe

qrant of an entry permit C O him.

....

(8)

In this section, a reference to an entry permit other than a temporary entry permit.

permit	shall	be read as a reference to an ?ntr!7
. . .

.3.

force only

C,&GT the *:<.plratlon

or cancel lAclon t3f

the e::lscinu sz:~? pernlt.

( 3 )

Upon

the expiration or cancellatlcn of a

temporary

? n t r y

permit, the person who

was

the

holder of the

p rnit

becones

a prchlbiced

non-citizen 11-lless a further

ntry

permit

applicable

hlm

comes

into

force

upon

that

expiration or cancellation."

Facts and matters related to the applicants' travellinu

to Australia

and'.thelr

activities since are set out in the

affidavit of- the male applicant dated 29 March

1985

which the

female ;-plicant in

her affidavit adopted

as true and correct.

The male

applicant

also

save vlva voce

evidence

cross-examination.

In or about May or June

1980 (but it may have been

April) the male applicanr; made

application for migration to

Australia in London. Subsequent to the application and in or

"about June to September

1980" he claims to have received a

newspaper cilpping from

a frlend then llving

in Penrith, New

South Wales. H.- sald. in h16 affidavit upon

this toplc -

"I state. that ssbbsequent to the Application for friend, then 11nng In Fenrith. The newspaper

cllpping

referred to the R.O.S.P. Schere. I

understood from the newspaper clipping

thar. any

person who was In Australla as a visitor could.

applp for iesldence uncier R.G.S.P.

I recall that

there was

no mei?t:lon in the said cllpping

of any

conditlons of arrlval."

F:? made no inaulries ?.hut ch? contents

of the nec;sD,aper clippinq

I , -

- - I

I n Enclan2.	K.	;	. .L . :	xeans R e u . : l a r ~ s a c ~ o ~	G? Status "rorrr?.rnre.
m

I?.? malt +??L~c?...n: - .i~';led

that

afr?r a r r l - a l het?

h? was roid

tnat the newspaper estracr

~ - 3 s referrlng to this srheme

It 1 s

agreed becween the partles

chat R.O.S.P.

j_ld not z???ly to

the applicants but only to persons who were	In Aus~ralia	blfore 1
January 1980.

In cross-eraminatron he spobre of his intentinn rhus -

, -

.__-.

- *

"Did '-'you--

yourself make any lnquiries

che

representatives of the department in England?

---- N6s-I did noz.

-At some time

after receivinu the advertisement

you

and your wife declded to come to Australia, did not

you?----That is correct.

At the time

you decided to come to Australia you

decided

come

here

permanently,

d ld

not

you?----That is correct.

.....

At the time

you made your decision to come to

Australia after

receivmq that a&vertisement.

you

had no intention of returnlng to England, did

you?----Not with the - that is correct.

no."

On about

28 November 1950 the male applicant filled in and siuned

application to vislt Australia. referring

h-rrself and

f amily . He knew tha'. it was not automatic that- he xould be granted permission - that depended upon ins answers on t.i-:;.e form. On it he scated the purpose of the nsic as "holiciay;", Length of

stay "3 months";

thar: he had made

no previous application to

enter Buscralia:

thar: if granted a visitor's v15a. he and hi5

fanilp would travel

to Australla on fully paid return passage

tickets - o r wlth tlckets for travsl

to m onGja1-d destination

outside Aus-ralia; thst

he and h1c fax1l-J ;muid nor, 2ncage 11,

employment In Austr3lia. :.mdld nor se?;: EuLhorlcy to settie 17

D .

P.usr::tlia

and would Le3-,;5 at ci:e ~ n d

of L.'?$ authnrlsed vislt

perlxi. Before

l e a v l n u Encland the

applicants

sold cheir

house

and 3rranged for thelr furniture

C O be shlpped to hstralia.

Thursday 11 Decem3er i58G chey arrlved in hustralls.

Prior to

arrxval and whilst stzll en route, Incoming Passenqer Cards were

completed in a way thar, indicated

that

they

were

visitors

intending to stax.3 months on holidays.

