Bowring, P.A. v Minister for Immigration & Ethnic Affairs

[1987] FCA 358

GENERAL DISTRIBUTION NOT REQUIRED

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY	)	No. VG 3 of 1987
)
GENERAL DIVISION	)

B E T W E E N :

PHILIP ARTHUR BOWRING

Applicant

A N D :

THE MINISTER FOR

IMMIGRATION AND ETHNIC

AFFAIRS

Respondent

13 JULY, 1987 KEELY J.

REASONS FOR JUDGMENT

This is an application by Philip Arthur Bowring (the applicant) under the Administrative Decisions (Judicial

Review) Act 1977 (the Judicial Review Act) for an order of review of a decision that he be refused the grant of a return endorsement under S . 11A(l)(b) of the Migration Act - 1958 (the Act). The decision was made by Mr. Derrick Hammon, an authorised officer for the purposes of S. 11A of the Act, and

was notified to the applicant's solicitor, Mr. J. Little, by

letter dated 4 December 1986.

Mr. Hammon supplied to the applicant, upon request

under S . 13 of the Judicial Review Act, a statement of

L .

reasons, dated 20 March 1987, which included the followlng

passages:-

"A Findings on material questions of

fact

1. The applicant is a British subject

and the holder of a British passport.

2. The applicant first entered Australia on or about 10 January 1972 as a migrant; on 20 January 1972 he was issued with a permanent entry permit. Within a few months of his arrival in Australia he

purchased a house in Sydney, which he

still owns.

3. He came to Australia initially to

join the staff of "Finance Week", a

magazine being newly launched in Australia. In June 1982 "Finance Week" was closed down and the applicant became a self-employed journalist writing for

several publications in Australia and

abroad. The applicant's maternal

grandmother was born	a d	lived	in
Australia.

4. On or about 15 April 1973, the

applicant departed from Australia for

Hong Kong, to take up a temporary

appointment there. He has resided in Hong Kong ever since, but he has made a number of visits to Australia since then.

5 . At the time the applicant left Australia in April 1973, he was not

required to obtain a return endorsement

to facilitate re- ntry his into

Australia, because as a British subject of European descent he was exempt from

the requirement o obtain a return

endorsement.

6 . In 1974 a new immigration policy was announced by the then Minister. Its effect was that all Commonwealth citizens

of European descent (except persons

covered by special arrangement with New

Zealand) entering o re-entering

Australia on or after 1 January 1975

would require visas. Those UK citizens

with an Australian born parent or

grandparent were totain special

conditions of entry into Australia; those Australians who had a UK born parent had

a reclprocal right of entry into the

United Kingdom. (The Patriality Policy)

7. In 1977 Mr. Bowring travelled to

Australia; on his arrival he was informed by the authorities that his "permitted to remain" stamp was no longer valid, however he was allowed to enter Australia on a temporary entry visa.

8 . On 1 April 1982 the then Minister

announced the abolitiion of the

"Patrials" category.

B The evidence or other material on

which these findings are based

9 . In making the above findings of fact, I had regard to Departmental file No.

82/38236 consisting of 119 folios."

Mr. Little, who appeared for the applicant, took the court through much of the material contained in the departmental file referred to in paragraph 89. That file included various internal memoranda and minutes, in addition to correspondence between the applicant or Mr. Little on his behalf, and the Department of Immigration (the Department), commencing with a letter from the applicant dated 17 February 1983.

Only grounds (a) (i) and (ii), (b) (ii) and (c) (iv) of the application were pursued. Ground (a) was that:-

"(a) [the decision] involved errors of law, in

that -

(i) it proceeded on the basis that a return

endorsement may only be granted to

persons with permanent resident status,

(ii) it confuses the concepts of domicile and residence".

These grounds were supported reference by to

paragraphs 12, 13 and 14	of the statement of reasons which
were as follows:-

"12. Applications for return endorsements are

assessed agalnst following the basic

requirements:

[a] The applicant must be a permanent resident

of Australia of at least twelve months

standing.