The portion on the

.. .

documents headed "Migrating

to hustralia" was struck out.

arrival, the family passport was stamped with a Temporary Entry

--=e- .

Permit (m)

which includes the followinu

"Permitted to enter with temporary entry status	on
11 Dec 1980 to remain for chree months

unt i 1

Employment prohiblted without written permission	of
an authorised officer."

Soon after or about the time

of his arr lval . employment %as

arranged for

r;he

male applicant. On about Monday,

15 December

1980. i.e. some 4

days followlnq his arrival, the male applicant

wsnt to the 0-fflces of the Departnenc

of Imnluratlon and Etnnlc

Affairs

(the

D e p a r c r n r ~ r : . as

now

call?d,

make

application under

R.O.S.F.

He was informed that

he was not

entitled under the amnesty: it

did not apply to hls family.

th3t Monday

or later that

week

he entered into the ernploynent

arranged. He has been employed ever since. The TEP explred about l1 March 1981. Fie agreed ln cross-e:<amlnar,ion that he knew at the tlme of e x ? l r ~ r of the TEP he v a s nor; legal ly 2ntitled to

scay in Aluscral.-a.

The applicants possihly weye

visiced bp

re;resenc?.:Iv?9

$7:

- D??arcv'en: ;n OccoS.r?r 1381.

h or about

Narch 1982 deparcmental officers r ade a further visi:

to the

applicants' home. Thereafter	he wrote on b e k l f of hinz-elf apd
hls wife a letter in G;hlch he	said he was "appealinq . . . . agalnst

the decision you have made that we Fust return home to England as soon as possible". Thls 1er;ter sec ouc fully tile circuastances

of his

earlier applications, his

travel to Auscralia. hls work

here, the family's-livmg first of all in a rented unlt and later

- *-.

-r

- L

their purchase

. of-a' house into which they moved in March 1981.

-=c-&=;-.

the arrival of their

furniture in April 1981. and that

he had

. ..

arranged an appointment with his local M.P. for help and advice. Correspondence between the Department and Mr. R. Free, M.P.. the

Member for Nacquarie, followed.

In thls correspondence and 3y

. ..

letter

dated 1 Sepcember 1982 from

the

then

Miniscer

for

Immigration, Mr.

Free was informed that the applicants

were

prohibited

immigrants;

that

unless

they

departed

Australia

within 14 days he would

have no alternative but to enforce their

departure.

In a letter dated 9 September

1982, Mr. Free wrote

that the applicants had been in couch followinq the Hinister's

advice of 1

September that the applicants leave Xustrzlia within

14 days.

He sald in

his letter that their

son,

Lee, had been

critically ill in the Prince of Wales Children's Hospltal; and

sought "your sympathetlc conslaeration In allowing th?m to scay" .

Bp a

letter of 1 9 October

1982 the Minister told Mr. Fre? thac

the child had been discharged from hospital, his

tconditlon was

now stable, he

had rocurned to school and

he was &l?

to travel

by air: that

t*? apslicsnts TpuSL- mal..? lzmsdlate arrano?ments :Q

leave wickin the

n?xt 16 days.

By l?:c?r of 9 Novpnber 1982 ? ! F .

E .

Free 1-1lcated thar; wh2lz.t cn? 3ppllsants w ~ r e

prepared to leave

as dlrrlcted, they

s o u u n t an

e:ctenslon of tire

of 3

months eo

allow them to

se l l

thflr

FrJperty and make arranusments in

Enqlad.

The answer eo thls bp the

Mmiscer In a letcer which

may have been dated 6 Ejrcember 1982, was eo

the effecr; that

zne

MiniscPr could not

accepr: that che applicants needed to

stay any

- ._

longer; that

if-.th&y die not make immediate arrangements to

- _

leave they would be deported.

G - 7 - .

In the meantime.

a letter of 15 July 1982 from the

Department addressed to Mr. Booth referred to the fact that the applicants had sought to appeal against the decision that thPy

should not

be granted "resident status" in Australia and nored

that no

formal application for the grant

of resident status had

been lodged.

The applicants were told

to make arrangements to

depart Australia before 31 July

1932 failing which

it would be

necessary to instiuate deportation proceedings.

The

applicants

stlli made no attempcs

TO dzpart. o r preDare f o r decarture from,

kustralla.

Janua-p 1983.

s o l i c l t g r s

actlnu

the

applicants' behalf. wrote

CO the Reuional Ijirector of Miuratlon

thac they were lnstructe2 to make applicatlon

€or a grant to the

applicants of resident stztus.

The letter s e t out fuliy the

basls of the application includlng

that there were

"strong

compassionate and huxanitarlan grounds", as referred to in

s.6A( l! (e) of the Act ?c,r the grant #of an enLL-3- permit. Details

of ;ne basis upon :%I:: YalS applicatlon was rn:d.- were s ? t ouc in

L -

this letter.

1F:rSY

,If 15 Jcn? 1333 fror the Departmenc, Lne

sollcltors were Informed, inter alii.

that the appli:mLs =?re

prohibited innigrants and as such, liable to deportatlon; that they would prevent such action being txen against them only by making immediate arrangements to leave Austrslla. The letter

also stated that the

applicants earlier had souoht to have tneir

stay in Australia extended and their request was refused; that

- _

by the sollcitors were considered

by the

the representat$o-ns

__<-.

= -.

Department's

office

ln Canberra xhlch maintained the decision

L -=<-?.?--

that the applicants

might' not remain here.

The letter in its

concluding paragraph

r?ad thus -

"The Booths

a r e prohibited immlurants and, as such,

liable

de7ortatlon. Tney will prevent

such

action being taken against

them only by maklng

immediate arrangements

leave Australia. They

should. call

at thls office within seven days to

advlse me of their departure plans and to lodue.

with payment of the

prescribed

fees, the

application

forms

for

further

temporary

entry

permits that are enclosed."

On 18 July 1983 the solicitors wrote stating that they "enclose applications for further entry permits in respsct

of both Mr. and

Mrs. Booth".

II cheque for the

Prncessirq

fe?s vas

also

forwarded.

For sane reason there

w a s delay in

ansxerinu this

letter,-

A letter dated 12 June 1984

from the Deparcment stated

(inter alia) -

pcur

c:nmenrl

' r jn less . . rney

xlll he

--n:z~cu:lng

approprllte ~roceediroc and we ask tha:

c'r.es?

further temporary enty permits b?	qrar.ted m E h ?
neantixe' . . . . .

The Booths revzin prohlhlted non-citlz?ns	b	:	~	vlrtue
of Section 7 t 3 ) of the Fllgration Act."

On 21

Buqusr; 1984

a further lenuthy letter was wrltcen by the

solicitors to the Department referrinu

'CO proceedings already

commenced in thls

Court seeking orders for review of decisions

-. .

made

on 17

July 1982

and 12 June 1984 and enforcement action

pursuant-to thgse decisions.

It was sald c3at

the proceedings,

commenced on 31 July 1984, had been the subject

of ex parce

orders; that the matter was listed for direccions on

Auqust

1984 and then stood over to

5 October 1984 as a consequence

of an

"interim settlement proposal" agreed to between the parties.	It
was said -

"Tinis proposal, in effect,

provided that the Booths

make an application for Resident Stacus ar?d to put

ali matters

before

you

concernlnl-

their

Appllcation.

"Applicaclnns an? Statements" were enclosed. Su5?15z1ons

as to

why the applicacion should be uiven favourable

csns:d?racion

wet-?

set out In the ietter

which also sald -

"He would respectfully resubmit our	l?trer to the
Department of 12 January, 1983.. . .I'

Referrin? to the application. it stated

iL.

23:tlcular reference sjas made

the

circumzcarces

r,h?

dspllcants including that of th;r child, Lee.

?Fe Appllcations

themselves set out the particular circumstances

of che applicants

end why they wished to

rem.in in Australia.

A letter

from

tne

Department

of 14 September 198:

commenced -

.,.

"I amkwriting concerning

pour

appllcatlon

for

resident status in Australia."

.. .

The letter stated that che application had been considered under

s.6A(l)(e) of the Act,

"tne only provision of the Act applicable

in-your case". It continued -

"After carefully considering all the informatlon

presenced in your application. and at your recent

interviews it has been decided that they are not

sufficiently compellmg

to meet the terms of thls

provision, and consequently the applicatlon has

been refused.

Attention was drawn to review procedures and

the obliuatlon

3euart Australia. Later chere was forwarded

a "Statenent cf

Kcasons"

pursuant

5 . 1 3

the ADJR Act. That

Statement

referred to an authorised officer for

t h e purposes of s.6A of the

act, the thlrd respondenc, having declded

on 7 SepcemSer 1984 -

"....not CO grant encry pernits to Russell Harold Booth, B-lrbara Jean Booth and Lee Russell Booth (the Applicants) pursuant to sectlon 6 and 6A of

%he k t .

. .

In it, unier the hzading "	e	'	T	Rea~ons for my i)ec~sion" ic ~ j a s
sais, 1nt2r alia -

12.

"8. The Lppllcants ar? prohiblted

nzn-cltlzens.

They have breached undertakinos qi:'en

by thein

that they would depart

ar; the end of thelr

authorized vlslt. They are not ellcrible f o r the grant of entry permlts as they do not fulfil any of the condicions in sub-seccion 6A(1) of the Act.

However I accepted that it was possible to paragraph 6A(l)(e) of the Act by Tranting temporary entry permits to them ~f strono compassionace or humanitarlan qrounds existed

for grantlng permanent

resident

status

>them. Accordingly,	I considered Ghetn?r such
-grounds existed. .

-10. The applicants

arrived

in Australia as

visitors with the

Intention of remaining here

permanently. They have

not

coFplied

with

requests to leave

Australia. In vi?x of these

factors and conslderlng

that the Applicants

have no close family ties

In Australia I

decided

that

there

were

strono

compassionate or

humanitarian grounds for the

grant of an entry permit to them. Acccrdingly

I decided not to grant permanent resident

status to the Applicants."

The Amended Application for an Order of Review dated 29

March 1985 commenced:-

"Rnolication to review the decision of

the third

respondent made on

or about 7 Sepcember 1 9 6 4 , that

th?

Appllcant's

Cslcl

Applicatlon

f o r

entry

permits, be refused.

Applicatlon

review conduct

whlch the

respondents are enqaginq or propose to enuaqe bp way of enforcement of the decision of the thlrd

respondenz.

The applicants claim to be aggrieved by the "declsions"

(counsel agreed in argument thls should

be read ln the slncular)

and the conduct or proposed conduct because

...

July 1982, thac t3e 3'~?i_lcant5 are prch:zltecl lmnlgrants +r,d/or prohibited non-clc:zens.

which

decislon.

was

based

Gpon

m C ' 3 r r e r r -

departmental lnforrnatlon and advlslngs.

The refusal

CO grant further temporary entry

permts to. t3e Appllcants, resulted

m an

Application f o r

Resldent Status m Australia.

not being consldered on its merlts.

3 .

The refusal

to grant further temporary encrp

permits, . will embarrass

the

Applicants,

f inanclally

and socially.

_- _<

4. The refusal'to qrant a further temporary entry

permit-,tq

the third named Applicant, will

greatly

disadvantage

the

said

Bppllcant

educationally and emotionally.

5. Should the Respondents attempt to enforce the

decision, the family unit

of the Appllcants

will be irreparably harmed."

The qrounds of

the Application include thoss set out in

the

affidavits of

the first and

second

applicants

and

the

following -

That a breach of the Rules of Natural 3ustlce occurred in connection with the makinu of the decision.

That procedures Ethat7 were required

bp Law -0

be observed in connection wlth the making

,of

the declsions

were not observed.