[bl The applicant's true country of residence

must be Australia.

[cl Applicants overseas must have been absent

from Australia for less than three years.

[In these reasons for ludgment hose

paragraphs will be referred to as 12(a),

12(b) and 12(c) respectively]

13. The Resident Re-Entry Handbook states at paragraph 7.4.2 [should read 7.4.3.21 that:

'Where applicant's the record of

movements to and from Australia suggests that he or she has been taking advantage

of the return endorsement system to

maintain resident status in Australia

while having true residence in another

country, the following factors should be

considered:

. Immigration status over the whole

period in Australia.

. family, th of

Whereabouts

particularly the immediate family.

. ownership.

Disposition of assets including home

..

. Employment hlstory/occupation.

If the applicant has positive links with

Australia, the fact that residence has

been divided between Australia and

elsewhere need not mean that he or she is

not a genuine settler.' -

14. The Handbook states at paragraph

11.1.3 that when a replacement return

endorsement is sought in a new passport,

the application should be refused and the

existing return endorsement cancelled if

it is clear that the applicant's true

place of residence is outside Australia."

The submission in support of ground (a)(i) was that the

statement of reasons placed an emphasis on a continuing

residence requirement which is contrary to the wording and

intention of S. 11A(l)(b) of the Act and is also contrary to

the Department's policy (the policy), as set out in the

Resident Re-Entry Handbook which was issued in June 1983 (the

Handbook).

Section 11A(l)(b) of the Act provides:-

"11A( 1) An authorized officer	may,	in
accordance with this section -
....

(b) upon request by a person who is residing

in Australia, or has	resided in Australia and
wishes to return to	Australia, grant to that

person a

return endorsement with respect to

travel to Australia by that person and any

other person whose name is included in the

return endorsement on any number	of occasions
while it remains in force."

It is noted that the sectlon does not require current

residence and provides that a return endorsement may be

granted to a person who "has resided in Australia".

Mr. Little referred to Potter v Minehan (1908) 7 CLR

277 and to - R v Director-General of Social Welfare for

Victoria; ex parte Henry and another (1975) 133 CLR 369; he

submitted that the policy in the Handbook "talks of

settlement rather than esidence". Mr. Little cited

paragraphs 4 and 7 of the policy and in particular paragraphs

7(l)(i), 7(2)(i), 7(4)(2)(i) and 7.4.3 of the Handbook, the

material parts of which read as follows:-

"4.1 A procedure existing for many years

whereby permanent residents intending a

temporary absence from Australia were granted re-entry visas valid until a specified date was, in the main, discontinued in March 1976.

The re-entry visa was replaced by the

Authority to Return (issued in Australia) and

the Authority for Return (issued overseas)

which permitted an number of journeys and

absences of up to three years on each

occasion.

4.2 Impressions of the return authority

stamps are shown in Annex E.

4.3 There was no residential qualifying

period under return authorlty policy and for

administrative convenience return authorities

were issued in conjunction with the grant of

resident status in Australia and visa issue to

unassisted migrants overseas.

4.4 This resulted in some people exploiting

the return authority system by using it to

maintain their resident status in Australla

simply by making brief visits here to activate

or reactivate their return autorities while

having their true residence overseas. This

I .

practice is contrary to the spirit of migrant

entry policy; a requirement applying to all

applicants for migration is that they must

intend settlement In Australia.

4.5 The issue of return authorities ceased on

1 September 1979. However, once issued a

-

return authority, like its successor the

return endorsement, continues in force until

the expiry of the period specified in it

unless it is cancelled. It is not affected

by

the expiry of the passport in which it is

contained.

4.6 Policy provides that return authorities

held by people who are not genuine settlers

are to be allowed to run the course of the

passports In which they were issued, but are

to be cancelled as they come to notice when

new passports are obtained. See paragraph

11.1.4.