That the decisxons were not authorlzed bp the Migration Act, 1958, in pursuance of which

they were purported

to have been made;

That the makinq of the decision %as an improper exercise of the pocrer conferrzd by the Mlqration Act, 1958, I n pursuance nf winch it was purported to be made.

e )

That the decisions involved an error c:

Law,

~ ~ h e t k 5 ~

oc not the Frror appears on 55-5 face

of 533 records of chs declslnns:

f)	That the declslons were otherwise ccr::?.ry	to
Law:

14.

That breacnes of

the Rules of natural !usT;lce

[have3 occurred

tare7

occurrinu

or Care3

llkely

to occur,

In connection wlth che

conduct

That procedures that are required by law to be

observed In respecr; of the conduct have not been, are not being or are likely not to be observed.

That an error of Law has been, is being or 1s

likely to be committed in the course of the

conduct.

" :

- . .I'

- ..

Counsel- for the

applicants

submitted

that

the

-.c- ,---

. .

application had been prepared on the basis of both. 55.5 and 6 of

the .QJR

'Act. He

referred to The Mlnister for Inmiuration apd

Ethnic

Affairs v. Maumovska,

(Federal

Court

Australia:

unreported; 5 September 1983). He submitted that lt was held in that case that where a question of law existed in relation td a decision having been made and where there was a 5 . 6 application,

then the Court in considering

the decision andlor the conduct

was

entitled to look at the merits

of the case. He submitted that a

question of

law arose concerning the meanina

of the words

"compassionate

fiunanitarian

urounds"

s . G A ( l ) ( e ) ;

the

meaning

of these

words was their ordinary acc-pted meaninu or

use.	He submitted that there was nothinu in the 5.13 Stacement

of Reasons

suqgestinff

what

the

Delegate

thought

was

their

ordlnary meanlng: that

he should. have referred

to, i f

any.

iwpartmental guidelines

or indicate what he himself thouuht was

the meaninu

of those words.

He submitted chat the Deleuate was

not entitled to sap as a matter of law that the applicants were

?rohiblted ncn-clzizens; rather I t w a s for This Court to fin? 3 s

a matter of iaii E.55.L the applicants w?re rndeed.

prohl>l:-i

. , .

non-citizen5 or that t k y were no:.

He sald chat c?:* applizatlon

souuht

(Inter alia) a

declara-Ion to r,he

ff=.cli

Enat

th?

applicants were not prohlbited nnn-citizens. he sthmittzd that

what the applicants had clone in their Applicatlons for Further Entry Permits had been Zlrstly to apply for resident aEatus and

at the

same time for further

TE?s

(which would tnen make them

eligible for consideration under s.6A(l)(e)).

I n his submission,

the Delegate had come to the

view that it was possible to make

..-

_ . _ r

them eliqible for consideration under the Act by

qranizing them

. ..

TEPs, but only If there were strong compassionate or humanitarian grounds then i n existence: however. in considerina whether there

- existed

“strong

compassionate

humanitarian

urounds“ the

Delegate had failed to give these words their

proper meaninu. He

referred to the Oxford Dictionarv

definitiofi of the words.

a150 referred

what he described

the

principles

legitimate or reasonable expectation, citing role

v. Cunninuham

(1983) 49 W R

-123 .

In support of thls arcument. he sald -

“....that

it has taken in effect the dep3rznent

alnosr, l8 months

come

a final

cohesive

concluslsn as to what Its attitude is so far as the

appllcancs are concerned.

Now the subzlsslon is

that during that perrod

time, because

of the

length of time Involved.

the

applicants

could

reasonably be expected C O set

house

and

reasonably be expecced	to think they were enzitled
to stay.

He said that

to 12

June 1984. though not beyond that, the

applicants had. a leqitimate espectation of beinc permitted to stay in Austraiia ?v?n thouqh they h3r5 k>e+n ~ 0 1 5 C O l e a v ?

previously. Tcep had be?n

Invitecl

m .ILI?= 1353 to F ~ K ?

16.

appllcations for furcher TSPs and forms tierefor w e r e enclosed

wltn the letter of 15 Jun? 1983. He sald char; cnis was, In

effect, an invltatron

apply

for

permission

to stay

Australia. In his submlsslon, if “legitimate expectacion” was a question of having a right to be heard, then

thac riaht must be

dealt with within a reasonable time: if not. persons to whom

che

rlghts attached

- . .

could-have other expectations that were equally

legitimate. or

reasonable flowing from the non-exercise of that

:-+c-

right of being heard. He submitted that there was a right to be

heard which was denied them in the 12 month

period or very soon

after the applications were sent out

by his Instructing solicitor

in July 1983.

He submitted further that insofar as the Delegace

in para.10

of the Statement

of Reasons had referred

to the

applicants’

failure

comply

with

the

request

to leave

Australia, that was

natter which was irrelevant or improper in

the circumstances. He referred to the Naumovska thus

‘ I . . . .where

you

have . . . .a legal question

to be

answered, In relacion to in this case the Mlgratlon

Act, and thac is

a matter that was relevant

so far

as the decisicn is concerned

of the deleuate

or the

Minister, then the court can look

at the merits of

the case and consider the question

of law lnvolved

and ulcimately do a number of different thlnus, not

the least of which is a direction or remittance of

the matter back to the minister for

reconslderation.

He polnted to che r5ferences to conduct by their Honours, Fox, Franki and Lockhart JJ. in the above decision. He submitted that the applicants were ?.?titled to havs the dei-islon reviewed and,

3.t

the ver;?

Ieasz, CD have l t renicted back

C O the Minister f e r

reconsideration.

Counsel

for

cne

responionts

said

th=.r_ her

prlmarv

submission was that

c1rcunsyznces where there was not in

existence a TEP in Auqust l984

wh=rl che application for permanent

residency was made and that

positlon also ojtalned on 7 September

1984 when the Deleqate made his dccislon in respect of

permanenr;

residency, that was the end of tne matter; the

applicants were

. -

not

entitled

or-

el-igible

pursuant

the

provlsions

. -

s.GAfl)(e). to be granted permanent residency

(i.e. an entry

-v-

. ,

permit);

it was necessary for there first to be in existence

. ..

TEP at the tlme

of the

decision maklng; it was not open for the

Delegate to go further. She submitted

that

was

first

necessary to examine the decision itself to ascertaln what it

was

and, secondly, whether

was such that the Court should make

some order in respect

of it.

Counsel

referred

the

terms

"entry

permit"

and

"temporary entry permit"

in the Act. She submltted that

the

arant of a temporary entry permlt was soverned

bv che provisions

s .6(2)

and

( 5 ) and

s . 7 ( 2 ' ;

s.6;?(1)

did not

app ly

to the

grant of a temporary entry permit

as s.6A(8) rescrlcted the

reference of "encry permit" in s.6A(1) to entry permics other

than cemporary entry permits. Keferrinq to the 5.11, Sc-lcement of

Reasons (para.5), she sald the Deleuzte acc?pte< that In August

l984	the applicants had made applications for both temporary

entry permits proceeci-ea on t;?? Sasls chat there w-15 3 rel-?:-?.-t $e,:islon cm>

and

permanent

resldent

statu5.

iier

argument

refuse to qranr temporary entry

p?rmlEs

Sns j u k l t t e d chat

.__-

power to grant a te1-3crary cn:.:

permlt

= a s dlscrcclonary; the

Act did not prescrib? any marters whlch

t h e

Mlnlster or

his

Delegate was required to take Into conslderation: Wtlgrie Sinuh v. Minister for Immicratlon an< Ethnic Xfalrs (Federal Court of

Australia;

unreported;

15 %cemSer 1983). Moreover,

she

contended, referring to The Queen v. MacKellar:

_ -

E:,:

parte Ratu

(1977) 137 C.L.R. 461 that	-	_ _	he	discretion	was	absolute.
.	_	-_

Consequently,

in her submission,

the

principles

of natural

....

-is---

-1

justice need not be

observed: Salemi

v. MacKellar (No.2) (1977)

137 C.L.R.

396;

Minister €or Immiaration and Ethnic Affairs v.

Gaillard (1983) 49 ALR 277 per Neaves J;

althoush this general

principle might be qualified to the extent that there might

have

been a

legitimate expectation in

the applicants, such that the

applicants had a right to be heard.

She submitted. however,

that

the Department's 12 month delay

dealing

with

the

applicants' June

1983 applicacion did

not uive rise to

any

legitimate expectation

in the applicants.

In relation to ths 8xlslon to refuse to qrant the entry

permits referred

to in s.SA,

or resident status. she submitted

that there was no absolute requirement to apply the principles

nacural justice in respecc of a urant of such encr:T permits. There was a discretion in cie Del2qat.e to urant or not to qrant

an entry permlt on strong compasslonate and

hurranltarian qrounds.

:ircumstances, CD.F principles of natural justice dld not apply to

application

under

s . 6 P A ( l ) ( e )

of the Act.

In any event, in her

submission. natural ~ustice	was afforded in the circunstances.
-

ror reasons she expanded, she submitted that

the

decisions d ~ d

not offend s.S(l)(e) of the ADJR Act: the

Delegate had not

failed to take into account relevant matters: these did not

include only matters favourable to the applicancs. Any failure,

d -.

she said,

by the Delegate to state his understanding of the words

1 <-

- - I

"compassionate" and "humanitarian" or to

state

departmental

, --__

. . .

guidelines,

did

not

constitute

error

law.

Nor

was

the

Delegate's

assertion

that

applicants

were

prohibited

non-citizens an error of

law.

In her submission, the applicants

are as a matter of law prohibited non-citizens,

not bemq holders

of any entry permits since the expiry of the original

%PS

1981. She contended that there

was no improper conduct to review

under 5.6 of the ADJR Act; alternatively

if there was such

conduct, it could only glve a right to relief if the applicants xsce not "prohibited non-citizens" . She r e f e r r e d . to Naurno~.~sl.r?.

per Lockharr: J.

at p.5;

Gouruaud v. Lawton

( 1 9 8 2 ) 4 ?.LD 627 at

u . 6 3 5 .

In her suimission the Court's powers under the

X U R Act

5.16 did

not

include

making

a decision on the

merits

o r

substitutlnq its oc;n declslon.

1 have not

attempted

repeat,

though

I have

It is clear Lhat the pr1mat-y

, ~ ~ j e c t ~ ~ ?

of the appllcants

W ~ S

to obEain the grant

of "resident status", alchough the

socurlnq of subsldlary or intermediate step.

temporary

entry

permits

may

well

have

been

I will conslder first, then,

the decision to refuse rhe appllcants resident status. Section

(inter

alia) governed the grant of entry permits other than

temporary entry permits,

_...

-_-

_ -

* _

i.e.

resident status (see

s.6&(8)).

There

prohibition upon granting any permit pursuant

s.6A(1)

unless the grantee is already

the holder of

a TEP

= (s.6A(1

. The applicants did not hold permits of any kind. permit, no natter what the grounds.

Section

) ( e ) , therefore, prohibited the qrantinu of an entry

As there was not In exlstence

a TEP,

the Delegate could only in conformity

with the law refuse

the appllcation.

have granted it would have been illegal.

The letter of 14 September 1984 is consistent with the Delegate's having made a decision as to an application for resident status.

Assuminc; there

an applicatlon for, and a decision to

refus? the appllcants on 7 September 1984, TEPs, was there error in that decision? As pointed Gut by counsel for the respondents,

In considering the grant of TEPs (and even entry permits) there

vas to be exercised a wide discretion. The s.13 St;itement of

Keasons

set out a basis upon

which

the ljelecate considered

Trantlng TEPs

to che applicants, viz. if chere exlsterl "stronc

canpassionate or hunanltarlan grounds".

2 1 .