4.7 References in this handbook to existing or lapsed return endorsements are to be taken

as including existing or lapsed return

authorities.

....

7.2 Residential requirement for grant of

return endorsement

7.2.1 Section 11A(l)(b) of the Migration Act

provides for the grant of a return endorsement to a person who is residing in Australia or has resided in Australia and wishes to return

to Australia.

7.2.2 As a means of ensuring that return

endorsements are issued only to people whose

true country of residence is Australia, policy

requires a qualifying period of 12 months with

resident status in Australia before a resident

becomes eligible to apply for a return

endorsement.

7.2.3 If residence has been broken by an

absence or absences overseas but the person's

settlement intentions are not suspect, the

aggregate period of actual residence may be

taken into account. where a resident who left

Australia hefore becoming eligible to apply

for a return endorsement was granted a

temporary visa under the provisions of

paragraph 13, the aggregate may include the

period spent under temporary entry permit

before resident status was acquired again.

(But see paragraph 1 3 . 1 about issue of a

return e dorsement tohe older of a

temporary entry permit.)

....

1 . 4 . 3 Person seeking replacement return -

endorsement

1.4.3.1 An assessment is to be made of

whether the person has genuinely settled in

Australia."

Paragraph 7.4.3.2 appears in paragraph 1 3 of the statement of

reasons which has been set out earlier.

Mr. Tracey, of counsel, on behalf of the respondent,

submitted that, even if paragraph 12(b) of the statement of

reasons was not consistent with S . 11A(l)(b), paragraph 15

made it quite clear that the decision was not based upon

paragraph 12(b); what was fatal to the applicant was the fact

that he had "been absent from Australia" for more than three

years (see paragraph 12(c)).

I accept Mr. Tracey's submission as to paragraph 15 of

the statement of reasons, which reads:

"15. In the applicant's case, he is not

resident in Australia and has no plans to

become resident in the near future; he has not until about 1996."

even divided his time between Australia and

Hong Kong. He was resident from 10 January

1972 to 15 April 1973, he has not lived in

That paragraph states, correctly, that the applicant " 1 s not

resident" but "has resided in Australia" (S. llA(1) (b) ). It

then records the fact, again correctly, that the	applicant
"has not lived in Australla since [1973]". It foll	owed that

-

he fell outside the policy statement that he "must have been

absent from Australia for less than three years" - see

paragraph 12(c) of the statement of reasons, quoted earlier.

Mr. Little submitted (under ground (a)(ii)) that the

decision-maker had confused the concepts of domicile and

residence but in my opinion the statement of reasons does not

disclose any such onfusion. I accept Mr. Tracey's

submission that paragraph	15 only refers to "residence" (cf.
S. 11A(l)(b)).

The next ground relied on by the applicant was ground (b)(ii) which states:-

"(b) [the decision] was an improper exercise

of the power under which it purported to be

made that took in it an rrelevant

consideration into account, namely that	-
....

(ii) the applicant's purpose in seeking the

grant of a return endorsement was to

secure a future unlimited right o

residence in Australia."

This ground was directed to matters which included the

letter, dated 4 December 1986, from Mr. Hammon who did not

consider "a decision to allow Mr. Bowring an unlimited right

of return to this country is justified	by	the circumstances
of his case."

I am unable to accept the submission that Hr. Hammon took into account an irrelevant consideration, namely, the applicant's "purpose in seeking the grant ... was to secure a

future unlimited right to residence in Australia". The

applicant himself in a letter had asked how his right of

abode in Australia might be re-established. I also accept

~ r . TKaCey'S submission that HK. Hammon's consideration of

this aspect was no more than a comment in response to a

matter raised by the applicant; it was not a matter raised

positively against the applicant as a reason why his

application should be refused. Ground (b)(ii) of the

application has not been made out.

The remaining ground was (c)(iv) which Hr. Little

accepted had not been clearly expressed	in the application.
AS set out in the application it stated:-

"(c) [the decision] was an improper exercise

of the power under which it purported to be

made in that it failed to take into	account
relevant considerations, namely that -
....