It is

sald

that

there

LELS

taken

Lnto

ac?ount

considerlng the entlzlevent to a TCD and thus P.

conslu+t-lng r;he

claim related to "compassionate or hurnanltarian arounds"

irrelevant matters, l.?. the history of the appilcants' arrlval

and breach of undertaking; that this constltuted

an srror of

law.	In this regard, with respect. the Delegare was, I smgest,

entitled

to the view that there were no (relevantly)

compassionate and hurranicarian grounds:

or ,

if there were, they

were not strong.

There will no doubt be disappointment that

--'.V .-

their deliberate insiscence on staying in Australia

despite what

they undercook on

27 or 28 November 1980 and the advlce given to

them on arrival and at various tines since, will not

have enabled

them to acnieve what they want. There may

be inconvenlence in

having to dispose of their possessions here if they decide

so to

do and return to Enqland.

The expense of return passage was

contemplated when they

applied

visit

Australia;

their

application required tickets

be obtained which would enable

!	them to	return.	Eut	disappoincment	and	inconvenlence	and	a
!

frustrating of

thelr hopes (for which t'nere never ha5 been any

proper basis)

need

not

compel

finding

that

there were

"compasslonate" and "humanitarian" grounds, strong

or otherwise:

or that the Deleuate should have been requlred to	find them in
the circumstances here.

I account that the applicants arrived

do not agree that If the Deleuate

aid take Into

as visitors ~ n l : ~ , and have

ns.'; complied with

requests to leave Australia.

such matters were

Irrelevant

to hls consideration. Those who undertake

as 2

condition of visitmg this country to comply

with conditlons

Inposed by migration authorities, and who have

been repeatedly

. .

told that those conditions continue to apply to them even before

-. _-

- .

acy settling-m process has been commenced, should anticipace

;hat

chelr ?.ttempts to-dlsregard their undertah-nqs, condltlons

of entry and the laws of thls country will fail. Any frustration

they experience will be related

the failure to brlng about

what they should never have counted on achieving.

The "grounds"

they put forwara

are, I'suggest, not deserving

of the description

"compassionate"; nor can

an insistence of the consequence

thi?ir unjustifiable

conduct

be said

raise

humanitarian

grounds, suggesting that permisslon to set

up residence

here

should be Granted. After

all, they are to return to Enoland

xhere conditlons of llving are politlcallg unexceptlonable, wnere

rhey have

relatives, where they have spent most

of thelr adult

life, and where, so far as evidence

showed,

penalty

'mpleasant consequences awaits them on return.

' Even If the applicants had a right to be heard 13

2 3 .

resxct of an application fct- =?S

o r a r lqkz t s reraain

Australia, then it is clear

t r a c their "case" nas Deen presenced

over and

o-Jer again by

chelr letters, partlnularly the

one

sent In March 1982 (Annexure F to the male applicant's affidavit

dated 29 M-lrch 1985). che correspondence sent

ttr. Free. the

letters from their solicitors, particularly that date? 12 January

1983, (Annexure

.-._

and the Applications for Further Entry Psrmits

_.	. _
'.

themselves. The male

applicant

has

had interviews with

-i

departmental officers, arguments

being recorded and summarised.

In respect thereof a memorandum daced 5 Piovenher 1981 was sent to

the

Secretary in Canberra

(lnnexure D). Thev have

provided

references from supporters; they have

had full

and complete

opportunity to present any arguments o r material they chose.

any legitimate expectation they may

have had (and I do not agres

that in the circumstances

of this case they could

be said to have

such an expectation, legitimate

or otherwlse) has been fully

satisfied. Thus they have not any basis on which they can claim

that the prlncxples of natural justice

have been d?nled them.

Some emphasis was placed in

submissions by applicants'

counsel

the

significance

attacned

the

period

following the lecter from

cne Department of 15 June

1983. The

Deparr;ment d i d not proceed at once

to follow LP chat letter with

some action.

It- was suguested that durlnu that period,

as I

understood the argument.

che

aF?licants

.;o,;ld

have

been

encouraue2

;I,

che belief

?bar: LDS:?

w o ~ l d

n n t

be required

depart f r m Australia;

or that further

oppor?unlt:J to shou xnl;

.. .

[1985] FCA 262

6 Jun 1985