(iv) in being interpreted to apply to him the

1974 visa policy deprived the applicant

without prior notice or compensation of

the legitimate expectation that he could

return to Australia."

It was suggested that the words "in being interpreted to apply to him" should be ignored; the ground was directed to paragraphs 17(ii) and 18(ii) of the reasons which read as follows:-

"17. I further considered whether there were

grounds to grant the applicant a return endorsement outside the policy. The applicant's solicitor submitted two major grounds for a decision outside of policy, as follows:

....

(ii)That the applicant was not informed of, and did not become aware of, the relevant policy changes which affected his right to return to Australia for permanent residence; and that as matter of natural justice he should, upon being informed of the effect of the policy change, have the same opportunity he would have had if he had known its implications when it was first published.

18. I rejected . .	. the above	. . . on the
following grounds:
....

(ii) I do not accept that there was any action open to the applicant at the time of the relevant policy changes which could have preserved a right of residence in Australia. An unconditional right of

return for residence in Australia is

extended only to Australian citizens. Any previous grant of a return endorsement would not have been effective to preserve such a right to the applicant."

My understanding of Mr. Little's submissions in support of this ground is that they follow three steps. The

first step was a contention that the policy statement of 1

August 1974 (which came into effect on 1 January 1975) was

misleading. It was submitted that, on its face, it appeared

to relate only to people coming to settle or visit and did

not apply to the appllcant when re-entering the country,

there being nothing in the policy statement about re-entry.

-

The second step was that, at the time when the

applicant left Australia, he could return without the need

for a return endorsement (paragraph 5 of the statement of

reasons). As he was misled into believing that his

situation continued, he had a legitimate expectation that he

could return at any time without hindrance from the

Australian authorities. It was argued that he was therefore unable to avail himself of an opportunity to make effective

representations - in relation to his "settlement intentions"

- on the factual basis that had existed when the policy first

came into effect in 1975. The opportunity to do so only

arose after 1977, by which time it was too late as he had

already been absent for more than three years (see paragraph

12(c) of the statement of reasons).

The third step was the contention that Mr. Hammon

should therefore (in 1986) have treated the application on

the basis of notional facts i.e. as if the applicant had

satisfied the policy referred to in paragraph 12(c) of the

statement of reasons.

Mr. Little contended that these submisslons under

ground (c)(iv) were within the spirit and intent of the

authorities on natural justice; he referred to - Kioa v

Minister (1985) 62 ALR 321 at 371 where Brennan J. said

-

"[tlhere are interests beyond legal rights . . . described as

legitimate expectations." In my opinion there was no breach

of the principles of natural justice. Further, even if there

were a natural justice requirement, its content would not

have required the disclosure of a change of policy to the

applicant as one of those potentially affected by it.

It may be added that Mr. Hammon did consider the

individual circumstances of the applicant in relation to the policy question (as submitted to him by Mr. Little and

briefly summarized in paragraph 17(ii) of the statement of

reasons) . Although the conclusions of Mr. Hammon in

paragraph 18(ii) of the statement of reasons have been

criticised by the applicant, it is clear law that it is not for this court to make decisions on the merits of an

applicant's case. I am also unable to accept Mr. Little's

submission that paragraph 18(ii) showed a defective legal analysis of the applicant's position. For the same reason as that stated earlier, when dealing with ground (b)(ii), I accept Mr. Tracey's submission that those comments in paragraph 18(ii) were merely a response by Mr. Hammon to a matter which had been raised by the applicant and was not a

1 4

.

matter raised positively against the	applicant	as a	reason
why his application should be refused.

Accordingly ground (c)(iv) also fails. It follows

that the application must be dismissed.

I certify that this and the preceding

thirteen pages are a true copy of the

Reasons for Judgment herein	of	his
Honour Mr. Justice Reely Associate: